Foreign-Trade Zones Board
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
Inspector General Office, Health and Human Services Department
National Institutes of Health
Coast Guard
Transportation Security Administration
U.S. Customs and Border Protection
Fish and Wildlife Service
National Park Service
Surface Mining Reclamation and Enforcement Office
Drug Enforcement Administration
Employment and Training Administration
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Financial Crimes Enforcement Network
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Department of Homeland Security.
Final rule.
In this final rule, the Department of Homeland Security (DHS) makes the 2022 annual inflation adjustment to its civil monetary penalties. On November 2, 2015, the President signed into law The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act). Pursuant to the 2015 Act, all agencies must adjust their civil monetary penalties annually and publish the adjustment in the
This rule is effective on January 11, 2022.
Hillary Hunnings, 202-282-9043,
On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74 section 701 (Nov. 2, 2015)) (2015 Act).
For the subsequent annual adjustments, the 2015 Act requires agencies to increase the penalty amounts by a cost-of-living adjustment. The 2015 Act directs OMB to provide guidance to agencies each year to assist agencies in making the annual adjustments. The 2015 Act requires agencies to make the annual adjustments no later than January 15 of each year and to publish the adjustments in the
Pursuant to the 2015 Act, DHS undertook a review of the civil penalties that DHS and its components administer.
This final rule makes the 2022 annual inflation adjustments to civil monetary penalties pursuant to the 2015 Act and pursuant to guidance OMB issued to agencies on December 15, 2021.
The adjusted penalty amounts will apply to penalties assessed after the effective date of this final rule. We discuss civil penalties by DHS component in Section III below. For each component identified in Section III, below, we briefly describe the relevant civil penalty (or penalties), and we provide a table showing the increase in the penalties for 2022. In the table for each component, we show (1) the penalty name, (2) the penalty statutory and or regulatory citation, (3) the penalty amount as adjusted in the 2021 final rule, (4) the cost-of-living adjustment multiplier for 2022 that OMB provided in its December 15, 2021, guidance, and (5) the new 2022 adjusted penalty. The 2015 Act instructs agencies to round penalties to the nearest $1. For a more complete discussion of the method used for calculating the initial “catch-up” inflation adjustments and a component-by-component breakdown to the nature of the civil penalties and relevant legal authorities, please see the IFR preamble at 81 FR 42987-43000.
In the following sections, we briefly describe the civil penalties that DHS and its components, the Cybersecurity and Infrastructure Security Agency (CISA), the U.S. Customs and Border Protection (CBP), the U.S. Immigration and Customs Enforcement (ICE), the U.S. Coast Guard (USCG), and the Transportation Security Administration (TSA), assess. Other components not mentioned do not impose any civil monetary penalties. We include tables at the end of each section, which list the individual adjustments for each penalty.
The Cybersecurity and Infrastructure Security Agency (CISA) administers only one civil penalty that the 2015 Act affects. That penalty assesses fines for violations of the Chemical Facility Anti-Terrorism Standards (CFATS). CFATS is a program that regulates the security of chemical facilities that, in the discretion of the Secretary, present high levels of security risk. DHS established the CFATS program in 2007 pursuant to section 550 of the Department of Homeland Security Appropriations Act of 2007 (Pub. L. 109-295).
The U.S. Customs and Border Protection (CBP) assesses civil monetary penalties under various titles of the United States Code (U.S.C.) and the CFR. These include penalties for certain violations of title 8 of the CFR regarding the Immigration and Nationality Act of 1952 (Pub. L. 82-414, as amended) (INA). The INA contains provisions that impose penalties on persons, including carriers and aliens, who violate specified provisions of the INA. The relevant penalty provisions appear in numerous sections of the INA; however, CBP has enumerated these penalties in regulation in one location—8 CFR 280.53. For a complete list of the INA sections for which penalties are assessed, in addition to a brief description of each violation, see the 2016 IFR preamble at 81 FR 42989-42990. For a complete list and brief description of the non-INA civil monetary penalties assessed by CBP subject to adjustment and a discussion of the history of the DHS and CBP adjustments to the non-INA penalties, see the 2019 annual inflation adjustment final rule preamble at 84 FR 13499, 13500 (April 5, 2019).
Below is a table showing the 2022 adjustment for the penalties that CBP administers.
U.S. Immigration and Customs Enforcement (ICE) assesses civil monetary penalties for certain employment-related violations arising from the INA. ICE's civil penalties are located in title 8 of the CFR.
There are three different sections in the INA that impose civil monetary penalties for violations of the laws that relate to employment actions: Sections 274A, 274B, and 274C. ICE has primary enforcement responsibilities for two of these civil penalty provisions (sections 274A and 274C), and the Department of Justice (DOJ) has enforcement responsibilities for one of these civil penalty provisions (section 274B). The INA, in sections 274A and 274C, provides for imposition of civil penalties for various specified unlawful acts pertaining to the employment eligibility verification process (Form I-9, Employment Eligibility Verification), the employment of unauthorized aliens, and document fraud.
Because both DHS and DOJ implement the three employment-related penalty sections in the INA, both Departments' implementing regulations reflect the civil penalty amounts. For a complete description of the civil money penalties assessed and a discussion of DHS's and DOJ's efforts to update the penalties in years past, see the IFR preamble at 81 FR 42991. Below is a table showing the 2022 adjustment for the penalties that ICE administers.
The Coast Guard is authorized to assess close to 150 penalties involving maritime safety and security and environmental stewardship that are critical to the continued success of Coast Guard missions. Various statutes in titles 14, 16, 19, 33, 42, 46, and 49 of the U.S.C. authorize these penalties. Titles 33 and 46 authorize the vast majority of these penalties as these statutes deal with navigation, navigable waters, and shipping. For a complete discussion of the civil monetary penalties assessed by the Coast Guard, see the 2016 IFR preamble at 81 FR 42992.
The Coast Guard has identified the penalties it administers, adjusted those penalties for inflation, and is listing those new penalties in a table located in the CFR—specifically, Table 1 in 33 CFR 27.3. Table 1 in 33 CFR 27.3 identifies the statutes that provide the Coast Guard with civil monetary penalty authority and sets out the inflation-adjusted maximum penalty that the Coast Guard may impose pursuant to each statutory provision. Table 1 in 33 CFR 27.3 provides the current maximum penalty for violations that occurred after November 2, 2015.
The applicable civil penalty amounts for violations occurring on or before November 2, 2015, are set forth in previously published regulations amending 33 CFR part 27. To find the applicable penalty amount for a violation that occurred on or before November 2, 2015, look to the prior versions of the CFR that pertain to the date on which the violation occurred.
Table 4 below shows the 2022 adjustment for the penalties that the Coast Guard administers.
The Transportation Security Administration (TSA) is updating its civil penalties regulation in accordance with the 2015 Act. Pursuant to its statutory authority in 49 U.S.C. 46301(a)(1), (4), (5), (6), 49 U.S.C. 46301(d)(2), (8), and 49 U.S.C. 114(u), TSA may impose penalties for violations of statutes that TSA administers, including penalties for violations of implementing regulations or orders. Note that pursuant to division K, title I, sec. 1904(b)(1)(I), of Public Law 115-254, 132 Stat. 3186, 3545 (Oct. 5, 2018), the TSA Modernization Act—part of the FAA Reauthorization Act of 2018—the former 49 U.S.C. 114(v), which relates to penalties, was re-designated as 49 U.S.C. 114(u).
TSA assesses these penalties for a wide variety of aviation and surface security requirements, including violations of TSA's requirements applicable to Transportation Worker Identification Credentials (TWIC),
DHS is promulgating this final rule to ensure that the amount of civil penalties that DHS assesses or enforces reflects the statutorily mandated ranges as adjusted for inflation. The 2015 Act provides a clear formula for adjustment of the civil penalties, leaving DHS and its components with little room for discretion. DHS and its components have been charged only with performing ministerial computations to determine the amounts of adjustments for inflation to civil monetary penalties. In these annual adjustments DHS is merely updating the penalty amounts by applying the cost-of-living adjustment multiplier that OMB has provided to agencies. Furthermore, the 2015 Act specifically instructed that agencies make the required annual adjustments notwithstanding section 553 of title 5 of the U.S.C. Thus, as specified in the 2015 Act, the prior public notice-and-comment procedures and delayed effective date requirements of the Administrative Procedure Act (APA) do not apply to this rule. Further, as described above, this rule makes minor amendments to the regulations to reflect changes required by clear statutory authority, and DHS finds that prior notice and comment procedures and a delayed effective date for these amendments are unnecessary.
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.
OMB has not designated this final rule a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed this rule.
This final rule makes nondiscretionary adjustments to existing civil monetary penalties in accordance with the 2015 Act and OMB guidance.
The Regulatory Flexibility Act applies only to rules for which an agency publishes a notice of proposed rulemaking pursuant to 5 U.S.C. 553(b). See 5 U.S.C. 601-612. The Regulatory Flexibility Act does not apply to this final rule because a notice of proposed rulemaking was not required for the reasons stated above.
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. This final rule will not result in such an expenditure.
The provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this final rule, because this final rule does not trigger any new or revised recordkeeping or reporting.
The amendments to 19 CFR part 4 in this document are issued in accordance with 19 CFR 0.2(a), which provides that the authority of the Secretary of the Treasury with respect to CBP regulations that are not related to customs revenue functions was transferred to the Secretary of Homeland Security pursuant to Section 403(l) of the Homeland Security Act of 2002. Accordingly, this final rule to amend such regulations may be signed by the Secretary of Homeland Security (or his or her delegate).
Reporting and recordkeeping requirements, Security measures.
Administrative practice and procedure, Aliens, Employment, Fraud, Penalties.
Administrative practice and procedure, Aliens, Employment, Penalties, Reporting and recordkeeping requirements.
Administrative practice and procedure, Immigration, Penalties.
Exports, Freight, Harbors, Maritime carriers, Oil pollution, Reporting and recordkeeping requirements, Vessels.
Administrative practice and procedure, Penalties.
Administrative practice and procedure, Investigations, Law enforcement, Penalties.
Accordingly, for the reasons stated in the preamble, DHS is amending 6 CFR part 27, 8 CFR parts 270, 274a, and 280, 19 CFR part 4, 33 CFR part 27, and 49 CFR part 1503 as follows:
6 U.S.C. 624; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-74, 129 Stat. 599; Pub. L. 113-254, 128 Stat. 2898, as amended by Pub. L. 116-150, 134 Stat. 679.
(b) * * *
(3) Where the Assistant Secretary determines that a facility is in violation of an Order issued pursuant to paragraph (a) of this section and issues an Order Assessing Civil Penalty pursuant to paragraph (b)(1) of this section, a chemical facility is liable to the United States for a civil penalty of not more than $25,000 for each day during which the violation continues, if the violation of the Order occurred on or before November 2, 2015, or $38,139 for each day during which the violation of the Order continues, if the violation occurred after November 2, 2015.
8 U.S.C. 1101, 1103, and 1324c; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321 and Pub. L. 114-74, 129 Stat. 599.
(b) * * *
(1) * * *
(ii) * * *
(A)
(B)
(C)
(D)
8 U.S.C. 1101, 1103, 1105a, 1324a; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-74, 129 Stat. 599.
(b)
(b) * * *
(1) * * *
(ii) * * *
(A) First offense—not less than $275 and not more than $2,200 for each unauthorized alien with respect to whom the offense occurred before March 27, 2008; not less than $375 and not exceeding $3,200, for each unauthorized alien with respect to whom the offense occurred occurring on or after March 27, 2008, and on or before November 2, 2015; and not less than $627 and not more than $5,016 for each unauthorized alien with respect to whom the offense occurred occurring after November 2, 2015;
(B) Second offense—not less than $2,200 and not more than $5,500 for each unauthorized alien with respect to whom the second offense occurred before March 27, 2008; not less than $3,200 and not more than $6,500, for each unauthorized alien with respect to whom the second offense occurred on or after March 27, 2008, and on or before November 2, 2015; and not less than $5,016 and not more than $12,537 for each unauthorized alien with respect to
(C) More than two offenses—not less than $3,300 and not more than $11,000 for each unauthorized alien with respect to whom the third or subsequent offense occurred before March 27, 2008; not less than $4,300 and not exceeding $16,000, for each unauthorized alien with respect to whom the third or subsequent offense occurred on or after March 27, 2008, and on or before November 2, 2015; and not less than $7,523 and not more than $25,076 for each unauthorized alien with respect to whom the third or subsequent offense occurred after November 2, 2015; and
(2) A respondent determined by the Service (if a respondent fails to request a hearing) or by an administrative law judge, to have failed to comply with the employment verification requirements as set forth in § 274a.2(b), shall be subject to a civil penalty in an amount of not less than $100 and not more than $1,000 for each individual with respect to whom such violation occurred before September 29, 1999; not less than $110 and not more than $1,100 for each individual with respect to whom such violation occurred on or after September 29, 1999, and on or before November 2, 2015; and not less than $252 and not more than $2,507 for each individual with respect to whom such violation occurred after November 2, 2015. * * *
8 U.S.C. 1103, 1221, 1223, 1227, 1229, 1253, 1281, 1283, 1284, 1285, 1286, 1322, 1323, 1330; 66 Stat. 173, 195, 197, 201, 203, 212, 219, 221-223, 226, 227, 230; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-74, 129 Stat. 599.
(b) * * *
(1) Section 231(g) of the Act, penalties for non-compliance with arrival and departure manifest requirements for passengers, crewmembers, or occupants transported on commercial vessels or aircraft arriving to or departing from the United States: From $1,436 to $1,525.
(2) Section 234 of the Act, penalties for non-compliance with landing requirements at designated ports of entry for aircraft transporting aliens: From $3,901 to $4,144.
(3) Section 240B(d) of the Act, penalties for failure to depart voluntarily: From $1,644 minimum/$8,224 maximum to $1,746 minimum/$8,736 maximum.
(4) Section 243(c)(1)(A) of the Act, penalties for violations of removal orders relating to aliens transported on vessels or aircraft, under section 241(d) of the Act, or for costs associated with removal under section 241(e) of the Act: From $3,289 to $3,494.
(5) Penalties for failure to remove alien stowaways under section 241(d)(2) of the Act: From $8,224 to $8,736.
(6) Section 251(d) of the Act, penalties for failure to report an illegal landing or desertion of alien crewmen, and for each alien not reported on arrival or departure manifest or lists required in accordance with section 251 of the Act: From $390 to $414; and penalties for use of alien crewmen for longshore work in violation of section 251(d) of the Act: From $9,753 to $10,360.
(7) Section 254(a) of the Act, penalties for failure to control, detain, or remove alien crewmen: From $975 minimum/$5,851 maximum to $1,036 minimum/$6,215 maximum.
(8) Section 255 of the Act, penalties for employment on passenger vessels of aliens afflicted with certain disabilities: From $1,951 to $2,072.
(9) Section 256 of the Act, penalties for discharge of alien crewmen: From $2,925 minimum/$5,851 maximum to $3,107 minimum/$6,215 maximum.
(10) Section 257 of the Act, penalties for bringing into the United States alien crewmen with intent to evade immigration laws: From $19,505 maximum to $20,719 maximum.
(11) Section 271(a) of the Act, penalties for failure to prevent the unauthorized landing of aliens: From $5,851 to $6,215.
(12) Section 272(a) of the Act, penalties for bringing to the United States aliens subject to denial of admission on a health-related ground: From $5,851 to $6,215.
(13) Section 273(b) of the Act, penalties for bringing to the United States aliens without required documentation: From $5,851 to $6,215.
(14) Section 274D of the Act, penalties for failure to depart: From $823 maximum to $874 maximum, for each day the alien is in violation.
(15) Section 275(b) of the Act, penalties for improper entry: From $82 minimum/$412 maximum to $87 minimum/$438 maximum, for each entry or attempted entry.
5 U.S.C. 301; 19 U.S.C. 66, 1415, 1431, 1433, 1434, 1624, 2071 note; 46 U.S.C. 501, 60105.
Sections 4.80, 4.80a, and 4.80b also issued under 19 U.S.C. 1706a; 28 U.S.C. 2461 note; 46 U.S.C. 12112, 12117, 12118, 50501-55106, 55107, 55108, 55110, 55114, 55115, 55116, 55117, 55119, 56101, 55121, 56101, 57109; Pub. L. 108-7, Division B, Title II, § 211;
Section 4.92 also issued under 28 U.S.C. 2461 note; 46 U.S.C. 55111;
(b) * * *
(2) The penalty imposed for the unlawful transportation of passengers between coastwise points is $300 for each passenger so transported and landed on or before November 2, 2015, and $873 for each passenger so transported and landed after November 2, 2015 (46 U.S.C. 55103, as adjusted by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015).
(i) Any vessel, entitled to be documented and not so documented, employed in a trade for which a Certificate of Documentation is issued under the vessel documentation laws (see § 4.0(c)), other than a trade covered by a registry, is liable to a civil penalty of $500 for each port at which it arrives without the proper Certificate of Documentation on or before November 2, 2015, and $1,453 for each port at which it arrives without the proper Certificate of Documentation after November 2, 2015 (19 U.S.C. 1706a, as adjusted by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015). If such a vessel has on board any foreign merchandise (sea stores excepted), or any domestic taxable alcoholic beverages, on which the duty and taxes have not been paid or secured to be paid, the vessel and its cargo are subject to seizure and forfeiture.
* * * The penalties for violation of this section occurring after November 2, 2015, are a fine of from $1,017 to $3,198 against the owner or master of the towing vessel and a further penalty against the towing vessel of $174 per ton of the towed vessel (46 U.S.C. 55111, as adjusted by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015).
Secs. 1-6, Pub. L. 101-410, 104 Stat. 890, as amended by Sec. 31001(s)(1), Pub. L. 104-134, 110 Stat. 1321 (28 U.S.C. 2461 note); Department of Homeland Security Delegation No. 0170.1, sec. 2 (106).
* * * The adjusted civil penalty amounts listed in Table 1 to this section are applicable for penalty assessments issued after January 11, 2022, with respect to violations occurring after November 2, 2015. * * *
6 U.S.C. 1142; 18 U.S.C. 6002; 28 U.S.C. 2461 (note); 49 U.S.C. 114, 20109, 31105, 40113-40114, 40119, 44901-44907, 46101-46107, 46109-46110, 46301, 46305, 46311, 46313-46314; Pub. L. 104-134, as amended by Pub. L. 114-74.
(b) * * *
(1) For violations that occurred on or before November 2, 2015, $10,000 per violation, up to a total of $50,000 per civil penalty action, in the case of an individual or small business concern (“small business concern” as defined in section 3 of the Small Business Act (15 U.S.C. 632)). For violations that occurred after November 2, 2015, $12,794 per violation, up to a total of $63,973 per civil penalty action, in the case of an individual or small business concern; and
(2) For violations that occurred on or before November 2, 2015, $10,000 per violation, up to a total of $400,000 per civil penalty action, in the case of any other person. For violations that occurred after November 2, 2015, $12,794 per violation, up to a total of $511,780 per civil penalty action, in the case of any other person.
(c) * * *
(1) For violations that occurred on or before November 2, 2015, $10,000 per violation, up to a total of $50,000 per civil penalty action, in the case of an individual or small business concern (“small business concern” as defined in section 3 of the Small Business Act (15 U.S.C. 632)). For violations that occurred after November 2, 2015, $14,950 per violation, up to a total of $74,754 per civil penalty action, in the case of an individual (except an airman serving as an airman), or a small business concern.
(2) For violations that occurred on or before November 2, 2015, $10,000 per violation, up to a total of $400,000 per civil penalty action, in the case of any other person (except an airman serving as an airman) not operating an aircraft for the transportation of passengers or property for compensation. For violations that occurred after November 2, 2015, $14,950 per violation, up to a total of $598,026 per civil penalty action, in the case of any other person (except an airman serving as an airman) not operating an aircraft for the transportation of passengers or property for compensation.
(3) For violations that occurred on or before November 2, 2015, $25,000 per violation, up to a total of $400,000 per civil penalty action, in the case of a person operating an aircraft for the transportation of passengers or property for compensation (except an individual serving as an airman). For violations that occurred after November 2, 2015, $37,377 per violation, up to a total of $598,026 per civil penalty action, in the case of a person (except an individual serving as an airman) operating an aircraft for the transportation of passengers or property for compensation.
Farm Credit Administration.
Final rule.
This regulation implements inflation adjustments to civil money penalties (CMPs) that the Farm Credit Administration (FCA) may impose or enforce pursuant to the Farm Credit Act of 1971, as amended (Farm Credit Act), and pursuant to the Flood Disaster Protection Act of 1973, as amended by the National Flood Insurance Reform Act of 1994, and further amended by the Biggert-Waters Flood Insurance Reform Act of 2012 (Biggert-Waters Act) (collectively FDPA, as amended).
Brian Camp, Accountant, Office of Regulatory Policy, Farm Credit Administration, (703) 254-3004, TTY (703) 883-4056, Or
Heather LoPresti, Senior Counsel, Office of General Counsel, Farm Credit Administration, (703) 883-4318, TTY (703) 883-4056.
The objective of this regulation is to adjust the maximum CMPs for inflation through a final rulemaking to retain the deterrent effect of such penalties.
The Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996 (1996 Act) and the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act) (collectively, 1990 Act, as amended), requires all Federal agencies with the authority to enforce CMPs to evaluate and adjust, if necessary, those CMPs each year to ensure that they continue to maintain their deterrent value and promote compliance with the law. Section 3(2) of the 1990 Act, as amended, defines a civil monetary penalty
The FCA imposes and enforces CMPs through the Farm Credit Act
The Farm Credit Act provides that any Farm Credit System (System) institution or any officer, director, employee, agent, or other person participating in the conduct of the affairs of a System institution who violates the terms of a cease-and-desist order that has become final pursuant to section 5.25 or 5.26 of the Farm Credit Act must pay a maximum daily amount of $1,000,
Section 5.32(a) of the Farm Credit Act also states that “[a]ny such institution or person who violates any provision of the [Farm Credit] Act or any regulation issued under this Act shall forfeit and pay a civil penalty of not more than $500
The FCA also enforces the FDPA, as amended, which requires FCA to assess CMPs for a pattern or practice of committing certain specific actions in violation of the National Flood Insurance Program. The existing maximum CMP for a violation under the Flood Disaster Protection Act of 1973 is $2,000.
The 2015 Act required all Federal agencies to adjust the CMPs yearly, starting January 15, 2017.
Under Section 4(b) of the 1990 Act, as amended, annual adjustments are to be made no later than January 15.
Section 5(b) of the 1990 Act, as amended, defines the term “cost-of-living adjustment” as the percentage (if any) for each civil monetary penalty by which (1) the Consumer Price Index (CPI) for the month of October of the calendar year preceding the adjustment, exceeds (2) the CPI for the month of October one year before the month of October referred to in (1) of the calendar year in which the amount of such civil monetary penalty was last set or adjusted pursuant to law.
The increase for each CMP adjusted for inflation must be rounded using a method prescribed by section 5(a) of the
If a civil monetary penalty is subject to a cost-of-living adjustment under the 1990 Act, as amended, but is adjusted to an amount greater than the amount of the adjustment required under the Act within the 12 months preceding a required cost-of-living adjustment, the agency is not required to make the cost-of-living adjustment to that CMP in that calendar year.
The adjustment requirement affects two provisions of section 5.32(a) of the Farm Credit Act. For the 2022 yearly adjustments to the CMPs set forth by the Farm Credit Act, the calculation required by the 2021 White House Office of Management and Budget (OMB) guidance
The adjustment also affects the CMPs set by the Flood Disaster Protection Act of 1973, as amended. The adjustment multiplier is the same for all FCA enforced CMPs, set at 1.06222. The maximum CMPs for violations were created in 2012 by the Biggert-Waters Act, which amended the Flood Disaster Protection Act of 1973.
The inflation-adjusted CMP currently in effect for violations of a final order occurring on or after January 15, 2021, is a maximum daily amount of $2,395.
The inflation-adjusted CMP currently in effect for violations of the Farm Credit Act or regulations issued under the Farm Credit Act occurring on or after January 15, 2021, is a maximum daily amount of $1,084.
The existing maximum CMP for a pattern or practice of flood insurance violations pursuant to 42 U.S.C. 4012a(f)(5) occurring on or after January 15, 2021, is $2,252. Multiplying $2,252 by the 2021 OMB multiplier, 1.06222, yields a total of $2,392.12. When that number is rounded as required by section 5(a) of the 1990 Act, as amended, the new maximum assessment of the CMP for violating 42 U.S.C. 4012a(f)(5) is $2,392. Thus, the new CMP maximum is $2,392, for violations that occur on or after January 15, 2022.
The 1990 Act, as amended, gives Federal agencies no discretion in the adjustment of CMPs for the rate of inflation. Further, these revisions are ministerial, technical, and noncontroversial. For these reasons, the FCA finds good cause to determine that public notice and an opportunity to comment are impracticable, unnecessary, and contrary to the public interest pursuant to the Administrative Procedure Act, 5 U.S.C. 553(b)(B), and adopts this rule in final form.
Pursuant to section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601
Administrative practice and procedure, Crime, Investigations, Penalties.
For the reasons stated in the preamble, part 622 of chapter VI, title 12 of the Code of Federal Regulations is amended as follows:
Secs. 5.9, 5.10, 5.17, 5.25-5.37 of the Farm Credit Act (12 U.S.C. 2243, 2244, 2252, 2261-2273); 28 U.S.C. 2461 note; and 42 U.S.C. 4012a(f).
(a) The maximum amount of each civil money penalty within FCA's jurisdiction is adjusted in accordance with the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended (28 U.S.C. 2461
(1) Amount of civil money penalty imposed under section 5.32 of the Act for violation of a final order issued under section 5.25 or 5.26 of the Act: The maximum daily amount is $2,544 for violations that occur on or after January 15, 2022.
(2) Amount of civil money penalty for violation of the Act or regulations: The maximum daily amount is $1,151 for each violation that occurs on or after January 15, 2022.
(b) The maximum civil money penalty amount assessed under 42 U.S.C. 4012a(f) is $2,392 for each violation that occurs on or after January 15, 2022, with no cap on the total amount of penalties that can be assessed against any single institution during any calendar year.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
The FAA is superseding Airworthiness Directive (AD) 2018-25-16, which applied to certain Airbus Defense and Space S.A. Model CN-235, CN-235-200, and CN-235-300 airplanes. AD 2018-25-16 required revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. Since the FAA issued AD 2018-25-16, the FAA has determined that additional new or more restrictive airworthiness limitations, including inspections for discrepancies (cracking) of certain structural elements, are necessary. This AD requires revising the existing maintenance or inspection program, as applicable, to incorporate additional new or more restrictive airworthiness limitations, and repetitive inspections for discrepancies (cracking) of certain structural elements and corrective actions; 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 February 15, 2022.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of February 15, 2022.
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 at
Shahram Daneshmandi, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3220; email
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0251, dated November 11, 2020 (EASA AD 2020-0251) (also referred to as the MCAI), to correct an unsafe condition for all Airbus Defense and Space S.A. Model CN-235, CN-235-100, CN-235-200, and CN-235-300 airplanes.
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2018-25-16, Amendment 39-19527 (83 FR 64441, December 17, 2018) (AD 2018-25-16). AD 2018-25-16 applied to certain Airbus Defense and Space S.A. Model CN-235, CN-235-200, and CN-235-300 airplanes. The NPRM published in the
The FAA is issuing this AD to address fatigue cracking, damage, and corrosion in principal structural elements; such fatigue cracking, damage, and corrosion could result in reduced structural integrity of the airplane. See the MCAI for additional background information.
The FAA received no comments on the NPRM or on the determination of the cost to the public.
The FAA has revised paragraph (c) of this AD to remove the inadvertent reference to an airplane's original airworthiness certificate or original export certificate of airworthiness issued on or before March 20, 2018, from the applicability. As explained in the preamble of the NPRM, the intention was to follow the EASA AD 2020-0251's intent. None of the airplanes in the current U.S. fleet have an original airworthiness certificate or original export certificate of airworthiness issued after March 20, 2018. This change does not add any further requirements on any airplane on the U.S. registry, therefore, re-opening the public comment period to provide notice and opportunity for prior public comment are unnecessary, pursuant to 5 U.S.C 553(b)(3). However, paragraphs (h)(5) and (6) of this AD do retain the reference to an airplane's original airworthiness certificate or original export certificate of airworthiness issued on or before March 20, 2018. Those paragraphs state the FAA requirements in regards to maintenance or inspection program revisions to incorporate airworthiness limitations and are separate from the repetitive inspections that apply to all airplanes. Airplanes with an original airworthiness certificate or original export certificate of airworthiness issued after March 20, 2018, must comply with the airworthiness limitations specified as part of the approved type design and referenced on the type certificate data sheet. Therefore, this AD does not include those airplanes in the requirement to revise the existing maintenance or inspection program.
The FAA reviewed the relevant data, and determined that air safety requires adopting this AD as proposed. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any
EASA AD 2020-0251 specifies new or more restrictive airworthiness limitations for airplane systems, structural inspections, safe life structural items, and safe life system items. EASA AD 2020-0251 also describes repetitive inspections for discrepancies (cracking) of certain structural elements and corrective action (repair). 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 8 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. The FAA estimates the total cost per operator for the new actions to be $7,650 (90 work-hours × $85 per work-hour).
The FAA has received no definitive data on which to base the cost estimates for the on-condition actions specified in this AD.
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 February 15, 2022.
This AD replaces AD 2018-25-16, Amendment 39-19527 (83 FR 64441, December 17, 2018) (AD 2018-25-16).
This AD applies to all Airbus Defense and Space S.A. (formerly known as Construcciones Aeronauticas, S.A.) Model CN-235, CN-235-100, CN-235-200, and CN-235-300 airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks; and 53, Fuselage.
This AD was prompted by a determination that new or more restrictive airworthiness limitations, including inspections for discrepancies (cracking) of certain structural elements, are necessary. The FAA is issuing this AD to address fatigue cracking, damage, and corrosion in principal structural elements; such fatigue cracking, damage, and corrosion could result in reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2020-0251, dated November 11, 2020 (EASA AD 2020-0251).
(1) Where EASA AD 2020-0251 refers to its effective date, this AD requires using the effective date of this AD.
(2) The requirements specified in paragraph (4) of EASA AD 2020-0251 do not apply to this AD.
(3) Where paragraph (5) of EASA AD 2020-0251 specifies actions if discrepancies are found while accomplishing any task “required by paragraph (1), (2), (3) or (4) of this [EASA] AD,” this AD requires actions if discrepancies are found while accomplishing
(4) Where paragraph (5) of EASA AD 2020-0251 specifies actions “in case of finding discrepancies,” for this AD, discrepancies include fatigue cracking.
(5) Paragraph (6) of EASA AD 2020-0251 specifies revising “the approved AMP” within 12 months after its effective date, but this AD requires, for airplanes with an original airworthiness certificate or original export certificate of airworthiness issued on or before March 20, 2018, revising the existing maintenance or inspection program, as applicable, to incorporate the “limitations, tasks and associated thresholds and intervals” specified in paragraph (6) of EASA AD 2020-0251 within 90 days after the effective date of this AD.
(6) For airplanes with an original airworthiness certificate or original export certificate of airworthiness issued on or before March 20, 2018, the initial compliance time for doing the tasks specified in paragraph (6) of EASA AD 2020-0251 is at the applicable “thresholds” as incorporated by the requirements of paragraph (6) of EASA AD 2020-0251, or within 90 days after the effective date of this AD, whichever occurs later.
(7) The provisions specified in paragraphs (7) and (8) of EASA AD 2020-0251 do not apply to this AD.
(8) The “Remarks” section of EASA AD 2020-0251 does not apply to this AD.
After the existing maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
Although the service information referenced in EASA AD 2020-0251 specifies to submit certain information to the manufacturer, this AD does not include that requirement.
The following provisions also apply to this AD:
(1)
(2)
For more information about this AD, contact Shahram Daneshmandi, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3220; 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 2020-0251, dated November 11, 2020.
(ii) [Reserved]
(3) For EASA AD 2020-0251, 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.
(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), Department of Transportation (DOT).
Final rule.
The FAA is superseding Airworthiness Directive (AD) 2020-07-17, which applied to all Saab AB, Support and Services Model SAAB 2000 airplanes. AD 2020-07-17 required revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. Since the FAA issued AD 2020-07-17, it has determined that new or more restrictive airworthiness limitations are necessary. This AD retains the requirements of AD 2020-07-17 and requires revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, as specified in a European Union Aviation Safety Agency (EASA) AD. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective February 15, 2022.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of February 15, 2022.
The Director of the Federal Register approved the incorporation by reference of a certain other publication listed in this AD as of May 26, 2020 (85 FR 21764, April 20, 2020).
For 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 at
Shahram Daneshmandi, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3220;
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0132, dated May 25, 2021 (EASA AD 2021-0132) (also referred to as the MCAI), to correct an unsafe condition for all Saab AB, Support and Services Model SAAB 2000 airplanes. EASA AD 2021-0132 superseded EASA AD 2019-0263, dated October 22, 2019 (EASA AD 2019-0263) (which corresponds to FAA AD 2020-07-17, Amendment 39-19896 (85 FR 21764, April 20, 2020) (AD 2020-07-17)).
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2020-07-17. AD 2020-07-17 applied to all Saab AB, Support and Services Model SAAB 2000 airplanes. The NPRM published in the
The FAA is issuing this AD to address, among other things, fatigue cracking of principal structural elements (PSEs) and corrosion prevention and control. This unsafe condition, if not addressed, could result in reduced structural integrity of a PSE, and lead to loss of control of the airplane.
The FAA received no comments on the NPRM or on the determination of the cost to the public.
The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products.
EASA AD 2021-0132 describes new or more restrictive airworthiness limitations for safe life limits, structural limitation items, and fuel airworthiness items, as well as certification maintenance requirements.
This AD also requires EASA AD 2019-0263, which the Director of the Federal Register approved for incorporation by reference as of May 26, 2020 (85 FR 21764, April 20, 2020).
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 9 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
The FAA estimates the total cost per operator for the retained actions from AD 2020-07-17 to be $7,650 (90 work-hours × $85 per work-hour).
The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. The FAA estimates the total cost per operator for the new proposed maintenance/inspection program revision to be $7,650 (90 work-hours × $85 per work-hour).
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 February 15, 2022.
This AD replaces AD 2020-07-17, Amendment 39-19896 (85 FR 21764, April 20, 2020) (AD 2020-07-17).
This AD applies to all Saab AB, Support and Services Model SAAB 2000 airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.
This AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The FAA is issuing this AD to address, among other things, fatigue cracking of principal structural elements (PSEs) and corrosion prevention and control. This unsafe condition, if not addressed, could result in reduced structural integrity of a PSE, and lead to loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (g) of AD 2020-07-17, with no changes. Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2019-0263, dated October 22, 2019 (EASA AD 2019-0263). Accomplishing the maintenance or inspection program revision required by paragraph (j) of this AD terminates the requirements of this paragraph.
This paragraph restates the requirements of paragraph (h) of AD 2020-07-17, with revised exceptions.
(1) The requirements specified in paragraphs (1) and (2) of EASA AD 2019-0263 do not apply to this AD.
(2) Paragraph (3) of EASA AD 2019-0263 specifies revising “the approved AMP [aircraft maintenance program]” within 12 months after its effective date, but this AD requires revising the existing maintenance or inspection program, as applicable, to incorporate the “limitations, tasks and associated thresholds and intervals” specified in paragraph (3) of EASA AD 2019-0263 within 90 days after May 26, 2020 (the effective date of AD 2020-07-17).
(3) The initial compliance time for doing the tasks specified in paragraph (3) of EASA AD 2019-0263 is at the applicable “associated thresholds” specified in paragraph (3) of EASA AD 2019-0263, or within 90 days after May 26, 2020 (the effective date of AD 2020-07-17), whichever occurs later.
(4) The provisions specified in paragraphs (4) and (5) of EASA AD 2019-0263 do not apply to this AD.
(5) The “Remarks” section of EASA AD 2019-0263 does not apply to this AD.
This paragraph restates the requirements of paragraph (i) of AD 2020-07-17, with a new exception. Except as required by paragraph (j) of this AD, after the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
Except as specified in paragraph (k) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, EASA AD 2021-0132, dated May 25, 2021 (EASA AD 2021-0132). Accomplishing the maintenance or inspection program revision required by this paragraph terminates the requirements of paragraph (g) of this AD.
(1) The requirements specified in paragraphs (1) and (2) of EASA AD 2021-0132 do not apply to this AD.
(2) Paragraph (3) of EASA AD 2021-0132 specifies revising “the approved AMP” within 12 months after its effective date, but this AD requires revising the existing maintenance or inspection program, as applicable, to incorporate the “limitations, tasks and associated thresholds and intervals” specified in paragraph (3) of EASA AD 2021-0132 within 90 days after the effective date of this AD.
(3) The initial compliance time for doing the tasks specified in paragraph (3) of EASA AD 2021-0132 is at the applicable “associated thresholds” specified in paragraph (3) of EASA AD 2021-0132, or within 90 days after the effective date of this AD, whichever occurs later.
(4) The provisions specified in paragraphs (4) and (5) of EASA AD 2021-0132 do not apply to this AD.
(5) The “Remarks” section of EASA AD 2021-0132 does not apply to this AD.
After the maintenance or inspection program has been revised as required by paragraph (j) of this AD, no alternative actions (
The following provisions also apply to this AD:
(1)
(2)
For more information about this AD, contact Shahram Daneshmandi, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3220;
(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 February 15, 2022.
(i) European Union Aviation Safety Agency (EASA) AD 2021-0132, dated May 25, 2021.
(ii) [Reserved]
(4) The following service information was approved for IBR on May 26, 2020 (85 FR 21764, April 20, 2020).
(i) European Union Aviation Safety Agency AD 2019-0263, dated October 22, 2019.
(ii) [Reserved]
(5) For EASA AD 2019-0263 and EASA AD 2021-0132, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(6) 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.
(7) 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.
The FAA is superseding Airworthiness Directive (AD) 2019-03-26, which applied to certain The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. AD 2019-03-26 required modifying the passenger service units (PSUs) and life vest panels by replacing the existing inboard lanyard and installing two new lanyards on the outboard edge of the PSUs and life vest panels; measuring the distance between the hooks of the torsion spring of the lanyard assembly; replacing discrepant lanyard assemblies; and re-identifying serviceable lanyard assemblies. This AD was prompted by a determination that certain airplanes are listed in the wrong configuration and certain PSUs have not been correctly re-identified. This AD retains the requirements of AD 2019-03-26, and, for certain airplanes, requires an inspection to determine if the re-identified PSU part number is correct, and further re-identification if necessary. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective February 15, 2022.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of February 15, 2022.
For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
You may examine the AD docket at
Tony Koung, Aerospace Engineer, Cabin Safety and Environmental Systems Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3985; email:
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2019-03-26, Amendment 39-19578 (84 FR 7266, March 4, 2019) (AD 2019-03-26). AD 2019-03-26 applied to certain The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. The NPRM published in the
The FAA received comments from two commenters, including The Boeing Company and an individual, who supported the NPRM without change.
The FAA received additional comments from two other commenters, including All Nippon Airways (ANA) and Aviation Partners Boeing (APB). The following presents the comments received on the NPRM and the FAA's response to each comment.
ANA requested that the proposed AD be revised to add a note to allow use of Boeing Service Bulletin 737-25-1707, Revision 1, dated May 18, 2018. ANA stated that it has some airplanes that are identified as “Group 1” airplanes in Boeing Special Attention Service Bulletin 737-25-1707, Revision 2, dated July 27, 2020, and on which Revision 1 of the service bulletin was accomplished. ANA added that the changes described in Revision 2 of the service bulletin do not affect the work instructions for airplanes identified as “Group 1” and believed that Revision 1 could also be used to comply with the proposed requirements.
The FAA disagrees with the request to revise this AD to allow use of Boeing Service Bulletin 737-25-1707, Revision 1, dated May 18, 2018, as it is not necessary. Group 1 is divided into three configurations, depending on whether or not earlier revisions of Boeing Special Attention Service Bulletin 737-25-1707, Revision 2, dated July 27, 2020, have been done. Group 1 airplanes on which Boeing Service Bulletin 737-25-1707, Revision 1, dated May 18, 2018, has been done are defined as Group 1, Configuration 3 airplanes. The
APB stated that the installation of winglets per Supplemental Type Certificate (STC) ST00830SE does not affect the accomplishment of the manufacturer's service instructions.
The FAA agrees with the commenter that STC ST00830SE does not affect the accomplishment of the manufacturer's service instructions. Therefore, the installation of STC ST00830SE does not affect the ability to accomplish the actions required by this AD. The FAA has not changed this AD in this regard.
The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.
The FAA reviewed Boeing Special Attention Service Bulletin 737-25-1707, Revision 2, dated July 27, 2020. This service information specifies procedures for modifying the PSUs and life vest panels by: Replacing the existing inboard lanyard and installing two new lanyards on the outboard edge of the PSUs and life vest panels (secondary retention features); measuring the distance between the hooks of the torsion spring of the lanyard assembly; replacing any discrepant lanyard assemblies; and re-identifying serviceable lanyard assemblies. For some airplanes, the service information specifies procedures for inspecting PSUs for correct re-identification part numbers and, if necessary, re-identifying the PSU. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
The FAA estimates that this AD will affect 2,045 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 replacements or re-identifications that will be required based on the results of the inspection. The FAA has no way of determining the number of aircraft that might need these replacements or re-identifications:
The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some of the costs of this 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.
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 February 15, 2022.
This AD replaces AD 2019-03-26, Amendment 39-19578 (84 FR 7266, March 4, 2019) (AD 2019-03-26).
This AD applies to The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes, certificated in any category, without a Boeing Sky Interior (BSI).
Air Transport Association (ATA) of America Code 25, Equipment/furnishings.
This AD was prompted by reports of passenger service units (PSUs) becoming detached from the supporting airplane structure in several Model 737 series airplanes during survivable accidents. The FAA is issuing this AD to address PSUs and life vest panels detaching from the supporting airplane structure, which could lead to passenger injuries and impede passenger and crew egress during evacuation.
Comply with this AD within the compliance times specified, unless already done.
Within 60 months after April 8, 2019 (the effective date of AD 2019-03-26), do all applicable actions identified as “RC” (required for compliance) in, and in accordance with, the Accomplishment Instructions of Boeing Special Attention Service Bulletin 737-25-1707, Revision 2, dated July 27, 2020.
As of the applicable time specified in paragraph (h)(1) or (2) of this AD, no person may install on any airplane a PSU or life vest panel, unless the lanyard assembly has been modified (secondary retention features added) or re-identified, as applicable, as required by paragraph (g) of this AD.
(1) For airplanes that have PSUs or life vest panels without the secondary retention features installed: After modification or re-identification, as applicable, of the airplane as required by paragraph (g) of this AD.
(2) For airplanes that have PSUs or life vest panels with the secondary retention features installed: As of the effective date of this AD.
(1) The Manager, Seattle ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or responsible Flight Standards Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (j) 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 responsible Flight Standards Office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by The Boeing Company Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) AMOCs approved for AD 2019-03-26 are approved as AMOCs for the corresponding provisions of Boeing Special Attention Service Bulletin 737-25-1707, Revision 2, dated July 27, 2020, that are required by paragraph (g) of this AD.
For more information about this AD, contact Tony Koung, Aerospace Engineer, Cabin Safety and Environmental Systems Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3985; 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 the AD specifies otherwise.
(i) Boeing Special Attention Service Bulletin 737-25-1707, Revision 2, dated July 27, 2020.
(ii) [Reserved]
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
(4) You may view this service information 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.
(5) You may view this service information 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.
The FAA is adopting a new airworthiness directive (AD) for certain km, Vulcanair S.p.A. Model P.68C, P.68C-TC, P.68 “OBSERVER,” P.68 OBSERVER 2, P.68R, and P.68TC OBSERVER airplanes. This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI identifies the unsafe condition as a damaged stabilator trim control cable. This AD requires inspecting the stabilator trim control cables and replacing if necessary. This AD also requires reporting the results of each inspection to Vulcanair S.p.A. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective February 15, 2022.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of February 15, 2022.
For service information identified in this final rule, contact Vulcanair S.p.A., Fulvio Oloferni, via Giovanni Pascoli, 7, Naples, 80026, Italy; phone: +39 081 5918 135; email:
You may examine the AD docket at
Gregory Johnson, Aviation Safety Engineer, International Validation Section, FAA, 901 Locust, Room 301, Kansas City, MO 64106; phone: (720) 626-5462; email:
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain serial-numbered Vulcanair S.p.A. Model P.68C, P.68C-TC, P.68 “OBSERVER,” P.68 OBSERVER 2, P.68R, and P.68TC OBSERVER airplanes. The NPRM published in the
Two occurrences have been reported of finding a damaged stabilator trim control cable connected to the stabilator trim actuator assembly, mounted on fuselage frame No.16. The related technical investigation concluded that the cause of the damage is a design issue.
This condition, if not detected and corrected, could lead to failure of an affect [sic] part, preventing trim surface control (remaining in the last position), possibly resulting in reduced control of the aeroplane.
To address this potential unsafe condition, and pending a design improvement, Vulcanair published the [service bulletin] SB, to provide inspection instructions for detecting damage.
For the reasons described above, this [EASA] AD requires repetitive inspections of the affected parts, and, depending on findings, replacement.
This [EASA] AD is considered to be an interim action and further [EASA] AD action may follow.
You may examine the MCAI in the AD docket at
The FAA received no comments on the NPRM or on the determination of the costs.
This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. This AD is adopted as proposed in the NPRM.
The FAA reviewed Vulcanair S.p.A. P.68 Variants Service Bulletin No. 263, dated October 20, 2020. The service information contains procedures for repetitively inspecting each stabilator trim control cable part number 5.6067-1, 5.6161-1, 5.6171-1, 5.6231-2, or 5.6231-4 for broken wires and replacing the cable if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA considers this AD an interim action. The inspection reports required by this AD will enable the manufacturer to obtain better insight into the nature, cause, and extent of the damage, and eventually to develop final action to address the unsafe condition. Once final action has been identified, the FAA might consider further rulemaking.
The FAA estimates that this AD affects 127 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 replacements that would be required based on the results of the inspection. The FAA has no way of determining the number of airplanes that might need this replacement:
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.
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 February 15, 2022.
None.
This AD applies to Vulcanair S.p.A. (Vulcanair) Model P.68C, P.68C-TC, P.68 “OBSERVER,” P.68 OBSERVER 2, P.68R, and P.68TC OBSERVER airplanes, serial numbers 333, 337 to 339 inclusive, 378, 379, and 383 and larger (except serial numbers 387 and 398), certificated in any category, with a stabilator trim control cable part number 5.6067-1, 5.6161-1, 5.6171-1, 5.6231-2, or 5.6231-4 installed.
Joint Aircraft System Component (JASC) Code 2740, Stabilizer Control System.
This AD was prompted by a damaged stabilator trim control cable connected to the stabilator trim actuator assembly, mounted on fuselage frame No. 16. The FAA is issuing this AD to detect and address failure of a stabilator trim control cable, which could prevent trim surface control thereby leaving the cable remaining in the last position. The unsafe condition, if not addressed, could result in reduced control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Before a stabilator trim control cable part number 5.6067-1, 5.6161-1, 5.6171-1, 5.6231-2, or 5.6231-4 accumulates more than 400 hours time-in-service (TIS) since first installation on an airplane or within 50 hours TIS after the effective date of this AD, whichever occurs later, and thereafter at intervals not to exceed 50 hours TIS, visually inspect the stabilator trim control cable for broken wires and replace the stabilator trim control cable before further flight if there is broken wire in a strand in accordance with steps 1 through 22 of Part 2 Work Procedure in Vulcanair S.p.A. P.68 Variants Service Bulletin No. 263, dated October 20, 2020.
Within 14 days after the initial inspection required by paragraph (g) of this AD or within 14 days after the effective date of this AD, whichever occurs later, report the results of the initial inspection to Vulcanair at
(1) Owner/operator name, mailing address, phone number, and email address;
(2) Airplane model, serial number, and registration number;
(3) Airplane hours TIS at the time of the inspection;
(4) Stabilator trim control cable hours TIS at the time of the inspection;
(5) Date of the inspection;
(6) Inspection result (positive or negative); and
(7) A description of any non-conformity (damage).
Special flight permits are prohibited.
(1) The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(1) For more information about this AD, contact Gregory Johnson, Aviation Safety Engineer, FAA, General Aviation & Rotorcraft Section, International Validation Section, 901 Locust, Room 301, Kansas City, MO 64106; phone: (720) 626-5462; email:
(2) Refer to European Union Aviation Safety Agency (EASA) AD 2020-0262, dated November 30, 2020, for more information. You may examine the EASA AD in the AD docket at
(1) The Director of the Federal Register approved the incorporation by reference 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 the AD specifies otherwise.
(i) Vulcanair S.p.A. P.68 Variants Service Bulletin No. 263, dated October 20, 2020.
(ii) [Reserved]
(3) For service information identified in this AD, contact Vulcanair S.p.A., Fulvio Oloferni, via Giovanni Pascoli, 7, Naples, 80026, Italy; phone: +39 081 5918 135; email:
(4) You may view this service information at FAA, Airworthiness Products Section, Operational Safety Branch, 901 Locust, Kansas City, MO 64106. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) You may view this service information 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.
The FAA is adopting a new airworthiness directive (AD) for certain General Electric Company (GE) GE90 model turbofan engines. This AD was prompted by two separate in-flight shutdowns (IFSDs) resulting from failure of the transfer gearbox (TGB) radial bevel gear (TGB radial gearshaft). This AD requires visual inspection of the TGB radial gearshaft and, depending on the results of the inspection, replacement of the TGB radial gearshaft. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective February 15, 2022.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of February 15, 2022.
For service information identified in this final rule, contact General Electric Company, GE Aviation, Room 285, 1 Neumann Way, Cincinnati, OH 45215; phone: (513) 552-3272; email:
You may examine the AD docket at
Stephen Elwin, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: (781) 238-7236; fax: (781) 238-7199; email:
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all GE GE90-76B, GE90-85B, GE90-90B, GE90-94B, GE90-110B1, and GE90-115B model turbofan engines with a certain TGB radial gearshaft installed. The NPRM published in the
The FAA received comments from 5 commenters. The commenters were Air Line Pilots Association, International, The Boeing Company, FedEx Express, Japan Airlines (JAL), and United Airlines. The following presents the comments received on the NPRM and the FAA's response to each comment.
JAL asked why there is a difference between the affected serial numbers (S/Ns) in this AD and the related service bulletins (SBs).
The FAA notes that the applicable SBs include several populations of TGB radial gearshafts. The FAA determined that TGB radial gearshafts with S/Ns starting with prefix FIAAXXXX, FIA05XXX to FIA09XXX, or FIA0AXXX to FIA0NXXX are not subject to the
JAL requested that the FAA clarify disassembly of the compressor discharge pressure (CDP) seal joint in the definition of “engine shop visit.” JAL indicated that they understand that disassembly of the CDP seal joint is the same as disassembly of the CDP seal flange bolt, but not the same as removal of the CDP seal.
The FAA notes that any disassembly of the CDP seal joint meets the definition of an engine shop visit.
JAL asked if the TGB radial gearshaft is required to be inspected during engine QTW. JAL indicated that GE GE90-100 Service Bulletin (SB) 72-0857 R01, dated April 28, 2021 (GE90-100 SB 72-0857 R01), excludes the performance of the inspection during QTW. The proposed AD, however, did not reference QTW in the required inspection. JAL suggested that the FAA update this AD to either exclude QTW from the compliance requirement for inspection or clarify the difference between the service information and this AD.
The FAA understands that the CDP seal joint, in some cases, may require disassembly during a QTW; however, in this scenario the appropriate provisions would exist to perform the required actions of this AD. A QTW that does not disassemble the CDP seal joint would not meet the definition of an engine shop visit, per this AD.
The FAA determined the need to add the Interim Action paragraph to this AD. The manufacturer is investigating if an additional population of TGB radial gear shafts are affected by the unsafe condition of this AD.
Air Line Pilots Association, International, The Boeing Company, FedEx Express, and United Airlines expressed support for the AD as written.
The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.
The FAA reviewed GE GE90 Service Bulletin (SB) 72-1201 R01, dated April 28, 2021 (GE90 SB 72-1201 R01), and GE90-100 SB 72-0857 R01, dated April 28, 2021. GE90 SB 72-1201 R01 specifies procedures for performing a one-time inspection of the TGB radial gearshaft for presence of burrs or rework on teeth chamfers on GE90-76B, GE90-85B, GE90-90B, and GE90-94B model turbofan engines. GE90-100 SB 72-0857 R01 specifies procedures for performing a one-time inspection of the TGB radial gearshaft for presence of burrs or rework on teeth chamfers on GE90-110B1 and GE90-115B model turbofan engines. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
The FAA considers this AD to be an interim action. If final action is later identified, the FAA may consider additional rulemaking.
The FAA estimates that this AD affects 126 engines installed on 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 replacement that would be required based on the results of the inspection. The agency has no way of determining the number of aircraft that might need this replacement:
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
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 February 15, 2022.
None.
This AD applies to General Electric Company (GE) GE90-76B, GE90-85B, GE90-90B, GE90-94B, GE90-110B1, and GE90-115B model turbofan engines with a transfer gearbox (TGB) radial bevel gear (TGB radial gearshaft) serial number listed in paragraph 4., APPENDIX—A, Table 1 of GE GE90 Service Bulletin (SB) 72-1201 R01, dated April 28, 2021 (GE90 SB 72-1201 R01) or paragraph 4., APPENDIX—A, Table 1 of GE GE90-100 SB 72-0857 R01, dated April 28, 2021 (GE90-100 SB 72-0857 R01).
Joint Aircraft System Component (JASC) Code 7260, Turbine Engine Accessory Drive.
This AD was prompted by two separate in-flight shutdowns resulting from the failure of the TGB radial gearshaft. The FAA is issuing this AD to prevent failure of the TGB radial gearshaft. The unsafe condition, if not addressed, could result in failure of one or more engines, loss of thrust control, and damage to the aircraft.
Comply with this AD within the compliance times specified, unless already done.
(1) At the next engine shop visit after the effective date of this AD, perform a visual inspection of the affected TGB radial gearshaft using Figure 1 to paragraph (g)(1) of this AD.
(2) If, during the visual inspection required by paragraph (g)(1) of this AD, discrepancies are found that meet the criteria in the Accomplishment Instructions, paragraph 3.A.(4)(a) or 3.A.(4)(b), of GE90 SB 72-1201 R01 or GE90-100 SB 72-0857 R01, before further flight, replace the TGB radial gearshaft with a part eligible for installation.
(1) For the purpose of this AD, an “engine shop visit” is when the compressor discharge pressure seal joint is disassembled.
(2) For the purpose of this AD, a “part eligible for installation” is a TGB radial gearshaft that does not have raised material or rework on the teeth chamfers as described in the Accomplishment Instructions, paragraph 3.A.(4)(a) or 3.A.(4)(b), of GE90 SB 72-1201 R01 or GE90-100 SB 72-0857 R01.
You may take credit for the inspection of the affected TGB radial gearshaft required by paragraph (g)(1) of this AD if you performed the inspection before the effective date of this AD using GE GE90 SB 72-1201 R00, dated January 5, 2021, or GE GE90-100 SB 72-0857 R00, dated January 5, 2021.
(1) The Manager, ECO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (k) of this AD. You may email your request 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 Stephen Elwin, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: (781) 238-7236; fax: (781) 238-7199; 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 the AD specifies otherwise.
(i) General Electric Company (GE) GE90 Service Bulletin (SB) 72-1201 R01, dated April 28, 2021.
(ii) GE GE90-100 SB 72-0857 R01, dated April 28, 2021.
(3) For GE service information identified in this AD, contact General Electric Company, GE Aviation, Room 285, 1 Neumann Way, Cincinnati, OH 45215; phone: (513) 552-3272; email:
(4) You may view this service information at FAA, Airworthiness Products Section, Operational Safety Branch, 1200 District Avenue, Burlington, MA 01803. For
(5) You may view this service information 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), Department of Transportation (DOT).
Final rule.
The FAA is adopting a new airworthiness directive (AD) for certain Bombardier, Inc., Model CL-600-1A11 (600), CL-600-2A12 (601), and CL-600-2B16 (601-3A, 601-3R, and 604 Variants) airplanes. This AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. This AD requires revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective February 15, 2022.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of February 15, 2022.
For service information identified in this final rule, contact Bombardier Business Aircraft Customer Response Center, 400 Côte Vertu Road West, Dorval, Québec H4S 1Y9, Canada; 514-855-2999; email
You may examine the AD docket on the internet at
Elizabeth Dowling, Aerospace Engineer, Mechanical Systems and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; fax 516-794-5531; email
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued TCCA AD CF-2020-44, dated October 23, 2020 (referred to after this as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain Bombardier, Inc., Model CL-600-1A11 (600), CL-600-2A12 (601), and CL-600-2B16 (601-3A, 601-3R, and 604 Variants) airplanes. You may examine the MCAI in the AD docket on the internet at
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model CL-600-1A11 (600), CL-600-2A12 (601), and CL-600-2B16 (601-3A, 601-3R, and 604 Variants) airplanes. The NPRM published in the
The FAA gave the public the opportunity to participate in developing this final rule. The FAA received no comments on the NPRM or on the determination of the cost to the public.
The FAA reviewed the relevant data 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.
The FAA reviewed the following Bombardier service information, which describes new or more restrictive airworthiness limitations (a special detailed inspection for cracking of the skin circumferential splice at fuselage station (FS) 559.00, between stringer (STR) 10L and STR10R). Note: The asterisk (or “one star”) with the last three digits of the task number indicates that the task is an airworthiness limitation task.
• Bombardier Challenger 600 Time Limits/Maintenance Checks (TLMC), Product Support Publication (PSP) 605, Temporary Revision (TR) 5-163, dated April 30, 2020, which includes Task 53-30-00-165*, “Skin Circumferential Splice at FS559.00, between STR10L and STR10R.”
• Bombardier Challenger 601 TLMC, PSP 601-5, TR 5-267, dated April 30, 2020, which includes Task 53-30-00-188*, “Skin Circumferential Splice at FS559.00, between STR10L and STR10R.”
• Bombardier Challenger 601 TLMC, PSP 601A-5, TR 5-281, dated April 30, 2020, which includes Task 53-30-00-191*, “Skin Circumferential Splice at FS559.00, between STR10L and STR10R.”
• Section 5-10-30, Airworthiness Limitation Items, Bombardier Challenger 604 TLMC, Publication No. CH 604 TLMC, Part 2, Revision 32, dated December 18, 2019, which includes Task 53-20-00-192*, “Special Detailed Inspection of the Skin
• Section 5-10-30, Airworthiness Limitation Items, Bombardier Challenger 605 TLMC, Publication No. CH 605 TLMC, Part 2, Revision 21, dated December 18, 2019, which includes Task 53-20-00-192*, “Special Detailed Inspection of the Skin Circumferential Splice at FS559.00, between Stringers10L and 10R.”
• Section 5-10-30, Airworthiness Limitation Items, Bombardier Challenger 650 TLMC, Publication No. CH 650 TLMC, Part 2, Revision 8, dated December 18, 2019, which includes Task 53-20-00-192*, “Special Detailed Inspection of the Skin Circumferential Splice at FS559.00, between Stringers10L and 10R.”
These documents are distinct since they apply to different airplane configurations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA estimates that this AD affects 463 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the agency estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).
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 February 15, 2022.
None.
This AD applies to the Bombardier, Inc., airplanes, certificated in any category, identified in paragraphs (c)(1) through (3) of this AD.
(1) Model CL-600-1A11 (600) airplanes, serial numbers 1004 through 1085 inclusive.
(2) Model CL-600-2A12 (601) airplanes, serial numbers 3001 through 3066 inclusive.
(3) Model CL-600-2B16 (601-3A, 601-3R, and 604 Variants) airplanes, serial numbers 5001 through 5194 inclusive, 5301 through 5665 inclusive, 5701 through 6049 inclusive, and 6050 through 6999 inclusive.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.
This AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The FAA is issuing this AD to address fatigue cracking and loss of structural integrity of the circumferential splice joint, which could result in reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 60 days after the effective date of this AD, revise the existing maintenance or inspection program, as applicable, to incorporate the information specified in Figure 1 to paragraph (g) of this AD. The initial compliance time for doing the tasks is at the time specified in the applicable document specified in Figure 1 to paragraph (g) of this AD, or within 60 days after the effective date of this AD, whichever occurs later.
After the existing maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) TCCA AD CF-2020-44, dated October 23, 2020, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Elizabeth Dowling, Aerospace Engineer, Mechanical Systems and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; fax 516-794-5531; 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) Bombardier Challenger 600 Time Limits/Maintenance Checks (TLMC), Product Support Publication (PSP) 605, Temporary Revision (TR) 5-163, dated April 30, 2020.
(ii) Bombardier Challenger 601 TLMC, PSP 601-5, TR 5-267, dated April 30, 2020.
(iii) Bombardier Challenger 601 TLMC, PSP 601A-5, TR 5-281, dated April 30, 2020.
(iv) Section 5-10-30, Airworthiness Limitation Items, of the Bombardier Challenger 604 TLMC, Publication No. CH 604 TLMC, Part 2, Revision 32, dated December 18, 2019.
(v) Section 5-10-30, Airworthiness Limitation Items, of the Bombardier Challenger 605 TLMC, Publication No. CH 605 TLMC, Part 2, Revision 21, dated December 18, 2019.
(vi) Section 5-10-30, Airworthiness Limitation Items, of the Bombardier Challenger 650 TLMC, Publication No. CH 650 TLMC, Part 2, Revision 8, dated December 18, 2019.
(3) For service information identified in this AD, contact Bombardier Business Aircraft Customer Response Center, 400 Côte Vertu Road West, Dorval, Québec H4S 1Y9, Canada; 514-855-2999; email
(4) You may view this service information 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.
(5) You may view this service information 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.
The FAA is adopting a new airworthiness directive (AD) for certain The Boeing Company Model 787-8, 787-9, and 787-10 airplanes. This AD was prompted by reports of damage to the thrust reverser (TR) translating sleeve secondary sliders due to contact between the slider and the slider track liner. This damage could reduce the fatigue life of the slider below its full design life for the TRs installed on certain engines. This AD requires determining the serial number of the TR and performing applicable on-condition actions; or replacing the TR with a serviceable TR. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective February 15, 2022.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of February 15, 2022.
For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
You may examine the AD docket at
Tak Kobayashi, Aerospace Engineer, Propulsion Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3553; email:
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 787-8, 787-9, and 787-10 airplanes. The NPRM published in the
The FAA received a comment from the Air Line Pilots Association, International (ALPA), who supported the NPRM without change.
The FAA received additional comments from one commenter, Boeing. The following presents the comments received on the NPRM and the FAA's response to each comment.
The Background section of the NPRM and paragraph (e) of the proposed AD stated that damage was found on TR sleeves installed only on certain engines. Boeing requested that the FAA clarify the description of the unsafe condition to state that this damage can result in an unsafe condition on TR sleeves installed on certain engines. Boeing added that, although this damage (gouging and grooving) is possible on pre- and post-mission improvement TRs installed on General Electric and Rolls-Royce engines, it was determined by the Boeing safety process that the damage could result in an unsafe condition only for the mission improvement TRs on Rolls-Royce engines.
The FAA agrees with Boeing's assertions, but disagrees with the proposed wording because it does not explain why the TRs installed on certain other engines are not affected by this safety issue. To clarify the description of the unsafe condition, the FAA has revised the
The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.
The FAA reviewed Boeing Alert Requirements Bulletin B787-81205-SB780043-00 RB, Issue 001, dated January 15, 2021. This service information specifies procedures for determining the serial number of the TR, and applicable on-condition actions; or replacing the TR with a serviceable TR. On-condition actions include reworking affected TR slider track liners; determining the serial number of the TR translating sleeves; checking to determine if certain TR translating sleeves have been installed on certain TRs; performing a detailed inspection of the secondary sliders of affected TR translating sleeves for cracking, grooving, gouging damage, and any existing repair; performing a dye penetrant inspection on any cracking, grooving or gouging damage, and any existing repair for cracking; and repairing any discrepancy found. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
The FAA estimates that this AD affects 14 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
The FAA estimates the following costs to do the following on-condition actions. The FAA has no way of determining the number of aircraft that might need these on-condition actions:
The FAA has received no definitive data on which to base the cost estimates for the on-condition rework and detailed inspections specified in this AD.
The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this 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
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 February 15, 2022.
None.
This AD applies to The Boeing Company Model 787-8, 787-9, and 787-10 airplanes, certificated in any category, powered by Rolls-Royce Trent 1000 engines.
Air Transport Association (ATA) of America Code 78, Thrust Reverser.
This AD was prompted by reports of damage to the thrust reverser (TR) translating sleeve secondary sliders due to contact between the slider and the slider track liner. This damage could reduce the fatigue life of the slider below its full design life for the TRs installed on certain engines. The FAA is issuing this AD to address this damage, which could result in failure of the TR translating sleeve secondary slider and possible detachment of the outer cowl, which could strike the fuselage, causing damage to the airplane, and could result in reduced control or performance of the airplane.
Comply with this AD within the compliance times specified, unless already done.
For airplanes with an original airworthiness certificate or original export certificate of airworthiness issued on or before the effective date of this AD: Except as specified by paragraph (h) of this AD; at the applicable times specified in the “Compliance” paragraph of Boeing Alert Requirements Bulletin B787-81205-SB780043-00 RB, Issue 001, dated January 15, 2021, do all applicable actions for Group 1, Configuration 1 airplanes as identified in, and in accordance with, the Accomplishment Instructions of Boeing Alert Requirements Bulletin B787-81205-SB780043-00 RB, Issue 001, dated January 15, 2021.
(1) Where Boeing Alert Requirements Bulletin B787-81205-SB780043-00 RB, Issue 001, dated January 15, 2021, uses the phrase “the issue 001 date of Requirements Bulletin B787-81205-SB780043-00 RB,” this AD requires using “the effective date of this AD.”
(2) Where Boeing Alert Requirements Bulletin B787-81205-SB780043-00 RB, Issue 001, dated January 15, 2021, specifies contacting Boeing for repair instructions or for instructions to address certain conditions: This AD requires doing the repair or doing the instructions using a method approved in accordance with the procedures specified in paragraph (j) of this AD.
(1) As of the applicable compliance time specified in paragraph (i)(1)(i) or (ii) of this AD, no person may install on any airplane a TR with serial number between 00110001 and 00312001 inclusive, on which all applicable inspections and corrective actions required by paragraph (g) of this AD have not been accomplished.
(i) For airplanes with an original airworthiness certificate or original export certificate of airworthiness issued on or before the effective date of this AD: After accomplishing the actions required by paragraph (g) of this AD.
(ii) For airplanes with an original airworthiness certificate or original export certificate of airworthiness issued after the effective date of this AD: As of the effective date of this AD.
(2) As of the applicable compliance time specified in paragraph (i)(2)(i) or (ii) of this AD, no person may install on any airplane a TR translating sleeve with serial number 00125001 and subsequent, on which all applicable inspections and corrective actions required by paragraph (g) of this AD have not been accomplished.
(i) For airplanes with an original airworthiness certificate or original export certificate of airworthiness issued on or before the effective date of this AD: After accomplishing the actions required by paragraph (g) of this AD.
(ii) For airplanes with an original airworthiness certificate or original export certificate of airworthiness issued after the effective date of this AD: As of the effective date of this AD.
(3) As of the effective date of this AD, no person may install a TR translating sleeve that was originally installed on any airplane with an original airworthiness certificate or original export certificate of airworthiness issued after the effective date of this AD; or a TR translating sleeve with serial number 00125001 and subsequent, on which all applicable inspections and corrective actions specified in Boeing Alert Requirements Bulletin B787-81205-SB780043-00 RB, Issue 001, dated January 15, 2021, have been accomplished; on any airplane with a TR with a serial number between 00110001 and 00312001 inclusive, unless all applicable inspections and corrective actions specified in Boeing Alert Requirements Bulletin B787-81205-SB780043-00 RB, Issue 001, dated January 15, 2021, have been accomplished on that TR, except as specified in paragraph (h)(2) of this AD.
(1) The Manager, Seattle ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or responsible Flight Standards Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in Related Information. 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 responsible Flight Standards Office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by The Boeing Company Organization Designation Authorization (ODA) that has been authorized by the
For more information about this AD, contact Tak Kobayashi, Aerospace Engineer, Propulsion Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3553; 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 the AD specifies otherwise.
(i) Boeing Alert Requirements Bulletin B787-81205-SB780043-00 RB, Issue 001, dated January 15, 2021.
(ii) [Reserved]
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
(4) You may view this service information 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.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA,
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
The FAA is adopting a new airworthiness directive (AD) for certain Bombardier, Inc., Model BD-100-1A10 airplanes. This AD was prompted by a discovery that a lockwire may not have been installed on the side stay actuator pin nut of the main landing gear (MLG). This AD requires inspecting the left-hand and right-hand MLG side stay actuator assembly pin nut for the presence of a lockwire, and installing a lockwire if necessary. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective February 15, 2022.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of February 15, 2022.
For service information identified in this final rule, contact Bombardier, Inc., 200 Côte-Vertu Road West, Dorval, Québec H4S 2A3, Canada; North America toll-free telephone 1-866-538-1247 or direct-dial telephone 1-514-855-2999; email
You may examine the AD docket on the internet at
Elizabeth Dowling, Aerospace Engineer, Mechanical Systems and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; fax 516-794-5531; email
Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued TCCA AD CF-2020-52, dated November 30, 2020 (also referred to after this as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain Bombardier, Inc., Model BD-100-1A10 airplanes. You may examine the MCAI in the AD docket on the internet at
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model BD-100-1A10 airplanes. The NPRM published in the
The FAA gave the public the opportunity to participate in developing this final rule. The FAA received no comments on the NPRM or on the determination of the cost to the public.
The FAA reviewed the relevant data 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.
Bombardier has issued Service Bulletin 100-32-36, dated June 25, 2020; and Service Bulletin 350-32-012, dated June 25, 2020. This service information describes procedures for inspecting the left-hand and right-hand MLG side stay actuator assembly pin nut for presence of a lockwire and installing a lockwire. These documents
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA estimates that this AD affects 623 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 actions 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 these on-condition actions:
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 February 15, 2022.
None.
This AD applies to Bombardier, Inc., Model BD-100-1A10 airplanes, certificated in any category, serial numbers 20003 through 20780 inclusive.
Air Transport Association (ATA) of America Code 32, Landing gear.
This AD was prompted by a discovery that a lockwire may not have been installed on the side stay actuator pin nut of the main landing gear (MLG). The FAA is issuing this AD to address a possible missing lockwire, which could result in loss of the nut, and if undetected, lead to the collapse of the affected MLG.
Comply with this AD within the compliance times specified, unless already done.
Within 12 months after the effective date of this AD: Inspect the left-hand (LH) and right-hand (RH) MLG side stay actuator assembly pin nuts for presence of a lockwire, in accordance with paragraph 2.B of the Accomplishment Instructions of the applicable service information specified in paragraphs (g)(1) and (2) of this AD. If the lockwire is missing: Before further flight, install a lockwire in accordance with paragraph 2.C of the Accomplishment Instructions of the applicable service information specified in paragraphs (g)(1) and (2) of this AD.
(1) Bombardier Service Bulletin 100-32-36, dated June 25, 2020.
(2) Bombardier Service Bulletin 350-32-012, dated June 25, 2020.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) TCCA AD CF-2020-52, dated November 30, 2020, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Elizabeth Dowling, Aerospace Engineer, Mechanical Systems and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; fax 516-794-5531; 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) Bombardier Service Bulletin 100-32-36, dated June 25, 2020.
(ii) Bombardier Service Bulletin 350-32-012, dated June 25, 2020.
(3) For service information identified in this AD, contact Bombardier, Inc., 200 Côte-Vertu Road West, Dorval, Québec H4S 2A3, Canada; North America toll-free telephone 1-866-538-1247 or direct-dial telephone 1-514-855-2999; email
(4) You may view this service information 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.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Coast Guard, DHS.
Final rule.
The Coast Guard is establishing a regulated navigation area (RNA) at the NW Natural PGM Site on the Willamette River in Portland, OR. This action is necessary to preserve the integrity of an engineered sediment cap as part of an Oregon Department of Environmental Quality (DEQ) required remedial action. This regulation prohibits persons and vessels from activities in the RNA that could disturb or damage the engineered sediment cap unless authorized by the Captain of the Port Sector Columbia River or a designated representative.
This rule is effective February 10, 2022.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LCDR Sean Morrison, Waterways Management Division, Marine Safety Unit Portland, Coast Guard; telephone 503-240-9319, email
On October 19, 2020, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Regulated Navigation Area; NW Natural PGM Site, Willamette River, Portland, OR” (85 FR 66292). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this regulated navigation area (RNA). During the comment period that ended November 18, 2020, we received 1 comment.
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Coast Guard is establishing a RNA to protect the engineered sediment cap located at the NW Natural PGM Site on the Willamette River in Portland, OR. This sediment cap is part of an Oregon Department of Environmental Quality (DEQ) required remedial action. The engineered sediment cap is designed to be compatible with normal vessel operations, but could be damaged by other maritime activities including anchoring, dragging, dredging, grounding of vessels, deployment of barge spuds, etc. Such damage could disrupt the function or impact the effectiveness of the cap to contain the underlying contaminated sediment and soil in these areas.
The purpose of this rulemaking is to prevent disruption of the sediment cap which may result in hazardous conditions and harm to the marine environment. As such, this RNA is necessary to help ensure the sediment cap is protected and will do so by prohibiting maritime activities that could disturb or damage it.
As noted above, we received 1 comment on our NPRM published October 19, 2020. The commenter expressed support in establishing this RNA to protect the cap on sediment in the Willamette River, noting that if the sediment were to increase in the Willimette River there is potential for flooding and other negative effects on users of the waterway. Accordingly, there are no changes in the regulatory text of this rule from the proposed rule in the NPRM.
This rule establishes a RNA adjacent to the NW Natural PGM Site on the Willamette River in Portland, OR encompassing all waters above the sediment cap. The RNA prohibits activities which could disrupt or damage the sendiment cap on the river bed such as anchoring, dragging, dredging, trawling, or other related activities. The rule also specifies that operators who wish to engage in dredging, spudding, and vessel anchoring within the RNA must consult with Oregon DEQ and obtain prior
Additionally, this rule allows vessels or persons engaged in activities associated with remediation efforts in the NW Natural PGM Site to engage in dredging and related activities, provided that the COTP is given advance notice of those activities by Oregon DEQ.
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 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. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process.
This regulatory action determination is based on the fact that the RNA is limited in size and will not limit vessels from transiting or using the waters covered, except for specified activities that may damage the engineered sediment cap. Additionally, operators who wish to engage in dredging, spudding, and vessel anchoring within the RNA must consult with Oregon DEQ and obtain prior approval from the COTP to prevent exposure of buried contamination and/or damage to the remedial cap.
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 received no comments from the Small Business Administration on this rulemaking. 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.
While some owners or operators of vessels intending to transit the RNA may be small entities, for the reasons stated in section V.B above, this rule will not have a significant economic impact on any vessel owner or operator.
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 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 determined 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 rule involves the creation of a RNA that prohibits certain maritime activities to protect an engineered sediment cap. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
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 amends 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)
(b)
(1) Sediment disturbance activities including dredging, spudding, and vessel anchoring require advance consultation with the Oregon Department of Environmental Quality and obtain prior approval from the Coast Guard Captain of the Port Sector Columbia River (COTP) to prevent exposure of buried contamination and/or damage to the remedial cap. Contact Oregon DEQ at 503-229-5245, or alternatively, call 811 prior to any sediment disturbance activity. Any work within 10 feet of the seawall is prohibited unless there is advance consultation and approval by the City of Portland, DEQ and the COTP. All vessels and persons are prohibited from anchoring, dredging, laying cable, dragging, seining, bottom fishing, conducting salvage operations, or any other activity which could potentially disturb the riverbed in the designated area. Vessels may otherwise transit or navigate within this area.
(2) The regulations described in paragraph (b)(1) of this section do not apply to vessels or persons engaged in activities associated with remediation efforts in the NW Natural PGM Site, provided that the COTP is given advance notice of those activities by Oregon DEQ.
(c)
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is finalizing approval of a State Implementation Plan (SIP) revision to the Mecklenburg County portion of the North Carolina SIP, hereinafter referred to as the Mecklenburg County Local Implementation Plan (LIP). The revision was submitted through the North Carolina Division Air Quality (NCDAQ), on behalf of Mecklenburg County Air Quality (MCAQ), via a letter dated April 24, 2020, and was received by EPA on June 19, 2020. The revision updates several Mecklenburg County Air Pollution Control Ordinance (MCAPCO) rules incorporated into the LIP, including updating and revising certain definitions. EPA is approving these changes pursuant to the Clean Air Act (CAA or Act).
This rule is effective February 10, 2022.
EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2020-0705. All documents in the docket are listed on the
Pearlene Williams, Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is (404) 562-9144. Ms. Williams can also be reached via electronic mail at
The Mecklenburg County LIP was originally submitted to EPA on June 14, 1990, and EPA approved the plan on May 2, 1991.
On April 24, 2020, NCDAQ submitted to EPA changes to the MCAPCO to be incorporated into the LIP.
On November 17, 2021, EPA published a Notice of Proposed Rulemaking (NPRM) proposing to approve the April 24, 2020, SIP revision regarding updates to Mecklenburg's general provisions and administrations rules.
EPA is approving the incorporation of the aforementioned revisions to the MCAPCO rules into the Mecklenburg LIP because these rules add clarity to the LIP and are consistent with the CAA and applicable regulations.
In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of MCAPCO Rules 1.5102—
EPA is finalizing regulatory text that incorporates into the Mecklenburg County LIP revisions to MCAPCO Rules 1.5102—
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 14, 2022. 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.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting, and recordkeeping requirements.
For the reasons stated in the preamble, EPA amends 40 CFR part 52 as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a revision to the North Carolina State Implementation Plan (SIP) submitted by the State of North Carolina Department of Environmental Quality, Division of Air Quality, via a letter dated April 13, 2021, and received by EPA on April 14, 2021. This revision contains minor clarifying and typographical edits to North Carolina's cotton ginning operations rule. EPA is finalizing approval of these changes pursuant to the Clean Air Act (CAA or Act).
This rule is effective February 10, 2022.
EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2021-0430. All documents in the docket are listed on the
Pearlene Williams, Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is (404) 562-9144. Ms. Williams can also be reached via electronic mail at
On April 14, 2021, the State of North Carolina submitted changes to the North Carolina SIP for EPA approval. EPA is approving these changes to 15A North Carolina Administrative Code (NCAC) Subchapter 02D,
North Carolina's SIP revision contains minor clarifying and typographical edits to the text of Rule .0542.
In this document, EPA is finalizing rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference 15A NCAC Subchapter 02D, Rule .0542—
EPA is finalizing the aforementioned revisions to Rule .0542—
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 14, 2022. 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.
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides, Volatile organic compounds.
For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of Acetic acid ethenyl ester, polymer with ethene, N-(hydroxymethyl)-2-propenamide, and 2-propenamide; (AM-E-NMA-VA) when used as an inert ingredient in a pesticide chemical formulation. Celanese Corporation Ltd., submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of Acetic acid ethenyl ester, polymer with ethene, N-(hydroxymethyl)-2-propenamide, and 2-propenamide (AM-E-NMA-VA) on food or feed commodities.
This regulation is effective January 11, 2022. Objections and requests for hearings must be received on or before March 14, 2022, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number [EPA-HQ-OPP-2021-0335], is available at
Due to the public health concerns related to COVID-19, the EPA Docket Center (EPA/DC) and Reading Room is closed to visitors with limited exceptions. The staff continues to provide remote customer service via email, phone, and webform. For the latest status information on EPA/DC services and docket access, visit
Marietta Echeverria, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Office of the Federal Register's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number [EPA-HQ-OPP-2021-0335] in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before March 14, 2022. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and use in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing an exemption from the requirement of a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . .” and specifies factors EPA is to consider in establishing an exemption.
EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be shown that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.
Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers expected to present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b) and the exclusion criteria for identifying these low-risk polymers are described in 40 CFR 723.250(d). Acetic acid ethenyl ester, polymer with ethene, N-(hydroxymethyl)-2-propenamide, and 2-propenamide (AM-E-NMA-VA) conforms to the definition of a polymer given in 40 CFR 723.250(b) and meets the following criteria that are used to identify low-risk polymers.
1. The polymer is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.
2. The polymer does contain as an integral part of its composition the atomic elements carbon, hydrogen, and oxygen.
3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).
4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.
5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the Toxic Substances Control Act (TSCA) Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.
6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 daltons.
Additionally, the polymer also meets as required the following exemption criteria specified in 40 CFR 723.250(e).
7. The polymer's number average MW of 5500 is greater than 1,000 and less than 10,000 daltons. The polymer contains less than 10% oligomeric material below MW 500 and less than 25% oligomeric material below MW 1,000, and the polymer does not contain any reactive functional groups.
Thus, AM-E-NMA-VA meets the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in this unit, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to AM-E-NMA-VA.
8. The polymer does not contain certain perfluoroalkyl moieties consisting of a CF3- or longer chain length as listed in 40 CFR 723.250(d)(6).
For the purposes of assessing potential exposure under this exemption, EPA considered that AM-E-NMA-VA could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MW of AM-E-NMA-VA is 5,500 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since AM-E-NMA-VA conform to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.
Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”
EPA has not found AM-E-NMA-VA to share a common mechanism of toxicity with any other substances, and AM-E-NMA-VA does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that AM-E-NMA-VA does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at
Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of AM-E-NMA-VA, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.
Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of AM-E-NMA-VA.
An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established a MRL for AM-E-NMA-VA.
Accordingly, EPA finds that exempting residues of AM-E-NMA-VA from the requirement of a tolerance will be safe.
This action establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal governments, on the relationship between the National Government and the States or Tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:
21 U.S.C. 321(q), 346a and 371.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of trifloxystrobin in or on multiple commodities which are identified and discussed later in this document. Bayer CropScience requested this tolerance under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective January 11, 2022. Objections and requests for hearings must be received on or before March 14, 2022, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2020-0038, is available at
Due to the public health concerns related to COVID-19, the EPA Docket Center (EPA/DC) and Reading Room is closed to visitors with limited exceptions. The staff continues to provide remote customer service via email, phone, and webform. For the latest status information on EPA/DC services and docket access, visit
Marietta Echeverria, Acting Director, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Office of the Federal Register's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2020-0038 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before March 14, 2022. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2020-0038, by one of the following methods:
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Based upon review of the data supporting the petition, EPA is establishing tolerances for some commodities at different levels than requested by the petitioner and correcting some of the commodity definitions. Also, EPA is not establishing tolerances for two commodities. The reasons for these changes are explained in Unit IV.D.
Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D) and the factors specified therein, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for trifloxystrobin, including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with trifloxystrobin follows.
In an effort to streamline its publications in the
EPA has previously published a number of tolerance rulemakings for trifloxystrobin, in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm would result from aggregate exposure to trifloxystrobin and established tolerances for residues of that chemical. EPA is incorporating previously published sections of those rulemakings that remain unchanged, as described further in this rulemaking. Specific information on the risk assessment conducted in support of this action, including on the studies received and the nature of the adverse effects caused by trifloxystrobin, can be found in the document titled “Trifloxystrobin. Human Health Aggregate Risk Assessment for Use on Currant, Black and Red; Edible-Podded Legume Vegetables, Subgroup 6A; Succulent Shelled Pea and Bean, Subgroup 6B; Dried Shelled Pea; Caneberry, Subgroup 13-07A; Tropical and Subtropical, Small Fruit, Edible Peel, Subgroup 23A without U.S. Registration.” dated September 29, 2021, which is available in the docket for this action at
EPA's acute and chronic dietary (food and drinking water) exposure assessments have been updated to include the additional exposure from residues of trifloxystrobin on the commodities identified in this action. The acute dietary assessment used the same assumptions described in the February 15, 2019 rulemaking concerning tolerance-level residues, 100% CT and default processing factors. As described in the February 15, 2019 rulemaking, the assumptions for the chronic dietary assessment included average field trial residues for selected crops, tolerance-level residues for all other crop commodities, default and empirical processing factors, and PCT data when available. Tolerance-level residues were used for the commodities identified in this action.
In the new chronic dietary exposure assessment, EPA assumed average field trial residues for apples, rice and commodities in subgroups 4A, 4B, 5A, 5B and 19A. The following average PCT estimates were used in the chronic dietary risk assessment for the crops for which trifloxystrobin is currently registered: Apples: 25%, apricots: 10%, cantaloupes 5%, carrots 2.5%, cotton:
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In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.
In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6 to 7 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than one. In those cases, 1% is used as the average PCT and 2.5% is used as the maximum PCT. EPA uses a 100 PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%.
The Agency believes that Conditions a, b, and c discussed above have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which trifloxystrobin may be applied in a particular area.
Estimated drinking water concentrations have not changed since the February 15, 2019 rulemaking, because there will be no U.S. registrations for use of trifloxystrobin on the commodities identified in this action. The non-dietary (
Acute dietary (food and drinking water) risks are below the Agency's level of concern of 100% of the aPAD: They are 3.4% of the aPAD at the 95th percentile of exposure for females 13 to 49 years old, which is the population subgroup with the highest exposure estimate. No other subpopulations were evaluated. Chronic dietary (food and drinking water) risks are below the Agency's level of concern of 100% of the cPAD: They are 58% of the cPAD for infants less than 1 year old, which is the population subgroup with the highest exposure estimate. Moreover, the short-term aggregate risk for the population subgroup with the highest total exposure (children 1 to less than 2 years old) is represented by an aggregate MOE of 120, which is not a risk of concern because EPA considers MOEs of 100 or less to be of concern; short-term aggregate risk calculations are protective of the intermediate-term duration of exposure. Chronic aggregate risk is equivalent to chronic dietary (food and drinking water) risk estimates, which are not of concern. Trifloxystrobin is classified as “not likely to be carcinogenic to humans” based on the absence of significant tumor increases in two adequate rodent carcinogenicity studies; therefore, cancer exposure and risk assessments were not conducted at this time.
For a discussion of the available analytical enforcement method, see Unit IV.A. of the February 15, 2019 rulemaking.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). Codex is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The tolerances for trifloxystrobin are not harmonized with Codex for every commodity identified in this action. No Codex MRLs have been established for residues of trifloxystrobin in or on Caneberry, subgroup 13-07A and Currant. The U.S. tolerance level for Vegetable, legume, edible-podded, subgroup 6A (1.5 ppm), calculated using the Organisation for Economic Co-operation and Development (OECD) MRL procedure, is much higher than the Codex MRL (0.01 ppm), and thus harmonization is not possible. Similarly, the U.S. tolerance level for Pea and bean, succulent shelled, subgroup 6B (0.2 ppm) is much higher than the Codex MRL (0.01 ppm for lima beans only), and thus harmonization is not possible. The U.S. tolerance level for Tropical and subtropical, small fruit, edible peel, subgroup 23A, is harmonized with the Codex MRL established in or on olives, a member of subgroup 23A, at 0.3 ppm.
We received two comments regarding this import tolerance. A comment was received on September 10, 2020 regarding the absence of an analytical method and obtaining additional data. Analytical enforcement methodology is available for trifloxystrobin and is described in Unit IV.A. of the February 15, 2019 rulemaking (84 FR 4340) (FRL-9985-23). A risk assessment was conducted by EPA based on the well-characterized toxicology database for this active ingredient, and no risks of concern were identified. Tolerances are being set based on residue data and calculations using the OECD MRL calculation procedures.
An anonymous comment was received October 13, 2020, supporting the pesticide regulation. Upon consideration of the validity, completeness, and reliability of the available data as well as other factors the FFDCA requires EPA to consider, EPA has determined that the trifloxystrobin tolerances are safe.
The Agency is setting a tolerance for residues of trifloxystrobin in or on Caneberry, subgroup 13-07A at 2 ppm rather than the requested 3.0 ppm; in or on Currant at 3 ppm instead of the requested 4.0 ppm; and in or on Pea and bean, succulent shelled, subgroup 6B at 0.2 ppm rather than the requested 0.15 ppm based on values determined in accordance with the OECD MRL calculation procedures. A tolerance in or on Currant is being set rather than the petitioned-for “Currant, black and red” based on standard commodity definitions. Based on crop group revisions, the terminology Pea and bean, succulent shelled, subgroup 6B is used instead of the petitioned-for “Succulent shelled pea and bean, subgroup 6B” and Vegetable, legume, edible podded, subgroup 6A is used instead of the petitioned-for “Edible-podded legume vegetables, subgroup 6A.” The petitioned-for tolerance on “Pea, dry seed” is not being set because this commodity is covered by a tolerance that is already established for Pea and bean, dried shelled, except soybean, subgroup 6C. The tolerance in or on Tropical and subtropical, small fruit, edible peel, subgroup 23A tolerance is being set at 0.3 ppm rather than the petitioned-for 0.2 ppm to harmonize with the Codex MRL. The petitioned-for tolerance in or on Olive, oil is not being established because this commodity is covered by the tolerance established in this action for subgroup 23A.
Therefore, tolerances are established for residues of trifloxystrobin including its metabolites and degradates in or on Caneberry, subgroup 13-07A at 2 parts per million (ppm); Currant at 3 ppm; Pea and bean, succulent shelled, subgroup 6B at 0.2 ppm; Tropical and subtropical, small fruit, edible peel, subgroup 23A at 0.3 ppm; and Vegetable, legume, edible podded, subgroup 6A at 1.5 ppm.
This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances for residues in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal governments, on the relationship between the National Government and the States or Tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:
21 U.S.C. 321(q), 346a and 371.
The additions read as follows:
(a) * * *
Office of Inspector General (OIG), Department of Health and Human Services (HHS).
Final rule.
OIG is amending the regulations governing the procedures for the submission of advisory opinion requests to, and the issuance of advisory opinions by, OIG.
This final rule is effective February 10, 2022.
Christina Hinkle, Office of Counsel to the Inspector General, (202) 465-6245.
Pursuant to section 1128D of the Social Security Act (the Act),
Section 1128D(b) required the issuance of regulations to carry out the advisory opinion process and specified that the regulations must provide for “the procedure to be followed by the [OIG] in responding to a request for an advisory opinion.” In response to this requirement, OIG issued an interim final rule with comment period in 1997.
In the 1997 interim final rule, OIG established a procedural regulation—42 CFR 1008.15(c)—that describes the circumstances in which OIG will not accept a request or will not issue an opinion. Specifically, § 1008.15(c) provides that an advisory opinion request will not be accepted and/or an advisory opinion will not be issued when: (1) The request is not related to a named individual or entity; (2) the same or substantially the same course of action is under investigation, or is or has been the subject of a proceeding involving HHS or another governmental agency; or (3) an informed opinion cannot be made, or could be made only after extensive investigation, clinical study, testing, or collateral inquiry. Section 1008.15(c) has not been modified since it was promulgated in 1997.
This final rule removes the procedural provision at 42 CFR 1008.15(c)(2), which precludes the acceptance of an advisory opinion request and/or issuance of an advisory opinion when the same or substantially the same course of action is under investigation or has been the subject of a proceeding involving HHS or another governmental agency. In addition, this final rule corrects a grammatical error in § 1008.15(c).
Section 1008.15(c) is a procedural rule that was promulgated consistent with our statutory obligation under section 1128D(b) of the Act. The purpose of § 1008.15(c)(2) is to prevent the advisory opinion process from interfering with the investigatory or prosecutorial authority of OIG, DOJ, or any other governmental agency. Under the current regulation, no advisory opinion is issued if the same or substantially the same course of action is under investigation or is the subject of a proceeding involving HHS or another governmental agency.
We are removing § 1008.15(c)(2) for two reasons. First, removal of this provision will offer OIG more flexibility in responding to requests for advisory opinions. In particular, this final rule will afford OIG the flexibility to issue a favorable or unfavorable advisory opinion when an arrangement presented in an advisory opinion request involves conduct that is the same or substantially the same as conduct that is under investigation or subject to a proceeding. When OIG has rejected advisory opinion requests pursuant to the existing regulation, some requestors have expressed frustration with this regulatory provision because it prevents OIG from providing its legal opinion regarding the application of certain Federal fraud and abuse authorities. Second, removal of § 1008.15(c)(2) may provide industry stakeholders with greater transparency regarding factors the Government may consider in evaluating compliance with certain Federal fraud and abuse laws and distinguishing between similar arrangements.
In conjunction with issuing this rule, OIG is publishing on its website an enforcement policy statement announcing that, as of the effective date of this rule, if the arrangement for which an advisory opinion is sought is the same or similar to conduct that is currently under investigation or is the subject of a proceeding involving a governmental agency, that fact will weigh against the issuance of a favorable advisory opinion because such circumstances generally indicate that the arrangement does not present a sufficiently low risk of fraud and abuse. That said, consistent with current practices, OIG will carefully consider the facts and circumstances of each advisory opinion request in our legal assessment.
This rulemaking is separate and distinct from the Request for Information (RFI) entitled “OIG Modernization Initiative To Improve Its Publicly Available Resources,” published in the
As set forth below, we have examined the impact of this final rule as required by Executive Order 12866, the Regulatory Flexibility Act (RFA) of 1980, the Unfunded Mandates Reform Act of 1995, Executive Order 13132, and Executive Order 13771.
The advisory opinion process is an established OIG program. This final rule is limited to modifying the internal governmental procedure for handling advisory opinion requests involving conduct that is the same or similar to an ongoing investigation or proceeding. The modification likely will result in a similar outcome for most advisory opinion requests involving conduct that is the same or similar to an ongoing investigation in that those requests likely would not result in favorable advisory opinions. This rule does not modify eligibility of a party to request an advisory opinion or the process for requesting an advisory opinion.
OIG expects that this final rule will further the public's interest with minimal burden by fulfilling the statutory obligations to consult with DOJ as part of the advisory opinion process, providing greater flexibility for OIG in its procedures to be followed in responding to a request for an advisory opinion, and potentially promoting greater transparency regarding factors the Government may consider in evaluating compliance with certain Federal fraud and abuse laws and distinguishing between similar arrangements. Because this rule is procedural, notice and comment rulemaking is not required under 5 U.S.C. 553(b)(A).
Because no notice of proposed rulemaking is required for this rule, the provisions of the RFA do not apply. Furthermore, this document does not meet the criteria for a significant regulatory action as specified in Executive Order 12866.
Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, requires that agencies assess anticipated costs and benefits before issuing any rule that may result in expenditures in any one year by State, local, or tribal governments in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation). We believe that this final rule will not impose any mandates on State, local, or tribal governments or the private sector that would result in an expenditure of $100 million or more (adjusted for inflation) in any given year, and that a full analysis under the Unfunded Mandates Reform Act is not necessary.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a rule that imposes substantial direct requirements or costs on State and local governments, preempts State law, or otherwise has federalism implications. In reviewing this final rule under the threshold criteria of Executive Order 13132, Federalism, we have determined that this final rule would not significantly limit the rights, roles, and responsibilities of State or local governments. We have determined, therefore, that a full analysis under Executive Order 13132 is not necessary.
Executive Order 13771 requires that the costs associated with significant new regulations “to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.” This final rule imposes no more than
In accordance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, we are required to solicit public comments, and receive final Office of Management and Budget (OMB) approval, on any information collection requirements set forth in rulemaking. This final rule will not impose any information collection burden or affect information currently collected by OIG.
Administrative practice and procedure, Medicaid, Medicare, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, 42 CFR part 1008 is amended as follows:
42 U.S.C. 1320a-7d(b).
(c) An advisory opinion request will not be accepted, and/or an opinion will not be issued when—
(1) The request is not related to a named individual or entity; or
(2) An informed opinion cannot be made, or could be made only after extensive investigation, clinical study, testing, or collateral inquiry.
Office of Surface Mining Reclamation and Enforcement, Interior.
Proposed rule; reopening of the public comment period and opportunity for public hearing on the proposed amendment.
We are reopening the comment period and providing an opportunity for a public hearing on the proposed amendment to the Kentucky regulatory program (the “Kentucky program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The comment period is being reopened to incorporate additional statutory and regulatory provisions that were not included in the original Kentucky submittal. The revised amendment includes legislative and regulatory actions regarding electronic service of enforcement documents, clarification of Kentucky's administrative hearings regulations, and miscellaneous minor, non-substantive changes. The amendment also includes reorganization and renumbering of the Kentucky Administrative Regulations. This document gives the times and locations that the Kentucky submittal is available for your inspection, the comment period during which you may submit written comments, and the procedures that we will follow for the public hearing, if one is requested.
We will accept written comments on this amendment until 4:00 p.m., Eastern Standard Time (e.s.t.), February 10, 2022. If requested, we may hold a public hearing or meeting on the amendment on February 7, 2022. We will accept requests to speak at a hearing until 4:00 p.m., e.s.t. on January 26, 2022.
You may submit comments, identified by SATS No. KY-255-FOR, by any of the following methods:
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Mr. Michael Castle, Field Office Director, Lexington Field Office, Office of Surface Mining Reclamation and Enforcement, 2675 Regency Road, Lexington, KY 40503, Telephone: (859) 260-3900, Email:
In addition, you may review a copy of the amendment during regular business hours at the following location: Mr. Michael Mullins, Regulation Coordinator, Department for Natural Resources, Kentucky Energy and Environment Cabinet, 3000 Sower Boulevard, Frankfort, KY 40601, Telephone: (502) 782-6720, Email:
Mr. Michael Castle, Field Office Director, Lexington Field Office, Office of Surface Mining Reclamation and Enforcement, 2675 Regency Road, Lexington, KY 40503, Telephone: (859) 260-3900, Email:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its approved State program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Kentucky program effective May 18, 1982. You can find background information on the Kentucky program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Kentucky program in the May 18, 1982,
On January 30, 2012, Kentucky submitted a proposed program amendment (Administrative Record No. KY-1900-01) containing administrative regulations regarding electronic notification of enforcement documents and other miscellaneous changes. We published a Proposed Rule Notice in the June 12, 2012
On October 23, 2012, we sent Kentucky an issue letter seeking clarification on language from 405 KAR 7:091. Kentucky sent us a response on November 15, 2012, informing us that it would make changes to its regulations in response to our issue letter and subsequent discussions, and then submit a revised amendment.
After determining that there were regulatory changes that Kentucky did
We sent Kentucky a second issue letter on August 11, 2020, asking Kentucky to describe the complete legislative and regulatory changes in the amendment and to describe the recodification of many of the provisions that occurred since the original Kentucky submittal. On October 30, 2020, Kentucky sent us a response that provided the requested information.
Below is a summary of Kentucky's proposed changes. We have listed the changes according to their final regulatory section numbering. If the original regulatory section numbering differs we have listed it in parenthesis. The full text of the amendment is available for you to read at the locations listed above under
Kentucky proposes to merge its regulations on administrative hearings for surface mining with its general administrative hearing regulations. Kentucky would merge the regulations by removing the regulations at 405 KAR 7:091 and recodifying them at 400 KAR 1:090 and 110. Kentucky would also remove the regulations at 405 KAR 7:092 and recodify them at 400 KAR 1:110.
The merger would include many non-substantive changes to the numbering, format, and language of the regulations. We will not describe the non-substantive changes in this notice. The full text of the proposed amendment is available at the locations listed above under
Kentucky proposes to revise this subchapter to provide for electronic delivery of notice of noncompliance and to require an electronic registered receipt for Kentucky to consider the delivery effective.
Kentucky proposes to revise this subchapter to provide for electronic delivery of notice of noncompliance, order for remedial measures, order for cessation and immediate compliance, and notice of inspection of noncompliance.
Kentucky proposes to merge 405 KAR 7:091 Section 7 with 405 KAR 1:110 and add provisions to allow the filing of a pleading by electronic mail.
Kentucky proposes to merge 405 KAR 7:091 Section 5 with 405 KAR 1:110 Section 3, and add provisions that would allow the electronic service of proposed penalty assessments, notices of assessment conference, notices of administrative hearings, administrative summonses, and other documents.
In merging 405 KAR 7:091 Section 1 to 400 KAR 1:090 Section 1, Kentucky proposes to remove provisions on public participation during the review of determinations concerning surface mining permits, notices of noncompliance, orders for cessation, performance bond amount, orders to abate, and other matters appropriate for adjudication by the Kentucky Energy and Environment Cabinet (the Cabinet).
Kentucky proposes to rescind a proposed change from its original amendment submission. In our proposed rule notice published on June 12, 2012 (Admin. Record No. KY-1900-3), we wrote that Kentucky proposed to add the phrase “that is not the result of a lack of diligence on the part of the corporate party or its counsel” at 405 KAR 7:091 Section 2(1)(a). Kentucky has withdrawn that change, and the original language will carry over to the sub-paragraph's new location at 400 KAR 1:090 Section 10. Kentucky also proposes non-substantive changes for clarity. The new sub-paragraph will read “The failure of the corporation or limited liability company to appear by counsel, without good cause, shall be grounds for default.”
Kentucky proposes to merge 405 KAR 7:091 Section 6 to 400 KAR 1:090 Section 5 and to remove the requirement for notices of administrative hearings to be mailed to intervenors, posted at a regional office, and published in a local newspaper.
Kentucky proposes to move 405 KAR 7:092 Section 4 to 400 KAR 1:110 Section 4 and to remove the 30-day time limit for a recipient of a notice of penalty assessment to request an assessment conference.
Kentucky proposes to move 405 KAR 7:092 Section 6 to 400 KAR 1:110 Section 6 and to remove the requirement for petitions of penalty assessments to include full payment of the proposed penalty assessment.
Kentucky proposes to add two new sections to 400 KAR 1:110. Section 13 would govern the location of administrative hearings and Section 14 would govern judicial review and remand of final orders from the Secretary of the Cabinet.
Kentucky proposes to change 405 KAR 12:020 Section 2(5) by adding language to specify examples of good cause for modifying remedial measures, including correction of errors, changes in responsible parties, changes to remedial measures, and changes in abatement dates.
Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the State program.
If you submit written or electronic comments on the proposed rule during the 30-day comment period, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent State or Federal laws or regulations, technical literature, or other relevant publications.
We cannot ensure that comments received after the close of the comment period (see
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
If you wish to speak at the public hearing, contact the person listed under
To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.
If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under
Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. Pursuant to OMB guidance, dated October 12, 1993, the approval of State program amendments is exempted from OMB review under Executive Order 12866. Executive Order 13563, which reaffirms and supplements Executive Order 12866, retains this exemption.
When a State submits a program amendment to OSMRE for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the
Intergovernmental relations, Surface mining, Underground mining.
Office of Surface Mining Reclamation and Enforcement, Interior.
Proposed rule; public comment period and opportunity for public hearing on proposed amendment.
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are announcing receipt of a proposed amendment to the Montana regulatory program (hereinafter, the Montana program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Montana proposes an addition to the Montana Code Annotated which requires changes and the addition of regulations in the Administrative Rules of Montana pertaining to ownership and control. These changes were required by an October 2, 2009, letter from OSMRE to Montana (hereinafter, 732 letter), and were necessitated by a Senate bill approved by the 2013 Montana Legislature. Montana also proposes other revisions to the Administrative Rules of Montana unrelated to ownership and control. This document gives the times and locations that the Montana program and this proposed amendment to that program are available for your inspection, the comment period during which you may submit written comments on the amendment, and the procedures that we will follow for the public hearing, if one is requested.
We will accept written comments on this amendment until 4:00 p.m., Mountain Standard Time (MST), February 10, 2022. If requested, we may hold a public hearing or meeting on the amendment on February 7, 2022. We will accept requests to speak at a hearing until 4:00 p.m., MST on January 26, 2022.
You may submit comments, identified by SATS No. MT-037-FOR, by any of the following methods:
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In addition, you may review a copy of the amendment during regular business hours at the following location:
Howard Strand, Office of Surface Mining Reclamation and Enforcement, One Denver Federal Center, Building 41, Lakewood, CO 80225-0065, Telephone: (303) 236-2931, Email:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its approved, State program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Montana program on April 1, 1980. You can find background information on the Montana program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Montana program in the April 1, 1980,
On October 28, 1994, December 19, 2000, and December 3, 2007, the Office of Surface Mining Reclamation and Enforcement (OSMRE) promulgated final rules that adopted or revised certain regulatory definitions and provisions pertaining to review of applications, permit eligibility, application information, applicant, operator, and permittee information, automated information entry and maintenance, permit suspension and rescission, ownership and control findings and challenge procedures, transfer, assignment, or sale of permit rights, and alternative enforcement. Pursuant to 30 CFR 732.17(d), OSMRE notified Montana on October 2, 2009, requiring Montana to modify its regulatory program to remain consistent with revised Federal requirements. The 2013 Montana Legislature approved Senate Bill 92, which added language addressing the required changes. Specifically, Senate Bill 92 added language in Section 82-4-227, Montana Code Annotated (MCA), that provided appeal rights pertaining to ownership or control listings in the applicant violator system.
By letter dated July 28, 2021 (FDMS Document ID No. OSM-2021-0006-0001), Montana sent us an amendment to its program under SMCRA (30 U.S.C. 1201
Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the State program.
If you submit written or electronic comments on the proposed rule during the 30-day comment period, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent State or Federal laws or regulations, technical literature, or other relevant publications.
We cannot ensure that comments received after the close of the comment period (see
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.
If you wish to speak at the public hearing, contact the person listed under
To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.
If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under
Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. Pursuant to OMB guidance, dated October 12, 1993, the approval of State program and/or AML plan amendments is exempted from OMB review under Executive Order 12866. Executive Order 13563, which reaffirms and supplements Executive Order 12866, retains this exemption.
When a State submits a program amendment to OSMRE for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the
Intergovernmental relations, Surface mining, Underground mining.
National Park Service, Interior.
Proposed rule.
The National Park Service proposes to remove from the Code of Federal Regulations special fishing regulations for Mount Rainier National Park, including those that restrict the take of nonnative species. Instead, the National Park Service would publish closures and restrictions related to fishing in the Superintendent's Compendium for the park. This action would help implement a 2018 Fish Management Plan that aims to conserve native fish populations and restore aquatic ecosystems by reducing or eliminating nonnative fish.
Comments must be received by 11:59 EDT on March 14, 2022.
You may submit comments, identified by Regulation Identifier Number (RIN) 1024-AE66, by either of the following methods:
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Kevin Skerl, Chief of Natural and Cultural Resources, Mount Rainier National Park, National Park Service; phone: (360) 569-2211; email:
Mount Rainier National Park encompasses 236,381 acres in west central Washington, on the western and eastern slopes of the Cascade Range. About 83 percent of the park is located in Pierce County and 17 percent is located in Lewis County. The park's northern boundary is approximately 65 miles southeast of the Seattle-Tacoma metropolitan area and 65 miles west of Yakima. The elevations of the park range from about 1,400 feet at the Tahoma Woods Administrative Site to 14,410 feet at the summit of Mount Rainier. About two million people visit the park annually, with most visitation (75 percent) occurring between June and September. In 1988, Congress designated approximately 97 percent (228,480 acres) of the park as wilderness under the Washington Park Wilderness Act.
The focal point of the park is Mount Rainier, a towering snow- and ice-covered volcano that is a prominent landmark in the Pacific Northwest. Mount Rainier is the second most seismically active and most hazardous volcano in the Cascade Range. The 26 major glaciers that flank the upper mountain cover 35 square miles. Steep glaciated valleys and ice carved peaks dominate the park landscape. The Carbon, Mowich, White, West Fork White, Nisqually, South Puyallup, and North Puyallup rivers and their tributaries carry water from Mount Rainier to the Puget Sound. The Ohanapecosh and Muddy Fork Cowlitz flow into the Cowlitz River and on into the Columbia River. There are approximately 470 mapped rivers and streams, including approximately 383 perennial streams and 84 intermittent streams. With very few exceptions, park rivers and streams originate within the park. There are approximately 382 lakes and ponds, and over 3,000 acres of other wetland types (
The following 15 fish species are present in the rivers, streams and lakes within the park. Of these, 8 are native and 7 are nonnative.
Fish populations naturally occur within the park in the nine large valley bottom rivers and their tributary junctions up to natural fish barriers. These rivers bear native fish populations of bull trout (
Prior to stocking efforts, there were no naturally occurring fish populations in any of the approximately 382 mapped lakes and ponds in the park. With the exception of those mentioned above, most of the mapped streams were also originally fishless. Early in the park's history, the National Park Service (NPS) and others, including the state, introduced nonnative stocks of rainbow trout (
The presence of nonnative fish in the park has had widespread adverse effects on the distribution, abundance, age structure, genetics and behavior of native fish species, amphibians and other aquatic life. Nonnative fish prey on and compete with native fish, particularly bull trout. As a result, over time, populations of native fish within and outside the park have likely diminished where brook trout and other nonnative fish populations have been established. The U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) have listed populations of bull trout, Chinook salmon, and steelhead within the park as threatened under the Endagered Species Act (ESA). In 2010, the USFWS designated approximately 30 miles of streams in the park as bull trout critical habitat. In 2015, the USFWS issued a Bull Trout Recovery Plan that identified actions the NPS should take to protect bull trout within the park.
The NPS has sole and exclusive jurisdiction over the lands and waters within Mount Rainier National Park. 16 U.S.C. 95. The park's enabling act directs the Secretary of the Interior, acting through the NPS, to make such regulations as the Secrerary deems necessary or proper to care for the park, including regulations that provide against the wanton destruction of the fish and game found within the park, and against their capture or destruction for the purposes of merchandise or profit. 16 U.S.C. 92. The NPS administers the park as a unit of the National Park System and has the authority to regulate the use of the park as it considers necessary or proper. 54 U.S.C. 100751(a). This includes the authority to regulate activities on water located within the park that is subject to the jurisdiction of the United States. 54 U.S.C. 100751(b).
General NPS fishing regulations are found in 36 CFR 2.3 and apply to all units of the National Park System. For example, § 2.3(d)(4) prohibits commercial fishing in NPS units, except where specifically authorized by Federal statute. Recreational fishing is allowed within NPS areas in accordance with state law, provided that the state law does not conflict with NPS fishing regulations. 36 CFR 2.3(a). Special fishing regulations are found in 36 CFR part 7 and apply only in specific NPS units that have promulgated special regulations for this purpose. Other NPS closures and restrictions related to fishing are established by the Superintendent under his or her discretionary authority in 36 CFR 1.5. This authority allows Superintenents to close all or a portion of a park area to a specific use or activity or impose conditions or restrictions on a use or activity. Pursuant to 36 CFR 1.7(b), these actions are compiled and maintained in what is commonly known as the Superintendent's Compendium, which is typically available on the unit's website, and do not appear in 36 CFR. Actions taken by the Superintendent under the authority in 36 CFR 1.5 may not conflict with regulations found in the CFR, including the general fishing regulations in § 2.3.
Special fishing regulations for Mount Rainier National Park are found in 36 CFR 7.5(a). These regulations were issued in 1969 (34 FR 17520) and last amended in 1976 (41 FR 14863). They close the following areas of the park to all fishing: (i) Tipsoo Lake; (ii) Shadow Lake; (iii) Klickitat Creek above the White River entrance water supply intake; (iv) Laughingwater Creek above the Ohanapecosh water supply intake; (v) Frozen Lake; (vi) Reflection Lakes; and (vii) Ipsut Creek above the Ipsut Creek Campground water supply intake. 36 CFR 7.5(a)(1). Except for fishing with
Other closures and restrictions related to fishing appear in the Superintendent's Compendium for the park, which is available on the park's website at
In September 2017, the NPS published a Fish Management Plan/Environmental Assessment (the Plan). The purpose of the Plan is to direct long-term management for fish within lakes, rivers and streams within the park. During the development of the Plan, the NPS solicited information from the USFWS, the NMFS, the Washington Department of Fish and Wildlife, the Washington State Historic Preservation Office, and six affiliated American Indian tribes: The Nisqually Tribe of Indians, the Muckleshoot Indian Tribe, the Cowlitz Indian Tribe, the Puyallup Tribe of Indians, the Squaxin Island Tribe, and the Confederated Tribes and Bands of the Yakama Nation. The U.S. Forest Service, Mount Baker-Snoqualmie National Forest, also submitted comments during the public scoping period that occurred before the Plan was published. The Plan was open for a 30-day public comment period.
On August 28, 2018, the Regional Director for Department of the Interior Unified Regions 8, 9, and 10 (formerly the Pacific West Region) approved a Finding of No Significant Impact (FONSI) selecting Alternative 2 in the Plan for implementation. This alternative calls for site-specific management actions to encourage recreational fishing opportunities for nonnative species and to protect native fish and habitat. In addition to increasing recreational angling opportunities for nonnative species, the alternative calls for suppressing or eradicating nonnative fish populations through administrative actions such as gillnetting, seining, electrofishing, and piscicides in selected locations. The selected alternative is consistent with actions required by the 2015 Bull Trout Recovery Plan issued by the USFWS. The NPS expects the eradication or suppression of nonnative fish to result in the increased survival and abundance of threatened and endangered species (bull trout, chinook salmon and steelhead) and improved habitat for native species. The Plan, which contains a full description of the purpose and need for taking action, the alternatives considered, and the environmental impacts associated with the considered alternatives, and the FONSI may be viewed on the park's planning website at
The proposed rule would remove special fishing regulations for the park that interfere with the successful implementation of the fish management strategy identified in the FONSI. These include the following closures and restrictions that limit the take of nonnative fish: (1) Closures at Ipsut Creek and (except for artificial flyfishing) the Ohanapecosh River; and (2) a daily catch and possession limit of six pounds and one fish, not to exceed 12 fish. Removing these closures and restrictions would create new angling opportunities for nonnative species that are currently not authorized by 36 CFR 7.5. The other closures and restrictions currently codified in the special regulations will be relocated to and maintained in the Superintendent's Compendium because either they are necessary to protect the domestic potable water supply for White River, Sunrise, Ohanapecosh, and Paradise (the closures of Frozen Lake and streams with identified water supply intakes); or to protect fragile riparian vegetation (the closures of Tipsoo Lake, Shadow Lake and Reflection Lakes). Closures and restrictions in the special regulations also apply to the take of native fish species. These will be retained or modified in the Superintendent's Compendium, consistent with the selected alternative in the FONSI, to help restore the natural abundance, diversity, dynamics, distribution, habitats and behaviors of native fish populations that were present in the park prior to the introduction of nonnative fish. The administrative flexibility offered by the Superintendent's Compendium, which in most circumstances can be modified without notice and comment rulemaking (see 36 CFR 1.5(b)), provides a feasible and responsive method to meet the strategic goals identified in the FONSI to utilize adaptive management to alter management activities when needed based on monitoring and best available science. NPS regulations at 36 CFR 1.7(b) require the Superintendent to update the Compendium at least annually. The NPS will ensure that the public has an opportunity to provide meaningful input prior to updating any closures or restrictions related to fishing in the Compendium.
Consolidating all fishing closures and restrictions in the Compendium will make them more accessible and user-friendly for the public. Instead of having to look in two different places (the special regulations in 36 CFR 7.5 and the Superintendent's Compendium on the park's website), the public would be able to find all closures and restrictions related to fishing in one place. The NPS has already done this, informally, by producing a fishing pamphlet that is available at the park's website at
Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of Executive Order 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. Executive Order 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.
This rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2). This rule:
(a) Does not have an annual effect on the economy of $100 million or more.
(b) Will not cause a major increase in costs or prices for consumers, individual industries, federal, State, or local government agencies, or geographic regions.
(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This rule would not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule would not have a significant or unique effect on State, local or tribal governments or the private sector. It addresses public use of national park lands, and imposes no requirements on other agencies or governments. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
This rule would not effect a taking of private property or otherwise have takings implications under Executive Order 12630. A takings implication assessment is not required.
Under the criteria in section 1 of Executive Order 13132, the rule would not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. This proposed rule only affects use of federally-administered lands and waters. It has no outside effects on other areas. A federalism summary impact statement is not required.
This rule complies with the requirements of Executive Order 12988. This rule:
(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the criteria in Executive Order 13175 and under the Department's tribal consultation policy and have determined that tribal consultation is not required because the rule will have no substantial direct effect on federally recognized Indian tribes. During scoping for the Plan, the NPS solicited comments from six affiliated American Indian tribes: The Nisqually Tribe of Indians, the Muckleshoot Indian Tribe, the Cowlitz Indian Tribe, the Puyallup Tribe of Indians, the Squaxin Island Tribe, and the Confederated Tribes and Bands of the Yakama Nation. The NPS will continue to work with these tribes throughout the rulemaking process and implementation of the selection action in the Plan.
This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number.
The NPS has prepared the Plan to determine whether this rule will have a significant impact on the quality of the human environment under the NEPA. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the NEPA is
This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.
We are required by Executive Orders 12866 (section 1(b)(12)) and 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use common, everyday words and clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
It is the policy of the Department of the Interior, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. Accordingly, interested persons may submit written comments regarding this proposed rule by one of the methods listed in the
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.
District of Columbia, National parks, Reporting and recordkeeping requirements.
In consideration of the foregoing, the National Park Service proposes to amend 36 CFR part 7 as follows:
54 U.S.C. 100101, 100751, 320102; Sec. 7.96 also issued under D.C. Code 10-137 and D.C. Code 50-2201.07.
(a)
(2) The Superintendent may establish closures and restrictions, in accordance with the criteria and procedures of § 1.5 of this chapter, on any activity pertaining to fishing, including, but not limited to species of fish that may be taken, seasons and hours during which fishing may take place, methods of taking, and size, creel, and possession limits.
(3) Except in emergency situations, the Superintendent will notify the public of any such closures or restrictions through one or more methods listed in § 1.7 of this chapter, including publication in the Superintendent's Compendium (or written compilation) of discretionary actions referred to paragraph (b) of § 1.7.
(4) Fishing in closed waters or violating a condition or restriction established by the Superintendent under this paragraph (a) is prohibited.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard is proposing to update its user fees for seagoing towing vessels that are 300 gross tons or more and to revise user fees for other inspected towing vessels. The Coast Guard is proposing these updates because we are required to establish and maintain a fair fee for our vessel inspection services and to separate the fees for inspection options that involve third-party auditors and surveyors from inspection options that do not involve third parties. Under this proposed rule, vessels using the Alternate Compliance Program, Streamlined Inspection Program, or the Towing Safety Management System options would pay a lower fee than vessels that use the traditional Coast Guard inspection option.
Comments and related material must be received by the Coast Guard on or before April 11, 2022.
You may submit comments identified by docket number USCG-2018-0538 using the Federal eRulemaking Portal at
For information about this document call or email Mr. Scott Kuhaneck, Coast Guard; telephone 202-372-1221, email
The Coast Guard views 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. All comments received will be posted without change to
We do not plan to hold a public meeting but we will consider doing so if public comments indicate that a meeting would be helpful and we determine that a meeting would aid this rulemaking. We would issue a separate
In this section, the Coast Guard identifies the problem we intend to address, the well-established statutory authority that enables us to issue this proposed rule, and the recent legislation that provides additional authority for this proposed rulemaking.
The Coast Guard and Maritime Transportation Act of 2004
On June 20, 2016, we published an
In the
In addition to towing vessels subject to subchapter M that are required to obtain COIs, there are towing vessels that qualify as seagoing motor vessels (300 gross tons or more) that are subject to 46 CFR chapter I, subchapter I regulations for cargo and miscellaneous vessels.
The law requires that we establish a fee for our inspection services that is fair and based on costs to the Government, value to the recipient, and public interest. It further requires that we review the costs to the Government of such inspections for towing vessel using the Coast Guard option and those using an option involving a third party, revise such fees if there is a difference,
The Coast Guard is issuing this proposed rule based on authority in section 2110 of Title 46 of the United States Code (46 U.S.C. 2110), which has been delegated to the Commandant under DHS Delegation No. 0170.1(II)(92). Section 2110 of Title 46 directs the Secretary of the Department in which the Coast Guard is operating to establish a fee or charge for a service or thing of value provided by the Secretary under Subtitle II of Title 46. Inspections and related services described in Subtitle II of Title 46 are considered a service or thing of value provided by the Secretary.
Section 2110 also directs that the fee or charge be established in accordance with 31 U.S.C. 9701, which specifies that each charge be fair and based on the costs to the Government, the value of the service or thing to the recipient, public policy or interest served, and other relevant facts. Consistent with these objectives, once a fee or charge is established, section 2110 allows it to be adjusted to accommodate changes in the cost of providing a specific service or thing of value.
On December 4, 2018, the Frank LoBiondo Coast Guard Authorization Act of 2018 (CGAA) was enacted.
If there is a difference in costs, section 815 of CGAA directs us to revise the fee we assess for such inspections to conform to 31 U.S.C. 9701, and to base the fee on the cost to the Government. This is the intent of this notice of proposed rulemaking (NPRM).
The Omnibus Budget Reconciliation Act of 1990 (OBRA) amended 46 U.S.C. 2110 and removed long-standing prohibitions against imposing certain user fees.
On June 20, 2016, the Coast Guard published the final rule on the
The Coast Guard currently charges an annual vessel inspection fee for U.S. and foreign vessels requiring a COI, following the fee schedule set in § 2.10-101.
This proposed rule would update existing annual inspection fees for both seagoing towing vessels (300 gross tons or more) and vessels subject to the relatively new towing-vessel regulations in 46 CFR subchapter M.
The annual inspection fees are located in 46 CFR part 2—Vessel Inspections. In addition to fees in § 2.10-101, this part contains definitions in § 2.10-25. We propose to add the following new defined terms to § 2.10-25—
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To reflect the involvement of third parties in inspection options, such as the ACP and TSMS, we propose to define “annual vessel inspection fee” as the fee charged by the Coast Guard for providing inspection and related services to determine whether a vessel meets the requirements to maintain its COI. The fee charged by the Coast Guard reflects the cost to the Coast Guard. There are several existing options for inspection, which we propose to define in revised § 2.10-25 by reference to the regulations that establish each option. For both seagoing and subchapter M towing vessels, there is a Coast Guard option in which the Coast Guard performs all of the relevant inspection activity. For both types of vessels there is also a third-party option, already established in regulation, in which a third party performs some of the relevant activity, but the Coast Guard still inspects the vessel and examines evidence of compliance provided by third parties.
For seagoing towing vessels there is an additional option, the SIP. The SIP option does not involve a third party. Under the SIP option, a vessel is inspected in accordance with an approved Vessel Action Plan that the company's SIP agent develops with
We propose to define “towing vessel” as a commercial vessel engaged in or intending to engage in the service of pulling, pushing, or hauling alongside, or any combination of pulling, pushing, or hauling alongside. This definition matches the definition of towing vessel in 46 U.S.C. 2101.
We are also proposing to modify the definition of an existing term in § 2.10-25,
For towing vessels subject to subchapter M, we propose two fee categories; the Coast Guard option and the TSMS option. For seagoing towing vessels subject to subchapter I, we propose three fee categories; the Coast Guard option, the ACP option and the SIP option. This would allow the Coast Guard to provide reduced fees for subchapter M vessel owners who choose the TSMS option described in 46 CFR part 138, and for subchapter I vessel owners who choose the ACP or SIP option described in 46 CFR part 8. We anticipate this fee structure will help to ensure the Coast Guard's ability to recover full costs to the Government, and to separate annual inspection fees for options involving third-party surveys and audits of towing vessels using safety management systems. Several inspection options have lower user fees than the Coast Guard option. These inspection alternatives either require fewer Coast Guard inspection activities or the Coast Guard inspection activities take less time and thus have a lower cost.
We are proposing to charge one of three annual fees for seagoing towing vessels that are inspected under subchapter I:
• $2,747 for those using the Coast Guard option;
• $1,850 for those using the ACP option; and
• $2,260 for those using the SIP option.
The current annual fee for seagoing towing vessels that are inspected under subchapter I is $2,915.
For a detailed discussion of how these fees were derived, see Methodology for Calculating Fees in section V.D.
We are also proposing to charge one of two fees for towing vessels inspected under subchapter M:
• $2,184 for those using the Coast Guard option, and
• $973 for those using the TSMS option.
The current annual fee applied to subchapter M towing vessels is $1,030.
For a more detailed discussion of how these fees were derived, see Methodology for Calculating Fees in section V.D.
This section summarizes the methodology for calculating fees. For more details, see the
To derive the costs of the various inspection types, we used an activity-based costing
The Coast Guard intends to collect one of five different user fees from the approximately 5,385 towing vessels that require COIs under subchapters I and M.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Our analyses based on these statutes or Executive orders follows.
Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.
This proposed rule is a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB). Section 6(a)(3) of Executive Order 12866 requires an assessment of potential costs and benefits. The analysis follows.
Currently, towing vessels are inspected under subchapter I or subchapter M, dependent on their size and area of operation. All inspected towing vessels are required to pay a user fee. Subchapter I towing vessels pay a user fee of $2,915 annually. Subchapter M towing vessels pay a user fee of $1,030 annually. The subchapter M user fee is not specific to towing vessels, rather it is for all inspected vessels that do not have a specific user fee on Table 2.10-101.
We calculate that in total 42 towing vessels inspected under subchapter I are paying $122,430 annually and that in total 5,343 towing vessels inspected under subchapter M are paying $5,503,290 annually for inspection services. Towing vessels choose between several vessel inspection alternatives. Once selected, the inspection option is unlikely to change due to a change in user fees, since there are private business costs associated with changing inspection options. Coast Guard COI service costs are fully funded through annual appropriations.
This proposed rulemaking would establish a user fee specific to subchapter M towing vessels, revise the user fee specific to subchapter I towing vessels, and establish user fees for vessel inspection alternatives that require fewer Coast Guard inspection activities or the Coast Guard inspection activities take less time and thus have a lower cost to Coast Guard. We anticipate this proposed fee structure will help to ensure the Coast Guard's ability to offset costs to the government, and to separate annual inspection fees for options involving third-party surveys and audits of towing vessels using safety management systems. This proposed rule would result in estimated transfers from towing vessel operators for the COI services of $1.5 million to $1.6 million per year to the Federal Government. The 10-year transfers, undiscounted, total $15,719,319. The discounted annualized figure, at 7 percent, is $1,577,491.
The Coast Guard proposes to do the following through this rulemaking:
(1) Modify the definition in § 2.10-25 of
(2) Amend the user fees for 46 CFR subchapter I towing vessels. The current fee for the 42 seagoing towing vessels inspected under subchapter I is $2,915 for all inspection options (Coast Guard, ACP, and SIP). This proposed rule would make the fees specific to each inspection as shown below in table 3. Vessels have already chosen their inspection option and are unlikely to change away from their current option. This is because there are costs associated with switching inspection options and there are private industry transactions and business specific costs beyond the inspection cost that make the user fee a small portion of the overall cost of inspections.
(3) Create a specific user fee category for the 5,343 towing vessels under 46 CFR subchapter M towing vessels in the table of fees in § 2.10-101 and update the current user fees for annual inspection fees for towing vessels to reflect the specific program costs associated with the two subchapter M options: The TSMS option and the Coast Guard inspection option. The current fee is $1,030 for the annual inspection fee for towing vessels subject to
(4) Define the following new terms that will be added to the table of fees in § 2.10-101:
To obtain the affected population for this proposed rule, we used the MISLE (Marine Information for Safety and Law Enforcement) database. MISLE is the Coast Guard's vessel and marine activity database which contains the best and most readily available vessel population data. According to MISLE data as of June 2021, the total affected population of this rule is 5,385 inspected towing vessels. There are approximately 5,343 towing vessels that will require inspection under 46 CFR subchapter M and 42 towing vessels that are inspected under 46 CFR subchapter I. Though the subchapter M population is decreasing by an average of 33 vessels per year since 2016, the subchapter I population is expected to remain stable, because it historically has done so.
Rather than a single fee category for all towing vessels covered by a subchapter, the Coast Guard is proposing two categories for subchapter M and three categories for subchapter I vessels. For subchapter M, the inspection types are the Coast Guard option and the TSMS option. For subchapter I, the inspection types are the Coast Guard option, the ACP option, and the SIP option. Table 5 presents the total population of inspected towing vessels that would be impacted by this proposed rule. These are the current rates of inspection for the subchapters, though not all vessels are currently inspected. Table 6 presents the projected subchapter M population and their projected counts of inspection type. We assume that the subchapter M towing vessel population will maintain a 70-percent-TSMS option and 30-percent-Coast-Guard option split over the duration of the analysis.
This proposed rule would not impose any new societal costs as all of the inspection activities are currently being done by the regulated entities and Coast Guard. Rather the impacts of this rule would be in the form of transfer payments, which are monetary payments from one group to another that do not affect total resources available to society.
This rule would not provide any quantitative benefits. However, it would have a qualitative benefit. This rule would revise user fees to more closely reflect the actual cost to the Coast Guard of providing inspection services. The result would be a more fair distribution of costs to inspected towing vessels by inspection type. Title 46 U.S.C. 2110 directs that the fee or charge be established in accordance with 31 U.S.C. 9701, which specifies that each charge be fair and based on: The costs to the Government; the value of the service or thing to the recipient, public policy, or interest served; and other relevant facts. Consistent with these objectives, once a fee or charge is established, section 2110 allows it to be adjusted to accommodate changes in the cost of providing a specific service or thing of value. This rulemaking aids the Coast Guard in compliance with those statutory requirements.
The Coast Guard proposes to adjust the user fees collected from the current entities so that there are now five different fees based on the towing vessel subchapter and program utilized for vessel certification. The Coast Guard estimates this total is approximately 5,385 towing vessels. Table 7 shows the current fee, the proposed fee, the change and the percent change to the user fee. The annual costs of services for each vessel class is the proposed user fee for that vessel class.
In table 8, we show the total annual transfer payments from each vessel class to the Government and the total for all vessels. For example, Subchapter M vessels that choose the Coast Guard option would pay $1,154 additional dollars per vessel in user fees to the Coast Guard for their inspection services. Negative numbers represent a decrease in user fees. Transfer payments are monetary payments from one group to another that do not affect total resources. For this proposed rulemaking, a user fee is a transfer payment from the vessel owner or operator to the Government to offset the costs to the Coast Guard for providing COI services. This is found by multiplying the vessel population by the incremental fee change. Because the subchapter M vessel population is projected to decrease, table 9 shows annual transfer payments for this subchapter, totals are found by multiplying the populations in table 6 by the appropriate fees.
With the reduction in fees to vessels under the subchapter I and subchapter M TSMS options, the first year transfers from the government to the towing vessel industry is $232,384. The Coast Guard expects to have transfers from towing vessel operators for the COI services of $1,636,682 in the first year to the Government. The sum of these transfers is $1,617,478 in the first year. The 10-year transfers, undiscounted, total $15,719,319. The discounted annualized figure, at 7 percent, is $1,577,491. Table 10 summarizes the total 10-year transfer payments from the towing vessel industry to the Government.
A discussion of regulatory alternatives is available in the section VI.B(6) of this preamble.
In accordance with the Regulatory Flexibility Act (5 U.S.C. 601
A small entity may be a small independent business, defined as independently owned and operated, that is organized for profit and is not dominant in its field per the Small Business Act (5 U.S.C. 632). A small entity can also be a small not-for-profit organization (any not-for-profit enterprise that is independently owned and operated and is not dominant in its field) or a small governmental jurisdiction (a locality with fewer than 50,000 people) per the RFA. An IRFA addresses the following:
(1) A description of the reasons why action by the agency is being considered;
(2) A succinct statement of the objectives of, and legal basis for, the rule;
(3) A description of and, where feasible, an estimate of the number of small entities to which the rule will apply;
(4) A description of the projected reporting, recordkeeping and other compliance requirements of the rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record;
(5) An identification, to the extent practicable, of all relevant Federal rules that may duplicate, overlap or conflict with the rule; and
(6) A description of any significant alternatives to the rule that accomplish the stated objectives of applicable statutes and that minimize any significant economic impact of the rule on small entities.
Below is a discussion of the IRFA analysis for each of these six elements.
The Coast Guard is considering updating the user fees for inspected towing vessels because after reviewing the costs to the Government of inspections under the Coast Guard option or options using a third party, the Coast Guard has determined that updates are necessary to ensure that fees for all options are fair and based on costs to the Government. User fees for subchapter I inspected towing vessels have not been updated since 1995. The proposed changes are also consistent with the Coast Guard's statement in the 2016 final rule,
The purpose of this proposed rule is to redistribute the burden of inspection
This proposed regulatory action is necessary to adjust the user fee schedule to better reflect the cost of COI services to the government, for subchapters I and M towing vessels. The Coast Guard is issuing this proposed rule based on authority in 46 U.S.C. 2110, which has been delegated to the Commandant under DHS Delegation No. 0170.1(II)(92). Title 46 U.S.C. 2110 directs the Coast Guard to establish a fee, or charge, for a service or thing of value it provides in accordance with 31 U.S.C. 9701. Inspections and related services described in Subtitle II of Title 46 United States Code are considered a service of value provided by the Coast Guard. Section 31 U.S.C. 9701 specifies that each fee or charge be fair and based on the costs to the government, the value of the service to the recipient, public policy or interest served, and other relevant facts. Once a fee or charge is established, 46 U.S.C. 2110 allows it to be adjusted to accommodate changes in the cost of providing a specific service or thing of value.
In addition, section 815 of CGAA directs the Coast Guard to review and revise the fee for inspections if necessary to comply with 31 U.S.C. 9701. The Coast Guard interprets “costs to the Government” in section 815(a) to mean the cost to the Coast Guard of providing inspection and related services to determine whether a vessel meets requirements necessary for it to maintain its COI.
The proposed rule would affect the owners and operators of certain towing vessels under subchapters I and M. We constructed this towing vessel population from the Coast Guard's MISLE system. From this database, we identified 5,385 vessels affected by this proposed rule—5,343 subchapter M towing vessels and 42 subchapter I towing vessels. There are 1,236 unique companies that own or operate these vessels. Five companies own vessels under both subchapters I and M.
We used available operator name and address information to research public and proprietary databases for entity type (subsidiary or parent company), primary line of business, employee size, revenue, and other information.
We broke the population down into subchapters I and M. For subchapter M, we randomly selected a sample size from the 1,222 unique towing vessel companies to reach the 95 percent confidence level. Using Cochran's Formula, Coast Guard chose a statistically valid random sample of 385 businesses that own and operate towing vessels.
There are a total of 97 NAICS-coded industries in this proposed rule's sample affected population. Table 11 displays the 10 industries that appear most frequently in the affected population of owners or operators of towing vessels in subchapters I and M.
Coast Guard chose a subchapter M sample of 385 businesses that own and operate the towing vessels. Of the 385 businesses, 37 exceeded the SBA small business size standards, 265 companies were considered to be small businesses by the SBA size standards, and 83 companies had no information available. Consistent with DHS practice, entities with no information available will be considered as small entities. Thus, there are 348 businesses in our sample that we consider to be small entities. Based on our random sample, 90.4 percent of subchapter M entities are considered small and therefore when applied to the population of unique towing vessel companies, 1,105 subchapter M entities would be considered small.
For subchapter I, we searched all 14 unique towing vessel companies in the available databases. Of the 14 unique towing vessel companies in the
For this analysis, we considered the annual weighted average transfer from industry to the Coast Guard by subchapter. For subchapter M vessels, we found the average fleet size for small entities is two vessels and multiplied it by the weighted average of incremental changes in user fees. According to our analysis of small subchapter M vessels, 97 percent of them choose the Coast Guard option for their inspection option and 3 percent choose the TSMS option. Thus, we multiplied the rates for vessels choosing their inspection option by the incremental change in user fees and the average fleet size for small subchapter M entities, which yielded an average impact of $1,117 per subchapter M vessel and $2,234 per small subchapter M entity. We repeated this process for subchapter I entities. We found the average fleet size for small entities, which is 1, and multiplied it by the weighted average of incremental changes in user fees. According to our analysis of small subchapter I vessels, 50 percent of them choose the ACP option for their inspection option, 37.5 percent choose the Coast Guard option, and the remaining 12.5 percent choose the SIP option. This proposed rule would save subchapter I entities an average of $799. Tables 12 and 13 show the impact on small company revenue for each subchapter that we had revenue data for.
According to our analysis, 87.9 percent of subchapter M entities will have an annual impact to revenue of 1 percent or less. Approximately, 10.2 percent will have an annual impact to revenue between 1 and 3 percent. The remaining 1.9 percent will have an annual impact to revenue greater than 3 percent. For subchapter I entities, our analysis shows a less than 1 percent impact to annual revenue for all small entities.
This proposed rule calls for no new reporting, recordkeeping or other compliance requirements.
There are no relevant Federal rules that may duplicate, overlap, or conflict with this proposed rule.
Alternatives considered include adjusting our current user fees for inflation, updating only the Coast Guard option user fees or continuing with the current user fees. Each of these options will be considered in the following discussion.
Under the first alternative, Coast Guard considered to adjust the current user fees for inflation from 1995 dollars to 2020 dollars. To adjust for inflation, we use an inflation factor from the annual GDP deflator data. We calculate the inflation factor of 1.58 by dividing the annual 2020 index number (113.623) by the annual 1995 index number (71.864). We then multiply the current fees for subchapters I and M by the inflation factor and round it to the nearest dollar. Subchapters I and M would experience a 58-percent increase in fees and incur annual fees of $597 and $1,691, respectively. The fees, when multiplied by the number of annual COI renewals, yield an annual revenue of approximately $8.9 million and transfer payments of $3.2 million. We rejected this alternative because the annual revenue collected under this methodology does not reflect the full cost to the Coast Guard of providing the COI-related services. Table 14 shows the inflation adjusted user fees for subchapter I and M vessels.
In our second alternative, we considered updating only the Coast Guard option user fees. We rejected this alternative because it would not comply with section 815 of CGAA. That section directs the Coast Guard to review and, based on our findings, revise the fee for towing vessel inspections. First, the Coast Guard must compare the costs to the Government of towing vessel inspections performed by the Coast Guard and towing vessel inspections performed by a third party, to determine if they are different. We have conducted that comparison and determined that there is a difference in costs to the Government between the inspection options for towing vessels that involve a third party and those that do not. If there is a difference in costs, section 815 of CGAA directs us to revise the fees we assess for towing vessel inspections to conform to 31 U.S.C. 9701, and to base the fee on the cost to the Government.
In our third alternative, we considered maintaining the current user fee without an adjustment. We rejected this alternative because the annual revenue collected under this methodology would not cover the full cost to the Coast Guard of providing the COI-related services.
In conclusion, we estimate that 87.9 percent of subchapter M entities with revenue data will have an annual impact to revenue of 1 percent or less. Approximately, 10.2 percent will have an annual impact to revenue between 1 and 3 percent. The remaining 1.9 percent will have an annual impact to revenue greater than 3 percent. For subchapter I entities, our analysis shows a less than 1 percent impact to annual revenue for all small entities that had revenue data. We also discussed several regulatory alternatives including our preferred alternative. Our preferred alternative is to: (1) Update the user fee for seagoing towing vessels; (2) revise the user fee for other inspected towing vessels; and (3) establish fees for towing vessels using the ACP, SIP, or the TSMS options. Vessels using the ACP, SIP or TSMS option would pay a lower fee than vessels that use the traditional Coast Guard inspection option.
We are interested in the potential impacts from this rule on small entities and we request public comment on these potential impacts. If you think that this rule will have a significant economic impact on you, your business, or your organization, please submit a comment to the docket at the address under
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person 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).
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520.
The Coast Guard has a collection of information for the collection of user fees from inspected vessels. This collection is 1625-0074 titled “Direct User Fees for Inspection or Examination of U.S. and Foreign Commercial Vessels.” The collection of information hour burden for collecting user fees is independent of the amount collected. Towing vessels inspected under 46 CFR subchapters I and M must currently pay $1,030 and $2,915 respectively. This proposed rulemaking would simply adjust the user fee amount to more accurately reflect the current cost of the Coast Guard for performing inspections—and would not change the number of towing vessels that must pay a user fee or the time it takes to pay the user fee.
A rule has implications for federalism under Executive Order 13132 (Federalism) 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. We have analyzed this proposed rule under Executive Order 13132 and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132. Our analysis follows.
This NPRM proposes to establish and revise user fees for services provided by the Coast Guard pursuant to the Congressional mandate contained in 46 U.S.C. 2110. Congress has not granted the authority to the States to establish user fees for Coast Guard-provided services. This NPRM would not impact a State's general ability to render services or assess or collect fees for State-rendered services. Therefore, this
While it is well settled that States may not regulate in categories in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, the Coast Guard recognizes the key role that State and local governments may have in making regulatory determinations. Additionally, for rules with federalism implications and preemptive effect, Executive Order 13132 specifically directs agencies to consult with State and local governments during the rulemaking process. If you believe this proposed rule would have implications for federalism under Executive Order 13132, please contact 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 million (adjusted for inflation) or more in any one year. Although this proposed rule would not result in such an expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630 (Governmental Actions and Interference with Constitutionally Protected Property Rights).
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice Reform) to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045 (Protection of Children from Environmental Health Risks and Safety Risks). This proposed 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.
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.
We have analyzed this proposed rule under Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use). We have determined that it is not a “significant energy action” under Executive Order 13211, because although it is a “significant regulatory action” under Executive Order 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.
The National Technology Transfer and Advancement Act, codified as a note to 15 U.S.C. 272, 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 (for example, specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management 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. A preliminary Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
This proposed rule would update the existing user fee for seagoing towing vessels that are 300 gross tons or more and establish specific user fees for other towing vessels that have more recently become subject to inspection. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
Marine safety, Reporting and recordkeeping requirements, Vessels.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 46 CFR part 2 as follows:
Sec. 622, Pub. L. 111-281; 33 U.S.C. 1903; 43 U.S.C. 1333; 46 U.S.C. 2103, 2110, 3306, 3316, 3703, 70034; Department of Homeland Security Delegation No. 0170.1(II)(77), (90), (92)(a), (92)(b); E.O. 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277, sec. 1-105.
The additions and revision read as follows:
(1) A vessel inspected under a 46 CFR subchapter that is not participating in the Alternative Compliance Program described in 46 CFR part 8, subpart D;
(2) A vessel inspected under a 46 CFR subchapter that is not participating in the Streamlined Inspection Program described in 46 CFR part 8, subpart E; or
(3) A vessel inspected under 46 CFR subchapter M that is not participating in the Towing Safety Management System option described in 46 CFR part 138.
The addition and revision read as follows:
Fish and Wildlife Service, Interior.
Proposed rule; reopening of comment period and announcement of public hearing.
We, the U.S. Fish and Wildlife Service (Service), are reopening the public comment period on our September 30, 2021, proposal to remove the ivory-billed woodpecker from the Federal Lists of Endangered and Threatened Wildlife and Plants (List) due to extinction. We are taking this action to conduct a public hearing on the proposal to remove the ivory-billed woodpecker from the List and to allow all interested parties additional time to comment on the proposed rule to delist the ivory-billed woodpecker (docket number: FWS-R4-ES-2020-0109). Comments previously submitted need not be resubmitted and will be fully considered in preparation of the final rule. This comment period reopening is only for the ivory-billed woodpecker proposed delisting; we are not taking any comments in regard to the other 22 species proposed in the same rule, for which the comment periods closed on November 29, 2021.
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Elizabeth Maclin, Branch of Delisting and Foreign Species, Ecological Services Program, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: ES, Falls Church, VA 22041; telephone 703-358-2646. If you use a telecommunications device for the deaf, call the Federal Relay Service at 800-877-8339.
On September 30, 2021, we published a proposed rule (86 FR 54298) to remove 23 species from the Federal Lists of Endangered and Threatened Wildlife and Plants due to extinction. The proposed rule opened a 60-day public comment period, ending November 29, 2021. During the open comment period, we received a request for a public hearing on the proposal to remove the ivory-billed woodpecker from the List. Therefore, we are announcing a public hearing and a reopening of the comment period (see
For a description of previous Federal actions concerning the ivory-billed woodpecker and information on the types of comments that would be helpful to us in promulgating this rulemaking action, please refer to the September 30, 2021, proposed rule (86 FR 54298).
We are holding a public hearing to accept comments on the proposed rule to delist the ivory-billed woodpecker on the date and at the time listed in
The public hearing will provide interested parties an opportunity to present verbal testimony (formal, oral comments) regarding the September 30, 2021, proposed rule to remove the ivory-billed woodpecker from the List due to extinction (86 FR 54298). The public hearing will not be an opportunity for dialogue with the Service, but rather 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
The Service is committed to providing access to the public hearing for all participants. Closed captioning will be available during the public hearing. Further, a full audio and video recording and transcript of the public hearing will be posted online at
If you submit information via
Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, will be available for public inspection on
The primary authors of this document are the staff members of the Branch of Delisting and Foreign Species, Ecological Services Program.
The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Office of Human Resource Management, Departmental Administration, USDA.
Notice of performance review board appointments.
This notice announces the members of the Senior Executive Service (SES) and Senior Level (SL) and Scientific or Professional (ST) Performance Review Boards (PRBs). Agriculture has two PRBs with representatives from each USDA Mission Area. The PRBs are comprised of a Chairperson and a mix of career and noncareer senior executives and senior professionals that meet annually to review and evaluate performance appraisal documents. The PRB provides a written recommendation to the Secretary for final approval of each executive's performance rating, performance-based pay adjustment, and performance award. The PRBs are advised by the Office of Human Resources Management, Office of the General Counsel, and Office of the Assistant Secretary for Civil Rights to ensure compliance with laws and regulations.
The board membership is applicable beginning on November 29, 2021.
Anita R. Adkins, Acting Chief Human Capital Officer, Office of Human Resources Management, telephone: (337) 247-1820, or Tonique Washington, Acting Chief Learning Officer, telephone: (202) 720-0027.
In accordance with 5 U.S.C. 4314(c)(4), the USDA PRB members are named below:
Bane, Robert; Barhydt, Richard; Bucknall, Janet; Chitnis, Parag; Crockett, John; Eichhorst, John; Green, Mark; Gore, Quvator Renee; Haven, Jackie; Heath, Linda; McHugh, Tara; Packnett, Patrick; Javery, Peggy; Perry, Andrew; Mays, Clyde Frank; Morris, Erin; Powers, Joseph; Staiert, Jim; Smith, Gregory; Taylor, Willie; Tucker, Jennifer; Watson, Michael; Whitley, Daniel; and Williams, Duane.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding; whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by February 10, 2022 will be considered. Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
American Battle Monuments Commission (ABMC).
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the ABMC is seeking comments from all interested individuals and organizations for a new information collection, Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery.
Comments must be received in writing on or before February 10, 2022 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Karen Wurzburger, Director Visitor Services and Interpretation. Telephone: +33 (0)1 40 75 27 78; Email Address:
This feedback will provide insights into customer or stakeholder perceptions, experiences, and expectations, provide an early warning of issues with service, or focus attention on areas where communication, training or changes in operations might improve delivery of products or services. These collections will allow for ongoing, collaborative, and actionable communications between the Agency and its customers and stakeholders. It will also allow feedback to contribute directly to the improvement of program management. The solicitation of feedback will target areas such as: Timeliness, appropriateness, accuracy of information, courtesy, efficiency of service delivery, and resolution of issues with service delivery. Responses will be assessed to plan and inform efforts to improve or maintain the quality of service offered to the public.
If this information is not collected, vital feedback from customers and stakeholders on the Agency's services will be unavailable. The Agency will only submit a collection for approval under this generic clearance if it meets the following conditions:
• The collections are voluntary;
• The collections are low-burden for respondents (based on considerations of total burden hours, total number of respondents, or burden-hours per respondent) and are low-cost for both the respondents and the Federal Government;
• The collections are noncontroversial and do not raise issues of concern to other Federal agencies;
• Any collection is targeted to the solicitation of opinions from respondents who have experience with the program or may have experience with the program in the near future;
• Personally identifiable information (PII) is collected only to the extent necessary and is not retained;
• Information gathered is intended to be used only internally for general service improvement and program management purposes and is not intended for release outside of the agency (if released, the agency must indicate the qualitative nature of the information);
• Information gathered will not be used for the purpose of substantially informing influential policy decisions; and
• Information gathered will yield qualitative information. The collections will not be designed or expected to yield statistically reliable results or used as though the results are generalizable to the population of study. Feedback collected under this generic clearance provides useful information, but it does not yield data that can be generalized to the overall population.
This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: The target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential nonresponse bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior to fielding the study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic mechanisms that are designed to yield quantitative results.
As a general matter, information collections will not result in any new system of records containing privacy information and will not ask questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission to the Office of Management and Budget for approval.
U.S. Commission on Civil Rights.
Announcement of meetings.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the New Mexico Advisory Committee (Committee) will hold a meeting via videoconference on Tuesday, January 25, 2022, from 12:00 p.m. to 1:00 p.m. Mountain Time for the purpose of selecting the Committee's first project topic.
The meeting will be held on:
Brooke Peery, Designated Federal Officer (DFO), at
Members of the public may listen to the discussion. This meeting is available to the public through the public registration link listed above. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Programs Unit Office, U.S. Commission on Civil Rights, 300 N Los Angeles St., Suite 2010, Los Angeles, CA 90012 or emailed to Brooke Peery at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available at:
Please click on the “Meeting Details” and “Documents” links. Persons interested in the work of this Committee are also directed to the Commission's website,
On September 8, 2021, Lilly del Caribe, Inc., submitted a notification of proposed production activity to the FTZ Board for its facility within Subzone 7K, in Carolina, Puerto Rico.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
The Sensors and Instrumentation Technical Advisory Committee (SITAC) will meet on January 25, 2022, at 1:00 p.m., Eastern Standard Time, via teleconference. The Committee advises the Office of the Assistant Secretary for Export Administration on technical questions that affect the level of export controls applicable to sensors and instrumentation equipment and technology.
The open session will be accessible via teleconference on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate distribution of public presentation materials to the Committee members, the Committee suggests that the materials be forwarded before the meeting to Ms. Springer.
For more information contact Yvette Springer on (202) 482-2813.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On November 26, 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 uncoated paper (uncoated paper) from Brazil. For these final results, Commerce continues to find that Sylvamo do Brasil Ltda. (SVBR) is the successor-in-interest to International Paper do Brasil Ltda. (IP) and that Sylvamo Exports Ltda. (SVEX) is the successor-in-interest to International Paper Exportadora Ltda. (IPEX). Furthermore, SVBR and SVEX (collectively, Sylvamo) should be assigned the same AD cash deposit rate assigned to IP and IPEX (collectively, International Paper) for purposes of determining AD liability in this proceeding.
Applicable January 11, 2022.
Christopher Maciuba, 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) 482-5831.
On November 26, 2021, Commerce published the
The merchandise covered by the scope of the
For the reasons stated in the
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of 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.
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 Tariff Act of 1930, as amended, and 19 CFR 351.216 and 351.221(c)(3).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Notice; correction.
The Department of Commerce (Commerce) published the
Tyler Weinhold, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401
In the
• In the third row of the “Company” column, revise the seventh-listed company name, “Jiangsu Dingsheng New Materials Joint Stock Co., Ltd.” to “Jiangsu Dingsheng New Materials Joint-Stock Co., Ltd.” to include a hyphen between “Joint” and “Stock.”
• In the third row of the “Company” column, revise the eighth-listed company name, “Luoyang Longding Aluminium Industries Co., Ltd.” to “Luoyang Longding Aluminum Co., Ltd.” to change “Aluminium” to “Aluminum” and to exclude “Industries.”
• In the eighth row of the “Company” column, revise “Xiamen Xiashun Aluminium Foil Co. Ltd.” to “Xiamen Xiashun Aluminum Foil Co., Ltd.” to change “Aluminium” to “Aluminum.”
• In the “Company” and “Net countervailable subsidy rate (percent
On December 27, 2021, Commerce published in the
In the net countervailable subsidy rate table, Commerce inadvertently listed Luoyang Longding Aluminium Industries Co., Ltd., instead of Luoyang Longding Aluminum Co., Ltd., as one of the cross-owned companies in the third row of the “Company” column. Luoyang Longding Aluminium Industries Co., Ltd. should have been listed as a separate company and, instead, Luoyang Longding Aluminum Co., Ltd. should have been included as a cross-owned company in the third row of the “Company” column in the net countervailable subsidy rate table.
In addition, “Jiangsu Dingsheng New Materials Joint-Stock Co., Ltd.” was misspelled as “Jiangsu Dingsheng New Materials Joint Stock Co., Ltd.” (omitting the hyphen between “Joint” and “Stock”) and “Xiamen Xiashun Aluminum Foil Co., Ltd.” was misspelled as “Xiamen Xiashun Aluminium Foil Co. Ltd.” (misspelling “Aluminum” as “Aluminium”).
The corrected net countervailable subsidy table is as follows:
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.221(b)(5).
Notice document 2021-28404 published in the issue of January 3,
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Brenda E. Brown, Office of AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, telephone: (202) 482-4735.
Each year during the anniversary month of the publication of an antidumping or countervailing duty order, finding, or suspended investigation, an interested party, as defined in section 771(9) of the Tariff Act of 1930, as amended (the Act), may request, in accordance with 19 CFR 351.213, that the Department of Commerce (Commerce) conduct an administrative review of that antidumping or countervailing duty order, finding, or suspended investigation.
All deadlines for the submission of comments or actions by Commerce discussed below refer to the number of calendar days from the applicable starting date.
In the event Commerce limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, Commerce intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports during the period of review. We intend to release the CBP data under Administrative Protective Order (APO) to all parties having an APO within five days of publication of the initiation notice and to make our decision regarding respondent selection within 35 days of publication of the initiation
In the event Commerce decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:
In general, Commerce finds that determinations concerning whether particular companies should be “collapsed” (
Pursuant to 19 CFR 351.213(d)(1), a party that requests a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that Commerce may extend this time if it is reasonable to do so. Determinations by Commerce to extend the 90-day deadline will be made on a case-by-case basis.
Section 504 of the Trade Preferences Extension Act of 2015 amended the Act by adding the concept of particular market situation (PMS) for purposes of constructed value under section 773(e) of the Act.
Neither section 773(e) of the Act nor 19 CFR 351.301(c)(2)(v) set a deadline for the submission of PMS allegations and supporting factual information. However, in order to administer section 773(e) of the Act, Commerce must receive PMS allegations and supporting factual information with enough time to consider the submission. Thus, should an interested party wish to submit a PMS allegation and supporting new factual information pursuant to section 773(e) of the Act, it must do so no later than 20 days after submission of initial Section D responses.
In accordance with 19 CFR 351.213(b), an interested party as defined by section 771(9) of the Act may request in writing that the Secretary conduct an administrative review. For both antidumping and countervailing duty reviews, the interested party must specify the individual producers or exporters covered by an antidumping finding or an antidumping or countervailing duty order or suspension agreement for which it is requesting a review. In addition, a domestic interested party or an interested party described in section 771(9)(B) of the Act must state why it desires the Secretary to review those particular producers or exporters. If the interested party intends for the Secretary to review sales of merchandise by an exporter (or a producer if that producer also exports merchandise from other suppliers) which was produced in more than one country of origin and each country of origin is subject to a separate order, then the interested party must state specifically, on an order-by-order basis, which exporter(s) the request is intended to cover.
Note that, for any party Commerce was unable to locate in prior segments, Commerce will not accept a request for an administrative review of that party absent new information as to the party's location. Moreover, if the interested party who files a request for review is unable to locate the producer or exporter for which it requested the review, the interested party must provide an explanation of the attempts it made to locate the producer or exporter at the same time it files its request for review, in order for the Secretary to determine if the interested party's attempts were reasonable, pursuant to 19 CFR 351.303(f)(3)(ii).
As explained in
Commerce no longer considers the non-market economy (NME) entity as an exporter conditionally subject to an antidumping duty administrative reviews.
All requests must be filed electronically in Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS) on Enforcement and Compliance's ACCESS website at
Commerce will publish in the
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period of the order, if such a gap period is applicable to the period of review.
On September 20, 2021, Commerce published the final rule titled “
In accordance with the
As mentioned in the
Interested parties have 30 days after the date of this notice to submit new or amended entries of appearance. Commerce will then finalize the annual inquiry service lists five business days thereafter. For ease of administration, please note that Commerce requests that law firms with more than one attorney representing interested parties in a proceeding designate a lead attorney to be included on the annual inquiry service list.
Commerce may update an annual inquiry service list at any time as needed based on interested parties' amendments to their entries of appearance to remove or otherwise modify their list of members and representatives, or to update contact information. Any changes or announcements pertaining to these procedures will be posted to the ACCESS website at
In the
This notice is not required by statute but is published as a service to the international trading community.
Notice document 2021-28406 published in the issue of January 3, 2022, with extraneous text and tables. It is being republished here in its entirety.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Every five years, pursuant to the Tariff Act of 1930, as amended (the Act), the Department of Commerce (Commerce) and the International Trade Commission automatically initiate and conduct reviews to determine whether revocation of a countervailing or antidumping duty order or termination of an investigation suspended under section 704 or 734 of the Act would be likely to lead to continuation or recurrence of dumping or a countervailable subsidy (as the case may be) and of material injury.
Pursuant to section 751(c) of the Act, the following Sunset Reviews are scheduled for initiation in February 2022 and will appear in that month's
No Sunset Review of suspended investigations is scheduled for initiation in February 2022.
Commerce's procedures for the conduct of Sunset Review are set forth in 19 CFR 351.218. The
Pursuant to 19 CFR 351.103(c), Commerce will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact Commerce in writing within 10 days of the publication of the Notice of Initiation.
Please note that if Commerce receives a Notice of Intent to Participate from a member of the domestic industry within 15 days of the date of initiation, the review will continue.
Thereafter, any interested party wishing to participate in the Sunset Review must provide substantive comments in response to the notice of initiation no later than 30 days after the date of initiation. Note that Commerce
This notice is not required by statute but is published as a service to the international trading community.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permits and permit amendments.
Notice is hereby given that permits and permit amendments have been issued to the following entities under the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA), as applicable.
The permits and related documents are available for review upon written request via email to
Jennifer Skidmore (Permit No. 25794), Sara Young (Permit No. 18059-01), and Shasta McClenahan, Ph.D. (Permit No. 18786-06); at (301) 427-8401.
Notices were published in the
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
For Permit No. 18786-06, an environmental assessment (EA) was prepared for the original permit (No. 18786) in compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
As required by the ESA, as applicable, issuance of these permit was based on a finding that such permits: (1) Were applied for in good faith; (2) will not operate to the disadvantage of such endangered species; and (3) are consistent with the purposes and policies set forth in Section 2 of the ESA.
National Marine Fisheries Service (NMFS), National Oceanic and
Notice; request for comments.
NMFS has determined that three exempted fishing permit (EFP) applications warrant further consideration and is requesting public comment on those applications and on the Pacific Fishery Management Council's (Council) recommendations following its September 2021 meeting. The EFP applicants request an exemption from a prohibition on the use of unauthorized gear to harvest highly migratory species (HMS) under the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species (HMS FMP). The purpose of this exemption is to test the effects and efficacy of using new or alternative gear types to harvest swordfish and other HMS off of the U.S. West Coast.
Comments must be submitted in writing by February 10, 2022.
You may submit comments on this document, identified by NOAA-NMFS-2021-0106, by any of the following methods:
•
•
•
Chris Fanning, NMFS, West Coast Region, 562-980-4198.
Under the HMS FMP, Deep-Set Buoy Gear (DSBG) and midwater snap gear are not identified as legal commercial fishing gears. Use of these gears is currently only authorized under individual EFPs issued by NMFS upon the recommendation of the Council. At its June 2021 meeting, the Council reviewed 10 applications for HMS EFPs. The Council recommended that NMFS issue seven of the EFPs to authorize the use of DSBG and/or Deep-Set Linked Buoy Gear and that the Council consider the remaining three EFP applications (submitted by Mr. Bateman, Mr. Brown, and Mr. Perez)
Regarding Mr. Brown and Mr. Bateman's EFP applications, the Council recommended in September 2021 that NMFS issue a single EFP covering the activities proposed in both applications and identifying the gear-type as “midwater snap gear.” The Council further recommended that the EFP incorporate in its Terms and Conditions the protective measures described in the California Department of Fish and Wildlife Report
Regarding Mr. Perez's application, the Council did not take action on the portion of the application that requested authorization for fishing with DSBG and Night-Set Buoy Gear (NSBG) in selected areas in California state waters, as a Federal EFP is not applicable for activities in state waters. The Council did, however, recommend reissuance of Mr. Perez's existing EFP for activities in Federal waters, which would authorize the use of NSBG inside the U.S. Exclusive Economic Zone (EEZ). Council recommendations can be found in the September 2021 Council meeting Decision Document.
At this time, NMFS is requesting public comment on the EFP applications from Mr. Bateman and Mr. Brown and the recommendations of the Council during its September 2021 meeting related to those two applications. NMFS is also requesting public comment regarding the reissuance of Mr. Perez's existing EFP. NMFS will take the Council's recommendations into consideration along with public comments on how and whether to issue the EFPs. If NMFS issues EFPs based on the September 2021 Council recommendations, a total of five vessels could be allowed to fish with midwater snap gear, and one vessel with NSBG, inside the U.S. EEZ. Vessels fishing under an EFP would be subject to existing regulations, including measures to mitigate interactions with protected species.
NMFS will consider all public comments submitted in response to this
Court Services and Offender Supervision Agency.
Notice of a new system of records.
Pursuant to the provisions of the Privacy Act of 1974, as amended, the Pretrial Services Agency for the District of Columbia (an independent entity established within the Court Services and Offender Supervision Agency (hereafter “CSOSA” or “Agency”)) is issuing a public notice of its intent to create the Pretrial Services Agency for the District of Columbia Privacy Act system of records, the “Employee Religious Exception Request Information System.” This system of records maintains personal religious information collected in response to religious accommodation requests for religious exception from the federally mandated vaccination requirement in the context of a public health emergency or similar health and safety incident, such as a pandemic, epidemic, natural disaster or national or regional
This new system will be effective upon publication. New or modified routine uses will be effective February 10, 2022. Submit comments on or before February 10, 2022.
You may send comments identified any of the following methods:
•
•
•
Sheila Stokes, Senior Agency Official for Privacy, 800 North Capitol Street NW, 7th Floor, Washington, DC 20002,
On September 9, 2021, the President issued Executive 14043,
PSA will collect religious accommodation requests for PSA staff (including employees, detailees, contractors, consultants, interns, and volunteers). Information will be collected, maintained, and disclosed in accordance with applicable law, regulations, and statutes, including, but not limited to, the authorities referenced herein. This newly established system will be included in the PSA inventory of record systems.
The Privacy Act of 1974, as amended, embodies fair information practice principles in a statutory framework governing the means by which Federal agencies collect, maintain, use, and disseminate individuals' records. The Privacy Act applies to records about individuals that are maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifier particularly assigned to the individual. The Privacy Act defines an individual as a United States citizen or lawful permanent resident. Individuals may request access to their own records that are maintained in a system of records in the possession or under the control of PSA by complying with Privacy Act regulations at 43 CFR part 2, subpart K, and following the procedures outlined in the Records Access, Contesting Record, and Notification Procedures sections of this notice.
The Privacy Act requires all federal Executive Branch agencies to publish in the
You should be aware your entire comment including your personally identifiable information, such as your address, phone number, email address, or any other personal information in your comment, may be made publicly available at any time. While you may request to withhold your personally identifiable information from public review, we cannot guarantee we will be able to do so.
PSA, Employee Religious Exception Request Information System.
Unclassified.
This system is hosted in a facility maintained by the Court Services and Offender Supervision Agency at 800 North Capitol Street NW, 7th Floor, Washington, DC 20004.
The system is maintained by the Pretrial Services Agency for the District of Columbia Office of Information Technology located at 601 Indiana Avenue NW, Washington, DC 20004.
The authority to collect this information derives from 5 U.S.C. 8474, 5 U.S.C. 301, 42 U.S.C. 2000e
The primary purpose of the secured electronic file repository is to collect, maintain, use, and—to the extent appropriate and necessary—disseminate employee religious exception request information collected by the Agency in
Individuals covered include but are not limited to PSA employees, detailees, contractors, consultants, interns, applicants, and volunteers.
The employee religious exception request information and records may contain some or all of the following records: Religious accommodation requests, including Request for a Religious Exception to the COVID-19 Vaccination Requirement form, notes, religious affiliation, or records made during consideration of requests, and decisions on requests. These records may contain general personal data, including but not limited to the employee's, detailee's, contractor's, consultant's, intern's, applicant's or volunteer's name, date of birth, religion, alias, home address, telephone number, age, and email address, telephone number, job title, email address, work address, and program office to which the employee is assigned.
Records in this system are obtained directly from the employee, detailee, contractor, consultant, intern, applicant, and volunteer, therefore, the accuracy is ensured by collecting the information from the source who may be required to certify under penalty of perjury that the information is true and accurate to the best of their knowledge.
In addition to those disclosures generally permitted under 5 U.S.C. 552a (b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside PSA as a routine use pursuant to 5 U.S.C. 552a (b)(3) as follows:
A. To the appropriate Federal, State, or local agency responsible for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, or order, where alone or in conjunction with other information, a violation or potential violation of a civil or criminal law or regulation is indicated.
B. To a Member of Congress or his or her staff on behalf of and at the request of the individual who is the subject of the record.
C. To another Federal agency or a party in litigation before a court or in an administrative proceeding being conducted by a Federal agency, when the Government is a party to the judicial or administrative proceeding, and such information is the subject of a court order directing disclosure or deemed by PSA to be relevant and necessary to the litigation.
D. To the National Archives and Records Administration in records management and inspections.
E. By PSA, in the production of summary descriptive statistics and analytical studies in support of the function for which the records are collected and maintained, or for related workforce studies. While published statistics and studies do not contain individual identifiers, in some instances, the selection of elements of data included in the study may be structured in such a way as to make the data individually identifiable by inference.
F. To disclose information to the Department of Justice or in a proceeding before a court, adjudicative body, or other administrative body before which CSOSA is authorized to appear, when:
1. PSA, or any component thereof; or
2. Any employee of PSA in his or her official capacity; or
3. Any employee of PSA in his or her individual capacity where the Department of Justice or PSA has agreed to represent the employee; or the United States, when PSA determines that litigation is likely to affect PSA or any of its components, is a party to litigation or has an interest in such litigation, and the use of such records by the Department of Justice or PSA is deemed by PSA to be relevant and necessary to the litigation.
G. To disclose information to officials of the Merit Systems Protection Board or the Office of the Special Counsel, when requested in connection with appeals, special studies of the civil service and other merit systems, review of OPM rules and regulations, investigations of alleged or possible prohibited personnel practices, and such other functions as promulgated in 5 U.S.C. 1205 and 1206, or as may be authorized by law.
H. To disclose information to the U.S. Equal Employment Opportunity Commission (“EEOC”) when requested in connection with investigations into alleged or possible discrimination practices in the Federal sector, examination of Federal affirmative employment programs, compliance by Federal agencies with the Uniform Guidelines of Employee Selection Procedures, or other functions vested in the Commission.
I. To disclose information to the Federal Labor Relations Authority or its General Counsel when requested in connection with investigations of allegations of unfair labor practices of matters before the Federal Service Impasses Panel.
J. To authorized contractors, vendors, grantees, or volunteers performing or working on a contract, service, grant, cooperative agreement, or job for PSA or the Federal government that is in the performance of an official Federal duty relative to which the information is deemed relevant.
K. To an appeal, grievance, hearing, or complaints examiner; an equal opportunity investigator, arbitrator, or mediator; and an exclusive representative or other person authorized to investigate or settle a grievance, complaint, or appeal filed by an individual who is the subject of the record.
L. For Data Breach and Mitigation Response to provide information to appropriate agencies, entities, and persons when;
(1) PSA suspects or has confirmed that there has been a breach of the system of records; (2) PSA has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, PSA (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with PSA's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
M. To provide information to another Federal agency or Federal entity, when PSA determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach, or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs and operations), the Federal Government, or
None.
Records in this system of records are stored electronically. Electronic records are stored on CSOSA's secure network or cloud-based software using the Federal Risk and Authorization Management Program (FedRAMP) approved platform.
Information covered by this system of records notice may be retrieved by the name of the individual.
PSA will work as may be necessary with the National Archives and Records Administration (NARA) to draft and secure approval of a records disposition schedule to cover the records described in this SORN, to the extent records pertaining to religious accommodation have not already been scheduled. Until any such records disposition schedule is approved by NARA, PSA will maintain, and not destroy, these records.
Records are protected from unauthorized access and improper use through administrative, technical, and physical security measures. Administrative safeguards within PSA include annual information security, privacy and record management training that are in place to ensure the records are not accessed, used or disclosed in an unauthorized manner. Technical security safeguards within PSA include restrictions on computer access to authorized individuals who have a legitimate need to know the information; required use of strong passwords that are frequently changed; multi-factor authentication for remote access and access to many CSOSA network components; use of encryption for certain data types and transfers; firewalls and intrusion detection applications; and regular review of security procedures and best practices to enhance security. Physical safeguards include restrictions on building access to authorized individuals, security guard service, maintenance of records in lockable offices and filing cabinets.
Individuals requesting access to their individual records should send a signed, written inquiry to the System Manager identified above.
Individuals contesting the content of records about themselves contained in this system of records should follow the Notification Procedure below.
Individuals requesting notification of the existence of records on themselves or requesting access to their individual records must send a signed, written inquiry to Sheila Stokes, Senior Agency Official for Privacy, 800 North Capitol Street NW, 7th Floor, Washington, DC 20002,
None.
None.
Court Services and Offender Supervision Agency.
Notice of a new system of records.
Pursuant to the provisions of the Privacy Act of 1974, as amended, Court Services and Offender Supervision Agency (hereafter “CSOSA” or “Agency”) is issuing a public notice of its intent to create the Court Services and Offender Supervision Agency Privacy Act system of records, “Personal Health and Religious Information.” This system of records maintains personal health and religious information collected in response to reasonable accommodation requests for disability (or medical) or religious exception; a public health emergency or similar health and safety incident, such as a pandemic, epidemic, or man-made emergency; and/or any other lawful collection of health-related information or data that is necessary to ensure a safe and healthy environment for individuals who are occupying CSOSA facilities, attending CSOSA-sponsored events, or otherwise engaged in official business on behalf of the Agency, including but not limited to Executive Order 12564, Drug Free Federal Workplace (Sept. 15, 1986), Occupational Safety and Health Administration (OSHA) compliance, Office of Workers' Compensation Programs (OWCP) claims, leave administration, disability retirement, medically-related decisions such as fitness-for-duty decisions, and health and wellness programs. The system of records will assist the Agency in the collection, storing, dissemination, and disposal of personal health and religious information collected and maintained by the Agency.
This new system will be effective upon publication. New or modified routine uses will be effective February 10, 2022. Submit comments on or before February 10, 2022.
You may send comments by any of the following methods:
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Sheila Stokes, Senior Agency Official for Privacy, 800 North Capitol Street NW, 7th Floor, Washington, DC 20002,
CSOSA maintains the “Personal Health and Religious Information” system of records. CSOSA is committed to providing all staff (political appointees, employees, detailees, contractors, consultants, interns, applicants, and volunteers), visitors, and occupants of its facilities with a safe and healthy environment. To ensure and maintain the safety of all occupants during standard operations and public health emergencies or similar health and safety incidents, such as a pandemic, epidemic, or man-made emergency, CSOSA may develop and institute additional safety measures that
CSOSA will collect reasonable accommodation requests for disability (or medical) for CSOSA and the PSA staff (including political appointees, employees, applicants, detailees, contractors, consultants, interns, and volunteers) and religious exceptions for CSOSA staff (including political appointees, employees, detailees, contractors, consultants, interns, applicants, and volunteers).
CSOSA is also committed to complying with the law, rules, and regulations associated with collecting personal health information related to (including but not limited to) Executive Order 12564, Drug Free Federal Workplace (Sept. 15, 1986), Occupational Safety and Health Administration (OSHA) compliance, Office of Workers' Compensation Programs (OWCP) claims, leave administration, disability retirement, medically-related decisions such as fitness-for-duty decisions, and health and wellness programs.
Information will be collected, maintained, and disclosed in accordance with applicable law, regulations, and statutes, including, but not limited to, the Privacy Act of 1974, the Rehabilitation Act of 1973, the Genetic Information Nondiscrimination Act of 2008, Title VII of the Civil Rights Act of 1964, the Executive Order 14043,
The Privacy Act of 1974, as amended, embodies fair information practice principles in a statutory framework governing the means by which Federal agencies collect, maintain, use, and disseminate individuals' records. The Privacy Act applies to records about individuals that are maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. The Privacy Act defines an individual as a United States citizen or lawful permanent resident. Individuals may request access to their own records that are maintained in a system of records in the possession or under the control of CSOSA by complying with Privacy Act regulations at 43 CFR part 2, subpart K, and following the procedures outlined in the Records Access, Contesting Record, and Notification Procedures sections of this notice.
The Privacy Act requires each agency to publish in the
You should be aware your entire comment including your personally identifiable information, such as your address, phone number, email address, or any other personal information in your comment, may be made publicly available at any time. While you may request to withhold your personally identifiable information from public review, we cannot guarantee we will be able to do so.
CSOSA, Personal Health and Religious Information.
Unclassified.
This system is maintained by the Court Services and Offender Supervisor Agency at 800 North Capitol Street NW, 7th Floor, Washington, DC 20002.
The system manager is the Office of Information Technology located at 800 North Capitol Street, 6th Floor NW, Washington, DC 20002.
The authority to collect this information derives from section 501 of the Rehabilitation Act of 1973, as amended. The substantive standards of the Americans with Disabilities Act of 1990, as amended (42 U.S.C. 12101
The primary purpose of the system is to collect, maintain, use, and disseminate personal health and religious information collected by the Agency. Records in this system of records are maintained for a variety of purposes, which include the following:
(a) To ensure that records required to be retained on a long-term basis to meet the mandates of law, Executive Order, or regulations (
(b) To comply with the Rehabilitation Action of 1973, as amended and Title VII of the Civil Rights Act of 1964 in processing reasonable accommodation requests based on disability (medical) or religious exception;
(c) To comply with Executive Order 14043,
(d) To comply with Executive Order 12564,
(e) To comply with the Occupational Safety and Health Administration (OSHA) laws, rules, regulations, and associated requirements related to employee's reporting of on-the-job injuries and/or unhealthy or unsafe working conditions, including the reporting of such conditions to OSHA and actions taken by that agency and to provide a method for evaluating quality of health care rendered and job-health-protection including engineering protection provided, protective equipment worn, workplace monitoring, and medical exam monitoring required by OSHA or by good practice.
(f) To comply with the law, rules, regulations, and associated requirements related to claims filed the U.S. Department of Labor's Office of Workers' Compensation Programs (OWCP);
(g) To comply with the laws, rules, regulations, and associated requirements related to disability retirement claims, leave administration (including but not limited to sick leave, extended sick leave, the Voluntary Annual Leave Program, Family Medical Leave Act (FMLA), or COVID-related leave), and/or to ensure that all relevant, necessary, accurate, and timely data are available to support any medically-related employment decisions affecting the subject of the records (
(h) To enable evaluation of the effectiveness of employee health and wellness programs.
The system enables CSOSA to electronically log, track, and manage personal health and religious information.
Individuals covered include but are not limited to CSOSA and PSA political appointees, employees, detailees, contractors, consultants, interns, applicants, and volunteers, or any family member, health professional, or other person making a request as a representative of the same.
The personal health and information records may contain some or all of the following records: Reasonable accommodation requests, including medical records, notes, religious affiliation, or records made during consideration of requests, and decisions on requests. These records may contain general personal data, including but not limited to the political appointee's, employee's, detailee's, contractor's, consultant's, intern's, applicant's, and volunteer's name, date of birth, social security number, religion, maiden name, place of birth, financial information, alias, home address, medical information, gender, telephone number, military service, age, email address, physical characteristics, race/ethnicity, and/or education. These records may also contain work-related data, including but not limited to occupation, telephone number, salary, job title, email address, work history, work address, business associates, and/or program office to which the employee is assigned. Additional records maintained in this system may include:
a. Medical records, forms, and reports completed or obtained when an individual applies for a Federal job and is subsequently employed;
b. Medical records, forms, and reports completed during employment as a condition of employment, either by the employing agency or by another agency, State or local government entity, or a private sector entity under contract to the employing agency;
c. Records pertaining and resulting from the testing of the employee for use of illegal drugs under Executive Order 12564. Such records may be retained by the agency (
d. Reports of on-the-job injuries and medical records, forms, and reports generated as a result of the filing of a claim for Workers' Compensation, whether the claim is accepted or not. (The official OWCP claim file is not covered by this system; rather, it is part of the Department of Labor's Office of Workers' Compensation Program (OWCP) system of records.)
e. All other medical records, forms, and reports created on an employee during his/her period of employment, including any retained on a temporary basis (
f. Records resulting from participation in agency-sponsored health promotion and wellness activities, including health risk appraisals, biometric testing, health coaching, disease management, behavioral management, preventive services, fitness programs, and any other activities that could be considered part of a comprehensive worksite health and wellness program.
Records in this system are obtained directly from the political appointee, employee, detailee, contractor, consultant, intern, applicant, and volunteer, or any family member, health professional, or other person making such a request as a representative of the same; therefore, the accuracy is ensured by collecting the information from the source who may be required to certify under penalty of perjury that the information is true and accurate to the best of their knowledge.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside CSOSA as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To Members of Congress or their staff on behalf of and at the request of the individuals who is the subject of the record or at the request of or on behalf of their constituents.
B. To another Federal agency or a party in litigation before a court or in an administrative proceeding being conducted by a Federal agency, when the Government is a party to the judicial or administrative proceeding, and such information is the subject of a court order directing disclosure or deemed by CSOSA to be relevant and necessary to the litigation.
C. At the initiative of CSOSA, to a law enforcement agency under the control of the United States for investigation or prosecution where a record indicates a violation or suspected violation of law.
D. By the National Archives and Records Administration (NARA) in records management and inspections under the authority of 44 U.S.C. 2904 and 2906.
E. To disclose information to the Department of Justice or in a proceeding before a court, adjudicative body, or other administrative body before which CSOSA is authorized to appear when:
(1) CSOSA, or any component thereof; or
(2) Any employee of CSOSA in his or her official capacity; or
(3) Any employee of CSOSA in his or her individual capacity where the Department of Justice or CSOSA has agreed to represent the employee; or
(4) Any employee of CSOSA in his or her individual capacity where CSOSA has agreed to represent the employee; or
(5) The United States, where the CSOSA determines that litigation is likely to affect the agency or any of its components, is a party to litigation or has an interest in such litigation, and the use of such records by the Department of Justice or CSOSA is deemed by CSOSA to be relevant and necessary to the litigation.
F. To disclose information to officials of the Merit Systems Protection Board or the Office of the Special Counsel, when requested in connection with appeals, special studies of the civil service and other merit systems, review of OPM rules and regulations, investigations of alleged or possible prohibited personnel practices, and such other functions as promulgated in 5 U.S.C. 1205 and 1206, or as may be authorized by law.
G. To disclose information to the U.S. Equal Employment Opportunity Commission when requested in connection with investigations into alleged or possible discrimination practices in the Federal sector, examination of Federal affirmative employment programs, compliance by Federal agencies with the Uniform Guidelines of Employee Selection Procedures, or other functions vested in the Commission.
H. To disclose information to the Federal Labor Relations Authority or its General Counsel when requested in connection with investigations of allegations of unfair labor practices of matters before the Federal Service Impasses Panel.
I. To disclose information to the Office of Management and Budget at any stage of the legislative coordination and clearance process in connection with private relief legislation as set forth in OMB circular No. A-19.
J. To authorized contractors, vendors, grantees, or volunteers performing or working on a contract, service, grant, cooperative agreement, or job for CSOSA or the Federal government that is in the performance of a Federal duty to which the information is deemed relevant.
K. To disclose to a requesting Federal agency, information in connection with the hiring, retention, separation, or retirement of an employee; the issuance of a security clearance; the reporting of an investigation of an employee; the letting of a contract; the classification of a job; or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that CSOSA determines that the information is relevant and necessary to the requesting party's decision on the matter.
L. To an appeal, grievance, hearing, or complaints examiner; an equal opportunity investigator, arbitrator, or mediator; and an exclusive representative or other person authorized to investigate or settle a grievance, complaint, or appeal filed by an individual who is the subject of the record.
M. For Data Breach and Mitigation Response to provide information to appropriate agencies, entities, and persons when;
(1) CSOSA suspects or has confirmed that there has been a breach of the system of records; (2) CSOSA has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, CSOSA (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with CSOSA's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
N. To provide information to another Federal agency or Federal entity, when CSOSA determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach, or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
None.
Records in this system of records are stored electronically or on paper in secure facilities. Electronic records are stored on CSOSA's secure network or cloud-based software using the Federal Risk and Authorization Management Program (FedRAMP) approved platform.
Information covered by this system of records notice may be retrieved by the name of the individual.
a.
b.
c.
d.
e.
f.
g.
h.
i.
Records are protected from unauthorized access and improper use
Individuals requesting access to their individual records should send a signed, written inquiry to the System Manager identified above.
Individuals contesting the content of records about themselves contained in this system of records should follow the Notification Procedure below.
Individuals requesting notification of the existence of records on themselves or requesting access to their individual records must send a signed, written inquiry to Sheila Stokes, Senior Agency Official for Privacy, 800 North Capitol Street NW, 7th Floor, Washington, DC 20002,
None.
None.
National Center for Education Statistics, Institute of Education Sciences, Department of Education.
Notice.
The Secretary announces dates for State educational agencies (SEAs) to submit expenditure and revenue data and average daily attendance statistics on ED Form 2447 (the National Public Education Financial Survey (NPEFS)) for fiscal year (FY) 2021, revisions to those reports, and revisions to reports for previous fiscal years. The Secretary sets these dates to ensure that data are available to serve as the basis for timely distribution of Federal funds. The U.S. Census Bureau is the data collection agent for this request of the Department of Education's National Center for Education Statistics (NCES). The data will be published by NCES and will be used by the Secretary in the calculation of allocations for FY 2023 appropriated funds.
SEAs can begin submitting data for FY 2021 and revisions to previously submitted data for FY 2020 on Monday, January 31, 2022. SEAs are urged to submit accurate and complete data by Friday, March 25, 2022, to facilitate timely processing. The deadline for the final submission of all data, including any revisions to previously submitted data for FY 2020 and FY 2021, is Monday, August 15, 2022. Any resubmissions of FY 2020 or FY 2021 data by SEAs in response to requests for clarification, reconciliation, or other inquiries by NCES or the Census Bureau must be completed as soon as possible, but no later than Tuesday, September 6, 2022. All outstanding data issues must be reconciled or resolved by the SEAs, NCES, and the Census Bureau as soon as possible, but no later than September 6, 2022.
SEAs may mail ED Form 2447 to: U.S. Census Bureau, ATTENTION: Economic Reimbursable Surveys Division, 4600 Silver Hill Road, Suitland, MD 20746.
If an SEA's submission is received by the Census Bureau after August 15, 2022, the SEA must show one of the following as proof that the submission was mailed on or before that date:
1. A legibly dated U.S. Postal Service postmark.
2. A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
3. A dated shipping label, invoice, or receipt from a commercial carrier.
4. Any other proof of mailing acceptable to the Secretary.
If the SEA mails ED Form 2447 through the U.S. Postal Service, the Secretary does not accept either of the following as proof of mailing:
1. A private metered postmark.
2. A mail receipt that is not dated by the U.S. Postal Service.
Stephen Q. Cornman, Senior Survey Director, Financial Surveys, National Center for Education Statistics, Institute of Education Sciences, U.S. Department of Education, 550 12th Street SW, Washington, DC 20202. Telephone: (202) 245-7753. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service, toll free, at 1-800-877-8339.
Under section 153(a)(1)(I) of the Education Sciences Reform Act of 2002, 20 U.S.C. 9543(a)(1)(I), which authorizes NCES to gather data on the financing and management of education, NCES collects data annually from SEAs through ED Form 2447. The report from SEAs includes attendance, revenue, and expenditure data from which NCES determines a State's “average per-pupil expenditure” (SPPE) for elementary and secondary education, as defined in section 8101(2) of the Elementary and
In addition to using the SPPE data as general information on the financing of elementary and secondary education, the Secretary uses these data directly in calculating allocations for certain formula grant programs, including, but not limited to, title I, part A, of the ESEA, Impact Aid, and Indian Education programs. Other programs, such as the Education for Homeless Children and Youth program under title VII of the McKinney-Vento Homeless Assistance Act, and the Student Support and Academic Enrichment Grants under title IV, part A of the ESEA make use of SPPE data indirectly because their formulas are based, in whole or in part, on State title I, part A, allocations.
In January 2022, the Census Bureau, acting as the data collection agent for NCES, will email ED Form 2447 to SEAs, with instructions, and will request that SEAs commence submitting FY 2021 data to the Census Bureau on Monday, January 31, 2022. SEAs are urged to submit accurate and complete data by Friday, March 25, 2022, to facilitate timely processing.
Submissions by SEAs to the Census Bureau will be analyzed for accuracy and returned to each SEA for verification. SEAs must submit all data, including any revisions to FY 2020 and FY 2021 data, to the Census Bureau no later than Monday, August 15, 2022. Any resubmissions of FY 2020 or FY 2021 data by SEAs in response to requests for clarification or reconciliation or other inquiries by NCES or the Census Bureau must be completed by Tuesday, September 6, 2022. Between August 15, 2022, and September 6, 2022, SEAs may also, on their own initiative, resubmit data to resolve issues not addressed in their NPEFS data submitted by August 15, 2022. All outstanding data issues must be reconciled or resolved by the SEAs, NCES, and the Census Bureau as soon as possible, but no later than September 6, 2022.
In order to facilitate timely submission of data, the Census Bureau will send reminder notices to SEAs in June and July of 2022.
Having accurate, consistent, and timely information is critical to an efficient and fair Department of Education (Department) allocation process and to the NCES statistical process. The Department establishes Monday, August 15, 2022, as the date by which SEAs must submit data using either the interactive survey form on the NPEFS data collection website at
Any resubmissions of FY 2020 or FY 2021 data by SEAs in response to requests for clarification or reconciliation or other inquiries by NCES or the Census Bureau must be completed through the interactive survey form on the NPEFS data collection website or ED Form 2447 by Tuesday, September 6, 2022. If an SEA submits revised data after the September 6, 2022, deadline that result in a lower SPPE figure, the SEA's allocations may be adjusted downward, or the Department may direct the SEA to return funds.
You may also access documents of the Department published in the
Office of Environmental Management, Department of Energy.
Notice of open virtual meeting.
This notice announces an online virtual meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Oak Ridge. The Federal Advisory Committee Act requires that public notice of this online meeting be announced in the
Wednesday, February 9, 2022; 6:00 p.m.-7:30 p.m.
Online Virtual Meeting. To attend, please send an email to:
Melyssa P. Noe, Alternate Deputy Designated Federal Officer, U.S. Department of Energy (DOE), Oak Ridge Office of Environmental Management (OREM), P.O. Box 2001, EM-942, Oak Ridge, TN 37831; Phone (865) 241-3315; or E-Mail:
Federal Deposit Insurance Corporation.
Notice of monetary penalties 2022.
The Federal Deposit Insurance Corporation is providing notice of its maximum civil money penalties as adjusted for inflation.
The adjusted maximum amounts of civil money penalties in this notice are applicable to penalties assessed after January 15, 2022, for conduct occurring on or after November 2, 2015.
Graham N. Rehrig, Senior Attorney, Legal Division, (703) 314-3401,
This notice announces changes to the maximum amount of each civil money penalty (CMP) within the Federal Deposit Insurance Corporation's (FDIC) jurisdiction to administer to account for inflation under the Federal Civil Penalties Inflation Adjustment Act of 1990 (1990 Adjustment Act),
Agencies are required to publish their CMPs, adjusted under the multiplier provided by the OMB, by January 15 of the applicable year. Agencies, like the FDIC, that have codified the statutory formula for making the CMP adjustments may make annual inflation adjustments by providing notice in the
On December 15, 2021, the OMB issued guidance to affected agencies on implementing the required annual adjustment, which guidance included the relevant inflation multiplier.
The following charts provide the inflation-adjusted maximum CMP amounts for use after January 15, 2022—the effective date of the 2022 annual adjustments—under 12 CFR part 308, for conduct occurring on or after November 2, 2015:
Notice is given that a complaint has been filed with the Federal Maritime Commission (Commission) by CCMA, LLC, hereinafter “Complainant,” against Safmarine, Inc. and Ports America Chesapeake, LLC, hereinafter “Respondents.” Complainant is a Delaware corporation that purchased containers of high carbon ferro for shipment to Baltimore. Complainant alleges that Respondent Safmarine, Inc. is a Delaware corporation and common carrier, and that Respondent Ports America Chesapeake, LLC is a Delaware corporation and a marine terminal operator.
Complainant alleges that Respondents violated 46 U.S.C. 41102(c) and 46 CFR 545.4 and 545.5 with regard to assessing demurrage charges against shipments that are subject to a governmental hold for examination by Customs, and therefore, unavailable for pick-up. The full text of the complaint can be found in the Commission's Electronic Reading Room at
This proceeding has been assigned to Office of Administrative Law Judges. The initial decision of the presiding office in this proceeding shall be issued by January 5, 2023, and the final decision of the Commission shall be issued by July 19, 2023.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, and the Office of Management and Budget (OMB) regulations, DoD, GSA, and NASA invite the public to comment on an extension concerning certain Federal Acquisition Regulation (FAR) labor requirements. DoD, GSA, and NASA invite comments on: Whether the proposed collection of information is necessary for the proper performance of the functions of Federal Government acquisitions, including whether the information will have practical utility; the accuracy of the estimate of the burden of the proposed information collection; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology. OMB has approved this information collection for use through March 31, 2022. DoD, GSA, and NASA propose that OMB extend its approval for use for three additional years beyond the current expiration date.
DoD, GSA, and NASA will consider all comments received by March 14, 2022.
DoD, GSA, and NASA invite interested persons to submit comments on this collection through
Jennifer Hawes, Procurement Analyst, at telephone 202-969-7386, or
9000-0066, Certain Federal Acquisition Regulation Part 22 Labor Requirements
This clearance covers the information that offerors and contractors must submit to comply with the following FAR requirements:
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Centers for Medicare & Medicaid Services, Health and Human Services (HHS).
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by February 10, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of the following:
1. Access CMS' website address at:
William Parham at (410) 786-4669.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
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This approval request is for CMS to receive electronic applications for Medicare-Funded GME Residency Positions submitted in accordance with Section 126 of the Consolidated Appropriations Act, 2021. The electronic applications will be submitted by the applicants in CMS' new Medicare Electronic Application Request Information System
Centers for Medicare & Medicaid Services, Health and Human Services (HHS).
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by March 14, 2022.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' website address at
William N. Parham at (410) 786-4669.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
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Children's Bureau; Administration for Children and Families; HHS.
Request for public comment.
The Children's Bureau, Administration for Children and Families (ACF), U.S. Department of Health and Human Services (HHS), is proposing to collect data for a new descriptive study, Judicial, Court, and Attorney Measures of Performance (JCAMP).
You can obtain copies of the proposed collection of information and submit comments by emailing
The survey asks CIPs about their current capacity to collect specific data elements from the following six categories of measurement: (1) Legal and judicial context (
The JCAMP Pilot Site Debrief Form is a survey developed to be administered to CIP staff who have assisted with piloting of the performance measures. The survey asks participants about the challenges and successes in collecting pilot data for the measures, their confidence in collecting the data going forward, and suggestions for improving future efforts.
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of the draft guidance entitled “Notifying FDA of a Permanent Discontinuance or Interruption in Manufacturing of a Device Under Section 506J of the FD&C Act.” The Federal Food, Drug, and Cosmetic Act (FD&C Act) requires manufacturers to notify FDA of a permanent discontinuance in the manufacture of certain devices or an interruption in the manufacture of certain devices that is likely to lead to a meaningful disruption in supply of that device in the United States. This guidance is intended to assist manufacturers in providing timely, informative notifications about changes in the production of certain medical device products that will help prevent or mitigate shortages of such devices during or in advance of a public health emergency. FDA is issuing this guidance to implement amendments to the FD&C Act by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), as it relates to device shortages and potential device shortages during or in advance of a public health emergency. This draft guidance is not final nor is it in effect at this time.
Submit either electronic or written comments on the draft guidance by March 14, 2022 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:
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• 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:
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• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked, and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
An electronic copy of the guidance document is available for download from the internet. See the
Brittany Caldwell, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5556, Silver Spring, MD 20993-0002, 301-796-5900 or Stephen Ripley, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993, 240-402-7911.
On March 27, 2020, the CARES Act was signed into law. Section 3121 of the CARES Act amends the FD&C Act by adding section 506J to the statute. Section 506J of the FD&C Act (21 U.S.C. 356j) provides the Secretary of Health and Human Services with new authorities intended to help prevent or mitigate medical device shortages “during, or in advance of, a public health emergency declared by the Secretary under section 319 of the Public Health Service Act.”
FDA is issuing this guidance to clarify and make recommendations regarding who should notify FDA, what information to include in the notification, and how to notify FDA, during or in advance of a public health emergency, regardless of the type of public health emergency. During a specific public health emergency, FDA may issue additional supplemental information to this guidance, through FDA's website or a supplemental guidance, to assist manufacturers in determining whether a notification under section 506J of the FD&C Act (hereafter referred to as a “506J notification”) is required during a public health emergency.
FDA is issuing this draft guidance to assist stakeholders in the Agency's implementation of section 506J(a) of the FD&C Act outside of the COVID-19 Public Health Emergency. This draft guidance is not intended to supersede the COVID-19 Public Health Emergency Guidance, “Notifying CDRH of a Permanent Discontinuance or Interruption in Manufacturing of a Device under 506J of the FD&C Act during the COVID-19 Public Health Emergency” available at
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 “Notifying FDA of a Permanent Discontinuance or Interruption in Manufacturing of a Device Under Section 506J of the FD&C Act”. 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.
Persons interested in obtaining a copy of the draft guidance may do so by downloading an electronic copy from the internet. A search capability for all
This draft guidance refers to previously approved collections of information. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information in section 506J of the FD&C Act have been approved by OMB as listed in the following table:
The Agency invites comments on the “Notifying FDA of a Permanent Discontinuance or Interruption in Manufacturing of a Device Under Section 506J of the FD&C Act” draft guidance, in general, and on the following questions, in particular:
• Section 506J of the FD&C Act requires notifications “during, or in advance of” a public health emergency. Does the draft guidance provide sufficient clarity regarding what FDA considers to be “in advance of a public health emergency”? Is there additional information that you believe would be helpful? If so, what?
• Are there other situations or circumstances that could lead to a situation that could be considered to be “in advance of a public health emergency”?
• FDA has proposed providing supplemental information during specific public health emergencies, which is intended to contain information specific to that public health emergency to assist manufacturers in providing notifications. Is there specific information that you believe should be conveyed in such supplements?
• Are there circumstances where it is unclear whether you should notify FDA? How could FDA provide clarity?
• Should FDA notify stakeholders when an event is considered to be “in advance of a public health emergency”, and if so, how should FDA best do so?
• FDA recommends that manufacturers provide updates to notifications every two weeks unless otherwise indicated based on the nature of the situation, including the expected timeline for recovery, even if the status remains unchanged. Please provide feedback on this proposed frequency.
• How can FDA best disseminate supplemental information during or in advance of a public health emergency to manufacturers and other stakeholders?
• How can FDA keep all stakeholders, including healthcare providers and patients, better informed regarding shortages during or in advance of a public health emergency?
• In the draft guidance document, Appendix A displays an example of supplemental information for an epidemic or pandemic that FDA believes would be helpful to assess the overall state of the market and help inform potential mitigations. What additional information might be helpful for other public health emergencies?
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA, Agency, or we) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit written comments (including recommendations) on the collection of information by February 10, 2022.
To ensure that comments on the information collection are received, OMB recommends that written comments be submitted to
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-45, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
This information collection supports Agency implementation of provisions in section 582 of the Federal Food, Drug, and Cosmetic Act (FD&C Act) regarding the pharmaceutical distribution supply chain. Section 202 of the Drug Supply Chain Security Act (DSCSA) (Title II of Pub. L. 113-54), added sections 581 and 582 to the FD&C Act (21 U.S.C. 360eee and 360eee-1) and governs the tracing of certain pharmaceutical drugs, outlining critical steps for an electronic interoperable system to identify these
To strengthen FDA's ability to help protect consumers from exposure to drugs that may be counterfeit, stolen, contaminated, or otherwise harmful, section 203 of the DSCSA added enhanced security provisions to section 582 of the FD&C Act. The terms and definitions established in section 581 of the FD&C Act are applicable to provisions set forth in section 582, which require the capture, exchange, and verification of pharmaceutical drug product transaction information, transaction history, and transaction statements by respondents. Section 582 of the FD&C Act also requires that certain notifications are made by respondents to FDA and provides for respondent notification disclosures applicable to suspect and illegitimate product data elements. The recordkeeping and notification provisions included in section 582 also provide for inspection of records by FDA and establish minimum retention schedules. Finally, section 582 of the FD&C Act provides for the establishment of waivers, exceptions, and exemptions from any of the requirements.
To assist respondents with reporting requirements, we developed Form FDA 3911 entitled Drug Notification and the corresponding instructional document “INSTRUCTIONS FOR COMPLETION OF FORM FDA 3911—DRUG NOTIFICATION.” Form FDA 3911 and the instructions are available from, and may be completed using, our website at
We also developed the draft guidance document entitled “Waivers, Exceptions, and Exemptions from the Requirements of Section 582 of the Federal Food, Drug, and Cosmetic Act” (May 2018; available at
Respondents to the information collection are manufacturers, wholesale distributors (“wholesalers”), dispensers, and repackagers, as defined in section 581 of the FD&C Act, of pharmaceutical drug products.
In the
To clarify however, this information collection request is intended to account for the burden respondents may incur from completing and submitting notifications as required by section 582 of the FD&C Act using Form FDA 3911, consistent with the corresponding instructions, as well as the burden that may be attributable to information collection associated with the required disclosures/notifications to trading partners and discussed in the guidance document entitled “Drug Supply Chain Security Act Implementation: Identification of Suspect Product and Notification.” The information collection request is also intended to account for the burden that respondents may incur associated with requesting waivers, exceptions, and exemptions provided for in section 582(a)(3) of the FD&C Act. To enable respondents to make such requests, we are currently utilizing information collection recommendations discussed in the draft guidance document entitled “Waivers, Exceptions, and Exemptions from the Requirements of Section 582 of the Federal Food, Drug, and Cosmetic Act.” Specifically, the draft guidance instructs respondents on submitting requests and identifies responsible Agency review components.
The comments also provided feedback on the accuracy of our burden estimates. In response to these comments, we have revised our estimate of the burden of the information collection as follows:
We have reorganized the information collection by respondent activity and clarified where information collection elements are discussed in the respective guidance documents. Based on illegitimate product notifications FDA has already received, we previously estimated a total of 250 respondents. However, we have considered industry feedback indicating that more notifications may be submitted based on stakeholder understanding of FDA's recent clarification of stolen product in the “Definitions of Suspect Product and Illegitimate Product for Verification Obligations Under the Drug Supply Chain Security Act” draft guidance (June 2021; available at
In response to industry feedback, we have increased our estimate of the average time per response from 1 hour to 8 hours to more accurately reflect the burden respondents may incur in satisfying the information collection. We have otherwise retained the average burden per response for activities associated with consultations and waiver/exception/exemption requests. Finally, also based on public comment and industry feedback, we have increased our estimate of the average number of disclosures/notifications per respondent, as well as our assumption of the average time necessary for each disclosure notification, for an increase from 66,070 to 1,860,000 hours annually.
As a result of these adjustments, our estimated burden for the information collection reflects a cumulative increase since the last OMB review and approval. We attribute this increase to a more recent evaluation of the information collection and informal communications with industry and other interested stakeholders regarding burden estimates.
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice.
In compliance with the requirement for opportunity for public comment on proposed data collection projects of the Paperwork Reduction Act of 1995, HRSA announces plans to submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). Prior to submitting the ICR to OMB, HRSA seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
Comments on this ICR should be received no later than March 14, 2022.
Submit your comments to
To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, email
When submitting comments or requesting information, please include the information collection request title for reference.
The HRSA Telehealth Resource Centers:
The TRCs share expertise through individual consults, training, webinars, conference presentations, and the web.
The instrument was developed with the following four goals in mind:
1. Improving access to needed services,
2. Reducing rural and underserved population practitioner isolation,
3. Improving health system productivity and efficiency, and
4. Improving patient outcomes.
The TRCs currently report on existing performance data elements using PIMS. The performance measures are designed to assess how the TRC program is meeting its goals to:
• Expand the availability of telehealth services in underserved communities;
• Improve the quality, efficiency, and effectiveness of telehealth services;
• Promote knowledge exchange and dissemination about efficient and effective telehealth practices and technology; and
• Establish sustainable TA centers providing quality, unbiased TA for the development and expansion of effective and efficient telehealth services in underserved communities.
Additionally, the PIMS tool allows OAT to:
• Determine the value added from the TRC Cooperative Agreement;
• Justify budget requests;
• Collect uniform, consistent data which enables OAT to monitor programs;
• Provide guidance to grantees on important indicators to track over time for their own internal program management;
• Measure performance relative to the mission of OAT/HRSA as well as individual goals and objectives of the program;
• Identify topics of interest for future special studies; and
• Identify changes in health care needs within rural and underserved communities, allowing programs to shift focus in order to meet those needs.
HRSA specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Office of the Secretary, HHS.
Notice.
In compliance with the requirement of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed collection for public comment. Since March 29, 2020, the U.S. government has been collecting data from hospitals and states to understand health care system stress, capacity, capabilities, and the number of patients hospitalized due to COVID-19. As the COVID-19 response continues to evolve, Federal needs for data are also evolving. The data elements within the collection are being altered to best meet the needs of the current response to COVID-19. This alteration includes the addition of data elements collecting more detailed information on pediatric hospitalizations, which will help to better understand pediatric hospital surge as well as inform epidemiologic surveillance to inform potential response actions. The alteration also includes making various data elements inactive for federal data collection based on current and anticipated future federal response needs, as well as reduce burden where possible. While inactive, these data elements will still be considered as remaining part of the data collection to allow jurisdictions to continue collecting the information if it is needed for their unique response needs.
Comments on the ICR must be received on or before February 10, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
Sherrette Funn,
This
Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Arthritis and Musculoskeletal and Skin Diseases Advisory Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Advisory Environmental Health Sciences Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Advisory Mental Health Council.
The meeting will be held as a virtual meeting and is open to the public. Individuals who plan to view the virtual meeting and need special assistance or other reasonable accommodations to view the meeting, should notify the Contact Person listed below in advance of the meeting. The open session will be videocast and can be accessed from the NIH Videocasting and Podcasting website (
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and/or contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications and/or contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the Institute's/Center's home page:
Notice is hereby given of a change in the meeting of the National Advisory Child Health and Human Development Council, January 11, 2022, 12:00 p.m. to 5:00 p.m.; January 12, 2022, 12:00 to 5:00 p.m., NIH, Building 31, 31 Center Drive, C-Wing, Conference Room 6, Bethesda, MD 20894 which was published in the
The open session of the meeting on January 12, 2022, 12:00 p.m. to 1:00 p.m. has been canceled. Closed session of the meeting will begin on January 12, 2022, 12:00 p.m. to 5:00 p.m.
Notice is hereby given of a change in the meeting of the National Cancer Institute Special Emphasis Panel, Translational and Basic Research Early Lesions (U54 and U24), March 02, 2022, 09:00 a.m. to March 03, 2022, 06:00 p.m., National Cancer Institute at Shady Grove, Room 7W108, 9609 Medical Center Drive, Rockville, Maryland 20850 which was published in the
This notice is being amended to change the meeting date from March 2-3, 2022 to March 15-16, 2022. The meeting times and location will stay the same. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Heart, Lung, and Blood Advisory Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any member of the public interested in presenting oral comments to the committee may notify the Contact Person listed on this notice at least 10 days in advance of the meeting. Interested individuals and representatives of organizations may submit a letter of intent, a brief description of the organization represented, and a short description of the oral presentation. Only one representative of an organization may be allowed to present oral comments and if accepted by the committee, presentations may be limited to five minutes. Both printed and electronic copies are requested for the record. In addition, any interested person may file written comments with the committee by forwarding their statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections
Coast Guard, DHS.
Thirty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995 the U.S. Coast Guard is forwarding an Information Collection Request (ICR), abstracted below, to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting an extension of its approval for the following collection of information: 1625-0032, Vessel Inspection Related Forms and Reporting Requirements; without change. Our ICR describes the information we seek to collect from the public. Review and comments by OIRA ensure we only impose paperwork burdens commensurate with our performance of duties.
You may submit comments to the Coast Guard and OIRA on or before February 10, 2022.
Comments to the Coast Guard should be submitted using the Federal eRulemaking Portal at
Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function.
A copy of the ICR is available through the docket on the internet at
A.L. Craig, Office of Privacy Management, telephone 202-475-3528, or fax 202-372-8405, for questions on these documents.
This notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. 3501
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. These comments will help OIRA determine whether to approve the ICR referred to in this Notice.
We encourage you to respond to this request by submitting comments and related materials. Comments to Coast Guard or OIRA must contain the OMB Control Number of the ICR. They must also contain the docket number of this request, [USCG-2021-0740], and must be received by February 10, 2022.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments to the Coast Guard will be posted without change to
This request provides a 30-day comment period required by OIRA. The Coast Guard published the 60-day notice (86 FR 54991, October 5, 2021) required by 44 U.S.C. 3506(c)(2). That notice elicited no comments. Accordingly, no changes have been made to the Collection.
Coast Guard, DHS.
Thirty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995 the U.S. Coast Guard is forwarding an Information Collection Request (ICR), abstracted below, to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting an extension of its approval for the following collection of information: 1625-0036, Plan Approval and Records for U.S. and Foreign Tank Vessels Carrying Oil in Bulk; without change. Our ICR describes the information we seek to collect from the public. Review and comments by OIRA ensure we only impose paperwork burdens commensurate with our performance of duties.
You may submit comments to the Coast Guard and OIRA on or before February 10, 2022.
Comments to the Coast Guard should be submitted using the Federal eRulemaking Portal at
Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function.
A copy of the ICR is available through the docket on the internet at
A.L. Craig, Office of Privacy Management, telephone 202-475-3528, or fax 202-372-8405, for questions on these documents.
This notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. 3501
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. These comments will help OIRA determine whether to approve the ICR referred to in this Notice.
We encourage you to respond to this request by submitting comments and related materials. Comments to Coast Guard or OIRA must contain the OMB Control Number of the ICR. They must also contain the docket number of this request, [USCG-2021-0741], and must be received by February 10, 2022.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments to the Coast Guard will be posted without change to
This request provides a 30-day comment period required by OIRA. The Coast Guard published the 60-day notice (86 FR 54993, October 5, 2021) required by 44 U.S.C. 3506(c)(2). That notice elicited no comments. Accordingly, no changes have been made to the Collection.
Cybersecurity and Infrastructure Security Agency (CISA), Department of Homeland Security (DHS).
Notice of Federal Advisory Committee Act (FACA) meeting; request for comments.
CISA is publishing this notice to announce the following President's National Security Telecommunications Advisory Committee (NSTAC) meeting. This meeting will be open to the public.
The meeting will be held via conference call. For access to the conference call bridge, information on services for individuals with disabilities, or to request special assistance, please email
•
•
A public comment period is scheduled to be held during the meeting from 2:25 p.m. to 2:35 p.m. ET. Speakers who wish to participate in the public comment period must email
Rachel Liang, 202-963-8300,
The NSTAC is established under the authority of Executive Order (E.O.) 12382, dated September 13, 1982, as amended by E.O. 13286, continued and amended under the authority of E.O. 14048, dated September 30, 2021. Notice of this meeting is given under FACA, 5 U.S.C. Appendix (Pub. L. 92-463). The NSTAC advises the President on matters related to national security and emergency preparedness (NS/EP) telecommunications and cybersecurity policy.
National Park Service, Interior.
Notice.
The National Park Service is soliciting electronic comments on the significance of properties nominated before January 1, 2022, for listing or related actions in the National Register of Historic Places.
Comments should be submitted electronically by January 26, 2022.
Comments are encouraged to be submitted electronically to
Sherry A. Frear, Chief, National Register of Historic Places/National Historic Landmarks Program, 1849 C Street NW, MS 7228, Washington, DC 20240,
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before January 1, 2022. Pursuant to Section 60.13 of 36 CFR part 60, comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Nominations submitted by State or Tribal Historic Preservation Officers:
Additional documentation has been received for the following resource:
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined that there is a violation of section 337 of the Tariff Act of 1930, as amended, in the above-captioned investigation. The Commission has issued a general exclusion order (“GEO”) barring entry of certain vacuum insulated flasks and components thereof that infringe the patents and the trademarks asserted in this investigation. The Commission has terminated this investigation.
Michael Liberman, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2392. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
On September 3, 2020, the Commission instituted this investigation under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (“section 337”), based on a complaint filed by Steel Technology LLC d/b/a Hydro Flask and Helen of Troy Limited (collectively, “Complainants” or “Hydro Flask”). 85 FR 55030-31 (Sept. 3, 2020). The complaint alleges a violation of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain vacuum insulated flasks and components thereof by reason of infringement of: (1) The sole claims of U.S. Design Patent Nos. D806,468 (“the D’468 patent”); D786,012 (“the D’012 patent”); and D799,320 (“the D’320 patent”), respectively; and (2) U.S. Trademark Registration Nos. 4,055,784 (“the ’784 trademark”); 5,295,365 (“the ’365 trademark”); 5,176,888 (“the ’888 trademark”); and 4,806,282 (“the ’282 trademark”). The complaint also alleges the existence of a domestic industry. The notice of investigation names numerous respondents: Cangnan Kaiyisi E-Commerce Technology Co., Ltd.; Shenzhen Huichengyuan Technology Co., Ltd.; Sinbada Impex Co., Ltd.; Yongkang Huiyun Commodity Co., Ltd.; Wuyi Loncin Bottle Co., Ltd.; Zhejiang Yuchuan Industry & Trade Co., Ltd.; Zhejiang Yongkang Unique Industry & Trade Co., Ltd.; Suzhou Prime Gifts Co., Ltd.; Hangzhou Yuehua Technology Co., Ltd.; Guangzhou Yawen Technology Co., Ltd.; Jinhua City Ruizhi E-Commerce Co., Ltd.; Wo Ma Te (Tianjin) International Trade Co., Ltd.; and Shenzhen City Yaxin General Machinery Co., Ltd. (collectively, the “Defaulting Respondents”); Eddie Bauer, LLC; PSEB Holdings, LLC; Dunhuang Group a.k.a. DHgate; Everich and Tomic Houseware Co., Ltd.; HydroFlaskPup; Yiwu Honglu Daily Necessities Co., Ltd.; and Yiwu Houju E-commerce Firm. The Commission's Office of Unfair Import Investigations (“OUII”) is also named as a party in this investigation.
Subsequently, the Commission permitted Hydro Flask to amend the complaint and notice of investigation to: (1) Assert the D’012 patent against additional infringing products; (2) incorporate into the complaint the information and additional paragraphs included in Complainants' Supplemental Letter to the Commission of August 18, 2020; and (3) correct the corporate names of four non-appearing respondents—Yiwu Houju E-Commerce Firm; Jinhua City Ruizhi E-Commerce Co., Ltd.; Wo Ma Te (Tianjin) International Trade Co., Ltd.; and
On April 14, 2021, the Commission found the Defaulting Respondents in default. Order No. 21 (Mar. 22, 2021),
On April 8, 2021, Hydro Flask filed a motion for summary determination of a violation of section 337 pursuant to Commission Rules 210.16(c)(2), 210.18 (19 CFR 210.16(c)(2), 210.18) to support its request for entry of a GEO with respect to all asserted patents and trademarks. On August 9, 2021, OUII filed a response in support of the motion.
On September 3, 2021, the presiding chief administrative law judge (“CALJ”) issued an initial determination (“ID”) granting in part Hydro Flask's motion for summary determination. The ID finds that Hydro Flask has shown by reliable, probative, and substantial evidence that a violation of section 337 has occurred with respect to the ’784, ’365, and ’888 trademarks, and the D’468, D’012, and D’320 patents, and that the domestic industry requirement is satisfied for the infringed trademarks and patents. The ID finds that a violation has been established with respect to ten out of thirteen defaulting respondents: Cangnan Kaiyisi E-Commerce Technology Co., Ltd.; Yongkang Huiyun Commodity Co., Ltd.; Wuyi Loncin Bottle Co., Ltd.; Zhejiang Yongkang Unique Industry & Trade Co., Ltd.; Suzhou Prime Gifts Co., Ltd.; Hangzhou Yuehua Technology Co., Ltd.; Guangzhou Yawen Technology Co., Ltd.; Jinhua City Ruizhi E-Commerce Co., Ltd.; Wo Ma Te (Tianjin) International Trade Co., Ltd.; and Shenzhen City Yaxin General Machinery Co., Ltd. The ID also finds that no violation has been established as to respondents Shenzhen Huichengyuan Technology Co., Ltd.; Sinbada Impex Co., Ltd.; and Zhejiang Yuchuan Industry & Trade Co., Ltd.
The ID contains the CALJ's recommended determination on remedy and bonding (“RD”). The RD recommends issuance of a GEO with respect to the asserted patents and trademarks. The RD does not recommend issuance of any cease and desist orders. No petitions for review were filed.
The Commission determined to review the subject ID in part.
On November 4, 2021, Complainants and OUII filed their opening written submissions on remedy, the public interest, and bonding. On November 12, 2021, OUII filed its responsive written submission. No other submissions were received by the Commission.
Having reviewed the submissions filed in response to the Commission request for briefing and the evidentiary record, the Commission has determined that the appropriate form of relief in this investigation is a GEO prohibiting the unlicensed importation of certain vacuum insulated flasks and components thereof that infringe the sole claims of the D’468, D’012, and D’320 patents and the ’784, ’365, and ’888 trademarks.
The Commission has further determined that the public interest factors enumerated in subsection (d)(1) (19 U.S.C. 1337(d)(1)) do not preclude issuance of the above-referenced remedial order. Finally, the Commission has determined that a bond in the amount of one hundred (100) percent of the entered value is required to permit temporary importation of the articles in question during the period of Presidential review (19 U.S.C. 1337(j)). The investigation is terminated.
The Commission's order and the record upon which it based its determination were delivered to the President and to the United States Trade Representative on the day of their issuance. The Commission has also notified the Secretary of the Treasury of the order.
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.
The Commission vote for this determination took place on January 5, 2022.
By order of the Commission.
Drug Enforcement Administration, Justice.
Notice of application.
Curia Missouri Inc. has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to Supplemental Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before March 14, 2022. Such persons may also file a written request for a hearing on the application on or before March 14, 2022.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152.
In accordance with 21 CFR 1301.33(a), this is notice that on August 19, 2021, Curia Missouri Inc., 2460 West Bennett Street, Springfield, Missouri 65807, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to bulk manufacture the above-listed controlled substances in bulk for distribution to its customers. No other activities for these drug codes are authorized for this registration.
Drug Enforcement Administration, Justice.
Notice of application.
Johnson Matthey, Inc., has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to Supplemental Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before March 14, 2022. Such persons may also file a written request for a hearing on the application on or before March 14, 2022.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152.
In accordance with 21 CFR 1301.33(a), this is notice that on November 2, 2021, Johnson Matthey, Inc., 2003 Nolte Drive West Deptford, New Jersey 08066-1742, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to bulk manufacture the listed controlled substances for the internal use intermediates or for sale to its customers. In reference to drug codes 7360 (Marihuana), and 7370 (Tetrahydrocannabinols), the company plans to bulk manufacture these drugs as synthetic. The company plans to bulk manufacture for either internal usage as intermediates or to sale to customers as Active Pharmaceutical Ingredients (API). No other activities for these drug codes are authorized for this registration.
Drug Enforcement Administration, Justice.
Notice of application.
Nexus Pharmaceuticals, Inc. has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to Supplemental Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may file written comments on or objections to the issuance of the proposed registration on or before February 10, 2022. Such persons may also file a written request for a hearing on the application on or before February 10, 2022.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing must be sent to: Drug Enforcement Administration, Attn: Administrator, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing should also be sent to: (1) Drug Enforcement Administration, Attn: Hearing Clerk/OALJ, 8701 Morrissette Drive, Springfield, Virginia 22152; and (2) Drug Enforcement Administration, Attn: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152.
In accordance with 21 CFR 1301.34(a), this is notice that on October 25, 2021, Nexus Pharmaceuticals, Inc., 10300 128th Avenue, Pleasant Prairie, Wisconsin 53158-7338, applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import the listed controlled substance for research and analytical testing purposes. Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug Administration-approved or non-approved finished dosage forms for commercial sale. No other activity for this drug code is authorized for this registration.
Justice Management Division, United States Department of Justice.
Notice of a modified system of records.
Pursuant to the Privacy Act of 1974 and Office of Management and Budget (OMB) Circular No. A-108, notice is hereby given that the Justice Management Division (JMD), a component within the United States Department of Justice (DOJ or Department), proposes to modify a system of records notice titled “DOJ Personnel Public Health Emergency Records System,” JUSTICE/JMD-025. The component proposes to modify the system of records notice to explicitly encompass collection of records related to requests for exceptions from public health emergency mandates, as well as clarify the definition of Department personnel to specifically include individuals on assignment to the Department from local, state, tribal or territorial agencies.
This notice is effective upon publication, subject to a 30-day period in which to comment on the routine uses, described below. Therefore, please submit any comments by February 10, 2022.
The public, OMB, and Congress are invited to submit any comments by mail to the United States Department of Justice, Office of Privacy and Civil Liberties, ATTN: Privacy Analyst, (2Con), 145 N Street NE, Suite 300, Washington, DC 20530; by facsimile at 202-307-0693; or by email at
Arthur E. Gary, Deputy Assistant Attorney General, Policy, Management, and Procurement, 950 Pennsylvania Avenue NW, Washington, DC 20530-0001, (202) 514-3101.
This system of records covers information necessary and relevant to Department activities responding to and mitigating the COVID-19 pandemic and other high-consequence public health threats, and diseases or illnesses relating to a public health emergency. Such information may include information pertaining to Department personnel, including employees, interns, contractors, and other personnel assigned to Department components such as Task Force Officers and other detailees, relating to efforts to protect the Department's workforce from contracting the illness or disease that is the subject of a declared public health emergency. The information may also pertain to personnel who undergo preventative testing for, or receive a vaccination to prevent, a disease or illness that is the subject of a declared public health emergency, as well as information necessary to implement federal, state, or local mandates relating to a public health emergency, including requests for legally required exceptions such as those based on religious or medical considerations. The information collected may include identifying and contact information of individuals who have been suspected or confirmed to have contracted a disease or illness, or who have been exposed to an individual who had been suspected or confirmed to have contracted a disease or illness related to a declared public health emergency; individual circumstances and dates of suspected exposure; testing results, symptoms, and treatments; vaccination records; health status information; and other information necessary and relevant to Department activities responding to and mitigating COVID-19 and other high-consequence public health threats and diseases or illnesses relating to a public health emergency. The Department maintains this information to understand the impact of an illness or disease on the Department workforce, and to assist in reducing the spread of the disease or illness among Department personnel. In certain instances, depending on the type of record collected and maintained, records maintained in this system of records may also be covered by Office of Personnel Management/Government-10 Employee Medical File System Records, 75 FR 35,099 (June 21, 2010). However, JUSTICE/JMD-025 covers additional records—specifically records collected in response to COVID-19, a high-consequence public health threat, as well as other declared public health emergencies.
This system of records notice is being modified to conform with the requirements of Executive Order 14,043, Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees and Executive Order 14,042, Ensuring Adequate COVID Safety Protocols for Federal Contractors. These orders mandate that categories of Department personnel be vaccinated against COVID-19, subject to such exceptions as required by law. This system of records notice is being modified to incorporate collection of records related to requests for legally required exceptions from public health emergency mandates. Additionally, this system of records modification clarifies the definition of the term “Department personnel” to specifically include individuals on assignment to the Department from local, state, tribal or territorial agencies, such as Task Force Officers or other detailees.
In accordance with 5 U.S.C. 552a(r), the Department has provided a report to OMB and Congress on this modified system of records.
DOJ Personnel Public Health Emergency Records System, JUSTICE/JMD-025.
Controlled Unclassified Information.
Records may be maintained at all locations at which the Department of Justice (DOJ), or contractors on behalf of the Department, operate or at which DOJ operations are supported, including the Robert F. Kennedy Main Justice Department Building, 950 Pennsylvania Avenue NW, Washington, DC 20530-0001.
Additionally, records may be maintained electronically at one or more of the Department's data centers, including, but not limited to, one or more of the Department's Core Enterprise Facilities (CEF), including, but not limited to, the Department's CEF East, Clarksburg, WV 26306, or CEF West, Pocatello, ID 83201. Records within this system of records may be transferred to a Department-authorized cloud service provider within the Continental United States. Access to these electronic records may occur at any location at which the DOJ operates or where DOJ Office of the Chief Information Officer (OCIO) operations are supported. Some or all of the information in the system may be duplicated at other locations where the Department has granted direct access to support DOJ operations, system backup, emergency preparedness, and/or continuity of operations. To determine the location of a particular record maintained in this system of records, contact the system manager, whose contact information is listed in the
Arthur E. Gary, Deputy Assistant Attorney General, Policy, Management and Procurement, 950 Pennsylvania Avenue NW, Washington, DC 20530-0001, (202) 514-3101.
[Delete existing paragraph and replace with the following:]
Executive Order 14,043, Requiring Coronavirus Disease 2019 Vaccination for Federal Employees; Executive Order 14,042, Ensuring Adequate COVID Safety Protocols for Federal Contractors; federal workforce safety requirements, including the Occupational Safety and Health Act of 1970, 29 U.S.C. Ch. 15, and federal safety programs covered by 5 U.S.C. 7902, implemented by Executive Order No. 12,196, Occupational safety and health programs for Federal employees; federal laws governing reasonable accommodations, including The Rehabilitation Act of 1973, as amended, 29 U.S.C. 791, and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e,
[Delete existing paragraph and replace with the following:]
The purpose of this system is to maintain records necessary and relevant to Department activities responding to and mitigating the COVID-19 pandemic, and other public health emergencies. Such records include those records needed to understand the impact of an illness or disease on the Department workforce, and to assist in protecting the Department's workforce from, and responding to, a declared public health emergency or other high-consequence public health threats. Among other things, DOJ may use the information collected to facilitate the provision of vaccines to DOJ personnel, including employees, interns, and contractors; to inform individuals who may have been in proximity of a person possibly infected with the disease or illness at or on buildings, grounds, and properties that are owned, leased, or used by the Department; to confirm which personnel have received vaccinations to prevent such disease or illness to spread throughout the Department's workforce; or to process requests for legally required exceptions from public health emergency mandates, including exceptions to vaccination and testing requirements based on religious or medical considerations.
[Delete existing paragraph and replace with the following:]
Department personnel, including employees, interns, contractors, and other personnel assigned to Department components such as Task Force Officers and other detailees.
[Add the following paragraph:]
G. Records regarding a request for a legally required exception to a public health emergency mandate (
[Delete existing paragraph and replace with the following:]
To the extent applicable, to ensure compliance with Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Genetic Information Nondiscrimination Act of 2008 (GINA), medical information must be “maintained on separate forms and in separate medical files and be treated as a confidential medical record.” 42 U.S.C. 12112(d)(3)(B); 42 U.S.C. sec 2000ff-5(a); 29 CFR 1630.14(b)(1), (c)(1), (d)(4)(i); and 29 CFR 1635.9(a). This means that medical information and documents must be stored separately from other personnel records. Records compiled under this SORN will be maintained in accordance with applicable NARA General Records Schedules (GRS), including but not limited to: 2.7, Items 010, 070 or 080 (DAA-GRS2017-0010-0001, DAA-GRS2017-0010-0012, and DAA-GRS2017-0010-0013).
DOJ Personnel Public Health Emergency Records System, JUSTICE/JMD-025, 86 FR 20740 (April 21, 2021).
Employment and Training Administration (ETA), Labor.
Notice of a virtual public meeting.
Pursuant to the Federal Advisory Committee Act (FACA), notice is hereby given to announce a public meeting of the ACA to be held virtually on Wednesday, January 26, 2022. All meetings of the ACA are open to the public.
The meeting will begin at 3:30 p.m. Eastern Standard Time on Wednesday, January 26, 2022, at the following link:
The Designated Federal Officer, Mr. John V. Ladd, Administrator, Office of Apprenticeship, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW, Room C-5321, Washington, DC 20210; Email:
The ACA is a discretionary committee reestablished by the Secretary of Labor on May 4, 2021, in accordance with FACA (5 U.S.C. app. 2 10), as amended in 5 U.S.C. app. 2, and its implementing regulations (41 CFR 101-6 and 102-3). The first meeting of the ACA was held on October 6, 2021 and the second meeting of the ACA will be held on Wednesday, January 26, 2022.
All meeting are open to the public and in order to promote openness, and increase public participation, webinar and audio conference technology will be used to convene the meeting. Login instructions will be posted prominently on the Office of Apprenticeship's website at:
Please use the following link and password information to access the meeting.
Any member of the public who wishes to file written data or comments pertaining to the agenda may do so by sending the data or comments to Mr. John V. Ladd via email at
The purpose of the January 2022, meeting is for the ACA to discuss the progress of each ACA subcommittee for full committee deliberation. The agenda topics for this meeting include the following:
The agenda and meeting logistics may need to be updated should priority items come before the ACA between the time of this publication and the scheduled date of the ACA meeting. All meeting updates will be posted to the Office of Apprenticeship's website at:
Notice.
The Department of Labor's (DOL) Employment and Training Administration (ETA) is soliciting comments concerning a proposed authority to conduct the new information collection request (ICR) titled, “Federal Pell Grants and the Payment of Unemployment Benefits to Individuals in Approved Training.” This comment request is part of continuing Departmental efforts to reduce paperwork and respondent burden in accordance with the Paperwork Reduction Act of 1995 (PRA).
Consideration will be given to all written comments received by March 14, 2022.
A copy of this ICR with applicable supporting documentation, including a description of the likely respondents, proposed frequency of response, and estimated total burden, may be obtained free by contacting LaMia Chapman by telephone at 202-693-3356 (this is not a toll-free number), TTY 1-877-889-5627 (this is not a toll-free number), or by email at
Submit written comments about, or requests for a copy of, this ICR by mail or courier to the U.S. Department of Labor, Employment and Training Administration (ETA), Office of Workforce Investment, 200 Constitution NW, Rm. C-4518, Washington, DC 20210; by email:
LaMia Chapman by telephone at 202-693-3356 (this is not a toll-free number) or by email at
DOL, as part of continuing efforts to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies an opportunity to comment on proposed and/or continuing collections of information before submitting them to the Office of Management and Budget (OMB) for final approval. This program helps to ensure requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements can be properly assessed.
The purpose of this ICR is to send notification letters to Unemployment Beneficiaries (UI) informing them of the Pell Grant program. Specifically, the letter will provide them with links to get additional information regarding potential opportunities to increase their skills to obtain industry-recognized credentials, and remind them that UI beneficiaries can, in some circumstances, continue to receive UI benefits while in training with the State's approval. The Federal Unemployment Tax Act (FUTA) Section 3304(a)(8) contained in Public Law 111-5, enacted February 17, 2009, authorizes this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
Interested parties are encouraged to provide comments to the contact shown in the
Submitted comments will also be a matter of public record for this ICR and posted on the internet, without redaction. DOL encourages commenters not to include personally identifiable information, confidential business data, or other sensitive statements/information in any comments.
DOL is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, (
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Office of Workers' Compensation Programs (OWCP) sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that the agency receives on or before February 10, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Comments are invited on: (1) Whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) if the information will be processed and used in a timely manner; (3) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (4) ways to enhance the quality, utility and clarity of the information collection; and (5) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Nora Hernandez by telephone at 202-693-8633, or by email at
In accordance with 5 U.S.C. 8131, a Federal employee who sustains a work-related injury is entitled to receive compensation under the Federal Employees' Compensation Act (FECA). If that injury is caused under circumstances that create a legal liability in a third party to pay damages, FECA authorizes the Secretary of Labor to require the employee to assign his or her right of action to the United States or to prosecute the action in his or her own name. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
National Aeronautics and Space Administration.
Request for public comment on new term and condition that requires recipients of NASA financial assistance to obtain a quotation from small and/or minority businesses, women's business enterprises or labor surplus area firms.
The Grants Policy and Compliance Branch (GPC) in the National Aeronautics and Space Administration's (NASA) Office of the Chief Financial Officer is soliciting public comment on the Agency's proposed implementation of a new term and condition that requires recipients of NASA financial assistance to obtain a quotation from small and/or minority businesses, women's business enterprises or labor surplus area firms when the acquisition of goods or services exceeds the simplified acquisition threshold. In response to the Executive Order,
Comments must be received by February 10, 2022.
Comments should be addressed to National Aeronautics and Space Administration Headquarters, 300 E Street SW, Rm. 6O87, Washington, DC 20546 or sent by email to
Christiane S. Diallo, email:
On January 25, 2021, President Biden issued E.O. 13985,
In response to E.O. 13985, NASA has been working to identify and address barriers that underserved communities and individuals may face in taking advantage of procurement, contracting, or grant opportunities. Through focused engagement with stakeholders and comments received from 86 FR 31735, June 15, 2021,
The full text of the new term and condition is provided below:
Pursuant to the requirements in 2 CFR 200.321, Contracting with small and minority businesses, women's business enterprises, and labor surplus area firms, grant and cooperative agreement recipients shall, to the extent practicable, obtain at least one quotation in response to a recipient-issued Request for Quotation (RFQ) from a small and/or minority business, women's business enterprise or labor surplus area firms when the acquisition of goods or services exceeds the simplified acquisition threshold (SAT) as defined in the Federal Acquisition Regulation (FAR) part 2.101, Definitions (currently the SAT is $250,000). In the event that recipients are unable to obtain at least one quote from a small and/or minority business women's business enterprise or labor surplus area firm, a written justification indicating why this was not possible must be maintained in the recipient's records.
Upon receipt and resolution of all comments, it is NASA's intention to implement the new term through a revision to the NASA Grant and Cooperative Agreement Manual (GCAM). These revised terms and conditions will become effective thirty days from the final notice publication date in the
The new term and condition will be applied to all new NASA awards and funding amendments to existing awards made on or after the effective date.
National Science Foundation.
Notice.
The National Science Foundation (NSF) is announcing plans for a new data collection. In accordance with the requirements of the Paperwork Reduction Act of 1995, we are providing an 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 three years.
Written comments on this notice must be received within March 14, 2022 to be assured consideration. Comments received after that date will be considered to the extent practicable. Please 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
For this effort, four survey instruments have been developed, each of which will include closed-ended and open-ended questions to generate quantitative and qualitative data. For ease of use for our respondent pool, each of the four survey instruments will be programmed into interactive web surveys and distributed to eligible respondents by email. The surveys, which will serve as a census for all applicable CA applicants and/or grantees, will be used to collect baseline measures at the start of the program and vital information on how grantees progress through the program. Follow-up interviews will be conducted with project team leaders, such as Principal Investigators (PIs) and Principal Directors (PDs), and case studies that will use a project team as the unit of analysis will be used to collect qualitatively rich discursive and observational information that cannot be collected within a web survey. Both follow-up interviews and case studies will be conducted virtually with the possibility of in-person interviews and non-participant observation to be held in the future.
NSF/EAC will only submit a collection for approval under this generic clearance if it meets the following conditions:
○ The collection is voluntary;
○ The collection has a reasonably low burden for respondents (based on considerations of total burden hours, total number of respondents, or burden-hours per respondent) and is low-cost for the Federal government;
○ The collection is non-controversial and does not raise issues of concern for other Federal agencies;
○ The collection is targeted to the solicitation of opinions from respondents who have applied to the CA program (including those that have submitted successful grant applications and subsequently received funding);
○ Personally identifiable information (PII) is collected only to the extent necessary; and
○ Information gathered will be used for the dual and interrelated purposes of disseminating information about the CA program and using this information to make programmatic improvements, efficiencies, and enhanced program monitoring for the CA.
Feedback collected under this generic clearance provides useful information for the continued evolution of the CA program, but it may not yield data that can be generalized to the overall population in all instances. Our qualitative data collection activities—follow-up interviews and case studies—are designed to investigate outlier CA teams or CA teams that demonstrate exceptional performance or successfully overcome significant challenges in their work with the CA. While the web surveys, which will be deployed at different times during the program, will collect data that will help the EAC monitor trends over time and assess overall program performance, the follow-up interviews and case studies will gather supplemental data that is more specific to individual CA teams.
As a general matter, this information collection will not include questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private.
Below we provide NSF's projected average estimates for the next three years:
Nuclear Regulatory Commission.
Combined license application; denial, opportunity to demand a hearing and to petition for leave to intervene.
Oklo Power LLC, a wholly owned subsidiary of Oklo Inc., submitted a custom combined license application for one Aurora reactor to be located at the Idaho National Laboratory in Idaho on March 11, 2020. The U.S. Nuclear Regulatory Commission (NRC) has denied the Oklo Aurora custom combined license application for failure to provide information in response to NRC staff requests for additional information (RAIs). The agency is denying the application without prejudice, and Oklo is free to resubmit its application supplemented by additional information that was previously requested.
A demand for a hearing or petition for leave to intervene must be filed by February 10, 2022.
Please refer to Docket ID NRC-2020-0088 when contacting the NRC about the availability of information regarding this document. You may obtain publicly available information related to this document using any of the following methods:
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•
•
William Kennedy, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2313; email:
The NRC staff has denied the custom combined license application for the Aurora reactor pursuant to the requirements of Part 2 of title 10 of the
On March 11, 2020 (85 FR 19032), Oklo submitted a custom combined license application for one microreactor, designated the Aurora, to be located at the Idaho National Laboratory in Idaho. A custom combined license application submitted under 10 CFR part 52, subpart C, “Combined Licenses,” must contain site-specific information needed for licensing as well as the same level of design detail that would be required for a design certification application so that the NRC can make final safety findings on the design. Since March 2020, when Oklo submitted its custom combined license application, Oklo has repeatedly failed to provide substantive information in response to NRC staff RAIs on the maximum credible accident (MCA) analysis for the Aurora; the safety classification of structures, systems, and components (SSCs); and other issues needed for the NRC staff to establish a schedule for its technical review and to complete that review. These information needs were identified and communicated to Oklo in letters dated June 5, 2020 and November 17, 2020, in RAIs issued in September 2020, and at many additional times after the custom combined license application was submitted.
In a letter dated June 5, 2020 (ADAMS Accession No. ML20149K616), docketing the custom combined license application, the NRC staff communicated its plans to complete the review of the Aurora design in a two-step process. In Step 1, which the staff estimated would last five months, the NRC staff planned to engage Oklo on four key safety and design aspects of the licensing basis: (1) The MCA analysis, which affects several aspects of the licensing basis for the Aurora; (2) the classification of SSCs, including performance requirements; (3) the implementation of Oklo's quality assurance (QA) program to the design; and (4) certain topics related to the applicability of regulations. At the conclusion of Step 1, NRC staff expected to have defined the scope of the full, detailed technical review and thus be able to develop a schedule to efficiently perform the review in Step 2.
As part of the Step 1 custom combined license application review, in September 2020 the staff asked RAIs on the subjects of the MCA analysis, safety classification of SSCs, and QA program implementation (ADAMS Accession Nos. ML20265A121, ML20265A123, ML20265A346, and ML20267A529). Oklo submitted a reply on October 30, 2020, but its reply did not provide the detailed technical information needed to respond to the staff's questions (ADAMS Package Accession No. ML20305A582). On November 17, 2020, the staff issued two letters to Oklo; one letter (ADAMS Accession No. ML20300A593) closed out the portion of the Step 1 review related to the applicability of regulations, which did not depend on the RAI reply, and the second letter (ADAMS Accession No. ML20308A677) identified areas where the RAI reply did not provide sufficient information on safety aspects of the Aurora design to enable the NRC to complete the Step 1 review and establish a schedule for a detailed technical review of the application. The second letter also stated that the NRC staff would treat the topic of QA program implementation together with safety classification of SSCs, given the relationship between the two topics, and summarized the technical information that Oklo would need to submit to support closure of the Step 1 review with respect to the MCA analysis and the safety classification of SSCs.
Oklo subsequently informed NRC staff that it would submit two generic topical reports to address these topics, including the specific questions in the RAIs. By letter dated July 2, 2021 (ADAMS Accession No. ML21184A001), Oklo submitted topical reports, “Maximum Credible Accident Methodology,” Revision 2 (ADAMS Accession No. ML21184A002), and “Performance Based Licensing Methodology,” Revision 0 (ADAMS Accession No. ML21187A001), which Oklo provided to explain its novel approach to MCA analysis and SSC classification respectively. The NRC staff performed completeness reviews of the topical reports and determined that the topical reports were not sufficiently complete for the NRC staff to initiate detailed technical reviews. The NRC staff informed Oklo of the decision by two emails dated August 5, 2021 (ADAMS Accession Nos. ML21201A079 and ML21201A111), that included attachments describing the supplemental information needed for the NRC staff to begin the detailed review of each topical report (ADAMS Accession Nos. ML21201A094 and ML21201A113). At Oklo's request, the NRC staff also held public meetings with Oklo on September 1, 16, and 28, 2021 (ADAMS Accession Nos. ML21259A260, ML21266A428, and
The NRC staff has denied the Aurora custom combined license application because Oklo has repeatedly failed to submit the information needed to complete the Step 1 review of its MCA analysis and safety classification of SSCs. Oklo's October 30, 2020, RAI responses did not contain sufficient technical information. The topical reports Oklo submitted, in part, to address Step 1 of the review to support a predictable review schedule, contained information that is conceptual in nature and does not adequately describe Oklo's methodologies for the Aurora's MCA analysis or for safety classification of SSCs. Because of Oklo's repeated failures to provide sufficient information on safety aspects of the Aurora design in response to the NRC staff's RAIs, including information related to its MCA methodology, safety classification of SSCs (including Oklo's implementation of its QA program), and the specific matters identified in the September 2020 RAIs, the NRC staff cannot establish a schedule for conducting a detailed technical review and the NRC's review of the Aurora custom combined license application cannot move forward. Oklo was notified of the NRC's denial of the custom combined license application by letter dated January 6, 2022 (ADAMS Accession No. ML21357A034).
Within 30 days after the date of publication of this notice, the applicant may demand a hearing with respect to the denial described above. A demand for hearing must be filed in accordance with the NRC's requirements specified in 10 CFR part 2, subpart C, except for 10 CFR 2.309(f). If the applicant demands a hearing, the demand must identify each error of fact or law that the applicant asserts is material to the denial or identify any other reason why the denial should not have been issued. The applicant must further state in the demand the specific bases, whether factual or legal, for each asserted error or other reason why the denial should not have been issued. The demand must refer to the specific statements in documents on the docket that the applicant asserts respond to the RAIs.
In addition, any person (petitioner) whose interest may be affected by this denial may, within 30 days after the date of publication of this notice, file a request for a hearing and petition for leave to intervene (petition) with respect to the denial. Petitions must be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. The NRC's regulations are accessible electronically from the NRC Library on the NRC's website at
As required by 10 CFR 2.309(d) the petition should specifically explain the reasons why intervention to contest the denial should be permitted with particular reference to the following general requirements for standing: (1) The name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the petitioner's interest.
The petition must also set forth the specific contentions which the petitioner seeks to have litigated in the proceeding. Contentions must be limited to matters within the scope of the proceeding,
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene. Parties have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that party's admitted contentions, including the opportunity to present evidence, consistent with the NRC's regulations, policies, and procedures.
Petitions must be filed no later than 30 days from the date of publication of this notice. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii). The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document.
A State, local governmental body, Federally recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission no later than 30 days from the date of publication of this notice. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions set forth in this section, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or Federally recognized Indian Tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. Alternatively, a State, local governmental body, Federally recognized Indian Tribe, or agency thereof may participate as a non-party under 10 CFR 2.315(c).
If the applicant demands a hearing, the presiding officer grants a petition to intervene, or both, the proceeding will be conducted under 10 CFR part 2, subpart L, unless (1) the presiding officer elects other procedures; (2) the
All documents filed in NRC adjudicatory proceedings, including a demand for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a demand for hearing or petition to intervene (hereinafter “petition”), and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with 10 CFR 2.302. The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media, unless an exemption permitting an alternative filing method, as discussed below, is granted. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below. Detailed guidance on electronic submissions is located in the Guidance for Electronic Submissions to the NRC (ADAMS Accession No. ML13031A056) and on the NRC website at
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public website at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public website at
Participants who believe that they have good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted in accordance with 10 CFR 2.302(b)-(d). Participants filing adjudicatory documents in this manner are responsible for serving their documents on all other participants. Participants granted an exemption under 10 CFR 2.302(g)(2) must still meet the electronic formatting requirement in 10 CFR 2.302(g)(1), unless the participant also seeks and is granted an exemption from 10 CFR 2.302(g)(1).
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket, which is publicly available at
For further details with respect to this action, see the letter from the NRC to Oklo denying the custom combined license application, dated January 6, 2022 (ADAMS Accession No. ML21357A034).
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
On December 29, 2021, the Postal Service filed the FY 2021 Performance Report and FY 2022 Performance Plan with its FY 2021 Annual Compliance Report. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
Each year the Postal Service must submit to the Commission its most recent annual performance plan and annual performance report. 39 U.S.C. 3652(g). On December 29, 2021, the Postal Service filed its FY 2021 Annual Report to Congress in Docket No. ACR2021.
The FY 2022 Plan reviews the Postal Service's plans for FY 2022. The FY 2021 Report discusses the Postal Service's progress during FY 2021 toward its four performance goals:
Each year, the Commission must evaluate whether the Postal Service met the performance goals established in the annual performance plan and annual performance report. 39 U.S.C. 3653(d). The Commission may also “provide recommendations to the Postal Service related to the protection or promotion of public policy objectives set out in” title 39.
Since Docket No. ACR2013, the Commission has evaluated whether the Postal Service met its performance goals in reports separate from the Annual Compliance Determination.
• Did the Postal Service meet its performance goals in FY 2021?
• Do the FY 2021 Report and the FY 2022 Plan meet applicable statutory requirements, including 39 U.S.C. 2803 and 2804?
• What recommendations should the Commission provide to the Postal Service that relate to protecting or promoting public policy objectives in title 39?
• For the Excellent Customer Experience performance goal, are there any customer experience (CX) metrics the Postal Service should add to measure CX?
• What recommendations or observations should the Commission make concerning the Postal Service's strategic initiatives?
• What other matters are relevant to the Commission's analysis of the FY 2021 Report and the FY 2022 Plan under 39 U.S.C. 3653(d)?
Comments by interested persons are due no later than March 1, 2022. Reply comments are due no later than March 15, 2022. Pursuant to 39 U.S.C. 505, Katalin K. Clendenin is appointed to serve as Public Representative to represent the interests of the general public in this proceeding with respect to issues related to the Commission's analysis of the FY 2021 Report and the FY 2022 Plan.
1. The Commission invites public comment on the Postal Service's FY 2021 Report and FY 2022 Plan.
2. Pursuant to 39 U.S.C. 505, the Commission appoints Katalin K. Clendenin to serve as Public Representative to represent the interests of the general public in this proceeding with respect to issues related to the Commission's analysis of the FY 2021 Report and the FY 2022 Plan.
3. Comments are due no later than March 1, 2022.
4. Reply comments are due no later than March 15, 2022.
5. The Secretary shall arrange for publication of this Order in the
By the Commission.
10:00 a.m., January 19, 2022.
Members of the public wishing to attend the meeting must submit a written request at least 24 hours prior to the meeting to receive dial-in information. All requests must be sent to
This meeting will be open to the public.
Stephanie Hillyard, Secretary to the Board, (312) 751-4920.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 17f-1(c) requires approximately 10,100 entities in the securities industry to report lost, stolen, missing, or counterfeit securities certificates to the Commission or its designee, to a registered transfer agent for the issue, and, when criminal activity is suspected, to the Federal Bureau of Investigation. Such entities are required to use Form X-17F-1A to make such reports. Filing these reports fulfills a statutory requirement that reporting institutions report and inquire about missing, lost, counterfeit, or stolen securities. Since these reports are compiled in a central database, the rule facilitates reporting institutions to access the database that stores information for the Lost and Stolen Securities Program.
We estimate that 10,100 reporting institutions will report that securities certificates are either missing, lost, counterfeit, or stolen annually and that each reporting institution will submit this report 30 times each year. The staff estimates that the average amount of time necessary to comply with Rule 17f-1(c) and Form X17F-1A is five minutes per submission. The total burden is approximately 25,250 hours annually for the entire industry (10,100 times 30 times 5 divided by 60).
Rule 17f-1(c) is a reporting rule and does not specify a retention period. The rule requires an incident-based reporting requirement by the reporting institutions when securities certificates are discovered to be missing, lost, counterfeit, or stolen. Registering under Rule 17f-1(c) is mandatory to obtain the benefit of a central database that stores information about missing, lost, counterfeit, or stolen securities for the Lost and Stolen Securities Program. Reporting institutions required to register under Rule 17f-1(c) will not be kept confidential; however, the Lost and Stolen Securities Program database will be kept confidential.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following website:
Securities and Exchange Commission (“Commission”).
Notice.
Notice of application for an order under sections 17(d) and 57(i) of the Investment Company Act of 1940 (the “Act”) and rule 17d-1 under the Act to permit certain joint transactions otherwise prohibited by sections 17(d) and 57(a)(4) of the Act and rule 17d-1 under the Act.
Applicants request an order to permit certain business development companies and closed-end management investment companies to co-invest in portfolio companies with each other and with affiliated investment funds.
HPS Corporate Lending Fund (“HPS Fund”); HPS Investment Partners, LLC (“HPS”); Brickyard Direct Lending Fund, L.P.; Core Senior Lending Fund (A-A), L.P.; Core Senior Lending Fund, L.P.; HPS DPT Direct Lending Fund, L.P.; Hinode Direct Lending 2017 Fund, L.P.; Kitty Hawk Credit Fund, L.P.; HPS Investment Partners (UK) LLP; HPS Investment Partners (HK), Limited; HPS Investments Partners (AUS) Pty Ltd.; HPS ALSC Management, LLC; HPS Mezzanine Partners, LLC; HPS Mezzanine Partners II, LLC; HPS Mezzanine Management III, LLC; HPS Mezzanine Management 2019, LLC; HPS Opportunities SL Management, LLC; HPS RE Management, LLC; HPS Investment Partners CLO (US), LLC; HPS Investment Partners CLO (UK) LLP; HPS EF GP, LLC; HPS EL SLF 2016 GP, LLC; CGC, LLC; CGC III Partners LLC; Core Senior Lending Master Fund (PB), L.P.; HPS Core Senior Lending Portfolio (PB) II, L.P.; Credit Value Master Fund 2016, L.P.; Credit Value Master Fund V, L.P.; Credit Value Ontario Fund V, L.P.; Credit Value Master Fund VI, L.P.; European Asset Value Fund (USD) II, L.P.; European Asset Value Offshore Fund (USD) II, L.P.; European Asset Value Offshore Fund II, L.P.; HPS European Liquid Loan Opportunities Master Fund, L.P.; HPS Mezzanine Partners 2019, L.P.; HPS Offshore Mezzanine Partners 2019 Co-Invest, L.P.; HPS Offshore Mezzanine Partners 2019 Europe, SCSp; HPS Offshore Mezzanine Partners 2019, L.P.; HPS Special Situations Opportunity Fund, L.P.; HPS Special Situations Opportunity Offshore Fund, L.P.; HPS Specialty Loan Europe Fund V, SCSp; HPS Specialty Loan Fund (JPY) V, L.P.; HPS Specialty Loan Fund V, L.P.; HPS Specialty Loan Fund V-L, L.P.; HPS Specialty Loan International Fund V, SCSp; HPS Specialty Loan International Fund V-L, L.P.; Institutional Credit Master Fund, L.P.; Liquid Loan Opportunities Master Fund, L.P.; Mayfair Alternative Credit Funds ICAV; Mezzanine Partners III, L.P.; Offshore Mezzanine Partners III Co-Invest, L.P.; Offshore Mezzanine Partners III, L.P.; Real Estate Credit Solutions Fund II, L.P.; Real Estate Credit Solutions Offshore Fund II, L.P.; Specialty Loan Fund 2016, L.P.; Specialty Loan Fund 2016-L, L.P.; Specialty Loan Institutional Fund 2016-L, L.P.; Aspen Co-Invest, L.P.; Bronco Co-Invest, L.P; Endurance II Co-Invest, L.P.; Galaxy III Co-Invest, L.P.; Milano Co-Invest, L.P.; Neptune Co-Invest, L.P.; Patriot Co-Invest, L.P.; Aiguilles Rouges Irish Specialty Loan Fund plc; Aiguilles Rouges Specialty Loan Fund, L.P.; Cactus Direct Lending Fund, L.P.; Cardinal Fund, L.P.; CST Specialty Loan Fund, L.P.; Falcon Credit Fund, L.P.; GIM Credit Lux S.A.; GIM Credit Master Lux S.à r.l.; GIM II, L.P.; GIM, L.P.; HC Direct Lending Fund, L.P.; HN Co-Investment Fund, L.P.; HPS Core Senior Lending Co-Invest, L.P.; HPS Halite 2020 Direct Lending Fund Limited; HPS KP Mezz 2019 Co-Invest, L.P.; HPS Magnetite Energy & Power Credit Fund, L.P.; HPS Magnetite Energy & Power Credit Offshore Fund, L.P.; HPS Ocoee Specialty Loan Fund, L.P.; HPS OH Co-Investment Fund, L.P.; HPS PA Co-
The application was filed on December 30, 2020, and amended on April 21, 2021, August 5, 2021, November 5, 2021, and December 23, 2021.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by emailing the Commission's Secretary at
Laura J. Riegel, Senior Counsel, at (202) 551-3038, or Trace W. Rakestraw, Branch Chief, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's website by searching for the file number, or for an applicant using the Company name box, at
1. HPS Fund is a Delaware statutory trust that is a non-diversified closed-end management investment company that has elected to be regulated as a business development company (“BDC”) under section 54(a) of the Act.
2. HPS, a Delaware limited liability company, is registered with the Commission as an investment adviser under the Investment Advisers Act of 1940 (“Advisers Act”). HPS serves as the investment adviser to HPS Fund.
3. The Existing Affiliated Funds are the investment funds identified on Schedule A to the application. Each Existing Affiliated Fund would be an investment company but for section 3(c)(1) or section 3(c)(7) of the Act.
4. The investment advisory subsidiaries and relying advisers of HPS identified on Schedule A to the application (each such investment adviser and HPS, an “Existing Adviser” and collectively, the “Existing Advisers”), serve as investment advisers to the respective Existing Affiliated Funds. HPS controls the other Existing Advisers.
5. Applicants seek an order (“Order”) to permit a Regulated Entity
6. Applicants state that any of the Regulated Entities, from time to time, form one or more Wholly-Owned Investment Subs.
7. The Advisers expects that any portfolio company that is an appropriate investment for a Regulated Entity should also be an appropriate investment for one or more other Regulated Entities and/or one or more Affiliated Funds, with certain exceptions based on available capital or diversification.
8. Other than pro rata dispositions and Follow-On Investments as provided in conditions 7 and 8, and after making the determinations required in conditions 1 and 2(a), for each Regulated Entity, the applicable Adviser will present each Potential Co-Investment Transaction and the proposed allocation to the directors or trustees of the Board eligible to vote under section 57(o) of the Act (“Eligible Trustees”), and the “required majority,” as defined in section 57(o) of the Act (“Required Majority”)
9. With respect to the pro rata dispositions and Follow-On Investments provided in conditions 7 and 8, a Regulated Entity may participate in a pro rata disposition or Follow-On Investment without obtaining prior approval of the Required Majority if, among other things: (i) The proposed participation of each Regulated Entity and each Affiliated Fund in such disposition is proportionate to its outstanding investments in the issuer immediately preceding the disposition or Follow-On Investment, as the case may be; and (ii) the Board of the Regulated Entity has approved that Regulated Entity's participation in pro rata dispositions and Follow-On Investments as being in the best interests of the Regulated Entity. If the Board does not so approve, any such disposition or Follow-On Investment will be submitted to the Regulated Entity's Eligible Trustees. The Board of any Regulated Entity may at any time rescind, suspend, or qualify its approval of pro rata dispositions and Follow-On
10. No Independent Trustee of a Regulated Entity will have a direct or indirect financial interest in any Co-Investment Transaction (other than indirectly through share ownership in one of the Regulated Entities), including any interest in any company whose securities would be acquired in a Co-Investment Transaction.
11. Applicants also represent that if the Advisers, the principal owners of any of the Advisers (the “Principals”), or any person controlling, controlled by, or under common control with the Advisers or the Principals, and the Affiliated Funds (collectively, the “Holders”) own in the aggregate more than 25% of the outstanding voting shares of a Regulated Entity (the “Shares”), then the Holders will vote such Shares as required under condition 14.
1. Section 57(a)(4) of the Act prohibits certain affiliated persons of a BDC from participating in joint transactions with the BDC or a company controlled by a BDC in contravention of rules as prescribed by the Commission. Under section 57(b)(2) of the Act, any person who is directly or indirectly controlling, controlled by, or under common control with a BDC is subject to section 57(a)(4). Applicants submit that each of the Regulated Entities and Affiliated Funds could be deemed to be a person related to each Regulated Entity in a manner described by section 57(b) by virtue of being under common control. Section 57(i) of the Act provides that, until the Commission prescribes rules under section 57(a)(4), the Commission's rules under section 17(d) of the Act applicable to registered closed-end investment companies will be deemed to apply to transactions subject to section 57(a)(4). Because the Commission has not adopted any rules under section 57(a)(4), rule 17d-1 also applies to joint transactions with Regulated Entities that are BDCs. Section 17(d) of the Act and rule 17d-1 under the Act are applicable to Regulated Entities that are registered closed-end investment companies.
2. Section 17(d) of the Act and rule 17d-1 under the Act prohibit affiliated persons of a registered investment company from participating in joint transactions with the company unless the Commission has granted an order permitting such transactions. In passing upon applications under rule 17d-1, the Commission considers whether the company's participation in the joint transaction is consistent with the provisions, policies, and purposes of the Act and the extent to which such participation is on a basis different from or less advantageous than that of other participants.
3. Applicants state that in the absence of the requested relief, the Regulated Entities would be, in many circumstances, limited in their ability to participate in attractive and appropriate investment opportunities. Applicants believe that the proposed terms and conditions will ensure that the Co-Investment Transactions are consistent with the protection of each Regulated Entity's shareholders and with the purposes intended by the policies and provisions of the Act. Applicants state that the Regulated Entities' participation in the Co-Investment Transactions will be consistent with the provisions, policies, and purposes of the Act and on a basis that is not different from, or less advantageous than, that of other participants.
Applicants agree that the Order will be subject to the following conditions:
1. (a) Each Adviser will establish, maintain and implement policies and procedures reasonably designed to ensure that it identifies for each Regulated Entity all Potential Co-Investment Transactions that (i) the Adviser considers for any other Regulated Entity or Affiliated Fund and (ii) fall within the Regulated Entity's then-current Objectives and Strategies and Board-Established Criteria.
(b) When an Adviser identifies a Potential Co-Investment Transaction for a Regulated Entity under condition 1(a), the Adviser will make an independent determination of the appropriateness of the investment for the Regulated Entity in light of the Regulated Entity's then-current circumstances.
2. (a) If an Adviser deems a Regulated Entity's participation in any Potential Co-Investment Transaction to be appropriate for the Regulated Entity, the Adviser will then determine an appropriate level of investment for the Regulated Entity.
(b) If the aggregate amount recommended by an Adviser to be invested by the applicable Regulated Entity in the Potential Co-Investment Transaction, together with the amount proposed to be invested by the other participating Regulated Entities and Affiliated Funds, collectively, in the same transaction, exceeds the amount of the investment opportunity, the investment opportunity will be allocated among them pro rata based on each participant's capital available for investment in the asset class being allocated, up to the amount proposed to be invested by each. Each Adviser will provide the Eligible Trustees of each participating Regulated Entity with information concerning each participating party's available capital to assist the Eligible Trustees with their review of the applicable Regulated Entity's investments for compliance with these allocation procedures.
(c) After making the determinations required in conditions 1(b) and 2(a), the applicable Adviser will distribute written information concerning the Potential Co-Investment Transaction (including the amount proposed to be invested by each participating Regulated Entity and each participating Affiliated Fund) to the Eligible Trustees of its participating Regulated Entity for their consideration. A Regulated Entity will enter into a Co-Investment Transaction with one or more other Regulated Entities or Affiliated Funds only if, prior to the Regulated Entity's participation in the Potential Co-Investment Transaction, a Required Majority concludes that:
(i) The terms of the Potential Co-Investment Transaction, including the consideration to be paid, are reasonable and fair to the Regulated Entity and its equity holders and do not involve overreaching in respect of the Regulated Entity or its equity holders on the part of any person concerned;
(ii) the Potential Co-Investment Transaction is consistent with:
(A) The interests of the Regulated Entity's equity holders; and
(B) the Regulated Entity's then-current Objectives and Strategies;
(iii) the investment by any other Regulated Entities or any Affiliated Funds would not disadvantage the Regulated Entity, and participation by the Regulated Entity would not be on a basis different from or less advantageous than that of any other Regulated Entities or any Affiliated Funds; provided that, if any other Regulated Entity or any Affiliated Fund, but not the Regulated Entity itself, gains the right to nominate a director for election to a portfolio company's board of directors or the right to have a board observer or any similar right to participate in the governance or management of the portfolio company, such event shall not be interpreted to prohibit the Required Majority from reaching the conclusions required by this condition 2(c)(iii), if:
(A) The Eligible Trustees will have the right to ratify the selection of such director or board observer, if any; and
(B) the Adviser agrees to, and does, provide periodic reports to the Board of
(C) any fees or other compensation that any Regulated Entity or any Affiliated Fund or any affiliated person of any Regulated Entity or any Affiliated Fund receives in connection with the right of a Regulated Entity or an Affiliated Fund to nominate a director or appoint a board observer or otherwise to participate in the governance or management of the portfolio company will be shared proportionately among the participating Affiliated Funds (who may each, in turn, share its portion with its affiliated persons) and the participating Regulated Entities in accordance with the amount of each party's investment; and
(iv) the proposed investment by the Regulated Entity will not benefit any Adviser, the other Regulated Entities, the Affiliated Funds, or any affiliated person of any of them (other than the parties to the Co-Investment Transaction), except (A) to the extent permitted by condition 13, (B) to the extent permitted by sections 17(e) or 57(k) of the Act, as applicable, (C) indirectly, as a result of an interest in the securities issued by one of the parties to the Co-Investment Transaction, or (D) in the case of fees or other compensation described in condition 2(c)(iii)(C).
3. Each Regulated Entity has the right to decline to participate in any Potential Co-Investment Transaction or to invest less than the amount proposed.
4. The applicable Adviser will present to the Board of each Regulated Entity, on a quarterly basis, a record of all investments in Potential Co-Investment Transactions made by any other Regulated Entity or Affiliated Fund during the preceding quarter that fell within the Regulated Entity's then-current Objectives and Strategies and Board-Established Criteria that were not made available to the Regulated Entity, and an explanation of why the investment opportunities were not offered to the Regulated Entity. All information presented to the Board pursuant to this condition will be kept for the life of the Regulated Entity and at least two years thereafter, and will be subject to examination by the Commission and its staff.
5. Except for Follow-On Investments made in accordance with condition 8,
6. A Regulated Entity will not participate in any Potential Co-Investment Transaction unless the terms, conditions, price, class of securities to be purchased, settlement date, and registration rights will be the same for each participating Regulated Entity and Affiliated Fund. The grant to another Regulated Entity or an Affiliated Fund, but not the Regulated Entity, of the right to nominate a director for election to a portfolio company's board of directors, the right to have an observer on the board of directors or similar rights to participate in the governance or management of the portfolio company will not be interpreted so as to violate this condition 6, if conditions 2(c)(iii)(A), (B) and (C) are met.
7. (a) If any Regulated Entity or Affiliated Fund elects to sell, exchange or otherwise dispose of an interest in a security that was acquired in a Co-Investment Transaction, the applicable Advisers will:
(i) Notify each Regulated Entity that participated in the Co-Investment Transaction of the proposed disposition at the earliest practical time; and
(ii) formulate a recommendation as to participation by each Regulated Entity in the disposition.
(b) Each Regulated Entity will have the right to participate in such disposition on a proportionate basis, at the same price and on the same terms and conditions as those applicable to the participating Regulated Entities and Affiliated Funds.
(c) A Regulated Entity may participate in such disposition without obtaining prior approval of the Required Majority if: (i) The proposed participation of each Regulated Entity and each Affiliated Fund in such disposition is proportionate to its outstanding investments in the issuer immediately preceding the disposition; (ii) the Board of the Regulated Entity has approved as being in the best interests of the Regulated Entity the ability to participate in such dispositions on a pro rata basis (as described in greater detail in the application); and (iii) the Board of the Regulated Entity is provided on a quarterly basis with a list of all dispositions made in accordance with this condition. In all other cases, the Adviser will provide its written recommendation as to such Regulated Entity's participation to such Regulated Entity's Eligible Trustees, and such Regulated Entity will participate in such disposition solely to the extent that a Required Majority determines that it is in such Regulated Entity's best interests.
(d) Each Regulated Entity and each Affiliated Fund will bear its own expenses in connection with any such disposition.
8. (a) If a Regulated Entity or an Affiliated Fund desires to make a Follow-On Investment in a portfolio company whose securities were acquired in a Co-Investment Transaction, the applicable Advisers will:
(i) Notify each Regulated Entity that participated in the Co-Investment Transaction of the proposed transaction at the earliest practical time; and
(ii) formulate a recommendation as to the proposed participation, including the amount of the proposed Follow-On Investment, by each Regulated Entity.
(b) A Regulated Entity may participate in such Follow-On Investment without obtaining prior approval of the Required Majority if: (i) The proposed participation of each Regulated Entity and each Affiliated Fund in such investment is proportionate to its outstanding investments in the issuer immediately preceding the Follow-On Investment; and (ii) the Board of the Regulated Entity has approved as being in the best interests of the Regulated Entity the ability to participate in Follow-On Investments on a pro rata basis (as described in greater detail in the application). In all other cases, the Adviser will provide its written recommendation as to the Regulated Entity's participation to the Eligible Trustees, and the Regulated Entity will participate in such Follow-On Investment solely to the extent that a Required Majority determines that it is in the Regulated Entity's best interests.
(c) If, with respect to any Follow-On Investment:
(i) The amount of a Follow-On Investment is not based on the Regulated Entities' and the Affiliated Funds' outstanding investments immediately preceding the Follow-On Investment; and
(ii) the aggregate amount recommended by the applicable Advisers to be invested by each
(d) The acquisition of Follow-On Investments as permitted by this condition will be considered a Co-Investment Transaction for all purposes and subject to the other conditions set forth in the application.
9. The Independent Trustees of each Regulated Entity will be provided quarterly for review all information concerning Potential Co-Investment Transactions that fell within the Regulated Entity's then-current Objectives and Strategies and Board-Established Criteria, including investments in Potential Co-Investment Transactions made by other Regulated Entities and Affiliated Funds, that the Regulated Entity considered but declined to participate in, and concerning Co-Investment Transactions in which the Regulated Entity participated, so that the Independent Trustees may determine whether all Potential Co-Investment Transactions and Co-Investment Transactions during the preceding quarter, including those Potential Co-Investment Transactions which the Regulated Entity considered but declined to participate in, comply with the conditions of the Order. In addition, the Independent Trustees will consider at least annually (a) the continued appropriateness for the Regulated Entity of participating in new and existing Co-Investment Transactions and (b) the continued appropriateness of any Board-Established Criteria.
10. Each Regulated Entity will maintain the records required by section 57(f)(3) of the Act as if each of the Regulated Entities were a BDC and each of the investments permitted under these conditions were approved by the Required Majority under section 57(f).
11. No Independent Trustee of a Regulated Entity will also be a director, general partner, managing member or principal, or otherwise be an “affiliated person” (as defined in the Act), of any Affiliated Fund.
12. The expenses, if any, associated with acquiring, holding or disposing of any securities acquired in a Co-Investment Transaction (including, without limitation, the expenses of the distribution of any such securities registered for sale under the Securities Act) will, to the extent not payable by the Advisers under their respective investment advisory agreements with the Regulated Entities and the Affiliated Funds, be shared by the Affiliated Funds and the Regulated Entities in proportion to the relative amounts of the securities held or to be acquired or disposed of, as the case may be.
13. Any transaction fee
14. If the Holders own in the aggregate more than 25 percent of the Shares of a Regulated Entity, then the Holders will vote such Shares in the same percentages as the Regulated Entity's other shareholders (not including the Holders) when voting on (1) the election of directors; (2) the removal of one or more directors; or (3) all other matters under either the Act or applicable State law affecting the Board's composition, size or manner of election.
15. Each Regulated Entity's chief compliance officer, as defined in rule 38a-1(a)(4), will prepare an annual report for its Board each year that evaluates (and documents the basis of that evaluation) the Regulated Entity's compliance with the terms and conditions of the application and the procedures established to achieve such compliance.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the NYSE Arca Equities Fees and Charges (the “Fee Schedule”) with respect to a regulatory fee related to the Central Registration Depository (“CRD system”), which is collected by the Financial Industry Regulatory Authority, Inc. (“FINRA”). The Exchange proposes to implement the fee change on January 2, 2022. The proposed rule change is
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Fee Schedule with respect to a regulatory fee collected by FINRA for use of the CRD system.
FINRA collects and retains certain regulatory fees via the CRD system for the registration of associated persons of ETP Holders that are not FINRA members (“Non-FINRA ETP Holders”).
FINRA recently amended one of the fees assessed for use of the CRD system.
The Exchange notes that the proposed change is not otherwise intended to address any other issues surrounding regulatory fees, and the Exchange is not aware of any problems that ETP Holders would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed fee change is reasonable because the fee will be identical to that adopted by FINRA as of January 2, 2022 for use of the CRD system to submit a Form U4. The costs of operating and improving the CRD system are similarly borne by FINRA when a Non-FINRA ETP Holder uses the CRD system; accordingly, the fees collected for such use should, as proposed by the Exchange, mirror the fees assessed to FINRA members. In addition, as FINRA noted in amending its fees, it believes that its proposed pricing structure is reasonable and correlates fees with the components that drive its regulatory costs to the extent feasible.
The Exchange also believes that the proposed fee change provides for the equitable allocation of reasonable fees and other charges, and does not unfairly discriminate between customers, issuers, brokers, and dealers. The fee applies equally to all individuals and firms required to report information to the CRD system, and the proposed change will result in the same regulatory fee being charged to all ETP Holders required to report information to the CRD system and for services performed by FINRA regardless of whether such ETP Holders are FINRA members. Accordingly, the Exchange believes that the fee collected for such use should increase in lockstep with the fee adopted by FINRA as of January 2, 2022, as is proposed by the Exchange.
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 believes that the proposed change will reflect the fee that will be assessed by FINRA for Form U4 filings as of January 2, 2022 and will thus result in the same regulatory fees being charged to all ETP Holders required to report information to the CRD system and for services performed by FINRA, regardless of whether or not such ETP Holders are FINRA members.
No written comments were solicited or received with respect to 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. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to: Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the NYSE American Options Fee Schedule (the “Fee Schedule”) with respect to a regulatory fee related to the Central Registration Depository (“CRD system”), which is collected by the Financial Industry Regulatory Authority, Inc. (“FINRA”). The Exchange proposes to implement the fee change on January 2, 2022. The proposed change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Fee Schedule with respect to a regulatory fee collected by FINRA for use of the CRD system.
FINRA collects and retains certain regulatory fees via the CRD system for the registration of associated persons of ATP Holders that are not FINRA members (“Non-FINRA ATP Holders”).
FINRA recently amended one of the fees assessed for use of the CRD system, which will become effective January 2, 2022.
The Exchange notes that the proposed change is not otherwise intended to address any other issues surrounding regulatory fees, and the Exchange is not aware of any problems that ATP Holders would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed fee change is reasonable because the fee will be identical to that adopted by FINRA as of January 2, 2022 for use of the CRD system to submit a Form U4. The costs of operating and improving the CRD system are similarly borne by FINRA when a Non-FINRA ATP Holder uses the CRD system; accordingly, the fees collected for such use should, as proposed by the Exchange, mirror the fees assessed to FINRA members. In addition, as FINRA noted in amending its fees, it believes that its proposed pricing structure is reasonable and correlates fees with the components that drive its regulatory costs to the extent feasible.
The Exchange also believes that the proposed fee change provides for the equitable allocation of reasonable fees and other charges, and does not unfairly discriminate between customers, issuers, brokers, and dealers. The fee applies equally to all individuals and firms required to report information to the CRD system, and the proposed change will result in the same regulatory fee being charged to all ATP Holders required to report information to the CRD system and for services performed by FINRA regardless of whether such ATP Holders are FINRA members. Accordingly, the Exchange believes that the fee collected for such use should increase in lockstep with the fee adopted by FINRA as of January 2, 2022, as is proposed by the Exchange.
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 believes that the proposed change will update the Fee Schedule to reflect the fee that will be assessed by FINRA for Form U4 filings as of January 2, 2022 and will thus result in the same regulatory fees being charged to all ATP Holders required to report information to the CRD system and for services performed by FINRA regardless of whether or not such ATP Holders are FINRA members.
No written comments were solicited or received with respect to 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. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to: Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the NYSE Arca Options Fees and Charges (the “Fee Schedule”) with respect to a regulatory fee related to the Central Registration Depository (“CRD system”), which is collected by the Financial Industry Regulatory Authority, Inc. (“FINRA”). The Exchange proposes to implement the fee change on January 2, 2022. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Fee Schedule with respect to a regulatory fee collected by FINRA for use of the CRD system.
FINRA collects and retains certain regulatory fees via the CRD system for the registration of associated persons of OTP Holders and OTP Firms that are not FINRA members (collectively, “Non-FINRA OTP Holders”).
FINRA recently amended one of the fees assessed for use of the CRD system.
The Exchange notes that the proposed change is not otherwise intended to address any other issues surrounding regulatory fees, and the Exchange is not aware of any problems that OTP Holders would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed fee change is reasonable because the fee will be identical to that adopted by FINRA as of January 2, 2022 for use of the CRD system to submit a Form U4. The costs of operating and improving the CRD system are similarly borne by FINRA when a Non-FINRA OTP Holder uses the CRD system; accordingly, the fees collected for such use should, as proposed by the Exchange, mirror the fees assessed to FINRA members. In addition, as FINRA noted in amending its fees, it believes that its proposed pricing structure is reasonable and correlates fees with the components that drive its regulatory costs to the extent feasible.
The Exchange also believes that the proposed fee change provides for the equitable allocation of reasonable fees and other charges, and does not unfairly discriminate between customers, issuers, brokers, and dealers. The fee applies equally to all individuals and firms required to report information to the CRD system, and the proposed change will result in the same regulatory fee being charged to all OTP Holders required to report information to the CRD system and for services performed by FINRA regardless of whether such OTP Holders are FINRA members. Accordingly, the Exchange believes that the fee collected for such use should increase in lockstep with the fee adopted by FINRA as of January 2, 2022, as is proposed by the Exchange.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance
No written comments were solicited or received with respect to 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. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to: Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice.
Notice of an application under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from section 15(a) of the Act and rule 18f-2 under the Act, as well as from certain disclosure requirements in rule 20a-1 under the Act, Item 19(a)(3) of Form N-1A, Items 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8) and 22(c)(9) of Schedule 14A under the Securities Exchange Act of 1934, and sections 6-07(2)(a), (b), and (c) of Regulation S-X (“Disclosure Requirements”). The requested exemption would permit an investment adviser to hire and replace certain sub-advisers without shareholder approval and grant relief from the Disclosure Requirements as they relate to fees paid to the sub-advisers.
ETF Opportunities Trust (the “Trust”), a Delaware statutory trust registered under the Act as an open-end management investment company that offers the Applied Finance Valuation Large Cap ETF (the “Existing Fund”), and Applied Finance Advisors, LLC (the “Adviser”), a Delaware limited liability company that is registered as an investment adviser under the Investment Advisers Act of 1940 (collectively with the Trust, the “Applicants”).
The application was filed on April 6, 2021, and amended on July 29, 2021 and November 10, 2021.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by emailing the Commission's Secretary at
The Commission:
Erin Loomis Moore, Senior Counsel, at (202) 551-6721, or Joseph Toner, Acting Branch Chief, at (202) 551-6825
The following is a summary of the application. The complete application may be obtained via the Commission's website by searching for the file number, or an applicant using the Company name box, at
1. The Adviser will serve as the investment adviser to each Sub-Advised Series pursuant to an investment advisory agreement with the Trust (the “Investment Management Agreement”).
2. Applicants request an order to permit the Adviser, subject to Board approval, to enter into investment sub-advisory agreements with the Sub-Advisers (each, a “Sub-Advisory Agreement”) and materially amend such Sub-Advisory Agreements without obtaining the shareholder approval required under section 15(a) of the Act and rule 18f-2 under the Act.
3. Applicants agree that any order granting the requested relief will be subject to the terms and conditions stated in the application. Such terms and conditions provide for, among other safeguards, appropriate disclosure to Sub-Advised Series shareholders and notification about sub-advisory changes and enhanced Board oversight to protect the interests of the Sub-Advised Series' shareholders.
4. Section 6(c) of the Act provides that the Commission may exempt any person, security, or transaction or any class or classes of persons, securities, or transactions from any provisions of the Act, or any rule thereunder, if such relief is necessary or appropriate in the public interest and consistent with the protection of investors and purposes fairly intended by the policy and provisions of the Act. Applicants believe that the requested relief meets this standard because, as further explained in the application, the Investment Management Agreements will remain subject to shareholder approval while the role of the Sub-Advisers is substantially equivalent to that of individual portfolio managers, so that requiring shareholder approval of Sub-Advisory Agreements would impose unnecessary delays and expenses on the Sub-Advised Series. Applicants believe that the requested relief from the Disclosure Requirements meets this standard because it will improve the Adviser's ability to negotiate fees paid to the Sub-Advisers that are more advantageous for the Sub-Advised Series.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The principal purpose of the proposed amendments is for ICE Clear Europe to modify its Futures & Options Default Management Policy (“F&O Default Management Policy” or “Policy”) to make certain clarifications and updates.
In its filing with the Commission, ICE Clear Europe 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. ICE Clear Europe has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements.
ICE Clear Europe is proposing to amend its F&O Default Management Policy to (i) further describe certain aspects of the background UK legal framework applicable to default management, (ii) update the composition of the Clearing House's default management committee, (iii) remove as unnecessary certain operational steps ICE Clear Europe will take in order to suspend a Defaulter's trading access, (iv) update and clarify the procedures related to hedging or liquidation of a Defaulter's positions, (v) remove certain details around the auction process that are set out in other Clearing House documentation; (vi) clarify certain procedures for intra-group information sharing, (vii) revise the description of the Clearing House's default testing, (viii) revise and remove certain appendices in accordance with the other changes made in the Policy, and (ix) make other various drafting clarifications and improvements.
The background discussion of Points of Law applicable to default management would be revised to provide certain clarification and simplifications. Specifically, the amendments clarify the ability of the Clearing House to transfer client positions and collateral in an omnibus client account to a single solvent Clearing Member provided that all clients in the omnibus account agree to such transfer. The amendments would also clarify the benefits of legal certainty provided to actions taken by the Clearing House in accordance with its default rules under Part VII of the UK Companies Act. Other non-substantive drafting clarifications and grammatical updates would be made to improve readability.
The section addressing the actions to be taken by the Clearing House immediately following declaration of an Event of Default would be updated to bifurcate the composition of the Clearing House's internal default management committee to personnel that are always required to be present and personnel (or deputies) that may attend if required. Specifically, the default management committee would, at minimum, consist of the President, Head of Clearing Risk and Chief Risk Officer. The Chief Operating Officer or Head of Operations, Head of Treasury, Head of Legal and Head of Compliance may attend if required. Additionally, the amendments would provide that legal advisors or counsel to the Clearing House may also be present where required. Conforming changes would be made in other sections of the policy. The amendments would also remove from a statement regarding the segmenting of F&O Guaranty Fund resources in the waterfall by asset class, and related information. The construction and composition of the F&O Guaranty Fund is set out in the Rules and Procedures and existing F&O Guaranty Fund Policy, and the Clearing House does not believe it needs to be set out in the Policy.
Amendments would also remove provisions relating to an interest rate swap default management committee, which are not used as the Clearing House does not clear interest rate swaps.
Procedures for suspending the trading access of a defaulting Clearing Member would also be clarified. The amendments would clarify that the Clearing House may (but is not obligated to) instruct the relevant market surveillance department and helpdesk to disable trading accesses of the defaulter. The amendments would also remove certain operational details as to the business hours of the ICE helpdesk and the scope of denial of trading access that the Clearing House believes are unnecessary for the Policy. The amendments are not intended to reflect a change in practice but further describe document existing practice.
In the section relating to identifying and hedging market exposure from the defaulter's positions, amendments would add that the Clearing House may seek to delta hedge the positions through its Exchanges, in addition to conducting such hedging through brokers (as referenced in the current Policy). The amendments would also remove a statement that priority should be giving to hedging products contributing the greatest original margin requirement. ICE Clear Europe does not believe the limitation is necessary, as the hedging strategy should take into account the particular circumstances and market conditions at the time. Additionally, information describing the processes for entering positions into the ICE Clear Europe internal risk database would be removed as unnecessary operational detail.
Provisions addressing the treatment of physically deliverable positions nearing expiry would be updated to clarify that once a default has been declared, the Operations Department would be responsible for taking control and may suspend delivery settlements due back to the Defaulter, to implement the Clearing House's existing rights under the Rules. Amendments would also clarify that while the Clearing House may need to close out positions prior to the commencement of the delivery process, it would not necessarily be obligated to do so. In the Clearing House's view, this change would provide appropriate flexibility in managing such positions of a defaulter.
The section relating to liquidation of remaining positions would be amended to reference all positions (not merely house positions), to remove certain details about specific hedging strategies and to remove a statement as to the order of preference of different options. ICE Clear Europe believes that it is appropriate in default management to have flexibility as to the particular type of hedging or liquidation actions to be taken, in light of the nature of the positions and market conditions at the time, and accordingly it is not desirable to state in advance which default management option is preferable. Similarly, the Clearing House does not believe it is necessary to specify particular hedging strategies in the Policy; the appropriate strategy in a particular default scenario should be selected at the time.
Amendments would also provide that the Clearing House default management committee may seek advice from third party traders, in addition to traders of non-defaulting Clearing Members, with respect to liquidating the positions in a complex trading book. The amendments would remove as unnecessary a requirement that the senior management team first approach representatives of Clearing Members on the F&O product risk committee for assistance.
Certain clarifications to the Policy relating to the conduct of a default
Section 10.1 (Intra-group Information Sharing) would be amended to remove certain details about coordination between ICE Group entities that ICE Clear Europe believes are unnecessary under the Policy. As proposed to be revised, the ICE Clear Europe President would remain responsible for notifying counterparts at other ICE Group entities where the defaulter is active in other relevant markets. Specific details about the persons to be notified, and relevant backup personnel, have been removed as unnecessary for the Policy.
The section of the Policy relating to F&O default testing would be revised to reflect further describe current testing purposes and practices and make other enhancements. As revised, the Clearing House would conduct testing on an annual basis with compulsory participation of Clearing members, with the goal of testing the responsibilities of each Clearing House department, the systems and tools in the default management process and external parties' preparation and understanding of default procedures. The amendments would also revise and clarify certain elements that comprise a default management test plan. As a result, Former Appendix A—Default Test Plan (Summary) would be removed as unnecessary given the updated description of default testing in the Policy. The subsequent appendices would be renumbered accordingly.
Appendix B (Trade Procedure) (formerly Appendix C) would be updated in respect of the description of the frequency of certain trade tests. Specifically, the amendments would provide that Test trades would take place according to the Multi-Year Default Management Plan, instead of monthly or quarterly. Additionally, the amendments would remove an incorrect reference to CDS Clearing Members (which are not as such subject to an F&O policy).
Appendix C (formerly Appendix D) relating to regulatory reporting would be replaced with a new schedule of default management information to be shared with the Bank of England under applicable regulations, including information as to actions taken prior to and following the default, summary of positions and relevant margin and guaranty fund contributions, and certain other exposures.
Other drafting clarifications and other changes would be made throughout the Policy to make non-substantive typographical and other corrections, including replacing “Original Margin” with “Initial Margin” (and related abbreviations throughout), to conform to the terminology used in the Rules and Procedures.
ICE Clear Europe believes that the proposed amendments to the F&O Default Management Policy are consistent with the requirements of Section 17A of the Act
The proposed changes to the F&O Default Management Policy are designed to clarify and strengthen ICE Clear Europe's procedures for managing the risk of default losses. The amendments would, among other matters, update the composition of the default management committee, clarify certain matters relating to the background UK legal framework for default management, clarify and update certain procedures around hedging and liquidation of the risk of a defaulter's positions, clarify testing procedures, and ensure consistency with Clearing House Rules and Procedures, including those relating to auctions. Through better managing risks in Clearing Member default scenarios in this manner, the proposed amendments to the F&O Default Management Policy would promote the stability of the Clearing House and the prompt and accurate clearance and settlement of cleared contracts. The enhanced default risk management is therefore also generally consistent with the protection of investors and the public interest in the safe operation of the Clearing House. (ICE Clear Europe would not expect the amendments to affect materially the safeguarding of securities and funds in ICE Clear Europe's custody or control or for which it is responsible.) Accordingly, the amendments satisfy the requirements of Section 17A(b)(3)(F).
The amendments to the F&O Default Management Policy are also consistent with relevant provisions of Rule 17Ad-22.
Rule 17Ad-22(e)(2) provides that “[e]ach covered clearing agency shall establish, implement, maintain and enforce written policies and procedures reasonable designed to, as applicable [ . . . ] provide for governance arrangements that are clear and transparent”
In addition, ICE Clear Europe believes the amendments satisfy Rule 17Ad-22(e)(13),
ICE Clear Europe does not believe the proposed amendments would have any impact, or impose any burden, on competition not necessary or appropriate in furtherance of the purposes of the Act. The amendments are being adopted to update and clarify the Clearing House's F&O Default Management Policy, which relates to the Clearing House's internal processes for addressing risks posed by F&O Clearing Member defaults. The amendments do not change the obligations of Clearing Members under the Rules or Procedures. Accordingly, ICE Clear Europe does not believe the amendments would affect the costs of clearing, the ability of market participants to access clearing, or the market for clearing services generally. Although the Policy does state certain obligations of Clearing Members to participate in annual default testing, ICE Clear Europe believes this is appropriate in light of regulatory requirements and the importance of such testing to the default management process. Therefore, ICE Clear Europe does not believe the proposed rule change imposes any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments relating to the proposed amendments have not been solicited or received by ICE Clear Europe. ICE Clear Europe will notify the Commission of any written comments received with respect to the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 239 (17 CFR 230.239) provides exemptions under the Securities Act of 1933 (15 U.S.C. 77a
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 control number.
The public may view background documentation for this information collection at the following website:
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the NYSE American Equities Price List (the “Price List”) with respect to a regulatory fee related to the Central Registration Depository (“CRD system”), which is collected by the Financial Industry Regulatory Authority, Inc. (“FINRA”). The Exchange proposes to implement the fee change on January 2, 2022. The proposed change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Price List with respect to a regulatory fee collected by FINRA for use of the CRD system.
FINRA collects and retains certain regulatory fees via the CRD system for the registration of associated persons of ATP Holders that are not FINRA members (“Non-FINRA ATP Holders”).
FINRA recently amended one of the fees assessed for use of the CRD system.
The Exchange notes that the proposed change is not otherwise intended to address any other issues surrounding regulatory fees, and the Exchange is not aware of any problems that ATP Holders would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed fee change is reasonable because the fee will be identical to that adopted by FINRA as of January 2, 2022 for use of the CRD system to submit a Form U4. The costs of operating and improving the CRD system are similarly borne by FINRA when a Non-FINRA ATP Holder uses the CRD system; accordingly, the fees collected for such use should, as proposed by the Exchange, mirror the fees assessed to FINRA members. In addition, as FINRA noted in amending its fees, it believes that its proposed pricing structure is reasonable and correlates fees with the components that drive its regulatory costs to the extent feasible.
The Exchange also believes that the proposed fee change provides for the equitable allocation of reasonable fees and other charges, and does not unfairly discriminate between customers, issuers, brokers, and dealers. The fee applies equally to all individuals and firms required to report information to the CRD system, and the proposed change will result in the same regulatory fee being charged to all ATP Holders required to report information to the CRD system and for services performed by FINRA regardless of whether such ATP Holders are FINRA members. Accordingly, the Exchange believes that the fee collected for such use should increase in lockstep with the fee adopted by FINRA as of January 2, 2022, as is proposed by the Exchange.
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 believes that the proposed change will reflect the fee that will be assessed by FINRA for Form U4 filings as of January 2, 2022 and will thus result in the same regulatory fees being charged to all ATP Holders required to report information to the CRD system and for services performed by FINRA, regardless of whether or not such ATP Holders are FINRA members.
No written comments were solicited or received with respect to 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. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to: Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17f-2(a) (Fingerprinting Requirements for Securities Professionals) requires that securities professionals be fingerprinted. This requirement serves to identify security-risk personnel, to allow an employer to make fully informed employment decisions, and to deter possible wrongdoers from seeking employment in the securities industry. Partners, directors, officers, and employees of exchanges, brokers, dealers, transfer agents, and clearing agencies are included.
The Commission staff estimates that approximately 4,480 respondents will submit an aggregate total of 289,780 new fingerprint cards each year or approximately 65 fingerprint cards per year per registrant. The staff estimates that the average number of hours necessary to complete a fingerprint card is one-half hour. Thus, the total estimated annual burden is 144,890 hours for all respondents (289,780 times one-half hour). The average internal cost of compliance per hour is approximately $283. Therefore, the total estimated annual internal cost of compliance for all respondents is $41,003,870 (144,890 times $283).
This rule does not involve the collection of confidential information.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following website:
Pursuant to Section 19(b)(1)
The Exchange proposes to amend its Price List (the “Price List”) with respect to a regulatory fee related to the Central Registration Depository (“CRD system”), which is collected by the Financial Industry Regulatory Authority, Inc. (“FINRA”). The Exchange proposes to implement the fee change on January 2, 2022. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Price List with respect to a regulatory fee collected by FINRA for use of the CRD system.
FINRA collects and retains certain regulatory fees via the CRD system for the registration of associated persons of member organizations of the Exchange that are not FINRA members (“Non-FINRA Member Organizations”).
FINRA recently amended one of the fees assessed for use of the CRD system.
The Exchange notes that the proposed change is not otherwise intended to address any other issues surrounding regulatory fees, and the Exchange is not aware of any problems that member organizations would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed fee change is reasonable because the fee will be identical to that adopted by FINRA as of January 2, 2022 for use of the CRD system to submit a Form U4. The costs of operating and improving the CRD system are similarly borne by FINRA when a Non-FINRA Member Organization uses the CRD system; accordingly, the fees collected for such use should, as proposed by the Exchange, mirror the fees assessed to FINRA members. In addition, as FINRA noted in amending its fees, it believes that its proposed pricing structure is reasonable and correlates fees with the components that drive its regulatory costs to the extent feasible.
The Exchange also believes that the proposed fee change provides for the equitable allocation of reasonable fees and other charges, and does not unfairly discriminate between customers, issuers, brokers, and dealers. The fee applies equally to all individuals and firms required to report information to the CRD system, and the proposed change will result in the same regulatory fee being charged to all member organizations required to report information to the CRD system and for services performed by FINRA regardless of whether such member organizations are FINRA members. Accordingly, the Exchange believes that the fee collected for such use should increase in lockstep with the fee adopted by FINRA as of January 2, 2022, as is proposed by the Exchange.
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 believes that the proposed change will reflect the fee that will be assessed by FINRA for Form U4 filings as of January 2, 2022 and will thus result in the same regulatory fees being charged to all member organizations required to report information to the CRD system and for services performed by FINRA, regardless of whether or not such member organizations are FINRA members.
No written comments were solicited or received with respect to 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. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to: Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 17a-12 is the reporting rule tailored specifically for over-the-counter (“OTC”) derivatives dealers registered with the Commission, and Part II of Form X-17A-5, the Financial and Operational Combined Uniform Single (“FOCUS”) Report, is the basic document for reporting the financial and operational condition of OTC derivatives dealers. Rule 17a-12 requires registered OTC derivatives dealers to file Part II of the FOCUS Report quarterly. Rule 17a-12 also requires that OTC derivatives dealers file audited financial statements (“audited report”) annually.
The reports required under Rule 17a-12 provide the Commission with information used to monitor the operations of OTC derivatives dealers and to enforce their compliance with the Commission's rules. These reports also enable the Commission to review the business activities of OTC derivatives dealers and to anticipate, where possible, how these dealers may be affected by significant economic events.
There are currently five registered OTC derivatives dealers. The staff expects that three of those firms will register as Security-Based Swap Dealers within the next three years and therefore will no longer be subject to Rule 17a-12. Thus, only two OTC derivatives dealers will be subject to the requirements of Rule 17a-12. The staff estimates that the average amount of time necessary to prepare and file the quarterly reports required by the rule is eighty hours per OTC derivatives dealer
The retention period for the recordkeeping requirement under Rule 17a-12 is not less than two years following the date the notice is submitted. The recordkeeping requirement under this rule is mandatory to assist the Commission in monitoring OTC derivatives dealers. This rule does not involve the collection of confidential information.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following website:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17Ad-4(b) & (c) (17 CFR 240.17Ad-4) is used to document when transfer agents are exempt, or no longer exempt, from the minimum performance standards and certain recordkeeping provisions of the Commission's transfer agent rules. Pursuant to Rule 17Ad-4(b), if the Commission or the Office of the Comptroller of the Currency (“OCC”) is the appropriate regulatory agency (“ARA”) for an exempt transfer agent, that transfer agent is required to prepare and maintain in its possession a notice certifying that it is exempt from certain performance standards and recordkeeping and record retention provisions of the Commission's transfer agent rules. This notice need not be filed with the Commission or OCC. If the Board of Governors of the Federal Reserve System (“Fed”) or the Federal Deposit Insurance Corporation (“FDIC”) is the transfer agent's ARA, that transfer agent must prepare a notice and file it with the Fed or FDIC.
Rule 17Ad-4(c) sets forth the conditions under which a registered transfer agent loses its exempt status. Once the conditions for exemption no longer exist, the transfer agent, to keep the appropriate ARA apprised of its current status, must prepare, and file if the ARA for the transfer agent is the Fed or the FDIC, a notice of loss of exempt status under paragraph (c). The transfer agent then cannot claim exempt status under Rule 17Ad-4(b) again until it remains subject to the minimum performance standards for non-exempt
ARAs use the information contained in the notices required by Rules 17Ad-4(b) and 17Ad-4(c) to determine whether a registered transfer agent qualifies for the exemption, to determine when a registered transfer agent no longer qualifies for the exemption, and to determine the extent to which that transfer agent is subject to regulation.
The Commission estimates that approximately 10 registered transfer agents each year prepare or file notices in compliance with Rules 17Ad-4(b) and 17Ad-4(c). The Commission estimates that each such registered transfer agent spends approximately 1.5 hours to prepare or file such notices for an aggregate total annual burden of 15 hours (1.5 hours times 10 transfer agents). The Commission staff estimates that compliance staff work at registered transfer agents results in an internal cost of compliance, at an estimated hourly wage of $283, of $424.5 per year per transfer agent (1.5 hours × $283 per hour = $424.5 per year). Therefore, the aggregate annual internal cost of compliance for the approximate 10 transfer agents annually preparing or filing notices pursuant to Rules 17Ad-4(b) and 17Ad-4(c) is approximately $4,245 ($424.5 × 10 = $4,245).
This rule does not involve the collection of confidential information.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following website:
Pursuant to Section 19(b)(1)
The Exchange proposes to amend its Schedule of Fees and Rebates (the “Fee Schedule”) with respect to a regulatory fee related to the Central Registration Depository (“CRD system”), which is collected by the Financial Industry Regulatory Authority, Inc. (“FINRA”). The Exchange proposes to implement the fee change on January 2, 2022. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Price List with respect to a regulatory fee collected by FINRA for use of the CRD system.
FINRA collects and retains certain regulatory fees via the CRD system for the registration of associated persons of ETP Holders that are not FINRA members (“Non-FINRA ETP Holders”).
FINRA recently amended one of the fees assessed for use of the CRD system.
The Exchange notes that the proposed change is not otherwise intended to
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed fee change is reasonable because the fee will be identical to that adopted by FINRA as of January 2, 2022 for use of the CRD system to submit a Form U4. The costs of operating and improving the CRD system are similarly borne by FINRA when a Non-FINRA ETP Holder uses the CRD system; accordingly, the fees collected for such use should, as proposed by the Exchange, mirror the fees assessed to FINRA members. In addition, as FINRA noted in amending its fees, it believes that its proposed pricing structure is reasonable and correlates fees with the components that drive its regulatory costs to the extent feasible.
The Exchange also believes that the proposed fee change provides for the equitable allocation of reasonable fees and other charges, and does not unfairly discriminate between customers, issuers, brokers, and dealers. The fee applies equally to all individuals and firms required to report information to the CRD system, and the proposed change will result in the same regulatory fee being charged to all ETP Holders required to report information to the CRD system and for services performed by FINRA regardless of whether such ETP Holders are FINRA members. Accordingly, the Exchange believes that the fee collected for such use should increase in lockstep with the fee adopted by FINRA as of January 2, 2022, as is proposed by the Exchange.
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 believes that the proposed change will reflect the fee that will be assessed by FINRA for Form U4 filings as of January 2, 2022 and will thus result in the same regulatory fees being charged to all ETP Holders required to report information to the CRD system and for services performed by FINRA, regardless of whether or not such ETP Holders are FINRA members.
No written comments were solicited or received with respect to 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. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to: Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend its Schedule of Fees and Rebates (the “Fee Schedule”) with respect to a regulatory fee related to the Central Registration Depository (“CRD system”), which is collected by the Financial Industry Regulatory Authority, Inc. (“FINRA”). The Exchange proposes to implement the fee change on January 2, 2022. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Price List with respect to a regulatory fee collected by FINRA for use of the CRD system.
FINRA collects and retains certain regulatory fees via the CRD system for the registration of associated persons of Participants that are not FINRA members (“Non-FINRA Participants”).
FINRA recently amended one of the fees assessed for use of the CRD system.
The Exchange notes that the proposed change is not otherwise intended to address any other issues surrounding regulatory fees, and the Exchange is not aware of any problems that Participants would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed fee change is reasonable because the fee will be identical to that adopted by FINRA as of January 2, 2022 for use of the CRD system to submit a Form U4. The costs of operating and improving the CRD system are similarly borne by FINRA when a Non-FINRA Participant uses the CRD system; accordingly, the fees collected for such use should, as proposed by the Exchange, mirror the fees assessed to FINRA members. In addition, as FINRA noted in amending its fees, it believes that its proposed pricing structure is reasonable and correlates fees with the components that drive its regulatory costs to the extent feasible.
The Exchange also believes that the proposed fee change provides for the equitable allocation of reasonable fees and other charges, and does not unfairly discriminate between customers, issuers, brokers, and dealers. The fee applies equally to all individuals and firms required to report information to the CRD system, and the proposed change will result in the same regulatory fee being charged to all Participants required to report information to the CRD system and for services performed by FINRA regardless of whether such Participants are FINRA members. Accordingly, the Exchange believes that the fee collected for such use should increase in lockstep with the fee adopted by FINRA as of January 2, 2022, as is proposed by the Exchange.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance
No written comments were solicited or received with respect to 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. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to: Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Regulation AC requires that research reports published, circulated, or provided by a broker or dealer or covered person contain a statement attesting that the views expressed in each research report accurately reflect the analyst's personal views and whether or not the research analyst received or will receive any compensation in connection with the views or recommendations expressed in the research report. Regulation AC also requires broker-dealers to, on a quarterly basis, make, keep, and maintain records of research analyst statements regarding whether the views expressed in public appearances accurately reflected the analyst's personal views, and whether any part of the analyst's compensation is related to the specific recommendations or views expressed in the public appearance. Regulation AC also requires that research prepared by foreign persons be presented to U.S. persons pursuant to Securities Exchange Act Rule 15a-6 and that broker-dealers notify associated persons if they would be covered by the regulation. Regulation AC excludes the news media from its coverage.
The collections of information under Regulation AC are necessary to provide investors with information with which to determine the value of the research available to them. It is important for an investor to know whether an analyst may be biased with respect to securities or issuers that are the subject of a research report. Further, in evaluating a research report, it is reasonable for an investor to want to know about an analyst's compensation. Without the information collection, the purposes of Regulation AC could not be met. This regulation does not involve the collection of confidential information.
The Commission estimates that Regulation AC imposes an aggregate annual time burden of approximately 40,806 hours. The Commission estimates that the total annual internal cost of compliance for the 40,806 hours is approximately $20,923,582.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
The public may view background documentation for this information collection at the following website:
Notice is hereby given of the following determinations: I hereby determine that certain objects being imported from abroad pursuant to agreements with their foreign owners or custodians for temporary display in the exhibition “Meret Oppenheim: My Exhibition” at the Menil Collection, Houston, Texas; the Museum of Modern Art, New York, New York; and at possible additional exhibitions or venues yet to be determined, are of cultural significance, and, further, that their temporary exhibition or display within the United States as aforementioned is in the national interest. I have ordered that Public Notice of these determinations be published in the
Chi D. Tran, Program Administrator, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
Susquehanna River Basin Commission.
Notice.
This notice lists Grandfathering Registration for projects by the Susquehanna River Basin Commission during the period set forth in
December 1-31, 2021.
Susquehanna River Basin Commission, 4423 North Front Street, Harrisburg, PA 17110-1788.
Jason E. Oyler, General Counsel and Secretary to the Commission, telephone: (717) 238-0423, ext. 1312; fax: (717) 238-2436; email:
This notice lists GF Registration for projects, described below, pursuant to 18 CFR 806, subpart E for the time period specified above:
1. Elkview Country Club, GF Certificate No. GF-202112196, Greenfield and Fell Townships, Lackawanna County, Pa.; Crystal Lake; Issue Date: December 17, 2021.
2. Big Heart Pet Brands, Inc., GF Certificate No. GF-202112197, South Centre Township, Columbia County, Pa.; Well 3; Issue Date: December 29, 2021.
3. Huntingdon Borough—Public Water Supply System, GF Certificate No. GF-202112198, Huntingdon Borough, Huntingdon County, Pa.; Standing Stone Creek; Issue Date: December 29, 2021.
4. Kunzler & Company, Inc.—Tyrone Facility, GF Certificate No. GF-202112199, Snyder Township, Blair County, Pa.; consumptive use; Issue Date: December 29, 2021.
5. Pennsylvania Fish & Boat Commission—Cooperative Hatcheries and Nurseries, GF Certificate No. GF-202112200, various municipalities and counties, Pa.; see Addendum; Issue Date: December 29, 2021.
6. Pioneer Hi-Bred International, Inc., GF Certificate No. GF-202112201, East Earl Township, Lancaster County, Pa.; Pequea Creek; Issue Date: December 29, 2021.
Susquehanna River Basin Commission.
Notice.
This notice lists the minor modifications approved for a previously approved project by the Susquehanna River Basin Commission during the period set forth in
December 1-31, 2021.
Susquehanna River Basin Commission, 4423 North Front Street, Harrisburg, PA 17110-1788.
Jason E. Oyler, General Counsel, telephone: (717) 238-0423, ext. 1312; fax: (717) 238-2436; email:
This notice lists previously approved projects, receiving approval of minor modifications, described below, pursuant to 18 CFR 806.18 or to Commission Resolution Nos. 2013-11 and 2015-06 for the time period specified above:
1. Seneca Resources Company, LLC, Docket No. 20210611, Sergeant and Norwich Townships, McKean County,
Susquehanna River Basin Commission.
Notice.
The Susquehanna River Basin Commission will hold a public hearing on February 3, 2022. The Commission will hold this hearing in-person and telephonically. At this public hearing, the Commission will hear testimony on the projects listed in the
The public hearing will convene on February 3, 2022, at 6:30 p.m. The public hearing will end at 9:00 p.m. or at the conclusion of public testimony, whichever is earlier. The deadline for the submission of written comments is Monday, February 14, 2022.
This public hearing will be conducted in-person and telephonically. You may attend in person at Susquehanna River Basin Commission, 4423 N Front St., Harrisburg, Pennsylvania or join by Conference Call #: 1-888-387-8686, Conference Room #: 917 968 6050.
Jason Oyler, General Counsel and Secretary to the Commission, telephone: (717) 238-0423 or
Information concerning the applications for the projects is available at the Commission's Water Application and Approval Viewer at
The public hearing will cover the following projects:
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Interested parties may call into the hearing to offer comments to the Commission on any business listed above required to be the subject of a public hearing. Given the nature of the meeting, the Commission strongly encourages those members of the public wishing to provide oral comments to pre-register with the Commission by emailing Jason Oyler at
Susquehanna River Basin Commission.
Notice.
This notice lists the projects approved by rule by the Susquehanna River Basin Commission during the period set forth in
December 1-31, 2021.
Susquehanna River Basin Commission, 4423 North Front Street, Harrisburg, PA 17110-1788.
Jason E. Oyler, General Counsel and Secretary to the Commission, telephone: (717) 238-0423, ext. 1312; fax: (717) 238-2436; email:
This notice lists the projects, described below, receiving approval for the consumptive use of water pursuant to the Commission's approval by rule process set forth in 18 CFR 806.22 (e) and 18 CFR 806.22 (f) for the time period specified above:
1. Repsol Oil & Gas USA, LLC; Pad ID: SHAW (05-272) J; ABR-202112001; Rush Township, Susquehanna County; Pa.; Consumptive Use of Up to 6.0000 mgd; Approval Date: December 3, 2021.
2. Coterra Energy, Inc.; Pad ID: GrooverS P1; ABR-201412003.R1; Bridgewater Township, Susquehanna County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: December 10, 2021.
3. SWN Production Company, LLC; Pad ID: HDK; ABR-201112001.R2; Franklin Township, Susquehanna County, Pa.; Consumptive Use of Up to 4.9990 mgd; Approval Date: December 10, 2021.
4. Seneca Resources Company, LLC; Pad ID: Oldroyd 509; ABR-20091218.R2; Rutland Township, Tioga County; Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: December 16, 2021.
5. Seneca Resources Company, LLC; Pad ID: Starks 460; ABR-20091217.R2; Covington and Richmond Townships, Tioga County; Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: December 16, 2021.
6. Seneca Resources Company, LLC; Pad ID: Houck 433; ABR-20091207.R2; Delmar and Shippen Townships, Tioga County; Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: December 16, 2021.
7. Coterra Energy, Inc.; Pad ID: WrightW P1; ABR-201412005.R1; Bridgewater Township, Susquehanna County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: December 16, 2021.
8. SWN Production Company, LLC; Pad ID: INNES; ABR-201111032.R2; New Milford Township, Susquehanna County, Pa.; Consumptive Use of Up to 4.9990 mgd; Approval Date: December 16, 2021.
9. SWN Production Company, LLC; Pad ID: SKELLY; ABR-201112005.R2; New Milford Township, Susquehanna County, Pa.; Consumptive Use of Up to 4.9990 mgd; Approval Date: December 16, 2021.
10. Seneca Resources Company, LLC; Pad ID: SGL 90 E Pad; ABR-201512008.R1; Lawrence Township, Clearfield County; Pa.; Consumptive Use of Up to 4.0000 mgd; Approval Date: December 22, 2021.
11. Coterra Energy, Inc.; Pad ID: StellitanoA P1; ABR-201412008.R1; Gibson Township, Susquehanna County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: December 22, 2021.
12. Coterra Energy, Inc.; Pad ID: HibbardAM P1; ABR-20091223.R2; Dimock Township, Susquehanna County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: December 22, 2021.
13. Coterra Energy, Inc.; Pad ID: HibbardAM P2; ABR-20091224.R2; Dimock Township, Susquehanna County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: December 22, 2021.
14. SWN Production Company, LLC; Pad ID: HOWLAND-LENT; ABR-201112032.R2; Herrick Township, Bradford County, Pa.; Consumptive Use of Up to 4.9990 mgd; Approval Date: December 22, 2021.
15. Pennsylvania General Energy Company, L.L.C.; Pad ID: COP Tract 729 Pad B; ABR-201111015.R2; Cummings Township, Lycoming County; Pa.; Consumptive Use of Up to 3.5000 mgd; Approval Date: December 27, 2021.
16. Coterra Energy, Inc.; Pad ID: ZuppK P1; ABR-201112004.R2; Harford Township, Susquehanna County, Pa.; Consumptive Use of Up to 5.0000 mgd; Approval Date: December 27, 2021.
17. Chief Oil & Gas LLC; Pad ID: Kingsley B Drilling Pad; ABR-201112009.R2; Monroe Township, Bradford County; Pa.; Consumptive Use of Up to 2.0000 mgd; Approval Date: December 29, 2021.
18. Range Resources—Appalachia, LLC; Pad ID: Cornwall Mountain; ABR-201112040.R2; Lewis and Cogan House Townships, Lycoming County, Pa.; Consumptive Use of Up to 7.5000 mgd; Approval Date: December 29, 2021.
Office of the United States Trade Representative.
Notice and request for applications.
The Office of the United States Trade Representative (USTR) is establishing a new four-year charter term and accepting applications from qualified individuals interested in serving as a member of the Trade Advisory Committee on Africa (TACA). The TACA is a trade advisory committee that provides general policy advice and guidance to the U.S. Trade Representative on trade policy and development matters that have a significant impact on the countries of sub-Saharan Africa.
USTR will accept nominations on a rolling basis for membership on the TACA for the four-year charter term beginning in March 2022. To ensure consideration before the new charter term, you should submit your application by February 4, 2022.
Ethan Holmes, Director for Private Sector Engagement,
Section 135(c)(1) of the Trade Act of 1974, as amended (19 U.S.C. 2155(c)(1)), authorizes the President to establish individual general trade policy advisory committees for industry, labor, agriculture, services, investment, defense, small business, and other interests, as appropriate, to provide general policy advice. The President delegated that authority to the U.S. Trade Representative in Executive Order 11846, section 4(d), issued on March 27, 1975. In addition, section 14 of the AGOA Acceleration Act of 2004, Public Law 108-274, 118 Stat. 829-830 (codified at 19 U.S.C. 3701 note) specifically acknowledges the TACA, which USTR established under these authorities. With limited statutory exceptions, the TACA is subject to the provisions of the Federal Advisory Committee Act.
Pursuant to these authorities, the U.S. Trade Representative intends to establish a new four-year charter term for the TACA, which will begin in March 2022.
The TACA is a discretionary trade advisory committee established to provide general policy advice to the U.S. Trade Representative on trade policy and development matters that have a significant impact on the countries of sub-Saharan Africa. More specifically, the TACA provides general policy advice on issues that may affect the countries of sub-Saharan Africa including: (1) Negotiating objectives and bargaining positions before entering into trade agreements; (2) the impact of the implementation of trade agreements; (3) matters concerning the operation of any trade agreement once entered into; and (4) other matters arising in connection with the development, implementation, and administration of the trade policy of the United States. The TACA also facilitates the goals and objectives of the African Growth and Opportunity Act (AGOA) and assists in maintaining ongoing discussions with sub-Saharan African trade and agriculture ministries and private sector organizations on issues of mutual concern, including regional and international trade concerns and World Trade Organization issues. The TACA meets as needed, at the call of the U.S. Trade Representative or their designee, or two-thirds of the TACA members, depending on various factors such as the level of activity of trade negotiations and the needs of the U.S. Trade Representative.
The TACA is composed of not more than 30 members who have expertise in general trade, investment and development issues and specific knowledge of United States-Africa trade and investment trends including trade under the AGOA; constraints to trade and investment (including infrastructure, energy and financing); trade facilitation measures; sanitary and phyto-sanitary measures and technical barriers to trade; trade capacity building; investment treaty negotiations; United States-Africa investment and private sector partnerships; and implementation of World Trade Organization agreements. Members may represent industry, organized labor, investment, agriculture, services, non-profit development organizations, academia, and small business. Fostering diversity, equity, inclusion and accessibility (DEIA) is one of the top priorities.
The U.S. Trade Representative appoints TACA members for a term that will not exceed the duration of this charter. Members serve at the discretion of the U.S. Trade Representative. Individuals can be reappointed for any number of terms.
The U.S. Trade Representative is committed to a trade agenda that advances racial equity and supports underserved communities and will seek advice and recommendations on trade policies that eliminate social and economic structural barriers to equality and economic opportunity, and to better understand the projected impact of proposed trade policies on communities of color and underserved communities. The U.S. Trade Representative strongly encourages diverse backgrounds and perspectives and makes appointments to the TACA without regard to political affiliation and in accordance with equal opportunity practices that promote diversity, equity, inclusion, and accessibility. USTR strives to ensure balance in terms of sectors, demographics, and other factors relevant to USTR's needs. Insofar as practicable, TACA membership will reflect regional diversity and be broadly representative of key sectors and groups of the economy with an interest in trade and sub-Saharan Africa issues, including U.S. citizens who are diaspora African and U.S. citizens of African descent with requisite knowledge and experience.
TACA members serve without either compensation or reimbursement of expenses. Members are responsible for all expenses they incur to attend meetings or otherwise participate in TACA activities.
The U.S. Trade Representative appoints TACA members to represent their sponsoring U.S. entity's interests on sub-Saharan Africa trade, and thus USTR's foremost consideration for applicants is their ability to carry out the goals of section 135(c) of the Trade Act of 1974, as amended. Other criteria include the applicant's knowledge of and expertise in international trade issues as relevant to the work of the TACA and USTR. USTR anticipates that almost all TACA members will serve in a representative capacity with a very limited number serving in an individual capacity as a subject matter expert. These members, known as special government employees or SGEs, are subject to conflict of interest rules and may have to complete a financial disclosure report.
USTR is soliciting nominations for membership on the TACA. To apply for membership, an applicant must meet the following eligibility criteria at the time of application and at all times during their term of service as a TACA member:
1. The applicant must be a U.S. citizen.
2. The applicant cannot be a full-time employee of a U.S. governmental entity.
3. If serving in an individual capacity as an SGE, the applicant cannot be a federally registered lobbyist.
4. The applicant cannot be registered with the U.S. Department of Justice under the Foreign Agents Registration Act.
5. The applicant must be able to obtain and maintain a security clearance.027
6. For representative members, who will comprise virtually all of the TACA membership, the applicant must represent a U.S. organization whose members (or funders) have a demonstrated interest in issues relevant to U.S. African trade and investment or have personal experience or expertise in United States-sub-Saharan African trade.
For eligibility purposes, a “U.S. organization” is an organization established under the laws of the United States, that is controlled by U.S. citizens, by another U.S. organization (or organizations), or by a U.S. entity (or entities), determined based on its board of directors (or comparable governing body), membership, and funding sources, as applicable. To qualify as a U.S. organization, more than 50 percent of the board of directors (or comparable governing body) and more than 50 percent of the membership of the organization to be represented must be U.S. citizens, U.S. organizations, or U.S. entities. Additionally, at least 50 percent of the organization's annual revenue must be attributable to nongovernmental U.S. sources.
7. For members who will serve in an individual capacity, the applicant must possess subject matter expertise regarding sub-Saharan Africa trade issues.
In order to be considered for TACA membership, interested persons should submit the following to Ethan Holmes, Director for Private Sector Engagement, at
• Name, title, affiliation, and contact information of the individual requesting consideration.
• If applicable, a sponsor letter on the organization's letterhead containing a brief description of the manner in which international trade affects the organization and why USTR should consider the applicant for membership.
• The applicant's personal resume.
• An affirmative statement that the applicant and the organization they represent meet all eligibility requirements.
USTR will consider applicants who meet the eligibility criteria in accordance with equal opportunity practices that promote diversity, equity, inclusion, and accessibility, based on the following factors:
• Ability to represent the sponsoring U.S. entity's or U.S. organization's and its subsector's interests on sub-Saharan Africa trade matters.
• Knowledge of and experience in trade matters relevant to the work of the TACA and USTR.
• How they will contribute to trade policies that eliminate social and economic structural barriers to equality and economic opportunity and to understanding of the projected impact of proposed trade policies on communities of color and underserved communities.
• Ensuring that the TACA is balanced in terms of points of view, demographics, geography, and entity or organization size.
Federal Aviation Administration (FAA), DOT.
Notice of request to release airport property.
The FAA proposes to rule and invite public comment on the release of land at the Saline County Regional Airport under the provisions of Section 125 of the Wendell H. Ford Aviation Investment Reform Act for the 21st Century (AIR 21).
Comments must be received on or before (from 30 days of the posting of this
Comments on this application may be mailed or delivered to the FAA at the following address: Mr. Glenn A. Boles, Manager, Federal Aviation Administration, Southwest Region, Airports Division, Arkansas/Oklahoma Airports Development Office, ASW-630, Fort Worth, Texas 76177.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Judge Jeff Arey, Saline County Judge, at the following address: 200 North Main Street, RM117, Benton, AR 72015.
Ms. Sara K. Fields-Pack, Program Manager, Federal Aviation Administration, Arkansas/Oklahoma Airports Development Office, ASW-630, 10101 Hillwood Parkway, Fort Worth, Texas 76177, Telephone: (817) 222-4101, Email:
The FAA invites public comment on the request to release property at the Saline County Regional Airport under the provisions of the AIR 21.
The following is a brief overview of the request:
Saline County requests the release of 28.97 acres of excess aeronautical land. The property will be sold for non-aeronautical land use purposes.
Any person may inspect the request in person at the FAA office listed above under
In addition, any person may, upon request, inspect the application, notice and other documents relevant to the application in person at the Saline County Attorney, telephone number (501) 303-1555.
Federal Aviation Administration (FAA), DOT.
Notice of Intent of Waiver with respect to land use change from aeronautical to non-aeronautical.
The Federal Aviation Administration (FAA) is considering a proposal from the City of Kansas City, MO, to release a 13.94 acre parcel of land from the federal obligation dedicating it to aeronautical use and to authorize this parcel to be used for revenue-producing, non-aeronautical purposes.
Comments must be received on or before February 10, 2022.
Comments on this application may be mailed or delivered to the FAA at the following address: Amy J. Walter, Airports Land Specialist, Federal Aviation Administration, Airports Division, ACE-620G, 901 Locust, Room 364, Kansas City, MO 64106.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to: Patrick Klein, Director of Aviation or Mike Waller, Senior Planner, Kansas City International Airport, Aviation Department, 601 Brasilia Avenue, Kansas City, MO 64153, (816) 243-3100.
Amy J. Walter, Airports Land Specialist, Federal Aviation Administration, Airports Division, ACE-620G, 901 Locust Room 364, Kansas City, MO 64106, Telephone number (816) 329-2603, Fax number (816) 329-2611, email address:
The FAA invites public comment on the request to change a 13.94 acre parcel of airport property at the Kansas City International Airport (MCI) from aeronautical use to non-aeronautical revenue producing use. This parcel will be leased for the relocation and construction of the FBI Kansas City Division Headquarters.
No airport landside or airside facilities are presently located on this parcel, nor are airport developments contemplated in the future. There is no current use of the surface of the parcel. The parcel will serve as a revenue producing lot with the proposed change from aeronautical to non-aeronautical. The request submitted by the Sponsor meets the procedural requirements of the Federal Aviation Administration and the change to non-aeronautical status of the property does not and will not impact future aviation needs at the airport. The FAA may approve the request, in whole or in part, no sooner than thirty days after the publication of this Notice.
The following is a brief overview of the request:
The Kansas City International Airport (MCI) is proposing the use release of a 13.94 acre parcel of land from aeronautical to non-aeronautical. The use release of land is necessary to comply with Federal Aviation Administration Grant Assurances that do not allow federally acquired airport property to be used for non-aviation purposes. The rental of the subject property will result in the land at the Kansas City International Airport (MCI) being changed from aeronautical to non-aeronautical use and release the lands from the conditions of the Airport Improvement Program Grant Agreement Grant Assurances. In accordance with 49 U.S.C. 47107(c)(2)(B)(i) and (iii), the airport will receive fair market rental value for the property. The annual income from rent payments will generate a long-term, revenue-producing stream that will further the Sponsor's obligation under FAA Grant Assurance number 24, to make the Kansas City International Airport as financially self-sufficient as possible.
Any person may inspect, by appointment, the request in person at the FAA office listed above. In addition, any person may upon request, inspect the application, notice and other documents determined by the FAA to be related to the application in person at the Kansas City International Airport—Aviation Department.
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice of final disposition.
FMCSA announces its decision to exempt 11 individuals from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) to operate a commercial motor vehicle (CMV) in interstate commerce. They are unable to meet the vision requirement in one eye for various reasons. The exemptions enable these individuals to operate CMVs in interstate commerce without meeting the vision requirement in one eye.
The exemptions were applicable on December 28, 2021. The exemptions expire on December 28, 2023.
Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366-4001,
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
On November 24, 2021, FMCSA published a notice announcing receipt of applications from 11 individuals requesting an exemption from vision requirement in 49 CFR 391.41(b)(10) and requested comments from the public (86 FR 67112). The public comment period ended on December 27, 2021, and no comments were received.
FMCSA has evaluated the eligibility of these applicants and determined that granting the exemptions to these individuals would achieve a level of safety equivalent to, or greater than, the level that would be achieved by complying with § 391.41(b)(10).
The physical qualification standard for drivers regarding vision found in § 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
FMCSA received no comments in this proceeding.
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 Agency's decision regarding these exemption applications is based on medical reports about the applicants' vision, as well as their driving records and experience driving with the vision deficiency. The qualifications, experience, and medical condition of each applicant were stated and discussed in detail in the November 24, 2021,
FMCSA recognizes that some drivers do not meet the vision requirement but have adapted their driving to accommodate their limitation and demonstrated their ability to drive safely. The 11 exemption applicants listed in this notice are in this category. They are unable to meet the vision requirement in one eye for various reasons, including amblyopia, anterior synechiae, cataract, complete vision loss, corneal scarring, extropia, macular degeneration, macular retinal detachment, and prosthesis. In most cases, their eye conditions did not develop recently. Four of the applicants were either born with their vision impairments or have had them since childhood. The seven individuals that developed their vision conditions as adults have had them for a range of 4 to 33 years. Although each applicant has one eye that does not meet the vision requirement in § 391.41(b)(10), each has at least 20/40 corrected vision in the other eye, and, in a doctor's opinion, has sufficient vision to perform all the tasks necessary to operate a CMV.
Doctors' opinions are supported by the applicants' possession of a valid license to operate a CMV. By meeting State licensing requirements, the applicants demonstrated their ability to operate a CMV with their limited vision in intrastate commerce, even though their vision disqualified them from driving in interstate commerce. We believe that the applicants' intrastate driving experience and history provide an adequate basis for predicting their ability to drive safely in interstate commerce. Intrastate driving, like interstate operations, involves substantial driving on highways on the interstate system and on other roads built to interstate standards. Moreover, driving in congested urban areas exposes the driver to more pedestrian and vehicular traffic than exists on interstate highways. Faster reaction to traffic and traffic signals is generally required because distances between them are more compact. These conditions tax visual capacity and driver response just as intensely as interstate driving conditions.
The applicants in this notice have driven CMVs with their limited vision in careers ranging for 3 to 49 years. In the past 3 years, one driver was involved in a crash, and no drivers were convicted of moving violations in CMVs. All the applicants achieved a record of safety while driving with their vision impairment that demonstrates the likelihood that they have adapted their driving skills to accommodate their condition. As the applicants' ample driving histories with their vision deficiencies are good predictors of future performance, FMCSA concludes their ability to drive safely can be projected into the future.
Consequently, FMCSA finds that in each case exempting these applicants from the vision requirement in § 391.41(b)(10) is likely to achieve a level of safety equal to that existing without the exemption.
The terms and conditions of the exemption are provided to the applicants in the exemption document and includes the following: (1) Each driver must be physically examined every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the standard in § 391.41(b)(10) and (b) by a certified medical examiner (ME) who attests that the individual 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 in his/her driver's qualification file if he/she 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.
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 11 exemption applications, FMCSA exempts the following drivers from the vision requirement, § 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 2 years from the effective date unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (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 prior to being 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).
Under part 211 of title 49 Code of Federal Regulations (CFR), this document provides the public notice that on November 7 and 8, 2021, the Nevada Northern Railway Museum (NNR) petitioned the Federal Railroad Administration (FRA) for an extension of a waiver of compliance from certain
Specifically, NNR requested to extend its special approval pursuant to 49 CFR 215.203,
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment and a public hearing, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted at
Communications received by February 25, 2022 will be considered by FRA before final action is taken. Comments received after that date will be considered if practicable. Anyone can search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). Under 5 U.S.C. 553(c), the U.S. Department of Transportation (DOT) solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
Department of Transportation.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Department of Transportation (DOT) provides notice that it will submit an information collection requests (ICR) to the Office of Management and Budget (OMB) for emergency approval of a proposed information collection. Upon receiving the requested six-month emergency approval by OMB, the Office of the Secretary (OST) will follow the normal PRA procedures to obtain extended approval for this proposed information collection. This collection involves applicants to submit a proposal for discretionary grant funding, under the “National Infrastructure Project Assistance Program, established by the Infrastructure Investment and Jobs Act of 2021, November 15, 2021, “Bipartisan Infrastructure Law”, or “BIL”. OST is requesting emergency approval due to the urgency of making the associated funds available to applicants that meet the eligibility requirements under the law. The continued viability of these funds is critical in supporting the transportation infrastructure needs across the United States. The statutory requirements of the BIL also establish a strict 90-day timeframe from the date of enactment to publish a Notice of Funding Opportunity.
Comments should be submitted as soon as possible upon publication of this notice in the
Comments and questions should be directed to the Office of Information and Regulatory Affairs (OIRA), Attn: OST OMB Desk Officer, 725 17th Street NW, Washington, DC 20503. Comments and questions about the ICR identified below may be transmitted electronically to OIRA at
Information related to this ICR, including applicable supporting documentation may be obtained by contacting John Augustine, Office of Infrastructure Finance and Innovation in the office of the Under Secretary for Transportation Policy (OST-P-40), W84-306, Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, (202) 366-5437.
The Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35; as amended) and 5 CFR part 1320 require each Federal agency to obtain OMB approval to initiate an information collection activity. DOT is seeking OMB approval for the following DOT information collection activity:
In order to be considered to receive a grant, a project sponsor must submit an application to OST containing a project narrative, as detailed in the Notice of Funding Opportunity. The project narrative should include the information necessary for the
The Department will receive applications and reports electronically via email and via websites from grant awardees upon approval from OMB. In order to minimize the burden on applicants, OMB approved standard forms are being used to collect information where possible. Such standard forms include the Application for Federal Assistance (SF-424), available online at
All information submitted as part of or in support of any application shall use publicly available data or data that can be made public. If the application includes information the applicant considers to be a trade secret or confidential commercial or financial information, the applicant should do the following: (1) Note on the front cover that the submission “Contains Confidential Business Information (CBI)”; (2) mark each affected page “CBI”; and (3) highlight or otherwise denote the CBI portions. DOT protects such information from disclosure to the extent allowed under applicable law. In the event DOT receives a Freedom of Information Act (FOIA) request for the information, DOT will follow the procedures described in its FOIA regulations at 49 CFR 7.17. Only information that is ultimately determined to be confidential under that procedure will be exempt from disclosure under FOIA. This grant program is voluntary. No stakeholder is required to participate. However, participating stakeholders will be expected to provide the following information.
The Department will collect the following information:
• Legal name of the applicant (
• Address, telephone, and email contact information for the applicant.
• Name and title of the authorized representative of the applicant (who will attest to the required certifications).
• DOT may also require the identity of external parties involved in preparation of the application, who may be assisting the applicant that is applying for assistance under this program.
• The specific statutory criteria that the applicant meets for eligibility under this program.
○ The statute defines eligible applicants to include States, the District of Columbia; the Commonwealth of Puerto Rico; the Commonwealth of the Northern Mariana Islands; the United States Virgin Islands; American Samoa; and, any other territory or possession of the United States; a unit of local government; a metropolitan planning organization; a unit of local government; a political subdivision of a State; a special purpose district or public authority with a transportation function, including a port authority; a Tribal government or a consortium of Tribal governments; a partnership between Amtrak and 1 or more entities described above; and a group of entities described above.
○ The statute defines eligible projects to include:
(A) A highway or bridge project carried out on: (i) The National Multimodal Freight Network established under section 70103; (ii) the National Highway Freight Network established under section 167 of title 23; or (iii) the National Highway System (as defined in section 101(a) of title 23);
(B) a freight intermodal (including public ports) or freight rail project that provides a public benefit;
(C) a railway-highway grade separation or elimination project;
(D) an intercity passenger rail project;
(E) a public transportation project that is: (i) Eligible for assistance under chapter 53; and (ii) part of a project described in any of subparagraphs (A) through (D); or
(F) a grouping, combination, or program of interrelated, connected, or dependent projects of any of the projects described in subparagraphs (A) through (E); and the eligible project costs of which are: (A) Reasonably anticipated to equal or exceed $500,000,000; or (B) for any project funded by the set-aside under subsection (m)(2): (i) More than $100,000,000; but (ii) less than $500,000,000.
• The specific statutory criteria for the applicant's location:
○ Whether the applicant is located in an urban or rural area, as defined by the statute and outlined in the Notice of Funding Opportunity. This information and supporting documentation will be required to ensure geographical diversity, and a balance between rural and urban communities.
○ Whether the applicant is located in an area of persistent poverty and/or a historically disadvantaged community.
• A narrative description of how the project aligns with the program criteria.
• Criteria include the extent to which the project: Supports achieving a state of good repair; the level of benefits the project is expected to generate; the benefits as compared to the costs; the number of persons or volume of freight supported by the project; national and regional economic benefits; as well as additional considerations, including: Contributions to geographical diversity the including a balance between the needs of urban/rural areas; whether multiple states would benefit from a project; whether, and the degree to which, a project uses: Construction materials/approaches that have: Demonstrated GHG reductions, and a reduced the need for maintenance of other projects; technologies that will allow for future connectivity and automation; whether a project benefits: A historically disadvantaged community or population or an area or persistent poverty; whether a project benefits users of multiple modes, including: Pedestrians, bicyclists, and users of non-vehicular rail and public transportation, including intercity and commuter rail; whether a project improves connectivity between modes of transportation moving persons or goods nationally or regionally.
• A detailed project budget, including the grant request amount, other Federal funds, and non-Federal contributions. DOT requires this information to calculate the cost share requirements outlined in statute. Applicants will be required to provide supporting documentation in sufficient detail to describe the project cost breakdown.
• A plan for the collection and analysis of data to identify: The impacts of the project; and the accuracy of any forecast prepared during the development phase of the project and included in the grant application.
• Other identification numbers, such as their Data Universal Numbering System (DUNS) number, Unique Entity Identifier under 2 CFR part 25, etc. All applicants will be required to have pre-registered with the System for Award Management (SAM) at
The grant agreement is an agreement between DOT and the recipient. In the grant agreement, the recipient must describe the project that DOT agreed to fund, which is typically the project that was described in the application or a reduced-scope version of that project. The grant agreement must also include a detailed breakdown of the project schedule and a budget listing all major activities that will be completed as part of the project.
The reporting requirements under this stage are necessary to ensure the proper and timely expenditure of federal funds within the scope of the approved project. The requirements comply with the Common Grant Rule, and are also included in sections of the grant agreement. During the project management stage, the grantee will complete Quarterly Progress and Monitoring Reports to ensure that the project budget and schedule will be maintained to the maximum extent possible, that the project will be completed with the highest degree of quality, and that compliance with Federal regulations will be met. The substantive requirements of the report include: The project's overall status; project significant activities and issues; action items/outstanding issues; project scope overview; project schedule; project cost; an SF-425 Federal Financial Report; and certifications. This reporting requirement will greatly reduce the need for on-site visits by staff.
The reporting requirement under this stage is necessary to assess the long-term impact of the project by comparing the baseline data provided in the data collection plan as required in the application to project data collected during the five (5) years after project completion. This electronic spreadsheet report is collected once, at least five (5) years after project completion from grantees to help measure the effectiveness of the grants as a program. Information provided will allow the Government to analyze project performance.
The Paperwork Reduction Act of 1995; 44 U.S.C. chapter 35, as amended; and 49 CFR 1:48.
Issued in Washington, DC.
Financial Crimes Enforcement Network (FinCEN), Treasury.
Notice and request for comments.
As part of its continuing effort to reduce paperwork and respondent burden, FinCEN invites comments on the proposed renewal, without change, of a currently approved information collection found in existing Bank Secrecy Act regulations. Specifically, the regulations authorize the Secretary of the Treasury, as appropriate, to promulgate regulations requiring specified financial institutions to file reports with the Financial Crimes Enforcement Network of certain transactions with designated foreign financial agencies. Although no changes are proposed to the information collection itself, this request for comments covers a future expansion of the scope of the annual hourly burden and cost estimate associated with these regulations. This request for comments is made pursuant to the Paperwork Reduction Act of 1995.
Written comments are welcome, and must be received on or before March 14, 2022
Comments may be submitted by any of the following methods:
•
•
Please submit comments by one method only. Comments will generally become a matter of public record. For this reason, please do not include in your comments information of a confidential nature, such as sensitive personal information or proprietary information. A comment about the burden posed to a financial institution by a regulation requiring the reporting of certain transactions with designated foreign financial agencies, but that does not describe the regulation or the reporting requirement in detail will not be considered to contain confidential information.
The FinCEN Regulatory Support Section at 1-800-767-2825 or electronically at
The legislative framework generally referred to as the Bank Secrecy Act (BSA) consists of the Currency and Financial Transactions Reporting Act of 1970, as amended by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Public Law 107-56 (October 26, 2001), and other legislation, including most recently the Anti-Money Laundering Act of 2020 (AML Act).
The BSA authorizes the Secretary of the Treasury,
The Secretary is authorized to require any “resident or citizen of the United States or a person in, and doing business in, the United States, to . . . keep records and file reports, when the resident, citizen, or person makes a transaction or maintains a relation for any person with a foreign financial agency.”
31 CFR 1010.360(a) authorizes the Secretary, when the Secretary deems appropriate, to promulgate regulations requiring specified financial institutions to file reports of certain transactions with designated FFAs.
A regulation promulgated pursuant to 31 CFR 1010.360(a) must designate one or more of the following categories of information to be reported by the specified financial institution:
• Checks or drafts, including traveler's checks, received by a respondent financial institution for collection or credit to the account of a designated FFA, sent by the respondent financial institution to a foreign country for collection or payment, drawn by the respondent financial institution on a designated FFA, or drawn by a designated FFA on the respondent financial institution, including the following information: Name of maker or drawer; name of drawee or drawee financial institution; name of payee; date and amount of instrument; and names of all endorsers.
• Transmittal orders received by a respondent financial institution from a designated FFA or sent by the respondent financial institution to a designated FFA, including all information maintained by that institution pursuant to 31 CFR 1010.410 and 1020.410.
• Loans made by a respondent financial institution to or through a designated FFA, including the following information: Name of borrower; name of person acting for borrower; date and amount of loan; terms of repayment; name of guarantor; rate of interest; method of distributing proceeds; and collateral for loan.
• Commercial paper received or shipped by a respondent financial institution, including the following information: Name of maker; date and amount of paper; due date; certificate number; and amount of transaction.
• Stocks received or shipped by a respondent financial institution, including the following information: Name of corporation; type of stock; certificate number; number of shares; date of certificate; name of registered holder; and amount of transaction.
• Bonds received or shipped by a respondent financial institution, including the following information: Name of issuer; bond number; type of bond series; date issued; due date; rate of interest; amount of transaction; and name of registered holder.
• Certificates of deposit received or shipped by a respondent financial institution, including the following information: Name and address of issuer; date issued; dollar amount; name of registered holder; due date; rate of interest; certificate number; and name and address of issuing agent.
In issuing regulations as provided in 31 CFR 1010.360(a), the Secretary must prescribe: A reasonable classification of financial institutions subject to or exempt from a reporting requirement; a foreign country to which a reporting requirement applies if the Secretary decides that applying the requirement to all foreign countries is unnecessary or undesirable; the magnitude of transactions subject to a reporting requirement; and the kind of transaction subject to or exempt from a reporting requirement.
Regulations issued pursuant to 31 CFR 1010.360(a) may prescribe the manner in which the information is to be reported. However, the Secretary may authorize a designated financial institution to report in a different manner if the institution demonstrates to the Secretary that the form of the required report is unnecessarily burdensome on the institution as prescribed; that a report in a different form will provide all the information the Secretary deems necessary; and that submission of the information in a different manner will not unduly hinder the effective administration of 31 CFR Chapter X.
In issuing regulations under 31 CFR 1010.360(e), the Secretary: (i) Must consider the need to avoid impeding or controlling the export or import of monetary instruments and the need to avoid burdening unreasonably a person making a transaction with a designated FFA; (ii) cannot issue a regulation under 31 CFR 1010.360(a) for the purpose of obtaining individually identifiable account information concerning a customer, as defined by the Right to Financial Privacy Act,
31 CFR 1010.430(d) requires that all records that are required to be retained by Chapter X must be retained for a period of five years.
• Renewal without change of a currently approved information collection.
• Propose for review and comment a renewal of the portion of the PRA burden that has been subject to notice and comment in the past (the “traditional annual PRA burden”).
• Propose for review and comment a future expansion of the scope of the PRA burden (the “supplemental annual PRA burden”).
In Part 1, FinCEN proposes for review and comment a renewal of the estimate of the traditional annual PRA hourly burden, which includes a scope and methodology similar to that used in the past, with the incorporation of a more robust cost estimate. In the past, FinCEN estimated that, for one FFA request, it would take one financial institution five hours to report the required transactions as part of one response. The scope and methodology used in the past did not factor in that, as part of one FFA request, financial institutions may be asked to report on multiple prior (“backward-looking”) and future (“forward-looking”) transactions with a designated FFA. FinCEN assesses that the volume of reportable transactions, per financial institution and FFA request over a specified forward- and backward-looking period, along with the burden to implement a monitoring system for such transactions, would be the best indication of an annual hourly burden estimate per financial institution in the future. For that reason, in Part 2, FinCEN proposes for review and comment a methodology to estimate the hourly burden and the cost of a future estimate of a supplemental annual PRA burden that includes the burden and cost per financial institution, per FFA request of complying with forward and backward-looking reporting requirements. Finally, in Part 3, FinCEN solicits input from the public about: (a) The accuracy of the traditional annual PRA burden estimate; (b) the method proposed for the calculation of the future supplemental annual PRA burden; (c) the criteria, metrics, and most appropriate questions FinCEN should consider when researching the information to estimate the future traditional and supplemental annual PRA burden, according to the methodology proposed; and (d) any other comments about the regulations and the current and proposed future hourly burden and cost estimates of these requirements.
Generally, the information required to be reported pursuant to an FFA regulation is basic information that a domestic financial institution would already maintain based on current BSA recordkeeping requirements. For example, a domestic financial institution sending or receiving transmittal orders (funds transfers) with a designated FFA would have access to the information required to be reported. The information required to be reported pursuant to an FFA regulation includes one or more of the following categories: (i) Checks or drafts; (ii) transmittal orders; (iii) loans; (iv) commercial paper; (v) stocks; (vi) bonds; and (vii) certificates of deposit. Although FFA requests may include any of these types of transactions, in general, over the past three years, FinCEN has only made requests associated with funds transfers.
As noted above, FinCEN will specify the form and method for reporting and typically provides a reporting schedule to each specified financial institution. If a specified financial institution does not have any reportable transactions, that information must be reported to FinCEN.
Because of the difficulty involved in estimating the (i) volume of reportable transactions per FFA request over a specified forward- and backward-looking period of time, and (ii) burden for a financial institution to implement a monitoring system to conduct such searches, FinCEN continues to estimate that reporting this information will take five hours on average for the traditional annual PRA burden. Additionally, the FFA information is typically reported by uploading a comma-separated value file spreadsheet through FinCEN's Secure Information Sharing System, which allows the filer to save an electronic version of the report and satisfy the recordkeeping requirement. FinCEN estimates that the recordkeeping requirement will take five minutes on average. Therefore, FinCEN estimates the total hourly reporting and recordkeeping burden for each FFA request is five hours and five minutes per response by a financial institution.
FinCEN's estimate of the traditional annual PRA burden, therefore, is 427 hours, as detailed in Table 1 below:
To calculate the hourly costs of the burden estimate, FinCEN identified six roles and corresponding staff positions involved in filing reports of certain transactions with designated FFAs: (i) General oversight (providing institution-level process approval); (ii) general supervision (providing process oversight); (iii) direct supervision (reviewing operational-level work and cross-checking all or a sample of the work product against supporting documentation); (iv) clerical work (engaging in research and administrative review, and recordkeeping); (v) legal
FinCEN calculated the fully-loaded hourly wage for each of these six roles by using the mean wage estimated by the U.S. Bureau of Labor Statistics (BLS),
FinCEN
For filing reports of certain transactions with designated FFAs, the cost of each burden hour is estimated to be $95.00, as shown in Table 3 below:
The total estimated cost of the traditional annual PRA burden is $40,565 as reflected in Table 4 below:
In the future, FinCEN intends to add a supplemental annual PRA burden calculation that will include the estimated hourly burden and cost to comply with forward- and backward-looking reporting requirements as part of filing reports of certain transactions with designated FFAs. This estimate will include the burden associated with implementing a monitoring system to identify such transactions.
During the period from 2019 to 2021, FFA regulations issued by FinCEN had a forward- and backward-looking reporting requirement. Specified financial institutions were required to report forward 90-180 days out from the effective date of the regulation (usually the date of issuance), and backward 14 months to five years prior to the effective date of the regulation. Specified financial institutions were required to file one report for certain backward-looking transactions, and a report every 30-days for certain forward-looking transactions. As a result, one FFA regulation could result in as many as 7 different reporting periods.
As noted above, FinCEN assesses that the volume of reportable transactions per financial institution and FFA request, over a specified forward- and backward-looking period, along with the burden to implement a monitoring system for such transactions, would be the best indication of an annual hourly burden estimate in the future. FinCEN does not have the necessary information to provide a tentative estimate for these supplemental PRA hourly burdens and costs within the current notice. In addition, FinCEN does not have all the necessary information to precisely estimate the traditional annual PRA burden. For that reason, FinCEN is relying on estimates used in prior renewals of this OMB control number and the applicable regulations. FinCEN further recognizes that after receiving public comments as a result of this notice, future traditional annual PRA hourly burden and cost estimates may vary significantly. FinCEN intends to conduct more granular studies of the actions included in the proposed scope of the supplemental annual PRA burden in the near future to arrive at more precise estimates of net BSA hourly burden and cost.
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. Records required to be retained under the BSA must be retained for five years.
(a)
FinCEN invites comments on any aspect of the traditional annual PRA burden, as set out in Part 1 of this notice. In particular, FinCEN seeks comments on the adequacy of: (i) FinCEN's assumptions underlying its estimate of the burden; (ii) the estimated number of hours required by each portion of the burden; and (iii) the organizational levels of the financial institution engaged in each portion of the burden, their estimated hourly remuneration, and the estimated proportion of participation by each role. FinCEN encourages commenters to include any publicly available sources for alternative estimates or methodologies.
(b)
FinCEN invites comments on any aspect of the criteria for a future estimate of the supplemental annual PRA burden, as set out in Part 2 of this notice.
(c)
FinCEN invites comments on the most appropriate and comprehensive means to question financial institutions about the annual hourly burden and cost attributable solely to complying with the regulations that require reports of transactions with designated FFAs.
The supplemental annual PRA hourly burden and cost estimate to comply with the regulations that require reports of transactions with designated FFAs must take into consideration only the effort involved in obtaining those data elements that are used exclusively for complying with requirements under 31 CFR 1010.360 and 31 CFR 1010.430, respectively. Given the complexity in determining what portion of the effort to include in the estimate, FinCEN seeks comments from the public regarding any questions we should consider posing in future notices, in addition to the specific questions for comment outlined directly below.
• What is the burden to comply with requests for records issued under the FFA regulations (31 CFR 1010.360 and 31 CFR 1010.430)?
• How much time is spent on complying with the backward-looking requirements of an FFA request?
• How much time is spent on complying with the forward-looking requirements of an FFA request?
• Of the time spent on complying with backward- or forward-looking reporting requirements, what percentage
• Are there employees with any other roles and corresponding staff positions involved in filing reports of certain transactions with designated FFAs?
• Does your financial institution typically report the data for requests that involve multiple designated FFAs in one report or multiple reports for each tranche of reporting?
• What challenges does your financial institution face or overcome in complying with FFA regulations?
• What can be done to improve transparency and communication as part of the FFA reporting process?
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (i) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (ii) the accuracy of the agency's estimate of the burden of the collection of information; (iii) ways to enhance the quality, utility, and clarity of the information to be collected; (iv) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (v) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
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 Form 5754,
Written comments should be received on or before March 14, 2022 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 60 days of publication of this notice to
Project Number: Form 5754.
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 Form 5310-A,
Written comments should be received on or before March 14, 2022 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 60 days of publication of this notice to
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 Form 1094-B,
Written comments should be received on or before March 14, 2022 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 60 days of publication of this notice to
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
• 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.
Departmental Offices, U.S. Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on these requests.
Comments should be received on or before February 10, 2022 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submissions may be obtained from Spencer W. Clark by emailing
The IRS is adding Form 1116 Schedules B and C to assist taxpayers in complying with the changes made to the Internal Revenue Code by the Tax Cuts and Jobs Act, Public Law 115-97, and accurately report the required information to the IRS.
The information collection burden estimates associated with the filing of Form 1116 and its schedules by individuals are covered under OMB Control Number 1545-0074. This information collection request (ICR) reflects only the burdens associated with the filing of Form 1116 and its schedules by estates and trusts that are claiming the foreign tax credit.
Office of Acquisition and Logistics, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Office of Acquisition and Logistics (OAL), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and includes the actual data collection instrument.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 1717 H Street NW, Washington, DC 20006, (202) 266-4688 or email
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 1717 H Street NW, Washington, DC 20006, (202) 266-4688 or email
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
Veterans Benefits Administration, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before March 14, 2022.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 1717 H Street NW, Washington, DC 20006, (202) 266-4688 or email
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary:
Federal Energy Regulatory Commission.
Final rule.
In this final rule, the Federal Energy Regulatory Commission (Commission) is amending its regulations governing the safety of hydroelectric projects licensed by the Commission under the Federal Power Act. These regulations will promote the safe operation, effective maintenance, and efficient repair of licensed hydroelectric projects and project works to ensure the protection of life, health, and property in surrounding communities. Specifically, the Commission is revising its regulations to: incorporate two tiers of project safety inspections by independent consultants, codify existing guidance requiring certain licensees to develop an owner's dam safety program and a public safety plan, update existing regulations related to public safety incident reporting, and make various minor revisions.
The rule is effective April 11, 2022.
1. The Federal Energy Regulatory Commission (Commission or FERC), under Part I of the Federal Power Act (FPA), licenses hydroelectric projects that are developed by non-Federal entities including individuals, private entities, Indian Tribes, states, municipalities, electric cooperatives, and others. Under section 10(c) of the FPA, the licensee of any hydroelectric project under the jurisdiction of the Commission must conform to “such rules and regulations as the Commission may from time to time prescribe for the protection of life, health, and property.”
2. Since early 2017, the Commission has solicited, received, and reviewed expert opinions on the structure and implementation of the Commission's dam safety program, particularly the provisions for independent consultants' safety inspections required under part 12, subpart D of the Commission's regulations.
3. To address expert recommendations on the part 12 inspection process, and to codify guidance issued by the Commission's Office of Energy Projects, Division of Dam Safety and Inspections (D2SI) over the past several years, the Commission is revising its dam safety regulations found in Title 18, part 12 of the Code of Federal Regulations. In this final rule, the Commission is revising part 12 by replacing subpart D in its entirety, adding new subpart F, and making minor revisions to subparts A, B, C, and E, as further described below.
4. Section 10(c) of the FPA requires licensees, in pertinent part, to “maintain the project works in a condition of repair adequate . . . for the efficient operation of said works in the development and transmission of power,” to “make all necessary renewals and replacements,” and to “conform to such rules and regulations as the Commission may from time to time prescribe for the protection of life, health, and property.”
5. Pursuant to FPA section 10(c), on December 27, 1965, the Commission's predecessor agency, the Federal Power Commission (FPC), in Order No. 315, promulgated regulations that require licensees to provide complete safety inspections of licensed water power project works by independent consultants at five-year intervals, or more frequently if necessary.
6. On January 21, 1981, the Commission issued Order No. 122 to consolidate the Commission's orders, regulations, and practices relating to
7. To ensure that the Commission's dam safety program remains current with the evolving nature of the dam safety field, D2SI staff issues, and periodically updates,
8. In June 2002, D2SI began a licensee pilot program for conducting a Potential Failure Mode Analysis
9. On December 14, 2005, the upper reservoir of the Taum Sauk Hydroelectric Project No. 2277, a pumped storage project, was overtopped during the final pumping cycle, causing a breach of the upper reservoir which released over 1 billion gallons of water, resulting in personal injury and significant environmental and property damage.
10. On February 7, 2017, high flows in the Feather River basin caused the water level in the Feather River Hydroelectric Project No. 2100 reservoir to rise at Oroville Dam and, for the first time in project history, flow down the emergency spillway, resulting in extensive erosion and damage to Oroville Dam's main spillway and emergency spillway area.
11. Separately, the Commission convened a FERC After Action Panel to review and evaluate the Commission's dam safety program in the months following the Oroville Dam spillway incident. The D2SI Director's mandate to the FERC After Action Panel was to: “review project documents and history for Oroville Dam . . . .;” “review the performance of the FERC dam safety program at the Oroville Dam Project, which includes both work and actions by FERC staff, and the program requirements on the dam owner, such as the [p]art 12 process, the [Potential Failure Mode Analyses] process, the Instrumentation and Monitoring Program, and Owners Dam Safety Program . . . .;” “make conclusions regarding any shortcomings in the FERC dam safety program implementation at Oroville Dam;” and if shortcomings are identified, recommend “improvement or changes to the FERC dam safety program to ensure that future incidents like Oroville can be avoided.”
12. The FERC After Action Panel Report documented several shortcomings of the Commission's dam safety program with respect to its implementation at the Oroville Dam Project, and recommended several improvements to the part 12 inspection process that could increase the likelihood that design and operational deficiencies are detected in advance of a major incident.
13. In light of the Oroville Independent Forensic Team Report and the FERC After Action Panel Report findings, the desire to codify existing dam safety guidance, and the Commission's authority under FPA section 10(c) to promulgate rules protecting life, health, and property, the Commission is revising its part 12 dam safety regulations, as discussed further below.
14. On July 16, 2020, the Commission issued a Notice of Proposed Rulemaking proposing to revise its part 12 regulations to incorporate two tiers of independent consultant safety inspections, codify existing guidance on developing owner's dam safety programs and public safety plans, modify public safety incident reporting requirements, and make various minor revisions throughout part 12.
15. The Commission is also in the process of updating its Engineering Guidelines by adding new Chapters 15 through 18. On July 16, 2020, concurrently with issuance of the NOPR, the Commission solicited public review and comment by issuing the new guidelines in draft format in four separate advisory dockets accessible on the Commission's eLibrary website. Chapter 15, in Docket No. AD20-20-000, provides licensee guidance for developing and maintaining a Supporting Technical Information Document.
16. As explained in the NOPR, the Commission evaluated potential revisions to its part 12 regulations by considering the findings of the Oroville Independent Forensic Team and FERC After Action Panel; reviewing the inspection practices of other Federal agencies responsible for ensuring the safety of a large number of dams, including those of the Bureau of Reclamation (Reclamation)
17. In addition to making various minor revisions and updates to our part 12 regulations, this final rule accomplishes four overarching objectives that are integral to strengthening the Commission's dam safety program and addressing shortcomings identified by the forensic investigations that followed the Oroville Dam spillway incident. First, the final rule implements two tiers of part 12 independent consultant safety inspections, in addition to Commission staff's regular inspections. The two-tier structure includes two types of inspections: a comprehensive assessment and a periodic inspection. Each type of inspection will be performed at a 10-year interval, with the periodic inspection occurring midway between comprehensive assessments. The two-tier inspection structure retains the current five-year interval between part 12 inspections and mirrors FEMA's recommendation that formal inspections be conducted at intervals not to exceed five years.
18. Second, the final rule changes the process by which D2SI reviews and evaluates the qualifications of independent consultants that conduct part 12 inspections. Currently, § 12.34 of the Commission's regulations requires the licensee to submit to the Director of D2SI for approval a resume describing the independent consultant's experience.
19. Accordingly, the process adopted in the final rule requires licensees to submit to the Director of D2SI an independent consultant team proposal,
20. Third, the final rule codifies existing guidance related to the Owner's Dam Safety Program. Currently, the Commission's part 12 regulations do not explicitly require a licensee to develop an Owner's Dam Safety Program. However, § 12.4 of our existing regulations provides that the Commission may require an applicant or licensee to submit reports or information on any condition affecting the safety of the project.
21. Fourth, the final rule modifies licensee reporting and preparedness requirements related to public safety at or near hydroelectric projects. Currently, licensees are required to install and maintain public safety devices and to report deaths or serious injuries at their projects.
22. A section-by-section analysis, describing the proposal set forth in the NOPR, the comments received on the NOPR, and the Commission's determinations, follows.
23. In response to the findings and recommendations in the Oroville Independent Forensic Team Report and FERC After Action Panel Report, the Commission is revising its regulations under 18 CFR part 12, subpart D, to enhance the program for independent consultant inspections. The regulations adopted here will replace existing subpart D in its entirety. Due to the final rule's implementation of two tiers of part 12 inspections (periodic inspections and comprehensive assessments), subpart D will now include §§ 12.30 through 12.42, which results in changes to the numbering of subpart E (existing §§ 12.40 through 12.44 will become §§ 12.50 through 12.54).
24. Section 12.30 establishes the applicability of subpart D's independent consultant inspection requirement and identifies three conditions that result in a project being subject to the provisions of subpart D. Subpart D currently applies to any project development that has a dam: (1) Greater than a specified height; (2) with an impoundment exceeding a specific gross storage capacity; or (3) that has a high hazard potential and is determined by the Regional Engineer to require inspection by an independent consultant. Although the subpart D regulations could be interpreted as only applying to dams, D2SI has in practice applied the requirements of this subpart to those portions of canals and penstocks judged to have a high hazard potential and this rule adopts that interpretation.
25. The NOPR proposed revisions to § 12.30 to align subpart D's applicability with existing D2SI practices and to make clear that the provisions of subpart D apply to project works other than dams and could apply to projects that do not have a dam. Specifically, the Commission proposed revisions to § 12.30 to clarify that while the existing height and storage thresholds apply only to project developments with a dam, the high hazard potential criterion applies to all project works (
26. Certain commenters suggested that further distinction should be made to distinguish the requirements for low hazard potential works and high hazard potential works within a licensed project development that is subject to part 12.
27. All project works function as a system. Even low hazard potential project works have the potential to adversely impact high hazard potential works; therefore, as has been D2SI's current practice, low hazard potential works of projects meeting the applicability provisions of § 12.30 must also meet the requirements of subpart D. This is not a change from the interpretation of the existing regulations, but rather a clarification. Regarding the second comment, as is current practice in evaluating downstream hazard potential, high usage areas of any type, including recreational areas, should be considered in determining hazard potential.
28. Current § 12.31 defines “independent consultant,” “high hazard potential,” “height above streambed,” and “gross storage capacity” for the purposes of the provisions of subpart D. Section 12.31 also provides the D2SI Director the authority to grant a waiver from the 10-year experience requirement in the definition of independent consultant.
29. The NOPR proposed revisions to § 12.31 to update the definition of an “independent consultant” and to add definitions for the terms “independent consultant team,” “periodic inspection,” and “comprehensive assessment.”
30. Our regulations currently define “independent consultant” as a licensed professional engineer, with at least ten years of experience and expertise related to dams, who is not, and has not been within two years, an employee of the licensee or its affiliates or an agent acting on behalf of the licensee. As proposed in the NOPR, the revised definition of “independent consultant” would retain the licensure and 10-year experience requirements. However, the restrictions regarding the professional relationship between the independent consultant and licensee would be separated into three separate elements, requiring that an independent consultant: (1) Is not an employee of the licensee or its affiliates; (2) has not been an employee of the licensee or its affiliates within two years prior to performing a periodic inspection or comprehensive assessment; and (3) has not been an agent acting on behalf of the licensee or its affiliates before performing services under this part.
31. The NOPR also proposed to define “independent consultant team” as comprising one or more independent consultants and additional engineering and scientific personnel, as needed. Collectively, the independent consultant team must have expertise commensurate with the scale, complexity, and relevant technical disciplines of the project and type of review being performed (periodic inspection or comprehensive assessment). As the NOPR explained, this approach ensures that each inspection and review is conducted by qualified personnel such that the Commission can reasonably expect that potential issues relating to project safety or stability will be identified. The Commission intends to place greater emphasis on the qualifications of the personnel on an independent consultant team, and their collective experience and expertise, for comprehensive assessments compared to periodic inspections; projects with higher consequences or total project risk; projects with a greater number of, or more technically diverse or challenging, project works; and projects with a history of unusual or adverse performance. Currently, § 12.34 requires licensees to submit resumes for independent consultants for Commission approval. As further discussed below, the final rule revises § 12.34 to require licensees to submit an independent consultant team proposal for the Director of D2SI's approval.
32. Commenters requested clarification of the definition of an independent consultant team and asked that the 10-year experience requirement be limited to just the independent consultant and not the entire team.
33. Based on the comments received, we revised the definition of independent consultant team to clarify that the ten-year experience requirement applies only to the independent consultant and does
34. In response to the general concerns about the limited pool of qualified independent consultants or team members, the restrictions listed in paragraphs (a)(3) through (a)(5) are designed to ensure that independent consultants and team members are not responsible for reviewing work to which they substantially contributed. This limiting provision is essential in ensuring independence of the independent consultant and independent consultant teams.
35. The NOPR proposed and the final rule updates the definition of “hazard potential” to ensure consistency with FEMA's Hazard Potential Classification System for Dams,
36. The NOPR also proposed and the final rule in § 12.31 includes definitions for “periodic inspection” and “comprehensive assessment.” No further revisions were made to this section following the NOPR.
37. Existing § 12.32 requires that an independent consultant perform a periodic inspection of the project works of each development,
38. The NOPR proposed to retain the general requirement that an independent consultant inspection be performed, to revise § 12.32 to incorporate the terms “periodic inspection” and “comprehensive assessment,” and to require the filing of a report following each type of inspection. The NOPR also proposed to relocate the general requirement to file an inspection report from existing § 12.37 to revised § 12.32.
39. Commenters requested that “generating equipment” be added to the list of project works excluded from inspections and further clarity be provided to distinguish between the inspection requirements for high hazard potential and low hazard potential project works.
40. Existing § 12.33 grants the Director of D2SI the authority to exempt projects from the provisions of subpart D for good cause and provides an example of what may constitute good cause. At the Director of D2SI's discretion, the exemption may be granted in perpetuity or may require periodic reevaluation of the exemption justification (
41. The NOPR, which in § 12.33(a) retained the Director of D2SI's authority to exempt projects from subpart D, proposed revisions to § 12.33(b) to update the example of good cause to include canals and other water conveyances. In addition, the NOPR proposed in § 12.33(c) to rescind any exemption from subpart D that was issued prior to the effective date of this rule. Existing subpart D exemptions have been granted over several decades and, as the state of the practice of dam safety has evolved, have not been reconsidered consistently. For this reason, the NOPR contemplated that an entity desiring a continued exemption would be required to reapply to ensure that any justification for a subpart D exemption is reviewed based on the current state of the practice, considering potential failure modes, consequences, and total project risk.
42. NHA requested that the Commission reconsider rescinding all previously approved exemptions from the requirements of subpart D.
43. Based on the comments received and after further consideration, the blanket rescission of all previously approved exemptions has been removed from the regulations. Instead, we have revised § 12.33 to clarify that the Director of D2SI, for good cause shown, may rescind a previously approved exemption from the requirements of subpart D. This determination will be made on a case-by-case basis. In addition, for future exemption requests, the Director of D2SI may require the licensee to complete a comprehensive assessment prior to considering the exemption request.
44. Prior to performing an inspection, existing § 12.34 requires a licensee to submit for the Director of the Office of Energy Projects' approval a detailed resume for an independent consultant. In the NOPR, the Commission proposed several revisions to § 12.34 to address concerns raised in the Oroville Independent Forensic Team report, the FERC After Action Panel Report, and issues related to implementation of the existing rule over the past several years.
45. In § 12.34(a), the NOPR proposed to require licensees to obtain written approval of the independent consultant team, from the Director of D2SI instead of the Director of the Office of Energy Projects, prior to performing a periodic inspection or comprehensive assessment. While in practice D2SI has granted approval of independent consultants prior to inspections, the regulation as currently written does not stipulate that D2SI approval must be obtained.
46. As proposed in the NOPR, § 12.34(b) would require licensees to submit a detailed independent consultant team proposal to the Director of D2SI at least 180 days prior to performing a periodic inspection or comprehensive assessment. This involves two primary changes. As we explained in the NOPR, while the current text of § 12.34(b) requires licensees to submit an independent consultant's detailed resume 60 days in advance, increasing the submittal time to 180 days in advance does not represent a change in practice. D2SI staff routinely issues reminder letters to licensees approximately 18 months in advance of any inspection required under subpart D, and for several years has requested that independent consultants' resumes be submitted six months in advance to ensure that all parties are aware of their roles and responsibilities, and have sufficient time to prepare for the inspection. The
47. Second, existing § 12.34 requires that resumes be submitted only for any independent consultant, to demonstrate that they meet the requirements provided in § 12.31. In the NOPR, we proposed revisions to § 12.34(b) directing licensees to submit documentation of the experience and qualifications for all members of the independent consultant team, including one or more independent consultants and additional contributing members, as needed. This change will allow Commission staff to more fully evaluate the independent consultant team's experience and ensure it is commensurate to the scale, complexity, and technical disciplines of the project and type of review being performed. The Commission intends to require a higher level of experience and expertise for a comprehensive assessment than a periodic inspection, due to the broader scope of the comprehensive assessment.
48. The NOPR proposed changes to § 12.34(c) that would permit the Director of D2SI to disapprove of an independent consultant team member, regardless of demonstrated experience and qualifications, for good cause, such as having a report rejected by the Commission within the preceding five years. This provision allows the Commission to ensure that independent consultants' inspections are performed by qualified parties.
49. In response to the NOPR, commenters requested further clarity on: (1) The independent consultant team proposal information that should be provided in the inspection plan; (2) grounds for disapproval of an independent consultant; and (3) the timing for submitting the inspection plan.
50. Based on comments received, the final rule further revises § 12.34 to:
• Clarify that the independent consultant team proposal must identify the technical disciplines and level of expertise required to perform the inspection and show that each member of the independent consultant team who is not designated as an independent consultant meets the requirements of § 12.31(a)(3) through (5);
• clarify that the D2SI Director may disapprove an individual who is identified as the independent consultant in the independent consultant team proposal, and that grounds for disapproval may include rejection by the Commission of one or more reports on an inspection under this subpart within the preceding five years;
• clarify that the 180-day timing is measured from the scheduled date of the field inspection or other designated activity such as a Potential Failure Mode Analysis or risk analysis;
• add a requirement that the independent consultant team proposal clearly delineate team members' roles and responsibilities to ensure no team member will be responsible for reviewing and evaluating their own previous work on the project;
• add a requirement that if required information about any supporting team member is not available at the time of the independent consultant team proposal, the missing information must be included in the preliminary report required by § 12.42;
• clarify that written approval of the facilitator(s) of the Potential Failure Mode Analysis or risk analysis must also be obtained; and
• relocate information on granting of a waiver of the 10-year requirement from § 12.32 to § 12.34 for clarity.
51. Existing § 12.35 establishes the scope of the independent consultant's inspection. In the NOPR, the Commission proposed to revise § 12.35 in its entirety such that it establishes the scope of a periodic inspection, the less intensive of the two tiers of part 12 inspections.
52. The final rule adopts this change. As revised, § 12.35 establishes the scope of a periodic inspection, which includes review of prior reports, a field inspection, review of the surveillance and monitoring plan and data, and review of dam and public safety programs. A periodic inspection has a reduced scope compared to the existing independent consultant's inspection.
53. In response to the NOPR, commenters recommended: broadening the scope of the periodic inspection to include a review of the Supporting Technical Information Document;
54. Adding a review of the Supporting Technical Information Document would provide little benefit to the periodic inspection and would result in increased burden and cost. Adding a review of the security protocols is outside the scope of a periodic inspection and would be best handled separately by others with specialized experience. For these reasons, neither recommendation was incorporated into the scope of a periodic inspection.
55. Eliminating the requirement for the independent consultant team to have a full understanding of the project works would negate the team's ability to adequately understand the technical and operational aspects of the project and therefore be unable to provide meaningful observations, conclusions, and recommendations from the inspection. Limiting the inspection to only those project works that are considered high risk or high hazard would be subjective, could overlook project works whose potential hazard or risk could change over time, and would result in an incomplete inspection and assessment of the project works. The final rule adds a sentence to § 12.35(a) to clarify that it is the licensee's responsibility to provide to the independent consultant team all information and reports necessary to fulfill the requirements of this section. In addition, a few minor revisions for clarity were made to this proposed section following the NOPR.
56. Existing § 12.36 deals with emergency corrective measures. As discussed further below,
57. As proposed in the NOPR, new § 12.36 establishes the requirements for the periodic inspection report, which serves a similar purpose to existing § 12.37 (report of the independent consultant) with several notable changes. Existing § 12.37(b) currently requires initial reports filed under subpart D to include general project information (
58. Section 12.36(b) of the final rule lists specific evaluations that must be documented in a periodic inspection report. These pertain to the surveillance, monitoring, and performance of the project, with a focus on whether any potential failure modes, previously identified or not, are active, developing, or warrant further evaluation at the time of the periodic inspection.
59. As proposed in the NOPR, the final rule eliminates the provisions that previously allowed independent consultants to incorporate the previous independent consultant's report by reference and document only information that has changed since the previous report. Section 12.36(c) provides a list of items which require a status update and an evaluation of any changes since the previous inspection.
60. Existing provisions in §§ 12.37(c)(4) through (8) are retained in §§ 12.36(d) through (h) with minor changes to ensure consistency with other revisions.
61. In response to the NOPR, commenters sought clarity on the independent consultant team's review and assessment of previous engineering analyses and reports.
62. In reviewing and assessing previous engineering analyses and reports, the independent consultant team's summary must not simply state that the team agrees with the report findings, but instead must provide a clear rationale or basis for why the team agrees with the report findings. The independent consultant team's review of the Owner's Dam Safety Program, a required component of the periodic inspection (as well as the comprehensive assessment) is not the same as the external audit of the Owner's Dam Safety Program described in § 12.65.
63. Existing § 12.37 establishes requirements for independent consultant-prepared reports. As discussed elsewhere in this final rule, the revisions to §§ 12.36 and 12.38 incorporate this information for reports on periodic inspections and comprehensive assessments, respectively.
64. Section 12.37 of the final rule establishes the scope of a comprehensive assessment, the more intensive of the two tiers of part 12 inspection. As many components of the comprehensive assessment are identical to or build upon the periodic inspection, several paragraphs of this section cross-reference the corresponding periodic inspection requirements in § 12.35.
65. In addition to those elements required for a periodic inspection set forth in § 12.35, a comprehensive assessment must include a review of prior reports and analyses of record, a review of the Supporting Technical Information Document, a Potential Failure Mode Analysis, and a risk analysis. A comprehensive assessment has an expanded scope compared to the existing independent consultant's inspection. Section 12.37(a)(2) requires the independent consultant team to perform a more detailed review of existing documentation, including as-built drawings, monitoring data, and analyses of record, than required by the current independent consultant's inspection.
66. Section 12.37(f) requires a comprehensive assessment to include a Potential Failure Mode Analysis, which is already standard practice for part 12 inspections. D2SI has developed draft Chapter 17 of the Engineering Guidelines, which describes how to conduct a Potential Failure Mode Analysis. As discussed above, the Commission has solicited and received public comments on draft Chapter 17 in Docket No. AD20-22-00.
67. Section 12.37(g) incorporates a semi-quantitative risk analysis as part of the scope of a comprehensive assessment. Other Federal agencies, including Reclamation, the Corps, and the Tennessee Valley Authority, have incorporated this type of analysis into their systematic comprehensive dam safety reviews. FEMA also provides recommendations and guidance for the performance of semi-quantitative risk analysis.
68. Section 12.37(g) permits the Regional Engineer to waive the requirement that a comprehensive assessment must include performance of a risk analysis. This waiver provision allows the Commission to focus its efforts on projects that present greater risk to life, health, and property, and provides flexibility for D2SI staff to gradually phase in the risk analysis component of a comprehensive assessment, allowing sufficient time for D2SI staff to develop and deliver training on the risk analysis procedures to D2SI staff, licensees, and consultants. It also can provide regulatory relief to licensees, where appropriate.
69. In response to the NOPR, commenters requested clarity on performing a Potential Failure Mode Analysis,
70. As more fully described in the Engineering Guidelines, the Potential Failure Mode Analysis is a process used to identify, describe, and evaluate the credibility and significance of potential failure modes.
71. As to concerns about requiring a risk analysis as part of a comprehensive assessment for owners with a small portfolio of dams, risk is not a function of the number of dams an entity owns. Moreover, the scope of the risk analysis has been designed so that it may be tailored to specific project conditions. The guidance in Chapter 18 of the Engineering Guidelines provides for a scalable approach to performing the risk analysis depending on the type, complexity, and size of the project works. Larger and more complex project works will generally take more effort to analyze than projects with smaller and less complex works. The appropriate scope of a risk analysis, as well as associated costs for performing such analysis, have been carefully considered to provide only that level of effort needed to obtain the information necessary to prioritize risk measures. The final rule adds a sentence to § 12.37(a) to clarify that it is the licensee's responsibility to provide to the independent consultant team all information, reports, and analyses of record necessary to fulfill the requirements of this section and deletes informational references to the Engineering Guidelines. No other substantive revisions were made to proposed § 12.37 following the NOPR.
72. Existing § 12.38 describes the timeline for submitting reports on an independent consultant's inspection. These requirements are relocated to § 12.40, discussed below.
73. As proposed in the NOPR, § 12.38 of the final rule establishes the requirements for the report on a comprehensive assessment. As with the corresponding section regarding a report on a periodic inspection, the Commission is eliminating the difference between initial and subsequent reports and will require every comprehensive assessment report to meet the same standard.
74. Section 12.38(b) references § 12.36(b) and identifies additional items that require specific evaluation in the comprehensive assessment report. In addition to those elements required for a periodic inspection, a comprehensive assessment report must include an evaluation of: Spillway adequacy; the potential for internal erosion and/or piping of embankments, foundations, and abutments; structural integrity and stability of all structures under credible loading conditions; any other analyses of record pertaining to geology, seismicity, hydrology, hydraulics, or project safety; and the Supporting Technical Information Document, Potential Failure Mode Analysis, and risk analysis. An evaluation of an analysis of record must include an evaluation of the accuracy, relevance, and consistency with the current state of the practice of dam engineering, and the comprehensive assessment report must include clear documentation of the independent consultant team's rationale. If the independent consultant team is unable to review any analysis of record or disagrees with the analysis of record in any way, the independent consultant must recommend new analyses.
75. In the NOPR, the Commission also proposed to eliminate provisions that allow independent consultants to incorporate the previous independent consultant's report by reference and document only that information that has changed since the previous report. By referencing the periodic inspection report requirements (§ 12.36(c)) (
76. The existing provisions in §§ 12.37(c)(4) through (8) are retained in §§ 12.38(d) through (h) of the final rule with minor changes to ensure consistency with other revisions adopted herein.
77. In response to the NOPR, commenters requested clarity on appropriate actions to take when the analyses of record are unavailable.
78. Section 12.38(c)(3) requires the independent consultant to provide recommendations to perform new analyses if the analyses of record are not available to be reviewed. It is incumbent on licensees to either locate the analysis of record or provide a plan and schedule to complete a new analysis. Additional guidance on reviewing and evaluating the analyses of record and how that information should be documented and classified is provided in Chapter 16 of the Engineering Guidelines. As discussed above, the Commission has solicited and received public comments on draft Chapter 16 in Docket No. AD20-21-00.
79. Existing § 12.39 describes the process for taking corrective measures after the independent consultant's report is filed with the Regional Engineer. As proposed in the NOPR, this procedure is relocated to § 12.41, discussed below. The requirement to evaluate spillway adequacy is an existing component of the part 12 inspection and is currently found in § 12.35(b) of our regulations. However, providing this information in a standalone section will highlight the importance of evaluating spillway adequacy. Accordingly, the final rule relocates the requirement to evaluate spillway adequacy to § 12.39.
80. As proposed in the NOPR, § 12.39 of the final rule would expand the existing requirements for evaluating spillway adequacy to address scenarios similar to the 2017 Oroville Dam spillway incident. When assessing spillway adequacy, independent consultants must evaluate the potential for misoperation of, failure to operate, blockage of, or debilitating damage to, a spillway, and the resulting effects on the maximum reservoir level and the potential for overtopping.
81. In response to the NOPR, NHA requested clarity on how the hydraulic adequacy evaluations will be consistently implemented and whether the credible loading conditions are standards based or risk based.
82. The evaluation of spillway adequacy has been a longstanding assessment requirement of subpart D independent consultant inspections. The final rule requires the independent consultant as part of the spillway adequacy assessment to consider specific conditions that could limit or impact spillway discharge. Commission staff will monitor and review how these conditions are assessed and provide additional guidance on the assessment process, if needed, on a case-by-case basis. In response to NHA's question about appropriate flood loading conditions, paragraph (a) has been revised to clarify that floods up to and including the probable maximum flood must be considered in the evaluation. In addition, we have deleted the word “structural” from paragraphs (a) and (b) to clarify that failures could be more than structural failures and eliminated from this section an informational reference to the Engineering Guidelines.
83. This final rule relocates the provisions regarding timelines for performing independent consultant inspections and submitting inspection reports, previously found in § 12.38, to revised § 12.40. Our existing rules maintain a five-year cycle for inspections and include provisions for initial inspections of existing licensed projects, projects licensed but not yet constructed, and all other projects; include a separate set of provisions related to projects inspected by an independent consultant prior to March 1, 1981; and authorize the Regional Engineer to grant extensions of time to file an independent consultant's inspection report.
84. Section 12.40 revises the timeline for submitting reports on inspections by independent consultants. While the current five-year interval between inspections and reports is maintained, the inspections will alternate between periodic inspections and comprehensive assessments; thus, there is a ten-year interval between any pair of consecutive comprehensive assessments or periodic inspections, but a significant project review every five years.
85. Section 12.40(a) consolidates the timing of inspections and reports for projects previously inspected by an independent consultant. Section 12.40(a)(1) maintains the five-year cycle for an independent consultant's inspection of each project development. Section 12.40(a)(2) grants the Regional Engineer the authority to require that any report due 18 months after the effective date of the final rule be either a comprehensive assessment or periodic inspection, enabling D2SI to balance the number of comprehensive assessments due each year over the 10-year cycle. Section 12.40(a)(3) requires that the first comprehensive assessment be completed, and the report on it filed, by December 31, 2038.
86. Section 12.40(b) retains and updates the terminology related to existing provisions for existing licensed projects previously inspected, projects licensed but not yet constructed, and other projects.
87. Section 12.40(c) establishes the ten-year interval between comprehensive assessments and requires that a periodic inspection be performed within five years following a comprehensive assessment.
88. Sections 12.40(d) and 12.40(e) allow the Regional Engineer to extend the time to file an independent consultant's report, for good cause shown, and to require that any inspection scheduled to be performed be a periodic inspection or comprehensive assessment. For example, where a project is scheduled for a periodic inspection but a dam safety incident, extreme loading condition (
89. In response to the NOPR, commenters recommend changing the effective date to 18 months following the date of the final rule,
90. Section 12.40(a)(2) has been revised to reflect that the date for a report to be filed under this subpart will be 18 months after the effective date of the final rule. Commission staff has evaluated the scope of the effort required to complete a comprehensive assessment and is confident that two years is sufficient time to complete this work and file a report. Extending this work effort over a three-year duration would provide no benefits and could negatively impact the process by extending the time between the review
91. The purpose of the preliminary report is to demonstrate whether the independent consultant team has adequately prepared for their inspection, including the review of background material and instrumentation data. This requirement is intended to help the independent consultant team identify areas in the field that may require additional attention or effort.
92. In the NOPR, the Commission proposed to include information about the preliminary report in § 12.40(f). However, because that section covers different material, the final rule relocates the preliminary report requirement to § 12.42, which is a new, standalone section.
93. The procedures for addressing items identified during a part 12 inspection that require corrective measures are currently set forth in § 12.39. This final rule relocates these corrective measure procedures to new § 12.41. Currently, licensees are required to submit to the Regional Engineer a plan and schedule within 60 days of filing an independent consultant's report with the Commission, and to complete all corrective measures in accordance with the plan and schedule as approved or modified by the Regional Engineer. Under the existing regulations, the Regional Engineer may extend the time for filing the plan and schedule. The final rule does not modify or eliminate these requirements.
94. Section 12.41 of the final rule incorporates the requirements of existing § 12.36 (emergency corrective measures) and § 12.39 (post-inspection corrective measures) into a single section titled “corrective measures.” The revisions in § 12.41(a)(1)(i) clarify that the licensee's plan and schedule must address the recommendations of the independent consultant and include investigation as an option for the licensee to implement. Section 12.41(b)(2) is added to ensure that emergency corrective measures are documented in the corrective plan and schedule required by § 12.41(a)(1).
95. In response to the NOPR, CEATI recommends limiting the corrective plan to only those items that relate to a potential failure mode or will improve or change the understanding of risk associated with the project works.
96. Section 12.41(a)(1)(ii) already includes provisions for taking no action for recommended corrective measures in those cases where it is justifiable. The annual status report provides an opportunity to periodically review and update the status (
97. As discussed above, the final rule relocates requirements regarding preliminary reports that the NOPR had proposed for inclusion in § 12.40(f) to a new section of subpart D, § 12.42.
98. A few commenters asserted that in broadening the scope of independent consultant dam safety inspections, the NOPR takes a one-size-fits-all approach that will place an unfair burden on Alaska's smaller, less complex projects.
99. The Commission did not take a one-size-fits-all approach to the changes to the project safety inspection program proposed in the NOPR and adopted, with modifications, in this final rule. As explained above, the revised inspection approach provides for a two-tier inspection structure, consisting of a periodic inspection (§ 12.35) and a more robust comprehensive assessment (§ 12.37). The size of the inspection team is dependent on the project so that it is “commensurate with the scale, complexity, and relevant technical disciplines of the project and type of review, inspection, and assessment being performed.”
100. As the NOPR explained, the Commission began developing its Owner's Dam Safety Program guidance following the December 2005 failure of Taum Sauk Dam, in an effort to encourage licensees to foster and prioritize a strong dam safety culture among their organizations and to help decrease the likelihood of preventable dam safety incidents. In August 2012, the Director of D2SI issued letters to all owners of high or significant hazard potential dams requiring them to develop and submit an Owner's Dam Safety Program.
101. Section 12.60 specifies that an Owner's Dam Safety Program must be submitted by any licensee that has a dam or other project work with a high or significant hazard potential. This does not represent a change from existing practice.
102. No comments were received on this section. Following the NOPR, the cross-reference to the definitions of high or significant hazard potential was updated based on the revised definitions contained in § 12.3(b)(13)(i) and (ii). No other revisions were made to proposed § 12.60 following the NOPR.
103. Section 12.61 defines the terms “Chief Dam Safety Engineer” and “Chief Dam Safety Coordinator,” as used in subpart F. The Chief Dam Safety Engineer or Chief Dam Safety Coordinator is defined as the person who oversees the implementation of the Owner's Dam Safety Program and has primary responsibility for ensuring the safety of the licensee's dams and other project works. The only difference between the definitions is that a Chief Dam Safety Engineer must be a licensed professional engineer.
104. In response to the NOPR, commenters requested clarification of professional engineer licensure,
105. Individual states determine the requirements for the licensure of professional engineers. Those performing professional engineering services are responsible for following applicable state regulations. The final rule revises § 12.61(a) to indicate that the Chief Dam Safety Engineer must be a licensed
106. Section 12.62 establishes three general requirements for an Owner's Dam Safety Program. Section 12.62(a) requires an Owner's Dam Safety Program to designate either a Chief Dam Safety Engineer or a Chief Dam Safety Coordinator. Any Owner's Dam Safety Program that applies to one or more dams or other project works with a high hazard potential must designate a Chief Dam Safety Engineer. Section 12.62(b) requires the Owner's Dam Safety Program to be signed by the owner and the Chief Dam Safety Engineer or Chief Dam Safety Coordinator, as applicable. Section 12.62(c) requires the Owner's Dam Safety Program to be reviewed and updated on a periodic basis. Although § 12.62(d) permits the owner to designate outside parties, such as consultants, to serve as Chief Dam Safety Engineer or Chief Dam Safety Coordinator, the owner retains ultimate responsibility for the safety and day-to-day implementation of the projects.
107. Commenters on the NOPR requested clarity as to who from the owner's organization should sign the Owner's Dam Safety Program,
108. Owner's organizations vary widely in type and size, from sole proprietorships to corporations to municipalities. The requirement in § 12.62(b) that the owner, along with the Chief Dam Safety Engineer or Chief Dam Safety Coordinator, sign the Owner's Dam Safety Program ensures that the legal entity responsible for the dam(s) or other project works accepts the program that is established to promote dam safety within their organization in order to help decrease the likelihood of preventable dam safety incidents. It is up to each organization to determine the appropriate signatory for signing the Owner's Dam Safety Program.
109. The final rule revises § 12.62 to include a statement that any delegation of authority made in accordance with the requirements of this section must be documented in the Owner's Dam Safety Program and to clarify that the responsibilities that may be delegated include program implementation. In response to commenters' concerns about a lack of qualified individuals, provisions for developing and implementing an Owner's Dam Safety Program have been in place as guidance for many years and industry has been able to provide adequate resources and training to satisfy the requirements of this section. Moreover, it is crucial that licensees accept responsibility for, and take all reasonable steps to implement, an effective safety program. The cross-reference to the definition of high hazard potential was updated based on the revised definition contained in § 12.3(b)(13)(i). No other substantive revisions were made to proposed § 12.62 following the NOPR.
110. Section 12.63 establishes the minimum contents of an Owner's Dam Safety Program. Sections 12.63(a)-(f) each correspond to a topic area that should be addressed in an Owner's Dam Safety Program document and identified in the document's table of contents, as provided in current D2SI guidance available on the Commission's website.
111. In response to the NOPR, commenters recommended minor editorial changes and requested clarification of what is meant by “other information described by the Guidelines” in § 12.63(g).
112. Section 12.64 requires licensees to review and update an Owner's Dam Safety Program. This section specifies that any Owner's Dam Safety Program must be reviewed by the licensee's dam safety staff and discussed with senior management on an annual basis, and that any findings, analysis, corrective measures, or revisions be submitted to the Regional Engineer.
113. In response to the NOPR, commenters recommended deleting the entire section as it appears to duplicate submittal of this information elsewhere,
114. The annual review and update will replace what commenters, such as NHA, refer to as the existing annual internal audit. Further, the report on the annual review of the Owner's Dam Safety Program should not be conflated with the Owner's Inspection Preparation Form.
115. Section 12.65 describes the requirements for independent external audits and peer reviews, which must be completed at least once every five years for any Owner's Dam Safety Program that applies to one or more dams or other project works having a high hazard potential classification. The qualifications of the review team must be submitted to the Regional Engineer in advance, and the Regional Engineer's acceptance must be obtained prior to performing the audit or peer review. The Commission will review the qualifications to ensure that the review team has sufficient expertise and a defined plan to review the Owner's Dam Safety Program. The findings of the external audit or peer review team must be documented in a report to be reviewed by licensee staff, including senior management, and submitted to the Regional Engineer.
116. In response to the NOPR, NHA requested that the external audit of the Owner's Dam Safety Program remain separate from the periodic inspection and comprehensive assessment,
117. As explained above, the external audit of the Owner's Dam Safety Program is distinct from the independent consultant team's review of the Owner's Dam Safety Program during the periodic inspection (§ 12.35(d)(4)) and comprehensive assessment (§ 12.37(d)).
118. Finally, the final rule updates an internal cross-reference to the definition of hazard potential and removes the statement that additional guidance is provided in the guidelines. No other substantive revisions were made to § 12.65 following the NOPR.
119. In the NOPR, the Commission proposed several changes to subparts A, B, C, and E of 18 CFR part 12, most of which are minor in nature and necessary to ensure consistency with the replaced subpart D and new subpart F. The two most notable changes relate to the reporting of public safety incidents and the development and submittal of public safety plans.
120. Subpart A describes the general provisions and definitions that apply under part 12 of the regulations. The NOPR proposed to update or add several definitions and make other minor changes to ensure consistency with replaced subpart D and new subpart F. Section 12.3(b)(4) provides a list of conditions affecting the safety of project works. The NOPR proposed to update two of these conditions to ensure their definitions are consistent as applied in current practice. In addition, the NOPR proposed to add “overtopping of any dam, abutment, canal, or water conveyance” to the list of conditions that could affect project safety and new definitions for “Water Conveyance,” “Engineering Guidelines,” and “Owner's Dam Safety Program.” The NOPR proposed additional minor revisions in subpart A to ensure
121. In addition, the Commission proposed to add § 12.4(d) to make clear that licensee non-compliance with any dam safety directive issued by the Commission, a Regional Engineer, or other authorized Commission representative could result in sanctions such as the Commission issuing a cease generation order, assessing civil penalties, or revoking a project's license pursuant to section 31 of the FPA.
122. In response to the NOPR, NHA recommended that the Commission further clarify the definitions of significant and low hazard potential and asked why the phrase “including recreation” was added to § 12.3(b)(4)'s definition of “condition affecting the safety of a project or project works.”
123. Section 12.3(b)(13) of the final rule adds separate definitions for “Significant hazard potential” (§ 12.3(b)(13)(ii)) and “Low hazard potential” (§ 12.3(b)(13)(iii)). Adding the phrase “including recreation” clarifies § 12.3(b)(4)'s definition of “Condition affecting the safety of a project or project works” by providing a statutorily-defined example of “other beneficial public uses.”
124. The final rule deletes the definition of and an additional reference to the “Guidelines.” The Engineering Guidelines remain available on the Commission's website.
125. The term “canal” is deleted in §§ 12.3(b)(4)(xiii) and 12.3(b)(13) as its usage is redundant with the term “water conveyance” also used in each paragraph. For clarity, one of the conditions affecting safety, found in § 12.3(b)(4)(xi), was revised from “Significant instances of vandalism or sabotage” to read “Security incidents (physical and/or cyber).” No other substantive changes were made to subpart A following the NOPR.
126. Subpart B describes the requirements for reporting, verifying, and providing records to the Commission regarding dam safety-related matters, including public safety incidents. The NOPR proposed minor revisions to ensure consistency with other sections of the regulations and the dam safety program as implemented. In addition, the NOPR proposed additional reporting of public safety-related incidents that involve deaths, serious injuries, or rescues.
127. Revised § 12.10(a)(1) expresses the Commission's preference that initial reports of conditions affecting the safety of a project or its works are made within 72 hours of discovery of the condition. The reporting of an incident to the Commission must not in any way inhibit an emergency response to that incident.
128. Revised § 12.10(b) requires licensees to report rescues in addition to deaths and serious injuries, and clarifies the definition of “project-related” for the purpose of complying with the mandatory reporting of deaths, serious injuries, and rescues that are considered or alleged to be project-related. For precision and to use terminology that is generally accepted in the dam safety community, the NOPR proposed to replace the term “project-related accident” with “project-related incident.”
129. Currently, § 12.10(b)(4) defines “project-related,” as “any deaths or serious injuries involving a dam, spillway, intake, or power line,
130. In response to the NOPR, CEATI suggested that a threshold for reporting rescues and serious injuries should be established by excluding minor incidents not requiring treatment at a medical facility.
131. For clarity, the final rule revises the general structure of § 12.10(b) to follow § 12.10(a). Section 12.10(b)(1) provides the reporting requirements for initial reports of deaths, serious injuries, or rescues. The initial report can be made by email or telephone. This is a change from the initial written reporting requirements proposed in the NOPR. For consistency, the final rule applies this same change to § 12.10(a)'s reporting requirements for initial reports of conditions affecting the safety of a project or its works to make clear that initial reports can be made by email or telephone. Accordingly, the final rule deletes from § 12.10(a) all references to “oral reports” and adds in its place “initial reports.”
132. Section 12.10(b)(2) provides the requirements for written reports by outlining three categories of incidents and indicating whether a written report is required: (i) Any death, serious injury, or rescue that is considered or alleged to be project-related (written
133. In addition, proposed § 12.10(b)(3) from the NOPR was deleted, as it provided an outdated form of hard copy submittal (newspaper clipping); proposed § 12.10(b)(4) was relocated to § 12.10(b)(3) of the final rule. The final rule further revises § 12.10(b)(3)(iii) to clarify that the definition of “project-related” also includes any deaths, serious injuries, or rescues that involve a licensee employee, contractor, or other person performing work at a licensed project facility and are related in whole or in part to the work being performed. The final rule also adds new § 12.10(b)(4) to clarify that, for incident reporting purposes, a serious injury includes any injury that results in treatment at a medical facility or a response by licensee staff or another trained professional.
134. Finally, the NOPR proposed and the final rule adopts two changes to existing requirements concerning the maintenance of records. First, the final rule revises § 12.12(b)(3) to permit storage media other than microform, consistent with part 125 of the Commission's regulations. Second, the final rule adds § 12.12(d) to require the licensee to provide, to the Regional Engineer, physical and electronic records necessary to ensure the safety of project works, for all projects subject to subpart D or as otherwise requested by the Regional Engineer. Under § 12.12(b)(2)(ii)(A) of our existing regulations, which remains unchanged, the Regional Engineer has the authority to require an applicant or licensee to submit such reports or information. NHA suggests that there is no need to require physical records in addition to electronic copies and recommends deleting the reference to “physical” in § 12.12(d).
135. Emergency action plans, which must be developed in consultation with federal, state, and local public health and safety officials, are designed to provide early warning to upstream and downstream inhabitants, property owners, operators of water-related facilities, recreational users, and others in the vicinity who might be affected in the event of a project emergency.
136. In the NOPR, the Commission proposed only minor revisions to §§ 12.20, 12.22, and 12.24 to ensure consistency with the filing guidelines available on the Commission's website and to update terminology with respect to the Engineering Guidelines.
137. The Commission received no comments on its proposed revisions to subpart C. The final rule deletes from § 12.22 two references to the Engineering Guidelines. No other revisions were made to proposed subpart C following the NOPR.
138. Subpart E describes other applicant and licensee responsibilities, including the requirement to install warning and public safety devices, and test spillway gates. In the NOPR, the Commission proposed to replace one section and update another to codify a function of the dam safety program as currently implemented and to ensure the use of consistent terminology in conjunction with the proposed replacement of subpart D. The Commission further explained that subpart E would be renumbered to now include §§ 12.50 to 12.54 to accommodate the proposed inclusion of additional sections in subpart D, and that the proposed revisions to subpart E would not represent a change in practice.
139. The revisions to § 12.52 (warning and safety devices, previously § 12.42) preserve the current regulatory requirement that licensees must install, operate, and maintain warning and safety devices to protect the public, with a minor revision to ensure consistency with the rest of part 12. Revised § 12.52(b) codifies existing D2SI guidance that the Commission may require a licensee to submit a public safety plan that documents the installation, operation, and maintenance of public safety devices.
140. Finally, the NOPR proposed to revise § 12.54 (testing spillway gates, currently § 12.44) to replace the term “periodic inspection” with the more generic term “an inspection.” This terminology change ensures that Commission staff can continue to verify the operability of spillway gates during their routine inspections, and is intended to prevent this section from being misconstrued as applying only to a periodic inspection as it is defined and described in subpart D of this final rule.
141. In response to the NOPR, NHA asks whether the public safety plan is required to be developed in accordance with the Commission's Guidelines for Public Safety.
142. Section 12.52(b) provides the provision that the Regional Engineer may require a licensee to file a public safety plan. The Guidelines for Public Safety at Hydropower Projects, available on the Commission's website, provide helpful guidance for developing and submitting public safety plans. The last sentence in § 12.52(b) was deleted to remove the reference to the guidelines. No changes to § 12.52(a) are necessary as the existing text (formerly located in § 12.42) is sufficient to ensure that licensees take appropriate warning and safety measures to protect the public from changes in flow due to project operations.
143. The Paperwork Reduction Act
144. The following discussion describes and analyzes the collections of information modified by this final rule.
145. The Commission solicited comments on the Commission's need for the proposed information collection in the NOPR and in draft Chapters 15 through 18 of the Engineering Guidelines,
146.
147. The revisions to 18 CFR part 12, subpart D do not affect the current five-year filing cycle for independent consultant's safety inspection reports. However, they do modify the scope of reports on an alternating cycle, such that the reports alternate between a periodic inspection (a reduction in scope compared to the previous inspection requirement) and a comprehensive assessment (an increase in scope compared to the previous inspection requirement). The hydroelectric facilities regulated by the Commission vary greatly in size and complexity, and there is no single representative project. To evaluate the burden associated with the revisions to independent consultant safety inspection reports, Commission staff developed separate cost estimates for “Simple” and “Complex” hydroelectric facilities, which are listed in the tables below. Commission staff recognizes that there are projects with annualized costs less than the “Simple” estimate or greater than the “Complex” estimate, but Commission staff believes the values presented are appropriately representative when averaged across the total inventory of hydroelectric projects and respondents. The assumption underlying these burden estimates is that one-half of licensed projects can be represented by each category.
148. The Commission received comments on some of the information collection activities proposed for subpart D. A few commenters raised general concerns about the cost estimates provided for independent consultant inspections and reports, suggesting that the Commission's estimates underestimate the costs to small, less complex projects located in Alaska.
149. Some commenters requested that “generating equipment” be added to the list of project works excluded from inspections at 18 CFR 12.32. As discussed above, the Commission is not adopting this requested modification because generating equipment is a critical element in the passage and discharge of water through a powerhouse and the failure of such equipment can result in operational and life safety concerns.
150. Some commenters requested further clarity in subpart D to distinguish between the inspection requirements for high hazard potential and low hazard potential project works. Because the inspection requirements for high and low hazard potential project works are discussed in § 12.30, no revisions to 18 CFR 12.32 were made based on this comment.
151. A commenter requested that the Commission reconsider the proposal to revise 18 CFR 12.33 by rescinding all previously approved exemptions from the requirements of subpart D. The final rule does not retain the blanket rescission of all previously approved exemptions and instead provides that the Director of D2SI on a case-by-cases basis may rescind a previously approved exemption for good cause shown. In addition, for future exemption requests, the Director of D2SI may require the licensee to complete a comprehensive assessment prior to considering the exemption request.
152. With regard to the revised information collection activities in 18 CFR 12.40, some commenters recommend changing the effective date to 18 months following the date of the final rule, extending the due date for projects not previously inspected under Part 12 from two years to three years, limiting the Regional Engineer's ability to unilaterally change the type of report to be filed, and further clarifying the purpose of the preliminary report. In response to these comments, the final rule revises § 12.40(a)(2) so that the date for a report to be filed under this subpart will be 18 months after the rule's effective date. The final rule does not, however, change the frequency of the required reports. As noted above, Commission staff is confident that two years is sufficient time to complete a comprehensive assessment and a file a report. Any potential benefits of extending this work over a three-year period would be outweighed by the negative impacts that would result if too much time elapses between reviewing the project information, conducting the inspection and performing the Potential Failure Mode Analysis and semi-quantitative risk analysis, and preparing the report.
153. In response to comments, the final rule revises § 12.40(e) to include a required finding of “good cause” for the Regional Engineer to change the type of report due.
154. In response to requests for further clarity regarding preliminary reports, the Commission explains above that the preliminary report's purpose is to demonstrate whether the independent consultant team has adequately prepared for their inspection, including the review of background material and instrumentation data. This requirement helps the independent consultant team identify areas in the field that may require additional attention or effort. In the NOPR, the Commission proposed to include information about the preliminary report in § 12.40(f). However, because it covers different material, the final rule relocates the preliminary report requirement to § 12.42, which is a new, standalone section.
155. The addition of 18 CFR part 12, subpart F codifies existing requirements for the preparation or collection of information. As we explained in the NOPR, those licensees who are required to prepare an Owner's Dam Safety Program, due to the hazard potential classification of their licensed project(s), have already done so. When a new license is issued for a non-constructed or previously unlicensed project, the Commission includes a license article requiring an Owner's Dam Safety Program if warranted. There may be situations in which a project's hazard potential classification increases from low to either significant or high (
156. The Commission received comments on 18 CFR 12.62 (General Requirements for Owner's Dam Safety Program), including:
• Requests to clarify who from the owner's organization should sign the Owner's Dam Safety Program;
• Recommendations to require formal documentation of any agreement delegating the position of Chief Dam Safety Engineer or Chief Dam Safety Coordinator to an individual outside the owner's organization; and
• Statements that the dam safety industry may lack sufficiently qualified individuals to perform the requirements of subpart F.
157. As explained above, because dam owner's organizations vary widely in type and size, from sole proprietorships to corporations to municipalities, it is up to each organization to determine the appropriate signatory for the Owner's Dam Safety Program. As to delegating the role of Chief Dam Safety Engineer or Chief Dam Safety Coordinator to an outside party, the final rule revises § 12.62(d) to require that any such delegation of authority be documented in the Owner's Dam Safety Program. In response to commenters' concerns about a lack of qualified individuals, provisions for developing and implementing an Owner's Dam Safety Program have been in place as guidance for many years and industry has been able to provide adequate resources and training to satisfy the requirements of this section. Moreover, as we explain above, it is crucial that licensees accept responsibility for, and take all reasonable steps to implement, an effective safety program.
158. Other comments on subpart F asked about the difference between a review of an Owner's Dam Safety Program performed during an independent consultant inspection and an independent external audit of the Owner's Dam Safety Program and suggested adding provisions to ensure the independence of the proposed auditor or peer review team.
159. As explained above, the external audit of the Owner's Dam Safety Program, described in 18 CFR 12.65, is distinct from the review of the Owner's Dam Safety Program performed as part of the periodic inspection and comprehensive assessment described in subpart D. Per existing practice, the date of the initial external audit report of the Owner's Dam Safety Program establishes the date of the subsequent five-year audit reports. As explained above, an external audit would generally be more limited in scope and the minimum level of effort compared to the peer review process. A licensee may elect to complete a more detailed peer review performed by a team of at least three reviewers. If necessary, the difference between an independent external audit and a peer review of the Owner's Dam Safety Program will be further clarified in future Commission guidance. The final rule revises § 12.65(b) to include a requirement that the statement of qualifications must demonstrate the independence of the auditor or peer review team from the licensee and its affiliates.
160. The Commission also received comments on 18 CFR 12.64 (Annual Review and Update of the Owner's Dam Safety Program), including:
• A recommendation that the entire section be deleted, since it appears to duplicate other information collection activities;
• A request to clarify whether the annual review of the Owner's Dam Safety Program will take the place of the existing annual internal audit; and
• A request to clarify to which Regional Engineer the Owner's Dam Safety Program should be submitted for owners with dams located in more than one Regional Office's territory.
161. As explained above, the report on the annual review of the Owner's Dam Safety Program should not be conflated with the Owner's Inspection Preparation Form. The Owner's Inspection Preparation Form is an optional form that can be completed by the owner to help their staff prepare for a field inspection; this form is not typically submitted to the Commission. Clarification of the annual review process and how Owner's Dam Safety Programs should be filed for owners with dams in multiple Regional Offices will be provided in future Commission guidance.
162. As stated above, subpart F codifies previous existing requirements for the preparation or collection of Owner's Dam Safety Program
163. However, for informational purposes, this final rule now provides burden and cost estimates for the information collection activities associated with the Owner's Dam Safety Program. The Commission recognizes that licensee dam safety programs vary widely from large utilities with tens or hundreds of dams to small programs with only a single dam. Therefore, to evaluate the burden and cost estimates for the Owner's Dam Safety Program and to capture differences between large and small programs, Commission staff developed separate estimates for “Small Programs” and “Large Programs,” reflected in Tables 1 through 3 below. The “Small Programs” category is intended to represent licensees with smaller dam safety programs based on the number of dams in their inventory (
164. The minor revisions to 18 CFR part 12, subpart B require licensees to report the rescue of any person that occurs at hydroelectric facilities, which is in addition to the previous requirements that licensees report public safety incidents that result in the death or serious injury of any person.
165. With respect to changes to subpart B's information collection requirements, the Commission received the following comments on 18 CFR 12.10:
• A suggestion that a threshold for reporting rescues and serious injuries should be established by excluding minor incidents not requiring treatment at a medical facility; and
• A request to clarify the reporting requirements for safety related incidents, including those related to changes in water levels or flows.
166. In response to the suggestion regarding a threshold for reporting rescues and serious injuries, the final rule adds new § 12.10(b)(4) to clarify that a serious injury includes any injury that results in treatment at a medical facility or an on-site response by licensee staff or another trained professional.
167. To clarify the reporting of safety-related incidents, the Commission explains that § 12.10(b)(1) provides that an initial report must be made promptly following any drowning or other incident resulting in death, serious injury, or rescue that occurs at the project works or involves project operations. The initial report can be made by email or telephone. This is a change from the initial written reporting requirements included in the NOPR. For consistency, the final rule applies this same change to the reporting requirements for initial reports of conditions affecting the safety of a project or its works, found in § 12.10(a) to make clear that initial reports can be made by email or telephone. Section 12.10(b)(2) provides the requirements for written reports by outlining three categories of incidents and indicating whether a written report is required: (i) Any death, serious injury, or rescue that is considered or alleged to be project-related (written report required); (ii) any death that is not project-related (copy of media article or law enforcement report accepted); and (iii) any serious injury or rescue that is not project-related (no written report required). The revisions to § 12.10(b) should clarify the reporting requirements for each type of incident. In addition, the final rule deletes § 12.10(b)(3) from the NOPR as it provided an outdated form of hard copy submittal (newspaper clipping). The final rule also revises § 12.10(b)(3)(iii) to include in the definition of “project-related,” any deaths, serious injuries, or rescues that “involve of a licensee employee, contractor, or other person performing work at a licensed project facility and are related in whole or in part to the work being performed.”
168. The Commission also received comments on the four draft chapters of the Engineering Guidelines (Chapters 15-18) that were issued concurrently with the NOPR. Some of these comments were similar to those received on the NOPR and have been addressed above (
169. Regarding the scope of the Potential Failure Mode Analysis, the Commission carefully evaluated specific weaknesses in the current Potential Failure Mode Analysis process identified by the Oroville Forensic Team and their recommendations for improvements to the process.
170. In response to the comment that the risk analysis process described in Chapter 18 of the Engineering Guidelines goes beyond what should be required for a risk analysis at this level, the Commission has reviewed risk analysis approaches and procedures used by other federal agencies for conducting risk analysis for similar levels of studies. The Commission has modeled the scope and detail of the Level 2 risk analysis process in Chapter 18 of the Engineering Guidelines after the Corps and Reclamation's semi-quantitative risk analysis process documented in their
171. The Commission has considered all comments on the NOPR and the four draft chapters of the Engineering Guidelines in estimating the incremental burden and cost associated with the revised regulations adopted in this final rule. Aside from adding the burden and cost estimates associated with subpart F's Owner's Dam Safety Program for informational purposes and updating the cost estimates to reflect 2021 dollars, no revisions were made to the burden and cost estimates provided in the NOPR.
172. Table 1 itemizes the estimated annual burden
173. Table 2 itemizes the estimated annual burden and annual contracting costs for professional services
174. Table 3 itemizes the estimated annual burden and total cost (direct costs [from Table 1] and costs for contracted professional services [from Table 2]), of the changes due to this final rule. Record keeping requirements are included in the burden and cost estimates for the development and collection of the data and reports.
175.
176.
177.
178.
179.
• For any project that was inspected in accordance with 18 CFR part 12 prior to January 1, 2022, a periodic inspection or comprehensive assessment must be completed, and a report on it filed, within five years of the due date of the most recent report. In addition, the first comprehensive assessment must be completed, and the report on it filed, by December 31, 2038.
• A licensed project development is subject to a different set of deadlines if the development was not inspected in accordance with 18 CFR part 12 prior to January 1, 2022, under the Commission's rules in effect on January 1, 2020. In these circumstances, the first comprehensive assessment and the report on it are due:
○ Not later than two years after the date of issuance of the order licensing a development or amending a license to include that development, if the development meets the criteria specified in §§ 12.30(a)(1) or 12.30(a)(2), and was constructed before the date of issuance of such order.
○ Not later than five years after the date of issuance of the order licensing that development, or amending a license to include that development, if the development was constructed after the date of issuance of such order.
○ No later than two years after a date specified by the Regional Engineer, for other developments that were not inspected prior to January 1, 2022, under the Commission's rules in effect on January 1, 2020.
180.
181.
182. Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission at one of the following methods:
•
•
•
•
183. Please send comments concerning the collection of information and the associated burden estimates to: Office of Information and Regulatory Affairs, Office of Management and Budget [Attention: Federal Energy Regulatory Commission Desk Officer]. Due to security concerns, comments should be sent directly to
184. The Commission is required to prepare an environmental assessment or an environmental impact statement for any action that may have a significant effect on the human environment.
185. The Regulatory Flexibility Act of 1980 (RFA)
186. The Small Business Administration's (SBA) Office of Size Standards develops the numerical definition of a small business.
187. The final rule's revisions to part 12, subpart D would directly affect all licensees that are currently required to file independent consultant safety inspection reports. Since the number of licensed projects per respondent varies from one to more than 50, the number of respondents does not correlate directly to the number of responses. Based on data over the preceding 10-year-period, Commission staff estimated the expected number of responses from entities that qualify as small. In total, approximately 132 entities qualify as small and would be expected to file approximately 225 responses (30%) with the Commission over the 10-year cycle. The remaining 525 responses (70%) would be filed by 106 entities that do not qualify as small.
188. The Commission notes that the projects owned by entities that qualify as small entities are typically smaller and/or less complex than those owned by large entities. Thus, the annual incremental cost to small entities would likely skew towards the “Simple Hydroelectric Facility” category presented in the burden estimates provided above in the Information Collection Statement section.
189. The addition of part 12, subpart F, which codifies the Owner's Dam Safety Program, would apply only to entities that are responsible for one or more projects classified as having a high hazard potential. The Commission expects the Owner's Dam Safety Program to improve communication and understanding within licensee organizations as to their responsibilities for ensuring dam safety and protection of the public, and may contribute to an increased likelihood that preventable dam safety issues are caught and addressed before they present an imminent danger to life safety or property. Because those licensees required to prepare an Owner's Dam Safety Program due to their project's hazard potential classification have already done so,
190. With respect to the filing of public safety incidents involving the rescue of any person at a hydroelectric facility, the Commission estimates that most affected entities qualify as small entities. But, as reflected in the burden and cost estimates provided above, the Commission expects an additional two burden hours (and corresponding $166, an amount that would not be considered significant) for licensees or applicants, regardless of their status as small or large.
191. While the revisions to subpart D may have some increased economic impact on a limited number of small entities, these improvements to the independent consultant safety inspection process are necessary, and the associated costs justified, by the Commission's Congressionally-mandated mission to ensure the protection of life, health, and property from risks associated with licensed hydroelectric facilities. In addition, the revisions to subpart D are intended to help prevent future dam safety incidents that could potentially result in significant economic impacts on small entities (
192. In summary, based on the estimated costs included in Table 3 above, the estimated economic impacts on small entities as a result of the final
193. Accordingly, pursuant to section 605(b) of the RFA, the Commission certifies that this final rule will not have a significant economic impact on a substantial number of small entities.
194. In addition to publishing the full text of this document in the
195. 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.
196. User assistance is available for eLibrary and the Commission's website during normal business hours from the Commission's Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at
197. These regulations are effective April 11, 2022. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this rule is not a major rule as defined in section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996.
Electric power, Reporting and recordkeeping requirements, Safety.
By direction of the Commission. Commissioner Phillips is not participating.
In consideration of the foregoing, the Federal Energy Regulatory Commission amends part 12, chapter I, title 18, Code of Federal Regulations, as follows:
16 U.S.C. 791a-825r; 42 U.S.C. 7101-7352.
The revisions and additions read as follows:
(b) * * *
(3)
(4)
(ii) Failure of, misoperation of, or failure to operate when attempted any facility that controls the release or storage of impounded water, such as a gate or a valve;
(v) Internal erosion, piping, slides, or settlements of materials in any dam, foundation, abutment, dike, or embankment;
(xi) Security incidents (physical and/or cyber);
(xiii) Overtopping of any dam, abutment, or water conveyance;
(11)
(12)
(13)
(i)
(ii)
(iii)
The revisions and addition read as follows:
(b) * * *
(1) * * *
(i) Achieving or protecting the safety, stability, security, and integrity of the project works or the ability of any project work to function safely for its intended purposes, including navigation, water power development, or other beneficial public uses; or
(ii) * * *
(2) * * *
(ii) * * *
(B) Any condition affecting the safety of a project or project works or any death, serious injuries, or rescues that occur at, or might be attributable to, the water power project;
(iii) * * *
(A) Any emergency action plan filed under subpart C of this part;
(B) Any Owner's Dam Safety Program filed under subpart F of this part;
(C) Any plan of corrective measures, including related schedules, submitted after the report of an independent consultant pursuant to § 12.36 or § 12.38 or any other inspection report; or
(D) Any public safety plan filed under § 12.52(b).
(c) * * *
(1) Any order or directive issued under this part by a Regional Engineer or other authorized Commission representative may be appealed to the Commission under § 385.207 of this chapter.
(2) Any order or directive issued under this part by a Regional Engineer or other authorized Commission representative is immediately effective and remains in effect until:
(3) An appeal or motion for rescission, amendment, or stay of any order or directive issued under this part must contain a full explanation of why granting the appeal or the request for rescission or amendment of the order or directive, or for stay for the period requested, will not endanger life, health, or property.
(d)
(1) * * *
(2) * * * Following the initial report required in paragraph (a)(1), the applicant or licensee must submit to the Regional Engineer a written report on the condition affecting the safety of the project or project works verified in accordance with § 12.13. * * *
(b)
(2)
(i) For any death, serious injury, or rescue that is considered or alleged to be project-related, or occurs at the project works, the applicant or licensee must submit to the Regional Engineer a written report that describes any remedial actions taken or proposed to avoid or reduce the chance of similar occurrences in the future. The written report must be verified in accordance with § 12.13.
(ii) For any death that is not project-related, the applicant or licensee may report the death by providing a copy of an article from print or electronic media or a report from a law enforcement agency, if available.
(iii) Serious injuries and rescues that are not project-related do not require a written report.
(3) For the purposes of this paragraph (b),
(i) Involve a project dam, spillway, intake, outlet works, tailrace, power canal, powerhouse, powerline, other water conveyance, or other appurtenances;
(ii) Involve changes in water levels or flows caused by generating units, project gates, or other flow regulating equipment;
(iii) Involve a licensee employee, contractor, or other person performing work at a licensed project facility and are related in whole or in part to the work being performed; or
(iv) Are otherwise attributable to project works and/or project operations.
(5) For the purposes of this paragraph (b),
(a) * * *
(1) * * *
(ii) Instrumentation observations and data collected during construction, operation, or maintenance of the project, including continuously maintained tabular records and graphs illustrating the data collected pursuant to § 12.51; and
(b) * * *
(3) In accordance with the provisions of part 125 of this chapter, the applicant or licensee may select its own storage media to maintain original records or record copies at the project site, provided that appropriate equipment is available to view the records.
(d)
This subpart D applies to any licensed project development that:
(a) Has a dam
(1) That is more than 32.8 feet (10 meters) in height above streambed, as defined in § 12.31(c); or
(2) With an impoundment gross storage capacity of more than 2,000 acre-feet (2.5 million cubic meters), as defined in § 12.31(d);
(b) Has a project work (dam or water conveyance) or any portion thereof that has a high hazard potential, as defined in § 12.3(b)(13)(i); or
(c) Is determined by the Regional Engineer or other authorized Commission representative to require inspection by an independent consultant under this subpart D.
For purposes of this subpart D:
(a)
(1) Is a licensed professional engineer;
(2) Has at least 10 years of experience and expertise in dam design and construction and in the investigation of the safety of existing dams;
(3) Is not an employee of the licensee or its affiliates;
(4) Has not been an employee of the licensee or its affiliates within two years prior to performing engineering and/or scientific services for an inspection or assessment under this subpart D; and
(5) Has not been an agent acting on behalf of the licensee or its affiliates, prior to performing engineering and/or scientific services for an inspection or assessment under this subpart D.
(b) An
(1) Includes at least one independent consultant, as defined in paragraph (a) of this section;
(2) Includes additional qualified engineering and scientific professionals as supporting team members, as needed, who meet the requirements of paragraphs (a)(3) through (5) of this section;
(3) Has demonstrable experience and expertise in dam design, construction, and the evaluation and assessment of the safety of existing dams and their appurtenances, commensurate with the scale, complexity, and relevant technical disciplines of the project and type of review, inspection, and assessment being performed (periodic inspection or comprehensive assessment, as defined in this section).
(c)
(1) For a dam with a spillway, the vertical distance from the lowest elevation of the natural streambed at the downstream toe of the dam to the maximum water storage elevation possible without any discharge from the spillway. The maximum water storage elevation is:
(i) For gated spillways, the elevation of the tops of the gates; and
(ii) For ungated spillways, the elevation of the spillway crest or the top of any flashboards, whichever is higher.
(2) For a dam without a spillway, the vertical distance from the lowest elevation of the natural streambed at the downstream tow of the dam to the lowest point on the crest of the dam.
(d) Gross storage capacity means the maximum possible volume of water impounded by a dam with zero spill, that is, without the discharge of water over the dam or a spillway.
(e) Periodic inspection means an inspection that meets the requirements of § 12.35 and is performed by an independent consultant team.
(f) Comprehensive assessment means a project review, inspection, and assessment that meets the requirements of § 12.37 and is performed by an independent consultant team.
(g) Previous Part 12D Inspection means the most recent inspection performed in accordance with the provisions of this subpart D (a periodic inspection, comprehensive assessment, or an inspection performed in accordance with the rules established by Order 122).
(h) Previous Part 12D Report means the report on the Previous Part 12D Inspection.
The project works of each development to which this subpart applies, excluding transmission and transformation facilities, must be inspected on a periodic basis by an independent consultant team to identify any actual or potential deficiencies that might endanger life, health, or property, including deficiencies that may be in the condition of those project works or in the quality or adequacy of project maintenance, safety, methods of operation, analyses, and other conditions. A report must be prepared by the independent consultant team, by or under the direction of at least one independent consultant, who may be a member of a consulting firm, to document the findings and evaluations made during their inspection. The inspection must be performed by the independent consultant team, and the report must be filed by the licensee, in accordance with the procedures in this subpart D. The licensee must ensure that the independent consultant team's report meets all of the requirements set forth in this subpart D.
(a) Upon written request from the licensee, the Director of the Division of Dam Safety and Inspections may grant an exemption from the requirements of this subpart D in circumstances that clearly establish good cause for exemption.
(b) Good cause for exemption may include the finding that the development in question has no dam, canal, or other water conveyance except those that meet the criteria for low hazard potential as defined in § 12.3(b)(13)(iii).
(c) The Director of the Division of Dam Safety and Inspections, for good cause shown, may rescind any exemption from this subpart D granted by the Director, and may require that a comprehensive assessment be completed prior to considering a subsequent request for exemption from the licensee.
(a) The licensee must obtain written approval of the independent consultant team, and the facilitator(s) for a potential failure mode analysis or risk analysis, from the Director of the Division of Dam Safety and Inspections, prior to the performance of a periodic inspection or comprehensive assessment under this subpart D.
(b) At least 180 days prior to performing a periodic inspection or comprehensive assessment under this subpart D, the licensee must submit to the Director of the Division of Dam Safety and Inspections, with a copy to the Regional Engineer, a detailed part 12D inspection plan that includes an independent consultant team proposal that describes the technical disciplines and level of expertise required to perform the inspection.
(1) If the independent consultant team comprises one person, the detailed independent consultant team proposal must:
(i) Describe the experience of the independent consultant; and
(ii) Show that the independent consultant meets the requirements as defined in §§ 12.31(a) and 12.31(b)(3).
(2) If the independent consultant team comprises more than one person, the detailed independent consultant team proposal must:
(i) Designate one or more persons to serve as independent consultant(s);
(ii) Describe the experience of each member of the independent consultant team;
(iii) Show that each independent consultant meets the requirements as defined in § 12.31(a);
(iv) Show that each member of the independent consultant team who is not designated as an independent consultant meets the requirements as defined in § 12.31(a)(3) through (5); and
(v) Show that the independent consultant team meets the requirements as defined in § 12.31(b)(3).
(3) If any member of the independent consultant team has performed or substantially contributed to any previous investigation, analysis, or other work product that is required to be reviewed and evaluated by the independent consultant team as part of the inspection being performed, the independent consultant team proposal must include a clear delineation of roles and responsibilities that ensures no team member will be responsible for reviewing and evaluating their own previous work.
(4) If required information about any supporting team member(s) is not available at the time the independent consultant team proposal is submitted to the Director of the Division of Dam Safety and Inspections, the independent consultant team proposal must state that the information will be provided in the preliminary report required by § 12.42.
(5) The 180-day period in paragraph (b) is measured from the scheduled date of the physical field inspection, potential failure mode analysis, or risk analysis, whichever occurs first.
(c) Regardless of experience and qualifications, any independent consultant may be disapproved by the Director of the Division of Dam Safety and Inspections for good cause, such as having had one or more reports on an inspection under this subpart D rejected by the Commission within the preceding five years.
(d) The Director of the Division of Dam Safety and Inspections may, for good cause shown, grant a waiver of the 10-year requirement in § 12.31(a)(2). Any petition for waiver under this paragraph must be filed in accordance with § 385.207 of this chapter.
A periodic inspection must include:
(a)
(b)
(1) Settlement;
(2) Movement;
(3) Erosion;
(4) Seepage;
(5) Leakage;
(6) Cracking;
(7) Deterioration;
(8) Hydraulics;
(9) Hydrology;
(10) Seismicity;
(11) Internal stress and hydrostatic pressures in project structures and their foundations and abutments;
(12) The condition and performance of foundation drains, dam body drains, relief wells, and other pressure-relief systems;
(13) The condition and performance of any post-tensioned anchors installed, and other major modifications completed, to improve the stability of project works;
(14) The stability of critical slopes adjacent to a reservoir or project works; and
(15) Regional and site geological conditions.
(c)
(1) Review the surveillance procedures, instrumentation layout, installation details, monitoring frequency, performance history, data history and trends, and relevance to potential failure modes; and
(2) Review the frequency and scope of other surveillance activities.
(d)
(1)
(2)
(3)
(4)
(a)
(b)
(1) The history of performance of the project works through visual observations, analysis of data from monitoring instruments, and previous inspections;
(2) The quality and adequacy of maintenance, surveillance, methods of project operations, and risk reduction measures for the protection of public safety and continued project operation;
(3) Potential failure modes, including:
(i) Each identified potential failure mode associated with the project works and whether any potential failure mode is active or developing; and
(ii) Whether any inspection observations or other conditions indicate that an unidentified potential failure mode is active, developing, or is of sufficient concern to warrant development through a supplemental potential failure mode analysis;
(4) Whether any observed conditions warrant reconsideration of the current hazard potential classification; and
(5) The adequacy of the project's:
(i) Emergency action plan;
(ii) Public safety program; and
(iii) Implementation of the Owner's Dam Safety Program with respect to the project development being inspected under this subpart D.
(c)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(d)
(1) Any corrective measures, described in § 12.41, necessary for the structures, maintenance or surveillance procedures, or methods of operation of the project works;
(2) A reasonable time to carry out each corrective measure; and
(3) Any new or additional monitoring instruments, periodic observations, special inspections, or other methods of monitoring project works or conditions that may be required.
(e)
(f)
(g)
(h)
A comprehensive assessment must include:
(a)
(1) In addition to the requirements of § 12.35(a), the independent consultant team must have a full understanding of the risk associated with the project works.
(2) The independent consultant team shall perform a detailed review of the as-built drawings; monitoring data; and the methods, assumptions, calculations, results, and conclusions of the analyses of record pertaining to:
(i) Geology and seismicity;
(ii) Hydrology and hydraulics;
(iii) Stability and structural integrity of project works; and
(iv) Any other analyses relevant to the safety, stability, and operation of project works.
(b)
(c)
(d)
(e)
(f)
(g)
(a)
(b)
(1) The adequacy of spillways, including the effects of overtopping of nonoverflow structures, as described in § 12.39;
(2) The structural adequacy and stability of structures under all credible loading conditions;
(3) The potential for internal erosion and/or piping of embankments, foundations, and abutments;
(4) The design and construction practices used during original construction and subsequent modifications, in comparison with the industry best practices in use at the time of the inspection under this subpart D;
(5) The adequacy of the Supporting Technical Information Document and the attached electronic records; and
(6) The adequacy and findings of the potential failure mode analysis and risk analysis report(s).
(c)
(1) Address the accuracy, relevance, and consistency with the current state of the practice of dam engineering;
(2) Be accompanied by sufficient documentation of the independent consultant team's rationale, including, as needed, new calculations by the independent consultant team to verify that the assumptions, methods, calculations, results, and conclusions in the analyses of record are correct; and
(3) If the independent consultant team is unable to review the analyses of record for any of the items listed in § 12.37(a)(2)(i) through (iv); or if the independent consultant team disagrees with the assumptions, methods, calculations, results, or conclusions therein; the independent consultant(s) must recommend that the licensee complete new analyses to address the identified concerns.
(d)
(e)
(f)
(g)
(h)
(i)
The adequacy of any spillway must be evaluated, as part of a comprehensive assessment or as otherwise requested by the Regional Engineer, by considering hazard potential which would result from failure of the project works during normal and flood flows.
(a) If failure would present a hazard to human life or cause significant property damage, the independent consultant team must evaluate the following for floods up to and including the probable maximum flood:
(1) The ability of project works to withstand the loading or overtopping which may occur during floods;
(2) The capacity of spillways to prevent the reservoir from rising to an elevation that would endanger the project works; and
(3) The potential for misoperation of; failure to operate; blockage of; or debilitating damage to a spillway and its appurtenances (including but not limited to structural, mechanical, and electrical components of gates, valves, chutes, and training walls); and the effect thereof on the maximum reservoir level and potential for surcharged loading or overtopping to occur during floods.
(b) If failure would not present a hazard to human life or cause significant property damage, spillway adequacy may be evaluated by means of a design flood of lesser magnitude than the probable maximum flood provided that the most recent comprehensive assessment report required by § 12.38 provides a detailed explanation of and rationale for the finding that structural failure would not present a hazard to human life or cause significant property damage.
(a)
(1) A periodic inspection or comprehensive assessment must be completed, and the report on it filed, within five years of the due date of the Previous Part 12D Report.
(2) For any report due to be filed under this subpart D after October 11, 2023, the Regional Engineer may require that it be a report on a comprehensive assessment or a report on a periodic inspection.
(3) The first comprehensive assessment under this subpart must be completed, and the report on it filed, by December 31, 2038.
(b)
(1) For any development that meets the criteria specified in § 12.30(a)(1) or § 12.30(a)(2), and was constructed before the date of issuance of the order licensing that development, or amending a license to include that development, the first comprehensive assessment under this subpart D must be completed, and the report on it filed, not later than two years after the date of issuance of the order licensing that development or amending the license to include that development.
(2) For any development that was constructed after the date of issuance of the order licensing that development, or amending a license to include that development, the first comprehensive assessment under this subpart D must be completed, and the report on it filed, not later than five years after the date of issuance of the order licensing that development or amending the license to include that development.
(3) For any development not set forth in either paragraph (b)(1) or (b)(2) of this section, the first comprehensive assessment under this subpart D must be completed, and the report on it filed, by a date specified by the Regional Engineer. The filing date must not be more than two years after the date of notification that a comprehensive assessment and report under this subpart D are required.
(c)
(1) A comprehensive assessment must be completed, and the report on it filed, within 10 years of the date the previous comprehensive assessment report was due to be filed.
(2) A periodic inspection must be completed, and the report on it filed, within five years of the date the previous comprehensive assessment report was due to be filed.
(d)
(e)
(a)
(1)
(ii) The plan and schedule may include any proposal, including taking no action, that the licensee considers a preferable alternative to any corrective measure recommended in the report of the independent consultant(s). Any proposed alternative must be accompanied by the licensee's complete justification and detailed analysis and evaluation in support of that alternative.
(2)
(3)
(b)
At least 30 days prior to the performance of a periodic inspection or comprehensive assessment, a preliminary report prepared by the independent consultant team must be filed by the licensee with the Regional Engineer to document the initial findings, understanding, and preparation of the independent consultant team.
(a) For any periodic inspection, the 30-day period is measured from the scheduled date of the physical field inspection.
(b) For any comprehensive assessment, the 30-day period is measured from the scheduled date of the physical field inspection, potential failure mode analysis, or risk analysis, whichever occurs first.
(c) If the Regional Engineer determines that the preliminary report does not clearly demonstrate that the independent consultant team is adequately prepared for the inspection, the Regional Engineer may require the inspection to be postponed. Any such postponement shall not constitute good cause for an extension of time under § 12.40(d).
(d) If any required supporting team member information was not provided with the independent consultant team proposal required by § 12.34(b), it must be provided with the preliminary report.
(a) To the satisfaction of, and within a time specified by the Regional Engineer, an applicant or licensee must install, operate, and maintain any signs, lights, sirens, barriers, or other safety devices that may reasonably be necessary or desirable to warn the public of fluctuations in flow from the project or otherwise to protect the public in the use of project lands and waters.
(b) The Regional Engineer may require the applicant or licensee to prepare, periodically update, and file with the Commission a public safety plan that formalizes the installation, operation, and maintenance of all necessary public safety devices.
The licensee of any dam or other project work classified as having a high or significant hazard potential, as defined in § 12.3(b)(13)(i) and (ii), is required to submit an Owner's Dam Safety Program to the Regional Engineer.
For purposes of this subpart F:
(a)
(b)
(a) The Owner's Dam Safety Program shall designate either a Chief Dam Safety Engineer or Chief Dam Safety Coordinator, as defined in § 12.61. Any Owner's Dam Safety Program that includes one or more dams or other project works classified as having a high hazard potential, as defined in § 12.3(b)(13)(i), shall designate a Chief Dam Safety Engineer.
(b) The Owner's Dam Safety Program must be signed by the Owner and, as applicable, the Chief Dam Safety Engineer or the Chief Dam Safety Coordinator.
(c) The Owner's Dam Safety Program must be reviewed and updated on a periodic basis as described in § 12.64 and, if applicable, must undergo an independent external audit or peer review as described in § 12.65.
(d) The Owner may delegate to others, such as consultants, the work of establishing and implementing the Owner's Dam Safety Program and the role of Chief Dam Safety Engineer or Chief Dam Safety Coordinator, as applicable.
(1) If the role of Chief Dam Safety Engineer or Chief Dam Safety Coordinator is delegated to an outside party who does not oversee the day-to-day implementation of the Owner's Dam Safety Program, the Owner must designate an individual responsible for overseeing the day-to-day implementation.
(2) Any delegation made in accordance with paragraph (d) of this section must be documented in the Owner's Dam Safety Program.
(3) The Owner retains ultimate responsibility for the safety of the dam(s) and other project works covered by the Owner's Dam Safety Program.
The Owner's Dam Safety Program shall contain, at a minimum, the following sections:
(a) Dam safety policy, objectives, and expectations;
(b) Responsibilities for dam safety;
(c) Dam safety training program;
(d) Communication, coordination, reporting, and reports;
(e) Record keeping and databases; and
(f) Continuous improvement.
The Owner's Dam Safety Program, and the implementation thereof, shall be reviewed at least once annually by the licensee's dam safety staff and discussed with senior management of the Owner's organization. The licensee shall submit the results of the annual review, including findings, analysis, corrective measures, and/or revisions to the Owner's Dam Safety Program, to the Regional Engineer.
(a)
(b)
(c)
(2) The report on the audit or peer review shall be reviewed by the Owner, Chief Dam Safety Engineer or Chief Dam Safety Coordinator, and management having responsibility in the area(s) audited or reviewed.
(3) The report on the audit or peer review shall be submitted to the Regional Engineer.
Department of Veterans Affairs.
Proposed rule.
The Department of Veterans Affairs (VA) proposes to amend the Schedule for Rating Disabilities (VASRD or rating schedule) that addresses the Digestive System. These changes add medical conditions not currently in the rating schedule, revise the rating criteria to reflect medical advances that have occurred since the last revision, clarify existing rating criteria, and update medical terminology. The proposed rule also reflects recommendations from the 2007 report of the National Academy of Sciences, Institute of Medicine, “A 21st Century System for Evaluating Veterans for Disability Benefits.” In fashioning this proposed rule, VA considered the most up-to-date medical knowledge and clinical practice of gastroenterology and hepatology specialties.
VA must receive comments on or before March 14, 2022.
Comments may be submitted through
Ioulia Vvedenskaya, M.D., M.B.A., Medical Officer, Regulations Staff, (210A), Compensation Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420,
Since the last update to the rating schedule section on digestive disorders, important advances in the science and medical care have occurred in the fields of nutrition, gastroenterology, and hepatology. Aware of the impact of these changes, the Veterans Benefits Administration (VBA) collaborated with the Veterans Health Administration (VHA) to update the VASRD. The VHA Office of Specialty Care provided VBA with access to leading authorities in their respective fields to help in this update.
VA proposes to revise 38 CFR 4.110-4.114 pertaining to the digestive system based on the most up-to-date understanding of gastrointestinal disorders and associated functional impairment. The Rome Foundation, a non-profit organization assisting in the diagnosis and treatment of functional gastrointestinal disorders, has introduced a system and classification of the various forms of gastrointestinal dysfunction, known as “Rome IV.” See Brian Lacy, “Bowel Disorders,” Gastroenterology, 150: 1393-1407 (2016).
In the context of the VASRD, VA has incorporated the concepts and diagnostic criteria outlined by Rome IV in several DCs covering functional digestive disorders, including the revised DC 7319 (Irritable Bowel Syndrome) and new DC 7356 (Gastrointestinal Dysmotility), as discussed below. VA proposes to use these criteria to rate certain other functional gastrointestinal conditions. VA discusses the specific amendments proposed in detail below.
Section 4.110 advises rating personnel to consider ulcer location (
The current § 4.111 discusses a subset of post-gastrectomy syndromes known as dumping syndrome. However, this section does not accurately reflect this specific clinical condition, nor does it offer specific guidance on rating it. Post-gastrectomy syndromes result from altered form and function of the stomach, which disrupts the stomach's reservoir capacity, mechanical digestion, and gastric emptying. Post-gastrectomy syndromes result in persistent gastrointestinal symptoms such as epigastric pain, nausea, vomiting, early satiety, bloating, diarrhea, or weight loss. Davis J.L., Ripley R.T., Postgastrectomy Syndromes and Nutritional Considerations Following Gastric Surgery, Surg Clin North Am. 2017 Apr;97(2):277-293. (last visited Oct 6, 2021)
As discussed in more detail below, VA proposes to rate dumping syndrome under new DC 7303, titled “Chronic complications of upper gastrointestinal surgery,” which includes operations, including bariatric surgery, performed on the esophagus, stomach, pancreas, and small intestine. Therefore, the material in § 4.111 is unnecessary and, accordingly, VA proposes to remove it.
When first published in 1964, § 4.112 discussed issues related to significant weight loss in general terms, referred to as “appreciable weight loss.” As part of a 2001 VASRD update, VA introduced and defined the terms “substantial weight loss” and “baseline weight,” as well as “minor weight loss” and “inability to gain weight.” 66 FR 29486 (May 31, 2001). VA incorporated these definitions in the VASRD to promote greater uniformity in decision making. Nevertheless, the weight loss requirements among conditions continue to vary. For instance, duodenal ulcer (DC 7305) currently requires weight loss productive of impairment of health, while ulcerative colitis (DC 7323) requires malnutrition.
In accordance with advancements in medicine and the current state of food and nutrition science, VA proposes to update the terms appearing in § 4.112.
Currently, 38 CFR 4.112 defines “baseline weight” as the average weight for the two-year period preceding the onset of the disease. Weight loss associated with digestive disease prior to military discharge is generally readily ascertainable from an individual's service medical records. However, weight loss associated with digestive disease after military discharge is often less clear, as weight in the military is not always available to physicians afterwards or the onset date of the disease is unknown. As such, VA proposes to redefine “baseline weight” (also known as “usual body weight”) as either documented weight upon discharge from the armed service, if relevant, or the documented average weight for the two-year period preceding the onset of illness. If none of this information is available or is no longer relevant or applicable, VA proposes to estimate the “baseline weight” using the Hamwi formula for ideal body weight (IBW) or the Body Mass Index (BMI) table. VA acknowledges that the IBW might provide different results than the BMI tables, depending on the person's body frame and size. Bhumika Shah et al., “Comparison of Ideal Body Weight Equations and Published Height-Weight Tables With Body Mass Index Tables for Healthy Adults in the United States,” 21(3) Nutr. Clin. Pract. 312-19 (2006). VA therefore proposes using either method to provide the veteran with the most favorable or advantageous baseline weight under the situations above.
In addition to updating the definition of “baseline weight,” VA proposes to clarify the existing requirements regarding degrees of weight loss by including the term “involuntary” in reference to the “weight loss,” as well as indicating that the weight loss must alter other aspects of health. Moreover, using weight loss to evaluate digestive disorders assumes that it results in some degree of functional impairment. VA proposes to clarify this fact, as it is not clear from the current requirements.
VA also proposes to add the term “undernutrition” to § 4.112 to complete a comprehensive definition of weight loss severity. Nutritionists prefer the term “undernutrition” over “malnutrition” as the latter is more imprecise, denoting either over- or under-nutrition. VA intends to define “undernutrition” as a deficiency resulting from involuntary insufficient intake of one or more essential nutrients, or the inability of the body to absorb, utilize, or retain such nutrients. This deficiency results in the failure of the body to maintain normal organ functions and healthy tissues. Jane V. White et al., “Consensus Statement of the Academy of Nutrition and Dietetics/American Society of Parenteral and Enteral Nutrition Regarding Adult Malnutrition (Undernutrition),” 112 J. of Academy of Nutritional Dietetics 730-38 (2012). Signs and symptoms of undernutrition may include edema, loss of subcutaneous tissue, peripheral neuropathy, muscle wasting, weakness, abdominal distention, ascites, and BMI below normal range. Id.
Studies indicate that poor nutritional status, to include severe undernutrition, can lead to severe impairment of function. See F. Romagnoni et al., “Malnutrition disability evaluation,” 199 Aging (Milano) 194-99 (June 2011). Severe protein undernutrition can impair multiple organ systems. Id. Meanwhile, gastrointestinal cancer can lead to severe malabsorption, gastrointestinal obstruction, bleeding, chronic diarrhea, and intractable vomiting. Id. Maureen B. Huhmann and David A. August, “Nutrition in Gastrointestinal Cancer,” in “Nutrition and Gastrointestinal Disease,” 158-68 (Mark DeLegge ed. 2008),
As certain digestive conditions can lead to severe undernutrition and disability requiring nutritional support, VA proposes rating criteria that provide for higher levels of disability based, among other factors, on the type of nutritional support needed. As discussed in more detail below, VA intends to provide higher ratings for individuals whose digestive conditions may require total parenteral nutrition (TPN) or assisted enteral nutrition. VA proposes to define these terms to assist rating personnel in their application. In brief, TPN involves a special liquid nutritional mixture given into the blood through an intravenous catheter. See “What Is Parenteral Nutrition?” The American Society for Parenteral and Enteral Nutrition (A.S.P.E.N.) (2012),
Finally, to more accurately describe § 4.112, VA proposes to retitle it as “Weight loss and nutrition.” VA intends to reorganize this section into four paragraphs. Paragraph (a) would discuss and define “substantial weight loss” and “minor weight loss;” paragraph (b) would define “baseline weight;” paragraph (c) would define “undernutrition;” and paragraph (d) would explain TPN and assisted enteral nutrition.
Currently, § 4.114 states that “[r]atings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.”
As discussed below, VA proposes to add a number of new codes to the digestive system, including gastroesophageal reflux disease (DC 7206), Barrett's esophagus (DC 7207), chronic complications of upper gastrointestinal surgery (DC 7303), liver abscess (DC 7350), pancreas transplant (DC 7352), celiac disease (DC 7355), gastrointestinal dysmotility syndrome (DC 7356), and post pancreatectomy syndrome (DC 7357). VA personnel currently rate these conditions analogous to DCs that VA excludes from combining. VA may combine the new DCs 7206 and 7207, like other esophageal conditions, with other digestive conditions. However, VA proposes to preclude rating personnel
DC 7200 is currently titled, “Mouth, injuries of.” VA proposes to rename it to clarify that it applies to soft tissue injuries that do not include the tongue or lips. Current criteria remain unchanged.
DC 7201 pertains to injuries of the lips; current criteria direct rating personnel to evaluate as disfigurement of the face. VA proposes to specify that it may be rated as either disfigurement of the face (under DC 7800) or as a painful scar (under DC 7804). This is intented to provide greater specificity for raters, and permit a potentially more advantageous rating to claimants based on the facts found by the rater.
DC 7202 is currently titled “Tongue, loss of whole or part.” This disability usually occurs in association with treatment for oropharyngeal cancers. The current criteria are based on the amount of tongue removed and degree of speech impairment. However, the criteria pose limitations that prevent the accurate assessment of the disability in this part of the digestive system. First, only the amount of residual tongue and speech impairment are considered. The most salient digestive function, swallowing, is completely excluded. Additionally, the criteria do not account for advances in both medical treatment and rehabilitation that can restore some (if not all) of any swallowing or speech function. See D. Lin, M.D., et al. “Long-term Functional Outcomes of Total Glossectomy With or Without Total Laryngectomy.” JAMA Otolaryngol Head Neck Surg, vol 14(9): Pgs 797-803. 2015,
The proposed revisions are intended to use criteria specifically focused upon disabilities arising from this part of the digestive system. The criteria would be revised to address swallowing from an anatomic perspective, so the criteria elements must reflect this reality. The 30-percent evaluation level would involve intact oral nutritional intake with permanently impaired swallowing function without prescribed dietary modification (for example, impaired swallowing can present as increased swallowing time or frequent aspiration). The 60-percent evaluation level involves intact oral nutritional intake with permanently impaired swallowing function that requires prescribed dietary modification. The 100-percent evaluation level involves absent oral nutritional intake. VA proposes two notes to accompany this diagnostic code. The first note would direct rating personnel to consider the possibility of awarding special monthly compensation under 38 CFR 3.350. The second note would indicate only a medical provider can prescribe dietary modifications for the purposes of this diagnostic code.
The proposed changes to esophageal conditions described under proposed DCs 7203 through 7207 reflect the advances in treatment and improved understanding of esophageal disease. The proposed DCs contain more detailed rating criteria involving structural and motility disorders of the esophagus.
Several validated studies incorporate swallowing dysfunction (due to stricture) as one of the major manifestations of severity in esophageal disorders. M. Dakkak and J.R. Bennett, “A New Dysphagia Score With Objective Validation,” 14(2) J. of Clinical Gastroenterology 99-100 (1992). Thus, the proposed classification and ratings account for this dysfunction, while also taking into account changes in weight, the requirement for nutritional support, complications, and other interventional needs. The proposed higher rating levels are not exclusively based on esophageal stricture-dilatation, but offer alternative descriptors for a more comprehensive evaluation than the current VASRD.
VA proposes to revise the rating criteria for esophageal disorders that manifest as stricture, currently evaluated under DC 7203. Although these conditions have a wide spectrum of causation, the manifestations are similar. As noted above, several validated studies incorporate swallowing dysfunction (due to stricture) as one of the major manifestations of severity in esophageal disorders. Dakkak, supra at 99. Thus, the proposed classification and rating reflects this feature. VA proposes to add Note (3) that provides a non-exhaustive list of the numerous conditions to which DC 7203 applies. These conditions include but are not limited to esophagitis, mechanical or chemical; Mallory Weiss syndrome (bleeding due to tears at the junction of esophagus and stomach) due to caustic ingestion of alkali or acid; drug-induced or infectious esophagitis due to Candida, virus, or other organism; idiopathic eosinophilic or lymphocytic esophagitis; esophagitis, radiation-therapy induced; esophagitis due to peptic stricture; and any esophageal condition that requires treatment with sclerotherapy. See Norton J. Greenberger et al., “Section 2: Esophageal Diseases” in “Current Diagnosis & Treatment: Gastroenterology, Hepatology, & Endoscopy” (N.J. Greenberger, et al. eds., 2d ed. 2012).
The current criteria focus on the most common symptom, dysphagia (difficulty with swallowing). In its most disabling form, dysphagia can lead to nutritional deficiencies as well as malnutrition in general (either of which can result in loss of earnings capacity). One of the shortcomings with the current criteria is with the subjective nature of terminology such as “moderate” and “severe.” No concrete, objective definitions exist for these terms as they pertain to dysphagia.
VA proposes to revise the evaluation criteria using the manner and intensity of treatment intervention as the underlying framework. Additionally, VA would take into consideration that the vast majority of esophageal strictures result from peptic disease. See D. J. Patterson, et al. “Natural History of Benign Esophageal Stricture Treated By Dilatation,” Gastroenterology, vol 85, pg 347. 1983,
VA proposes a 0-percent evaluation level for a documented history of esophageal stricture(s) without daily symptoms or the requirement for daily medications. VA proposes a 10-percent evaluation for a documented history of esophageal stricture(s) that requires daily medications to control dysphagia that is otherwise asymptomatic. VA proposes a 30-percent evaluation for a documented history of recurrent or refractory esophageal stricture(s) causing dysphagia which requires dilatation no more than 2 times per year. VA proposes a 50-percent evaluation level for a documented history of recurrent or refractory esophageal stricture(s) causing dysphagia which requires at least one of the following: (1) Dilation 3 or more times per year, (2) dilation using steroids at least one time per year, or (3) esophageal stent placement. VA proposes an 80-percent evaluation for a documented history of recurrent or refractory esophageal stricture(s) causing dysphagia where at least one of the following symptoms is present: (1) Aspiration, (2) undernutrition, and/or (3) substantial weight loss as defined by § 4.112(a) and where such dysphagia was treated with either surgical correction or percutaneous esophago-gastrointestinal tube (PEG tube).
VA also proposes to list 5 notes with DC 7203. The first note would require medical findings to be documented by barium swallow, computerized tomography, or esophagogastroduodenoscopy. The second note would require non-gastrointestinal complications of procedures to be rated under the appropriate system. The third note would provide a non-exhaustive list of esophageal conditions to be evaluated under this DC. Note 4 and Note 5 would define recurrent and refractory strictures, respectively.
VA proposes to retitle this DC from “esophagus, spasm of (cardiospasm)” to “esophageal motility disorder.” The title change would capture several motor disorders of the esophagus—in addition to esophageal spasm—to which VA would apply DC 7204. These disorders include but are not limited to achalasia (cardiospasm), corkscrew and nutcracker esophagus, esophageal rings including Schatzki rings, mucosal webs or folds, and other conditions influencing motility, such as myasthenia gravis, scleroderma, and other neurological conditions.
VA would not substantively change the existing instruction to rate conditions falling under this DC as esophageal stricture (DC 7203). However, VA proposes to delete, as unnecessary, the prior instruction to evaluate an esophageal spasm not amenable to dilation as a stricture, because the proposed rating criteria for esophageal stricture under DC 7203 now consider the frequency of dilatation.
For clarity, VA proposes to add a note with a non-exhaustive list of conditions to which DC 7205, acquired diverticulum of the esophagus, can apply. These conditions include pharyngo-esophageal (Zenker's) diverticulum, as well as mid-esophageal and epiphrenic diverticula. The existing instruction to rate conditions under this DC as esophageal stricture (DC 7203) would remain without substantive change.
VA proposes to add a new DC for rating gastroesophageal reflux disease (GERD). Historically, VA has rated this condition analogously to hiatal hernia (DC 7346). As discussed below, VA proposes to evaluate hiatal hernia using the revised criteria found in DC 7203 (Esophagus, stricture of) because the medical community now recognizes the close relationship between the majority of symptoms associated with these conditions. See Dakkak, supra. Similarly, VA proposes to evaluate GERD using rating criteria in DC 7203 because these criteria consider symptoms of esophageal obstruction and irritation, which are consistent with the symptoms of GERD. D. Armstrong et al., “Canadian consensus conference on the management of gastroesophageal reflux disease in adults: Update 2004,” 19(1) Canadian J. of Gastroenterology, 15-35 (Jan. 2005).
VA proposes to add Barrett's esophagus to § 4.114 as a relevant medical condition that the VASRD does not presently address. Barrett's esophagus is characterized by the replacement of the normal squamous epithelium of the distal esophagus by dysplastic or aberrant cells (metaplasia), an anomalous cell overgrowth that may eventually become cancerous. “Barrett's Esophagus” in National Digestive Diseases Information Clearinghouse, National Institute of Diabetes and Digestive and Kidney Diseases, NIH Publication No. 13-4546 (Feb. 2013),
If a veteran with Barrett's esophagus also has stricture, VA proposes to evaluate the condition under DC 7203 (Esophagus, stricture of). This is consistent with the prohibition against pyramiding under 38 CFR 4.14. If, however, esophageal stricture is not present, VA proposes to evaluate Barrett's esophagus based on its progression toward cancer. Specifically, VA proposes a 30-percent evaluation for more advanced presentations (known as high-grade dysplasia), documented by pathologic diagnosis. VA proposes a 10-percent evaluation for less advanced presentations (known as low-grade dysplasia). High-degree dysplasia represents a higher risk of disease and requires closer surveillance, such as more frequent endoscopy, biopsy, etc., and in some cases preemptive esophagectomy for adenocarcinoma. See M.S. Dar et al., “Can extent of high grade dysplasia in Barrett's esophagus predict the presence of adenocarcinoma at esophagectomy?” 52 Gut 486-89 (2003). Low-degree dysplasia requires at least yearly endoscopy with biopsy. Id. The symptomatology of patients with Barrett's esophagus is indistinguishable from patients with GERD; thus, the rating of 30 percent is more consistent with higher degree of obstruction, while those at 10 percent have mild esophageal discomfort manageable with medications. See Jajoo, supra.
In addition to the above rating criteria, VA proposes to add a note to evaluate any developing malignancies under DC 7343 (Malignant neoplasms of the digestive system, exclusive of skin growths). VA proposes a second note to evaluate any residuals from successful treatment as DC 7203 (Esophagus, stricture of).
VA proposes new rating criteria that consider both alimentary support (such
The current DC 7301 provides for a maximum 50-percent rating. However, as some adhesions do not respond to treatment or require nutritional support, VA intends to expand DC 7301 to include an 80-percent evaluation. Under the proposed criteria, VA would assign an 80-percent evaluation for persistent (continuous) partial bowel obstruction that is either inoperable and otherwise refractory to treatment or requires TPN for obstructive symptoms.
The 0-percent evaluation is currently described as “mild” without additional criteria, explanation, or definition. VA proposes to re-define the 0-percent evaluation by deleting “mild” and clarifying the criteria as “a history of peritoneal adhesions, currently asymptomatic”. VA proposes to amend the 10-percent evaluation, and assign it for symptomatic adhesions, persisting or recurring after surgery, trauma, inflammatory disease process such as chronic cholecystitis or Crohn's disease, or infection, which includes at least one of the symptoms identified in the current VASRD (
Currently, diagnostic code 7301 includes a note stating that ratings for adhesions only apply with a history of operative, traumatic, or infectious process and in the presence of at least two of the listed symptoms. This note indicates that VA would evaluate peritoneal adhesions caused by surgery, trauma, or infection. However, diagnostic codes 7310 (Stomach, injury of, residuals) and 7317 (Gallbladder, injury of) provide instructions to rate analogously to diagnostic code 7301 in certain cases. VA proposes to delete the current note to clarify that no adhesions are necessary when evaluating stomach or gallbladder injuries under DC 7301. VA would include in the title of diagnostic code 7301 the language indicating that peritoneal adhesions must be due to surgery, trauma, disease, or infection.
As noted in the discussion regarding current § 4.111, VA proposes to add a DC entitled “Chronic complications of upper gastrointestinal surgery,” which includes the need for parenteral or enteral nutrition and the presence of chronic residual pain, motility issues, and dumping syndrome. Existing codes for these conditions (
VA notes that existing DCs relevant to these conditions provide ratings at 20, 40, and 60 percent. As with other DCs, VA assigns these ratings when the disability level is mild, moderate, or severe, respectively. To better accommodate the various complications that arise with upper gastrointestinal surgery, VA proposes to change and expand the disability levels to 0, 10, 30, 50, and 80 percent. This change would not automatically impact any individuals with current disability ratings under existing DCs. If a Veteran's disability rating would be reduced under the amended version of DC 7303, no change in compensation would occur unless the Veteran applied for a change or reevaluation is otherwise warranted and the Veteran's disability is shown to have improved.
VA proposes to assign a 0-percent rating for asymptomatic, post-operative status to ensure that rating personnel understand when a noncompensable evaluation is appropriate. VA proposes a 10-percent rating when ongoing medical treatment manages either nausea or vomiting. This new category would allow VA to compensate those individuals whose effective treatment may preclude outward symptoms, but who nevertheless experience mild impairment due to the need for the treatment itself.
Current ratings provide a 20-percent rating when the level of disability is mild. With the proposed addition of the 10-percent disability level, VA proposes to eliminate the 20-percent disability level and instead evaluate individuals with 2 or more of the following symptoms as 30-percent disabled: (1) Vomiting two or more times per week or vomiting not controlled by medical treatment; (2) discomfort or pain within an hour of eating and requiring oral ongoing dietary modification; or (3) three to five watery bowel movements per day every day.
VA proposes to assign the next level of disability, 50-percent, when any of the following continued symptoms exist: (1) Daily vomiting not controlled by oral dietary modification or medication; (2) six or more watery bowel movements per day every day or explosive bowel movements that are difficult to predict or control; (3) post-prandial (meal-induced) light-headedness (syncope) with sweating, the need for medications (such as octreotide) specifically to treat complications of upper gastrointestinal surgery, including dumping syndrome or delayed gastric emptying (requiring promotility agents) following esophageal or stomach surgery.
VA proposes an 80-percent evaluation for complete dependence on TPN (
Because of its differing presentation, VA proposes to include Note (1), which instructs rating personnel to evaluate complications following intestinal resection under DC 7328 (Intestine, small, resection, dysfunction or malabsorption). VA also proposes to include Note (2), directing that rating personnel evaluate vitamin/mineral deficiencies associated with pancreatic surgery under the appropriate vitamin/mineral deficiency code if a higher evaluation would result. Finally, to further assist rating personnel in accurately applying DC 7303, VA
At present, VA evaluates ulcers depending on their location under the following DCs: DC 7304 (Gastric); DC 7305 (Duodenal); and DC 7306 (Marginal gastrojejunal). While ulcers may vary in location, they produce the same array of symptoms and do not differ in functional incapacity. Therefore, VA proposes to eliminate DCs 7305 and 7306 and revise DC 7304, retitled “Peptic ulcer disease,” to include all evaluations previously done under current DCs 7304, 7305, 7306.
In 1984, Drs. Barry J. Marshall, and J. Robin Warren reported finding a curved bacillus, initially named
Numerous studies have since shown that the eradication of this bacterium reduces ulcer recurrence and complications such as bleeding and cancer. See E. Lew, “Chapter 15. Peptic Ulcer Disease,” in “Current Diagnosis & Treatment: Gastroenterology, Hepatology, & Endoscopy,” (2d ed. 2012),
Currently, VA evaluates ulcers as “mild,” “moderate,” “moderately severe,” “severe,” and “pronounced.” Although these terms refer to common symptoms such as abdominal pain, vomiting, melena (tarry stools), and weight loss, the criteria remain subjective and vague, which may lead to inconsistent evaluations. For example, under current DC 7305, VA assigns a 40-percent evaluation when the duodenal ulcer is “Moderately severe; less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least 4 or more times a year.” What constitutes “less than severe” symptomatology or an “incapacitating episode” is not defined. To better evaluate peptic ulcers, VA proposes to provide more specific rating criteria which clearly identify the major symptoms associated with PUD and evaluate the level of disability based on the presence of these symptoms, their frequency, and any treatment or outcomes.
VA proposes to assign a 0-percent evaluation for a history of PUD documented by endoscopy or X-ray. VA proposes a 20-percent evaluation for episodes of abdominal pain, nausea, or vomiting lasting for 3 days or more, occurring 3 times or less in the past 12 months, and the symptoms are managed by daily prescribed medication.
Current criteria for a 40-percent evaluation under DC 7305 and 7306 focus on “recurrent incapacitating episodes,” or “intercurrent episodes of pain . . . [and] mild and transient episodes of vomiting or melena.” As noted above, VA intends to reduce or eliminate ambiguity in its rating criteria by replacing vague terms such as “recurrent,” “transient,” and “incapacitating episodes” with clear, objective criteria. Therefore, VA proposes to assign a 40-percent evaluation for episodes of abdominal pain, nausea, or vomiting lasting for 3 days or more, occurring 4 or more times in the past 12 months.
VA intends to assign a 60-percent evaluation for continuous abdominal pain with intermittent vomiting, recurrent hematemesis (vomiting blood) or melena (tarry stools), and manifestations of anemia which require hospitalization at least once in the past 12 months. The requirement for hospitalization is indicative of severe disabling effects of PUD, which is resistant to treatment and more disabling in its outcome than the symptomatology in the 0-, 20-, and 40-percent evaluation levels.
VA proposes to assign a 100-percent evaluation for 3 months after surgical repair of a perforation or hemorrhage (Fitness for Work, K. Palmer, I. Brown, J. Hobson, Oxford U Press 2013, page 438). According to widely accepted occupational health reference and clinical guidelines, the three-month period for recuperation is recommended in cases of surgical repairs for perforated gastric ulcer or hemorrhage. (T. Palmer, I. Brown, and J. Hobson, Fitness for Work, 5th ed. (2013)). After three months, VA would determine the appropriate rating for residuals using a mandatory VA examination, as stated in the note to DC 7304.
While effective treatment of gastritis requires identification of the specific etiology (origin), the specific etiology has little relevance to functional incapacity, as its symptoms are consistent. Akiva J Marcus et al., “Chronic Gastritis,” Medscape (Jun 07, 2019),
The medical community recognizes the symptomatology and functional incapacity associated with chronic gastritis is consistent with PUD. Id. Therefore, VA proposes to remove the existing rating criteria and replace it with a directive to evaluate the condition as a form of PUD under DC 7304.
Postgastrectomy syndromes (DC 7308) are complications of surgery on the stomach. Anatomic and physiological changes introduced by gastric surgery result in changes in the motor functions of the stomach, including disturbances in the gastric reservoir function, the mechanical-digestive function, and the transporting function. See Eagon, J.C., et al. Postgastrectomy syndromes. Surg Clin North Am. 1992 Apr;72(2):445-65.
Currently, DC 7309 (Stomach, stenosis of) directs rating personnel to evaluate it as gastric ulcer, DC 7304. Although this condition is most often a complication of upper gastrointestinal surgery, it less commonly may be a complication of PUD. Jin Hyoung Kim, MD, et al., “Fluoroscopically Guided Balloon Dilation for Benign Anastomotic Stricture in the Upper Gastrointestinal Tract,” 9 Korean J. Radiology 4 (2008). As such, VA proposes to direct rating personnel to evaluate this condition under either DC 7303 (Chronic complications of upper gastrointestinal surgery) or DC 7304 (Peptic ulcer disease).
Currently, DC 7310 directs rating personnel to evaluate injuries to the stomach using the criteria of DC 7301 (Peritoneum, adhesion of). However, certain gastrointestinal procedures can also result in injury to the stomach, as well as such neighboring viscera as the pancreas and intestines. Therefore, VA proposes to amend the existing direction to state that rating personnel should continue to evaluate pre-operative injuries to the stomach using the criteria of DC 7301 (Peritoneum, adhesions of, due to surgery, trauma, disease, or infection), while they should evaluate post-operative injuries under the new DC 7303 (Chronic complications of upper gastrointestinal surgery). VA proposes to further amend the instruction for pre-operative injuries to clarify that no adhesions are necessary when evaluating stomach injuries under DC 7301.
The current DC 7312 is entitled “Cirrhosis of the liver, primary biliary cirrhosis, or cirrhotic phase of sclerosing cholangitis.” As the two latter conditions are forms of cirrhosis, VA proposes to simplify the title of DC 7312 to “Cirrhosis of the liver.” Currently, VA evaluates conditions within the scope of DC 7312 using physical status, functional limitation, laboratory findings, and imaging studies.
Since last modifying this rating criteria, the medical community has increasingly accepted the Model for End-Stage Liver Disease (MELD), a mathematical model developed by the Mayo Clinic to predict survival and outcome in liver disease. P.S. Kamath et al., “Model for End-Stage Liver Disease (MELD),” 45 Hepatology 797 (2007); David Wolf,
The following three values form the MELD score: (1) International normalized ratio (INR) (prothrombin time); (2) serum bilirubin; and (3) serum creatinine. The mathematical equation below uses these values to produce a score between 6 and 40, with 40 indicating a gravely ill person with high risk of mortality.
As the MELD score may not always be available, VA also proposes to include alternative means of determining functional impairment using clinical findings pertaining to physical status, functional incapacity, laboratory findings, and imaging studies.
VA intends to assign a 0-percent evaluation for a history of liver disease without current symptoms. Consistent with the current evaluation under DC 7312, VA would assign a 10-percent evaluation for either a MELD score greater than 6 but less than 10, or evidence of weakness, anorexia, abdominal pain, or malaise.
VA currently assigns a 30-percent evaluation for portal hypertension and splenomegaly, with weakness, anorexia, abdominal pain, malaise, and at least minor weight loss. VA proposes to eliminate the reference to “minor weight loss” and assign a 30-percent evaluation for either a MELD score of 10 or 11, or; portal hypertension (splenomegaly or ascites) with weakness, anorexia, abdominal pain, or malaise, which would fully reflect the severity of the disability.
The current DC 7312 assigns either a 50- or 70-percent evaluation depending on the number of episodes of ascites, hepatic encephalopathy, or hemorrhage from varices or portal gastropathy (erosive gastritis). VA proposes to eliminate the 50- and 70-percent levels of evaluation and assign a 60-percent evaluation for a MELD score greater than 11 but less than 15, or daily fatigue with at least 1 episode in the last year of variceal hemorrhage, portal gastropathy, or hepatic encephalopathy. This proposal would ensure VA rates individuals for chronic symptomatology, as well as episodic flare-ups.
VA proposes a 100-percent evaluation for either a MELD score of at least 15, or constant daily debilitating symptoms and generalized weakness with at least one of the following: Ascites (fluid in the abdomen), a history of spontaneous bacterial peritonitis, encephalopathy, variceal hemorrhage, coagulopathy, portal gastropathy, hepatopulmonary or hepatorenal syndrome.
In addition to the above rating criteria, VA proposes to add three notes. Note 1 would instruct rating personnel to evaluate hepatocellular carcinoma occurring with cirrhosis under DC 7343 (Malignant neoplasms of the digestive system, exclusive of skin growths) rather than cirrhosis. Note 2 would indicate that biochemical studies, imaging studies, or biopsies must confirm liver dysfunction, including hyponatremia, thrombocytopenia, and/or coagulopathy in order to receive an evaluation under DC 7312. Note 3 would instruct rating personnel to
DC 7314 is currently titled “Cholecystitis, chronic,” which is a persistent swelling and irritation of the gallbladder. The gallbladder is a sac adjacent to the liver that stores bile, a substance the liver makes and the intestines use to digest fats. See “Gallstones,” National Digestive Diseases Information Clearing House, NIH Publication No. 13-2897 (November 2017),
Currently, DC 7314 provides 30-, 10-, and 0-percent evaluations. VA assigns a 30-percent evaluation if the condition is severe, with frequent attacks of gallbladder colic. VA assigns a 10-percent evaluation if the condition is moderate, with gallbladder dyspepsia, confirmed by X-ray, and with infrequent attacks (not over 2 or 3 a year) of gallbladder colic, with or without jaundice. VA assigns a 0-percent evaluation if the condition is mild.
VA proposes to eliminate the subjective terms in the existing criteria as a way of reducing inconsistent evaluations, but continue rating these conditions on the frequency of “attacks.” To provide more objectivity to the rating process, VA proposes to specify the number of episodes and associated symptoms required for each level of disability.
VA proposes to assign a 30-percent evaluation for 3 or more clinically documented attacks of right upper quadrant pain with nausea and vomiting in the past 12 months; or when biliary tract strictures require dilatation at least once in the past 12 months. VA would assign a 10-percent evaluation for 1 or 2 clinically documented attacks of right upper quadrant pain with nausea and vomiting in the past 12 months. Under this proposal, VA would assign a 0-percent evaluation when the condition is asymptomatic and there is no history of a clinically documented attack of right upper quadrant pain with nausea and vomiting in the past 12 months.
In addition to the above criteria, VA proposes to note the following non-exhaustive list of conditions to which this DC applies: Cholangitis, biliary strictures, Sphincter of Oddi dysfunction, bile duct injury, and choledochal cyst. This note would also direct evaluating primary sclerosing cholangitis under the renamed DC 7345 (Chronic liver disease without cirrhosis), due to shared symptomatology.
DC 7315, Chronic choleslithiasis, currently directs rating personnel to evaluate this condition under DC 7314 (Cholecystitis, chronic). VA does not propose any changes other than amending the instruction to reflect the retitling of DC 7314.
DC 7316, chronic cholangitis, is one of several related conditions currently evaluated under DC 7314 (Cholecystitis, chronic). VA proposes to track this disability under DC 7314, so it proposes to eliminate DC 7316. This removal would not, in and of itself, alter existing evaluations or grants of service connection. Rather, VA would modify the individual's record to reflect the grant of service connection under DC 7314 instead of DC 7316.
Currently, VA directs rating personnel to rate gallbladder injuries under DC 7301 (Peritoneum, adhesions of). However, that code does not address all likely effects of injuries to the gallbladder. Therefore, VA proposes to evaluate this condition under whichever of the following DCs most effectively demonstrates the level of functional limitation: 7301 (Peritoneal adhesions), or 7314 (Chronic gallbladder and biliary tract disease), or 7318 (Cholecystectomy (gallbladder removal) complications of (such as strictures and biliary leaks)). VA also proposes to correct a typographical error, changing the title from “Gall bladder, injury of,” to “Gallbladder, injury of.”
Further, VA proposes to add a note to DC 7317, clarifying that no adhesions are necessary when evaluating gallbladder injuries under DC 7301.
Currently, DC 7318 is titled, “Gall bladder, removal of.” As with DC 7317, VA is correcting the spelling to “Gallbladder.” However, the current title does not fully express the scope of complications of gallbladder removal. Also, the medical term for gallbladder removal is cholecystectomy. As rating personnel may encounter either term in medical records, VA proposes to retitle this DC as “Cholecystectomy (gallbladder removal), complications of (such as strictures and biliary leaks).”
VA currently assigns a 30-percent evaluation for severe symptoms, a 10-percent evaluation for mild symptoms, and 0-percent evaluation if the condition is asymptomatic. Using subjective terms “severe” and “mild” without indicating specific symptoms may contribute to inconsistent evaluations.
Therefore, VA proposes new criteria that enumerate the complications and symptoms, to include abdominal pain and diarrhea, resulting from the removal of the gallbladder. See Steen W. Jensen, MD, “Postcholecystectomy Syndrome,” Medscape Reference (Jul 24, 2020),
DC 7319 is currently titled “Irritable colon syndrome (spastic colitis, mucous colitis, etc.).” However, the medical community now refers to “irritable colon syndrome” as “irritable bowel syndrome.” Therefore, VA proposes to retitle this code “Irritable Bowel Syndrome (IBS)” to more accurately describe the condition to which it applies.
The current evaluation levels under this DC are 30, 10, and 0-percent. VA assigns a 30-percent evaluation if the condition is severe, “with diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress.” VA assigns a 10-percent evaluation if the condition is moderate, with “frequent episodes of bowel disturbance with abdominal distress.” VA assigns a 0-percent evaluation if the condition is mild, with “disturbances of bowel function with occasional episodes of abdominal distress.”
VA proposes to replace current criteria with more objective criteria derived from the Rome IV criteria for IBS. See Brian Lacy, “Bowel Disorders,” Gastroenterology, 150: 1393-1407 (2016).
Specifically, VA proposes to assign a 10-percent evaluation when an individual has abdominal pain related to defecation at least once during the previous 3 months. In addition, this person must have had two or more of the following: Change in stool frequency, change in stool form, altered stool passage (straining and/or urgency), mucorrhea, abdominal bloating, or subjective distension.
VA proposes to assign a 20 percent evaluation when an individual has abdominal pain for at least 3 days per month during the previous 3 months. Additionally, this individual must have had two or more of the following: Change in stool frequency, change in stool form, altered stool passage (straining and/or urgency), mucorrhea, abdominal bloating, or subjective distension.
VA proposes a 30-percent evaluation when an individual has at least one episode per week of abdominal pain associated with defecation during the previous 3 months. Further, the individual must have exhibited two or more of the following: Change in stool frequency, change in stool form, altered stool passage (straining and/or urgency), mucorrhea, abdominal bloating, or subjective distension.
VA also proposes to add one note to DC 7319 to assist rating personnel in applying these criteria. This note would clarify that this DC pertains to functional digestive disorders (38 CFR 3.317), such as dyspepsia, functional bloating and constipation, and diarrhea. Rating personnel may evaluate other symptoms of functional digestive disorders not found under this code using new DC 7356 (gastrointestinal dysmotility syndrome), following the general principles of §§ 4.14 and 4.114.
All three diagnostic codes refer to conditions that are infectious in nature. There are two main types of dysentery: (1) Bacillary dysentery or shigellosis that is caused by shigella bacteria, and (2) amebic dysentery or amebiasis that is caused by an ameba (single-celled parasite) called Entamoeba histolytica. DC 7324 is currently titled “Distomiasis, intestinal or hepatic” and refers to the early 20th century medical texts that used this now outdated term when referring to an intestinal parasitosis caused by trematodes or flukes (Fasciola hepatica).
VA published a final rule in the
This removal would not, in and of itself, alter existing evaluations or grants of service connection. Rather, VA would modify the individual's record to reflect the grant of service connection under the appropriate diagnostic code.
VA currently evaluates ulcerative colitis (DC 7323) at 100, 60, 30, or 10 percent. VA assigns a 100-percent evaluation if the condition is pronounced, resulting in marked malnutrition, anemia, and general debility, or if there are serious complications, such as liver abscess. A severe condition, consisting of numerous attacks yearly and malnutrition, with health only fair during remissions, warrants a 60-percent evaluation. VA assigns a 30-percent evaluation if the condition is moderately severe, with frequent exacerbations. A moderate condition, with infrequent exacerbations, warrants a 10-percent evaluation.
Ulcerative colitis is one of the primary forms of inflammatory bowel disease. While specific inflammatory bowel diseases merit different treatment, they share many common symptoms and resulting functional impairments. “Ulcerative Colitis,” University of Maryland Medical Center, Inflammatory Bowel Disease Center (Apr. 23, 2013),
Currently, VA evaluates chronic enteritis using the criteria under DC 7319 (Irritable colon syndrome). However, this process may not account for the most likely or most disabling of symptoms. Therefore, VA proposes to direct rating personnel to rate these conditions under either the revised DC 7319 (Irritable bowel syndrome) or DC 7326 (Crohn's disease), whichever is most appropriate.
Currently, DC 7326 is titled “Enterocolitis, chronic.” VA proposes to retitle it, “Crohn's disease or undifferentiated form of inflammatory bowel disease” to account for the array of inflammatory intestinal conditions that have similar symptoms and functional outcomes.
Currently, VA directs rating personnel to evaluate this condition using the criteria provided under DC 7319 (Irritable colon syndrome). However, the medical community has determined that inflammatory bowel conditions are distinct from irritable bowel conditions (see DC 7319) and are characterized by inflammation of unknown etiology that can affect any portion of the gastrointestinal tract from the mouth to the perianal area. See “IBS and IBD: Two Very Different Disorders,” Crohn's & Colitis Foundation of America (Oct. 2019),
Therefore, VA proposes new rating criteria based on the Truelove and Witts criteria for inflammatory bowel disease, to include Crohn's disease and ulcerative colitis (DC 7323). A. Kornbluth and D. Sachar, “The Practice Guidelines for Ulcerative Colitis of the American College of Gastroenterology,” 105 a.m. J. Gastroenterology, 501-23 (2010). These criteria focus on the frequency and severity of the hallmark clinical symptom, bloody diarrhea with rectal urgency. Id. In addition to these criteria, VA proposes to evaluate the severity of the disease based on the number and frequency of exacerbations, as well as the level of treatment used to control the disease.
According to the Truelove and Witts criteria, mild symptomatology involves fewer than four bowel movements per day with infrequent rectal bleeding; severe symptomatology involves six or more bowel movements per day with frequent rectal bleeding. VA therefore proposes to assign a 10-percent evaluation for minimal or mild symptomatic disease that is managed with oral or topical agents (other than immunosuppressants or other biologic agents) and is characterized by recurrent abdominal pain with 3 or less daily episodes of diarrhea and no signs of systemic toxicity.
VA proposes a 30-percent evaluation for mild to moderate disease, with recurrent abdominal pain, with 3 or less episodes of diarrhea per day, minimal signs of toxicity (fever, tachycardia, or anemia), and symptoms managed with topical or oral agents.
VA proposes to assign a 60-percent evaluation for moderate disease with recurrent abdominal pain, 4 to 5 daily episodes of diarrhea, and intermittent signs of toxicity (such as fever, tachycardia, or anemia), and requiring immunosuppressants or other biologic agents on an outpatient basis.
VA proposes a 100-percent evaluation for all cases of severe inflammatory bowel disease that are unresponsive to treatment, require hospitalization at least annually, and result in either an inability to work or are characterized by recurrent abdominal pain associated with at least 2 of the following features: 6 or more episodes per day of diarrhea, 6 or more episodes per day of rectal bleeding, recurrent episodes of rectal incontinence, or recurrent abdominal distention. VA also proposes to include three notes to assist rating personnel in applying DC 7326. The first note would direct that, following colectomy or colostomy with persistent or recurrent residuals, rating personnel should evaluate the condition under DC 7326 or DC 7329 (Intestine, large, resection of), whichever DC provides the highest rating. The second note would state that endoscopy or radiologic studies must confirm the diagnosis of IBD for VA rating purposes to ensure the proper application of this code. William A. Rowe et al., “Inflammatory bowel disease,” Medscape Reference (Apr 10, 2020),
VA acknowledges that, generally, the use of the terms “minimal,” “mild,” “moderate,” and “severe” may lead to inconsistent evaluations due to their subjectivity. However, VA proposes to provide more clarity in the assignment of ratings by defining these terms by the characteristics and criteria listed for each level under DC 7326.
Currently, DC 7327 is titled “Diverticulitis.” VA proposes to retitle it as “Diverticulitis and diverticulosis” to account for other conditions that rating personnel presently evaluate analogously under this code.
In its present form, DC 7327 does not provide specific criteria for diverticulitis but instead directs rating personnel to evaluate it as irritable colon syndrome (DC 7319), peritoneal adhesions (DC 7301), or ulcerative colitis (DC 7323), depending on the predominant disability picture. However, these criteria do not sufficiently capture its functional impairment. Therefore, VA proposes criteria specific to diverticulitis, such as fever, abdominal pain, elevated white cell count, the frequency of disabling episodes, the development of abdominal complications, intestinal bleeding, and hospitalizations. According to the National Institute of Diabetes and Digestive and Kidney Disease, diverticulosis is quite common, especially in the aging population. Survey data suggests while only about 35 percent of U.S. adults age 50 years or younger have diverticulosis, individuals older than age 60 are affected at a higher rate (58 percent). Furthermore, research suggests that less than 5 percent of people with diverticulosis would develop diverticulitis, but most people with diverticulosis will never develop symptoms or problems. See “Diverticular Disease,” National Digestive Diseases Information Clearing House, NIH Publication No. 13-1163 (May 2016),
Specifically, VA proposes assigning a 0-percent evaluation for asymptomatic diverticulitis or diverticulosis; or a symptomatic diverticulitis or diverticulosis that is managed by diet and medication. VA proposes a 20-percent evaluation for diverticular disease requiring hospitalization one or more times per year for abdominal distress, fever, and leukocytosis (elevated white blood cells) without associated hemorrhage, obstruction, abscess, peritonitis, or perforation. VA proposes a 30-percent evaluation for diverticular disease requiring hospitalization for abdominal distress, fever, and leukocytosis one or more times the past 12 months, with at least 1 of the following complications: Hemorrhage, obstruction, abscess, peritonitis, or perforation. VA also proposes to include one note to clarify that rating personnel should evaluate colectomy or colostomy under either this DC or DC 7329 (Intestine, large, resection of), whichever DC results in the highest evaluation.
VA currently evaluates resection of the small intestine as follows: A 60-percent evaluation if the condition shows “marked interference with absorption and nutrition, manifested by severe impairment of health objectively supported by examination findings, including material weight loss;” a 40-percent evaluation if the condition produces “definite interference with absorption and nutrition, manifested by impairment of health objectively supported by examination findings, including definite weight loss;” and a 20-percent evaluation if the condition is “symptomatic, with diarrhea, anemia, and inability to gain weight.”
These criteria contain vague terms, such as “material,” “definite,” and “marked.” Also, the current criteria, based partly on weight loss or the inability to gain weight, are no longer appropriate because the availability of parenteral and supplemental nutrition will ordinarily allow patients to maintain body weight.
Therefore, VA proposes to provide rating criteria that are both more objective and more characteristic of the disabling effects of resection of the small intestine in light of modern medicine. The new criteria would consider the need for oral dietary supplementation or parenteral nutrition and the presence of diarrhea and other symptoms.
Based on the current clinical guidelines and reflective of functional outcomes of small intestine resection described below, VA proposes to assign a 0-percent evaluation for asymptomatic individuals with a history of resection of the small intestine. VA would assign a 20-percent evaluation for an individual who is status post intestinal resection and experiences 4 or more episodes of diarrhea per day. VA proposes a 40-percent evaluation when there is evidence of 4 or more episodes of diarrhea per day resulting in undernutrition and anemia, and the individual requires prescribed oral dietary supplementation and continuous medication. VA proposes a 60-percent evaluation for manifestations of undernutrition and anemia and
Additionally, VA proposes to include an explanatory note stating that this condition includes short bowel syndrome, mesenteric ischemic thrombosis, and post-bariatric surgery complications with instructions to consider a higher rating for short bowel syndrome with high-output syndrome (including high-output stoma) under DC 7329 “Intestine, large, resection of.”
The average length of the adult human small intestine is approximately 600 cm (236.22 in), as calculated from studies performed on cadavers. According to Lennard-Jones and to Weser, the range extends from 260 (102.4 in) to 800 cm (315 in).[1] Any disease, traumatic injury, vascular accident, or other pathology that leaves less than 200 cm (78.7 in) of viable small bowel or results in a loss of 50 percent or more of the small intestine places the patient at risk for developing short-bowel syndrome. Short-bowel syndrome is a disorder clinically defined by malabsorption, diarrhea, steatorrhea (fatty stool), fluid and electrolyte disturbances, and malnutrition. The common etiologic factor in all causes of short-bowel syndrome is the functional or anatomic loss of extensive segments of small intestine so that absorptive capacity is severely compromised. Burt Cagir, M.D., FACS, “Short Bowel Syndrome,” Medscape Reference (May 22, 2019),
VA currently evaluates resection of the large intestine (DC 7329) based on undefined criteria of whether symptoms are “severe” (40 percent), “moderate” (20 percent), or “slight” (10 percent). VA proposes new rating criteria that replace these subjective terms with more objective indicators based on the amount/level of resection, the need for chronic intravenous hydration following surgery, and other surgical outcomes, such as colostomy and ileostomy.
Specifically, VA proposes evaluations at the 10, 20, and 40 percent levels for partial colectomy (resection of only part of the large intestines). VA proposes a 10-percent evaluation for a partial colectomy with reanastomosis (reconnection of the intestinal tube). VA proposes a 20-percent evaluation for a similar level of resection (partial colectomy), but loss of the ileocecal valve, which prevents the flow of bacteria from the large intestine to the small intestine, and with subsequent recurrent diarrhea of more than 3 times per day. See “Short Bowel Syndrome and Crohn's Disease,” Crohn's & Colitis Foundation of America, 3 (March 2018),
VA proposes a 40-percent evaluation for a partial colectomy with permanent colostomy (an opening in the abdominal wall that is made during surgery). Individuals with colostomies must live with small bags attached to their abdomen. These bags collect stool and individuals must empty them. See “Colostomy,” in “A.D.A.M. Medical Encyclopedia,” PubMed Health, U.S. National Library of Medicine (Oct. 05, 2021),
Additionally, VA proposes higher ratings, 60 and 100 percent, for veterans with total colectomies, or complete removal of the large intestines (colon). Total colectomy is a procedure most commonly done to treat many diseases of the colon such as colon cancer, Crohn's disease, ulcerative colitis, or massive abdominal trauma. One of the major functions of the intact large intestine is to absorb water, electrolytes, and vitamins. Following total colectomies, increased amount of fluid may be excreted, resulting in a chronic salt and water depletion, which can result in a number of metabolic changes. Christl SU and Scheppach W., Metabolic consequences of total colectomy. Scand J Gastroenterol Suppl. 1997;222:20-4. (last visited Oct. 06, 2021) In some cases, total colectomy is performed in conjunction with ileostomy surgery (small intestine known as the ileum). Permanent ileostomies are created when the large intestine (colon) is damaged and needs removing. Occasionally, and most frequently seen in cases with ileostomies, individuals may experience “high-output syndrome,” in which the high intestinal output increases the risk of dehydration and fluid-electrolyte abnormalities, and seriously impairs the quality of life. K. McDoniel et al., “Use of clonidine to decrease intestinal fluid losses in patients with high-output short bowel syndrome,” 28 J. of Parenteral Enteral Nutrition 4: 265-68 (July-Aug. 2004).
To adequately compensate veterans with total colectomies, VA proposes a 60-percent evaluation for a total colectomy without high output syndrome. VA proposes a 100-percent evaluation for a total colectomy with formation of ileostomy (permanent opening), high-output syndrome, and more than 2 episodes of dehydration requiring intravenous hydration in the past 12 months.
DC 7330 is currently titled “Intestine, fistula of, persistent, or after attempt at operative closure.” However, this title does not address the full range of intestinal fistulas. Therefore, VA proposes to retitle this code as “Intestinal fistulous disease, external,” and include a note explaining that this code applies to external fistulas that have developed as a consequence of abdominal trauma, surgery, radiation, malignancy, infection, or ischemia. David E. Stein, MD, et al., “Intestinal Fistulas Treatment and Management,” Medscape Reference (Mar 08, 2018),
Currently, the amount and frequency of fecal discharge determines the evaluation under DC 7330. VA assigns a 100-percent evaluation if fecal discharge is “copious and frequent;” a 60-percent evaluation for discharge that is “constant or frequent;” and a 30-percent evaluation for “slight” and “infrequent.” VA evaluates healed fistulas as peritoneal adhesions. As previously noted, terms such as “frequent” and “slight” are too vague to allow for consistent evaluations. Through this update, VA proposes to replace such references with more specific and objective criteria.
Therefore, VA proposes new rating criteria which would account for the
Current DC 7332 applies to impairment of sphincter control of the rectum and anus. VA proposes to include a note to ensure that rating personnel understand that such control may include either the inability to retain or the inability to expel stool at an appropriate time and place.
Currently, VA assigns: A 100-percent evaluation if the loss of sphincter control is complete; a 60-percent evaluation if there is “extensive leakage and fairly frequent involuntary bowel movements;” a 30-percent evaluation for occasional involuntary bowel movements, such that changing a pad is necessary; a 10-percent evaluation for constant slight, or occasional moderate, leakage; and a 0-percent evaluation if the condition is healed or slight, without leakage. These criteria contain numerous indefinite terms, such as “extensive,” “frequent,” “occasional,” and “slight,” which are open to interpretation.
Therefore, VA proposes to use the widely-recognized Cleveland Clinic Incontinence Scale (CCIS), a standardized, evidence-based measure that accounts for difficulties with retention and expulsion of stool. This scale determines the severity of sphincter impairment by assigning a score between 0 (absent) and 4 (daily) in each of the following 5 categories: Incontinence to gas, incontinence to liquid, incontinence to solid, need to change a pad, and lifestyle changes. A.M. Kaiser, “The McGraw-Hill Manual of Colorectal Surgery,” 743 (2009).
VA's proposed rating criteria provide descriptive criteria that track the CCIS and objective means of determining functional impairment, such as a degree of stool incontinence, a need to change a pad, and lifestyle changes.
Specifically, VA proposes a 0-percent evaluation for a history of impairment of sphincter control, but without current symptoms. VA proposes a 10-percent evaluation when a veteran has incontinence or retention that is fully responsive to a physician-prescribed bowel program and requires either medication or special diet. Alternatively, VA may assign a 10-percent evaluation with incontinence to solids and/or liquids at least once every 6 months, and which requires wearing a pad at least once every 6 months.
VA proposes a 30-percent evaluation when a veteran has incontinence or retention that is fully responsive to a physician-prescribed bowel program and requires digital stimulation, medication (beyond laxative use), and special diet. Alternatively, a 30-percent evaluation is proposed with incontinence to solids and/or liquids 2 or more times per month, which requires changing a pad 2 or more times per month.
VA proposes a 60-percent evaluation when an individual has complete or partial loss of sphincter control characterized by incontinence or retention that is partially responsive to a physician-prescribed bowel program, which requires either surgery or digital stimulation, as well as prescribed medication (beyond laxative use) and special diet. Alternatively, VA may assign a 60-percent evaluation for incontinence to solids and/or liquids 2 or more times per week, which requires changing of a pad 2 or more times per week.
VA proposes a 100-percent evaluation when a veteran has complete loss of sphincter control characterized by incontinence or retention that is not responsive to a physician-prescribed bowel program and that requires either surgery or digital stimulation, with medication and diet. Alternatively, VA may assign a 100-percent evaluation for incontinence to solids and/or liquids 2 or more times per day, which requires changing a pad 2 or more times per day.
The current rating criteria for DC 7333, stricture of the rectum and anus, include: “requiring colostomy” for a 100-percent evaluation; “great reduction of lumen, or extensive leakage” for a 50-percent evaluation; and “moderate reduction of lumen, or moderate constant leakage” for a 30-percent evaluation. VA notes that this proposed rulemaking includes a separate DC, DC 7329, which adequately evaluates colostomy and ileostomy. As such, there is no longer a need to include colostomy in the rating criteria for DC 7333. Instead, VA proposes to add a Note (2), directing rating personnel to evaluate an ostomy as DC 7329 (Intestine, large, resection of).
Further, VA proposes to remove from the rating criteria the indefinite terms, such as “great,” “extensive,” and “moderate,” and instead replace them with objective criteria on the extent of reduction of the lumen (or the opening of the anal canal). Brisinda, G., et al., Surgical treatment of anal stenosis, World J Gastroenterol. 2009 Apr 28; 15(16): 1921-1928 (last visited Oct 06, 2021)
VA also advises in Note (1) that rating personnel may use this code to evaluate such conditions as dyssynergic defecation (levator ani) and anismus (functional constipation).
DC 7334, Prolapse of the rectum, currently provides the following evaluations: 50 percent for “severe (or complete), persistent” rectal prolapse; 30 percent for “moderate, persistent or frequently recurring” rectal prolapse; and 10 percent for mild rectal prolapse “with constant slight or occasional moderate leakage.” These criteria, employing such terms as “mild,” “moderate,” “severe,” or “frequently recurring,” are vague and subjective and may lead to inconsistent decisions.
VA proposes to remove the subjective language and apply new rating criteria based on precipitating factors, whether or not prolapse can be reduced, along with whether or not surgical repair can be performed. These elements are easily measured and represent accurate
Specifically, VA proposes a 10-percent evaluation for spontaneously reducible prolapse that is not repairable. VA proposes a 30-percent evaluation for manually reducible prolapse of the rectum that is not repairable and occurs only after bowel movements, exertion, or performing the Valsalva maneuver. VA proposes a 50-percent evaluation for manually reducible prolapse that is not repairable and occurs at times other than bowel movements, exertion, or while performing the Valsalva maneuver. VA proposes to add a 100-percent evaluation for persistent prolapse of the rectum that is irreducible, regardless of whether it is repairable. A note would continue a 100-percent evaluation for 2 months following any repair and provide that VA would then evaluate the residual condition and apply 38 CFR 3.105(e) to any change.
VA also proposes a second note instructing rating personnel to provide a single evaluation under DC 7332 (Rectum and anus, impairment of sphincter control) when sphincter control is the predominant disability.
“Fistula-in-ano” (DC 7335) is also known as “anorectal fistula.” The criteria in this DC also apply to anorectal abscesses. Therefore, VA proposes to add these names to the title to help rating personnel correctly apply the criteria.
Currently, VA evaluates this condition analogously to DC 7332 (Rectum and anus, impairment of sphincter control). VA assigns evaluations of 0, 10, 30, 60, or 100 percent based on loss of sphincter control and involuntary bowel movements. However, the current rating criteria for impairment of sphincter control does not consider the primary disabling effects of fistulas, which are abscesses, pain, and drainage. See J.L. Poggio, “Fistula-in-Ano,” Medscape Reference (Mar. 27, 2020),
VA currently evaluates hemorrhoids (DC 7336) by assigning: A 20-percent evaluation for “persistent bleeding and with secondary anemia, or for fissures;” a 10-percent evaluation for hemorrhoids that are “large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences;” and a 0-percent evaluation if they are “mild or moderate.”
Current medical understanding recognizes there are differences in the expected presentations, exam findings, and treatment approaches between internal hemorrhoids and external hemorrhoids. See Scott C. Thornton,”Hemorrhoids” Medscape Reference Sep. 24, 2019.
VA therefore proposes to assign a 10-percent evaluation for prolapsed internal hemorrhoids with 2 or less episodes per year of thrombosis, or for external hemorrhoids with three or more episodes per year of thrombosis. VA proposes a 20-percent evaluation for either of the following: Internal or external hemorrhoids with persistent bleeding and anemia, or continuously prolapsed internal hemorrhoids with 3 or more episodes per year of thrombosis.
Pruritis ani (DC 7337) is an itching and a compelling need to scratch the area around the anus. Therefore, for clarity, VA proposes to add “anal itching” to the title of this code.
This condition is generally a symptom of another condition, such as a skin disorder or hemorrhoids. Currently, VA directs rating personnel to evaluate pruritis ani under the criteria provided for the underlying condition. However, in many cases, this practice does not account for the actual itching. Therefore, VA proposes to associate specific rating criteria to better evaluate it, in addition to the underlying condition.
Specifically, VA proposes to assign a 0-percent evaluation for anal itching without bleeding or excoriation (tearing of the skin). VA proposes to assign a maximum 10-percent evaluation if the condition is associated with bleeding or excoriation.
Currently DC 7338 is titled as “Hernia, inguinal,” DC 7339 is titled “Hernia, ventral, postoperative,” and DC 7340 is titled “Hernia, femoral.” For the reasons set forth below, VA proposes to combine these three diagnostic codes into one diagnostic code, titled “Hernia, including femoral, inguinal, umbilical, ventral, incisional, and other (but not including hiatal).” These different types of hernia have similar functional impairments that arise from the weakness and/or defects of the abdominal wall and associated pain. Even though the location of the hernia may differ, this functional impairment results in disabilities that can be quantified using similar elements, permitting development of universally applicable evaluation criteria. The elements for the proposed evaluation criteria are both objective and measurable, which in turn ensures greater consistency of adjudication process (inter-rater reliability).
A hernia is defined as a protrusion, bulge, or projection of an organ or a part of an organ through the body wall that normally contains it. There are a lot of different types of hernias to include groin hernias (inguinal and femoral), umbilical, ventral, incisional, hiatal, and other less common types such as epigastric, giant abdominal, and spigelian. See WebMD Medical Reference, Medically Reviewed by Neha Pathak, MD on September 21, 2020, What Are the Types of Hernias? (last visited Oct. 06, 2021)
VA proposes to combine evaluations currently done under DCs 7338, 7339, and 7340 under new retitled DC 7338, “Hernia, including femoral, inguinal, umbilical, ventral, incisional, and other (but not including hiatal).” VA takes into consideration pain or discomfort somewhere on the surface of the abdomen or in the groin area; however, a hernia can also be painless and only appear as a bulge. VA proposes to base its evaluation of disability due to new or recurrent hernia that is present for 12 months or more on: (1) The size of the abdominal wall defect, (2) the ability to surgically repair or reduce hernia (repairable versus irreparable), and (3) the degree of postoperative functional impairment.
VA proposes to evaluate the size of the abdominal wall defect using the concept of “loss of domain” (LOD). LOD expresses the relationship between the size of a hernia and abdominal volume (contents of the abdominal cavity) where herniated contents of the abdominal cavity permanently inhabit the hernia sac. See Parker, S. G., et al., What Exactly is Meant by “Loss of Domain” for Ventral Hernia? Systematic Review of Definitions. World J Surg. 2019; 43(2): 396-404. (last visited Oct. 06, 2021)
VA proposes to evaluate the degree of postoperative functional impairment based on the Carolinas Comfort Scale (CCS). CCS is a validated, disease-specific, quality of life (QOL) questionnaire developed for patients undergoing hernia repair, which takes into consideration an individual's ability to (1) bend over, (2) perform activities of daily living (ADLs), (3) walk, and (4) climb stairs in the presence or absence of postoperative pain. The presence of pain during these activities increases the odds that a patient will not return to work. See B. T. Heniford, “Carolinas Comfort Scale as a Measure of Hernia Repair Quality of Life,” Annals of Surgery, vol 267(1), Pg. 175. January 2018. (last visited Oct. 06, 2021)
VA proposes a 100-percent evaluation for new or recurrent irreparable hernia, which is present for 12 months or more, and with both of the following features and symptoms that are present for 12 months or more: (1) Hernia size equal to 15 cm or greater in one dimension; and (2) pain is present when performing at least three of the following activities: Bending over, ADLs, walking, and climbing stairs. In similar cases where pain is present when performing two of the aforementioned activities, VA proposes a 60-percent disability evaluation.
VA proposes a 30-percent evaluation for new or recurrent irreparable hernia, which is present for 12 months or more, and with both of the following features and symptoms that are present for 12 months or more: (1) Size is equal to 3 cm or greater but less than 15 cm in one dimension; and (2) pain is present when performing at least two of the aformentioned activities. In similar cases where pain is present when performing one of the aforementioned activities, VA proposes a 20-percent disability evaluation.
VA proposes a 10-percent disability evaluation for new or recurrent irreparable hernia, which is present for 12 months or more and with hernia size smaller than 3 cm. VA proposes a 0-percent evaluation for asymptomatic hernia, which is either present and repairable, or was repaired.
VA proposes to add a note to DC 7344 clarifying that the conditions evaluated under DC 7344 “Benign neoplasms, exclusive of skin growths” include lipoma, leiomyoma, colon polyps, and villous adenoma. VA would not substantively change the instruction to evaluate the predominant disability or the specific residuals after treatment under an appropriate DC.
Currently, DC 7345 is titled “Chronic liver disease without cirrhosis (including Hepatitis B, chronic active hepatitis, autoimmune hepatitis, hemochromatosis, drug-induced hepatitis, etc., but excluding bile duct disorders and Hepatitis C).” VA proposes to simplify this title to “Chronic liver disease without cirrhosis,” which would be consistent with current medical terminology.
The current rating criteria for DC 7345 assigns evaluations as follows: A 100-percent evaluation for “near-constant debilitating symptoms (such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain);” a 60-percent evaluation for “daily fatigue, malaise, and anorexia with substantial weight loss (or other indication of undernutrition), and hepatomegaly; or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least 6 weeks during the past 12-month period, but not occurring constantly;” a 40-percent evaluation for “daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least 4 weeks, but less than 6 weeks, during the past 12-month period;” a 20-percent evaluation for “daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly) requiring dietary restriction or continuous medication; or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12-month period;” a 10-percent evaluation for “intermittent fatigue, malaise, and anorexia, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least
Current rating criteria contain numerous references to subjective factors, such as what constitutes an “incapacitating episode” and how long it lasts, which may contribute to inconsistent adjudication decisions. Similarly, the difference between “minor” versus “substantial” weight loss is ambiguous. Therefore, VA proposes to include more objective factors, such as required medication and laboratory evidence of liver damage. VA also intends to reduce the number of disability levels from six (0, 10, 20, 40, 60, and 100) to five (0, 20, 40, 60, and 100) because using more objective evidence-based factors requires clearer distinctions between disability levels. Veterans currently rated under DC 7345 would not see their disability evaluations change solely because of these proposed revisions. Additionally, VA takes into consideration significant advances in the treatment and management of patients with viral hepatitis which occurred during the last decade. Two major classes of antiviral therapeutics have been adopted to treat the infection: Drugs that directly interfere with virus replication (direct antiviral agents) and drugs that modulate antiviral immune response (immunomodulatory drugs). As a result, people experience better outcomes, fewer side effects and shorter treatment times. For example, with the use of new antiviral drugs, hepatitis C has become a curable disease in more that 95 percent of the treated patients. See Roderburg, C. et al., Antiviral Therapy in Patients with Viral Hepatitis and Hepatocellular Carcinoma: Indications and Prognosis. Visc Med. 2016 Apr; 32(2): 121-126. (last visited Oct. 06, 2021)
VA recognizes that occupationally relevant symptoms, such as fever, nausea, muscle aches and soreness, joint pain, and profound fatigue, are common during hepatitis treatment. In some instances, headache, insomnia, weight loss, or difficulties with memory or concentration, can also occur. Bertoletti, A. and Le Bert, N., Immunotherapy for Chronic Hepatitis B Virus Infection, Gut Liver. 2018 Sep; 12(5): 497-507. (last visited Oct. 06, 2021)
VA proposes a 60-percent evaluation for progressive chronic liver disease that requires continuous medication and causes substantial weight loss and at least two of the following symptoms: Daily fatigue, malaise (feeling ill), anorexia (loss of appetite), hepatomegaly (enlarged liver), pruritus (itch), and arthralgia (joint pain). VA proposes a 40-percent evaluation for progressive chronic liver disease that requires continuous medication and causes minor weight loss and at least two of the following symptoms: Daily fatigue, malaise, anorexia, hepatomegaly, pruritus, and arthralgia. VA proposes a 20-percent evaluation for chronic liver disease accompanied by at least one of the following symptoms: Intermittent fatigue, malaise, anorexia, hepatomegaly, or pruritus. VA proposes to assign a 0-percent evaluation for a history of liver disease without current symptoms.
VA proposes to retain existing Note (1) but re-designate it as Note (4). VA recognizes that some individuals may not be able to receive parenteral (infusion) antiviral or immunomodulatory therapy or a second oral antiviral medication, despite physician recommendation, because the use of such medications may be contraindicated in their specific case. Therefore, VA proposes Note (2) that instructs rating personnel to evaluate such cases under DC 7312 “Cirrhosis of the liver.” To further assist VA adjudicators in delivering consistent rating decisions, VA proposes an explanatory Note (3), which provides a list of the disorders to be evaluated underusing this diagnostic code: Hepatitis B, Primary Biliary Cirrhosis (PBC), Primary Sclerosing Cholangitis (PSC), autoimmune liver disease, Wilson's disease, Alpha-1-antitrypsin deficiency, hemochromatosis, drug-induced hepatitis, and non-alcoholic steatohepatitis (NASH). The proposed Note (3) would also contain the information discussed in current Note (3), namely, that serologic testing must confirm Hepatitis B. Additionally, Note (3) would clarify that while VA would evaluate Hepatitis C using the criteria under DC 7345, rating personnel should code it under DC 7354 “Hepatitis C (or non-A, non-B hepatitis)” so VA can track the claims and decisions regarding Hepatitis C in the veterans' population.
Hiatal hernias occur when part of the stomach protrudes upwards through the diaphragm (the muscle across the bottom of the rib cage that helps control breathing). Symptoms are rare, but when present are due to the upward flow of stomach acid, air, or bile. See “Hiatal Hernia,” in “A.D.A.M. Medical Encyclopedia,” PubMed Health, U.S. National Library of Medicine (April 24, 2017),
VA currently assigns evaluations for hiatal hernias as follows: A 60-percent evaluation for symptoms of “pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health;” a 30-percent evaluation for “persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health;” and a 10-percent evaluation for 2 or more of the same symptoms as for the 30 percent evaluation, but of less severity.
However, as discussed above, the medical community now recognizes that impairment of the esophageal sphincter creates the majority of symptoms. See Dakkak, supra. As such, VA proposes to delete the existing rating criteria and instead instruct rating personnel to evaluate this condition under DC 7203 (Esophagus, stricture of).
Currently, DC 7347 is titled “Pancreatitis.” Acute pancreatitis can be a very serious, even life threatening, condition but most individuals can expect complete recovery. Nevertheless, acute pancreatitis can become chronic if
The pancreas is the organ that produces enzymes necessary for digestion. The inflammation from chronic pancreatitis disrupts the production of necessary digestive enzymes, creating pancreatic insufficiency. Etemad, B. and Whitcomb, D.C., Chronic pancreatitis: Diagnosis, classification, and new genetic developments. Gastroenterology 2001: Diagnostics & Therapeutics. Gastroenterology, Volume 120, Issue 3, February 2001, Pages 682-707 (last visited Oct. 06, 2021)
The current criteria for assigning evaluations are as follows: A 100-percent evaluation for frequently recurring disabling attacks of abdominal pain with few pain-free intermissions and with steatorrhea (excess fat in the stools), malabsorption, diarrhea, and severe malnutrition; a 60-percent evaluation for frequent attacks of abdominal pain, loss of normal body weight, and other findings showing continuous pancreatic insufficiency between acute attacks; a 30-percent evaluation for a moderately severe condition, with at least 4-7 typical attacks of abdominal pain per year with good remission between attacks; and a 10-percent evaluation for at least 1 recurring attack of typical severe abdominal pain in the past year.
VA proposes new rating criteria that incorporate medical advances in pain management, digestive enzyme replacement, and assisted nutrition (tube enteral feeding). Additionally, the new rating criteria accounts for complications resulting from pancreatic insufficiency, the number of annual episodes, pain management, and hospitalizations.
VA proposes to remove the current 10-percent disability level, which accounts for a single attack of abdominal pain in the past year, which does not require any treatment or cause any long-term complications. This level of functional impairment would have minimal to no impact on earning capacity. VA proposes a 30-percent disability evaluation for confirmed diagnosis of pancreatitis with at least one episode per year of abdominal or mid-back pain that requires an ongoing outpatient medical treatment for pain, digestive problems, or management of related complications such as cyst or pseudocyst, intestinal obstruction, or ascites. VA proposes a 60-percent evaluation for three or more episodes of abdominal or mid-back pain per year, with at least one episode per year requiring hospitalization for management of complications related to abdominal pain or requiring enteral feeding. VA proposes a 100-percent evaluation for daily episodes of abdominal or mid-back pain requiring 3 or more hospitalizations per year, as well as pain management by a physician, with maldigestion and malabsorption requiring dietary restriction and pancreatic enzyme supplementation.
In addition to the revised rating criteria, VA proposes to make nonsubstantive changes to the existing Note (1) requiring laboratory evidence or clinical studies confirming pancreatitis as the cause of abdominal pain, as many other causes for such pain may exist. VA proposes to delete the current Note (2). A newly proposed code, DC 7357 (Post-pancreatectomy syndrome), eliminates the need to instruct personnel to rate total or partial pancreatectomy a minimum of 30 percent.
VA proposes replacing the current Note (2) with a note instructing personnel to separately rate diabetes due to pancreatic insufficiency under DC 7913 (Diabetes mellitus).
DC 7348, Vagotomy with pyloroplasty or gastroenterostomy, evaluates complications that may occur following certain abdominal surgeries. At one time, physicians commonly used these procedures to treat gastric ulcer disease. See R.A. Hejazi et al., “Postsurgical Gastroparesis,” in “Gastroparesis: Pathophysiology, Presentation, and Treatment,” 194 (Henry P. Parkman and Richard W. McCallum eds. 2012). However, medication now treats the majority of gastric ulcer disease. Today, vagotomy most often follows lung transplant surgery. Id. Therefore, VA proposes to remove the current reference to “recurrent ulcer” in the criteria for a 20-percent evaluation, so it would then read simply “with incomplete vagotomy.” VA would not change the remainder of the criteria.
Rating personnel are likely to continue to encounter veterans who experienced permanent complications after surgeries to treat gastric ulcers. Therefore, VA would retain the existing note on evaluating recurrent gastric ulcer following complete vagotomy. However, to maintain consistency with the overall amendments, the note would refer rating personnel to the revised DC 7304 (Peptic ulcer disease), which VA is proposing to expand to include all ulcer disease, rather than DC 7305 (Ulcer, duodenal), which VA is proposing to discontinue.
The current note under DC 7348 also instructs rating personnel to evaluate dumping syndrome under DC 7308. As explained above in DC 7308, VA believes that the most appropriate criteria for evaluating postgastrectomy syndromes are in the new DC 7303, and proposes to update the current note accordingly.
A liver abscess is an infection of the liver that generally produces symptoms of fever, chills, right upper quadrant pain, loss of appetite, and a general feeling of poor health. Effective treatment generally involves drainage of the abscess followed by antibiotics, although prolonged antibiotic treatment may be used exclusively if the individual is too ill to tolerate the drainage procedure. Ruben Peralta, MD et al., “Liver Abscess,” Medscape Reference (Mar. 27, 2020)
Liver abscess is relevant to veterans because it is associated with travel to developing countries. M.P. Sharma et al., “Amoebic Liver Abscess,” 4 J. of Indian Acad. of Clinical Med., 107 (Apr. 2003). VA proposes a new DC for the three major types of liver abscess, including pyogenic (infectious), amebic (due to Entamoeba hystolytica), and fungal (related to Candida albicans and others). VA proposes a new note under DC 7350 to inform rating personnel of the various types of abscesses considered under the code.
VA proposes to assign a 100-percent evaluation for six months from the onset of this condition (date of initial diagnosis) followed by a mandatory VA examination to determine the appropriate evaluation based on any residuals. VA would apply the provisions of § 3.105(e) to any reduction in evaluation. Furthermore, despite the availability of anti-microbial agents,
VA proposes to maintain the existing criteria for liver transplant (DC 7351), but intends to add a minimum 60-percent evaluation for those awaiting retransplantation. Complications, such as side effects of necessary medications, from an earlier transplant can contribute significantly to functional impairment. Johnny C. Hong, MD, FACS et al., “Predictive Index for Long-Term Survival After Retransplantation of the Liver in Adult Recipients: Analysis of a 26-Year Experience in a Single Center”, 254 Annals of Surgery, 444 (Sept. 2011).
VA also proposes to amend the existing note to direct rating personnel to evaluate the residuals of any recurrence of the underlying liver disease under the appropriate DC, and combine that evaluation with other post-transplant residuals under the appropriate body system(s), subject to the provisions of § 4.14 and 4.114.
VA proposes to add a DC for pancreatic transplant. VA published its existing rating schedule before surgeons first performed the procedure. They now perform it with sufficient frequency to warrant inclusion. Dixon B Kaufman MD, Ph.D., “Pancreas Transplantation”, Medscape Reference (Jul. 12, 2021),
VA proposes to assign a 100-percent evaluation beginning on the day of hospital admission for transplant surgery. In addition, a note would require a VA examination one year following hospital discharge to determine the appropriate evaluation based on residuals, subject to the provisions of § 3.105(e). VA would assign a minimum 30-percent evaluation for residuals of the necessary long-term immunosuppressive medication. This practice conforms to the concept of horizontal equity in other systems, such as a minimum 30 percent for cardiac transplantation. In addition to the reference above by Kaufman, see “Outcomes of Recipients With Pancreatic Transplant Alone Who Develop End-Stage Renal Disease: S.K. Singh; S.J. Kim et. al. Am. Journal of Transplantation 2016: 16(2):535-540.
The current rating criteria for Hepatitis C (or non-A, non-B hepatitis) are identical to that for DC 7345 (Chronic liver disease without cirrhosis). VA does not intend to apply different criteria for Hepatitis C than for other types of hepatitis. For simplicity, VA proposes to delete the existing rating criteria associated with this code and replace it with a statement to evaluate Hepatitis C as DC 7345 (Chronic liver disease without cirrhosis). As noted above, VA would retain the separate DC for Hepatitis C for purposes of tracking information about claims and rating decisions.
Celiac disease, also known as gluten-sensitive enteropathy, is a chronic autoimmune disorder with gastrointestinal and extraintestinal (systemic) manifestations. Individuals with celiac disease cannot tolerate gluten (a protein commonly found in wheat, rye, and barley) and experience symptoms that interfere with the digestion and absorption of food nutrients. Gastrointestinal symptoms include chronic diarrhea, abdominal bloating and pain, vomiting, constipation, flatulence, and pale, foul-smelling, or fatty stool (steatorrhea). The prognosis for patients with correctly diagnosed and treated celiac disease is excellent. However, the prognosis for patients with celiac disease who are not responding to gluten withdrawal and corticosteroid treatment is generally poor. Furthermore, celiac disease with poor response to the treatment has significant and often debilitating maldigestive and malabsorption syndrome that affects multiple organ systems. See “Celiac Disease,” in National Digestive Diseases Information Clearinghouse, National Institute of Diabetes and Digestive and Kidney Diseases, NIH Publication No. 08-4269 (Oct 2020),
In its new rating criteria, VA proposes to account for both systemic (extraintestinal) and digestive manifestations of the disease. VA proposes a 30-percent evaluation for malabsorption syndrome with chronic diarrhea that is managed by medically-prescribed dietary intervention such as a prescribed gluten-free diet, and without nutritional deficiencies. VA proposes a 50-percent evaluation for individuals with malabsorption syndrome that causes chronic diarrhea managed by medically-prescribed dietary intervention, such as a prescribed gluten-free diet, with present nutritional deficiencies due to lactase and pancreatic insufficiency; and with systemic manifestations including but not limited to, weakness and fatigue, dermatitis, lymph node enlargement, hypocalcemia, low vitamin levels, or atrophy of the inner intestinal lining shown on biopsy. VA proposes an 80-percent evaluation for individuals with malabsorption syndrome that causes weakness which interferes with ADLs. Additionally, these individuals exhibit weight loss, which results in wasting and nutritional deficiencies, and systemic manifestations of the disease including, but not limited to, weakness and fatigue, dermatitis, lymph node enlargement, hypocalcemia, low vitamin levels, anemia related to malabsorption, and episodes of abdominal pain and diarrhea due to lactase deficiency or pancreatic insufficiency. In addition to these rating criteria, VA proposes to include a Note (1) directing that appropriate serum antibody testing or endoscopy with biopsy (intestinal) must confirm the diagnosis of celiac disease. For evaluation of celiac disease with the
VA proposes a new code to evaluate and track a group of gastrointestinal conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease. In the American veterans population, these gastrointestinal conditions are often associated with service in the Southwest Asia theater of operations during the Persian Gulf War. Gastrointestinal dysmotility syndrome is a broad term which is used to cover a spectrum of gastrointestinal disorders with abnormal intestinal contractions (spasms or intestinal paralysis). Coordinated movements of the esophagus, stomach, and intestines are required to digest and move intestinal contents along the digestive tract. See Paine. P., et al., Review article: The assessment and management of chronic severe gastrointestinal dysmotility in adults. (last visited Oct. 06, 2021)
VA proposes evaluation of gastrointestinal motility disorders based on the most common presentations, including but not limited to, abdominal pain, bloating, feeling of epigastric fullness, dyspepsia, nausea and vomiting, regurgitation, constipation, diarrhea, episodes of intestinal obstruction and pseudo-obstruction (absence of mechanical obstruction), and poor gastric emptying. Additionally, VA would take into consideration the presence of nutritional compromise (
Specifically, VA proposes a 10-percent evaluation for intermittent abdominal pain with epigastric fullness associated with bloating, and without evidence of a structural gastrointestinal disease. VA proposes a 30-percent evaluation for symptoms of pseudo-obstruction (CIPO) as well as symptoms of intestinal motility disorder such as abdominal pain, bloating, feeling of epigastric fullness, dyspepsia, nausea and vomiting, regurgitation, constipation, and diarrhea, managed by ambulatory care and requiring prescribed dietary management or manipulation. VA proposes a 50-percent evaluation where intermittent tube feeding is required and the individual has recurrent emergency treatment for episodes of intestinal obstruction or regurgitation due to poor gastric emptying, abdominal pain, recurrent nausea, or vomiting. VA proposes an 80-percent evaluation for complete dependence on total parenteral nutrition (TPN) or continuous tube feeding for nutritional support. VA proposes to add a note that this DC is applicable to illnesses associated with 38 CFR 3.317(a)(2)(i)(B)(3) (medically unexplained chronic multisymptom illness involving functional gastrointestinal disorders in Persian Gulf veterans), other than those which can be evaluated under DC 7319.
As noted above, VA proposes to add a DC to § 4.114 to evaluate veterans that have post-pancreatectomy syndromes, which follow therapeutic pancreatectomies either to remove cancers or to treat complications of chronic pancreatitis. The post-pancreatectomy condition resulting from the removal of the pancreas can vary in degrees of severity, but is generally less severe than prior to surgery. See Lewis Rashid and Vic Velanovich, “Symptomatic change and gastrointestinal quality of life after pancreatectomy,” 14(1) HPB 9, 11 (Jan. 2012),
VA proposes to rate this condition based on the highest evaluation under either DC 7347 (Pancreatitis, chronic), DC 7303 (Chronic complications of upper gastrointestinal surgery, including operations performed on the esophagus, stomach, pancreas, and small intestine, including bariatric surgery), or residuals, such as malabsorption (DC 7328), diarrhea (DC 7319 or 7326), diabetes (DC 7913), or chronic pancreatitis pain (DC 7347). Consistent with the current rating schedule, VA would assign a minimum rating of 30 percent if no higher evaluation is warranted under this or other DCs.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is an economically significant regulatory action under Executive Order 12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at
The Secretary hereby certifies that this rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). The certification is based on the fact that small entities or businesses are not affected by revisions to the VASRD. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.
This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
The Catalog of Federal Domestic Assistance program numbers and titles for this rule are 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.109, Veterans Compensation for Service-Connected Disability; and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death.
Disability benefits, Pensions, Veterans.
Denis McDonough, Secretary of Veterans Affairs, approved this document on July 6, 2021, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.
For the reasons set out in the preamble, VA proposes to amend 38 CFR part 4 as set forth below:
38 U.S.C. 1155, unless otherwise noted.
The following terms apply when evaluating conditions in 38 CFR 4.114:
(a)
(b)
(c)
(d)
(1) Total parenteral nutrition or hyperalimentation is a special liquid mixture given into the blood through an intravenous catheter. The mixture contains proteins, carbohydrates (sugars), fats, vitamins, and minerals. Total parenteral nutrition bypasses the normal digestion in the stomach and bowel.
(2) Assisted enteral nutrition requires a special liquid mixture (containing proteins, carbohydrates (sugar), fats, vitamins and minerals) to be delivered into the stomach or bowel through a flexible feeding tube. Percutaneous endoscopic gastrostomy is a type of assisted enteral nutrition in which a flexible feeding tube is inserted through the abdominal wall and into the stomach. Nasogastric or nasoenteral feeding tube is a type of assisted parental nutrition in which a flexible feeding tube is inserted through the nose into the stomach or bowel.
The revisions and additions read as follows:
Do not combine ratings under diagnostic codes 7301 to 7329 inclusive, 7331, 7342, 7345 to 7350 inclusive, 7352, and 7355 to 7357 inclusive, with each other. Instead, assign a single evaluation under the diagnostic code that reflects the predominant disability picture, elevating it to the next higher evaluation as warranted by the severity of the overall disability.
The revisions and additions read as follows:
The revisions and additions read as follows:
The revisions and additions read as follows:
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of proposed rulemaking and request for comment.
The U.S. Department of Energy (DOE) proposes to amend the test procedure for consumer water heaters and residential-duty commercial water heaters to update the procedure to the latest versions of the industry standards that are incorporated by reference and to consider procedures that are included in a draft industry standard, which is not currently incorporated by reference. DOE also proposes to interpret the statutory definition of consumer water heater to cover larger capacity heat pump type units as commercial equipment and proposes several new definitions for water heaters that cannot be appropriately tested with the current DOE test procedure, along with test methods to test these products. DOE is seeking comment from interested parties on the proposals.
Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at
1.
2.
No telefacsimilies (faxes) will be accepted. For detailed instructions on submitting comments and additional information on this process, see section V of this document.
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, and instead, the Department is only accepting electronic submissions at this time. 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. Julia Hegarty, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 597-6737. Email
Ms. Kristin Koernig, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-3593. Email:
For further information on how to submit a comment, review other public comments and the docket, or participate in a public meeting (if one is held), contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
DOE proposes to incorporate by reference the following industry standards into part 430:
American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) Standard 41.1-2020, (ASHRAE 41.1-2020), “Standard Methods for Temperature Measurement,” approved June 30, 2020.
American National Standards Institute (ANSI)/ASHRAE Standard 41.6-2014, (ASHRAE 41.6-2014), “Standard Method for Humidity Measurement,” ANSI approved July 3, 2014.
Copies of ASHRAE 41.1-2020 and ASHRAE 41.6-2014 can be obtained from the American Society of Heating, Refrigerating, and Air-Conditioning Engineers, Inc., 1791 Tullie Circle NE, Atlanta, GA 30329, (800) 527-4723 or (404) 636-8400, or online at:
American Society for Testing and Materials International (ASTM) Standard D2156-09 (Reapproved 2018) (ASTM D2156-09 (RA 2018)), “Standard Test Method for Smoke Density in Flue Gases from Burning Distillate Fuels,” reapproved October 1, 2018.
ASTM Standard E97-1987 (ASTM E97-1987 (W1991)), “Standard Test Methods for Directional Reflectance Factor, 45-Deg 0-Deg, of Opaque Specimens by Broad-Band Filter Reflectometry,” approved January 1987, withdrawn 1991.
Copies of ASTM D2156-09 (RA 2018) and ASTM E97-1987 (W1991) can be obtained from the American Society for Testing and Materials International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 or online at:
See section IV.M of this document for a further discussion of these industry standards.
Consumer water heaters are included in the list of “covered products” for which DOE is authorized to establish and amend energy conservation standards and test procedures. (42 U.S.C. 6292(a)(4)) DOE's energy conservation standards and test procedure for consumer water heaters are currently prescribed at Title 10 of the Code of Federal Regulations (CFR), part 430, section 32(d), and 10 CFR part 430, subpart B, appendix E (appendix E). As discussed in this NOPR, residential-duty commercial water heaters, for which DOE is also authorized to establish and amend energy conservation standards and test procedures (42 U.S.C. 6311(1)(K)), must also be tested according to appendix E. 10 CFR 431.106(b)(1) (
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) the establishment of Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions (42 U.S.C. 6291; 42 U.S.C. 6311), test procedures (42 U.S.C. 6293; 42 U.S.C. 6314), labeling provisions (42 U.S.C. 6294; 42 U.S.C. 6315), energy conservation standards (42 U.S.C. 6295; 42 U.S.C. 6313), and the authority to require information and reports from manufacturers (42 U.S.C. 6296; 42 U.S.C. 6316).
The Federal testing requirements consist of test procedures that manufacturers of covered products and commercial equipment must use as the basis for: (1) Certifying to DOE that their products comply with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6295(s); 42 U.S.C. 6296; 42 U.S.C. 6316(a)-(b)), and (2) making representations about the efficiency of those products (42 U.S.C. 6293(c); 42 U.S.C. 6314(d)). Similarly, DOE must use these test procedures to determine whether the products comply with relevant standards promulgated under EPCA. (42 U.S.C. 6295(s))
Federal energy efficiency requirements for covered products and covered equipment established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c); 42 U.S.C. 6316(a)-(b)) However, DOE may grant waivers of Federal preemption in limited circumstances for particular State laws or regulations, in accordance with the procedures and other provisions of EPCA. (42 U.S.C. 6297(d); 42 U.S.C. 6316(a); 42 U.S.C. 6316(b)(2)(D))
Under 42 U.S.C. 6293, the statute sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. Specifically, EPCA requires that any test procedures prescribed or amended shall be reasonably designed to produce test results which measure energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) Under 42 U.S.C. 6314, the statute sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered equipment, reciting similar requirements at 42 U.S.C. 6314(a)(2).
In addition, the Energy Independence and Security Act of 2007 (EISA 2007) amended EPCA to require that DOE amend its test procedures for all covered consumer products to integrate measures of standby mode and off mode energy consumption. (42 U.S.C. 6295(gg)(2)(A)) Standby mode and off mode energy consumption must be incorporated into the overall energy efficiency, energy consumption, or other energy descriptor for each covered product unless the current test procedures already account for and incorporate standby and off mode energy consumption or such integration
The American Energy Manufacturing Technical Corrections Act (AEMTCA), Public Law 112-210, further amended EPCA to require that DOE establish a uniform efficiency descriptor and accompanying test methods to replace the energy factor (EF) metric for covered consumer water heaters and the thermal efficiency (TE) and standby loss (SL) metrics for commercial water-heating equipment
EPCA also requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered product and covered equipment, including consumer water heaters and commercial water heaters that are the subject of this document, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle (or additionally, period of use for consumer products). (42 U.S.C. 6293(b)(1)(A); 6314(a)(1))
If the Secretary determines, on her own behalf or in response to a petition by any interested person, that a test procedure should be prescribed or amended, the Secretary shall promptly publish in the
As stated previously in this document, DOE's current test procedure for consumer water heaters appears at appendix E.
Pursuant to the requirements of the AEMTCA amendments to EPCA discussed previously, DOE updated the consumer water heater test procedure through a final rule published on July 11, 2014 (July 2014 final rule). 79 FR 40542. The July 2014 final rule: Established a uniform energy descriptor (
As indicated, the uniform energy descriptor and the consumer water heater test procedure apply to “residential-duty commercial water heaters,” which were initially defined in the July 2014 final rule and include commercial water heaters with consumer applications.
In the November 2016 final rule DOE also, in relevant part, revised some of the definitions for consumer water heater product classes and removed others. Definitions for both “electric heat pump water heater” and “gas-fired heat pump water heater” were removed, and revisions were made to the definitions of “electric storage water heater” and “gas-fired storage water heater,” which made each sufficiently broad to cover electric heat pump water heaters and gas-fired heat pump water heaters, respectively. 81 FR 79261, 79320-79321 (Nov. 10, 2016). The November 2016 final rule also amended the definitions of “electric instantaneous water heater”, “gas-fired instantaneous water heater”, “oil-fired instantaneous water heater”, and “oil-fired storage water heater.”
On December 29, 2016, DOE published a final rule (December 2016 final rule) that denominated the efficiency standards for consumer water heaters and residential-duty commercial water heaters in terms of the uniform efficiency descriptor (
Most recently, on April 16, 2020, DOE published in the
In the April 2020 RFI, DOE requested comments, information, and data about a number of issues, including: (1) Differences between the March 2019 ASHRAE Draft 118.2 and the existing DOE test procedure; (2) test tolerances for supply water temperature, ambient temperature, relative humidity, voltage, and gas pressure; (3) the location of the instrumentation that measures water volume or mass; and (4) how to test certain types of consumer water heaters that cannot be easily tested to the existing DOE test procedure (
DOE received comments in response to the April 2020 RFI from the interested parties listed in Table I.1.
A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record.
In this NOPR, DOE proposes to update appendix E, and related sections of the CFR, as follows:
(1) Incorporate by reference current versions of industry standards referenced by the current and proposed DOE test procedures: ASHRAE 41.1, ASHRAE 41.6, the pending update to ASHRAE 118.2 (contingent on it being substantively the same as the current draft under review), ASTM D2156, and ASTM E97.
(2) Add definitions for “circulating water heater”, “low temperature water heater”, and “tabletop water heater”.
(3) Specify how a mixing valve should be installed when the water heater is designed to operate with one.
(4) Modify flow rate requirements during the FHR test for water heaters with a rated storage volume less than 20 gallons.
(5) Modify timing of the first measurement in each draw of the 24-hour simulated-use test.
(6) Clarify the determination of the first recovery period.
(7) Clarify the mass of water to be used to calculate recovery efficiency.
(8) Modify the terminology throughout appendix E to explicitly state “non-flow activated” and “flow-activated” water heater, where appropriate.
(9) Clarify the descriptions of defined measured values for the standby period measurements.
(10) Modify the test condition specifications and tolerances, including electric supply voltage tolerance, ambient temperature, ambient dry bulb temperature, ambient relative humidity, standard temperature and pressure definition, gas supply pressure, and manifold pressure.
(11) Add provisions to address gas-fired water heaters with measured fuel input rates that deviate from the certified input rate.
(12) Clarify provisions for calculating the volume or mass delivered.
(13) Add specifications for testing for the newly defined “low temperature water heaters”.
(14) Clarify testing requirements for the heat pump part of a split-system heat pump water heater.
(15) Define the use of a separate unfired hot water storage tank for testing water heaters designed to operate with a separately sold hot water storage tank.
(16) Clarify that any connection to an external network or control be disconnected during testing.
(17) Add procedures for estimating internal stored water temperature for water heater designs in which the internal tank temperature cannot be directly measured.
(18) Modify the provisions for untested water heater basic models within 10 CFR 429.70(g) to include electric instantaneous water heaters.
DOE's proposed actions are summarized in Table II.1 and compared to the current test procedure; the reason for the proposed change is also listed.
Additionally, DOE proposes to interpret the statutory definition of consumer water heater to exclude certain larger capacity heat pump type units and that such units would be covered as commercial equipment.
DOE has tentatively determined that the proposed amendments described in section III of this NOPR would not significantly affect the measured efficiency of consumer and residential-duty commercial water heaters. Discussion of DOE's proposed actions are addressed in detail in section III of this NOPR.
This document covers those products that meet the definition of consumer “water heater,” as defined in the statute at 42 U.S.C. 6291(27), as codified at 10 CFR 430.2. This document also covers commercial water heating equipment with residential applications,
In the context of covered consumer products, EPCA defines “water heater” as a product which utilizes oil, gas, or electricity to heat potable water for use outside the heater upon demand, including—
(a) Storage type units which heat and store water at a thermostatically controlled temperature, including gas storage water heaters with an input of 75,000 Btu per hour or less, oil storage water heaters with an input of 105,000 Btu per hour or less, and electric storage water heaters with an input of 12 kilowatts or less;
(b) Instantaneous type units which heat water but contain no more than one gallon of water per 4,000 Btu per hour of input, including gas instantaneous water heaters with an input of 200,000 Btu per hour or less, oil instantaneous water heaters with an input of 210,000 Btu per hour or less, and electric instantaneous water heaters with an input of 12 kilowatts or less; and
(c) Heat pump type units, with a maximum current rating of 24 amperes at a voltage no greater than 250 volts, which are products designed to transfer thermal energy from one temperature level to a higher temperature level for the purpose of heating water, including all ancillary equipment such as fans, storage tanks, pumps, or controls necessary for the device to perform its function. (42 U.S.C. 6291(27); 10 CFR 430.2)
In addition, at 10 CFR 430.2, DOE defines several specific categories of consumer water heaters, as follows:
(1) “Electric instantaneous water heater” means a water heater that uses electricity as the energy source, has a nameplate input rating of 12 kW or less, and contains no more than one gallon of water per 4,000 Btu per hour of input.
(2) “Electric storage water heater” means a water heater that uses electricity as the energy source, has a nameplate input rating of 12 kW or less, and contains more than one gallon of water per 4,000 Btu per hour of input.
(3) “Gas-fired instantaneous water heater” means a water heater that uses gas as the main energy source, has a nameplate input rating less than 200,000 Btu/h, and contains no more than one gallon of water per 4,000 Btu per hour of input.
(4) “Gas-fired storage water heater” means a water heater that uses gas as the main energy source, has a nameplate input rating of 75,000 Btu/h or less, and contains more than one gallon of water per 4,000 Btu per hour of input.
(5) “Grid-enabled water heater” means an electric resistance water heater that—
(a) Has a rated storage tank volume of more than 75 gallons;
(b) Is manufactured on or after April 16, 2015;
(c) Is equipped at the point of manufacture with an activation lock and;
(d) Bears a permanent label applied by the manufacturer that—
(i) Is made of material not adversely affected by water;
(ii) Is attached by means of non-water-soluble adhesive; and
(iii) Advises purchasers and end-users of the intended and appropriate use of the product with the following notice printed in 16.5 point Arial Narrow Bold font: “IMPORTANT INFORMATION: This water heater is intended only for use as part of an electric thermal storage or demand response program. It will not provide adequate hot water unless enrolled in such a program and activated by your utility company or another program operator. Confirm the availability of a program in your local area before purchasing or installing this product.”
(6) “Oil-fired instantaneous water heater” means a water heater that uses oil as the main energy source, has a nameplate input rating of 210,000 Btu/h or less, and contains no more than one gallon of water per 4,000 Btu per hour of input.
(7) “Oil-fired storage water heater” means a water heater that uses oil as the main energy source, has a nameplate input rating of 105,000 Btu/h or less, and contains more than one gallon of water per 4,000 Btu per hour of input.
The definition for “grid-enabled water heater” includes the term “activation lock,” which is defined to mean a control mechanism (either by a physical device directly on the water heater or a control system integrated into the water heater) that is locked by default and contains a physical, software, or digital communication that must be activated with an activation key to enable the product to operate at its designed specifications and capabilities and without which the activation of the product will provide not greater than 50 percent of the rated first-hour delivery of hot water certified by the manufacturer. 10 CFR 430.2. As specified in this definition, the control mechanism must be physically incorporated into the water heater or, if a control system, integrated into the water heater to qualify as an activation lock. DOE is aware of certain state programs that encourage water heaters to be equipped with communication ports that allow for demand-response communication between the water heater and the utility.
In the April 2020 RFI, DOE requested comment on the definitions currently applicable to consumer water heaters. 85 FR 21104, 21108 (April 16, 2020). Sections III.A.1.a through III.A.1.e address specific issues either requested by DOE or submitted by commenters.
In the April 2020 RFI, DOE requested feedback on the need for creating a separate definition for “electric heat pump storage water heater,” similar to the definition in the March 2019 ASHRAE Draft 118.2, or whether the current DOE definitions in 10 CFR 430.2 for “electric storage water heater” and “water heater,” which include “heat pump type units,” would adequately cover such products for the purpose of performing the DOE test procedure. 85 FR 21104, 21110 (April 16, 2020). Rheem supported the creation of a separate definition for electric heat pump storage water heaters, specifically to clarify power rating limits and to include different design types. (Rheem, No. 14 at p. 3) Rinnai supported the inclusion of a definition for electric heat pump water heaters but not the creation of a separate product category. (Rinnai, No. 13 at p. 4) EEI stated that DOE should adopt the March 2019 ASHRAE Draft 118.2 definition for electric heat pump storage water heaters. (EEI, No. 8 at p. 3) On the other hand, BWC stated that the definition for “electric heat pump water heater” is adequate at this time. (BWC, No. 12 at p. 2) A.O. Smith stated that the introduction of the electric heat pump water heater definition from the March 2019 ASHRAE Draft 118.2 is unnecessary and will cause confusion due to the difference in scope, and that DOE's definitions for heat pump type units with additional clarification regarding maximum amperage and input power would be sufficient. (A.O. Smith, No. 20 at p. 2) AHRI stated that DOE should carefully review the entire heat pump water heater market, consider how each of the various designs should be characterized, and consider changes to the definitions, as necessary. (AHRI, No. 17 at p. 4) NEEA stated that no change to the definition is needed yet as the “heat pump type units” definition is adequate as written. (NEEA, No. 21 at p. 6) NEEA also requested that DOE clarify the boundary between residential and commercial heat pump water heaters for testing purposes and further stated that residential is implied to include input rates lower than 6 kW,
DOE's consideration of the March 2019 ASHRAE Draft 118.2 “electric heat pump storage water heater” definition, the comments received in response to the April 2020 RFI, and a review of the market, lead DOE to revisit its prior application of the water heater definition in the context of heat pump type water heaters. DOE is re-evaluating these terms with additional consideration of the distinction between heat pump water heater consumer products and commercial products. More specifically, DOE proposes to clarify the application of the “heat pump type” provision in the EPCA definition of “water heater.” DOE proposes that the “heat pump type” provision specifies the criteria to distinguish consumer water heaters that incorporate heat pumps from commercial water heaters that incorporate heat pumps.
As noted, EPCA defines water heater to include “(A) storage type units which heat and store water at a thermostatically controlled temperature, including . . . electric storage water heaters with an input of 12 kilowatts or less; (B) instantaneous type units which heat water but contain no more than one gallon of water per 4,000 Btu per hour of input, including . . . electric instantaneous water heaters with an input of 12 kilowatts or less; and (C) heat pump type units, with a maximum current rating of 24 amperes at a voltage no greater than 250 volts, which are products designed to transfer thermal energy from one temperature level to a higher temperature level for the purpose of heating water, including all ancillary equipment such as fans, storage tanks, pumps, or controls necessary for the device to perform its function.” (42 U.S.C. 6291(27))
“Storage type units” and “instantaneous type units” are not exclusive of “heat pump type units.” Based on the “water heater” definition, an electric heat pump type unit could be covered under the water heater definition's description of storage type units (if it heats and stores water at a thermostatically controlled temperature with an input of 12 kilowatts or less) or instantaneous type unit (if it heats water and contains no more than one gallon of water per 4,000 Btu per hour of input and has an input of 12 kilowatts or less). EPCA is not explicit as to whether heat pump type units are considered a subcategory of storage type units and instantaneous type units.
The November 2016 final rule treated heat pump type units as a subcategory of the other two types of units listed in the definition of water heater. Specifically, DOE stated in the November 2016 final rule that a heat pump water heater with a total rated input of less than 12 kW would be a consumer water heater, as EPCA classifies electric water heaters with less than 12 kW rated electrical input as consumer water heaters. 81 FR 79261, 79301-79302 (Nov. 10, 2016). However, upon a review of EPCA and the water heater market, DOE has tentatively determined that the interpretation presented in the November 2016 final rule is not the best reading of EPCA.
The structure of the statutory definition of “water heater” in the Energy Conservation Program for Consumer Products in Part A of EPCA, lists each type of water heater at equal subparagraph designations. Therefore, when defining “water heater” for the purpose of determining whether a water heater is a consumer water heater, the energy use criteria specified for heat pump type units
This separate consideration of heat pump type units when defining the scope of the consumer water heater definition is further supported by
This tentative interpretation is supported by the current market. DOE reviewed manufacturers' product literature and found no electric heat pump water heaters marketed towards residential use that were designed to operate at greater than 24 A at 250 V.
This proposed interpretation of the “heat pump type” provision would define the scope of “water heater” for the purpose of Part A of EPCA. The interpretation would not be applicable in the context of determining product classes for water heaters. Any such consideration of product classes would be governed by 42 U.S.C. 6295(q). As stated previously, “storage type units” and “instantaneous type units” are not exclusive of “heat pump type units.” The criteria established in the statutory definition of water heater for each of these types of units in the definition of “water heater” excludes units with capacities that would be more appropriately addressed as commercial water heaters.
When considering the unit types included in the water heater definition (
EPCA defines covered equipment as certain types of industrial equipment, including storage water heaters and instantaneous water heaters. (42 U.S.C. 6311(1)(K)) EPCA defines “industrial equipment,” in relevant part, as “any article of equipment [. . .] which is not a “covered product” as defined in 42 U.S.C. 6291(a)(2). (42 U.S.C. 6311(2)(A)) In the context of covered equipment, EPCA defines “storage water heater” as a water heater that heats and stores water within the appliance at a thermostatically controlled temperature for delivery on demand. Such term does not include units with an input rating of 4,000 Btu per hour or more per gallon of stored water. (42 U.S.C. 6311(12)(A)) The term “instantaneous water heater” is defined in the context of covered equipment as a water heater that has an input rating of at least 4,000 Btu per hour per gallon of stored water. (42 U.S.C. 6311(12)(B)) Under these EPCA definitions, a heat pump type water heater that was not defined as a consumer water heater would be either a commercial storage water heater or a commercial instantaneous water heater, depending on the input rating.
DOE has tentatively determined that heat pump water heaters, which operate with a maximum current rating greater than 24 A or at a voltage greater than 250 V, are more appropriately covered as commercial water heaters than consumer water heaters.
As discussed in the November 2016 final rule, electric heat pump water heaters with greater than 24 A at 250 V and a total input rate less than or equal to 12kW would be covered by the energy conservation standards for consumer electric storage water heaters.
In determining the input rate of a water heater with a heat pump component for the purpose of classifying such a water heater as either a consumer water heater or a commercial water heater, DOE would consider the total input rate, including all heat pump components and the resistive elements. As specified in the definition of “water heater” and “commercial heat pump water heater,” determination of the rated electric power input includes all ancillary
DOE reviewed the electric heat pump water heater market and found that several new configurations of heat pump water heaters have either become available or will soon become available on the market. Based its review of the market, DOE has identified these new configurations as electric storage water heaters that are heat pump type units.
In the present market, a consumer heat pump water heater typically consists of an air-source heat pump and a storage tank that are integrated together into one assembly. This “typical” consumer heat pump water heater uses electricity, operates around 240 volts, and has two 4,500-watt backup resistance elements within the storage tank that operate non-simultaneously. The new configurations that DOE identified include split-system heat pump water heaters (which consist of a separate heat pump and storage tank that are sold together), heat pump only models (which are sold without a storage tank but require being paired with one), “retrofit-ready” or “plug-in” heat pump water heaters (which are integrated heat pump and storage tank water heaters that can operate on a shared 120V/15A circuit and plugged into a standard 120 V receptacle (
Split-system heat pump water heaters are currently available and used in residential applications; however, they are relatively uncommon when compared to typical integrated heat pump water heaters. Although split-system heat pump water heaters are more prevalent outside of the United States, they are produced by manufacturers that sell water heaters within the United States. As such, split-system water heaters may become more prevalent in the U.S. market in the future, and the DOE test procedure should adequately test these products. The current DOE test procedure covers split-system heat pump water heaters and the relevant proposed amendments are discussed in section III.C.8.b of this document. DOE has tentatively determined that split-system heat pump water heaters are covered by the current definitions of “electric storage water heater” and “heat pump type units.”
DOE has identified heat pump water heaters models that are sold with only the heat pump (heat pump only water heaters) and must be paired with an external storage tank in the field, with the specific tank characteristics depending on the hot water requirements of the installation (
DOE reviewed the plug-in (or “retro-fit ready”) heat pump water heater market described previously (integrated heat pump and storage tank water heaters that can operate on a 120V/15A circuit and plugged into a standard 120 V receptacle (
DOE has also identified heat pump water heaters that use alternative heat sources (
Significant changes and clarifications to the test setup and test conditions would be required to appropriately represent the various alternative source heat pump water heater components and installation requirements. The current test procedure for consumer water heaters incorporates draw patterns to represent an average period of use for the products subject to the test procedure. Section 5.4.1 of appendix E. Alternative source heat pump water heaters were not considered in the development of the current draw pattern requirements. Based on a current review of the market, these water heaters continue to have a small market share and indications are that they are predominantly used in commercial applications. DOE currently does not have data as to the use of such water heaters as installed. Absent such data, DOE is unable to develop and propose test procedure provisions that would be representative of such water heaters during an average period of use. To the extent there is no test procedure for such covered water heaters, they would not be subject to energy conservation standards. Because of the limited market share and unavailability of usage data, DOE has tentatively determined not to propose test procedures for these products.
Based on the forgoing discussion, DOE has tentatively determined that the current definitions of “heat pump type” and “electric storage water heaters” adequately cover the electric heat pump water heaters on the market that are representative of residential use, including “plug in” and alternative source heat pump water heaters, and that a separate definition for “electric heat pump water heaters” is not needed at this time. However, as discussed previously in this NOPR, DOE is
In the April 2020 RFI, DOE requested feedback on whether a separate definition for “gas-fired heat pump storage water heater,” similar to the definition in the March 2019 ASHRAE Draft 118.2, was needed or whether the current DOE definitions in 10 CFR 430.2 for “gas-fired storage water heater” and “water heater,” which include “heat pump type units,” would adequately cover such products for the purpose of performing the DOE test procedure. 85 FR 21104, 21110 (April 16, 2020). AHRI, A.O. Smith, BWC, EEI, Rheem, Rinnai, and SMTI recommended that DOE add a separate definition for “gas-fired heat pump storage water heater.” (AHRI, No. 17 at p. 4; A.O. Smith, No. 20 at p. 2; BWC, No. 12 at p. 2; EEI, No. 8 at p. 3; Rheem, No. 14 at p. 3; Rinnai, No. 13 at p. 4; SMTI, No. 19 at p. 2) A.O. Smith further stated that the gas-fired storage water heater input capacity limit (less than or equal to 75,000 Btu/h) is not appropriate for defining a gas-fired heat pump storage water heater that is representative of residential applications. (A.O. Smith, No. 20 at p. 2) AHRI stated that a separate definition for “gas-fired heat pump water heater” is appropriate and that DOE had already established a definition for it as part of the July 2014 final rule. (AHRI, No. 17 at p. 4) However, CEC stated there is no need to add a definition for “gas-fired heat pump storage water heater” because the definition currently in 10 CFR 430.2 for “gas-fired storage water heater” and “water heater” includes “heat pump type units,” which adequately covers gas-fired heat pump storage water heaters. (CEC, No. 11 at p. 2) CEC argued that introducing the new definition as suggested under the March 2019 ASHRAE Draft 118.2 would indirectly limit the scope of heat pump water heaters standards by limiting the size of the gas-fired heat pump water heaters to be tested. (
In the July 2014 final rule, DOE defined a “gas-fired heat pump water heater” as “a water heater that uses gas as the main energy source, has a nameplate input rating of 75,000 Btu/h (79 MJ/h) or less, has a maximum current rating of 24 amperes (including all auxiliary equipment such as fans, pumps, controls, and, if on the same circuit, any resistive elements) at an input voltage of no greater than 250 volts, has a rated storage volume not more than 120 gallons (450 liters), and is designed to transfer thermal energy from one temperature level to a higher temperature level to deliver water at a thermostatically controlled temperature less than or equal to 180 °F (82 °C).” 79 FR 40542, 40567 (July 11, 2014). DOE also stated that gas-fired heat pump water heaters are covered by the test procedure established in the July 2014 final rule.
Currently, a water heater that uses gas as the main energy source, has a nameplate input rating of 75,000 Btu/h or less, and contains more than one gallon of water per 4,000 Btu per hour of input is a gas-fired storage water heater. 10 CFR 430.2. If the gas-fired storage water heater also has a heat pump with a maximum current rating of 24 amperes at a voltage no greater than 250 volts, is designed to transfer thermal energy from one temperature level to a higher temperature level for the purpose of heating water, including all ancillary equipment such as fans, storage tanks, pumps, or controls necessary for the device to perform its function, it would be a heat pump type unit. 10 CFR 430.2. This definition of heat pump type unit is not exclusive of gas-fired units.
The input rate of models currently in development for residential application are less than 20,000 Btu/h, which the March 2019 ASHRAE Draft 118.2 defines as the limit for gas-fired heat pump water heaters, and which is well below the 75,000 Btu/h limit in DOE's regulations. Gas-fired heat pump water heaters currently under design will likely have voltage and amperage requirements below the DOE “heat pump type unit” requirements, as electricity is not the main fuel source. Recognizing that the market for heat pump type units that are gas-fired is still developing, limiting coverage to less than 20,000 Btu/h (consistent with March 2019 ASHRAE Draft 118.2) would not accommodate the potential for future products designed for residential applications that may have input rates above 20,000 Btu/h. Therefore, DOE has tentatively determined that the definitions of “heat pump type” and “gas-fired storage water heaters” adequately cover the water heaters that are within the ASHRAE definition of “gas-fired heat pump water heaters,” and a separate DOE regulatory definition is not needed at this time. Further, as DOE stated in the July 2014 final rule, gas-fired heat pump water heaters are covered by the DOE test procedure established in that rule. 79 FR 40542, 40549 (July 11, 2014).
As discussed previously in this document, a gas-fired instantaneous water heater is a water heater that uses gas as the main energy source, has a nameplate input rating less than 200,000 Btu/h, and contains no more than one gallon of water per 4,000 Btu per hour of input. 10 CFR 430.2. In the April 2020 RFI, DOE requested feedback on the typical application of a specific configuration of gas-fired instantaneous water heaters, commonly referred to as “circulating gas-fired instantaneous water heaters.” 85 FR 21104, 21113 (April 16, 2020). As explained in the April 2020 RFI, DOE has found that several manufacturers produce consumer gas-fired instantaneous water heaters that are designed to be used with a volume of stored water (usually in a tank, but sometimes in a recirculating hot water system of sufficient volume, such as a hydronic space heating or designated hot water system) in which the water heater does not provide hot water directly to fixtures, such as a faucet or shower head, but rather replenishes heat lost from the tank or system through hot water draws or standby losses by circulating water to and from the tank or other system.
In response to the April 2020 RFI, AHRI, APGA, Rheem, and Rinnai recommended generally that DOE amend the regulatory definitions of gas-fired instantaneous water heaters to exclude models designed exclusively for commercial use with input rates below the consumer water heater input rate limit
Currently, an enforcement policy
• Meets the statutory definition of an instantaneous type of consumer water heater per 42 U.S.C. 6291(27);
• Does not have an operational scheme in which the burner or heating element initiates and terminates heating based on sensing flow;
• Has a water temperature sensor located at the inlet of the water heater or in a separate storage tank that is the primary operating temperature means of initiating and terminating heating;
• Must be used in combination with a recirculating pump and either a separate storage tank or water circulation loop in order to achieve the water flow and temperature conditions recommended in the manufacturer's installation and operation instructions;
• Is designed to provide outlet hot water at a thermostatically controlled temperature greater than 180 °F; and
• Meets the corresponding energy conservation standards in 10 CFR 431.110.
As provided in the enforcement policy, a water heater must first meet the statutory definition of an instantaneous type of consumer water heater per 42 U.S.C. 6291(27) in order to be a circulating water heater. Inherent to being a water heater per 42 U.S.C. 6291(27), a product must be a “consumer product.” DOE's authority under the Energy Conservation Program for Consumer Products Other Than Automobiles established by EPCA (42 U.S.C. 6291-6309) applies to “consumer products.” (
In relevant part, 42 U.S.C. 6291(1) states that a “consumer product” means any article of a type which, to any significant extent, is distributed in commerce for personal use or consumption by individuals. Through an examination of product literature, DOE has found that circulating water heaters are predominately marketed for commercial applications. However, the input rates of many of the available models are below the maximum input rate of a consumer water heater and can therefore be suitable for residential applications. As such, DOE has tentatively determined that circulating water heaters are covered “consumer products.” Further, circulating water heaters operate similarly to the heat pump only water heaters discussed in section III.A.1.a, which DOE tentatively determined are marketed towards consumers and have residential applications (
DOE proposes to add the definition described below for circulating water heaters to 10 CFR 430.2. The proposed definition also covers heat pump only water heaters which are discussed in section III.A.1.a in this NOPR. Test procedure amendments for circulating water heaters are discussed in section III.C.9 of this document.
DOE proposes to define “circulating water heater” at 10 CFR 430.2 as “an instantaneous or heat pump type water heater that does not have an operational scheme in which the burner, heating element, or compressor initiates and terminates heating based on sensing flow; has a water temperature sensor located at the inlet of the water heater or in a separate storage tank that is the primary means of initiating and terminating heating; and must be used in combination with a recirculating pump and either a separate storage tank or water circulation loop in order to achieve the water flow and temperature conditions recommended in the manufacturer's installation and operation instructions.”
With regard to the other gas-fired instantaneous water heaters referenced by commenters, DOE has also examined the market for gas-fired instantaneous water heaters with an emphasis on product lines with input rates both above and below the consumer and commercial input rate threshold of 200,000 Btu/h. The models with an input rate at or below the 200,000 Btu/h threshold could be used in consumer applications, are nearly indistinguishable from water heaters marketed and used in consumer applications, and are completely self-contained; that is, no other components would be required for these products to operate within a residence. As such, DOE has tentatively determined that these models continue to be considered “consumer products” and are subject to the test procedures and energy conservation standards for consumer gas-fired instantaneous water heaters.
DOE has also examined gas-fired water heaters with input rates of 200,000 Btu/h or less, containing less than one gallon of water per 4,000 Btu/h of input, and with rated storage volumes greater than 2 gallons. In the July 2014 final rule, storage volume requirements were removed from the definition of a “gas-fired instantaneous water heater.” 79 FR 40542, 40567 (July 11, 2014). In the December 2016 final
On January 17, 2001, DOE published a final rule (January 2001 final rule) that established definitions and created a separate product class for tabletop water heaters. 66 FR 4474. A “tabletop water heater,” was defined in the January 2001 final rule as a water heater in a rectangular box enclosure designed to slide into a kitchen countertop space with typical dimensions of 36 inches high, 25 inches deep, and 24 inches wide.
In the April 2020 RFI, DOE requested feedback on whether the previous definition for “tabletop water heater” is still appropriate, and whether such products should continue to be considered separately from other classes of consumer water heaters. 85 FR 21104, 21108 (April 16, 2020). AHRI, A.O. Smith, BWC, Rheem, and Rinnai commented that the definition for “tabletop water heater” is still appropriate and should remain as a separate product class. (AHRI, No. 17 at p. 3; A.O. Smith, No. 20 at p. 2; BWC, No. 12 at p. 2; Rheem, No. 14 at p. 2; Rinnai, No. 13 at p. 2) EEI suggested that the definition include a rated capacity of at least 20 gallons and exclude the phrases “rectangular box” and “designed to slide into a kitchen countertop space” to make the definition broader. (EEI, No. 8 at p. 3) Keltech stated that point-of-use (POU) units may benefit from being classified as a “tabletop water heater” and that a category should be created for POU water heaters that can be installed under a countertop. (Keltech, No. 7 at p. 1)
In the January 2001 final rule, DOE separated tabletop water heaters from the electric storage water heater product class “due to strict size limitations for these products.” 66 FR 4474, 4478 (Jan. 17, 2001). Tabletop water heaters are a unique type of water heater that are designed to fit into a countertop and provide a working surface in the installed location; as such, they are inherently size-constrained. DOE has tentatively determined that excluding the phrases “rectangular box” and “designed to slide into a kitchen countertop space” would make the tabletop water heater definition broader but would also remove the distinction of the key features that distinguish tabletop water heaters from electric storage water heaters (
A POU water heater is, in general terms, a water heater that is located where the hot water is needed (
For the reasons discussed previously, DOE proposes to add the “tabletop water heater” definition that was removed from appendix E in the July 2014 final rule to 10 CFR 430.2.
In the April 2020 RFI, DOE requested comment on the definition for “residential-duty commercial water heater,” which defines a category of commercial water heaters that are subject to the consumer water heater test procedure. 85 FR 21104, 21108 (April 16, 2020). AHRI, A.O. Smith, Rheem, and Rinnai supported the current definition of “residential-duty commercial water heater” and had no recommended changes. (AHRI, No. 17 at p. 3; A.O. Smith, No. 20 at p. 2; Rinnai, No. 13 at p. 3; Rheem, No. 14 at p. 2) Keltech recommended adding the intended market for the water heater as another criteria for determining whether a water heater is a residential-duty commercial water heater and stated that if a water heater is not intended for sale in a consumer setting, it should not be held to consumer requirements. (Keltech, No. 7 at p. 1) DOE acknowledges that some water heaters, which are intended for commercial use, are covered by the residential-duty commercial water heater definition and tested and rated to the consumer water heater test procedure and residential-duty commercial water heater energy conservation standards. These water heaters have characteristics that are similar to water heaters with residential applications and, as such, under 42 U.S.C. 6295(e)(5)(F), cannot be excluded from being tested and rated using the consumer water heaters test procedure and residential-duty commercial water heater energy conservation standards. Further, DOE has tentatively determined that whether a product is marketed as commercial or residential may not always be indicative of the intended installation location. For example, water heaters intended for residential use are sometimes marketed as “commercial-grade” as a means to convey
The current DOE test procedure in appendix E references the following industry standards:
• ASHRAE 41.1-1986 (Reaffirmed 2006), Standard Method for Temperature Measurement (ASHRAE 41.1-1986 (RA 2006)); and
• ASTM D2156-09, (ASTM D2156-09), Standard Test Method for Smoke Density in Flue Gases from Burning Distillate Fuels.
ASHRAE 41.1-1986 (RA 2006) was superseded by ASHRAE 41.1-2013 on January 30, 2013 (ASHRAE 41.1-2013). ASHRAE 41.1-2013 was superseded by ASHRAE 41.1-2020 on June 30, 2020. Updates to ASHRAE 41.1 are discussed in section III.B.1.
ASTM D2156-09 was reapproved without modification in 2018 (ASTM D2156-09 (RA 2018)). Therefore, DOE proposes to update the reference of ASTM D2156-09 to the most recent industry standard (
ASHRAE maintains a published water heater test procedure titled, “ANSI/ASHRAE Standard 118.2-2006 (RA 2015), Method of Testing for Rating Residential Water Heaters” (ANSI/ASHRAE 118.2-2006 (RA 2015)). The ANSI/ASHRAE 118.2-2006 (RA 2015) test procedure is similar to the DOE test procedure that was in effect prior to the July 2014 final rule, although neither the former nor the current DOE consumer water heater test procedure reference ANSI/ASHRAE Standard 118.2-2006 (RA 2015). In March 2019, ASHRAE published the March 2019 ASHRAE Draft 118.2, the second public review draft of Board of Standards Review (BSR) ANSI/ASHRAE Standard 118.2-2006R, “Method of Testing for Rating Residential Water Heaters and Residential-Duty Commercial Water Heaters,” which DOE referenced in the April 2020 RFI. 85 FR 21104, 21109-21111 (April 16, 2020). In April 2021, ASHRAE published substantive changes to a previous public review draft
As discussed previously in this document, DOE will adopt industry test standards as DOE test procedures for covered products and equipment, unless such methodology would be unduly burdensome to conduct or would not produce test results that reflect the energy efficiency, energy use, water use (as specified in EPCA) or estimated operating costs of that equipment during a representative average use cycle. 10 CFR part 430, subpart C, appendix A, Section 8(c). While DOE would only consider adopting through incorporation by reference (IBR) a finalized version of ASHRAE 118.2, DOE is interested in receiving comments on the merits of the draft in anticipation of such a possibility, or to consider incorporating aspects of the draft into a revised DOE test procedure. The differences between the March 2019 ASHRAE Draft 118.2, the April 2021 ASHRAE Draft 118.2, and the DOE test procedure are discussed in section III.B.2 of this NOPR.
As stated previously, ASHRAE 41.1-1986 (RA 2006) was superseded by ASHRAE 41.1-2013 and ASHRAE 41.1-2013 was superseded by ASHRAE 41.1-2020. ASHRAE 41.1-2013 removed the aspirated wet bulb psychrometer descriptions and stated they would be included in the next revision to ASHRAE 41.6, “Standard Method for Humidity Measurement.” ASHRAE 41.6 was updated on July 3, 2014 and included the aspirated wet bulb psychrometer descriptions that were removed in ASHRAE 41.1-2013. ASHRAE 41.1-2013 also added uncertainty analysis for temperature measurements, information for thermistor-type devices, descriptions for thermopiles, and reorganized the standard to be consistent with other ASHRAE standards. ASHRAE 41.1-2020 added conditional steady-state test criteria and further updated the standard to meet ASHRAE's mandatory language requirements.
Section 3.2.1 of appendix E requires that temperature measurements be made in accordance with ASHRAE 41.1-1986 (RA 2006), and section 3.2.2 of appendix E provides accuracy and precision requirements for air dry bulb, air wet bulb, inlet and outlet water, and storage tank temperatures. Sections 5.2.2.1 and 5.3.2 of appendix E effectively require steady-state operation in which the flow-activated water heater is operating at the maximum input rate, is supplied with water at a temperature of 58 °F ±2 °F, and delivers water at a temperature of 125 °F ±5 °F.
DOE reviewed ASHRAE 41.1-1986 (RA 2006), ASHRAE 41.1-2013, and ASHRAE 41.1-2020 and found that the sections most relevant to appendix E are the temperature measurement sections (
Section 2 of the March 2019 ASHRAE Draft 118.2 defines the scope of products covered by the industry test standard more narrowly than the definitions for consumer water heaters and relevant commercial water heater definitions contained in EPCA. For example, section 2 of the March 2019 ASHRAE Draft 118.2 limits the storage volume for storage-type water heaters to 120 gallons or less and limits the maximum delivery temperature to 180 °F (82 °C), whereas EPCA does not define limits on storage volume or maximum delivery temperature (42 U.S.C. 6291(27); 42 U.S.C. 6311(12)(A)-(B).
In the April 2020 RFI, DOE requested comment on whether the March 2019 ASHRAE Draft 118.2 test method could be applied to water heaters beyond the scope defined in the March 2019 ASHRAE Draft 118.2 to cover all water heaters included within the scope of DOE's definitions for consumer water heaters and residential-duty commercial water heaters. 85 FR 21104, 21110 (April 16, 2020). And if modifications to the March 2019 ASHRAE Draft 118.2 would be required, DOE requested comment on what those modifications should be.
The April 2021 ASHRAE Draft 118.2 did not propose changes to the scope; therefore, section 2 of the April 2021 ASHRAE Draft 118.2 is the same as the March 2019 ASHRAE Draft 118.2. DOE has tentatively reached a similar conclusion as the commenters that the March 2019 ASHRAE Draft 118.2 and April 2021 ASHRAE Draft 118.2 could be applied to water heaters that are outside of the scope found in section 2 of the March 2019 ASHRAE Draft 118.2 and within the scope of DOE's current consumer water heater test procedure. As noted previously in this section, the March 2019 ASHRAE Draft 118.2 scope limits the maximum rated storage capacity at 120 gallons and the maximum delivery temperature at 180 °F; whereas the scope prescribed by EPCA and the relevant implementing regulations does not include these limits. Further, DOE has found through testing that models with rated storage volumes above 120 gallons or that can deliver water above 180 °F can be tested to DOE's consumer water heater test procedure. Given the similarities between the current DOE test procedure and the March 2019 ASHRAE Draft 118.2 and April 2021 ASHRAE Draft 118.2, such models could also be tested using the ASHRAE test standard. Therefore, DOE has tentatively determined that the test procedure presented in the March 2019 ASHRAE Draft 118.2 and the April 2021 ASHRAE Draft 118.2 could be used to test water heaters outside of the scope presented in section 2 of the March 2019 ASHRAE Draft 118.2.
Section 6 of the March 2019 ASHRAE Draft 118.2 includes new figures that provide greater detail illustrating how to set up a water heater for test. For example, a by-pass (purge) loop is added to the inlet water line in Figures 1 through 8. Additional figures include: A test set-up for a storage water heater with a side inlet water line and top outlet water line; a test set-up for an instantaneous water heater with connections on the top; the placement of a thermal break in the inlet water line (the thermal break is added to the test set-up to prevent heat from traveling up the inlet piping into the by-pass loop section, as discussed in the next subsection); and two configurations for the thermocouple tree if it needs to be installed through the outlet water line.
In the April 2020 RFI, DOE requested feedback on whether the figures in appendix E should be updated to include additional detail, including the detail provided in the figures in the March 2019 ASHRAE Draft 118.2. 85 FR 21104, 21110 (April 16, 2020). If thought to be necessary, DOE asked that commenters address whether the additional specificity provided in the figures could be too restrictive for the purpose of the DOE test procedure, or whether such specificity would be justified by improving reproducibility of test results.
Upon further comparison of the figures within the March 2019 ASHRAE Draft 118.2 and appendix E, DOE found that the location in which the inlet temperature is measured in figures 2A, 2B, and 3 of the March 2019 ASHRAE Draft 118.2 is different than in the corresponding figures 2 and 3 within appendix E. In the March 2019 ASHRAE Draft 118.2, the inlet temperature is measured on the upstream side of the heat trap formed by the U-bend in the required piping, while in appendix E the inlet temperature measurement location is on the downstream side of the U-bend. All figures in the March 2019 ASHRAE Draft 118.2 have the inlet temperature location on the upstream side of the U-bend, while the figures in appendix E vary depending on the type of water heater being tested. Maintaining the same inlet temperature location for all water heater types would simplify the test setup as compared to the current requirements of appendix E. Further, given the short pipe distance between the upstream and downstream side of the U-bend (on the order of a few inches), it is unlikely that changing the location from the downstream side to the upstream side would result in a measurable difference in temperature.
Section 6 of the March 2019 ASHRAE Draft 118.2 includes new figures that provide greater detail illustrating how to set up a water heater for test. These additional figures include the installation location of a thermal break in the inlet water line. Figure 9 of the March 2019 ASHRAE Draft 118.2 shows the thermal break installed in greater detail than the other figures and provides more detail on the material properties of the thermal break. The thermal break is added to the test set-up to prevent heat from traveling up the inlet piping into the by-pass loop section. When purging before a draw, any heat that is transferred from the water heater through the inlet piping to the by-pass loop section would be lost, as the by-pass loop is replenished with cold supply water. The thermal break helps to prevent this heat loss.
In the April 2020 RFI, DOE requested feedback on whether a definition of “thermal break”
In the April 2020 RFI, DOE requested feedback on the necessity of a thermal break if no by-pass or purge loop is included in the test set-up. 85 FR 21104, 21110 (April 16, 2020). AHRI, A.O. Smith, and Rinnai stated that a thermal break should be included in the test set-up regardless of whether there is a by-pass or purge loop. (AHRI, No. 17 at p. 5; A.O. Smith, No. 20 at p. 3; Rinnai, No. 13 at p. 5) CSA, NEEA, and Rheem stated that a thermal break is not needed if no by-pass or purge loop is present. (CSA, No. 10 at p. 4; NEEA, No. 21 at p. 6; Rheem, No. 14 at p. 4)
Thermal breaks are not typically installed in the field. Therefore, installation of a thermal break is not representative of an actual installation configuration. The purpose of a thermal break is to minimize unrepresentative effects of other parts of the test setup. A by-pass loop is a method test labs use to ensure inlet water temperatures are within the bounds of the test procedure (
In the April 2020 RFI, DOE requested feedback on whether the maximum temperature the thermal break must be able to withstand would appropriately be set at 150 °F, as is set in the March 2019 ASHRAE Draft 118.2. 85 FR 21104, 21110 (April 16, 2020). AHRI, A.O. Smith, BWC, CSA, Rheem, and Rinnai commented that a temperature of at least 150 °F is an appropriate temperature for a thermal break to be able to withstand. (AHRI, No. 17 at p. 5; A.O. Smith, No. 20 at p. 3; BWC, No. 12 at p. 2; CSA, No. 10 at pp. 3-4; Rheem, No. 14 at p. 4; Rinnai, No. 13 at p. 5-6) AHRI and BWC further commented that a thermal break should be made of plastic or another material that is not thermally conductive. (AHRI, No. 17 at p. 5; BWC, No. 12 at p. 2) Keltech stated that thermal breaks should be able to withstand a maximum temperature of at least 200 °F, stating that 150 °F might pose a problem for water heaters capable of producing more than 125 °F. (Keltech, No. 7 at p. 1)
The thermal break is installed on the inlet water line, upstream of the thermocouple measuring the inlet water temperature. DOE examined its test data and found that, when water was not being drawn off, the maximum temperature measured by the thermocouple measuring the inlet water temperature never exceeded 100 °F. Therefore, a thermal break that is installed upstream of the thermocouple measuring the inlet water temperature would not experience water temperatures exceeding 100 °F. However, as stated previously, DOE is not proposing to require the use of a thermal break and, as such, does not need to propose the maximum temperature the thermal break must be able to withstand.
The April 2021 ASHRAE Draft 118.2 indicates that the flow rate for water heaters with rated storage volumes less than 20 gallons would be 1.5 ±0.25 gpm (5.7 ±0.95 L/min). DOE has identified consumer water heaters with storage volumes less than 20 gallons and with input rates near or at the maximum input rate specified at 10 CFR 430.2 (
In the April 2020 RFI, DOE requested feedback on the consumer water heater test procedure with respect to testing the delivery capacity of non-flow activated water heaters with low volume and high input rate. 85 FR 21104, 21114 (April 16, 2020). If amendments were thought to be warranted, DOE requested comment on what method(s) would be appropriate for determining the delivery capacity of such models and what attributes can be used to distinguish these water heaters from non-flow activated water heaters more appropriately tested by the FHR test.
DOE tested three electric storage water heaters with rated storage volumes below 20 gallons to the current DOE FHR test (
As shown in Table III.1, changing the flow rate from 1.0 gpm to 1.5 gpm resulted in an average change in FHR between −2.2 percent and +4.7 percent. As the FHR rating did not increase above 10 gallons (
Based on the testing of the three models, changing the flow rate during the FHR test for water heaters with a rated storage volume less than 20 gallons from 1.0 ±0.25 gpm (3.8 ±0.95L/min) to 1.5 ±0.25 gpm (5.7 ±0.95 L/min) would have a relatively minimal impact on the FHR for water heaters with low input rates, and the resultant FHR and associated draw pattern for the 24-hour simulated-use test would still be representative of the expected use in the field. However, for water heaters with high input rates the change in flow rate could significantly increase the FHR and result in some models being tested and rated for UEF using a higher draw pattern, which would provide ratings that are more representative of their actual use. For these reasons, DOE is proposing to change the flow rate during the FHR test for water heaters with a rated storage volume less than 20 gallons from 1.0 ±0.25 gpm (3.8 ±0.95L/min) to 1.5 ±0.25 gpm (5.7 ±0.95 L/min). This proposed change is also consistent with the April 2021 ASHRAE Draft 118.2, and, in development of the final rule, DOE will consider the flow rate as finalized in the update to ASHRAE 118.2.
The April 2021 ASHRAE Draft 118.2 includes additional criteria defining the start of the FHR test, as compared to DOE's test procedure. Section 5.3.3.3 of appendix E of the current DOE test procedure states that prior to the start of the FHR test, if the water heater is not operating (
The March 2019 ASHRAE Draft 118.2 specified two criteria for terminating the water draw prior to the start of the FHR test: A 15 °F drop in outlet temperature from the maximum outlet temperature observed and a cut-in. The draft requirement for a cut-in was replaced with the draw time limit in the April 2021 ASHRAE Draft 118.2.
In the April 2020 RFI, DOE requested feedback on whether the addition of an outlet temperature drop criterion for terminating the water draw prior to the start of the FHR test within the March 2019 ASHRAE Draft 118.2 is appropriate and/or necessary. 85 FR 21104, 21109 (April 16, 2020). If an outlet temperature drop criterion is appropriate, DOE requested comment and data on whether 15 °F is sufficiently representative, given consumer expectation, or whether a different threshold should be considered.
The combination of the 15 °F drop in outlet water temperature and the draw time limit criteria to the start of the FHR test would provide a more repeatable pre-FHR draw, as the criteria to end the draw would be explicitly stated (in contrast to the current test procedure, which allows for any length of pre-FHR test draw, as long as a cut-in occurs before the end of the draw). Because the pre-FHR test draw would be more repeatable, the available energy content of the tank at the start of the FHR test would be more consistent among different test runs. In both the current DOE test procedure and the procedure in the April 2021 ASHRAE Draft 118.2, the FHR test is initiated after a cut-out from the recovery that occurs due to the pre-FHR test draw. Therefore, in both cases, the water heater can be considered “fully heated” and to have similar internal energy content, although differences may be present due to the internal water temperature gradient throughout the tank. However, it is unclear how these differences in internal tank temperature will affect the test results. Absent information as to the impact of the differences in internal tank temperature on the test results, DOE is not proposing to amend appendix E to include the pre-FHR test conditioning proposed in the April 2021 ASHRAE Draft 118.2.
Additionally, in the April 2020 RFI, DOE raised concerns over high input rate water heaters that can heat water quicker than it is being drawn off. 85 FR 21104, 21113-21114 (April 16, 2020). The solution
DOE agrees in principle with NEEA that the Max GPM test may provide a representative value of delivery capacity and could be used to determine the appropriate draw pattern of a water heater with a sufficiently high input rate and low storage volume, despite not being flow-activated. However, it is unclear at this time how these types of non-flow activated water heaters could be separated from other non-flow activated water heaters that are appropriately tested with the FHR test and would be inappropriately tested with the Max GPM test.
Section 7.3.3.3 of the March 2019 ASHRAE Draft 118.2 and section 7.3.3.4 of the April 2021 ASHRAE Draft 118.2 include additional criteria regarding water draws during the FHR test, as compared to the current DOE test procedure. The FHR test required in section 5.3.3 of appendix E specifies a series of water draws over the course of one hour. After each water draw is initiated, the draw is terminated when the outlet water temperature decreases 15 °F from the maximum outlet water temperature measured during the draw. For example, if after initiating a water draw, the outlet water temperature reaches a maximum temperature of 125 °F, the water draw would continue until the outlet water temperature drops to 110 °F, at which time the water draw would be terminated. Section 7.3.3.4 of the April 2021 ASHRAE Draft 118.2 specifies that water draws during the FHR test terminate if either: (1) The outlet water temperature decreases 15 °F from the maximum outlet water temperature measured during the draw, or (2) the outlet water temperature decreases to 105 °F, regardless of the maximum outlet water temperature measured during the draw. Setting a minimum temperature threshold of 105 °F would reflect that in practice because consumers would likely stop drawing water when it gets below 105 °F, as the water would no longer be considered “hot.”
In the April 2020 RFI, DOE requested feedback on whether the addition of a minimum outlet temperature as a criterion for terminating draws during the FHR test is appropriate and/or necessary. 85 FR 21104, 21109 (April 16, 2020). If a minimum outlet temperature criterion is appropriate, DOE requested comment and data on whether 105 °F would be sufficiently representative given consumer expectation, or whether a different threshold should be considered.
Based on a review of existing test data, the 105 °F outlet temperature criteria would affect only a small number of tests, if any. The test currently requires that the draw be terminated after a 15 °F drop in outlet temperature, and the outlet temperature is required to be between 120 °F and 130 °F when setting the thermostat. Therefore, the outlet temperature is unlikely to be below 105 °F during the test, as most draws should terminate before that point. The maximum outlet temperature of the draw would have to be below 120 °F for the 105 °F criteria to be triggered. As a result, DOE understands CSA's comment that all draws will be terminated at 105 °F, if tested to ASHRAE Draft 118.2, to be incorrect. Section 7.3.3.4 of the April 2021 ASHRAE Draft 118.2 includes a statement that requires the draw be terminated at 105 °F or when the outlet temperature is 15 °F below the maximum outlet temperature measured during the draw, “whichever is higher.” Therefore, if the maximum outlet temperature of a draw was 125 °F, for example, then the draw would end after a 15 °F drop, or once the outlet water temperature is 110 °F, which is higher than 105 °F. Also, Rheem's suggestion of a 100 °F limit to address handwashing water heaters would not be appropriate for water heaters generally and would be more appropriately addressed as part of development of a method to appropriately test such water heaters (
Section 5.3.3.3 of appendix E includes a provision for the FHR test requiring that if the final draw is not initiated prior to one hour from the start of the test, then a final draw is imposed at the elapsed time of one hour. In this situation, calculations presented in section 6.1 of appendix E are used to determine the volume drawn during the final draw for purposes of calculating FHR. The volume of the final draw is scaled based on the temperature of the water delivered during the final draw as compared to the temperature of the water delivered during the previous draw. The calculated final draw volume is added to the total volume drawn during the prior draws to determine the FHR. The April 2021 ASHRAE Draft 118.2 does not include a final draw volume scaling calculation for the case in which a draw is not in progress at one hour from the start of the test and a final draw is imposed at the elapsed time of one hour. Instead, the April 2021 ASHRAE Draft 118.2 method calculates FHR as the sum of the volume of hot water delivered without any scaling of the final draw.
The methodology for conducting the FHR test, and in particular the issue of whether to scale the final draw, was considered by DOE in a final rule that was published on May 11, 1998 (May 1998 final rule). In the May 1998 final rule, DOE determined that scaling the final draw volume based on the outlet water temperature was appropriate and was included to adjust the volume of the last draw to account for the lower heat content of the last draw compared to the earlier draws with fully heated water. 63 FR 25996, 26004-26005 (May 11, 1998).
In the April 2020 RFI, DOE requested comment on whether the scaling of final draw volume should be maintained as part of the FHR calculation, in the case that a draw is not initiated prior to one hour from the start of the test but is imposed at that time before the water has been heated to the specified temperature to initiate the draw. 85 FR 21104, 21111 (April 16, 2020). DOE further requested feedback on the effect that removing the scaling of the final draw volume would have on the rated FHR, draw pattern, and rated UEF values of the various types of non-flow activated water heaters that are tested to the FHR test.
The scaling of the final draw accounts for the possible lower heat content of the last draw as compared to earlier draws. The test procedure specifies a constant flow rate throughout testing. The flow rate is fixed, and, as water is drawn, the water temperature decreases. In practice, water used by the consumer is typically at a lower temperature than is delivered by the water heater (
Further, removing the scaling of the final draw volume would result in many FHR values having to be recertified as many models have the final draw imposed at the one-hour mark (only those models that initiated their final draw prior to 1 hour would not be affected). Because the change is to the calculation of FHR only, retesting would not be needed unless the resulting FHR value required a new 24-hour simulated-use test due to a change in the applicable draw pattern bin (
Removing or amending the scaling of the final draw volume would change the FHR value, which could change the required draw pattern to use for the simulated-use test, as defined in section 5.4.1 of appendix E. The current draw pattern thresholds were determined based on the current final draw scaling methodology, and are therefore representative of actual use only when used with FHR values based on the current final draw scaling methodology. Removing or amending the scaling of the final draw volume could require adjusting the draw pattern thresholds to ensure that the applicable draw patterns (based on FHR value thresholds) remain representative of actual use.
The FHR metric is a method to compare the amount of usable water that a water heater can produce in a given amount of time. As long as the metric is applied consistently throughout the market, the consumer can use it to make comparisons among different models. Removing the scaling of the final draw volume may increase test burden on some manufacturers while resulting in a less representative test, and could require an update to the draw pattern thresholds. As described, changes to the draw pattern threshold could result in water heaters being classified in a lower draw pattern than they are currently, and it is uncertain as to the extent the reclassification would result in a test procedure that is representative for such models. Therefore, DOE has tentatively determined not to remove or amend the scaling of the final draw volume.
In response to the April 2020 RFI, SMTI stated that, if the scaling of the final draw volume was maintained, the equation should be amended to use the inlet water temperature as opposed to the minimum outlet temperature of the previous draw. According to SMTI, this change would make the overall calculation more representative of the energy availability in the final draw. (SMTI, No. 19 at p. 3-4) However, while basing the scaling calculation on inlet water temperature as opposed to outlet water temperature would be more representative of the energy availability in the tank, it would not be more representative of the energy availability in the final draw. The energy that is useful to the consumer is based on the energy of water delivered at a temperature at or above the consumer's desired temperature. The consumer's desired temperature is approximated in the FHR test by the minimum delivery temperature of the draw and not the inlet water temperature. Therefore, DOE has tentatively determined that scaling the final draw volume based on the inlet water temperature would result in a less representative test and a metric that could mislead the consumer as to how much hot water they actually have available. Further, the change suggested by SMTI to base the scaling of the final draw volume on inlet water temperature would result in a FHR value that is higher than under the current DOE test procedure, but to a lesser degree than if the temperature scaling were removed. As stated, DOE has tentatively determined that amending scaling of the final draw volume to use the inlet water temperature as opposed to the minimum outlet water temperature would result in a less representative test and, therefore, DOE is not proposing this change.
Similar to the initiation criteria discussed in section III.B.2.c for the FHR test, section 7.4.2 of the April 2021 ASHRAE Draft 118.2 includes criteria for a pre-24-hour simulated-use test draw, which ends after either the outlet temperature drops by 15 °F or the draw time limit is reached. Section 5.4.2 of appendix E currently requires that the water heater sit idle for 1 hour prior to the start of the 24-hour simulated-use test; during which time no water is drawn from the unit and no energy is input to the main heating elements, heat pump compressor, and/or burners. Appendix E provides no instruction on how to condition the tank prior to this one hour. However, as discussed in section III.B.2.c, it is unclear how the outlet temperature drop criteria and the draw time limit will affect the internal tank temperature at the start of the 24-hour simulated-use test and how this difference in internal tank temperatures will affect the test results. Therefore, DOE is not proposing to amend appendix E to include the preconditioning proposed in the April 2021 ASHRAE Draft 118.2. DOE welcomes data that provide information regarding the impact of the preconditioning provisions in the April 2021 ASHRAE Draft 118.2 on the UEF result.
Section 8.3.2 of the March 2019 ASHRAE Draft 118.2 includes language specifying that, when the first recovery of the 24-hour simulated-use test ends during a draw, the first recovery period extends until the end of that draw. The first recovery period is used in section 8.3.2 of the March 2019 ASHRAE Draft 118.2 and section 6.3.2 of appendix E to calculate recovery efficiency. DOE's test procedure does not explicitly address how to calculate recovery efficiency if the first recovery period ends during a draw. A recovery period is defined in section 1 of appendix E as “the time when the main burner of a storage water heater is raising the temperature of the stored water.” Each of the parameters in the recovery efficiency equation are recorded from the “beginning of the test to the end of the first recovery period following the first draw.” The DOE test procedure does not explicitly state whether values are recorded at the end of the recovery period that ends after the initiation of the first draw, or at the end of a recovery period that occurs after the end of the first draw.
In the April 2020 RFI, DOE requested feedback on whether additional specification should be added to appendix E addressing the first recovery period ending during a draw. 85 FR 21104, 21111 (April 16, 2020). DOE further requested that if extending the first recovery period to the end of the draw is thought to be appropriate, whether the test procedure should also address the situation where a second recovery is initiated prior to the ending of the draw.
The situation in which a recovery ends during a draw likely occurs during draws with a low enough flow rate that the water heater can heat water more quickly than the draw is removing. The energy used for the recovery efficiency calculation includes energy used to heat water and auxiliary energy; therefore, the energy associated with the first recovery period should represent the entire draw to capture all energy use. Commenters generally agreed that the maximum mean tank temperature measured after the recovery should be right after cut-out (
On January 31, 2020, DOE published a Notice of Decision and Order
In the April 2020 RFI, DOE requested feedback on whether the equation for recovery efficiency for water heaters with a rated storage volume greater than or equal to 2 gallons (7.6 L) should be updated to address when the recovery period lasts for more than one draw. 85 FR 21104, 21111 (April 16, 2020). CSA, EEI, NEEA, Rheem, and Rinnai recommended that DOE update the recovery efficiency calculation to account for the period extending beyond one draw to increase clarity. (CSA, No. 10 at p. 5; EEI, No. 8 at p. 4; NEEA, No. 21 at p. 6; Rheem, No. 14 at p. 6; Rinnai, No. 13 at p. 7) This change was presented in the March 2019 ASHRAE Draft 118.2 and is in the Notice of Decision and Order. 85 FR 5648, 5652 (Jan. 31, 2020). Consistent with the published Notice of Decision and Order and as supported by commenters, DOE proposes to update the recovery efficiency equation to specify accounting for the mass of water drawn for all draws initiated during the recovery period. As such, DOE is proposing to amend appendix E consistent with the alternate test procedure in the Decision and Order.
Appendix E includes a standby
In the April 2020 RFI, DOE requested feedback on whether it should consider the addition of a minimum standby period length of 6 hours for use in the standby loss calculations, and on the appropriateness of recording this data after the final draw cluster when less than 6 hours of standby time occur between the first and second draw clusters. 85 FR 21104, 21110 (April 16, 2020). BWC stated that DOE should adopt a minimum standby period length of 6 hours for use in the standby loss calculation. (BWC, No. 12 at p. 3) NEEA stated that DOE should reduce the standby period to 4 hours, as it believed the increased burden to require a 6-hour standby period would be unwarranted. (NEEA, No. 21 at p. 4) AHRI and Rheem stated they do not support the addition of a minimum standby period length of 6 hours because it would extend the total test period time to over 24 hours. (AHRI, No. 17 at p. 6; Rheem, No. 14 at p. 4) A.O. Smith stated that adding 6 hours to the test would be significant and recommended that DOE investigate whether the addition is truly necessary, or if a less burdensome method could achieve the same goal. (A.O. Smith, No. 20 at p. 3) CSA referenced its test data, which included units with a standby period ranging from 5 minutes to over 7 hours, to demonstrate that standby time has very little effect on the overall UEF value. (CSA, No. 10 at p. 4)
The standby heat loss coefficient (
In the April 2020 RFI, DOE requested feedback on whether it should consider an alternate procedure, like that in section 7.4.2.2 of the March 2019 ASHRAE Draft 118.2 (and section 7.4.3.2 of the April 2021 ASHRAE Draft 118.2), for the last hour of the 24-hour simulated-use test. 85 FR 21104, 21111 (April 16, 2020). DOE further requested feedback on whether the addition of standby loss in the total energy use calculation adequately represents the auxiliary energy use that is not measured between the minute prior to the start of the recovery occurring between hours 23 and 24, and hour 24 of the 24-hour simulated-use test.
CSA requested that DOE revisit the procedure for the last hour of the 24-hour simulated-use test. CSA raised a number of questions with how the test procedure in section 5.4.2,
Although not stated explicitly in section 5.4.2 of appendix E, in the case that the standby period is between the first and second draw clusters, power to the main burner, heating element, or compressor is disabled during the last hour of the 24-hour simulated-use test. In the case that the standby period is after the last draw of the 24-hour simulated-use test, power to the main burner, heating element, or compressor is not disabled.
Section 5.4.2 of appendix E states that during the last hour of the 24-hour simulated-use test, power to the main burner, heating element, or compressor shall be disabled; at 24 hours, record the reading given by the gas meter, oil meter, and/or the electrical energy meter as appropriate; and determine the fossil fuel and/or electrical energy consumed during the entire 24-hour simulated-use test and designate the quantity as Q.
Section 5.4.2 of appendix E also provides that in the case that the standby period is after the last draw of the 24-hour simulated-use test, an8-hour standby period is required, and this period may extend past hour 24. The procedures for the standby period after the last draw of the 24-hour simulated-use test allow for a recovery to occur at the end of the 8-hour standby period, which indicates that the power to the main burner, heating element, or compressor is not disabled. DOE's procedure as described may result in some confusion. Further, the method of determining the total energy use during the 24-hour simulated-use test, Q, and total test time are not explicitly stated for when a standby period occurs after the last draw of the 24-hour simulated-use test. As discussed in the following paragraphs, DOE is proposing to amend the procedures for the last hour of the 24-hour simulated-use test to explain how to end the test for both standby period scenarios.
CSA and NEEA stated that DOE should adopt the March 2019 ASHRAE Draft 118.2 approach. (CSA, No. 10 at p. 4; NEEA, No. 21 at p. 6)
In the March 2019 ASHRAE Draft 118.2 and April 2021 ASHRAE Draft 118.2, power is not disabled when the standby period occurs after the last draw of the test. But, if a recovery occurs between an elapsed time of 23 hours following the start of the test (hour 23) and 24 hours following the start of the test (hour 24), the following alternate approach is applied to determine the energy consumed during the 24-hour simulated-use test: The time, total energy used, and mean tank temperature are recorded at 1 minute prior to the start of the recovery occurring between hour 23 and hour 24, along with the average ambient temperature from 1 minute prior to the start of the recovery occurring between hour 23 and hour 24 to hour 24 of the 24-hour simulated-use test. These values are used to determine the total energy used by the water heater during the 24-hour simulated-use test. This alternate calculation combines the total energy used 1 minute prior to the start of the recovery occurring between hours 23 and 24 and the standby loss experienced by the tank during the time between the minute prior to the recovery start and hour 24. This provision in section 7.4.2.2 of the March 2019 ASHRAE Draft 118.2 and section 7.4.3.2 of the April 2021 ASHRAE Draft 118.2 does not require the water heater to be de-energized during the standby period. Disabling power to the water heater is typically a manual operation that requires the presence of a technician. In cases where the technician does not disable power at the correct time, a retest of the 24-hour simulated-use test may be necessary. To the extent this draft provision would eliminate the need to ensure that a unit is switched off for the last hour of the 24-hour simulated-use test, it could reduce test burden.
In response to the April 2020 RFI, CSA further stated that not including the pilot energy does not adequately represent auxiliary energy usage for water heaters with continuously burning pilot lights. (CSA, No. 10 at p. 5) DOE notes that in the last hour of the 24-hour simulated-use test, the power to the main burner is disabled. In practice, cutting off the gas flow to the main burner disables the pilot light as well. However, disabling power to the main burner could also be accomplished by reducing the thermostat setting to the minimum setting available, which would result in the water heater under test not initiating a recovery during the last hour and gas continuing to be supplied to the pilot light. Reducing the thermostat setting would be a manual operation performed by a technician, not an automated action, which increases the chances of an invalid test. CSA also stated that water heaters without standing pilots will have minimal energy consumption in the last hour compared to the overall energy consumption, and that the total energy use calculation adequately represents the auxiliary energy use for these water heaters.
At this time, DOE has not been provided with the additional information from AHRI or A.O. Smith regarding the procedure for the last hour of the 24-hour simulated-use test, and agrees with Rheem that further evaluation of the alternate procedure presented in the March 2019 ASHRAE Draft 118.2 and April 2021 ASHRAE Draft 118.2 should be conducted before a determination is made. As stated previously, the procedure for the last hour of the 24-hour simulated-use test may benefit from further, more explicit instruction, and DOE proposes to explicitly state how to end the test depending on whether the standby period is between draw clusters 1 and 2 or after the last draw of the test.
In response to the April 2020 RFI, EEI suggested DOE consider a definition and test procedure for consumer water heaters used in commercial settings. EEI suggested that the test procedure would
DOE has tentatively determined not to add a draw pattern with a delivered volume greater than the high draw pattern in appendix E, which would represent consumer water heaters installed in commercial applications. Under 42 U.S.C. 6293(b)(3), in relevant part, any test procedures prescribed or amended shall be reasonably designed to produce test results which measure energy efficiency of a covered product during a representative average use cycle or period of use. Consumer water heaters are designed for use in residential applications and, as such, a draw pattern representative of a commercial installation would not be representative of the product's average use cycle or period of use.
In sections 5.3.3.1 and 5.3.3.2 of appendix E, which describe general requirements and draw initiation criteria, respectively, for the FHR test, the term “storage-type water heaters” is used. However, the FHR test applies to all water heaters that are not flow-activated, which includes non-flow activated instantaneous water heaters. In the April 2020 RFI, DOE requested feedback on whether to update the phrase “storage-type water heaters” in section 5.3.3 to “non-flow activated water heaters.” 85 FR 21104, 21112 (April 16, 2020). AHRI, Keltech, Rheem, and Rinnai stated that there is no need to change the phrase “storage-type water heaters” in section 5.3.3. (AHRI, No. 17 at p. 9; Keltech, No. 7 at p. 1; Rheem, No. 14 at p. 7; Rinnai, No. 13 at p. 9) AHRI stated that if instantaneous water heaters are properly classified, this issue would be resolved (AHRI, No. 17 at p. 9).
DOE submitted a comment to the March 2019 ASHRAE Draft 118.2 that suggested changing the language within sections 7.3.3.1 and 7.3.3.2 from “storage-type” to “non-flow activated.” This proposed change was accepted by the ASHRAE 118.2 committee and is present in section 7.3.3.1 of the April 2021 ASHRAE Draft 118.2. Section 7.3.3.2 was not included in the April 2021 ASHRAE Draft 118.2. In an effort to align terminology with that recognized by industry in proceedings subsequent to the April 2020 RFI, DOE proposes to change the phrase “storage-type” to “non-flow activated” within sections 5.3.3.1 and 5.3.3.2 of appendix E and further proposes to change “storage-type” and “instantaneous-type” to “non-flow activated” and “flow-activated,” respectively, throughout appendix E. This change would be a clarification only and would not change the current application of sections 5.3.3.1 and 5.3.3.2 of appendix E.
In section 6.3.3 of appendix E, titled “Hourly Standby Losses,” the descriptions for cumulative energy consumption (Q
In the April 2020 RFI, DOE requested feedback on whether it should revise the descriptions of Q
Within appendix E, the standby loss period could occur at multiple points in the test, depending on the operation of the water heater under test, but, as described previously, the descriptions of these variables (Q
Section 2.3 of appendix E specifies maintaining the supply water temperature at 58 °F ±2 °F (14.4 °C ±1.1 °C). During the 24-hour simulated-use test, maintaining the supply water temperature within this range can be difficult at the immediate start of a draw due to the short time between draw initiation and the first measurement at 5 seconds (with subsequent measurements every 3 seconds thereafter), as required by sections 5.4.2 and 5.4.3 of appendix E. In some test configurations, particularly during the lower flow rate water draws, the inlet water and piping may retain heat from a previous draw, causing the water entering the unit during the initial measurements to be slightly outside of tolerance. Any supply water temperature reading outside of the test tolerances would invalidate a test. However, due to the small percentage of total water use that would be affected, supply water temperatures that are slightly out of tolerance for the first one or two data points would have a negligible effect on the overall test result.
In the April 2020 RFI, DOE requested feedback on whether one or two supply water temperature data points outside of the test tolerance at the beginning of a draw would have a measurable effect on the results of the test. 85 FR 21104, 21111 (April 16, 2020). DOE further requested feedback on whether it should consider relaxing the requirement for supply water temperature tolerances at the start of a draw, and if so, which methods are most appropriate for doing so while maintaining accuracy and repeatability.
As explained previously, DOE agrees with commenters that one or two supply water temperature measurements outside of tolerance at the start of the draw will likely have no measurable effect on test results. These outside of tolerance measurements typically occur during draws with lower flow rates, where the inlet water line (which has been heated slightly due to heat transferring from the water heater) is not cleared by the first data measurement. DOE notes that during its own testing, multiple retests were sometimes needed before a valid test was performed. To alleviate this issue, DOE proposes to increase the time between initiating the draw and first measurement from 5 seconds to 15 seconds in sections 5.4.2 and 5.4.3 of appendix E, as recommended by the commenters. This proposed change may reduce test burden by reducing the occurrence of a test being invalidated (which would require re-testing) due to the first one or two water temperature readings exceeding the defined temperature tolerance. Further, this proposed change would eliminate the need to amend the supply water temperature tolerances, which, outside of the time period at the start of a draw, are relatively easy to maintain.
Section 2.2 of appendix E specifies maintaining the ambient air temperature between 65.0 °F and 70.0 °F (18.3 °C and 21.1 °C) on a continuous basis for all types of consumer water heaters (and residential-duty commercial water heaters) other than heat pump water heaters. For heat pump water heaters, the dry bulb (ambient air) temperature must be maintained between 67.5 °F ±1 °F (19.7 °C ±0.6 °C), and the relative humidity must be maintained at 50% ±2% throughout the test. Appendix E does not specify a relative humidity tolerance for non-heat pump water heaters. For all water heaters, section 2.7.1 of appendix E specifies maintaining the electrical supply voltage within ±1% of the center of the voltage range specified by the manufacturer. Similar to the supply water temperature discussed previously, a brief measurement of air temperature, relative humidity, or electrical supply voltage that is only minimally outside of the test tolerance would invalidate a test, but likely would have a negligible effect on the results of the test, as the total time out of tolerance would be insignificant compared to the total time of the test. In the April 2020 RFI, DOE requested feedback on whether the tolerances for ambient air temperature, relative humidity, and electrical supply voltage are difficult to maintain at the start of a draw, and if so, whether DOE should consider relaxing these requirements at the start of a draw and to what extent. 85 FR 21104, 21112 (April 16, 2020).
AHRI recommended that the tolerances for the electric supply voltage be made less stringent and noted that the current electric supply voltage requirements require specialized equipment that is very costly and has little effect on the UEF results. (AHRI, No. 17 at p. 8) CSA, NEEA, Rheem, and Rinnai proposed increasing the electrical supply voltage tolerance to ±2 percent of the rated voltage, while BWC proposed a tolerance of ±5% of the rated voltage. (CSA, No. 10 at p. 6; NEEA, No. 21 at p. 3; Rheem, No. 14 at p. 6; Rinnai, No. 13 at p. 8; BWC, No. 12 at p. 4) CSA further stated that the electric supply voltage tolerance should apply only when the main heat source is on, as there are spikes in voltage when heating is turned on/off. (CSA, No. 10 at p. 6) Keltech stated that it might be difficult to maintain ±1 percent voltage tolerance, as there might be considerable voltage sag
DOE agrees with commenters that maintaining the electric supply voltage within ±1 percent of the rated voltage is difficult and requires expensive equipment, and that maintaining this narrow tolerance range is likely not necessary to achieve repeatable and reproducible test results. DOE further agrees with CSA and Keltech that short spikes in the measured voltage that occur around the start and end of a recovery, when heating components are turning on or off, have little to no effect on UEF, but can invalidate a test. Therefore, to reduce the potential need to re-run tests and thereby potentially reduce test burden, DOE proposes to increase the electrical supply voltage tolerance from ±1 percent on a continuous basis to ±2 percent on a continuous basis and to add clarification that this tolerance is only applicable beginning 5 seconds after the start of a recovery to 5 seconds before the end of a recovery (
SMTI stated that for heat pump water heaters the average dry bulb temperature during recoveries should be 67.5 °F ±1 °F, with all data points being 67.5 °F ±5 °F, and that the average dry bulb temperature during standby period should be 67.5 °F ±2.5 °F, with all data points being 67.5 °F ±5 °F. (SMTI, No. 19 at p. 4) Rheem recommended a dry bulb temperature tolerance between 65.0 °F and 70.0 °F for heat pump water heaters. (Rheem, No. 14 at p. 6) Rinnai stated that the average ambient air temperature for non-heat pump water heaters should be 67.5 °F ±2.5 °F, and that a single data point outside of the range should not invalidate a test. (Rinnai, No. 13 at p. 8) A.O. Smith stated that relaxing ambient air tolerance for the first 15 minutes during the test will not have a measurable effect on the overall test results and that DOE should investigate whether relaxing this tolerance for the entirety of the test still provides results that are repeatable and representative of an average use cycle. (A.O. Smith, No. 20 at p. 4)
Through a review of its available test data, DOE has found that short fluctuations in ambient temperature have little to no effect on the test results of non-heat pump water heaters. Therefore, in an effort to reduce the need to re-run tests in instances in which the results of the invalid test and the valid test would not differ significantly, and therefore reduce test burden, DOE proposes to change the ambient temperature requirement for non-heat pump water heaters to an average of 67.5 °F ±2.5 °F, with a maximum deviation of 67.5 °F ±5 °F, as opposed to only a maximum deviation of 67.5 °F ±2.5 °F as currently specified in the test procedure.
For heat pump water heaters, DOE agrees with SMTI that the dry bulb temperature tolerances are important to maintain during recoveries but are less important during standby periods when the air is not being used to heat water. Further, through its own testing, DOE has observed that short deviations outside of the dry bulb temperature tolerances have little to no effect on the test results. Therefore, in an effort to reduce the need to re-run tests in instances in which the results of the invalid test and the valid test would not differ significantly, DOE proposes to change the dry bulb temperature requirement for heat pump water heaters to an average of 67.5 °F ±1 °F during recoveries and an average of 67.5 °F ±2.5 °F when not recovering, with a maximum deviation of 67.5 °F ±5 °F, as opposed to only a maximum deviation of 67.5 °F ±1 °F as currently specified in the test procedure. This proposed change would maintain the stringency of the dry bulb temperature requirement while allowing for short deviations from the targeted dry bulb temperature range, which would reduce the need to re-run tests in instances in which the results of the invalid test and the valid test would not differ significantly, and therefore reduce test burden.
In response to the April 2020 RFI, SMTI stated that for heat pump water heaters, the relative humidity tolerance is only relevant during recoveries and suggested changing the relative humidity requirements to an average of 50% ±2%, with a maximum deviation of 50% ±10%. (SMTI, No. 19 at p. 4) A.O. Smith stated that relaxing relative humidity tolerance for the first 15 minutes during the test will not have a measurable effect on the overall test results and that DOE should investigate whether relaxing this tolerance for the entirety of the test still provides results that are repeatable and representative of an average use cycle. (A.O. Smith, No. 20 at p. 4) BWC and Rinnai supported relaxing the relative humidity tolerance, and NEEA stated that the relative humidity tolerance should be increased from ±2 percent to ±5 percent. (BWC, No. 12 at p. 4; Rinnai, No. 13 at p. 8; NEEA, No. 21 at p. 4)
For heat pump water heaters, DOE is proposing to increase the absolute relative humidity tolerance from ±2 percent to ±5 percent across the entire test, with the average relative humidity between 50% ±2% during recoveries. This change would reduce test burden by reducing the need to re-run tests in instances in which the results of the invalid test and the valid test would not differ significantly.
As noted, appendix E does not currently specify a relative humidity tolerance for non-heat pump water heaters. As described in the April 2020 RFI, DOE has conducted exploratory testing to investigate the effect of relative humidity on the measured UEF values of two consumer gas-fired instantaneous water heaters that are flow activated and have less than 2 gallons of storage volume. 85 FR 21104, 21112 (April 16, 2020). Of the two models tested, one used non-condensing technology and the other used condensing technology. For each model, two tests were performed at a relative humidity of 50 percent, and two tests were performed at a relative humidity of 80 percent (
DOE is also proposing a clarification regarding the correction of the heating value to a standard temperature and pressure. Section 3.7 of appendix E states that the heating values of natural gas and propane must be corrected from those reported at standard temperature and pressure conditions to provide the heating value at the temperature and pressure measured at the fuel meter, but does not specify standard temperature and pressure conditions.
AHRI maintains an Operations Manual for Residential Water Heater Certification Program (AHRI Operations Manual),
For gas-fired water heaters, sections 2.7.2 and 2.7.3 of appendix E require maintaining the gas supply pressure in accordance with the manufacturer's specifications; or if the supply pressure is not specified, maintaining a supply pressure of 7 to 10 inches of water column (1.7 to 2.5 kPa) for natural gas and 11 to 13 inches of water column (2.7 to 3.2 kPa) for propane gas. In addition, for gas-fired water heaters with a pressure regulator, sections 2.7.2 and 2.7.3 require the regulator outlet pressure to be within ±10 percent of the manufacturer's specified manifold pressure. From a review of product
In the April 2020 RFI, DOE requested comment on whether sections 2.7.2 and 2.7.3 (Test Conditions for Natural and Propane Gas, respectively) should be amended to account for models where the manifold pressure cannot be adjusted directly and whether the ±10% tolerance on the manufacturer's specified manifold pressure should apply only when firing at the manufacturer specified maximum input rate. 85 FR 21104, 21112 (April 16, 2020). AHRI, CSA, Rheem, and Rinnai recommended that an alternate tolerance based on percentages be used when a “zero-governor” valve
Recognizing that certain gas-fired water heaters do not provide the capability to adjust the manifold pressure, DOE proposes to remove the ±10 percent manifold pressure tolerance for these products. DOE is proposing to add an absolute manifold pressure tolerance of ±0.2 inches water column, which would be used for gas-fired water heaters with a zero-governor valve for which the ±10 percent tolerance would be overly restrictive. For example, applying the ±10 percent to a manufacturer recommended gas pressure of 0.1 inches water column would result in a tolerance of ±0.01 inches of water column, which is less than both the accuracy and precision tolerances required for gas pressure instrumentation within section 3.1 of appendix E. Further, DOE proposes that the required gas pressures within appendix E apply when operating at the manufacturer's specified input rate or, for modulating input rate water heaters, the maximum input rate. Section III.C.3.d of this document provides further discussion on modifying the orifice of gas-fired water heaters that are not operating at the manufacturer specified input rate.
In addition to the gas pressure requirements, section 5.2.3 requires maintaining an hourly Btu rating (
In the April 2020 RFI, DOE requested comment on whether provisions should be added to the test procedure at appendix E to address water heaters that cannot operate within ±2 percent of the nameplate rated input as shipped from the factory. 85 FR 21104, 21112 (April 16, 2020). If so, DOE requested comment on how to address this issue, and whether it is appropriate to physically modify the orifice, similar to the direction for commercial water heaters.
After considering these comments, DOE proposes to add provisions to appendix E to provide further direction for achieving an input rate that is ± 2 percent of the nameplate value specified by the manufacturer. Specifically, DOE proposes to modify section 5.2.3 of appendix E to require that the following steps be taken to achieve an input rate that is ± 2 percent of the nameplate value specified by the manufacturer. First, attempt to increase or decrease the gas outlet pressure within ± 10 percent of the value specified on the nameplate to achieve the nameplate input (within ±2 percent). If the fuel input rate is still not within ±2 percent of the nameplate input, increase or decrease the gas supply pressure within the range specified on the nameplate. If the measured fuel input rate is still not within ±2 percent of the certified rated input, modify the gas inlet orifice as required to achieve a fuel input rate that is ± 2 percent of the nameplate input rate. Regarding commenters' suggestion to check for leaks as an additional step in the process, DOE notes that gas leak detection should be part of a test laboratory's normal operating procedures and, therefore, detection does not require specification within DOE's test procedures. In response to CEC's concern regarding representativeness, the purpose of adjusting the orifice during testing is to ensure that the performance of the water heater is representative of performance at the Btu rating specified by the manufacturer on the product's nameplate, which informs the field installation conditions. Allowing for
DOE seeks further comment on its proposed amendments to clarify the procedure for achieving an input rate within ±2 percent of the nameplate input rating.
DOE also proposes to add enforcement specific provisions to 10 CFR 429.134 to require that if the fuel input rate still cannot be achieved within ±2 percent of the nameplate input rate after adjusting the burner as described above, the fuel input rate found via testing will be used for the purpose of determining compliance. DOE proposes similar provisions for oil-fired water heaters that cannot be adjusted to within ±2 percent of the nameplate value. DOE requests comment on this proposal.
In response to the April 2020 RFI, NEEA requested that DOE allow for optional reporting of additional efficiency ratings at two different ambient and inlet water temperature conditions within the Compliance Certification Management System (CCMS) database, specifically for heat pump water heaters. NEEA further recommended that testing and reporting of the lower compressor cut off temperature in the CCMS database, similar to NEEA's Advanced Water Heating Specification, be required. (NEEA, No. 21 at pp. 1-3) The Joint Advocates requested that DOE explore the usage of NEEA's Advanced Water Heating Specification and allowing for voluntary testing needed to calculate climate-specific efficiency. (Joint Advocates, No. 15 at pp. 1-2)
DOE recognizes that regional differences in ambient temperature, inlet water temperature, and relative humidity exist and that these differences can have an effect on the efficiency of heat pump water heaters. However, as required under EPCA, the DOE test procedure must be reasonably designed to produce test results which measure energy efficiency during a representative average use cycle or period of use. (42 U.S.C. 6293(b)(3)) Compliance with the applicable energy conservation standard, which was developed based on an analysis of water heaters nationally, must be determined using the current DOE test procedure. (42 U.S.C. 6295(s)). The conditions in appendix E are representative of the nation as a whole. Moreover, DOE does not have data to indicate what conditions would be representative for regional representations. As the test procedure must be representative of the nation as a whole, and as DOE has no data to indicate what conditions would be representative for regional representations, DOE has tentatively determined not to allow for optional reporting of additional efficiency ratings at test conditions other than those found in the DOE test procedure.
Through a review of product literature, DOE has found consumer water heaters on the market that are designed to, or have operational modes that, raise the temperature of the stored water significantly above the outlet water temperature requirements specified in section 2.4 of appendix E (
The ENERGY STAR program published a Test Method to Validate Demand Response
To accommodate water heaters that are designed to, or have operational modes that, raise the temperature of the stored water significantly above the outlet water temperature requirements specified in section 2.4 of appendix E, DOE proposes to add instructions for the installation of a mixing valve similar to what is published in section 4.1 of the ENERGY STAR Connected Test Method.
In appendix E, both section 6.3.2, which provides for the computation of the recovery efficiency for gas, oil, and heat pump storage-type water heaters, and section 6.4.1, which provides for computation of the recovery efficiency for water heaters with rated storage volume less than 2 gallons, specify that the total mass of water removed (
The current test procedure does not specify where in the flow path the flow volume and density must be measured, which allows for laboratory test setups that measure the flow volume either on the cold inlet side of the water heater or on the hot outlet side. Allowing the flow meter to be located on either the inlet or outlet side, and calculating the mass of the water that is heated during the test based on the density of the water where the flow meter is located, could result in differences in the mass of water that is calculated depending on whether the flow meter is in the inlet water line or the outlet water line. Because the inlet water is colder than at the outlet, it is also denser, meaning that the same volume of water has more mass at the inlet than the outlet. In addition, some of the mass of inlet water could, after being heated, expand out of the water heater into the expansion tank and be purged prior to a draw.
In the April 2020 RFI, DOE requested feedback on whether the consumer water heater test procedure should require measurement of flow in the outlet water line to ensure that the mass of water removed from the tank is accurate. 85 FR 21104, 21113 (April 16, 2020). DOE further requested comment on whether requiring the density, ρ
DOE conducted exploratory testing to evaluate the effect on the test results due to differences in recording the water delivered using a flow meter at the inlet and outlet of the water heater, compared to the mass delivered as measured with a scale. The mass delivered was measured directly using Coriolis flow meters and these values were compared to the mass measured by the scale. The three different mass values were used to determine the UEF and the results are shown in Table III.2. Table III.2 shows the measured mass of each draw of the 24-hour simulated-use test, the root-mean-square deviation
The trend from DOE's preliminary test results is consistent with CSA and Keltech's comments. However, at this time, the preliminary testing is not sufficient for DOE to propose requiring the measurement of the mass or volume water at the outlet or at the inlet of the water heater. DOE's preliminary results are based on testing only one unit each of a gas-fired storage water heater and a gas-fired instantaneous water heater. It is not clear that measurements for all water heaters would demonstrate a similar impact based on the location of the measurement at the outlet versus inlet of the water heater. From DOE's testing using third party laboratories, most, if not all, tests are conducted with a flow meter installed on the inlet side of the water heater. To require water flow to be measured at the outlet may require consumer water heaters on the market to be retested without a complete understanding of the impact of the change in measurement location. Therefore, DOE requests test data comparing the results of testing with flow meters installed at the inlet or outlet of the water heater.
In sections 6.3.5 and 6.4.2 of appendix E, the mass withdrawn from each draw (M
In the April 2020 RFI, DOE requested feedback on whether to update the consumer water heater test procedure to include a description of how to calculate the mass withdrawn from each draw in cases where mass is indirectly determined using density and volume measurements. 85 FR 21104, 21113 (April 16, 2020). AHRI recommended including a description of how to calculate the mass withdrawn from each draw where mass is indirectly determined by using one of the calculations from the AHRI Operations Manual for Residential Water Heater Certification Program. (AHRI, No. 17 at p. 9) A.O. Smith, Rheem, and Rinnai supported the use of the method recommended by AHRI. (A.O. Smith, No. 20 at p. 4; Rheem, No. 14 at p. 8; Rinnai, No. 13 at p. 10) BWC stated that DOE should update the federal test procedure to include a means to calculate the mass withdrawn from each draw in cases where mass removed is determined using ratio of the inlet and outlet densities and volume measured on the inlet. (BWC, No. 12 at p. 5) Keltech stated that DOE does not need to specify the means to collect mass or volume measurements and that DOE should only specify the accuracy and tolerance of mass, volume, or temperature measurements. (Keltech, No. 7 at p. 1)
DOE is proposing to specify how mass calculations are made when the mass is indirectly determined using density and volume measurements. Specifically, DOE proposes that the volume at the outlet would be multiplied by the density, which would be based on the average outlet temperature measured during the draw. DOE is also proposing to add procedures similar to those in the AHRI Operations Manual for Residential Water Heater Certification Program; in particular, a method of converting inlet water volume to outlet water volume using the ratio of the water densities at the inlet and outlet.
Section 5.4.1 of appendix E states that if the Max GPM is less than 1.7 gpm (6.4 L/min) that the very small draw pattern be used during the 24-hour simulated-use test. Section 5.5 of appendix E states that, for the very small draw pattern, if the water heater has a Max GPM rating less than 1 gpm (3.8 L/min), then all draws shall be implemented at a flow rate equal to the rated Max GPM. DOE has identified flow-activated water heaters that are designed to deliver water at the set point temperature of 125 °F ±5 °F (51.7 °C ±2.8 °C) that is required by section 2.5 of appendix E at a flow rate well below 1 gpm (3.8 L/min). For these products, draw 2 of the very small draw pattern requires 1 gallon to be removed at the rated Max GPM and the pattern requires draw 3 to start five minutes after draw 2 initiation. However, any rated Max GPM less than or equal to 0.2 gpm (0.76 L/min) will result in draw 2 lasting more than five minutes and past the start time of draw 3. To clarify the appropriate method of testing these products, DOE proposes to amend the very small draw pattern description to state that when a draw extends beyond the start time of a subsequent draw, that the subsequent draw will start after the required volume of the previous draw has been delivered.
DOE has identified flow-activated water heaters that are designed to deliver water at a temperature below the set point temperature of 125 °F ±5 °F (51.7 °C ±2.8 °C) that is required by section 2.5 of appendix E. These water heating products are typically marketed as “handwashing” or “POU water” heaters. These units typically have low heating rates, which requires the testing agency to reduce the flow rate in order to be able to achieve the outlet temperature within the set point temperature range. However, these units have a minimum activation flow rate below which the unit shuts off. To the extent that a unit would stop heating water when the flow rate is too low, there may be no flow rate at which the unit would operate and deliver water at the outlet temperature required under section 2.5 of appendix E.
In the April 2020 RFI, DOE requested feedback on whether language should be added to section 5.2.2.1 of appendix E, titled, “Flow-Activated Water Heaters, including certain instantaneous water heaters and certain storage-type water heaters,” to allow for water heaters not designed to deliver water at 125 °F ±5 °F (51.7 °C ±2.8 °C) to be tested at a lower set point temperature, or whether other changes to the test method need to be made to accommodate these types of models (
Water heaters that provide water at a maximum temperature lower than 125 °F (
Although DOE has not received any such petitions, to minimize the potential need for manufacturers to petition for a test procedure waiver, DOE is proposing to define “low temperature” water heaters and to establish test procedure provisions that specify a lower set point temperature for such products. DOE is proposing to define a “low temperature water heater” as “an electric instantaneous water heater that, is not a circulating water heater and, cannot deliver water at a temperature greater than or equal to the set point temperature specified in section 2.5 of appendix E to subpart B of this part when supplied with water at the supply water temperature specified in section 2.3 of appendix E to subpart B of this part.”
DOE has tentatively determined that lowering the set point temperature for “low temperature” water heaters to their maximum possible delivery temperature would permit these water heaters to be tested appropriately and in a manner that would produce representative test results. Therefore, DOE proposes to require low temperature water heaters to be tested to their maximum possible delivery temperature.
As stated previously, if a consumer water heater exists that is not able to heat water to the required set point temperature, the manufacturer would be required to petition DOE for a waiver from the DOE test procedure and request use of an alternate test procedure pursuant to the procedure at 10 CFR 430.27. If a manufacturer produces a consumer water heater that is not able to heat water to the required set point temperature but does not meet the definition of a “low temperature water heater” as proposed in this document, the manufacturer should petition DOE for a waiver for that model.
As discussed in section III.A.1.a, in the present market, a consumer heat pump water heater typically consists of an air-source heat pump and a storage tank that are integrated together into one assembly. This “typical” consumer heat pump water heater uses electricity and has backup resistance elements within the storage tank. Heating water with the heat pump components is more efficient than heating water with the backup resistance elements. Therefore, water heaters with controls that prioritize heat pump water heating over resistance element water heating will operate more efficiently than water heaters that do not prioritize heat pump water heating or that do not prioritize heat pump water heating to the same extent.
In response to the April 2020 RFI, the Joint Advocates suggested modifying the test procedure to reflect the effectiveness of controls in minimizing use of the resistance element in heat pump water heaters, stating this modification would improve the representativeness of the test procedure and create new incentives for manufacturers to develop products that provide increased savings for consumers. (Joint Advocates, No. 15 at p. 2) No suggestion was provided on how to better reflect the use of controls to minimize element usage.
DOE's test data shows that for most (or possibly all) heat pump water heater models available on the market currently, electric elements do not turn on during the 24-hour simulated-use test. Although element usage during the test could be forced through a more aggressive draw pattern (
In response to the April 2020 RFI, the Joint Advocates and NEEA recommended that DOE investigate the inclusion of niche products, such as split system heat pumps, within appendix E. (Joint Advocates, No. 15 at p. 3; NEEA, No. 21 at p. 3) In a split system heat pump, the heat pump part of the system is typically installed outdoors. The storage tank part of the system is typically installed indoors and does not use the ambient air for water heating directly. As discussed in section III.C.3.b, different ambient conditions are specified in appendix E for heat pump water heaters and non-heat pump water heaters. For split system heat pump water heaters, DOE is proposing to specify that the heat pump part of the system shall be tested using the heat pump water heater dry bulb temperature and relative humidity requirements, while the storage tank part of the system shall be tested using the non-heat pump water heater ambient temperature and relative humidity requirements. DOE notes that the required non-heat pump water heater ambient conditions can be met by keeping the entire system within the dry bulb temperature and relative humidity requirements for heat pump water heaters (
As discussed in section III.A.1.a, certain heat pump water heaters are sold that consist of only a heat pump (
In a final rule published October 17, 1990, DOE established test procedures that included a description of how to test heat pump water heaters sold without a storage tank. 55 FR 42162, 42173. These procedures were updated in the May 1998 final rule and included testing the heat pump water heater with an electric storage water heater having a measured volume of 47 gallons ±1.0 gallons (178 liters ±3.8 liters); two 4.5 kW heating elements controlled in such a manner as to prevent both elements from operating simultaneously; and a rated efficiency at or near the minimum energy conservation standard. 63 FR 25996, 26011 (May 11, 1998).
DOE published the April 2010 final rule based on an evaluation of heat pump only water heaters available on the market. 75 FR 20112 (April 16, 2010). DOE determined such water heaters do not meet EPCA's definition of a “water heater” and are not covered products.
A review of the current market has identified certain heat pump only water heaters that operate differently than the add-on heat pump water heaters that were examined during the April 2010 final rule. Certain heat pump only water heaters are used in conjunction with a separately sold unfired hot water storage tank or backup storage water heater and extract “cold” water from the tank, heat the water directly using the ambient air as the heat source, and return water at a slightly higher temperature to the storage tank or backup heater. In contrast to the add-on heat pump water heaters previously examined in the April 2010 Final Rule, these heat pump only water heaters heat water directly. Currently, testing these heat pump only water heaters to appendix E is not possible because they are unable to heat water to the required set point temperature on demand. These products require the use of a separately sold storage tank and gradually increase the temperature of the stored water to the required outlet temperature.
Because of the differences with certain heat pump only water heaters currently on the market as compared to the add-on heat pump water heaters that provided the basis for DOE's prior determination, DOE has tentatively determined that certain heat pump only water heaters are covered products. As discussed in section III.A.1.a, DOE is proposing a definition for “circulating water heater,” which covers heat pump only water heaters, and that procedures to test these products should be included in appendix E.
As stated previously, a 47-gallon electric storage water heater that uses electric resistance elements and that has a rated efficiency at or near the minimum energy conservation standard was previously required when testing the test procedures prior to the July 2014 final rule. Consistent with DOE's prior approach to testing heat pump only water heaters, DOE is proposing testing with a standard storage tank. Through testing of integrated heat pump water heaters,
Were DOE to establish a test procedure for heat pump only water heaters, such water heaters would not be subject to energy conservation standards until such a time that DOE addressed such products in an energy conservation standard rulemaking.
As described in section III.A.1.c, several manufacturers produce “circulating” consumer gas-fired instantaneous water heaters that are designed to be used with a volume of stored water (usually in a tank, but sometimes within a recirculating hot water system of sufficient volume, such as a hydronic space heating or designated hot water system) in which the water heater does not directly provide hot water to fixtures, such as a faucet or shower head, but rather replenishes heat lost from the tank or system through hot water draws or standby losses. In section III.A.1.c, DOE tentatively determined that these water heaters are “covered products” under the “water heater” definition and proposed a definition for “circulating water heaters” to be included at 10 CFR 430.2.
In the April 2020 RFI, DOE requested feedback on what changes to the consumer water heater test procedure may be necessary to appropriately test circulating gas-fired instantaneous water heaters. DOE also requested feedback on whether there is an industry standard that would allow for testing of circulating gas-fired instantaneous water heaters that would provide results representative of the energy use of these products for an average use cycle or period of use. 85 FR 21104, 21113 (April 16, 2020). AHRI, Rinnai, and Rheem recommended using DOE's commercial water heater test procedure, which references parts of ANSI Z21.10.3-2015/CSA 4.3-2015 (ANSI Z21.10.3-2015), “Gas-fired water heaters, volume III, storage water heaters with input ratings above 75,000 Btu per hour, circulating and instantaneous.” (AHRI, No. 17 at p. 11; Rheem, No. 14 at p. 8; Rinnai, No. 13 at p. 10-11) Additionally, AHRI suggested that if DOE declines to modify the definition and retains circulating gas-fired instantaneous water heaters within scope of this test procedure, then DOE should consider adopting the thermal efficiency commercial test procedure and metric for these products. (AHRI, No. 17 at p. 11)
As stated previously in section III.A.1.c, DOE has tentatively determined that circulating water heaters are consumer water heaters and would be covered by DOE's test procedures for consumer water heaters. Congress, through 42 U.S.C. 6295(e)(5)(B), directed DOE to establish a “uniform efficiency descriptor” as the required metric for consumer water heaters. This “uniform efficiency
Similar to heat pump only water heaters described in section III.C.8.c, circulating water heaters operate with a separate storage tank. Therefore, DOE has tentatively determined that, as proposed for heat pump only water heaters, circulating water heaters would be tested with an 80 gallon ± 1 gallon unfired hot water storage tank that meets the energy conservation standards for an unfired hot water storage tank at 10 CFR 431.110(a). DOE requests comment on the approach of using a standard storage tank for testing circulating water heaters and whether there are other procedures that are not unduly burdensome to conduct and that are representative of actual use.
In response to an RFI published on May 21, 2020 (May 2020 RFI), regarding the energy conservation standards for consumer water heaters (85 FR 30853), the Solar Rating & Certification Corporation (“(SRCC”)) recommended that solar water heating technologies be considered for inclusion in the DOE energy conservation standards and test procedures for consumer water heaters. SRCC stated that without the involvement of DOE, the industry metrics struggle to gain acceptance with policymakers and consumers. SRCC also stated that DOE rulemakings to include solar-equipped water heaters in regulations would serve to establish a single performance metric and signal the legitimacy of solar water heating technologies. (Docket: EERE-2017-BT-STD-0019, SRCC, No. 11 at pp. 3-4) On October 7, 2020, SRCC published a draft test procedure titled, “Solar Uniform Energy Factor Procedure for Solar Water Heating Systems.”
On April 8, 2015, DOE published an energy conservation standards NOPR addressing definitions for consumer water heaters. 80 FR 18784. In particular, DOE proposed definitions for “solar-assisted fossil fuel storage water heater” and “solar-assisted electric storage water heater” and clarified that water heaters meeting these definitions are not subject to the amended energy conservation standards for consumer water heaters established by the April 2010 final rule.
On September 17, 2018, DOE published an RFI seeking information on the emerging smart technology appliance and equipment market. 83 FR 46886 (September 2018 RFI). In the September 2018 RFI, DOE sought information to better understand market trends and issues in the emerging market for appliances and commercial equipment that incorporate smart technology.
EEI stated that DOE should update the test procedure to better capture the performance difference between traditional and “smart” water heaters by including subcategories for non-connected,
Section 5.1 of appendix E specifies the operational mode selection for water heaters, but does not explicitly address “smart” or “connected” modes of operation. For water heaters that allow for multiple user-selected operational modes, all procedures specified in appendix E must be carried out with the water heater in the same operational mode (
DOE is proposing to explicitly state that any connection to an external network or control would be disconnected during testing. While DOE recognizes that connected water heaters are on the market with varying implementations of connected features, DOE is not aware of any data available, nor did interested parties provide any such data, regarding the consumer use of connected features. Absent such data,
Furthermore, while acknowledging the potential benefits that could be provided by connected capability, such as providing energy saving benefits to consumers and enabling peak load shifting on the grid, DOE believes that requiring measurement of the energy consumed by connected features at this time may prematurely hinder the development and incorporation of such features in water heaters. While grid management programs have existed for many years, demand response capability is rapidly evolving. Therefore, DOE has tentatively determined that, at this time, any regulation on its part to address these products may harm the evolution of this market.
DOE acknowledges that storage-type water heaters are useful thermal energy storage devices that can help save consumers money and help utilities manage the grid by heating up the water in the tank during non-peak times. However, the technology required to operate within a demand response program is not available on most consumer water heaters and the available thermal energy of the tank can be determined using the already available rated storage volume metric. Further, DOE notes that a thermal energy storage metric would be most useful to utilities operating demand response programs. These utilities are regionally located and can therefore make better assumptions about water heating conditions, such as supply water temperature and ambient temperature, as compared to a national average of these conditions, which are used in the DOE test procedure. Therefore, DOE has tentatively determined not to add a thermal energy storage metric to the DOE test procedure at this time.
As DOE is not proposing test procedures specific to connected water heaters, separate definitions would not be needed to identify non-connected, connected, and disconnected water heaters.
Section 4.5 of appendix E provides the procedure for measuring the internal storage tank temperature for water heaters with a rated storage volume at or above 2 gallons. Section 4.5 of appendix E specifies that the thermocouples be inserted into the storage tank of a water heater through either the anodic device opening, the temperature and pressure relief valve, or the outlet water line. DOE has identified consumer water heaters with physical attributes that make measuring internal storage tank temperature difficult, such as water heaters that have a built-in mixing valve and no anodic device, or have a large heat exchanger that does not accommodate insertion of a thermocouple tree.
In the April 2020 RFI, DOE requested comment on whether amendments to the water heater test procedure are needed to address water heaters that cannot have their internal storage tank temperatures measured as required by the test procedure. 85 FR 21104, 21114 (April 16, 2020). In response, CA IOUs recommended that DOE not amend the test procedure to address water heaters for which it is impossible to measure internal storage tank temperatures. (CA IOUs, No. 18 at p. 4) Rheem stated its support of such amendments and recommended a drain down method, whereby the entire volume would be removed and the temperature measured at the end of the 24-hour test. (Rheem, No. 14 at p. 9) BWC agreed such amendments were necessary and suggested a framework for a procedure to address water heaters that cannot have their internal storage tank temperatures measured that would involve: (1) After the FHR test, purging the water heater with inlet water at 58 °F ±2 °F to establish the mean tank temperature at the beginning of the 24-hour simulated-use test; (2) allowing the water heater to heat up to the original thermostat setting and recording the energy used to do so; (3) running the appropriate draw pattern, then fully draining the water heater by gravity, while measuring the mass and temperature of the water; and (4) calculating the energy change as: energy change = mass × specific heat × the difference between the average end temperature and the beginning temperature just after the 58 °F purge. (BWC, No. 12 at p. 5)
Throughout the 24-hour simulated-use test, internal tank thermocouples are used to determine the mean tank temperature. Mean tank temperatures are required at the start and end of the test, the start and end of the standby period, and the after the first recovery period (
1. Allow the water heater to finish any recovery it is undergoing.
2. Wait 1 hour, during which time the water heater sits idle without any water draws or energy used for heating water.
3. Begin the first draw of the appropriate draw pattern. Record the inlet and outlet water temperatures 5 seconds after the initiation of the first draw. The mean tank temperature at the start of the test,
4. At the end of the first draw, record the inlet and outlet water temperatures. The maximum mean tank temperature after the first recovery period,
5. Continue with the appropriate draw pattern.
6. At the end of the last draw of the first draw cluster, record the inlet and outlet water temperatures. The mean tank temperature after the start of the standby period,
7. Continue with the appropriate draw pattern.
8. Begin the first draw of the second draw cluster. Record the inlet and outlet water temperatures 5 seconds after the initiation of the first draw. The mean tank temperature at the end of the standby period,
9. The average mean tank temperature over the standby period,
10. Continue with the appropriate draw pattern.
11. At hour 24, initiate a draw at the flow rate of the first draw of the draw pattern that the water heater was tested. The mean tank temperature at hour 24 (
The proposed drain down test would estimate the mean tank temperature based on the inlet and outlet water temperature at the start or end of the draw. This assumes that the temperature of the stored water gradually (
In response to the April 2020 RFI, SMTI recommended that DOE move the standby loss period of the test to the beginning of the 24-hour simulated-use test and to start the first draw at the 6-hour mark, asserting that doing so would increase the accuracy and repeatability of the test, and would decrease burden by eliminating the possibility of having to extend the 24-hour simulated-use test. (SMTI, No. 19 at p. 2) SMTI further asserted that the calculation for recovery efficiency can provide an artificially low value for water heaters with high storage volume and low input rates such as heat pump water heaters. For these water heaters, SMTI stated that the first recovery period could be delayed well past the start of the test, during which time the water heater would use a significant amount of energy in standby (
As stated in section III.B.2.d, UA (the result of the standby period) has a negligible effect on UEF. Therefore, moving the standby period to the start of test would have a negligible effect on UEF in terms of improving the accuracy of the standby loss calculations. However, moving the standby period to the start of the test may have an effect on the recovery efficiency of large volume low input rate water heaters described by SMTI, and a large change in recovery efficiency can have a significant effect on UEF. From a review of DOE's available test data, the first recovery is rarely delayed past the first draw. If DOE were to adopt this alternate order 24-hour simulated-use test, all water heaters on the market would need to be retested. Therefore, DOE is not proposing to move the standby period to the start of the 24-hour simulated-use test, as the resulting burden to manufacturers to retest would result in a potential increase in accuracy for only a small subset of the consumer water heaters available on the market.
At 10 CFR 429.70, DOE specifies alternative methods for determining energy efficiency and energy use for certain covered products and equipment, including consumer water heaters.
The provisions at 10 CFR 429.70(g) provide alternative methods for determining ratings for “untested” basic models of residential water heaters and residential-duty commercial water heaters. For models of water heaters that differ only in fuel type or power input, these provisions allow manufacturers to establish ratings for untested basic models based on the ratings of tested basic models if certain prescribed requirements are met. (Simulations or other modeling predictions or ratings of UEF, volume, first-hour rating, or maximum gallons per minute are not permitted (10 CFR 429.70(g))).
Specifically, for gas water heaters, the provisions at 10 CFR 429.70(g)(1) specify that for untested basic models of gas-fired water heaters that differ from tested basic models only in whether the basic models use natural gas or propane gas, the represented value of UEF, FHR, and maximum gallons per minute for an untested basic model can be the same as those for a tested basic model, as long as the input ratings of the tested and untested basic models are within ±10 percent.
For electric storage water heaters, the provisions at 10 CFR 429.70(g)(2) specify rating an untested basic model using the FHR and the UEF obtained from a tested basic model as a basis for ratings of basic models with other input ratings, provided that certain conditions are met: (1) Each heating element of the untested basic model is rated at or above the input rating for the corresponding heating element of the tested basic model; and (2) for an untested basic model having any heating element with an input rating that is lower than that of the corresponding heating element in the tested basic model, the FHR for the untested basic model must result in the same draw pattern specified in Table I of appendix E for the simulated-use test as was applied to the tested basic model.
As discussed previously, for certain products or equipment types for which the use of an AEDM is authorized, DOE prescribes procedures to be used to validate the AEDM and/or to perform verification testing on units certified using an AEDM. For consumer water heaters, however, DOE does not currently prescribe procedures to validate the alternative rating method or to perform verification testing of untested basic models that are certified using the provisions at 10 CFR 429.70(g).
The following sections discuss representations of the FHR value of certain untested models; consideration of extending the alternative rating method to electric instantaneous type water heaters; and proposed methods for verifying the ratings of untested models of water heaters.
As discussed previously, the provisions at 10 CFR 429.70(g) allow for an untested electric storage water heater basic model with element wattages less than a tested basic model to use the FHR of the tested basic model, provided that the untested basic model's FHR is in the same draw pattern as the tested basic model. For an untested basic model with an element wattage that is lower than the tested basic model's, the tested FHR of the untested basic model will generally be less than the FHR of the tested basic model. In such cases, using the tested basic model's FHR to represent the untested model's FHR may not be as representative as using the FHR value directly determined from the untested model (the FHR of the untested basic model is determined pursuant to the procedures in appendix E specifically for the purpose of allowing use of the tested basic model's UEF rating). Instead, using the untested basic model's measured FHR for
As discussed in section III.C.14.b, DOE is proposing to adopt provisions for rating untested electric instantaneous water heaters in a manner similar to that currently allowed for electric storage water heaters. Correspondingly, DOE is also requesting comment on a proposal to require, for untested models of electric instantaneous water heaters with an input rating less than the tested model, that the represented maximum GPM value for the untested model be the actual value as determined for the untested model according to appendix E and the sampling plan requirements at 10 CFR 429.17. The represented UEF of the untested model still would match that of the tested basic model.
Should DOE amend the method for determining the represented value of FHR or maximum GPM for certain untested basic models of electric water heaters, such a change could be required beginning with the annual filing of certification reports following the effective date of any change. Manufacturers of consumer water heaters are required to submit an annual filing for covered basic models by May 1 of each year. 10 CFR 429.12(d).
As described previously, the provisions at 10 CFR 429.70(g) allow manufacturers to apply ratings for a tested basic model to untested basic models of gas water heaters and electric storage water heaters if certain prescribed requirements are met. In response to the April 2020 RFI, A.O. Smith suggested that DOE consider extending the untested provisions in 10 CFR 429.70(g) to consumer and residential‐duty electric instantaneous water heaters. (A.O. Smith, No. 20 at p. 5)
As discussed, untested electric storage water heater basic models are currently allowed to use the same FHR and UEF rating as a tested basic model, provided that one of the following two criteria are met: (1) Each heating element of the untested basic model is rated at or above the input rating for the corresponding heating element of the tested basic model; or (2) a tested FHR for the untested basic model with a lower input rating must result in the same draw pattern as the tested basic model. 10 CFR 429.70(g)(2).
Regarding the first criteria, the untested provisions for electric storage water heaters at 10 CFR 429.70(g)(2) allow an untested basic model to be rated the same as a tested basic model if each heating element of the untested basic model is rated at or above the input rating for the corresponding heating element of the tested basic model. DOE notes that as the input rate of a water heater increases, so too does the amount of hot water that it can deliver; and the more hot water the water heater can deliver, the higher the draw pattern that is required during the 24-hour simulated-use test. In general, for a given water heater, a higher draw pattern correlates with higher UEF results; conversely, a smaller draw pattern corresponds with lower UEF results. (DOE has found through its own testing that this trend holds for electric instantaneous water heaters in addition to storage water heaters.) As a result, higher input rates generally correlate with higher UEF values. Because higher input rates generally correlate with higher UEF values (due to a change in draw pattern, as described), an untested basic model with an input rate higher than the tested basic model is generally considered to be conservatively rated.
Regarding the second criteria, the untested provisions for electric storage water heaters at 10 CFR 429.70(g)(2) allow an untested basic model to be rated the same as a tested basic model if any heating element has in input rating lower than that of the corresponding heating element in the tested basic model and the tested FHR for the untested basic model results in the same draw pattern as that of the tested basic model.
Because instantaneous water heaters exhibit the same trends in performance that justify the use of an alternative rating determination method for electric storage water heaters, DOE has tentatively determined that extending the use of the untested provisions to electric instantaneous water heaters in 10 CFR 429.70(g) would maintain a representative rating of these products' energy efficiency, while reducing manufacturer burden. Therefore, DOE is proposing to permit use of the untested provisions for electric instantaneous water heaters through newly proposed provisions at 10 CFR 429.70(g)(3). DOE is proposing that the criteria that currently apply to electric storage water heaters at 10 CFR 429.70(g)(2) would apply to electric instantaneous type water heaters at 10 CFR 429.70(g)(3), with the exceptions that: (1) The criteria for electric instantaneous water heaters would reference the maximum GPM rather than the FHR, as FHR applies only to storage water heaters; and (2) the criteria for electric instantaneous water heaters would reference the “input rate” rather than the “heating element” or “input rating for the corresponding heating element”.
DOE has tentatively determined that extending the untested provisions in 10 CFR 429.70(g) to electric instantaneous water heaters would reduce manufacturer burden, as many basic models would not require testing, while maintaining an accurate representation of these products actual efficiency. Therefore, DOE is proposing to permit use of the untested provisions for electric instantaneous water heaters. DOE seeks comment on the proposal to establish provisions for rating untested basic models of electric instantaneous water heaters at 10 CFR 420.70(g)(3) that are analogous to the existing provisions for rating untested basic models of electric storage water heaters at 10 CFR 429.70(g)(2).
Manufacturers, including importers, must use product-specific certification templates
In this NOPR, DOE proposes to amend the existing test procedure for consumer and residential-duty commercial water heaters by adding procedures to test water heaters designed to be used with a separately sold hot water storage tank, to test the newly defined low temperature water heaters, and to estimate the internal stored water temperature for water heater designs in which the internal tank temperature cannot be directly measured. DOE also proposes to amend the existing test procedure for consumer and residential-duty commercial water heaters by modifying the flow rate requirements during the FHR test for water heaters with a rated storage volume less than 20 gallons; the timing of the first measurement in each draw of the 24-hour simulated-use test; and the test condition specifications and tolerances, including electric supply voltage tolerance, ambient temperature, ambient dry bulb temperature, ambient relative humidity, standard temperature and pressure definition, gas supply pressure, and manifold pressure. DOE has tentatively determined that these proposed amendments would impact testing costs as discussed in the following paragraphs.
DOE proposes to add procedures to test water heaters that are designed to be used with a separately sold hot water storage tank. These products raise the temperature of inlet water by less than the required temperature rise specified in sections 2.3 through 2.5 of appendix E and therefore require a storage volume (either a tank or circulation loop of sufficient size) to raise the temperature of the water to levels required by appendix E. Under the proposed procedures, the manufacturer, or third-party testing facility, would need to install the water heater with an 80-gallon unfired hot water storage tank which meets the energy conservation standard requirements at 10 CFR 431.110(a). DOE estimates that the cost of running the test procedure should be the same as testing a comparable water heater with storage volume (
DOE has tentatively determined that the proposed amendment regarding water heaters that are designed to be used with a separately sold hot water storage tank allow for these products to be tested to the DOE test procedure for consumer and residential-duty commercial water heaters. Such testing would be required should the proposed amendments be finalized.
DOE requests comment on the impact and associated costs of this proposed amendment.
DOE proposes to add procedures to appendix E to estimate the internal stored water temperature for water heater designs in which the internal tank temperature cannot be directly measured. These products have a rated storage volume greater than or equal to 2 gallons and are required to have the internal tank temperature measured as specified in section 4.5 of appendix E. However, these products are designed in such a way that instruments for measuring the internal water temperature cannot be installed. These products cannot be tested to the current version of appendix E. DOE estimates that the cost of running the test procedure should be the same as testing a comparable water heater with storage volume (
DOE requests comment on the impact and associated costs of this proposed amendment.
DOE does not anticipate that the remainder of the amendments proposed in this NOPR would impact test costs.
DOE proposes to amend section 2.5 of appendix E to allow low temperature water heaters to deliver water at their maximum outlet temperature that they are capable of. This proposal aligns with DOE's understanding of how these products are tested currently. As discussed in section III.C.7, manufacturers already should have requested a waiver for these products as the current test procedure cannot be used as written to test low temperature water heaters. As these products are currently tested and rated to the procedures which DOE is proposing, there should be no additional cost associated with this proposed change.
DOE also proposes to amend the existing test procedure for consumer and residential-duty commercial water heaters by modifying the flow rate requirements during the FHR test for water heaters with a rated storage volume less than 20 gallons. This change does not significantly affect the test results of the FHR test, thus DOE expects that manufacturers may rely on existing test data where available. Further, water heaters with less than 20 gallons of rated storage volume currently do not have energy conservation standards codified at 10 CFR 430.32(d) and are therefore not rated and certified to DOE.
DOE also proposes to amend the timing of the first measurement in each draw of the 24-hour simulated-use test and the test condition specifications and tolerances, including electric supply voltage tolerance, ambient temperature, ambient dry bulb temperature, ambient relative humidity, standard temperature and pressure definition, gas supply pressure, and manifold pressure. These changes are intended to reduce retesting associated with having a single measurement out of tolerance, while maintaining the current representativeness of the test conditions and the stringency of the tolerances for the test conditions.
DOE has tentatively determined that manufacturers would be able to rely on data generated under the current test procedure should any of these additional proposed amendments be finalized.
DOE's established practice is to adopt relevant industry standards as DOE test procedures unless such methodology would be unduly burdensome to conduct or would not produce test results that reflect the energy efficiency, energy use, water use (as specified in EPCA) or estimated operating costs of that product during a representative average use cycle or period of use. Section 8(c) of appendix A of part 430 subpart C. In cases where the industry standard does not meet EPCA statutory criteria for test procedures, DOE will make modifications to these standards and adopt the modified standard as the DOE test procedure through the rulemaking process.
The test procedures for consumer water heaters at appendix E incorporate by reference ASHRAE 41.1-1986 (RA 2006), which describes the standard methods for temperature measurement, and ASTM D2156-09, which describes
DOE notes that ASHRAE 41.1-1986 (RA 2006) and ASTM D2156-09 are incorporated by reference without modification.
In the April 2020 RFI, DOE discussed the possibility of adopting a finalized draft of ASHRAE 118.2, which in its drafted state is similar to appendix E. 85 FR 21104, 21109 (Apr. 16, 2020). A detailed discussion of the differences between the March 2019 ASHRAE Draft 118.2, the April 2021 ASHRAE Draft 118.2, and appendix E can be found in section III.B.2. In response to the April 2020 RFI, AHRI recommended adopting ASHRAE 118.2 once it is finalized and stated that as a user of the standard, DOE would define the specific test conditions. (AHRI, No. 17 at p. 3) The CA IOUs, CEC, CSA, Keltech, and NEEA supported adoption of ASHRAE 118.2 once updated. (CA IOUs, No. 18 at p. 3; CEC, No. 11 at pp. 2-3; CSA, No. 10 at p. 2; Keltech, No. 7 at p. 1; NEEA, No. 21 at p. 5) As discussed throughout section III.B.2, DOE has proposed certain changes to appendix E that have been presented in the March 2019 ASHRAE Draft 118.2 and April 2021 ASHRAE Draft 118.2. However, several changes presented in the March 2019 ASHRAE Draft 118.2 and January 2021 ASHRAE Draft 118.2 are either not proposed by DOE or are proposed by DOE with modification. In particular, DOE does not propose to scale the last draw of the FHR test (section III.B.2.c), to require a 6 hour standby period (section III.B.2.d), or to use the draft ASHRAE method for the last hour of the test regardless of whether the standby period occurred between draw clusters 1 and 2 or at the end of the test (section III.B.2.d). Further, DOE proposes the following amendments to appendix E, which are not included in either the March 2019 ASHRAE Draft 118.2 or the April 2021 ASHRAE Draft 118.2: Updated test conditions and tolerances (section III.C.3); new definitions and test procedures for low temperature water heaters (section III.C.7); test procedures for heat pump only water heaters (section III.C.8.c), test procedures for circulating water heaters (section III.C.9); and test procedures for a drain down test method (section III.C.12). To reduce confusion due to the differences between the proposed appendix E and the March 2019 ASHRAE Draft 118.2 and April 2021 ASHRAE Draft 118.2, DOE has tentatively determined not to incorporate by reference a finalized version of ASHRAE 118.2 without modification. Rather, DOE proposes to incorporate by reference a finalized ASHRAE 118.2 (contingent on the finalized update being substantively the same as the current draft made available for review) but only reference specific parts of the finalized ASHRAE 118.2 within appendix E (
EPCA prescribes that, if DOE amends a test procedure, all representations of energy efficiency and energy use, including those made on marketing materials and product labels, must be made in accordance with that amended test procedure beginning 180 days after publication of such a test procedure final rule in the
If DOE were to publish an amended test procedure, EPCA provides an allowance for individual manufacturers to petition DOE for an extension of the 180-day period if the manufacturer may experience undue hardship in meeting the deadline. (42 U.S.C. 6293(c)(3); 42 U.S.C. 6314(d)(2)) To receive such an extension, petitions must be filed with DOE no later than 60 days before the end of the 180-day period and must detail how the manufacturer will experience undue hardship. (
Upon the compliance date of test procedure provisions of an amended test procedure, should DOE issue a such an amendment, any waivers that had been previously issued and are in effect that pertain to issues addressed by such provisions are terminated. 10 CFR 430.27(h)(3); 10 CFR 431.401(h)(3). Recipients of any such waivers would be required to test the products subject to the waiver according to the amended test procedure as of the compliance date of the amended test procedure. The amendments proposed in this document pertain to issues addressed by waivers granted to Bradford White Corporation (Case No. 2019-006).
On January 31, 2020, DOE published a Notice of Decision and Order in the
As a result, and as also discussed in section III.B.2.d, DOE is proposing to adopt the alternate test procedure prescribed in the Decision and Order granted to Bradford White Corporation into the test procedure at appendix E.
The Office of Management and Budget (OMB) has determined that this test procedure rulemaking does not constitute a “significant regulatory action” under section 3(f) of Executive Order (E.O.) 12866, Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was not subject to review under the Executive order by the Office of Information and Regulatory Affairs (OIRA) in OMB.
The Regulatory Flexibility Act (5 U.S.C. 601
The following sections detail DOE's IRFA for this test procedure rulemaking.
DOE is proposing to amend test procedures for consumer water heaters and residential-duty commercial water heaters. DOE is publishing this NOPR in satisfaction of the 7-year review requirement specified in EPCA. (42 U.S.C. 6293(b)(1)(A); 6314(a)(1)) Further, amending test procedures for consumer and residential-duty commercial water heaters assists DOE in fulfilling its statutory deadline for amending energy conservation standards for products and equipment that achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A); 42 U.S.C. 6313(a)(6)) Additionally, amending test procedures for consumer and residential-duty commercial water heaters allows manufacturers to produce measurements of energy efficiency that are representative of an average use cycle and uniform for all manufacturers.
DOE has undertaken this proposed rulemaking pursuant to 42 U.S.C. 6292(a)(4) and 42 U.S.C. 6312(a), which authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment, including the consumer and residential-duty commercial water heaters that are the subject of this proposed rulemaking.
For manufacturers of consumer water heaters and residential-duty commercial water heaters, the SBA has set a size threshold, 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. (
Of the proposals in this NOPR, two amendments could potentially lead to additional costs for manufacturers:
• Defining the use of a separate unfired hot water storage tank for testing water heaters designed to operate with a separately sold hot water storage tank.
• Adding procedures for estimating internal stored water temperature for water heater designs in which the internal tank temperature cannot be directly measured.
After reviewing models in the CCMS and AHRI Directory for the 31 manufacturers, DOE identified six companies that could incur additional testing costs as result of the proposed test procedures amendments. Of the six companies, one is a small domestic manufacturer that could incur costs as a result of the proposed test procedure amendments. The small domestic manufacturer offers one model in which the internal tank temperature cannot be directly measured.
In this NOPR, DOE evaluates a range of potential test procedure amendments. One amendment could lead to additional testing costs for small business. The existing DOE test procedure does not accommodate testing of water heaters that require a separately sold hot water storage tank to properly operate. Such products are currently available on the market.
DOE proposes to add procedures to test such water heaters to improve the representativeness of the test procedure. Under the proposed amendments, the testing facility would need to install the water heater with a commonly available 80-gallon unfired hot water storage tank which meets the energy conservation standard requirements at 10 CFR 431.110(a). DOE estimates that the cost of running the amended test procedure should be the same as testing a comparable water heater with storage volume (
The one domestic small manufacturer has a single model that would be affected by this amendment. DOE expects the cost to re-test that model to be $4,500. This is less than 0.01% of company revenue.
DOE requests comment of the cost impacts to small business of the test procedure change to accommodate testing of water heaters that require a separately sold hot water storage tank.
DOE is not aware of any rules or regulations that duplicate, overlap, or conflict with the rule being considered today.
The discussion in the previous section analyzes impacts on small businesses that would result from DOE's proposed test procedure, if finalized. In reviewing alternatives to the proposed test procedure, DOE examined not establishing a performance-based test procedure for consumer and residential-duty commercial water heaters or establishing prescriptive-based test procedures. While not establishing performance-based test procedures or establishing prescriptive-based test procedures for consumer and residential-duty commercial water heaters would reduce the burden on small businesses, DOE must use test procedures to determine whether the
The Department has tentatively determined that there are no better alternatives than the test procedures amendments proposed in this NOPR, in terms of both meeting the agency's objectives and reducing burden. Additionally, manufacturers subject to DOE's test procedures may apply to DOE's Office of Hearings and Appeals for exception relief under certain circumstances. Manufacturers should refer to 10 CFR part 430, subpart E, and 10 CFR part 1003 for additional details.
DOE seeks comments on these findings related to significant alternative related to small entities.
Manufacturers of consumer and commercial water heaters must certify to DOE that their products comply with any applicable energy conservation standards. To certify compliance, manufacturers must first obtain test data for their products according to the DOE test procedures, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including consumer and commercial water heaters. (
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
In this NOPR, DOE proposes test procedure amendments that DOE expects will be used to develop and implement future energy conservation standards for consumer water heaters. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The E.O. 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 E.O. 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. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by E.O. 13132.
Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), 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. 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 sections 3(a) and 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, the 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, sec. 201 (codified at 2 U.S.C. 1531). For a proposed 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 proposed “significant
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 proposed rule 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.
DOE has determined, under E.O. 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), that this proposed regulation 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 agencies to review most disseminations of information to the public under 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:
E.O. 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 OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated 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 proposed 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.
The proposed regulatory action to amend the test procedure for measuring the energy efficiency of consumer and commercial water heaters is not a significant regulatory action under E.O. 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.
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 Chairman of the Federal Trade Commission (FTC) concerning the impact of the commercial or industry standards on competition.
The proposed modifications to the test procedure for consumer and commercial water heaters would incorporate testing methods contained in certain sections of the following commercial standards: ASHRAE 41.1-2020, ASTM D2156-09 (RA 2018), and a finalized version of ASHRAE 118.2. DOE has evaluated these standards and is unable to conclude whether it fully complies with the requirements of section 32(b) of the FEAA (
In this NOPR, DOE proposes to incorporate by reference the test standard published by ASHRAE, titled “Standard Methods for Temperature Measurement,” ASHRAE 41.1-2020; the test standard published by ANSI/ASHRAE, titled “Standard Method for Humidity Measurement,” Standard 41.6-2014; the test standard published by ASHRAE, titled “Method of Testing for Rating Residential Water Heaters and Residential-Duty Commercial Water Heaters,” ASHRAE 118.2-[year finalized]; the test standard published by ASTM, titled “Standard Test Method for Smoke Density in Flue Gases from Burning Distillate Fuels,” ASTM D2156-09 (RA 2018); and, the test standard published by ASTM, titled “Standard Test Methods for Directional Reflectance Factor, 45-Deg 0-Deg, of Opaque Specimens by Broad-Band Filter Reflectometry,” ASTM E97-1987 (W1991).
ASHRAE 41.1-2020 prescribes methods for measuring temperature under laboratory and field conditions which are required for system performance tests and for testing heating, ventilating, air-conditioning, and refrigerating components. ASHRAE 41.6-2014 prescribes methods for measuring the humidity of moist air with instruments. ASHRAE 118.2-[year finalized] provides test procedures for rating the efficiency and hot water delivery capabilities of directly heated residential water heaters and residential-duty commercial water heaters. ASTM D2156-09 (RA 2018) provides a test method to evaluate the density of smoke in the flue gases from burning distillate fuels, is intended primarily for use with home heating
Copies of ASHRAE 41.1-2020, ASHRAE 41.6-2014, and ASHRAE 118.2-[year finalized] can be obtained from the American Society of Heating, Refrigerating, and Air-Conditioning Engineers, Inc., 1791 Tullie Circle NE, Atlanta, GA 30329, (800) 527-4723 or (404) 636-8400, or online at:
Copies of ASTM D2156-09 (RA 2018) and ASTM E97-1987 (W1991) can be obtained from the American Society for Testing and Materials International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 or online at:
The time and date of the webinar are listed in the
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 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. Persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.
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Include contact information each time you submit comments, data, documents, and other information to DOE. No 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, 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 Secretary of Energy has approved publication of this notice of proposed rulemaking and request for comment.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Reporting and recordkeeping requirements.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Intergovernmental relations, Small businesses.
Administrative practice and procedure, Confidential business information, Energy conservation test procedures, Incorporation by reference, Reporting and recordkeeping requirements.
This document of the Department of Energy was signed on December 9, 2021, by Kelly J. Speakes-Backman, Principal Deputy 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
For the reasons stated in the preamble, DOE is proposing to amend parts 429, 430, and 431 of Chapter II of Title 10, Code of Federal Regulations, as set forth below:
42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.
(g) * * *
(3)
(i) For an untested basic model, the represented value of the maximum GPM and the uniform energy factor is the same as that of a tested basic model, provided that the untested basic model's input is rated at or above the input rating for the corresponding tested basic model.
(ii) For an untested basic model having any input rating that is lower than that of the corresponding tested basic model, the represented value of the maximum GPM and the uniform energy factor is the same as that of a tested basic model, provided that the maximum GPM for the untested basic model results in the same draw pattern specified in Table II of appendix E for the 24-hour simulated-use test as was applied to the tested basic model. To establish whether this condition is met, determine the maximum GPM for the tested and the untested basic models in accordance with the procedure described in section 5.3.2 of 10 CFR part 430, subpart B, appendix E, then compare the appropriate draw pattern specified in Table II of appendix E for the maximum GPM of the tested basic model with that for the untested basic model. If this condition is not met, then the untested basic model must be tested and the appropriate sampling provisions applied to determine its uniform energy factor in accordance with appendix E and this part.
(d) * * *
(3)
(i) If the certified rated input is found to be valid, then the certified rated input will be used to determine compliance with the associated energy conservation standard.
(ii) If the measured fuel input rate is not within ±2 percent of the certified rated input, the measured fuel input rate will be used to determine compliance with the associated energy conservation standard.
(iii) If the measured fuel input rate for oil-fired water heating products is not within ±2 percent of the certified rated input, the measured fuel input rate will be used to determine compliance with the associated energy conservation standard.
42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
The revisions and additions read as follows:
(g) * * *
(5) ASHRAE 41.1-1986 (Reaffirmed 2006), Standard Method for Temperature Measurement, approved February 18, 1987, IBR approved for appendix AA to subpart B.
(8) ANSI/ASHRAE Standard 41.1-2020, (“ANSI/ASHRAE 41.1-2020”), Standard Method for Temperature Measurement, ANSI approved June 30, 2020, IBR approved for appendix E to subpart B.
(12) ANSI/ASHRAE Standard 41.6-2014, (“ASHRAE 41.6-2014”), Standard Method for Humidity Measurement, ANSI approved July 3, 2014, IBR approved for appendices E and F to subpart B.
(19) ANSI/ASHRAE Standard 118.2-[
(j) * * *
(1) ASTM D2156-09, (“ASTM D2156”), Standard Test Method for Smoke Density in Flue Gases from Burning Distillate Fuels, ASTM approved December 1, 2009, IBR approved for appendix O to subpart B.
(3) ASTM D2156-09 (Reapproved 2018), (“ASTM D2156 (RA 2018)”), Standard Test Method for Smoke Density in Flue Gases from Burning Distillate Fuels, ASTM approved October 1, 2018, IBR approved for appendix E to subpart B.
(4) ASTM E97-1987 (Withdrawn 1991) (“ASTM E97-1987 (W1991)”), Standard Test Methods for Directional Reflectance Factor, 45-Deg 0-Deg, of Opaque Specimens by Broad-Band Filter Reflectometry, approved January 1987, IBR approved for appendix E to subpart B.
On and after [
DOE incorporated by reference in § 430.3 the entire standard for: ANSI/ASHRAE 41.1-2020; ASHRAE 41.6-2014; [
(1) [
(i) Annex B—Gas Heating Value Correction Factor;
(ii) Reserved.
1.1.
1.2.
1.3.
1.4.
1.5.
1.6.
1.7.
1.8.
1.9.
1.10.
1.11.
1.12.
1.13.
1.14.
1.15.
1.16.
1.17.
2.1
2.2
2.2.1
2.2.2
When testing a split-system heat pump water heater or heat pump water heater requiring a storage tank, the heat pump portion of the system shall be tested at the conditions within this section and the separate water heater or unfired hot water storage tank shall be tested at either the conditions within this section or the conditions specified in section 2.2.1 of this appendix.
2.3
2.4
2.5
2.6
2.7
2.7.1
2.7.2
2.7.3
2.7.4
3.1
3.2
3.2.1
3.2.2
3.2.3
3.2.4
(a) A thermopile
(b) Calibrated resistance thermometers
(c) Precision thermometers
(d) Calibrated thermistors
(e) Calibrated thermocouples
(f) Quartz thermometers
3.2.5
3.2.6
3.3
3.4
3.5
3.6
3.7
3.8
3.9
3.10
4.1
4.2
4.3
All dimensions noted in Figures 1 through 7 of section 6.4.7 of this appendix must be achieved. All piping between the water heater and inlet and outlet temperature sensors, noted as T
At the discretion of the test lab, the mass or water delivered may be measured on either the inlet or outlet of the water heater.
For water heaters designed to be used with a mixing valve and that do not have a self-contained mixing valve, a mixing valve shall be installed according to the water heater and/or mixing valve manufacturer's installation instructions. If permitted by the water heater and mixing valve manufacturer's instructions, the mixing valve and cold water junction may be installed where the elbows are located in the outlet and inlet line, respectively. If there are no installation instructions for the mixing valve in the water heater or mixing valve manufacturer's instructions, then the mixing valve shall be installed on the outlet line and the cold water shall be supplied from the inlet line from a junction installed downstream from the location where the inlet water temperature is measured. The outlet water temperature, water flow rate, and/or mass measuring instrumentation, if installed on the outlet side of the water heater, shall be installed downstream from the mixing valve.
4.4
4.5
(a) The anodic device opening;
(b) The relief valve opening; or
(c) The hot water outlet.
If installed through the relief valve opening or the hot water outlet, a tee fitting or outlet piping, as applicable, must be installed as close as possible to its original location. If the relief valve temperature sensor is relocated, and it no longer extends into the top of the tank, install a substitute relief valve that has a sensing element that can reach into the tank. If the hot water outlet includes a heat trap, install the heat trap on top of the tee fitting. Cover any added fittings with thermal insulation having an R value between 4 and 8 h·ft
4.6
4.7
4.8
4.9
4.9.1
4.9.2
4.10
4.11
5.1
5.2
5.2.1
5.2.2
5.2.2.1
5.2.2.2
5.2.2.2.1
5.2.2.2.1.1
5.2.2.2.1.2
5.2.2.2.2
(a) At least 50 percent of the water drawn during the first draw of the first-hour rating test procedure shall be delivered at a temperature within the range specified in section 2.4 of this appendix.
(b) No water is delivered above the range specified in section 2.4 of this appendix during first-hour rating test.
(c) The delivery temperature measured 15 seconds after commencement of each draw begun prior to an elapsed time of 60 minutes from the start of the test shall be within the range specified in section 2.4 of this appendix.
(i) If these conditions are not met, turn off the water heater, adjust the temperature controllers, and then drain and refill the tank with supply water at the temperature specified in section 2.3 of this appendix. Repeat the procedure described at the start of section 5.2.2.2.2 of this appendix until the criteria for setting the temperature controllers is met.
(ii) If the conditions stated above are met, the data obtained during the process of verifying the temperature control set-points may be used in determining the first-hour rating provided that all other conditions and methods required in sections 2 and 5.2.4 of this appendix in preparing the water heater were followed.
5.2.3
5.2.4
5.3
5.3.1
5.3.2
For this 10-minute test, either collect the withdrawn water for later measurement of the total mass removed or use a water meter to directly measure the water mass of volume removed. Initiate water flow through the water heater and record the inlet and outlet water temperatures beginning 15 seconds after the start of the test and at subsequent 5-second intervals throughout the duration of the test. At the end of 10 minutes, turn off the water. Determine and record the mass of water collected, M
5.3.3
5.3.3.1
5.3.3.2
5.3.3.3
(a) Initiate a draw after a maximum mean tank temperature (the maximum of the mean temperatures of the individual sensors) has been observed following a cut-out. If the water heater cannot have its internal tank temperatures measured, wait 5 minutes after cut-out. Record the time when the draw is initiated and designate it as an elapsed time of zero (τ* = 0). (The superscript * is used to denote variables pertaining to the first-hour rating test). Record the outlet water temperature beginning 15 seconds after the draw is initiated and at 5-second intervals thereafter until the draw is terminated. Determine the maximum outlet temperature that occurs during this first draw and record it as T*
(b) Initiate a second and, if applicable, successive draw(s) each time the applicable draw initiation criteria described in section 5.3.3.2 of this appendix are satisfied. As required for the first draw, record the outlet water temperature 15 seconds after initiating each draw and at 5-second intervals thereafter until the draw is terminated. Determine the maximum outlet temperature that occurs during each draw and record it as T*
(c) If a draw is occurring at one hour from the start of the test, continue this draw until the outlet temperature decreases to T*
5.4
5.4.1
The draw patterns are provided in Tables III.1 through III.4 in section 5.5 of this appendix. Use the appropriate draw pattern when conducting the test sequence provided in section 5.4.2 of this appendix for water heaters with rated storage volumes greater than or equal to 2 gallons or section 5.4.3 of this appendix for water heaters with rated storage volumes less than 2 gallons.
5.4.2
If the water heater is turned off, fill the water heater with supply water at the temperature specified in section 2.3 of this appendix and maintain supply water pressure as described in section 2.6 of this appendix. Turn on the water heater and associated heat pump unit, if present. If turned on in this fashion, the soak-in period described in section 5.2.4 of this appendix shall be implemented. If the water heater has undergone a first-hour rating test prior to conduct of the 24-hour simulated-use test, allow the water heater to fully recover after completion of that test such that the main burner, heating elements, or heat pump compressor of the water heater are no longer raising the temperature of the stored water. In all cases, the water heater shall sit idle for 1 hour prior to the start of the 24-hour test; during which time no water is drawn from the unit and there is no energy input to the main heating elements, heat pump compressor, and/or burners. At the end of this period, the 24-hour simulated-use test will begin.
For water heaters that can have their internal storage tank temperature measured, one minute prior to the start of the 24-hour test simulated-use test, record the mean tank temperature (
At the start of the 24-hour simulated-use test, record the electrical and/or fuel measurement readings, as appropriate. Begin the 24-hour simulated-use test by withdrawing the volume specified in the appropriate table in section 5.5 of this appendix (
All draws during the 24-hour simulated-use test shall be made at the flow rates specified in the applicable draw pattern table in section 5.5 of this appendix, within a tolerance of ±0.25 gallons per minute (±0.9 liters per minute). Measurements of the inlet and outlet temperatures shall be made 15 seconds after the draw is initiated and at every subsequent 3-second interval throughout the duration of each draw. Calculate and record the mean of the hot water discharge temperature and the cold water inlet temperature for each draw
The first recovery period is the time from the start of the 24-hour simulated-use test and continues during the temperature rise of the stored water until the first cut-out; if the cut-out occurs during a subsequent draw, the first recovery period includes the time until the draw of water from the tank stops. If, after the first cut-out occurs but during a subsequent draw, a subsequent cut-in occurs prior to the draw completion, the first recovery period includes the time until the subsequent cut-out occurs, prior to another draw. The first recovery period may continue until a cut-out occurs when water is not being removed from the water heater or a cut-out occurs during a draw and the water heater does not cut-in prior to the end of the draw.
At the end of the first recovery period, record the maximum mean tank temperature observed after cut-out (
The start of the portion of the test during which the standby loss coefficient is determined depends upon whether the unit has fully recovered from the first draw cluster. For water heaters than can have their internal storage tank temperatures measured, if a recovery is occurring at or within five minutes after the end of the final draw in the first draw cluster, as identified in the applicable draw pattern table in section 5.5 of this appendix, then the standby period starts when a maximum mean tank temperature is observed starting five minutes after the end of the recovery period that follows that draw. If a recovery does not occur at or within five minutes after the end of the final draw in the first draw cluster, as identified in the applicable draw pattern table in section 5.5 of this appendix, then the standby period starts five minutes after the end of that draw. For water heaters that cannot have their internal storage tank temperatures measured, the start of the standby period is at the final measurement of
In preparation for determining the energy consumed during standby, record the reading given on the electrical energy (watt-hour) meter, the gas meter, and/or the scale used to determine oil consumption, as appropriate. Record the mean tank temperature at the start of the standby period (
Following the final draw of the prescribed draw pattern and subsequent recovery, allow the water heater to remain in the standby mode until exactly 24 hours have elapsed since the start of the 24-hour simulated-use test (
In the event that the recovery period continues from the end of the last draw of the first draw cluster until the subsequent draw, the standby period will start after the end of the first recovery period after the last draw of the 24-hour simulated-use test, when the temperature reaches the maximum mean tank temperature, though no sooner than five minutes after the end of this recovery period. The standby period shall last eight hours, so testing may extend beyond the 24-hour duration of the 24-hour simulated-use test. Determine and record the total electrical energy and/or fossil fuel consumed from the beginning of the 24-hour simulated-use test to the start of the 8-hour standby period (Q
If the standby period occurred at the end of the first recovery period after the last draw of the 24-hour simulated-use test, allow the water heater to remain in the standby mode until exactly 24 hours have elapsed since the start of the 24-hour simulated-use test (
Record the time during which water is not being withdrawn from the water heater during the entire 24-hour period (τ
5.4.3
Establish normal operation with the discharge water temperature at 125 °F ±5 °F (51.7 °C ±2.8 °C) and set the flow rate as determined in section 5.2 of this appendix. Prior to commencement of the 24-hour simulated-use test, the unit shall remain in an idle state in which controls are active but no water is drawn through the unit for a period of one hour. With no draw occurring, record the reading given by the gas meter and/or the electrical energy meter as appropriate. Begin the 24-hour simulated-use test by withdrawing the volume specified in Tables III.1 through III.4 of section 5.5 of this appendix for the first draw at the flow rate specified. Record the time when this first draw is initiated and designate it as an elapsed time, τ, of 0. At the elapsed times specified in Tables III.1 through III.4 for a particular draw pattern, initiate additional draws, removing the volume of hot water at the prescribed flow rate specified in Tables III.1 through III.4. The maximum allowable deviation from the specified volume of water removed for any single draw taken at a nominal flow rate less than or equal to 1.7 GPM (6.4 L/min) is ±0.1 gallons (±0.4 liters). The maximum allowable deviation from the specified volume of water removed for any single draw taken at a nominal flow rate of 3 GPM (11.4 L/min) is ±0.25 gallons (0.9 liters). The quantity of water drawn during the final draw shall be increased or decreased as necessary such that the total volume of water withdrawn equals the prescribed daily amount for that draw pattern ±1.0 gallon (±3.8 liters). If this adjustment to the volume drawn in the last draw results in no draw taking place, the test is considered invalid.
All draws during the 24-hour simulated-use test shall be made at the flow rates specified in the applicable draw pattern table in section 5.5 of this appendix, within a tolerance of ±0.25 gallons per minute (±0.9 liters per minute). Measurements of the inlet and outlet water temperatures shall be made 15 seconds after the draw is initiated and at every 3-second interval thereafter throughout the duration of the draw. Calculate the mean of the hot water discharge temperature and the cold water inlet temperature for each draw. Record the mass of the withdrawn water or the water meter reading, as appropriate, after each draw. At the end of the first recovery period following the first draw, determine and record the fossil fuel and/or electrical energy consumed, Q
5.5
The draw patterns to be imposed during 24-hour simulated-use tests are provided in Tables III.1 through III.4. Subject each water heater under test to one of these draw patterns based on its first-hour rating or maximum GPM rating, as discussed in section 5.4.1 of this appendix. Each draw pattern specifies the elapsed time in hours and minutes during the 24-hour test when a draw is to commence, the total volume of
6.1
For the case in which a draw is not in progress at one hour from the start of the test and a final draw is imposed at the elapsed time of one hour, the first-hour rating shall be calculated using,
6.2
or, if the volume of water entering the water heater is measured,
or, if the mass of water entering the water heater is measured,
6.3
6.3.1
6.3.2
If the mass of water removed is measured, use the measured value, or, if the volume of water removed is being measured,
or, if the volume of water entering the water heater is measured,
or, if the mass of water entering the water heater is measured,
6.3.3
The recovery efficiency for electric water heaters with immersed heating elements, not including heat pump water heaters with immersed heating elements, is assumed to be 98 percent.
6.3.4
The hourly standby energy losses are computed as:
The standby heat loss coefficient for the tank is computed as:
6.3.5
The daily water heating energy consumption, Q
6.3.6
or,
A modification is also needed to take into account that the temperature difference between the outlet water temperature and supply water temperature may not be equivalent to the nominal value of 67 °F (125 °F-58 °F) or 37.3 °C (51.7 °C-14.4 °C). The following equations adjust the experimental data to a nominal 67 °F (37.3 °C) temperature rise.
The energy used to heat water, Btu/day (kJ/day), may be computed as:
The energy required to heat the same quantity of water over a 67 °F (37.3 °C) temperature rise, Btu/day (kJ/day), is:
The difference between these two values is:
or,
This difference (Q
6.3.7
6.3.8
6.3.9
Where:
6.3.10
6.4
6.4.1
Calculate the mass of water removed using the calculations in section 6.3.2 of this appendix.
6.4.2
6.4.3
A modification is needed to take into account that the temperature difference between the outlet water temperature and supply water temperature may not be equivalent to the nominal value of 67 °F (125 °F-58 °F) or 37.3 °C (51.7 °C-14.4 °C). The following equations adjust the experimental data to a nominal 67 °F (37.3 °C) temperature rise.
The energy used to heat water may be computed as:
The energy required to heat the same quantity of water over a 67 °F (37.3 °C) temperature rise is:
The difference between these two values is:
or,
This difference (Q
6.4.4
6.4.5
6.4.6
6.4.7
42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.
Environmental Protection Agency (EPA).
Proposed rule.
This proposal presents the results of the U.S. Environmental Protection Agency's (EPA's) residual risk and technology review (RTR) for the National Emission Standards for Hazardous Air Pollutants (NESHAP) for major source Primary Copper Smelters as required under the Clean Air Act (CAA). Pursuant to the CAA, this action also presents the results of the technology review for the Primary Copper Smelting area source NESHAP. The EPA is proposing new emissions standards in the major source NESHAP. The EPA is also proposing to remove exemptions for periods of startup, shutdown, and malfunction (SSM) and specify that the emission standards apply at all times and require electronic reporting of performance test results and notification of compliance reports.
You may send comments, identified by Docket ID No. EPA-HQ-OAR-2020-0430, by any of the following methods:
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For questions about this proposed action, contact Tonisha Dawson, Sector Policies and Programs Division (D243-02), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-1454; fax number: (919) 541-4991; and email address:
Based on the results of the risk review, the EPA is proposing that risks from emissions of air toxics from this major source category are unacceptable. The EPA also completed a demographic analysis which indicates that elevated cancer risks associated with emissions from the major source category disproportionately affect communities with environmental justice concerns, including low-income residents, Native Americans, and Hispanics living near these facilities. To address these risks, the EPA is proposing new emissions standards in the major source NESHAP, which will reduce risks to an acceptable level, and is also proposing work practice standards to provide an ample margin of safety to protect public health.
The EPA is also proposing new emissions standards for the major source NESHAP to address currently unregulated emissions of hazardous air pollutants (HAP), as follows: Particulate matter (PM), as a surrogate for particulate HAP metals, for anode refining furnace point source emissions; and PM for roofline emissions from anode refining furnaces, smelting furnaces, and converters. EPA is also proposing new emission standards for mercury emissions from any combination of stacks from dryers, converters, anode refining furnaces, and smelting furnaces. The EPA is proposing test methods for roofline PM emissions and amending the test methods to incorporate by reference three voluntary consensus standards (VCS).
Under the technology review, the EPA identified no developments in practices, processes, or control technologies to achieve further emissions reductions beyond the controls and reductions proposed under the risk review for major sources. With regard to primary copper smelting area sources, the Agency did not identify any developments in practices, processes, or control technologies.
The EPA is also proposing to remove exemptions for periods of startup, shutdown, and malfunction (SSM) and specify that the emission standards apply at all times and require electronic reporting of performance test results and notification of compliance reports. Implementation of these proposed rules is expected to reduce HAP metal emissions from primary copper
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The source categories that are the subject of this proposal are Primary Copper Smelting Major Sources regulated under 40 CFR part 63, subpart QQQ, and Primary Copper Smelting Area Sources, regulated under 40 CFR part 63, subpart EEEEEE. The North American Industry Classification System (NAICS) code for the primary copper smelting industry is 331410. This list of categories and NAICS codes is not intended to be exhaustive, but rather provides a guide for readers regarding the entities that this proposed action is likely to affect. The proposed standards, once promulgated, will be directly applicable to the affected sources. State, local, and tribal governments would not be directly affected by this proposed action. As defined in the
In addition to being available in the docket, an electronic copy of this action is available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this proposed action at
The proposed changes to the CFR that would be necessary to incorporate the changes proposed in this action are presented in attachments to the two memoranda titled:
The statutory authority for this action is provided by sections 112 and 301 of the CAA, as amended (42 U.S.C. 7401
In the first stage of the CAA section 112 standard setting process, the EPA promulgates technology-based standards under CAA section 112(d) for categories of sources identified as emitting one or more of the HAP listed in CAA section 112(b). Sources of HAP emissions are either major sources or area sources, and CAA section 112 establishes different requirements for major source standards and area source standards. “Major sources” are those that emit or have the potential to emit 10 tons per year (tpy) or more of a single HAP or 25 tpy or more of any combination of HAP. All other sources are “area sources.” For major sources, CAA section 112(d)(2) provides that the technology-based NESHAP must reflect the maximum degree of emission reductions of HAP achievable (after considering cost, energy requirements, and non-air quality health and environmental impacts). These standards are commonly referred to as MACT standards. CAA section 112(d)(3) also establishes a minimum control level for MACT standards, known as the MACT “floor.” In certain instances, as provided in CAA section 112(h), the EPA may set work practice standards in lieu of numerical emission standards. The EPA must also consider control options that are more stringent than the floor. Standards more stringent than the floor are commonly referred to as beyond-the-floor (BTF) standards. For area sources, CAA section 112(d)(5) gives the EPA discretion to set standards based on generally available control technologies or management practices (GACT standards) in lieu of MACT standards.
The second stage in standard-setting focuses on identifying and addressing any remaining (
The approach incorporated into the CAA and used by the EPA to evaluate residual risk and to develop standards under CAA section 112(f)(2) is a two-step approach. In the first step, the EPA determines whether risks are acceptable. This determination “considers all health information, including risk estimation uncertainty, and includes a presumptive limit on maximum individual lifetime [cancer] risk (MIR)
CAA section 112(d)(6) separately requires the EPA to review standards promulgated under CAA section 112 and revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less often than every 8 years. While conducting the technology review, the EPA is not required to recalculate the MACT floor.
The primary copper smelting source category includes any facility that uses a pyrometallurgical process to produce anode copper from copper ore concentrates. Primary copper smelting begins with copper mines supplying the ore concentrate (typically 30 percent copper). In most cases, the moisture is reduced from the ore concentrate in dryers, and then fed through a smelting furnace where it is melted and reacts to produce copper matte. One existing smelter is able to feed its copper concentrate directly to the smelting furnace without prior drying. Copper matte is a molten solution of copper sulfide mixed with iron sulfide and is about 60 percent copper. The solution is further refined using converters to make blister copper, which is approximately 98 percent copper. Converters use oxidation to remove sulfide as sulfur dioxide (SO
The processing units of interest at primary copper smelters, because of their potential to generate HAP emissions, are the following: Dryers, smelting furnaces, copper converters, anode refining furnaces, and, if present, copper holding vessels, slag cleaning vessels, and matte drying and grinding plants. In addition, fugitive emissions are sources of HAP at primary copper smelters. The transfer of matte, converter slag, and blister copper is the primary source of fugitive emissions.
There are three primary copper smelting facilities in the U.S. that are subject to the NESHAPs in this review. Two of the facilities (Asarco and Freeport—both located in Arizona) are major sources of HAP emissions and are subject to subpart QQQ, the major source NESHAP; the third facility (Kennecott—located in Utah) is an area source and subject to subpart EEEEEE, the area source NESHAP.
Two of the facilities (Asarco and Kennecott) use flash smelting furnaces (the INCO smelting furnace and the Outotec®, respectively). Flash smelting furnaces consist of blowing fine, dried copper sulfide concentrate and silica flux with air, oxygen-enriched air or oxygen into a hot hearth-type furnace. The sulfide minerals in the concentrate react with oxygen resulting in oxidation of the iron and sulfur, which produces heat and therefore melting of the solids. The molten matte and slag are removed separately from the furnace as they accumulate, and at the facility using the INCO furnace, the matte is transferred via ladles to the copper converters. The Freeport facility uses an ISA smelting furnace. The ISA smelt® process involves dropping wet feed through a feed port, such that dryers are not needed. A mixture of air, oxygen, and natural gas is blown through a vertical lance in the center of the furnace, generating heat and melting the feed. The molten metal is then tapped from the bottom and sent to an electric furnace to separate the matte from slag. The slag is removed from the electric furnace through tapholes and is transferred to slag pots via ladles. The matte is also removed from the electric furnace through tapholes and transferred to the converter via ladles.
At the area source primary copper smelter, molten copper matte tapped from the Outotec® smelting furnace is not transferred as molten material directly to the converting vessel as is performed at the two major source smelters. Instead, the matte is first quenched with water to form solid granules of copper matte. These matte granules are then ground to a finer texture and fed to the flash converting furnace for the continuous converting of copper. The continuous copper converter differs significantly in design and operation from the cylindrical batch converters operated at the other U.S. smelters. Because there are no transfers of molten material between the smelting furnace and the continuous copper converter, this technology has inherently lower potential HAP emissions than a smelter using batch copper converting technology.
Molten blister copper is transferred from the converting vessel to an anode furnace for refining to further remove residual impurities and oxygen. The blister copper is reduced in the anode refining furnace to remove oxygen, typically by injecting natural gas and steam to produce a high purity copper. The molten copper from the anode refining furnace is poured into molds to produce solid copper ingots called anodes. The anode copper is sent to a copper refinery, either on-site or at another location, where it is further purified using an electrolytic process to obtain the high purity copper that is sold as a product. The copper refinery is not part of the primary copper smelting source category.
The current NESHAP for major sources (40 CFR part 63, subpart QQQ) was proposed on April 20, 1998 (63 FR 19582), with a supplement to the proposed rule published on June 26, 2000 (65 FR 39326). The final rule, promulgated on June 12, 2002 (67 FR 40478), established PM standards as a surrogate for HAP metals for copper concentrate dryers, smelting furnaces, slag cleaning vessels, and existing converters. The major source NESHAP applies to major sources that use batch copper converters. Regarding new sources, the NESHAP prohibits batch converters for new sources, which indirectly means that any new source would need to have continuous converters, similar to the area source (Kennecott), or another technology. The converter building is subject to an opacity limit that only applies during performance testing. A fugitive dust plan is required to minimize fugitive dust emissions. Subpart QQQ also establishes requirements to demonstrate initial and continuous compliance with all applicable emission limitations, work practice standards, and operation and maintenance requirements. Annual performance testing is required to demonstrate compliance.
The NESHAP for area sources (40 CFR part 63, subpart EEEEEE) establishes GACT standards for primary copper smelting area sources and was proposed on October 6, 2006 (71 FR 59302), and finalized on January 23, 2007 (72 FR 2930). Technical corrections were then published on July 3, 2007, via direct final rule (72 FR 36363). The affected sources (
For the Primary Copper Smelting source category, the EPA used the best available data. Initially, emissions and supporting data from the 2017 National Emissions Inventory (NEI) were gathered to develop the initial draft model input file for the residual risk assessments for major source primary copper smelters. The NEI is a database that contains information about sources that emit criteria air pollutants, their precursors, and HAP. The database includes estimates of annual air pollutant emission from point, nonpoint, and mobile sources in the 50 states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands. The EPA collects this information and releases an updated version of the NEI database every 3 years. The NEI includes data necessary for conducting risk modeling, including annual HAP emissions estimates from individual emission sources at facilities and the related emissions release parameters.
The Arizona Department of Environmental Quality (ADEQ) provided 2018 emissions test data for both major source primary copper smelters located in that state, which allowed the EPA to use more current metal HAP emissions data than what was available in the 2017 NEI in some cases. The data from ADEQ and the NEI were used to develop an initial draft risk model input file. This initial draft model file was posted to the EPA's Primary Copper website on February 26, 2020, and stakeholders were provided an opportunity to voluntarily review and provide input regarding the sources of emissions and release parameters that were reported in the NEI. The Asarco and Freeport facilities provided input, and the modeling file was finalized. The data include multiple emissions test reports for PM and HAP metals for point source emissions from both facilities and seven test reports for emissions tests conducted in 2018, 2019 and 2020 for process fugitive emissions for anode refining, smelting furnaces and converters at Freeport. However, we have no test data for Asarco process fugitive emissions. The process fugitive emissions estimates for Asarco are based on emissions factors and process information. Therefore, we have higher confidence and less uncertainty with our emissions estimates for Freeport as compared to Asarco. We made an adjustment to the lead emissions estimates from the anode refining roofline at Freeport by applying a weighting factor to one of the 2018 test results. This factor is based on information in the document titled:
The EPA used multiple sources of information to support this proposed action. Before developing the final list of affected facilities described in section II.B of this preamble, the EPA's Enforcement and Compliance History Online (ECHO) database was used as a tool to identify potentially affected facilities with primary copper smelting operations that are subject to the NESHAPs. The ECHO database provides integrated compliance and enforcement information for approximately 800,000 regulated facilities nationwide. The EPA also reviewed the compliance history on the ADEQ website, active consent decrees, and consent orders to verify that the facilities were accurately classified as major sources.
During the technology review, the EPA examined information in the Reasonably Available Control Technology (RACT)/Best Available Control Technology (BACT)/Lowest Achievable Emission Rate (LAER) Clearinghouse (RBLC) to identify technologies in use and determine whether there have been relevant developments in practices, processes, or control technologies. The RBLC is a database that contains case specific information on air pollution technologies that have been required to reduce the emissions of air pollutants from stationary sources. Under the EPA's New Source Review (NSR) program, if a facility is planning new construction or a modification that will significantly increase air emissions, an NSR permit must be obtained. This central database promotes the sharing of information among permitting agencies and aids in case-by-case determinations for NSR permits. The EPA also reviewed subsequent air toxics regulatory actions for other source categories and
In this section, the Agency describes the analyses performed to support the proposed decisions for the RTR and other issues addressed in this proposal. In this proposed action, pursuant to CAA section 112(f), the EPA conducted a risk review for the major sources in the primary copper smelting source category. Consistent with CAA section 112(f)(5), the risk review did not cover the area source category. Therefore, the discussions of risk assessment procedures described in the following paragraphs apply only to the major source category. However, pursuant to CAA section 112(d)(6), the EPA conducted a technology review for the NESHAPs covering both the major source category and the area source category (40 CFR part 63, subpart EEEEEE). Therefore, the following discussions of the technology reviews apply to both major sources and area sources.
As discussed in section II.A of this preamble and in the Benzene NESHAP, in evaluating and developing standards under CAA section 112(f)(2), the Agency applies a two-step approach to determine whether or not risks are acceptable and to determine if the standards provide an ample margin of safety to protect public health. As explained in the Benzene NESHAP, “the first step judgment on acceptability cannot be reduced to any single factor” and, thus, “[t]he Administrator believes that the acceptability of risk under section 112 is best judged on the basis of a broad set of health risk measures and information.” (54 FR at 38046). Similarly, with regard to the ample margin of safety determination, “the Agency again considers all of the health risk and other health information considered in the first step. Beyond that information, additional factors relating to the appropriate level of control will also be considered, including cost and economic impacts of controls, technological feasibility, uncertainties, and any other relevant factors.”
The Benzene NESHAP approach provides flexibility regarding factors the EPA may consider in making determinations and how the EPA may weigh those factors for each source category. The EPA conducts a risk assessment that provides estimates of the MIR posed by emissions of HAP that are carcinogens from each source in the source category, the hazard index (HI) for chronic exposures to HAP with the potential to cause noncancer health effects, and the hazard quotient (HQ) for acute exposures to HAP with the potential to cause noncancer health effects.
The policy chosen by the Administrator permits consideration of multiple measures of health risk. Not only can the MIR figure be considered, but also incidence, the presence of noncancer health effects, and the uncertainties of the risk estimates. In this way, the effect on the most exposed individuals can be reviewed as well as the impact on the general public. These factors can then be weighed in each individual case. This approach complies with the
The EPA notes that it has not considered certain health information to date in making residual risk determinations. At this time, the Agency does not attempt to quantify the HAP risk that may be associated with emissions from other facilities that do not include the source category under review, mobile source emissions, natural source emissions, persistent environmental pollution, or atmospheric transformation in the vicinity of the sources in the category.
The EPA understands the potential importance of considering an individual's total exposure to HAP in addition to considering exposure to HAP emissions from the source category and facility. The Agency recognizes that such consideration may be particularly important when assessing noncancer risk, where pollutant-specific exposure health reference levels (
In response to the SAB recommendations, the EPA incorporates cumulative risk analyses into its RTR risk assessments. The Agency (1) conducts facility-wide assessments, which include source category emission points, as well as other emission points within the facilities; (2) combines exposures from multiple sources in the same category that could affect the same individuals; and (3) for some persistent and bioaccumulative pollutants, analyzes the ingestion route of exposure. In addition, the RTR risk assessments consider aggregate cancer risk from all carcinogens and aggregated noncancer HQs for all noncarcinogens affecting the same target organ or target organ system.
Although the EPA is interested in placing source category and facility-wide HAP risk in the context of total HAP risk from all sources combined in the vicinity of each source, the EPA is also concerned about the uncertainties of doing so. Estimates of total HAP risk from emission sources other than those that the Agency has studied in depth during this RTR review would have significantly greater associated uncertainties than the source category or facility-wide estimates. Such aggregate or cumulative assessments would compound those uncertainties, making the assessments too unreliable.
Our technology review primarily focuses on the identification and evaluation of developments in practices, processes, and control technologies that have occurred since the MACT standards were promulgated. Where we identify such developments, we analyze their technical feasibility, estimated costs, energy implications, and non-air environmental impacts. The EPA also considers the emission reductions associated with applying each development. This analysis informs our decision of whether it is “necessary” to revise the emissions standards. In addition, the Agency considers the appropriateness of applying controls to new sources versus retrofitting existing sources. For this exercise, the EPA considers any of the following to be a “development”:
• Any add-on control technology or other equipment that was not identified and considered during development of the original MACT standards;
• Any improvements in add-on control technology or other equipment (that were identified and considered during development of the original MACT standards) that could result in additional emissions reduction;
• Any work practice or operational procedure that was not identified or considered during development of the original MACT standards;
• Any process change or pollution prevention alternative that could be broadly applied to the industry and that was not identified or considered during development of the original MACT standards; and
• Any significant changes in the cost (including cost effectiveness) of applying controls (including controls the EPA considered during the development of the original MACT standards).
In addition to reviewing the practices, processes, and control technologies that were considered at the time the EPA originally developed the NESHAP, we review a variety of data sources in our investigation of potential practices, processes, or controls to consider. The EPA also reviews the NESHAP and the available data to determine if there are any unregulated emissions of HAP within the source category, and evaluate the data for use in developing new emission standards. See sections II.C and II.D of this preamble for information on the specific data sources that were reviewed as part of the technology review.
In this section, the EPA provides a complete description of the types of analyses that we generally perform during the risk assessment process. In some cases, the Agency does not perform a specific analysis because it is not relevant. For example, in the absence of emissions of hazardous air pollutants known to be persistent and bioaccumulative in the environment (PB-HAP), the Agency would not perform a multipathway exposure assessment. If an analysis is not performed, the Agency will provide the reason. While we present all of our risk assessment methods, the Agency only presents risk assessment results for the analyses actually conducted (see section IV.B of this preamble).
The EPA conducts a risk assessment that provides estimates of the MIR for cancer posed by the HAP emissions from each source in the source category, the HI for chronic exposures to HAP with the potential to cause noncancer health effects, and the HQ for acute exposures to HAP with the potential to cause noncancer health effects. The assessment also provides estimates of the distribution of cancer risk within the exposed populations, cancer incidence, and an evaluation of the potential for an adverse environmental effect. The eight sections that follow this paragraph describe how the Agency estimated emissions and conducted the risk assessment. The docket for this rulemaking contains the following document which provides more information on the risk assessment inputs and models:
To create the initial modeling input file, the Agency gathered actual HAP emissions data from the 2017 NEI and 2018 emissions estimates provided by ADEQ. The 2019 emissions data for Asarco and Freeport were not available when the initial modeling input file was developed. The Asarco plant's smelting operation was shut down for a significant portion of 2018 due to equipment upgrades. Since the 2019 emissions data for Asarco were not available, the 2017 NEI data were used for the initial modeling input file. The Freeport plant made significant upgrades in 2017, so the 2018 emissions data were used for the initial modeling input file as the best representation of the current plant configuration. The modeling input file was posted on the EPA website on February 26, 2020, for
For each NEI record, the EPA reviewed the standard classification code (SCC) and emission unit and process descriptions, and assigned the record to one of the emission process groups (
If the SCC and emission unit and process descriptions were ambiguous for a specific NEI record, the Agency used the facility air permits and flow diagrams to help us assign the appropriate emission process group. Both facilities have many combined gas streams that vent to a common control system and/or stack. In those cases, there may be multiple emissions sources included in the Emission Process Group Description. For example, at Asarco, the exhaust gases from the two dryers and flash furnace are vented to the same baghouse. The facility has a sampling port at the exhaust of the baghouse to measure emissions during performance testing. The emission sources associated with this example are represented by “Dryers and Flash Furnace” under the Emission Process Group Description.
The EPA did not conduct a risk review pursuant to section 112(f) of the CAA for Kennecott since it is an area source subject to GACT standards (not MACT standards). However, we did obtain emissions estimates and evaluated some information on ambient monitoring data near the facility.
Based on reported 2017 estimates to the NEI, Kennecott emits an estimated 5.6 tpy of lead and 1.6 tpy of arsenic. However, we do not have any HAP metals emissions test data for Kennecott. Therefore, we consider these estimates uncertain and we are soliciting comments, data and additional information regarding these emissions estimates.
With regard to ambient monitoring data, Utah Division of Air Quality (DAQ) conducted lead monitoring at the Magna station near the Kennecott copper smelter from January 2010 through June 2017 (see Figure 18 of the memorandum titled
The available emissions data in the RTR emissions dataset include estimates of the mass of HAP emitted during a specified annual time period. These “actual” emission levels are often lower than the emission levels allowed under the requirements of the current MACT standards. The emissions allowed under the MACT standards are referred to as the “MACT-allowable” emissions. The Agency discussed the consideration of both MACT-allowable and actual emissions in the final Coke Oven Batteries RTR (70 FR 19992, 19998-19999, April 15, 2005) and in the proposed and final Hazardous Organic NESHAP RTR (71 FR 34421, 34428, June 14, 2006, and 71 FR 76603, 76609, December 21, 2006, respectively). In those actions, the Agency noted that assessing the risk at the MACT-allowable level is inherently reasonable since that risk reflects the maximum level facilities could emit and still comply with national emission standards. The EPA also explained that it is reasonable to consider actual emissions, where such data are available, in both steps of the risk analysis, in accordance with the Benzene NESHAP approach. (54 FR 38044.)
The current Primary Copper Smelting NESHAP specifies numerical emission standards for each copper concentrate dryer, smelting vessel, and slag cleaning vessel. Consequently, the MACT-allowable emissions for each of these emission sources are assumed to be equal to the numerical emission standard. The NESHAP specifies work practice standards for fugitive dust sources. Therefore, the Agency believes that the actual fugitive dust sources emission levels are a reasonable estimation of the MACT-allowable emissions levels. The current NESHAP does not include standards for anode refining departments, anode refining rooflines, converter rooflines and smelting furnace rooflines. However, the EPA has determined that these sources are part of the source category and plans to propose MACT standards with this RTR. The MACT-allowable emissions for our baseline risk assessment for the anode refining departments, anode refining rooflines, converter rooflines and smelting furnace rooflines are assumed to be equal to the actual emissions, which are the estimated emissions prior to implementation of the proposed MACT standards.
For further details on the assumptions and methodologies used to estimate MACT-allowable emissions, see Appendix X of the document titled
Both long-term and short-term inhalation exposure concentrations and health risk from the source category addressed in this proposal were estimated using the Human Exposure Model, Version 1.5.5(HEM-4).
The air dispersion model AERMOD, used by the HEM-4 model, is one of the EPA's preferred models for assessing air pollutant concentrations from industrial facilities.
In developing the risk assessment for chronic exposures, the EPA uses the estimated annual average ambient air concentrations of each HAP emitted by each source in the source category. The HAP air concentrations at each nearby census block centroid located within 50 km of the facility are a surrogate for the chronic inhalation exposure concentration for all the people who reside in that census block. A distance of 50 km is consistent with both the analysis supporting the 1989 Benzene NESHAP (54 FR 38044) and the limitations of Gaussian dispersion models, including AERMOD.
For each facility, the Agency calculates the MIR as the cancer risk associated with a continuous lifetime (24 hours per day, 7 days per week, 52 weeks per year, 70 years) exposure to the maximum concentration at the centroid of each inhabited census block. The EPA calculates individual cancer risk by multiplying the estimated lifetime exposure to the ambient concentration of each HAP (in micrograms per cubic meter (μg/m
Arsenic emissions from this source category are driving cancer risks. Inhalation cancer risks are based on an association between cumulative arsenic exposure and an increase in lung cancer mortality in two distinct smelter worker populations.
Arsenic is also evaluated for multipathway risks as a PB-HAP based upon conservative food ingestions rates (
To estimate individual lifetime cancer risks associated with exposure to HAP emissions from each facility in the source category, the Agency sums the risks for each of the carcinogenic HAP
To assess the risk of noncancer health effects from chronic exposure to HAP, we calculate either an HQ or a target organ-specific hazard index (TOSHI). We calculate an HQ when a single noncancer HAP is emitted. Where more than one noncancer HAP is emitted, we sum the HQ for each of the HAP that affects a common target organ or target organ system to obtain a TOSHI. The HQ is the estimated exposure divided by the chronic noncancer dose-response value, which is a value selected from one of several sources. The preferred chronic noncancer dose-response value is the EPA RfC, defined as “an estimate (with uncertainty spanning perhaps an order of magnitude) of a continuous inhalation exposure to the human population (including sensitive subgroups) that is likely to be without an appreciable risk of deleterious effects during a lifetime” (
This assessment identified emissions of arsenic and lead as a chronic noncancer hazard concern for children. Both pollutants impact brain development. The chronic, noncancer health effect benchmark for arsenic exposure is based on a decrease in intellectual function and adverse effects on neurobehavioral development in 10-yr-old children exposed through drinking water from birth.
For lead, the NAAQS of 0.15 µg/m
A review of the health effect benchmarks for arsenic and lead determined that, although the target organ is the same for these two pollutants, a TOSHI should not be calculated based upon the difference in exposure duration for the two benchmarks. The chronic REL for arsenic is an airborne concentration of inorganic arsenic at or below which no adverse noncancer health effects are anticipated in individuals indefinitely exposed to that concentration, while the lead standard is applied to a maximum 3-month rolling average of monitored lead concentrations.
For each HAP for which appropriate acute inhalation dose-response values are available, the EPA also assesses the potential health risks due to acute exposure. For these assessments, the EPA makes conservative assumptions about emission rates, meteorology, and exposure location. As part of our efforts to continually improve our methodologies to evaluate the risks that HAP emitted from categories of industrial sources pose to human health and the environment,
To assess the potential acute risk to the maximally exposed individual, we use the peak hourly emission rate for each emission point,
To characterize the potential health risks associated with estimated acute inhalation exposures to a HAP, we generally use multiple acute dose-response values, including acute RELs, acute exposure guideline levels (AEGLs), and emergency response planning guidelines (ERPG) for 1-hour exposure durations, if available, to calculate acute HQs. The acute HQ is calculated by dividing the estimated acute exposure concentration by the acute dose-response value. For each HAP for which acute dose-response values are available, the EPA calculates acute HQs. For this source category, acute risks from arsenic were a concern based upon the 1-hour REL of 0.2 μg/m
An acute REL is defined as “the concentration level at or below which no adverse health effects are anticipated for a specified exposure duration.”
ERPGs are “developed for emergency planning and are intended as health-based guideline concentrations for single exposures to chemicals.”
An acute REL for 1-hour exposure durations is typically lower than its corresponding AEGL-1 and ERPG-1. Even though their definitions are slightly different, AEGL-1s are often the same as the corresponding ERPG-1s, and AEGL-2s are often equal to ERPG-2s. The maximum HQs from our acute inhalation screening risk assessment typically result when we use the acute REL for a HAP. In cases where the maximum acute HQ exceeds 1, we also report the HQ based on the next highest acute dose-response value (usually the AEGL-1 and/or the ERPG-1).
For this source category, we developed source category-specific acute factors ranging from 3 to 10 to estimate peak hourly emissions from annual emissions estimates for the input to the acute risk assessment modeling analysis. In general, hourly emissions estimates were based on batch cycle times for smelting and anode furnaces with an emission hourly multiplier of 3 applied while road fugitive emissions were modeled with a default hourly multiplier of 10 times the annual average. A further discussion of these factors and why they were chosen can be found in the memorandum,
In our acute inhalation screening risk assessment, acute impacts are deemed negligible for HAP for which acute HQs are less than or equal to 1, and no further analysis is performed for these HAP. In cases where an acute HQ from the screening step is greater than 1, we assess the site-specific data to ensure that the acute HQ is at an off-site location. For this source category, the data refinements employed consisted of overlaying satellite imagery with off-site polar receptors to estimate off-site acute impacts. These refinements are discussed more fully in the
The EPA conducts a tiered screening assessment examining the potential for significant human health risks due to exposures via routes other than inhalation (
For the Primary Copper Smelting source category, we identified PB-HAP emissions of lead, arsenic, mercury and cadmium, so we proceeded to the next step of the evaluation. Except for lead, the human health risk screening assessment for PB-HAP consists of three progressive tiers. In a Tier 1 screening assessment, we determine whether the magnitude of the facility-specific emissions of PB-HAP warrants further evaluation to characterize human health risk through upper-end ingestion rates of (meat, produce, fruits, fish, etc.) based upon a combined farmer and fisher scenario. To facilitate this step, we evaluate emissions against previously developed screening threshold emission rates for several PB-HAP that are based on a hypothetical upper-end screening exposure scenario developed for use in conjunction with the EPA's Total Risk Integrated Methodology.Fate, Transport, and Ecological Exposure (TRIM.FaTE) model. The PB-HAP with screening threshold emission rates are arsenic compounds, cadmium compounds, chlorinated dibenzodioxins and furans, mercury compounds, and polycyclic organic matter (POM). Based on the EPA estimates of toxicity and bioaccumulation potential, these pollutants represent a conservative list for inclusion in multipathway risk assessments for RTR rules. (For more details see the risk assessment report cited above and Volume 1, Appendix D at
We derive the Tier 1 screening threshold emission rates for these PB-HAP (other than lead compounds) to correspond to a maximum excess lifetime cancer risk of 1-in-1 million (
In the Tier 2 screening assessment, the location of each facility that exceeds a Tier 1 screening threshold emission rate is used to refine the assumptions associated with the Tier 1 fisher and farmer exposure scenarios at that facility. A key assumption in the Tier 1 screening assessment is that a lake and/or farm is located near the facility. As part of the Tier 2 screening assessment, we use a U.S. Geological Survey (USGS) database to identify actual waterbodies within 50 km of each facility and assume the fisher only consumes fish from lakes within that 50 km zone. We also examine the differences between local meteorology near the facility and the meteorology used in the Tier 1 screening assessment. We then adjust the previously developed Tier 1
In the Tier 2 farmer scenario, we maintain an assumption that the farm is located within 0.5 km of the facility and that the farmer consumes meat, eggs, dairy, vegetables, and fruit produced near the facility. We may further refine the Tier 2 screening analysis by assessing a gardener scenario to characterize a range of exposures, with the gardener scenario being more plausible in RTR evaluations. Under the gardener scenario, we assume the gardener consumes home-produced eggs, vegetables, and fruit products at the same ingestion rate as the farmer. The Tier 2 screen continues to rely on the high-end food intake assumptions that were applied in Tier 1 for local fish (adult female angler at 99th percentile fish consumption
There are several analyses that can be included in a Tier 3 screening assessment, depending upon the extent of refinement warranted, including validating that the lakes are fishable, locating residential/garden locations for urban and/or rural settings, considering plume-rise to estimate emissions lost above the mixing layer, and considering hourly effects of meteorology and plume-rise on chemical fate and transport (a time-series analysis). If necessary, the EPA may further refine the screening assessment through a site-specific assessment.
In evaluating the potential multipathway risk from emissions of lead compounds, rather than developing a screening threshold emission rate, the Agency compares maximum estimated chronic inhalation exposure concentrations to the level of the current NAAQS for lead.
For further information on the multipathway assessment approach, see the
In addition to assessing baseline inhalation risks and screening for potential multipathway risks, the EPA also estimates risks considering the potential emission reductions that would be achieved by the control options under consideration. In these cases, the expected emission reductions are applied to the specific HAP and emission points in the RTR emissions dataset to develop corresponding estimates of risk and incremental risk reductions.
The EPA conducts a screening assessment to examine the potential for an adverse environmental effect as required under section 112(f)(2)(A) of the CAA. Section 112(a)(7) of the CAA defines “adverse environmental effect” as “any significant and widespread adverse effect, which may reasonably be anticipated, to wildlife, aquatic life, or other natural resources, including adverse impacts on populations of endangered or threatened species or significant degradation of environmental quality over broad areas.”
The EPA focuses on eight HAP, which are referred to as “environmental HAP,” in its screening assessment: Six PB-HAP and two acid gases. The PB-HAP included in the screening assessment are arsenic compounds, cadmium compounds, dioxins/furans, POM, mercury (both inorganic mercury and methyl mercury), and lead compounds. The acid gases included in the screening assessment are hydrochloric acid (HCl) and hydrogen fluoride (HF).
HAP that persist and bioaccumulate are of particular environmental concern because they accumulate in the soil, sediment, and water. The acid gases, HCl and HF, are included due to their well-documented potential to cause direct damage to terrestrial plants. In the environmental risk screening assessment, the EPA evaluates the following four exposure media: terrestrial soils, surface water bodies (includes water-column and benthic sediments), fish consumed by wildlife, and air. Within these four exposure media, the Agency evaluates nine ecological assessment endpoints, which are defined by the ecological entity and its attributes. For PB-HAP (other than lead), both community-level and population-level endpoints are included. For acid gases, the ecological assessment endpoint evaluated is terrestrial plant communities.
An ecological benchmark represents a concentration of HAP that has been linked to a particular environmental effect level. For each environmental HAP, the Agency identified the available ecological benchmarks for each assessment endpoint and where possible, the ecological benchmarks at the following effect levels: probable effect levels, lowest-observed-adverse-effect level, and no-observed-adverse-effect level. In cases where multiple effect levels were available for a particular PB-HAP and assessment endpoint, the EPA uses all of the available effect levels to help us to determine whether ecological risks exist and, if so, whether the risks could be considered significant and widespread.
For further information on how the environmental risk screening
For the environmental risk screening assessment, the EPA first determined whether any facilities in the Primary Copper Smelting source category emitted any of the environmental HAP. For the Primary Copper Smelting source category, the Agency identified emissions of arsenic, mercury, cadmium and lead. Because one or more of the environmental HAP evaluated are emitted by at least one facility in the source category, the Agency proceeded to the second step of the evaluation.
The environmental risk screening assessment includes six PB-HAP: Arsenic compounds, cadmium compounds, dioxins/furans, POM, mercury (both inorganic mercury and methyl mercury), and lead compounds. With the exception of lead, the environmental risk screening assessment for PB-HAP consists of three tiers. The first tier of the environmental risk screening assessment uses the same health-protective conceptual model that is used for the Tier 1 human health screening assessment. TRIM.FaTE model simulations were used to back-calculate Tier 1 screening threshold emission rates. The screening threshold emission rates represent the emission rate in tons of pollutant per year that results in media concentrations at the facility that equal the relevant ecological benchmark. To assess emissions from each facility in the category, the reported emission rate for each PB-HAP was compared to the Tier 1 screening threshold emission rate for that PB-HAP for each assessment endpoint and effect level. If emissions from a facility do not exceed the Tier 1 screening threshold emission rate, the facility “passes” the screening assessment, and, therefore, is not evaluated further under the screening approach. If emissions from a facility exceed the Tier 1 screening threshold emission rate, the EPA evaluates the facility further in Tier 2.
In Tier 2 of the environmental risk screening assessment, the screening threshold emission rates are adjusted to account for local meteorology and the actual location of lakes in the vicinity of facilities that did not pass the Tier 1 screening assessment. For soils, the EPA evaluates the average soil concentration for all soil parcels within a 7.5-km radius for each facility and PB-HAP. For the water, sediment, and fish tissue concentrations, the highest value for each facility for each pollutant is used. If emission concentrations from a facility do not exceed the Tier 2 screening threshold emission rate, the facility “passes” the screening assessment and typically is not evaluated further. If emissions from a facility exceed the Tier 2 screening threshold emission rate, the EPA evaluates the facility further in Tier 3.
As in the multipathway human health risk assessment, in Tier 3 of the environmental risk screening assessment, the Agency examines the suitability of the lakes around the facilities to support life and remove those that are not suitable (
To evaluate the potential for an adverse environmental effect from lead, we compared the average modeled air concentrations (from HEM-4) of lead around each facility in the source category to the level of the secondary NAAQS for lead. The secondary lead NAAQS is a reasonable means of evaluating environmental risk because it is set to provide substantial protection against adverse welfare effects which can include “effects on soils, water, crops, vegetation, man-made materials, animals, wildlife, weather, visibility and climate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being.”
The environmental risk screening assessment for acid gases evaluates the potential phytotoxicity and reduced productivity of plants due to chronic exposure to HF and HCl. The environmental risk screening methodology for acid gases is a single-tier screening assessment that compares modeled ambient air concentrations (from AERMOD) to the ecological benchmarks for each acid gas. To identify a potential adverse environmental effect (as defined in section 112(a)(7) of the CAA) from emissions of HF and HCl, the Agency evaluates the following metrics: the size of the modeled area around each facility that exceeds the ecological benchmark for each acid gas, in acres and square kilometers; the percentage of the modeled area around each facility that exceeds the ecological benchmark for each acid gas; and the area-weighted average SV around each facility (calculated by dividing the area-weighted average concentration over the 50-km modeling domain by the ecological benchmark for each acid gas). For further information on the environmental screening assessment approach, see Appendix 9 of the
To put the source category risks in context, the EPA typically examines the risks from the entire “facility,” where the facility includes all HAP-emitting operations within a contiguous area and under common control. In other words, the Agency examines the HAP emissions not only from the source category emission points of interest, but also emissions of HAP from all other emission sources at the facility for which we have data. For this source category, we conducted the facility-wide assessment using a dataset compiled from the 2017 NEI and 2018 actual emissions provided by ADEQ. The source category records of that 2017 and 2018 actual emissions dataset were removed, evaluated, and updated as described in section II.C of this preamble: What data collection activities were conducted to support this action? Once a quality assured source category dataset was available, it was placed back with the remaining records from the NEI for that facility. The facility-wide file was then used to analyze risks due to the inhalation of HAP that are emitted “facility-wide” for the populations residing within 50 km of each facility, consistent with the methods used for the source category analysis described above. For these
Uncertainty and the potential for bias are inherent in all risk assessments, including those performed for this proposal. Although uncertainty exists, we believe that our approach, which used conservative tools and assumptions, ensures that our decisions are health and environmentally protective. A brief discussion of the uncertainties in the RTR emissions dataset, dispersion modeling, inhalation exposure estimates, and dose-response relationships follows below. Also included are those uncertainties specific to our acute screening assessments, multipathway screening assessments, and our environmental risk screening assessments. A more thorough discussion of these uncertainties is included in the
Although the development of the RTR emissions dataset involved quality assurance/quality control processes, the accuracy of emissions values will vary depending on the source of the data, the degree to which data are incomplete or missing, the degree to which assumptions made to complete the datasets are accurate, errors in emission estimates, and other factors. The emission estimates considered in this analysis generally are annual totals for certain years, and they generally do not reflect short-term fluctuations during the course of a year or variations from year to year except in potentially a few cases, such as the May/June 2018 lead test data for anode refining roof vent fugitive emissions from the Freeport facility. Nevertheless, the estimates of peak hourly emission rates for the acute effects screening assessment were based on emission adjustment factors applied to the average annual hourly emission rates, which are intended to account for emission fluctuations due to normal facility operations.
The EPA recognizes there is uncertainty in ambient concentration estimates associated with any model, including the EPA's recommended regulatory dispersion model, AERMOD. In using a model to estimate ambient pollutant concentrations, the user chooses certain options to apply. For RTR assessments, we select some model options that have the potential to overestimate ambient air concentrations (
Although every effort is made to identify all of the relevant facilities and emission points, as well as to develop accurate estimates of the annual emission rates for all relevant HAP, the uncertainties in our emission inventory likely dominate the uncertainties in the exposure assessment. Some uncertainties in our exposure assessment include human mobility, using the centroid of each census block, assuming lifetime exposure, and assuming only outdoor exposures. For most of these factors, there is neither an under nor overestimate when looking at the maximum individual risk or the incidence, but the shape of the distribution of risks may be affected. With respect to outdoor exposures, actual exposures may not be as high if people spend time indoors, especially for very reactive pollutants or larger particles. For all factors, we reduce uncertainty when possible. For example, with respect to census-block centroids, we analyze large blocks using aerial imagery and adjust locations of the block centroids to better represent the population in the blocks. We also add additional receptor locations where the population of a block is not well represented by a single location.
There are uncertainties inherent in the development of the dose-response values used in our risk assessments for cancer effects from chronic exposures and noncancer effects from both chronic and acute exposures. Some uncertainties are generally expressed quantitatively, and others are generally
Cancer UREs used in our risk assessments are those that have been developed to generally provide an upper bound estimate of risk.
Many of the UFs used to account for variability and uncertainty in the development of acute dose-response values are quite similar to those developed for chronic durations. Additional adjustments are often applied to account for uncertainty in extrapolation from observations at one exposure duration (
Uncertainty also exists in the selection of ecological benchmarks for the environmental risk screening assessment. The EPA established a hierarchy of preferred benchmark sources to allow selection of benchmarks for each environmental HAP at each ecological assessment endpoint. We searched for benchmarks for three effect levels (
For a group of compounds that are unspeciated (
In addition to the uncertainties highlighted above, there are several factors specific to the acute exposure assessment that the EPA conducts as part of the risk review under section 112 of the CAA. The accuracy of an acute inhalation exposure assessment depends on the simultaneous occurrence of independent factors that may vary greatly, such as hourly emissions rates, meteorology, and the presence of a person. In the acute screening assessment that we conduct under the RTR program, we assume that peak emissions from the source category and reasonable worst-case air dispersion conditions (
For each source category, the Agency generally relies on site-specific levels of PB-HAP or environmental HAP emissions to determine whether a refined assessment of the impacts from multipathway exposures is necessary or whether it is necessary to perform an environmental screening assessment. This determination is based on the results of a three-tiered screening assessment that relies on the outputs from models—TRIM.FaTE and AERMOD—that estimate environmental pollutant concentrations and human exposures for five PB-HAP (dioxins, POM, mercury, cadmium, and arsenic) and two acid gases (HF and HCl). For lead, the Agency uses AERMOD to determine ambient air concentrations, which are then compared to the secondary NAAQS standard for lead. Two important types of uncertainty associated with the use of these models in RTR risk assessments and inherent to any assessment that relies on environmental modeling are model uncertainty and input uncertainty.
Model uncertainty concerns whether the model adequately represents the actual processes (
Input uncertainty is concerned with how accurately the models have been configured and parameterized for the assessment at hand. For Tier 1 of the multipathway and environmental screening assessments, the EPA configured the models to avoid underestimating exposure and risk. This was accomplished by selecting upper-end values from nationally representative datasets for the more influential parameters in the environmental model, including selection and spatial configuration of the area of interest, lake location and size, meteorology, surface water, soil characteristics, and structure of the aquatic food web. The EPA also assumes an ingestion exposure scenario and values for human exposure factors that represent reasonable maximum exposures.
In Tier 2 of the multipathway and environmental screening assessments, we refine the model inputs to account for meteorological patterns in the vicinity of the facility versus using upper-end national values, and we identify the actual location of lakes near the facility rather than the default lake location that we apply in Tier 1. By refining the screening approach in Tier 2 to account for local geographical and meteorological data, we decrease the likelihood that concentrations in environmental media are overestimated, thereby increasing the usefulness of the screening assessment. In Tier 3 of the screening assessments, we refine the model inputs again to account for hour-by-hour plume-rise and the height of the mixing layer. The EPA can also use those hour-by-hour meteorological data in a TRIM.FaTE run using the screening configuration corresponding to the lake location. These refinements produce a more accurate estimate of chemical concentrations in the media of interest, thereby reducing the uncertainty with those estimates. The assumptions and the associated uncertainties regarding the selected ingestion exposure scenario are the same for all three tiers.
For the environmental screening assessment for acid gases, we employ a single-tiered approach. We use the modeled air concentrations and compare those with ecological benchmarks.
For all tiers of the multipathway and environmental screening assessments, our approach to addressing model input uncertainty is generally cautious. We choose model inputs from the upper end of the range of possible values for the influential parameters used in the models, and we assume that the exposed individual exhibits ingestion behavior that would lead to a high total exposure. This approach reduces the likelihood of not identifying high risks for adverse impacts.
Despite the uncertainties, when individual pollutants or facilities do not exceed screening threshold emission rates (
The EPA evaluates the following HAP in the multipathway and/or environmental risk screening assessments, where applicable: Arsenic, cadmium, dioxins/furans, lead, mercury (both inorganic and methyl mercury), POM, HCl, and HF. These HAP represent pollutants that can cause adverse impacts either through direct exposure to HAP in the air or through exposure to HAP that are deposited from the air onto soils and surface waters and then through the environment into the food web. These HAP represent those HAP for which the Agency can conduct a meaningful multipathway or environmental screening risk assessment. For other HAP not included in our screening assessments, the model has not been parameterized such that it can be used for that purpose. In some cases, depending on the HAP, the Agency may not have appropriate multipathway models that allow us to predict the concentration of that pollutant. The EPA acknowledges that other HAP beyond these that we are evaluating may have the potential to cause adverse effects and, therefore, the EPA may evaluate other relevant HAP in the future, as modeling science and resources allow.
In this proposal, the EPA is proposing the following standards pursuant to CAA section 112(d)(2) and (3) for the major source NESHAP (40 CFR part 63, subpart QQQ):
• PM limits for anode refining point sources at existing and new sources.
• PM limits for process fugitive emissions from rooflines of smelting furnaces at existing and new sources.
• PM limits for process fugitive emissions from converters at existing and new sources.
• PM limits for process fugitive emissions from roof vents at anode refining operations at existing and new sources.
• Mercury limits for any existing and new combination of stacks or other vents from the copper concentrate dryers, converting department, the anode refining department, and the smelting vessels affected sources.
• PM limits for new converters.
The results and proposed decisions based on the analyses performed pursuant to CAA section 112(d)(2) and (3) are presented below. When addressing previously unregulated HAP emission sources or unregulated HAP from previously regulated sources in the proposed rule, we apply the MACT methodology, as described in section II.A above.
The 1998 proposal for primary copper smelting identified anode refining in the definition of primary copper smelters. However, at that time, the EPA said there were insufficient data to set an emission limit for anode refining. Therefore, the Agency did not propose specific emission standards for anode copper refining operations in the major source NESHAP at that time. In contrast, the 2007 area source NESHAP for primary copper smelting (subpart EEEEEE) does include emissions standards for anode refining. We conclude that anode refining is part of the source category and emits HAP emissions. Therefore, pursuant to CAA section 112(d)(2) and (3), the Agency is proposing to revise the 2002 major source NESHAP to include emission limits for new and existing anode refining point sources. We have anode refining point source test data from only one source, and because there are less than 30 sources in the category, the MACT floor is based on the average performance of the best 5 sources (in this case, the upper predictive limit (UPL) for the best single source because the Agency only has test data from one source). Using available test data, we are proposing a MACT floor PM limit as a surrogate for particulate metal HAP, which includes, but is not limited to,
We identified one BTF option to further reduce PM emissions from anode refining furnaces point sources. The BTF option would require the two facilities to each install and operate a wet electrostatic precipitator (ESP) in addition to their existing controls (baghouses). We estimated that emissions of lead would be reduced by about 0.8 tpy and arsenic emissions would be reduced by about 0.3 tpy. For the 2 existing facilities to comply with this BTF standard, we estimated capital costs of $72 million and annualized costs of $9.6 million for a cost effectiveness of $8.7 million per ton of HAP metal reduced. Regarding new sources, the MACT floor control technology would be a baghouse since the current best performing source is controlled with a baghouse, and the BTF control option for new sources would also be the same as existing (
Based on the analyses described above, the Agency is proposing to revise the 2002 NESHAP to include the following MACT floor-based emission limits for anode refining point sources:
• For existing anode refining point sources located at primary copper smelting facilities, we are proposing a PM emissions limit of 5.8 mg/dscm.
• For new anode refining point sources located at primary copper smelting facilities, we are proposing a PM emissions limit of 5.8 mg/dscm.
We propose that compliance with the PM emissions limit for anode refining will be demonstrated through an initial compliance test followed by a compliance test at least once every year.
The major source NESHAP currently does not include standards for process fugitive emissions from the rooflines of smelting furnaces, converters, or anode refining operations, with the exception of an opacity limit for converter roof vents that applies during testing. We note that some of these rooflines are among the main sources driving risks as described in the discussion of the risk results in section IV.B. Pursuant to CAA section 112(d)(2) and (3), the EPA is proposing to revise the 2002 NESHAP to include emission limits for rooflines for smelting furnaces, converters, and anode refining at existing and new sources.
For smelting furnace and converter rooflines, we evaluated the potential to establish MACT floor emissions limits for PM, as a surrogate for HAP metals, which includes, but is not limited to, antimony, arsenic, beryllium, cadmium, chromium, cobalt, lead, manganese, nickel, and selenium compounds, based on available test data. While the Agency only had test data for one of the two facilities (
The EPA also evaluated BTF PM limits for smelting furnace and converter rooflines based on the potential addition of capture and control equipment designed to achieve approximately 90 percent reduction in process fugitive emissions. With regard to smelting furnaces, based on available information, we estimate that 1.2 tpy year of HAP metals are emitted from the smelting flash furnace at Asarco. Freeport has two smelting furnaces. Freeport already has primary and secondary capture systems that capture and control process fugitives, resulting in total estimated HAP metal emissions from both furnaces of 0.626 tpy based on available test data, or about half of the emissions from Asarco's furnace. Asarco has primary capture and control and some secondary capture and control, but based on available reported emission estimates, Asarco emits significantly more HAP metals than Freeport. For the BTF option, we evaluated the potential to add enhanced, improved capture and control equipment to achieve about 90 percent reduction of HAP metal emissions from the Asarco smelting flash furnace (
Furthermore, to comply with this BTF option for smelting furnaces, we estimate Freeport would also need to reduce HAP emissions. If the standard was based on total emissions from smelting furnaces, we estimate Freeport would need to achieve 80 percent reduction (
Based on this analysis, the Agency estimates the BTF PM limit of 0.12 tpy for existing sources would have total capital costs of $26,501,600 and annualized costs of $5,443,937 and would achieve about 1.53 tpy reduction of HAP metals, with cost effectiveness of $3,445,529 per ton of HAP metal reduction. With regard to new sources (
With regard to converters, Asarco has three converters and Freeport has four converters. Asarco already has primary, secondary and tertiary capture and controls, and the reported total estimated HAP emissions are 0.0000022 tpy. On the other hand, Freeport has primary and secondary capture and controls, but no tertiary controls, and the total estimated HAP emissions from Freeport converters are 0.115 tpy. Therefore, we considered proposing a BTF option for existing converters for the source category that would require reductions at Freeport based on installation of tertiary controls which would be similar to the tertiary capture and controls on the converters at Asarco or the roof ventilation capture system described in the BTF analysis above for Freeport smelting furnaces. Given that all four converters at Freeport are in the same building, we assume that one such system would be sufficient to achieve about 80 percent reduction of fugitives. We assume Freeport could route these additional emissions to current control devices, since they already have two such control systems (
With regard to potential BTF standards for process fugitive emissions from roof vents for new converters, it is difficult to determine the appropriate standard because of a number of issues and uncertainties. First, based on reported emissions described above, Asarco has substantially lower HAP metal emissions as compared to Freeport. However, we have no test data for Asarco, so we have low confidence in these reported emissions estimates. Second, as described above, the current NESHAP prohibits new sources from using batch converters. Therefore, we assume any new converter would be a continuous converter, and we have no test data or even estimates of process fugitive emissions from continuous converter building roof vents. Based on this lack of information, we assume the BTF limit and associated costs for process fugitives for new sources would be the same as the BTF limit and associated costs for existing sources described in the paragraph above.
The EPA also evaluated the potential to establish MACT floor limits, or BTF limits, for HAP metals based on establishing additional opacity limits in the NESHAP for each affected source. For example, we considered proposing opacity limits consistent with the state air permits and opacity limits in the Consent Decree (CD) for Asarco as potential MACT standards in addition to, or instead of, the MACT floor PM limits. The opacity limits are not expected to result in emission reductions. Instead, the opacity would be monitored to ensure that the process equipment and control devices are operating properly. Furthermore, there would be no additional costs associated with establishing these opacity limits, since the limits would be consistent with what the facilities are already complying with under the state air permits or a CD. There is variability in opacity limits in the state air permits and CD and uncertainty as to what specific opacity limits represent MACT floor and BTF for each of the processes. These opacity limits are described in detail in the memorandum titled
Based on the above analyses, we are proposing the MACT floor PM emissions limits as a surrogate for metal HAP for converter and smelting furnace roof vents. The Agency is not proposing the BTF limits for converters or smelting furnaces because of the high costs and poor cost effectiveness and uncertainties in the estimates of emissions, emissions reductions and costs. Furthermore, the Agency is not proposing the opacity limits at this time due to variability in opacity limits in the state air permits and CD and uncertainty as to what specific opacity limits represent MACT floor and BTF for each of the processes. Nevertheless, the EPA solicits comments regarding the opacity limits, including whether it would be appropriate to establish opacity limits (such as the opacity limits in the state air permits and CD) in the NESHAP in addition to, or instead of, the numeric PM MACT floor emissions limits described above, and, if so, an explanation as to how or why these opacity limits reflect MACT floor, or BTF, levels of control. The Agency also solicits comments, data and other information regarding the MACT Floor analyses and BTF analyses, and our proposed determinations described above.
With regard to process fugitive emissions from anode refining roof vents, we estimate that Freeport emits 5.22 tpy of total metal HAP, comprised mainly of lead (4.09 tpy) and arsenic (0.622 tpy), and that Asarco emits 0.1076 tpy of total metal HAP. To develop a proposed standard for this source, we initially calculated a MACT floor emissions limit for PM of 15.2 lbs/hr based on available test data and application of the UPL methodology. For this standard, PM serves as a surrogate for all particulate HAP metals, similar to the other PM limits in the NESHAP.
Subsequently, we evaluated a potential BTF PM emissions limit for the anode refining roof vents, which would be set at a level approximately 90 percent lower than the MACT floor
The Agency estimates that total costs for Freeport to comply with this BTF PM emissions limit would be capital costs of $5,887,000 and annualized costs of $1,558,000, and would achieve about 4.25 tpy reduction of lead and arsenic emissions, with cost effectiveness of $367,000 per ton of lead and arsenic reduction. Lead and arsenic account for more than 90 percent of the HAP metal emissions from the roof vents on the anode refining building at Freeport. This cost effectiveness estimate is within the range of cost effectiveness values that EPA has historically considered acceptable for lead when compared to similar prior rulemakings. For example, in the 2012 Secondary Lead Smelting RTR, EPA accepted a cost effectiveness up to about $1.3M/ton for metal HAP (mainly Pb, based on 2009 dollars). The EPA's consideration of the cost effectiveness estimate of $367,000 per ton of lead and arsenic (noted above) also reflects fact-specific circumstances for addressing lead and arsenic emissions from the Primary Copper Smelting source category. For example, in other instances when the focus is on controlling other pollutants, such as PM, the agency would compare to other cost-effectiveness values. It is also important to note that cost effectiveness is but one factor we consider in assessing the cost of the emission reduction at issue here. See
The Agency also considered proposing a BTF lead emissions limit in addition to, or instead of, the PM limit since lead is the primary HAP metal emitted from the anode refining roof vents. For example, the Agency considered a possible lead limit of approximately 0.26 lbs/hr as a potential BTF MACT limit for anode refining process fugitive emissions, which is described in the MACT Floor memo cited above. However, there is some uncertainty with this analysis. It was not clear how best to apply the EPA's UPL methodology to the available lead emissions data to appropriately account for variability and determine a lead UPL limit that would reflect the MACT floor level of control, and to then subsequently determine what lead limit would represent a 90 percent reduction from the lead MACT Floor. The EPA expects the costs and reductions for such a lead BTF limit would be the same as the costs and reductions for the BTF option for PM described in the above paragraph. If the Agency was to establish such a lead limit instead of a PM limit, it would also serve as a surrogate for all HAP metals, similar to the Secondary Lead Smelting NESHAP, which established emissions limits for lead that serve as surrogates for all particulate HAP metals. Due to the uncertainties with the analysis of lead emissions and methodology used to develop the lead UPL limit, the Agency is not proposing this lead limit at this time. However, the EPA solicits comments regarding this potential lead limit and whether it would be appropriate to establish such a lead limit in addition to, or instead of, the PM limit, and if so, why?
Further information and details regarding the derivation of the MACT floor and BTF limits are provided in the memorandum titled
Based on the analyses described above, the Agency is proposing a BTF emissions limit for PM of 1.6 lbs/hr for anode refining process fugitive emissions at existing and new sources.
In summary, based on the analyses described above, the Agency is proposing to revise the 2002 NESHAP to include the following emission limits for process fugitive HAP metal emissions from roof vents of smelting furnaces, converters, and anode refining processes located at primary copper smelting facilities, as follows:
• For existing and new converter operations located at primary copper smelting facilities, the Agency is proposing a PM emissions limit of 1.7 lbs/hr for process fugitive roof vents.
• For existing and new smelting furnaces located at primary copper smelting facilities, the Agency is proposing a PM emissions limit of 4.3 lbs/hr for process fugitive roof vents.
• For existing and new anode refining operations located at primary copper smelting facilities, the Agency is proposing a PM emissions limit of 1.6 lbs/hr for process fugitive roof vents.
The Agency is proposing that compliance with these emissions limits for smelting furnaces, converters and
With regard to testing and recordkeeping costs, the Agency estimates Asarco will have total costs of about $95,000 per year for all the testing and recordkeeping and reporting to demonstrate compliance with these proposed three new standards for the process fugitive emissions roof vents for the converters, smelting furnaces and anode refining processes. As mentioned above, Freeport will have no new testing costs since they already conduct this testing per ADEQ requirements.
As mentioned above, the 2002 NESHAP does not include emission limits for mercury. The source category emits an estimated 55 pounds of mercury annually with 45 pounds per year emitted from the Freeport facility. Because of the temperatures of exhaust gas streams encountered at primary copper smelting operations, much of the mercury emitted is in vapor form, not in a particulate form. The vapor form of mercury is not captured by the controls used to reduce PM emissions. Therefore, the PM limits do not serve as a surrogate for mercury. Pursuant to CAA section 112(d)(2) and (3), the Agency is proposing to revise the 2002 NESHAP to include emission limits for mercury.
Initially the Agency calculated MACT floor limits based on test data from both of the primary copper smelting facilities. A detailed analysis and documentation of the MACT floor calculations can be found in the technical document,
The MACT floor emissions limit for existing sources was calculated based on the average of all the emissions tests from both facilities, accounting for variability using the 99 percent UPL. A MACT floor based on the 99 percent UPL for the combined facility-wide limit for existing sources is 0.01 lbs/hr. Based on available data, the Agency concludes that both facilities would be able to meet the MACT floor limit with no additional controls.
For new sources, the Agency calculated a MACT floor limit of 0.00097 lbs/hr based on emissions data from the best performing (or lowest emitting) facility, which is Asarco.
We then evaluated and considered a BTF option to further reduce emissions of mercury from existing furnaces and converters. Based on available test data, the Agency estimates that the acid plant is by far the largest source of mercury emissions at Freeport, accounting for about 64 percent of the total, with an estimated 29 lbs/yr of mercury emissions. The BTF option for existing sources would require the Freeport facility to install and operate an activated carbon injection (ACI) system and a polishing baghouse on the combined stack emissions release point, the acid plant. The Agency estimates the ACI system would achieve approximately 90 percent reduction of mercury from the acid plant stack (
The EPA estimates that these controls would achieve 26 pounds of mercury reductions per year (
A detailed analysis and documentation of the BTF option for the Primary Copper Smelting major source NESHAP and cost calculations can be found in the technical document,
With regard to new sources, as described above, the MACT floor for new sources (
However, with regard to reductions, it is impossible to accurately estimate potential reductions in mercury from a new source without knowing more information regarding a potential new source. For example, mercury emissions are highly dependent on the concentration of mercury in the ore and mercury concentrations can vary significantly across different ore bodies. If the EPA assumes a new source would have similar ore as Asarco, which has much lower mercury emissions compared to Freeport, the costs for controls could be similar to those estimated for Freeport above. However, the emissions reductions would be far lower, and therefore the controls would probably not be cost effective. If, on the other hand, the ore was similar to Freeport's, it may not be feasible for such a facility to achieve a limit of 0.00042 lbs/hr) with these types of controls. For example, if such a facility had characteristics similar to Freeport, they would likely need to achieve far greater reductions than 90 percent from the acid plant to achieve a limit of 0.00042 lbs/hr, which would require additional controls beyond the ACI system and polishing baghouse described above.
Given these uncertainties described above, and the fact that the new source MACT floor limit (
Based on the analysis described above, the Agency is proposing to revise the 2002 NESHAP to include the following emission limits for mercury:
• For existing primary copper smelting facilities, the Agency is proposing a facility-wide BTF emissions limit for mercury of 0.0043 lbs/hr.
• For new primary copper smelting facilities, the Agency is proposing a facility-wide MACT Floor emissions limit for mercury of 0.00097 lbs/hr.
The EPA is proposing that compliance with the mercury emissions limits for existing sources will be demonstrated through an initial compliance test for each of the affected sources (
The EPA solicit comments, information and data regarding the proposed standards for mercury, and the relevant technical analyses described above, as well as the proposed compliance dates and testing requirements.
The current requirement for new copper converters is that the NESHAP prohibits the use of batch copper converters. By default, new copper converters covered by the NESHAP would need to be continuous converters, or some other unknown non-batch converter technology, but the rule does not include an actual standard for new converters. Therefore, pursuant to CAA section 112(d)(2) and (3), the Agency is proposing to revise the 2002 NESHAP to include emission limits for new converters. We note that there are no existing continuous converters in the major source category, and, therefore, the Agency is not establishing an emissions limit for existing sources. The Agency is proposing a PM with a diameter less than 10 micrometers (PM
We then evaluated whether there are any potential BTF options to further limit PM
The EPA proposes that compliance with the PM
Table 1 of this preamble provides a summary of the results of the inhalation risk assessment for the source category. The two facilities in this major source category are located in Arizona in a rural, desert environment that is, for the most part, sparsely populated. More detailed information on the risk assessment can be found in the document titled
Results of the inhalation risk assessment based on actual emissions indicate that the cancer MIR is 80-in-1 million. The total estimated cancer incidence from this source category is 0.003 excess cancer cases per year, or one excess case every 333 years, with arsenic compounds contributing 95 percent of the cancer incidence for the source category. Approximately 26,125 people of the 46,460 people in the model domain are estimated to have cancer risks above 1-in-1 million from HAP emitted from this source category. The HEM-4 model predicted the maximum chronic noncancer HI value for the source category is equal to 1 (developmental), driven by emissions of
Results of the inhalation risk assessment based on MACT-allowable emissions indicate that the cancer MIR is 90-in-1 million. The total estimated cancer incidence from this source category is 0.003 excess cancer cases per year, or one excess case every 333 years, with arsenic contributing 90 percent and cadmium contributing 8 percent of the cancer incidence for the source category. Approximately 29,001 people are estimated to have cancer risks above 1-in-1 million from exposure to HAP emissions allowed under the NESHAP. The HEM-4 model predicted the maximum chronic noncancer HI value for the source category is equal to 1 (developmental), driven by emissions of arsenic from the anode refining roofline and the anode furnaces and converters. No individuals are estimated to have exposures that result in a noncancer HI above 1 at allowable emission rates.
A refined modeling analysis was conducted at the facility with the highest annual concentration of lead to characterize ambient concentrations of lead for 3-month intervals. The maximum 3-month concentration was predicted for each off-site receptor. The concentrations were then compared to the Lead (Pb) NAAQS of 0.15 ug/m
To better characterize the potential health risks associated with estimated worst-case acute exposures to HAP, and in response to a key recommendation from the SAB's peer review of the EPA's RTR risk assessment methodologies, the Agency examined a wider range of available acute health metrics than the Agency does for our chronic risk assessments. This is in acknowledgement that there are generally more data gaps and uncertainties in acute reference values than there are in chronic reference values. By definition, the acute REL represents a health-protective level of exposure, with effects not anticipated below those levels, even for repeated exposures. However, the level of exposure that would cause health effects is not specifically known. Therefore, when an REL is exceeded and an AEGL-1 or ERPG-1 level is available (
A review of all modeled off-site receptors for the Primary Copper Smelting source category identified exceedance of the 1-hour REL for arsenic, resulting in an HQ of 7 for arsenic. This is for actual baseline emissions. Satellite imagery for this location identifies it as a residential location approximately 4,200 meters northeast of the Freeport facility. It is also important to note that the primary source of the arsenic emissions from the anode furnace/converter and anode refining roofline was modeled with an hourly emissions multiplier of 3 times the annual average emissions rate. There are no AEGL or ERPG levels available for arsenic. No other HAP exposure concentrations exceeded acute benchmarks. Further details on the acute HQ estimates are provided in Appendix 10 of the risk report for this source category.
For this source category both facilities reported emissions of lead, which are compared to the lead NAAQS, and emissions of PB-HAP, which are compared to the Tier 1 screening threshold emission rate for each PB-HAP based upon a combined fisher/farmer scenario with upper-bound ingestion rates. The two facilities within this source category both reported emissions of carcinogenic PB-HAP (arsenic) and emissions of non-carcinogenic PB-HAP (cadmium and mercury) that exceeded their respective Tier 1 screening threshold emission rates. For facilities that exceed the Tier 1 multipathway screening threshold emission rate for one or more PB-HAP, we use additional facility site-specific information to perform a Tier 2 multipathway screening assessment. For the Tier 2 screening, the farmer and fisher scenarios are not combined as they are in the Tier 1 screening. Instead, the farmer and fisher scenarios are treated as separate individuals with the fisher scenario based upon modeled impacts to local lakes within 50 kilometers of the facility. Further details on the tiered multipathway screening methodology can be found in Appendix 6 of the
For arsenic, both facilities had Tier 2 SVs (cancer) greater than 1, with a maximum SV of 3,000 for the farmer scenario, a maximum SV of 1,000 for the rural gardener scenario, and a maximum SV of 100 for the fisher scenario. For cadmium, the Tier 2 screening assessment for both the farmer and gardener (rural) scenarios resulted in maximum Tier 2 SVs (noncancer) of 4. For the fisher scenario, Tier 2 noncancer SVs were greater than 1 for mercury compounds and cadmium compounds for one facility with a maximum noncancer SV of 20 for mercury and the maximum noncancer SV of 10 for cadmium.
Based upon these results, a Tier 3 screening assessment was conducted for both the fisher and gardener (rural) scenarios. A Tier 3 screening analysis was performed for arsenic, cadmium, and mercury emissions. In the Tier 3 screen for the fisher scenario, lakes near the facilities were reviewed on aerial photographs. As a result of this assessment, the features that were initially identified as lakes driving the Tier 2 screening risks for the fisher scenario were found to be tailings basins (not lakes), which are not fishable. After the tailings basins were removed from the fisher scenario analysis, the maximum cancer SV for arsenic emissions was 30, the maximum noncancer SV for mercury emissions
The Tier 3 gardener (rural) scenario was refined with the placement of the garden at the MIR residential receptor location approximately 4 km northeast of the facility versus the worst-case near-field location. Based on these Tier 3 refinements to the gardener scenario, the maximum Tier 3 cancer SV of 1,000 (rounded to 1 significant figure) remained the same for arsenic emissions, while the maximum noncancer SV decreased from 4 to 3 for cadmium emissions. An exceedance of a screening threshold emission rate or SV in any of the tiers cannot be equated with a risk value or an HQ (or HI). Rather, it represents a high-end estimate of what the risk or hazard may be. For example, an SV of 2 for a non-carcinogen can be interpreted to mean that the Agency is confident that the HQ would be lower than 2. Similarly, a Tier 2 cancer SV of 7 means that we are confident that the cancer risk is lower than 7-in-1 million. Our confidence comes from the conservative, or health-protective, assumptions encompassed in the screening tiers: The Agency chooses inputs from the upper end of the range of possible values for the influential parameters used in the screening tiers, and the Agency assumes that the exposed individual exhibits ingestion behavior that would lead to a high total exposure.
The EPA determined that it is not necessary to go beyond the Tier 3 lake and gardener analysis or conduct a site-specific assessment for arsenic, cadmium, and mercury. The EPA compared the Tier 2 screening results to site-specific risk estimates for five previously assessed source categories. These are the five source categories, assessed over the past 4 years, which had characteristics that make them most useful for interpreting the Primary Copper Smelting screening results. For these source categories, the EPA assessed fisher and/or gardener risks for arsenic, cadmium, and/or mercury by conducting site-specific assessments. The EPA used AERMOD for air dispersion and Tier 2 screens that used multi-facility aggregation of chemical loading to lakes where appropriate. These assessments indicated that cancer and noncancer site-specific risk values were at least 50 times lower than the respective Tier 2 screening values for the assessed facilities, with the exception of noncancer risks for cadmium for the gardener scenario, where the reduction was at least 10 times (refer to EPA Docket ID: EPA-HQ-OAR-2017-0015 and EPA-HQ-OAR-2019-0373 for a copy of these reports).
Based on our review of these analyses, if the Agency was to perform a site-specific assessment for the Primary Copper Smelting Source Category, the Agency would expect similar magnitudes of decreases from the Tier 2 SVs. As such, based upon the conservative nature of the screens and the level of additional refinements that would go into a site-specific multipathway assessment, were one to be conducted, we are confident that the HQ for ingestion exposure, specifically cadmium and mercury through fish ingestion, is less than 1. For arsenic, maximum cancer risk posed by fish ingestion would also be reduced to levels below 1-in-1 million, and maximum cancer risk under the rural gardener scenario would decrease to 20-in-1 million or less. Also, based upon the arid climate of the area and the hypothetical nature/location of the garden, estimated risks from this scenario seem unlikely. Further details on the Tier 3 screening assessment can be found in Appendix 10-11 of
In evaluating the potential for adverse health effects from emissions of lead, the EPA compared modeled maximum 3-month lead concentrations to the secondary NAAQS level for lead of (0.15 μg/m
As described in section III.A of this document, the Agency conducted an environmental risk screening assessment for the primary copper source category for the following pollutants: Arsenic, cadmium, and mercury. In the Tier 1 screening analysis for PB-HAP (other than lead, which was evaluated differently), arsenic, cadmium, divalent mercury and methyl mercury exceeded at least one ecological benchmark, requiring a Tier 2 screen.
A Tier 2 screening assessment was performed for arsenic, cadmium, divalent mercury and methyl mercury. Arsenic, divalent mercury, and methyl mercury had no Tier 2 exceedances for any ecological benchmark. Two facilities contributing emissions to the same lake had cadmium emissions that resulted in Tier 2 exceedances for fish no-observed-adverse-effect level (avian piscivores), fish geometric-maximum-allowable-toxicant level (avian piscivores), and fish lowest-observed-adverse-effect level (avian piscivores) benchmarks with a maximum SV of 3.
A Tier 3 screening analysis was performed for cadmium emissions. In the Tier 3 screen, lakes near the facilities were reviewed on aerial photographs. As a result of this assessment, the waterbody that was initially identified as a lake that was driving the Tier 2 environmental screening risks for cadmium was found to be a tailings basin and was removed from the analysis. After environmental impacts that had been estimated for the tailings basin were removed from the analysis, there were no exceedances of cadmium environmental screening benchmarks in Tier 3. For lead, the Agency estimated an exceedance of the secondary lead NAAQS at one census block at a lead concentration of 0.17 ug/m
The source category includes all the emissions at the facility. Thus, the facility-wide risk is the same as the risk posed by the actual emissions from the source category, refer to Table 1, with no change in incidence or risk drivers.
A monitor to model comparison analysis was conducted for the monitors located at both primary copper smelting facilities to characterize the effectiveness of the emissions modeling and for purposes of risk characterization. Monitoring data collected from both sites represent current process operations at the facilities including process fugitives as well as background contributions from historic activity such as road dust and re-entrainment. A review of emission inventories for the area indicates both plants are the primary contributor of arsenic and lead emissions for their locations. Monitoring samples are collected on a one in 6-day schedule for a 24-hour continuous period. This schedule and the number of active source-driven monitors provide an indication of what emission sources may be contributing to the monitor but still do not provide enough temporal resolution to apportion the emissions to a specific source. Because the sample is collected over a 24-hour period, this apportionment is further complicated by factors such as varying surface winds (wind speed and wind direction) that occur throughout the day as well as unexpected changes in production or upset events that may occur at the plant.
The Hayden area of Gila and Pinal Counties in Arizona is currently classified as nonattainment for the 2010, 1-hour primary SO
The Miami area of Gila County, Arizona, was classified as nonattainment for the 2010, 1-hour primary SO
With regard to emissions estimates used for the modeling analysis, as discussed in section II.C above, the Agency has higher confidence and less uncertainty with the Freeport emissions as compared to Asarco because the Agency has multiple test results for both point and non-point (
To examine the potential for any environmental justice issues that might be associated with the source category, EPA performed a baseline demographic analysis to identify how risk is distributed among different demographic groups of the populations living within 5 km and within 50 km of the two major source facilities. The methodology and the results of the baseline demographic analysis are presented in the technical report,
The results of the baseline demographic analyses, which reflect an average for the two major sources, are summarized in Table 3 below. These results, for various demographic groups, are based on the estimated risk from actual emissions levels for the population living within 50 km of the facilities.
The results of the primary copper smelting source category baseline demographic analysis indicate that emissions from the major source category expose approximately 26,125 people to a cancer risk at or above 1-in-1 million. No person is exposed to a chronic noncancer TOSHI greater than 1. As shown in Table 3, the average percentages of the at-risk population in the Native American, Hispanic, Below Poverty Level, and Over 25 without High School Diploma demographic groups are significantly greater than their respective nationwide percentages. Note, for one facility, Asarco, the baseline demographic analysis indicates that of the population with risks at or above 1-in-1 million, 73 percent are Hispanic, which is significantly greater than the nationwide percentage, 19 percent, as described further in the demographic analysis technical report cited above. Thus, the elevated cancer risks associated with emissions from the major source category disproportionately affect communities with environmental justice concerns, including low-income residents, Native Americans, and Hispanics living near these facilities.
With regard to acute noncancer risks, the acute screening analysis completed for this proposed rule is a conservative approach that applies health protective assumptions that every process releases its peak hourly emissions at the same hour, that the reasonable worst-case dispersion conditions occur at that same
With regard to lead, the modeled exceedances of the lead NAAQS based on estimated actual emissions were estimated to occur only in a small area near Freeport and we did not have precise demographic information for that specific area. Therefore, we did not conduct a demographics analysis for lead.
Nevertheless, since the potential acute risks from arsenic emissions, and the highest estimated exposures due to lead emissions, are from the same facility and sources that drive the cancer risks for the source category, we expect that the demographic make-up of the exposed populations living near the facility (who could have potential acute risks and higher lead exposures due to these emissions) would be similar to the profiles presented in Table 3 above.
As explained in section III of this preamble, the EPA sets standards under CAA section 112(f)(2) using “a two-step standard-setting approach, with an analytical first step to determine an `acceptable risk' that considers all health information, including risk estimation uncertainty, and includes a presumptive limit on maximum individual risk (MIR) of approximately 1-in-10 thousand” (see 54 FR 38045, September 14, 1989). In this proposal, the EPA estimated risks based on actual and allowable emissions from the primary copper smelting major source category under the current NESHAP.
The estimated inhalation cancer risk to the individual most exposed to allowable emissions from the source category is 90-in-1 million. The estimated inhalation cancer risk to the individual most exposed to actual emissions from the source category is 80-in-1 million. The estimated incidence of cancer due to inhalation exposures is 0.003 excess cancer cases per year, or one excess case every 333 years. The estimated number of people to have cancer risk above 1-in-1 million from HAP allowed to be emitted from the facilities in this source category is 29,001.
Based on allowable lead emissions, the maximum 3-month off-site modeled concentration was estimated to be as high as 0.24 ug/m
The multipathway risk assessment results indicated a maximum Tier 3 cancer risk of 1000-in-1 million based on the rural gardener scenario and a maximum Tier 3 noncancer HQ of 4 for the fisher scenario. Based upon past experience with site-specific assessments, the Agency would expect a minimum decrease by a factor of 50 for the above risks. Also, due to the arid climate of the area and the hypothetical nature/location of the garden, estimated upper-end ingestion rates for this scenario seem unlikely for this area. Further, the Agency estimated that the HQs for ingestion exposure, specifically for cadmium and mercury through fish ingestion, are less than 1.
The acute risk screening assessment of reasonable worst-case inhalation impacts indicates a maximum off-site acute HQ (REL) of 7, located at a residential location.
Considering all of the health risk information and factors discussed above, including the uncertainties discussed in section III of this preamble, the EPA proposes that the risks for this source category under the current MACT provisions are unacceptable. This proposed determination is largely based on the estimated exceedances of the lead NAAQS described above along with the maximum acute HQ of 7 for arsenic, which indicate there are significant risks of noncancer health effects for people near the facility. Also contributing to this proposed determination, although to a lesser extent, are the inhalation cancer MIRs due to arsenic, with an estimated MIR of 80-in-1 million for actual emissions and 90-in-1 million for allowable emissions, which are approaching the presumptive level of unacceptability of 100-in-1 million (described above in this preamble).
As discussed in section IV.C.1 above, the Agency is proposing that baseline risks (actual emissions) are unacceptable. The largest contributors to these unacceptable risks are the metal HAP (mainly lead and arsenic) emissions from the anode refining process fugitive emissions roof vents at Freeport, which constitute about 71 percent of the MIR. As described in section IV.A above, under the section 112(d)(2)/(d)(3) of the CAA, the Agency is proposing BTF emissions limits for PM, as a surrogate for metal HAP, for the anode refining process fugitive emissions roof vents, which the Agency estimates will reduce HAP metal emissions from this source by about 90 percent at Freeport. The EPA evaluated whether these reductions will further reduce cancer risks and noncancer hazards to an acceptable level by conducting a “post-control” risk assessment to estimate what the risks will be after implementation of the BTF PM emissions limit. Based on that analysis, the Agency estimates the inhalation cancer MIR will be reduced from 80-in-1 million to 30-in-1 million at Freeport with 20,566 people exposed to a cancer risk greater than or equal to 1-in-1 million, a 21 percent reduction when compared to cancer risk from actual emissions. The chronic noncancer HI will remain well below 1 and the maximum off-site acute HQ based on the 1-hour REL will be reduced from 7 to 2. Further, the maximum 3-month lead ambient concentration will be reduced below the NAAQS from 0.17 μg/m
Therefore, to reduce risks to a level that would be considered acceptable,
• For existing and new anode refining operations located at primary copper smelting facilities, the Agency is proposing an emissions limit for PM of 1.6 lbs/hr for anode refining roof vents.
With regard to demographic impacts, due to the fact that the EPA is proposing that risks from emissions of air toxics from this major source category are unacceptable at baseline and since EPA is proposing new standards (as described above) which are expected to reduce risks to an acceptable level, EPA performed a post-control demographic analysis to identify how the estimated risks would be distributed among different demographic groups of the populations living within 5 km and within 50 km of the two major source facilities after the additional controls (described above) are in place. The methodology and the results of the post-control demographic analysis are presented in the technical report,
This post-control demographic report indicates that for the major source category as a whole, average cancer risk for demographic groups would decrease as follows as a result of additional capture and control systems at the Freeport facility: Hispanic or Latino (4-in-1 million to 3-in-1 million); Native American (2-in-1 million to 1-in-1 million); African American (10-in-1 million to 5-in-1 million); Other and Multiracial (5-in-1 million to 3-in-1 million); people living below the poverty level (4-in-1 million to 2-in-1 million); people 25 years old and older without a high school diploma (4-in-1 million to 2-in-1 million); and people living in linguistic isolation (4-in-1 million to 2-in-1 million). For the total population exposed to emissions from the source category, average cancer risk would be reduced from 4-in-1 million to 2-in-1 million.
After identifying controls that would reduce risk to an acceptable level, the Agency next considered whether additional measures are required to provide an ample margin of safety to protect public health. In the ample margin of safety analysis, the Agency evaluated the cost and feasibility of available control technologies and other measures (such as work practices) that could be applied to the source category to further reduce the risk due to emissions of HAP.
With regard to additional controls considered under the ample margin of safety analysis, as described in section IV.B.1, another emission point contributing significantly to risks at Freeport is the Aisle Scrubber, which is used to control the combination of secondary emissions from the converter plus the emissions exiting the baghouse used to control primary anode refining point source emissions. Therefore, the Agency estimated the costs to install an additional PM control device (
Given the relatively high estimated capital costs, uncertainties, and moderate risk reductions that would be achieved for populations living near these facilities, the Agency is not proposing these additional controls for the Aisle Scrubber at this time. Nevertheless, the Agency is soliciting comments regarding our analysis (including the costs, costs effectiveness, and risk reductions) and whether the EPA should establish more stringent standards to reduce HAP metal emissions from the Aisle Scrubber.
The EPA also evaluated an option to reduce risks from the Asarco facility. In this case the Agency evaluated the potential to reduce process fugitive HAP metal emissions from the flash smelting furnace roof vents by installing hoods, ducts, fans, and an additional baghouse. Under this option, the Agency estimated capital costs of $19,107,200, annualized costs of $4,244,610, and approximately 1.08 tpy reduction of HAP metals, with cost effectiveness of $3,537,000 per ton of HAP metals. These controls would reduce the modeled inhalation cancer risk for Asarco (primarily due to arsenic emissions) from 60-in-1 million to about 10-in-1 million. These controls would also reduce lead emissions and associated risk from lead exposures from Asarco to some extent. However, given the relatively high estimated capital costs, annualized costs, poor cost effectiveness, uncertainties, and limited risk reductions that would be achieved for populations living near these facilities, we are not proposing these additional controls for the flash smelting furnace at Asarco at this time. Nevertheless, we are soliciting comments regarding our analysis (including the costs, cost effectiveness, and risk reductions) and whether the EPA should establish more stringent standards to reduce HAP metal emissions from the Flash Furnace at Asarco.
In addition to the controls described above, the Agency also evaluated the potential to propose additional work practices to reduce fugitive dust emissions, consistent with Asarco's
• Routine cleaning of paved roads with a sweeper, vacuum or wet broom (in accordance with applicable recommendations by the manufacturer of the street sweeper, vacuum, or wet broom), with such cleaning to occur no less frequently than on a daily basis unless the roads have sufficient surface moisture such that fugitive dust is not generated.
• Chemical dust suppressants will be applied not less frequently than once per month at slag haul roads and not less frequently than every 6 weeks on all other unpaved roads unless the roads have sufficient surface moisture such that fugitive dust is not generated.
• Copper concentrate storage, handling, and unloading operations.
• The cargo compartment of all trucks or other motor vehicles (
(i) The floor, sides, and/or tailgate(s) are free of holes or other openings.
(ii) All loads of trucks containing copper concentrate arriving at the facility are covered with a tarp to prevent spills and fugitive emissions.
(iii) Trucks are loaded only to such a level as to prevent spillage over the side.
(iv) A speed limit of 15 mph is required.
(v) All dust producing material internally transferred or moved by truck at the facility is covered with a tarp to prevent spills and fugitive emissions.
• Revert crushing operations and crushed revert storage.
• Scrubber liquid blowdown drying operations.
• Other site-specific sources of fugitive dust emissions that the Administrator or delegated permitting authority designate to be included in your fugitive dust control plan.
• For any element of the fugitive dust control plan that requires new construction at the facility, the owner or operator shall complete such construction, in accordance with the specifications and schedule set forth in the approved fugitive dust control plan.
• The fugitive dust control plan must be reviewed, updated (if necessary), and then approved by the permitting authority with each application for the Title V operating permit renewal pursuant to part 70 or part 71 of this chapter and with each permit application for the construction or modification of lead-bearing fugitive dust generating sources.
Since the facilities already need to implement most of these work practices per the consent decrees or state air permits, we expect there will be very minimal additional costs if these work practices are also incorporated into the NESHAP. The only additional costs would be a slight increase related to recordkeeping and reporting requirements. Furthermore, the Agency concludes that these additional work practices will achieve unquantified reductions of fugitive dust HAP metal emissions and associated human health risks. Therefore, under CAA section 112(f), as part of our ample margin of safety determination, the Agency is proposing that the facilities will need to develop and implement a more robust fugitive dust plan than currently required by the NESHAP. This plan would require, at a minimum, the specific work practices described above, but also could include other practices identified by the facilities (or the permitting authority to minimize these fugitive dust emissions).
Finally, EPA considered the impact of the proposed standards on the distribution of post-control risks as outlined in the technical report,
In summary, based on our ample margin of safety analysis, we are not proposing additional controls for the combined emissions stream from the anode refining furnace and secondary converter operations or the flash furnaces, as described above. Furthermore, the Agency did not identify any additional controls or measures to further reduce process fugitive emissions from the anode refining roof vents beyond those controls being proposed under the acceptability section (described above). However, the Agency is proposing additional work practices to limit fugitive dust emissions as part of the ample margin of safety analysis. Overall, the Agency proposes that with the additional controls for the anode refining furnace process fugitive roof vents described above (under the acceptability section), and the additional fugitive dust work practice standards being proposed based on our ample margin of safety analysis, the NESHAP will provide an ample margin of safety to protect public health. The acute arsenic HQ of 2 is based upon an REL, the acute REL represents a health-protective level of exposure, with effects not anticipated below those levels, even for repeated exposures; however, the level of exposure that would cause health effects is not specifically known. As the exposure concentration increases above the acute REL, the potential for effects increases. Based upon an acute HQ value of 2 for arsenic emissions, without any additional acute health benchmarks to apply to further characterize the potential for severe or reversible effects it is reasonable to assume that acute health risks from arsenic for this source category would be low.
Based on the results of the environmental risk screening analysis, the Agency does not expect an adverse environmental effect as a result of HAP emissions from this source category.
Under the technology review, the EPA searched, reviewed, and considered several sources of information to determine whether there have been developments in practices, processes, and control technologies as required by section 112(d)(6) of the CAA. The EPA researched practices, processes, and control technologies through a literature review to identify advancements in processes and control technologies in the primary copper smelting industry with a view toward identifying “developments” in practices, processes,
Concentrate dryers are used at the Kennecott Utah facility and the Asarco Hayden plant. The Freeport-McMoRan Miami smelter uses a wet feed and has no dryer. PM control at the Kennecott dryer consists of a baghouse and a scrubber. PM emissions from the Asarco dryers are controlled using baghouses.
Smelting furnaces at Asarco are controlled by a venturi scrubber followed by a wet gas cleaning system and an acid plant. Process gases from the Kennecott smelting furnace are exhausted to a waste heat boiler and then to an ESP, a wet scrubber, and a wet ESP. The off-gas from the Freeport smelting furnace is routed through a waste heat boiler where entrained dust settles out and is then routed to an ESP.
Matte drying and grinding are performed at the Asarco and Freeport facilities. Emissions are controlled using baghouses.
The two major sources, Asarco and Freeport, use batch converters. Controls include combinations of baghouses, scrubbers, and ESPs. Process gases at the Kennecott continuous converter are exhausted to a waste heat boiler, an ESP, a wet scrubber, and then to a wet ESP.
Slag cleaning emissions at Kennecott are vented to scrubbers. The slag cleaning furnace at Asarco has been decommissioned and the slag is allowed to cool and is sent back for additional processing for additional copper recovery. At the Freeport facility, the slag is sent to an electric furnace, and off-gas from the furnace is cooled with water sprays and then ducted to the acid plant.
Exhaust gases from anode refining furnaces are controlled by baghouses. Secondary gas systems typically exhaust to either a baghouse, a baghouse and a scrubber, or a scrubber and wet ESP.
All three primary copper smelting facilities operate under a fugitive dust control plan. Controls include the use of water sprays, chemical dust suppressants, placing material stockpiles below grade, and installing wind screens or wind fences around the source.
The current NESHAP for major source primary copper smelting facilities (40 CFR part 63, subpart QQQ) establishes numeric emission limits for PM, a surrogate for metal HAP, for copper concentrate dryers, smelting furnaces, slag cleaning vessels, and existing copper converters. The standard for new converters prohibits batch converters. An opacity limit applies to the converter building during performance testing. A fugitive dust control plan is required for the control of fugitive emissions. This subpart also establishes requirements to demonstrate initial and continuous compliance with all applicable emission limitations, work practice standards, and operation and maintenance requirements in this subpart. The requirements apply to primary copper smelters that are (or are part of) a major source of HAP emissions and that use batch copper converters.
As part of the technology review for the major source category, the Agency identified previously unregulated processes and pollutants, and are regulating them under CAA section 112(d)(2) and (3), as described in section IV.A, above; these new provisions also are being proposed under CAA section 112(f)(2), as described in section IV.C, above. With regard to the emissions sources at major primary copper smelting facilities, including sources of fugitive dust emissions, the Agency did not identify any developments in practices, processes, or control technologies beyond those described under the ample margin of safety analysis above.
The current NESHAP for area source primary copper smelting facility (40 CFR part 63, subpart EEEEEE) establishes numeric emission limits for PM (a surrogate for metal HAP), emitted from copper concentrate dryers, smelting vessels, converting vessels, matte drying and grinding plants, secondary gas systems, and anode refining departments. This subpart also requires work practices to ensure the capture of gases and fumes from the transfer of molten materials and their conveyance to control devices, provisions to monitor PM emissions for initial and continuous compliance, work practice standards, and operation and maintenance. With regard to the emissions sources at the area source primary copper smelting facility, including sources of fugitive dust emissions, the Agency did not identify any developments in practices, processes, or control technologies.
For more details, refer to the document,
In addition to the proposed actions described above, the EPA is proposing additional revisions to the NESHAP. The EPA is proposing revisions to the SSM provisions of the MACT rule in order to ensure that they are consistent with the decision in
In its 2008 decision in
The EPA is proposing the elimination of the SSM exemptions in these rules. Consistent with
The EPA has attempted to ensure that the provisions the Agency is proposing to eliminate are inappropriate, unnecessary, or redundant in the absence of the SSM exemption. The EPA specifically is seeking comments on whether the Agency has successfully done so.
In proposing the standards in these rules, the EPA has considered startup and shutdown periods and, for the reasons explained below, is not proposing alternative standards for those periods. The associated control devices are operational before startup and during shutdown of the affected sources at primary copper smelting facilities. Therefore, we expect that emissions during startup and shutdown would be no higher than emissions during normal operations. We know of no reason why the existing standards should not apply at all times.
Periods of startup, normal operations, and shutdown are all predictable and routine aspects of a source's operations. Malfunctions, in contrast, are neither predictable nor routine. Instead they are, by definition, sudden, infrequent, and not reasonably preventable failures of emissions control, process, or monitoring equipment. (40 CFR 63.2) (Definition of malfunction). The EPA interprets CAA section 112 as not requiring emissions that occur during periods of malfunction to be factored into development of CAA section 112 standards and this reading has been upheld as reasonable by the court in
Similarly, although standards for area sources are not required to be set based on “best performers,” the EPA is not required to consider malfunctions in determining what is “generally available.”
As the court recognized in
Although no statutory language compels the EPA to set standards for malfunctions, the EPA has the discretion to do so where feasible. For example, in the Petroleum Refinery Sector Risk and Technology Review, the EPA established a work practice standard for unique types of malfunction that result in releases from pressure relief devises (PRDs) or emergency flaring events because the EPA had information to determine that such work practices reflected the level of control that applies to the best performers. 80 FR 75178, 75211-14 (Dec. 1, 2015). The EPA will consider whether circumstances warrant setting standards for a particular type of malfunction and, if so, whether the EPA
Based on the EPA's knowledge of the processes and engineering judgment, malfunctions in the Primary Copper Smelting source category are considered unlikely to result in a violation of the standard. Affected sources at primary copper smelting plants are controlled with add-on air pollution control devices which will continue to function in the event of a process upset. Also, processes in the industry are typically equipped with controls that will not allow startup of the emission source until the associated control device is operating and will shut down the emission source if the associated controls malfunction. Furnaces used in primary copper smelting, which are the largest sources of HAP emissions, typically operate continuously for long periods of time with no significant spikes in emissions. These minimal fluctuations in emissions are controlled by the existing add-on air pollution control devices used at all plants in the industry.
In the unlikely event that a source fails to comply with the applicable CAA section 112(d) standards as a result of a malfunction event, the EPA would determine an appropriate response based on, among other things, the good faith efforts of the source to minimize emissions during malfunction periods, including preventative and corrective actions, as well as root cause analyses to ascertain and rectify excess emissions. The EPA would also consider whether the source's failure to comply with the CAA section 112(d) standard was, in fact, sudden, infrequent, not reasonably preventable, and was not instead caused, in part, by poor maintenance or careless operation. 40 CFR 63.2 (Definition of malfunction).
If the EPA determines in a particular case that an enforcement action against a source for violation of an emission standard is warranted, the source can raise any and all defenses in that enforcement action and the federal district court will determine what, if any, relief is appropriate. The same is true for citizen enforcement actions. Similarly, the presiding officer in an administrative proceeding can consider any defense raised and determine whether administrative penalties are appropriate.
In summary, the EPA interpretation of the CAA, particularly section 112, is reasonable and encourages practices that will avoid malfunctions. Administrative and judicial procedures for addressing exceedances of the standards fully recognize that violations may occur despite good faith efforts to comply and can accommodate those situations.
The EPA is proposing to revise the General Provisions table (Table 1 to subpart QQQ and Table 1 to subpart EEEEEE) entry for 40 CFR 63.6(e)(1)(i) by changing the “yes” in the column titled “Applies to Subpart QQQ” and in the column titled “Applies to Subpart EEEEEE” to a “no.” Section 63.6(e)(1)(i) describes the general duty to minimize emissions. Some of the language in that section is no longer necessary or appropriate in light of the elimination of the SSM exemption. The Agency is proposing instead to add general duty regulatory text at 40 CFR 63.1447(a) (subpart QQQ) that reflects the general duty to minimize emissions while eliminating the reference to periods covered by an SSM exemption. The general duty to minimize emissions at existing area sources (subpart EEEEEE), including periods of SSM, are contained in sections 63.11147(c) and 63.11148(f). The general duty to minimize emissions at new sources are being proposed in 63.11149(c)(3). The current language in 40 CFR 63.6(e)(1)(i) characterizes what the general duty entails during periods of SSM. With the elimination of the SSM exemption, there is no need to differentiate between normal operations, startup and shutdown, and malfunction events in describing the general duty. Therefore, the language the EPA is proposing for subpart QQQ and subpart EEEEEE do not include that language from 40 CFR 63.6(e)(1).
The EPA is also proposing to revise the General Provisions table (Table 1 to subpart QQQ and Table 1 to subpart EEEEEE) entry for 40 CFR 63.6(e)(1)(ii) by changing the “yes” in the column titled “Applies to Subpart QQQ” and in the column titled “Applies to Subpart EEEEEE” to a “no.” Section 63.6(e)(1)(ii) imposes requirements that are not necessary with the elimination of the SSM exemption or are redundant with the general duty requirement being added at 40 CFR 63.1447(a) (subpart QQQ) and that are already required for existing sources in 40 CFR 63.11147(c) and 63.11148(f) and are proposed for new sources in 63.11149(c)(3).
The EPA is proposing to revise the General Provisions table (Table 1 to subpart QQQ and Table 1 to subpart EEEEEE) entry for 40 CFR 63.6(e)(3) by changing the “yes” in the column titled “Applies to Subpart QQQ” and in the column titled “Applies to Subpart EEEEEE” to a “no.” Generally, these paragraphs require development of an SSM plan and specify SSM recordkeeping and reporting requirements related to the SSM plan. As noted, the EPA is proposing to remove the SSM exemptions. Therefore, affected units will be subject to an emission standard during such events. The applicability of a standard during such events will ensure that sources have ample incentive to plan for and achieve compliance and, thus, the SSM plan requirements are no longer necessary.
The EPA is proposing to revise the General Provisions table (Table 1 to subpart QQQ and Table 1 to subpart EEEEEE) entry for 40 CFR 63.6(f)(1) by changing the “yes” in the column titled “Applies to Subpart QQQ” and in the column titled “Applies to Subpart EEEEEE” to a “no.” The current language of 40 CFR 63.6(f)(1) exempts sources from non-opacity standards during periods of SSM. As discussed above, the court in
The EPA is proposing to revise the General Provisions table (Table 1 to subpart EEEEEE) entry for 40 CFR 63.6(h)(1) by changing the “yes” in the column titled “Applies to Subpart EEEEEE” to a “no.” The entry for 40 CFR 63.6(h) in Table 1 to subpart QQQ is already a “no.' The current language of 40 CFR 63.6(h)(1) exempts sources from opacity standards during periods of SSM. As discussed above, the court in
The EPA is proposing to revise the General Provisions table (Table 1 to subpart QQQ and Table 1 to subpart EEEEEE) entry for 40 CFR 63.7(e)(1) by changing the “yes” in the column titled “Applies to Subpart QQQ” and in the column titled “Applies to Subpart EEEEEE” to a “no.” Section 63.7(e)(1) describes performance testing requirements. The EPA is instead proposing to add a performance testing requirement at 40 CFR 63.1450(a) and (b) (subpart QQQ) and 63.11148(e)(3) (subpart EEEEEE). The performance testing requirements the Agency is proposing to add differ from the General Provisions performance testing
The EPA is proposing to revise the General Provisions table (Table 1 to subpart QQQ and Table 1 to subpart EEEEEE) entry for 40 CFR 63.8(c)(1)(i) and (iii) by changing the “yes” in the column titled “Applies to Subpart QQQ” and in the column titled “Applies to Subpart EEEEEE” to a “no.” The cross-references to the general duty and SSM plan requirements in those subparagraphs are not necessary in light of other requirements of 40 CFR 63.8 that require good air pollution control practices (40 CFR 63.8(c)(1)) and that set out the requirements of a quality control program for monitoring equipment (40 CFR 63.8(d)).
The EPA is proposing to revise the General Provisions table (Table 1 to subpart QQQ and Table 1 to subpart EEEEEE) entry for 40 CFR 63.8(d)(3) by changing the “yes” in the column titled “Applies to Subpart QQQ” and in the column titled “Applies to Subpart EEEEEE” to a “no.” The final sentence in 40 CFR 63.8(d)(3) refers to the General Provisions' SSM plan requirement which is no longer applicable. The EPA is proposing to add to the rules at 40 CFR 63.1456(a)(4)(iii) in subpart QQQ and 63.11149(b)(3) in subpart EEEEEE text that is identical to 40 CFR 63.8(d)(3) except that the final sentence is replaced with the following sentence: “The program of corrective action should be included in the plan required under § 63.8(d)(2).”
The EPA is proposing to revise the General Provisions table (Table 1 to subpart QQQ and Table 1 to subpart EEEEEE) entry for 40 CFR 63.10(b)(2)(i) by changing the “yes” in the column titled “Applies to Subpart QQQ” and in the column titled “Applies to Subpart EEEEEE” to a “no.” Section 63.10(b)(2)(i) describes the recordkeeping requirements during startup and shutdown. These recording provisions are no longer necessary because the EPA is proposing that recordkeeping and reporting applicable to normal operations will apply to startup and shutdown. In the absence of special provisions applicable to startup and shutdown, such as a startup and shutdown plan, there is no reason to retain additional recordkeeping for startup and shutdown periods.
The EPA is proposing to revise the General Provisions table (Table 1 to subpart QQQ and Table 1 to subpart EEEEEE) entry for 40 CFR 63.10(b)(2)(ii) by changing the “yes” in the column titled “Applies to Subpart QQQ” and in the column titled “Applies to Subpart EEEEEE” to a “no.” Section 63.10(b)(2)(ii) describes the recordkeeping requirements during a malfunction. The EPA is proposing to add such requirements to 40 CFR 63.1456 (subpart QQQ) and 40 CFR 63.11149(g) (subpart EEEEEE). The regulatory text the Agency is proposing to add differs from the General Provisions it is replacing in that the General Provisions requires the creation and retention of a record of the occurrence and duration of each malfunction of process, air pollution control, and monitoring equipment. The EPA is proposing that this requirement apply to any failure to meet an applicable standard and is requiring that the source record the date, time, and duration of the failure rather than the “occurrence.” The EPA is also proposing to add a requirement that sources keep records that include a list of the affected source or equipment and actions taken to minimize emissions, an estimate of the quantity of each regulated pollutant emitted over the standard for which the source failed to meet the standard, and a description of the method used to estimate the emissions. Examples of such methods would include product-loss calculations, mass balance calculations, measurements when available, or engineering judgment based on known process parameters. The EPA is proposing to require that sources keep records of this information to ensure that there is adequate information to allow the EPA to determine the severity of any failure to meet a standard, and to provide data that may document how the source met the general duty to minimize emissions when the source has failed to meet an applicable standard.
The EPA is proposing to revise the General Provisions table (Table 1 to subpart QQQ and Table 1 to subpart EEEEEE) entry for 40 CFR 63.10(b)(2)(iv) by changing the “yes” in the column titled “Applies to Subpart QQQ” and in the column titled “Applies to Subpart EEEEEE” to a “no.” When applicable, the provision requires sources to record actions taken during SSM events when actions were inconsistent with their SSM plan. The requirement is no longer appropriate because SSM plans will no longer be required. The requirement previously applicable under 40 CFR 63.10(b)(2)(iv)(B) to record actions to minimize emissions and record corrective actions is now applicable by reference to 40 CFR 63.1456 (subpart QQQ) and 40 CFR 63.11149.
The EPA is proposing to revise the General Provisions table (Table 1 to subpart QQQ and Table 1 to subpart EEEEEE) entry for 40 CFR 63.10(b)(2)(v) by changing the “yes” in the column titled “Applies to Subpart QQQ” and in the column titled “Applies to Subpart EEEEEE” to a “no.” When applicable, the provision requires sources to record actions taken during SSM events to show that actions taken were consistent with their SSM plan. The requirement is no longer appropriate because SSM plans will no longer be required.
The EPA is proposing to revise the General Provisions table (Table 1 to subpart QQQ and Table 1 to subpart EEEEEE) entry for 40 CFR 63.10(c)(15) by changing the “yes” in the column titled “Applies to Subpart QQQ” and in the column titled “Applies to Subpart EEEEEE” to a “no.” The EPA is proposing that 40 CFR 63.10(c)(15) no longer apply. When applicable, the provision allows an owner or operator to use the affected source's SSM plan or records kept to satisfy the recordkeeping requirements of the SSM plan, specified in 40 CFR 63.6(e), to also satisfy the requirements of 40 CFR 63.10(c)(10) through (12). The EPA is proposing to eliminate this requirement because SSM plans would no longer be required, and therefore 40 CFR 63.10(c)(15) no longer serves any useful purpose for affected units.
The EPA is proposing to revise the General Provisions table (Table 1 to subpart QQQ and Table 1 to subpart EEEEEE) entry for 40 CFR 63.10(d)(5) by changing the “yes” in the column titled “Applies to Subpart QQQ” and in the column titled “Applies to Subpart
Examples of such methods would include product-loss calculations, mass balance calculations, measurements when available, or engineering judgment based on known process parameters. The EPA is proposing this requirement to ensure that there is adequate information to determine compliance, to allow the EPA to determine the severity of the failure to meet an applicable standard, and to provide data that may document how the source met the general duty to minimize emissions during a failure to meet an applicable standard.
The EPA will no longer require owners or operators to determine whether actions taken to correct a malfunction are consistent with an SSM plan, because plans would no longer be required. The proposed amendments therefore eliminate any cross reference to 40 CFR 63.10(d)(5)(i) that contains the description of the previously required SSM report format and submittal schedule from this section. These specifications are no longer necessary because the events will be reported in otherwise required reports with similar format and submittal requirements.
The EPA is proposing that owners and operators of Primary Copper Smelting facilities submit electronic copies of required performance test reports, through the EPA's Central Data Exchange (CDX) using the Compliance and Emissions Data Reporting Interface (CEDRI). A description of the electronic data submission process is provided in the memorandum
Additionally, the EPA has identified two broad circumstances in which electronic reporting extensions may be provided. These circumstances are (1) outages of the EPA's CDX or CEDRI, which preclude an owner or operator from accessing the system and submitting required reports, and (2) force majeure events, which are defined as events that will be or have been caused by circumstances beyond the control of the affected facility, its contractors, or any entity controlled by the affected facility that prevent an owner or operator from complying with the requirement to submit a report electronically. Examples of force majeure events are acts of nature, acts of war or terrorism, or equipment failure or safety hazards beyond the control of the facility. The EPA is providing these potential extensions to protect owners and operators from noncompliance in cases where they cannot successfully submit a report by the reporting deadline for reasons outside of their control. In both circumstances, the decision to accept the claim of needing additional time to report is within the discretion of the Administrator, and reporting should occur as soon as possible.
The electronic submittal of the reports addressed in this proposed rulemaking will increase the usefulness of the data contained in those reports, is in keeping with current trends in data availability and transparency, will further assist in the protection of public health and the environment, will improve compliance by facilitating the ability of regulated facilities to demonstrate compliance with requirements and by facilitating the ability of delegated state, local, tribal, and territorial air agencies and the EPA to assess and determine compliance, and will ultimately reduce burden on regulated facilities, delegated air agencies, and the EPA. Electronic reporting also eliminates paper-based, manual processes, thereby saving time and resources, simplifying data entry, eliminating redundancies, minimizing data reporting errors, and providing data quickly and accurately to the affected facilities, air agencies, the EPA, and the public. Moreover, electronic reporting is consistent with the EPA's plan to implement Executive Order 13563 and is in keeping with the EPA's agency-wide policy developed in response to the White House's Digital Government Strategy. For more information on the benefits of electronic reporting, see the memorandum
As mentioned above, we are also proposing four minor changes to major source NESHAP to clarify an applicability provision, update and clarify the testing requirements for PM, add a test method for mercury, and revise a definition. These changes are explained further in the following paragraphs.
The EPA is proposing to revise the applicability description under section 63.1441 to clarify that the NESHAP applies to major source smelting facilities that use any type of converter, not just batch converters because the current definition limits applicability to only major sources that use batch converters. The major source NESHAP should apply to any Primary Copper major source regardless of what type of converter they use. Therefore, we are proposing this change.
With regard to revisions to testing requirements, the Agency is proposing to revise the wording in section 63.1450 for clarification that the facilities must test for filterable particulate, not total particulate. The test methods in 63.1450(a) have not changed for PM from the existing regulation. The methods in the existing regulation (Methods 5, 5D, and 17) are methods for filterable PM. Total PM includes
Finally, the EPA is proposing to revise the definitions under section 63.1459 by changing the term “smelting furnace” to “smelting vessel” to be consistent with the definition in the area source rule, subpart EEEEEE because we think it is appropriate that both rules include the broader definition of smelting vessel, which is already in the area source rule. The specific definition is as follows: Smelting vessel means a furnace, reactor, or other type of vessel in which copper ore concentrate and fluxes are smelted to form a molten mass of material containing copper matte and slag. Other copper-bearing materials may also be charged to the smelting vessel.
The EPA is proposing that existing facilities must comply with the BTF PM limits for the anode refining process fugitive roof vents within 2 years after promulgation of the final rule. The EPA is proposing 2 years for compliance because we expect the facility will need this much time to design and construct the necessary capture and control equipment described above. The reason the Agency is not proposing more than 2 years is because these controls are needed to achieve acceptable risks pursuant to CAA section 112(f), and section 112(f) only allows up to 2 years to comply with standards promulgated pursuant section 112(f).
For the new facility-wide mercury limits, new PM limits for anode refining point sources, and new PM limits for converter and smelting furnace roof vents, the Agency is proposing that existing facilities must comply within 1 year after promulgation of the final rule. For all other changes proposed in this action the Agency is proposing that existing facilities must comply within 180 days after promulgation of the final rule. All new or reconstructed facilities must comply with all requirements in the final rule upon startup. Our experience with similar industries that are required to convert reporting mechanisms, install necessary hardware and software, become familiar with the process of submitting performance test results electronically through the EPA's CEDRI, test these new electronic submission capabilities, reliably employ electronic reporting, and convert logistics of reporting processes to different time-reporting parameters shows that a time period of a minimum of 90 days, but more typically 180 days, is generally necessary to successfully complete these changes. Our experience with similar industries further shows that this sort of regulated facility generally requires a time period of 180 days to read and understand the amended rule requirements, evaluate their operations to ensure that they can meet the standards during periods of startup and shutdown as defined in the rule and make any necessary adjustments, adjust parameter monitoring and recording systems to accommodate revisions, and update their operations to reflect the revised requirements.
From our assessment of the time frame needed for compliance with the revised requirements, the EPA considers the periods of 2 years, 1 year, and 180 days to be the most expeditious compliance period practicable for each of the standards described above, respectively, and, thus, is proposing that existing affected sources be in compliance with all of this regulation's revised requirements within these timeframes.
For the MACT floor PM limit, the EPA is proposing in the subpart QQQ rule for anode refining point sources, we are proposing a compliance period of 1 year. Although this is a new requirement, the major source facilities are currently meeting the limit and the Agency expects minimal impact.
For the proposed BTF limit for mercury for existing sources in subpart QQQ, the Agency is proposing a compliance period of 3 years. The EPA is providing 3 years to comply with the mercury standard because the facilities need time to hire a consultant to design the new control systems, establish contracts with construction companies and/or air pollution control installation experts to reconfigure equipment, and build and install new duct work, fans, and control systems. The facilities also need time to establish contracts with testing companies and arrange for and conduct the performance testing.
For affected facilities that commence construction or reconstruction after January 11, 2022, owners or operators must comply with all requirements of the subpart, including all the amendments being proposed, no later than the effective date of the final rule or upon startup, whichever is later.
For the proposed subpart QQQ PM standard for new converters, the Agency is proposing that all new or reconstructed facilities must comply with this requirement upon startup. As no new converters are expected to come online in the near future, the Agency does not expect there to be an issue with the proposed compliance period.
The Primary Copper Smelting source category includes any facility that uses a pyrometallurgical process to extract copper from copper sulfide ore concentrates, native ore concentrates, or other copper bearing minerals. There are currently three copper smelting facilities in the United States: Two are major sources and one is an area source. No new copper smelting facilities are currently being constructed or are planned in the near future.
The affected sources subject to 40 CFR part 63, subpart QQQ, the major source NESHAP, are copper concentrate dryers, smelting furnaces, slag cleaning vessels, copper converter departments, and fugitive emission sources.
Under 40 CFR part 63, subpart EEEEEE, the area source NESHAP, the affected sources are copper concentrate dryers, smelting vessels, converting vessels, matte drying and grinding plant, secondary gas systems, anode refining furnaces, and anode shaft furnaces.
The proposed amendments in this action would achieve about 4.26 tpy reduction of HAP metals emissions (primarily lead, arsenic and cadmium from anode refining operations and mercury from furnaces and converters). In this action, the Agency is also proposing additional work practices that the Agency thinks will achieve some additional unquantified HAP emissions reductions. These proposed amendments will also reduce risks to public health and the environment, as described above in this preamble.
Furthermore, the Agency is proposing new standards for process fugitive PM emissions from furnaces and converters. The EPA does not expect to achieve reductions in emissions with these new standards. However, these standards will ensure that the emissions remain controlled and minimized moving
There are no air quality impacts resulting from the proposed amendments under 40 CFR part 63, subpart EEEEEE.
As described above, the proposed standards for anode refining process fugitive emissions and BTF standard for mercury will require estimated capital costs of $7,331,000 and annualized costs of $2,299,000 for the Freeport facility (2019 dollars). The Asarco facility will incur estimated costs of about $95,000 per year to complete compliance testing for all the proposed emissions standards. Freeport already conducts annual testing of these units pursuant to state ADEQ requirements; therefore, the Agency does not expect Freeport to incur new testing costs. With regard to the proposed electronic reporting requirements, which will eliminate paper-based manual processes, the EPA expects a small initial unquantified cost to transition to electronic reporting, but that these costs will be offset with savings over time such that ultimately there will be an unquantified reduction in costs to the affected facilities.
With regard to the proposed electronic reporting requirements, which will eliminate paper-based manual processes, the EPA expects a small initial unquantified cost to transition to electronic reporting, but that these costs will be offset with savings over time such that ultimately there will be an unquantified reduction in costs to the affected facilities.
The net present value of the estimated cost impacts of the proposed revisions to the Primary Copper Smelting NESHAP is $18.2 million, discounted at a 7 percent rate over an 8-year analytic time frame from 2022 to 2029 in 2019 dollars. Using a 3 percent discount rate, the net present value of the estimated cost impacts is $19.6 million.
As described previously in this preamble, the Agency estimates the new standards for anode refining fugitive emissions and mercury will result in annualized costs of about $2.3 million for the Freeport facility. Based on our research, the estimated annualized costs for Freeport are about 0.016 percent of the annual revenue of the facility's ultimate parent company in 2019. For the Asarco facility, the estimated annualized costs of the proposed rule (
We have data which estimates that the amount of copper produced by U.S. smelters was 563,000 metric tons in 2016 and 315,000 metric tons in 2020.
The economic impacts of this proposed rule were determined by comparing the annualized costs estimated for each facility to the annual revenues of the facility's ultimate parent company to obtain cost to sales ratios. This is EPA's typical method for determining economic impacts, because parent companies are assumed to be able to shift resources across their operations to address regulatory compliance needs. Since the estimated cost impacts for the facilities' ultimate parent companies are minimal, EPA anticipates there to be no significant economic impacts on the individual facilities due to the proposed revisions.
There are no significant economic impacts anticipated due to the proposed revisions under 40 CFR part 63, subpart EEEEEE.
As described above, the proposed amendments would result in significant reductions in emissions of HAP metals, especially lead and arsenic. The proposed amendments also revise the standards such that they apply at all times, which includes SSM periods. Furthermore, the proposed requirements to submit reports and test results electronically will improve monitoring, compliance, and implementation of the rule.
The proposed amendments under 40 CFR part 63, subpart EEEEEE revise the standards such that they apply at all times, which includes SSM periods. Furthermore, the proposed requirements to submit reports and test results electronically will improve monitoring, compliance, and implementation of the rule.
The EPA solicits comments on this proposed action. In addition to general comments on this proposed action, the Agency is also interested in additional data that may improve the emissions estimates, risk assessments, control and cost impacts analyses, and other analyses. The EPA is specifically interested in receiving any improvements to the data used in the site-specific emissions profiles used for risk modeling. Such data should include supporting documentation in sufficient detail to allow characterization of the quality and representativeness of the data or information. Section VII of this preamble provides more information on submitting data. The EPA is also specifically interested in receiving comments and data on the economic impacts of the proposed rule changes to individual facilities.
The site-specific emissions profiles used in the source category risk and demographic analyses and instructions are available for download on the RTR website at
If you believe that the data are not representative or are inaccurate, please identify the data in question, provide your reason for concern, and provide any “improved” data that you have, if available. When you submit data, the Agency requests that you provide documentation of the basis for the revised values to support your suggested changes. To submit comments on the data downloaded from the RTR website, complete the following steps:
1. Within this downloaded file, enter suggested revisions to the data fields appropriate for that information.
2. Fill in the commenter information fields for each suggested revision (
3. Gather documentation for any suggested emissions revisions (
4. Send the entire downloaded file with suggested revisions in Microsoft® Access format and all accompanying documentation to Docket ID No. EPA-HQ-OAR-2020-0430 (through the method described in the
5. If you are providing comments on a single facility or multiple facilities, you need only submit one file for all facilities. The file should contain all suggested changes for all sources at that facility (or facilities). The Agency requests that all data revision comments be submitted in the form of updated Microsoft® Excel files that are generated by the Microsoft® Access file. These files are provided on the project website at
The EPA proposes to amend 40 CFR 63.14 to incorporate by reference for three VCS.
• ANSI/ASME PTC 19.10-1981, Flue and Exhaust Gas Analysis [Part 10, Instruments and Apparatus], issued August 31, 1981, IBR requested for 40 CFR 63.1450(a)(iii), (b)(iii), (d)(iii), and (e)(iii). This method is an approved alternative to EPA Method 3B manual portion only, not the instrumental portion. The applicable portion of this Performance Test Code is the wet chemical manual procedures, apparatus and calculations for quantitatively determining oxygen, carbon dioxide, carbon monoxide and nitrogen from stationary combustion sources.
• ASTM D7520-16, Standard Test Method for Determining the Opacity of a Plume in the Outdoor Ambient Atmosphere, approved April 1, 2016, IBR requested for 40 CFR 63.1450(e)(1)(vii). This method is an acceptable alternative to the EPA's Method 9 under specific conditions stated in 40 CFR 63.1450(e)(1)(vii). This test method described the procedures to use the Digital Camera Opacity Techniques (DCOT) to obtain and interpret the digital images in determining and reporting plume opacity. It also describes procedures to certify the DCOT.
• ASTM D6784-02, (Reapproved 2008), Standard Test Method for Elemental, Oxidized, Particle-Bound and Total Mercury in Flue Gas Generated from Coal-Fired Stationary Sources (Ontario Hydro Method), Approved April 1, 2008. IBR requested for 40 CFR 63.1450(d)(1)(v). This method is an acceptable alternative to the EPA's Method 29 as a method for measuring mercury and applies to concentrations approximately from 0.5 to 100 μg/Nm
The ANSI/ASME document is available from the American Society of Mechanical Engineers (ASME) at
Additional information about these statutes and Executive Orders can be found at
This action is a significant regulatory action that was submitted to OMB for review. Any changes made in response to OMB recommendations have been documented in the docket (Docket ID No. EPA-HQ-OAR-2020-0430).
The information collection activities in this proposed rule have been submitted for approval to OMB under the PRA. The information collection request (ICR) document that the EPA prepared has been assigned EPA ICR number 1850.10. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here.
The EPA is proposing amendments that require electronic reporting of results of performance tests and CEMS performance evaluations, fugitive dust plans and notification of compliance reports, remove the requirement to submit certain information related to the malfunction exemption, and impose other rule revisions that affect reporting and recordkeeping requirements for primary copper smelting facilities, such as requirements to submit new performance test reports and to maintain new operating parameter records to demonstrate compliance with new standards. This information would be collected to assure compliance with 40 CFR part 63, subpart QQQ.
The information collection activities in this proposed rule have been submitted for approval to OMB under the PRA. The ICR document that the EPA prepared has been assigned EPA ICR number 2240.07. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here.
The EPA is proposing amendments that require electronic reporting of results of performance tests and CEMS performance evaluations and notification of compliance reports, remove the malfunction exemption, and impose other revisions that affect reporting and recordkeeping for primary copper smelting facilities. This information would be collected to assure compliance with 40 CFR part 63, subpart EEEEEE.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.
Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden to the EPA using the docket identified at the beginning of this rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs via email to
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. Based on the Small Business Administration size category for this source category, no small entities are subject to this action.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action. However, consistent with the EPA policy on coordination and consultation with Indian tribes, the EPA will offer government-to-government consultation with tribes as requested.
This action is not subject to Executive Order 13045 because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action's health and risk assessments are contained in sections III and IV of this preamble and further documented in the document titled
This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. As described in more details in sections IV.A and V.D of this preamble, new standards are proposed for 40 CFR part 63, subpart QQQ to limit mercury emissions, and PM emissions from anode refining furnaces and process roof vents. The proposed limits would have minimal impacts on the affected facilities because they mostly already meet the limits. One facility will have to improve their capture and control systems, which they were already planning to do as referenced in a consent order with the state of Arizona.
This rulemaking involves technical standards. Therefore, the EPA conducted searches for National Emission Standards for Hazardous Air Pollutants: Primary Copper Smelting Residual Risk and Technology Review and Primary Copper Smelting Area Source Technology Review through the Enhanced NSSN Database managed by the American National Standards Institute (ANSI). The Agency also contacted VCS organizations and accessed and searched their databases. Searches were conducted for the EPA Methods 1, 1A, 2, 2A, 2C, 2D, 2F, 2G, 3, 3A, 3B, 4, 5, 5B, 9, 17, 22, 29, 30A, 30B of 40 CFR part 60, appendix A, and EPA Method 201A appendix M, 40 CFR part 51. No applicable VCS were identified for EPA Methods 1A, 2A, 2D, 2F, 2G, 5B, 5D, 22, 30A, 30B.
During the search, if the title or abstract (if provided) of the VCS described technical sampling and analytical procedures that are similar to the EPA's reference method, the EPA considered it as a potential equivalent method. All potential standards were reviewed to determine the practicality of the VCS for this rule. This review requires significant method validation data which meets the requirements of the EPA Method 301 for accepting alternative methods or scientific, engineering and policy equivalence to procedures in the EPA reference methods. The EPA may reconsider determinations of impracticality when additional information is available for particular VCS.
Three VCS were identified as an acceptable alternative to the EPA test methods for the purposes of this rule. The VCS ANSI/ASME PTC 19-10-1981 Part 10 (2010), “Flue and Exhaust Gas Analyses” is an acceptable alternative to the EPA Method 3B manual portion only and not the instrumental portion. The ANSI/ASME PTC 19-10-1981 Part 10 (2010) method incorporates both manual and instrumental methodologies for the determination of O2 content. The manual method segment of the O2 determination is performed through the absorption of O2. The VCS ASTM D7520-16 “Standard Test Method for Determining the Opacity of a Plume in the Outdoor Ambient Atmosphere” is an acceptable alternative to the EPA Method 9 with the following conditions:
1. During the digital camera opacity technique (DCOT) certification procedure outlined in section 9.2 of ASTM D7520-16, you or the DCOT vendor must present the plumes in front of various backgrounds of color and contrast representing conditions anticipated during field use such as blue sky, trees, and mixed backgrounds (clouds and/or a sparse tree stand).
2. You must also have standard operating procedures in place including daily or other frequency quality checks to ensure the equipment is within manufacturing specifications as
3. You must follow the record keeping procedures outlined in § 63.10(b)(1) for the DCOT certification, compliance report, data sheets, and all raw unaltered JPEGs used for opacity and certification determination.
4. You or the DCOT vendor must have a minimum of four (4) independent technology users apply the software to determine the visible opacity of the 300 certification plumes. For each set of 25 plumes, the user may not exceed 15 percent opacity of anyone reading and the average error must not exceed 7.5 percent opacity.
5. This approval does not provide or imply a certification or validation of any vendor's hardware or software. The onus to maintain and verify the certification and/or training of the DCOT camera, software and operator in accordance with ASTM D7520-16 and this letter is on the facility, DCOT operator, and DCOT vendor.
The VCS ASTM D6784-02(2008) reapproved, “Standard Test Method for Elemental, Oxidized, Particle-Bound and Total Mercury Gas Generated from Coal-Fired Stationary Sources (Ontario Hydro Method)” is an acceptable alternative to the EPA Methods 101A and Method 29 (portion for mercury only) as a method for measuring mercury applies to concentrations approximately 0.5-100 μg/Nm
The search identified 189 VCS that were potentially applicable for these rules in lieu of the EPA reference methods. After reviewing the available standards, the EPA determined that 199 candidate VCS (ASTM D3154-00 (2014), ASTM D3464-96 (2014), ASTM 3796-09 (2016), ISO 10780:1994 (2016), ASME B133.9-1994 (2001), ISO 10396:(2007), ISO 12039:2001(2012), ASTM D5835-95 (2013), ASTM D6522-11, CAN/CSA Z223.2-M86 (R1999), ISO 9096:1992 (2003), ANSI/ASME PTC-38-1980 (1985), ASTM D3685/D3685M-98-13, CAN/CSA Z223.1-M1977, ISO 10397:1993, ASTM D6331 (2014), EN13211:2001, CAN/CSA Z223.26-M1987) identified for measuring emissions of pollutants or their surrogates subject to emission standards in the rule would not be practical due to lack of equivalency, documentation, validation data and other important technical and policy considerations. Additional information for the VCS search and determinations can be found in the memorandum,
Under 40 CFR 63.7(f) and 40 CFR 63.8(f) of subpart A of the General Provisions, a source may apply to the EPA to use alternative test methods or alternative monitoring requirements in place of any required testing methods, performance specifications or procedures in the final rule or any amendments.
The EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially applicable VCS and to explain why such standards should be used in this regulation.
Executive Order 12898 (59 FR 7629, February 16, 1994) 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. The EPA believes that this proposed action would not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898.
The EPA defines environmental justice as the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”
For more information, see the EPA's Environmental Justice website,
This proposed action is projected to reduce the number of individuals in these groups who live in proximity of the Freeport facility that have risk equal to or greater than 1-in-1 million. EPA estimates that there are approximately 24,412 people within 50 km of the Freeport facility with risk equal to or greater than 1-in-1 million (prior to controls); an estimated 6,835 of these people are Native American, 7,812 are Hispanic or Latino, and 6,591 are individuals below the poverty level. However, as described in section IV.B, we also estimate that no person has an increased cancer risk greater than 90-in-1 million. This proposed action would reduce the number of Native American individuals with cancer risk equal to or above 1-in-1 million to an estimated 2,724, would reduce the number of Hispanic or Latino individuals with cancer risk equal to or above 1-in-1 million to an estimated 7,198, and would reduce the number of individuals below the poverty level with cancer risk equal to or above 1-in-1 million to an estimated 4,475. There would be no reduction in the number of individuals with modeled cancer risk greater than 1-in-1 million at Asarco, since EPA estimates the proposed limit will
Based upon these reductions, approximately 20,566 people within a 50-km radius of the modeled facilities would be exposed to a cancer risk greater than or equal to 1-in-1 million as a result of emissions from Primary Copper Smelting post-control source category operations. This represents a 21 percent reduction in the total population at risk when compared to actual emissions without controls. Furthermore, as described in section IV.C.3, after implementation of this proposed action, the maximum modeled lifetime increased cancer risk due to HAP emissions from the two major source primary copper smelting facilities for any individual is estimated to be 60-in-1 million. The demographic analysis based on post-control emissions is provided in the report
The above risk-based demographic report indicates that for the major source category as a whole there will be a reduction in average cancer risk for each demographic group within a 50 kilometer radius of the modeled facilities as a result of proposed standards to reduce emissions at the Freeport facility, specifically: Hispanic or Latino (4-in-1 million to 3-in-1 million); Native American (2-in-1 million to 1-in-1 million); African American (10-in-1 million to 5-in-1 million); Other and Multiracial (5-in-1 million to 3-in-1 million); people living below the poverty level (4-in-1 million to 2-in-1 million); people 25 years old and older without a high school diploma (4-in-1 million to 2-in-1 million); and people living in linguistic isolation (4-in-1 million to 2-in-1 million). For the total population exposed to emissions from the major source category, average cancer risk would be reduced from 4-in-1 million to 2-in-1 million.
This action's health and risk assessments and related decisions are described in section IV of this action. The detailed documentation for these assessments is contained in the
Environmental protection, Air pollution control, Hazardous substances, Incorporation by reference, Reporting and recordkeeping requirements.