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Nuclear Regulatory Commission.
Final rule.
The U.S. Nuclear Regulatory Commission (NRC) is amending its regulations to update the access authorization fees charged to NRC licensees for work performed under the Material Access Authorization Program and the Information Access Authority Program. The change in fees is due to an increase in the review time for each application for access authorization. This final rule is prompted by a recent audit of fees performed by an external certified public accounting and financial management services firm and ensures that the NRC continues to recover the full costs of processing access authorization requests from NRC licensees. The final rule also makes two administrative changes to revise definitions to include new naming conventions for background investigation case types and to specify the electronic process for completing security forms.
The final rule is effective October 1, 2022.
Please refer to Docket ID NRC-2020-0133 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
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Emily Robbins, Office of Administration, telephone: 301-415-7000, email:
Certain individuals employed by NRC licensees or their contractors require access to special nuclear material (plutonium, uranium-233, and uranium enriched in the isotopes uranium-233 or uranium-235), restricted data, or national security information. These individuals obtain an access authorization from the NRC. When a licensee requests access authorization for an employee or a contractor, the NRC initiates an investigation of the individual seeking access authorization. Based on the results of that investigation, the NRC determines whether permitting that individual to have access to special nuclear material, restricted data, or national security information would create a security risk.
The Defense Counterintelligence and Security Agency (DCSA) conducts the access authorization background investigations for the NRC and sets the rates charged for these investigations. The combined cost of the DCSA background investigation and related NRC processing activities (NRC processing fee) is recovered from the licensee through an access authorization fee assessed by the NRC. The NRC publishes the fee schedule for special nuclear material access authorization in § 11.15(e) of title 10 of the
On December 28, 2021 (86 FR 73631), the NRC published in the
The NRC concurrently published a companion proposed rule on December 28, 2021 (86 FR 73685). In the proposed rule, the NRC stated that if any
The NRC received one comment submission (ADAMS Accession No. ML22025A233) on the proposed rule that accompanied the direct final rule. The comment was submitted by the Nuclear Energy Institute (NEI), a private organization, and is available at www.regulations.gov by searching on Docket ID NRC-2020-0133. The NRC determined the comment to be a significant adverse comment as defined in Section II, Rulemaking Procedure, of the direct final rule because the comment raised an issue serious enough to warrant a substantive response to clarify or complete the record; therefore, the NRC withdrew the direct final rule (87 FR 12853; March 8, 2022).
As stated in the December 28, 2021, proposed rule, the NRC is addressing the comment in this final rule.
This final rule amends 10 CFR parts 11, 25, and 95, along with appendix A to 10 CFR part 25. Public Law 115-439, the Nuclear Energy Innovation and Modernization Act (42 U.S.C. 2215), requires the NRC to recover through fees the full cost incurred in providing a service or thing of value. A September 2019 NRC audit of actual in-house costs incurred in processing licensee applications for access authorization showed an increase in the NRC's review time for each application. The audit also showed that the NRC was not recovering its full-cost fees for the time spent processing the increased number of complex applications. Despite a 2016 biennial review indicating increasing costs, the NRC had not adjusted its fees since 2012. Therefore, the NRC is revising the processing fee charged to licensees for work performed under the MAAP and the IAAP from 55.8 percent of the DCSA investigation billing rates to 90.2 percent.
In addition, all requests for reciprocity will be charged a flat fee rate of $95.00. Previously, the NRC did not charge a fee for reciprocity requests because certain applications from individuals with current Federal access authorizations were processed expeditiously and at a reduced cost. This flat fee will be aligned with the level of effort that has recently been expended by DCSA to process reciprocity requests and accounts for inflation as well as recovery of the appropriate cost for conducting this work. In cases where reciprocity is not acceptable and it is necessary to perform a background investigation, the NRC will charge the appropriate fee based on the DCSA investigation billing rate.
Licensees calculate the NRC access authorization fee for an application by referencing the current DCSA investigation billing rates schedule for background investigation services. Reimbursable billing rates for personnel background investigations are published by DCSA in a Federal Investigations Notice (FIN). The current DCSA investigation billing rates are published on the DCSA website and are available at
The fee-calculation formula is designed to recover the NRC's actual in-house processing costs for each application received from a licensee. The NRC's access authorization fee is determined using the following formula: the DCSA investigation billing rates on the day the NRC receives the application + the NRC processing fee = the NRC material access authorization fee. The provisions in this final rule set the NRC processing fee; the processing fee is determined by multiplying the DCSA investigation billing rate on the day the NRC receives the application by 90.2 percent (
As noted previously, the DCSA investigation billing rates are pulled directly from the current DCSA fee schedule for investigations. The tables in revised § 11.15(e)(3) and appendix A to 10 CFR part 25 cross-reference each type of NRC access authorization request to the appropriate investigation service listed in the DCSA's investigation billing rates schedule. For example, a licensee seeking a special nuclear material “NRC-U” access authorization requiring a Tier 5 (T5) investigation is directed by the table in § 11.15(e)(3) to calculate the NRC processing fee based on the DCSA investigation billing rates for a “standard” T5 investigation. According to the current DCSA investigation billing rates schedule (FIN 20-04, “FY 2021 and FY 2022 Investigations Reimbursable Billing Rates,” June 30, 2020), the DCSA charges $5,465 for a “standard” T5 investigation. The table instructs the licensee to calculate the NRC's application processing fee by multiplying $5,465 by 90.2 percent, which equals $4,929.43. The licensee then rounds the NRC's processing fee to the nearest dollar, or $4,929, and adds that amount to the DCSA investigation billing rate of $5,465 to determine the total NRC access authorization fee: $10,394.
The following table illustrates the calculation process for access authorization fees requiring a standard T5 investigation:
Licensees applying for restricted data or national security information access authorization follow a similar procedure. The table in appendix A to 10 CFR part 25 cross-references each type of “Q” or “L” access authorization to the corresponding DCSA investigation type. The DCSA investigation billing rate for the type of investigation referenced is determined by consulting the current DCSA investigation billing rates schedule. This rate is then used in the formula to calculate the correct NRC access authorization fee for the type of application submitted. Copies of the current NRC access authorization fees can be obtained by contacting the NRC's Personnel Security Branch, Division of Facilities and Security, Office of Administration by email to
In FIN Number 16-02, dated October 6, 2015, and FIN Number 16-07, dated September 26, 2016 (
In 2005, the OPM implemented the Electronic Questionnaires for Investigative Processing (e-QIP) system, which allows applicants to electronically enter, update, and release their personal investigative data over a secure internet connection to an employing agency for review and approval. The e-QIP system is a web-based automated system that facilitates the processing of standard investigative forms used when conducting background investigations for Federal security, suitability, fitness, and credentialing purposes. The NRC allows applicants to complete their security form, which is the Standard Form 86 (SF-86), Questionnaire for National Security Positions, electronically through the e-QIP system to minimize errors and expedite processing. This final rule updates 10 CFR parts 11 and 25 to clarify that the NRC uses the e-QIP system for applicants to provide their personal investigative data.
On December 28, 2021, the NRC concurrently published in the
The NRC received one significant adverse comment submission from NEI in response to the companion proposed rule that was concurrently published with the direct final rule; the NRC did not receive any other comment submissions. This section provides the NRC's responses to the comments submitted by NEI.
The NRC has processes to help ensure the accuracy of its internal financial analyses. Specifically, the NRC retains an independent audit firm to conduct biennial reviews of the fees charged by the NRC's IAAP and MAAP about the processing of IAAP and MAAP applications. The NRC approves the methodology used and evaluates the results of each review.
A September 2019 NRC audit of actual in-house costs incurred in processing licensee applications for access authorization also showed an increase in the NRC's review time for each application. This audit was performed by an external certified public accounting and financial management services firm. The audit also showed that the NRC was not recovering its full-cost fees for the time spent processing the increased number of complex applications; despite a 2016 biennial review indicating increasing costs, the NRC had not adjusted its fees since 2012. The increase in processing fees from 55.8 percent of the DCSA billing rates to 90.2 percent ensures that the NRC continues to recover the full costs of processing access authorization requests from NRC licensees.
No change to the final rule was made as a result of this comment.
The revised Federal investigative criteria required expansion of
No change to the final rule was made as a result of this comment.
The NRC has taken this comment into consideration and is making this final rule effective on October 1, 2022, so that the new access authorization fees become effective at the beginning of fiscal year 2023. The beginning of each fiscal year is generally when licensees and stakeholders are notified of any changes in the access authorization fee rates.
No change to the final rule was made as a result of this comment.
The following paragraphs describe the specific changes in this final rule.
This final rule revises the definitions in § 11.7 for
This final rule revises § 11.8 to add a new paragraph (c) to clarify that the information collections for the electronic form “Electronic Questionnaire for Investigations Processing (e-QIP), Standard Form 86 (SF-86)—Questionnaire for National Security Positions” are approved under OMB control number 3206-0005.
This final rule revises paragraphs (b)(1) and (c)(1)(ii) to specify the electronic form of the SF-86.
This final rule revises paragraph (e)(1) to change the NRC processing fee charged to licensees for work performed under the MAAP from 55.8 percent of the DCSA investigation billing rates to 90.2 percent.
This final rule revises paragraph (e)(3) to (1) change the NRC processing fee charged to licensees for work performed under the MAAP from 55.8 percent of the DCSA investigation billing rates to 90.2 percent, (2) indicate that MAAP requests for reciprocity will be charged at a flat fee rate of $95.00, and (3) include the new naming conventions for background investigations case types.
This final rule revises paragraph (e)(4) to clarify that certain applications from individuals with current Federal access authorizations may be processed expeditiously and at a reduced cost.
This final rule revises paragraph (f)(1) to include the new naming conventions for background investigations case types.
This final rule revises § 11.16 to include the new naming conventions for background investigations case types.
This final rule revises the definitions for
This final rule revises paragraph (c)(2) to clarify that the information collections for the electronic form “Electronic Questionnaire for Investigations Processing (e-QIP), SF-86—Questionnaire for National Security Positions” are approved under OMB control number 3206-0005.
This final rule revises paragraph (d)(1)(i) to specify the electronic form of the SF-86.
This final rule revises paragraph (f)(1) to change the NRC processing fee charged to licensees for work performed under the IAAP from 55.8 percent of the DCSA investigation billing rates to 90.2 percent.
This final rule revises paragraph (f)(3) to indicate that IAAP requests for reciprocity will be charged a flat fee rate of $95.00.
This final rule revises the table in appendix A to 10 CFR part 25 to include the new naming conventions for background investigations case types and to change the NRC processing fee charged to licensees for work performed under the IAAP from 55.8 percent of the DCSA investigation billing rates to 90.2 percent.
This final rule revises the definitions for
Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Commission certifies that this final rule amending 10 CFR parts 11, 25, and 95 does not have a significant economic impact on a substantial number of small entities. This final rule applies to those licensees who use, process, store, transport, or deliver to a carrier for transport, formula quantities of special nuclear material (as defined in 10 CFR part 73) or generate, receive, safeguard, and store National Security Information or Restricted Data (as defined in 10 CFR part 95). Two licensees, both fuel cycle facilities, are currently required to comply with 10 CFR part 11. Seventy-eight licensees and other organizations, mostly power reactors and fuel cycle facilities, are currently required to comply with 10 CFR part 25. None of these licensees are “small entities” as defined in the
A regulatory analysis has not been prepared for this final rule. The Nuclear Energy Innovation and Modernization Act (42 U.S.C. 2215) requires the NRC to recover through fees the full cost incurred in providing a service or thing of value. This final rule ensures that the NRC recovers the full cost of application processing from licensees submitting access authorization requests, as is required by statute (42 U.S.C. 2214(b)). The formula method for calculating these fees continues to provide an efficient and effective mechanism for updating the NRC access authorization fees in response to changes in the underlying DCSA investigation billing rates schedule for required personnel background investigations. These amendments will neither impose new safety requirements nor relax existing ones and, therefore, do not call for the sort of safety/cost analysis described in the NRC's regulatory analysis guidelines in NUREG/BR-0058, Revision 4, “Regulatory Analysis Guidelines of the U.S. Nuclear Regulatory Commission,” dated September 2004 (ADAMS Accession No. ML042820192).
The NRC has determined that the backfit rule does not apply to this final rule and that a backfit analysis is not required. Collection of fees to recover the NRC's costs is required by statute (42 U.S.C. 2214(b)). Therefore, changes to rules designating the amount to be collected are not subject to the backfitting provisions or issue finality provisions in 10 CFR chapter I.
The NRC did not receive any feedback on the potential for cumulative effects of regulation.
The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31885).
The NRC has determined that this final rule is the type of action described in § 51.22(c)(1) that is categorically excluded from environmental review. Therefore, neither an environmental impact statement nor environmental assessment has been prepared for this final rule.
This final rule does not contain new or amended information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.
In accordance with the Congressional Review Act of 1996 (5 U.S.C. 801-808), the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of the Office of Management and Budget.
The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or is otherwise impractical. In this final rule, the NRC will revise the formula for calculating the NRC's access authorization fee charged to licensees for work performed under MAAP and IAAP from 55.8 percent of the DCSA investigation billing rate for an investigation of a given type to 90.2 percent. In addition, MAAP requests for reciprocity will be charged a flat fee rate of $95.00. This action does not constitute the establishment of a standard that contains generally applicable requirements.
Hazardous materials transportation, Investigations, Nuclear energy, Nuclear materials, Penalties, Reporting and recordkeeping requirements, Security measures, Special nuclear material.
Classified information, Criminal penalties, Investigations, Penalties, Reporting and recordkeeping requirements, Security measures.
Classified information, Criminal penalties, Penalties, Reporting and recordkeeping requirements, Security measures.
For the reasons set forth in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR parts 11, 25, and 95:
Atomic Energy Act of 1954, secs. 161, 223 (42 U.S.C. 2201, 2273); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); 44 U.S.C. 3504 note.
Section 11.15(e) also issued under 31 U.S.C. 9701; 42 U.S.C. 2214.
(c) In § 11.15, the Standard Form 86 (SF-86), “Electronic Questionnaire for Investigations Processing (e-QIP), SF-86—Questionnaire for National Security Positions,” is approved under control number 3206-0005.
(b) * * *
(1) Electronic Questionnaire for Investigations Processing (e-QIP), SF-86—Questionnaire for National Security Positions;
(c)(1) * * *
(ii) The Electronic Questionnaire for Investigations Processing (e-QIP), SF-86—Questionnaire for National Security Positions
(e) * * *
(1) Each application for a special nuclear material access authorization, renewal, or change in level must be accompanied by a remittance, payable to the U.S. Nuclear Regulatory Commission, which is equal to the NRC material access authorization fee. This fee must be determined using the following formula: the DCSA investigation billing rates on the day of NRC receipt of the application + the NRC processing fee = the NRC material access authorization fee. The NRC processing fee is determined by multiplying the DCSA investigation billing rate on the day of NRC receipt of the application by 90.2 percent (
(3) The NRC's Material Access Authorization Program (MAAP) is considered reimbursable work representing services provided to an organization for which the NRC is entitled payment. The NRC is authorized to receive and retain fees from licensees for services performed. The NRC's Office of the Chief Financial Officer periodically reviews the fees charged for MAAP and makes recommendations on revising those charges to reflect costs incurred by the NRC in providing those services. The reviews are performed using cost analysis techniques to determine the direct and indirect costs. Based on this review, all MAAP requests for reciprocity will be charged a flat fee rate of $95.00 as referenced in paragraph (e)(4)(i) of this section. This flat fee would be aligned with the level of effort that has recently been expended by DCSA to process reciprocity requests, and accounts for inflation as well as recovery of the appropriate cost for conducting this work. Copies of the current NRC material access authorization fee may be obtained by contacting the NRC's Personnel Security Branch, Division of Facilities and Security, Office of Administration by email to: Licensee_Access_Authorization_
(4) Certain applications from individuals having current Federal access authorizations may be processed expeditiously and at a reduced cost because the Commission, at its discretion, may decide to accept the certification of access authorizations and investigative data from other Federal Government agencies that grant personnel access authorizations.
(i) Applications for reciprocity will be processed at the NRC flat fee rate of $95 per request as referenced in the following table:
(ii) Applicants shall, in cases where reciprocity is not acceptable and it is necessary to perform a background investigation, be charged the appropriate fee referenced in the following table. Applicants shall calculate the access authorization fee according to the stated formula (
(f)(1) Any Federal employee, employee of a contractor of a Federal agency, licensee, or other person visiting an affected facility for the purpose of conducting official business, who possesses an active NRC or DOE-Q access authorization or an equivalent Federal security clearance granted by another Federal agency (“Top Secret”) based on a comparable T5 background investigation may be permitted, in accordance with § 11.11, the same level of unescorted access that an NRC-U special nuclear material access authorization would afford.
Atomic Energy Act of 1954, secs. 145, 161, 223, 234 (42 U.S.C. 2165, 2201, 2273, 2282); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); 44 U.S.C. 3504 note; E.O. 10865, 25 FR 1583, as amended, 3 CFR, 1959-1963 Comp., p. 398; E.O. 12829, 58 FR 3479, 3 CFR, 1993 Comp., p. 570; E.O. 13526, 75 FR 707, 3 CFR, 2009 Comp., p. 298; E.O. 12968, 60 FR 40245, 3 CFR, 1995 Comp., p. 391.
Section 25.17(f) and Appendix A also issued under 31 U.S.C. 9701; 42 U.S.C. 2214.
(c) * * *
(2) In §§ 25.17(c), 25.21(c), 25.27(b), 25.29, and 25.31, the “Electronic Questionnaire for Investigations Processing (e-QIP), SF-86—Questionnaire for National Security Positions” is approved under control number 3206-0005.
(d)(1) * * *
(i) Electronic Questionnaire for Investigations Processing (e-QIP), SF-86 Questionnaire for National Security Positions;
(f) * * *
(1) Each application for access authorization, renewal, or change in level must be accompanied by a remittance, payable to the U.S. Nuclear Regulatory Commission, which is equal to the NRC access authorization fee. This fee must be determined using the following formula: the DCSA investigation billing rates on the day the NRC receives the application + the NRC processing fee = the NRC access authorization fee. The NRC processing fee is determined by multiplying the DCSA investigation billing rate on the day the NRC receives the application by 90.2 percent (
(3) The NRC's Information Access Authority Program (IAAP) is considered reimbursable work representing services provided to an organization for which the NRC is entitled payment. The NRC is authorized to receive and retain fees from licensees for services performed. The NRC's Office of the Chief Financial Officer periodically reviews the fees charged for IAAP and makes recommendations on revising those charges to reflect costs incurred by the NRC in providing those services. The reviews are performed using cost analysis techniques to determine the direct and indirect costs. Based on this review, the IAAP fees are adjusted to reflect the current cost for the program. IAAP requests for reciprocity will be charged a flat fee rate of $95.00 as referenced in paragraph (f)(4) of this section. This flat fee is aligned with the level of effort that has been expended by DCSA to process reciprocity requests, and accounts for inflation as well as recovery of the appropriate cost for conducting the investigations. Copies of the current NRC access authorization fee may be obtained by contacting the NRC's Personnel Security Branch, Division of Facilities and Security, Office of Administration by email at: Licensee_Access_Authorization_
(4) Certain applications from individuals having current Federal access authorizations may be processed more expeditiously and at less cost because the Commission, at its discretion, may decide to accept the certification of access authorization and investigative data from other Federal Government agencies that grant personnel access authorizations.
(i) Applications for reciprocity will be processed at the NRC flat fee rate of $95 per request, as referenced in the following table:
(ii) Applicants shall, in cases where reciprocity is not acceptable and it is necessary to perform a background investigation, be charged the appropriate fee referenced in appendix A to this part. Applicants shall calculate the access authorization fee according to the stated formula (
Atomic Energy Act of 1954, secs. 145, 161, 223, 234 (42 U.S.C. 2165, 2201, 2273, 2282); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); 44 U.S.C. 3504 note; E.O. 10865, as amended, 25 FR 1583, 3 CFR, 1959-1963 Comp., p. 398; E.O. 12829, 58 FR 3479, 3 CFR, 1993 Comp., p. 570; E.O. 12968, 60 FR 40245, 3 CFR, 1995 Comp., p. 391; E.O. 13526, 75 FR 707, 3 CFR, 2009 Comp., p. 298.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Direct final rule; confirmation of effective date.
The U.S. Nuclear Regulatory Commission (NRC) is confirming the effective date of August 29, 2022, for the direct final rule that was published in the
The effective date of August 29, 2022, for the direct final rule published June 14, 2022 (87 FR 35858), is confirmed.
Please refer to Docket ID NRC-2022-0049 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
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Vanessa Cox, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; telephone: 301-415-8342, email:
On June 14, 2022 (87 FR 35858), the NRC published a direct final rule amending its regulations in part 72 of title 10 of the
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
The FAA is superseding Airworthiness Directive (AD) 2019-20-03, which applied to various transport airplanes. AD 2019-20-03 required modification of certain universal serial bus (USB) receptacles located in the flight deck. Since the FAA issued AD 2019-20-03, it has been determined that additional airplanes are affected by the unsafe condition. This AD continues to require the modification and expands the applicability, as specified in a European Union Aviation Safety Agency (EASA) AD, which is incorporated by reference. This AD also prohibits the installation of affected parts. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective August 12, 2022.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of August 12, 2022.
The FAA must receive comments on this AD by September 12, 2022.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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For 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
Dan Rodina, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3225; email
The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Dan Rodina, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3225; email
The FAA issued AD 2019-20-03, Amendment 39-19756 (84 FR 55036, October 15, 2019) (AD 2019-20-03), which applied to various transport airplanes. AD 2019-20-03 required modification of certain USB receptacles located in the flight deck. The FAA issued AD 2019-20-03 to address smoke and fumes in the flight deck, which could result in excessive flightcrew workload and injury to flight deck occupants.
Since the FAA issued AD 2019-20-03, the European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0234, dated October 28, 2021 (EASA AD 2021-0234) (also referred to after this as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for various transport airplanes. EASA AD 2021-0234 superseded EASA AD 2018-0259R1, dated February 7, 2019. FAA AD 2019-20-03 corresponded to EASA AD 2018-0259R1. EASA AD 2021-0234 retained the requirements of EASA AD 2018-0259R1 and expanded the applicability. You may examine the MCAI in the AD docket on the internet at
This AD was prompted by reports of smoke and fumes in the flight deck. The FAA is issuing this AD to address smoke and fumes in the flight deck, which could result in excessive flightcrew workload and injury to flight deck occupants. See the MCAI for additional background information.
Although this AD expands the applicability, none of the newly added airplanes are on the U.S. Register.
Although this AD does not explicitly restate the requirements of AD 2019-20-03, this AD retains all of the requirements of AD 2019-20-03. Those requirements are referenced in EASA AD 2021-0234, which, in turn, is referenced in paragraph (g) of this AD.
EASA AD 2021-0234 specifies procedures for modification of certain USB receptacles located in the flight deck.
This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
These products have been approved by the aviation authority of another country and are 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 described above. The FAA is issuing this AD after determining that the unsafe condition described previously is likely to exist or develop on other products of these same type designs.
This AD requires accomplishing the actions specified in EASA AD 2021-0234 described previously, except for any differences identified as exceptions in the regulatory text of this AD. This AD also prohibits the installation of affected parts.
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, EASA AD 2021-0234 is incorporated by reference in this AD. This AD requires compliance with EASA AD 2021-0234 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in EASA AD 2021-0234 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2021-0234. Service information required by EASA AD 2021-0234 for compliance will be available at
None of the airplanes added to the applicability of this AD are currently on the U.S. Register. Accordingly, notice and opportunity for prior public comment are unnecessary, pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the forgoing reason(s), the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.
The requirements of the RFA do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.
The FAA estimates that this AD affects 14 airplanes of U.S. registry. The FAA estimates the following costs to comply with 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 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, and
(2) Will not affect intrastate aviation in Alaska.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective August 12, 2022.
This AD replaces AD 2019-20-03, Amendment 39-19756 (84 FR 55036, October 15, 2019) (AD 2019-20-03).
This AD applies to the airplanes identified in EASA AD 2021-0234, dated October 28, 2021 (EASA AD 2021-0234), certificated in any category.
Air Transport Association (ATA) of America Code 46, Information systems.
This AD was prompted by reports of smoke and fumes in the flight deck. The FAA is issuing this AD to address smoke and fumes in the flight deck, which could result in excessive flightcrew workload and injury to flight deck occupants.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, EASA AD 2021-0234.
(1) Where EASA AD 2021-0234 refers to the effective date of December 14, 2018 (the effective date of the original issue of EASA AD 2018-0259) this AD requires using November 19, 2019 (the effective date of AD 2019-20-03).
(2) Where EASA AD 2021-0234 refers to its effective date, this AD requires using the effective date of this AD.
(3) The “Remarks” section of EASA AD 2021-0234 does not apply to this AD.
After modification of an airplane as required by paragraph (g) of this AD, no person may install an affected part on any airplane.
The following provisions also apply to this AD:
(1)
(2)
For more information about this AD, contact Dan Rodina, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3225; 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 2021-0234, dated October 28, 2021.
(ii) [Reserved]
(3) For EASA AD 2021-0234, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(4) You may view this material at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. This material may be found in the AD docket at
(5) You may view this material that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is adopting a new airworthiness directive (AD) for all Dassault Aviation Model FALCON 7X airplanes. This AD was prompted by a report of a weak point identified in the Falcon 7X `EASy' avionics architecture, which, coupled with theoretical generic input/output (I/O) card failure, could lead to misleading data on display units. This AD requires revising the existing airplane flight manual (AFM) to provide emergency procedures for inconsistent or unreliable flight data and emergency and abnormal operations procedures for the GEN I/O internal module failure, and revising the operator's existing FAA-approved minimum equipment list (MEL) items for the multi-function probe heating, air data, and inertial reference systems, as specified in a European Union Aviation Safety Agency (EASA) AD, which is incorporated by reference. This AD also requires revising the existing AFM to incorporate additional information in the emergency procedures. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective September 1, 2022.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of September 1, 2022.
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
Tom Rodriguez, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3226; email
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0197, dated August 23, 2021 (EASA AD 2021-0197) (also referred to as the MCAI), to correct an unsafe condition for all Dassault Aviation Model FALCON 7X airplanes. The FAA notes that Model FALCON 7X airplanes with Dassault modification M1000 incorporated are commonly referred to as “Model FALCON 8X” as a marketing designation.
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Dassault Aviation Model FALCON 7X airplanes. The NPRM published in the
The FAA is issuing this AD to address misleading data on display units, which could reduce safety margins and lead to increased pilot workload, and consequent reduced controllability 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 exclude airplanes having Dassault modification M2091 embodied in production from the applicability because those airplanes are not affected by the identified unsafe condition. Modification M2091 upgrades the airplane avionics to the “EASY III—4th CERT” standard that improves the Falcon 7X EASy avionics architecture. This change to the applicability corresponds to EASA AD 2022-0145, dated July 12, 2022 (EASA AD 2022-0145), which supersedes EASA AD 2021-0197. EASA AD 2022-0145 also requires an additional modification for certain airplanes. The FAA is considering further rulemaking to mandate the new modification specified in EASA AD 2022-0145.
The FAA has also added Note 1 to paragraph (c) of this AD to explain that Model FALCON 7X airplanes with
The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed with the changes described previously. 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 2021-0197 specifies procedures for revising the existing AFM to provide emergency procedures for inconsistent or unreliable flight data and emergency and abnormal operations procedures for the GEN I/O internal module failure, revising the operator's existing MEL for the air data and inertial reference systems, and revising the operating suitability manual. 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 considers this AD interim action. If final action is later identified, the FAA might consider further rulemaking then.
The FAA estimates that this AD affects 121 airplanes of U.S. registry. The FAA estimates the following costs to comply with 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 September 1, 2022.
None.
This AD applies to all Dassault Aviation Model FALCON 7X airplanes, certificated in any category, except airplanes having Dassault modification M2091 embodied in production.
Air Transport Association (ATA) of America Code 34, Navigation.
This AD was prompted by a report of a weak point identified in the Falcon 7X `EASy' avionics architecture, which, coupled with theoretical generic input/output (I/O) card failure, could lead to misleading data on display units. The FAA is issuing this AD to address this condition, which could reduce safety margins and lead to increased pilot workload, and consequent reduced controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraphs (h) and (i) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2021-0197, dated August 23, 2021 (EASA AD 2021-0197).
(1) Where EASA AD 2021-0197 refers to its effective date, this AD requires using the effective date of this AD.
(2) Whereas EASA AD 2021-0197 requires operators to “inform all flight crews, and, thereafter, ensure that each pilot has performed the training and operate the aeroplane accordingly,” this AD does not require those actions.
(3) Where paragraph (3) of EASA AD 2021-0197 specifies to “implement the instructions of the MMEL-CP,” this AD requires revising the operator's existing FAA-approved minimum equipment list (MEL) to incorporate that information (“the MMEL-CP” as specified in EASA AD 2021-0197).
(4) Paragraph (4) of EASA AD 2021-0197 does not apply to this AD.
(5) The “Remarks” section of EASA AD 2021-0197 does not apply to this AD.
Within 2 months after the effective date of this AD, revise the applicable existing AFM to incorporate the information specified in figure 1 to paragraph (i) of this AD after sub-sub-section 2-200-70, Emergency Procedures, ADS with IRS miscompare, of sub-section 2-200, Emergency Procedures, of Section 2—Emergency Procedures.
The following provisions also apply to this AD:
(1)
(2)
For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226; email
(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 this AD specifies otherwise.
(i) European Union Aviation Safety Agency (EASA) AD 2021-0197, dated August 23, 2021.
(ii) [Reserved]
(3) For EASA AD 2021-0197, 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
(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
Coast Guard, Homeland Security (DHS).
Final rule.
The Coast Guard is establishing a permanent security zone for all navigable waters of the Lower Mississippi River (LMR) from mile marker (MM) 94 to MM 97, Above Head of Passes (AHP), New Orleans, LA. This security zone is necessary to expedite the establishment and enforcement of the security zones to protect vessels, waterfront facilities, the public, and other surrounding areas from destruction, loss, or injury caused by sabotage, subversive acts, accidents, or other actions of a similar nature. This rulemaking prohibits entry of vessels or persons from entering the security zone unless specifically authorized by the Captain of the Port Sector New Orleans (COTP) or a designated representative. This security zone will be enforced only as necessary by the COTP through a notice of enforcement published in the
This rule is effective August 29, 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 Lieutenant Commander William A. Stewart, Sector New Orleans, U.S. Coast Guard; telephone 504-365-2246, email
During the preceding several years, the COTP has published multiple temporary final rules (TFRs) to implement heightened security measures to protect waterfront facilities, visiting dignitaries, large volumes of festival participants, and/or vessels from destruction, loss, or injury from sabotage, subversive acts, or other malicious or potential terrorist acts within the LMR from MM 94 to MM 97, AHP, New Orleans, LA. The COTP expects that events requiring heightened protection will increase as New Orleans continues to hold popular annual events, like Mardi Gras and French Quarter Fest, as well as remains a top destination for events of national significance, such as sporting events and Navy Fleet Week.
The Coast Guard is establishing a permanent security zone for all navigable waters of the LMR from MM 94 to MM 97, AHP, New Orleans, LA to expedite the establishment and enforcement of the security zones. The enforcement of security zones within this area of the LMR is usually limited in duration, lasting a few hours to a few days for each waterway closure, creating minimal impact to vessel traffic. Moreover, this rule allows vessels to seek permission to enter the security zone from the COTP or a designated representative. The Coast Guard is issuing this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). Therefore, on May 7, 2022, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Safety Zone; Lower Mississippi River, Mile Marker 94 to 97 Above Head of Passes, New Orleans, LA” (87 FR 34607). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to establishing this permanent security zone. During the comment period that ended July 7, 2022, we received no comments.
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The COTP has determined that a permanent security zone, which can be enforced as necessary, will better allow the COTP to protect vessels, waterfront facilities, the public, and other surrounding areas from destruction, loss, or injury caused by sabotage, subversive acts, accidents, or other actions of a similar nature. This rule prohibits entry of vessels or persons from entering the security zone unless specifically authorized by the Captain of the Port Sector New Orleans (COTP) or a designated representative.
As noted above, we received no comments on our NPRM published May 7, 2022. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.
This rule establishes a permanent security zone for all navigable waters of the Lower Mississippi River (LMR) from mile marker (MM) 94 to MM 97, Above Head of Passes (AHP), New Orleans, LA. This rule is necessary to expedite the establishment and enforcement of the security zones to protect vessels, waterfront facilities, the public, and other surrounding areas from destruction, loss, or injury caused by sabotage, subversive acts, accidents, or other actions of a similar nature. This rule prohibits entry of vessels or persons from entering the security zone unless specifically authorized by the Captain of the Port Sector New Orleans (COTP) or a designated representative. This rule will be enforced only as necessary by the COTP through a notice of enforcement published in the
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. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location, and duration of the security zone. While this zone will be permanent, it will only be enforced on an as needed basis where the COTP will limit the enforcement to areas specified in the notice of enforcement published in the
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 security zone may be small entities, for the reasons stated in section V.A 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 establishing a security zone to protect the public in a designated area of the Mississippi River near New Orleans, LA for a limited number of days. 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)
(c)
(2) To seek permission to enter, contact the COTP or a designated representative by telephone at (504) 365-2545 or VHF-FM Channel 16 or 67. Those in the security zone must transit at their slowest speed and comply with all lawful orders or directions given to them by the COTP or a designated representative.
(d)
Environmental Protection Agency (EPA).
Final rule.
The U.S. Environmental Protection Agency (EPA) is issuing a final rule approving Michigan's Class II Underground Injection Control (UIC) Program for primacy. EPA has determined that the State's program is consistent with the provisions of the Safe Drinking Water Act (SDWA) to prevent underground injection activities that endanger underground sources of drinking water (USDWs). EPA's approval allows Michigan to implement and enforce the State's regulations for Class II UIC wells, which cover oil and gas related injection well activities. EPA will remain the permitting authority for all other UIC well classes in Michigan and the sole permitting authority for all UIC well classes in Indian country within the State. EPA will also oversee Michigan's administration of the State's UIC Class II program as authorized under SDWA.
This final rule is effective on August 29, 2022. The Director of the Federal Register approved this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51 on August 29, 2022. For judicial purposes, this final rule is promulgated as of August 29, 2022.
EPA has established a docket for this action under Docket ID No. EPA-HQ-OW-2020-0595. All documents in the docket are listed on the
Kyle Carey, Drinking Water Protection Division, Office of Ground Water and Drinking Water (4606M), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 564-2322; fax number: (202) 564-3754; email address:
EPA may grant primary authority and enforcement responsibility or “primacy” for implementing the UIC program to states, territories, and federally recognized tribes—hereafter referred to as applicants that apply under SDWA. Primacy programs are established under SDWA Sections 1422 and 1425. To obtain primacy under
An applicant seeking UIC program primacy under SDWA Section 1425 must demonstrate to EPA that it has an “effective” Class II program to prevent the endangerment of USDWs, including jurisdiction over underground injection and provisions for the necessary administrative, civil, and criminal enforcement penalty remedies under SDWA. EPA conducts a thorough technical and legal review of the primacy application. The application and EPA's review include these elements: The applicant's UIC statutes and regulations; documents describing the public participation process; a request from the applicant's governor or authorized representative for primacy under SDWA; the program description; an attorney general's or authorized representative's statement of enforcement authority; and a memorandum of agreement (MOA) between EPA and the applicant, describing the administration, implementation, and enforcement of the applicant's UIC program.
Class II wells are used only to inject fluids associated with oil and natural gas production. Class II fluids are typically injected thousands of feet below the surface into rock formations isolated from USDWs. Class II wells fall into one of three categories: disposal wells, which inject fluids brought to the surface during oil and gas extraction; enhanced recovery wells, which inject fluids into oil-bearing formations to recover residual oil and, in limited applications, natural gas;
In this final rule, EPA is approving Michigan's application because it meets or exceeds all applicable requirements for approval under SDWA Section 1425 and the agency has determined that the State can administer a Class II UIC program in a manner consistent with the terms and purposes of SDWA and all applicable regulations to protect USDWs. With EPA's approval, Michigan will implement and enforce a State Class II UIC regulatory program that is effective in preventing the endangerment of USDWs. EPA will remain the permitting authority for all other UIC well classes in Michigan and the sole permitting authority for all UIC well classes in Indian country within the State. EPA will also oversee Michigan's administration of the State's UIC Class II program as authorized under SDWA.
This table is intended to be a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. If you have questions regarding the applicability of this action to a particular entity, consult the persons listed in the preceding
Michigan applied to EPA under SDWA Section 1425 for primacy for all Class II injection wells within the State, except those in Indian country. EPA is approving Michigan's UIC program primacy application for such Class II injection wells located within the State by rule, as required under SDWA, to prevent injection activities that endanger USDWs. Accordingly, EPA codifies Michigan's Class II UIC program in the
EPA thoroughly reviewed Michigan's Class II primacy application to determine whether the State's program constitutes an “effective” program to prevent the endangerment of USDWs, in accordance with SDWA Section 1425. EPA has provided guidance with respect to factors that EPA may consider in reviewing a Class II UIC program for effectiveness. Guidance for State Submissions Under Section 1425 of the Safe Drinking Water Act (SDWA)—Ground Water Program Guidance #19—provides instructions on how states may apply for primacy approval under SDWA Section 1425, the process for approval or disapproval, and criteria that EPA may consider in approving or disapproving an application.
EPA has determined that Michigan's Class II UIC program is effective at preventing the endangerment of USDWs, and is accordingly, approving the State's program. EPA will oversee Michigan's administration of the Class II UIC program. As part of EPA's oversight responsibility, EPA will require Michigan to submit semi-annual reports of non-compliance and annual UIC performance reports. The MOA between EPA and Michigan, signed by the Regional Administrator on October 13, 2020, makes available to EPA any information obtained or used by Michigan's Class II UIC program, without restriction. EPA continues to administer the UIC program for all other injection well classes in the State and for all wells in Indian country.
The UIC program in Michigan has thus far been directly implemented by EPA for all well classes since the initiation of the program under SDWA (in 1984). EPA Region 5 has conducted
On February 15, 2018, the State published a notification in the
On April 15, 2020, EPA published a notice of Michigan's complete application in the
On March 9, 2020, EPA sent a written invitation to interested tribes, requesting a consultation regarding the agency's review of Michigan's request for program approval, in accordance with
Detailed documents covering the comments submitted to EPA through the public comment process and the tribal consultation, as well as the agency's responses and steps taken, can be viewed in the docket for this final rule (Docket ID No. EPA-HQ-OW-2020-0595). See the preceding
On March 19, 2021, EPA published in the
In total, EPA received input from 87 individual commenters. Most comments were submitted by individual citizens opposed to granting Michigan primacy for the Class II UIC program. Commenters raised concerns about underground injection, the State's application for primacy, EPA's review and rulemaking process, and a need for an additional public hearing to be held by EPA to gather further input on the agency action.
Each of the comments and EPA's responses can be viewed in the docket (ID No. EPA-HQ-OW-2020-0595) as part of the final rule. See the preceding
EPA's response to comments provides details on its regulations, guidance, processes, and actions relative to the concerns raised during the 30-day public comment period.
After considering public comments, EPA is issuing this final rule approving primacy to Michigan for the Class II UIC program. EPA's detailed response to comments document is included in this action's docket (ID No. EPA-HQ-OW-2020-0595). See the preceding
In this action, EPA is approving Michigan's Class II UIC program, whereby the State will assume primacy for regulating Class II injection wells in the State, except within Indian country. Michigan's statutes and supporting documentation are publicly available in EPA's Docket No. EPA-HQ-OW-2020-0595. This action amends 40 CFR part 147 and incorporates by reference the EPA-approved State program. EPA will continue to administer the UIC program for all other well classes in Michigan and all well classes within Indian country.
The provisions of Michigan's statutes and regulations that contain standards, requirements, and procedures applicable to owners or operators of UIC
To better serve the public, EPA is reformatting the codification of “EPA-Approved State of Michigan Safe Drinking Water Act § 1425 Underground Injection Control (UIC) Program Statutes and Regulations for Class II wells.” Instead of codifying the Michigan statutes and regulations as separate paragraphs, EPA is now incorporating by reference a compilation that contains EPA-approved Michigan statutes and regulations for Class II wells. This compilation is incorporated by reference into 40 CFR 147.1150 and is available at
Additional information about these statutes and Executive orders can be found at
This action is exempt from review by the Office of Management and Budget (OMB) because OMB has determined that the approval of primacy for the UIC program is not a significant regulatory action.
This action does not impose any new information collection burden under the PRA. EPA determined that there is no need for an Information Collection Request under the PRA because this final rule does not impose any new Federal reporting or recordkeeping requirements. Reporting or recordkeeping requirements will be based on Michigan's UIC regulations, and Michigan is not subject to the PRA. However, OMB has previously approved the information collection activities contained in the existing UIC regulations and for SDWA Section 1425, under the provisions of the PRA, 44 U.S.C. 3501
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, EPA concludes that the impact of concern for this rule is any significant adverse economic impact on small entities and that the agency is certifying that this rule will not have a significant economic impact on a substantial number of small entities if the rule has no net burden on the small entities subject to the rule. This action would not impose any new requirements on small entities. It simply approves and codifies Michigan's Class II UIC program, which meets the same standard under SDWA Section 1425 as is required for EPA's regulations governing its direct implementation of a Class II UIC well program, both of which must ensure effective programs to prevent underground injection that endangers USDWs. We have therefore concluded that this action will have no net regulatory burden for all directly regulated small entities.
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. EPA's approval of Michigan's primacy application will not constitute a Federal mandate because there is no requirement that a state establish a UIC regulatory program and because the program is a state rather than a Federal program.
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 and as explained in section I.C of this preamble. Nevertheless, EPA engaged the interested public during a public hearing and specifically conducted a consultation with federally recognized tribes to obtain unique perspectives to inform EPA's approval of Michigan's UIC Class II Program within the State, except on Indian lands, as described in section V.C of this preamble. Thus, Executive Order 13175 does not apply to this action.
EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive order. This action is not subject to Executive Order 13045 because it approves a state action as explained in section I.C of this preamble.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
EPA has determined that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or a safety standard. This action is providing Michigan with primacy under SDWA Section 1425 for a Class II UIC program, pursuant to which Michigan will be implementing a program that is effective in preventing the endangerment of USDWs. As a part of EPA's primacy review, the agency engaged the interested public during a public hearing and conducted a consultation with federally recognized tribes to obtain unique perspectives to
This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Environmental protection, Incorporation by reference, Indian lands, Intergovernmental relations, Reporting and recordkeeping requirements, Water supply.
For the reasons set out in the preamble, EPA amends 40 CFR part 147 as follows:
42 U.S.C. 300f
The UIC program for Class II injection wells in the State of Michigan, except for those in Indian country, is the program administered by the Michigan Department of Environment, Great Lakes, and Energy, approved by EPA pursuant to the Safe Drinking Water Act (SDWA) section 1425. The effective date of this program is August 29, 2022. Table 1 to paragraph (a) of this section is the table of contents of the Michigan State statutes and regulations incorporated as follows by reference. This program consists of the following elements, as submitted to the EPA in the State's program application.
(a)
(b)
(c)
(d)
(a) * * * The UIC program for Class I, III, IV, V and VI wells and all wells in Indian country in the State of Michigan is administered by the EPA. * * *
The owner or operator shall limit injection pressure to the lesser of:
(a) A value which will not exceed the operating requirements of § 144.28(f)(3)(i) or (ii) of this chapter as applicable; or
(b) A value for well head pressure calculated by using the following formula:
(a)
(i) Shall use an injection pressure no greater than the pressure established by the Regional Administrator for the field or formation in which the well is located. The Regional Administrator shall establish such a maximum pressure after notice, opportunity for comment, and opportunity for a public hearing, according to the provisions of part 124, subpart A, of this chapter, and will inform owners and operators in writing of the applicable maximum pressure; or
(ii) May inject at pressures greater than those specified in paragraph (a)(1)(i) of this section for the field or formation in which he is operating provided he submits a request in writing to the Regional Administrator and demonstrates to the satisfaction of the Regional Administrator that such injection pressure will not violate the requirements of § 144.28(f)(3)(ii)(A) and (B) of this chapter. The Regional Administrator may grant such a request after notice, opportunity for comment, and opportunity for a public hearing, according to the provisions of part 124, subpart A, of this chapter.
(2) Prior to such time as the Regional Administrator establishes field rules for maximum injection pressure based on data provided pursuant to paragraph (a)(2)(ii) of this section the owner or operator shall:
(i) Limit injection pressure to a value which will not exceed the operating requirements of § 144.28(f)(3)(ii) of this chapter; and
(ii) Submit data acceptable to the Regional Administrator, which defines the fracture pressure of the formation in which injection is taking place. A single test may be submitted on behalf of two or more operators conducting operations in the same formation if the Regional Administrator approves such submission. The data shall be submitted to the Regional Administrator within one year following the effective date of this program.
(b)
(1) Protect underground sources of drinking water (USDWs) by:
(i) Cementing surface casing by recirculating the cement to the surface from a point 50 feet below the lowermost USDW; or
(ii) Isolating all USDWs by placing cement between the outermost casing and the well bore; and
(2) Isolate any injection zones by placing sufficient cement to fill the calculated space between the casing and the well bore to a point 250 feet above the injection zone; and
(3) Use cement:
(i) Of sufficient quantity and quality to withstand the maximum operating pressure;
(ii) Which is resistant to deterioration from formation and injection fluids; and
(iii) In a quantity no less than 120% of the calculated volume necessary to cement-off a zone.
(4) The Regional Administrator may specify other requirements in addition to or in lieu of the requirements set forth in paragraphs (b)(1) through (3) of this section, as needed to protect USDWs.
(a)
(b)
Environmental Protection Agency (EPA).
Final rule.
This final rule includes corrections, clarifications, additional flexibilities, and adjustment factors to improve the Greenhouse gas Emissions Model (GEM) compliance tool for heavy-duty vehicles while more closely matching the outputs produced by the original GEM version 3.0 that was used to establish the CO
This final rule is effective on August 29, 2022. The incorporation by reference of certain publications listed in this regulation is approved by the Director of the Federal Register as of August 29, 2022.
Amy Kopin, Office of Transportation and Air Quality, Assessment and Standards Division, Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105; telephone number: (734) 214-4173; email address:
This action relates to companies that manufacture or sell new heavy-duty engines and vehicles as defined under EPA's CAA regulations.
This list is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the
This action amends the procedures for demonstrating compliance with the CO
EPA published a proposed rule on May 12, 2020 (85 FR 28153) (“Technical Amendments proposed rule”). EPA issued a corresponding final rulemaking (“Technical Amendments final rule”) relating to most revisions in the Technical Amendments proposed rule (86 FR 34308, June 29, 2021). Additionally, for the amendments in this final action, EPA published a supplemental notice of proposed rulemaking (“Technical Amendments supplemental proposed rule”) with additional amendments for certain aspects of the modeling parameters used for certifying vehicles (86 FR 34189, June 29, 2021).
This action is limited in scope and does not have significant economic or environmental impacts. EPA has therefore not estimated the potential costs or benefits of this final rule.
The Greenhouse gas Emissions Model (GEM) is a computer application that estimates the greenhouse gas (GHG) emissions and fuel efficiency performance of specific aspects of heavy-duty vehicles. GEM uses several vehicle-specific inputs, such as engine fuel maps, aerodynamic drag coefficients, and vehicle weight ratings, to simulate vehicle and engine operation and model the amount of CO
In the Technical Amendments proposed rule, we proposed several amendments to GEM 3.0, including corrections, clarifications, and additional flexibilities in a revised version of the model, GEM 3.5 (85 FR 28145). EPA also requested comment on whether any differences in GEM output values resulting from changes to the model would impact the effective stringency of the program and, if so, whether EPA should revise the GEM model itself or address such impacts via regulations (see 85 FR 28145). Comments received in response to the Technical Amendments proposed rule supported most of the proposed updates to GEM and requested additional revisions to further improve the model.
After considering the comments received, EPA applied further changes to GEM 3.5 and released in October of 2020 a new development version of GEM, GEM 3.7, to the public for download and review by stakeholders to evaluate and assess the performance of this revised model. GEM 3.7 incorporated some corrections and improvements relative to the proposed version GEM 3.5, as noted in the corresponding memorandum in the rulemaking docket (October 23, 2020 memorandum).
While evaluating GEM 3.7, we found differences in the output values for some tractor and vocational vehicles compared to the output values from GEM 3.0 (the version used to set the Phase 2 CO
In the Technical Amendments final rule, EPA finalized a revised version of GEM (GEM 3.5.1) that included the changes proposed in GEM version 3.5 as well as changes that corrected three errors in the GEM 3.5 code and did not include any adjustment factors. GEM 3.5.1 included the following updates to GEM 3.5:
• Corrected duty cycle weighting factors for vocational vehicles in the Heavy Heavy-Duty Multipurpose subcategory.
• Corrected an idle map error when the cycle average engine fuel mapping procedure is used for all three drive cycles.
• Corrected a functional error that unnecessarily required manufacturers to include transmission power loss data when using the option to enter a unique (instead of default) k-factor for the torque converter.
In the Technical Amendments supplemental proposed rule, EPA proposed to revise GEM through additional changes in an updated version of GEM (GEM 3.8 which was identical to GEM 3.7, except that GEM 3.8 included changes to the GEM HIL model). This rule also proposed to revise GEM's test procedures to include adjustment factors and to improve the GEM compliance tool for heavy-duty vehicles while more closely matching the outputs produced by the original GEM version 3.0 that was used to establish the CO
After considering the comments received in response to our Technical Amendments supplemental proposed rule, EPA applied further potential changes to GEM 3.8 and released a new development version of GEM, GEM 3.9, in December 2021. EPA also updated the adjustment factors released with the GEM 3.8 version to accommodate the changes made in the development of GEM 3.9. GEM 3.9 also included an updated method of creating these adjustment factors using unrounded GEM results instead of using the rounded GEM results as was done with GEM 3.8. GEM 3.9 was released to the public for download and review by stakeholders to evaluate and assess the performance of this revised model. GEM 3.9 incorporated corrections and improvements relative to GEM 3.8, as noted in the corresponding memorandum in the rulemaking docket.
This final rule further revises GEM and includes GEM adjustment factors within the model. Applying the adjustment factors within GEM will help reduce potential process errors.
We are adopting GEM version 4.0.
1. Changed limits on engine input to allow small negative torque inputs.
2. Corrected how GEM adjusts the idle fueling of the transient cycle by using the same idle duration time both for subtracting the idle fuel rate from the transient cycle average engine fuel map and for adding back in the simulated idle fuel rate.
3. Added an option for vocational vehicles to input a value for neutral coasting in GEM and amend the related test procedure in 40 CFR 1037.520(j)(1).
4. Corrected manual and automated manual transmissions to perform clutched upshifts for Heavy Heavy-Duty Vehicles (HDV).
5. Allow input files from previous versions of GEM.
6. Changed GEM to not merge drive idle fuel map with default steady-state fuel map.
7. Corrected errors with the default fuel maps that are used for Custom Chassis vehicles.
8. Changed the regression model that is used for interpolating the cycle average fuel maps for the cruise cycles to improve the accuracy and representativeness of the regression model.
9. Changed GEM to account for the emissions performance of stop-start automatic and engine shutdown systems (AESS) technologies when the powertrain test procedure is used to create the fuel map input file.
10. Applies mass of CO
11. Includes a change to the carbon mass fraction for E85 to the value in Table 1 of 40 CFR 1036.530.
12. Includes a 5% tolerance for declared idle target speed vs idle fuel map test points.
13. Changed how GEM models powertrain accessory work for 55/65 mph cruise cycles and idle cycles.
a.
b.
14. Changed GEM output label “FEL CO
15. Changed units of GEM tire rolling resistance input from “kg/t” to “N/kN”.
16. Updated GEM hardware in the loop (HIL) to better reflect operation during transmission shifting.
To ensure that these changes we are finalizing into GEM 4.0 do not change the effective stringency of the Phase 2 CO
We are incorporating by reference into the regulations the revised version of the model, GEM 4.0. GEM 4.0 is adopted upon the effective date of this final rule to demonstrate compliance with the Phase 2 standards under 40 CFR 1037.520, including end-of-year reporting. Due to the timing of this final rule, we are applying the requirement to use GEM version 4.0 starting with MY 2024. EPA is also finalizing provisions to allow for an orderly transition to the updated GEM version. For MY 2022 through 2023, manufacturers may also use GEM 3.0 or GEM 3.5.1 under interim provision § 1037.150(bb) to demonstrate compliance with the Phase 2 standards. Manufacturers may use different versions of GEM for different families within each model year before MY 2024. Manufacturers may also change versions of GEM for MY 2022 and 2023 vehicle families between the initial application for certification and submission of the final report after the end of the model year; however, manufacturers would need to document any changes in the GEM version for MY 2022 and 2023 vehicle families by submitting a running change as an amendment to the application for certification under § 1036.225. We also note that, once a manufacturer amends an application for certification to rely on GEM 4.0 or submits a new application that relies on GEM 4.0 under interim provision § 1037.150(bb), the manufacturer may not revert back to an earlier version of GEM for that vehicle family.
Changing to a different version of GEM for MY 2021 is a special case. Manufacturers have certified all their MY 2021 families using either GEM 3.0 or GEM 3.5.1. However, the model year has already ended. The flexibility to use a different official version of GEM, including GEM 4.0, therefore applies only for the end-of-year report that is due in September 2022. We are also adopting this flexibility only for vehicle families certified to the standards for custom chassis in § 1037.105(h). We are providing this flexibility for vehicle families meeting standards for custom chassis because we determined that there was an unintended increase in effective stringency for those vehicles in GEM 3.5.1. Manufacturers don't need the flexibility to change GEM versions for other families because they did not have this unexpected impact in GEM 3.5.1 and they have already closed out their model year. Finally, manufacturers must document any change in the version of GEM for end-of-year reporting in the submission of those end-of-year reports.
The requirement to start using GEM 4.0 also applies starting with MY 2024 for manufacturers generating fuel maps using either engine testing or powertrain testing. Powertrain fuel mapping procedures are including in the Hardware-in-Loop (HIL) model that is part of GEM. Under interim provision 40 CFR 1036.150(r), manufacturers may certify in MY 2021 through 2023 with fuel maps generated using GEM 3.0, GEM 3.5.1, GEM HIL 3.8, or GEM 4.0. Manufacturers may continue to certify in MY 2024 and later using fuel maps generated using earlier GEM versions in cases where the manufacturer qualifies for carryover certification. If we conduct or direct the manufacturer to do confirmatory testing, selective enforcement audits, or in-use testing of a set of engine or powertrain fuel maps, we will use or direct the manufacturer to use the same version of GEM that the manufacturer used to create those fuel maps. We intend to review the manufacturer's use of this carryover allowance going forward; we may consider in a future rulemaking whether
We are finalizing revisions to the regulatory text in 40 CFR parts 1036 and 1037 to clarify or make changes to the test procedures used to create inputs for GEM.
We are finalizing changes to 40 CFR 1036.503(b)(4) to address the handling and use of automatic stop-start systems and automatic engine shutdown systems when performing powertrain fuel map testing under 40 CFR 1037.550. Finalization of the Phase 2 technical amendments left it unclear with respect to how these systems and accessory loads were handled by GEM for powertrain testing. The revisions require that any engine stop-start and automatic shutdown systems be disabled prior to performing powertrain testing, as the effects of these systems will be handled by GEM, when GEM is used to determine the emissions of the vehicle. We are also clarifying the accessory load that should be used by primary intended service class during the powertrain test for hybrid engines so that hybrid engines are tested with the same accessory loads that are used for conventional engines. The power representing the accessory load added for Light HDV, Medium HDV, and Heavy HDV is 1.5, 2.5, and 3.5 kW, respectively.
In GEM 3.5.1, finalized in the Technical Amendments final rule, we included updates to handle point deletion in GEM but did not update our regulation, which required the prior approach of manual removal of such points. Consistent with this prior change to having GEM handle point deletion (now in GEM 4.0), we are now removing that requirement in 40 CFR 1036.535(d)(3), for steady-state fuel maps used for cycle-average fuel mapping of the highway cruise cycles, that requires manual removal of the points from the default map that are below 115% of the maximum speed and 115% of the maximum torque of the boundaries of the points measured in 40 CFR 1036.535(d)(1). See Section 1.7 of the Response to Comments document for further discussion.
We are finalizing changes to GEM inputs determined in 40 CFR 1036.540(e) for cycle-average fuel maps for the cruise cycles. This revision changes the cruise cycle fuel map outputs from N/V (powertrain rotational speed divided by vehicle speed in revolutions per meter as defined specifically in 40 CFR part 1036), fuel mass consumption, and work to average engine speed, average engine torque, fuel mass consumption, and work. We are also adding a new vehicle configuration output matrix for cruise cycles to denote the differences that now exist for the testing outputs needed for GEM for transient and cruise cycles. These changes align the test procedure with changes to the regression model in GEM that is used for interpolating the cycle average fuel maps for the cruise cycles. The change in the regression model aligns the GEM results when the cycle-average method is used for the cruise cycles with the GEM results when the standard engine fuel mapping procedure is used (40 CFR 1036.503(b)(1)).
We are finalizing changes in 40 CFR 1037.510 to correct the example problem that solves for
We are finalizing changes in 40 CFR 1037.520(j)(1) to allow the input value of 1.5 in GEM o vocational vehicles that include intelligent controls (predictive cruise control). This change recognizes the CO
We are finalizing an amendment in 40 CFR 1037.550(a)(8) to clarify that accessory loads should not be included in powertrain testing when conducting a powertrain test to generate inputs to GEM if torque is measured at the axle input shaft or wheel hubs. We are also finalizing changes to 40 CFR 1037.550(f) to clarify for hybrid engines that GEM must be configured with the applicable accessory load as specified in 40 CFR 1036.503. We are also finalizing a change at 40 CFR 1037.550(o)(4) to note that the regulatory section is now applicable only to the transient cycle specified in appendix A of 40 CFR part 1037. We are also finalizing a new 40 CFR 1037.550(o)(6) to require calculating the average powertrain output speed and the average powertrain output torque for the cruise cycles. The changes to the calculations in 40 CFR 1037.550(o)(6) are necessary to address the changes in GEM inputs required for cycle-average fuel maps for cruise cycles. We are also adding a new vehicle configuration output matrix for cruise cycles to denote the differences that now exist for the testing outputs needed for GEM for transient and cruise cycles. As discussed in Section III of the preamble, we are changing the regression model used for interpolating the cycle-average fuel maps for the cruise cycles to improve the accuracy and representativeness of the regression model.
Additional information about these statutes and Executive Orders can be found at
This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the docket.
This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control numbers 2060-0287. This rule clarifies procedures without affecting information collection requirements.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities and that the agency is certifying that this rule will not have a significant economic impact on a substantial number of small entities if the rule has no net burden on the small entities subject to the rule. This action is designed to make various corrections and adjustments to compliance provisions; as a result, we anticipate no costs associated with this rule. We have therefore concluded that this action will have no net regulatory burden for all directly regulated small entities.
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. This action imposes no enforceable duty on any Tribal, state, or local governments. Requirements for the private sector do not exceed $100 million in any one year.
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. This rule will be implemented at the Federal level and affects engine and vehicle manufacturers. Thus, Executive Order 13175 does not apply to this action.
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. There are no environmental health or safety risks created by this action that could present a disproportionate risk to children.
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. Further, we have concluded that this action is not likely to have any adverse energy effects because the regulatory changes are limited to certification procedures for meeting the Phase 2 GHG standards.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
With one exception, the standards included in the regulatory text as incorporated by reference in 40 CFR part 1037 were all previously approved for incorporation by reference (IBR) and no change is included in this action. In accordance with the requirements of 1 CFR 51.5, we are incorporating by reference new versions of the GEM. EPA is publishing new versions of the GEM, which we use for certifying heavy-duty highway vehicles to the Phase 2 greenhouse gas emission standards in 40 CFR part 1037. We are also restoring a version of GEM that we withdrew in a different rulemaking. The model calculates GHG emission rates for heavy-duty highway vehicles based on input values defined by the manufacturer. GEM Version 4.0 applies broadly for Phase 2 vehicles. GEM Version 3.0 and GEM Version 3.5.1 apply optionally for model years 2021 through 2023 to facilitate compliance during a transition period. The different versions of GEM are referenced in § 1037.520. The model is available from EPA as noted in the amended regulations at 40 CFR 1037.810.
The EPA believes this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). Due to the small environmental impact, this regulatory action will not have a disproportionate adverse effect on minority populations, low-income populations, or indigenous peoples.
This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Under CAA section 307(b)(1), judicial review of this final rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by September 26, 2022. Under CAA section 307(d)(7)(B), only an objection to this final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. CAA section 307(d)(7)(B) also provides a mechanism for EPA to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration should submit a Petition for Reconsideration to the Office of the Administrator, Environmental Protection Agency, Room 3000, William Jefferson Clinton Building, 1200 Pennsylvania Ave. NW, Washington, DC 20460, with an electronic copy to the person listed in
Environmental protection, Administrative practice and procedure, Air pollution control, Confidential business information, Greenhouse gases, Labeling, Motor vehicle pollution, Reporting and recordkeeping requirements, Warranties.
Environmental protection, Administrative practice and procedure, Air pollution control, Confidential business information, Incorporation by reference, Labeling, Motor vehicle pollution, Reporting and recordkeeping requirements, Warranties.
For the reasons set out in the preamble, we are amending title 40, chapter I of the Code of Federal Regulations as set forth below.
42 U.S.C. 7401-7671q.
(r)
(2) Compliance testing will be based on the GEM version you used to generate fuel maps for certification. For example, if you perform a selective enforcement audit with respect to fuel maps, use the same GEM version that you used to generate fuel maps for certification. Similarly, we will use the same GEM version that you used to generate fuel maps for certification if we perform confirmatory testing with one of your engine families.
(b) * * *
(3)
(4)
(e)
(1) Your declared fuel mass consumption,
(2) We will determine
(3) For the transient cycle, calculate engine output speed per unit vehicle speed,
(4) The engine idle speed and torque, by taking the average engine speed and torque measured during the engine test while the vehicle is not moving. Note that the engine cycle created by GEM has a flag to indicate when the vehicle is moving.
(5) For the cruise cycles, calculate the average engine output speed,
(6) Positive work determined according to 40 CFR part 1065,
(7) The following tables illustrate the GEM data inputs corresponding to the different vehicle configurations for a given duty cycle:
(i) For the transient cycle:
(ii) For the cruise cycles:
42 U.S.C. 7401-7671q.
(bb)
(2) Vehicle manufacturers may certify for model years 2021 through 2023 based on fuel maps from engines or powertrains that were created using GEM Phase 2, Version 3.0, Version 3.5.1, or Version 4.0 (incorporated by reference in § 1037.810). Vehicle manufacturers may alternatively certify in those years based on fuel maps from powertrains that were created using GEM Phase 2, Version 3.0, GEM HIL model 3.8, or GEM Phase 2, Version 4.0 (incorporated by reference in § 1037.810). Vehicle manufacturers may continue to certify vehicles in later model years using fuel maps generated with earlier versions of GEM for model year 2024 and later vehicle families that qualify for using carryover provisions in § 1037.235(d).
(b) Calculate the official emission result from the following equation:
Class 7 vocational vehicle meeting the Phase 2 standards based on the Regional duty cycle.
This section describes how to use the Greenhouse gas Emissions Model (GEM) (incorporated by reference in § 1037.810) to show compliance with the CO
(j) * * *
(1)
The additions and revisions read as follows:
(a) * * *
(3) Powertrain testing depends on models to calculate certain parameters. You can use the detailed equations in this section to create your own models, or use the GEM HIL model contained within GEM Phase 2, Version 4.0 (incorporated by reference in § 1037.810) to simulate vehicle hardware elements as follows:
(7) [Reserved]
(8) Do not apply accessory loads when conducting a powertrain test to generate inputs to GEM if torque is measured at the axle input shaft or wheel hubs.
(f)
(o)
(1) Correct the measured or calculated fuel masses,
(2) Declare fuel masses,
(3) [Reserved]
(4) For the transient cycle specified in § 1037.510(a)(2)(i), calculate powertrain output speed per unit of vehicle speed,
(i) For testing with torque measurement at the axle input shaft:
(ii) For testing with torque measurement at the wheel hubs, use Eq. 1037.550-8 setting
(iii) For testing with torque measurement at the engine's crankshaft:
(5) Calculate engine idle speed, by taking the average engine speed measured during the transient cycle test while the vehicle speed is below 0.100 m/s. (
(6) For the cruise cycles specified in § 1037.510(a)(2)(ii), calculate the average powertrain output speed,
(7) Calculate positive work,
(8) The following tables illustrate the GEM data inputs corresponding to the different vehicle configurations for a given duty cycle:
(i) For the transient cycle:
(ii) For the cruise cycles:
(c) U.S. EPA, Office of Air and Radiation, 2565 Plymouth Road, Ann Arbor, MI 48105,
(1) Greenhouse gas Emissions Model (GEM), Version 2.0.1, September 2012 (“GEM version 2.0.1”), IBR approved for § 1037.520.
(2) Greenhouse gas Emissions Model (GEM) Phase 2, Version 3.0, July 2016 (“GEM Phase 2, Version 3.0”); IBR approved for § 1037.150(bb).
(3) Greenhouse gas Emissions Model (GEM) Phase 2, Version 3.5.1, November
(4) Greenhouse gas Emissions Model (GEM) Phase 2, Version 4.0, April 2022 (“GEM Phase 2, Version 4.0”); IBR approved for §§ 1037.150(bb); 1037.520; 1037.550(a).
(5) GEM's MATLAB/Simulink Hardware-in-Loop model, Version 3.8, December 2020 (“GEM HIL model 3.8”); IBR approved for § 1037.150(bb).
The computer code for these models is available as noted in paragraph (a) of this section. A working version of the software is also available for download at
Board of Governors of the Federal Reserve System (Board).
Notice of proposed rulemaking.
The Board is inviting comment on a proposed regulation that would implement the Adjustable Interest Rate (LIBOR) Act. The proposed rule would establish benchmark replacements for contracts governed by U.S. law that reference certain tenors of U.S. dollar LIBOR (the overnight and one-, three-, six-, and 12-month tenors) and that do not have terms that provide for the use of a clearly defined and practicable replacement benchmark rate following the first London banking day after June 30, 2023. The proposed rule also would provide additional definitions and clarifications consistent with the Adjustable Interest Rate (LIBOR) Act.
Comments must be submitted by August 29, 2022.
You may submit comments, identified by Docket No. R-1775, RIN 7100-AG34, by any of the following methods:
•
•
•
•
All public comments are available from the Board's website at
David Bowman, Senior Associate Director, 202-452-2334, Division of Monetary Affairs; Lucy Chang, Special Counsel, 202-475-6331, or Cody Gaffney, Attorney, 202-452-2674, both of the Legal Division; or Lesley Chao, Lead Financial Institution Policy Analyst, 202-974-7063, Division of Supervision and Regulation. For users of TTY-TRS, please call 711 from any telephone, anywhere in the United States.
LIBOR, formerly known as the London Interbank Offered Rate, is an interest rate benchmark that was the dominant reference rate used in financial contracts in recent decades and remains in extensive use today, serving as the benchmark rate in more than $200 trillion worth of contracts worldwide.
LIBOR is intended to reflect the rate at which large banks can borrow wholesale funds on an unsecured basis. LIBOR is calculated based on submissions contributed by a panel of large, globally active banks (LIBOR panel banks). Until December 31, 2021, LIBOR's administrator calculated and published LIBOR each London business day for five currencies (USD, GBP, EUR, CHF, and JPY) and seven borrowing periods, known as tenors (overnight, one week, one month, two months, three months, six months, and twelve months).
Over the past decade, financial regulators have expressed growing concern regarding the structural vulnerabilities and robustness of LIBOR.
Despite increased regulatory oversight and efforts to improve LIBOR, confidence in LIBOR continued to wane, and financial regulators and market participants began to search for alternative reference rates and develop plans for a transition away from LIBOR. In the United States, this effort has been led by the Alternative Reference Rates
In July 2017, following the departure of some panel banks, the FCA announced that the remaining LIBOR panel banks had voluntarily agreed to sustain LIBOR through the end of 2021 to facilitate an orderly transition away from LIBOR.
To allow most legacy USD LIBOR contracts to mature without disruption, the FCA also announced that the panels for the remaining five tenors of USD LIBOR would continue through, but cease after, June 30, 2023. The FCA has signaled that it could consider whether to require IBA to continue publishing one-, three-, or six-month USD LIBOR on a synthetic basis for some period after June 30, 2023 (synthetic LIBOR).
In response to the planned cessation of USD LIBOR, U.S. financial regulators have encouraged market participants to transition away from USD LIBOR as a reference rate as soon as practicable. For example, in November 2020, the Office of the Comptroller of the Currency (OCC), the Board, and the Federal Deposit Insurance Corporation (FDIC) issued an interagency statement stating that banking organizations generally should not enter into new contracts referencing USD LIBOR after December 31, 2021.
Notwithstanding governmental and private-sector efforts to encourage market participants to prepare for the cessation of USD LIBOR, there are a significant number of existing contracts that reference USD LIBOR, will not mature by June 30, 2023, and cannot be easily amended. Of particular concern are so-called “tough legacy contracts,” which are contracts that reference USD LIBOR and will not mature by June 30, 2023, but which lack adequate fallback provisions providing for a clearly defined or practicable replacement benchmark following the cessation of USD LIBOR. To address these tough legacy contracts, multiple states adopted legislation, initially proposed by the ARRC, to provide a statutory remedy for financial contracts governed by the laws of the enacting states that reference USD LIBOR, will not mature until after USD LIBOR ceases or becomes nonrepresentative, and have no effective
Recognizing the need for a uniform, nationwide solution for replacing references to USD LIBOR in tough legacy contracts, on March 15, 2022, Congress enacted the Adjustable Interest Rate (LIBOR) Act (the “Act”) as part of the Consolidated Appropriations Act, 2022.
Section 104 is the main operative provision of the Act. Section 104 generally distinguishes between three categories of LIBOR contracts with different types of fallback provisions. For these purposes, the Act defines “LIBOR contract” broadly to include any obligation or asset that, by its terms, uses the overnight, one-month, three-month, six-month, or 12-month tenors of USD LIBOR as a benchmark.
The first category of LIBOR contracts encompasses contracts that contain fallback provisions identifying a specific benchmark replacement that is not based in any way on any of the Act's USD LIBOR values (except to account for the difference between LIBOR and the benchmark replacement) and that do not require any person (other than a benchmark administrator)
The second category of LIBOR contracts encompasses contracts that contain no fallback provisions, as well as LIBOR contracts with fallback provisions that do not identify a determining person (as described below) and that only (i) identify a benchmark replacement that is based in any way on any of the Act's USD LIBOR values (except to account for the difference between LIBOR and the benchmark replacement) or (ii) require that a person (other than a benchmark administrator) conduct a poll, survey, or inquiries for quotes or information concerning interbank lending or deposit rates.
For contracts that fall into this second category, the Act provides a series of statutory protections, enumerated in section 105 of the Act, for persons who use the Board-selected benchmark replacement, including that no person shall be subject to any claim or cause of action in law or equity or request for equitable relief, or have liability for damages, arising out of the use of the Board-selected benchmark replacement as a benchmark replacement.
The third category of LIBOR contracts encompasses LIBOR contracts that contain fallback provisions authorizing a determining person to determine a benchmark replacement.
Although the Act does not require a determining person to select the Board-selected benchmark replacement as the benchmark replacement for a LIBOR contract, the Act provides a series of statutory protections, enumerated in section 105 of the Act, for any determining person who does so, including that a determining person generally shall not be subject to any claim or cause of action in law or equity or request for equitable relief, or have
Where the Board-selected benchmark replacement becomes the benchmark replacement for a LIBOR contract (either by operation of law or via the selection of a determining person), the Act contemplates that certain conforming changes to a LIBOR contract may be necessary to facilitate the transition from USD LIBOR to the Board-selected benchmark replacement. These “benchmark replacement conforming changes” may arise in one of two ways. First, the Act authorizes the Board to determine benchmark replacement conforming changes that, in its discretion, would address one or more issues affecting the implementation, administration, and calculation of the Board-selected benchmark replacement in LIBOR contracts.
Section 104 of the Act provides that all benchmark replacement conforming changes (whether determined by the Board or, if applicable, a calculating person) shall become an integral part of the LIBOR contract, and a calculating person shall not be required to obtain consent from any other person prior to the adoption of benchmark replacement conforming changes.
The Act includes various other provisions beyond the main operative provisions in section 104 and the statutory protections enumerated in section 105.
Section 110 of the Act directs the Board to promulgate regulations to carry out the Act not later than 180 days after enactment. Pursuant to this authority, the Board is proposing a new regulation to implement the Act.
Proposed § 253.1 sets forth the authority for, purpose of, and scope of the proposed rule. Significantly, and consistent with the statute as described above, the proposal does not apply to (i) contracts that do not reference the overnight or one-, three-, six-, or 12-month tenors of LIBOR or (ii) LIBOR contracts that have terms providing for the use of a clearly defined and practicable replacement benchmark for LIBOR (including LIBOR contracts where the determining person selects a benchmark replacement other than the Board-selected benchmark replacement), except as provided for in proposed § 253.3(b), which is discussed further below.
Proposed § 253.2 provides definitions for many of the terms used in the proposed rule. Most of the defined terms in proposed § 253.2 are substantially the same as the defined terms in the LIBOR Act. In addition, however, proposed § 253.2 includes definitions for the terms “CME Term SOFR,” “covered contract,” “covered GSE contract,” “derivative transaction,” “ISDA protocol,” and “non-covered contract,” each of which is discussed below in connection with their use in proposed § 253.3 or § 253.4, as applicable.
Additionally, proposed § 253.2 defines “business day” to mean any day except for (i) a Saturday, (ii) a Sunday, (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities, or (iv) a day on which the FRBNY, with advance notice, chooses not to publish its Treasury repo reference rates if participants in the Treasury repo market broadly expect to treat that day as a holiday. This definition of “business day” is relevant for purposes of proposed § 253.4, discussed below, and is consistent with the FRBNY's publication dates for SOFR.
Finally, proposed § 253.2 defines “state” to mean any state, commonwealth, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, American Samoa, Guam, or the United States Virgin Islands. This definition of “state” is relevant for purposes of the scope of the proposed rule, and the preemption provisions in proposed § 253.6. As stated in proposed § 253.1(c), the LIBOR Act and the proposed regulation apply to certain LIBOR contracts governed by federal law or the law of any state. Because Congress intended the LIBOR Act to apply on a nationwide basis,
Proposed § 253.3 addresses the applicability of the regulation to LIBOR contracts. Specifically, for LIBOR contracts that do not provide for the use of a clearly defined or practicable replacement benchmark rate (referred to as “covered contracts” in the proposed rule), the applicable Board-selected benchmark replacement indicated in § 253.4 of the proposed rule shall be the benchmark replacement for the contract on and after the LIBOR replacement date.
Under the proposed rule, “covered contract” would include, for example, a LIBOR contract that does not specify any benchmark replacement or identify a determining person who could select such a benchmark replacement. Pursuant to proposed § 253.3(a)(2)(i)(B), on the LIBOR replacement date, the LIBOR contract would be a covered contract.
Another example would be a LIBOR contract that specifies the last published LIBOR value as the benchmark replacement. Pursuant to proposed § 253.3(a)(2)(ii)(A), this benchmark replacement would be disregarded as of the LIBOR replacement date. As a result, on the LIBOR replacement date, the LIBOR contract would be a covered contract because it has no fallback provisions, as described in proposed § 253.3(a)(2)(i)(A).
However, the Board's proposed rule would clarify that a determining person may select the Board-selected benchmark replacement specified in § 253.4 of the proposed rule as the benchmark replacement for a LIBOR contract.
Separately, the Board is aware of a potential ambiguity regarding the application of the LIBOR Act to a subset of non-covered contracts. Specifically, the Board is aware that some LIBOR contracts contain fallback provisions that (i) either identify a clear and practicable benchmark replacement or authorize a determining person to select a benchmark replacement, but (ii) are triggered only when LIBOR is unavailable. Significantly, the fallback provisions in these LIBOR contracts are not triggered expressly when LIBOR is available but nonrepresentative.
As mentioned previously, the Board understands it is possible that, on and after the LIBOR replacement date, IBA (or any successor administrator) may continue to publish a synthetic version of LIBOR that, although called “LIBOR,” has been expressly pronounced by the FCA as not representative of the underlying market and economic reality LIBOR had been intended to measure—namely, the rate at which banks may lend to, or borrow from, other banks or agents in the money markets.
In light of this potential ambiguity, the Board is considering whether, for clarity, the final rule should provide that, with respect to any LIBOR contract that is not a covered contract (other than a LIBOR contract where the parties have agreed in writing that the contract shall not be subject to the LIBOR Act), LIBOR shall be replaced with the benchmark replacement specified pursuant to the LIBOR contract on the earlier of (i) the date specified pursuant to the LIBOR contract or (ii) the LIBOR replacement date. Under such a rule, the benchmark replacement specified pursuant to a non-covered contract would become operative on or before the LIBOR replacement date (depending on the contract's terms), even in the event a nonrepresentative rate called “LIBOR” in the form of synthetic LIBOR continues to be published on and after the LIBOR replacement date. The Board believes that, for the reasons described below, such a clarification may promote the purposes of the LIBOR Act.
First, the findings and purpose of the LIBOR Act indicates that Congress sought to “establish a clear and uniform process . . . for
Second, in light of the fact that a non-covered contract would provide for use of a clear and practicable benchmark replacement, the Board believes a sensible and reasonable expectation of the parties at the time of the agreement would have been that, upon the nonrepresentativeness of LIBOR, this fallback provision would operate to replace LIBOR, rather than binding the parties to a synthetic LIBOR rate that may not have been anticipated to exist at the time of the agreement. As discussed, although synthetic LIBOR would be called “LIBOR,” it would be a fundamentally different rate that would not be representative of the underlying market and economic reality concerning the setting of rates at which banks may lend to, or borrow from, other banks or agents in the money markets.
For these reasons, the Board seeks feedback on whether the final rule should provide generally that the benchmark replacement specified pursuant to a non-covered contract would replace references to LIBOR in that contract on the earlier of the date specified pursuant to the LIBOR contract or the LIBOR replacement date. If adopted, the provision would not, however, apply to a LIBOR contract that is a non-covered contract because the parties have agreed in writing that the contract shall not be subject to the LIBOR Act.
Proposed § 253.4 identifies the Board-selected benchmark replacements for various types of covered contracts. The Board agrees with the ARRC's observation that different benchmark replacements may be appropriate for derivative transactions and other transactions (hereafter, “cash transactions”).
The spread adjustments specified in the Act are intended to address certain differences between SOFR and LIBOR, including the fact that LIBOR is unsecured and therefore includes an element of bank credit risk which may cause it to be higher than SOFR.
With respect to derivative transactions, the Board observes that many derivative market participants have adhered to the ISDA 2020 IBOR Fallbacks Protocol (ISDA protocol) to amend their existing derivative transaction contracts to incorporate fallback provisions that would replace references to USD LIBOR with a SOFR-based rate.
The Board has reviewed the ISDA protocol and believes the rate specified in the ISDA protocol would be a reasonable, SOFR-based benchmark replacement for LIBOR for derivative transactions. Further, as derivatives markets already appear to reference SOFR compounded in arrears and there has been significant adherence to the ISDA protocol, the Board believes it would be sensible to avoid disruption to these markets' efforts to transition away from referencing LIBOR. Promoting use of a consistent approach to replace LIBOR references in derivative transactions should enhance financial stability. This approach also is consistent with the recommendations of the ARRC.
ISDA has selected Bloomberg Index Services Limited (Bloomberg) to calculate and publish the Fallback Rate (SOFR) referenced in its ISDA protocol.
With respect to cash transactions that are not consumer loans or covered GSE contracts, consistent with the ARRC's recommendations,
CME Group calculates and publishes CME Term SOFR.
Under the LIBOR Act, any Board-selected benchmark replacement applicable to consumer loans shall, for the one-year period beginning on the LIBOR replacement date, incorporate an amount that modifies the otherwise-applicable tenor spread adjustment specified in the Act.
The Board believes that a forward-looking term rate based on SOFR would be an appropriate benchmark replacement for consumer loans. Accordingly, for consumer loans during the one-year period beginning on the LIBOR replacement date, the proposed rule would replace one-, three-, six-, and 12-month LIBOR with (i) the corresponding one-, three-, six-, or 12-month CME Term SOFR, plus (ii) the transition tenor spread adjustment.
Refinitiv Limited has stated it will publish and provide rates for consumer loans that sum (i) CME Term SOFR and (ii) the transition tenor spread adjustment (for the one-year period beginning on the LIBOR replacement date) or the tenor spread adjustment specified in the LIBOR Act (after that one-year period), consistent with the proposed rule and the recommendations of the ARRC.
Under the proposed rule, a “covered GSE contract” would be “a covered contract for which a GSE is identified as a party in the transaction documents and that is (i) a commercial or multifamily mortgage loan, (ii) a commercial or multifamily mortgage-backed security, (iii) a collateralized mortgage obligation, (iv) a credit risk transfer transaction, or (v) a Federal Home Loan Bank advance.”
As with other cash transactions that are not consumer loans, the Board believes that references to overnight LIBOR in covered GSE contracts should be replaced by SOFR plus the static spread adjustment in the LIBOR Act for overnight LIBOR. However, with respect to covered GSE contracts referencing one-month, three-month, six-month, or 12-month LIBOR, the Board notes that, since 2020, the Federal Housing Finance Agency has worked with its supervised GSEs—the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, and the Federal Home Loan Banks—generally to replace USD LIBOR with the 30-calendar-day compounded average of SOFR (30-day Average SOFR), as published by the FRBNY,
As discussed, under the proposed rule, references to “LIBOR” in LIBOR contracts generally would be replaced with the proposed Board-selected benchmark replacement, without any modification of other contractual provisions.
The LIBOR Act authorizes the Board to require any additional technical, administrative, or operational changes, alterations, or modifications to LIBOR contracts based on a determination such changes, alterations, or modifications would address one or more issues affecting the implementation, administration, and calculation of the Board-selected benchmark replacement in LIBOR contracts (conforming changes).
For clarity, the proposed rule also indicates that, with respect to a LIBOR contract that is not a consumer loan, a calculating person may make any additional technical, administrative, or operational changes, alterations or modifications that, in that person's reasonable judgment, would be necessary or appropriate to permit the implementation, administration, and calculation of the Board-selected benchmark replacement under or with respect to a LIBOR contract after giving due consideration to any changes, alterations, or modifications otherwise required by the Board under the proposed rule.
As noted, section 107 of the LIBOR Act expressly preempts any provision of state or local law relating to the selection or use of a benchmark replacement or related conforming changes, or expressly limiting the manner of calculating interest (including the compounding of interest) as that provision applies to the selection or use of a Board-selected benchmark replacement or benchmark replacement conforming changes.
The Board proposes that the proposed rule, if finalized, will become effective on the first day of the next calendar quarter that begins 30 days after publication of the final rule in the
The Board invites comment on all aspects of the proposed rule. In addition, the Board invites comment on the following specific questions related to the proposed rule:
• What, if any, alternative SOFR-based benchmark replacements should the Board consider for derivative transactions instead of Fallback Rate (SOFR) as defined in the ISDA protocol (
• Are there any categories of covered contracts for which the Board should consider an alternative SOFR-based Board-selected benchmark replacement? What aspects of the nature, circumstances, or characteristics (
• What, if any, additional clarifications should the Board consider regarding the Board-selected benchmark replacements? Why would those clarifications be helpful?
• What, if any, additional clarifications should the Board consider regarding the definition of “covered contract”? For example, should the Board clarify that § 253.3(a)(2)(ii)(B) of the proposed regulation—which generally nullifies any references in the fallback provisions of a LIBOR contract to a requirement that a person (other than a benchmark administrator) conduct a poll, survey, or inquiries for quotes or information concerning interbank lending or deposit rates—applies to a contract that requires a person to poll for “Eurodollar” deposit rates? What, if any, additional clarifications should the Board consider regarding other defined terms in the proposed rule?
• Is the proposed provision concerning the application of the proposed rule to non-covered contracts sufficiently clear? What, if any, additional clarifications should the Board consider with respect to non-covered contracts? For example, should the final rule address the ambiguity discussed above regarding LIBOR contracts with fallback provisions that lack an express nonrepresentativeness trigger, perhaps by indicating that those contracts' fallback provisions would be triggered on the LIBOR replacement date?
• What, if any, additional clarifications, should the Board consider regarding selections of benchmark replacements by determining persons, including their ability to select a replacement on or before the LIBOR replacement date? For example, should the Board consider requiring a determining person to provide notice to one or more parties concerning the selection and, if so, what specific notification requirements would be appropriate and why? What, if any, potential litigation or other risks could result from such a notification requirement, and how might the Board address those risks?
• What, if any, benchmark replacement conforming changes should the Board consider (
• Should the Board incorporate into the regulation the statutory protections in section 105 of the Act? If so, should the Board make any clarifications related to these statutory protections?
The Regulatory Flexibility Act, 5 U.S.C. 601
The Board is providing an IRFA with respect to the proposed rule. The Board invites comment on all aspects of this IRFA.
The Board is issuing the proposed rule to implement its statutory mandate in the LIBOR Act. Specifically, section 110 of the Act directs the Board to promulgate regulations to carry out the Act not later than 180 days after enactment. In general, the proposed rule would codify into regulation the rules that are laid out in the Act; under the Act, as described below, the Board's discretion is limited to a few key areas, such as the selection of Board-selected benchmark replacements based on SOFR.
Congress enacted the LIBOR Act to provide a uniform, nationwide solution for replacing references to LIBOR in tough legacy contracts—contracts governed by U.S. law that reference USD LIBOR and that will not mature until after USD LIBOR ceases or becomes nonrepresentative, but have no effective means to replace LIBOR after it ceases or becomes nonrepresentative. The statute directs the Board to select one or more benchmark replacements based on SOFR that will replace LIBOR by operation of law following the LIBOR replacement date. In this way, the Act and the Board's implementing regulation should preclude disruptive litigation related to tough legacy contracts.
The proposed rule would primarily apply to the parties to covered contracts, as defined in § 253.3(a)(2) of the proposal.
The Board does not believe that it is feasible to provide an estimate of the number of small entities to which the proposed rule will apply.
The proposed rule would not impose any reporting or recordkeeping requirements on the parties to covered or non-covered contracts. With respect to broader compliance requirements, the proposed rule would not require the parties to covered contracts to take any affirmative steps (such as amending their contracts).
The Board is not aware of any federal rules that may duplicate, overlap with, or conflict with the proposed rule.
Although section 110 of the LIBOR Act directs the Board to promulgate regulations to carry out the Act, the Board's discretion under the Act is limited to (i) selecting SOFR-based benchmark replacements and adjusting them to include the statutorily prescribed tenor spread adjustment (and, if applicable, transition tenor spread adjustment), (ii) determining any benchmark replacement conforming changes, and (iii) determining the LIBOR replacement date (in the event that any LIBOR tenor ceases or becomes nonrepresentative prior to the planned LIBOR cessation date).
As discussed, the Board has considered and invites comment on possible alternative SOFR-based benchmark replacements. The Board also invites comment on whether it should consider any benchmark replacement conforming changes.
In accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3506; 5 CFR part 1320 Appendix A.1), the Board may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a valid Office of Management and Budget (OMB) control number. The Board reviewed the proposed rule under the authority delegated to the Board by the OMB and determined that it contains no collections of information under the
Section 722 of the Gramm-Leach-Bliley Act (Pub. L. 106-102, 113 Stat. 1338, 1471, 12 U.S.C. 4809) requires the federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The Board has sought to present the proposed rule in a simple and straightforward manner and invites comment on the use of plain language and whether any part of the proposed rule could be more clearly stated.
Banks and banking, Interest rates
For the reasons stated in the preamble, the Board of Governors of the Federal Reserve System proposes to add new part 253 to 12 CFR chapter II, as follows:
Pub. L. 117-103, div. U.
(a)
(b)
(c)
(a)
(1)
(2)
(A) The LIBOR contract contains no fallback provisions;
(B) The LIBOR contract contains fallback provisions that identify neither—
(
(
(C) The LIBOR contract contains fallback provisions that identify a determining person, but the determining person has failed to select a benchmark replacement by the earlier of the LIBOR replacement date and the latest date for selecting a benchmark replacement according to the terms of the LIBOR contract.
(ii) For purposes of this part, on the LIBOR replacement date, any reference in any fallback provisions of a LIBOR contract to the following shall be disregarded as if not included in the fallback provisions of such LIBOR contract and shall be deemed null and void and without any force or effect:
(A) A benchmark replacement that is based in any way on any LIBOR value, except to account for the difference between LIBOR and the benchmark replacement; or
(B) A requirement that a person (other than a benchmark administrator) conduct a poll, survey, or inquiries for quotes or information concerning interbank lending or deposit rates.
(iii) Notwithstanding paragraphs (a)(2)(i) through (ii) of this section, the term “covered contract” does not include any LIBOR contract that the parties have agreed in writing shall not be subject to the Adjustable Interest Rate (LIBOR) Act.
(b)
(1)
(2)
(i) Irrevocable;
(ii) Made by the earlier of the LIBOR replacement date and the latest date for selecting a benchmark replacement according to the terms of the LIBOR contract; and
(iii) Used in any determinations of the benchmark under or with respect to the LIBOR contract occurring on and after the LIBOR replacement date.
(a)
(b)
(1) For a covered contract that is not a consumer loan or a covered GSE contract—
(i) In place of overnight LIBOR, the benchmark replacement shall be SOFR plus the tenor spread adjustment identified in paragraph (c)(1) of this section; and
(ii) In place of one-, three-, six-, or 12-month tenors of LIBOR, the benchmark replacement shall be the corresponding one-, three-, six-, or 12-month CME Term SOFR plus the applicable tenor spread adjustment identified in paragraph (c) of this section.
(2) For a covered contract that is a consumer loan—
(i) During the one-year period beginning on the LIBOR replacement date:
(A) In place of overnight LIBOR, the benchmark replacement shall be SOFR
(
(
(B) In place of the one-, three-, six-, or 12-month tenors of LIBOR, the benchmark replacement shall be the corresponding one-, three-, six-, or 12-month CME Term SOFR plus an amount that transitions linearly for each business day during that period from:
(
(
(ii) On the date one year after the LIBOR replacement date and thereafter:
(A) In place of overnight LIBOR, the benchmark replacement shall be SOFR plus the tenor spread adjustment identified in paragraph (c)(1) of this section; and
(B) In place of one-, three-, six-, or 12-month tenors of LIBOR, the benchmark replacement shall be the corresponding one-, three-, six-, or 12-month CME Term SOFR plus the applicable tenor spread adjustment identified in paragraph (c) of this section.
(iii) The rates published or provided by Refinitiv Limited as “USD IBOR Cash Fallbacks” for “Consumer” products shall be deemed equal to the rates identified in paragraphs (b)(2)(i) and (ii) of this section.
(3) For a covered contract that is a covered GSE contract—
(i) In place of overnight LIBOR, the benchmark replacement shall be SOFR plus the tenor spread adjustment identified in paragraph (c)(1) of this section; and
(ii) In place of one-, three-, six-, or 12-month tenors of LIBOR, the benchmark replacement shall be the 30-day Average SOFR plus the applicable tenor spread adjustment identified in paragraph (c) of this section.
(c)
(1) 0.00644 percent for overnight LIBOR;
(2) 0.11448 percent for one-month LIBOR;
(3) 0.26161 percent for three-month LIBOR;
(4) 0.42826 percent for six-month LIBOR; and
(5) 0.71513 percent for 12-month LIBOR.
(d)
(a)
(1) The Board may, in its discretion, by regulation or order, require any additional technical, administrative, or operational changes, alterations, or modifications in LIBOR contracts based on a determination that such changes, alterations, or modifications would address one or more issues affecting the implementation, administration, and calculation of a Board-selected benchmark replacement in LIBOR contracts.
(2) Solely with respect to a LIBOR contract that is not a consumer loan, a calculating person may make any additional technical, administrative, or operational changes, alterations or modifications that, in that person's reasonable judgment, would be necessary or appropriate to permit the implementation, administration, and calculation of the Board-selected benchmark replacement under or with respect to a LIBOR contract after giving due consideration to any changes, alterations, or modifications otherwise required by the Board in this part or pursuant to paragraph (a)(1) of this section.
(a) Pursuant to section 107 of the Adjustable Interest Rate (LIBOR) Act, this part supersedes any provision of any state or local law, statute, rule, regulation, or standard—
(1) Relating to the selection or use of a benchmark replacement or related conforming changes; or
(2) Expressly limiting the manner of calculating interest, including the compounding of interest, as that provision applies to the selection or use of a Board-selected benchmark replacement or benchmark replacement conforming changes.
By order of the Board of Governors of the Federal Reserve System.
Farm Credit Administration.
Proposed rule.
The Farm Credit Administration (FCA, we, our, or Agency) proposes to rescind and revise our regulations to reflect developments in cyber risk and continuously evolving business practices concerning electronic business (E-business) and to rename the regulations “Cyber Risk Management”.
Comments on this proposed rule must be submitted on or before September 26, 2022.
We offer a variety of methods for you to submit comments. For accuracy and efficiency, commenters are encouraged to submit comments by email or through the FCA's website. As facsimiles (fax) are difficult for us to process and achieve compliance with section 508 of the Rehabilitation Act, we do not accept comments submitted by fax. Regardless of the method you use, please do not submit your comment multiple times via different methods. You may submit comments by any of the following methods:
•
•
•
You may review copies of all comments we receive at our office in McLean, Virginia, or on our website at
Our objectives in this proposed rule are to:
• Delete references to the requirements of “Electronic Signatures in Global and National Commerce Act” (E-SIGN) (Pub. L. 106-229), which became effective October 1, 2000. E-SIGN governs transactions relating to the conduct of business, consumer, or commercial affairs between two or more persons. We also propose to delete references to the Federal Reserve Board (FRB) regulations at 12 CFR parts 202, 213, and 226 (Regulations B, Z, and M). These laws apply to the Farm Credit System (System) regardless of citation in part 609. Thus, we believe that these references are no longer necessary.
• Revise part 609 to codify existing expectations and ensure the relevance and adequacy of risk management practices, corporate governance, and internal control systems for conducting business in an electronic environment.
The regulations at 12 CFR part 609 were enacted in 2002. The FCA's information technology-related regulations primarily focus on E-commerce terminology and the concept of conducting business in an E-commerce environment. Since then, there have been significant growth, changes, and advancements in information technology (IT) and the System's use of technology to conduct business. For example, in the year 2000, just half of Americans had broadband access at home. Today, that number sits at more than 90%. As more individuals access and utilize information technology and online services to conduct their business, the System has responded accordingly. It is the responsibility of the FCA, as the System's regulator and examiner, to see that the System's use of information technology is consistent with operating in a safe and sound manner.
To that end, we propose to revise the current E-commerce regulations at part 609 to codify existing expectations concerning risk management practices, corporate governance, and internal control systems for conducting business in an electronic environment. These expectations have been and are continually communicated to System institutions through the FCA's role as examiner of the System. By codifying expectations through these proposed regulations, we ensure each System institution fully understands the responsibility to operate under a comprehensive cyber risk framework. This proposed rule gives stakeholders an opportunity to comment on these important expectations.
Information security refers to the policies, procedures, and technologies used to protect information and information systems from unauthorized access, use, disclosure, disruption, modification, or destruction to provide confidentiality, integrity, and availability of information and data, no matter its form. Cyber security is the process of protecting information assets and data by preventing, detecting, and responding to cyber-attacks. Cyber risk is any risk associated with financial loss, disruption, or damage to the reputation of an organization due to the failure or unauthorized or erroneous use of its information systems. The policies, procedures, and internal controls implemented to manage cyber risk should incorporate information security and cyber security concepts and sound business practices. Appropriate governance and controls over cyber risk can help guide future decision-making about how to mitigate risk while focusing on an institution's strategic goals and objectives.
We propose to rescind §§ 609.910, 609.915, 609.920, 609.925, 609.940, and 609.950. The rescissions will delete all references to E-SIGN and FRB Regulations B, Z, and M. E-SIGN and the FRB regulations do not establish independent requirements of System institutions. Furthermore, we believe the reminder of the applicability of E-SIGN and the FRB regulations is no longer necessary. The substantive content of § 609.940 (Internal systems and controls) has been absorbed by the proposed revisions of § 609.930 below.
We also propose to revise §§ 609.905, 609.930, and 609.935. We do not propose any changes to § 609.945 (Records retention). We also propose to revise the name of part 609 to “Cyber Risk Management” and rename the sections, consistent with the proposed revisions. These revisions will codify FCA's expectations for System institutions when considering and documenting cyber risk policies and procedures, commensurate with the size and complexity of each individual association.
Most notably, we propose to revise part 609 to require an institution to implement a board-approved cyber risk plan that helps an institution manage the risk by:
1. Assessing institution risk and identifying potential points of vulnerability;
2. Establishing a risk management program for the institution's identified risks;
3. Considering privacy and legal compliance issues surrounding cyber risk;
4. Developing an incident response plan;
5. Developing a cyber risk training program;
6. Setting policies for managing third-party relationships;
7. Maintaining robust internal controls; and
8. Establishing institution board reporting requirements.
FCA seeks to maintain maximum flexibility for System institutions, including the Federal Agricultural Mortgage Corporation (FAMC), given our understanding that there are varying degrees of size and complexity across the System. Institutions must strive to maintain industry standards. We note our Office of Examination frequently consults the Federal Financial Institutions Examination Council (FFIEC) guidance when examining for safety and soundness as it relates to institutions' cyber risk. We believe implementing appropriate risk management strategies means System institutions will demonstrate effective cyber risk governance and continuously monitor and manage their cyber risk within the risk appetite and tolerance approved by their boards of directors.
Comments are sought on all the provisions in the regulation.
Agriculture, Banks, Banking, Computer technology, Reporting and recordkeeping requirements, Rural areas.
For the reasons stated in the preamble, FCA proposes to revise part 609 of title 12 of the Code of Federal Regulations to read as follows:
Section 5.9 of the Farm Credit Act (12 U.S.C. 2243).
Farm Credit System (System) institutions must engage in appropriate risk management practices to ensure safety and soundness of their operations. A System institution's board and management must maintain effective policies, procedures, and controls to mitigate cyber risks. This includes establishing an appropriate vulnerability management program to monitor cyber threats, mitigate any known vulnerabilities, and establish appropriate reporting mechanisms to the institution's board and the Farm Credit Administration (FCA).
(a)
(b)
(1) Approve a written cyber risk program. The program must be consistent with industry standards to ensure the institution's safety and soundness and compliance with law and regulations;
(2) Oversee the development, implementation, and maintenance of the institution's cyber risk program; and
(3) Assign roles and responsibilities and determine necessary expertise for the institution's board, management, and employees.
(c)
(1) Include an annual risk assessment of the internal and external factors likely to affect the institution. The risk assessment, at a minimum, must:
(i) Identify and assess internal and external factors that could result in unauthorized disclosure, misuse, alteration, or destruction of current, former, and potential customer and employee information or information systems; and
(ii) Assess the sufficiency of policies, procedures, internal controls, and other practices in place to mitigate risks.
(2) Identify systems and software vulnerabilities, prioritize the vulnerabilities and the affected systems in order of risk, and perform timely remediation. The particular security measures an institution adopts will depend upon the risks presented by the size of the institution and the nature, scope, and complexity of the institution's operations and activities.
(3) Maintain an incident response plan that contains procedures the institution must implement when it suspects or detects unauthorized access to current, former, or potential customer, employee, or other sensitive or confidential information. At a minimum, an institution's incident response plan must contain procedures for:
(i) Assessing the nature and scope of an incident, and identifying what information systems and types of information have been accessed or misused;
(ii) Acting to contain the incident while preserving records and other evidence;
(iii) Resuming business activities during intrusion response;
(iv) Notifying the institution's board of directors when the institution learns of an incident involving unauthorized access to or use of sensitive or confidential customer and/or employee information;
(v) Notifying FCA as soon as possible or no later than 36 hours after the institution determines that an incident has occurred; and
(vi) Notifying former, current, or potential customers and employees and known visitors to your website of an incident, when warranted, and in accordance with State and Federal laws.
(4) Describe the plan to train employees, vendors, contractors, and the institution board to implement the institution's cyber risk program.
(5) Include policies for vendor management and oversight. Each institution, at a minimum, must:
(i) Exercise appropriate due diligence in selecting vendors;
(ii) Require its vendors, by contract, to implement appropriate measures designed to meet the objectives of the institution's cyber risk program; and
(iii) Monitor its vendors to ensure they have satisfied agreed upon expectations and deliverables. Monitoring must include reviewing audits, summaries of test results, or other equivalent evaluations of its vendors.
(6) Maintain robust internal controls by regularly testing the key controls, systems, and procedures of the cyber risk management program.
(i) The frequency and nature of such tests are to be determined by the institution's risk assessment.
(ii) Tests must be conducted or reviewed by independent third parties or staff independent of those who develop or maintain the cyber risk management program.
(iii) Internal systems and controls must provide reasonable assurances that System institutions will prevent, detect, and remediate material deficiencies on a timely basis.
(d)
(e)
The annually approved business plan required under subpart J of part 618 of this chapter, and § 652.60 of this chapter for the Federal Agricultural Mortgage Corporation, must include a technology plan that, at a minimum:
(a) Describes the institution's intended technology goals, performance measures, and objectives;
(b) Details the technology budget;
(c) Identifies and assesses the business risk of proposed technology changes and assesses the adequacy of the institution's cyber risk program;
(d) Describes how the institution's technology and security support the
(e) Reviews internal and external technology factors likely to affect the institution during the planning period.
Records stored electronically must be accurate, accessible, and reproducible for later reference.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede Airworthiness Directive (AD) 2019-25-16, which applies to certain Embraer S.A. Model ERJ 170-100 LR, -100 STD, -100 SE, and -100 SU airplanes; and Model ERJ 170-200 LR, -200 SU, -200 STD, and -200LL airplanes. AD 2019-25-16 requires revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. Since the FAA issued AD 2019-25-16, the FAA has determined that new or more restrictive airworthiness limitations are necessary. This proposed AD would continue to require the actions in AD 2019-25-16 and require revising the existing maintenance or inspection program, as applicable, to incorporate additional new or more restrictive airworthiness limitations and incorporate certain structural modifications, as specified in an Agência Nacional de Aviação Civil (ANAC) AD, which is proposed for incorporation by reference. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by September 12, 2022.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For ANAC material that will be incorporated by reference (IBR) in this AD, contact National Civil Aviation Agency (ANAC), Aeronautical Products Certification Branch (GGCP), Rua Dr. Orlando Feirabend Filho, 230—Centro Empresarial Aquarius—Torre B—Andares 14 a 18, Parque Residencial Aquarius, CEP 12.246-190—São José dos Campos—SP, Brazil; telephone 55 (12) 3203-6600; email
You may examine the AD docket at
Krista Greer, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3221; email
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Krista Greer, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3221; email
The FAA issued AD 2019-25-16, Amendment 39-21015 (85 FR 453, January 6, 2020) (AD 2019-25-16), which applies to certain Embraer S.A. Model ERJ 170-100 LR, -100 STD, -100 SE, and -100 SU airplanes; and Model ERJ 170-200 LR, -200 SU, -200 STD, and 200 LL airplanes. AD 2019-25-16 requires revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations; and adds airplanes to the applicability. The FAA issued AD 2019-25-16 to address fatigue cracking of various principal structural elements (PSEs); such cracking could result in reduced structural integrity of the airplane and to prevent safety significant latent failures; such failures, in combination with one or more other specified failures or events, could result in a hazardous or catastrophic failure condition of avionics, hydraulic systems, fire detection systems, fuel systems, or other critical systems. Furthermore, the FAA issued AD 2019-25-16 to address potential ignition sources inside fuel tanks caused by latent failures, alterations, repairs, or maintenance actions; such failures, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.
Since the FAA issued AD 2019-25-16, the FAA has determined that new or more restrictive airworthiness limitations are necessary.
ANAC, which is the aviation authority for Brazil, has issued ANAC AD 2022-02-01, effective February 9, 2022 (ANAC AD 2022-02-01) (also referred to as the MCAI), to correct an unsafe condition for all Embraer S.A. Model ERJ 170-100 STD, ERJ 170-100 LR, ERJ 170-100 SU, ERJ 170-100 SE, ERJ 170-200 STD, ERJ 170-200 LR, ERJ 170-200 SU, and ERJ 170-200 LL airplanes. ANAC AD 2022-02-01 supersedes ANAC AD 2019-05-1, effective May 2, 2019; corrected July 1, 2019 (ANAC AD 2019-05-01), which corresponds to FAA AD 2019-25-16.
This proposed AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The FAA is proposing this AD to address fatigue cracking of various PSEs; such cracking could result in reduced structural integrity of the airplane and to address safety significant latent failures; such failures, in combination with one or more other specified failures or events, could result in a hazardous or catastrophic failure condition of avionics, hydraulic systems, fire detection systems, fuel systems, or other critical systems. Furthermore, the FAA is also proposing this AD to address potential ignition sources inside fuel tanks caused by latent failures, alterations, repairs, or maintenance actions; such failures, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. See the MCAI for additional background information.
ANAC has also issued ANAC AD 2022-05-02, effective May 13, 2022 (ANAC AD 2022-05-02), which corresponds to FAA AD 2022-11-51, Amendment 39-22074 (87 FR 33623, June 3, 2022) (AD 2022-11-51). AD 2022-11-51 applies to certain Embraer S.A. Model ERJ 170-200 STD, ERJ 170-200 LR, ERJ 170-200 SU, and ERJ 170-200 LL airplanes. AD 2022-11-51 requires a detailed inspection for cracks of affected wing tip connections, corrective actions if necessary, and revision of the existing maintenance or inspection program. Incorporating maintenance review board report (MRBR) task number 57-30-002-0002, “Enhanced Wingtip to Wing Spar Attachments—Internal” is part of the requirements of paragraph (g) of AD 2022-11-51 and paragraph (h)(6) of AD 2022-11-51 includes exceptions for that task. The FAA issued AD 2022-11-51 to address cracks that could develop on the wing tip connection area that can affect its structural integrity to the point of an in-flight detachment, which, even if sufficient controllability of the airplane is maintained for the safe continuation of the flight, could result in the detached part damaging other airplane parts and affecting controllability, as well as damaging property and injuring persons on the ground.
Since all airplanes affected by AD 2022-11-51 already incorporated MRBR task number 57-30-002-0002, this proposed AD does not require incorporating MRBR task number 57-30-002-0002 as part of the revision of the existing maintenance or inspection program required by paragraph (i) of this proposed AD.
ANAC AD 2022-02-01 describes new or more restrictive airworthiness limitations for airplane structures and the incorporation of certain structural modifications (
This AD also requires Appendix A—Airworthiness Limitations of EMBRAER 170/175 Maintenance Review Board Report (MRBR), MRB-1621, Revision 14, dated September 27, 2018; and Embraer Temporary Revision (TR) 14-1, dated November 13, 2018, to Part 4-Life-Limited Items, of Appendix A of EMBRAER 170/175 Maintenance Review Board Report (MRBR), MRB-1621, Revision 14, dated September 27, 2018; which the Director of the Federal Register approved for incorporation by reference as of February 10, 2020 (85 FR 453).
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
ANAC AD 2022-02-01 supersedes ANAC AD 2019-05-01; however ANAC AD 2022-02-01 does not retain any requirements from ANAC AD 2019-05-01. ANAC AD 2022-02-01 only requires airworthiness limitations that are in Part 2 of the referenced MRBR. This proposed AD would retain the airworthiness limitations for Parts 1, 3, and 4 of the MRBR.
These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of these same type designs.
This proposed AD would retain the requirements of AD 2019-25-16. This proposed AD would also require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, which are specified in ANAC AD 2022-02-01 described previously, as proposed for incorporation by reference. Any differences with ANAC AD 2022-02-01 are identified as exceptions in the regulatory text of this AD except as
This proposed AD would require revisions to certain operator maintenance documents to include new actions (
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate ANAC AD 2022-02-01 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with ANAC AD 2022-02-01 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Service information required by ANAC AD 2022-02-01 for compliance will be available at
The FAA's process of incorporating by reference MCAI ADs as the primary source of information for compliance with corresponding FAA ADs has been limited to certain MCAI ADs (primarily those with service bulletins as the primary source of information for accomplishing the actions required by the FAA AD). However, the FAA is now expanding the process to include MCAI ADs that require a change to airworthiness limitation documents, such as airworthiness limitation sections.
For these ADs that incorporate by reference an MCAI AD that changes airworthiness limitations, the FAA requirements are unchanged. Operators must revise the existing maintenance or inspection program, as applicable, to incorporate the information specified in the new airworthiness limitation document. The airworthiness limitations must be followed according to 14 CFR 91.403(c) and 91.409(e).
The previous format of the airworthiness limitation ADs included a paragraph that specified that no alternative actions (
The FAA estimates that this proposed AD affects 662 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
The FAA estimates the total cost per operator for the retained actions from AD 2019-25-16 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 revision to the existing maintenance or inspection program to be $7,650 (90 work-hours × $85 per work-hour).
According to the manufacturer, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does not control warranty coverage for affected individuals. As a result, the FAA has included all known costs in the cost estimate.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by September 12, 2022.
This AD replaces AD 2019-25-16, Amendment 39-21015 (85 FR 453, January 6, 2020) (AD 2019-25-16).
This AD applies to all Embraer S.A. Model ERJ 170-100 LR, -100 STD, -100 SE, and -100 SU airplanes; and Model ERJ 170-200 LR, -200 SU, -200 STD, and -200 LL airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks; 27, Flight controls; 28, Fuel; 52, Doors; 53, Fuselage; 54, Nacelles/pylons; 55, Stabilizers; 57, Wings; 71, Powerplant; and 78, Exhaust.
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 of various principal structural elements (PSEs); such cracking could result in reduced structural integrity of the airplane. The FAA is also issuing this AD to address safety significant latent failures; such failures, in combination with one or more other specified failures or events, could result in a hazardous or catastrophic failure condition of avionics, hydraulic systems, fire detection systems, fuel systems, or other critical systems. Furthermore, the FAA is issuing this AD to address potential ignition sources inside fuel tanks caused by latent failures, alterations, repairs, or maintenance actions; such failures, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (i) of AD 2019-25-16, with no changes. For Model ERJ 170-100 LR, -100 STD, -100 SE, and -100 SU airplanes; and Model ERJ 170-200 LR, -200 SU, -200 STD, and -200LL airplanes; manufacturer serial numbers 17000002, 17000004 through 17000013 inclusive, and 17000015 through 17000761 inclusive: Within 90 days after February 10, 2022 (the effective date of AD 2019-25-16), revise the existing maintenance or inspection program, as applicable, to incorporate the information specified in Part 1-Certification Maintenance Requirements, Part 2-Airworthiness Limitation Inspections (ALI)-Structures, Part 3-Fuel System Limitation Items, and Part 4-Life Limited Items; and EMBRAER Temporary Revision (TR) 14-1, dated November 13, 2018, to part 4-Life Limited Items; of Appendix A of the EMBRAER 170/175 MRBR, MRB-1621, Revision 14, dated September 27, 2018 (EMBRAER 170/175 MRB-1621, Revision 14). The initial compliance time for doing the tasks is at the later of the times specified in paragraphs (g)(1) and (2) of this AD.
(1) Within the applicable times specified in EMBRAER 170/175 MRB-1621, Revision 14. For the purposes of this AD, the initial compliance times (identified as “Threshold” or “T” in EMBRAER 170/175 MRB-1621, Revision 14) are expressed in “total flight cycles” or “total flight hours,” as applicable.
(2) Within 90 days or 600 flight cycles after February 10, 2022 (the effective date of AD 2019-25-16), whichever occurs later.
This paragraph restates the requirements of paragraph (j) of AD 2019-25-16, with no changes. Except as required by paragraph (i) of this AD: After the existing maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
Except as specified in paragraph (j) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, ANAC AD 2022-02-01, effective February 9, 2022 (ANAC AD 2022-02-01). Accomplishing the revision of the existing maintenance or inspection program required by this paragraph terminates the requirements for Part 2—Airworthiness Limitation Inspections (ALI)-Structures specified in paragraph (g) of this AD only.
(1) Where ANAC AD 2022-02-01 refers to its effective date, this AD requires using the effective date of this AD.
(2) The “Alternative method of compliance (AMOC)” section of ANAC AD 2022-02-01 does not apply to this AD.
(3) Where paragraph (b)(1) of ANAC AD 2022-02-01 specifies incorporating all airworthiness limitations in Part 2 of the service information specified in paragraph (b)(1) of ANAC AD 2022-02-01, for this AD, do not incorporate the threshold and interval for maintenance review board report (MRBR) task number 57-30-002-0002, “Enhanced Wingtip to Wing Spar Attachments—Internal.”
After the existing maintenance or inspection program has been revised as required by paragraph (i) of this AD, no alternative actions (
The following provisions also apply to this AD:
(1)
(i) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the responsible Flight Standards Office.
(ii) AMOCs approved previously for AD 2019-25-16 are approved as AMOCs for the corresponding provisions of paragraph (g) of this AD.
(2)
(3)
(1) For ANAC AD 2022-02-01, contact National Civil Aviation Agency (ANAC), Aeronautical Products Certification Branch (GGCP), Rua Dr. Orlando Feirabend Filho, 230—Centro Empresarial Aquarius—Torre B—Andares 14 a 18, Parque Residencial Aquarius, CEP 12.246-190—São José dos Campos—SP, Brazil; telephone 55 (12) 3203-6600; email
(2) For more information about this AD, contact Krista Greer, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3221; email
(3) For Embraer service information identified in this AD, contact Embraer S.A., Technical Publications Section (PC 060), Av. Brigadeiro Faria Lima, 2170—Putim—12227-901 São Jose dos Campos—SP—Brasil; telephone +55 12 3927-5852 or +55 12 3309-0732; fax +55 12 3927-7546; email
Federal Communications Commission.
Proposed rule.
In this document, the Federal Communications Commission (Commission) seeks comment on referencing a new publication for use in determining a television station's designated market area (DMA) for satellite and cable carriage under the Commission's regulations. The current rules require television broadcasters, cable operators, and satellite carriers to determine DMA for carriage election and other purposes by reference to the Nielsen Station Index Directory (Annual Station Index) in combination with the United States Television Household Estimates (Household Estimates), or a successor publication. Nielsen Media Research no longer publishes the Annual Station Index and has replaced it with a monthly Local TV Station Information Report (Local TV Report), which is now the only publication necessary to determine a station's DMA. The Household Estimates publication is no longer in use. First, the Commission seeks comment on whether we should revise our rules to identify the Local TV Report as the successor publication to the Annual Station Index to be used to determine a station's DMA. Second, because the Local TV Report is published monthly rather than yearly as the Annual Station Index, we seek comment on which Local TV Report should be used for carriage election.
Comments are due on or before August 29, 2022; reply comments are due on or before September 26, 2022.
You may submit comments, identified by MB Docket No. 22-239, by any of the following methods:
•
•
Filings can be sent by commercial overnight courier or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 45 L Street NE, Washington, DC 20554.
• Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19.
For additional information on this proceeding, contact Kenneth Lewis,
This is a summary of the Commission's Notice of Proposed Rulemaking (
1. In this Notice of Proposed Rulemaking, we seek comment on referencing Nielsen's Local TV Station Information Report (Local TV Report) for use in determining a television station's designated market area (DMA)
2. Pursuant to the Act, and the implementing rules adopted by the Commission, commercial television broadcast stations are entitled to assert mandatory carriage rights on cable systems located within their market. Similarly, section 338 of the Act requires satellite carriers to carry on request all local television broadcast stations' signals in local markets in which the satellite carrier carries at least one local television broadcast signal pursuant to the statutory copyright license. A station's market for cable and satellite carriage is its DMA, as defined by The Nielsen Company's Annual Station Index and Household Estimates “or any successor publications.” The implementing regulations also specify which edition of the Annual Station Index is to be used for each election cycle (specifically, the one published the year prior to the election).
3. The Nielsen Company informed the Commission in a letter that the Annual Station Index would no longer be published and that it would be replaced with the Local TV Report that generally contains the same information as the Annual Station Index and is simply published monthly rather than annually. However, Nielsen also stated that one noted difference between the Annual Station Index and the Local TV Report is that the latter includes low-power and Class A television stations only if they reach a de minimis average audience size threshold. Nielsen also informed the Commission that the Household Estimates publication is no longer in use.
4. As an initial matter, we seek comment on whether the rule should be amended to reference the Local TV Report as the successor to the Annual Station Index and Household Estimates for purposes of determining DMA for carriage elections. We also seek comment on whether the October Local TV Report published two years prior to each triennial carriage election should be used to allow for an apples-to-apples comparison with the data from the Annual Station Index. Or, alternatively, should we consider a Local TV Report that is published closer in time to each triennial carriage election?
5. As previously noted above, the Local TV Report includes low-power and Class A television stations only if they meet a certain de minimis average audience size threshold. As also noted, DMA is not relevant for low-power and Class A carriage. Nevertheless, the omission of all low-power and Class A stations from the Local TV Report is a change from the Annual Station Index. However, Nielsen has stated that it still gathers this information for all television stations and can generate a report upon request for subscribers that would include all low-power and Class A stations other than those already identified in the Local TV Report.
6. We further seek comment on whether there any other rules that we should consider updating in light of Nielsen's publication changes? Although we note that the Commission's carriage election rules discussed herein appear to be the only Commission rules that expressly reference the Annual Station Index and Household Estimates, changing how we determine DMA in this context will impact other statutory and rule provisions relating to carriage.
7. As required by the Regulatory Flexibility Act of 1980, as amended (RFA),
8. In this Notice of Proposed Rulemaking (
9. The proposed action is authorized pursuant to the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154, 303, 325, 335, 338, 339, 340, 403, 534.
10. The RFA directs agencies to provide a description of and the number of small entities that may be affected by the proposed rules, if adopted.
11.
12. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small.
13.
14.
15.
16. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small.
17.
18.
19. In addition, the SBA's placement of Cable Television Distribution Services in the category of Wired Telecommunications Carriers is applicable to cable-based Educational Broadcasting Services. Since 2007, these services have been defined within the broad economic census category of Wired Telecommunications Carriers, which was developed for small wireline businesses. This category is defined in paragraph 6,
20.
21.
22.
23. The Commission estimates that as of March 2022, there were 1,373 licensed commercial television stations.
24. We note, however, that in assessing whether a business concern qualifies as “small” under the above definition, business (control) affiliations
25. There are also 386 Class A stations.
26. The
27. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
28. These proposals would not impose a negative economic impact on any small entities because they impose no additional obligations on any entities. Commission regulations currently require that the Annual Station Index and Household Estimates “or its successor publication” be used for the purpose of determining a local
29. None.
30. This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA).
31. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's
32. Pursuant to §§ 1.415 and 1.419 of the Commission's rules,
33.
34.
Cable television, Communications, Equal employment opportunity, internet, Reporting and recordkeeping requirements, Satellite, and Telecommunications.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 1 as follows:
47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503, 521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572, 573.
(e) * * *
(2) A commercial broadcast station's market, unless amended pursuant to § 76.59, shall be defined as its Designated Market Area (DMA) as determined by Nielsen Media Research and published in its Nielsen Local TV Station Information Report or any successor publications.
(i) The applicable DMA list for the 2023 election pursuant to § 76.64(f) will be the DMA assignments specified in the Nielsen October 2021 Local TV Station Information Report, and so forth using the publications for the October two years prior to each triennial election pursuant to § 76.64(f).
(ii) [Removed and Reserved]
(e) * * *
(2) A designated market area is the market area, as determined by Nielsen Media Research and published in the 1999-2000 Nielsen Station Index Directory and Nielsen Station Index United States Television Household Estimates, the October 2021 Nielsen Local TV Station Information Report, or any successor publication. In the case of areas outside of any designated market area, any census area, borough, or other area in the State of Alaska that is outside of a designated market area, as
(3) A satellite carrier shall use the October 2021 Nielsen Local TV Station Information Report for the retransmission consent-mandatory carriage election cycle commencing on January 1, 2024 and ending on December 31, 2027. The October 2024 Nielsen Local TV Station Information Report shall be used for the retransmission consent-mandatory carriage election cycle commencing January 1, 2028 and ending December 31, 2030, and so forth using the publications for the October two years prior to each triennial election pursuant to this section. Provided, however, that a county deleted from a market by Nielsen need not be subtracted from a market in which a satellite carrier provides local-into-local service, if that county is assigned to that market in the 1999-2000 Nielsen Station Index Directory or any subsequent issue of that publication, or the Local TV Station Information Report commencing with October 2021, and every three years thereafter (
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Based upon the timely withdrawal of all review requests, the Department of Commerce (Commerce) is rescinding the administrative reviews covering the periods of review and the antidumping duty (AD) and countervailing duty (CVD) orders identified in the table below.
Applicable July 28, 2022.
Brenda E. Brown, 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.
Based upon timely requests for review, Commerce initiated administrative reviews of certain companies for the periods of review and the AD and CVD orders listed in the table below, pursuant to 19 CFR 351.221(c)(1)(i).
Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, in whole or in part, if the parties that requested the review withdraw their review requests within 90 days of the date of publication of the notice of initiation for the requested review. All parties withdrew their requests for the reviews listed in the table below within the 90-day deadline. No other parties requested administrative reviews of these AD/CVD orders for the periods noted in the table. Therefore, in accordance with 19 CFR 351.213(d)(1), Commerce is rescinding, in their entirety, the administrative reviews listed in the table below.
Commerce will instruct U.S. Customs and Border Protection (CBP) to assess antidumping and/or countervailing duties on all appropriate entries during the periods of review noted above for each of the listed administrative reviews at rates equal to the cash deposit of estimated antidumping or countervailing duties, as applicable, required at the time of entry, or withdrawal of merchandise from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of this recission notice in the
This notice serves as the only reminder to importers of merchandise subject to AD orders of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties and/or countervailing duties prior to liquidation of the relevant entries during the review period. Failure to comply with this requirement could result in the presumption that reimbursement of antidumping duties and/or countervailing duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as the only reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in these segments of these proceedings. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
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 351.213(d)(4).
The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. We invite the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Public comments were previously requested via the
Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The South Atlantic Fishery Management Council (Council) will hold a meeting via webinar of its Snapper Grouper Recreational Permitting and Reporting Technical Advisory Panel (AP) to discuss reporting and permitting alternatives for the private recreational snapper grouper fishery.
The AP meeting will be held on Thursday, August 18, 2022, from 1 p.m. until 4 p.m.
The meeting will be held via webinar. Webinar registration is required. Details are included in
Kim Iverson, Public Information Officer, SAFMC; phone: (843) 302-8440 or toll free: (866) SAFMC-10; fax: (843) 769-4520; email:
Meeting information, including the webinar registration link, online public comment form, agenda, and briefing book materials will be posted on the Council's website at:
At this meeting the Advisory Panel will review the final recommendations from the Council's Private Recreational Reporting Working Group and the Mid-Atlantic Fishery Management Council's recreational tilefish permitting and reporting program.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
The meeting is physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR 77 HMS Hammerhead Sharks Assessment Webinar III.
The SEDAR 77 assessment of the Atlantic stock of hammerhead sharks will consist of a stock identification (ID) process, data webinars/workshop, a series of assessment webinars, and a review workshop. See
The SEDAR 77 HMS Hammerhead Sharks Assessment Webinar III has been scheduled for Monday, August 15, 2022, from 12 p.m. until 3 p.m., Eastern Time. The established times may be adjusted as necessary to accommodate the timely completion of discussion relevant to the assessment process. Such adjustments may result in the meeting being extended from or completed prior to the time established by this notice.
The meeting will be held via webinar. The webinar is open to
Kathleen Howington, SEDAR Coordinator, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone: (843) 571-4371; email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions, have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a three-step process including: (1) Data Workshop; (2) Assessment Process utilizing webinars; and (3) Review Workshop. The product of the Data Workshop is a data report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Assessment Process is a stock assessment report which describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, Highly Migratory Species Management Division, and Southeast Fisheries Science Center. Participants include: data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and non-governmental organizations (NGOs); international experts; and staff of Councils, Commissions, and state and federal agencies.
The items of discussion at the SEDAR 77 HMS Hammerhead Shark Assessment Webinar III are as follows: discuss any leftover data issues that were not cleared up during the data process, answer any questions that the analysts have, and introduce/discuss model development and model setup.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the South Atlantic Fishery Management Council office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Pacific Fishery Management Council's (Pacific Council) Salmon Technical Team (STT) and Model Evaluation Workgroup (MEW) will hold a joint meeting in preparation for the September 2022 Pacific Council meeting. The meeting is open to the public.
The online meeting will be held on Wednesday, August 17, 2022, from 9 a.m. until 3 p.m., Pacific Time, or until business in completed.
This meeting will be held online. Specific meeting information, including directions on how to join the meeting and system requirements will be provided in the meeting announcement on the Pacific Council's website (see
Ms. Robin Ehlke, Staff Officer, Pacific Council; telephone: (503) 820-2410.
In preparation for the September 2022 Pacific Council meeting, the STT will continue to investigate the accuracy of and consider potential improvements to recent preseason effort projections produced by the Klamath Ocean Harvest Model during the preseason management process. The STT and MEW will continue the discussion on the work required and timeline necessary to investigate the potential for improvements to forecasts of ocean exploitation rates for Southern Oregon/Northern California Coast coho salmon and also discuss the candidate topics adopted in April for the 2022 salmon methodology review.
Discussions may include additional topics as time allows, including but not limited to administrative and ecosystem matters on the Pacific Council's September 2022 meeting, and various salmon related topics of pertinence.
Although non-emergency issues not contained in the STT meeting agendas may come before the STT for discussion, those issues may not be the subject of formal STT action during these meetings. STT action will be restricted to those issues specifically listed in this document and to any issues arising after publication of this document requiring emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the STT's intent to take final action to address the emergency.
Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public hybrid meeting.
The Gulf of Mexico Fishery Management Council (Council) will hold a four-day meeting to consider actions affecting the Gulf of Mexico fisheries in the exclusive economic zone (EEZ). The meeting is open to the public offering both in-person and virtual options for participation.
The meeting will convene Monday, August 22 through Thursday, August 25, 2022, from 8 a.m. to 5 p.m., CDT, each day.
The meeting will take place at the Omni Corpus Christ hotel, located at 900 North Shoreline Boulevard, Corpus Christi, TX 78401. Please note, in-person meeting attendees will be expected to follow any current COVID-19 safety protocols as determined by the Council, hotel and the City of Corpus Christi, if any. Such precautions may include masks, room capacity restrictions, and/or social distancing. If you prefer to “listen in”, you may access the log-on information by visiting our website at
Dr. Carrie Simmons, Executive Director, Gulf of Mexico Fishery Management Council; telephone: (813) 348-1630.
The meeting will begin with the Induction of Council Members. Following, the Administrative/Budget Committee will review and discuss the Final 2022 Funded Budget and Activities, and proposed Modifications to the Council's Statement of Organization Practices and Procedures (SOPPS).
The
The Outreach and Education (O&E) Technical Committee will review the Communication Plan to Promote Return of Shrimp Fleet Effort Data and summary recommendations from the O&E Technical Committee meeting.
The Data Collection Committee will review the Abbreviated Framework Action to Modify For-Hire Trip Declaration Requirements. Draft Options Joint Amendment to Require Electronic Reporting for Commercial Logbooks.
The
The Reef Fish Committee will reconvene and receive an update on National Marine Fisheries Service (NMFS') Agency Priorities and Draft Equity and Environmental Justice Strategy Remarks. The Committee will review State-specific Private Angling
The Committee will review and discuss final action item Modification of Catch Limits for Gulf of Mexico
The Committee will review draft options for Amendment 56: Modifications to the
The Migratory Species Committee will receive a presentation on Migratory Species Shark Assessments and Management Strategies.
The Sustainable Fisheries Committee will receive a presentation on NOAA's Climate Regional Action Plan and draft a comment letter, draft a comment letter on NOAA's Equity and Environmental Justice Strategy, review the SSC Recommendations on Acceptable Biological Catch (ABC) Control Rule; and, receive a presentation on Mechanisms and Options for Automating Catch Advise from Interim Analysis.
The Committee will have an overview of Research Set-Asides (RSA) Timeline, Composition, and Draft Objectives and discuss the Florida Pompano Petition for Federal Rulemaking.
Approximately 11:15 a.m., CDT, the Council will reconvene with a Call to Order, Announcements and Introductions, Adoption of Agenda and Approval of Minutes.
The Council will receive an update from Bureau of Ocean Energy Management (BEOM) on Wind Energy Development in the Gulf of Mexico and a presentation from the Western Central Atlantic Fishery Commission (WECAFC) updates on
The Council will hold public testimony from 1:30 p.m. to 5 p.m., CDT on Final Action Item Modification of Catch Limits for Gulf of Mexico
The Council will receive Committee reports from Administrative/Budget,
The Council will discuss any Other Business items; and, hold an Election for 2022-23 Chair and Vice-Chair.
The meeting will be a hybrid meeting; both in-person and virtual participation available. You may register for the webinar to listen-in only by visiting
The timing and order in which agenda items are addressed may change as required to effectively address the issue, and the latest version along with other meeting materials will be posted on the website as they become available.
Although other non-emergency issues not contained in this agenda may come before this group for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal action during these meeting. Actions will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Act, provided that the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid or accommodations should be directed to Kathy Pereira, (813) 348-1630, at least 15 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of a public meeting; information regarding the agenda.
The National Marine Fisheries Service, Office of Sustainable Fisheries will host a closed session of the Council Coordination Committee (CCC), consisting of the Regional Fishery Management Council (Council) chairs, vice chairs, and executive directors on August 16, 2022. The intent of this virtual meeting is to discuss internal administrative matters regarding policies for preventing harassment of Council staff and all other Council process participants. The harassment prevention policies and related outcomes from this discussion will be shared in public sessions of future CCC meetings.
The meeting will begin at 4 p.m. Eastern Daylight Time (EDT) on Tuesday, August 16, adjourning at 5:30 p.m. EDT.
The meeting will be held online via WebEx for invited Council participants.
Morgan Corey by email at
The 2007 reauthorization of the Magnuson-Stevens Fishery Conservation and Management Act established the CCC. The CCC consists of the chairs, vice chairs, and executive directors of each of the eight Regional Fishery Management Councils, or their respective proxies. As consistent with MSA Section 302(i)(3) and codified at 50 CFR 600.135(c), the CCC may hold closed sessions for limited purposes, including to discuss internal administrative and employment matters. A closed session is required for this meeting to discuss topics that may be sensitive regarding prohibited harassment and related employment and personnel matters.
N/A. This session is closed to the public to discuss internal administrative matters.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of availability; of a proposed evaluation and pending determination for public comment.
Notice is hereby given that NMFS has received a plan for a hatchery program rearing and releasing Chinook salmon in the Dungeness River basin. The plan describes the hatchery program operated by Washington Department of Fish and Wildlife (WDFW) in collaboration with Jamestown S'Klallam as a tribal co-manager. This document serves to notify the public of the availability and opportunity to comment on a Proposed Evaluation and Determination Documents (PEPD) on the proposed hatchery program.
Comments must be received at the appropriate address (see
Comments may be submitted by email. The mailbox address for providing email comments is:
Morgan Robinson at (253) 307-2670 or by email at
• Puget Sound Chinook salmon (
• Puget Sound Steelhead (
The term “take” is defined under the ESA to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. The ESA prohibits the take of endangered salmonids and, pursuant to ESA section 4(d), ESA regulations can be extended to prohibit the take of threatened salmonids. However, NMFS may make exceptions to the take prohibitions for hatchery programs that are approved by NMFS under the limits on the prohibitions outlined in 50 CFR 223.203(b). The operators, WDFW collaborating with tribal co-manager Jamestown S'Klallam Tribe, have submitted an HGMP to NMFS pursuant to NMFS' limit six of the 4(d) Rule of the ESA for hatchery activities in the Dungeness River basin, Washington.
This hatchery program is designed to contribute to the survival and recovery of Dungeness River spring Chinook salmon. This hatchery programs is intended to contribute to fulfilling federal tribal trust responsibilities and treaty rights guaranteed through treaties and affirmed in
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The North Pacific Fishery Management Council (NPFMC) will host the Seventh National Meeting of the Scientific Coordination Subcommittee of the Council Coordination Committee (SCS7). The meeting theme is “Adapting Fisheries Management to a Changing Ecosystem.” The agenda for the SCS7 is available at
The SCS7 will begin on Monday, August 15, 2022, through Wednesday, August 17, 2022, from 9 a.m. to 5 p.m. Alaska Time.
Diana Evans, Council staff; telephone: (907) 271-2809, email:
The SSC7 agenda will include the following:
The agenda is subject to change, and the latest version will be posted at
The purpose of the SCS7 meeting is for participants to discuss various aspects of addressing Ecosystem-Based Fishery Management (EBFM), including ecosystem indicators, multi-species modeling and addressing distributional shifts in managed stocks. to better inform management decision-making by the eight Regional Fishery Management Councils and NMFS. No management actions will be decided by the participants attending the SCS7 meeting. The participants' role will be the development of findings, which will be captured in proceedings of the meeting. These proceedings will be provided to the Council Coordination Committee and posted on the U.S. Regional Fishery Management Councils' website.
You can listen-only to the meeting online using a computer, tablet, or smart phone, or by phone only. Connection information will be posted online at:
Commodity Futures Trading Commission.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (“PRA”), this notice announces that the Information Collection Request (“ICR”) abstracted below has been forwarded to the Office of Information and Regulatory Affairs (“OIRA”), of the Office of Management and Budget (“OMB”), for review and comment. The ICR describes the nature of the information collection and its expected costs and burden.
Comments must be submitted on or before August 29, 2022.
Written comments and recommendations for the proposed information collection should be submitted within 30 days of this notice's publication to OIRA, at
In addition to the submission of comments to
Or by either of the following methods:
•
•
All comments must be submitted in English, or if not, accompanied by an English translation. Comments submitted to the Commission should include only information that you wish to make available publicly. If you wish the Commission to consider information that you believe is exempt from disclosure under the Freedom of Information Act, a petition for confidential treatment of the exempt information may be submitted according to the procedures established in § 145.9 of the Commission's regulations.
Owen Kopon, Associate Director, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW, Washington, DC 20581; (202) 418-5360.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. On May 23, 2022, the Commission published in the
There are no capital costs or operating and maintenance costs associated with this collection.
Consumer Product Safety Commission.
Notice of availability and request for comment.
The U.S. Consumer Product Safety Commission's (Commission or CPSC) mandatory rule, Safety Standard for Bassinets and Cradles, incorporates by reference ASTM F2194-13, Standard Consumer Safety Specification for Bassinets and Cradles, with modifications. ASTM revised F2194-13 several times between 2013 and 2022, but did not notify the Commission of those revisions. ASTM has again revised the voluntary standard for bassinets and cradles, publishing ASTM F2194-22
Comments must be received by August 11, 2022.
Submit comments, identified by Docket No. CPSC-2010-0028, by any of the following methods:
Celestine T. Kish, Project Manager, Directorate for Engineering, U.S. Consumer Product Safety Commission, 5 Research Place, Rockville, MD 20850; telephone: (301) 987-2547; email:
Section 104(b) of the Consumer Product Safety Improvement Act of 2008 (CPSIA) requires the Commission to adopt mandatory standards for durable infant or toddler products. 15 U.S.C. 2056a(b)(1). Mandatory standards must be “substantially the same as” voluntary standards, or may be “more stringent” than voluntary standards, if the Commission determines that more stringent requirements would further reduce the risk of injury associated with the products.
Pursuant to section 104(b)(4)(B) of the CPSIA, if a voluntary standards organization revises a standard that has been adopted, in whole or in part, as a consumer product safety standard under CPSIA section 104, it must notify the Commission. The revised voluntary standard then shall be considered to be a consumer product safety standard issued by the Commission under section 9 of the Consumer Product Safety Act (15 U.S.C. 2058), effective 180 days after the date on which the organization notifies the Commission (or a later date specified by the Commission in the
Under this authority, in 2013 the Commission issued a mandatory safety rule for bassinets and cradles. The rulemaking created 16 CFR part 1218, which incorporated by reference ASTM F2194-13, Standard Consumer Safety Specification for Bassinets and Cradles, with modifications to make the standard more stringent. 78 FR 63019 (Oct. 23, 2013). The mandatory standard included performance requirements and test methods, as well as requirements for warning labels and instructions, to address hazards to children. Since promulgation of the final rule, ASTM has published several revisions to ASTM F2194-13: 2013a, 2016, 2016,
In June 2022, ASTM published a revised version of the voluntary standard for bassinets and cradles, and made editorial revisions in July 2022. On July 18, 2022, ASTM notified the Commission that it had approved and published a revised version of the voluntary standard, ASTM F2194-22.
Read-only copies of redlines demonstrating revisions to ASTM F2194-13a, ASTM F2194-16, ASTM F2194-16,
Comments must be received by August 11, 2022. Because of the short statutory time frame Congress established for the Commission to consider revised voluntary standards under section 104(b)(4) of the CPSIA, CPSC will not consider comments received after this date.
Council on Environmental Quality (CEQ).
Request for nominations.
As required by the Utilizing Significant Emissions with Innovative Technologies (USE IT) Act, the Council on Environmental Quality (CEQ) is seeking member nominations from a diverse range of qualified candidates to serve on the “Carbon Dioxide Capture, Utilization and Sequestration (CCUS) Federal Lands and Outer Continental Shelf Permitting Task Force” (Federal and OCS Task Force). Vacancies are
CEQ must receive nominations by September 26, 2022.
You may submit nominations, identified by “CEQ CCUS Federal Lands and OCS Permitting Task Force,” by email to
Deirdre F. Donahue, Senior Counsel, 730 Jackson Place NW, Washington, DC 20503, (202) 395-5750 or
The USE IT Act, Div. S, sec. 102(d)(2)(D), Public Law 116-260, 134 Stat. 1182, directs the establishment of no less than two regionally based task forces to: (1) identify challenges and successes that permitting authorities, project developers, and operators face to permit CCUS projects in an efficient, orderly, and responsible manner; and (2) provide recommendations to improve the performance of the permitting process and regional coordination for the purpose of promoting the efficient, orderly, and responsible development of CCUS projects and carbon dioxide pipelines. The regulatory authorities and permitting frameworks differ on Federal lands and the Outer Continental Shelf, and non-Federal lands; therefore, one task force will address permitting and other challenges for CCUS projects on Federal lands and the Outer Continental Shelf, and the other task force will address permitting and other challenges for CCUS projects on non-Federal lands.
The purpose of this notice is to request nominations for membership on the Federal and OCS Task Force, one of the two task forces that will be established under the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. App. 2, and its implementing regulations at 41 CFR parts 101-6 and 102-3. A separate
Members will be selected by the Council on Environmental Quality (CEQ) Chair pursuant to the USE IT Act. As required by FACA, the Federal and OCS Task Force membership will be fairly balanced in terms of the points of view represented and the functions to be performed by the Federal Lands and OCS Task Force. Members of the Federal and OCS Task Force will serve without compensation. However, each member may be reimbursed for authorized travel and per diem expenses incurred while attending Federal and OCS Task Force meetings in accordance with Federal Travel Regulations. The Federal and OCS Task Force shall meet not less than twice each year. To the maximum extent practicable, all task forces established under this provision of the USE IT Act shall meet collectively not less than once each year.
As provided by the USE IT Act, the duties of the Federal and OCS Task Force will be to:
• Inventory existing or potential Federal and state approaches to facilitate reviews associated with the deployment of CCUS projects and carbon dioxide pipelines, including best practices that avoid duplicative reviews to the extent permitted by law; engage stakeholders early in the permitting process; and make the permitting process efficient, orderly, and responsible;
• Develop common models for state-level carbon dioxide pipeline regulation and oversight guidelines that can be shared with states in the geographical area covered by the Federal and OCS Task Force;
• Provide technical assistance to states in implementing regulatory requirements and models developed by the Federal and OCS Task Force;
• Inventory current or emerging activities that transform captured carbon dioxide into a product of commercial value, or as an input to products of commercial value;
• Identify any priority carbon dioxide pipelines needed to enable efficient, orderly, and responsible development of CCUS projects at increased scale;
• Identify gaps in the current Federal and state regulatory framework and in existing data for the deployment of CCUS projects and carbon dioxide pipelines;
• Identify Federal and state financing mechanisms available to project developers; and
• Develop recommendations for relevant Federal agencies on how to develop and research technologies that can capture carbon dioxide and would be able to be deployed within the region covered by the Federal and OCS Task Force including any projects that have received technical or financial assistance for research under section 103(g)(6) of the Clean Air Act (42 U.S.C. 7403(g)).
The Federal and OCS Task Force must include no less than one representative in each of the following categories as specified in the USE IT Act. Div. S, sec. 102(d)(2)(D)(ii)(II), Public Law 116-260, 134 Stat.1182. Nominations are sought to fill at least one position in each category:
• Any state that requests participation in the geographical area covered by the Federal and OCS Task Force;
• Developers or operators of CCUS projects or carbon dioxide pipelines;
• Nongovernmental membership organizations, the primary mission of which concerns protection of the environment;
The USE IT Act also requires one expert in each of the following fields:
• Health and environmental effects, including exposure evaluation; and
• Pipeline safety.
In addition, members may also include not less than one representative in each of the following categories at the request of a Tribal or local government:
• A local government in the geographical area covered by the Federal and OCS Task Force; and
• A Tribal government in the geographical area covered by the Federal and OCS Task Force.
To ensure that recommendations of the Federal and OCS Task Force have considered the needs of diverse groups served by the Federal Government, opportunities will be sought to increase diversity, equity, inclusion, and accessibility for the membership of the Federal and OCS Task Force. Please note that federally registered lobbyists serving in an “individual capacity” are ineligible for appointment or reappointment.
In selecting members, CEQ will consider technical expertise, coverage of broad stakeholder perspectives, diversity, and the duties of the Federal and OCS Task Force as outlined in the USE IT Act. CEQ will use the following criteria to evaluate nominees:
• Background and experiences that help members contribute to the diversity of perspectives on the Federal and OCS Task Force;
• Experience working for a state, Tribal, or local government on regulatory and permitting issues associated with CCUS projects and CO
• CCUS and pipeline project development experience, or expertise
• Experience working for environmental nongovernmental organizations;
• Experience working on environmental justice issues at the national, state, or local level;
• Expertise in health and environmental effects of carbon dioxide, including exposure evaluation;
• Expertise in Federal and state financing mechanisms available to project developers;
• Expertise in the regulation, siting, and safety of carbon dioxide pipelines;
• Experience or expertise in emerging activities to transform CO
• Demonstrated experience working on environmental, public health, and climate change issues;
• Experience and/or responsibilities associated with Federal and state regulations and permitting requirements associated with CCUS projects and carbon dioxide pipelines, including but not limited to experience obtaining and/or issuing permits/rights of way/leases and knowledge regarding state legal requirements, processes, timeframes, costs, barriers, public engagement requirements, state environmental requirements as well as opportunities to improve/enhance all of the above;
• Executive management-level experience;
• Excellent interpersonal, oral and written communication and consensus-building skills; and
• Ability to volunteer time to attend meetings and to contribute to the duties assigned to the Federal and OCS Task Force.
Council on Environmental Quality (CEQ).
Request for nominations.
As required by the Utilizing Significant Emissions with Innovative Technologies (USE IT) Act, the Council on Environmental Quality (CEQ) is seeking member nominations from a diverse range of qualified candidates to serve on the “Carbon Dioxide Capture, Utilization and Sequestration (CCUS) Non-Federal Lands Permitting Task Force” (Non-Federal Task Force). Vacancies are anticipated to be filled by December 31, 2022.
CEQ must receive nominations by September 26, 2022.
You may submit nominations, identified by “CEQ CCUS Non-Federal Lands Permitting Task Force,” by email to
Deirdre F. Donahue, Senior Counsel, 730 Jackson Place NW, Washington, DC 20503, (202) 395-5750 or
The USE IT Act, Div. S, sec. 102(d)(2)(D), Public Law 116-260, 134 Stat. 1182, directs the establishment of no less than two regionally based task forces to: (1) identify challenges and successes that permitting authorities, project developers, and operators face to permit CCUS projects in an efficient, orderly, and responsible manner; and (2) provide recommendations to improve the performance of the permitting process and regional coordination for the purpose of promoting the efficient, orderly, and responsible development of CCUS projects and carbon dioxide pipelines. The regulatory authorities and permitting frameworks differ on Federal lands and the Outer Continental Shelf, and non-Federal lands; therefore, one task force will address permitting and other challenges for CCUS projects on Federal lands and the Outer Continental Shelf, and the other task force will address permitting and other challenges for CCUS projects on non-Federal lands.
The purpose of this notice is to request nominations for membership on the Non-Federal Task Force, one of the two task forces that will be established under the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. App. 2, and its implementing regulations at 41 CFR parts 101-6 and 102-3. A separate
Members will be selected by the Council on Environmental Quality (CEQ) Chair pursuant to the USE IT Act. As required by FACA, the Non-Federal Task Force membership will be fairly balanced in terms of the points of view represented and the functions to be performed by the Non-Federal Task Force. Members of the Non-Federal Task Force will serve without compensation. However, each member may be reimbursed for authorized travel and per diem expenses incurred while attending Non-Federal Task Force meetings in accordance with Federal Travel Regulations. The Non-Federal Task Force shall meet not less than twice each year. To the maximum extent practicable, all task forces established under this provision of the USE IT Act shall meet collectively not less than once each year.
As provided by the USE IT Act, the duties of the Non-Federal Task Force will be to:
• Inventory existing or potential Federal and state approaches to facilitate reviews associated with the deployment of CCUS projects and carbon dioxide pipelines, including best practices that avoid duplicative reviews to the extent permitted by law; engage stakeholders early in the permitting process; and make the permitting process efficient, orderly, and responsible;
• Develop common models for state-level carbon dioxide pipeline regulation and oversight guidelines that can be shared with states in the geographical area covered by the Non-Federal Task Force;
• Provide technical assistance to states in implementing regulatory requirements and models developed by the Non-Federal Task Force;
• Inventory current or emerging activities that transform captured carbon dioxide into a product of commercial value, or as an input to products of commercial value;
• Identify any priority carbon dioxide pipelines needed to enable efficient, orderly, and responsible development of CCUS projects at increased scale;
• Identify gaps in the current Federal and state regulatory framework and in existing data for the deployment of CCUS projects and carbon dioxide pipelines;
• Identify Federal and state financing mechanisms available to project developers; and
• Develop recommendations for relevant Federal agencies on how to develop and research technologies that can capture carbon dioxide and would be able to be deployed within the region covered by the Non-Federal Task Force including any projects that have received technical or financial assistance for research under section 103(g)(6) of the Clean Air Act (42 U.S.C. 7403(g)).
The Non-Federal Task Force must include no less than one representative in each of the following categories as specified in the USE IT Act. Div. S, sec. 102(d)(2)(D)(ii)(II), Public Law 116-260, 134 Stat.1182. Nominations are sought to fill at least one position in each category:
• Any state that requests participation in the geographical area covered by the Non-Federal Task Force;
• Developers or operators of CCUS projects or carbon dioxide pipelines;
• Nongovernmental membership organizations, the primary mission of which concerns protection of the environment;
The USE IT Act also requires one expert in each of the following fields:
• Health and environmental effects, including exposure evaluation; and
• Pipeline safety.
In addition, members may also include not less than one representative in each of the following categories at the request of a Tribal or local government:
• A local government in the geographical area covered by the Non-Federal Task Force; and
• A Tribal government in the geographical area covered by the Non-Federal Task Force.
To ensure that recommendations of the Non-Federal Task Force have considered the needs of diverse groups served by the Federal Government, opportunities will be sought to increase diversity, equity, inclusion, and accessibility for the membership of the Non-Federal Task Force. Please note that federally registered lobbyists serving in an “individual capacity” are ineligible for appointment or reappointment.
In selecting members, CEQ will consider technical expertise, coverage of broad stakeholder perspectives, diversity, and the duties of the Non-Federal Task Force as outlined in the USE IT Act. CEQ will use the following criteria to evaluate nominees:
• Background and experiences that help members contribute to the diversity of perspectives on the Non-Federal Task Force;
• Experience working for a state, Tribal, or local government on regulatory and permitting issues associated with CCUS projects and CO
• CCUS and pipeline project development experience, or expertise and experience in closely related fields from a project developer, private sector perspective;
• Experience working for environmental nongovernmental organizations;
• Experience working on environmental justice issues at the national, state, or local level;
• Expertise in health and environmental effects of carbon dioxide, including exposure evaluation;
• Expertise in Federal and state financing mechanisms available to project developers;
• Expertise in the regulation, siting, and safety of carbon dioxide pipelines;
• Experience or expertise in emerging activities to transform CO
• Demonstrated experience working on environmental, public health, and climate change issues;
• Experience and/or responsibilities associated with Federal and state regulations and permitting requirements associated with CCUS projects and carbon dioxide pipelines, including but not limited to experience obtaining and/or issuing permits/rights of way/leases and knowledge regarding state legal requirements, processes, timeframes, costs, barriers, public engagement requirements, state environmental requirements as well as opportunities to improve/enhance all of the above;
• Executive management-level experience;
• Excellent interpersonal, oral and written communication and consensus-building skills; and
• Ability to volunteer time to attend meetings and to contribute to the duties assigned to the Non-Federal Task Force.
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of a currently approved collection.
Interested persons are invited to submit comments on or before August 29, 2022.
Written comments and recommendations for proposed information collection requests should be sent within 30 days of publication of this notice to
For specific questions related to collection activities, please contact Beth Grebeldinger, 202-377-4018.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Federal Energy Regulatory Commission.
Notice of information collection and request for comments.
In compliance with the requirements of the Paperwork Reduction Act of 1995, the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on the currently approved information collections, FERC-516A (Standardization of Small Generator Interconnection Agreements and Procedures).
Comments on the collections of information are due September 26, 2022.
You may submit your comments (identified by Docket No. IC22-23-000) on FERC-516A by one of the following methods:
Electronic filing through
•
• For those unable to file electronically, comments may be filed by USPS mail or by hand (including courier) delivery:
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Ellen Brown may be reached by email at
In furtherance of fulfilling these Commission responsibilities, the regulation at 18 CFR 35.28(f)(1) requires transmission providers to include the following information in their open-access transmission tariffs (OATTs):
• Commission-approved, standard,
• A single, uniformly applicable interconnection agreement (
This information helps the Commission ensure that transmission providers consider and process interconnection requests by small generators consistently and in compliance with the FPA.
Comments
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following Complaints and Compliance filings in EL Dockets:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
On July 12, 2022, as supplemented on July 20, 2022, Wallowa Resources Community Solutions, Inc., on behalf of Scott and Kathy Siebe, filed a notice of intent to construct a qualifying conduit hydropower facility, pursuant to section 30 of the Federal Power Act (FPA). The Siebe Ranch Hydropower Project would have an installed capacity of 2 kilowatts (kW), and would be located along an irrigation pipeline in Enterprise, Wallowa County, Oregon.
The project discharges water to Siebe Creek, a natural body of water. Because the discharge would not be withdrawn downstream by part of the same water supply system, the applicant requests waiver of the discharge requirement under 18 CFR 4.30(b)(30)(iv).
A qualifying conduit hydropower facility is one that is determined or deemed to meet all the criteria shown in the table below.
Anyone may submit comments or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210 and 385.214. Any motions to intervene must be received on or before the specified deadline date for the particular proceeding.
The Commission strongly encourages electronic filing. Please file motions to intervene and comments using the Commission's eFiling system at
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental document that will discuss the environmental impacts of the Ridgeline Expansion Project (Project) involving construction and operation of facilities by East Tennessee Natural Gas, LLC (East Tennessee) in Trousdale, Smith, Jackson, Putnam, Overton, Fentress, Morgan, and Roane Counties, Tennessee. The Commission will use this environmental document in its decision-making process to determine whether the Project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies regarding the Project. As part of the National Environmental Policy Act (NEPA) review process, the Commission considers concerns the public may have about proposals and the environmental impacts that could result from its action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. This gathering of public input is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the environmental document on the important environmental issues. Additional information about the Commission's NEPA process is described below in the
By this notice, the Commission requests public comments on the scope of issues to address in the environmental document. To ensure that your comments are timely and properly recorded, please submit your comments so that the Commission receives them in Washington, DC on or before 5:00 p.m. Eastern Time on October 20, 2022. Comments may be submitted in written or oral form. Further details on how to submit comments are provided in the
Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the environmental document. Commission staff will consider all written or oral comments during the preparation of the environmental document.
If you submitted comments on this Project to the Commission before the opening of this docket on May 20, 2022, you will need to file those comments in Docket No. PF22-7-000 to ensure they are considered.
This notice is being sent to the Commission's current environmental mailing list for this Project. State and local government representatives should notify their constituents of this planned Project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the planned facilities. The company would seek to negotiate a mutually acceptable easement agreement. You are not required to enter into an agreement. However, if the Commission approves the Project, the Natural Gas Act conveys the right of eminent domain to the company. Therefore, if you and the company do not reach an easement agreement, the pipeline company could initiate condemnation proceedings in court. In such instances, compensation would be determined by a judge in accordance with state law. The Commission does not subsequently grant, exercise, or oversee the exercise of that eminent domain authority. The courts have exclusive authority to handle eminent domain cases; the Commission has no jurisdiction over these matters.
A fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” addresses typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. This fact sheet along with other landowner topics of interest are available for viewing on the FERC website (
There are three methods you can use to submit your comments to the Commission. Please carefully follow these instructions so that your comments are properly recorded. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208-3676 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the eFiling feature, which is located on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the Commission. Be sure to reference the Project docket number (PF22-7-000) on your letter. Submissions sent via the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426. Submissions sent via any other carrier must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to the methods listed above, we will also hold public scoping meetings and mail notices to our environmental mailing list identifying the date, time, and locations of these meetings later this year.
Additionally, the Commission offers a free service called eSubscription, which makes it easy to stay informed of all issuances and submittals regarding the dockets/projects to which you subscribe. These instant email notifications are the fastest way to receive notification and provide a link to the document files which can reduce the amount of time you spend researching proceedings. Go to
The Project is designed to deliver natural gas to the site of Tennessee Valley Authority's (TVA) Kingston Fossil Plant (Plant) if TVA chooses to replace coal-fired generation at its Plant with gas-fired generation at the same site. The Project would provide up to 300,000 dekatherms per day of new natural gas transportation capacity to the Plant, and 95,000 dekatherms of parking capability.
The Project would consist of the following facilities:
• Approximately 112 miles of new 30-inch-diameter pipeline extending from the discharge of the new electric-powered Hartsville Compressor Station, mostly in East Tennessee's existing right-of-way, in Trousdale County, Tennessee to a terminus near the beginning of the East Tennessee Harriman Lateral and traversing through Trousdale, Smith, Jackson, Putnam, Overton, Fentress, Morgan, and Roane Counties, Tennessee;
• Approximately 5 miles of new 30-inch-diameter header pipeline to connect to the suction of the new electric-powered Hartsville Compressor Station from a new meter and regulating (M&R) station mostly in East Tennessee's existing right-of-way in Trousdale County, Tennessee;
• Approximately 8 miles of new 24-inch-diameter pipeline partially paralleling East Tennessee's Harriman Lateral right-of-way to connect to the Kingston Plant in Roane County, Tennessee;
• The new Hartsville Compressor Station, including two new 6,000 horsepower electric-powered compressor units, in Trousdale County, Tennessee;
• A new 8-megawatt solar array adjacent to the Hartsville Compressor Station to partially power the station;
• A new M&R station to receive gas from Columbia Gulf Transmission, LLC in Trousdale County, Tennessee;
• A new M&R station to deliver gas to the Kingston Plant in Roane County, Tennessee;
• Modifications to the existing Texas Eastern Transmission, LP and Midwestern Gas Transmission Company M&R stations in Trousdale County, Tennessee; and
• Three new crossovers to connect the new 30-inch-pipeline to the existing Line 3100-1 at the existing Gainesboro Compressor Station, Clarkrange Compressor Station, and 22-inch Line 3100-1 at milepost 148.89.
The general location of the project facilities is shown in appendix 1.
Construction of the planned facilities would disturb about 1,600 acres of land for the aboveground facilities and the pipeline. Following construction, East Tennessee would maintain about 800 acres for permanent operation of the project's facilities; the remaining acreage would be restored and revert to former uses. About 90 percent of the planned pipeline route parallels existing pipeline.
Any environmental document issued by Commission staff will discuss impacts that could occur as a result of the construction and operation of the planned project under the relevant general resource areas:
• geology and soils;
• water resources and wetlands;
• vegetation and wildlife;
• threatened and endangered species;
• cultural resources;
• land use;
• socioeconomics and environmental justice;
• air quality and noise; and
• reliability and safety.
Commission staff will also evaluate reasonable alternatives to the planned project or portions of the project and make recommendations on how to lessen or avoid impacts on the various resource areas. Your comments will help Commission staff identify and focus on the issues that might have an effect on the human environment and potentially eliminate others from further study and discussion in the environmental document.
Although no formal application has been filed, Commission staff have already initiated a NEPA review under the Commission's pre-filing process. The purpose of the pre-filing process is to encourage early involvement of interested stakeholders and to identify and resolve issues before the Commission receives an application. As part of the pre-filing review, Commission staff will contact federal and state agencies to discuss their involvement in the scoping process and the preparation of the environmental document.
If a formal application is filed, Commission staff will then determine whether to prepare an Environmental Assessment (EA) or an Environmental Impact Statement (EIS). The EA or the EIS will present Commission staff's independent analysis of the environmental issues. If Commission staff prepares an EA, a
With this notice, the Commission is asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues related to this project to formally cooperate in the preparation of the environmental document.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, the Commission is using this notice to initiate consultation with the applicable State Historic Preservation Office(s), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project and includes a mailing address with their comments. Commission staff will update the environmental mailing list as the analysis proceeds to ensure that Commission notices related to this environmental review are sent to all individuals, organizations, and government entities interested in and/or potentially affected by the planned project.
(1) Send an email to
(2) Return the attached “Mailing List Update Form” (appendix 2).
Once East Tennessee files its application with the Commission, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Only intervenors have the right to seek rehearing of the Commission's decision and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene pursuant to Rule 214 of the Commission's Rules of Practice and Procedures (18 CFR 385.214). Motions to intervene are more fully described at
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website (
Public sessions or site visits will be posted on the Commission's calendar located at
As announced in the Notice of Technical Conference issued in this proceeding on April 21, 2022, the Federal Energy Regulatory Commission (Commission) will convene a Commissioner-led technical conference regarding transmission planning and cost management for transmission facilities developed through local or regional transmission planning processes in the above-captioned proceeding on October 6, 2022, from approximately 9:00 a.m. to 5:00 p.m. Eastern Time.
The purpose of this conference is to explore measures to ensure sufficient transparency into and cost effectiveness of local and regional transmission planning decisions, including: (1) the role of cost management measures in ensuring the cost-effective identification of local transmission needs (
A preliminary agenda for this technical conference is attached. An additional supplemental notice will be issued prior to the technical conference with further details regarding the agenda and speakers for the technical conference. Speakers will be asked to provide pre-conference background materials and a written opening statement to facilitate the discussion during the technical conference, and those materials will be available as part of the public record in this docket.
The technical conference will be open to the public and there is no fee for attendance. Information will also be posted on the Calendar of Events on the Commission's website,
The workshop will be transcribed and webcast. Transcripts will be available for a fee from Ace Reporting (202-347-3700). A link to the webcast of this event will be available in the Commission Calendar of Events at
Commission conferences are accessible under section 508 of the Rehabilitation Act of 1973. For accessibility accommodations, please send an email to
For more information about this technical conference, please contact John Riehl at
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit the information collection request (ICR), Identification of Non-Hazardous Secondary Materials that are Solid Waste (Renewal) (EPA ICR No. 2382.06, OMB Control No. 2050-0205) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA). Before doing so, the EPA is soliciting public comments on specific aspects of the proposed information collection as described in
Comments must be submitted on or before September 26, 2022.
Submit your comments, referencing by Docket ID No. EPA-HQ-OLEM-2018-0693, at
Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit to EPA's docket at
Jesse Miller, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-566-0562;
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, the EPA is soliciting comments and information to enable it to: (i) 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; (ii) 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; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) 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,
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), EPA Program Information on Source Water Protection (EPA ICR Number 1816.08, OMB Control Number 2040-0197) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through July 31, 2022. Public comments were previously requested via the
Additional comments may be submitted on or before August 29, 2022.
Submit your comments, referencing Docket ID Number EPA-HQ-OW-2004-0013 to EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Sherri Comerford, Drinking Water Protection Division, Prevention Branch, Office of Ground Water and Drinking Water (MC 4606M), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 202-564-4639; email address:
Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at
Environmental Protection Agency (EPA).
Notice.
This notice provides the names, addresses, and professional affiliations of persons recently nominated to serve on the Scientific Advisory Panel (SAP) established under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The Agency, at this time, anticipates selecting new members to serve on the panel because of the upcoming expirations of membership terms. Current members of the SAP are eligible for reappointment during this period. Therefore, the appointments completed over the next year may include a mix of newly appointed and reappointed members. Public comments on the current nominations are invited, as these comments will be used to assist the Agency in selecting the new members for the FIFRA SAP.
Comments must be received on or before August 29, 2022.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2022-0602, through the
Steven M. Knott, MS, Designated Federal Officer (DFO) and Chief of the Peer Review and Ethics Branch, Mission Support Division (7602M), Office of Program Support, Office of Chemical Safety and Pollution Prevention, Environmental Protection Agency; telephone number: (202) 564-0103; email address:
This action is directed to the public in general. This action may, however, be of interest to persons who are or may be required to conduct testing of chemical substances under the Federal Food, Drug, and Cosmetic Act (FFDCA) and FIFRA. Given other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the DFO listed under
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This document identifies persons recently nominated to serve on the SAP, from which the Agency, at this time, anticipates selecting new members to serve on the panel because of the upcoming expirations of membership terms. Public comments on these current nominations are invited, as these comments will be used to assist the Agency in selecting the new members for the FIFRA SAP.
The Panel is a federal advisory committee, established in 1975 under FIFRA (7 U.S.C. 136
The FIFRA SAP serves as a scientific peer review mechanism of EPA's Office of Chemical Safety and Pollution Prevention (OCSPP) and is structured to provide independent scientific advice, information, and recommendations to the EPA Administrator on pesticides and pesticide-related issues as to the impact of regulatory actions on health and the environment. The FIFRA SAP is composed of a permanent panel consisting of seven members who are appointed by the EPA Administrator from nominees provided by the National Institutes of Health (NIH) and the National Science Foundation (NSF). Members serve staggered terms of appointment, generally of three to six years duration. FIFRA established a Science Review Board (SRB) consisting of at least 60 scientists who are available to the FIFRA SAP on an ad hoc basis to assist in reviews conducted by the FIFRA SAP.
As a scientific peer review mechanism, the FIFRA SAP provides comments, evaluations, and recommendations to improve the effectiveness and quality of analyses made by Agency scientists. Members of the FIFRA SAP are scientists who have sufficient professional qualifications, including training and experience, to provide expert advice and recommendations to the Agency.
Members are scientists who have sufficient professional qualifications, including training and experience, to provide expert comments on the impact of pesticides on human health and the environment. In accordance with FIFRA section 25(d)(1), the Administrator shall require nominees to the FIFRA SAP to furnish information concerning their
With respect to the requirements of FIFRA section 25(d) that the Administrator promulgate regulations regarding conflicts of interest, FIFRA SAP members are subject to the provisions of the Standards of Ethical Conduct for Employees of the Executive Branch at 5 CFR part 2635, conflict of interest statutes in Title 18 of the United States Code, and related regulations. Each nominee selected by the Administrator, before being formally appointed, is required to submit a Confidential Financial Disclosure Form, which shall fully disclose, among other financial interests, the nominee's sources of research support, if any.
In accordance with the provisions of FIFRA section 25(d), on March 24, 2022, EPA requested that the NIH and the NSF nominate scientists to fill vacancies occurring on the FIFRA SAP. The Agency requested nominations of experts in the fields of ecological and human health risk assessment with specific expertise in terrestrial ecotoxicology and environmental fate modeling; nano technologies (especially related to exposure and hazard assessments); and microbiology, including antimicrobial susceptibility of a broad range of microorganism types. The Agency noted that experts with specific experience in risk assessment, dose response analysis, computational toxicology (new approach methodologies and in vitro to in vivo extrapolation), allergenicity, population modeling, cheminformatics, bioinformatics, and genomics are preferred. NIH and NSF responded, providing the Agency with a total of 64 nominees. Of these nominees, 24 are interested and available to actively participate in FIFRA SAP meetings (see Unit III.D.). The following 40 individuals are not available to be considered further for membership at this time (numbered for convenience only):
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The following are the names, addresses, and professional affiliations of current nominees being considered for membership on the FIFRA SAP (numbered for convenience only). Selected biographical data for each nominee is available in the docket identified under
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Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before September 26, 2022. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele, (202) 418-2991.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the fiscal year (FY) 2023 annual fee rate for recognized accreditation bodies and accredited certification bodies, and the initial and renewal fee rate for accreditation bodies applying to be recognized in the third-party certification program that is authorized by the Federal Food, Drug, and Cosmetic Act (FD&C Act), as amended by the FDA Food Safety Modernization Act (FSMA). We are also announcing the fee rate for certification bodies that
This fee is effective on October 1, 2022, and will remain in effect through September 30, 2023.
Donald Prater, Office of Food Policy and Response, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 3202, Silver Spring, MD 20993, 301-348-3007.
Section 307 of FSMA (Pub. L. 111-353), Accreditation of Third-Party Auditors, amended the FD&C Act to create a new provision, section 808, under the same name. Section 808 of the FD&C Act (21 U.S.C. 384d) directs FDA to establish a program for accreditation of third-party certification bodies
Section 808(c)(8) of the FD&C Act directs FDA to establish a reimbursement (user fee) program by which FDA assesses fees and requires reimbursement for the work FDA performs to establish and administer the third-party certification program under section 808 of the FD&C Act. The user fee program for the third-party certification program was established by a final rule entitled “Amendments to Accreditation of Third-Party Certification Bodies To Conduct Food Safety Audits and To Issue Certifications To Provide for the User Fee Program” (81 FR 90186, December 14, 2016).
The FSMA FY 2023 third-party certification program user fee rate announced in this notice is effective on October 1, 2022, and will remain in effect through September 30, 2023.
FDA must estimate its costs for each activity in order to establish fee rates for FY 2023. In each year, the costs of salary (or personnel compensation) and benefits for FDA employees account for between 50 and 60 percent of the funds available to, and used by, FDA. Almost all the remaining funds (operating funds) available to FDA are used to support FDA employees for paying rent, travel, utility, information technology, and other operating costs.
Full-time Equivalent (FTE) reflects the total number of regular straight-time hours (not including overtime or holiday hours) worked by employees, divided by the number of compensable hours applicable to each fiscal year. Annual leave, sick leave, compensatory time off, and other approved leave categories are considered “hours worked” for purposes of defining FTE employment.
In general, the starting point for estimating the full cost per direct work hour is to estimate the cost of an FTE or paid staff year. Calculating an Agency-wide total cost per FTE requires three primary cost elements: payroll, non-payroll, and rent.
We have used an average of past year cost elements to predict the FY 2023 cost. The FY 2023 FDA-wide average cost for payroll (salaries and benefits) is $173,393; non-payroll (including equipment, supplies, information technology, general and administrative overhead) is $103,078; and rent (including cost allocation analysis and adjustments for other rent and rent-related costs) is $23,944 per paid staff year, excluding travel costs.
Summing the average cost of an FTE for payroll, non-payroll, and rent, brings the FY 2023 average fully supported cost to $300,416
To calculate an hourly rate, FDA must divide the FY 2023 average fully supported cost of $300,416 per FTE by the average number of supported direct FDA work hours in FY 2021 (the last FY for which data are available). See table 1.
Dividing the average fully supported FTE cost in FY 2023 ($300,416) by the total number of supported direct work hours available for assignment in FY 2021 (1,160) results in an average fully supported cost of $259 (rounded to the nearest dollar), excluding travel costs, per supported direct work hour in FY 2023.
To adjust the hourly rate for FY 2023, FDA must estimate the cost of inflation in each year for FY 2022 and FY 2023. FDA uses the method prescribed for estimating inflationary costs under the Prescription Drug User Fee Act (PDUFA) provisions of the FD&C Act (section 736(c)(1) (21 U.S.C. 379h(c)(1))), the statutory method for inflation adjustment in the FD&C Act that FDA has used consistently. FDA previously determined the FY 2022 inflation rate to be 2.2013 percent: this rate was published in the FY 2022 PDUFA user fee rates notice in the
The average fully supported cost per supported direct FDA work hour, excluding travel costs, of $259 already takes into account inflation as the calculation above is based on FY 2023 predicted costs. FDA will use this base unit fee in determining the hourly fee rate for third-party certification program fees for FY 2023 prior to including travel costs as applicable for the activity. For the purpose of estimating
The third-party certification program assesses application fees and annual fees. In FY 2023, the only fees that could be collected by FDA under section 808(c)(8) of the FD&C Act are the initial application fee for accreditation bodies seeking recognition, the annual fee for recognized accreditation bodies, the annual fee for certification bodies accredited by a recognized accreditation body, the initial application fee for a certification body seeking direct accreditation from FDA, and the renewal application fee for recognized accreditation bodies. Table 3 provides an overview of the fees for FY 2023.
Section 1.705(a)(1) (21 CFR 1.705(a)(1)) establishes an application fee for accreditation bodies applying for initial recognition that represents the estimated average cost of the work FDA performs in reviewing and evaluating initial applications for recognition of accreditation bodies.
The fee is based on the fully supported FTE hourly rates and estimates of the number of hours it would take FDA to perform relevant activities. These estimates represent FDA's current thinking, and as the program evolves, FDA will continue to reconsider the estimated hours. Based on data we have acquired since starting the program, we estimate that it would take, on average, 80 person-hours to review an accreditation body's submitted application, 48 person-hours for an onsite performance evaluation of the applicant (including travel and other steps necessary for a fully supported FTE to complete an onsite assessment), and 32 person-hours to prepare a written report documenting the onsite assessment.
FDA employees review applications and prepare reports from their worksites, so we use the fully supported FTE hourly rate excluding travel, $259 per hour, to calculate the portion of the user fee attributable to those activities: $259 per hour multiplied by (80 hours (application review) plus 32 hours (written report)) equals $29,008. FDA employees will likely travel to foreign countries for the onsite performance evaluations because most accreditation bodies are anticipated to be located in foreign countries. For this portion of the fee, we use the fully supported FTE hourly rate for work requiring travel, $334 per hour, to calculate the portion of the user fee attributable to those activities: $334 per hour multiplied by 48 hours (
To calculate the annual fee for each recognized accreditation body, FDA takes the estimated average cost of work FDA performs to monitor performance of a single recognized accreditation body and annualizes that over the average term of recognition. At this time, we assume an average term of recognition of 5 years. We also assume that FDA will monitor 10 percent of recognized accreditation bodies onsite. As the program proceeds, we will adjust the term of recognition as appropriate. We estimate that for one performance evaluation of a recognized accreditation body, it would take, on average (taking into account that not all recognized accreditation bodies would be monitored onsite), 22 hours for FDA to conduct records review, 8 hours to prepare a report detailing the records review and onsite performance evaluation, and 8 hours of onsite performance evaluation. Using the fully supported FTE hourly rates in table 2, the estimated average cost of the work FDA performs to monitor performance of a single recognized accreditation body would be $7,770 ($259 per hour multiplied by (22 hours (records review) plus 8 hours (written report))) plus $2,672 ($334 per hour multiplied by 8 hours (onsite evaluation)), which is $10,442. Annualizing this amount over 5 years would lead to an annual fee for recognized accreditation bodies of $2,088 for FY 2023.
To calculate the annual fee for a certification body accredited by a recognized accreditation body, FDA takes the estimated average cost of work FDA performs to monitor performance of a single certification body accredited by a recognized accreditation body and annualizes that over the average term of accreditation. At this time, we assume an average term of accreditation of 4 years. This fee is based on the fully supported FTE hourly rates and estimates of the number of hours it would take FDA to perform relevant activities. We estimate that FDA would conduct, on average, the same activities, for the same amount of time to monitor certification bodies accredited by a recognized accreditation body as we would to monitor an accreditation body recognized by FDA. Using the fully supported FTE hourly rates in table 2, the estimated average cost of the work FDA performs to monitor performance of a single accredited certification body would be $7,770 ($259 per hour multiplied by (22 hours (records review) plus 8 hours (written report))) plus $2,672 ($334 per hour multiplied by 8 hours (onsite evaluation)), which is $10,442. Annualizing this amount over 4 years would lead to an annual fee for accredited certification bodies of $2,611 for FY 2023.
Section 1.705(a)(3) establishes an application fee for certification bodies applying for direct accreditation from FDA that represents the estimated average cost of the work FDA performs in reviewing and evaluating initial applications for direct accreditation of certification bodies.
The fee is based on the fully supported FTE hourly rates and estimates of the number of hours it would take FDA to perform relevant activities. These estimates represent FDA's current thinking, and as the program evolves, FDA will reconsider the estimated hours. We estimate that it would take, on average, 80 person-hours to review a certification body's submitted application, 48 person-hours for an onsite performance evaluation of the applicant (including travel and other steps necessary for a fully supported FTE to complete an onsite assessment), and 32 person-hours to prepare a written report documenting the onsite assessment.
FDA employees are likely to review applications and prepare reports from their worksites, so we use the fully supported FTE hourly rate excluding travel, $259 per hour, to calculate the portion of the user fee attributable to those activities: $259 per hour multiplied by (80 hours (application review) plus 32 hours (written report)) equals $29,008. FDA employees will likely travel to foreign countries for the onsite performance evaluations because most certification bodies are anticipated to be located in foreign countries. For this portion of the fee we use the fully supported FTE hourly rate for work requiring travel, $334 per hour, to calculate the portion of the user fee attributable to those activities: $334 per hour multiplied by 48 hours (
Section 1.705(a)(2) establishes a renewal application fee for recognized accreditation bodies that represents the estimated average cost of the work FDA performs in reviewing and evaluating renewal applications for recognition of accreditation bodies.
The fee is based on the fully supported FTE hourly rates and estimates of the number of hours it would take FDA to perform relevant activities. These estimates represent FDA's current thinking, and as the program evolves, FDA will reconsider the estimated hours. We estimate that it would take, on average, 43 person-hours to review an accreditation body's submitted renewal application, 24 person-hours for an onsite performance evaluation of the applicant (including travel and other steps necessary for a fully supported FTE to complete an onsite assessment), and 32 person-hours to prepare a written report documenting the onsite assessment.
FDA employees are likely to review renewal applications and prepare reports from their worksites, so we use the fully supported FTE hourly rate excluding travel, $259 per hour, to calculate the portion of the user fee attributable to those activities: $259 per hour multiplied by (43 hours (application review) plus 32 hours (written report)) equaling $19,425. FDA employees will likely travel to foreign countries for the onsite performance evaluations because most certification bodies are anticipated to be located in foreign countries. For this portion of the fee we use the fully supported FTE hourly rate for work requiring travel, $334 per hour, to calculate the portion of the user fee attributable to those activities: $334 per hour multiplied by 24 hours (
Section 1.705(a) also establishes application fees for certification bodies applying for renewal of direct accreditation. Section 1.705(b) also establishes annual fees for certification bodies directly accredited by FDA.
Although we will not be collecting these other fees in FY 2023, for transparency and planning purposes, we have provided an estimate of what these fees would be for FY 2023 based on the fully supported FTE hourly rates for FY 2023 and estimates of the number of hours it would take FDA to perform relevant activities as outlined in the Final Regulatory Impact Analysis for the Third-Party Certification Regulation. Table 4 provides an overview of the estimated fees for other fee categories.
Accreditation bodies seeking initial recognition must submit the application fee with the application. For recognized accreditation bodies and accredited certification bodies, an invoice will be sent annually. Payment must be made within 30 days of the receipt invoice date. The payment must be made in U.S. currency from a U.S. bank by one of the following methods: wire transfer, electronically, check, bank draft, or U.S. postal money order made payable to the Food and Drug Administration. The preferred payment method is online using an electronic check (Automated Clearing House (ACH), also known as eCheck) or credit card (Discover, VISA, MasterCard, American Express). Secure electronic payments can be submitted using the User Fees Payment Portal (
When paying by wire transfer, it is required that the invoice number is included; without the invoice number, the payment may not be applied. The originating financial institution may charge a wire transfer fee. If the financial institution charges a wire transfer fee, it is required to add that amount to the payment to ensure that the invoice is paid in full. For international wire transfers, please inquire with the financial institutions prior to submitting the payment. Use the following account information when sending a wire transfer: U.S. Department of the Treasury, TREAS NYC, 33 Liberty St., New York, NY 10045, Account Name: Food and Drug Administration, Account No.: 75060099, Routing No.: 021030004, Swift No.: FRNYUS33.
To send a check by a courier such as Federal Express, the courier must deliver the check to: U.S. Bank, Attn: Government Lockbox 979108, 1005 Convention Plaza, St. Louis, MO 63101. (Note: this address is for courier delivery only. If you have any questions concerning courier delivery, contact U.S. Bank at 314-418-4013. This phone number is only for questions about courier delivery.) The tax identification number of FDA is 53-0196965. (Note: invoice copies do not need to be submitted to FDA with the payments.)
The consequences of not paying these fees are outlined in 21 CFR 1.725. If FDA does not receive an application fee with an application for recognition, the application will be considered incomplete and FDA will not review the application. If a recognized accreditation body fails to submit its annual user fee within 30 days of the due date, we will suspend its recognition. If the recognized accreditation body fails to submit its annual user fee within 90 days of the due date, we will revoke its recognition. If an accredited certification body fails to pay its annual fee within 30 days of the due date, we will suspend its accreditation. If the accredited certification body fails to pay its annual fee within 90 days of the due date, we will withdraw its accreditation.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA, Agency, or we) is announcing the fee rates and payment procedures for fiscal year (FY) 2023 generic new animal drug user fees. The Federal Food, Drug, and Cosmetic Act (FD&C Act), as amended by the Animal Generic Drug User Fee Amendments of 2018 (AGDUFA III), authorizes FDA to collect user fees for certain abbreviated applications for generic new animal drugs, for certain generic new animal drug products, and for certain sponsors of abbreviated applications for generic new animal drugs and/or investigational submissions for generic new animal drugs. This notice establishes the fee rates for FY 2023.
The application fee rates are effective for all abbreviated applications for a generic new animal drug submitted on or after October 1, 2022, and will remain in effect through September 30, 2023.
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Section 741 of the FD&C Act (21 U.S.C. 379j-21) as amended by AGDUFA III, establishes three different types of user fees: (1) fees for certain types of abbreviated applications for generic new animal drugs; (2) annual fees for certain generic new animal drug products; and (3) annual fees for certain sponsors of abbreviated applications for generic new animal drugs and/or investigational submissions for generic new animal drugs (21 U.S.C. 379j-21(a)). When certain conditions are met, FDA will waive or reduce fees for generic new animal drugs intended solely to provide for a minor use or minor species indication (21 U.S.C. 379j-21(d)).
For FYs 2019 through 2023, the FD&C Act establishes the base revenue amount for each fiscal year (21 U.S.C. 379j-21(b)(1)). Base revenue amounts are subject to adjustment for inflation and workload (21 U.S.C. 379j-21(c)(2) and (3)). Beginning with FY 2021, the annual fee revenue amounts are also subject to adjustment to reduce workload-based increases by the amount of certain excess collections (21 U.S.C. 379j-21(c)(3)(B)). Fees for applications, products, and sponsors are to be established each year by FDA so that the percentages of the total revenue that are derived from each type of user fee will be as follows: (1) 25 percent shall be derived from fees for abbreviated applications for a generic new animal drug; (2) 37.5 percent shall be derived from fees for generic new animal drug products; and (3) 37.5 percent shall be derived from fees for generic new animal drug sponsors (21 U.S.C. 379j-
For FY 2023, the generic new animal drug user fee rates are: $494,983 for each abbreviated application for a generic new animal drug other than those subject to the criteria in section 512(d)(4) of the FD&C Act (21 U.S.C. 360b(d)(4)); $247,492 for each abbreviated application for a generic new animal drug subject to the criteria in section 512(d)(4) of the FD&C Act; $18,881 for each generic new animal drug product; $283,870 for each generic new animal drug sponsor paying 100 percent of the sponsor fee; $212,903 for each generic new animal drug sponsor paying 75 percent of the sponsor fee; and $141,935 for each generic new animal drug sponsor paying 50 percent of the sponsor fee. FDA will issue invoices for FY 2023 product and sponsor fees by December 31, 2022, and payment will be due by January 31, 2023. The application fee rates are effective for all abbreviated applications for a generic new animal drug submitted on or after October 1, 2022, and will remain in effect through September 30, 2023. Applications will not be accepted for review until FDA has received full payment of application fees and any other fees owed under the AGDUFA program.
AGDUFA III, Title II of Public Law 115-234, specifies that the aggregate base fee revenue amount for FY 2023 for all generic new animal drug user fee categories is $18,336,340 (21 U.S.C. 379j-21(b)(1)).
AGDUFA III specifies that the annual fee revenue amount is to be adjusted for inflation increases for FY 2020 and subsequent fiscal years, using two separate adjustments—one for personnel compensation and benefits (PC&B) and one for non-PC&B costs (see 21 U.S.C. 379j-21(c)(2)). The component of the inflation adjustment for payroll costs shall be one plus the average annual percent change in the cost of all PC&B paid per full-time equivalent position (FTE) at FDA for the first 3 of the 4 preceding fiscal years of available data, multiplied by the average proportion of PC&B costs to total FDA costs for the first 3 of the 4 preceding fiscal years of available data. The data on total PC&B paid and numbers of FTE paid, from which the average cost per FTE can be derived, are published in FDA's Justification of Estimates for Appropriations Committees.
Table 1 summarizes the actual cost and FTE data for the specified fiscal years, provides the percent change from the previous fiscal year, and provides the average percent change over the first 3 of the 4 fiscal years preceding FY 2023. The 3-year average is 1.3918 percent.
The statute specifies that this 1.3918 percent should be multiplied by the proportion of PC&B costs to total FDA costs. Table 2 shows the amount of PC&B and the total amount obligated by FDA for the same 3 FYs.
The portion of the inflation adjustment relating to payroll costs is 1.3918 percent multiplied by 48.0397 percent, or 0.6686 percent.
The statute specifies that the portion of the inflation adjustment for non-payroll costs is the average annual percent change that occurred in the Consumer Price Index (CPI) for urban consumers (Washington-Baltimore, DC-MD-VA-WV; not seasonally adjusted; all items less food and energy; annual index) for the first 3 of the preceding 4 years of available data multiplied by the average proportion of all costs other than PC&B costs to total FDA costs for the first 3 of the 4 preceding fiscal years. As a result of a geographical revision made by the Bureau of Labor Statistics in January 2018,
To calculate the inflation adjustment for non-payroll costs, we multiply 1.7754 percent by the proportion of all costs other than PC&B to total FDA costs. Since 48.0397 percent was obligated for PC&B as shown in table 2, 51.9603 percent is the portion of costs other than PC&B (100 percent minus 48.0397 percent equals 51.9603 percent). The portion of the inflation adjustment relating to non-payroll costs is 1.7754 percent times 51.9603 percent, or 0.9225 percent.
Next, we add the payroll component (0.6686 percent) to the non-payroll component (0.9225 percent), for an inflation adjustment of 1.5911 percent for FY 2023.
AGDUFA III provides for the inflation adjustment to be compounded each fiscal year after FY 2020 (see 21 U.S.C. 379j-21(c)(2)). The inflation adjustment for FY 2023 (1.5911 percent) is compounded by adding 1 and then multiplying by 1 plus the inflation adjustment factor for FY 2022 (5.7121 percent), as published in the
The fee revenue amounts established in AGDUFA III for FY 2020 and subsequent fiscal years are also subject to adjustment to account for changes in FDA's review workload. A workload adjustment will be applied to the inflation adjusted fee revenue amount (21 U.S.C. 379j-21(c)(3)).
To determine whether a workload adjustment applies, FDA calculates the weighted average of the change in the total number of each of the four types of applications and submissions specified in the workload adjustment provision (abbreviated applications for generic new animal drugs, manufacturing supplemental abbreviated applications for generic new animal drugs, investigational generic new animal drug study submissions, and investigational generic new animal drug protocol submissions) received over the 5-year period that ended on September 30, 2018 (the base years), and the average number of each of these types of applications and submissions over the most recent 5-year period that ended May 31, 2022.
The results of these calculations are presented in the first two columns of table 4. Column 3 reflects the percent change in workload over the two 5-year periods. Column 4 shows the weighting factor for each type of application, reflecting how much of the total FDA generic new animal drug review workload was accounted for by each type of application or submission in the table during the most recent 5 years. Column 5 is the weighted percent change in each category of workload and was derived by multiplying the weighting factor in each line in column 4 by the percent change from the base years in column 3. At the bottom right of the table the sum of the values in column 5 is calculated, reflecting a total change in workload of 77.5221 percent for FY 2023. This is the workload adjuster for FY 2023.
The statutory revenue amount after the inflation adjustment ($19,692,147) must now be increased by 77.5221 percent to reflect the changes in review workload (workload adjustment), for a workload and inflation-adjusted amount of $34,957,913.
Under section 741(c)(3)(B) of the FD&C Act, for FYs 2021 through 2023, if application of the workload adjustment increases the amount of fee revenues established for the fiscal year, as adjusted for inflation, the fee revenue increase will be reduced by the amount of any excess collections for the second preceding fiscal year, up to the amount of the fee revenue increase for workload. The workload and inflation-adjusted amount ($34,957,913) is subtracted by the inflation adjusted amount ($19,692,147) to get the workload adjustment amount ($15,265,766). Then the excess fees collected from FY 2021 as of May 31, 2022 ($5,655,218) are subtracted from the workload adjustment amount ($15,265,766) to get a reduced workload adjustment amount of $9,610,548. Next, the reduced workload adjustment amount ($9,610,548) is added to the inflation-adjusted revenue amount ($19,692,147), for a total fee revenue target of $29,303,000 (rounded to the nearest thousand dollars).
For FY 2023, FDA may, in addition to other adjustments under section 741(c) of the FD&C Act, further increase the fees, if such an adjustment is necessary, to provide for up to 3 months of
AGDUFA III specifies that the revenue amount of $29,303,000 for FY 2023 is to be divided as follows: 25 percent, or a total of $7,325,750, is to come from application fees; 37.5 percent, or a total of $10,988,625, is to come from product fees; and 37.5 percent, or a total of $10,988,625, is to come from sponsor fees (21 U.S.C. 379j-21(b)).
Each person who submits an abbreviated application for a generic new animal drug shall be subject to an application fee, with limited exceptions (21 U.S.C. 379j-21(a)(1)). The term “abbreviated application for a generic new animal drug” means an abbreviated application for the approval of any generic new animal drug submitted under section 512(b)(2) of the FD&C Act (21 U.S.C. 379j-21(k)(1)). The application fees are to be set so that they will generate $7,325,750 in fee revenue for FY 2023.
To set fees for abbreviated applications for generic new animal drugs to realize $7,325,750, FDA must first make some assumptions about the number of fee-paying abbreviated applications it will receive during FY 2023.
The Agency knows the number of applications that have been submitted in previous years. That number fluctuates annually. In estimating the fee revenue to be generated by generic new animal drug applications in FY 2023, FDA is assuming that the number of applications for which fees will be paid in FY 2023 will equal the average number of applications over the 5 most recently completed fiscal years of the AGDUFA program (FY 2017-FY 2021).
Also, under AGDUFA III, an abbreviated application for an animal generic drug subject to the criteria in section 512(d)(4) of the FD&C Act and submitted on or after October 1, 2013, shall be subject to 50 percent of the fee applicable to all other abbreviated applications for a generic new animal drug (21 U.S.C. 379j-21(a)(1)(C)(ii)).
The average number of original submissions of abbreviated applications for generic new animal drugs over the 5 most recently completed fiscal years is 11.6 applications not subject to the criteria in section 512(d)(4) of the FD&C Act and 6.4 submissions subject to the criteria in section 512(d)(4). Each of the submissions described under section 512(d)(4) of the FD&C Act pays 50 percent of the fee paid by the other applications and will be counted as one half of a fee. Adding all of the applications not subject to the criteria in section 512(d)(4) of the FD&C Act and 50 percent of the number that are subject to such criteria results in a total of 14.80 anticipated full fees.
Based on the previous assumptions, FDA is estimating that it will receive a total of 14.80 fee-paying generic new animal drug applications in FY 2023 (11.6 original applications paying a full fee and 6.4 applications paying a half fee).
FDA must set the fee rates for FY 2023 so that the estimated 14.80 abbreviated applications that pay the fee will generate a total of $7,325,750. To generate this amount, the fee for a generic new animal drug application will have to be $494,983 and for those applications that are subject to the criteria set forth in section 512(d)(4) of the FD&C Act, 50 percent of that amount, or $247,492.
The generic new animal drug product fee must be paid annually by the person named as the applicant in an abbreviated application or supplemental abbreviated application for a generic new animal drug product submitted for listing under section 510 of the FD&C Act (21 U.S.C. 360) and who had an abbreviated application or supplemental abbreviated application for a generic new animal drug product pending at FDA after September 1, 2008 (see 21 U.S.C. 379j-21(a)(2)). The term “generic new animal drug product” means each specific strength or potency of a particular active ingredient or ingredients in final dosage form marketed by a particular manufacturer or distributor, which is uniquely identified by the labeler code and product code portions of the National Drug Code, and for which an abbreviated application for a generic new animal drug or supplemental abbreviated application for a generic new animal drug has been approved (21 U.S.C. 379j-21(k)(6)). The product fees are to be set so that they will generate $10,988,625 in fee revenue for FY 2023.
To set generic new animal drug product fees to realize $10,988,625, FDA must make some assumptions about the number of products for which these fees will be paid in FY 2023. FDA gathered data on all generic new animal drug products that have been submitted for listing under section 510 of the FD&C Act and matched this to the list of all persons who had a generic new animal drug application or supplemental abbreviated application pending after September 1, 2008. As of May 2022, FDA estimates that there is a total of 588 products submitted for listing by persons who had an abbreviated application for a generic new animal drug or supplemental abbreviated application for a generic new animal drug pending after September 1, 2008. Based on this, FDA believes that a total of 588 products will be subject to this fee in FY 2023.
In estimating the fee revenue to be generated by generic new animal drug product fees in FY 2023, FDA is estimating that 1 percent of the products invoiced, or 6 products, will qualify for a minor use/minor species fee waiver (see 21 U.S.C. 379j-21(d)). FDA has made this estimate at 1 percent this year, based on historical data over the past 5 completed fiscal years of the AGDUFA program.
Accordingly, the Agency estimates that a total of 582 (588 minus 6) products will be subject to product fees in FY 2023.
FDA must set the fee rates for FY 2023 so that the estimated 582 products for which fees are paid will generate a total of $10,988,625. To generate this amount will require the fee for a generic new animal drug product, rounded to the nearest dollar, to be $18,881.
The generic new animal drug sponsor fee must be paid annually by each person who: (1) is named as the applicant in an abbreviated application for a generic new animal drug, except for an approved application for which all subject products have been removed from listing under section 510 of the FD&C Act, or has submitted an
To set generic new animal drug sponsor fees to realize $10,988,625, FDA must make some assumptions about the number of sponsors who will pay these fees in FY 2023. FDA estimates that in FY 2023, 12 sponsors will pay 100 percent fees, 18 sponsors will pay 75 percent fees, and 28 sponsors will pay 50 percent fees. That results in the equivalent of 39.5 full sponsor fees (12 times 100 percent or 12, plus 18 times 75 percent or 13.5, plus 28 times 50 percent or 14).
FDA estimates that about 2 percent of all of these sponsors, or 0.79, may qualify for a minor use/minor species fee waiver (see 21 U.S.C. 379j-21(d)). FDA has made the estimate of the percentage of sponsors that will not pay fees at 2 percent this year, based on historical data over the past 5 completed FYs of the AGDUFA program.
Accordingly, the Agency estimates that the equivalent of 38.71 full sponsor fees (39.5 minus 0.79) are likely to be paid in FY 2023.
FDA must set the fee rates for FY 2023 so that the estimated equivalent of 38.71 full sponsor fees will generate a total of $10,988,625. To generate this amount will require the 100 percent fee for a generic new animal drug sponsor, rounded to the nearest dollar, to be $283,870. Accordingly, the fee for those paying 75 percent of the full sponsor fee will be $212,903, and the fee for those paying 50 percent of the full sponsor fee will be $141,935.
The fee rates for FY 2023 are summarized in table 5.
The types of fee waivers and reductions that applied last fiscal year still exist for FY 2023. In AGDUFA III, a new exemption from fees was established as follows: Fees will not apply to any person who not later than September 30, 2023, submits to CVM a supplemental abbreviated application relating to a generic new animal drug approved under section 512 of the FD&C Act, solely to add the application number to the labeling of the drug in the manner specified in section 502(w)(3) of the FD&C Act (21 U.S.C. 352(w)(3)), if that person otherwise would be subject to user fees under AGDUFA based only on the submission of the supplemental abbreviated application (21 U.S.C. 379j-21(d)(2)).
The FY 2023 fee established in the new fee schedule must be paid for a generic new animal drug application subject to fees under AGDUFA III that is submitted on or after October 1, 2022. The payment must be made in U.S. currency from a U.S. bank by one of the following methods: wire transfer, electronically, check, bank draft, or U.S. postal money order made payable to the Food and Drug Administration. The preferred payment method is online using electronic check (Automated Clearing House (ACH), also known as eCheck) or credit card (Discover, VISA, MasterCard, American Express). Secure electronic payments can be submitted using the User Fees Payment Portal at
When paying by check, bank draft, or U.S. postal money order, please write your application's unique Payment Identification Number (PIN), beginning with the letters “AG”, on the upper right-hand corner of your completed Animal Generic Drug User Fee Cover Sheet. Also write FDA's post office box number (P.O. Box 979033) and PIN on the enclosed check, bank draft, or money order. Mail the payment and a copy of the completed Animal Generic Drug User Fee Cover Sheet to: Food and Drug Administration, P.O. Box 979033, St. Louis, MO 63197-9000. Note: In no case should the payment for the fee be submitted to FDA with the application.
When paying by wire transfer, the invoice number or PIN needs to be included. Without the invoice number or PIN, the payment may not be applied, and the invoice amount would be referred to collections. The originating financial institution may charge a wire transfer fee. If the financial institution charges a wire transfer fee, it is required to add that amount to the payment to ensure that the invoice is paid in full. Use the following account information when sending a payment by wire
To send a check by a courier such as FedEx, the courier must deliver the check and printed copy of the cover sheet to: U.S. Bank, Attn: Government Lockbox 979033, 1005 Convention Plaza, St. Louis, MO 63101. (Note: This address is for courier delivery only. If you have any questions concerning courier delivery, contact U.S. Bank at 314-418-4013. This telephone number is only for questions about courier delivery.)
It is important that the fee arrives at the bank at least a day or two before the abbreviated application arrives at FDA's CVM. FDA records the official abbreviated application receipt date as the later of the following: the date the application was received by CVM, or the date U.S. Bank notifies FDA that your payment in the full amount has been received, or when the U.S. Department of the Treasury notifies FDA of payment. U.S. Bank and the U.S. Department of the Treasury are required to notify FDA within 1 working day, using the PIN described previously.
The tax identification number of FDA is 53-0196965.
By December 31, 2022, FDA will issue invoices and payment instructions for product and sponsor fees for FY 2023 using this fee schedule. Payment will be due by January 31, 2023. FDA will issue invoices in November 2023 for any products and sponsors subject to fees for FY 2023 that qualify for fees after the December 2022 billing.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the fiscal year (FY) 2023 annual fee rate for importers approved to participate in the Voluntary Qualified Importer Program that is authorized by the Federal Food, Drug, and Cosmetic Act (FD&C Act), as amended by the FDA Food Safety Modernization Act (FSMA).
This fee is effective on August 1, 2022, and will remain in effect through September 30, 2023.
Donald Prater, Office of Food Policy and Response, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 3202, Silver Spring, MD 20993, 301-348-3007.
Section 302 of FSMA (Pub L. 111-353), Voluntary Qualified Importer Program (VQIP), amended the FD&C Act to create a new provision, section 806, under the same name. Section 806 of the FD&C Act (21 U.S.C. 384b) directs FDA to establish a program to provide for the expedited review and importation of food offered for importation by importers who have voluntarily agreed to participate in such program, and a process, consistent with section 808 of the FD&C Act (21 U.S.C. 384d), for the issuance of a facility certification to accompany a food offered for importation by importers participating in the VQIP.
Section 743 of the FD&C Act (21 U.S.C. 379j-31) authorizes FDA to assess and collect fees from each importer participating in VQIP to cover FDA's costs of administering the program. Each fiscal year, fees are to be established based on an estimate of 100 percent of the costs for the year. The fee rates must be published in a
The FY 2023 VQIP user fee will support benefits from October 1, 2022, through September 30, 2023.
FDA is required to estimate 100 percent of its costs for each activity in order to establish fee rates for FY 2023. In each year, the costs of salary (or personnel compensation) and benefits for FDA employees account for between 50 and 60 percent of the funds available to, and used by, FDA. Almost all of the remaining funds (operating funds) available to FDA are used to support FDA employees for paying rent, travel, utility, information technology (IT), and other operating costs.
Full-time Equivalent (FTE) reflects the total number of regular straight-time hours (not including overtime or holiday hours) worked by employees, divided by the number of compensable hours applicable to each fiscal year. Annual leave, sick leave, compensatory time off, and other approved leave categories are considered “hours worked” for purposes of defining FTE employment.
In general, the starting point for estimating the full cost per direct work hour is to estimate the cost of an FTE or paid staff year. Calculating an Agency-wide total cost per FTE requires three primary cost elements: payroll, non-payroll, and rent.
We have used an average of past year cost elements to predict the FY 2023 cost. The FY 2023 FDA-wide average
Summing the average cost of an FTE for payroll, non-payroll, and rent, brings the FY 2023 average fully supported cost to $300,416
To calculate an hourly rate, FDA must divide the FY 2023 average fully supported cost of $300,416 per FTE by the average number of supported direct FDA work hours in FY 2021 (the last FY for which data are available). See table 1.
Dividing the average fully supported FTE cost in FY 2023 ($300,416) by the total number of supported direct work hours available for assignment in FY 2021 (1,160) results in an average fully supported cost of $259 (rounded to the nearest dollar), excluding inspection travel costs, per supported direct work hour in FY 2023.
To adjust the hourly rate for FY 2023, FDA must estimate the cost of inflation in each year for FY 2022 and FY 2023. FDA uses the method prescribed for estimating inflationary costs under the Prescription Drug User Fee Act (PDUFA) provisions of the FD&C Act (section 736(c)(1) (21 U.S.C. 379h(c)(1)), the statutory method for inflation adjustment in the FD&C Act that FDA has used consistently. FDA previously determined the FY 2022 inflation rate to be 2.2013 percent; this rate was published in the FY 2022 PDUFA user fee rates notice in the
The average fully supported cost per supported direct FDA work hour, excluding travel costs, of $259 already takes into account inflation as the calculation above is based on FY 2023 predicted costs. FDA will use this base unit fee in determining the hourly fee rate for VQIP fees for FY 2023 prior to including domestic or foreign travel costs as applicable for the activity. In FY 2021, FDA's Office of Regulatory Affairs (ORA) spent a total of $4,920,033 for domestic regulatory inspection travel costs and General Services Administration Vehicle costs related to FDA's Center for Food Safety and Applied Nutrition (CFSAN) and Center for Veterinary Medicine (CVM) field activities programs. The total ORA domestic travel costs spent is then divided by the 4,965 CFSAN and CVM domestic inspections, which averages a total of $991 per inspection. These inspections average 46.43 hours per inspection. Dividing $991 per inspection by 46.43 hours per inspection results in a total and an additional cost of $21 (rounded to the nearest dollar) per hour spent for domestic inspection travel costs in FY 2021. To adjust for the $21 per hour additional domestic cost inflation increases for FY 2022 and FY 2023, FDA must multiply the FY 2022 PDUFA inflation rate adjustor (1.022013) by the FY 2023 PDUFA inflation rate adjustor (1.038778) times the $21 additional domestic cost, which results in an estimated cost of $22 (rounded to the nearest dollar) per paid hour in addition to $259 for a total of $281 per paid hour ($259 plus $22) for each direct hour of work requiring domestic inspection travel. FDA will use these rates in charging fees in FY 2023 when domestic travel is required.
In FY 2020,
FDA assesses fees for VQIP annually. Table 3 provides an overview of the fees for FY 2023.
Section 743 of the FD&C Act requires that each importer participating in VQIP pay a fee to cover FDA's costs of administering the program. This fee represents the estimated average cost of the work FDA performs in reviewing and evaluating a VQIP importer. At this time, FDA is not offering an adjusted fee for small businesses. As required by section 743(b)(2)(B)(iii) of the FD&C Act, FDA previously published a set of guidelines in consideration of the burden of the VQIP fee on small businesses and provided for a period of public comment on the guidelines (80 FR 32136, June 5, 2015). While we did receive some comments in response, they did not address the questions posed,
The fee is based on the fully supported FTE hourly rates and estimates of the number of hours it would take FDA to perform relevant activities. These estimates represent FDA's current thinking, and as the program evolves, FDA will reconsider the estimated hours. We estimate that it would take, on average, 39 person-hours to review a new VQIP application (including communication provided through the VQIP Importer's Help Desk), 28 person-hours to review a returning VQIP application (including communication provided through the VQIP Importer's Help Desk), 16 person-hours for an onsite performance evaluation of a domestic VQIP importer (including travel and other steps necessary for a fully supported FTE to complete and document an onsite assessment), and 34 person-hours for an onsite performance evaluation of a foreign VQIP importer (including travel and other steps necessary for a fully supported FTE to complete and document an onsite assessment). Additional costs include maintenance and support costs of IT of administering benefits of the program. These costs are estimated to be $2,600 per VQIP importer.
Based on updated data, FDA anticipates that there may be up to four returning VQIP applicants and up to two new applicants this fiscal year. FDA employees are likely to review new VQIP applications from their worksites, so we use the fully supported FTE hourly rate excluding travel, $259 per hour, to calculate the portion of the user fee attributable to those activities: $259/hour multiplied by 39 hours equaling $10,101. FDA employees are likely to review returning VQIP applications from their worksites, so we use the fully supported FTE hourly rate excluding travel, $259 per hour, to calculate the portion of the user fee attributable to those activities: $259/hour multiplied by 28 hours equaling $7,252.
FDA employees will conduct a VQIP inspection to verify the eligibility criteria and full implementation of the food safety and food defense systems established in the Quality Assurance Program. A VQIP importer may be located inside or outside of the United States. However, this fiscal year, all VQIP importers will be located inside the United States. Three VQIP applicants may have an associated VQIP inspection.
FDA employees are likely to prepare for and report on the performance evaluation of a domestic VQIP importer at an FTE's worksite, so we use the fully supported FTE hourly rate excluding travel, $259 per hour, to calculate the portion of the user fee attributable to those activities: $259 per hour multiplied by 8 hours equaling $2,072. For the portion of the fee covering onsite evaluation of a domestic VQIP importer, we use the fully supported FTE hourly rate for work requiring domestic travel, $281 per hour, to calculate the portion of the user fee attributable to those activities: $281 per hour multiplied by 8 hours (
Coordination of the onsite performance evaluation of a foreign VQIP importer is estimated to take place at an FTE's worksite, so we use the fully supported FTE hourly rate excluding travel, $259 per hour, to calculate the portion of the user fee attributable to those activities: $259 per hour multiplied by 10 hours equaling $2,590. For the portion of the fee covering onsite evaluation of a foreign VQIP importer, we use the fully supported FTE hourly rate for work requiring foreign travel, $334 per hour, to calculate the portion of the user fee attributable to those activities: $334 per hour multiplied by 24 hours (
Therefore, the estimated average cost of the work FDA performs in total for approving an application for a VQIP importer in FY 2023 based on these figures would be $2,600 plus ($10,101 multiplied by one-third) plus ($7,252 multiplied by two-thirds) plus ($4,320 multiplied by one-half) equaling $12,962.
An invoice will be sent to VQIP importers approved to participate in the program. Payment must be made prior to October 1, 2022, to be eligible for VQIP participation for the benefit year beginning October 1, 2022. FDA will not refund the VQIP user fee for any reason.
The payment must be made in U.S. currency from a U.S. bank by one of the following methods: wire transfer, electronically, check, bank draft, or U.S. postal money order made payable to the Food and Drug Administration. The preferred payment method is online using an electronic check (Automated Clearing House (ACH), also known as eCheck) or credit card (Discover, VISA, MasterCard, American Express). Secure electronic payments can be submitted using the User Fees Payment Portal at
When paying by wire transfer, it is required that the invoice number is included; without the invoice number the payment may not be applied. The originating financial institution may charge a wire transfer fee. If the financial institution charges a wire transfer fee, it is required to add that amount to the payment to ensure that the invoice is paid in full. For international wire transfers, please inquire with the financial institutions prior to submitting the payment. Use the following account information when sending a wire transfer: U.S. Department of the Treasury, TREAS NYC, 33 Liberty St., New York, NY 10045, Account Name: Food and Drug Administration, Account No.: 75060099, Routing No.: 021030004, Swift No.: FRNYUS33.
To send a check by a courier such as Federal Express, the courier must deliver the check to: U.S. Bank, Attn: Government Lockbox 979108, 1005 Convention Plaza, St. Louis, MO 63101. (Note: This address is for courier delivery only. If you have any questions concerning courier delivery, contact U.S. Bank at 314-418-4013. This phone number is only for questions about courier delivery.) The tax identification number of FDA is 53-0196965. (Note: Invoice copies do not need to be submitted to FDA with the payments.)
The consequences of not paying these fees are outlined in Section J of “FDA's Voluntary Qualified Importer Program; Guidance for Industry” document (available at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing the fiscal year (FY) 2023 fee rates for certain domestic and foreign facility reinspections, failures to comply with a recall order, and importer reinspections that are authorized by the Federal Food, Drug, and Cosmetic Act (FD&C Act), as amended by the FDA Food Safety Modernization Act (FSMA).
These fees are effective on October 1, 2022, and will remain in effect through September 30, 2023.
Jimmy Carlton, Office of Management, Office of Regulatory Affairs, Food and Drug Administration, 12420 Parklawn Dr., Rockville, MD 20857, 240-888-1556,
Section 107 of the FSMA (Pub. L. 111-353) added section 743 to the FD&C Act (21 U.S.C. 379j-31) to provide FDA with the authority to assess and collect fees from, in part: (1) the responsible party for each domestic facility and the U.S. agent for each foreign facility subject to a reinspection to cover reinspection-related costs; (2) the responsible party for a domestic facility and an importer who does not comply with a recall order to cover food
In addition, as stated in the September 2011 Guidance, FDA is in the process of considering various issues associated with the assessment and collection of importer reinspection fees. The fee rates set forth in this notice will be used to determine any importer reinspection fees assessed in FY 2023.
FDA is required to estimate 100 percent of its costs for each activity in order to establish fee rates for FY 2023. In each year, the costs of salary (or
Full-time Equivalent (FTE) reflects the total number of regular straight-time hours—not including overtime or holiday hours—worked by employees, divided by the number of compensable hours applicable to each fiscal year. Annual leave, sick leave, compensatory time off, and other approved leave categories are considered “hours worked” for purposes of defining FTE employment.
In general, the starting point for estimating the full cost per direct work hour is to estimate the cost of an FTE or paid staff year. Calculating an Agency-wide total cost per FTE requires three primary cost elements: payroll, nonpayroll, and rent.
We have used an average of past year cost elements to predict the FY 2023 cost. The FY 2023 FDA-wide average cost for payroll (salaries and benefits) is $173,393; nonpayroll (including equipment, supplies, IT, and general and administrative overhead) is $103,078; and rent, including cost allocation analysis and adjustments for other rent and rent-related costs, is $23,944 per paid staff year, excluding travel costs.
Summing the average cost of an FTE for payroll, nonpayroll, and rent, brings the FY 2023 average fully supported cost to $300,416
To calculate an hourly rate, FDA must divide the FY 2023 average fully supported cost of $300,416 per FTE by the average number of supported direct FDA work hours in FY 2021 (the last fiscal year for which data are available). See table 1.
Dividing the average fully supported FTE cost in FY 2023 ($300,416) by the total number of supported direct work hours available for assignment in FY 2023 (1,160) results in an average fully supported cost of $259 (rounded to the nearest dollar), excluding inspection travel costs, per supported direct work hour in FY 2023.
To adjust the hourly rate for FY 2023, FDA must estimate the cost of inflation in each year for FY 2022 and FY 2023. FDA uses the method prescribed for estimating inflationary costs under the Prescription Drug User Fee Act (PDUFA) provisions of the FD&C Act (section 736(c)(1) (21 U.S.C. 379h(c)(1)), the statutory method for inflation adjustment in the FD&C Act that FDA has used consistently. FDA previously determined the FY 2022 inflation rate to be 2.2013 percent; this rate was published in the FY 2022 PDUFA user fee rates notice in the
The average fully supported cost per supported direct FDA work hour, excluding travel costs, of $259 already takes into account inflation as the calculation above is based on FY 2023 predicted costs. FDA will use this base unit fee in determining the hourly fee rate for reinspection and recall order fees for FY 2023 prior to including domestic or foreign travel costs as applicable for the activity. In FY 2021, FDA's Office of Regulatory Affairs (ORA) spent a total of $4,920,033 for domestic regulatory inspection travel costs and General Services Administration Vehicle costs related to FDA's Center for Food Safety and Applied Nutrition (CFSAN) and Center for Veterinary Medicine (CVM) field activities programs. The total ORA domestic travel costs spent is then divided by the 4,965 CFSAN and CVM domestic inspections, which averages a total of $991 per inspection. These inspections average 46.43 hours per inspection. Dividing $991 per inspection by 46.43 hours per inspection results in a total and an additional cost of $21 (rounded to the nearest dollar) per hour spent for domestic inspection travel costs in FY 2021. To adjust for the $21 per hour additional domestic cost inflation increases for FY 2022 and FY 2023, FDA must multiply the FY 2022 PDUFA inflation rate adjustor (1.022013) times the FY 2023 PDUFA inflation rate adjustor (1.016404) times the $21 additional domestic cost, which results in an estimated cost of $22 (rounded to the nearest dollar) per paid hour in addition to $259 for a total of $281 per paid hour ($259 plus $22) for each direct hour of work requiring domestic inspection travel. FDA will use these rates in charging fees in FY 2023 when domestic travel is required.
In FY 2020,
The fee will be assessed for a reinspection conducted under section 704 of the FD&C Act (21 U.S.C. 374) to determine whether corrective actions have been implemented and are effective and compliance has been achieved to the Secretary of Health and Human Services' (the Secretary) (and, by delegation, FDA's) satisfaction at a facility that manufactures, processes, packs, or holds food for consumption necessitated as a result of a previous inspection (also conducted under section 704) of this facility, which had a final classification of Official Action Indicated (OAI) conducted by or on behalf of FDA, when FDA determined the noncompliance was materially related to food safety requirements of the FD&C Act. FDA considers such noncompliance to include noncompliance with a statutory or regulatory requirement under section 402 of the FD&C Act (21 U.S.C. 342) and section 403(w) of the FD&C Act (21 U.S.C. 343(w)). However, FDA does not consider noncompliance that is materially related to a food safety requirement to include circumstances where the noncompliance is of a technical nature and not food safety related (
Under section 743(a)(1)(A) of the FD&C Act, FDA is directed to assess and collect fees from “the responsible party for each domestic facility (as defined in section 415(b) (21 U.S.C. 350d(b))) and the U.S. agent for each foreign facility subject to a reinspection” to cover reinspection-related costs.
Section 743(a)(2)(A)(i) of the FD&C Act defines the term “reinspection” with respect to domestic facilities as “1 or more inspections conducted under section 704 subsequent to an inspection conducted under such provision which identified noncompliance materially related to a food safety requirement of th[e] Act, specifically to determine whether compliance has been achieved to the Secretary's satisfaction.”
The FD&C Act does not contain a definition of “reinspection” specific to foreign facilities. In order to give meaning to the language in section 743(a)(1)(A) of the FD&C Act to collect fees from the U.S. agent of a foreign facility subject to a reinspection, the Agency is using the following definition of “reinspection” for purposes of assessing and collecting fees under section 743(a)(1)(A), with respect to a foreign facility: “1 or more inspections conducted by officers or employees duly designated by the Secretary subsequent to such an inspection which identified noncompliance materially related to a food safety requirement of the FD&C Act, specifically to determine whether compliance has been achieved to the Secretary's (and, by delegation, FDA's) satisfaction.”
This definition allows FDA to fulfill the mandate to assess and collect fees from the U.S. agent of a foreign facility in the event that an inspection reveals noncompliance materially related to a food safety requirement of the FD&C Act, causing one or more subsequent inspections to determine whether compliance has been achieved to the Secretary's (and, by delegation, FDA's) satisfaction. By requiring the initial inspection to be conducted by officers or employees duly designated by the Secretary, the definition ensures that a foreign facility would be subject to fees only in the event that FDA, or an entity designated to act on its behalf, has made the requisite identification at an initial inspection of noncompliance materially related to a food safety requirement of the FD&C Act. The definition of “reinspection-related costs” in section 743(a)(2)(B) of the FD&C Act relates to both a domestic facility reinspection and a foreign facility reinspection, as described in section 743(a)(1)(A).
The FD&C Act states that this fee is to be paid by the responsible party for each domestic facility (as defined in section 415(b) of the FD&C Act) and by the U.S. agent for each foreign facility (section 743(a)(1)(A) of the FD&C Act). This is the party to whom FDA will send the invoice for any fees that are assessed under this section.
The fee is based on the number of direct hours spent on such reinspections, including time spent conducting the physical surveillance and/or compliance reinspection at the facility, or whatever components of such an inspection are deemed necessary, making preparations and arrangements for the reinspection, traveling to and from the facility, preparing any reports, analyzing any samples or examining any labels if required, and performing other activities as part of the OAI reinspection until the facility is again determined to be in compliance. The direct hours spent on each such reinspection will be billed at the appropriate hourly rate shown in table 2 of this document.
The fee will be assessed for not complying with a recall order under section 423(d) (21 U.S.C. 350l(d)) or section 412(f) of the FD&C Act (21 U.S.C. 350a(f)) to cover food recall activities associated with such order performed by the Secretary (and by delegation, FDA) (section 743(a)(1)(B) of the FD&C Act). Noncompliance may include the following: (1) not initiating a recall as ordered by FDA; (2) not conducting the recall in the manner specified by FDA in the recall order; or (3) not providing FDA with requested information regarding the recall, as ordered by FDA.
Section 743(a)(1)(B) of the FD&C Act states that the fee is to be paid by the responsible party for a domestic facility (as defined in section 415(b) of the FD&C Act) and an importer who does not comply with a recall order under section 423 or under section 412(f) of the FD&C Act. In other words, the party paying the fee would be the party that received the recall order.
The fee is based on the number of direct hours spent on taking action in response to the firm's failure to comply with a recall order. Types of activities could include conducting recall audit checks, reviewing periodic status reports, analyzing the status reports and the results of the audit checks, conducting inspections, traveling to and
An invoice will be sent to the responsible party for paying the fee after FDA completes the work on which the invoice is based. Payment must be made within 30 days of the invoice date in U.S. currency by check, bank draft, or U.S. postal money order payable to the order of the Food and Drug Administration. Detailed payment information will be included with the invoice when it is issued.
Under section 743(e)(2) of the FD&C Act, any fee that is not paid within 30 days after it is due shall be treated as a claim of the U.S. Government subject to provisions of subchapter II of chapter 37 of title 31, United States Code.
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 “Laser-Assisted In Situ Keratomileusis (LASIK) Lasers—Patient Labeling Recommendations.” This draft guidance recommends content and formatting for patient labeling information for LASIK devices. FDA is issuing this guidance to help ensure that physicians can share and patients can understand information on the benefits and risks of these devices. The recommendations are being made based on concerns that some patients are not receiving and/or understanding information regarding the benefits and risks of LASIK devices. This draft guidance is not final nor is it for implementation at this time.
Submit either electronic or written comments on the draft guidance by October 26, 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:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
An electronic copy of the guidance document is available for download from the internet. See the
Bradley Cunningham, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1414, Silver Spring, MD 20993-0002, 301-796-6484.
LASIK is currently one of the most commonly performed elective procedures in the world, as well as the most popular form of refractive surgery that patients choose to correct common vision problems such as nearsightedness, farsightedness, and astigmatism.
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 “Laser-Assisted In Situ Keratomileusis (LASIK) Lasers—Patient Labeling Recommendations.” 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 Center for Devices and Radiological Health guidance documents is available at
While this guidance contains no new collection of information, it does refer to previously approved FDA collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521) is not required for this guidance. The previously approved collections of information are subject to review by OMB under the PRA. The collections of information in the following FDA regulations have been approved by OMB as listed in the following table:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the fiscal year (FY) 2023 rates for the establishment and reinspection fees related to entities that compound human drugs and elect to register as outsourcing facilities under the Federal Food, Drug, and Cosmetic Act (FD&C Act). The FD&C Act authorizes FDA to assess and collect an annual establishment fee from outsourcing facilities, as well as a reinspection fee for each reinspection of an outsourcing facility. This document establishes the FY 2023 rates for the small business establishment fee ($5,941), the non-small business establishment fee ($18,661), and the reinspection fee ($17,823) for outsourcing facilities; provides information on how the fees for FY 2023 were determined; and describes the payment procedures outsourcing facilities should follow.
These fee rates are effective October 1, 2022, and will remain in effect through September 30, 2023.
Office of Financial Management, Food and Drug Administration, 4041 Powder Mill Rd., Rm. 61075, Beltsville, MD.
For more information on human drug compounding and outsourcing facility fees, visit FDA's website at:
For questions relating to this notice, contact: Robert Marcarelli, User Fees Support Team at DUF-Budget, Food and Drug Administration,
Under section 503B of the FD&C Act (21 U.S.C. 353b), a human drug
Section 744K of the FD&C Act (21 U.S.C. 379j-62) authorizes FDA to assess and collect the following fees associated with outsourcing facilities: (1) an annual establishment fee from each outsourcing facility and (2) a reinspection fee from each outsourcing facility subject to a reinspection (see section 744K(a)(1) of the FD&C Act). Under statutorily defined conditions, a qualified applicant may pay a reduced small business establishment fee (see section 744K(c)(4) of the FD&C Act).
FDA announced in the
Section 744K(c)(2) of the FD&C Act specifies the annual inflation adjustment for outsourcing facility fees. The inflation adjustment has two components: one based on FDA's payroll costs and one based on FDA's non-payroll costs for the first 3 of the 4 previous fiscal years. The payroll component of the annual inflation adjustment is calculated by taking the average change in FDA's per-full time equivalent (FTE) personnel compensation and benefits (PC&B) in the first 3 of the 4 previous fiscal years (see section 744K(c)(2)(A)(ii) of the FD&C Act). FDA's total annual spending on PC&B is divided by the total number of FTEs per fiscal year to determine the average PC&B per FTE.
Table 1 summarizes the actual cost and FTE data for the specified fiscal years and provides the percent change from the previous fiscal year and the average percent change over the first 3 of the 4 fiscal years preceding FY 2023. The 3-year average is 1.3918 percent.
Section 744K(c)(2)(A)(ii) of the FD&C Act specifies that this 1.3918 percent should be multiplied by the proportion of PC&B to total costs of an average FDA FTE for the same 3 fiscal years.
The payroll adjustment is 1.3918 percent multiplied by 47.8870 percent, or 0.6665 percent.
Section 744K(c)(2)(A)(iii) of the FD&C Act specifies that the portion of the inflation adjustment for non-payroll costs for FY 2023 is equal to the average annual percent change in the Consumer Price Index (CPI) for urban consumers (U.S. City Average; Not Seasonally Adjusted; All items; Annual Index) for the first 3 years of the preceding 4 years of available data, multiplied by the proportion of all non-PC&B costs to total costs of an average FDA FTE for the same period.
Table 2 provides the summary data for the percent change in the specified CPI for U.S. cities. These data are published by the Bureau of Labor Statistics and can be found on its website:
Section 744K(c)(2)(A)(iii) of the FD&C Act specifies that this 2.5812 percent should be multiplied by the proportion of all non-PC&B costs to total costs of an average FTE for the same 3 fiscal years. The proportion of all non-PC&B costs to total costs of an average FDA FTE for FYs 2019 to 2021 is 52.1130 percent (100 percent minus 47.8870 percent equals 52.1130 percent). Therefore, the non-pay adjustment is 2.5812 percent times 52.1130 percent, or 1.3451 percent.
The PC&B component (0.6665 percent) is added to the non-PC&B component (1.3451 percent), for a total inflation adjustment of 2.0116 percent (rounded). Section 744K(c)(2)(A)(i) of the FD&C Act specifies that one is added to that figure, making the inflation adjustment 1.020116.
Section 744K(c)(2)(B) of the FD&C Act provides for this inflation adjustment to be compounded after FY 2015. This factor for FY 2023 (2.0116 percent) is compounded by adding one to it, and then multiplying it by one plus the inflation adjustment factor for FY 2022 (16.4796 percent), as published in the
Section 744K(c)(3) of the FD&C Act specifies that in addition to the inflation adjustment factor, the establishment fee for non-small businesses is to be further adjusted for a small business adjustment factor. Section 744K(c)(3)(B) of the FD&C Act provides that the small business adjustment factor is the adjustment to the establishment fee for non-small businesses that is necessary to achieve total fees equaling the amount that FDA would have collected if no entity qualified for the small business exception in section 744K(c)(4) of the FD&C Act. Additionally, section 744K(c)(5)(A) states that in establishing the small business adjustment factor for a fiscal year, FDA shall provide for the crediting of fees from the previous year to the next year if FDA overestimated the amount of the small business adjustment factor for such previous fiscal year.
Therefore, to calculate the small business adjustment to the establishment fee for non-small businesses for FY 2023, FDA must estimate: (1) the number of outsourcing facilities that will pay the reduced fee for small businesses for FY 2023 and (2) the total fee revenue it would have collected if no entity had qualified for the small business exception (
With respect to (1), FDA estimates that 10 entities will qualify for small business exceptions and will pay the reduced fee for FY 2023. With respect to (2), to estimate the total number of entities that will register as outsourcing facilities for FY 2023, FDA used data submitted by outsourcing facilities through the voluntary registration process, which began in December 2013. Accordingly, FDA estimates that 78 outsourcing facilities, including 10 small businesses, will be registered with FDA in FY 2023.
If the projected 78 outsourcing facilities paid the full inflation-adjusted fee of $17,823, this would result in total revenue of $1,390,194 in FY 2023 ($17,823 × 78). However, 10 of the entities that are expected to register as outsourcing facilities for FY 2023 are projected to qualify for the small business exception and to pay one-third of the full fee ($5,941 × 10), totaling $59,410 instead of paying the full fee ($17,823 × 10), which would total $178,230. This would leave a potential shortfall of $118,820 ($178,230 minus $59,410).
Additionally, section 744K(c)(5)(A) of the FD&C Act states that in establishing the small business adjustment factor for a fiscal year, FDA shall provide for the crediting of fees from the previous year to the next year if FDA overestimated the amount of the small business adjustment factor for such previous fiscal year. FDA has determined that it is appropriate to credit excess fees collected from the last completed fiscal year, due to the inability to conclusively determine the amount of excess fees from the fiscal year that is in progress at the time this calculation is made. This crediting is done by comparing the small business adjustment factor for the last completed fiscal year, FY 2021 ($2,441), to what would have been the small business adjustment factor for FY 2021 ($1,582) if FDA had estimated perfectly.
The calculation for what the small business adjustment would have been if FDA had estimated perfectly begins by determining the total target collections (15,000 × (inflation adjustment factor) × (number of registrants). For the most recent complete fiscal year, FY 2021, this was $1,400,970 ($17,085 × 82). The actual FY 2021 revenue from the 82 total registrants (
The difference between the small business adjustment factor used in FY 2021 and the small business adjustment factor that would have been used had FDA estimated perfectly is $859 ($2,441 minus $1,582). The $859 (rounded to the nearest dollar) is then multiplied by the number of actual registrants who paid the standard fee for FY 2021 (72), which provides us a total excess collection of $61,831 in FY 2021.
Therefore, to calculate the small business adjustment factor for FY 2023, FDA subtracts $61,831from the projected shortfall of $118,820 for FY 2023 to arrive at the numerator for the small business adjustment amount, which equals $56,989. This number divided by 68 (the number of expected non-small businesses for FY 2023) is the
The amount of the establishment fee for a qualified small business is equal to $15,000 multiplied by the inflation adjustment factor for that fiscal year, divided by 3 (see section 744K(c)(4)(A) and (c)(1)(A) of the FD&C Act). The inflation adjustment factor for FY 2023 is 1.188227. See section II.A.1 of this document for the methodology used to calculate the FY 2023 inflation adjustment factor. Therefore, the establishment fee for a qualified small business for FY 2023 is one third of $17,823, which equals $5,941 (rounded to the nearest dollar).
Under section 744K(c) of the FD&C Act, the amount of the establishment fee for a non-small business is equal to $15,000 multiplied by the inflation adjustment factor for that fiscal year, plus the small business adjustment factor for that fiscal year, and plus or minus an adjustment factor to account for over or under collections due to the small business adjustment factor in the prior year. The inflation adjustment factor for FY 2023 is 1.188227. The small business adjustment amount for FY 2023 is $838. See section II.A.2 of this document for the methodology used to calculate the small business adjustment factor for FY 2023. Therefore, the establishment fee for a non-small business for FY 2023 is $15,000 multiplied by 1.188227plus $838, which equals $18,661 (rounded to the nearest dollar).
Section 744K(c)(1)(B) of the FD&C Act provides that the amount of the FY 2023 reinspection fee is equal to $15,000, multiplied by the inflation adjustment factor for that fiscal year. The inflation adjustment factor for FY 2023 is 1.188227. Therefore, the reinspection fee for FY 2023 is $15,000 multiplied by 1.188227, which equals $17,823 (rounded to the nearest dollar). There is no reduction in this fee for small businesses.
Once an entity submits registration information and FDA has determined that the information is complete, the entity will incur the annual establishment fee. FDA will send an invoice to the entity, via email to the email address indicated in the registration file. The invoice will contain information regarding the obligation incurred, the amount owed, and payment procedures. A facility will not be registered as an outsourcing facility until it has paid the annual establishment fee under section 744K of the FD&C Act. Accordingly, it is important that facilities seeking to operate as outsourcing facilities pay all fees immediately upon receiving an invoice. If an entity does not pay the full invoiced amount within 15 calendar days after FDA issues the invoice, FDA will consider the submission of registration information to have been withdrawn and adjust the invoice to reflect that no fee is due.
Outsourcing facilities that registered in FY 2022 and wish to maintain their status as an outsourcing facility in FY 2023 must register during the annual registration period that lasts from October 1, 2022, to December 31, 2022. Failure to register and complete payment by December 31, 2022, will result in a loss of status as an outsourcing facility on January 1, 2023. Entities should submit their registration information no later than December 10, 2022, to allow enough time for review of the registration information, invoicing, and payment of fees before the end of the registration period.
FDA will issue invoices for each reinspection after the conclusion of the reinspection, via email to the email address indicated in the registration file or via regular mail if email is not an option. Invoices must be paid within 30 days.
1. The preferred payment method is online using electronic check (Automated Clearing House (ACH) also known as eCheck) or credit card (Discover, VISA, MasterCard, American Express). Secure electronic payments can be submitted using the User Fees Payment Portal at
2.
3. When paying by wire transfer, the invoice number must be included. Without the invoice number the payment may not be applied. Regarding reinspection fees, if the payment amount is not applied, the invoice amount will be referred to collections. The originating financial institution may charge a wire transfer fee. If the financial institution charges a wire transfer fee, it is required that the outsourcing facility add that amount to the payment to ensure that the invoice is paid in full. Use the following account information when sending a wire transfer: U.S. Dept of the Treasury, TREAS NYC, 33 Liberty St., New York, NY 10045, Acct. No. 75060099, Routing No. 021030004, SWIFT: FRNYUS33. If needed, FDA's tax identification number is 53-0196965.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing the fee rates and payment procedures for fiscal year (FY) 2023 animal drug user fees. The Federal Food, Drug, and Cosmetic Act (FD&C Act), as amended by the Animal Drug User Fee Amendments of 2018 (ADUFA IV), authorizes FDA to collect user fees for certain animal drug applications and supplemental animal drug applications, for certain animal drug products, for certain establishments where such products are made, and for certain sponsors of such animal drug applications and/or investigational animal drug submissions. This notice establishes the fee rates for FY 2023.
The application fee rates are effective for applications submitted on or after October 1, 2022, and will remain in effect through September 30, 2023.
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Section 740 of the FD&C Act (21 U.S.C. 379j-12), as amended by ADUFA IV, establishes four different types of user fees: (1) fees for certain types of animal drug applications and supplemental animal drug applications; (2) annual fees for certain animal drug products; (3) annual fees for certain establishments where such products are made; and (4) annual fees for certain sponsors of animal drug applications and/or investigational animal drug submissions (21 U.S.C. 379j-12(a)). When certain conditions are met, FDA will waive or reduce fees (21 U.S.C. 379j-12(d)).
For FYs 2019 through 2023, the FD&C Act establishes the base revenue amount for each fiscal year (21 U.S.C. 379j-12(b)(1)). Base revenue amounts are subject to adjustment for inflation and workload (21 U.S.C. 379j-12(c)(2) and (3)). Beginning with FY 2021, the annual fee revenue amounts are also subject to adjustment to reduce workload-based increases by the amount of certain excess collections or to account for certain collection shortfalls (21 U.S.C. 379j-12(c)(3) and (g)(5)). Fees for applications, products, establishments, and sponsors are to be established each year by FDA so that the percentages of the total revenue that are derived from each type of user fee will be as follows: (1) revenue from application fees shall be 20 percent of total fee revenue; (2) revenue from product fees shall be 27 percent of total fee revenue; (3) revenue from establishment fees shall be 26 percent of total fee revenue; and (4) revenue from sponsor fees shall be 27 percent of total fee revenue (21 U.S.C. 379j-12(b)(2)). The target revenue amounts for each fee category for FY 2023, are as follows: for application fees, the target revenue amount is $6,428,800; for product fees, the target revenue amount is $8,678,880; for establishment fees, the target revenue amount is $8,357,440 and for sponsor fees, the target revenue amount is $8,678,880.
For FY 2023, the animal drug user fee rates are: $659,364 for an animal drug application; $329,682 for a supplemental animal drug application for which safety or effectiveness data are required and for an animal drug application subject to the criteria set forth in section 512(d)(4) of the FD&C Act (21 U.S.C. 360b(d)(4)); $11,375 for the annual product fee; $167,149 for the annual establishment fee; and $149,636 for an annual sponsor fee. FDA will issue invoices for FY 2023 product, establishment, and sponsor fees by December 31, 2022, and payment will be due by January 31, 2023. The application fee rates are effective for applications submitted on or after October 1, 2022, and will remain in effect through September 30, 2023. Applications will not be accepted for review until FDA has received full payment of application fees and any other animal drug user fees owed under the ADUFA program.
ADUFA IV, Title I of Public Law 115-234, specifies that the aggregate base fee revenue amount for FY 2023 for all animal drug user fee categories is $29,931,240 (21 U.S.C. 379j-12(b)(1)(B)).
ADUFA IV specifies that the annual fee revenue amount is to be adjusted for inflation increases for FY 2020 and subsequent fiscal years, using two separate adjustments—one for personnel compensation and benefits (PC&B) and one for non-PC&B costs (21 U.S.C. 379j-12(c)(2)(A)(ii) and (iii)). The component of the inflation adjustment for payroll costs shall be one plus the average annual percent change in the cost of all PC&B paid per full-time equivalent position (FTE) at FDA for the first 3 of the 4 preceding fiscal years of available data, multiplied by the average proportion of PC&B costs to total FDA costs for the first 3 of the 4 preceding fiscal years of available data. The data on total PC&B paid and numbers of FTE paid, from which the average cost per FTE can be derived, are published in FDA's Justification of Estimates for Appropriations Committees.
Table 1 summarizes the actual cost and FTE data for the specified fiscal years, provides the percent change from the previous fiscal year, and provides the average percent change over the first 3 of the 4 fiscal years preceding FY 2023. The 3-year average is 1.3918 percent.
The statute specifies that this 1.3918 percent should be multiplied by the proportion of PC&B costs to total FDA costs. Table 2 shows the amount of PC&B and the total amount obligated by FDA for the same 3 fiscal years.
The portion of the inflation adjustment relating to payroll costs is 1.3918 percent multiplied by 48.0397 percent, or 0.6686 percent.
The statute specifies that the portion of the inflation adjustment for non-payroll costs is the average annual percent change that occurred in the Consumer Price Index (CPI) for urban consumers (Washington-Baltimore, DC-MD-VA-WV; not seasonally adjusted; all items less food and energy; annual index) for the first 3 of the preceding 4 years of available data multiplied by the average proportion of all costs other than PC&B costs to total FDA costs for the first 3 of the 4 preceding fiscal years. As a result of a geographical revision made by the Bureau of Labor and Statistics in January 2018,
To calculate the inflation adjustment for non-payroll costs, we multiply 1.7754 percent by the proportion of all costs other than PC&B to total FDA costs. Since 48.0397 percent was obligated for PC&B as shown in table 2, 51.9603 percent is the portion of costs other than PC&B (100 percent minus 48.0397 percent equals 51.9603 percent). The portion of the inflation adjustment relating to non-payroll costs is 1.7754 percent times 51.9603 percent, or 0.9225 percent.
Next, we add the payroll component (0.6686 percent) to the non-payroll component (0.9225 percent), for an inflation adjustment of 1.5911 percent for FY 2023.
ADUFA IV provides for the inflation adjustment to be compounded each fiscal year after FY 2020 (see 21 U.S.C. 379j-12(c)(2)(B)). The inflation adjustment for FY 2023 (1.5911 percent) is compounded by adding 1 and then multiplying by 1 plus the inflation adjustment factor for FY 2022 (5.7121 percent), as published in the
The fee revenue amounts established in ADUFA IV for FY 2020 and subsequent fiscal years are also subject to adjustment to account for changes in FDA's review workload. A workload adjustment will be applied to the inflation adjusted fee revenue amount (21 U.S.C. 379j-12(c)(3)).
To determine whether a workload adjustment applies, FDA calculates the weighted average of the change in the total number of each of the five types of applications and submissions specified in the workload adjustment provision (animal drug applications, supplemental animal drug applications for which data with respect to safety or efficacy are required, manufacturing supplemental animal drug applications, investigational animal drug study submissions, and investigational animal drug protocol submissions) received over the 5-year period that ended on September 30, 2018 (the base years), and the average number of each of these types of applications and submissions over the most recent 5-year period that ended May 31, 2022.
The results of these calculations are presented in the first two columns of table 4. Column 3 reflects the percent change in workload over the two 5-year periods. Column 4 shows the weighting factor for each type of application/submissions, reflecting how much of the total FDA animal drug review workload was accounted for by each type of application or submission in the table during the most recent 5 years. Column 5 is the weighted percent change in each category of workload, and was derived by multiplying the weighting factor in each line in column 4 by the percent change from the base years in column 3. At the bottom right of the table, the sum of the values in column 5 is calculated, reflecting a total change in workload of negative 4.5044 percent for FY 2023. This is the workload adjuster for FY 2023.
Under no circumstances shall the workload adjustment result in fee revenues that are less than the base fee revenues for that fiscal year as adjusted for inflation (21 U.S.C. 379j-12(c)(3)). FDA will not adjust the FY 2023 fee revenue amount for workload changes because the workload adjuster was less than 1 percent.
Under section 740(c)(3)(B) of the FD&C Act, for FYs 2021 through 2023, if application of the workload adjustment increases the amount of fee revenues established for the fiscal year, as adjusted for inflation, the fee revenue increase will be reduced by the amount of any excess collections for the second preceding fiscal year, up to the amount of the fee revenue increase for workload. Since there is no workload-based increase in FY 2023, this provision does not apply.
Under section 740(g)(5)(A)(iii) of the FD&C Act, for FY 2023, the amount of fees otherwise authorized to be collected shall be increased by the cumulative amount, if any, by which the amount collected and appropriated for FY 2021 and FY 2022 (including estimated collections for FY 2022) falls below the cumulative amount of fees authorized for FYs 2021 and 2022.
In FY 2021, the total revenue amount authorized was $33,339,000 and the total amount of fees collected for FY 2021 as of May 31, 2022, was $33,811,815. The total revenue amount authorized for FY 2022 is $31,641,000 and the estimated collections for FY 2022 is projected to be $30,570,000. The cumulative amount of fees collected and estimated for FYs 2021 and 2022 is below the total authorized revenue amount by $1,071,000. Therefore, the recovery of collection shortfalls provision of section 740(g)(5)(A)(iii) is invoked. The next section details the reduction of the shortfall-based fee increase by prior year excess collections.
Under section 740(g)(5)(B) of the FD&C Act, where FDA's calculations under section 740(g)(5)(A) would result in a fee increase for that fiscal year to recover a collection shortfall in a prior year, FDA must reduce the increase by the amount of any excess collections for preceding fiscal years (after FY 2018) that have not already been applied to reduce workload-based fee increases. FDA's calculations under section 740(g)(5)(A) would result in a fee increase for FY 2023 to recover a collection shortfall of $1,071,000. FDA also calculates that it had $795,666 of excess collections in FY 2020 and $329,934 of excess collections in FY 2021 that have not previously been applied to reduce workload-based fee increases, for a total of $1,125,600 in excess collections. Because the FYs 2020 and 2021 excess collections not previously applied to a workload-based fee increase exceed the projected shortfall in FY 2022, there is a reduction of the shortfall-based fee increase under section 740(g)(5)(B). Therefore, no recovery of collections shortfall will be added to the FY 2023 target revenue.
For FY 2023, FDA may, in addition to other adjustments under section 740(c) of the FD&C Act, further increase the fees, if such an adjustment is necessary, to provide for up to 3 months of operating reserves of carryover user fees for the process for the review of animal drug applications for the first 3 months of FY 2024. If FDA has carryover balances for the process for the review of animal drug applications in excess of 3 months of such operating reserves, then this adjustment will not be made. (See 21 U.S.C. 379j-12(c)(4).) Since FDA currently has an excess of 3 months of such operating reserves, this adjustment will not be made for FY 2023.
The fee revenue amount for FY 2023, after considering the possible adjustments under sections 740(c) and (g)(5) of the FD&C Act, is $32,144,000 (rounded to the nearest thousand dollars). ADUFA IV specifies that this revenue amount is to be divided as follows: 20 percent, or a total of $6,428,800, is to come from application fees; 27 percent, or a total of $8,678,880, is to come from product fees; 26 percent, or a total of $8,357,440, is to come from establishment fees; and 27 percent, or a total of $8,678,880, is to come from sponsor fees (21 U.S.C. 379j-12(b)).
Each person who submits an animal drug application or a supplemental
Prior to ADUFA IV, FDA only had authority to grant conditional approval for drugs intended for a MUMS indication. Under amendments made to section 571 of the FD&C Act by ADUFA IV, FDA retains authority to grant conditional approval for drugs intended for MUMS indications but also will be able to grant conditional approval for certain drugs not intended for a MUMS indication provided certain criteria are met. Beginning with FY 2019, ADUFA IV provides an exception from application fees for animal drug applications submitted under section 512(b)(1) of the FD&C Act by a sponsor who previously applied for conditional approval under section 571 of the FD&C Act for the same product and paid an application fee at the time they applied for conditional approval. The purpose of this exception is to prevent sponsors of conditionally approved products from having to pay a second application fee at the time they apply for full approval of their products under section 512(b)(1) of the FD&C Act, provided the sponsor's application for full approval is filed consistent with the timeframes established in section 571(h) of the FD&C Act.
A “supplemental animal drug application” is defined as a request to the Secretary of Health and Human Services (Secretary) to approve a change in an animal drug application that has been approved, or a request to the Secretary to approve a change to an application approved under section 512(c)(2) of the FD&C Act for which data with respect to safety or effectiveness are required (21 U.S.C. 379j-11(2)). The application fees are to be set so that they will generate $6,428,800 in fee revenue for FY 2023. The fee for a supplemental animal drug application for which safety or effectiveness data are required and for an animal drug application subject to criteria set forth in section 512(d)(4) of the FD&C Act is to be set at 50 percent of the animal drug application fee (21 U.S.C. 379j-12(a)(1)(A)(ii)).
To set animal drug application fees and supplemental animal drug application fees to realize $6,428,800, FDA must first make some assumptions about the number of fee-paying applications and supplemental applications the Agency will receive in FY 2023.
The Agency knows the number of applications that have been submitted in previous fiscal years. That number fluctuates annually. In estimating the fee revenue to be generated by animal drug application fees in FY 2023, FDA is assuming that the number of applications for which fees will be paid in FY 2023 will equal the average number of applications over the 4 most recent completed fiscal years of the ADUFA program (FY 2018 to FY 2021). FDA decided to use a 4-year average for the FY 2023 fee rate calculation rather than a 5-year average. FDA made this adjustment because in the past 5 FY, 1 FY had an abnormally low number of applications. Thus, FDA used a 4-year average to remove this outlier from the forecast method, which resulted in a lower application fee rate.
Over the 4 most recent completed fiscal years, the average number of animal drug applications that would have been subject to the full fee was 5.25. Over this same period, the average number of supplemental applications for which safety or effectiveness data are required and applications subject to the criteria set forth in section 512(d)(4) of the FD&C Act that would have been subject to half of the full fee was 9.0.
Based on the previous assumptions, FDA is estimating that it will receive a total of 9.75 fee-paying animal drug applications in FY 2023 (5.25 applications paying a full fee and 9.00 applications paying a half fee).
FDA must set the fee rates for FY 2023 so that the estimated 9.75 applications that pay the fee will generate a total of $6,428,800. To generate this amount, the fee for an animal drug application, rounded to the nearest dollar, will have to be $659,364, and the fee for a supplemental animal drug application for which safety or effectiveness data are required and for applications subject to the criteria set forth in section 512(d)(4) of the FD&C Act will have to be $329,682.
The animal drug product fee must be paid annually by the person named as the applicant in a new animal drug application or supplemental new animal drug application for an animal drug product submitted for listing under section 510 of the FD&C Act (21 U.S.C. 360) and who had an animal drug application or supplemental animal drug application pending at FDA after September 1, 2003 (21 U.S.C. 379j-12(a)(2)). The term “animal drug product” means each specific strength or potency of a particular active ingredient or ingredients in final dosage form marketed by a particular manufacturer or distributor, which is uniquely identified by the labeler code and product code portions of the National Drug Code, and for which an animal drug application or a supplemental animal drug application has been approved (21 U.S.C. 379j-11(3)). The product fees are to be set so that they will generate $8,678,880 in fee revenue for FY 2023.
To set animal drug product fees to realize $8,678,880, FDA must make some assumptions about the number of products for which these fees will be paid in FY 2023. FDA gathered data on all animal drug products that have been submitted for listing under section 510 of the FD&C Act and matched this to the list of all persons who had an animal drug application or supplemental animal drug application pending after September 1, 2003. As of May 2022, FDA estimates that there is a total of 779 products submitted for listing by persons who had an animal drug application or supplemental animal drug application pending after September 1, 2003. Based on this, FDA estimates that a total of 779 products will be subject to this fee in FY 2023.
In estimating the fee revenue to be generated by animal drug product fees in FY 2023, FDA is assuming that 2 percent of the products invoiced, or 16, will not pay fees in FY 2023 due to fee waivers and reductions. FDA has made this estimate at 2 percent this year, based on historical data over the past 5 completed fiscal years of the ADUFA program.
Accordingly, the Agency estimates that a total of 763 (779 minus 16) products will be subject to product fees in FY 2023.
FDA must set the fee rates for FY 2023 so that the estimated 763 products for
The animal drug establishment fee must be paid annually by the person who: (1) owns or operates, directly or through an affiliate, an animal drug establishment; (2) is named as the applicant in an animal drug application or supplemental animal drug application for an animal drug product submitted for listing under section 510 of the FD&C Act; (3) had an animal drug application or supplemental animal drug application pending at FDA after September 1, 2003; and (4) whose establishment engaged in the manufacture of the animal drug product during the fiscal year (see 21 U.S.C. 379j-12(a)(3)). An establishment subject to animal drug establishment fees is assessed only one such fee per fiscal year. The term “animal drug establishment” is defined as a foreign or domestic place of business at one general physical location, consisting of one or more buildings, all of which are within 5 miles of each other, at which one or more animal drug products are manufactured in final dosage form (21 U.S.C. 379j-11(4)). The establishment fees are to be set so that they will generate $8,357,440 in fee revenue for FY 2023.
To set animal drug establishment fees to realize $8,357,440, FDA must make some assumptions about the number of establishments for which these fees will be paid in FY 2023. FDA gathered data on all animal drug establishments and matched this to the list of all persons who had an animal drug application or supplemental animal drug application pending after September 1, 2003. As of May 2022, FDA estimates that there is a total of 54 establishments owned or operated by persons who had an animal drug application or supplemental animal drug application pending after September 1, 2003. Based on this, FDA believes that 54 establishments will be subject to this fee in FY 2023.
In estimating the fee revenue to be generated by animal drug establishment fees in FY 2023, FDA is assuming that 7 percent of the establishments invoiced, or four establishments, will not pay fees in FY 2023 due to fee waivers and reductions. FDA has made this estimate at 7 percent this year, based on historical data over the past 5 completed fiscal years.
Accordingly, the Agency estimates that a total of 50 (54 minus 4) establishments will be subject to establishment fees in FY 2023.
FDA must set the fee rates for FY 2023 so that the fees paid for the estimated 50 establishments will generate a total of $8,357,440. To generate this amount will require the fee for an animal drug establishment, rounded to the nearest dollar, to be $167,149.
The animal drug sponsor fee must be paid annually by each person who: (1) is named as the applicant in an animal drug application, except for an approved application for which all subject products have been removed from listing under section 510 of the FD&C Act, or has submitted an investigational animal drug submission that has not been terminated or otherwise rendered inactive and (2) had an animal drug application, supplemental animal drug application, or investigational animal drug submission pending at FDA after September 1, 2003 (see 21 U.S.C. 379j-11(6) and 379j-12(a)(4)). An animal drug sponsor is subject to only one such fee each fiscal year (see 21 U.S.C. 379j-12(a)(4)). The sponsor fees are to be set so that they will generate $8,678,880 in fee revenue for FY 2023.
To set animal drug sponsor fees to realize $8,678,880, FDA must make some assumptions about the number of sponsors who will pay these fees in FY 2023. FDA estimates that a total of 182 sponsors will meet this definition in FY 2023.
In estimating the fee revenue to be generated by animal drug sponsor fees in FY 2023, FDA is assuming that 68 percent of the sponsors invoiced, or 124, will not pay sponsor fees in FY 2023 due to fee waivers and reductions. FDA has made this estimate at 68 percent this year, based on historical data over the past 5 completed fiscal years of the ADUFA program.
Accordingly, the Agency estimates that a total of 58 (182 minus 124) sponsors will be subject to and pay sponsor fees in FY 2023.
FDA must set the fee rates for FY 2023 so that the estimated 58 sponsors that pay fees will generate a total of $8,678,880. To generate this amount will require the fee for an animal drug sponsor, rounded to the nearest dollar, to be $149,636.
The fee rates for FY 2023 are summarized in table 5.
Under section 740(d)(1)(A) of the FD&C Act, an animal drug applicant may qualify for a waiver or reduction of one or more ADUFA fees if the fee would present a significant barrier to innovation because of limited resources available to the applicant or other circumstances. CVM's guidance for industry (GFI) #170, entitled “Animal Drug User Fees and Fee Waivers and Reductions,”
The types of fee waivers and reductions that applied during ADUFA III still exist for FY 2023. In addition, ADUFA IV established two new exemptions and one new exception from fees, as described below:
If an animal drug application, supplemental animal drug application, or investigational submission involves the intentional genomic alteration of an animal that is intended to produce a human medical product, any person who is the named applicant or sponsor of that application or submission will not be subject to sponsor, product, or establishment fees under ADUFA based solely on that application or submission (21 U.S.C. 379j-12(d)(4)(B)).
Fees will not apply to any person who not later than September 30, 2023, submits to CVM a supplemental animal drug application relating to a new animal drug application approved under section 512 of the FD&C Act, solely to add the application number to the labeling of the drug in the manner specified in section 502(w)(3) of the FD&C Act (21 U.S.C. 352(w)(3)), if that person otherwise would be subject to user fees under ADUFA based only on the submission of the supplemental application (21 U.S.C. 379j-12(d)(4)(A)).
There is also an exception from application fees for animal drug applications submitted under section 512(b)(1) of the FD&C Act by a sponsor who previously applied for conditional approval under section 571 of the FD&C Act for the same product and paid an application fee at the time they applied for conditional approval, provided the sponsor has submitted the application under section 512(b)(1) of the FD&C Act within the timeframe specified in section 571(h) of the FD&C Act (see 21 U.S.C. 379j-12(a)(1)(C)(ii)).
The FY 2023 fee established in the new fee schedule must be paid for an animal drug application or supplement subject to fees under ADUFA IV that is submitted on or after October 1, 2022. The payment must be made in U.S. currency from a U.S. bank by one of the following methods: wire transfer, electronically, check, bank draft, or U.S. postal money order made payable to the Food and Drug Administration. The preferred payment method is online using electronic check (Automated Clearing House (ACH) also known as eCheck) or credit card (Discover, VISA, MasterCard, American Express). Secure electronic payments can be submitted using the User Fees Payment Portal at
When paying by check, bank draft, or U.S. postal money order, please write your application's unique Payment Identification Number (PIN), beginning with the letters AD, on the upper right-hand corner of your completed Animal Drug User Fee Cover Sheet. Also write the FDA post office box number (P.O. Box 979033) and PIN on the enclosed check, bank draft, or money order. Mail the payment and a copy of the completed Animal Drug User Fee Cover Sheet to: Food and Drug Administration, P.O. Box 979033, St. Louis, MO 63197-9000. Note: in no case should the payment for the fee be submitted to FDA with the application.
When paying by wire transfer, the invoice number or PIN needs to be included; without the invoice number or PIN, the payment may not be applied, and the invoice amount would be referred to collections. The originating financial institution may charge a wire transfer fee. If the financial institution charges a wire transfer fee, it is required to add that amount to the payment to ensure that the invoice is paid in full.
Use the following account information when sending a payment by wire transfer: U.S. Department of the Treasury, TREAS NYC, 33 Liberty St., New York, NY 10045, Account Name: Food and Drug Administration, Account Number: 75060099, U.S. Department of the Treasury routing/transit number: 021030004, SWIFT Number: FRNYUS33.
To send a check by a courier such as FedEx, the courier must deliver the check and printed copy of the cover sheet to U.S. Bank, Attn: Government Lockbox 979033, 1005 Convention Plaza, St. Louis, MO 63101. (Note: This address is for courier delivery only. If you have any questions concerning courier delivery, contact U.S. Bank at 314-418-4013. This telephone number is only for questions about courier delivery.)
It is important that the fee arrives at the bank at least a day or two before the application arrives at FDA's CVM. FDA records the official application receipt date as the later of the following: the date the application was received by
The tax identification number of FDA is 53-0196965.
By December 31, 2022, FDA will issue invoices and payment instructions for product, establishment, and sponsor fees for FY 2023 using this fee schedule. Payment will be due by January 31, 2023. FDA will issue invoices in November 2023 for any products, establishments, and sponsors subject to fees for FY 2023 that qualify for fees after the December 2022 billing.
National Institutes of Health, HHS.
Request for information.
Since its inception in 1994, the National Institutes of Health (NIH), Office of Dietary Supplements (ODS) has used a structured planning process to develop five-year strategic plans. ODS is committed to engaging its stakeholders including representatives of the scientific community, industry, other federal agencies, and the public in the strategic planning process by soliciting their comments on the draft ODS Strategic Plan for Fiscal Years (FY) 2022-2026. Considering comments from representative stakeholder groups, and the general public will help ODS assess the outcomes of its investments and prioritize plans for the next five years.
The RFI is open for public comments and must be received by 11:59:59 p.m. (ET) on August 31, 2022, to ensure consideration.
All comments must be submitted electronically to
Please direct all inquiries to: Barbara Cohen at
This notice is in accordance with the 21st Century Cures Act, wherein NIH institutes are required to regularly update their strategic plans. The purpose of the FY 2022-2026 ODS Strategic Plan (
(1) Expand the scientific knowledge base on dietary supplements by stimulating and supporting a full range of biomedical research and by developing and contributing to relevant initiatives, workshops, meetings, and conferences;
(2) Enhance the dietary supplement research workforce through training and career development and simultaneously support the development of programs for diverse researchers who are underrepresented in science;
(3) Foster development and dissemination of research resources and tools to enhance the quality of dietary supplement research;
(4) Translate dietary supplement research findings into useful information for consumers, health professionals, researchers, and policymakers; and
(5) Coordinate and support the development of collaborative initiatives to address gaps in dietary supplement research.
ODS has completed a draft of its Five-Year Strategic Plan for FY 2022-2026 (
• Are there additional emerging public health issues that ODS can help address?
• Are there existing knowledge gaps that ODS can help address (not included in the current plan)?
• What can ODS do better to meet the needs of its stakeholders?
ODS encourages organizations to submit a single response reflective of the views of the organization as a whole.
Responses to this RFI are voluntary and may be submitted anonymously. Please do not include any personally identifiable information or any information that you do not wish to make public. Proprietary, classified, confidential, or sensitive information should not be included in your response. The NIH will use the information submitted in response to this RFI at its discretion. The NIH reserves the right to use any submitted information on public websites, in reports, in summaries of the state of the science, in any possible resultant solicitation(s), grant(s), or cooperative agreement(s), or in the development of future funding opportunity announcements. This RFI is for informational and planning purposes only and is not a solicitation for applications or an obligation on the part of the Government to provide support for any ideas identified in response to it. Please note that the Government will not pay for the preparation of any information submitted or for use of that information.
We look forward to your input and hope that you will share this RFI opportunity with your colleagues.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
National Institutes of Health, HHS.
Notice.
In compliance with the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
Comments regarding this information collection are best assured of having their full effect if received within 30-days of the date of this publication.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To obtain a copy of the data collection plans and instruments, submit comments in writing, or request more information on the proposed project, contact: Ms. Mikia P. Currie, Chief, Project Clearance Branch (PCB), Office of Policy for Extramural Research Administration, 6705 Rockledge Drive, Suite 803-B, Bethesda, Maryland, 20892 or call non-toll-free number (301) 435-0941 or email your request, including your address to:
This proposed information collection was previously published in the
The National Institutes of Health may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
In compliance with Section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 10,375.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Advisory Council on Alcohol Abuse and Alcoholism.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend as well as those who 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 open session will be videocast and can be accessed from the NIH Videocasting website (
The meeting will be closed to the public as indicated below, 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:
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
Comments are requested on proposed flood hazard determinations,
Comments are to be submitted on or before October 26, 2022.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location
You may submit comments, identified by Docket No. FEMA-B-2249, to Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Federal Regulations. The currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will be finalized on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Insurance and Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Office of the Assistant Secretary for Public and Indian Housing, PIH, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number). Persons with hearing or speech impairments may access this number via TTY by calling the Federal Information Relay Service at (800) 877-8339. Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
In order to approve the development of mixed-finance projects, HUD collects certain information from each PHA/Ownership Entity. Under current regulations, HUD collects and reviews the essential documents included in this Information Collection Request (ICR) in order to determine approval. After approval is given and the documents are recorded by the associated county, HUD collects the recorded versions of the documents in this ICR, along with financing and legal agreements that the PHA/owner entity has with HUD and with third-parties in connection with that mixed-finance project. This includes unique legal documents along with standardized forms and “Certifications and Assurances” which are not exempted under PRA.
The regulations that govern the processing of mixed-finance public housing projects are at 24 CFR part 905, subpart F. In accordance with these regulations, HUD collects information to ensure that the proposed mixed-finance development has sufficient funds to reach completion; will remain financially viable during its operating period; will follow HUD's legal and programmatic guidelines for housing project development or rehabilitation, ownership, and use restrictions; and will preserve HUD's rights to the project during its HUD-required affordability period. Information on HUD-prescribed forms and in HUD-prescribed contracts and agreements, along with other supplemental information called for in 24 CFR part 905, provides HUD with
HUD's Mixed-finance Development Proposal, and associated documents, can also be used to facilitate the approval of non-public housing developments whose development and/or operations are supported with Section 9 funds. For instance, Choice Neighborhoods grantees must use the Mixed-Finance Development Proposal to obtain HUD approval of their proposed housing development projects, even if those projects do not include public housing units. Moving to Work (MTW) agencies can also use this form to secure HUD approval of local, non-traditional development projects; however, it is not mandatory for them to do so. The Proposal notes requirements that apply to Choice Neighborhoods grantees and MTW agencies specifically. A PHA that is refinancing an existing Mixed-Finance project can also use the Proposal to secure HUD approval.
This ICR was last updated in FY 2018. Since that time, minor updates have been made to the Proposal to clarify instructions for grantees. The HUD Declaration of Trust/Declaration of Restrictive Covenants (DOT/DORC), which was previously approved under a separate PRA, is also being included in this submission, along with the Mixed Finance Amendment to the Annual Consolidated Contract. HUD is also including a revised version of the Mixed Finance Development Proposal that can be used for Faircloth to RAD transactions and that includes specific requirements for those projects. The list of documents being requested in this ICR have also been updated to reflect current practices: A couple documents no longer collected as part of the Mixed Finance review process have been removed. This ICR also adds the Ground Lease, Memorandum of Ground Lease, Management Agreement, Management Plan and Sample Tenant Lease to the list of evidentiary documents collected via this ICR. These documents were previously grouped together in this ICR under the category of “Mixed Finance Evidentiary Documents.” However, now the documents are being listed individually to provide greater clarity. Finally, the number of respondents has been adjusted since the last time this ICR was updated to more accurately reflect the current number of annual submissions.
Estimation of the total number of hours needed to prepare the information collection including number of respondents, frequency of response, and hours of response:
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
Office of the Assistant Secretary for Public and Indian Housing, PIH, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number). Persons with hearing or speech impairments may access this number via TTY by calling the Federal Information Relay Service at (800) 877-8339. Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
Fish and Wildlife Service, Interior.
Notice of receipt of permit applications; request for comments.
We, the U.S. Fish and Wildlife Service, have received applications for permits, permit renewals, and/or permit amendments to conduct activities intended to enhance the propagation or survival of endangered species under the Endangered Species Act of 1973, as amended. We invite the public and local, State, Tribal, and Federal agencies to comment on these applications. Before issuing any of the requested permits, we will take into consideration any information that we receive during the public comment period.
We must receive written data or comments on the applications by August 29, 2022.
•
•
Karen Marlowe, Permit Coordinator, 404-679-7097 (telephone),
We invite review and comment from the public and local, State, Tribal, and Federal agencies on applications we have received for permits to conduct certain activities with endangered and threatened species under section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
A recovery permit issued by us under section 10(a)(1)(A) of the ESA
Proposed activities in the following permit requests are for the recovery and enhancement of propagation or survival of the species in the wild. The ESA requires that we invite public comment before issuing these permits. Accordingly, we invite local, State, Tribal, and Federal agencies and the public to submit written data, views, or arguments with respect to these applications. The comments and recommendations that will be most useful and likely to influence agency decisions are those supported by quantitative information or studies.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
We publish this notice under section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission (“Commission”) has determined not to review an initial determination (“ID”) (Order No. 8) of the presiding administrative law judge (“ALJ”) granting a joint motion to terminate the investigation in its entirety based on settlement. The investigation is terminated.
Robert Needham, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW, Washington, DC 20436, telephone (202) 708-5468. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
On April 7, 2022, the Commission instituted this investigation based on a complaint filed on behalf of Peloton Interactive, Inc. of New York, New York (“Peloton”). 87 FR 20463 (Apr. 7, 2022). The complaint, as supplemented and amended, alleges a violation of 19 U.S.C. 1337 in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain interactive fitness products including stationary exercise bikes, treadmills, elliptical machines, and rowing machines and components thereof by reason of infringement of certain claims of U.S. Patent Nos. 11,170,886; 7,938,755; 11,183,288; 11,145,399; and 10,864,406.
On May 20, 2022, Peloton and Respondents jointly moved to terminate the investigation in its entirety based on settlement. On June 23, 2022, the parties supplemented their motion. No responses opposing the motion were filed.
On June 23, 2022, the ALJ issued the subject ID pursuant to Commission Rule 210.21(b)(1) (19 CFR 210.21(b)(1)), granting the motion. The ID finds that no extraordinary circumstances prevent termination of the investigation. No party petitioned for review of the ID.
The Commission has determined not to review the subject ID. The investigation is hereby terminated in its entirety.
The Commission vote for this determination took place on July 25, 2022.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
U.S. International Trade Commission.
Notice.
In accordance with Section 743 of Division C of the Consolidated Appropriations Act of 2010, the U.S. International Trade Commission is publishing this notice to advise the public of the availability of the FY 2019 Service Contract Inventory and the Planned Analysis of FY 2020 Service Contracts Inventory.
Questions regarding the service contract inventory should be directed to Debra Bridge, U.S. International Trade Commission, Office of Procurement, 500 E Street SW, Washington, DC 20436;
The FY 2019 inventory analysis provides information on specific service contract actions that were analyzed. The 2019 inventory provides information on service contract actions over $25,000, which were made in FY 2019. The inventory information is organized by function to show how contracted resources are distributed throughout the agency. The inventory has been developed in accordance with guidance issued on November 5, 2010 and December 19, 2011, by the Office of Management and Budget's Office of Federal Procurement Policy (OFPP). OFPP's guidance is available at
The FY 2020 planned analysis of service contracts inventory provides information on which functional areas will be reviewed by the agency. The U.S. International Trade Commission has posted its FY 2019 inventory and FY 2020 planned analysis at the following link:
The link to the Government-wide service contract inventory is
The Commission's FY2020 service contract inventory data is included in the government-wide inventory and may be filtered by agency.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review the presiding administrative law judge's (“ALJ”) initial determination (“ID”) (Order No. 3) setting a 20-month target date and an ID (Order No. 5) granting Cadence Design Systems, Inc.'s (“Cadence”) motion to intervene.
Amanda Pitcher Fisherow, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2737. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
The Commission instituted this investigation on June 13, 2022, based on a complaint filed by Bell Semiconductor, LLC of Bethlehem, Pennsylvania (“Complainant”). 87 FR 35791-92 (June 13, 2022). The complaint, as supplemented, alleged violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain electronic devices and semiconductor devices with timing-aware dummy fill and components thereof by reason of the infringement of certain claims of U.S. Patent No. 7,007,259. The complaint, as supplemented, further alleged that a domestic industry exists. The notice of investigation named as respondents: NXP Semiconductors, N.V. of Eindhoven, Netherlands; NXP B.V. of Eindhoven, Netherlands; NXP USA, Inc. of Austin, Texas; SMC Networks, Inc. d/b/a/IgniteNet of Irvine, California; Micron Technology, Inc. of Boise, Idaho; NVIDIA Corporation of Santa Clara, California; Advanced Micro Devices, Inc. of Santa Clara, California; Acer, Inc. of New Taipei City, Taiwan; Acer America Corporation of San Jose, California; Infineon Technologies America Corp. of Milpitas, California; Analog Devices Inc. of Norwood, Massachusetts; Bose Corporation of Framingham, Massachusetts; Marvell Technology Group, Ltd. of Hamilton, Bermuda; Marvell Semiconductor, Inc. of Santa Clara, California; Suteng Innovation Technology Co., Ltd. d/b/a RoboSense of Shenzen, China; Kioxia Corporation of Tokyo, Japan; Kioxia America, Inc. of San Jose, California; Socionext Inc. of Yokohama, Japan; Socionext America, Inc. of Santa Clara, California; Qualcomm Technologies, Inc. of San Diego, California; Lenovo Group Ltd. of Haidan District, China and Motorola Mobility LLC of Chicago, Illinois. The Office of Unfair Import Investigations (“OUII”) is also participating in the investigation.
On June 15, 2022, Cadence moved to intervene in the instant investigation with full participation rights and obligations. Motion at 1-2 (June. 15, 2022). Cadence asserts, however, that while it requests full participation rights as an intervening party, it does not seek to be accorded respondent status. Cadence explains that Complainant's infringement allegations rely, at least in part, on the functionality of Cadence's software tool technology which is alleged to be used to design one or more of the respondents' devices.
On June 23, 2022, the presiding ALJ issued an ID (Order No. 5) granting Cadence's motion to intervene. The ID found that Cadence meets the requirements of Commission Rule 210.19 (19 CFR 210.19) and established that it has interests in this investigation, and thus the ALJ determined that Cadence should be granted intervenor status. No one petitioned for review of Order No. 5.
Also, on June 23, 2022, the presiding ALJ issued Order No. 3 setting a 20-month target date of February 20, 2024. The ID explained that the target date is necessary due to the ALJ's obligations in other investigations.
On June 30, 2022, Complainant petitioned for review of Order No. 3. On July 8, 2022, OUII, Respondents Analog Devices, Inc., Infineon Technologies Americas Corp., Bose Corporation, Motorola Mobility LLC, Qualcomm Technologies, Inc., Acer, Inc., Acer America Corporation, Advanced Micro Devices, Inc., and Micron Technology, Inc., and Respondents Kioxia Corporation, Kioxia America, Inc., Marvell Semiconductor, Inc., Marvell Technology Group Ltd., NVIDIA Corporation, NXP Semiconductors, N.V., NXP B.V, NXP USA, Inc., Suteng Innovation Technology Co. Ltd. d/b/a RoboSense, Socionext Inc., Socionext America, Inc., and SMC Networks, Inc. d/b/a/IgniteNet filed separate responses to Complainant's petition for review.
The Commission has determined not to review the subject IDs. With respect to Order No. 3, the Commission notes that the ALJs have wide discretion in managing their own caseloads. The target date for this investigation was set, for good cause, at 20-months based on the ALJ's obligations in other matters.
The Commission vote for this determination took place on July 25, 2022.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
Drug Enforcement Administration, Justice.
Notice of application.
Biopharmaceutical Research Company LLC has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before August 29, 2022. Such persons may also file a written request for a hearing on the application on or before August 29, 2022.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on June 8, 2022, Biopharmaceutical Research Company LLC, 11045 Commercial Parkway, Castroville, California 95012-3209, applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import narcotic raw material for bulk manufacture and analytical purposes. This notice does not constitute an evaluation or determination of the merits of the company's application. No other activity for this drug code is authorized for this registration. 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.
Drug Enforcement Administration, Justice.
Notice of application.
AndersonBrecon Inc. has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before August 29, 2022. Such persons may also file a written request for a hearing on the application on or before August 29, 2022.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on May 6, 2022, AndersonBrecon Inc., 5775 Logistics Parkway, Rockford, Illinois 61109-3608, 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 clinical trial studies only. No other activity for these drug codes are authorized for this registration.
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.
Drug Enforcement Administration, Justice.
Notice of application.
AMPAC Fine Chemicals Virginia, LLC has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before September 26, 2022. Such persons may also file a written request for a hearing on the application on or before September 26, 2022.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.33(a), this is notice that on April 21, 2022, AMPAC Fine Chemicals Virginia, LLC, 2820 North Normandy Drive, Petersburg, Virginia 23805-2380, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to manufacture the above-listed controlled substances as bulk for internal use as intermediates or for distribution to its customers. No other activities for these drug codes are authorized for this registration.
Drug Enforcement Administration, Justice.
Notice of application.
Akorn Operating Company, LLC DBA Akorn has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before August 29, 2022. Such persons may also file a written request for a hearing on the application on or before August 29, 2022.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on June 6, 2022, Akorn Operating Company, LLC DBA Akorn, 1222 West Grand Avenue, Decatur, Illinois 62522, 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 purposes. No other activity for this drug code is authorized for this registration.
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.
Drug Enforcement Administration, Justice.
Notice of application.
Aspen API, Inc. has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before August 29, 2022. Such persons may also file a written request for a hearing on the application on or before August 29, 2022.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on May 9, 2022, Aspen API, Inc., 2136 South Wolf Road, Des Plaines, Illinois 60018, 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 as a bulk active pharmaceutical ingredient (API) for distribution to manufacture of finished dosage prescription drugs. No other activity for this drug code is authorized for this registration.
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.
Laboratory Division-RSU, Federal Bureau of Investigation, Department of Justice.
60-Day notice.
The Laboratory Division-RSU, Federal Bureau of Investigation, Department of Justice, is submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
The Department of Justice encourages public comment and will accept input until September 26, 2022.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Libby Stern, Research Chemist, Federal Bureau of Investigation Laboratory Division, Research and Support Unit, 2501 Investigation Ave., Quantico, VA 22135,
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
➢ Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Federal Bureau of Investigation, Laboratory Division-RSU, 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;
➢ Evaluate whether and if so how the quality, utility, and clarity of the information to be collected can be enhanced; 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,
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Executive Office for Immigration Review, Department of Justice.
60-Day notice.
The Executive Office for Immigration Review, Department of Justice (DOJ), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until September 26, 2022.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2500, Falls Church, VA 22041, telephone: (703) 305-0289.
This notice replaces the notice posted on June 8, 2022, at 87 FR 34905, for this collection.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
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On July 25, 2022, the Department of Justice lodged a proposed amendment to the consent decree entered in the matter of
The United States filed this lawsuit under the Clean Air Act. The complaint sought injunctive relief and civil penalties based on violations of the Clean Air Act's New Source Review requirements, New Source Performance Standards, National Emissions Standards for Hazardous Air Pollutants, “Title V” program requirements and operating permits, and related Texas and Iowa state implementation plan requirements. The violations resolved by the proposed consent decree amendment involve two flares used at a petrochemical manufacturing plant owned and operated by the defendants, Lyondell Chemical Co. and Equistar Chemicals, LP, in Morris, Illinois (the “Morris Plant”). The consent decree amendment requires the defendants to perform injunctive relief at the Morris Plant and pay a $324,000 civil penalty.
The publication of this notice opens a period for public comment on the proposed consent decree amendment. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the proposed consent decree amendment may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $8.00 (25 cents per page reproduction cost) payable to the United States Treasury. For a paper copy without the exhibits and signature pages, the cost is $3.50.
Pursuant to the authority contained in Section 512 of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 1142, the 212th open meeting of the Advisory Council on Employee Welfare and Pension Benefit Plans (also known as the ERISA Advisory Council) will be held via a teleconference on Thursday, September 8 and Friday, September 9, 2022.
The two-day meeting will begin at 9:00 a.m. and end at approximately 5:30 p.m. (ET) each day with a one-hour break for lunch. The purpose of the open meeting is for Advisory Council members to hear testimony from invited witnesses and to receive an update from the Employee Benefits Security Administration (EBSA).
The Advisory Council is studying the following topics: (1) Cybersecurity Issues Affecting Health Benefit Plans, and (2) Cybersecurity Insurance and Employee Benefit Plans. Descriptions of these topics are available on the ERISA Advisory Council's web page at
The agenda and instructions for public access to the teleconference meeting will be available on the ERISA Advisory Council's web page at
Organizations or members of the public wishing to submit a written statement may do so on or before Thursday, September 1, 2022, to Christine Donahue, Executive Secretary, ERISA Advisory Council. Statements should be transmitted electronically as an email attachment in text or pdf format to
Individuals or representatives of organizations wishing to address the ERISA Advisory Council should forward their requests to the Executive Secretary on or before Thursday, September 1, 2022, via email to
Individuals who need special accommodations should contact the Executive Secretary on or before Thursday, September 1, 2022, via email to
For more information about the meeting, contact the Executive Secretary at the address or telephone number above.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Employee Benefits Security Administration (EBSA)-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 August 29, 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.
Mara Blumenthal by telephone at 202-693-8538, or by email at
Under section 402(c)(3) of the Employee Retirement Income Security Act of 1974 (ERISA), if an “investment manager” (as defined in section 3(38) of ERISA) manages plan assets, the plan's trustee is relieved from certain fiduciary obligations relating to the management of the assets for which the investment manager is responsible. The Department's regulation, at 29 CFR 2510.3-38, provides that investment advisers that register with a state, rather than with the SEC, must satisfy ERISA's section 3(38) requirement to file a copy of the state registration with the Department by electronically registering through the Investment Adviser Registration Depository (IARD). 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
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.
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 August 29, 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) 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; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) 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.
Nicole Bouchet by telephone at 202-693-0213, or by email at
Information collected with this form is used to evaluate the financial profile of OWCP beneficiaries who have been overpaid benefits, and their ability to repay. OWCP beneficiaries are typically retired coal miners disabled by black lung disease, Federal employees injured on the job, and their survivors. 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. See 5 CFR 1320.5(a) and 1320.6.
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 Science Foundation.
Submission for OMB review; comment request.
The National Science Foundation (NSF) has submitted the following information collection requirement to OMB for review and clearance under the Paperwork Reduction Act of 1995. This is the second notice for public comment; the first was published in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314, or send email to
Copies of the submission may be obtained by calling 703-292-7556.
NSF may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number, and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Directorate for Education and Human Resources (EHR), a unit within NSF, promotes rigor and vitality within the Nation's STEM education enterprise to further the development of the 21st century's STEM workforce and public scientific literacy. EHR does this through diverse projects and programs that support research, extension, outreach, and hands-on activities that service STEM learning and research at all institutional (
The scope of this information collection request will primarily cover descriptive information gathered from education and training (E&T) projects that are funded by NSF. NSF will primarily use the data from this collection for program planning, management, and audit purposes to respond to queries from the Congress, the public, NSF's external merit reviewers who serve as advisors, including Committees of Visitors (COVs), the NSF's Office of the Inspector General, and as a basis for either internal or third-party evaluations of individual programs.
The collections will generally include three categories of descriptive data: (1) Staff and project participants (data that are also necessary to determine individual-level treatment and control groups for future third-party study or for internal evaluation); (2) project implementation characteristics (also necessary for future use to identify well-matched comparison groups); and (3) project outputs (necessary to measure baseline for pre- and post- NSF-funding-level impacts).
Since this collection will primarily be used for accountability and evaluation purposes, including responding to queries from COVs and other scientific experts, a census rather than sampling design typically is necessary. At the individual project level funding can be adjusted based on individual project's responses to some of the surveys. Some data collected under this collection will serve as baseline data for separate research and evaluation studies.
NSF-funded contract or grantee researchers and internal or external evaluators in part may identify control, comparison, or treatment groups for NSF's E&T portfolio using some of the descriptive data gathered through this collection to conduct well-designed, rigorous research and portfolio evaluation studies.
National Science Foundation.
Submission for OMB Review; comment request.
The National Science Foundation (NSF) has submitted the following information collection requirement to OMB for review and clearance under the Paperwork Reduction Act of 1995. This is the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314, or send email to
Copies of the submission may be obtained by calling 703-292-7556. NSF may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number, and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
“To promote the progress of science; to advance the national health, prosperity, and welfare; to secure the national defense. * * *”
The Act authorized and directed NSF to initiate and support:
• Basic scientific research and research fundamental to the engineering process;
• Programs to strengthen scientific and engineering research potential;
• Science and engineering education programs at all levels and in all the various fields of science and engineering;
• Programs that provide a source of information for policy formulation; and
• Other activities to promote these ends.
Among Federal agencies, NSF is a leader in providing the academic community with advanced instrumentation needed to conduct state-of-the-art research and to educate the next generation of scientists, engineers and technical workers. The knowledge generated by these tools sustains U.S. leadership in science and engineering (S&E) to drive the U.S. economy and secure the future. NSF's responsibility is to ensure that the research and education communities have access to these resources, and to provide the support needed to utilize them optimally, and implement timely upgrades.
The scale of advanced instrumentation ranges from small research instruments to shared resources or facilities that can be used by entire communities. The demand for such instrumentation is very high, and is growing rapidly, along with the pace of discovery. For major facilities and shared infrastructure, the need is particularly high. This trend is expected to accelerate in the future as increasing numbers of researchers and educators rely on such large facilities, instruments, and databases to provide the reach to make the next intellectual leaps.
NSF currently provides support for facility construction from two accounts: the Major Research Equipment and Facility Construction (MREFC) account, and the Research and Related Activities (R&RA) account. The MREFC account, established in FY 1995, is a separate budget line item that provides an agency-wide mechanism, permitting directorates to undertake large facility projects, roughly $100M or greater, and mid-scale projects in the range of approximately $20-$100M.
Facilities are defined as shared-use infrastructure, instrumentation and equipment that are accessible to a broad community of researchers and/or educators. Facilities may be centralized or may consist of distributed installations. They may incorporate large-scale networking or computational infrastructure, multi-user instruments or networks of such instruments, or other infrastructure, instrumentation and equipment having a major impact on a broad segment of a scientific or engineering discipline. Historically, awards have been made for such diverse projects as accelerators, telescopes, research vessels and aircraft, and geographically distributed but networked sensors and instrumentation.
The growth and diversification of large facility projects require that NSF remain attentive to the ever-changing issues and challenges inherent in their planning, construction, operation, management and oversight. Most importantly, dedicated, competent NSF and awardee staff are needed to manage and oversee these projects; giving the attention and oversight that good practice dictates and that proper accountability to taxpayers and Congress demands. To this end, there is also a need for consistent, documented requirements and procedures to be understood and used by NSF program managers and awardees for all such large projects.
Business Systems Reviews (BSR) of NSF's Major Facilities are designed to provide reasonable assurance that the business systems (people, processes, and technologies) of NSF Recipients are effective in meeting administrative responsibilities and satisfying Federal regulatory requirements, including those listed in NSF's Proposal & Award Policies & Procedures Guide (PAPPG).
These reviews are not considered audits but are intended to be assistive in nature; aiding the Recipient in following good practices where appropriate and bringing them into compliance, if needed. A team of BSR participants is assembled to assess the Recipient's policies, procedures, and practices to determine whether, taken collectively, these administrative business systems used in managing the Facility meet NSF award expectations and comply with Federal regulations.
The BSR Guide is designed for use by both our customer community and NSF staff for guidance in executing these reviews. The BSR Guide defines the overall framework and structure and summarizes the details outlined in the internal operating guidelines and procedures used by BSR Participants to execute the review process. Management principles and practices are specified for seven core functional areas (CFA) and are used by BSR participants in performing these evaluations. Roles and responsibilities of the NSF stakeholders involved in the process are outlined in the BSR Guide as well as the expectations of the Recipient.
This version of the Business Systems Guide aligns with the Uniform Guidance and the
The submission of Award Recipient and Project administrative business process and procedural documentation used in support of operations of the Major Facilities is part of the collection of information. This information is used to help NSF fulfill this responsibility in supporting merit-based research and education projects in all the scientific and engineering disciplines. The Foundation also has a continuing commitment to provide oversight on facilities through their full life cycle which must be balanced against monitoring its information collection so as to identify and address any excessive review and reporting burdens.
NSF has approximately twenty (20) Major Facilities in various stages of design, construction, operations, and divestment. The need for a BSR and review scope is based on NSF's internal annual Major Facility Portfolio Risk Assessment and the assessment of various risks factors.
National Science Foundation.
Submission for OMB review; comment request.
The National Science Foundation (NSF) has submitted the following information collection requirement to OMB for review and clearance under the Paperwork Reduction Act of 1995. This is the second notice for public comment; the first was published in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314, or send email to
Copies of the submission may be obtained by calling 703-292-7556. NSF may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number, and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
NSF developed the RPPR as a service within
Complete information about NSF's implementation of the Research Performance Progress Report (RPPR) may be found at the following website:
Pursuant to 10 CFR 2.313(c) and 2.321(b), the Atomic Safety and Licensing Board in the above-captioned
All correspondence, documents, and other materials shall continue to be filed
Tuesday, August 9, 2022, at 9:00 a.m.; Tuesday, August 9, 2022, at 4:00 p.m.
Washington, DC at U.S. Postal Service Headquarters, 475 L'Enfant Plaza, SW, in the Benjamin Franklin Room.
Tuesday, August 9, 2022, at 9:00 a.m.—Closed. Tuesday, August 9, 2022, at 4:00 p.m.—Open.
1. Strategic Issues.
2. Financial and Operational Matters.
3. Executive Session.
4. Administrative Items.
1. Remarks of the Chairman of the Board of Governors.
2. Remarks of the Postmaster General and CEO.
3. Approval of the Minutes.
4. Committee Reports.
5. Quarterly Financial Report.
6. Quarterly Service Performance Report.
7. Approval of Tentative Agenda for November 10 Meeting.
A public comment period will begin immediately following the adjournment of the open session on August 9, 2022. During the public comment period, which shall not exceed 45 minutes, members of the public may comment on any item or subject listed on the agenda for the open session above. Additionally, the public will be given the option to join the public comment session and participate via teleconference. Registration of speakers at the public comment period is required. Should you wish to participate via teleconference, you will be required to give your first and last name, a valid email address to send an invite and a phone number to reach you should a technical issue arise. Speakers may register online at
Michael J. Elston, Secretary of the Board of Governors, U.S. Postal Service, 475 L'Enfant Plaza SW, Washington, DC 20260-1000. Telephone: (202) 268-4800.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Section 31(a)(1) of the Investment Company Act of 1940 (15 U.S.C. 80a-1
The retention of records, as required by the rule, is necessary to ensure access to material business and financial information about funds and certain related entities. We periodically inspect the operations of funds to ensure they are in compliance with the Act and regulations under the Act. Due to the limits on our resources, however, each fund may only be inspected at intervals of several years. In addition, the prosecution of persons who have engaged in certain violations of the federal securities laws may not be limited by timing restrictions. For these reasons, we often need information relating to events or transactions that occurred years ago. Without the requirement to preserve books, records, and other documents, our staff would have difficulty determining whether the fund was in compliance with the law in such areas as valuation of its portfolio securities, computation of the prices investors paid, and, when purchasing and selling fund shares, types and amounts of expenses the fund incurred, kinds of investments the fund purchased, actions of affiliated persons, or whether the fund had engaged in any illegal or fraudulent activities. As part of our examinations of funds, our staff also reviews the materials that directors consider in approving the advisory contract.
There are 2,754 funds currently operating as of December 31, 2021, all of which are required to comply with rule 31a-2. The Commission staff estimates that, on average, a fund spends 220.4 hours annually to comply with the rule. The Commission therefore estimates the total annual hour burden of the rule's and form's paperwork requirements to be 606,981.60 hours. In addition to the burden hours, the Commission staff estimates that the average yearly cost to each fund that is subject to rule 31a-2 is about $40,577,95. The Commission estimates total annual cost is therefore about $111.8 million.
Estimates of average burden hours and costs are made solely for purposes of the Paperwork Reduction Act and are not derived from a comprehensive or even representative survey or study of the costs of Commission rules and forms. Compliance with the collection of information requirements of the rule is mandatory. Responses to the disclosure requirements will not be kept confidential. 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.
Written comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's
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.
Please direct your written comments to: David Bottom, Acting Director/Chief Information Officer, Securities and Exchange Commission, c/o John Pezzullo, 100 F Street NE, Washington, DC 20549 or send an email to:
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend Exchange Rule 518 to adopt (i) Complex Auction-on-Arrival-Only (“cAOAO”) orders and (ii) Complex Attributable Orders. Additionally, the Exchange proposes to amend Exchange Rule 518 to exclude cPRIME Orders from the Complex MIAX Emerald Price Collar Protection. The Exchange proposes to amend Exchange Rule 515A to adopt ISO PRIME orders and to make last priority allocation available for cPRIME Agency Orders.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend: (i) Exchange Rule 518 to adopt a new Complex Auction-on-Arrival-Only (“cAOAO”) order type and to amend relevant portions of the rule to describe the behavior and operation of a cAOAO order;
The Exchange launched in December 2018, and at that time, the Exchange Rulebook contained complex order rules that were substantially similar to the rules of its affiliate exchange, MIAX Options. Since December 2018, MIAX Options has added functionality to grow its complex order business. The Exchange proposes to amend its rules to adopt functionality that currently exists on the MIAX Options Exchange. The Exchange and MIAX Options seek to align functionality where feasible. The proposed rule changes described below are identical, or substantively identical, to rule changes filed by the Exchange's affiliate, MIAX Options.
The Exchange proposes to amend Exchange Rule 518, Complex Orders, to adopt a new cAOAO order type and to amend relevant portions of the rule to describe the behavior and operation of the new cAOAO order type. This proposed rule change is identical to a rule change filed by the Exchange's affiliate, MIAX Options.
Currently, the Exchange offers a Complex Auction-on-Arrival or “cAOA” order that is a complex order designated to be placed into a Complex Auction
The Exchange now proposes to adopt a new Complex Auction-on-Arrival-Only or “cAOAO” order type.
Suppose the following market in complex strategy ABC:
A cAOAO order is entered to buy 20 @1.07.
A Request For Response (RFR) message is sent identifying the complex strategy, the price, quantity of matched complex quotes and/or orders at that price, imbalance quantity and side of the market of the cAOAO order, in accordance to Rule 518(d)(2).
During the Response Time Interval, the following RFR Responses
At the conclusion of the Response Time Interval, the cAOAO order trades 15 @1.07.
The remaining quantity of 5 contracts from the cAOAO order is then cancelled.
The Exchange proposes to amend Exchange Rule 518(b), Types of Complex Orders, to adopt a new Complex Auction-on-Arrival Only (“cAOAO”) order type to be included among other complex order types that may be submitted to the Exchange as provided by Exchange Rule 518(b)(1). In addition, certain provisions in current Exchange Rule 518 that apply to cAOA orders would also apply to cAOAO orders. Therefore, the Exchange proposes to amend Rule 518 to incorporate references to cAOAO orders as necessary. Specifically, the Exchange proposes to amend Rule 518(c)(6) to provide that complex orders may be submitted as market orders and may be designated as cAOA or cAOAO. Additionally, the Exchange proposes to amend Rule 518(c)(6)(i) to provide that complex market orders designated as cAOA or cAOAO may initiate a Complex Auction upon arrival or join a Complex Auction in progress. Finally, the Exchange proposes to amend Rule 518(c)(6)(ii) to provide that complex market orders not designated as cAOA or cAOAO will trade immediately with any contra-side complex orders or quotes, or against the individual legs, up to and including the dcEBBO, and may be subject to the managed interest process described in subparagraph (c)(4) of Exchange Rule 518, and the evaluation process described in subparagraph (c)(5) of Exchange Rule 518.
The Exchange also proposes to amend Rule 518(d) to incorporate references to cAOAO orders. Specifically, the Exchange proposes to amend Rule 518(d)(1) to provide that, in order to initiate a Complex Auction upon receipt, a Complex Auction-eligible order must be designated as cAOA or cAOAO. Also, the order must meet the criteria described in Interpretation and Policy .03(b) of Exchange Rule 518 regarding the URIP.
Aside from including references to cAOAO orders, the proposal makes no changes to the operation of Rule 518(d)(1).
The Exchange also proposes to amend Exchange Rule 518(d)(9) to add a reference to cAOAO orders. The title of Rule 518(d)(9) as amended will read, “Processing of Non-cAOA or cAOAO Complex Orders.” The text of Rule 518(d)(9) as amended will provide that a complex order not designated as cAOA or cAOAO will either be: (i) executed in full at a single price or at multiple prices up to its limit price, with remaining contracts placed on the
The Exchange believes the proposed changes will allow the Exchange to effectively implement the proposed cAOAO order type.
The Exchange proposes to amend Exchange Rule 518, Complex Orders, to adopt a new order type, Complex Attributable Order.
Currently, the Exchange offers an Attributable Order
The Exchange now proposes to adopt new subparagraph (8) to Exchange Rule 518(b) which will similarly provide that a Complex Attributable Order is a complex market or limit order which displays the user firm ID for purposes of trading on the Exchange. Proposed Rule 518(b)(8) further states that the use of Complex Attributable Orders is voluntary. Complex Attributable Orders entered into the Exchange System will be available for execution but may not display the Executing Broker ID for all Exchange processes. Complex Attributable Orders will be used similarly to Attributable Orders on the simple market.
If enabled, the Executing Broker MPID will be displayed on the MOR Feed for new and updated complex orders, and on the AIS Feed when a Complex Attributable Order initiates or participates in the following events: a cPRIME Auction, a Complex Auction, or a Complex Liquidity Exposure Process (“cLEP”) Auction. The Complex Attributable Order type can be activated on an order-by-order basis with the default set to off. The Exchange will issue a Regulatory Circular specifying the Exchange processes and the class(es) of securities for which the Complex Attributable Order type shall be available.
The Exchange proposes to amend Interpretation and Policy .05 of Exchange Rule 518 to exclude cPRIME Orders from the Complex MIAX Emerald Price Collar Protection provided to complex orders as described in paragraph (f)(1) of the Rule. This proposed rule change is identical to a rule change filed by the Exchange's affiliate, MIAX Options.
In December of 2018, the Exchange adopted rules governing the trading in, and detailing the functionality of the MIAX Emerald System in the handling of, complex orders on the Exchange.
More specifically, the MPC price protection feature is an Exchange-wide price protection mechanism under which a complex order or eQuote to sell will not be displayed or executed at a price that is lower than the opposite side cNBBO
When the Exchange began its operations in December of 2018, the Exchange Rulebook contained three complex order types: Complex
The Exchange also excluded cPRIME Orders, cC2C Orders and cQCC Orders from the MIAX Emerald Order Monitor for Complex Orders (“cMOM”) stating in its filing, “that cPRIME Orders, cC2C Orders and cQCC Orders are all guaranteed an execution at a price or prices determined by the participants, and cPRIME Orders are subject to further price improvement. Therefore, the cMOM price protection feature isn't necessary for these complex order types, and thus these complex orders types will not be rejected based upon cMOM price parameters.”
For similar reasons, the Exchange now proposes to amend Interpretation and Policy .05(f)(1) of Exchange Rule 518. As amended, Interpretation and Policy .05(f)(1) of Exchange Rule 518 will state that, all complex orders (excluding cPRIME Orders),
A cPRIME Order is a paired order with an established minimum execution price that must meet certain defined internal criteria to be eligible to participate in a cPRIME Auction. Specifically, the initiating price for a cPRIME Agency Order must be better than (inside) the icEBBO
The following examples demonstrate the current behavior as compared to the proposed behavior.
An incoming cPRIME Order is received where the ASP of the Agency order is to buy complex strategies at a price of 3.80. Because the ASP of the Agency order to buy at 3.80 is outside the opposite side MPC of 3.75 (cNBO plus the MPCV), the cPRIME Order is rejected.
MPC = (3.00 − 0.25) × (3.50 + 0.25) = 2.75 × 3.75
An incoming cPRIME Order is received where the ASP of the Agency Order is to buy complex strategies at a price of 3.80. Although the ASP of the Agency Order to buy at 3.80 is outside the opposite side MPC of 3.75 (cNBO plus the MPCV), the cPRIME Order is accepted and initiates an auction.
An incoming cPRIME Order is received where the ASP of the Agency Order is to buy complex strategies at a price of 3.80. The ASP of the Agency Order to buy at 3.80 is permitted outside the opposite side MPC of 3.75 (cNBO plus the MPCV), and it is inside the icEBBO of 3.00 × 4.00; therefore the cPRIME Order is accepted and initiates an auction.
An incoming cPRIME Order is received where the ASP of the Agency Order is to buy complex strategies at a price of 3.80. Although the ASP of the Agency Order to buy at 3.80 is permitted outside the opposite side MPC of 3.75 (cNBO plus the MPCV), it is outside the icEBBO of 3.00 × 3.75; therefore the cPRIME Order is rejected.
The Exchange proposes to amend Interpretation and Policy .12 of Exchange Rule 515A to remove the provision that precludes last priority in allocation from being available to Initiating Members
Currently Interpretation and Policy .12(c)(v) of Exchange Rule 515A provides that the order allocation provisions contained in Rule 515A(a)(2)(iii) shall apply to cPRIME Auctions, provided that: (A) all references to contracts shall be deemed to be references to complex strategies as defined in Rule 518(a)(6); and (B) the last priority allocation option described in Rule 515A(a)(2)(iii)(L) is not available for Initiating Members that submit cPRIME Agency Orders. When the Exchange launched and adopted cPRIME functionality,
The Exchange now believes that there is significant Member demand for the use of the last priority in [sic] allocation option in cPRIME Auctions, and proposes to amend its current rule to remove the provision that makes it unavailable for Initiating Members that submit cPRIME Agency Orders. The Exchange proposes to remove subsection (c)(v)(B) of Interpretation and Policy .12 in its entirety. New proposed subsection (c)(v) will provide that, the order allocation provisions contained in Rule 515A(a)(2)(iii) shall apply to cPRIME Auctions, provided that all references to contracts shall be deemed to be references to complex strategies as defined in Rule 518(a)(6).
The Exchange proposes to amend Exchange Rule 515A, MIAX Emerald Price Improvement Mechanism (“PRIME”) and PRIME Solicitation Mechanism, to adopt a new ISO PRIME order type. This proposed rule change is identical to a rule change filed by the Exchange's affiliate, MIAX Options.
PRIME is a process by which a Member may electronically submit for execution (“Auction”) an order it represents as agent (“Agency Order”) against principal interest, and/or an Agency Order against solicited interest.
An Intermarket Sweep Order (“ISO”) is defined in Exchange Rule 1400(i) as a limit order for an options series that, simultaneously with the routing of the ISO, one or more additional ISOs, as necessary, are routed to execute against the full displayed size of any Protected Bid,
The Exchange now proposes to implement an ISO PRIME order type (“ISO PRIME”) that will allow the submission of an ISO into the PRIME. Specifically, an ISO PRIME is the transmission of two orders for crossing pursuant to Rule 515A, MIAX Emerald Price Improvement Mechanism (“PRIME”) and PRIME Solicitation Mechanism, without regard for better priced Protected Bids or Protected Offers because the Member transmitting the ISO PRIME order to the Exchange has, simultaneously with the submission of the ISO PRIME order, routed one or more ISOs, as necessary,
The Exchange will accept an ISO PRIME provided that the order adheres to the current PRIME Order acceptance criteria outlined above, except that the initiating Member is only required to stop the entire Agency Order as principal or with a solicited order at the Agency Order's limit price (if the order is a limit order). Therefore, the Initiating Member may initiate an Auction provided that all of the following are met: (i) the Agency Order is in a class designated as eligible for PRIME as determined by the Exchange and within the designated Auction order eligibility size parameters as such size parameters are determined by the Exchange; (ii) the Initiating Member must stop the entire Agency Order as principal or with a solicited order at the better of the NBBO or the Agency Order's limit price (if the order is a limit order); (iii) with respect to Agency Orders that have a size of less than 50 contracts, if at the time of receipt of the Agency Order, the NBBO has a bid/ask differential of $0.01, the System will reject the Agency Order; and (iv) Post-Only OQs may not participate in PRIME as an Agency Order, principal interest or solicited interest.
The Exchange will process the ISO PRIME order in the same manner that it currently processes PRIME Orders, except that it will initiate a PRIME Auction without protecting away prices. The Member transmitting the ISO PRIME order will bear the responsibility to clear all better priced interest away simultaneously with the submission of the ISO PRIME order to the Exchange.
The Exchange also proposes to adopt a new allocation methodology specifically for Market Maker
The Exchange now proposes to amend Exchange Rule 515A(a)(2)(iii)(C) to adopt a new allocation for Market Maker priority quotes at the conclusion of an Auction for an ISO PRIME order. The Exchange notes that the proposed rule is identical to MIAX Options Exchange Rule 515A(a)(2)(iii)(C). The proposed rule text will state that, at the conclusion of an Auction for an ISO PRIME order, the allocation of Agency Orders at the final Auction price shall be: (i) to Market Makers that traded in the associated ISO sweep, for up to the full size of such Market Makers' refreshed priority quotes, as well as any RFR responses submitted by those Market Makers; (ii) to those Market Makers with quotes at the Auction start price that were resting and any RFR responses submitted by those Market Makers at the final Auction price; and (iii) to all other Market Makers that did not trade in the associated ISO sweep and did not have resting quotes at the Auction start price with joining interest at the final Auction price that was submitted during the Auction. If two or more Market Makers are entitled to priority under (i), (ii) or (iii) above, priority will be afforded to the extent practicable on a pro-rata basis.
This can be demonstrated in the following examples, which assume away markets priced better than the auction start price have been swept.
Under this scenario the Agency Order would be executed as follows:
ISO PRIME Agency Order to buy 50 contracts with a limit price of $1.20 is received.
It will ISO Sweep resting liquidity priced better than the Auction start price of $1.20.
Under this scenario the Agency Order would be executed as follows:
Under this scenario the Agency Order would be executed as follows:
ISO PRIME Agency Order to buy 50 contracts with a limit price of $1.20 is received.
It will ISO Sweep resting liquidity priced better than the Auction start price of $1.20.
Under this scenario the Agency Order would be executed as follows:
Under this scenario, the Agency Order would be executed as follows:
ISO PRIME Agency Order to buy 50 contracts with a limit price of $1.20 is received.
It will ISO Sweep resting liquidity priced better than the Auction start price of $1.20.
Under this scenario, the Agency Order would be executed as follows:
Under this scenario, the Agency Order would be executed as follows:
The Exchange believes this allocation methodology, used only for Market Maker priority interest and only at the conclusion of an ISO PRIME Auction, will provide an additional incentive for Market Makers to provide their most aggressive quotes to the market throughout the entire trading session. The proposed allocation methodology is identical to MIAX Options Exchange Rule 515A(a)(2)(iii)(C).
The Exchange also proposes to amend Rule 515A(a)(2)(iii)(J) which currently states, notwithstanding (a)(2)(iii)(C), (D) above, if the Auction does not result in price improvement over the Exchange's disseminated price at the time the Auction began, resting unchanged quotes or orders that were disseminated at the best price before the Auction began shall have priority after any Priority Customer order priority and the Initiating Member's priority (40%) have been satisfied. The new proposed rule text will provide, notwithstanding (a)(2)(iii)(C), (D) above, provided the Auction is not for an ISO PRIME order, if the Auction does not result in price improvement over the Exchange's disseminated price at the time the Auction began, resting unchanged quotes or orders that were disseminated at the best price before the Auction began shall have priority after any Priority Customer order priority and the Initiating Member's priority (40%) have been satisfied. The Exchange notes that the proposed rule is identical to MIAX Options Exchange Rule 515A(a)(2)(iii)(J).
The Exchange will announce the implementation of these changes in a Regulatory Circular to be published no later than 90 days following the operative date of the proposed rule. The implementation date will be no later than 90 days following the issuance of the Regulatory Circular.
MIAX believes that its proposed rule change regarding adopting a new Complex Auction-on-Arrival-Only (“cAOAO”) order type is consistent with Section 6(b) of the Act
The Exchange believes that its proposal to adopt a cAOAO order type promotes just and equitable principles of trade, removes impediments to and perfects the mechanisms of a free and open market and a national market system and, in general, protects investors and the public interest. The Exchange believes it is reasonable to provide an opportunity for investors to seek to have their complex orders exposed for an opportunity for price improvement and to also provide investors the option to have such orders canceled if they are not filled. The Exchange believes its proposal to amend other portions of Exchange Rule 518 to describe the operation and behavior of a cAOAO order benefits investors and the public interest by providing information that investors can use to ascertain the suitability of this order type in relation to their investment objectives. Moreover, this proposed rule change is identical to a rule change filed by the Exchange's affiliate, MIAX Options to adopt a cAOAO order type.
The Exchange believes its proposed rule change regarding a cAOAO order type promotes just and equitable principles of trade and removes impediments to and perfects the mechanisms of a free and open market and a national market system and, in general, protects investors and the public interest by providing an opportunity for investors to have their complex orders exposed for an opportunity for price improvement. Furthermore, the Exchange believes that it is appropriate to provide an order type that will (i) initiate a complex auction if eligible, and (ii) cancel the balance of such order if there is interest remaining at the conclusion of the auction.
The Exchange believes that its proposed rule change regarding adopting a new Complex Attributable Order type is consistent with Section 6(b) of the Act
The Exchange believes its proposal to adopt a Complex Attributable Order promotes just and equitable principles of trade, and removes impediments to and perfects the mechanisms of a free and open market system and, in general, protects investors and the public interest by introducing an order type for use on the complex market that is currently available for use on the Exchange's simple market. Use of Complex Attributable Orders will be voluntary and will provide Members of the Exchange similar order types for use on both the simple market and the complex market for use during liquidity seeking events to facilitate executions. Additionally, this proposed rule change is substantively identical to a rule change filed by the Exchange's affiliate, MIAX Options to adopt a Complex Attributable Order type.
The Exchange believes that its proposed rule change regarding excluding cPRIME Orders from the Complex MIAX Emerald Price Collar Protection (“MPC”) is consistent with Section 6(b) of the Act
The Exchange believes its proposal to exclude cPRIME Orders from the MPC promotes just and equitable principles of trade, removes impediments to and perfects the mechanisms of a free and open market and a national market system, and in general, protects investors and the public interest by
The Exchange believes that its proposed rule change regarding last priority in allocation for Initiating Members submitting cPRIME Agency Orders is consistent with Section 6(b) of the Act
The Exchange believes that its proposal to allow Initiating Members that submit cPRIME Agency Orders to the Exchange to elect to have last priority in allocation promotes just and equitable principles of trade, removes impediments to and perfects the mechanisms of a free and open market and a national market system and, in general, protects investors and the public interest by offering an additional allocation choice which could result in an increase of cPRIME Agency Orders being submitted to the Exchange. The Exchange believes offering last priority in allocation gives the Initiating Member additional flexibility and control over cPRIME Agency Orders which and may result in the submission of more cPRIME Orders to the Exchange resulting in an increase of price improvement opportunities.
Additionally, this proposed rule change is identical to a rule change filed by the Exchange's affiliate, MIAX Options, which removed the provision that precluded last priority in allocation from being available to Initiating Members that submit cPRIME Agency Orders.
The Exchange believes that its proposed rule change regarding a new ISO PRIME order is consistent with Section 6(b) of the Act
The proposed rule change promotes just and equitable principles of trade and removes impediments to and perfects the mechanisms of a free and open market in that it promotes competition as described below. Specifically, the proposal allows the Exchange to offer its Members an order type that is already offered by other exchanges.
The Exchange's proposal to amend Emerald Rule 515A(a)(2)(iii)(C) to adopt a new allocation at the conclusion of an ISO PRIME Auction for Market Maker priority quotes and RFR responses from Market Makers with priority quotes, that participate in the associated ISO sweep, promotes just and equitable principles of trade, perfects the mechanisms of a free and open market and a national market system and, in general, benefits investors as it provides an additional incentive to Market Makers to provide their most aggressive quotes to the market at all times. Prioritizing Market Maker interest such that Market Makers that trade in the associated ISO sweep that also have joining interest at the final Auction price receive first priority in allocation provides an incentive to Market Makers to have their most aggressive quotes on the Book in order to participate in any potential ISO sweeps.
The Exchange's proposal does not change the existing allocation priority for PRIME Auctions, and is narrowly tailored to allocation priority only among Market Makers and only at the conclusion of a PRIME Auction initiated by an ISO PRIME order. Additionally, the proposed rule is identical to a rule change filed by the Exchange's affiliate, MIAX Options, to adopt a new allocation methodology specifically for Market Maker interest executed during an ISO PRIME Auction.
Additionally, the Exchange believes its proposal to amend Exchange Rule 515A(a)(2)(iii)(J) to clarify that the subsection does not apply to Auctions for ISO PRIME orders, promotes just and equitable principles of trade, and removes impediments to and perfects the mechanisms of a free and open market and a national market system and, in general, protects investors and the public interest by removing any ambiguity in the Exchange's Rulebook about the type of Auctions subsection (J) pertains to. Current subsection (J) provides additional clarifying language concerning the priority of allocations at the conclusion of a PRIME Auction that does not result in price improvement
The Exchange believes this change will benefit market participants as it encourages Market Makers to participate in ISO PRIME Auctions and will provide additional incentive to Market Makers to provide their most aggressive quotes to the market throughout the trading session and may also result in increased liquidity being available during the Auction. Additionally, this proposed rule change is identical to a rule change filed by Exchange's affiliate, MIAX Options, to adopt ISO PRIME orders.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on inter-market competition but will rather promote inter-market competition as the Exchange is proposing an order type that operates and is functionally identical to an order type offered on other option exchanges.
The Exchange does not believe that the proposed rule change will impose any burden on intra-market competition as the Rules of the Exchange apply equally to all Exchange Members, and any Member of the Exchange may use the cAOAO order type.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange does not believe that the proposed rule change to adopt a Complex Attributable Order will impose any burden on inter-market competition but rather may increase competition among exchanges as the Exchange is proposing an order type that operates and is functionally identical to other options exchanges.
The Exchange does not believe that the proposed rule change to adopt a Complex Attributable Order will impose any burden on intra-market competition as use of a Complex Attributable Order will be voluntary and all Members of the Exchange will have the option to use a Complex Attributable Order when submitting a complex order to 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.
The Exchange believes that the proposal to exclude cPRIME Orders from the Exchange's MPC price protection promotes inter-market competition by enabling the Exchange to better compete for this type of order flow with at least one other exchange that offers similar price improvement auctions.
The Exchange does not believe that its proposal will impose any burden on intra-market competition as all Members of the Exchange that submit cPRIME Orders will benefit equally from the Exchange's proposal. The proposed rule change is intended to promote competition and is designed to benefit all Exchange participants by ensuring that unnecessary price protections which would preclude executions on the Exchange are removed, thus enabling Exchange participants to execute more complex orders on the Exchange.
For all the reasons stated, the Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act, and believes the proposed changes will in fact enhance competition.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange does not believe that its proposal will impose any burden on inter-market competition because the Exchange believes that the proposal to offer a last in priority allocation option to Initiating Members that submit cPRIME Agency Orders allows the Exchange to compete with at least one other options exchange that offers identical functionality.
The Exchange does not believe that its proposal will impose any burden on intra-market competition as all Members of the Exchange that submit cPRIME Orders will be able to elect last priority in allocation. Offering Initiating Members that submit cPRIME Agency Orders an additional allocation choice gives Members more flexibility and control over their orders and may result in the submission of more cPRIME Orders which would benefit competition on the Exchange.
For all the reasons stated, the Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act, and believes the proposed changes will in fact enhance competition.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes the proposed rule change will benefit inter-market competition as it will allow the Exchange to compete with other markets that already allow an ISO Order type in their price improvement mechanisms.
The Exchange's proposal to adopt an ISO PRIME order type benefits intra-market competition because it will enable the Exchange to provide market participants with an additional method of seeking price improvement through the PRIME. The Exchange does not believe that the proposed rule change will impose any burden on intra-market competition as the Rules of the Exchange apply equally to all Exchange Members, and all Exchange Members may submit an ISO PRIME order.
The Exchange does not believe its proposal to amend Exchange Rule 515A(a)(2)(iii)(C) to adopt a new allocation hierarchy to further apportion Market Maker allocation at the conclusion of an Auction of an ISO PRIME order will impose any burden on intra-market competition but rather promotes intra-market competition as it provides a further incentive to Market Makers to provide their most aggressive quotes to the market throughout the entire trading session and may increase liquidity available during a PRIME Auction. The proposal provides Market Makers with priority quotes on the Book, that participate in an associated ISO sweep, with priority over other Market Makers, which benefits intra-market competition as it also provides an incentive to Market Makers to provide their most aggressive quotes to the market during the entire trading session to be in position to participate in any potential ISO sweeps.
The Exchange's proposal does not change existing order allocation under Exchange Rule 515A(2)(iii) and the Exchange does not believe its proposal will impose any burden on inter-market competition that is not necessary or appropriate in furtherance of the purposes of the Act, but rather will promote inter-market competition as it provides an additional incentive to Market Makers on the Exchange to provide their most aggressive quotes to the market at all times, which could result in tighter quotes and greater liquidity being available in the market place, which would benefit all investors. Moreover, since the proposed rule change is identical to a rule change filed by the Exchange's affiliate, MIAX Options,
The Exchange believes its proposal to amend Exchange Rule 515A(a)(2)(iii)(J) promotes just and equitable principles of trade and removes impediments to and perfects the mechanism of a free and open market and a national market system because the proposed rule change provides additional detail and further clarifies the rule. The Exchange does not believe its proposal is a burden on inter-market competition as the change is not competitive in nature and only clarifies the operation of the rule. Additionally, the Exchange does not believe its proposal is a burden on intra-market competition as the Exchange's rules apply equally to all Members, and any Member may submit an ISO Prime order to the Exchange. Further, the Exchange believes the proposed change adds additional detail to the Exchange's rules, and it is in the public interest for rules to be clear and concise so as to eliminate the potential for confusion.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings
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 (1) amend Rule 7.35B (DMM-Facilitated Closing Auctions) relating to the Closing Auction, and (2) make certain conforming and non-substantive changes to Rule 7.31 (Orders and Modifiers), Rule 7.35, Rule 7.35B and Rule 104 (Dealings and Responsibilities of DMMs). 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 (1) amend Rule 7.35B (DMM-Facilitated Closing Auctions) relating to the Closing Auction,
The following current rules describe the Closing Auction process on the Exchange:
• Rule 7.31 (identifying the order types eligible to participate in an Auction);
• Rule 7.35 (general rules and definitions applicable to Auctions);
• Rule 7.35B (describing the process for DMM-facilitated Closing Auctions);
• Rule 7.35C (describing the process for Exchange-facilitated Auctions); and
• Rule 104 (establishing DMM obligations with respect to Closing Auctions and trading leading into the Closing Auction).
The following interest is eligible to participate in a Closing Auction:
• unexecuted buy and sell orders resting on the Exchange Book at the end of Core Trading Hours (including DMM Orders);
• Auction-Only Orders;
• DMM Auction Liquidity entered by the DMM in connection with facilitating the Closing Auction.
Beginning 10 minutes before the scheduled end of Core Trading Hours, the Exchange begins disseminating through its proprietary data feed Closing Auction Imbalance Information that is calculated based on the interest eligible to participate in the Closing Auction.
Pursuant to Rule 104(a)(3), Designated Market Makers (“DMM”) have the responsibility to facilitate the close of trading for each of the securities in which the DMM is registered as required by Exchange rules, which may include supplying liquidity as needed. Rule 104(a)(3) further provides that DMMs and DMM unit algorithms have access to aggregate order information in order to comply with their requirement to facilitate the close of trading for each of the securities in which the DMM is registered. Accordingly, aggregate order information about all orders eligible to participate in the Closing Auction, including the full quantity of Reserve Orders
Rule 7.35B specifies the process for DMM-facilitated Closing Auctions. Pursuant to Rule 7.35B(a), it is the responsibility of each DMM to ensure that registered securities close as soon after the end of Core Trading Hours as possible, while at the same time not unduly hasty, particularly when at a price disparity from the Exchange Last Sale Price.
Rule 7.35C specifies the process for Exchange-facilitated Auctions if a DMM cannot facilitate an Auction in one or more securities in which the DMM is registered. DMM Interest does not participate in an Exchange-facilitated Closing Auction trade.
The Exchange proposes to amend Rule 7.35B to modify how the Closing Auction Price would be determined by adding price parameters within which the DMM must select a Closing Auction Price. As described in more detail below, the proposed pricing parameters would be based on non-DMM interest eligible to participate in the Closing Auction that was included in the last-published Auction Imbalance Information. The Exchange also proposes to modify how the DMM would participate in the Closing Auction by cancelling any resting DMM Orders at the end of Core Trading Hours. The Exchange does not propose to change the DMMs' Rule 104 obligation to facilitate the Closing Auction, including the obligation to supply liquidity as needed. The Exchange believes that the proposed changes would make the Closing Auction more transparent and deterministic while retaining the DMMs' unique obligation to facilitate the Closing Auction.
The Exchange proposes to amend Rule 7.35B(g) to add explicit price parameters to the Closing Auction Price. As noted above, the DMM is responsible for determining a Closing Auction Price that is able to satisfy all better-priced orders on the Side of the Imbalance. This requirement would not change.
(g)
The Exchange believes that adding this proposed Closing Auction Price parameter is consistent with how the Closing Auction Price has been determined for the vast majority of Closing Auctions. For example, in the period January 1, 2021 to June 17, 2022, 95.6% of all Closing Auctions were priced at or between the last-published Imbalance Reference Price and Continuous Book Clearing Price. Similarly, during this same period, 94.6% of closing auction volume priced within these parameters. Moreover, 73.6% of the 4.4% of Closing Auctions that did not price within those parameters closed at prices only one or two cents away from those boundaries.
The Exchange proposes to change how DMMs would be able to enter buy and sell interest to participate in the Closing Auction by modifying how a DMM could enter or cancel interest after the end of Core Trading Hours.
Currently, Rule 7.35B(a)(2) provides that a DMM may enter or cancel DMM Interest after the end of Core Trading Hours in order to supply liquidity as needed to meet the DMM's obligation to facilitate the Closing Auction in a fair and orderly manner. Consistent with this current Rule, the Exchange does not systematically block a DMM from entering or cancelling DMM Interest after the end of Core Trading Hours. Instead, the DMM's determination of whether to enter or cancel DMM Interest after the end of Core Trading Hours is subject to the DMM's obligation to maintain a fair and orderly market, as specified in Rule 104.
The Exchange proposes to amend Rule 7.35B(a)(2) to provide that after the end of Core Trading Hours, a DMM may enter only DMM Auction Liquidity in order to supply liquidity as needed to meet the DMM's obligation to facilitate the Closing Auction in a fair and orderly manner. With this proposed change, a DMM could enter DMM Auction Liquidity after the end of Core Trading Hours only to close a security within the proposed new price parameters, described above.
The Exchange proposes that DMM Orders (
To effect these changes, the Exchange proposes to amend Rule 7.35B(a)(2) as
(2)
With this proposed change to Rule 7.35B(a)(2), in connection with the Closing Auction, DMMs would still be required consistent with their obligations under Rule 104 to contribute their own capital to supply liquidity as needed to assist in the maintenance of a fair and orderly market. In addition, DMMs would continue to have an obligation with respect to determining a Closing Auction Price that satisfies all better-priced orders on the Side of the Imbalance.
The Exchange proposes to amend Rule 104 to eliminate obsolete rule text and update rule references, and make other conforming changes to Rule 7.31 and Rule 104. The following proposed changes would not result in any substantive changes to DMM obligations:
• The Exchange proposes to amend Rule 104(a)(2) to update the cross reference from Rule 123D to Rule 7.35A and to use the Pillar terms of “Core Open Auctions and Trading Halt Auctions” instead of referring to “openings.” The Exchange also proposes to delete the reference to Rule 13 and Reserve Order interest procedures at the opening as obsolete. Finally, the Exchange proposes to delete the reference to Supplementary Material .05 to Rule 104 with respect to odd-lot order information to the DMM unit algorithm, as this is also obsolete now that the Exchange trades on Pillar.
• The Exchange proposes to amend Rule 104(a)(3) to update the cross reference from Rule 123C to Rule 7.35B and to use the Pillar term of “Closing Auctions” instead of “closes.” The Exchange also proposes to delete the reference to Rule 13 and Reserve Order interest procedures at the close as obsolete.
• The Exchange proposes to amend Rule 104(b) by deleting subparagraphs (2) and (6) and replacing the text for Rule 104(b)(2) with the following: “Unless otherwise specified in Rule 7.31, DMM unit algorithms may use the orders and modifiers set forth in Rule 7.31.”
Rule 104(b)(2) currently provides that “Exchange systems shall enforce the proper sequencing of incoming orders and algorithmically-generated messages and will prevent incoming DMM interest from trading with resting DMM interest. If the incoming DMM interest would trade with resting DMM interest only, the incoming DMM interest will be cancelled. If the incoming DMM interest would trade with interest other than DMM interest, the resting DMM interest will be cancelled.” Since the Exchange transitioned to Pillar, the Exchange no longer enforces self-trade prevention on behalf of DMMs. Instead, DMMs may use one of the Self-Trade Prevention Modifiers (“STP”) described in Rule 7.31(i)(2).
Rule 104(b)(6) currently provides that “DMM Units may not enter the following orders and modifiers: Market Orders, Inside Limit Orders, MOO Orders, CO Orders, MOC Orders, LOC Orders, or Last Sale Peg Orders.” In the Pillar rules, Rule 7.31 sets forth which orders and modifiers are not available to DMMs, and therefore Rule 104(b)(6) is obsolete. All of the orders and modifiers set forth in Rule 104(b)(6) that are unavailable to DMMs are reflected in Rule 7.31 except for Inside Limit Orders, which limitation was only added to Rule 104(b)(6).
• The Exchange proposes to amend Rule 104(b)(3) to delete references to “Floor broker agency interest files or reserve interest” as such references are now obsolete. The Exchange no longer uses “Floor broker agency interest files” and no longer provides Floor brokers with reserve interest functionality that differs from the Reserve Orders available to all member organizations, as described in Rule 7.31.
• The Exchange proposes to amend Rule 104(b) by deleting subparagraph (4), which provides that “[t]he DMM unit's algorithm may place within Exchange systems trading interest to be known as a “Capital Commitment Schedule”. (See Rule 1000 concerning the operation of the Capital Commitment Schedule).” With the transition to Pillar, the Exchange has replaced the “Capital Commitment Schedule” with Capital Commitment Orders, as described in Rule 7.31(d)(5), and has deleted Rule 1000. Accordingly, this current rule is obsolete. The Exchange proposes a non-substantive amendment to renumber Rule 104(b)(5) as Rule 104(b)(4).
• The Exchange proposes to delete the text accompanying current Rules 104(c), (d), and (e) as obsolete now that the Exchange trades on Pillar. Rule 104(c) currently provides: “A DMM unit may maintain reserve interest consistent with Exchange rules governing Reserve Orders. Such reserve interest is eligible for execution in manual transactions.” Rule 7.31 now describes how Reserve Orders function.
Rule 104(d) currently provides: “A DMM unit may provide algorithmically-generated price improvement to all or part of an incoming order that can be executed at or within the Exchange BBO through the use of Capital Commitment Schedule interest (see Rule 1000). Any orders eligible for execution in Exchange systems at the price of the DMM unit's interest will trade on parity with such interest, as will any displayed interest representing a d-Quote enabling such interest to trade at the same price as the DMM unit's interest.” As noted above, with Pillar, the Exchange has deleted Rule 1000 and no longer offers the Capital Commitment Schedule to DMMs.
Rule 104(e) currently provides: “DMM units shall provide contra side liquidity as needed for the execution of odd-lot quantities that are eligible to be executed as part of the opening, re-opening and closing transactions but remain unpaired after the DMM has paired all other eligible round lot sized interest.” This requirement is obsolete.
With these proposed deletions, the Exchange proposes non-substantive amendments to renumber Rules 104(f), (g), (h), (i), and (j) as Rules 104(c), (d), (e), (f), and (g) and update cross-references in proposed Rule 104(e)(iii) from subparagraph (h)(ii) and (iii) to (e)(ii) and (iii).
• The Exchange proposes to amend current Rule 104(h)(ii) (proposed Rule 104(e)(ii)) to delete reference to information that is no longer available to a DMM at the post. Specifically, the
The Exchange proposes that the non-substantive amendments to Rule 104 would be operative immediately upon approval of this proposed rule change. Because of the technology changes associated with the proposed changes to Rule 7.35B, the Exchange proposes that, subject to approval of the proposed rule change, the Exchange will announce the implementation date of the remaining proposed rule changes by Trader Update. Subject to approval of this proposed rule change, the Exchange anticipates that such changes will be implemented in the fourth quarter of 2022.
The Exchange believes that the proposal is consistent with Section 6(b) of the Act,
Finally, the Exchange believes that the proposed non-substantive
In accordance with Section 6(b)(8) of the Act,
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) by order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to: Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Small Business Administration.
60-Day notice and request for comments
The Small Business Administration (SBA) intends to request approval, from the Office of Management and Budget (OMB) for the collection of information described below. The Paperwork Reduction Act (PRA) requires federal agencies to publish a notice in the
Submit comments on or before September 26, 2022.
Send all comments to Joseph Eitel, Director, Office of Personnel Security, Small Business Administration, Denver, CO 80202.
Joseph Eitel, Director, Office of Personnel Security
Small Business Administration SBA Form 912 is used to collect information needed to make character determinations with respect to applicants for monetary loan assistance or applicants for participation in SBA programs. The information collected is used as the basis for conducting name checks at national Federal Bureau of Investigations (FBI) and local levels.
SBA is requesting comments on (a) Whether the collection of information is necessary for the agency to properly perform its functions; (b) whether the burden estimates are accurate; (c) whether there are ways to minimize the burden, including through the use of automated techniques or other forms of
Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for the State of Montana (FEMA-4655-DR), dated 06/30/2022.
Issued on 07/22/2022.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
The notice of the President's major disaster declaration for the State of Montana, dated 06/30/2022, is hereby amended to include the following areas as adversely affected by the disaster:
Yellowstone.
All other information in the original declaration remains unchanged.
Small Business Administration.
Amendment 3.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Montana (FEMA-4655-DR), dated 06/16/2022.
Issued on 07/22/2022.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of Montana, dated 06/16/2022, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
Small Business Administration.
60-Day notice and request for comments.
The Small Business Administration (SBA) intends to request approval, from the Office of Management and Budget (OMB) for the collection of information described below. The Paperwork Reduction Act (PRA) requires federal agencies to publish a notice in the
Submit comments on or before September 26, 2022.
Send all comments to Mary Frias, Loan Specialist, Office of Financial Assistance, Small Business Administration, Washington, DC 20416.
Mary Frias, Loan Specialist, Office of Financial Assistance,
Small Business Administration (SBA) regulations require that we determine that a participating Certified Development Company's Non-Bank Lender Institution's or Microlender's management, ownership, etc. is of “good character”. To do so requires the information requested on the Form 1081. This form also provides data used to determine the qualifications and capabilities of the lender's key personnel.
SBA is requesting comments on (a) Whether the collection of information is necessary for the agency to properly perform its functions; (b) whether the burden estimates are accurate; (c) whether there are ways to minimize the burden, including through the use of automated techniques or other forms of information technology; and (d) whether there are ways to enhance the quality, utility, and clarity of the information.
Northern Illinois & Wisconsin Railway Corporation, d.b.a. NIWX Corporation (NIWX), has filed a verified notice of exemption pursuant to 49 CFR 1180.2(d)(2) to acquire control of West Erie Short Line, Inc. (WESL), a Class III carrier, from EFCO, Inc., d.b.a. Ajax/CECO/Erie Press (EFCO), a noncarrier.
The transaction may be consummated on or after August 11, 2022, the effective date of the exemption (30 days after the verified notice was filed).
According to the verified notice of exemption, NIWX indirectly controls Blackwell Northern Gateway Railroad Company (BNG) by virtue of controlling US Rail Partners, Ltd. (USRP), which owns all of BNG's stock. The verified notice additionally indicates that Davenport Industrial Railroad, LLC, is affiliated with, but not controlled by, NIWX.
The verified notice indicates that: (1) WESL does not connect with the rail lines of any of the rail carriers in NIWX's corporate family; (2) the transaction is not part of a series of anticipated transactions that would connect WESL with the rail lines of any carriers in NIWX's corporate family; and (3) the transaction does not involve a Class I rail carrier. The proposed transaction is therefore exempt from the prior approval requirements of 49 U.S.C. 11323 pursuant to 49 CFR 1180.2(d)(2).
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. However, 49 U.S.C. 11326(c) does not provide for labor protection for transactions under 49 U.S.C. 11324 and 11325 that involve only Class III rail carriers. Because this transaction involves Class III rail carriers only, the Board, under the statute, may not impose labor protective conditions for this transaction.
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions for stay must be filed no later than August 4, 2022 (at least seven days before the exemption becomes effective).
All pleadings, referring to Docket No. FD 36605, must be filed with the Surface Transportation Board either via e-filing on the Board's website or in writing addressed to 395 E Street SW, Washington, DC 20423-0001. In addition, one copy of each pleading must be served on NIWX's representative, Thomas F. McFarland, Thomas F. McFarland, P.C., 2230 Marston Lane, Flossmoor, IL 60422-1336.
According to NIWX, this action is categorically excluded from environmental review under 49 CFR 1105.6(c) and from historic reporting requirements under 49 CFR 1105.8(b).
Board decisions and notices are available at
By the Board, Mai T. Dinh, Director, Office of Proceedings.
Federal Highway Administration (FHWA), DOT.
Notice.
This notice announces the extension of the judicial review time period for claims relating to the Interstate 81 Viaduct Project located in Onondaga County, New York.
A claim seeking judicial review of the Federal agency actions on the highway project will be barred unless the claim is filed on or before November 21, 2022. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such claim, then that shorter time period still applies.
Richard J. Marquis, Division Administrator, Federal Highway Administration, Leo W. O'Brien Federal Building, 11A Clinton Avenue, Suite 719, Albany, New York 12207, Telephone (518) 431-4127.
On June 3, 2022, at 87 FR 33872, FHWA published a Statute of Limitations Notice for the Interstate 81 Viaduct Project, Onondaga County, New York. This notice extends the judicial review time period from October 31, 2022, to November 21, 2022, as a result of publishing an addendum to the Record of Decision (ROD) containing responses to comments inadvertently omitted from the original publication. The FEIS, ROD, and other documents in the FHWA administrative record files are available by contacting FHWA at the address provided above. The FEIS and ROD can also be viewed and downloaded from the project website at:
Federal Railroad Administration (FRA), U.S. Department of Transportation (DOT).
Notice.
FRA is providing this notice to advise the public that it is issuing a Final General Conformity Determination (FCD) for the San Francisco to San Jose Section of the California High-Speed Rail (HSR) System (Project). The Project is located between Fourth and King Street Station in San Francisco, CA, and Scott Boulevard in Santa Clara, CA, along and adjacent to the existing Caltrain rail corridor.
Lana Lau, Supervisory Environmental
Pursuant to 23 U.S.C. 327 (Section 327), the California High-Speed Rail Authority (Authority) has assumed FRA's environmental review responsibilities under the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
FRA prepared a Draft General Conformity Determination, pursuant to 40 CFR part 93, subpart B, which establishes the process for complying with the General Conformity requirements of the Clean Air Act. FRA published a notice in the
FRA prepared the Final General Conformity Determination pursuant to 40 CFR part 93, subpart B, and based on the Authority's coordination with the U.S. Environmental Protection Agency (EPA), Bay Area Air Quality Management District (BAAQMD), and the California Air Resources Board (CARB). The analysis found that construction period emissions for one of the Project alternatives (Alternative B) would exceed the General Conformity
The Final General Conformity Determination is available at
Issued in Washington, DC
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to issue coastwise endorsement eligibility determinations for foreign-built vessels which will carry no more than twelve passengers for hire. A request for such a determination has been received by MARAD. By this notice, MARAD seeks comments from interested parties as to any effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. Information about the requestor's vessel, including a brief description of the proposed service, is listed below.
Submit comments on or before August 29, 2022.
You may submit comments identified by DOT Docket Number MARAD-2022-0149 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
James Mead, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-459, Washington, DC 20590. Telephone 202-366-5723, Email
As described in the application, the intended service of the vessel THUNDERBIRD 1119 is:
The complete application is available for review identified in the DOT docket as MARAD 2022-0149 at
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit the information you claim to be confidential commercial information by email to
In the event MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to issue coastwise endorsement eligibility determinations for foreign-built vessels which will carry no more than twelve passengers for hire. A request for such a determination has been received by MARAD. By this notice, MARAD seeks comments from interested parties as to any effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. Information about the requestor's vessel, including a brief description of the proposed service, is listed below.
Submit comments on or before August 29, 2022.
You may submit comments identified by DOT Docket Number MARAD-2022-0153 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
James Mead, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-459, Washington, DC 20590. Telephone 202-366-5723, Email
As described in the application, the intended service of the vessel SARAH'NDIPITY is:
The complete application is available for review identified in the DOT docket as MARAD 2022-0153 at
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit the information you claim to be confidential commercial information by email to
In the event MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to issue coastwise endorsement eligibility determinations for foreign-built vessels which will carry no more than twelve passengers for hire. A request for such a determination has been received by MARAD. By this notice, MARAD seeks comments from interested parties as to any effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. Information about the requestor's vessel, including a brief description of the proposed service, is listed below.
Submit comments on or before August 29, 2022.
You may submit comments identified by DOT Docket Number MARAD-2022-0147 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
James Mead, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-459, Washington, DC 20590. Telephone 202-366-5723, Email
As described in the application, the intended service of the vessel THOMAS CROSBY 5 is:
The complete application is available for review identified in the DOT docket as MARAD 2022-0147 at
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit the information you claim to be confidential commercial information by email to
In the event MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to issue coastwise endorsement eligibility determinations for foreign-built vessels which will carry no more than twelve passengers for hire. A request for such a determination has been received by MARAD. By this notice, MARAD seeks comments from interested parties as to any effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. Information about the requestor's vessel, including a brief description of the proposed service, is listed below.
Submit comments on or before August 29, 2022.
You may submit comments identified by DOT Docket Number MARAD-2022-0154 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
James Mead, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-459, Washington, DC 20590. Telephone 202-366-5723, Email
As described in the application, the intended service of the vessel SERENITY is:
The complete application is available for review identified in the DOT docket as MARAD 2022-0154 at
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit the information you claim to be confidential commercial information by email to
In the event MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to issue coastwise endorsement eligibility determinations for foreign-built vessels which will carry no more than twelve passengers for hire. A request for such a determination has been received by MARAD. By this notice, MARAD seeks comments from interested parties as to any effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. Information about the requestor's vessel, including a brief description of the proposed service, is listed below.
Submit comments on or before August 29, 2022.
You may submit comments identified by DOT Docket Number MARAD-2022-0150 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
James Mead, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-459, Washington, DC 20590. Telephone 202-366-5723, Email
As described in the application, the intended service of the vessel LAVISH is:
The complete application is available for review identified in the DOT docket as MARAD 2022-0150 at
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you should submit the information you claim to be confidential commercial information by email to
In the event MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administrator.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to issue coastwise endorsement eligibility determinations for foreign-built vessels which will carry no more than twelve passengers for hire. A request for such a determination has been received by MARAD. By this notice, MARAD seeks comments from interested parties as to any effect this action may have on U.S. vessel builders or businesses in the U.S. that use U.S.-flag vessels. Information about the requestor's vessel, including a brief description of the proposed service, is listed below.
Submit comments on or before August 29, 2022.
You may submit comments identified by DOT Docket Number MARAD-2022-0157 by any one of the following methods:
•
•
If you mail or hand-deliver your comments, we recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.
James Mead, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE, Room W23-459, Washington, DC 20590. Telephone 202-366-5723, Email
As described in the application, the intended service of the vessel TEMPUS FUGIT is:
The complete application is available for review identified in the DOT docket as MARAD 2022-0157 at
Please submit your comments, including the attachments, following the instructions provided under the above heading entitled
Go to the docket online at
Yes. Be aware that your entire comment, including your personal identifying information, will be made publicly available.
If you wish to submit comments under a claim of confidentiality, you
In the event MARAD receives a Freedom of Information Act (FOIA) request for the information, procedures described in the Department's FOIA regulation at 49 CFR 7.29 will be followed. Only information that is ultimately determined to be confidential under those procedures will be exempt from disclosure under FOIA.
Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit
By Order of the Maritime Administrator.
Department of Transportation (DOT).
Notice; request for information.
The Build America, Buy America Act (BABA), enacted as part of the Bipartisan Infrastructure Law (BIL) on November 15, 2021, requires iron, steel, manufactured products, and construction materials used in infrastructure projects funded by Federal financial assistance to be produced in the United States. DOT is seeking input on the requirement as applied to construction materials: how the requirement should be interpreted and implemented, the present availability of construction materials produced in the United States that are commonly used in transportation infrastructure projects, and the potential impacts to DOT-funded projects.
Written submissions must be received by August 12, 2022. DOT will consider comments received after this date to the extent practicable.
Please submit any written comments to Docket Number DOT-OST-2022-0047 electronically through the Federal eRulemaking Portal at
For questions about this RFI, please contact Darren Timothy, Office of the Assistant Secretary for Transportation Policy, at
On November 15, 2021, President Biden signed into law the Bipartisan Infrastructure Law (BIL), enacted as the Infrastructure Investment and Jobs Act, Public Law 117-58, which includes the Build America, Buy America Act (BABA). Public Law 117-58, div. G §§ 70901-52. BABA's requirements for the use of iron, steel, manufactured products, and construction materials produced in the United States will bolster America's industrial base, protect national security, and support good-paying jobs.
Consistent with Executive Order 14005, Ensuring the Future Is Made in All of America by All of America's Workers (E.O. 14005), BABA affirms the Biden-Harris Administration's priority to “use terms and conditions of Federal financial assistance awards to maximize the use of goods, products, and materials produced in, and services offered in, the United States.” (E.O. 14005). Under BABA, all iron, steel, manufactured products, and construction materials used in infrastructure projects funded at least partly by Federal financial assistance must be produced in the United States.
One of the new Buy America preferences included under Section 70914 of the Act is for construction materials. As of May 14, 2022, each covered Federal agency must ensure that all manufacturing processes for construction materials used in Federally assisted infrastructure projects occur in the United States. None of the specific statutes that apply particular Buy America
Waivers are authorized under BABA where (1) applying the Buy America requirement would be inconsistent with the public interest; (2) where the iron, steel, manufactured product, or construction material is not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality; and (3) where inclusion of the domestic products or construction materials will increase the cost of the overall project by more than 25 percent. BIL § 70914(b). On May 19, 2022, DOT issued a temporary waiver of the construction materials requirement for 180 days, from May 14 until November 10, 2022. 87 FR 31931. Federal awards that DOT makes on or after November 10 will be subject to the
In the waiver notice, DOT stated that “public interest waivers should be used sparingly” and that stakeholders must rapidly adopt procedures during the waiver period to ensure compliance with the new requirement after expiration of the waiver. During the waiver period, DOT continues its engagement to help facilitate the creation of robust enforcement and compliance mechanisms and to rapidly encourage domestic sourcing of construction materials for transportation infrastructure improvements.
Under BABA, construction materials are “produced in the United States” if “all manufacturing processes” for the materials occurred in the United States. BIL § 70912. BABA directs the U.S. Office of Management and Budget's Made in America Office (MIAO) to issue standards that define the term “all manufacturing processes” as it applies to construction materials produced in the United States. On April 18, 2022, OMB issued memorandum M-22-11, “Initial Implementation Guidance on Application of Buy America Preference in Federal Financial Assistance Programs for Infrastructure” (OMB Initial Implementation Guidance). Section VIII of the OMB Initial Implementation Guidance states: “Pending MIAO's issuance of final standards on construction materials . . . agencies should consider `all manufacturing processes' for construction materials to mean the final manufacturing process and the immediately preceding manufacturing stage for the construction material.” OMB Initial Implementation Guidance at 14.
The OMB Initial Implementation Guidance also contains a preliminary list of construction materials that includes:
[A]n article, material, or supply—other than an item of primarily iron or steel; a manufactured product; cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives —that is or consists primarily of:
• non-ferrous metals;
• plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables);
• glass (including optic glass);
• lumber; or
• drywall.
OMB Initial Implementation Guidance at 13-14. On April 21, 2022, OMB also issued a request for information to gather public input on its development of standards for construction materials. 87 FR 23888. The OMB RFI states that it “seeks input on whether to refine this list, and requests input on specific materials or products or categories of materials or products that should be added, removed, or clarified, as well as advice on how to distinguish construction materials from manufactured products.”
The OMB Initial Implementation Guidance additionally indicates that:
[I]tems that consist of two or more of the listed materials that have been combined together through a manufacturing process, and items that include at least one of the listed materials combined with a material that is not listed through a manufacturing process, should be treated as manufactured products, rather than as construction materials. For example, a plastic framed sliding window should be treated as a manufactured product while plate glass should be treated as a construction material.
OMB Initial Implementation Guidance at 14. The OMB Initial Implementation Guidance also states that an article, material, or supply should be classified into only one of the following categories: (1) iron or steel; (2) a manufactured product; or (3) a construction material; an article, material, or supply should not be considered to fall into multiple categories. Id. at 6.
In the May 19 final waiver notice, DOT stated that it “continues to encourage suppliers and other stakeholders to inform DOT of any procedures that may be developed or be in place to certify the compliance of construction materials with the domestic preference requirement in the Act. That information helps DOT rapidly encourage domestic sourcing and potentially shorten the effective period or narrow the applicability of the transitional waiver. The Department also encourages supplier and other stakeholders to identify categories of construction materials that currently have sufficient domestic availability to support DOT-assisted infrastructure projects, to assist contractors and project sponsors in incorporating compliant products in their projects and to help the Department focus its activities to benefit domestic manufacturers.”
To assist in gathering this information, DOT seeks input from the public, including DOT's project sponsors, their contractors and offerors, manufacturers, labor unions, transportation and trade associations, and other interested parties on implementing the new construction materials requirement. DOT seeks information in several categories related to identifying and categorizing articles as construction materials for transportation infrastructure projects; establishing procedures for certifying the origin of construction materials; and determining which construction materials commonly used in transportation infrastructure projects are or are not produced in the United States in sufficient quantity and quality.
This RFI is intended to assist DOT in implementing and ensuring compliance with OMB standards. Responses to this RFI will further the goals and objectives of BABA and E.O. 14005 by providing information to assist the Department in implementing the construction materials requirement for transportation infrastructure projects to maximize the use of construction materials produced in the United States while ensuring the efficient and effective delivery of projects. The type of feedback that would be especially useful includes information on the impact of the construction materials requirement on DOT-funded projects, as well as input and recommendations on an effective compliance certification process for construction materials.
Commenters should identify any administrative burdens, program requirements, or unnecessary complexity as they relate to the BABA construction materials requirement that may impose unjustified barriers to transportation project delivery under DOT-funded assistance programs in general, or that may have adverse effects on equity for all, including individuals who belong to underserved communities that have been denied equitable treatment, such as Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; persons with disabilities, including learning disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality.
Commenters should provide, with as much detail as possible, an explanation why their recommendations advance the statutory objectives of BABA for DOT-funded projects and the policies stated in section 2 of E.O. 14005. Additionally, where applicable, please provide citations and sources that
If commenters identify benefits, costs, burdens, or shortcomings of particular options for implementing the BABA construction materials requirement, commenters should provide data and evidence to support these conclusions.
DOT is providing the following questions to prompt feedback. DOT encourages public comment on any or all of these questions, and also seeks any other information commenters believe is relevant. Except where noted, the questions below are intended to apply to all financial assistance programs for transportation infrastructure are administered by DOT's OAs. However, the Department also welcomes feedback that may be tied to specific programs and agency requirements.
(1) In addition to those construction materials identified by OMB, are there specific materials, products, or categories of materials or products that are commonly used in DOT-funded projects that should be included as “construction materials” for the purpose of BABA implementation?
(2) Are there materials used in DOT-funded projects that do not clearly fit in any one of the three categories: steel and iron; manufactured products; or construction materials? How should DOT assign them to one of these statutory categories?
(3) Are there items that DOT agencies currently treat as manufactured products that should instead, under the OMB Initial Implementation Guidance, be treated as construction materials?
(4) Based on the definition of “all manufacturing processes” in the OMB Initial Implementation Guidance, what do you consider “the final manufacturing process” and the “immediately preceding manufacturing stage” for common goods used in DOT-funded projects in each category of construction material listed in the OMB Initial Implementation Guidance or any other category you identify in response to Question 1 above?
(5) Are the final manufacturing process and the immediately preceding manufacturing stage different for different types of products made from similar materials (
(6) Certain DOT OAs have long provided definitions of “manufacturing processes” in their implementing regulations for Buy America requirements. For example, FTA's regulation at 49 CFR 661.3, which it applies to manufactured products, states: “[T]he application of processes to alter the form or function of materials or of elements of the product in a manner adding value and transforming those materials or elements so that they represent a new end product functionally different from that which would result from mere assembly of the elements or materials.” FHWA's regulation for steel and iron materials at 23 CFR 635.410(b)(1) applies to all “manufacturing processes, including application of a coating, for these materials must occur in the United States. Coating includes all processes which protect or enhance the value of the material to which the coating is applied.” Should the same (or a similar) definition of a manufacturing process apply to the final manufacturing process and the immediately preceding manufacturing stage for construction materials commonly used in DOT-funded projects? If not, why not, and is there another standard for manufacturing processes that might be more appropriate to apply to construction materials?
(7) Are there some items in OMB's list of construction materials that typically are used in DOT-funded projects only after they have been combined into a manufactured product? For example, is glass regularly used by itself as a construction material, or does it usually arrive at a project already incorporated with other materials as a manufactured product?
(8) FTA already has an established procedure for bidders or offerors to certify the origin of steel and iron and manufactured products in its implementing regulation at 49 CFR 661.6. Should FTA require the same procedure to assure the origin of construction materials for FTA-funded projects? If not, what should FTA do differently?
(9) Under FHWA-funded programs, State DOTs are responsible for Buy America compliance, per 23 CFR 635.410(d). Bidders are required to comply with the project specifications, including Federal-aid projects with Buy America requirements. Most State DOTs require certifications/Step-certifications from bidders/contractors/suppliers to ensure compliance. Should FHWA continue to follow this process for certifying construction materials? If not, what should FHWA do differently?
(10) A commenter on DOT's proposed temporary Buy America waiver for construction materials stated that “the ability to certify materials will grow over time, so there should be a good faith certification process that can be refined over time.” What would such a “good faith certification process” that can be implemented in the near term (
(11) Is the standard in the OMB Initial Implementation Guidance sufficiently clear to enable a bidder or offeror for a DOT-funded project to certify the construction materials to be used in the project are produced in the United States? If not, what further clarification is needed?
(12) Are there construction materials commonly used in DOT-funded projects for which suppliers or manufacturers cannot readily determine or trace the country of origin of the final manufacturing process and the immediately preceding manufacturing stage? Are there records or documentation already in use that could serve as evidence of the origin of these to manufacturing processes (
(13) Are there any construction materials commonly used in DOT-funded projects that are known not to be produced in the United States based on OMB's final manufacturing process and the immediately preceding manufacturing stage standard, or are known not to be produced in sufficient quantity or of satisfactory quality? What is the basis for that knowledge?
(14) Which construction materials commonly used in DOT-funded projects currently are produced in the United States in sufficient and reasonably available amount and of satisfactory quality? Please feel free to provide any additional information on how production of these construction materials in the United States supports the regional or local economy or workforce.
(15) Are there construction materials commonly used in DOT-funded projects that are produced in the United States but subject to supply constraints? Please be specific regarding lead times or delays that will be experienced on DOT-
(16) Are there construction materials commonly used in DOT-funded projects that previously were not produced in the United States but are currently produced in the United States or are in the process of “onshoring” as a result of recent statutory, regulatory, or market changes?
Confidential Business Information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this RFI contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this RFI, it is important that you clearly designate the submitted comments as CBI. You may ask DOT to give confidential treatment to information you give to the Department by taking the following steps: (1) Mark each page of the original document submission containing CBI as “Confidential”; (2) send DOT, along with the original document, a second copy of the original document with the CBI deleted; and (3) explain why the information you are submitting is CBI. Unless you are notified otherwise, DOT will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this RFI. Submissions containing CBI should be sent to Darren Timothy, Office of the Assistant Secretary for Transportation Policy, 1200 New Jersey Avenue SE, OST P-20, Washington, DC 20590. Any comment submissions that the DOT receives that are not specifically designated as CBI will be placed in the public docket for this matter.
Notice and request for comment.
The Community Development Financial Institutions Fund (CDFI Fund) at the Department of the Treasury requests comments from the public regarding the criteria to designate a certified Community Development Financial Institution (CDFI) as a Minority Lending Institution (MLI). Unless otherwise noted, capitalized terms found in this notice are defined in the regulations that govern the CDFI Program.
Written comments must be received on or before November 25, 2022 to be assured of consideration.
You may submit comments via the Federal eRulemaking Portal:
For further information, contact Jeff Merkowitz, Senior Advisor, CDFI Fund, 1500 Pennsylvania Avenue NW, Washington, DC 20220 or by email at
Pursuant to section 523 of Division N of the Consolidated Appropriations Act, 2021, Public Law 116-260 (the Act), an MLI is a CDFI that (i) directs a majority of its financial products to minority populations or communities; and (ii) either (a) is a Minority Depository Institution (MDI) or (b) demonstrates accountability to Minority populations. Although no federal funding will be associated with an MLI designation at this time, the CDFI Fund seeks to implement the designation for those CDFIs that wish to be recognized for their high levels of service and accountability to Minority populations, as well as to identify barriers such CDFIs experience in providing access to capital. A list of designated MLIs will be made available to the public via the CDFI Fund website.
Through this request for comment, the CDFI Fund seeks feedback from the public on certain aspects of the criteria and process the CDFI Fund will use to designate a CDFI as an MLI, as listed in Section I. The CDFI Fund also seeks any additional information beyond these questions that members of the public believe would assist the CDFI Fund in establishing policies and procedures related to MLI designation. The CDFI Fund will consider the feedback received through this request for comment prior to establishing a final definition and designation process.
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Because of the Act's requirement to include “any” members of the listed Minority populations, this definition differs slightly from some of the definitions for Native populations used by the CDFI Fund in its other programs, most significantly in the absence of any residential requirement for Native Alaskans or Native Hawaiians. For example, for Target Market purposes and as part of the Native Initiatives program, the CDFI Fund recognizes the following Other Targeted Populations: “Native American/American Indian
1. Are the proposed definitions of “Minority” and “Majority-Minority Census Tracts” appropriate for the purposes of designating an MLI?
In accordance with the Act's definition of MLI, the CDFI Fund is considering the following criteria to designate a CDFI as an MLI.
1. Is a rolling 36-month period the appropriate length of time to assess an applicant's track record of serving Minorities or Majority-Minority Census Tracts for the purposes of designating a CDFI an MLI? Should the CDFI Fund instead require applicants to meet this requirement using some other time period, either upon initial designation or to maintain the designation? If yes, what is an appropriate time period?
2. The Act requires that an MLI must direct a majority of its financial products “at minorities or majority-minority census tracts or equivalents.” Should the CDFI Fund assess Financial Products delivered to legal entities that are not owned or controlled by Minority individuals to finance projects such as affordable housing, child care centers, charter schools, or health centers that are not located within a Majority-Minority Census Tract but whose end-beneficiaries (
Under current practice, a CDFI must demonstrate accountability to the Target Market it serves through representation on its governing board or advisory board. For a CDFI serving a Minority Targeted Population, a board member must be a member of that Minority population to count towards the accountability requirements. When assessing whether an advisory board provides accountability to Minority populations, the CDFI Fund reviews each board member and also considers the following factors: how often the advisory board meets (must be at least bi-annually); how the advisory board members were selected; how advisory board members obtain input from Minority populations; and how the advisory board input is incorporated into the organization's governing board's decision-making processes.
The CDFI Fund is considering whether non-MDI CDFIs seeking MLI status should demonstrate accountability to Minority populations through Minority representation on the CDFI's governing board or advisory board. The CDFI Fund seeks comment on whether to require that a
In addition, the CDFI Fund is considering whether to allow a CDFI's executive staff to demonstrate accountability to Minority populations for the purpose of an MLI designation. Currently, for CDFI certification purposes, principals or staff members of an applicant organization or its Subsidiaries, Affiliates, or investors, or whose family members are principals or staff members, cannot be used to demonstrate Target Market accountability, as it is considered a conflict of interest.
For example, one approach could be for the CDFI Fund to establish the following options to meet the accountability criteria for designating an MLI.
1. Should a majority (greater than 50 percent) of a CDFI's governing board members be required to be members of Minority populations to demonstrate accountability to Minority populations? Specifically, the CDFI Fund requests comments on whether it should set a standard higher than the 33 percent level proposed separately for Native
2. Should there be options for CDFIs to meet the accountability requirement through a lower threshold of Minority representation on a CDFI's governing board? If yes, what level of representation is appropriate?
3. Alternatively, is a standard of 33 percent Minority representation for a CDFI's governing board members in combination with 66 percent for a CDFI's advisory board (with at least one governing board member serving on the advisory board) appropriate to demonstrate accountability to Minority populations?
4. Given the regulatory requirements for the governing board composition of regulated financial institutions, as well as the absence of governing boards for some privately held entities, should there also be an option for non-MDI regulated entities or privately held entities without a governing board to demonstrate accountability for the purposes of MLI designation? If yes, what standard should be used?
5. Should the CDFI Fund allow a CDFI's principals or executive staff (meaning all directors and executive officers vested with the powers to manage and supervise the day-to-day affairs of an organization) to demonstrate accountability to Minority populations, either as an alternative to accountability through a governing board or in combination with a lower threshold of representative governing board members? If yes:
a. Which and how many of a CDFI's executive staff members should be necessary to demonstrate accountability to Minority populations, and in what combination with the CDFI's governing board?
b. The use of executive staff or principals to demonstrate accountability to a Minority population may be undermined due to the principal's or executive staff member's financial relationship to the organization. Are there any appropriate safeguards to mitigate such a conflict between the interests of a principal or executive staff member and the Minority community to which they are to be accountable? If yes, what are some safeguards?
6. Should the CDFI Fund allow the ownership of a CDFI to demonstrate accountability to Minority populations, either as an alternative to accountability through a governing board or in combination with a lower threshold of representative governing board members? If yes, should accountability mirror the MDI definition (
7. Should the CDFI Fund allow the composition of a CDFI's loan committees to demonstrate accountability to Minority populations, either as an alternative to accountability through a governing board or in combination with a lower threshold of representative governing board members? If yes, how many members of a CDFI's loan committee should be necessary to demonstrate accountability to Minority populations, and in what combination with the CDFI's governing board?
8. If a CDFI serves multiple Minority populations, for purposes of the MLI designation should it be required to have board or other representation reflective of each of the Minority populations it serves? If yes, how should the share of board or other representation for each Minority population the CDFI serves be determined?
9. The CDFI Fund is also considering the relationship between the standards for designation as an MLI and those for designation as a Native CDFI. To what extent should the two align?
a. Should status as a Native MDI automatically qualify as an accountability criterion for designation as a Native CDFI?
b. Should the status as a Native MDI automatically qualify as an accountability criterion if the CDFI also serves other Minority populations?
10. Should MLIs be able to demonstrate accountability through means other than those identified above? If yes, how?
In addition to the questions above, the CDFI Fund welcomes public comment on any aspect of the process or substance of the MLI designation. Is there additional information that the CDFI Fund should consider in the MLI designation process? If yes, please describe.
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on a continuing information collection, as required by the Paperwork Reduction Act of 1995 (PRA). In accordance with the requirements of the PRA, the OCC may not conduct or sponsor, and respondents are not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OCC is soliciting comment concerning the renewal of its information collection titled, “Municipal Securities Dealers and Government Securities Brokers and Dealers—Registration and Withdrawal.” The OCC also is giving notice that it has sent the collection to OMB for review.
You should submit written comments by August 29, 2022.
Commenters are encouraged to submit comments by email, if possible.
You may submit comments by any of the following methods:
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Written comments and recommendations for the proposed information collection should also be sent within 30 days of publication of this notice to
On May 16, 2022, the OCC published a 60-day notice for this information collection, 87 FR 29782. You may review comments and other related materials that pertain to this information collection following the close of the 30-day comment period for this notice by the method set forth in the next bullet.
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Shaquita Merritt, Clearance Officer, (202) 649-5490, Chief Counsel's Office, Office of the Comptroller of the Currency, 400 7th Street SW, Suite 3E-218, Washington, DC 20219. If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.
Under the PRA, Federal agencies must obtain approval from the OMB for each collection of information that they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) to include obtaining, causing to be obtained, soliciting, or requiring the disclosure to an agency of information by means of identical questions posed to, or identical reporting, recordkeeping, or disclosure requirements imposed on, ten or more persons. The OCC asks that OMB extend its approval of the collection in this notice.
On May 16, 2022, the OCC published a 60-day notice for this information collection, 87 FR 29782. No comments were received. Comments continue to be invited on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the OCC, including whether the information has practical utility;
(b) The accuracy of the OCC's estimate of the information collection burden;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Office of Foreign Assets Control, Treasury.
Notice.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the name of one person that has been removed from the List of Specially Designated Nationals and Blocked Persons (SDN List).
See
OFAC: Andrea Gacki, Director, tel.: 202-622-2490; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or the Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On July 14, 2022, OFAC determined that circumstances no longer warrant the inclusion of the following person on
Internal Revenue Service (IRS), Treasury.
Notice.
This notice is provided in accordance with IRC section 6039G of the Health Insurance Portability and Accountability Act (HIPAA) of 1996, as amended. This listing contains the name of each individual losing United States citizenship (within the meaning of section 877(a) or 877A) with respect to whom the Secretary received information during the quarter ending June 30, 2022. For purposes of this listing, long-term residents, as defined in section 877(e)(2), are treated as if they were citizens of the United States who lost citizenship.
Departmental Offices, Department of the Treasury.
Notice of information collection, request for comment.
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 August 29, 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 Melody Braswell by emailing
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Notice.
The Department of Veterans Affairs (VA), National Cemetery Administration (NCA), is seeking nominations of qualified candidates to be considered for appointment as a member of the Advisory Committee on Cemeteries and Memorials (herein-after in this section referred to as “the Committee”).
Nominations of qualified candidates are being sought to fill upcoming vacancies on the Committee. Nominations for membership on the Committee must be received
All nominations should be mailed to C/O Faith Hopkins, Department of Veterans Affairs, National Cemetery Administration, 810 Vermont Ave. NW, (40A1), Washington, DC 20420, or faxed to (202) 273-6709.
Ms. Faith Hopkins, National Cemetery Administration, Department of Veterans Affairs, 810 Vermont Ave. NW, (40A1), Washington, DC 20420, telephone (202) 603-4499. A copy of Committee charter and list of the current membership can be obtained by contacting Ms. Hopkins or by accessing the website managed by NCA at:
In carrying out the duties set forth, the Committee responsibilities include:
(1) Advising the Secretary on VA's administration of burial benefits and the selection of cemetery sites, the erection of appropriate memorials, and the adequacy of Federal burial benefits;
(2) Providing to the Secretary and Congress periodic reports outlining recommendations, concerns, and observations on VA's delivery of these benefits and services to Veterans;
(3) Meeting with VA officials, Veteran Service Organizations, and other stakeholders to assess the Department's efforts in providing burial benefits and outreach on these benefits to Veterans and their dependents;
(4) Undertaking assignments to conduct research and assess existing burial and memorial programs; to examine potential revisions or expansion of burial and memorial programs and services; and to provide advice and recommendations to the Secretary based on this research.
The members of the Committee are appointed by the Secretary of Veteran Affairs from the general public, including but not limited to:
(1) Veterans or other individuals who are recognized authorities in fields pertinent to the needs of Veterans;
(2) Veterans who have experience in a military theater of operations;
(3) Recently separated service members;
(4) Officials from Government, non-Government organizations (NGOs) and industry partners in the provision of memorial benefits and services, and outreach information to VA beneficiaries.
To the extent possible, the Secretary seeks members who have diverse professional and personal qualifications, including but not limited to prior military experience and military deployments, experience working with Veterans, and experience in large and complex organizations, and subject matter expertise in the areas described above. We ask that nominations include information of this type so that VA can ensure diverse Committee membership.
(1) A letter of nomination that clearly states the name and affiliation of the nominee, the basis for the nomination (
(2) The nominee's contact information, including name, mailing address, telephone numbers, and email address;
(3) The nominee's curriculum vitae; and
(4) A summary of the nominee's experience and qualifications relative to the membership considerations described above.
Individuals selected for appointment to the Committee shall be invited to serve a two-year term. Committee members will receive a stipend for attending Committee meetings, including per diem and reimbursement for travel expenses incurred.
The Department makes every effort to ensure that the membership of VA federal advisory committees is diverse in terms of points of view represented and the committee's capabilities. Appointments to this Committee shall be made without discrimination because of a person's race, color, religion, sex, sexual orientation, gender identify, national origin, age, disability, or genetic information. Nominations must state that the nominee is willing to serve as a member of the Committee and appears to have no conflict of interest that would preclude membership. An ethics review is conducted for each selected nominee.
Office of Postsecondary Education, Department of Education.
Notice of proposed rulemaking.
The Secretary proposes to amend regulations for the Federal Pell Grant program, institutional eligibility, and student assistance general provisions. First, the Secretary proposes to establish regulations for Federal Pell Grants (Pell Grants or Pell) for Prison Education Programs (PEPs), to implement new statutory requirements to establish Pell Grant eligibility for a confined or incarcerated individual enrolled in a PEP. Second, the Secretary proposes to revise the Title IV Revenue and Non-Federal Education Assistance Funds regulations (referred to as “90/10” or the “90/10 Rule”) to implement the statutory change in the American Rescue Plan Act of 2021 (ARP). The Secretary further proposes to amend which non-Federal funds can be counted when determining compliance with the 90/10 rule to align allowable non-Federal revenue more closely with statutory intent. Finally, the Secretary proposes regulations to clarify the process for consideration of changes in ownership and control, to promote compliance with the Higher Education Act of 1965, as amended (HEA), and related regulations and reduce risk for students and taxpayers, as well as institutions contemplating or undergoing such a change.
We must receive your comments on or before August 26, 2022.
Comments must be submitted via the Federal eRulemaking Portal at
The Department strongly encourages you to submit any comments or attachments in Microsoft Word format. If you must submit a comment in Adobe Portable Document Format (PDF), the Department strongly encourages you to convert the PDF to “print-to-PDF” format, or to use some other commonly used searchable text format. Please do not submit the PDF in a scanned format. Using a print-to-PDF format allows the Department to electronically search and copy certain portions of your submissions to assist in the rulemaking process.
For PEPs: Aaron Washington. Telephone (202) 453-7241. Email:
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
The Department convened two negotiated rulemaking committees between October 4, 2021 and March 18, 2022
On July 13, 2022, the Department published in the
These proposed regulations address three topics: Pell Grants for PEPs, the 90/10 rule, and institutional changes in ownership. The proposed PEP regulations, on which the Affordability and Student Loans Committee reached consensus, would implement statutory changes that extend Pell Grant eligibility to confined or incarcerated individuals who enroll in qualifying PEPs. The proposed 90/10 regulations, on which the Institutional and Programmatic Eligibility Committee reached consensus, would implement statutory changes that require proprietary institutions to obtain at least 10 percent of their revenue from sources other than Federal education assistance funds and would more closely align allowable non-Federal revenue with statutory intent. Finally, the Department proposes revisions to current regulations related to changes in ownership to ensure a clearer and more defined process.
The proposed PEP regulations would provide the Department and stakeholders, including students, correctional agencies and institutions, postsecondary institutions, accrediting agencies, and related organizations, with a detailed and clear framework for how to implement section 484(t) of the HEA. The Department is proposing to amend the regulations in §§ 600.2, 600.10, 600.21, 668.8, 668.32, 668.43, 668 subpart P, and 690.62. A new legal provision takes effect July 1, 2023, that addresses prison education programs (PEP). Section 484(t) of the HEA will provide PEP requirements that include: (1) a prohibition on proprietary institutions offering PEPs; (2) the definitions of a “confined or incarcerated individual” and a “prison education program”; (3) the program approval process by the Bureau of Prisons, State Department of Corrections, or other entity that is responsible for overseeing the correctional facility (these entities are referred to throughout this NPRM as the oversight entity); (4) a credit transfer requirement for prison education programs; (5) a prohibition against program offerings by institutions that are subject to adverse actions by the Department, their accrediting agency, or the relevant State; (6) requirements that prison education programs offer educational programming that satisfies professional licensure or certification, as applicable; (7) student enrollment restrictions for programs in which there would be prohibitions on ultimate licensure or employment; (8) the requirement that confined or incarcerated individuals be enrolled in an eligible prison education program in order to access a Pell Grant; and (9) various Department reporting requirements for postsecondary institutions offering prison education programs.
The proposed regulations would clarify and implement these statutory requirements by setting clear standards for postsecondary institutions offering PEPs and outlining the steps that must be taken to develop and implement such programs in order to gain access to Pell Grant funds and maintain that access over time. The proposed regulations would also ensure that institutions report needed data to the Department, which would assist in assessing program outcomes. The proposed rule would establish important guardrails for confined or incarcerated students and taxpayers to protect students from enrolling in programs that would not permit them to benefit by finding employment in the field after graduating and being released and to prevent taxpayer funds from financing such programs. It would also outline title IV program requirements for PEPs related to States and accrediting agencies.
Section 484(t)(1)(B)(iii) of the HEA requires an oversight entity, defined in the proposed regulations as a state department of corrections or other entity responsible for overseeing correctional facilities or the Federal Bureau of Prisons, to determine that a prison education program that it approves is “operating in the best interest” of the confined or incarcerated students under its supervision. Congress outlined indicators of “best interest”—both inputs and outcomes—which are explained in the SUMMARY OF PROPOSED CHANGES section below. Because oversight entities may not have previously assessed some of the “best interest” indicators outlined in statute, such as student earnings and job placement post-release, the proposed regulations would provide needed clarity on how to implement this requirement. To ensure that program assessment is thorough and well-informed, these regulations would require oversight entities to seek input from relevant stakeholders in making the “best interest” determination.
The proposed 90/10 regulations would amend § 668.28 to change how proprietary institutions calculate and report to the Department the percentage of their revenue that comes from Federal sources, in accordance with section 487(a) of the HEA. Section 487(a) establishes the requirement that proprietary institutions derive not less than 10 percent of their revenue from non-Federal sources. Section 487(d) of the HEA: (1) defines how proprietary institutions calculate the percentage of their revenue that is derived from non-Federal sources; (2) sets out sanctions for proprietary institutions that fail to meet the requirement in section 487(a); (3) requires the Secretary to publicly disclose on the College Navigator website proprietary institutions that fail to meet the requirement; and (4) requires that the Secretary submit a report to Congress that contains the Federal and non-Federal revenue amounts and percentages for each proprietary institution.
The ARP amended these sections to require proprietary institutions to include other sources of Federal revenue, in addition to title IV revenue from the Department, in the calculation that proprietary institutions make to determine if they are in compliance with the 90/10 rule. These proposed regulatory amendments would align the regulations with this statutory change and provide periodic updates to proprietary institutions regarding which Federal funds should be included in their calculations.
Additionally, the proposed regulations would amend how proprietary institutions calculate 90/10 to address the permissibility of practices that some proprietary institutions have employed to alter their revenue calculation or inflate their non-Federal revenue percentage. The NPRM would create a new requirement for when proprietary institutions must request and disburse title IV student aid funds from the Department to ensure that proprietary institutions are not delaying disbursements to the next fiscal year. The proposed regulations would also more closely align allowable non-Federal revenue with statutory intent by clarifying (1) allowable non-Federal revenue generated from programs and activities that can count for the purposes of 90/10; (2) how schools must apply Federal funds to student accounts and determine the funds' inclusion in the Federal revenue percentage of 90/10; (3) which revenue generated from institutional aid can count as non-Federal revenue for purposes of 90/10; and (4) funds that must be excluded from the calculation determining 90/10 compliance.
The proposed regulations would also modify the steps that proprietary institutions must take if they fail to derive at least 10 percent of their revenue from allowable non-Federal sources by requiring them to notify students of the failure and the students'
To address the risks that some changes in ownership of postsecondary institutions present to students and taxpayers and to address the growing complexity of those transactions, the Department proposes under the authority of section 498(i) of the HEA to amend regulations covering changes in ownership in §§ 600.2, 600.4, 600.20, 600.21, and 600.31. These changes would modify the definitions of “additional location,” “branch campus,” “main campus,” “distance education” locations, and “nonprofit institution,” as well as the terms “closely-held corporation,” “ownership or ownership interest,” “parent,” “person,” and “other entities” in the context of changes in ownership that result in a change in control, where the individual or entity with control has the power to direct the management or policies of the institution.
Institutions would be required to provide a minimum 90-day notice to the Department when they are to undergo a change in control, and the Department may apply necessary terms to a proposed new temporary provisional Program Participation Agreement (TPPPA) after the change and until a decision on the pending application for approval of the change is issued. The proposed regulations would also increase transparency for changes in ownership that do not constitute a change of control by increasing the reporting requirements to the Department on such transactions at lower levels.
The proposed regulations would make the following changes.
• Make updates to appropriate cross-references. Prison Education Programs (PEP) (§§ 600.2, 600.7, 600.10, 600.21, 668.8, 668.32, 668.43, 668.234-242, 690.62)
• Extend access to Pell Grants for confined or incarcerated individuals in qualifying postsecondary education programs by defining an eligible PEP based on the statutory requirements.
• Clarify that only public or private nonprofit institutions as defined in § 600.4, or vocational institutions as defined in § 600.6, may offer eligible PEPs and require that those PEPs offered at a correctional institution be reported to the Department as an “additional location.”
• Amend requirements for postsecondary institutions to obtain and maintain a waiver from the Secretary to allow students who are confined or incarcerated to exceed 25 percent of the institution's regular student enrollment.
• For a PEP that is designed to meet educational requirements for a specific professional license or certification, require disclosures to students of typical State or Federal prohibitions on the licensure or employment of formerly incarcerated individuals.
• Prohibit institutions from enrolling a confined or incarcerated individual in a PEP that is designed to lead to licensure or employment in a specific job or occupation where State or Federal law would prohibit that individual from licensure or employment based on the type of the criminal conviction for which the student has been confined or incarcerated.
• Define the process and the factors that the oversight entity would use to determine if a PEP is operating in the best interest of the confined or incarcerated individuals over which they have supervision, including consulting with interested third parties and conducting periodic re-evaluations.
• Define the requirements for approval from the Secretary and the IHE's accrediting agency for the first PEP at the institution's first two additional locations at prison facilities.
• Require a postsecondary institution to obtain and report to the Department the release or transfer date of all confined or incarcerated individuals who participated in its PEP.
• Outline the process for winding down eligible programs for confined or incarcerated individuals prior to July 1, 2023, that are not operating at a Federal or State correctional facility and are not approved as eligible prison education programs.
• Outline the process a postsecondary institution must follow to reduce a Pell Grant award that exceeds the confined or incarcerated individual's cost of attendance. Title IV Revenue and Non-Federal Education Assistance Funds (90/10 Rule) (§ 668.28)
• Revise the revenue calculation methodology in the 90/10 rule by changing references to “title IV revenue” to “Federal revenue” where appropriate to align with the statutory amendment that revises the 90/10 revenue requirement to include all Federal revenue.
• Outline how the Department would publish, and update as necessary, which Federal funds it expects proprietary institutions to include in their 90/10 calculation.
• Create a new requirement for when proprietary institutions must request and disburse title IV, HEA program funds to prevent proprietary institutions from delaying disbursements to reduce their Federal revenue percentage for a fiscal year in order to meet the 90/10 revenue requirement.
• Clarify the allowable revenue generated from programs and activities that can be counted as non-Federal revenue for purposes of the 90/10 revenue requirement to provide additional consumer protection.
• Revise how proprietary institutions apply funds to student accounts and determine the funds' inclusion in the 90/10 revenue requirement calculation to incorporate statutory changes, clarify how grants from non-Federal public agencies that include Federal funds must be treated, and add additional consumer protection measures.
• Revise the provisions governing which revenue generated from institutional aid can be included in the 90/10 revenue requirement calculation to remove sections that are no longer applicable, codify existing practices in regulation, promote consumer protection measures, and close potential loopholes related to Income Share Agreements (ISAs) or other alternative financing agreements issued by the institution or a related party.
• Revise the provisions governing which funds must be excluded from a proprietary institution's calculation of its revenue percentage to remove regulations that no longer apply and to limit certain types of revenues that proprietary institutions have employed to alter their revenue calculation.
• Revise the steps that a proprietary institution must take to better protect students and taxpayers if it does not generate 10 percent or more of its revenue from allowable non-Federal sources in a fiscal year. The proposed regulations would also provide reporting procedures for proprietary institutions that learn, based on information received after the initial 45-day reporting period, that they failed the revenue requirement for the previous fiscal year.
• Clarify the definitions of “additional location,” “branch campus,” “main campus,” “distance education” locations, and “nonprofit institution” and, for the last term, describe characteristics of institutions that do not generally meet the definition of a “nonprofit institution.”
• Require that institutions provide the Department with 90 days' notice of an impending change in ownership, ensure that accreditation and State licensure are in effect as of the day before the proposed change, and codify practices on submission of financial statements and provision of financial protection.
• Explain the terms by which a TPPPA may be extended to institutions seeking a change in ownership.
• Clarify what constitutes a change in ownership and, more narrowly, a change in control, distinguishing between natural persons and entities in § 600.21 and the conditions under which they constitute a change of control.
• Refine the definitions of the terms “ownership or ownership interest,” “parent,” and “other entities,” as applied to changes in ownership, and add “trust” to the definition of “person.”
• Add to the list of covered transactions the acquisition of another institution and clarify the application of the regulations in cases of resignation or death of an owner.
Proposed PEP regulations would benefit incarcerated individuals, taxpayers, and communities by creating higher employment and earnings, and lower recidivism rates, for those who enroll in higher education programs in prison, as described in the Regulatory Impact Analysis of this proposed regulation. Institutions that offer programs in correctional facilities and do not currently receive Pell Grants sometimes bear some or all of the costs of that programming. Institutions that do not currently receive Pell funds for these programs would benefit from these revisions. Pell Grant transfers are estimated to increase by $1.1 billion from these programs. There would be increased costs for the Department due to various requirements in the proposed regulations including, but not limited to: data collection and dissemination, approval of prison education programs, and required reporting to Congress and the public. There would be increased costs to the oversight entity due to the required “best interest determination” defined in proposed 34 CFR 668.241. There would be no direct costs to students, completing the FAFSA® is free (though there is some burden associated with completing the form) and Pell Grant program does not need to be repaid.
Under the proposed 90/10 revisions, veteran borrowers and students would benefit as proprietary institutions' incentive to aggressively recruit GI Bill and Department of Defense (DOD) Tuition Assistance recipients would be greatly reduced because Federal assistance for those students was treated differently than title IV funds in the 90/10 revenue calculation. The Department is aware that some proprietary institutions have sought to enroll additional VA or DOD recipients because their dollars provide a larger cushion to pursue more title IV, HEA funds, sometimes to the detriment of those veterans and service members. The proposed regulatory changes would remove that incentive by counting all Federal education assistance funds on the 90 side of the 90/10 calculation. These changes would produce some savings to the taxpayer in the form of reduced expenditures of title IV, HEA aid to institutions that are not able to adapt and would lose eligibility. As indicated in the RIA, we estimate transfers would be reduced by −$292 million from the changes to the 90/10 provisions. The proposed revisions would further decrease proprietary institutions' incentive to rely on potentially costly student financing options to meet 90/10 requirements. Costs to institutions would include the need to ensure compliance with the proposed regulations. Institutions unable to generate sufficient non-Federal revenues through their eligible program may have to create programs that are not title IV eligible to generate revenue to meet 90/10 requirements.
The proposed revisions to CIO would benefit institutions and the Department by clarifying requirements as well as providing timely feedback for those undergoing CIO transactions. Students and borrowers would benefit from the 90-day CIO notice requirement that ensures students receive important information timely that would impact their education and that they can make future educational decisions based on that knowledge. Costs to institutions would include compliance and the paperwork burden associated with the increased reporting and disclosure requirements.
We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these proposed regulations. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the Department's programs and activities. The Department also welcomes comments on any alternative approaches to the subjects addressed in the proposed regulations.
During and after the comment period, you may inspect public comments about these proposed regulations by accessing
The Pell Grant program was established in 1972. Pell Grants are awarded to undergraduate students who document financial need and who have not earned a bachelor's, graduate, or professional degree. A Pell Grant does not have to be repaid, except under certain circumstances.
Pell Grant eligibility for confined or incarcerated students has changed over time. Before 1994, individuals in correctional facilities were able to receive Pell Grants. Thereafter, the Violent Crime Control and Law Enforcement Act of 1994 (Pub. L. 103-322) made individuals confined or
A growing body of research has demonstrated the value of quality higher education programs for confined or incarcerated individuals. Incarcerated people who participate in postsecondary education programs are 48 percent less likely to return to prison than those who do not.
In 2015, the Department used its authority under the HEA to allow a limited number of postsecondary institutions to seek a waiver of the statutory restriction on Pell Grant eligibility for confined or incarcerated students. Conducted under the Department's Experimental Sites Initiative authority, this experimental waiver is known as the Second Chance Pell experiment.
The First Step Act of 2018 (Pub. L. 115-391) sought to improve criminal justice outcomes, as well as to reduce the size of the Federal prison population while also creating mechanisms to maintain public safety. It required the Federal government to develop frameworks around recidivism reduction, including a provision about educational programs, to offer incentives for success of confined or incarcerated individuals, and Federal correctional reforms, among other things.
The Consolidated Appropriations Act, 2021 added section 484(t) to the HEA to formally establish Pell Grant eligibility for confined or incarcerated individuals, as long as they are enrolled in a PEP as defined under the HEA. We propose regulations to implement the statutory requirements allowing access to Federal Pell Grants for individuals who are confined or incarcerated when enrolled in programs that meet necessary standards.
The HEA has required that proprietary institutions derive a minimum percentage of their revenue from non-title IV sources since the Higher Education Amendments of 1992.
Proprietary institutions are required to report, as a footnote in their audited financial statements, the percentage of their revenue derived from title IV, HEA program funds for the fiscal year, the dollar amount of the numerator and denominator of the ratio, and the individual revenue amounts from the sources of allowable title IV and non-title IV funds. They must also notify the Secretary within 45 days after the end of their fiscal year if they fail to meet the 90/10 requirement for that fiscal year. When the 85/15 statutory provision became effective in 1995, proprietary institutions became ineligible to participate in the title IV program after failing to meet the revenue requirement for one year. The Higher Education and Opportunity Act of 2008 (HEOA) amended this so that proprietary institutions would only lose eligibility to participate in the title IV programs if they failed for two consecutive fiscal years.
Over the last decade, lawmakers and other stakeholders have raised concerns that counting Federal funds provided by the Department of Defense (DOD) and the Department of Veterans Affairs (VA) as non-title IV revenue resulted in some proprietary institutions aggressively marketing their programs to service members and veterans, as well as military-connected family members.
In 2021, the ARP modified the 90/10 calculation by requiring proprietary institutions to derive at least 10 percent of their revenue from non-Federal sources (as opposed to non-title IV funds). The Department's proposed regulations implement those changes and more closely align the 90/10 calculation with the statutory intent of the provision.
In recent years the Department has seen an increase in the number of institutions applying for changes in ownership, many of which result in a change in the entity or persons controlling the institution and therefore
As reported in 2020 by the Government Accountability Office (GAO), between January 2011 and August 2020, of 59 changes of ownership (involving 20 separate transactions) involving a conversion from a for-profit entity to a nonprofit entity, one entire chain that comprised 13 separate institutions was granted temporary continued access to title IV, HEA aid, but ceased operations prior to the Department reaching a decision on whether to approve the requested conversion to nonprofit status.
Based on the GAO report and other information, the Department has determined it is necessary to reevaluate the relevant policies to accommodate the increased complexity of changes in ownership arrangements and to mitigate the greater risk to students and taxpayers when institutions fail to meet Federal requirements. These proposed regulations would clarify the existing definition of a “nonprofit institution” to ensure particularly that institutions converting from proprietary status meet the standards to qualify as a nonprofit, including to avoid providing net earnings of the institution to a private entity or person; establish clearer up-front requirements for applications for changes in ownership; and provide for greater clarity in the procedures the Department follows in reviewing changes in ownership for continued eligibility for title IV aid.
The Department has significantly engaged the public in developing this NPRM, including through review of oral and written comments submitted by the public during four public hearings. During each negotiated rulemaking session, we provided opportunities for public comment at the end of each day. Additionally, during each negotiated rulemaking session, non-Federal negotiators obtained feedback from their stakeholders that they shared with the negotiating committee.
On May 26, 2021, the Department published a notice in the
The Department developed a list of proposed regulatory provisions for an Affordability and Student Loans Committee (Committee 1) and an Institutional and Programmatic Eligibility Committee (Committee 2) based on advice and recommendations submitted by individuals and organizations in testimony at three virtual public hearings held by the Department on June 21 and June 23-24, 2021. An additional virtual public hearing on the 90/10 rule was held on October 26-27, 2021.
Additionally, the Department accepted written comments on possible regulatory provisions that were submitted directly to the Department by interested parties and organizations. You may view the written comments submitted in response to the May 26, 2021,
Transcripts of the public hearings can be accessed at
Section 492 of the HEA, 20 U.S.C. 1098a, requires the Secretary to obtain public involvement in the development of proposed regulations affecting programs authorized by title IV of the HEA. After obtaining extensive input and recommendations from the public, including individuals and representatives of groups involved in the title IV, HEA programs, the Secretary, in most cases, must engage in the negotiated rulemaking process before publishing proposed regulations in the
The Department held two separate negotiated rulemakings related to this NPRM. The negotiated rulemaking session for Committee 1 consisted of three rounds of negotiations that lasted five days each, as well as two subcommittee meetings specific to the PEP proposed regulations that lasted three days each. The negotiated rulemaking session for Committee 2 consisted of three rounds of negotiations, the first of which was held over four extended days, while the latter two were five days each.
With respect to Committee 1, on August 10, 2021, the Department published a notice in the
Committee 1 included the following members, representing their respective constituencies:
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The Department also invited nominations for two advisors. These advisors were not voting members of Committee 1 and did not impact the consensus vote; however, they were consulted and served as a resource. The advisors were:
• Rajeev Darolia, University of Kentucky, for issues related to economic and/or higher education policy analysis and data.
• Heather Jarvis, Fosterus, for issues related to qualifying employers on the topic of Public Service Loan Forgiveness.
The Subcommittee included the following members, representing their respective constituencies:
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Committee 1 met to develop proposed regulations in October, November, and December 2021. During the second session, a Committee 1 member petitioned to add another constituency, State Departments of Corrections, to Committee 1 and the Subcommittee. Committee 1 voted to add that constituency to the groups represented at the Committee and Subcommittee.
The Department tasked the Subcommittee with making recommendations to the full Committee on issues related to PEPs. The Subcommittee met in October and November 2021.
At its first meeting, Committee 1 reached agreement on its protocols and proposed agenda. The protocols provided, among other things, that Committee 1 would operate by consensus. The protocols defined consensus as no dissent by any member of Committee 1 and noted that consensus votes would be taken issue by issue.
Committee 1 reviewed and discussed the Department's drafts of regulatory language and alternative language and suggestions proposed by negotiators and Subcommittee members. Two members of the Subcommittee briefed the committee on the Subcommittee's work and provided extensive written materials for Committee 1's consideration. At the final meeting on December 10, 2021, Committee 1 reached consensus on the Department's proposed regulations regarding PEPs. Committee 1 also reached consensus on three other issues that are not included in this publication: total and permanent disability discharge; elimination of interest capitalization for non-statutory capitalization events; and false certification discharge. For more information on the negotiated rulemaking sessions, including the work of the Subcommittee, please visit:
With respect to Committee 2, on December 8, 2021, the Department published a notice in the
Committee 2 included the following members, representing their respective constituencies:
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The Department also invited nominations for two advisors. These advisors were not voting members of the Committee; however, they were consulted and served as a resource. The advisors were:
• David McClintock, McClintock & Associates, P.C. for issues with auditing institutions that participate in the title IV, HEA programs.
• Adam Looney, David Eccles School of Business at the University of Utah, for issues related to economics, as well as research, accountability, and/or analysis of higher education data.
At its first meeting, Committee 2 reached agreement on its protocols and proposed agenda. The protocols provided, among other things, that Committee 2 would operate by consensus. The protocols defined consensus as no dissent by any member of Committee 2 and noted that consensus votes would be taken issue by issue. During its first week of sessions, Committee 2 was petitioned to add, and reached consensus on adding, a member from another constituency group, Civil Rights Organizations.
Committee 2 reviewed and discussed the Department's drafts of regulatory language and the alternative language and suggestions proposed by Committee 2 members. At the final meeting on March 18, 2022, Committee 2 reached consensus on the Department's proposed regulations regarding the 90/10 rule, but did not reach consensus on the proposed regulations for changes in ownership. For more information on the negotiated rulemaking sessions please visit
The proposed regulations would make the following changes to current regulations.
• Amend in § 600.2 the definition of “additional location” so that prison education programs offered at correctional facilities are properly reported to the Department.
• Amend in § 600.7 the requirements for an institution to obtain and maintain a waiver from the Secretary to allow students who are confined or incarcerated to exceed 25 percent of regular student enrollment. We also propose to consider the financial responsibility and administrative capability of postsecondary institutions in determining whether to grant a waiver.
• Amend § 600.10 to require that institutions seek approval from the Secretary prior to offering the first PEP at the first two additional locations at correctional facilities.
• Amend § 600.21 to require that institutions report the addition of any subsequent new PEP to the Secretary within 10 days of the program's establishment.
• Amend § 668.43 to require disclosure of typical State or Federal prohibitions on the licensure or employment of formerly confined or incarcerated individuals for a PEP that is designed to meet educational requirements for a specific professional license or certification.
• Create § 668.234, which would describe a scope and purpose for the new subpart P.
• Create § 668.235, which would define “advisory committee”, “feedback process”, “oversight entity”, and “relevant stakeholders”.
• Create § 668.236, which would define and set forth the requirements for an “eligible prison education program.”
• Create § 668.237, which would prescribe program evaluation and review requirements for the institution's accrediting agency or State approval agency.
• Create § 668.238, which would require the Secretary's approval of an institution's first PEP at the first two additional locations for purposes of participation in title IV programs. Applications for approval of subsequent PEPs would be subject to fewer requirements.
• Create § 668.239, which would require a postsecondary institution that offers an eligible prison education program to submit required reports to the Secretary and establish an agreement with the oversight entity to report information to the Secretary about the transfer and release of confined or incarcerated individuals enrolled in eligible prison education programs.
• Create § 668.240, which would set forth the Secretary's authority to limit or terminate approval of an institution's eligible PEP.
• Create § 668.241, which would define the “best interest” program assessment that must be conducted by the oversight entity at least two years after the postsecondary institution has continuously provided a PEP and the documentation requirements for such assessment.
After the initial “best interest” determination, subsequent assessments would be conducted not less than 120 calendar days prior to the expiration of each institution's Program Participation Agreement (PPA).
• Create § 668.242, which would prescribe the process for the winddown of eligible programs operating at a facility that is not a Federal or State correctional facility if those programs are not approved as eligible prison education programs.
• Amend § 690.62 to codify a statutory requirement that the Pell Grant award not exceed cost of attendance.
• Amend the heading of § 668.28 and references throughout the section to
• Modify § 668.28(a)(1) to provide for periodic publication of information identifying the sources of Federal funds proprietary institutions must include in their 90/10 calculation and clarify how the Department will alert them when new Federal funds must be counted in the calculation in subsequent years.
• Amend § 668.28(a)(2) to create a disbursement rule that outlines how proprietary institutions calculate the percentage of their revenue that is Federal revenue and creates an end-of-fiscal-year deadline for proprietary institutions to request and disburse title IV funds to students.
• Amend § 668.28(a)(3) to reflect which non-Federal revenue generated from programs and activities proprietary institutions may count in the calculation.
• Amend § 668.28(a)(4) to describe how proprietary institutions apply Federal funds to student accounts and determine the funds' inclusion in their revenue calculation.
• Amend § 668.28(a)(5) to specify what revenue generated from institutional activities proprietary institutions may count as non-Federal revenue.
• Remove outdated provisions in § 668.28(a)(6) that no longer impact the non-Federal revenue calculation.
• Redesignate § 668.28(a)(7) as § 668.28(a)(6) and amend the types of funds that proprietary institutions may not include in their revenue calculation.
• Amend § 668.28(c) to establish disclosures for proprietary institutions that fail to derive at least 10 percent of their fiscal-year revenues from allowable non-Federal funds, clarify reporting requirements, and clarify liabilities for institutions that lose access to title IV, HEA funds due to failing 90/10 for two consecutive years. Changes in Ownership (CIO) ((§§ 600.2, 600.4, 600.20, 600.21, 600.31) (Sections 101, 102, 103, 410, 498 of the HEA)).
• Add a definition of “main campus” in § 600.2 to clarify a commonly used term that is currently undefined.
• Amend the definitions of “additional location” and “branch campus” in § 600.2 to emphasize that they are physical locations within the ownership structure of the institution. These amendments would further clarify that an additional location participates in the title IV, HEA programs through the certification of the main campus, and a branch campus must be designated as such by the Department.
• To codify current practice, add under the definition of “distance education” in § 600.2 that, for institutions offering both on-campus instruction and distance education, the distance education programs are associated with the main campus where one or more approved educational programs are offered. For institutions offering only distance education, the location of the institution is where its administrative offices are located and approved by its accrediting agency.
• Clarify the definition of “nonprofit institution” in § 600.2 to reflect that no part of its net earnings may benefit a natural person or private entity. We would also specify that, in general, a nonprofit institution is not an obligor on a debt to a former owner or affiliated person or entity and does not enter into a revenue-sharing or other kind of agreement involving payment to a former owner or affiliated person or entity.
• Add under § 600.20(g) the requirement for institutions to notify the Department at least 90 days in advance of any proposed change in ownership, which includes any modification to such a change.
• Add a new § 600.20(g)(2) to provide that, even with the submission of the proposed CIO, the Department may determine that the institution's participation in the title IV, HEA programs should not continue after the change in ownership.
• Amend § 600.20(g)(3) to add the requirement, discussed in current paragraph (g)(2), that a complete application must include documentation that the institution's accreditation and State authorization remained in effect as of the day before the change in ownership and add provisions explaining when the Secretary may require an institution to provide financial protection, and in what amounts, as part of the change in ownership application.
• Add § 600.20(g)(4), which requires institutions to notify enrolled and prospective students at least 90 days prior to the proposed change in ownership.
• Establish in § 600.20(h) the terms of the extension of a TPPPA and clarify when the TPPPA expires.
• Clarify § 600.21 to specify when institutions are required to report to the Department changes in ownership and/or changes in control and clarify the terminology for owners who are natural persons versus entities.
• Specify in § 600.31(c) when “other entities” undergo a change in control, such as when a person or combination of persons acquires or loses 50 percent of voting interests in the entity or otherwise acquires or loses 50 percent control, or when an entity with members loses them or an entity without members acquires them. The paragraph would provide what qualifies to meet the 50 percent thresholds and under what other conditions a person or persons may be deemed to have actual control of the entity, including based on ownership by a combination of persons, each of whom has less than a 50 percent interest in the entity.
• Amend § 600.31(d) to add that a change of control may include the acquisition of an institution to become an additional location of another institution unless the acquired institution closed or ceased to provide educational instruction.
• Clarify the terminology in § 600.31(e) related to the death or resignation of an individual owner.
We discuss substantive issues under the sections of the proposed regulations to which they pertain. Generally, we do not address proposed regulatory provisions that are technical or otherwise minor in effect. The Department made small, technical, non-substantive updates to the PEP amendatory consensus language to conform with proper formatting, capitalization, and cross-reference standards
Including PEPs as additional locations would also provide related benefits to students and taxpayers, as it would ensure greater oversight of the PEP, including oversight of the academic quality of the program by the accrediting agency, and would provide potential financial aid benefits in the event the IHE ceases to provide educational offerings at the correctional facility. The additional oversight that would be conducted for additional locations would help to protect the integrity of taxpayer-financed title IV, HEA dollars, by ensuring that such locations are not eligible for Federal aid unless and until they have met other conditions. Under § 602.22, for example, which governs accrediting agencies, the establishment of additional locations is considered to be a “substantive change,” triggering an agency's obligation to assess whether such change adversely affects the institution's ability to meet accreditation standards. In most cases, an agency's review of a new location must include an assessment of the institution's fiscal and administrative capabilities, academic controls, faculty, facilities, resources, support systems, and financial stability. In addition, as discussed further below, proposed § 668.237 would require an accrediting agency to conduct a site visit no later than one year after the institution has initiated a PEP at its first two additional locations at correctional facilities. The Department believes that these additional steps would help to ensure education quality, oversight of the programming at the facility, and minimum standards for the services provided to students.
Additionally, under section 437(b)(3) of the HEA, a student whose institution closes may be eligible for restoration of their Pell Grant lifetime eligibility used (Pell LEU) for the period of a student's attendance at the institution, providing a benefit to affected students. Similar to the Department's interpretation of this statute for other program types, the Department has interpreted the statute to mean that, if a postsecondary institution closes, all students enrolled in an impacted PEP may be eligible for Pell LEU restoration. By requiring PEPs to be reported as additional locations, the Department could ensure that confined or incarcerated individuals enrolled in those programs are protected in the event the institution ceases to operate in the correctional facility by restoring their lifetime Pell Grant eligibility.
Currently, an individual who is incarcerated in any Federal or State correctional facility, or who is subject to an involuntary civil commitment upon completion of a period of incarceration for a forcible or nonforcible sexual offense (as determined in accordance with the Federal Bureau of Investigation's Uniform Crime Reporting
Under § 600.7(c)(3)(ii), nonprofit institutions whose offerings are not limited to four-year and two-year programs but that award the degrees identified above are subject to two different waiver determinations: (1) the waiver is automatic upon request for its two- and four-year programs, but (2) for any other program, the waiver is only available if the incarcerated regular students enrolled in such programs have a completion rate of 50 percent or greater. The formula for calculating the completion rate is set forth in § 600.7(e)(2). Under § 600.7(g), the institution must substantiate the completion rate calculation by having the certified public accountant who prepares its audited financial statements verify the calculation's accuracy.
Under § 600.7(f), the institution maintains the waiver indefinitely if it satisfies the waiver requirements each award year. If the institution fails to satisfy waiver requirements for an award year, it becomes ineligible to participate in title IV programs on June 30 of that award year.
• We propose to add a condition to § 600.7(c)(1) that the Secretary will not approve an enrollment cap waiver for a postsecondary institution's PEP until the oversight entity is able to make the “best interest determination” described in § 668.241, which would be at least two years after the postsecondary institution has continuously provided a PEP.
• In proposed § 600.7(c)(1)(i), the Secretary would not grant the waiver to a non-degree program at a nonprofit institution unless it meets the current requirement of maintaining a completion rate for its enrolled incarcerated students of at least 50 percent.
• We propose to add § 600.7(c)(1)(ii)(A) and (B) to require that all postsecondary institutions operating a PEP, regardless of program length, satisfy two conditions to obtain and maintain an enrollment cap waiver for incarcerated students. Under the proposed regulations, an institution would be required to: (1) comply with all requirements under proposed part 668 subpart P (Prison Education Programs), and (2) demonstrate they are administratively capable as defined in § 668.16 and financially responsible under part 668 subpart L. Administrative capability requires the institution to show it is capable of adequately administering the title IV programs, including for PEPs. Financial responsibility requires the institution to demonstrate that it provides the services described in its official publications and statements, meets all of its financial obligations, and provides the administrative resources necessary to comply with title IV, HEA program requirements.
• We propose to update paragraphs § 600.7(c)(1) and (2) by clarifying that the Secretary has the discretion to deny an enrollment cap waiver request if the application fails to meet the aforementioned standards, noting instead that the Secretary “may” waive the enrollment cap prohibition. This is a change from the current regulations that make the waivers automatic for four-year and two-year programs. The proposed provisions more closely reflect the statute, which states that the Secretary “may” approve the waiver.
• Based in part on the recommendation of a rulemaking subcommittee member, we propose to add paragraph (c)(4) to § 600.7, which would set program enrollment limitations on incarcerated students even after a waiver is approved. In paragraph (c)(4)(i)(A), once a postsecondary institution is granted a waiver, for the next five years, up to 50 percent of the institution's regular enrolled students could be incarcerated students. Paragraph (c)(4)(i)(B) would permit that percentage to increase to 75 percent for the five years thereafter. Paragraph (c)(4)(ii) would exempt from these limits a public institution that is chartered for the explicit purpose of educating confined or incarcerated students, as determined by the Secretary. All students in such a PEP must be located in the State in which the postsecondary institution is chartered to serve.
• Proposed § 600.7(c)(5) would allow the Secretary to limit or terminate a postsecondary institution's waiver if it no longer meets the requirements established under paragraph (c)(1).
• Finally, proposed § 600.7(c)(6) provides that revocation of an institution's enrollment cap waiver would render an institution ineligible to participate in title IV, HEA programs, commencing at the end of the award year in which the waiver was revoked so students will not immediately lose eligibility for title IV aid. Paragraph (c)(6)(i) would allow a postsecondary institution to retain its eligibility for title IV aid if it demonstrates that it meets all requirements prior to losing eligibility, including reducing its enrollment of confined or incarcerated students to no more than 25 percent of its regular enrolled students, as required of eligible institutions by the statute, and ceasing to enroll new incarcerated students upon the loss of the waiver.
Further, requiring prompt notice of the addition of an eligible PEP would allow the Department to monitor trends in eligible PEPs in real time and more precisely target oversight as the programs progress. This approach mirrors our oversight of direct assessment programs (§ 668.10), for example, where institutions must notify us of each additional program.
Disclosure of this information to confined or incarcerated students is critical. According to one analysis of collateral consequences of incarceration, “The American Bar Association's inventory of penalties against those with a record has documented 27,254 state occupational licensing restrictions.”
The Department does not propose to require such disclosures for the State in which the correctional facility is located or the State where most students are likely to return, because the program approval process under proposed § 668.236(g) and (h) already ensures the program satisfies educational standards for licensure or employment in those locations. With respect to other States' educational requirements for licensure or employment, institutions would have to provide information to confined or incarcerated individuals only for States for which the institution has made a determination about State prohibitions on the licensure or certification of formerly confined or incarcerated individuals, in recognition that institutions may not be aware of the licensure requirements in every State, particularly where they are not otherwise enrolling students.
We propose the term “oversight entity” to capture in concept the longer phrase in section 484(t) of the HEA (“the appropriate State department of corrections or other entity that is responsible for overseeing correctional facilities, or . . . the Bureau of Prisons”).
During Subcommittee meetings, members urged the Department to mandate a feedback process from relevant stakeholders with expertise in prison education and from confined or incarcerated or formerly confined or incarcerated individuals, to assist the oversight entity in making the best interest determination. One Subcommittee member recommended requiring the oversight entity to engage with a formal advisory committee. While section 484(t)(1)(A)(ii) and (iii) of the HEA vests sole authority over the best interest determination in the oversight entity, the Department and Subcommittee members agreed that input from relevant stakeholders through a feedback process would be a valuable addition to the best interest determination, and the full Committee ultimately reached consensus on this issue. Such feedback would be nonbinding and need not come from a formal advisory committee. The Department was concerned that a formal advisory committee process could introduce delays in the approval of PEPs, particularly because the Federal Bureau of Prisons is subject to certain Federal requirements regarding advisory processes when informal feedback could provide similar value to the oversight entity. For these reasons, the Department recommended that an advisory committee be an optional component of the feedback process.
The statute dictates, and the proposed regulations would codify in paragraph (e), that the postsecondary institution offering the eligible PEP has not been subject to various adverse actions by the Department, the accrediting agency, or the State within the last five years. With respect to accrediting agency action, we propose to draw on a familiar definition of “adverse action” in § 602.3, which includes the denial, withdrawal, suspension, revocation, or termination of accreditation or pre-accreditation, or any comparable accrediting action an agency may take against an institution or program. Additionally, paragraph (f) would make clear that an institution may not begin offering a new PEP if the institution's accrediting agency initiates such adverse action and must submit a teach-out plan to the accrediting agency after an adverse action is initiated for any PEPs it already operates. Until a significant action like the ones contained in § 602.3 is resolved, it would not be in any stakeholder's best interest for that institution to start a new PEP until the adverse action has been rescinded or otherwise resolved. If the action is not rescinded, for example, the school could ultimately face a loss of accreditation, in which case the PEP would lose eligibility for title IV aid, students may not be able to complete their programs, and taxpayers may be forced to bear the costs of restoring Pell Grant eligibility for the students. The required submission of a teach-out plan in these cases would provide additional protections for students to ensure equitable treatment of confined or incarcerated individuals if the program closes.
Paragraph (h), which outlines prohibitions on enrollment, is based on the statutory requirement in section 484(t)(1)(B)(vii) of the HEA. As noted above, the postsecondary institution would make the determination as to which State most students would reside in upon release. Proposed paragraphs (h)(1) and (2) would add necessary guardrails for confined or incarcerated students. A postsecondary institution should not enroll a student in an eligible PEP if, based on their conviction, the institution knows prior to enrollment that the confined or incarcerated individual would not be able to obtain licensure or employment in the field for which the education is intended to prepare them and in the State the individual is likely to live in upon release. In the interest of ensuring that access to postsecondary education is not overly restricted for confined or incarcerated individuals, however, the Department in proposed paragraph (h)(3) clarifies that not all restrictive provisions would bar enrollment and lists the types of restrictions that would be exempt from the enrollment prohibition (local laws, for example).
An accrediting agency would be required to perform a site visit at the first two additional locations offering PEPs, or upon a change in the modality of the program, due to the unique nature of an eligible PEP. It is important to
Finally, a Committee 1 member recommended that the accrediting agency or State approval agency review and approve the methodology for how the institution, in collaboration with the oversight entity, made the determination that the PEP meets the same standards as substantially similar programs that are not PEPs at the institution. The Department agreed with this recommendation and adopted it in paragraph (b)(4). This would provide an additional backstop for the “best interest determination” requirements in proposed § 668.241, some of which would require the oversight entity to ensure that the services provided to confined or incarcerated individuals are the same or substantially similar to services provided to other students who are not confined or incarcerated. Promoting and requiring collaboration between the institution and oversight entity would ensure confined or incarcerated individuals get the services afforded to all other students at the institution, resulting in more equitable access to postsecondary educational opportunities. It would also provide an additional guardrail of accreditor evaluation and approval.
Proposed § 668.238(b) outlines the components of the PEP application, which would include: (1) A description of the educational program, including the educational credential offered (degree level or certificate) and the field of study; (2) Documentation from the institution's accrediting agency or State approval agency indicating that the agency has evaluated the institution's offering of one or more PEPs and has included the program(s) in the institution's grant of accreditation and approval documentation from the accrediting agency or State approval agency; (3) The name of the correctional facility and documentation from the oversight entity that the PEP has been approved to operate in the correctional facility; (4) Documentation detailing the methodology including thresholds, benchmarks, standards, metrics, data, or other information the oversight entity used in making its determination that the program is operating in the best interest of students for all indictors under § 668.241, and how such information was collected; (5) Information about the types of services offered to admitted students, including orientation, tutoring, and academic and reentry counseling. If reentry counseling is provided by a community-based organization that has partnered with the eligible PEP, institution, or correctional facility to provide reentry services, then the application would be required to include information about the types of services offered by the community-based organization; (6) Affirmative acknowledgement that the Secretary can limit or terminate approval of an institution to provide a PEP as described in § 668.237; (7) Affirmative agreement to submit the report to the Secretary as described in § 668.239; (8) Documentation that the institution has entered into an agreement with the oversight entity to obtain data about transfer and release dates of confined or incarcerated individuals, which would be reported to the Department; and (9) Such other information as the Secretary deems necessary.
Paragraph (c) would require that, for all PEPs that do not require the Secretary's approval, the postsecondary institution must submit documentation that it has not been subject to any adverse actions by its accrediting agency or any action by the State to revoke a license to operate. The postsecondary institution also would be required to submit documentation that it has entered into an agreement with the oversight entity to obtain data on the transfer and release dates of the confined or incarcerated individuals enrolled in its PEP(s).
We intend to propose a template to assist postsecondary institutions in submitting applications to the Department. Use of the template would be voluntary and non-binding, but submission of the template would fulfill the requirements of the regulation.
Institutions would be required to enter into an agreement with the oversight entity to report the transfer or release date of PEP students so the Department can calculate and provide information to the oversight entity for use in its best interest determination (
If the Secretary initiates a limitation or termination action with respect to an institution's PEP approval, the regulations would also require the postsecondary institution to submit a teach-out plan as defined under 34 CFR 600.2 and, if practicable, a teach-out agreement(s) to the institution's accrediting agency. A teach-out plan is a written plan developed by an institution that provides for the equitable treatment of students if an institution, or an institutional location that provides 100 percent of at least one program, ceases to operate, or plans to cease operations, before all enrolled students have completed their program of study. A teach-out agreement is a written agreement between institutions that provides for the equitable treatment of students and a reasonable opportunity for students to complete their program of study if an institution, or an institutional location that provides 100 percent of at least one program offered, ceases to operate, or plans to cease operations, before all enrolled students have completed their program of study.
• Whether the rate of confined or incarcerated individuals continuing their education post-release, as determined by the percentage of students who reenroll in higher education reported by the Department, meets thresholds established by the oversight entity with input from relevant stakeholders.
• Whether job placement rates in the relevant field for such individuals meet any applicable standards required by the agency that accredits the institution or program or a State in which the institution is authorized. If no job placement rate standard applies to a PEP offered by the institution, the oversight entity would need to define, and the institution would need to report, a job placement rate with input from relevant stakeholders.
• Whether the earnings for such individuals, or the median earnings for graduates of the same or similar programs at the institution, as measured by the Department, exceed those of a typical high school graduate in the State.
• Whether the experience, credentials, and rates of turnover or departure of PEP instructors are substantially similar to other programs at the institution, accounting for the unique constraints of PEPs.
• Whether the transferability of credits for courses available to confined or incarcerated individuals and the applicability of such credits toward related degree or certificate programs is substantially similar to those at other similar programs at the institution, accounting for constraints of PEPs.
• Whether the PEP's offering of relevant academic and career-advising services to individuals while they are confined or incarcerated, in advance of reentry, and upon release, is substantially similar to offerings to a student who is not a confined or incarcerated individual and who is enrolled in, and may be preparing to transfer from, the same institution, accounting for constraints of PEP.
• Whether the institution ensures that all formerly incarcerated students are able to fully transfer their credits and continue their programs at any location of the institution that offers a comparable program, including by the same mode of instruction, barring exceptional circumstances relating to the student's conviction.
We also propose several other assessment items that are important to assessing program quality, but that would be optional for the oversight entity:
• Whether the rates of recidivism, which do not include any recidivism by the student within a reasonable number of years of release and which only include new felony convictions as defined by United States Sentencing Guideline § 4A1.1(a) as “each sentence of imprisonment exceeding one year and one month,” meet thresholds set by the oversight entity.
• Whether the rates of completion reported by the Department, which do not include any students who were transferred across facilities and which account for the status of part-time students, meet thresholds set by the oversight entity with input from relevant stakeholders.
• Other indicators pertinent to program success as determined by the oversight entity.
In addition, we propose the following:
• The oversight entity would make the best interest determination through a feedback process that considers input from relevant stakeholders and considers approval of the eligible PEP given the totality of the circumstances.
• If the oversight entity does not find a program to be operating in the best interest of students, it would allow for the program to re-apply within a reasonable timeframe.
• The oversight entity initially could approve a PEP without the required assessments under this section for two years. After the two years of initial approval under § 668.236, the oversight entity would need to determine that the PEP is operating in the best interest of students pursuant to § 668.241.
• After the oversight entity's initial best interest determination, the institution would be required to obtain subsequent final evaluations of each eligible PEP from the responsible oversight entity not less than 120 calendar days prior to the expiration of each of the institution's PPAs, except that the oversight entity could make a determination between subsequent evaluations based on its regular monitoring and evaluation of program outcomes. Each subsequent evaluation would include the entire period following the prior determination, a review of the best interest factors for all students enrolled in the program, and input from relevant stakeholders through the oversight entity's feedback process. Subsequent evaluations would be submitted to the Secretary no later than 30 days after the evaluation is completed.
• Finally, we propose that postsecondary institutions would obtain and maintain documentation of the methodology by which the oversight entity made each best interest determination, including the initial approval determination, for as long as the program is active or, if the program is discontinued, for three years following the date of discontinuance.
In paragraph (a)(1), the Department would make clear that the oversight entity must assess all of the indicators listed in that section, although the final determination that the program is operating in the best interest of students would be made based on the totality of the circumstances of the program. That is, while each indicator would be assessed, falling short on one or more indicators would not automatically require the oversight entity to determine the PEP is ineligible to operate at a correctional facility. Proposed § 668.238 would require an oversight entity to provide documentation for all of the indicators under § 668.241, detailing its methodology in reaching a determination that the program is operating in the best interest of students. The Department would monitor and enforce the overarching requirement that a PEP operate in the best interest of confined or incarcerated individuals. Toward that end, we would retain the authority to terminate approval of the eligible PEP under proposed § 668.240 if it is determined that the institution violated any terms of subpart P or that the information the institution submitted to the Secretary, accrediting agency, State agency, or oversight entity in support of its application was materially inaccurate.
As required by the statute, paragraph (a)(1)(i) would require an oversight entity to evaluate continuing education post-release. The Department's proposed regulation would codify this indicator with greater specificity and require the oversight entity to establish a threshold for this metric with input from relevant stakeholders (as discussed in § 668.235). Establishing a threshold for this measure upfront would help ensure the oversight entity has adequate processes in place to make fair, informed, and consistent decisions about whether PEPs are operating in the best interests of students and would provide insights to the Department and the public about the processes those oversight entities are employing. In the interest of reducing the data collection burden on institutions and oversight entities, we would provide data on post-release continuation of education by confined or incarcerated individuals to institutions and oversight entities. We would also publish aggregate data on post-release education continuation in our annual report.
The second “best interest” determination factor, in paragraph (a)(1)(ii), would require the oversight entity to consider a job placement rate measure. This factor is also named in the statute. While the Department does not currently have an established measure for job placement rates, we are aware that some accrediting agencies or States may have policies and procedures regarding the calculation of job placement rates, and oversight entities could use those existing calculations where applicable. If no applicable requirements exist, however, then the oversight entity would need to establish a job placement rate definition with input from relevant stakeholders, and the institution would report using that definition.
Paragraph (a)(1)(iii) would require the oversight entity to consider data regarding whether the median post-release earnings of graduates of the eligible PEPs are higher than those of a
Proposed paragraphs (a)(1)(iv), (v), and (vi) outline additional indicators that the oversight entity would be required to assess related to the faculty, credit transfer, and advising and support services for incarcerated students in the PEP. All are listed in the statute. Specifically, we propose to require that the oversight entity assess whether the experience, credentials, and turnover rates of instructors (paragraph (a)(1)(iv)), credit transfer (paragraph (a)(1)(v)), and academic and career advising services (paragraph (a)(1)(vi)) for the confined or incarcerated individuals in the PEP are substantially similar to other students at the institution. A Subcommittee member was concerned that the unique constraints of PEPs may make it challenging to offer “substantially similar” experiences to PEP students; for example, instructor turnover may be higher in a correctional facility setting due to background check requirements. The Department agreed and incorporated that concept into the proposed regulations by noting that each of these provisions should account “for the unique geographic and other constraints of prison education programs.” As discussed above in connection with proposed § 668.237, the institution's accrediting agency would review and approve the institution's methodology for making its “substantially similar” determinations, which the institution would be required to develop in collaboration with the oversight entity.
Paragraph (a)(1)(vii) was added based on a recommendation from a Subcommittee member. There was concern expressed during the Subcommittee meetings that institutions may enroll confined or incarcerated individuals into an eligible PEP, but later deny their eligibility to enroll in an on-campus program post-release, leaving at least some students potentially unable to complete their educational programs. The Department agreed that this presents an academic and equity concern and proposes to require that the oversight entity assess whether formerly incarcerated students are able to fully transfer their credits and continue their programs at any location of the institution that offered the PEP, including by the same mode of instruction, taking into account any exceptional circumstances related to the student's conviction, which are typically outside the institution's control. For example, exceptional circumstances might exist if, as a part of the terms of the individual's release from a correctional facility, the formerly confined or incarcerated individual is not permitted to be within a certain distance of an individual or group of individuals who are likely to be on the campus where the student wishes to enroll. In such circumstances, the Department would encourage institutions to work to identify alternative opportunities for re-enrollment for the student.
The proposed regulations also would provide three optional “best interest” factors in paragraphs (a)(2)(i), (ii) and (iii) that the oversight entity may choose to assess in the course of determining whether the program operates in the best interests of students, namely the recidivism rates of formerly confined or incarcerated individuals who attended the PEP; other indicators related to program success that the oversight entity identifies; and completion rates reported by the Department to the oversight entity. The recidivism rate assessment in paragraph (a)(2)(i) is listed in the statute but drew sharp criticism from the Subcommittee as being challenging to measure and less directly related to program quality. The Department accordingly proposes parameters for the consideration of recidivism rates if the oversight entity opts to review that metric. Specifically, the Department proposes to exclude recidivism after “a reasonable number of years of release,” and to include only new felony convictions that, as defined by the U.S. Sentencing Guideline § 4A1.1(a), exceed a sentence of one year and one month. Since felony definitions and sentence lengths vary from State to State, we believe that aligning reporting to the U.S. Sentencing Guidelines will ensure more consistent treatment. These protections would also minimize the impact of more minor convictions or sentences, or technical violations such as probation revocations, and ensure greater uniformity in how recidivism is measured, if the oversight entity opts to measure it.
Under proposed paragraph (a)(2)(ii), the oversight entity may opt to assess completion rates as part of the best interest determination. Completion rates are used by many entities in higher education, including for consumer information purposes under the HEA; by States and accrediting agencies in assessing college outcomes; and by institutions themselves in identifying gaps in performance and opportunities for continuous improvement. We provide this information to the public through the College Scorecard, to members of an accreditation advisory committee, and in many other contexts to support practitioners' and policymakers' efforts to understand and improve institutional outcomes. The Federal government also invests billions each year in programs designed to increase postsecondary completion rates. Some subcommittee members were concerned with adding any metrics not explicitly mentioned in the statute as a required consideration for the oversight entity; and noted potential challenges with ensuring completion for incarcerated students who, for instance, are transferred across prison facilities and unable to continue their program. Thus, while the Department continues to feel strongly that this measure would add value to the oversight entity's assessment of prison education programs, we agreed to make it an optional, rather than a required, consideration for the purposes of reaching consensus. With this inclusion, the Department would analyze completion rates of eligible PEPs and provide that information to Congress and the public as required in section 484(t)(5)(A)(viii), which requires the Department to report on the impact of expanding Pell Grant eligibility to confined or incarcerated individuals and which specifically requires reporting on academic outcomes such as credential and degree completion.
In proposed paragraph (a)(2)(iii), the Department would permit oversight entities to identify and consider other measures of program success in the best interest determination, beyond those specified in the statute and regulations. We believe that a collateral benefit of the stakeholder feedback processes that are required of oversight entities may be the suggestion of additional metrics, particularly those important to
Paragraph (b), which would require the oversight entity to solicit feedback and explain how to make the best interest determination, is already described in this section of the preamble and in § 668.235. As previously stated, these proposed “best interest” factors would be part of a holistic assessment of the institution's ability to operate in the best interests of students and would not be pure eligibility requirements.
A Subcommittee member recommended that the regulations establish an appeal process for programs that the oversight entity determines are not operating in the best interest of students. While the Department does not believe it is appropriate to prescribe a specific appeal process for use by external agencies, we incorporated the suggestion by proposing in paragraph (c) that oversight entities permit institutions that were not found to be operating in the best interests of students to reapply within a reasonable timeframe.
The oversight entity would always have to approve the operation of an eligible PEP at a correctional facility that it oversees. However, in paragraph (d), we propose to provide two years before the oversight entity would need to make a formal “best interest determination.”
As discussed in § 668.236, it would take time for the postsecondary institution, the Department, and the oversight entity to collect the necessary data to make an informed decision based on the indicators. The two-year timeframe would ensure students receive the protections of the best interest framework in a timely manner, while recognizing the need for some time to gather the necessary information to meet the statutory requirement for a data-informed decision by the oversight entity.
In paragraph (e), the Department proposes that any reassessment of an eligible PEP by the oversight entity be conducted at least 120 days prior the expiration of the institution's PPA to ensure the assessment is complete and available by the time we review the institution's application for recertification. Reassessment is important to ensure that eligible PEPs continue to operate in the best interests of confined or incarcerated individuals. This timeframe would ensure that institutions' determination dates are staggered, based to an extent on the risk of the institution (since higher-risk institutions will have shorter recertification timelines than lower-risk institutions), and that determinations are available to the Department when the agency is making its own assessment of the institution for title IV purposes.
The records retention described in paragraph (f) is necessary for oversight and review purposes.
We propose that an institution cannot enroll a confined or incarcerated student on or after July 1, 2023, who was not enrolled in an eligible program prior to July 1, 2023, unless the institution first converts the eligible program into an eligible PEP as defined in § 668.236.
Instead, this section of the proposed regulations is focused on incarcerated students enrolled in educational programming in correctional facilities that is not currently subject to the prohibition on Federal Pell Grants. As previously noted, the statute and regulations currently prohibit students confined or incarcerated in a State or Federal correctional facility from access to Pell Grants (outside of the Second Chance Pell experiment). Programs operating in correctional facilities other than State or Federal correctional facilities are currently eligible, however. For example, currently, a proprietary institution may be operating an eligible program in a local jail or juvenile justice facility, and students may be accessing Pell Grants for that program. On July 1, 2023, the statute will require all confined or incarcerated individuals pursuing postsecondary education to enroll in an eligible PEP at a public, private nonprofit, or vocational institution to access Pell Grants; at that time, therefore, an individual enrolled in any program at a proprietary institution would be ineligible for a Pell Grant.
The Department does not want to interrupt a student's enrollment in a program; therefore, we propose limited flexibility, discussed in the proposed regulations section, to allow current students to finish their programs if those programs do not align with final PEP regulations that may be in effect on July 1, 2023 (or before that time if the regulations are implemented early). Under the proposed regulations, any such flexibility would end on July 1, 2029, which would be the final date a confined or incarcerated individual would be able to receive a Pell Grant in a program that is not an eligible PEP. This provides six years from the effective date of the authorizing statute for current students to either finish their programs or enroll in an eligible PEP, similar to the maximum timeframe to complete a four-year program as defined in § 668.34(b).
The Department is aware that confined or incarcerated individuals may receive other financial assistance in addition to a Pell Grant. In § 690.62(b)(2)(i), we propose that, if the Pell Grant exceeds the student's cost of attendance when combined with other financial assistance, the financial assistance other than the Pell Grant must be reduced by the amount by which the total financial assistance
Below are examples of how the calculation of a student's Pell Grant awards and lifetime eligibility is affected by the proposed regulations. The Pell amounts in the examples are based on the 2021-2022 Federal Pell Grant Payment and Disbursement Schedule.
Jerry, Sam, Amy, Paul, and Eliza are enrolled at the University of ABC in an eligible PEP in General Studies that leads to an associate degree. The eligible PEP is a standard term program with one fall and one spring payment period. Their COA for the program is $6,495.
A. Jerry attends the institution as a full-time student for the full award year. Jerry has an expected family contribution (EFC) of $0. Jerry's Pell Grant scheduled award is $6,495 (maximum award for the 2021-22 award year). Jerry also gets a Veteran's Administration (VA) education and training benefit of $5,495 that, by law, cannot be reduced. Jerry's total award is now $11,990 for the year.
Under current § 690.63(b), if Jerry were not incarcerated, he would receive $3,247.50 for the fall payment period and $3,247.50 for the spring payment period (totaling $6,495). However, under proposed § 690.62(b)(2)(ii), the University of ABC would reduce Jerry's $6,495 Pell award to $1,000 so that the combination of the student's Pell Grant and VA education and training benefit does not exceed Jerry's COA. The University of ABC would determine this by subtracting $11,990-$6,495 (Jerry's COA) which is $5,495 above Jerry's COA. Then University of ABC would subtract the amount above Jerry's Pell award from Jerry's original award ($6,495-$5,495), leaving $1,000 in Pell. The University of ABC would pay Jerry $500 for the fall payment period and $500 for the spring payment period. Jerry begins attendance in all coursework and maintains full-time enrollment status for the entire award year. Jerry's lifetime eligibility used (LEU)—defined in § 690.6(e)—increases by ($1,000/$6,495) = 15.3964 percent.
B. Sam also attends as a full-time student for the full award year. Sam has an EFC of 0. Sam's Pell Grant scheduled award is $6,495 (maximum award for the 2021-22 award year). Sam receives no other financial assistance. Sam receives $3,247.50 for the fall payment period and $3,247.50 for the spring payment period. Sam begins attendance in all coursework and maintains full time status for the entire award year. Sam's LEU increases by ($6,495/$6,495) = 100 percent for the year.
C. Amy attends the institution as a half-time student for the full award year. Amy has an EFC of $3,000. Amy's Pell Grant award is $1,773 because Amy's enrollment status is half-time. Amy's maximum Pell award (the scheduled award) would be $3,545 if she attended full-time for the full year. Amy qualifies for an institutional scholarship from University of ABC for $5,000.
Per the proposed § 690.62(b)(2)(i), the University of ABC decides to reduce Amy's institutional scholarship by $278 so that the combination of the student's Pell Grant and scholarship does not exceed Amy's COA. Because Amy's Pell Grant award was not reduced, Amy would receive $886.50 for the fall payment period and $886.50 for the spring payment period.
Amy begins attendance in all coursework and maintains half-time enrollment status for the entire award year. Amy's LEU would increase by ($1,773/$3,545) = 50.0141 percent. This is because Amy's scheduled award (the amount Amy would have received if Amy attended full-time for the full year) is $3,545.
D. Paul attends as a three-quarter-time student for the full award year. Paul has an EFC of $2,000.
Paul's Pell award is $3,409 for the year because his enrollment is three-quarter time. Paul's maximum Pell award (the scheduled award) would be $4,545 if he attended full-time for the full year. Paul also receives a State grant for $4,000. State law does not permit the State to reduce Paul's grant. This brings Paul's total aid to $7,409 for the year.
Paul would receive $1,704.50 for the fall payment period and $1,704.50 for the spring payment period. However, per the proposed § 690.62(b)(2)(ii), the University of ABC would reduce Paul's Pell award by $914 so that the combined amount of the Pell Grant and State grant would not exceed Paul's COA. The University of ABC would determine this by subtracting $7,409-$6,495 (Paul's COA), which is $914 above Paul's COA. Then University of ABC would subtract the amount above Paul's Pell Grant award from Paul's original award ($3,409-$914) leaving Paul $2,495 in Pell funds. The University of ABC would pay Paul $1,247.50 for the fall payment period and $1,247.50 for the spring payment period.
Paul begins attendance in all coursework and maintains three quarter enrollment status for the entire award year. Paul's LEU would increase by ($2,495/$4,545) = 54.8954 percent.
E. Eliza plans to attend as a half-time student in the fall payment period and full-time in the spring payment period. Eliza has an EFC of $500.
Eliza's Pell Grant disbursement amount for the fall payment period is $1,511.50 and $3,022.50 for the spring payment period. This is because Eliza attended half-time for the fall and full-time for the spring. Eliza's maximum Pell award (the Scheduled Award) would be $6,045 if she attended full-time for the full year. Eliza also receives a scholarship of $3,000 from an outside provider toward Eliza's educational expenses that cannot be reduced. This brings Eliza's total aid to $7,534 for the year.
Per the proposed § 690.62(b)(2)(ii), the University of ABC would reduce Eliza's Pell Grant award by $1,039 so that the combined amount of Pell Grant and other scholarship assistance would not exceed Eliza's COA. The University of ABC would determine this by subtracting $7,534-$6,495 (Eliza's COA), which is $1,039 above Eliza's COA. Then University of ABC would subtract the amount above from Eliza's total award for the year ($4,534-$1,039), leaving Eliza $3,495 in Pell funds. The University of ABC would pay Eliza $992 for the fall payment period and $2,503 for the spring payment period. Eliza's LEU would increase by ($3,495/$6,045) = 57.8163 percent.
Similarly, the Department proposes to include any Federal funds distributed directly to a student or proprietary institution to cover the cost of tuition, fees, and other institutional charges in the calculation of Federal funds in fiscal years beginning on or after January 1, 2023. This proposed change would implement the new statutory language in section 487(a)(24) of the HEA, which provides that the revenue percentage must count Federal funds that are disbursed or delivered to or on behalf of a student to be used to attend such institution. The Department proposes to only count Federal education assistance funds that are designated by a Federal agency to be used to pay tuition, fees, and other institutional charges as Federal revenue to reflect the statutory language related to funds that are “used to attend the institution.”
During the negotiated rulemaking sessions, some non-Federal negotiators raised the concern that it would be difficult for proprietary institutions to include Federal funds that go directly to students, as the institutions may not be aware of what funds to include in the revenue calculation. Nonetheless, most non-Federal negotiators agreed that proprietary institutions should include these funds in the calculation. In the proposed regulations, the Department expects that proprietary institutions would report any Federal revenue that they are aware of in their 90/10 calculation, unless those funds were provided to a student who did not pay any institutional charges. To address the concern that proprietary institutions may not be aware of all sources of Federal revenue, the Department proposes to publish in the
One negotiator raised a concern about how proprietary institutions would count funds from programs that the Secretary added to the notice midway through a proprietary institution's fiscal year. To be responsive to this concern, proprietary institutions would only need to include revenues from new Federal sources when those funds paid for institutional costs for the fiscal year starting after the Federal program has been identified on the published list.
The Department also proposes to add regulatory language creating a disbursement rule and change the name of the section to “Disbursement rule.” The disbursement rule would create a deadline for title IV, HEA program disbursements for a proprietary institution's 90/10 calculation. Specifically, the proposed regulations would require proprietary institutions requesting title IV, HEA funds using the advanced payment method (§ 668.162(b)(2)) or the heightened cash monitoring method (§ 668.162(d)(1)) to request and disburse any funds to an eligible student before the end of the proprietary institution's fiscal year. In the proposed regulations, proprietary institutions requesting title IV, HEA program funds under the reimbursement or heightened cash monitoring methods in § 668.162(c) or (d)(2) would be required to make timely disbursements pursuant to § 668.164 to student accounts before the end of their fiscal years and report the funds that were disbursed to the student accounts as Federal funds in the 90/10 calculations.
Additionally, the Department proposes to define title IV, HEA program funds and Federal funds that count as Federal revenue in the 90/10 calculation as funds “used to pay tuition, fees, and other institutional charges.” Some non-Federal negotiators suggested that the Department include Federal funds for housing, while other non-Federal negotiators supported defining Federal funds as we have proposed. The Department proposes to use this definition to align with the statutory language that Federal funds “will be used to pay the student's tuition, fees, or other institutional charges.”
Finally, the Department proposes to require proprietary institutions to make timely disbursements of title IV, HEA program funds to eligible students by the end of the fiscal year to prevent proprietary institutions from delaying disbursements to the next fiscal year as a means of reducing the Federal funds that would be included in the 90/10 calculation for the earlier fiscal year. Per the HEA, proprietary institutions must use cash basis accounting to calculate 90/10. Because this form of accounting counts revenues when the institution actually receives the funds, proprietary institutions can reduce their Federal revenue percentages for one fiscal year by delaying the requests and disbursements of title IV, HEA program funds to students until after the start of the next fiscal year. Through reviews of some 90/10 calculations and audit workpapers, the Department has found that some proprietary institutions have delayed disbursements at the end of one fiscal year until the next as a way to avoid failing 90/10 for a second consecutive year, which failure could result in losing title IV, HEA program eligibility. Under this maneuver, the delayed disbursements were instead counted in the next fiscal year, where the proprietary institution might fail the 90/10 requirement but remained eligible due to the passing 90/10 score for the intervening fiscal year. To preserve the statutory intent of the 90/10 rule, the Department believes that it is necessary to create guardrails preventing proprietary institutions from gaming the revenue calculation.
Proprietary institutions currently have the discretion to set up disbursement timelines that are consistent with regulatory requirements. These proposed regulations are not intended to—and would not—limit a proprietary institution's flexibility in this area.
Further, the Department also believes it is necessary to provide additional guardrails for which funds generated from ineligible title IV, HEA programs can count as non-Federal aid for the purposes of 90/10, as proposed in § 668.28(a)(3)(iii). Title IV, HEA eligible programs have built-in consumer protection mechanisms, including accreditation by an accrediting agency and State authorizing agency. Ineligible programs do not have any of these protections and may not have any guarantee of value for the student. Given the other proposed changes to the 90/10 calculation, the Department is concerned that proprietary institutions may have an increased incentive to create ineligible programs, with little oversight and that may not serve students well, to generate non-Federal revenue for 90/10. By establishing minimum benchmarks for the revenue from non-eligible programs that institutions may include in the calculation, the Department wishes to discourage such activity.
As a guardrail, the proposed § 668.28(a)(3)(iii) would clarify that for a proprietary institution to count the funds as non-Federal revenue in 90/10, funds paid on behalf of a student must come from a source unrelated to the institution, its owners, or affiliates. Funds coming from the institution, its owners, or its affiliates are not sources ”other than the institution.”
As an additional guardrail, proposed § 668.28(a)(3)(iii) would allow proprietary institutions to count funds as non-Federal revenue only for programs that: (1) do not include any courses offered in an eligible program that is provided by the institution; (2) are taught by one of its instructors of an eligible program; and (3) are located at its main campus, one of its approved additional locations, a location approved by the State agency or accrediting agency, or at an employer facility. As mentioned, the Department is interested in ensuring that proprietary institutions are not creating programs that are not aligned with the institution or programs the proprietary institution offers and that have little to no oversight to boost its non-Federal revenue in its 90/10 calculation. The Department worked with negotiators to develop consensus language in proposed § 668.28(a)(3)(iii) that allows proprietary institutions flexibility to offer programs more likely to provide value to students due to built-in consumer protection mechanisms—such as those that have been approved by an accreditor or the relevant State agency, those leading to an industry-recognized credential or certification, or those needed for students to maintain or meet additional State licensing requirements—while limiting non-Federal funds included in the 90/10 calculation that are generated from programs with little oversight or consumer protection mechanisms.
The guardrails in § 668.28(a)(3)(iii) were created based on negotiations with non-Federal negotiators and are intended to provide proprietary institutions with the flexibility to count funds from ineligible programs that help students, such as those provided specifically for employees at an employer facility, while balancing protections for students against incentivizing proprietary institutions from creating programs with little oversight to generate non-Federal funds. However, the Department continues to have concerns that allowing institutions to count funds from these programs may serve as an incentive for proprietary institutions to create and market ineligible programs—which lack oversight or consumer protections or may be unrelated to preparing students for gainful employment—to increase the amount of non-Federal funds institutions receive for gainful employment programs in a fiscal year. The Department seeks feedback about how to provide flexibility to proprietary institutions to offer ineligible programs that provide value to students while ensuring that revenues from those programs is related to the institution's eligible programs that are subject to the 90/10 revenue requirement. The Department also seeks feedback on appropriate mechanisms to ensure that these opportunities to generate non-Federal funds are adequately monitored to identify institutions that may be passing the 90/10 requirements as a result of such programs.
Additionally, proposed § 668.28(a)(3)(iii) would disallow revenue from ineligible programs where the proprietary institution primarily provides facilities for test preparation courses, acts as a proctor, or oversees a course of self-study or prepares students to take an examination for an industry-recognized credential or certification issued by an independent third party. The Department does not believe that the institution providing facilities, acting as a proctor, or overseeing a course of self-study represents the proprietary institution providing training or education. Additionally, the Department proposes to disallow revenue from programs where the proprietary institution prepares students
Proposed § 668.28(a)(4)(i) and (ii) would modify the treatment of other Federal and non-Federal funds used to pay a student's tuition, fees, or other charges to: (1) clarify that grant funds from non-Federal public agencies can be counted as satisfying a student's tuition, fees, or institutional charges as long as those grant funds do not include Federal or institutional funds. If a portion of those grant funds are Federal, the proposal would allow the non-Federal portion of the grant to be counted as satisfying a student's tuition, fees, or institutional charges as long as the Federal portion is included as Federal funds under this section; (2) clarify that private sources must be unrelated to the institution, its owners, or affiliates; and (3) clarify that any contractual arrangement to provide job training must be between the proprietary institution and a Federal, State, or local government agency.
The Department proposes to clarify in § 668.28(a)(4)(i)(A) that the Federal portion of grants provided by non-Federal public agencies cannot be counted as a non-Federal payment of a student's tuition, fees, and other institutional charges. However, the non-Federal portion of the grant may be counted in these instances provided that the Federal portion of the grant is counted as Federal revenue. Without this clarification, a proprietary institution could use Federal funds from such a grant to reduce the amount of Federal funds from another source included in a proprietary institution's 90/10 calculation, which would not align with the statutory intent. During negotiations, most non-Federal negotiators supported this inclusion and stated that non-Federal public agencies are required to strictly track how Federal funds are spent in accordance with Federal funding requirements. Thus, the Department believes that proprietary institutions could work with the non-Federal agency to obtain the Federal/non-Federal breakdown of grant funds.
The Department also proposes to clarify in § 668.28(a)(4)(i)(B) that grant funds from private sources used to satisfy a student's tuition, fees, and other institutional charges to reduce the amount of Federal funds counted in the 90/10 calculation must come from a source unrelated to the institution, its owners, or affiliates. The Department interprets “independent of the institution”
The Department's proposed change in § 668.28(a)(4)(ii), which addresses funds provided through contractual arrangements for job training between an institution and a Federal, State, or local government agency, is not believed to change the meaning of the current regulations in this area. The Department is simply proposing to add the words “the institution and” before the reference to the applicable government agency, which will clarify that the proprietary institution is the entity entering into an agreement with a Federal, State, or local government agency, already the implied meaning of the regulations.
(1) Change “must” to “may” include institutional aid as allowable non-Federal revenue in a proprietary institution's 90/10 calculation;
(2) Consolidate, simplify, and codify accounting practices in the regulations to provide that allowable revenue from institutional loans be treated as the amount of principal payments made on those loans, as long as those loans meet the same criteria as the current regulations;
(3) Create clear guidelines for allowing proprietary institutions to count payments representing principal payments on ISAs or other alternative financing agreements as non-Federal revenue in its 90/10 calculation;
(4) Prohibit the sale of ISAs or other financing agreements owned by an institution from being included as non-Federal revenue; and
(5) Maintain current regulations in § 668.28(a)(5)(iv) allowing certain qualifying scholarships for academic achievement or financial need to be counted as non-Federal revenue but clarifying what the term “outside sources” means in the regulation.
The Department proposes to remove current § 668.28(a)(5)(ii) and (iii) and move those provisions on how proprietary institutions may count payments made on institutional loans as non-Federal revenue to § 668.28(a)(5)(i). The Department proposes to remove from § 668.28(a)(5)(i) the net present value calculation language for loans made to students in a given fiscal year between July 1, 2008, and July 1, 2012, because this requirement no longer applies.
Additionally, proposed § 668.28(a)(5)(i) would codify that only the amount of principal payments made on institutional loans count as non-Federal revenue. This is already how the Department treats 90/10 calculations in practice because the interest portion of the payments does not represent revenue the institution receives for tuition, fees, and other permitted charges. The Department believes that the proposed regulations would clarify expectations and the Department's current practice.
Some non-Federal negotiators raised concerns that proprietary institutions may be incentivized to offer predatory ISAs and recommended that the Department add a section to § 668.28(a)(5) stating that ISAs are institutional loans since the Consumer and Financial Protection Bureau (CFPB) issued a consent order on September 7, 2021, finding that a student loan originator's ISAs are private education loans under the Truth in Lending Act (TILA) and the CFPB's implementing regulations Regulation Z.
Proposed § 668.28(a)(5)(ii)(A) and (B) include specific information about what would be required to be included in an ISA or other alternative financing agreement if it comes from the institution or a related party—including clear information about the payments that are required and the charges covered, the maximum time and amount a student would be required to pay, and a reasonable imputed or implied interest rate—for that agreement to qualify for the purposes of inclusion in 90/10. With this proposal, the Department aims to
The Department proposes in § 668.28(a)(5)(ii)(C) that a proprietary institution may only count the payments made by the recipient of the ISA or other alternative financing agreement as revenue instead of counting the ISA as revenue when applied to a student's account if the agreement is between the student and the institution only or with a related party to include any entity in the ownership tree, any common ownership, or any other contractual agreement or continuing financial relationship. Only counting payments made on the ISA or alternative financing agreement mirrors how payments on private loans are treated in the 90/10 calculation under § 668.28(a)(5)(i). Additionally, the Department proposes this regulation to encompass the range of actors that may be connected to the interests of the proprietary institution and to reflect that the funding for the ISA may be directly or indirectly paid or subsidized from the institution or related party rather than from a private source.
Proposed § 668.28(a)(5)(ii)(D) would require ISAs or other alternative financing agreements between the student and the institution or related party to have an implied or imputed interest rate equal to or less than the Federal Direct Unsubsidized Loan interest rate for the same borrower type at the time the agreement was signed for a proprietary institution to count payments made on the product for purposes of 90/10. Given that high interest rates can cause balances to balloon beyond a borrower's ability to repay, the Department believes it is prudent to avoid incentives for proprietary institutions or entities associated with them to encourage students to take ISAs or other alternative financing products with higher interest rates, especially given that private loans or other private credit products do not have the same consumer protection measures as Federal loans. The Department proposes that the implied or imputed interest rate not be higher than the Federal Direct Loan interest rate at the time the agreement is signed, given that that type of loan is the most common type of Federal loan that students take out.
As with private loans, proposed § 668.28(a)(5)(iii) would disallow proceeds from the sale of the ISA or other alternative financing agreement and would count as non-Federal revenue only cash payments on the ISA or other alternative financing agreement. Like our rationale for adding the sale of private loans as an excluded source of funds, we do not believe that proceeds from the sale of ISAs or other alternative financing agreements represent non-Federal funds paid to an institution for tuition, fees, or other permitted costs.
Proposed § 668.28(a)(5)(iv) would clarify how proprietary institutions can count institutional scholarships as revenue generated from institutional aid. We propose to clarify that scholarships must be designated funds from an outside source that is unrelated to the institution, its owners, or affiliates. The Department interprets current § 668.28(a)(5)(iv), which provides that funds must come from “an outside source,” to exclude funds from an institution's owners or affiliates, as those are not outside sources. The proposed regulations simply codify and more clearly explain how the Department interprets “outside sources.”
The Department proposes the § 668.28(a)(6)(vi) prohibition on counting the proceeds of the factoring or sale of accounts receivable or institutional loans, regardless of whether the loans were sold with or without recourse, because the Department believes that excluding the proceeds of these sales is necessary to implement the intent of the 90/10 revenue requirement. One non-Federal negotiator raised concerns about prohibiting this source of revenue when loans are sold with recourse, because the institution is responsible for non-performing loans. Through program reviews and other oversight activities, the Department has observed instances where sales of institutional loans were made at inflated prices to entities that were later identified as being parties to other business relationships with the institution. Even when sales of these accounts are made to unrelated parties, the revenue to the institution is for an asset sale and not a payment by that party for the education provided by the institution, as intended under the statutory 90/10 revenue requirement.
The proposed addition of § 668.28(a)(6)(vii) would restate that an institution, its owners, or its affiliates cannot provide any funds, including loans, that are counted as non-Federal revenue for 90/10. This proposed addition aligns with section 487(d)(1)(C)(i) and (d)(1)(D)(iii) of the HEA, respectively, which provide that only grants and scholarships from “private sources independent of the institution” and “an outside source,”
Additionally, proposed § 668.28(c)(4) would continue to require a proprietary institution report if it failed 90/10 for the prior year no later than 45 days after the end of the fiscal year. It would further provide that a proprietary institution must immediately report a 90/10 failure if it determines after the 45-day reporting period that it failed the 90/10 requirement for the prior fiscal year.
Multiple negotiators raised the possibility that there may be instances where proprietary institutions obtain additional information pertaining to the amount of Federal aid awarded to students during the previous fiscal year after the required 45-day reporting window. The Department believes it is important for proprietary institutions to disclose if they meet the 90/10 revenue requirements in a timely manner because the Department believes it is prudent to quickly stop the flow of title IV, HEA program funds to institutions that lose eligibility for title IV, HEA funds to prevent improper payments. Thus, the Department proposes to maintain the 45-day reporting requirement. To address the concerns that negotiators raised, the Department proposes to add a requirement that a proprietary institution notify the Secretary immediately if it obtains
The Department also proposes to add a requirement in § 668.28(c)(5) that proprietary institutions are liable for title IV, HEA program funds they disburse after the fiscal year they become ineligible due to failing 90/10, with the exception of funds they are entitled to disburse under § 668.26. This liability for grant and loan funds disbursed after an institution loses eligibility due to the 90/10 rule remains unchanged, but the Department previously established repayment liabilities only for the portion of ineligible loan funds made to students that the Department estimated would default. Through audit reviews, the Department has observed cases where institutions delayed notifying the Department of their 90/10 failure in order to delay their loss of eligibility for title IV, HEA funds. The Department believes that limiting the liability of funds disbursed to only a portion of disbursements may create incentives for such behavior. Thus, the Department proposes to require the proprietary institution to repay all grant and loan funds disbursed to students under these circumstances. The Department also believes that this proposal is more equitable to students because previously students were responsible for repaying loans disbursed after the institution was not eligible to disburse, even where the students may not have known the institution was ineligible. This proposal will shift responsibility for these funds to institutions, avoiding unnecessary and disallowed borrowing by students.
The Department believes that this proposed change would likely minimally impact institutions. The Department has observed that losing eligibility for title IV, HEA funds, which would always happen in these instances, is what has the largest impact on institutions. Additionally, the Department believes that this proposed change would discourage institutions from delaying reporting their 90/10 failure or disbursing funds when they are not eligible to do so.
This proposal reflects an existing policy that requires the distance education programs of an institution to be associated with the main campus of the institution. In general, the vast majority of institutions that offer distance education programs are already associated with the institution's main campus. However, one negotiator raised concerns that the policy was not consistent with some institutions' current practice. The Department is committed to working with institutions to implement any needed changes to ensure they can comply with the Department's proposed definition of additional locations and distance education. The Department would also provide a reasonable period of implementation time to ensure institutions are able to come into compliance with these proposed provisions, should they be finalized. We seek comment from the public about what period of time would be reasonable for full implementation of this requirement as proposed.
However, in 2016, a new process began that substantially strengthened the Department's review. For conversions reviewed after that time, the Department has carefully reviewed the terms of the transaction, including ongoing agreements or relationships with former owners to determine whether such former owners improperly benefitted. The Department's stronger review process more reliably assesses whether the institutions that underwent such reviews met the requirements for a nonprofit institution than did earlier reviews. As the Department's approach has evolved, in more recent cases the Department has correctly interpreted the current language in 600.2 to encompass a more detailed analysis in order for the Secretary to make a determination about whether any part of a school's `net earnings benefits any private shareholder or individual,' which is required by the HEA. These regulations propose to clarify the definition of a nonprofit institution in furtherance of the Department's efforts to address inappropriate requests for conversion to nonprofit status. This is consistent with the Department's current treatment of nonprofit institutions, and by including it in the regulations, we seek to provide more clarity to the field about the Department's existing policy.
The Department would clarify that it considers these types of transactions and agreements when it reviews an application for a change in ownership resulting in a change of control in which the institution seeks to convert from proprietary status to nonprofit or public status. The Department may also consider such agreements or transactions at recertification of the institution's eligibility to participate in the title IV, HEA programs, or when information otherwise becomes available to the Department, including as a result of action taken by, or information received from, the IRS or a State. In general, the Department considers, and would clarify that it will continue to consider under these proposed rules, an institution to meet the definition of a nonprofit institution if it has undergone a comprehensive review by the Department of its revenue-based or other agreements, its debts owed to a former owner of the institution, and other relevant information; if the Department approved such agreements; and if those agreements remain largely unchanged since the latest review.
Some members of the negotiating committee raised concerns that the proposed definition of a nonprofit, which prohibits the net earnings of the institution from benefitting any private entity or natural person, would prevent an institution from engaging in business relationships with other types of vendors. However, the Department notes that the purpose of this proposed clarification is not to encompass traditional vendor relationships an institution engages in with an unrelated party, such as a contract with a campus bookstore or with a company providing food preparation services. Rather, the Department's proposed language would codify existing requirements for nonprofit organizations, and (through the examples the Department proposes to explain how it considers the net earnings calculation) would seek to address contractual relationships, particularly with the former owner of an institution, that are overpriced according to the market for associated goods and services in that sector. Accordingly, we are committed to requiring and assessing independent valuation reports that meaningfully address the reasonable relationship between a price charged to an institution for a revenue-sharing or other agreement and the market price for that service or agreement, along with any restrictions on an institution's ability to obtain similar services from independent providers. A valuation report would be closely scrutinized to ensure it meets the Department's high standards for independence and methodology. The Department seeks feedback about whether the proposed language is sufficient to ensure that nonprofit institutions are operating in ways consistent with the principles and expectations for nonprofit organizations.
The Department also considered whether improvements are needed to the definition of a foreign nonprofit institution, including to ensure such institutions meet the definition under the Higher Education Act to require that no part of the net earnings benefits any private entity or natural person, and proposed to include such institutions within that requirement. We seek feedback from commenters about the appropriate documentation that the Department should require from foreign institutions in evaluating their consistency with the requirements of a nonprofit institution.
Finally, the Department considered the concerns that negotiators raised that the process would be too onerous for the Department to effectively demonstrate a revenue-sharing or other agreement with a former owner is not consistent with reasonable market value for such services. We note that the Department has more experience in recent years with evaluating such agreements and reviewing valuation reports to inform our analysis. Moreover, the Department's expertise in administering the title IV, HEA programs provides specific and important context for assessing questions as to whether revenue-sharing and other agreements, particularly with a former owner of the institution, have unique impacts in the context of educational programs and title IV in particular. As such the Department is uniquely situated to conduct this important analysis in the context of the HEA and specifically in the context of title IV participation. The Department is confident that we can continue to maintain high standards for these evaluations, and we are committed to doing so. We also believe the proposed regulations would retain sufficient flexibility for the Department to assess these types of agreements, determine whether they are appropriate and compliant with the intent of the proposed regulations, and enforce the new provisions of the proposed rules. We invite feedback on ways to codify these processes.
The proposed regulations would add in § 600.20(g)(2) that, even with the submission of the above items, the Department may determine that the participation of the institution should not be continued following the change in ownership. The proposed rules also add that the institution would need to include, with the submission of its State license to operate and the document showing its accreditation, documentation that, as of the day before the change in ownership, both the State license and accreditation remained in effect.
When a new owner does not have any acceptable audited financial statements, the new owner would be required to provide financial protection in the amount of at least 25 percent of the institution's prior year volume of title IV aid. When a new owner does not have two years of acceptable audited financial statements but has one year, the new owner would be required to provide financial protection in the amount of at least 10 percent of the institution's prior year volume of title IV aid. This proposal is similar to existing requirements for participating institutions that fail the composite score under the financial responsibility regulations.
Financial protection in the amount of an additional 10 percent (or more) of the institution's prior year volume of title IV aid may also be required under the proposed rules in § 600.20(g)(3)(v) if deemed necessary by the Department. If any entity in the new ownership structure holds a 50 percent or greater voting or equity interest in another institution or institutions, the financial protection may also include the prior year volume of title IV aid (or more) for all institutions under such common ownership.
The Department has proposed to retain additional flexibility in the review and approval of a change in ownership application. Under § 600.20(g)(2), the Department preserves the ability to deny an institution's application to continue participating in the title IV programs following the change in ownership. This recognizes that some transactions have proven extremely risky for students and taxpayers, particularly as documented by the GAO report on college conversions.
To better inform the Department's decision about whether to approve the application for the change of ownership or to approve it with conditions, § 600.20(g)(3) would further specify the types of documentation that must be submitted to support the change in ownership application. Specifically, the proposed regulations would capture existing practice related to the submission of a new owner's audited financial statements, along with the state authorization and accreditation documentation that is required under current regulations. The proposed language specifies that the institution must submit documentation that confirms that, as of the day prior to the change in ownership, the institution's State license to operate and accreditation remained in effect. This would ensure that the documents the Department receives to evaluate the institution's standing are not “stale,” and accurately reflect the institution's current standing. The proposed change would also add a regulatory provision resembling the existing practice of requiring financial surety if the new owner cannot provide one or two years of audited financial statements. In such cases, the Department's practice is to require the new owner to post at least a 10 percent letter of credit if only one year of audited financial statements are unavailable or at least 25 percent if two years of audited financial statements are unavailable. This practice was designed to recognize that the Department is taking a chance on a new owner who has not met the requisite documentation
The proposed regulations would also provide that the Department may require additional financial surety as needed to ameliorate financial or administrative risk on a case-by-case basis. This financial surety may be based on the title IV volume received in the prior year by the institution or—in the case of an entity in the new ownership structure that has at least a 50 percent interest in another institution(s)—by all institutions that fall under that common ownership. This is intended to allow setting the size of the financial surety provided to be commensurate with the level of financial risk that the institution may present to taxpayers, a concern raised by non-Federal negotiators at the table. The Department is particularly concerned about surety levels where, for instance, a smaller institution acquires a much larger one. In such cases, a letter of credit requirement based only on the title IV volume of the smaller institution would severely underestimate the financial risk that the transaction presents.
Terms of the extension.
Among the items needed for the Department to extend the TPPPA on a month-to-month basis following expiration, the proposed amendments would specify that the “same-day” audited balance sheet is for proprietary institutions and the audited statement of financial position is for nonprofit institutions. For the State approval of the change of ownership, the proposed regulation would require approval of all States in which the institution is physically located, or for distance education-only institutions, approval of the relevant State as determined under the revised definition of distance education in § 600.2.
The Department proposes to retain the requirements in current § 600.20(h)(3) that specify the institution must provide a “same-day” balance sheet, approval of change in ownership from the State, approval of change in ownership from the accrediting agency, and a default management plan. However, the Department proposes several clarifying changes to those requirements. In response to a suggestion from a non-Federal negotiator, we propose clarifying that proprietary institutions must provide a “same-day” audited balance sheet. As proposed, nonprofit institutions would instead submit an audited statement of financial position. These proposed changes would align terminology with the appropriate accounting terminology in those sectors. Additionally, the Department has further clarified that the approval of the change in ownership would apply to any State in which the institution is physically located and that, for institutions that offer only distance education, the approval should be provided for the State in which the institution is authorized to provide postsecondary education. These are proposed technical changes to clarify how institutions are expected to obtain and submit the appropriate approvals. With more institutions growing to operate across many states and more institutions operating entirely online, we are seeking to provide clarity to the field about the Department's expectations.
§ 600.21 Updating application information.
Reporting requirements.
We propose to add a new paragraph (a)(15), which would require that any change in the ownership of the institution would be reportable if it does not result in a change of control under proposed § 600.31 and is not addressed under proposed § 600.21(a)(6), including the addition or elimination of any entities in the ownership structure, a change of entity from one type of business structure to another, and any excluded transactions under the proposed revisions to § 600.31(e).
Other entities.
An action that may be treated as not resulting in a change in control includes a routine business practice, as determined by the Secretary, or the sale or transfer of the ownership interest in the institution of a person who dies to a family member or to a person already holding an ownership interest.
• When a person, a combination of persons, or a partner in a general partnership acquires or loses at least 50 percent of the total outstanding voting interests in the entity or partnership or otherwise acquires or loses 50 percent control;
• Any change of a general partner of a limited partnership or a managing member of a limited liability company if that person also holds an equity interest;
• A person becomes or is replaced as the sole member or shareholder of an entity that has a 100 percent or equivalent direct or indirect interest in the institution;
• An entity that has a member or members ceases to have any, or one that has no members becomes an entity with a member or members;
• The addition or removal of any entity that provides or will provide the audited financial statements to meet any of the requirements in § 600.20(g) or (h) or part 668, subpart L;
• The transfer of 50 percent or more of the voting interests in the institution or an entity to an irrevocable trust, except where it meets the proposed definition of an excluded transaction under § 600.31(e); and
• Upon the death of an owner who previously transferred 50 percent or more of the voting interests in an institution or an entity to a revocable trust, except where it meets the proposed definition of an excluded transaction under § 600.31(e).
Proposed § 600.31(c)(3)(iii) would also provide what the Department considers circumstances that meet the new 50 percent threshold: family members who individually hold less than 50 percent ownership interest in an entity but together hold a combined ownership interest of at least 50 percent or, similarly, a group of persons who individually hold less than 50 percent ownership interest in an entity have a combined ownership interest of at least 50 percent either as a result of common ownership, management, or control of that entity, either directly or indirectly, or as a result of proxy agreements, voting agreements, or other agreements (whether or not the agreement is set forth in a written document), or by operation of State law.
Irrespective of proposed § 600.31(c)(3)(ii) and (iii), proposed § 600.31(c)(iv) would also provide that: (1) any person is deemed to have control who alone or in combination with others has the right to appoint a majority of any class of board members of an entity or an institution, and (2) when a person who alone or in combination with others holds less than a 50 percent ownership interest in an entity, the Secretary may yet determine that the person, alone or with the others, has actual control over that entity and is subject to the requirements of § 600.31.
Some negotiators raised concerns that the Department would not adequately capture persons with control of an institution but who hold less than a 50 percent ownership interest because the 50 percent threshold would allow higher levels of ownership and more room to operate by those seeking to avoid scrutiny than the 25 percent level currently in regulations. The Department shares the concern of negotiators about institutions or their owners seeking to evade the Department's rules and therefore proposes to both lower the threshold for requiring reporting on changes in ownership interest under § 600.21(a)(6)(i) for increased transparency and to preserve sufficient discretion to assess changes of control below the proposed 50 percent threshold in § 600.31(c)(3)(iv). Specifically, the Department proposed defining language in § 600.31(c)(3)(iv) to provide that where a change in ownership results in a change of control, the Secretary would have authority to determine that there has been a change in control if a person holds less than a 50 percent interest in the institution but has actual control over the entity. Such control may be either alone or in combination with other individuals, such as through the establishment of voting agreements among multiple individuals, each with less than a 50 percent ownership interest. Control would also be identified where a person or combination of persons has the right to appoint a majority of any class of board members of an entity or institution—a clear-cut case of control. We believe these proposed revisions would improve the Department's ability to identify cases of changes in control below the 50 percent level without drawing unnecessary Department resources to reviewing changes in
An action that may be treated as not resulting in a change in control includes a routine business practice, as determined by the Secretary, or the sale or transfer of the ownership interest in the institution of a person who dies to a family member or to a person already holding an ownership interest.
Ownership changes that do not result in a change of control occur when there is a transfer of ownership and control of an owner's equity or partnership interest in an institution, its parent, or another entity that has signed the PPA either from an owner to a family member or, upon the retirement or death of the owner, to a person with an ownership interest in the institution who, for at least two years prior to the transfer, has been involved in the institution's management and has established and retained the ownership interest.
Among the excluded transactions, proposed § 600.31(e)(2) and (3), respectively, would add irrevocable trusts in which the transfer of the owner's interest is to a trust and the trustee includes only the owner and/or a family member, as defined in current § 600.21(f), and revocable trusts in which an owner has transferred an interest to the trust and then dies. The trust transaction is proposed to be excluded so long as the trustee at the time of death and any successor trustees are only family members of the former owner, as defined in current § 600.21(f). Finally, proposed § 600.31(e)(4) would add to excluded transactions a transfer to an individual owner who has retained an ownership interest and has been involved in the management and ownership of the institution for at least two years preceding the transfer, either as a result of the death of another owner, or as a result of the resignation of another individual owner who has been involved in the management of the institution for at least two years and who has established and retained an ownership interest for at least two years prior to the transfer.
Under Executive Order 12866, the Office of Management and Budget (OMB) must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive Order and subject to review by OMB. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive Order.
The Department estimates the quantified annualized economic and net budget impacts to be $835 million, consisting of an $879 million net increase in Pell Grant transfers and $−44.3 million reduction in loan transfers among students, institutions, and the Federal Government, including annualized transfers of $82.7 million at 3 percent discounting and $81.9 million at 7 percent discounting. Additionally, we estimate annualized quantified costs of $3.4 million related to paperwork burden and $1.1 million of administrative costs to the government. Therefore, this proposed action is “economically significant” and subject
We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these proposed regulations only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that these regulations are consistent with the principles in Executive Order 13563.
We have also determined that this regulatory action would not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.
As required by OMB Circular A-4, we compare the proposed regulations to the current regulations. In this regulatory impact analysis, we discuss the need for regulatory action, potential costs and benefits, net budget impacts, and the regulatory alternatives we considered.
1.
The Department has identified a significant need for regulatory action to address inadequate protections for students and taxpayers in the current regulations and to implement recent changes to the HEA statute.
In the Consolidated Appropriations Act, 2021, Congress added a new provision allowing confined or incarcerated individuals to access Pell Grants for enrollment in approved Prison Education Programs (PEPs). Regulatory changes are necessary to implement the law and to ensure access to high-quality postsecondary programs for incarcerated individuals. Among existing higher education programs in prisons, there is considerable variation among programs related to their available resources, the requirements they follow to operate the facilities, and the depth of stakeholder partnerships they have established.
The Department has explored postsecondary education for incarcerated individuals through its Second Chance Pell experiment, first announced in 2015.
Correctional education can offer rehabilitation to incarcerated individuals, because the programs are able to capitalize on acquired education and skills. Soft skills in particular, such as communication and interaction with others, are a significant benefit of correctional education.
The Department proposes a framework for PEPs that would clarify and implement statutory requirements for the benefit of incarcerated individuals and other stakeholders, including correctional agencies and institutions, postsecondary institutions, accrediting agencies, and related organizations. Our proposed regulations include clarified definitions of confined or incarcerated individuals and prison education programs that align with the statute. The Department also proposes to provide greater clarity on the processes that the oversight entity (including the State Department of Corrections or the Bureau of Prisons) would follow in determining whether a prison education program is operating in the best interests of the students. Consistent with the statute, the proposed regulations would prevent proprietary institutions or institutions subject to certain adverse actions from offering PEPs. We also propose protections for incarcerated students against programs that do not satisfy applicable licensure or certification requirements or where such students are typically prohibited under Federal or State law from employment in the field due to the specific conviction of the student. Under the proposed rules, institutions would also be required to provide disclosures for students if their program is designed to lead to occupations in which formerly incarcerated individuals typically face barriers in other States. These proposed regulations are designed to clarify how oversight entities can meet the requirements of the statute, and to guide PEP educational institutions and practitioners on access to, and eligibility for, Federal Pell Grants.
The ARP amended section 487 of the HEA to require that proprietary institutions count all Federal funds used to attend the institution as Federal revenue in the 90/10 calculation, rather than only counting title IV, HEA program funds. In FY 2021, proprietary institutions were eligible to receive funding from at least 26 non-title IV Federal programs. The largest two non-title IV, Federal programs with documented funding provided to proprietary institutions were Post-9/11 GI Bill education benefits, which accounted for approximately $1.3 billion in FY 2021, and the Department of Defense (DOD) Tuition Assistance program, which accounted for $185 million in that year. Some proprietary institutions have aggressively recruited service members and veterans in order to use funds from GI Bill education benefits and DOD Tuition Assistance to comply with the current 90/10 requirement since these funds helped offset title IV, HEA program funds in the calculation.
In addition, the proposed revisions to § 668.28 would modify allowable non-Federal revenue in the 90/10 calculation to better align the regulations with statutory intent and address practices proprietary institutions have employed to alter their 90/10 calculation or inflate their non-Federal revenue percentage. These combined changes include:
(1) Creating a new requirement for when proprietary institutions must request and disburse title IV, HEA program funds to prevent delaying disbursements to the subsequent fiscal year in order to reduce their Federal revenue percentage for the preceding fiscal year. The proposed changes to the disbursement rules in § 668.28(a)(2) would prevent such practices.
(2) Clarifying the requirements that ineligible programs must meet in order to be included in the 90/10 calculation under current regulations. The Department is concerned that these sources of non-Federal revenue may provide an incentive for institutions to create, offer, and market programs with little oversight or few consumer protections, or to create programs that bear little, if any, relationship to eligible programs subject to the 90/10 revenue requirement in order to increase the amount of non-Federal funds proprietary institutions received in a fiscal year to comply with 90/10. The proposed changes to § 668.28(a)(3) would prevent such revenue from being included to inflate the amount of non-Federal funds.
(3) Creating guardrails for ISAs and other financing agreements between students and proprietary institutions. Payments made by students or former students on institutional loans or alternative financing agreements currently count as non-Federal revenue in a proprietary institution's 90/10 calculation, and thus some proprietary institutions may have an incentive to encourage students to utilize these products.
(4) Modifying revenue that must be excluded from the 90/10 calculation. The Department proposes to modify allowable revenue generated from institutional aid and funds that cannot be included in the 90/10 calculation to prohibit proprietary institutions from including revenue from the sale of ISAs, alternative financing agreements, or institutional loans in their 90/10 calculation. The revenue to the institution from these transactions is for an asset sale and not a payment by that party for the education provided by the institution as intended under the 90/10 revenue requirement. Thus, the Department does not consider funds generated from these sales as representative of funds paid to the institution for the purposes of education and training. The proposed addition of § 668.28(a)(5)(iii) and § 668.28(a)(6)(vi) would explicitly exclude proceeds from such sales from being counted as non-Federal revenue in the 90/10 calculation.
Finally, the revisions would also delete several outdated provisions, such as those related to the ECASLA of 2008.
The Department has received a growing number of applications for CIO in recent years. While most did not involve a conversion from proprietary status, over 150 transactions were processed in the three years following October 2018; dozens more remain pending. Moreover, the CIO applications that the Department has received and reviewed are increasingly complex and require significant effort and expertise to review, particularly given that the current regulations are
The Department is also proposing new regulations to clarify the requirements for institutions undergoing CIOs, including to require adequate advance notice of such transactions to ensure the Department can assess the requirements of continued participation in the title IV, HEA programs prior to the transaction being completed. Further proposed regulations would increase transparency into CIOs to better enable the Department to identify individuals with control over the institution, while reducing the burden of reviewing transactions in which a change in ownership is unlikely to result in a change in control. The proposed rules would also clarify that the Department may apply the necessary terms for continued participation in the federal financial aid programs to ensure that we are able to take appropriate steps to protect students and taxpayers from risky transactions. Proposed changes to the definition of a nonprofit institution would clarify the requirements for operating such institutions to prohibit enrichments to private parties, ensuring that proprietary institutions are not able to receive approval as nonprofit institutions without sufficiently addressing their business practices and the profit interests of former owners.
To provide additional clarity to institutions and ensure consistency in the application of the regulations, the Department is also proposing some technical changes to adjust the definitions of additional locations and branch campuses of the institution to conform with current practice and clarify how the Department views such locations.
2.
Pursuant to the Congressional Review Act (5 U.S.C. 801
3.
3.1
In its current form, the HEA prohibits students who are incarcerated in a Federal or State penal institution from participating in the Federal Pell Grant program, which provides need-based grants to low-income undergraduate and certain post-baccalaureate students to promote access to postsecondary education. This restriction prevents many otherwise eligible incarcerated individuals from accessing financial aid and benefiting from the postsecondary education and training that can be crucial to their successful reentry into society and their communities upon the completion of their sentences. The HEA was amended to eliminate this restriction for students who meet the definition of confined or incarcerated individuals and who enroll in eligible PEPs. The Department is seeking to implement the statutory requirement to extend Federal Pell Grant eligibility to incarcerated students and to increase their participation in high-quality educational opportunities.
The proposed regulatory changes would impose some additional costs on the Department, educational institutions, oversight entities, and accrediting agencies.
First, adding eligible Pell Grant recipients as provided for by Congress would expand the costs of the Pell Grant program for the Federal government. The Department expects these costs to be more than offset by the benefits noted in the benefits section, however, especially in the form of lower
Second, the educational institutions offering in-prison instruction would face some additional costs of achieving and maintaining compliance with new, higher standards. Thus far, correctional education programs have not had to comply with the same requirements as programs that receive title IV and Federal Pell Grant funding, although institutions that participate in the Second Chance Pell experiment have already met some of these requirements for the programs for incarcerated individuals. Additional costs of meeting the higher standards may include the cost of seeking and obtaining approval of initial PEP offerings from the accrediting agency and the Secretary, as well as the costs of providing the data necessary for the oversight entity to determine whether the PEP is operating in the best interests of students. Correctional facilities may also face some increased costs related to providing appropriate facilities and resources, including staffing, to support the prison education program as they partner with higher education institutions. Both institutions and correctional facilities would also face increased costs associated with required support services for their students, including appropriate academic and career counseling, as well as support to help prospective students complete the Free Application for Federal Student Aid®. The Department invites the public to provide comment on the potential compliance costs associated with these proposed regulations for each of the above-mentioned stakeholders to inform the final regulations.
Additionally, oversight entities may incur additional costs to oversee the development and operation of eligible PEPs. For example, as required by proposed §§ 668.236 and 668.241, the oversight entity would be required to develop an appropriate process to approve PEPs and determine if they are operating in the best interest of students. The “best interest” determination would require assessment of several identified inputs and outcomes and would require collaboration with relevant stakeholders. All of these would represent an increase in costs for the oversight entity.
Accrediting agencies may also face associated costs related to the approval of PEPs and the required site visit. However, the accrediting agency may, in turn, require the institution of higher education to cover the additional costs associated with the proposed regulations. This would represent a transfer of these costs from institutions to the accrediting agencies.
Finally, the Department would incur some additional burden and cost associated with its obligation to oversee PEPs and to support oversight entities and institutions. For instance, the Department has offered to provide a significant amount of data to the oversight entities to assist them in making the best interest determination. The Department is also committed to providing needed technical assistance to the field. The Department estimates that the costs of systems changes to reflect the requirements outlined in the regulations, oversight to ensure institutions comply with these rules, and training support to provide technical assistance to the field will total approximately $1.1 million for implementation of these proposed regulations.
Many of the individuals in the growing prison population have lower levels of educational attainment compared to the general population. This research finds that incarcerated adults have a postsecondary educational attainment level of just 15 percent, compared with nearly half of the general public. About two-thirds of incarcerated adults have a high school diploma or equivalent.
Extending Pell Grants to eligible PEPs would provide numerous economic and public safety benefits to incarcerated individuals, to their communities when they return, and to states and the Federal government in the form of more successful rehabilitation of imprisoned individuals, lower recidivism rates, higher employment rates, greater contribution to the economy, and ultimately cost savings for the government. These effects and benefits are enabled through increased educational attainment.
Numerous studies have shown that providing education programs to incarcerated individuals is a significant factor in successful rehabilitation and subsequent reentry. First, research demonstrates that correctional education boosts self-confidence and self-worth for confined or incarcerated individuals, which leads confined or incarcerated individuals who attend college eduacation to engage in fewer instances of misconduct than those who did not attend.
In addition to the benefits provided to PEP participants, there are also significant public safety benefits for their communities. Over the last 2 decades, numerous studies have been conducted on the impact of prison education on post-release outcomes for previously incarcerated individuals.
Reducing recidivism also reduces economic, public safety, and personal costs, and correspondingly increases benefits in those categories, for correctional facilities, governments, and our nation as a whole. Additionally, individuals who complete college courses may be eligible for a greater number of higher-paying jobs than those without a college education. Using a hypothetical pool of 100 inmates, a 2014 RAND study illustrated the powerful economic benefit of correctional education programs by comparing the direct costs of such correctional education programs with the costs of reincarceration. The study found that the direct costs of reincarceration were far greater than the direct costs of providing correctional education. For a correctional education program to be cost-effective or “break-even,” it would need to reduce the 3-year reincarceration rate by between 1.9 and 2.6 percentage points. The study's findings indicate that participation in correctional education programs is associated with a 13-percentage-point reduction in the risk of reincarceration in the 3 years following release, demonstrating that correctional education programs appear to far exceed the break-even point in reducing to greatly reduce the risk of reincarceration.
3.2
The American Rescue Plan Act of 2021 amended section 487 of the HEA by modifying which Federal funds proprietary institutions must count in the numerator when calculating the percentage of their revenue that is non-Federal revenue,
Additionally, these proposed regulations modify allowable non-Federal revenue in the 90/10 calculation to better align the regulations with statutory intent and address practices proprietary institutions have employed or may be incentivized to use to alter their 90/10 calculation or inflate their non-Federal revenue percentage. Examples of such practices include: delaying disbursements to avoid failing 90/10 in 2 consecutive years, offering programs with little or no oversight or programs unnecessary to the education or training of students, and selling institutional loans to count the proceeds from the sale in their 90/10 calculation. These proposed regulations would also create guardrails and disclosure requirements. For instance, the regulations require proprietary institutions to notify students if they fail the 90/10 calculation in a fiscal year and may lose title IV eligibility after another year of failing the calculation and promote consumer protection measures and close potential loopholes related to ISAs and other alternative financing agreements. These proposed changes would mainly result in costs to certain proprietary institutions. Institutions unable to generate sufficient non-Federal revenues may seek to generate revenue to meet 90/10 requirements, such as by creating programs that are not title IV eligible, a permissible source of revenue under the proposed regulations. Students at proprietary institutions that fail the 90/10 calculation may no longer be able to enroll at those institutions; however, research has identified that most students affected by such sanctions on their colleges enroll at other institutions, often community colleges, which are typically lower cost.
We expect the proposed revisions to the 90/10 regulations would result in extra costs to the Department and to proprietary institutions in several areas.
First, the proposed regulations would result in some additional burden and compliance costs for proprietary institutions. For example, proprietary institutions would be responsible for identifying and counting more sources of Federal funds in the 90/10 calculation, including Federal funds delivered directly to students, and for adjusting their 90/10 revenue sources and measures based upon the changes in the proposed regulations. Additionally, institutions may need to make changes to programs to align with the new regulations, which would result in extra compliance costs for proprietary institutions. The Department expects that proprietary institutions seeking to meet the 90/10 requirements may improve the overall quality of their programs to attract and enroll more students who pay for courses with sources other than Federal funds including by making any necessary changes to improve the quality and visibility of their programs; partner with employers willing to pay institutions with their own funds, ensuring alignment with labor market needs; and/or create programs that are not eligible for title IV, HEA funds or other Federal funds to generate revenue to meet the proposed 90/10 rule. Such ineligible programs may not have the same level of oversight and may result in courses and educational programs that are of lower quality but enable proprietary institutions to meet the proposed 90/10 requirements. As noted in the Summary of Proposed Changes section, the Department is concerned that allowing institutions to count funds from these ineligible programs may serve as an
Second proprietary institutions that are unable to meet the proposed 90/10 requirements would lose eligibility for Federal aid after failing for two consecutive years. This may mean that some students have their studies disrupted, and may incur additional costs and burdens associated with identifying other educational opportunities and transferring across institutions. However, the Department believes that—as in other cases where institutional accountability rules were strengthened—students may transfer to higher-quality programs at other institutions, which may also be more affordable.
Last, the proposed regulation would include other sources of Federal funds in addition to title IV, HEA funds as Federal sources of revenue for the purposes of calculating 90/10. Rather than specifying all Federal funding sources in the proposed regulations, the Department opts to identify non-title IV, HEA Federal education assistance funds that must be included in the 90/10 calculation in a notice published in the
The proposed 90/10 rule would benefit multiple groups of stakeholders, particularly military-connected students, proprietary institutions that provide programs that generate greater private market demand, public and non-profit institutions, as well as taxpayers.
First, military-connected students would receive the most significant and immediate benefits from the proposed regulations. Some proprietary institutions have allegedly engaged in predatory recruiting practices to recruit service members and veterans because their GI Bill and DOD Tuition Assistance education benefits could help the institution meet the non-Federal revenue requirements in the current 90/10 regulations.
Students who are considering enrolling in proprietary institutions would also benefit from other potential loopholes that we are proposing to close. For example, proprietary institutions would not be able to hide their inability to receive revenue from sources other than Federal education funding if they are not permitted to count revenue sources from certain types of ineligible programs or to delay disbursements to avoid losing eligibility following a failure of the 90/10 calculation during the fiscal year. Like service members and veterans, all such students would also face fewer informational barriers in identifying enrollment options at colleges that are higher quality and more affordable, with fewer failing programs enrolling students using title IV, HEA aid.
Next, the proposed regulations would decrease proprietary institutions' incentive to rely on potentially costly student financing options to meet 90/10 requirements. Some of these student financing options may be harmful to students and result in debt that students cannot pay, such as expensive institutional loans or ISAs. In cases where students do rely on an ISA or alternative financing agreement provided by the institution or a related party, and the proprietary institution wishes to count payments from these arrangements in its 90/10 calculation, the proposed regulations would require that the terms of the agreement be transparent and that the interest rate not be higher than a comparable Direct Unsubsidized Loan to reduce the risk that the balance balloons beyond what the student can afford to repay. This would provide additional protections for students accessing these alternative financing arrangements by increasing transparency about the terms of the arrangement and, in some cases, resulting in better terms offered by the institution, while ensuring minimum standards for the revenue types counted in the 90/10 calculation.
Lastly, there is a benefit to students and taxpayers by more closely aligning allowable non-Federal revenue with the statutory intent of the HEA requiring that institutions demonstrate a willing market beyond taxpayer-financed Federal education assistance by requiring proprietary institutions to bring in at least 10 percent of their revenue from non-Federal sources, such as tuition revenue. Federal funds that go to institutions unable to obtain at least 10 percent of their revenue from non-Federal sources are expected to decrease modestly, as institutions that could not meet the proposed 90/10 rule lose eligibility for title IV, HEA funds. These proprietary institutions would then need to operate without access to title IV, HEA financial dollars provided by taxpayers; identify and enroll students who pay with sources other than Federal funds, including by making any necessary changes to improve the quality and visibility of their programs; or partner with employers willing to pay institutions with their own funds, ensuring alignment with labor market needs and reducing the reliance on taxpayer dollars.
3.3
With the growing complexity of the landscape of changes in ownership in recent years, the Department is proposing to ensure a clearer, more streamlined process for CIOs that
A full, comprehensive CIO review is a significant administrative burden to both the Department and institution, which can take between 7 months and 1 year, on average, for a change in ownership that includes a conversion, and 6 months for a change in ownership that does not. Some institutions close transactions but are unprepared to meet the regulatory requirements for a change of ownership, resulting in burdening the Department with emergency situations where there is a potential loss of institutional eligibility and precipitous closure. The proposed regulations would seek to reduce that risk by ensuring adequate notice is given prior to the closing of a transaction so that the Department can ensure that the institution can meet the regulatory requirements under the time constraints of 600.20(g) and (h), and in particular, that the Department can determine whether a letter of credit is required because the new owner does not have acceptable audited financial statements to meet the requirements of 600.20(g)(3)(iv); clarifying the requirements for approval of a change in ownership application; and establishing appropriate documentation requirements in the regulations.
The Department proposes to clarify definitions related to distance education and campus locations such as the main campus, branch campus, and additional locations. In recent years, educational institutions often operate beyond a single location. Distance education, in particular, has significantly expanded and become increasingly popular in recent years, and higher education institutions that have adapted to meet distance education requirements throughout COVID-19 are often choosing to continue those educational offerings.
Costs associated with this proposed rule primarily relate to increased burden for institutions from provisions that would enhance the Department's review of institutional changes in ownership and their participation in the Federal aid programs, provide for increased oversight of proprietary institutions seeking to convert to nonprofit status, and increase reporting requirements for CIOs.
Some provisions of the proposed rules could be implemented without additional burden to affected institutions. For instance, institutions would not need to expend additional resources to meet the requirement to submit a basic notice to the Department at least 90 days in advance of the transaction, since the same information would be required under current regulations—just earlier. Instead, the Department believes that providing earlier notice would enable us to provide faster determinations related to any potential letter of credit requirement, and to avoid losses of eligibility for institutions failing to meet the requirements of 600.20(g) and (h) immediately after the transaction, as required by regulations. Other aspects of the proposed regulations simplify and codify existing practice by the Department, which would not increase burden to the institution relative to that current practice.
However, other provisions of the proposed regulations could require institutions undergoing CIOs after the rules take effect to meet new requirements and submit additional documentation to meet the Department's requirements. For instance, institutions would be required to provide notice to their students of a forthcoming CIO at least 90 days in advance, requiring the development of communications and resources for students. The Department proposes to lower the reporting threshold for changes in ownership to cover all changes of at least 5 percent ownership interest. A greater number of institutions would need to meet these proposed reporting requirements, which would carry some cost for affected institutions, since the Department currently requires transactions to be reported only if the transaction affects at least a 25 percent ownership interest. However, the Department also proposed to limit reviews of changes in control, which are more burdensome for the institution, generally to those involving a transfer of at least 50 percent control, rather than the current 25 percent. The Department believes that this would provide additional transparency benefits to the Department, while reducing the burden of institutions where a change in control likely has not occurred from more onerous changes in control reviews, which we believe would outweigh the expense from the increased burden of additional reporting. The Department anticipates the reporting burden cost range will be minimal. Additionally, any costs from these proposed rules would only be associated with those institutions undergoing a CIO, which are relatively uncommon. The Department anticipates that the administrative costs to the agency of implementing these changes would be very limited, given the relatively small number of such transactions and the fact that many of these requirements confirm current practice.
The Department believes that the benefits and burden reduction that would result from these proposed regulations would outweigh these new costs. The Department anticipates the proposed regulations would significantly benefit students, taxpayers, institutions, and the Department.
Students, taxpayers, institutions, and the Department would all benefit from increased oversight of proprietary institutions converting to nonprofit status. Historically, these transactions have proven to be a significant risk, resulting in some cases in college closures (and associated closed school discharges), requiring the investment of enforcement and oversight resources by States and the Federal government, and exempting some institutions from regulations governing proprietary institutions—such as the 90/10 rule—improperly. Students, taxpayers, and the Department would all benefit from increased transparency around a proposed transaction, providing more time for the Department to conduct oversight and ensure the transaction is properly conducted and does not result in an interruption of title IV, HEA benefits. Institutions would also benefit from an earlier submission that allows the Department to provide feedback on the proposed transaction before it occurs, since such feedback—for example, regarding whether a letter of credit will be required as part of the transaction—can be critical to ensuring
Students and taxpayers would also benefit from greater assurances that schools are complying with regulatory requirements in CIO transactions and meeting the definition of a nonprofit institution. Current and prospective students would benefit from the requirement that the institution provide notice at least 90 days prior to a change in ownership because the requirement would ensure that students receive important information that would impact their education in a timely manner, and that they are able to make future education decisions (including obtaining copies of their transcripts) based on that knowledge. Students and taxpayers would also benefit from increased oversight of proprietary institutions converting to nonprofit status, including requiring that proprietary institutions continue to comply with regulatory requirements such as gainful employment or the 90/10 rule unless and until they have met the requirements to be approved as a nonprofit institution by the Department. Taxpayers benefit from additional financial protection when the required audited financial statements of a new owner are not available (consistent with current practice), as well as from any additional financial protections that may be deemed necessary by the Secretary pursuant to the risk of the transaction.
Educational institutions would benefit from clearer requirements in the regulations as to how the rules apply to CIO transactions. The revised definition of nonprofit institutions would ensure that institutions seeking such a designation are not using business arrangements that improperly benefit related parties. This clarification would better ensure that institutions know how to comply, and are compliant, with the Department's expectations.
The proposed regulations would also enable a proprietary institution that seeks to convert to nonprofit status to more clearly understand, prior to submitting a CIO application, the CIO process and how the Department would review CIO applications. As these institutions assess potential transactions, they would more easily be able to identify permissible and impermissible contracts and agreements with prior owners. The streamlined process and 90-day advanced notice would also benefit institutions by ensuring that their audited financial statements can be reviewed to determine whether a letter of credit is required prior to the transaction closing. This would also provide notice that the Department may require additional financial surety to ameliorate financial or administrative risk that the institution may present to taxpayers on a case-by-case basis.
The Department would also benefit from clearer regulations and processes that are more easily interpreted and applied. Clearer definitions related to distance learning, as well as main campuses, branch campuses, and additional locations, would simplify and reduce the Department's reviews of institutions and of change in ownership transactions by ensuring greater consistency. The Department would also benefit from the clarifications made to reporting requirements, as lowering the threshold to 5 percent will increase transparency and enable more stringent oversight of changes in control. This greater visibility into voting blocs and lower-level ownership changes will enable the Department to determine where institutions may have undergone a change in control, warranting greater scrutiny by the Department, and to prevent institutions from evading our regulations through corporate changes that skirt the threshold for an automatic change in control review. These CIOs do not occur often, limiting the frequency of added burden from the reporting. The Department would also experience less burden from the proposed change to set the threshold for a change in control review at a 50 percent or greater change in ownership and control or where the Department has reason to believe a change in control has occurred, rather than all changes in ownership over 25 percent.
4.
These proposed regulations are estimated to have a net Federal budget impact in savings of $−44.3 million for loan cohorts 2025 to 2032, and $879 million in net changes to Pell Grants. A cohort reflects all loans originated in a given fiscal year. Consistent with the requirements of the Credit Reform Act of 1990, budget cost estimates for the student loan programs reflect the estimated net present value of all future non-administrative Federal costs associated with a cohort of loans.
The provisions most responsible for the costs of the proposed regulations are in providing Pell Grants for confined or incarcerated individuals in qualifying prison education programs. The Department does not anticipate significant costs related to the change in ownership provisions; and anticipates a small savings due to the 90/10 provisions. The specific costs for each provision are described in the following subsections covering the relevant topics.
The proposed revisions to the Pell Grants for confined or incarcerated individuals provisions are expected to increase educational opportunities for confined or incarcerated students, as provided for by Congress, while maintaining appropriate guidelines for program quality and requiring reporting for tracking the extent and performance of these programs.
To estimate the potential increase in Pell Grant awards related to these changes, the Department assumed based on current figures and previous experience with Pell Grant availability for incarcerated individuals that 2 percent of the incarcerated population of approximately 1.6 million individuals will participate in eligible PEPs. The size of the incarcerated population fluctuates and there are differing estimates of the number of incarcerated individuals, which is also affected by the pandemic. For example, the Department of Justice's Bureau of Justice Statistics estimates a population of 1.4 million as of year-end 2019 with a decline to 1.2 million as of year-end 2020,
Based on
To help estimate the effect of the proposed changes, the Department analyzed information about additional Federal aid received by institutions subject to the 90/10 requirements and found that an additional 92 institutions with $524.8 million in Pell grants and $1.09 billion in loan volume in AY 2019-20 would be above the 90 percent threshold, and 49 institutions would be above the 90 percent threshold for both 2018-19 and 2019-20, risking eligibility.
However, the Department recognizes that institutions have historically managed to meet the 90/10 threshold in order to operate, and we expect the majority would be able to adapt to the new requirements. Additionally, students would still qualify for similar levels of aid even if they choose to attend a different institution or shift sectors. Therefore, we do not expect a 100 percent loss of volume and aid awarded. The proposed change to include additional types of Federal aid in the 90/10 calculation are estimated to decrease Pell Grants awarded by −$248 million from AY2024-24 25 to AY2032-33 and have a net budget impact of $−44.3 million from reduced loan volumes for cohorts 2025-2032.
The following tables demonstrate the expected change in Pell Grants awarded and loan volumes that resulted in the estimated net budget impact of $−292 million. Our estimates are based on institutional data, including Post-9/11 GI Bill benefits and DOD Tuition Assistance programs. They do not account for funds that go directly to students to cover tuition, fees, or other institutional charges, and they do not include other sources of Federal funds disbursed by state or local entities. The Department welcomes feedback on how to account for these funds.
To estimate the reduction in volume related to the change in the 90/10 regulations, the Department assumed that institutions with a revised 90/10 rate over 95 percent would not be able to reduce their rate below 90. While institutions in the 2018-19 and 2019-20 90/10 files used for this revised estimate did not have the same motivations that would exist under the proposed regulations because the 90/10 calculation was different for them than it would be under the proposed regulations, no institution with a 90/10 rate above 95 in the first year was under 90 in the second year in the Department's analysis. Seventeen institutions with $94.9 million in Pell Grants and $194.1 million in loans were above the 95 percent rate, representing between 0.2 percent to 3.3 percent of proprietary volume depending on level and Grant or loan type. Student choice would affect the potential reduction as well as they would be eligible to receive similar title IV amounts in attending a different institution. For this estimate, we assume that 60 percent of students would pursue their education elsewhere if their initial choice were not available
The reduction in loan volume was processed as a reduction in the baseline volumes by loan type and risk group. In assigning the volume associated with 4-year programs to a risk group, we assumed 66 percent would be in the 4-year first year/sophomore risk group and 34 percent to the 4-year junior/senior risk group. Application of the adjustment factors shown in Table 3 resulted in the $−44.32 million loan estimate shown in Table 4.
These reductions in transfers depend on institutional and student responses that are uncertain. Students' decision to continue their education would depend on the availability of programs of interest at other institutions that fit their commuting or other constraints. Fewer institutions may be able to get their rate below 90 or more students may decide not to pursue their education if the institution they would have chosen is not available. Both of those scenarios would further reduce Pell Grant and loan transfers. For example, if the 49 institutions with revised rates above 90 in both years were assumed to not be able to get below the threshold, the estimated savings in Pell would be −$521 million and in loans −$84 million for a total of $605 million in reduced transfers to students. The mix of institutions and the volume they represent means the assumption about what rate or which institutions could adapt and get below the threshold does have a significant effect on the net budget impact.
The proposed regulations would provide greater clarity about the definition of additional locations and branch campuses for clearer reporting and clarity of ownership structures within postsecondary education. The proposed rules would also increase reporting to ensure greater transparency into change in ownership transactions and strengthen the Department's review of changes in control. Increased oversight of changes in ownership and proposed provisions related to the definition of a nonprofit institution may affect the distribution of title IV aid across sectors, including by approving requested conversions from for-profit status to non-profit status only when institutions have met the requirements of a nonprofit institution, and some students' choice of institution may be affected. However, the Department does not expect a significant cost from the change in ownership provisions and would not estimate one without additional data demonstrating a clear effect.
5.
As required by OMB Circular A-4, we have prepared an accounting statement showing the classification of the expenditures associated with the provisions of these regulations. This table provides our best estimate of the changes in annual monetized transfers as a result of these proposed regulations. Expenditures are classified as transfers from the Federal government to affected student loan borrowers.
6.
As part of the development of these proposed regulations, the Department engaged in a negotiated rulemaking process in which we received comments and proposals from non-Federal negotiators representing numerous impacted constituencies. These included higher education institutions, consumer advocates, students, financial aid administrators, accrediting agencies, and State attorneys general. Non-Federal negotiators submitted a variety of proposals relating to the issues under discussion. Information about these proposals is available on our negotiated rulemaking website at
6.1.
The Department considered establishing only implementing regulations that restated the requirements in the statute. We were concerned, however, that because the requirements were new to institutions, oversight entities, and other stakeholders, the field would benefit from greater clarity and technicality in the regulations. As a result, we opted to negotiate on the specific requirements in the regulations and were pleased to reach consensus on those items.
With regard to an oversight entity's holistic determination that a PEP is operating in the best interest of students, the Department considered a variety of metrics, both within the statute and those more widely used within the higher education system. We decided that the list on which the negotiators reached consensus appropriately balanced the high-quality data that are available to programs and oversight entities, measures of program success used throughout higher education, and the statutory requirements for such a determination. The Department also considered making use of the “best determination” metrics voluntary, or allowing oversight entities additional discretion as to which metrics they consider, but we determined that making the bulk of the metrics mandatory would establish consistency across states, ensure oversight entities' consideration of relevant information and benchmarks, and provide enough information for the Department to determine whether an oversight entity's process was sufficient.
The Department also considered allowing the PEPs to enroll students in eligible prison education programs that lead to occupations that typically involve prohibitions on licensure and employment for formerly incarcerated individuals, if the affected individuals attest that they are aware of the restrictions. We are concerned, however, that such programs would not
6.2.
To address the statutory changes in the ARP, the Department considered including only DOD and Department of Veteran Affairs (VA) funds as additional Federal funds considered for 90/10 calculations, since these are the two largest programs with data that demonstrates a significant amount of funds flow to some proprietary institutions outside of title IV, HEA funds, and because military-connected students have been targeted by some proprietary institutions in the past. The Department also considered including other large sources of Federal funds, such as funds authorized under the Workforce Innovation and Opportunity Act of 2014 (WIOA) but excluding smaller sources. However, the Department determined that its proposal would include all Federal education assistance programs, with the exception of funds that go directly to students to cover costs outside of tuition, fees, and other institutional charges, because Federal appropriations for education assistance programs and disbursements to institutions may change from year to year, and the Department does not want to inadvertently create a new loophole where proprietary institutions identify a large source of Federal funds and target students that receive this source of funding, such as WIOA. The broader inclusion is also consistent with the statutory language in the ARP, which refers to “Federal education assistance funds.”
The Department considered including only Federal funds that go directly to proprietary institutions, as it may be difficult for proprietary institutions to obtain timely information about funds that go directly to students, especially if a student needs to pay back an agency for funds received due to dropping a class, enrollment intensity decreasing, or other reasons. The Department also considered including all student funds, including those earmarked for purposes other than tuition and fees, such as housing. However, to be consistent with the statutory language in the ARP and HEA, the Department decided to include funds that go directly to students. The Department did not include funds that go directly to students that are earmarked for purposes other than tuition, fees, and other institutional charges because this funding does not apply to institutional charges, as required by the HEA.
The Department considered listing all Federal educational assistance programs in the proposed regulations. However, these programs and institutional eligibility may change over time, so the Department instead decided to identify sources of funds that are to be included in a
6.3.
The Department considered establishing a definition of nonprofit institutions that closed off all revenue-based or other agreements with a former owner, as opposed to just those that exceed reasonable market value. However, we determined that there could be appropriate agreements with a former owner that our language would preclude. We invite feedback from stakeholders on this question in the public comment period.
The Department considered maintaining the current definitions that require ED to evaluate whether there has been a change of control at 25 percent of a change in ownership interest, rather than the proposed 50 percent. However, in general we have found that control is much more common at 50 percent and that control below 50 percent is relatively rare. To accommodate concerns that institutions might begin to establish changes of control at, for example, 49 percent to evade the regulations, we propose to lower the threshold for reporting changes in ownership to 5 percent from 25 percent and propose to retain discretion for the Secretary to review and determine a change of control based on information available to the Secretary. While the Department also considered requiring reporting of all changes in ownership at any level, we instead proposed 5 percent to avoid unnecessary reporting on extremely minor changes and to limit inappropriate burden on institutions.
The Department considered whether to maintain the provision that requires the Secretary to continue an institution's participation after a CIO with the same terms and conditions as it held in its participation before the CIO. However, we are concerned that such terms may not adequately account for the added risk the institution may present to students and taxpayers as a result of the transaction. Based on past review of CIO applications by the Department, we are aware of numerous cases in which the transaction fundamentally altered the operations of the institution. We believe that additional conditions and new terms are more appropriate for institutions undergoing a CIO and are accordingly proposing language that allows the Department to establish such appropriate terms.
7.
The Secretary certifies, under the Regulatory Flexibility Act (5 U.S.C. 601
The Small Business Administration (SBA) defines “small institution” using data on revenue, market dominance, tax filing status, governing body, and population. The majority of entities to which the Office of Postsecondary Education's (OPE) regulations apply are postsecondary institutions, however, which do not report such data to the Department. As a result, for purposes of this NPRM, the Department proposes to continue defining “small entities” by reference to enrollment, to allow meaningful comparison of regulatory impact across all types of higher education institutions.
Table 7 summarizes the number of institutions affected by these proposed regulations.
The Department has determined that the economic impact on small entities affected by the regulations would not be significant. As seen in Table 8, the average total revenue at small institutions ranges from $2.3 million for proprietary institutions to $21.3 million at private institutions. These amounts are significantly higher than the $2,953 to $4,593 in estimated costs per small institution for the proposed regulations presented in Table 9.
The impact of the PEP proposed regulations would be minimal to small institutions and would involve meeting disclosure requirements and complying with requirements of the oversight entity and the Department.
The changes proposed to 90/10 would have a minor impact on proprietary institutions. These impacts include calculating the non-Federal revenue and providing a notification to students and the Department if an institution fails to comply with the 90/10 requirement.
While the CIO-proposed regulations have the potential to impact small entities, the number of prior CIO applications indicates that such changes in ownership do not often occur. There will be a minor burden on institutions that undergo a CIO to notify students at least 90 days prior to a proposed CIO. We believe this burden notification will be minor and can be disseminated electronically. The reduction in the reporting threshold for changes in ownership from 25 to 5 percent will impact more small entities than in the past; however, the burden associated with this increase in reporting is minimal and relatively uncommon.
As part of its continuing effort to reduce paperwork and respondent burden, the Department provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). This helps ensure that the public understands the Department's collection instructions, respondents can provide the requested data in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the Department can properly assess the impact of collection requirements on respondents.
Sections 600.7, 600.10, 600.20, 600.21, 668.28, 668.43, 668.237, and 668.238 of this proposed rule contain information collection requirements. These proposed regulations include requirements for institutions to obtain a waiver allowing them to enroll more than 25 percent of their students as incarcerated students; obtaining approval to offer prison education programs; submit an application seeking continued title IV participation for a change in ownership; reporting changes in ownership and/or control; and for proprietary institutions to demonstrate compliance with the 90/10 rule. Under the PRA, the Department has or will at the required time submit a copy of these sections and an Information Collection Request to OMB for its review. For some of the regulatory sections, including those relating to PEPs, PRA approval will be sought via a separate information collection process. Specifically, the Department will publish notices in the
A Federal agency may not conduct or sponsor a collection of information unless OMB approves the collection under the PRA and the corresponding information collection instrument displays a currently valid OMB control number. Notwithstanding any other provision of law, no person is required to comply with, or is subject to penalty for failure to comply with, a collection of information if the collection instrument does not display a currently valid OMB control number. In the final regulations, we will display the control numbers assigned by OMB to any information collection requirements proposed in this NPRM and adopted in the final regulations.
Requirements: The proposed regulations at § 600.7(c)(1) allow that the Secretary would not approve an enrollment cap waiver for a postsecondary institution's Prison Education Program (PEP) until the oversight entity is able to make the “best interest determination” described in § 668.241, which would be at least 2 years after the postsecondary institution has continuously provided a PEP.
The proposed regulations at § 600.10(c)(1)(iv) require an institution to obtain approval from the Secretary to offer the institution's first eligible PEP at its first two additional locations at correctional facilities.
The proposed regulations at § 600.20(g)(1)(i) would require that institutions must notify the Department at least 90 days in advance of a proposed change in ownership. This includes submission of a completed form, State authorization and accrediting documents, and copies of audited financial statements. It also includes reporting any subsequent changes to the proposed ownership structure at least 90 days prior to the date the change in ownership is to occur.
The proposed regulations at § 600.21(a)(6) would amend reporting requirements to distinguish between reportable changes in ownership and changes of control and between natural persons and legal entities.
The proposed regulations at § 600.21(a)(14) would amend the reporting requirements for an institution to include the reporting of initial or additional PEPs and locations for PEPs.
The proposed regulations at § 600.21(a)(15) would also include reporting on changes in ownership that do not result in a change of control and that are not otherwise specified on the list of types of changes in ownership that must be reported, to ensure that novel ownership structures are covered under the regulations.
The proposed regulations at § 668.238(a) would specify that the postsecondary institution must seek approval for the first PEP at the first two additional locations as required under § 600.10. Proposed § 668.238 (b) would identify the application requirements for such PEPs. For all other PEPs and locations not subject to initial approval by the Secretary, postsecondary institutions would be required to submit the documentation outlined in proposed § 668.238(c).
Burden Calculation: All of these proposed regulatory changes would require an update to the current institutional application form, 1845-0012. The form update would be completed and made available for comment through a full public clearance package before being made available for use by the effective date of the regulations. The burden changes would be assessed to OMB Control Number 1845-0012, Application for Approval to Participate in Federal Student Aid Programs.
Requirements: The proposed regulations at § 600.20(g)(4) would require institutions to notify enrolled and prospective students at least 90 days prior to a proposed change in ownership.
Burden Calculation: We believe that this would result in burden for the institution. Based on the GAO report cited earlier, using the 59 institutional changes of ownership over a period of 9 years, we anticipate that an estimate of 7 institutions annually would require 4 hours to develop and post the required notice on the institution's intra- and internet sites for a total of 28 hours (7 × 4 hours = 28 hours). The burden change would be assessed to OMB Control Number 1845-NEW, Change of Ownership Notification to Students.
Requirements: The proposed regulations would amend § 668.28(a)(2) to create a disbursement rule that outlines how proprietary institutions calculate the percentage of their revenue that is Federal revenue and would create an end-of-fiscal-year deadline for proprietary institutions to request and disburse title IV funds to students. Additionally, proposed § 668.28(c)(3) would establish disclosures for proprietary institutions that fail to derive at least 10 percent of their fiscal-year revenues from allowable non-Federal funds.
Burden Calculation: We believe that this proposed change to § 668.28(a)(2) would result in burden for the institution. As of April 2022, there were 1,650 proprietary institutions eligible to participate in the title IV, HEA funded programs. We believe that all proprietary institutions would be required to perform this calculation. We believe that it will take 1,650 institutions an estimated 24 hours each to gather information about the eligible students and payment information to perform the required calculations and request any required disbursements for a total of 39,600 hours (1,650 institutions × 24 hours = 39,600 hours). The estimated costs for institutions to meet this requirement would be $1,844,964.
We believe that the proposed change to § 668.28(c)(3), which would require institutions to notify students when the institution fails the 90/10 revenue test, would result in a burden for the institution. For the 2019-2020 Award Year there were 33 institutions that failed to meet the 90/10 revenue test when adding in Post 9-11 GI Bill and DOD Tuition Assistance funds. Using this number of institutions as representative of the number of institutions that would annually fail the 90/10 revenue test, we estimate that 33 institutions would require 4 hours to develop and post the required notice on the institution's intranet and internet sites for a total of 132 hours (33 institutions × 4 hours = 132 hours). The estimated costs for institutions to meet this requirement would be $6,150.
The total burden assessed to OMB Control Number 1845-0096 is estimated at 39,732 hours and estimated costs of $1,851,114.
Requirements: Proposed § 668.43(a)(5)(vi), would require a new disclosure if an eligible Prison Education Program (PEP) is designed to meet educational requirements for a specific professional license or certification that is required for employment in an occupation (as described in proposed § 668.236(g) and (h)). In that case, the postsecondary institution must provide information regarding whether that occupation typically involves State or Federal prohibitions on the licensure or employment of formerly confined or incarcerated individuals. This requirement applies in the State in which the correctional facility is located or, in the case of a Federal correctional facility, in the State in which most of the individuals confined or incarcerated in such facility will reside upon release.
Burden Calculation: We believe that of an estimated 400 institutions who would participate in PEPs, 20 percent or 80 institutions would have programs that would be required to perform such research and disclosure development. We further believe that of an estimated 800 programs at those institutions, 20 percent or 160 programs would require such research. We anticipate that to fully research the licensure requirements in the required State or States and prepare documentation for students in the eligible PEP, an institution would need 25 hours per program for an estimate total burden of 4,000 hours (160 × 25 = 4,000). The burden of 4,000 hours would be assessed to OMB Control Number 1845-0156 with an estimated cost of $186,360.
Requirements: Proposed regulations at § 668.237, would prescribe program evaluation at the first two additional locations to ensure institutional ability to offer and implement the Prison Education Program (PEP) in accordance with the accrediting agency's standards. The proposed regulations would require the accrediting agency to conduct a site visit no later than one year after the institution has initiated a PEP at its first two additional locations at correctional facilities. Additionally, the proposed regulations would require accrediting agencies to review the methodology used by an institution in determining the PEP meets the same standards for substantially similar non-PEP programs.
Burden Calculation: Of the current 54 recognized accrediting agencies, it is estimated that 18 accrediting agencies may be called upon to perform such required reviews for institutions under their oversight. It is estimated that each of these accrediting agencies will require 8 hours per institution to evaluate the written applications for the first two programs offered by PEP or any change in methodology review. With an estimated 400 institutions participating in the PEP program, accrediting agencies would require 3,200 hours to complete this initial review (400 institutions × 8 hours = 3,200 burden hours).
It is estimated that to perform the site visits as required under the proposed regulations would require an estimated 50 hours to prepare for, perform the site visit and report the findings. With an estimated 400 institutions participating in the PEP program, accrediting agencies would require 20,000 hours to complete this initial review (400 institutions × 50 hours = 20,000 burden hours).
It is estimated that to perform the methodology review as required under the proposed regulations would require an estimated 8 hours. With an estimated 400 institutions participating in the PEP program, accrediting agencies would require 3,200 hours to complete this initial review (400 institutions × 8 hours = 3,200 burden hours).
The total estimated burden for accrediting agencies to perform these proposed tasks for the PEP evaluations is 42,400 hours under the OMB Control Number 1840-NEW.
Consistent with the discussions above, the following chart describes the sections of the proposed regulations involving information collections, the information being collected and the collections that the Department will submit to OMB for approval and public comment under the PRA, and the estimated costs associated with the information collections. The monetized net cost of the increased burden for institutions and students was calculated using wage data developed using Bureau of Labor Statistics (BLS) data. For institutions we have used the median hourly wage for Education Administrators, Postsecondary, $46.59 per hour according to BLS as of May 2021.
The total burden hours and change in burden hours associated with each OMB Control number affected by the proposed regulations follows:
We have prepared Information Collection Requests for these information collection requirements. If you wish to review and comment on the Information Collection Requests, please follow the instructions in the
In preparing your comments, you may want to review the Information Collection Requests, including the supporting materials, in
If you want to review and comment on the ICRs, please follow the instructions listed below in this section of this notice. Please note that the Office of Information and Regulatory Affairs (OIRA) and the Department of Education review all comments posted at
When commenting on the information collection requirements, we consider your comments on these proposed collections of information in—
• Deciding whether the proposed collections are necessary for the proper performance of our functions, including whether the information will have practical use;
• Evaluating the accuracy of our estimate of the burden of the proposed collections, including the validity of our methodology and assumptions;
• Enhancing the quality, usefulness, and clarity of the information we collect; and
• Minimizing the burden on those who must respond.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
Consistent with 5 CFR 1320.8(d), the Department is soliciting comments on the information collection through this document. OMB is required to make a decision concerning the collections of information contained in these proposed regulations between 30 and 60 days after publication of this document in the
This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive Order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.
This document provides early notification of our specific plans and actions for this program.
In accordance with section 411 of the General Education Provisions Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on whether these proposed regulations would require transmission of information that any other agency or authority of the United States gathers or makes available.
Executive Order 13132 requires us to ensure meaningful and timely input by State and local elected officials in the development of regulatory policies that have federalism implications. “Federalism implications” means substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. The proposed regulations do not have federalism implications.
You may also access documents of the Department published in the
Colleges and universities, Foreign relations, Grant programs-education, Loan programs-education, Reporting and recordkeeping requirements, Selective service system, Student aid, Vocational education.
Administrative practice and procedure, Aliens, Colleges and universities, Consumer protection, Grant programs-education, Loan programs-education, Reporting and recordkeeping requirements, Selective Service System, Student aid, Vocational education.
Colleges and universities, Education of disadvantaged, Grant programs-education, Reporting and recordkeeping requirements, Student aid.
For the reasons discussed in the preamble, the Secretary proposes to amend parts 600, 685, 668 and 690 of title 34 of the Code of Federal Regulations as follows:
20 U.S.C. 1001, 1002, 1003, 1088, 1091, 1094, 1099b, and 1099c, unless otherwise noted.
The additions and revisions read as follows:
(1) Is approved by the Secretary as a branch campus; and
(2) Is independent from the main campus, meaning the location—
(i) Is permanent in nature;
(ii) Offers courses in educational programs leading to a degree, certificate, or other recognized education credential;
(iii) Has its own faculty and administrative or supervisory organization; and
(iv) Has its own budgetary and hiring authority.
(6) Except for an additional location at a correctional institution as described in the definition of an additional location in this section, for an institution that offers on-campus programs and programs through distance education or correspondence courses, the programs offered through distance education or correspondence courses are associated with the main campus of the institution. For an institution that only offers distance education programs, the institution is located where its administrative offices are located and approved by its accrediting agency.
(2) When making the determination under paragraph (1) of this definition, the Secretary considers the entirety of the relationship between the institution, the entities in its ownership structure, and other parties. For example, a nonprofit institution is generally not an institution that—
(i) Is an obligor (either directly or through any entity in its ownership chain) on a debt owed to a former owner of the institution or a natural person or entity related to or affiliated with the former owner of the institution;
(ii) Either directly or through any entity in its ownership chain, enters into, or maintains, a revenue-sharing agreement with—
(A) A former owner or current or former employee of the institution or member of its board; or
(B) A natural person or entity related to or affiliated with the former owner or current or former employee of the institution or member of its board, unless the Secretary determines that the payments and the terms under the revenue-sharing agreement are reasonable, based on the market price and terms for such services or materials, and the price bears a reasonable relationship to the cost of the services or materials provided;
(iii) Is a party (either directly or indirectly) to any other agreements (including lease agreements) with—
(A) A former owner or current or former employee of the institution or member of its board; or
(B) A natural person or entity related to or affiliated with the former owner or current or former employee of the institution or member of its board under which the institution is obligated to make any payments, unless the Secretary determines that the payments and terms under the agreement are comparable to payments in an arm's-length transaction at fair market value; or
(iv) Engages in an excess benefit transaction with any natural person or entity.
(3) A private institution is a “nonprofit institution” only if it meets the requirements in paragraph (1) of this definition and is—
(i) Owned and operated by one or more nonprofit corporations or associations;
(ii) Legally authorized to operate as a nonprofit organization by each State in which it is physically located; and
(iii) Determined by the U.S. Internal Revenue Service to be an organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)).
(4) A foreign institution is a “nonprofit institution” only if it meets the requirements in paragraph (1) of this definition and is—
(i) An institution that is owned and operated only by one or more nonprofit corporations or associations; and
(ii)(A) If a recognized tax authority of the institution's home country is recognized by the Secretary for purposes of making determinations of an institution's nonprofit status for title IV purposes, is determined by that tax authority to be a nonprofit educational institution; or
(B) If no recognized tax authority of the institution's home country is recognized by the Secretary for purposes of making determinations of an institution's nonprofit status for title IV purposes, the foreign institution demonstrates to the satisfaction of the Secretary that it is a nonprofit educational institution.
(a) An institution of higher education is a public or other nonprofit educational institution that—
(c)
(i) For a program described under paragraph (c)(3)(ii) of this section, the program does not maintain a completion rate of 50 percent or greater; or
(ii) For an institution described under paragraphs (c)(2) or (3) of this section—
(A) The institution provides one or more eligible prison education programs that is not compliant with the requirements of part 668 subpart P; or
(B) The institution is not administratively capable under § 668.16 or financially responsible under part 668 subpart L.
(2)
(3)
(i) For the four-year and two-year programs for which it awards a
(ii) For the other programs the institution provides, if the incarcerated regular students enrolled in those other programs have a completion rate of 50 percent or greater.
(4)
(B) For the five years following the period described in paragraph (c)(4)(i)(A) of this section, the institution may not enroll more than seventy-five percent of the institution's regular enrolled students as incarcerated students.
(ii) The limitations in paragraph (c)(4)(i) of this section do not apply if the institution is a public institution chartered for the explicit purpose of educating incarcerated students, as determined by the Secretary, and all students enrolled in a prison education program for the institution are located in the state in which the institution is chartered to serve.
(5) The Secretary limits or terminates the waiver described in this subsection if the Secretary determines the institution no longer meets the requirements established under paragraph (c)(1) of this section.
(6) If the Secretary limits or terminates an institution's waiver under paragraph (c)(4) of this section, the institution ceases to be eligible for the title IV, HEA programs at the end of the award year that begins after the Secretary's action unless the institution, by that time—
(i) Demonstrates to the satisfaction of the Secretary that it meets the requirements under paragraph (c)(1) of this section; and
(ii) The institution does not enroll any additional incarcerated students upon the limitation or termination of the waiver and reduces its enrollment of incarcerated students to no more than 25 percent of its regular enrolled students.
(c) * * * (1) An eligible institution that seeks to establish the eligibility of an educational program must obtain the Secretary's approval—
(i) Pursuant to a requirement regarding additional programs included in the institution's PPA under § 668.14;
(ii) For a direct assessment program under § 668.10, and for a comprehensive transition and postsecondary program under § 668.232;
(iii) For a first direct assessment program under § 668.10, the first direct assessment program offered at each credential level, and for a comprehensive transition and postsecondary program under § 668.232;
(iv) For the first eligible prison education program under subpart P of part 668 offered at the first two additional locations as defined under § 600.2 at a Federal, State, or local penitentiary, prison, jail, reformatory, work farm, juvenile justice facility, or other similar correctional institution.
(g)
(i) No later than 90 days prior to the change in ownership, the institution provides the Secretary notice of the proposed change on a fully completed form designated by the Secretary and supported by the State authorization and accrediting documents identified in paragraph (g)(3)(i) and (ii) of this section, and supported by copies of the financial statements identified in paragraph (g)(3)(iii) and (iv) of this section;
(ii) The institution promptly reports to the Secretary any changes to the proposed ownership structure identified under paragraph (g)(1)(i) of this section, provided that the change in ownership cannot occur earlier than 90 days following the date the change is reported to the Secretary; and
(iii) The institution under the new ownership submits a “materially complete application” that is received by the Secretary no later than 10 business days after the day the change occurs.
(2) Notwithstanding the submission of the items under paragraph (g)(1) of this section, the Secretary may determine that the participation of the institution should not be continued following the change in ownership.
(3) For purposes of this section, a private nonprofit institution, a private for-profit institution, or a public institution submits a materially complete application if it submits a fully completed application form designated by the Secretary supported by—
(i) A copy of the institution's State license or equivalent document that authorized or will authorize the institution to provide a program ofpostsecondary educationin the State in which it is physically located, supplemented with documentation that, as of the day before the change in ownership, the State license remained in effect;
(ii) A copy of the document from the institution's accrediting association that granted or will grant the institutionaccreditationstatus, including approval of any non-degree programs it offers, supplemented with documentation that, as of the day before the change in ownership, the accreditation remained in effect;
(iii) Audited financial statements for the institution's two most recently completed fiscal years that are prepared and audited in accordance with the requirements of34 CFR 668.23;
(iv)(A) Audited financial statements for the institution's new owner's two most recently completed fiscal years that are prepared and audited in accordance with the requirements of 34 CFR 668.23, or equivalent financial statements for that owner that are acceptable to the Secretary; or
(B) If such financial statements are not available, financial protection in the amount of—
(
(
(v) If deemed necessary by the Secretary, financial protection in the amount of an additional 10 percent of the institution's prior year volume of title IV aid, or a larger amount as determined by the Secretary. If any entity in the new ownership structure holds a 50 percent or greater direct or indirect voting or equity interest in another institution or institutions, the
(4) The institution must notify enrolled and prospective students of the proposed change in ownership, and submit evidence that such disclosure was made, no later than 90 days prior to the change.
(h)
(2) The TPPPA expires on the earlier of—
(i) The last day of the month following the month in which the change of ownership occurred, unless the provisions of paragraph (h)(3) of this section apply;
(ii) The date on which the Secretary notifies the institution that its application is denied; or
(iii) The date on which the Secretary co-signs a new provisional program participation agreement (PPPA).
(3) If the TPPPA will expire under the provisions of paragraph (h)(2)(i) of this section, the Secretary extends the provisional TPPPA on a month-to-month basis after the expiration date described in paragraph (h)(2)(i) of this section if, prior to that expiration date, the institution provides the Secretary with—
(i) An audited “same-day” balance sheet for a proprietary institution or an audited statement of financial position for a nonprofit institution;
(ii) If not already provided, approval of the change of ownership from each State in which the institution is physically located or for an institution that offers only distance education in accordance with paragraph (6) of the definition of “distance education” in § 600.2, from the agency that authorizes the institution to legally providepostsecondary educationin that State;
(iii) If not already provided, approval of the change of ownership from the institution's accrediting agency; and
(iv) A default management plan unless the institution is exempt from providing that plan under 34 CFR 668.14(b)(15).
The revisions and additions read as follows:
(a)
(6)(i)
(ii)
(A) The natural person acquires, alone or together with another member or members of their family, at least a 25 percent ownership interest (as defined in § 600.31(b)) in the institution;
(B) The entity acquires, alone or together with an affiliated natural person or entity, at least a 25 percent ownership interest (as defined in § 600.31(b)) in the institution;
(C) The natural person or entity acquires, alone or together with another natural person or entity, under a voting trust, power of attorney, proxy, or similar agreement, at least a 25 percent “ownership interest” (as defined in § 600.31(b)) in the institution;
(D) The natural person becomes a general partner, managing member, chief executive officer, trustee or co-trustee of a trust, chief financial officer, director, or other officer of the institution or of an entity that has at least a 25 percent “ownership interest” (as defined in § 600.31(b)) in the institution; or
(E) The entity becomes a general partner or managing member of an entity that has at least a 25 percent “ownership interest” (as defined in § 600.31(b)) in the institution.
(14) Its establishment or addition of an eligible prison education program at an additional location as defined under § 600.2 at a Federal, State, or local penitentiary, prison, jail, reformatory, work farm, juvenile justice facility, or other similar correctional institution that was not previously included in the institution's application for approval as described under § 600.10.
(15) Any change in the ownership of the institution that does not result in a change of control as described in § 600.31 and is not addressed under paragraph (a)(6) of this section, including the addition or elimination of any entities in the ownership structure, a change of entity from one type of business structure to another, and any excluded transactions under § 600.31(e).
(b)
If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby.
The revisions and addition read as follows:
(b) * * *
(i) A corporation that qualifies under the law of the State of its incorporation or organization as astatutory close corporation; or
(ii) If the State of incorporation or organization has no statutory close corporation provision, a corporation the stock of which—
(A) Is held by no more than 30 persons; and
(B) Has not been and is not planned to be publicly offered.
(ii) For the purpose of determining whether a change in ownership has occurred, changes in the ownership of the following are not included:
(A) A mutual fund that is regularly and publicly traded.
(B) A U.S. institutional investor, as defined in17 CFR 240.15a-6(b)(7).
(C) A profit-sharing plan of the institution or its corporate parent, provided that all full-time permanent employees of the institution or its corporate parent are included in the plan.
(D) An employee stock ownership plan (ESOP).
(c) Standards for identifying changes of ownership and control—
(3)
(ii) The Secretary deems the following changes to constitute a change in ownership resulting in a change of control of such an entity:
(A) A person (or combination of persons) acquires at least 50 percent of the total outstanding voting interests in the entity, or otherwise acquires 50 percent control.
(B) A person (or combination of persons) who holds less than a 50 percent voting interest in an entity acquires at least 50 percent of the outstanding voting interests in the entity, or otherwise acquires 50 percent control.
(C) A person (or combination of persons) who holds at least 50 percent of the voting interests in the entity ceases to hold at least 50 percent voting interest in the entity, or otherwise ceases to hold 50 percent control.
(D) A partner in a general partnership acquires or ceases to own at least 50 percent of the voting interests in the general partnership, or otherwise acquires or ceases to hold 50 percent control.
(E) Any change of a general partner of a limited partnership (or similar entity) if that general partner also holds an equity interest.
(F) Any change in a managing member of a limited liability company (or similar entity) if that managing member also holds an equity interest.
(G) Notwithstanding its voting interests, a person becomes the sole member or shareholder of a limited liability company or other entity that has a 100 percent or equivalent direct or indirect interest in the institution.
(H) An entity that has a member or members ceases to have any members.
(I) An entity that has no members becomes an entity with a member or members.
(J) A person is replaced as the sole member or shareholder of a limited liability company or other entity that has a 100 percent or equivalent direct or indirect interest in the institution.
(K) The addition or removal of any entity that provides or will provide the audited financial statements to meet any of the requirements in § 600.20(g) or (h) or part 668, subpart L.
(L) Except as provided in paragraph (e) of this section, the transfer by an owner of 50 percent or more of the voting interests in the institution or an entity to an irrevocable trust.
(M) Except as provided in paragraph (e) of this section, upon the death of an owner who previously transferred 50 percent or more of the voting interests in an institution or an entity to a revocable trust.
(iii) The Secretary deems the following interests to satisfy the 50 percent thresholds described above:
(A) A combination of persons, each of whom holds less than 50 percent ownership interest in an entity, holds a combined ownership interest of at least 50 percent as a result of proxy agreements, voting agreements, or other agreements (whether or not the agreement is set forth in a written document), or by operation of State law.
(B) A combination of persons, each of whom holds less than 50 percent ownership interest in an entity, holds a combined ownership interest of at least 50 percent as a result of common ownership, management, or control of that entity, either directly or indirectly.
(C) A combination of individuals who are family members as defined in § 600.21, each of whom holds less than 50 percent ownership interest in an entity, holds a combined ownership interest of at least 50 percent.
(iv) Notwithstanding paragraphs (c)(3)(ii) and (iii) of this section—
(A) If a person who alone or in combination with other persons holds less than a 50 percent ownership interest in an entity, the Secretary may determine that the person, either alone or in combination with other persons, has actual control over that entity and is subject to the requirements of this section;
(B) Any person who alone or in combination with other persons has the right to appoint a majority of any class of board members of an entity or an institution is deemed to have control.
(d) * * *
(6) A transfer of assets that comprise a substantial portion of the educational business of the institution, except where the transfer consists exclusively in the granting of a security interest in those assets;
(7) A change in status as a for-profit, nonprofit, or public institution; or
(8) The acquisition of an institution to become an additional location of another institution, unless the acquired institution closed or ceased to provide educational instruction.
(e)
(1) From an owner to a “family member” of that owner as defined in § 600.21(f);
(2) As a result of a transfer of an owner's interest in the institution or an entity to an irrevocable trust, so long as the trustees only include the owner and/or a family member as defined in § 600.21(f). Upon the appointment of any non-family member as trustee for an irrevocable trust (or successor trust), the transaction is no longer excluded and is subject to the requirements of §§ 600.20(g) and (h);
(3) Upon the death of a former owner who previously transferred an interest in the institution or an entity to a revocable trust, so long as the trustees include only family members of that former owner, as defined in § 600.21(f). Upon the appointment of any non-family member as trustee for the trust (or a successor trust) following the death of the former owner, the transaction is no longer excluded and is subject to the requirements of §§ 600.20(g) and (h); or
(4) A transfer to an individual owner with a direct or indirect ownership
20 U.S.C. 1001-1003, 1070g, 1085, 1088, 1091, 1092, 1094, 1099c, 1099c-1, and 1231a, unless otherwise noted.
Section 668.14 also issued under 20 U.S.C. 1085, 1088, 1091, 1092, 1094, 1099a-3, 1099c, and 1141.
Section 668.41 also issued under 20 U.S.C. 1092, 1094, 1099c.
Section 668.91 also issued under 20 U.S.C. 1082, 1094.
Section 668.171 also issued under 20 U.S.C. 1094 and 1099c and section 4 of Pub. L. 95-452, 92 Stat. 1101-1109.
Section 668.172 also issued under 20 U.S.C. 1094 and 1099c and section 4 of Pub. L. 95-452, 92 Stat. 1101-1109.
Section 668.175 also issued under 20 U.S.C. 1094 and 1099c.
(n) For Title IV, HEA program purposes,
If any provision of this part 668 or its application to any person, act, or practice is held invalid, the remainder of the part or the application of its provisions to any person, act, or practice shall not be affected thereby.
(b) * * *
(16) For a proprietary institution, the institution will derive at least 10 percent of its revenues for each fiscal year from sources other than Federal funds, as provided in § 668.28(a), or be subject to sanctions described in § 668.28(c);
(d) * * *
(3)
(a)
(i) For any annual audit submission for a proprietary institutional fiscal year beginning on or after January 1, 2023, Federal funds used to calculate the revenue percentage include title IV, HEA program funds and any other educational assistance funds provided by a Federal agency directly to an institution or a student including the Federal portion of any grant funds provided by or administered by a non-Federal agency, except for non-title IV Federal funds provided directly to a student to cover expenses other than tuition, fees, and other institutional charges. The Secretary identifies the Federal agency and the other educational assistance funds provided by that agency in a notice published in the
(ii) For any fiscal year beginning prior to January 1, 2023, Federal funds are limited to title IV, HEA program funds.
(2)
(i) For each eligible student, counting the amount of Federal funds that were used to pay tuition, fees, and other institutional charges the institution received during its fiscal year—
(A) Directly from an agency identified under paragraph (a)(1)(i) of this section; and
(B) Paid by a student who received Federal funds.
(ii) For each eligible student, counting the amount of title IV, HEA program funds the institution received to pay tuition, fees, and other institutional charges during its fiscal year. However, before the end of its fiscal year, the institution must—
(A) Request funds under the advanced payment method in § 668.162(b)(2) or the heightened cash monitoring method in § 668.162(d)(1) that the students are eligible to receive and make any disbursements to those students by the end of the fiscal year; or
(B) For institutions under the reimbursement or heightened cash monitoring methods in § 668.162(c) or (d)(2), make disbursements to those students by the end of the fiscal year and report as Federal funds in the revenue calculations the funds that the students are eligible to receive before requesting funds.
(3)
(i) Tuition, fees, and other institutional charges for students enrolled in eligible programs as defined in § 668.8;
(ii) Activities conducted by the institution that are necessary for the education and training of its students provided those activities are—
(A) Conducted on campus or at a facility under the institution's control;
(B) Performed under the supervision of a member of the institution's faculty; and
(C) Required to be performed by all students in a specific educational program at the institution; and
(D) Related directly to services performed by students; and
(iii) Funds paid by a student, or on behalf of a student by a party unrelated to the institution, its owners, or affiliates, for an education or training program that is not eligible under § 668.8 and that does not include any courses offered in an eligible program. The non-eligible education or training
(A) Be approved or licensed by the appropriate State agency;
(B) Be accredited by an accrediting agency recognized by the Secretary under 34 CFR part 602;
(C) Provide an industry-recognized credential or certification;
(D) Provide training needed for students to maintain State licensing requirements; or
(E) Provide training needed for students to meet additional licensing requirements for specialized training for practitioners that already meet the general licensing requirements in that field.
(4)
(i) Grant funds provided by—
(A) Non-Federal public agencies, provided that those grant funds do not include Federal or institutional funds unless the Federal portion of those grant funds can be determined and that portion of Federal funds must be included as Federal funds under this section. If the Federal funds cannot be determined no amount of the grant funds may be included under this section; or
(B) Private sources unrelated to the institution, its owners, or affiliates;
(ii) Funds provided under a contractual arrangement with the institution and a Federal, State, or local government agency for the purpose of providing job training to low-income individuals who need that training;
(iii) Funds used by a student from a savings plan for educational expenses established by or on behalf of the student if the savings plan qualifies for special tax treatment under the Internal Revenue Code of 1986; or
(iv) Institutional scholarships that meet the requirements in paragraph (a)(5)(iv) of this section.
(5)
(i) For loans made to students and credited in full to the students' accounts at the institution and used to satisfy tuition, fees, and other institutional charges, the number of principal payments made on those loans by current or former students that the institution received during the fiscal year, if the loans—
(A) Are bona fide as evidenced by standalone repayment agreements between the students and the institution that are enforceable promissory notes;
(B) Are issued at intervals related to the institution's enrollment periods;
(C) Are subject to regular loan repayments and collections by the institution; and
(D) Are separate from the enrollment contracts signed by the students.
(ii) If an institution wants to include an income share agreement or any other alternative financing agreement as cash in its attestations in which the agreement is with the institution only or with a related party, to include any entity in the ownership tree, any common ownership, and any other contractual agreement or continuous financial relationship for this section, then the following must be included in the agreement:
(A) The institution must clearly identify the institutional charges that are being covered by the agreement, and the charges must be the same or less than the stated rate for institutional charges.
(B) The maximum time and amount a student would be required to pay is clearly identified including the implied or imputed interest rate and any fees.
(C) All payments must be applied in accordance with debt repayment regulations. Interest and fees would not be included in the attestation.
(D) The imputed or implied interest rate cannot be more than the Federal Direct Unsubsidized Loan interest rate for the same borrower type at the time the agreement was signed.
(iii) Only cash payments representing principal payments on the income share agreement or other financing agreement that were used to satisfy tuition, fees, and other institutional charges may be included in the attestation. No amounts from the sale of the income share agreement or other financing agreement may be included in the attestation.
(iv) For scholarships provided by the institution in the form of monetary aid and based on the academic achievement or financial need of its students, the amount disbursed to students during the fiscal year. The scholarships must be disbursed from an established restricted account and may be included as revenue only to the extent that the funds in that account represent—
(A) Designated funds from an outside source that is unrelated to the institution, its owners, or affiliates; or
(B) Income earned on those funds.
(6)
(i) The amount of Federal Work Study (FWS) wages paid directly to the student. However, if the institution credits the student's account with FWS funds, those funds are included as revenue;
(ii) The amount of funds received by the institution from a State under the LEAP, SLEAP, or GAP programs;
(iii) The amount of institutional funds used to match title IV, HEA program funds;
(iv) The amount of title IV, HEA program funds refunded to students or returned to the Secretary under § 668.22;
(v) The amount the student is charged for books, supplies, and equipment unless the institution includes that amount as tuition, fees, or other institutional charges;
(vi) Any amount from the proceeds of the factoring or sale of accounts receivable or institutional loans, regardless of whether the loans were sold with or without recourse; or
(vii) Any funds, including loans, provided by a third party related to the institution, its owners, or affiliates to a student in any form.
(b) [Reserved]
(c)
(1) For two consecutive fiscal years, it loses its eligibility to participate in the title IV, HEA programs for at least two fiscal years. To regain eligibility, the institution must demonstrate that it complied with the State licensure and accreditation requirements under 34 CFR 600.5(a)(4) and (a)(6), and the financial responsibility requirements under subpart L of this part, for a minimum of two fiscal years after the fiscal year it became ineligible;
(2) For any fiscal year, it becomes provisionally certified under § 668.13(c)(1)(ii) for the two fiscal years after the fiscal year it failed to satisfy the revenue requirement. However, the institution's provisional certification terminates on—
(i) The expiration date of the institution's program participation agreement that was in effect on the date the Secretary determined the institution failed this requirement; or
(ii) The date the institution loses its eligibility to participate under paragraph (c)(1) of this section;
(3) For any fiscal year that it fails to meet the requirements of this section, it must notify students of the possibility of loss of title IV eligibility;
(4) It must determine whether it passed the revenue requirement and report a failure no later than 45 days after the end of its fiscal year, or immediately thereafter if subsequent information is obtained that shows an institution incorrectly determined that it passed the revenue requirement for the prior fiscal year; and
(5) It is liable for any title IV, HEA program funds it disburses after the fiscal year it becomes ineligible to participate in the title IV, HEA program under paragraph (c)(1) of this section, excluding any funds the institution was entitled to disburse under § 668.26.
(c) * * *
(2) * * *
(ii) If the student is a confined or incarcerated individual as defined in 34 CFR 600.2, is enrolled in an eligible prison education program as defined in § 668.236;
(a) * * *
(5) * * *
(vi) If a prison education program, as defined in § 668.236, is designed to meet educational requirements for a specific professional license or certification that is required for employment in an occupation (as described in § 668.236(g) and (h)), information regarding whether that occupation typically involves State or Federal prohibitions on the licensure or employment of formerly incarcerated individuals in any other State for which the institution has made a determination about State prohibitions on the licensure or certification of formerly incarcerated individuals;
(d) * * *
(4) For its most recently completed fiscal year, a proprietary institution did not receive at least 10 percent of its revenue from sources other than Federal funds, as provided under § 668.28(c);
(f) * * *
(1) * * *
(vii) For the non-Federal revenue provision in paragraph (d)(4) of this section, no later than 45 days after the end of the institution's fiscal year, as provided in § 668.28(c)(4).
This subpart establishes regulations that apply to an institution that offers prison education programs to confined or incarcerated individuals. A confined or incarcerated individual enrolled in an eligible prison education program is eligible for Federal financial assistance under the Federal Pell Grant program. Unless provided in this subpart, confined or incarcerated individuals and institutions that offer prison education programs are subject to the same regulations and procedures that otherwise apply to title IV, HEA program participants.
The following definitions apply to this subpart:
(1) The appropriate State department of corrections or other entity that is responsible for overseeing correctional facilities; or
(2) The Federal Bureau of Prisons.
An
(a) Is an eligible program under § 668.8 offered by an institution of higher education as defined in 34 CFR 600.4, or a postsecondary vocational institution as defined in 34 CFR 600.6;
(b) Is offered by an eligible institution that has been approved to operate in a correctional facility by the oversight entity;
(c) After an initial two-year approval, is determined by the oversight entity to be operating in the best interest of students as described by § 668.241;
(d) Offers transferability of credits to at least one institution of higher education (as defined in 34 CFR 600.4 and 600.6) in the State in which the correctional facility is located, or, in the case of a Federal correctional facility, in the State in which most of the individuals confined or incarcerated in such facility will reside upon release as determined by the institution based on information provided by the oversight entity;
(e) Is offered by an institution that has not been subject, during the five years preceding the date of the determination, to—
(1) Any suspension, emergency action, or termination of programs under this title;
(2) Any final accrediting action that is an adverse action as defined in 34 CFR 602.3 by the institution's accrediting agency or association; or
(3) Any action by the State to revoke a license or other authority to operate;
(f) Is offered by an institution that is not subject to a current initiated adverse action—
(1) If an accrediting agency initiates an adverse action, the institution cannot begin its first or a subsequent prison education program unless and until the initiated adverse action has been rescinded; and
(2) If the institution currently offers one or more prison education programs and is subject to an initiated adverse action, the institution must submit a teach-out plan, as defined in 34 CFR 600.2, to the institution's accrediting agency.
(g) Satisfies any applicable educational requirements for professional licensure or certification, including licensure or certification examinations needed to practice or find employment in the sectors or occupations for which the program prepares the individual, in the State in which the correctional facility is located or, in the case of a Federal correctional facility, in the State in which most of the individuals confined or incarcerated in such facility will reside upon release as determined by the institution not less than annually based on information provided by the oversight entity; and
(h) Does not offer education that is designed to lead to licensure or employment for a specific job or occupation in the State if such job or occupation typically involves prohibitions on the licensure or employment of formerly incarcerated individuals in the State in which the correctional facility is located, or, in the case of a Federal correctional facility, in the State in which most of the individuals confined or incarcerated in such facility will reside upon release as determined by the institution not less than annually based on information provided by the oversight entity.
(1) In the case of State and local correctional facilities, the postsecondary institution does not enroll any student in a prison education program that any Federal law, or State law in which the correctional facility is located, bans, bars, or prohibits licensure or employment based on any criminal conviction or specific types of criminal convictions; or
(2) In the case of a Federal correctional facility, the postsecondary institution does not enroll any student in a prison education program that any Federal law or State law in which more than half of the individuals confined or incarcerated in such facility will reside upon release, bans, bars, or prohibits licensure or employment based on any criminal conviction or specific types of criminal convictions.
(3) Prohibitions on offering education to a confined or incarcerated individual do not include local laws, screening requirements for good moral character or similar provisions; State or Federal laws that have been repealed, even if the repeal has not yet taken effect or if the repeal occurs between assessments of the institution of higher education by the oversight entity; or other restrictions as determined by the Secretary.
(a) A prison education program must meet the requirements of the institution's accrediting agency or State approval agency.
(b) In order for any prison education program to qualify as an eligible program, the accrediting agency must have—
(1) Evaluated at least the first prison education program at the first two additional locations to ensure the institution's ability to offer and implement the program based on the agency's accreditation standards, and included it in the institution's grant of accreditation or pre-accreditation;
(2) Evaluated the first additional prison education program offered by a new method of delivery to ensure the institution's ability to offer and implement the program based on the agency's standards, and included it in the institution's grant of accreditation or pre-accreditation;
(3) Performed a site visit as soon as practicable but no later than one year after initiating the prison education program at the first two additional locations; and
(4) Reviewed and approved the methodology for how the institution, in collaboration with the oversight entity, made the determination that the prison education program meets the same standards as substantially similar programs that are not prison education programs at the institution.
(c) A prison education program that does not meet the requirements of the institution's accrediting agency or State approval agency is not an eligible program under § 668.236.
(a) An institution that seeks to offer a prison education program must apply to the Secretary to have its first prison
(b) The institution's prison education program application must provide information satisfactory to the Secretary that includes—
(1) A description of the educational program, including the educational credential offered (degree level or certificate) and the field of study;
(2) Documentation from the institution's accrediting agency or State approval agency indicating that the agency has evaluated the institution's offering of prison education program(s) and has included the program(s) in the institution's grant of accreditation and approval documentation from the accrediting agency or State approval agency;
(3) The name of the correctional facility and documentation from the oversight entity that the prison education program has been approved to operate in the correctional facility;
(4) Documentation detailing the methodology including thresholds, benchmarks, standards, metrics, data, or other information the oversight entity used in making the determination that the program is in the best interest of students for all indictors under § 668.241 and how all the information was collected;
(5) Information about the types of services offered to admitted students, including: orientation, tutoring and academic and reentry counseling. If reentry counseling is provided by a community-based organization that has partnered with the eligible prison education program, institution, or correctional facility to provide reentry services, then information about the types of services that the community-based organization offers;
(6) Affirmative acknowledgement that the Secretary can limit or terminate approval of an institution to provide a prison education program as described in § 668.237;
(7) Affirmative agreement to submit the report to the Secretary as described in § 668.239;
(8) Documentation that the institution has entered into an agreement with the oversight entity to obtain data about transfer and release dates of incarcerated individuals, which will be reported to the Department of Education; and
(9) Such other information as the Secretary deems necessary.
(c) For the second or subsequent eligible prison education program at a location, to fulfill requirements under 34 CFR 600.21, an institution submits—
(1) Documentation from the institution's accrediting agency noting that the institution complies with § 668.236(f) and was not subject to any final accrediting action that is an adverse action by the institution's accrediting agency or association in the last five years;
(2) Documentation from the institution noting that the institution was not subject to any action by the State to revoke a license or other authority to operate in the last five years; and
(3) Documentation that the institution has entered into an agreement with the oversight entity to obtain data about transfer and release dates of incarcerated individuals, which will be reported to the Department of Education pursuant to § 668.239.
(a) An institution must submit reports, in accordance with deadlines established and published by the Secretary in the
(b) The institution reports such information as the Secretary requires, in compliance with procedures the Secretary describes.
(c) The institution reports information about transfer and release dates of incarcerated individuals, as required by the Secretary, through an agreement with the oversight entity.
(a) The Secretary limits or terminates approval of an institution to provide an eligible prison education program if the Secretary determines that the institution violated any terms of this subpart or that the information that the institution submitted as a basis for approval to the Secretary, accrediting agency, State agency, or oversight entity was materially inaccurate.
(b) If the Secretary initiates a limitation or termination action of an institution's approval to operate an eligible prison education program, the institution must submit a teach-out plan and, if practicable, a teach-out agreement(s) (as defined in 34 CFR 600.2) to its accrediting agency upon occurrence of the event.
(a) An oversight entity's determination that a prison education program is operating in the best interest of students—
(1) Must include an assessment of all the following—
(i) Whether the rate of confined or incarcerated individuals continuing their education post-release, as determined by the percentage of students who reenroll in higher education reported by the Department, meets thresholds established by the oversight entity with input from relevant stakeholders;
(ii) Whether job placement rates in the relevant field for such individuals meet any applicable standards required by the accrediting agency for the institution or program or a State in which the institution is authorized. If no job placement rate standard applies to prison education programs offered by the institution, the oversight entity must define, and the institution must report, a job placement rate, with input from relevant stakeholders;
(iii) Whether the earnings for such individuals, or the median earnings for graduates of the same or similar programs at the institution, as measured by the Department, exceed those of a typical high school graduate in the State;
(iv) Whether the experience, credentials, and rates of turnover or departure of instructors for a prison education program are substantially similar to other programs at the institution, accounting for the unique geographic and other constraints of prison education programs;
(v) Whether the transferability of credits for courses available to confined or incarcerated individuals and the applicability of such credits toward related degree or certificate programs is substantially similar to those at other similar programs at the institution, accounting for the unique geographic and other constraints of prison education programs;
(vi) Whether the prison education program's offering of relevant academic and career advising services to participating confined or incarcerated individuals while they are confined or incarcerated, in advance of reentry, and upon release, is substantially similar to offerings to a student who is not a confined or incarcerated individual and who is enrolled in, and may be preparing to transfer from, the same institution, accounting for the unique geographic and other constraints of prison education programs;
(vii) Whether the institution ensures that all formerly incarcerated students
(2) May include an assessment of all the following—
(i) Whether the rates of recidivism, which do not include any recidivism by the student within a reasonable number of years of release and which only include new felony convictions as defined by United States Sentencing Guideline § 4A1.1(a) as “each sentence of imprisonment exceeding one year and one month,” meet thresholds set by the oversight entity;
(ii) Whether the rates of completion reported by the Department, which does not include any students who were transferred across facilities and which accounts for the status of part-time students, meet thresholds set by the oversight entity with input from relevant stakeholders; and
(iii) Other indicators pertinent to program success as determined by the oversight entity.
(b) An oversight entity makes the best interest determination—
(1) Through a feedback process that considers input from relevant stakeholders; and
(2) In light of the totality of the circumstances.
(c) If the oversight entity does not find a program to be in the best interest of students, it must allow for programs to re-apply within a reasonable timeframe.
(d) After the two years of initial approval under § 668.236, the institution must be determined by the oversight entity to be operating in the best interest of students, as defined in paragraph (a), of this section.
(e)(1) After its initial determination that a program is operating in the best interest of students under paragraph (c) of this section, the institution must obtain subsequent final evaluations of each eligible prison education program from the responsible oversight entity not less than 120 calendar days prior to the expiration of each of the institution's Program Participation Agreements, except that the oversight entity may make a determination between subsequent evaluations based on the oversight entity's regular monitoring and evaluation of program outcomes.
(2) Each subsequent evaluation must—
(i) Include the entire period following the prior determination and be based on the factors described under paragraph (a) of this section for all students enrolled in the program since the prior determination;
(ii) Include input from relevant stakeholders through the oversight entity's feedback process; and
(iii) Be submitted to the Secretary no later than 30 days following completion of the evaluation.
(f)(1) The institution must obtain and maintain documentation of the methodology by which the oversight entity made each determination under paragraph (a) of this section and § 668.236(b) for review by the institution's accrediting agency, submission of the application to the Department for the approval of the first program at the first two additional locations, the input of relevant stakeholders through the oversight entity's feedback process described in paragraphs (b)(1) and (e)(2)(ii) of the section, reporting to the Department, and for public disclosure.
(2) The institution must maintain the documentation described in (1) for as long as the program is active or, if the program is discontinued, for three years following the date of discontinuance.
For institutions operating eligible prison education programs in a correctional facility that is not a Federal or State penal institution:
(a) A confined or incarcerated student who otherwise meets the eligibility requirements to receive a Federal Pell Grant and is enrolled in an eligible program that does not meet the requirements under subpart P of this part may continue to receive a Federal Pell Grant until the earlier of:
(1) July 1, 2029;
(2) The student reaches the maximum timeframe for program completion as defined under § 668.34; or
(3) The student has exhausted Pell Grant eligibility as defined under 34 CFR 690.6(e).
(b) An institution is not permitted to enroll a confined or incarcerated student on or after July 1, 2023, who was not enrolled in an eligible program prior to July 1, 2023, unless the institution first converts the eligible program into an eligible prison education program as defined in § 668.236.
20 U.S.C. 1070a, 1070g, unless otherwise noted.
(a) The amount of a student's Pell Grant for an academic year is based upon the payment and disbursement schedules published by the Secretary for each award year.
(b)(1)(i) For a confined or incarcerated individual enrolled in an eligible prison education program, no Federal Pell Grant shall exceed the cost of attendance (as defined in section 472 of the HEA) at the institution at which that student is in attendance.
(ii) If an institution determines that the amount of a Federal Pell Grant for that student exceeds the cost of attendance for that year, the amount of the Federal Pell Grant shall be reduced until the Federal Pell Grant does not exceed the cost of attendance at such institution and does not result in a title IV credit balance under 34 CFR 668.164(h).
(2)(i) If a confined or incarcerated student's Pell Grant, combined with any other financial assistance, exceeds the student's cost of attendance, the financial assistance other than the Pell Grant must be reduced by the amount that the total financial assistance exceeds the student's cost of attendance.
(ii) If the student's other financial assistance cannot be reduced, the student's Pell Grant must be reduced by the amount that the student's total financial assistance exceeds the student's cost of attendance.
If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby.
Environmental Protection Agency (EPA).
Proposed rule.
Pursuant to the U.S. Environmental Protection Agency's Significant New Alternatives Policy program, this action proposes to list certain substances as acceptable subject to use conditions in the refrigeration and air conditioning sector for chillers—comfort cooling, residential dehumidifiers, non-residential dehumidifiers, residential and light commercial air conditioning and heat pumps, and a substance as acceptable subject to use conditions and narrowed used limits in very low temperature refrigeration. Through this action, EPA is proposing to incorporate by reference standards which establish requirements for electrical air conditioners, heat pumps, and dehumidifiers, laboratory equipment containing refrigerant, safe use of flammable refrigerants, and safe design, construction, installation, and operation of refrigeration systems. Additionally, this action proposes to list certain substances as acceptable subject to use conditions in the fire suppression sector for certain streaming and total flooding uses. Finally, EPA requests advance comment on potential approaches to SNAP listing decisions for very short-lived substances that have ozone depletion potentials similar to those of ozone-depleting substances scheduled to be phased out.
Comments must be received on or before September 12, 2022. Any party requesting a public hearing must notify the contact listed below under
EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2021-0836. All documents in the docket are listed on the
Holly Tapani, Stratospheric Protection Division, Office of Atmospheric Programs (Mail Code 6205T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-564-0679; email address:
This action proposes to list new alternatives for the refrigeration and air conditioning (AC) and fire suppression sectors. Specifically, EPA is:
• Listing hydrofluoroolefin (HFO)-1234yf, R-454A, R-454B, and R-454C as acceptable, subject to use conditions, for use in chillers used in comfort cooling, including commercial and industrial process AC;
• Listing hydrofluorocarbon (HFC)-32 and R-452B as acceptable, subject to use conditions, for use in scroll and rotary chillers used in comfort cooling, including commercial and industrial process AC;
• Listing HFO-1234yf, HFC-32, R-452B, R-454A, R-454B, and R-454C as acceptable, subject to use conditions, for use in residential dehumidifiers;
• Listing HFC-32 as acceptable, subject to use conditions, for use in non-residential dehumidifiers;
• Listing HFC-32 as acceptable, subject to use conditions, for use in self-contained room air conditioners (ACs) and heat pumps (HPs);
• Listing R-1150 as acceptable, subject to use conditions and narrowed use limits, for use in very low temperature refrigeration (VLTR);
• Listing 2-bromo-3,3,3-trifluoropropene (2-BTP) as acceptable, subject to use conditions, in streaming—for non-residential use, except home offices and boats—and total flooding—in normally unoccupied spaces under 500 ft
• Listing of EXXFIRE® as acceptable, subject to use conditions, in total flooding—for normally unoccupied areas; and
• Listing of Powdered Aerosol H, also known as Pyroquench-α
EPA is proposing these new listings after its evaluation of human health and environmental information for these substitutes under the Significant New Alternatives Policy (SNAP) program. The Agency is proposing action on these new listings in the refrigeration and AC sector and the fire suppression sector based on the information that EPA has included in the docket. This proposed action provides additional flexibility for industry by providing new options in specific uses.
Additionally, EPA requests advance comment on potential approaches to SNAP listing decisions for very short-lived substances (VSLS) that have ozone depletion potentials (ODPs) similar to those of class II ozone-depleting substances (ODS) that are currently being phased out, in particular trifluoroiodomethane (CF
EPA is not requesting comment on the republication of the first six entries of the table titled “Substitutes That Are Acceptable Subject to Use Conditions”. Those entries are being republished to bring the table in line with the Office of the Federal Register's general requirement for orderly codification by: adding entry numbers, replacing prohibited language, and properly formatting the footnotes.
The SNAP program implements section 612 of the Clean Air Act (CAA). Several major provisions of section 612 are:
Section 612(c) requires EPA to promulgate rules making it unlawful to replace any class I (chlorofluorocarbon (CFC), halon, carbon tetrachloride, methyl chloroform, methyl bromide, hydrobromofluorocarbon, and chlorobromomethane) or class II (hydrochlorofluorocarbon (HCFC)) ODS with any substitute that the Administrator determines may present adverse effects to human health or the environment where the Administrator has identified an alternative that (1) reduces the overall risk to human health and the environment and (2) is currently or potentially available.
Section 612(c) requires EPA to publish a list of the substitutes that it finds to be unacceptable for specific uses and to publish a corresponding list
Section 612(d) grants the right to any person to petition EPA to add a substance to, or delete a substance from, the lists published in accordance with section 612(c).
Section 612(e) directs EPA to require any person who produces a chemical substitute for a class I substance to notify the Agency not less than 90 days before a new or existing chemical is introduced into interstate commerce for significant new use as a substitute for a class I substance. The producer must also provide the Agency with the producer's unpublished health and safety studies on such substitutes.
The regulations for the SNAP program are promulgated at 40 Code of Federal Regulations (CFR) part 82, subpart G, and the Agency's process for reviewing SNAP submissions is described in regulations at 40 CFR 82.180. Under these rules, the Agency has identified five types of listing decisions: acceptable; acceptable subject to use conditions; acceptable subject to narrowed use limits; unacceptable; and pending (40 CFR 82.180(b)). Use conditions and narrowed use limits are both considered “use restrictions,” as described below. Substitutes that are deemed acceptable with no use restrictions (no use conditions or narrowed use limits) can be used for all applications within the relevant end-uses in the sector. After reviewing a substitute, the Agency may determine that a substitute is acceptable only if certain conditions in the way that the substitute is used are met to minimize risks to human health and the environment. EPA describes such substitutes as “acceptable subject to use conditions” (40 CFR 82.180(b)(2)). For some substitutes, the Agency may permit a narrowed range of use within an end-use or sector. For example, the Agency may limit the use of a substitute to certain end-uses or specific applications within an industry sector. EPA describes these substitutes as “acceptable subject to narrowed use limits.” Under the narrowed use limit, users intending to adopt these substitutes “must ascertain that other alternatives are not technically feasible.” (40 CFR 82.180(b)(3)).
In making decisions regarding whether a substitute is acceptable or unacceptable, and whether substitutes present risks that are lower than or comparable to risks from other substitutes that are currently or potentially available in the end-uses under consideration, EPA examines the criteria in 40 CFR 82.180(a)(7): (i) atmospheric effects and related health and environmental impacts; (ii) general population risks from ambient exposure to compounds with direct toxicity and to increased ground-level ozone; (iii) ecosystem risks; (iv) occupational risks; (v) consumer risks; (vi) flammability; and (vii) cost and availability of the substitute.
Many SNAP listings include “comments” or “further information” to provide additional information on substitutes. Since this additional information is not part of the regulatory decision under SNAP, these statements are not binding for use of the substitute under the SNAP program. However, regulatory requirements so listed are binding under other regulatory programs (
For additional information on the SNAP program, visit the SNAP website at
The following list identifies regulated entities that may be affected by this rule and their respective North American Industrial Classification System (NAICS) codes:
This list is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. To determine whether your facility, company, business, or organization could be affected by this action, you should carefully examine the regulations at 40 CFR part 82, subpart G and the revisions below. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the
Below is a list of acronyms and abbreviations used in the preamble of this document:
EPA previously listed HFO-1234yf as acceptable subject to use conditions in motor vehicle AC in light-duty vehicles (74 FR 53445; October 19, 2009), in heavy-duty pickup trucks and complete heavy-duty vans (81 FR 86778; December 1, 2016) and in nonroad vehicles and service fittings for small refrigerant cans (87 FR 26276; May 4, 2022). EPA previously listed HFC-32 as acceptable subject to use conditions as a substitute in residential and light commercial AC and HPs (80 FR 19454; April 10, 2015) (86 FR 24444; May 6, 2021) and previously listed R-452B, R-454A, R-454B, and R-454C, (hereafter called “the four refrigerant blends”), as acceptable subject to use conditions as substitutes in residential and light commercial AC and HPs (86 FR 24444; May 6, 2021).
Today's proposed rulemaking is proposing to find HFC-32, HFO-1234yf, and the four refrigerant blends acceptable subject to use conditions as substitutes in certain types of chillers. This proposed listing for HFO-1234yf, R-454A, R-454B, and R-454C applies to all compressor types of chillers,
Several use conditions proposed for chillers are identical to those proposed for other end-uses (residential dehumidifiers, non-residential dehumidifiers, and residential and light commercial AC and HPs) proposed in sections II.B, II.C, and II.D. below. Because of this similarity, EPA discusses the use conditions that would apply to all three end-uses in section II.E below. For chillers, EPA is also proposing an additional use condition related to adherence to the ASHRAE 15-2019 standard. In summary, the common use conditions proposed are:
(1) New equipment only—These refrigerants may be used only in new equipment designed specifically and clearly identified for the refrigerant,
(2) UL Standard—These refrigerants may be used only in chillers that meet all requirements listed in the 3rd edition, dated November 1, 2019, of UL Standard 60335-2-40, “Household and Similar Electrical Appliances—Safety—Part 2-40: Particular Requirements for Electrical Heat Pumps, Air Conditioners and Dehumidifiers” (hereafter in this section, “UL Standard”). If this rule is finalized as proposed, in cases where the final rule would include requirements different than those of the 3rd edition of UL Standard 60335-2-40, EPA is proposing that the appliance would need to meet the requirements of the final rule in place of the requirements in the UL Standard. See section II.E below for further discussion on the requirements of this standard that EPA is proposing to incorporate by reference.
(3) Warning labels—Several warning labels are proposed as use conditions as detailed in section II.E below. These labels are similar or verbatim in language to those required by the UL Standard. The warning labels must be provided in letters no less than 6.4 mm (
(4) Markings—Equipment must have distinguishing red (Pantone® Matching System (PMS) #185 or Reichs-Ausschuß für Lieferbedingungen und Gütesicherung
For chillers, EPA is also proposing a use condition related to adherence to the ASHRAE 15-2019 standard in addition to those common proposed use conditions. Specifically, we are proposing that these refrigerants may only be used in chillers that meet all
The regulatory text of the proposed decisions appears in tables at the end of this document. If finalized as proposed, this text would be codified in appendix X of 40 CFR part 82, subpart G. The proposed regulatory text contains listing decisions for the end-uses discussed above. EPA notes that there may be other legal obligations pertaining to the manufacture, use, handling, and disposal of the proposed refrigerants that are not included in the information listed in the tables (
This proposal applies to chillers that are covered by the UL 60335-2-40 standard “Household and Similar Electrical Appliances—Safety—Part 2-40: Requirements for Electrical Heat Pumps, Air Conditioners and Dehumidifiers” and ASHRAE Standard 15-2019, “Safety Standard for Refrigeration Systems.” EPA understands that the UL Standard applies to chillers used for comfort cooling.
In the initial rule establishing the SNAP program (59 FR 13044; March 18, 1994), EPA included within the refrigeration and AC sector the end-use “commercial comfort air conditioning” and then elaborated on that end-use by saying that “CFCs are used in several different types of mechanical commercial comfort AC systems, known as chillers.” EPA indicated “that over time, existing cooling capacity [from chillers] will be either retrofitted or replaced by systems using non-CFC refrigerants in a vapor compression cycle or by alternative technologies.” We also explained in that rule that vapor compression chillers can be categorized by the type of compressor used, including centrifugal, rotary, screw, scroll and reciprocating compressors. These compressor types are also divided into centrifugal and positive displacement chillers, the latter of which includes those with reciprocating, screw, scroll or rotary compressors.
Centrifugal chillers are equipment that utilize a centrifugal compressor in a vapor-compression refrigeration cycle. Centrifugal chillers are typically used for commercial comfort AC, although other uses, that we are not proposing here, do exist. Centrifugal chillers can be found in office buildings, hotels, arenas, convention halls, airport terminals and other buildings. Centrifugal chillers tend to be used in larger buildings.
Positive displacement chillers are those that utilize positive displacement compressors such as reciprocating, screw, scroll or rotary types. Positive displacement chillers are applied in similar situations as centrifugal chillers, again primarily for commercial comfort AC, except that positive displacement chillers tend to be used for smaller capacity needs such as in mid- and low-rise buildings.
A chiller is a type of equipment using refrigerant that typically cools water or a brine solution, which is then pumped to fan coil units or other air handlers to cool the air that is supplied to the occupied spaces transferring the heat to the water. The heat absorbed by the water can then be used for heating purposes, and/or can be transferred directly to the air (“air-cooled”), to a cooling tower or body of water (“water-cooled”), or through evaporative coolers (“evaporative-cooled”). A chiller or a group of chillers could similarly be used for district cooling where the chiller plant cools water or another fluid that is then pumped to multiple locations being served such as several different buildings within the same complex. Chillers may also be used to maintain operating temperatures in various types of buildings, for example, in data centers, server farms, and agricultural/food operations. Chillers are used in other applications, for example, to cool process streams in industrial applications. Chillers are also used for comfort cooling of operators or climate control and protecting process equipment in industrial buildings, for example, in industrial processes when ambient temperatures could approach 200 °F (93 °C) and corrosive conditions could exist. The listings proposed today would apply to all types of chillers in comfort cooling applications.
The ANSI/ASHRAE Standard 34-2019 assigns a safety group classification for each refrigerant which consists of two to three alphanumeric characters (
The refrigerants are also assigned a flammability classification of 1, 2, 2L, or 3. Tests for flammability are conducted in accordance with American Society for Testing and Materials (ASTM) E681 using a spark ignition source at 140 °F (60 °C) and 14.7 psia (101.3 kPa).
For flammability classifications, refrigerant blends are designated based on the worst case of formulation for flammability and the worst case of fractionation for flammability determined for the blend.
Using these safety group classifications, ANSI/ASHRAE Standard 34-2019 categorizes HFO-1234yf, HFC-32 and the four refrigerant blends in this section of the proposed rulemaking in the A2L Safety Group.
HFO-1234yf and HFC-32 are lower flammability refrigerants, and the four refrigerant blends are lower flammability refrigerant blends, all with an ASHRAE safety classification of A2L. The respective Chemical Abstracts Service Registry Identification Numbers (CAS Reg. Nos.) of HFO-1234yf, HFC-32 and the components of the four refrigerant blends are listed below.
HFO-1234yf, also known by the trade names “Solstice® yf” and “Opteon
Redacted submissions and supporting documentation for HFO-1234yf, HFC-32 and the four refrigerant blends are provided in the docket for this proposed rule (EPA-HQ-OAR-2021-0836) at
HFO-1234yf has a 100-year integrated global warming potential (GWP) of less than one to four.
HFC-32, HFO-1234yf, and the other component of one of the four refrigerant
The American Industrial Hygiene Association (AIHA) has established Workplace Environmental Exposure Limits (WEELs) of 1,000 ppm as an eight-hour time-weighted average (8-hr TWA) for HFC-32 and the component refrigerant HFC-125; the AIHA has established a WEEL of 500 ppm as an 8-hr TWA for HFO-1234yf. The manufacturer of R-452B, R-454A, R-454B, and R-454C recommends AELs, respectively, of 874, 690, 854, and 615 ppm on an 8-hr TWA for these blends. EPA anticipates that users will be able to meet the AIHA WEELs and manufacturers' AELs and address potential health risks by following requirements and recommendations in the manufacturers' safety data sheet (SDS), the use conditions proposed (including adherence to ASHRAE Standard 15), and other safety precautions common to the refrigeration and AC industry.
HFC-32 and the four refrigerant blends' GWPs, ranging from about 150 to 700, are higher than those of some of the acceptable substitutes for new centrifugal and positive displacement chillers, including HCFO-1233zd(E), HFO-1336mzz(Z) and R-515B, with GWPs of 3.7, 9 and 287, respectively. The GWPs of HFO-1234yf, R-454A, R-454B, and R-454C are lower than some of the acceptable substitutes for new centrifugal and positive displacement chillers, such as R-450A and R-513A, with GWPs of approximately 600 and 630, respectively. For scroll and rotary chillers, HFC-32's and R-452B's GWPs of 675 and about 700 are higher than the GWPs of those refrigerants. The GWPs of HFC-32 and R-452B are, however, lower than R-410A, with a GWP of approximately 2,090, which is the refrigerant that has typically been employed in such systems. EPA listed R-410A as unacceptable for chillers as of January 1, 2024. Our initial evaluation is that the characteristics of these two alternatives meet the technical needs of scroll and rotary chillers while lower-GWP alternatives do not. For instance, under the Air-Conditioning, Heating, and Refrigeration Institute's (AHRI) Low-GWP Alternative Refrigerants Evaluation Program, manufacturers specifically chose HFC-32 amongst others to test in scroll chillers
HFC-32's and the four refrigerant blends' GWPs, ranging from about 150 to 700, are higher than those of some of the acceptable substitutes for new industrial process AC, including carbon dioxide (CO
Information regarding the toxicity of other available alternatives is provided in the listing decisions previously made (see
The flammability risk with HFO-1234yf, HFC-32, and the four refrigerant blends in these end-uses, determined by the likelihood of exceeding their respective lower flammability limits, are evaluated in the risk screens referenced above. In conclusion, while these refrigerants may pose greater flammability risk than other available substitutes in the same end-uses, this risk can be minimized by use consistent with ASHRAE 15—which would be required by our proposed use conditions—and other industry standards such as UL 60335-2-40—which is also required by our proposed use conditions—as well as recommendations in the manufacturers' SDS and other safety precautions common in the refrigeration and AC industry. EPA is proposing use conditions to reduce the potential risk associated with the flammability of these alternatives so that they will not pose significantly greater risk than other acceptable substitutes in this end-use.
The UL Standard 60335-2-40 discussed in section II.E indicates that refrigerant charges greater than a specific amount (called “m
EPA is proposing that ANSI/ASHRAE Standard 15-2019, with all addenda published to date of this proposal, including addenda a, b, c, d, e, f, i, j, k, n, o, q, and r apply specifically to chillers. Where the requirements specified in this proposed rule (if finalized) and ASHRAE Standard 15 are different, the requirements of this proposed rule (if finalized) would apply. In cases where similar requirements of ASHRAE Standard 15 and UL Standard 60335-2-40 differ, EPA proposes that the more stringent or conservative condition would apply.
A summary of certain aspects of ASHRAE Standard 15 is provided here for information only. This is not meant to be a full explanation of the Standard or how it is applied. ASHRAE Standard 15 specifies requirements for refrigeration systems,
Sections 7.2 and 7.3 of ASHRAE Standard 15 determine the maximum amount of refrigerant allowed in the system, while section 7.4 provides an option to locate equipment outdoors or in a machinery room constructed and maintained under conditions specified in the standard. Section 7.6 of ASHRAE Standard 15 addresses the refrigerants in this proposal when used for human comfort in “high-probability” systems, including requirements for nameplates, labels, refrigerant detectors (under certain conditions), airflow initiation and other actions (if a rise in refrigerant concentration is detected), and other restrictions.
EPA recognizes that ASHRAE Standard 15 is undergoing revisions and is typically updated and republished every three years. While this proposed rule incorporates all addenda published by the date of this proposal, the 2022 version of the standard may incorporate additional changes. ASHRAE standards are open for public comment and participation following ANSI requirements.
EPA is providing additional information related to these proposed listings. Since this additional information is not part of the regulatory decision under SNAP, these statements are not binding for use of the substitute under the SNAP program. See section II.E.2 below for further discussion on what additional information EPA is including in these proposed listings. While the items listed are not legally binding under the SNAP program, EPA encourages users of substitutes to apply all statements in the “Further Information” column in their use of these substitutes.
EPA is requesting comment on all aspects of the proposed listing decision above for use of HFC-32 and R-452B in scroll and rotary chillers. EPA is also requesting comment on the proposal to list HFO-1234yf, R-454A, R-454B, and R-454C acceptable in all chillers. We request comment on our initial evaluation and our proposal to find HFC-32 and R-452B acceptable, subject to use conditions, for use only in scroll and rotary chillers. EPA also seeks specific comments on the use conditions including the proposed requirements to comply with both the third edition of UL Standard 60335-2-40 and ASHRAE 15-2019 including published addenda. With respect to these standards, EPA is requesting comment on the risk mitigation offered by compliance with the current version of the standards proposed as use conditions, the nature of updates proposed for these standards, and the expected timeline for those updates. EPA is requesting comment on the applicability of UL Standard 60335-2-40, 3rd Edition to chillers, including which chillers and under which applications the standard applies, as well as on the applicability of ASHRAE Standard 15-2019 with the addenda published to date.
EPA recognizes that these standards are undergoing revision. Both UL and ASHRAE standards are open for public comment and participation following ANSI requirements. UL opened for comment a proposed 4th edition of this standard as an update to the 3rd Edition to which comments were due March 1, 2022. If the final 4th edition is published before EPA takes final action on today's proposed listings that would incorporate the 3rd edition by reference, EPA may incorporate the 4th Edition by reference into those listings in lieu of the 3rd Edition. Similarly, ASHRAE has opened for comment a 2022 version of ANSI/ASHRAE 15. If the final 2022 edition of ASHRAE 15 is published before EPA takes final action on today's proposed listings that would incorporate the 2019 edition by reference, EPA may incorporate the 2022 edition by reference into those listings in lieu of the 2019 edition. If either revised standard becomes final before EPA takes final action on these
EPA previously listed HFO-1234yf as acceptable subject to use conditions in motor vehicle AC in light-duty vehicles (74 FR 53445; October 19, 2009), in heavy-duty pickup trucks and complete heavy-duty vans (81 FR 86778; December 1, 2016) and in nonroad vehicles and service fittings for small refrigerant cans (87 FR 26276; May 4, 2022). EPA previously listed HFC-32 as acceptable subject to use conditions as a substitute in residential and light commercial AC and HPs (80 FR 19454; April 10, 2015 and 86 FR 24444, May 6, 2021) and previously listed R-452B, R-454A, R-454B, and R-454C (hereafter called “the four refrigerant blends”) as acceptable subject to use conditions as substitutes in residential and light commercial AC and HPs (86 FR 24444; May 6, 2021).
Several use conditions proposed for residential dehumidifiers are common to those proposed for other end-uses in section II.A, above, and II.C and II.D, below. Because of this similarity, EPA discusses the use conditions that would apply to all four end-uses in section II.E. For residential dehumidifiers, those are the only use conditions EPA is proposing. In summary the use conditions proposed are:
(1) New equipment only—These refrigerants may be used only in new equipment designed specifically and clearly identified for the refrigerant,
(2) UL Standard—These refrigerants may be used only in residential dehumidifiers that meet all requirements listed in the 3rd edition, dated November 1, 2019, of Underwriters Laboratories (UL) Standard 60335-2-40, “Household and Similar Electrical Appliances—Safety—Part 2-40: Particular Requirements for Electrical Heat Pumps, Air Conditioners and Dehumidifiers” (UL Standard). If this rule is finalized as proposed, in cases where the final rule would include requirements different from those of the 3rd edition of UL Standard 60335-2-40, EPA is proposing that the appliance would need to meet the requirements of the final rule in place of the requirements in the UL Standard. See section II.E below for further discussion on the requirements of this standard that EPA is proposing to incorporate by reference.
(3) Warning labels—Several warning labels are proposed as use conditions as detailed in section II.E below. These labels are similar or verbatim in language to those required by the UL Standard. The warning labels must be provided in letters no less than 6.4 mm (
(4) Markings—Equipment must have distinguishing red (PMS #185 or RAL 3020) color-coded hoses and piping to indicate use of a flammable refrigerant. The residential dehumidifier shall have marked service ports, pipes, hoses and other devices through which the refrigerant is serviced. Markings shall extend at least 1 inch (25mm) from the servicing port and shall be replaced if removed.
The regulatory text of the proposed decisions appears in tables at the end of this document. If finalized as proposed, this text would be codified in appendix X of 40 CFR part 82, subpart G. The proposed regulatory text contains listing decisions for the end-use discussed above. EPA notes that there may be other legal obligations pertaining to the manufacture, use, handling, and disposal of the proposed refrigerants that are not included in the information listed in the tables (
Residential dehumidifiers are primarily used to remove water vapor from ambient air or directly from indoor air for comfort or material preservation purposes in the context of the home.
Some dehumidifiers for residential or light commercial use are integrated with the space air conditioning equipment, for instance via a separate bypass in the duct through which air is dehumidified, a dehumidifying heat pipe across the indoor coil, or other types of energy recovery devices that move sensible and/or latent heat between air streams (
Today's proposal, if finalized, would find HFO-1234yf, HFC-32, and the four refrigerant blends acceptable, subject to use conditions, in self-contained residential dehumidifiers. Note that dehumidifiers for residential or light commercial use that are integrated with air conditioning equipment (
HFO-1234yf and HFC-32 are lower flammability refrigerants, and the four refrigerant blends are lower flammability refrigerant blends, all with an ASHRAE safety classification of A2L. See section II.A.2 above for further discussion on ASHRAE classifications.
See section II.A.3 above for further discussion on the environmental, flammability, toxicity, and exposure information for these refrigerants.
Redacted submissions and supporting documentation for HFO-1234yf, HFC-32 and the four refrigerant blends are provided in the docket for this proposed rule (EPA-HQ-OAR-2021-0836) at
HFO-1234yf, R-454A, R-454B, and R-454C have GWPs ranging up to about 470, lower than all the acceptable substitutes for new residential dehumidifiers, including R-513A and R-410A with GWPs of 630 and 2,090, respectively. HFC-32 and R-452B have GWPs of 675 and 700, respectively, which are lower than some of the other acceptable substitutes for new residential dehumidifiers, such as HFC-134a, R-410A, and R-507A with GWPs of 1,430, 2,090 and 3,990 respectively, but higher than R-513A, with a GWP of about 630.
Information regarding the toxicity of other available alternatives is provided in the previous listing decisions for new residential dehumidifiers (
The flammability risk with HFO-1234yf, HFC-32, and the four refrigerant blends in the new residential dehumidifiers end-use, determined by the likelihood of exceeding their respective lower flammability limits, are evaluated in the risk screens referenced in this section above. While these refrigerants may pose greater flammability risk than other available substitutes in the new residential dehumidifiers end-use, this risk can be mitigated by use consistent with ASHRAE 15 and UL 60335-2-40, required by our proposed use conditions, as well as recommendations in the manufacturers' SDS and other safety precautions common in the refrigeration and AC industry. EPA is proposing use conditions to reduce the potential risk associated with the flammability of these alternatives so that they will not pose significantly greater risk than other acceptable substitutes in the new residential dehumidifiers end-use.
EPA is proposing to list HFO-1234yf, HFC-32 and the four refrigerant blends as acceptable, subject to use conditions, for use in residential dehumidifiers for new equipment. The use conditions identified in the listing above are explained below in section II.E.1 in greater detail.
EPA is providing additional information related to these proposed listings. Since this additional information is not part of the regulatory decision under SNAP, these statements are not binding for use of the substitute under the SNAP program. See section II.E.2 below for further discussion on what additional information EPA is including in these proposed listings. While the items listed are not legally binding under the SNAP program, EPA encourages users of substitutes to apply all statements in the “Further Information” column in their use of these substitutes.
EPA is requesting comment on all aspects of the proposed listing decision in section II.B above, proposing to find HFO-1234yf, HFC-32, and the four refrigerant blends acceptable, subject to use conditions, in new residential dehumidifiers. EPA seeks comment on the risk mitigation offered by the use conditions proposed, including requiring compliance with the third edition of UL Standard 60335-2-40, except to the extent the proposed rule conflicts with the UL Standard, in which case we propose that the conditions specified in the proposed rule would apply if finalized. We also request comment on whether EPA should consider other use conditions to further mitigate potential risk from refrigerants. EPA requests comment on whether residential dehumidifiers have been designed for the refrigerants proposed and any information on the safety of such equipment in other countries, and if and how such experience would translate to safe use in the United States. EPA also requests comment on our description of different types of dehumidifiers and how EPA classifies different types in different end-uses.
EPA is proposing to list HFC-32 as acceptable, subject to use conditions for use in new non-residential dehumidifiers. EPA previously listed HFC-32 as acceptable subject to use conditions as a substitute in residential and light commercial AC and HPs (80 FR 19454; April 10, 2015 and 86 FR 24444, May 6, 2021).
The use conditions proposed for non-residential dehumidifiers are the same as those proposed for residential dehumidifiers. The use conditions are common to those proposed for other end-uses in section II.A and II.B, above, and II.D, below. Because of this similarity, EPA discusses the use
(1) New equipment only—These refrigerants may be used only in new equipment designed specifically and clearly identified for the refrigerant,
(2) UL Standard—These refrigerants may be used only in non-residential dehumidifiers that meet all requirements for dehumidifiers listed in the 3rd edition, dated November 1, 2019, of Underwriters Laboratories (UL) Standard 60335-2-40, “Household and Similar Electrical Appliances—Safety—Part 2-40: Particular Requirements for Electrical Heat Pumps, Air Conditioners and Dehumidifiers” (UL Standard). If this rule is finalized as proposed, in cases where the final rule would include requirements different from those of the 3rd edition of UL Standard 60335-2-40, EPA is proposing that the appliance would need to meet the requirements of the final rule in place of the requirements in the UL Standard. See section II.E below for further discussion on the requirements of this standard that EPA is proposing to incorporate by reference.
(3) Warning labels—Several warning labels are proposed as use conditions as detailed in section II.E below. These labels are similar or verbatim in language to those required by the UL Standard. The warning labels must be provided in letters no less than 6.4 mm (
(4) Markings—Equipment must have distinguishing red (PMS #185 or RAL 3020) color-coded hoses and piping to indicate use of a flammable refrigerant. The non-residential dehumidifier shall have marked service ports, pipes, hoses and other devices through which the refrigerant is serviced. Markings shall extend at least 1 inch (25mm) from the servicing port and shall be replaced if removed.
The regulatory text of the proposed decisions appears in tables at the end of this document. If finalized as proposed, this text would be codified in appendix X of 40 CFR part 82, subpart G. The proposed regulatory text contains listing decisions for the end-use discussed above. EPA notes that there may be other legal obligations pertaining to the manufacture, use, handling, and disposal of the proposed refrigerants that are not included in the information listed in the tables (
Today's proposal would create a new SNAP end-use for non-residential dehumidifiers. As described in section II.B.1 above, while AC systems often combine cooling and dehumidification, the non-residential dehumidifier end-use serves only the latter purpose. This equipment is self-contained and circulates air from a room, passes it through a cooling coil, and collects condensed water for disposal. Non-residential dehumidifiers are similar in function to residential dehumidifiers described in section II.B.1 above, but are used in spaces not covered by residential use (see definition provided in section II.B.1 above). These types of non-residential spaces include commercial, industrial, or agricultural spaces (
HFC-32 is a lower flammability refrigerant with an ASHRAE safety classification of A2L. See section II.A.2 above for further discussion on ASHRAE classifications.
See section II.A.3 above for further discussion on the environmental, flammability, toxicity and exposure information for HFC-32.
The redacted submission and supporting documentation for HFC-32 is provided in the docket for this proposed rule (EPA-HQ-OAR-2021-0836) at
Because EPA is proposing new non-residential self-contained dehumidifiers as a new end-use, there are no other listed substitutes to compare to HFC-32.
The use conditions identified in the listing above are explained below in section II.E.1 in greater detail.
EPA is providing additional information related to these proposed listings. Since this additional information is not part of the regulatory decision under SNAP, these statements are not binding for use of the substitute under the SNAP program. See section II.E.2 below for further discussion on what additional information EPA is including in these proposed listings. While the items listed are not legally binding under the SNAP program, EPA encourages users of substitutes to apply all statements in the
EPA is requesting comment on all aspects of the proposed listing decision in section II.C above, proposing to find HFC-32 acceptable, subject to use conditions, in non-residential dehumidifiers. EPA seeks comment on the risk mitigation offered by the use conditions proposed, including requiring compliance with the third edition of UL Standard 60335-2-40, except to the extent the proposed rule conflicts with the UL Standard, in which case we propose that the conditions specified in the proposed rule would apply if finalized. We also request comment on whether other use conditions would offer needed risk mitigation for the flammable refrigerants proposed. EPA requests comment on whether non-residential dehumidifiers have been designed for the refrigerant proposed, HFC-32, any information on the safety of such equipment in other countries, and if and how such experience would translate to safe use in the United States. EPA also requests
EPA previously listed HFC-32 as acceptable, subject to use conditions, in new self-contained room ACs and HPs in SNAP Rule 19 (80 FR 19461; April 10, 2015). Today we are proposing to update those use conditions to be consistent with use conditions applied to other refrigerants with lower flammability as finalized in SNAP Rule 23 (86 FR 24444; May 6, 2021). The proposed use conditions would be required on all such equipment manufactured on or after the effective date of the final rule and would not apply to or affect equipment manufactured before the effective date of the final action and manufactured in compliance with the SNAP requirements applicable at the time of manufacture.
EPA provided an overview of the residential and light commercial AC and HPs end-use, and the self-contained equipment category within that end-use, in SNAP Rule 19 (80 FR 19461; April 10, 2015) and the Notice of Proposed Rulemaking for SNAP Rule 23 (85 FR 35881-35882; June 12, 2020). We believe the descriptions there adequately describe the end-use category as it exists today.
See section II.A.2 above for further discussion on ASHRAE classifications.
See section II.A.3 above for further discussion on the environmental, flammability, toxicity and exposure information for HFC-32.
A redacted submission and supporting documentation for HFC-32 are provided in the docket for this proposed rule (EPA-HQ-OAR-2021-0836) at
HFC-32 has a GWP of 675, higher than some of the acceptable substitutes for residential and light commercial air conditioning and heat pumps, including ammonia absorption, R-290, and R-454B with GWPs of zero, three, and about 470, respectively. HFC-32's GWP is lower than some of the acceptable substitutes for residential and light commercial air conditioning and heat pumps, such as R-452B, HFC-134a, and R-410A, with GWPs of approximately 700, 1,430, and 2,090, respectively.
Information on the toxicity and flammability risk of HFC-32 in this end-use category was provided in SNAP Rule 19. In summary, EPA found the toxicity risks of HFC-32 to be comparable to or lower than other acceptable alternatives. Although we noted that the flammability risk of HFC-32 may be greater than that of other available, nonflammable substitutes in the same end-use, we found that those risks are not significant even under worst-case assumptions. These risks of HFC-32 are similar to the risks of other flammable refrigerants found acceptable for this end-use category in SNAP Rule 23 (
EPA previously found HFC-32 acceptable, subject to use conditions, in new residential and light commercial AC for self-contained room AC units, including packaged terminal air conditioner (PTAC) units, packaged terminal heat pumps (PTHPs), window AC and HP units, and portable AC units, designed for use in a single room in SNAP Rule 19 (80 FR 19454; April 10, 2015). Those requirements are codified in appendix R of 40 CFR part 82, subpart G. EPA provided information on the environmental and health properties of HFC-32 and the various substitutes available at that time for use in this end-use. Additionally, EPA's risk screen for this refrigerant is available in the docket for this previous rulemaking (EPA-HQ-OAR-2013-0748).
HFC-32 has an ASHRAE classification of A2L, indicating that it has low toxicity and lower flammability. The flammability risks are of potential concern because residential ACs and HPs traditionally used refrigerants that are not flammable. In the presence of an ignition source (
To address flammability, EPA listed HFC-32 as acceptable, subject to use conditions, in new self-contained room AC units. The current use conditions address safe use of this flammable refrigerant and include incorporation by reference of Supplement SA to the 8th edition (August 2, 2012) of UL Standard 484, refrigerant charge size limits based on cooling capacity and type of equipment, and requirements for markings and warning labels on equipment using the refrigerant to inform consumers and technicians of potential flammability hazards. Without appropriate use conditions, the flammability risk posed by this refrigerant could be higher than non-flammable refrigerants because individuals may not be aware that their actions could potentially cause a fire, and because the refrigerant could be used in existing equipment that has not been designed specifically to minimize flammability risks. Our assessment and listing decisions in SNAP Rule 19 (80 FR 19454; April 10, 2015) found that with the use conditions, the overall risk of this substitute, including the risk due to flammability, does not present significantly greater risk in the end-use than other substitutes that are currently or potentially available for that same end-use.
EPA is proposing to update the use conditions that apply to HFC-32 in new self-contained room ACs and HPs for
(1) New equipment only—This refrigerant may only be used in new equipment designed specifically and clearly identified for the refrigerant,
(2) UL Standard—This refrigerant (
(3) Warning labels—Several warning labels are proposed as use conditions as detailed in section II.E below. These labels are similar or verbatim in language to those required by the UL Standard. The warning labels must be provided in letters no less than 6.4 mm (
(4) Markings—Equipment must have distinguishing red (PMS #185 or RAL 3020) color-coded hoses and piping to indicate use of a flammable refrigerant. The equipment shall have marked service ports, pipes, hoses and other devices through which the refrigerant is serviced. Markings shall extend at least 1 inch (25mm) from the servicing port and shall be replaced if removed. This use condition is the same as what currently exists for HFC-32 in this end-use category.
The regulatory text of the proposed decisions appears in tables at the end of this document. If finalized as proposed, this text would be codified by amending appendix R. The amendment would be to indicate that the use conditions finalized apply to HFC-32 self-contained room AC units manufactured on or after the effective date of such a final rule (which we anticipate would be 30 days after publication in the
The updated use conditions EPA is proposing are similar to the ones that exist today in appendix R of 40 CFR part 82, subpart G for HFC-32 in this end-use category. The proposed requirements that HFC-32 must be used in new equipment only and must include red markings at service ports are repeated in this proposed listing. Existing room ACs using HFC-32 manufactured before the effective date of a final rule to this proposal would not be affected by these updated use conditions.
Warning labels are required under EPA's current regulations, and EPA is proposing to continue to require them, although with some specific language changes. The warning labels EPA is proposing are identical to those required as use conditions for the use of HFC-32 in residential and light commercial AC and HPs (excluding self-contained room ACs and HPs) and for R-452B, R-454A, R-454B, R-454C, and R-457A in residential and light commercial AC and HPs (including self-contained room ACs and HPs). EPA finds that using a common set of labels, similar to those from UL Standard 60335-2-40, will aid in compliance especially for a manufacturer that uses more than one of these refrigerants or produces both self-contained room ACs and HPs and other types of residential and light commercial AC and HPs. The updated labels EPA is proposing use the opening word “WARNING” in lieu of “DANGER” or “CAUTION” and change “Risk of Fire or Explosion” to just “Risk of Fire.” EPA is proposing that the labels must be provided in letters no less than 6.4 millimeter (
EPA is proposing to update the standard incorporated by reference in the use conditions, replacing the requirement to follow certain sections of the 2012 version of UL 484 with the proposed requirement to adhere to the 3rd edition of UL Standard 60335-2-40. UL Standard 60335-2-40 was developed in an open and consensus-based approach, with the assistance of experts in the refrigeration and AC industry as well as experts involved in assessing the safety of products. The revision cycle for the 3rd edition, including final recirculation, concluded with its publication on November 1, 2019. The 2019 UL Standard replaces the previously published version of several standards, including UL Standard 484, which had already been revised into a ninth edition by that time. EPA was aware of the continuing progress of UL Standards to address flammable refrigerants more appropriately. In the 2021 SNAP Rule (SNAP Rule 23) listing HFC-32 for other categories within the residential and light commercial AC and HPs end-use, we stated, “EPA understands that the standard we relied on in [SNAP] Rule 19 might `sunset' in the future.
Updating the UL Standard incorporated as a use condition will provide more consistency amongst the products within this end-use and between HFC-32 and the five A2L refrigerants listed as acceptable, subject to use conditions, for this end-use including self-contained room ACs and HPs in SNAP Rule 23. This change will allow the industry to focus on the existing standard. The change will be helpful in implementing any transitions needed or planned for manufacturers, installers, and technicians. A manufacturer, who may offer different products within this end-use with different refrigerants, could use similar processes, such as in developing and applying the warning labels required. Installers and technician, likewise, would not need to reference different standards depending on the type of equipment and the particular A2L refrigerant being used in that equipment, when putting in a new piece of equipment or servicing that equipment.
Another revision to the use conditions is charge sizes. In the 2019 SNAP Rule, charge sizes from both UL 484 (8th edition) and those stipulated by tables within the rule needed to be followed. Rather than requiring examination of both items and determining which charge size was lower, the proposed updated use conditions would rely on a single document, the 3rd edition of UL Standard 60335-2-40.
If finalized as proposed, the use conditions in this action would apply to new self-contained room ACs and HPs using HFC-32 manufactured on or after the effective date of the final rule (which we anticipate would be 30 days after publication in the
EPA is providing additional information related to these proposed listings. Since this additional information is not part of the regulatory decision under SNAP, these statements are not binding for use of the substitute under the SNAP program. See section II.E.2 below for further discussion on what additional information EPA is including in these proposed listings. EPA notes that the additional information is similar to, but not identical with, the addition information in the listing for HFC-32 in self-contained room ACs and HPs in SNAP Rule 19. EPA is proposing additional information consistent with that included in the other proposed listings for air conditioning equipment in this rule and consistent with that included in the listings for four A2L refrigerant blends listed as acceptable subject to use conditions in self-contained room ACs and HPs in SNAP Rule 23. While the items listed are not legally binding under the SNAP program, EPA encourages users of substitutes to apply all statements in the
EPA is requesting comment on all aspects of the proposed updates to the use conditions as discussed in section II.D above. EPA requests comments on the proposed change in use conditions and if and how such change would affect the safety of self-contained room ACs and HPs using HFC-32.
As described above, EPA is proposing to list:
In addition, EPA is proposing to update the use conditions that apply to the previous listing of:
• HFC-32 as acceptable, subject to use conditions, for use in self-contained room ACs and HPs for new equipment.
These use conditions are summarized in the listings under subheadings II.A, II.B, and II.C, and the revisions to the use conditions are summarized under subheading II.D, above, and are explained here in greater detail. The use conditions EPA proposes (either as new listings or revisions to a previous listing) include conditions requiring use of each refrigerant in new equipment, which can be specifically designed for the refrigerant; use consistent with the UL 60335-2-40 industry standard, 3rd Edition, including testing, charge sizes, ventilation, usage space requirements, and certain hazard warnings and markings; and requirements for warning labels and markings on equipment to inform consumers and technicians of potential flammability hazards. The listings with specific use conditions are intended to allow for the use of these lower flammability refrigerants in a manner that will ensure they do not pose a greater overall risk to human health and the environment than other substitutes in these end-uses.
EPA is proposing that these refrigerants may be used only in new equipment which has been designed to address concerns unique to flammable refrigerants—
EPA is proposing that the flammable refrigerants may be used only in equipment that meets all requirements in UL Standard 60335-2-40, 3rd Edition.
Those participating in the UL 60335-2-40 consensus standards process (hereafter “UL”) have tested equipment for flammability risk and evaluated the relevant scientific studies. Further, UL has developed safety standards including requirements for construction and system design, for markings, and for performance tests concerning refrigerant leakage, ignition of switching components, surface temperature of parts, and component strength after being scratched. Certain aspects of system construction and design, including charge size, ventilation, and installation space, and greater detail on markings, are discussed further below in this section. The UL 60335-2-40 Standard was developed in an open and consensus-based approach, with the assistance of experts in the AC industry as well as experts involved in assessing the safety of products. While similar standards exist from other bodies such as the International Electrotechnical Commission (IEC), we are proposing to rely on specific UL standards that are most applicable and recognized by the U.S. market. This approach is the same as that in our previous rules on flammable refrigerants (
A summary of the requirements of UL 60335-2-40 as they affect the refrigerants and end-use addressed in this section of our proposal follows. This summary is offered for information only and does not provide a complete review of the requirements in this standard.
Among the provisions in UL 60335-2-40 are limits on the amount of refrigerant allowed in each type of appliance based on several factors explained in that standard. The requirements in UL 60335-2-40 would reduce the risk to workers and consumers. Annex GG of the standard provides the charge limits, ventilation requirements and requirements for secondary circuits. The standard specifies requirements for installation space of an appliance (
In addition to Annex GG and Table GG.1 mentioned above, UL 60335-2-40 has a requirement for the maximum charge for an appliance using an A2L refrigerant. Additional requirements exist for charge sizes exceeding three times the LFL.
Table GG.1 of the UL standard indicates that systems with refrigerant charges exceeding certain amounts are outside the scope of the standard, stating that “National standards apply.” Specifically, if the refrigeration circuit with the greatest mass of a flammable refrigerant is more than 260 times the lower flammability limit (in kg/m
EPA recognizes that this standard is undergoing revision. UL opened for comment a proposed 4th edition of this standard as an update to the 3rd Edition to which comments were due March 1, 2022. UL standards are open for public comment and participation following ANSI requirements.
As a use condition or revision to existing use conditions, EPA is proposing to require labeling of chillers, residential dehumidifiers, non-residential dehumidifiers, and HFC-32 self-contained room ACs and HPs (“equipment”) containing the proposed flammable refrigerants. EPA is proposing that the following markings, or the equivalent, must be provided in letters no less than 6.4 mm (
EPA expects that all residential dehumidifiers and non-residential dehumidifiers and all self-contained room ACs and HPs would be packaged, and hence this label would be placed as stipulated in item 1 above. EPA expects that chillers could be provided packaged or not, and this label would be placed as stipulated in item 1 or 2, respectively.
The text of the warning labels, above, is exactly the same as that required in UL 60335-2-40, with the exception of the label identified in v., which is similar to that in the UL Standard. The major difference between this proposed requirement and the requirements in Table 101.DVF.1 of UL 60335-2-40 is that the markings for A2L refrigerants, including HFO-1234yf, HFC-32 and the four refrigerant blends, are required to be no less than 3.2 mm (
Our understanding of the UL Standard is that red markings, similar to those EPA has applied as use conditions in past actions for flammable refrigerants (76 FR 78832; December 20, 2011 and 80 FR 19454; April 10, 2015 and 86 FR 24444; May 6, 2021), are required by the UL Standard for A2 and A3 refrigerants but not A2L refrigerants. EPA is proposing that such markings apply to these A2L refrigerants as well to establish a common, familiar and standard means of identifying the use of a flammable refrigerant.
These red markings will help technicians immediately identify the use of a flammable refrigerant, thereby potentially reducing the risk of using sparking equipment or otherwise having an ignition source nearby. The AC and refrigeration industry currently uses red-colored hoses and piping as means for identifying the use of a flammable refrigerant based on previous SNAP listings. Likewise, distinguishing coloring has been used elsewhere to indicate an unusual and potentially dangerous situation, for example in the use of orange-insulated wires in hybrid electric vehicles. Currently in SNAP listings, color-coded hoses or pipes must be used for ethane, HFC-32, R-452B, R-454A, R-454B, R-454C, R-457A, isobutane, propane, and R-441A in certain types of equipment where these are listed acceptable, subject to use conditions. All such tubing must be colored red PMS #185 or RAL 3020 to match the red band displayed on the container of flammable refrigerants AHRI Guideline N, “2017 Guideline for Assignment of Refrigerant Container Colors.” The intent of this aspect of the proposal is to provide adequate notice for technicians and others that a flammable refrigerant is being used within a particular piece of equipment or appliance. Another goal is to provide adequate notification of the presence of flammable refrigerants for personnel disposing of appliances containing flammable refrigerants. As explained in a previous SNAP rule, one mechanism to distinguish hoses and pipes is to add a colored plastic sleeve or cap to the service tube. (80 FR 19465; April 10, 2015). Other methods, such as a red-colored tape could be used. The colored plastic sleeve, cap, or tape would have to be forcibly removed in order to access the service tube and would have to be replaced if removed. This would signal to the technician that the refrigeration circuit that she/he was about to access contained a flammable refrigerant, even if all warning labels were somehow removed. This sleeve, cap or tape would be of the same red color (PMS #185 or RAL 3020) and could also be boldly marked with a graphic to indicate the refrigerant was flammable. This could be a cost-effective alternative to painting or dyeing the hose or pipe.
EPA is proposing the use of color-coded hoses or piping as a way for technicians and others to recognize that a flammable refrigerant is used in the equipment. This would be in addition to the proposed use of warning labels discussed above. EPA believes having two such warning methods is reasonable and consistent with other general industry practices. This approach is the same as that adopted in our previous rules on flammable refrigerants (
For chillers, residential, dehumidifiers, non-residential dehumidifiers, and self-contained room ACs and HPs, EPA is including recommendations, found in the “Further Information” column of the regulatory text at the end of this document, to protect personnel from the risks of using flammable refrigerants. Similar to our previous listings of flammable refrigerants, EPA is including information on the OSHA requirements at 29 CFR part 1910, proper ventilation, personal protective equipment, fire extinguishers, use of spark-proof tools and equipment designed for flammable refrigerants, and training. Since this additional information is not part of the regulatory decision under SNAP, these statements are not binding for use of the substitute under the SNAP program. While the items listed are not legally binding under the SNAP program, EPA encourages users of substitutes to apply all statements in the
EPA is requesting comment on all aspects of the proposed use conditions described above and the appropriateness for applying these use conditions to the listings for chillers, residential dehumidifiers, and non-residential dehumidifiers, and the revisions to the listing for self-contained room ACs and HPs described in sections II.A, II.B, II.C, and II.D, respectively.
EPA is requesting comment on the applicability of UL Standard 60335-2-40, 3rd Edition, to chillers, including for which chillers and under which applications the standard applies. We likewise are requesting comment on the applicability of the UL Standard to residential dehumidifiers, non-residential dehumidifiers, and self-contained room ACs and HPs.
With regard to UL Standard 60335-2-40, EPA is requesting comment on the status of the standard, the modifications that are being or have been incorporated in it, how those modifications would change the risk associated with the use of these flammable refrigerants in these end-uses, and the appropriateness of adopting as a use condition the current (3rd) edition of this standard.
EPA recognizes that this standard is undergoing revision. UL opened for comment a proposed 4th edition of this standard as an update to the 3rd Edition to which comments were due March 1, 2022. UL standards are open for public comment and participation following ANSI requirements. If the final 4th edition is published before EPA takes final action on today's proposed listings that would incorporate the 3rd edition by reference, EPA may incorporate the 4th Edition by reference into those listings in lieu of the 3rd Edition. In that situation, EPA anticipates reopening or extending the public comment period to provide an opportunity for public comment on incorporating the final 4th edition by reference into those listings.
EPA is also requesting comment on requiring labeling, the height of the lettering, and the likelihood of labels remaining on a product throughout the lifecycle of the product, including its disposal.
The very low temperature refrigeration end-use includes a wide range of equipment types. VLTR equipment is intended to maintain temperatures considerably lower than for refrigeration of food (below −62 °C or −80 °F). Examples of very low temperature refrigeration equipment include medical freezers and freeze-dryers, which generally require extremely reliable refrigeration cycles to maintain low temperatures and must meet stringent technical standards. In some cases, VLTR equipment may use a refrigeration system with two stages, each with its own refrigerant loop. This allows a greater range of temperatures and may reduce the overall refrigerant charge.
For this notice of proposed rulemaking, only equipment designed to reach temperatures lower than −80 °C (−112 °F) is addressed. See sections II.E.6 and II.E.7 below for a discussion of the narrowed use limits describing the reasoning for this temperature requirement. Examples of equipment covered by this proposed rule in the VLTR end-use include:
•
• Cold traps required to operate below −80 °C or −112 °F. This equipment is used during laboratory evaporation to condense vapors to prevent them from entering and damaging the pump, or leaking into the environment, ensuring a closed system within the vacuum pump.
• Very low temperature freezers designed to reach temperatures below −80 °C or −112 °F.
Each of these types of laboratory equipment, including other VLTR equipment not mentioned that fit within the narrowed use limits proposed in section II.F.6, would be subject to the listing decision under this rule for R-1150 if this decision were to become final as proposed.
EPA is proposing to list R-1150 as acceptable, subject to use conditions and narrowed use limits, for use in VLTR equipment, including freeze-dryers, cold traps, and laboratory freezers. This proposed listing would apply to all types of VLTR equipment that meet the requirements of the UL Standard 61010-2-011, 2nd Edition, and for all applications of such equipment under EPA's proposed use conditions and narrowed use limits.
R-1150, also known as ethene or ethylene (CAS Reg. No. 75-85-1), is an unsaturated hydrocarbon (HC). It is a flammable refrigerant with the ASHRAE safety classification A3. You may find a copy of the applicants' submissions, with CBI redacted, providing the required health and environmental information for this substitute in this end-use in Docket EPA-HQ-OAR-2021-0836 at
In addition to ODP and GWP, EPA evaluated potential impacts of R-1150
In response to the increased market share of HCs, particularly in VLTR applications, EPA conducted additional analysis of various scenarios to consider the potential impacts on local air quality if HC refrigerants were used in further applications.
Additionally, the analysis also considers the more realistic scenarios (Scenario 2, Scenario 3a, and Scenario 3b) where HCs are modeled only in the end-uses where the SNAP program has already listed them as acceptable, or for which SNAP submissions or international market trends indicate HCs soon could be used. Scenario 2 examines the likely emissions of lower maximum incremental reactivity (MIR) HCs, propane, isobutane, and ethane, in the residential and light commercial AC, residential dehumidifiers, retail refrigeration, and household refrigeration end-uses. Scenarios 3a and 3b also consider the use of higher MIR refrigerants propylene and R-1150 in laboratory equipment (IPR and VLTR end-uses, respectively) and R-1150 in small retail food refrigeration equipment (
In highly conservative Scenario 1b, examining widespread R-1150 adoption across the refrigeration and AC sector, modeling predicts that the single 8-hour average ground-level ozone concentration could increase by 11.7 percent in Los Angeles, which is the area with the highest level of ground-level ozone pollution in the United States. However, in the more realistic scenarios 3a and 3b, 8-hour ground-level ozone concentration in Los Angeles was found to increase by a maximum of 0.017 percent relative to the NAAQS on the worst modeled day. For purposes of this SNAP determination, this is not a significant increase in ground-level ozone. The modeling is also conservative by assuming a one-for-one substitution of HCs for current refrigerants because an actual transition would likely introduce less than one kg of HC for each kg replaced. As a result of this analysis, EPA believes that the use of R-1150 consistent with the use conditions and narrowed use limits proposed would not result in significantly greater risk to people's health or the environment than other alternatives available for the same use.
Ecosystem effects from R-1150 are expected to be small, as are the effects of other acceptable substitutes in this end-use. R-1150 is highly volatile and typically evaporates or partitions to air, rather than contaminating ground or surface waters, and thus R-1150's effects on aquatic life are expected to be small. Based on these considerations, R-1150 is not expected to pose a greater risk of ecosystem effects than other alternatives for these uses.
The American Conference of Governmental Industrial Hygienists (ACGIH) has established a TLV of 200 ppm as an 8-hour TWA for R-1150. EPA anticipates that users will be able to meet the TLV and address potential health risks by following the use condition limiting charge sizes to 150 g and the requirements and recommendations in the manufacturer's SDS, ASHRAE Standard 15, UL Standard 61010-2-011, 2nd Edition, and other safety precautions common to the refrigeration and AC industry.
R-1150 is a VOC that is more photochemically reactive and more likely to cause ground-level ozone pollution than acceptable refrigerants in this end-use. For example, R-1150 has a MIR of 9.07 g-O
Flammability risks of R-1150 are comparable to flammability risks of other available substitutes in the same end-use, such as ethane, while R-1150's flammability risks are higher than those of nonflammable refrigerants such as R-410A, CO
Toxicity risks are comparable to or lower than toxicity risks of other available substitutes in the same end-use. Toxicity risks can be minimized by use consistent with the TLV issued by the ACGIH, ASHRAE Standard 15, UL standards, and other industry standards, recommendations in the manufacturer's SDS, and other safety precautions common in the refrigeration and AC industry.
Although R-1150 presents a higher risk to local air quality than other available alternatives for this end-use, other alternatives such as ethane, propane, and most HFOs or HFCs that are less photochemically reactive than R-1150 are not able to attain temperatures as low as R-1150 because of their higher boiling points. Thus, EPA is proposing to list this substitute as acceptable subject to use conditions and narrowed use limits in VLTR.
EPA proposes the following use conditions to address flammability risks of R-1150:
(1) New equipment only—R-1150 may be used only in new equipment designed specifically and clearly identified for the refrigerant,
(2) UL Standard—R-1150 may be used only in laboratory equipment that meet all requirements listed in the 2nd edition, dated May 13th, 2021, of UL Standard 61010-2-011, “Safety Requirements for Electrical Equipment for Measurement, Control, and Laboratory Use—Part 011: Particular Requirements for Refrigerating Equipment” (hereafter in this section, “UL Standard”). If this rule is finalized as proposed, in cases where the final rule would include requirements different than those of the UL Standard, EPA is proposing that the equipment would need to meet the requirements of the final rule in place of the requirements in the UL Standard. Requirements of note include:
• Warning labels—The following markings, or the equivalent, must be provided in letters no less than 6.4 millimeter (
i. Attach near the machine compartment: “DANGER—Risk of Fire or Explosion. Flammable Refrigerant Used. To Be Repaired Only By Trained Service Personnel. Do Not Puncture Refrigerant Tubing.”
ii. Attach near the machine compartment: “CAUTION—Risk of Fire or Explosion. Flammable Refrigerant Used. Consult Repair Manual/Owner's Guide Before Attempting To Service This Product. All Safety Precautions Must be Followed.”
iii. Attach on the exterior of the refrigeration equipment: “CAUTION—Risk of Fire or Explosion. Dispose of Properly In Accordance With Federal Or Local Regulations. Flammable Refrigerant Used.”
iv. Attach near all exposed refrigerant tubing: “CAUTION—Risk of Fire or Explosion Due To Puncture Of Refrigerant Tubing; Follow Handling Instructions Carefully. Flammable Refrigerant Used.”
v. Attach on the exterior of the refrigeration equipment: “This equipment is intended for use in commercial, industrial, or institutional occupancies as defined in the Safety Standard for Refrigeration Systems, ANSI/ASHRAE 15”.
vi. Attach on the exterior of the shipping carton: “CAUTION—Risk of Fire or Explosion. Dispose of Properly In Accordance With Federal Or Local Regulations.”
vii. The instructions shall include the following warnings as necessary:
a. “WARNING: Ensure all ventilation openings are not obstructed.”
b. “WARNING: Do not use mechanical devices or other means to accelerate the defrosting process, other than those recommended by the manufacturer.”
c. “WARNING: Do not damage the refrigerant circuit.”
• Markings—Equipment must have distinguishing red (PMS #185 or RAL 3020) color-coded hoses and piping to indicate use of a flammable refrigerant. The laboratory equipment shall have marked service ports, pipes, hoses and other devices through which the refrigerant is serviced. Markings shall extend at least 1 inch (25 millimeter) from the servicing port and shall be replaced if removed.
(3) Charge size—Equipment must use no more than 150 g of R-1150 in each refrigerant circuit using this refrigerant.
The regulatory text of the proposed decisions appears in tables at the end of this document. If finalized as proposed, this text would be codified in appendix X of 40 CFR part 82, subpart G. The proposed regulatory text contains listing decisions for the end-use discussed above. EPA notes that there may be other legal obligations pertaining to the manufacture, use, handling, and disposal of the proposed refrigerant that are not included in the information listed in the tables (
EPA is proposing to list R-1150 as acceptable, subject to use conditions, for use in the VLTR end-use for new equipment reaching temperatures lower than −80 °C (−112 °F). The use conditions are identified in the listing under subheading II.F.4, above, and are explained here in greater detail. The use conditions EPA proposes include conditions requiring use of R-1150 in new equipment, which can be specifically designed for the refrigerant; use consistent with the UL Standard, including testing, charge sizes, ventilation, usage space requirements, and certain hazard warnings and markings; and limiting charge size to 150 g of R-1150 per refrigerant circuit. The listings with specific use conditions are intended to allow for the use of this flammable refrigerant in a manner that will ensure it does not pose a greater overall risk to human health and the environment than other substitutes in this end-use.
EPA is proposing that R-1150 may be used only in new equipment
EPA is proposing that R-1150 may be used only in equipment that meets all requirements in the UL Standard. This UL Standard indicates that refrigerant charges greater than 150 g are beyond its scope and that additional requirements apply, such as for instance ANSI/ASHRAE 15-2019. EPA has only evaluated equipment that fits within the scope of the UL Standard.
UL has developed safety standards including requirements for construction and system design, for markings, and for performance tests concerning refrigerant leakage, ignition of switching components, surface temperature of parts, and component strength after being scratched. Certain aspects of system construction and design, including charge size, ventilation, and installation space, and greater detail on markings, are discussed further below in this section. The UL Standard was developed in an open and consensus-based approach, with the assistance of experts in the laboratory equipment industry as well as experts involved in assessing the safety of products. While similar standards exist from other bodies such as the IEC, we are proposing to rely on a specific UL standard that is most applicable and recognized by the U.S. market. This approach is the same as that in our previous rules on flammable refrigerants (
A summary of the requirements of the UL Standard as they affect R-1150 and the end-use addressed in this section of our proposal follows. This summary is offered for information only and does not provide a complete review of the requirements in this standard. The UL Standard requires the warning labels on the equipment to contain letters at least
These red markings will help technicians immediately identify the use of a flammable refrigerant, thereby potentially reducing the risk of using sparking equipment or otherwise having an ignition source nearby. The colored plastic sleeve or cap would have to be forcibly removed in order to access the service port, hose, or pipe. This would signal to the technician that the refrigeration circuit that she/he was about to access contained a flammable refrigerant, even if all warning labels were somehow removed. This sleeve would be of the same red color (PMS #185 or RAL 3020) and could also be boldly marked with a graphic to indicate the refrigerant was flammable. The use of a colored plastic sleeve or cap that is boldly marked with a graphic could be a cost-effective alternative to painting or dyeing the service port, hose, or pipe.
Among the provisions in the UL Standard are limits on the amount of refrigerant allowed in each appliance. The limitations on refrigerant charge size for VLTR would be consistent with the UL Standard to reduce the risk to workers and consumers. EPA is proposing to require a charge size limit of 150 g for each refrigerant circuit or stage for the proposed refrigerant. Section 1.1.1 of the UL Standard states, “This document details all the requirements when up to 150 g of FLAMMABLE REFRIGERANT are used per stage of a REFRIGERATING SYSTEM. Additional requirements beyond the current scope of this document apply if a REFRIGERANT charge of FLAMMABLE REFRIGERANT exceeds this amount.” Thus, in order to ensure the standard's provisions apply and sufficiently address flammability risk, EPA is proposing that each refrigerant circuit must contain no more than 150 g of R-1150.
In addition to the general requirement that each refrigerant circuit must contain no more than 150 g of R-1150, the UL Standard has a requirement for the maximum charge for remote condensing unit using a flammable refrigerant in Annex DD and Table DD.1. Section DD.2.4 of Annex DD sets requirements for the minimum associated room area for a given charge, based on a maximum refrigerant concentration of 0.38 lb/1000 ft
EPA is proposing the following narrowed use limits for use of R-1150 in VLTR:
(1) Temperature range—R-1150 may only be used in equipment designed specifically to reach temperatures lower than −80 °C (−112 °F).
(2) The manufacturers of new very low temperature equipment would need to demonstrate that other alternatives are not technically feasible. They must document the results of their evaluation that showed the other alternatives to be not technically feasible and maintain that documentation in their files. This documentation, which does not need to be submitted to EPA unless requested to demonstrate compliance, “shall include descriptions of substitutes examined and rejected, processes or products in which the substitute is needed, reason for rejection of other alternatives,
The boiling point (b.p.) of a refrigerant determines the coldest temperature it can reach within its refrigerating capabilities. R-1150 has a b.p. of −104 °C, allowing it to refrigerate as cold as −104 °C. There are a limited number of refrigerants that are capable of reaching temperatures below −80 °C, such as the ODSs CFC-13 (b.p., −81.4 °C) and R-503 (b.p., −88.9 °C), and among the acceptable refrigerants in this end-use, ethane (b.p., −88.3 °C) and the high GWP refrigerants HFC-23 (b.p., −84.4 °C), R-508A (b.p., −87.4 °C) and R-508B (b.p., −87.4 °C).
EPA is providing additional information related to these proposed listings. Since this additional information is not part of the regulatory decision under SNAP, these statements are not binding for use of the substitute under the SNAP program. See section II.E.2 above for further discussion on what additional information EPA is including in these proposed listings. While the items listed are not legally binding under the SNAP program, EPA encourages users of substitutes to apply all statements in the “Further Information” column in their use of these substitutes.
EPA takes comment on this listing, including the proposed use conditions and narrowed use limits. In particular, EPA takes comment on the specific temperature range to which R-1150 should be limited. For example, R-1150 could instead be listed as acceptable for equipment designed to attain temperatures of −89 °C (−128.2 °F), lower than the boiling point of ethane, since ethane could attain temperatures down to −89 °C and would present lower risk of potential local air quality impacts because of lower reactivity in the lower atmosphere than R-1150. EPA also takes comment on whether R-1150 should be listed as unacceptable, given the potential local air quality impacts.
The fire suppression and explosion protection end-uses addressed in this action are total flooding and streaming. Total flooding systems, which historically employed halon 1301 as a fire suppression agent, are used in both normally occupied and unoccupied areas. In the United States, approximately 90 percent of installed total flooding systems protect anticipated hazards from ordinary combustibles (
EPA is proposing to list 2-BTP as acceptable, subject to use conditions, for use in normally unoccupied spaces under 500 ft
The redacted submission and supporting documentation for 2-BTP are provided in the docket for this proposed rule (EPA-HQ-OAR-2021-0836) at
2-BTP vapors may reduce oxygen available for breathing, causing asphyxiation in high concentrations. Such vapors pose a potential hazard if large volumes are trapped in enclosed or low places. In addition, as noted above, if person(s) are exposed to high concentrations, the person(s) may experience central nervous system effects, such as drowsiness and dizziness, which may result in the person(s) not realizing that he/she is suffocating. These health effects after exposure are similar for other common fire suppressants.
To assess potential health risks from exposure to the proposed substitute for personnel during manufacturing, EPA developed an AEL of 2 ppm for 2-BTP based on review of available toxicity studies.
Exposure to the proposed substitute is not likely during installation or servicing of 2-BTP total flooding systems for normally unoccupied spaces. The risk of accidental activation of the fire extinguishing system while personnel are present near the protected space is highly unlikely if proper procedures are followed. Proper instructions on system installation and servicing included in manuals for the 2-BTP systems should be adhered to. In the case of accidental release, required engineering controls in accordance with the National Fire Protection Association (NFPA) 2001 Standard on Clean Agent Fire Extinguishing Systems to limit personnel exposure to discharges should be employed with 2-BTP systems.
EPA provides additional information on safe use of this substitute for establishments manufacturing, installing and maintaining equipment using this agent in the “Further Information” column of the regulatory listing. EPA recommends that a time delay of 30 to 60 seconds is programmed in accordance with the NFPA 2001 standard. Although exposure is highly unlikely during installation and maintenance activities, exposure is possible upon reentry into a space after a system has been discharged. In the event of an accidental release, the space should be adequately ventilated. EPA recommends that personnel wear protective clothing, goggles, gloves, and particulate-removing respirators with National Institute for Occupational Safety and Health (NIOSH) type N95 or better filters while performing installation or maintenance, and a self-contained breathing apparatus (SCBA) while performing clean-up activities to reduce the risk of exposure. Since this additional information is not part of the regulatory decision under SNAP, these statements are not binding for use of the substitute under the SNAP program. While the items listed are not legally binding under the SNAP program, EPA encourages users of substitutes to apply all statements in the “Further Information” column in their use of this substitute.
2-BTP is not expected to cause a significant risk to human health in the general population when used in total flooding systems in normally unoccupied areas. The proposed use in spaces under 500 ft
EPA is proposing to find 2-BTP acceptable, subject to use conditions, as a total flooding agent for use in normally unoccupied spaces under 500 ft
2-BTP is not expected to pose a risk to workers during manufacture when the engineering controls and PPE requirements as referenced in the SDS for this proposed substitute are followed. The potential health risks from exposure to the proposed substitute for personnel during manufacturing is described above under total flooding applications.
EPA also assessed potential end-use exposure scenario at 7.5-minute and 15-minute TWA exposures for 2-BTP following potential release of agent from the handheld extinguisher in confined spaces (
EPA is proposing to find 2-BTP as acceptable, subject to use conditions, as a streaming agent for use in non-residential applications, except for commercial home office and personal watercraft, because the overall environmental and human health risk posed by the substitute is lower than or comparable to the overall risk posed by other alternatives listed as acceptable in the same end-use.
EPA is proposing to list 2-BTP as acceptable, subject to use conditions, for use in normally unoccupied spaces under 500 ft
EPA is proposing to list 2-BTP as acceptable, subject to use conditions, for use in normally unoccupied spaces under 500 ft
Additionally, EPA is proposing to list 2-BTP as acceptable subject to use conditions as a streaming agent for use in non-residential applications, except for commercial home office and personal watercrafts. The definition of “residential use” in the SNAP regulations at 40 CFR 82.172 is use by a private individual of a chemical substance or any product containing the chemical substance in or around a permanent or temporary household, during recreation, or for any personal use or enjoyment. Use within a household for commercial or medical applications is not included in this definition, nor is use in automobiles, watercraft, or aircraft. Use in a commercial home office or in personal watercraft could result in exposure to members of the general public, including sensitive individuals such as children or the elderly. In addition, air exchange is often lower in a home office or a personal watercraft than in industrial or other commercial applications, potentially resulting in higher exposure levels than in those other non-residential applications. Because of the more sensitive populations and potentially higher exposures associated with those applications, EPA is proposing to list 2-BTP for use in non-residential applications other than commercial home office and personal watercraft.
EPA is requesting comment on all aspects of the proposed listing decision, including the proposed use conditions.
EPA is proposing to list EXXFIRE® as acceptable, subject to use conditions, for use in total flooding fire suppression systems in normally unoccupied spaces. Prior to activation, the EXXFIRE® formulation is in solid form and contained within a hermetically sealed steel container. Upon detection of a fire, nitrogen gas is released from the unit.
The redacted submission and supporting documentation for EXXFIRE® are provided in the docket for this proposed rule (EPA-HQ-OAR-2021-0836) at
EPA evaluated occupational and general population exposure at manufacture and at end use to ensure that the use of EXXFIRE® will not pose unacceptable risks to workers or the general public. Exposure is possible upon reentry into a space after a system has been discharged. Protective gloves, tightly sealed goggles, protective work clothing, and particulate-removing respirators should be worn for installation and servicing activities, to protect workers in any event of potential discharge of the proposed substitute, accidental or otherwise. Filling or servicing operations should be performed in well-ventilated areas. Toxicity risks can be minimized by use consistent with the NFPA 2001 standard, recommendations in the SDS, and other safety precautions common in the fire suppression industry. EPA provides additional information on safe use of this substitute for establishments manufacturing, installing and maintaining equipment using this agent in the “Further Information” column of the regulatory listing. Since this additional information is not part of the regulatory decision under SNAP, these statements are not binding for use of the substitute under the SNAP program. While the items listed are not legally binding under the SNAP program, EPA encourages users of substitutes to apply all statements in the “Further Information” column in their use of this substitute.
EPA is proposing to list EXXFIRE® as acceptable, subject to use conditions, in the end-use listed above because it does not pose greater overall environmental and human health risk than other available substitutes in the same end-use.
Consistent with the request by the submitter, the use condition requires that EXXFIRE® be used in total flooding fire suppression systems only in areas that are not normally occupied. EPA conducted this evaluation for use only in unoccupied spaces, and information was provided by the submitter in the SNAP application specific for this type of space based on EPA guidance.
EPA is requesting comment on all aspects of the proposed listing decision, including the proposed use conditions.
EPA is proposing to list Powdered Aerosol H, also known as Pyroquench-α
The redacted submission and supporting documentation for Powdered Aerosol H are provided in the docket for this proposed rule (EPA-HQ-OAR-2021-0836) at
EPA expects that procedures identified in the SDS for Powdered Aerosol H and good manufacturing practices will be adhered to, and that the appropriate safety and personal PPE consistent with OSHA guidelines will be used during installation, servicing, post-discharge clean-up and disposal of total flooding systems using Powdered Aerosol H. The manufacturer guidance upon installation of the system provides the appropriate time after which workers may re-enter the area for disposal to allow the maximum settling of all particulates.
EPA is proposing to list Powdered Aerosol H as acceptable, subject to use conditions, in the end-use listed above because it does not pose greater overall environmental and human health risk than other available substitutes in the same end-use.
Consistent with the submitter's request, EPA proposes the use condition that Powdered Aerosol H be used in total flooding fire suppression systems only in areas that are not normally occupied. EPA conducted this evaluation for use only in unoccupied spaces, and information was provided by the submitter in the SNAP application specific for this type of space based on EPA guidance.
EPA is requesting comment on all aspects of the proposed listing decision, including the proposed use conditions.
In making decisions regarding whether a substitute is acceptable or unacceptable, and whether substitutes present risks that are lower than or comparable to risks from other substitutes that are currently or potentially available in the end-uses under consideration, EPA examines the criteria in 40 CFR 82.180(a)(7) which includes (i) atmospheric effects and related health and environmental impacts; (ii) general population risks from ambient exposure to compounds with direct toxicity and to increased ground-level ozone; (iii) ecosystem risks; (iv) occupational risks; (v) consumer risks; (vi) flammability; and (vii) cost and availability of the substitute. The ability of a chemical to destroy ozone is represented quantitatively by its ODP, which is the ratio of the amount of ozone that would be destroyed by the emission of a given mass of that chemical to the amount of
Most class I and class II ODS are fairly stable in the troposphere and persist long enough to become well-mixed in the troposphere and then be transported into the stratosphere. Because of their longer tropospheric lifetimes and tropospheric mixing, the ability of these chemicals to deplete stratospheric ozone depends little on where on the surface of the Earth or during which season the chemicals are released, and so the ability of a particular chemical to destroy ozone can reasonably be represented by a single ODP value that is constant over space and time. However, some alternatives that contain chlorine, bromine, and/or iodine are more reactive and have shorter atmospheric lifetimes. Halogenated substances with atmospheric lifetimes shorter than about six months are called very short-lived substances (VSLS). Given the shorter atmospheric lifetimes of VSLS, the location of emissions can significantly impact the amount of ozone depletion that results. Emissions at locations where atmospheric conditions quickly move VSLS to the stratosphere will result in more ozone depletion. Conversely, emissions from locations where atmospheric conditions result in VSLS moving more slowly to the stratosphere result in less ozone depletion. If there are different ODPs calculated for different regions, the reported consensus value in WMO (2018) is the upper limit of those values. While not the only source of information used by the Agency, EPA regards the quadrennial report of the Montreal Protocol's Scientific Assessment Panel as the premier source for information concerning stratospheric ozone science. Appendix A of the Scientific Assessment of Ozone Depletion: 2018 (WMO, 2018) contains a compilation of metrics, including ODPs, for ODS, ODS alternatives, and related species, based on best available data. The international scientific community considers these ODPs to be consensus ODPs.
Given the United States is a party to the Montreal Protocol with 196 other countries, we recognize the importance of a globally consistent approach to considering ODPs. A globally consistent approach to assessing risk of alternatives is also important because SNAP listing decisions are often used by other countries as a signal that the alternative is safe. Thus, considerations under the SNAP program about the ozone depletion risk of a particular chemical have been based on an ODP that is the consensus of the scientific community.
Under the SNAP program EPA has found alternatives with ODPs to be unacceptable. However, having a non-zero ODP does not necessarily make a substance unacceptable in all contexts. We have previously listed alternatives with an ODP, including listing class II substances as alternatives to class I substances—noting that many of those class II substances have subsequently been listed as unacceptable and were also listed as chemicals to be phased out under the Montreal Protocol and the Clean Air Act. We have also listed alternatives with an ODP as acceptable, subject to use restrictions. In a few cases, particularly where the ODP is several orders of magnitude below that of the class II substances, we have listed the alternative as acceptable without any use restrictions. In other words, a substitute with a measurable ODP could be determined to reduce overall risks to human health and the environment, compared with other currently or potentially available alternatives. For example, the SNAP program listed a number of class II ODS as acceptable as substitutes to class I ODS and changed the status to unacceptable when alternatives with lower ODPs became available.
The SNAP program has made some acceptability determinations regarding VSLS in the past. Two examples are given below:
• In 1995, EPA listed the VSLS trifluoroiodomethane (CF
• In 2012, SNAP listed HCFO-1233zd(E), a VSLS with a WMO-listed ODP of <0.0004 (WMO, 2018), as acceptable for use as a blowing agent in polyurethane foams (77 FR 47768; August 10, 2012). This VSLS has an ODP orders of magnitude below the class II substances it can replace and has become more widely used in part because of its very low ODP and GWP.
EPA's SNAP program has received a submission to find the blend R-466A acceptable in certain end uses in the refrigeration and AC sector. This blend contains CF
The Agency is seeking advance comment on how EPA should address VSLS within the SNAP program to inform potential future listing decisions. EPA is specifically requesting comment on the following questions:
• Should EPA consider finding a VSLS with a WMO-listed ODP that is similar to the ODP of substances that have been phased out under the CAA Title VI to be unacceptable under SNAP?
• Should EPA take a more conservative approach when determining whether VSLS with ODPs similar to class II substances are acceptable alternatives under SNAP given these substances are not listed as class II substances under the CAA and therefore are not scheduled to be phased out?
• How should the Agency consider submissions of VSLS with ODPs similar to class II ODS, or blends containing such VSLS, as alternatives in light of the reality that SNAP listings are used by other countries to determine whether an alternative may be acceptable?
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060-0226. The approved Information Collection Request includes five types of respondent reporting and recordkeeping activities pursuant to SNAP regulations: submission of a SNAP petition, filing a Toxic Substances Control Act (TSCA)/SNAP Addendum, notification for test marketing activity, recordkeeping for substitutes acceptable subject to use restrictions, and recordkeeping for small volume uses. This action does not impose an information collection burden under the PRA.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, EPA concludes that the impact of concern for this rule is any significant adverse economic impact on small entities and that the agency is certifying that this rule will not have a significant economic impact on a substantial number of small entities because the rule has no net burden on the small entities subject to the rule. This action proposes to add the additional options under SNAP of using HFC-32, HFO-1234yf, R-452B, R-454A, R-454B, R-454C, R-1150, 2-BTP, EXXFIRE®, and Powdered Aerosol H in the specified end-uses, but does not mandate such use. Users who choose to avail themselves of this flexibility for R-1150 must make a reasonable effort to ascertain that other substitutes or alternatives are not technically feasible and must document and keep records of the results of such investigations. Because equipment for HFC-32, HFO-1234yf, R-452B, R-454A, R-454B, R-454C is not manufactured yet in the U.S. for the chillers, residential dehumidifiers, and non-residential dehumidifiers end-uses, no change in business practice is required to meet the use conditions, resulting in no adverse impact compared with the absence of this rule. Similarly, R-1150, 2-BTP, EXXFIRE®, and Powdered Aerosol H are proposed to be listed as acceptable with use conditions consistent with industry standards and with the intended uses described by the submitters, also requiring no change in business practices and resulting in no adverse impact compared with the absence of this rule. The new use conditions for HFC-32 in self-contained room ACs and HPs were requested by industry and are consistent with the most recent, updated standard; these would allow for greater consistency in business practices for different types of equipment using the same refrigerant. Equipment for HFC-32 already manufactured prior to the effective date of a final rule would not be required to be changed. Self-contained room ACs and HPs using HFC-32 have been subject to similar use conditions, and thus the updated requirements would result in no adverse impact compared with the absence of this rule. Thus, if the rule were finalized as proposed, it would not impose new costs on small entities. We have therefore concluded that this action will have no net regulatory burden for all directly regulated small entities.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, 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, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action. EPA periodically updates tribal officials on air regulations through the monthly meetings of the National Tribal Air Association and will share information on this rulemaking through this and other fora.
This action is not subject to Executive Order 13045 because the rule is not economically significant as defined in Executive Order 12866, and because EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. While EPA has not conducted a separate analysis of risks to infants and children associated with this rule, the rule does contain use conditions that would reduce exposure risks to the general population, with the reduction of exposure being most important to the most sensitive individuals. This action's health and risk assessments are contained in the comparisons of toxicity for the various substitutes, as well as in the risk screens for the substitutes that are listed in this proposed rule. The risk screens are in the docket for this rulemaking.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This action involves technical standards. EPA uses and incorporates by reference portions of the 2019 UL Standard 60335-2-40, which establishes requirements for the evaluation of residential AC equipment and safe use of flammable refrigerants, among other things. Additionally, EPA uses and incorporates by reference portions of the 2021 UL Standard 61010-2-011, which establishes requirements for the evaluation of
The 2019 UL Standard 60335-2-40 and 2021 UL Standard 61010-2-011 are available at
EPA is also incorporating by reference ANSI/ASHRAE Standard 15-2019, Safety Standard for Refrigeration Systems, in the use conditions for six refrigerants listed for use in chillers. This standard is available at
EPA has already incorporated the following standards into appendix R: UL 471 (November 24, 2010); UL 484 (December 21, 2007, with changes through August 3, 2012).; UL 541 (December 30, 2011); and UL 60335-2-24 (April 28, 2017).
A regulatory action may involve potential environmental justice concerns if it could: (1) Create new disproportionate impacts on people of color, communities of low-income, and/or indigenous peoples; (2) exacerbate existing disproportionate impacts on people of color, communities of low-income, and/or indigenous peoples; or (3) present opportunities to address existing disproportionate impacts on people of color, communities of low-income, and/or indigenous peoples through the action under development.
EPA believes that this action does not create disproportionately high and adverse human health or environmental effects on people of color, communities of low-income and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994) and may help reduce any existing disproportionate impacts. The proposed listings for HFC-32, HFO-1234yf, R-452B, R-454A, R-454B, R-454C, R-1150, 2-BTP, EXXFIRE®, and Powdered Aerosol H in the end-uses addressed in this action would provide additional lower-GWP and ODP or comparable alternatives in their respective end-uses. By providing lower-GWP and ODP or comparable alternatives for these end-uses, this proposed rule is also anticipated to reduce the use and eventual emissions of potent GHGs in this end-use, which could help to reduce the effects of climate change, including the public health and welfare effects on people of color, communities of low-income and/or indigenous peoples. This action's health and environmental risk assessments are contained in the comparison of health and environmental risks for HFC-32, HFO-1234yf, R-452B, R-454A, R-454B, R-454C, R-1150, 2-BTP, EXXFIRE®, and Powdered Aerosol H, as well as in the risk screens that are available in the docket for this rulemaking. EPA's analysis indicates that other environmental impacts and human health impacts of HFC-32, HFO-1234yf, R-452B, R-454A, R-454B, R-454C, R-1150, 2-BTP, EXXFIRE®, and Powdered Aerosol H are comparable to or less than those of other substitutes that are listed as acceptable for the same end-use. Based on these considerations, EPA expects that the effects on people of color, communities of low-income and/or indigenous peoples would not be disproportionately high and adverse.
Unless specified otherwise, all documents are available electronically through the Federal Docket Management System at
Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Stratospheric ozone layer.
For the reasons set forth in the preamble, EPA proposes to amend 40 CFR part 82 as follows:
42 U.S.C. 7414, 7601, 7671-7671q.
The revisions read as follows:
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
FRA proposes regulations establishing safe minimum requirements for the size of train crews depending on the type of operation. A minimum requirement of two crewmembers is proposed for all railroad operations, with exceptions proposed for those operations that do not pose significant safety risks to railroad employees, the public, or the environment. This proposed rule would also establish minimum requirements for the location of crewmembers on a moving train and promote safe and effective teamwork. FRA also proposes a special approval procedure to allow railroads to petition FRA to continue legacy operations with one-person train crews and allow any railroad to petition FRA for approval to initiate a new train operation with fewer than two crewmembers.
Comments on the proposed rule must be received by September 26, 2022. FRA will consider comments received after that date to the extent practicable.
Kevin Lewis, Operating Crew Certification Specialist, U.S. Department of Transportation, Federal Railroad Administration, telephone: 918-557-0651, email:
For the past five years, a period in which railroad operations have produced consistent safety statistics, railroads (including freight, passenger, and tourist operations) have typically utilized crews of at least two persons. During this time, railroads have implemented positive train control (PTC) and other technologies and are expected to implement upgrades to these technologies and otherwise look to introduce operational efficiencies. FRA intends this rule to ensure that trains are adequately staffed for their intended operation and railroads have appropriate safeguards in place for safe train operations, whenever using a crew of fewer than two persons. In the event a railroad desires to transition a train operation to an operation with fewer than two crewmembers, as proposed, this rule would require the railroad to consider and address the safety risks of doing so by conducting a risk assessment of the proposed operation. Research identified the cognitive and collaborative demands placed on crewmembers and indicates that an increase in physical tasks and cognitive demands for a one-person crewmember could potentially lead to task overload or a loss of situational awareness that could cause an accident. The proposed risk assessment requirement would follow accepted hazard analysis processes and provide for the mitigation of identified hazards to acceptable levels.
Without this proposed rule, FRA has a limited ability to address the totality of potential safety issues related to the reduction of crew staffing levels. Currently, FRA can exercise its authority in discrete instances through the agency's emergency order authority (potentially after a serious accident) or in review of a passenger operation's emergency preparedness plan under 49 CFR part 239. Also, none of the other recent regulatory initiatives FRA has issued or is in the process of developing focus on the specific hazards and risks associated with reducing the number of train crewmembers to fewer than two crewmembers, nor do they require railroads to mitigate any such hazards and risks.
This proposed rule is necessary for FRA to proactively protect railroad employees, the public, and the environment. By requiring railroads to petition FRA for approval of existing (legacy) or new one-person crewmember operations, this proposed rule would allow FRA to closely examine the safety of legacy operations in accordance with established, minimum safety requirements, and prohibit the initiation of one-person crewmember operations that would not be consistent with railroad safety. FRA proposes to require
Further, if a railroad petitions FRA to continue or initiate a train operation with fewer than two crewmembers, this rulemaking proposes a public comment period so that stakeholders, such as the railroad's employees, or businesses and communities adjacent to or served by the railroad, can provide relevant safety information or data.
This proposed rule is also necessary to prevent the multitude of State laws regulating crew size from creating a patchwork of rules governing train operations across the country. Despite the fact that provisions of the Federal railroad safety statutes mandate that laws, regulations, and orders “related to railroad safety” be nationally uniform, FRA is aware that some States have laws in place regulating crew size in a variety of ways. For example, California requires a minimum of two crew members for certain trains,
FRA is proposing regulations to ensure that trains are appropriately staffed for their intended operation and railroads have sufficient safeguards in place for safe train operations, whenever using a crew of fewer than two persons. With certain exceptions, FRA proposes to require that railroads staff every train operation with a minimum of two crewmembers (including a locomotive engineer and an additional crewmember). The proposed rule prescribes minimum requirements for the location of crewmembers on a moving train, requirements to ensure any crewmember not operating the train and outside of the operating cab of the controlling locomotive can directly communicate with the locomotive engineer, and special approval procedures for railroads to petition FRA to continue certain legacy operations with one-person train crews and to initiate new train operations with fewer than two crewmembers.
The NPRM is based on the premise that the locomotive engineer always located in the cab of the controlling locomotive when the train is moving unless the controlling locomotive is being operated remotely in accordance with 49 CFR 229.15. In most instances, there will only be one additional crewmember—usually a conductor. As proposed, however, the NPRM would not prohibit a railroad from having more than two crewmembers or from having additional or more stringent requirements governing the proper location of any crewmembers other than the locomotive engineer. Railroads also have the flexibility to adopt their own rules or practices based on Federal requirements and instruct their employees to comply with such rules or practices.
Although the NPRM includes several proposed exceptions to the minimum two crewmember requirement, the rule would prohibit certain train operations from operating with fewer than two crewmembers. Specifically, proposed § 218.123(c) prohibits the operation, without at least a two-person crew, of trains containing certain quantities and types of hazardous materials that have been determined to pose the highest risk in transportation from both a safety and security perspective (
As applied to passenger and tourist train operations, the NPRM (§ 218.127) proposes four exceptions to the minimum two crewmember requirement. First, FRA proposes to except from the minimum two crewmember requirement tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation. Second, FRA proposes to except from the minimum two crewmember requirement passenger or tourist operations in which cars, empty of passengers, are being moved and passengers do not board the train's cars until the crew conducts a safety briefing on the safe operation and use of the cars' exterior side doors, consistent with the current door safety briefing
As applied to freight operations, FRA is also proposing in § 218.129 four exceptions to the minimum two crewmember requirement. FRA is proposing exceptions for certain unit freight train loading and unloading operations, certain small railroad operations, and work train and remote-control operations that meet certain requirements. More detail on each of these proposed exceptions is found in the relevant section-by-section analysis below.
Proposed § 218.131 would allow legacy, one-person train operations to continue after the effective date of a final train crew size safety requirements rule until FRA can review the safety of the operation. Moreover, this proposed rule provides a mechanism for the operation to continue after FRA conducts its review.
FRA proposes to define a legacy operation as one that a railroad established at least two years before the effective date of a final rule establishing train crew size safety requirements. The proposed rule would prohibit a railroad from continuing a legacy, one-person train operation beyond 90 days after the effective date of a final rule if the railroad fails to file a special approval petition containing a description of the operation. As proposed, a railroad petition to continue a legacy, one-person operation must include evidence that the railroad has implemented certain rules and practices designed to ensure the safety of the one-person operation.
Proposed § 218.133 would allow a railroad to petition FRA to initiate a new train operation staffed with fewer than two crewmembers that is not otherwise prohibited or permitted by the other requirements of subpart G. In addition to much of the information FRA proposes to require to support a petition to continue a legacy operation, a special approval petition to initiate a new operation with fewer than two persons must contain a risk assessment of the proposed operation that follows accepted hazard analysis processes and provides for mitigation of identified hazards to acceptable levels. In the context of this rulemaking, a risk assessment is the process of determining, either quantitatively or qualitatively, the level of risk associated with a proposed train operation staffed with fewer than two crewmembers, including mitigating the risks to an acceptable level. As discussed in more detail in section III.I below, when the likelihood of an event whose probability of occurrence is so small, consequence(s) so slight, or benefit(s) so great, taking the risk or subjecting others to the risk is deemed acceptable. Generally, an acceptable level of risk is achieved when it is determined that further risk reduction measures will not result in an additional, significant reduction of risk in excess of the cost of such measures. For example, there is a risk that a locomotive engineer will operate a train past a red signal. A resulting hazard is that the train will collide with another train on the track past the signal. The probability that this unsafe event will occur is based on an analysis of the causal factors that could lead the engineer to operate the train past the red signal. The likelihood of an accident resulting is analyzed based on the probability that another train is occupying the track past the signal. Mitigation measures (
The minimum process and content requirements for a railroad's risk assessment are proposed in § 218.135. Section 218.135 would also allow a railroad to use alternative methodologies or procedures, or both, to conduct a risk assessment if the Associate Administrator finds they will provide an accurate assessment of the risk associated with the proposed operation.
In proposed § 218.137 a railroad would be able to petition FRA for special approval for both one-person, legacy train operations and the initiation of a new operation with fewer than two train crewmembers. FRA estimates the time burden for a railroad to prepare a petition will be 40 hours per petition for legacy train operations and 48 hours per petition for new operations. The proposed special approval procedure is expected to take 120 days once a railroad submits a petition for special approval. For example, the proposed special approval procedure would require that FRA publish a notice in the
Finally, FRA proposes an annual requirement for railroads that receive special approval to continue a legacy operation or initiate a new operation with fewer than two train crewmembers to conduct a formal review and analysis of those operations. FRA proposes an annual requirement to ensure that each railroad is regularly reviewing the safety of its operation and the accuracy of its risk assessment, and to provide FRA with enough data to identify any safety trends in the approved operations. Further, an annual requirement aligns with the general administration of FRA's safety program as well as FRA's statutory requirements.
FRA analyzed the economic impact of this proposed rule. FRA estimated the costs associated with special approvals, risk assessments, annual railroad responsibilities after receipt of special approval, and Government administration.
The primary benefit of this rule is to ensure any railroad, seeking to operate a train with fewer than two crewmembers identifies, evaluates, and addresses, in a comprehensive and standardized manner, safety concerns that may arise from such operation. A second crewmember performs important safety functions that could be lost when reducing crew size below two.
FRA proposes that railroads seeking to operate trains with fewer than two crewmembers will be required to submit a petition to FRA to approve such an operation. The proposed petition process would require the submission of information demonstrating that the operation will be operated consistent with railroad safety. Additionally, the proposed safety requirements in this NPRM would allow the rail industry to maintain its strong safety record without proposing any restrictions that would directly impact its competitiveness compared with other modes of transportation.
This rule thus further ensures railroads operate in a safe manner by requiring them to properly assess and mitigate risks associated with fewer crewmembers, before initiation of such an operation, which they currently are not required to do. FRA seeks comment from all stakeholders, including any States with laws on train crew size.
FRA estimates the 10-year costs of the proposed rule to be $2.0 million, discounted at 7 percent. The annualized costs would be $0.3 million discounted at 7 percent. The following table shows the total costs of this proposed rule, over the 10-year analysis period. FRA qualitatively discusses the benefits but does not have sufficient data to monetize those benefits.
FRA is proposing regulations concerning train crew size safety requirements based on the statutory general authority of the Secretary of Transportation (Secretary). The general authority states, in relevant part, that the Secretary “as necessary, shall prescribe regulations and issue orders for every area of railroad safety supplementing laws and regulations in effect on October 16, 1970.”
Historically, technology has enabled a gradual reduction in the number of train crewmembers from about five in the 1960s to about two by the end of the 1990s. Four major technological breakthroughs led to train crew staffing reductions. First, the phase-out of steam locomotives allowed locomotives to be operated without the crewmember known as the fireman, dedicated to keeping the engine fed with coal. Second, the introduction of portable radios made it easier to transmit information from a crewmember at the far end of the train to the leading end, allowing the conductor to move from the caboose to the lead locomotive and leading to the eventual removal of a crewmember known as a brakeman. Third, the end-of-train device replaced the need for one or more crewmembers to be at the rear of a train on a caboose to monitor brake pipe pressure. Fourth, the development of improved train control devices, such as Cab Signal System, Automatic Train Stop, and Automatic Train Control, helped automate safer operations in case of human error. Further, over the last 25 years, remotely controlled locomotive operations utilizing only a one-person crew for switching service have become commonplace.
By statute, the Secretary of DOT is required to “prescribe regulations and issue orders to establish a program requiring the licensing or certification . . . of any operator of a locomotive.”
FRA also has conductor certification requirements
Indiana Rail Road (INRD), a Class II, 250-mile regional railroad that operates in southern Indiana and Illinois, was a trailblazer in initiating one-person crew operations in the United States. During a July 15, 2016, FRA public hearing on FRA's 2016 train crew staffing NPRM, an INRD manager testified about how INRD established its one-person operation.
Without mentioning whether INRD conducted a risk assessment or similar safety analysis, INRD imposed on itself more stringent requirements than what are Federally required. INRD determined that all employees would be considered train operators, dual-certified as both locomotive engineers and conductors, and represented by the Brotherhood of Locomotive Engineers and Trainmen (BLET).
INRD's manager also explained how he invited FRA to visit and discuss INRD's one-person operations with INRD's operating rules personnel thereby soliciting FRA's feedback on what was “missing or . . . should [be] change[d].”
In the INRD manager's remarks at the 2016 public hearing, he stated that the number of one-person crew starts on INRD has lessened in the last couple of years because “the nature of [INRD's] business has changed from percentage of unit trains, which lend themselves to the one-man crews . . . [to] more route switcher local work.”
On March 15, 2016, FRA issued an NPRM proposing regulations concerning train crew staffing.
On July 5-6, 2013, a catastrophic accident occurred in Lac-Mégantic, Quebec, Canada involving a one-person
FRA's initial response to the Lac-Mégantic accident was to issue Emergency Order 28 on August 2, 2013, which contained the preliminarily known details of the events that led to the accident and ordered each railroad to institute and carry out specific measures with respect to securement of unattended vehicles and trains transporting certain types of hazardous material on mainline track and mainline sidings outside of a yard or terminal.
Before the RSAC Working Group concluded its meetings on March 31, 2014,
During the 2013 Casselton incident, the grain train's locomotive engineer and conductor crewmembers potentially prevented the environmental and property damages from being much worse, in addition to potentially shortening the evacuation period, by calling a trainmaster for permission and coordinating with emergency responders to twice cut undamaged tank cars away from the burning derailed cars.
In the meantime, the alert key train crewmembers during the Casselton incident were able to survive the impact of the collision, escape their locomotive, which was on fire and had a jammed front door, and alert the dispatcher to the collision, largely based on a series of team related actions. Without teamwork, there were factors indicating a one-person crew might not have survived. For instance, the conductor admitted that he had never been in a situation where a collision was imminent, did not know what to do, and therefore might not have gotten down on the floor and braced himself, as the locomotive engineer instructed.
Similar to the proposals in this NPRM, the 2016 NPRM generally proposed to require a minimum of two crewmembers for all railroad operations except operations determined to not pose significant safety risk to railroad employees, the general public, and the environment. Also similar to this proposed rule, the 2016 NPRM proposed special approval processes to allow an existing, less than two crewmember operation to continue and to allow the initiation of a new, less than two crewmember operation. The approval processes proposed in the 2016 NPRM, however, contemplated that a requesting railroad would provide a description of the existing or proposed operation(s), along with “appropriate data or analysis, or both” or a “safety analysis . . . including any information regarding the safety history of the operation” to enable FRA to determine whether the proposed operation would provide “at least an appropriate level of safety.”
On May 29, 2019, FRA withdrew the 2016 NPRM.
Although 1,545 of the comments supported the regulation of crew staffing, FRA explained that it was withdrawing the 2016 NPRM for several reasons. For instance, FRA concluded in the 2019 Withdrawal that the connections between train crew staffing and railroad safety with respect to the Lac-Mégantic and Casselton accidents are tangential at best and do not provide a sufficient basis for FRA regulation of train crew staffing requirements.
Four separate lawsuits were filed challenging the 2019 Withdrawal, which were consolidated in the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit). Petitioners included the Transportation Division of the International Association of Sheet Metal, Air, Rail and Transportation Workers and the Brotherhood of Locomotive Engineers and Trainmen filing jointly, and three States (California, Washington, and Nevada) filing separately. On February 23, 2021, the Court vacated FRA's withdrawal and preemption determination, and remanded the rulemaking to FRA.
The proposals in this NPRM are similar to many aspects of the 2016 NPRM, but this proposed rule's risk assessment and annual oversight requirements are intended to enable FRA to play a more active role in ensuring that railroads appropriately consider any relevant safety risks that may arise from train operations using less than two person crews. The risk assessment requirement of this proposed rule is also designed to ensure that, to the extent practicable, railroads follow a uniform standard in evaluating the risks of the proposed operations.
In this NPRM, FRA occasionally cites to the 2016 NPRM and 2019 Withdrawal; however, those citations are for reference purposes. This rulemaking is not a continuation of the prior rulemaking and instead stands on its own as a new proposed rule.
Of particular concern to FRA is the patchwork of State laws regulating crew size in some manner and the impact of those various State requirements on safe rail operations.
FRSA's preemption provision includes a “narrow exception”
For these reasons, if FRA issues a final rule establishing minimum safety requirements for the size of train crews, it would cover the same subject matter as the State laws regulating crew size, and therefore FRA expects a final rule will have preemptive effect on those State laws that are Statewide in character and do not address narrow, local safety hazards. In the alternative, to address FRA's concern regarding the patchwork of State laws on crew size, FRA could articulate FRA's preemption of crew size requirements through a rulemaking without establishing minimum crew size requirements. FRA did not propose this alternative as it would not address the various safety concerns raised in this rulemaking. Further, FRA recognizes that if the issue of crew size safety is left to be governed by a patchwork of State laws, logistically it may become impossible for a railroad to even consider operations with fewer than two crewmembers. Thus, this rulemaking is intended to ensure railroads have the flexibility to consider changes in crew size for individual operations based on an objective analysis of the safety and risks of the operation. FRA would appreciate comments on this issue.
The Ninth Circuit's decision to vacate and remand the 2019 Withdrawal left FRA with the decision of whether to leave the issue of crew size safety to the status quo, initiate a rulemaking solely to have preemptive effect on the patchwork of State laws regulating crew size, or initiate a new rulemaking to address both safety issues and the preemption issue. In addition to the concern that a patchwork of State laws regulating crew size in some manner may impact safe rail operations due to the potential for crew consist size changes as trains cross State lines and any associated risks, FRA found several other safety issues to reconsider. For instance, upon reflection, FRA over-relied on the absence of single-person crew safety data to support its 2019 Withdrawal, because there have been too few current one-person train crew operations to create any meaningful data. The lack of safety data reflects the paucity of data; it does not support any conclusions about the safety of single-person crews.
FRA's 2019 Withdrawal also downplayed other safety concerns, such as the views expressed in approximately 1,545 comments of the nearly 1,600 received that supported the 2016 NPRM and the lessons learned from the Lac-Mégantic and Casselton accidents. As discussed above, the 2019 Withdrawal focused on the causes of the Lac-Mégantic and Casselton accidents and found the connections between crew staffing and railroad safety “tangential at best” and that “the same type of positive post-accident mitigating actions” by the multi-person crews achievable with “a well-planned, post-accident protocol that quickly brings railroad employees to the scene of an accident.”
Another issue FRA is reconsidering is the 2019 Withdrawal's reference to DOT's focus on removing unnecessary barriers to automation by “issuing voluntary guidance, rather than regulations that could stifle innovation.”
Further, the 2019 Withdrawal did not consider how technological trends and operational changes, especially on Class I freight railroads since 2016, have impacted safety or may impact safety in the future. The growth in the number of trains with more than 150 rail cars is a business practice that FRA has observed over the past several years,
The sections below discuss safety issues and impacts that may arise from train operations with fewer than two train crewmembers. FRA requests comments and data on the identified issues and other safety concerns that may stem from train operations with fewer than two crewmembers.
The 2016 NPRM described, and the docket for this rulemaking contains, five FRA-sponsored research reports, and one Transportation Research Board conference report, that contain presentations from multiple research reports, identifying many safety considerations with reducing train crew staffing to fewer than two persons.
The research identified a multitude of cognitive and collaborative demands placed on passenger train conductors,
Research explains that there are critical components to building effective teams.
The research raised additional safety concerns regarding one-person train crews, such as the loss of low workload periods during which teams have time to plan ahead,
The research describing the technology implications of a cognitive task analysis for locomotive engineers also suggests why implementing PTC could create new sources of workload and distraction and thus should not be presumed to lead to fewer tasks for the crew to do, nor make it easier to accomplish the tasks with a single
In the 2016 NPRM's background section, FRA explained that many of the Federal rail safety regulations were written with the expectation that each train would have multiple crewmembers.
In the 2016 NPRM, FRA also raised various other concerns related to crewmember distraction, whether by prohibited electronic devices, radio transmissions, interfacing with railroad-approved on-board electronic systems, or other crewmembers. For instance, although research suggests properly trained teams should not distract one another, FRA anticipates that some commenters will take the position that a second crewmember is a source of distraction and could add to the number of persons killed or seriously injured when an accident occurs. As in 2016, such instances of crewmember distraction are likely rare, but FRA does not have readily available information for estimating such countervailing impacts of this proposed rule.
FRA also explained in the 2016 NPRM how a one-person train crew has more opportunity to conceal a drug or alcohol violation than the person would if there were two or more crewmembers. For instance, FRA has requirements for most railroads to conduct random testing, reasonable cause testing, and to implement self/co-worker referral programs.
FRA also finds that safety is diminished when employees no longer need to discuss their work, and the processes or requirements they must follow, at regular intervals.
Not only are job briefings relevant to rail safety because the employees must coordinate their work, but the briefings are also relevant to rail safety as a way to share information and experiences. The voluntary sharing of knowledge and experiences is a safety issue raised in research describing the value of intermediate or rolling job briefs that are informally initiated en route before performing particularly challenging tasks.
Without the proposed risk assessment requirements, FRA alternatively considered requiring more frequent communications between a one-person crew and non-crewmembers. However, in considering such an alternative, it is difficult to know how, if at all, such a communication requirement could reliably ensure the specific hazards of a train operation are identified and addressed. For example, the appropriate alternative non-crewmember(s) required to participate in the job briefing would need to be identified. FRA would likely need to address railroad operations more broadly than any individual railroad with knowledge of its own operations. FRA suspects that such a job briefing with non-crewmembers may only be needed in complex situations, not every time work conditions or situations change, and the addition of a job briefing requirement with a person other than a train crewmember could be addressed in a special approval petition or by FRA during the proposed approval process rather than an alternative FRA regulatory requirement. The addition of job briefings across the larger distributed team
Additionally, other operational tasks are more difficult with a one-person train crew. For instance, FRA requires that an employee copying a mandatory directive received by radio transmission not be operating the controls of moving equipment.
Another operational issue that could be addressed in the proposed risk assessment is how a railroad with a one-person train crew plans to handle situations in which the controlling locomotive's radio fails en route. With a two-person crew, one person can operate the train while a second person communicates with the dispatcher from a second locomotive that has a working radio. A one-person crew would not have this workaround.
FRA also expects the proposed, railroad-developed risk assessments will address the hazards associated with how often and under what conditions a one-person train crew will be expected to leave the locomotive cab to throw a switch, operate through it, and then leave the locomotive cab again to return the switch to its previous, normal state.
Further, the 2016 NPRM described how, in the event of a highway-rail grade crossing activation failure,
Blocked highway-rail grade crossings, by trains traveling over or stopping on track crossed by a highway, are another operational safety hazard that FRA would expect a railroad to address in a proposed risk assessment for a one-person train crew operation. For instance, the proposed requirement of a risk assessment would be expected to address operational changes that increase hazards such as more frequently blocked crossings. A one-person train operation might increase blocked crossings when operating longer, slower, or more frequent trains, or by requiring trains to stop more frequently blocking highway-rail grade crossings for longer periods of time, but FRA cannot know whether this is likely to be the case without a risk assessment that describes the operation and its hazards.
Without a train crew size safety requirements regulation, railroads could diminish the safety purposes of some existing regulatory requirements. Specifically, railroads could avoid fully considering the potential safety repercussions resulting from one-person crew operations or taking off-setting measures consistent with railroad safety. In addition, railroads lacking proper training, testing, or supervision programs for one-person crew operations could introduce new safety risks for neighboring communities. For these reasons, in reviewing and approving train operations with fewer than two crewmembers, FRA proposes to condition its approval of such operations on specific conditions necessary to ensure the approval is consistent with railroad safety. Further, as indicated in this background, FRA is proposing the risk assessment option because it is the best option, as it would allow each railroad to identify the hazards in its own operation and mitigate the risks to an acceptable level. FRA is interested to hear from commenters on both the risk assessment and alternative options considered and described in this background; however, considering that so many of the Federal rail safety regulations were written with the expectation that each train would have at least two crewmembers, FRA's position in this proposed rule is that new regulatory requirements are warranted to prevent one-person train operations from potentially degrading safety.
DOT has long recognized that hazardous materials are essential to the economy of the U.S. and the well-being of its people, but incidents can occur involving releases or security threats.
Accordingly, to ensure the safety and security of the rail transportation of hazardous materials, PHMSA and FRA, in coordination with DHS, have historically promulgated rules subjecting certain hazardous materials to additional operational restrictions or requiring railroads to take certain actions to ensure the safe and secure rail transportation of these high-risk hazardous materials.
Because of the dangers of hazardous materials generally, and the additional dangers of a release in transit due to an accident, derailment, theft, or attack, DOT considers train crewmembers as “hazmat employees” requiring specific types of training.
A 2008 PHMSA final rule, for example, requires railroads to annually assess the safety and security risks of the routes over which the railroads transport certain hazardous materials because certain hazardous materials present greater risks than others.
Also in 2008, in response to a statutory mandate that implemented recommendations of the 9/11 Commission,
After the 2013 catastrophic accident in Lac-Mégantic, Canada, Transport Canada issued a directive containing a specific requirement that railroads in Canada operate trains carrying loaded hazardous materials tank cars over main track and sidings with at least two crew members.
Subsequently, in 2015, PHMSA addressed the risks of the rail transportation of large volumes of flammable liquids and imposed operational restrictions (
Also in 2015, FRA issued a final rule amending existing securement requirements for unattended equipment, primarily for trains transporting PIH materials and large quantities of certain flammable hazardous materials.
Based on the known safety and security risks associated with operating trains transporting large amounts of hazardous materials and with the hazardous materials known to present the greatest safety and security risks, as discussed in more detail in the section-by-section analysis of proposed § 218.123 below, in this NPRM FRA is proposing to prohibit the operation of trains transporting hazardous materials subject to FRA's securement regulation or materials designated by TSA as RSSMs on trains with fewer than two crewmembers.
Since FRA already has regulations requiring certain minimum standards for locomotive engineers and conductors,
Each current operation of a locomotive or train that requires a locomotive engineer is also required to have a conductor, but FRA recognizes that there are circumstances where a person is “serving as both the conductor and the engineer.”
FRA currently permits a train crew consisting of a certified locomotive engineer, who is not dual-certified as a conductor, and a second person who is a certified conductor attached to the train crew, but not traveling on the train.
Additionally, a railroad operation with a train crew that consists of either: (1) a locomotive engineer and conductor; or (2) one crewmember that is dual-certified may have other operating employees identified as train crewmembers. FRA currently defines “train crew” in § 218.5 as one or more railroad employees who are: assigned to a controlling locomotive; called to perform service subject to the Federal hours of service requirements; involved with the movement of the equipment they are called to operate; reporting and working together as a unit that remains in close contact, if more than one employee; and subject to the railroad operating rules and program of operational tests and inspections required in 49 CFR 217.9 and 217.11. Thus, as FRA has an existing definition of the requirements for a train crew, FRA did not propose any new or additional requirements for the train crew in this proposed rule. FRA would appreciate comments on this issue. An alternative option is that FRA require a second crewmember be a conductor, even if the other crewmember is dual-certified, in an effort to ensure a level of teamwork that may not be attainable with any other crewmember. This issue is further explained below for freight and passenger train operations.
Regarding the Class I freight railroads, FRA understands that the status of train crew staffing levels has remained unchanged since the Association of American Railroads (AAR) reported to FRA in 2013 after the Lac-Mégantic accident that the Class I railroads were only using two-person crews for over-the-road mainline operations.
Meanwhile, fewer freight short line and regional railroads (
Freight train operations may currently utilize one crewmember who is dual-certified as both a locomotive engineer and a conductor, along with a second crewmember that may be lacking many of the relevant qualifications normally associated with a conductor. In FRA's observations, this is an uncommon occurrence. Rather, it is more common to observe a freight railroad using two dual-certified crewmembers, allowing the crewmembers to take turns operating the locomotive and performing the conductor's duties. However, a freight railroad is currently not prohibited from deploying a dual-certified crewmember with a brakeman, or other operating crewmember as a second crewmember, even though the employee lacks the versatility and training of a conductor, which could raise questions regarding the safety of such a two-person operation. Presumably, a second crewmember who is not a conductor, but is traveling with the train, would handle physical tasks that require a crewmember to dismount from the train, such as throwing a switch, protecting a highway-rail grade crossing, and conducting brake tests. Additionally, a second crewmember who is not a conductor could help identify signal indications and assist the locomotive engineer with radio communications, among other duties. However, a second crewmember who is not a conductor would have fewer responsibilities when compared to a conductor, and the contributing value to the team would likely be less. For example, a second crewmember who is not a conductor would be expected to have training on fewer safety issues compared to a conductor and therefore may not have the knowledge to discuss or resolve as many operational questions as a conductor.
Similar operational concerns could arise with current practices that allow use of a second person who is more like a utility employee
Passenger train service means the transportation of persons (other than employees, contractors, or persons riding equipment to observe or monitor railroad operations) by railroad in intercity passenger service or commuter or other short-haul passenger service in a metropolitan or suburban area.
Multiple train crewmembers are typically necessary on a passenger train to meet the requirements of FRA's passenger train emergency preparedness rule,
A one-person passenger train crew would have significant difficulty coordinating any type of evacuation, especially in difficult terrain, or if there are large numbers of passengers or other logistical challenges. Furthermore, although posted emergency evacuation signs and instructions for train passengers can be useful, and are indeed required by FRA regulation, the crew's presence is likely to improve instruction to passengers and facilitate situational awareness.
Although passenger train conductors normally do not ride in or next to the locomotive cab with the locomotive engineer for more than a few minutes at a time, passenger train conductors are integral to the train's safe operation. For instance, passenger train conductors assist with train inspection, train makeup, form and record management, troubleshooting, and repair. Passenger train conductors also maintain verbal communication with the locomotive engineer, even though they are often not in the locomotive cab. A well-trained passenger train conductor will recognize passing landmarks and communicate important information by radio to the locomotive engineer.
One safety concern for passenger train crew staffing, similar to the concern expressed above for freight train crew staffing, is that a passenger railroad will use one crewmember who is dual-certified as both a locomotive engineer and a conductor, but the second crewmember is not a certified conductor and may be lacking many of the relevant qualifications normally associated with a passenger train conductor. If a second passenger train crewmember is not a passenger conductor, the second person would have fewer responsibilities when compared to a passenger conductor, and the contributing value to the team would likely be less. As in the freight
Currently, the typical train crew staffing arrangement for tourist train operations is like that for passenger train service, with a locomotive engineer located in the locomotive cab and a conductor, and potentially one or more assistant conductors, riding in the passenger cars. The assistant conductors may go by a different title as tourist train operations usually have paid or volunteer train crewmembers that can assist passengers in case of an emergency. Tourist train operations are not required to comply with FRA's passenger train emergency preparedness requirements, whether the operation is on or off the general railroad system.
Generally, the data available about one-person train operations in other countries is limited because the information available does not separate one-person crew rail operations from multi-person operations. For this reason, it is difficult to normalize the data and effectively evaluate the safety of foreign, one-person train operations. Canada's train operations are the most comparable foreign operation to those of the U.S. and, as explained in more detail in section III.E above, following the 2013 catastrophic accident in Lac-Mégantic, Canada, Transport Canada issued a temporary directive requiring at least two crewmembers for trains carrying loaded hazardous materials tank cars over main track and sidings. That temporary directive was then replaced with a mandatory operating rule requiring a minimum of two crewmembers for a freight or transfer train carrying one or more loaded tank cars of dangerous goods.
Foreign train operations in developed countries, other than Canada, are not comparable for the most part due to differences in train lengths, territory, and infrastructure. For instance, a foreign, one-person freight train operation in an industrial-type railroad servicing only one origin and one destination would not be comparable due to the complexity of most U.S.-based freight rail operations. Most foreign, one-person freight train operations also do not carry out extensive interlining or switching with other railroads. Further, many foreign, one-person passenger train operations do not have to share track with freight operations or operate over highway-rail grade crossings, and thus the safety hazards associated with those foreign operations are not comparable to those involving U.S. passenger train operations.
To the extent that commenters believe foreign, one-person train operations are relevant, FRA requests that the comments include information and data describing the operations. FRA would also appreciate comments that explain how the foreign operation is comparable to U.S.-based operations and whether the operation would need to file a special approval petition under the rule as proposed if it was U.S.-based, or whether the operation if it was U.S.-based might meet the criteria in one of the exceptions of the proposed rule with or without a change to the proposed requirements.
Since the 2016 NPRM was published, the number of crewmembers on each type of train has largely stayed constant, during a period in which railroad operations have also returned consistent safety statistics. For example, over the five-year period from 2016 to 2020, the average rate of FRA-reportable, human-factor-caused accidents/incidents across industry was 1.05 accidents per million train miles. The lowest rate of 0.95 was in 2016; the highest rate was in 2020 at 1.18 accidents per million train miles. While these consistent safety statistics were attained with the overwhelming majority of train operations using two or more crewmembers, it is unknown how introducing the additional risk factor of a reduction to a one-person crew will impact safety without conducting or reviewing a risk assessment for the industry or each operation.
The industry's safety record on one-person train crew operations is not well-developed, with few industry participants, and a negligible record of information, which precludes FRA from making meaningful data comparisons of the safety of one-person train crew operations to multiple-person operations. As previously explained above, only a small number of short line and regional railroads, and an even smaller number of passenger train operations, have established one-person train crew operations, and the short line and regional railroads have a dwindling number of such operations, from about
Further, those few one-person Class II and III train crew operations are not necessarily indicative of what the safety record might be on the major Class I freight railroads, which tend to operate longer trains, with higher tonnage, for longer distances, and at higher speeds than a short line or regional railroad operation. Train crews on major Class I freight railroads must generally contend with more complexities than typically found on a short line or regional railroad operation, such as more than one type of signal system, more than one set of railroad operating rules and practices that must be followed during the same tour of duty, or higher train traffic density.
For these reasons, FRA proposes to review each railroad's petition for a described operation and to require each railroad that receives FRA's approval to conduct a formal, annual review and analysis of the FRA-approved train operation(s) with fewer than two crewmembers. This will enable FRA to make better safety evaluations and comparisons of operations with fewer than two crewmembers in the future.
This proposed rule is complementary to, rather than duplicative of, other recent regulatory initiatives FRA has issued or is in the process of developing. These initiatives include: the implementation of PTC systems by required railroads;
PTC systems must be designed to prevent the following accidents or incidents: train-to-train collisions, over-speed derailments, incursions into established work zones, and movements of trains through switches left in the wrong position,
Likewise, the risk assessment required in FRA's PTC regulatory requirements is different than the risk assessment requirements in this proposed rule and thus would not be duplicative. For instance, FRA requires a railroad to submit a PTC safety plan (PTCSP) and receive PTC System Certification
As codified in 49 CFR parts 270 and 271, FRA requires Class I railroads, railroads with inadequate safety performance, and passenger rail operations to implement railroad safety risk reduction programs. A railroad safety risk reduction program is a comprehensive, system-oriented approach to safety that determines an operation's level of risk by identifying and analyzing identified hazards and developing strategies to mitigate risks associated with those hazards. In this background, FRA is using the term “railroad safety risk reduction programs” to include both a “system safety program” (SSP) that is required for certain passenger rail operations
Although a railroad safety risk reduction program might address a railroad's safety hazards and risks associated with changes in train crew staffing, the framework established by these programs neither directly addresses the risks associated with reducing train crewmembers to fewer than two nor establishes an industry-wide approach.
First, not every railroad is required to have a railroad safety risk reduction program. Indeed, FRA estimates that fewer than 100 railroads (out of approximately 750 under FRA's jurisdiction) over the next 10 years will be required to develop a railroad safety risk reduction program.
Second, even if a railroad is required to have a railroad safety risk reduction program through which it identifies the risks associated with reducing train crew size to fewer than two crewmembers,
Accordingly, while the safety risk reduction program requirements may complement this proposed rule, they do not address the need for FRA and the railroads to consider and address the safety risks of operations utilizing fewer than two crewmembers across the entire industry.
On June 13, 2022, FRA published a final rule adding a Fatigue Risk Management Program (FRMP) to the railroad safety risk reduction program requirements in parts 270 and 271.
Like the railroad safety risk reduction requirements, there is no guarantee that any railroad covered by the regulation will use an FRMP to address the train crew staffing issue. As with the railroad safety risk reduction program rules, a covered railroad must identify fatigue hazards, assess the risks associated with those fatigue hazards, and prioritize those risks for mitigation purposes. It is possible that other fatigue risks, not associated with a decrease in crew size, might rank higher, in which case the risk associated with a decrease in train crew size might not be promptly mitigated. Further, because the FRMP requirements would apply only to those railroads required to comply with the railroad safety risk reduction program requirements, an FRMP would not be required of every railroad. Thus, like the railroad safety risk reduction program rules, the FRMP final rule is complementary to this proposed train crew size safety requirements rule and is not duplicative.
Risk, in simple terms, can be thought of as the possibility of something bad happening, and in the context of this rule, the possibility of an unsafe event occurring that results in an accident or incident. Risk also has an element of uncertainty—meaning the probability that the unsafe event will occur and the likelihood of the unsafe event resulting in an accident or incident. A certain amount of risk is inherent in all transportation activities, including railroad operations. Generally, FRA's existing safety regulations address known risks in railroad operations (
Risks can be systematically reduced by following a risk management process. A risk management process is a formal process used to identify, evaluate, and eliminate or reduce hazards to within a range of acceptability. It is a way to proactively reduce and mitigate risk before an accident, injury, or other
Because, as noted previously, with the exception of certain freight and passenger operations, railroads have historically operated trains with at least two crewmembers, insufficient historical accident and incident data exists to demonstrate the potential impacts of crew size on rail safety generally, and insufficient historical data exists on the impacts of crew size under specific operating scenarios. Accordingly, rather than taking a “wait and see” reactive approach to potential new hazards introduced with changes in crew size, FRA is proposing to require railroads to conduct a risk assessment when seeking to initiate new train operations staffed with fewer than two crewmembers (and railroads seeking to materially modify legacy fewer-than-two-crewmember operations).
A risk assessment is a process of identifying new potential hazards, analyzing what could happen if a particular hazard occurs, estimating the probability of the hazard occurring as well as the likelihood of the hazard resulting in an accident or incident, and methods to reduce or eliminate the hazard through mitigations (
As noted above, performing risk assessments, risk management, and risk reduction are not new to FRA or the railroad industry. As also noted earlier in this preamble, FRA's RRP and SSP rules, as well as FRA's PTC rule, require railroads to develop and implement processes and procedures that will identify hazards and then mitigate or eliminate the risks that result from those hazards. Similarly, in 2007, FRA published a “Collision Hazard Analysis Guide” (Guide) to assist passenger rail operations in conducting collision hazard assessments.
Prior to development and publication of the Guide, FRA relied on MIL-STD-882 when promulgating certain aspects of FRA's Passenger Equipment Safety Standards (49 CFR part 238).
In the 2005 final rule codifying FRA's Standards for Processor-Based Signal and Train Control Systems, FRA acknowledged that it did not expect the assessment of risks performed under the AREMA standard would prove a product to be “absolutely safe.”
As noted above, and in more detail in the section-by-section analysis of proposed § 218.135, standardized risk assessment processes, tools, and methodologies exist not only in FRA's regulations, but in other industries and contexts. In this NPRM, FRA is proposing a process based on these widely accepted existing standards, but tailored to the specific context of this rulemaking.
FRA has proposed specific content and methodology requirements for conducting risk assessments, including defining acceptable and unacceptable levels of risk and allowing for both quantitative and qualitative analyses. FRA intends the specific content and methodology requirements proposed to both ensure that all relevant risks are properly identified, evaluated, and addressed, and to provide railroads clarity and certainty regarding what level of risk FRA proposes as acceptable and what level of risk FRA proposes as not acceptable. Using a standardized risk assessment process as proposed should result in risk assessments being conducted and documented in a consistent manner, enabling railroads to conduct the assessments effectively and efficiently, and at the same time, limit the burden on FRA as it reviews and evaluates every risk assessment filed. Further, as the proposed risk assessment process is consistent with the requirements of other FRA regulations (
Although FRA is proposing specific content and methodology requirements for risk assessments, FRA recognizes that every railroad operation is unique and that the technical resources and capabilities of railroads vary. Accordingly, FRA is also providing the flexibility for railroads to use alternative risk assessment methodologies and procedures if those methodologies and procedures provide an accurate assessment of the risk associated with the operation. FRA expects that the flexibility to develop and use alternative risk assessment methodologies and procedures may be used by some Class I railroads with sophisticated, technical risk management programs. As proposed, any railroad seeking FRA's approval to use such an alternative standard will need to demonstrate to FRA that the methodology and procedures provide at least as accurate an assessment of risk as the specific methodology and processes proposed.
FRA expects this proposed rule would ensure that the current industry-wide level of rail safety is not eroded by railroads reducing crew size below two. This rule would require railroads to objectively evaluate and then address safety risks associated with continuing a legacy train operation staffed with one crewmember or initiating a new operation using fewer than two train crewmembers. FRA's proposed petition requirements in §§ 218.131 and 218.133 are intended to solicit enough information for FRA to make an informed decision whether to allow the continuance of a legacy operation or the initiation of a new operation. Without this regulation, railroads would not be required to consult FRA, nor seek FRA approval, to continue or initiate a train operation with fewer than two crewmembers except, to a certain extent, those passenger train operations which require FRA's approval to implement a passenger train emergency preparedness plan under 49 CFR part 239. However, part 239 does not require a railroad to comprehensively consider the safety risks associated with a train operation. Part 239 only requires consideration of the risks and processes involved in responding to emergency situations.
FRA proposes that its decision to grant or deny a petition would be based on whether a railroad submits all required data and information and, as applied to legacy operations, whether that data and information demonstrates that the operation has historically operated consistent with railroad safety, and for proposed new operations, whether the railroad submits all required data and information, and additionally provides evidence of a properly conducted risk assessment demonstrating that the operation will be operated consistent with railroad safety.
As previously discussed in this background section (III.F.), in 2021, FRA identified seven Class II and III freight railroads with one-person train operations and two one-person passenger train operations. Although FRA expects that the nine operations it identified as current will file for special approval or may otherwise qualify for an exception, it is possible that FRA is unaware of some other railroads that may be using one-person train crews or that some additional railroads may initiate and establish a legacy operation before the final rule's effective date.
FRA expects to approve the continuation of a legacy operation with a one-person train crew if a railroad provides a thorough description of that operation, has sufficiently assessed the risks associated with the operation, and has taken appropriate measures to mitigate or address any risks or safety hazards associated with the operation. In reviewing legacy operations, this rulemaking provides FRA with the opportunity to confirm that each railroad is following an operating model that makes rail safety a priority.
FRA expects that some of these legacy operations do not address every FRA safety concern. For example, in the background section (III.D.2), FRA identified how the adoption of a one-person train crew could degrade safety without considering, for example, how the railroad would monitor the use of prohibited electronic devices, or how operational concerns may arise, such as the loss of a second crewmember's experience during a job briefing. If a railroad does not address those issues, FRA may permit the operation to continue with special conditions that require the railroad to devise strategies to address those safety concerns in a manner that appropriately fits the size and scope of the operation. FRA requests comment regarding the clarity of the proposed requirements and where FRA should include additional guidance or examples for any of the requirements.
FRA is uncertain about how many petitions for special approval it can expect to receive to initiate a new train operation with fewer than two crewmembers although, for purposes of the Regulatory Impact Analysis, FRA is estimating it will receive two petitions in the first year and that number would increase by 25% per year over the 10-year analysis. The table below shows the estimated number of new operations with fewer than two crewmembers.
There are several reasons for this uncertainty. First, based on FRA's experience, it appears that during the last five years, Class II and III short line and regional freight railroads have reduced the number of one-person legacy operations; however, FRA's information may be incomplete and there may be more operations that FRA does not know about or railroads that are considering initiating such an operation. Second, because collective bargaining agreements typically govern crew size on Class I railroads, those railroads will need their labor organizations to agree to any reductions in crew sizes through the collective bargaining process before implementation of a new operation with fewer than two crewmembers. Major labor organizations opposed such reductions when they challenged FRA's 2019 Withdrawal. Third, passenger train operations still need to comply with or seek a waiver from FRA's passenger train emergency preparedness requirements in 49 CFR part 239 but may also find alternative methods that are acceptable to FRA. Finally, tourist train operations are the least likely type of operation to embrace fewer than two-person train crews given the nature of their operations.
FRA is proposing in § 218.133 that a railroad seeking to initiate a train operation with fewer than two crewmembers file for FRA's review and approval a petition thoroughly describing the proposed operation, including a risk assessment specific to the proposed operation. As proposed, the risk assessment requirement is designed to ensure railroads conduct a comprehensive, objective assessment of the risks of a planned train operation with fewer than two crewmembers. Although some level of risk is inherent in all transportation activities, risk can be reduced, in some cases to a negligible level, through effective operational practices, technology deployment, and implementation of mitigating measures.
This proposed risk assessment would be considered separate from any railroad safety risk reduction program required under part 270 or 271, and therefore would not be covered by either rule's provision protecting certain information from use in litigation proceedings for damages. Both these provisions apply only to information compiled or collected “solely” for the purpose of either part 270 or 271, and specifically exclude “information that is required to be compiled or collected pursuant to any other provision of law or regulation.”
FRA notes that it has statutory discretion to prohibit public disclosure under the Freedom of Information Act
As proposed, FRA will evaluate a railroad's risk assessment to determine whether the assessment:
1. Accurately identifies all hazards associated with the proposed operation (or proposed material modification to an existing operation);
2. Appropriately categorizes all identified hazards according to their risks (likelihood and severity); and
3. Identifies and provides for the implementation of appropriate mitigations measures for identified hazards.
As discussed in the Risk Assessment section above, FRA does not expect that a railroad will prove that a proposed operation is absolutely safe. Some level of risk is involved in every transportation operation, and every rail operation, even rail operations with two or more crewmembers that exist today. However, a railroad's risk assessment should provide evidence that risks associated with the proposed operation have been carefully considered and that steps have been taken to eliminate or mitigate those risks, particularly those risks found to have significant potential safety impacts.
As proposed, FRA will approve a petition only if it finds doing so would be consistent with railroad safety. FRA expects to approve a petition if the Associate Administrator for Railroad Safety independently determines that a railroad's safety case establishes that the proposed operation will not result in an unacceptable level of risk. In terms of the proposed risk assessment methodology, FRA will approve a petition if the Associate Administrator independently determines that a railroad's safety case establishes an acceptable level of risk generally or an acceptable level of risk under specific conditions identified.
FRA acknowledges that the appropriateness of specific mitigating measures will depend on the specific context of individual operations (
FRA also recognizes that the risk mitigation measures a railroad identifies may not mitigate every identified hazard, but FRA expects the mitigation measures to address the identified hazards with the most significant potential safety impacts to ensure that the overall level of risk of a proposed operation is reduced to an acceptable level. The proposed risk assessment requirement is discussed in more detail in the section-by-section analysis of § 218.135.
FRA anticipates that it would grant petitions that build their risk assessment on accurate information, provide a properly executed risk assessment, and show that hazards not mitigated completely are reasonably determined to be acceptable. FRA anticipates that it would deny a petition if information or data on which a railroad builds its risk assessment is not accurate, the risk assessment is not properly executed, or any partially mitigated or unmitigated hazards are determined (by either the submitting railroad or FRA) to be generally unacceptable or unacceptable under the specific circumstances proposed.
The rail industry is anticipating a future growth in automation and is concerned about how a train crew staffing rule might unnecessarily impede the future of rail innovation and automation. As noted in section III.D above and further explained below, FRA does not expect this rule to impede the future of rail innovation, nor does it expect this rule to allow the rail industry to bypass the existing waiver or other existing regulatory processes that may be necessary for automated operations to be implemented in compliance with FRA's safety regulations.
In March 2018, FRA published a Request for Information (RFI) on the future of automation in the railroad industry.
FRA received over 3,000 separate comments in response to the RFI from a wide variety of stakeholders, including: members of the public; railroads; railroad industry suppliers and equipment manufacturers; individual railroad employees; railroad labor organizations; and State and emergency response organizations. The vast majority of public commenters seemed to equate automation in the railroad industry with full automation (
This NPRM proposes a process that would ensure that railroads consider safety and conduct a risk assessment when filing a petition for special approval to initiate a new operation staffed with fewer than two crewmembers or materially modifying an FRA-approved legacy operation, and that FRA will be reviewing and approving those petitions when the criteria are met. Additionally, the petition and requirements proposed concerning annual railroad responsibilities after receipt of special approval would serve to gather data on the relationship between crew size and safety. Thus, FRA expects this proposed rule would help ensure the safe and secure transportation of people and goods without unnecessarily impeding the future of rail innovation and automation.
Regardless of the number of crewmembers a railroad plans to assign to any train operation, a railroad seeking to use rail automation technology that does not comply with FRA's existing rail safety regulations may file a petition for rulemaking under FRA's regulations, or a petition for a waiver of FRA's safety rules. If a railroad seeks to use technology that does not comply with FRA's existing regulations and the railroad seeks to use a fewer than two-person crew for the operation, the railroad could petition FRA for a rulemaking that would revise FRA's regulations to permit the use of the technology as proposed. A rulemaking petition would need to comply with FRA's Rules of Practice (specifically, 49 CFR part 211, subparts A and B) and would have to follow the Department's regulatory process in compliance with the Administrative Procedure Act.
The NPRM proposes to add 11 definitions that will be applicable to all of part 218—Railroad Operating Procedures. Part 218 prescribes minimum requirements for railroad operating rules and practices. As the proposed defined terms are not currently used in the existing requirements, the proposed definitions are not expected to change the meaning of those requirements.
The proposed rule defines the term “Associate Administrator” so that a petition can be directed to the attention of the proper FRA official who will need to review it for special approval. A definition of “FTA” is proposed for those railroads that come under the Federal Transit Administration's jurisdiction and would be expecting FRA to recognize FTA's authority to regulate certain types of operations.
FRA proposes to define four terms that relate specifically to the risk assessment content and procedures requirements in proposed § 218.135. These terms are: hazard; mishap; risk; and risk assessment. The meaning of these terms is discussed in more detail in the analysis of § 218.135.
To clarify that a “train” does not include switching operations, FRA proposes a definition for “switching service” that is consistent with the way FRA has defined the term in other regulations.
FRA proposes a definition of “tourist train operation” as a short form of reference to a “tourist, scenic, historic, or excursion train operation.” The proposed rule also provides a definition for the phrase “tourist train operation that is not part of the general railroad system of transportation” to explain the plain meaning of that phrase. The phrase means a tourist, scenic, historic, or excursion operation conducted only on track used exclusively for that purpose (
The proposed rule defines “trailing tons” to mean the sum of the gross weights—expressed in tons—of the cars and the locomotives in a train that are not providing propelling power to the train. This term has the same meaning as in 49 CFR 232.407(a)(5), which is a regulation concerning end-of-train devices. The NPRM needs this term to help define what a work train is in § 218.129(c)(2).
The NPRM proposes a definition of “train” that is consistent with the way FRA has defined the term in other regulations.
Proposed paragraph (a) states that the purpose of proposed subpart G is to ensure that each train is adequately staffed and has appropriate safeguards in place for safe train operations under all operating conditions. To ensure adequate staffing, the NPRM prescribes minimum requirements for the size of different train crew staffs depending on the type of operation, as described in paragraph (b) of this section.
Proposed paragraph (b) provides that subpart G prescribes minimum requirements for the size of different train crew staffs depending on the type of operation and operating conditions. The decision to propose a requirement for a minimum number of crewmembers on certain types of operations is intended to ensure that each railroad implementing operations with fewer than two train crewmembers has adequately identified potential safety risks and taken mitigation measures to reduce the chances of accidents, as well as the impact of any accident that may still occur. Proposed paragraph (b) also provides that subpart G prescribes minimum requirements for the location of a second train crewmember on a moving train, and promotes safe and effective teamwork. Moreover, proposed paragraph (b) would expressly allow each railroad to prescribe additional or more stringent requirements in its operating rules, timetables, timetable special instructions, and other instructions.
Subject to the exceptions in §§ 218.125 through 218.129, this section proposes general crew staffing requirements and explains the circumstances under which a second crewmember may be located outside of the operating cab of the controlling locomotive when the train is moving.
Proposed paragraph (a) requires each railroad to comply with the requirements of subpart G and provides the railroad with the option to adopt its own rules or practices for implementing these requirements. In addition, as proposed in §§ 218.129, 218.131, and 218.133, a railroad would need to adopt its own rules or practices to operate a train with fewer than a two-person crew (
Proposed paragraph (b) would require that each train be assigned a minimum of two crewmembers unless an exception is otherwise provided for in subpart G.
Paragraph (c) contains the proposed requirement that, without exception, two crewmembers are always required when a train contains certain quantities and types of hazardous materials that have been determined to pose the highest risk for transportation from both a safety and security perspective. The types and quantities of the hazardous materials identified in paragraph (c) are those that PHMSA, FRA, and TSA, as discussed in section III.E above, have previously determined present heightened safety and security risks in rail transportation. Accordingly, FRA finds that requiring, without exception, a minimum two-person crew to operate such trains is justified.
Proposed paragraph (c)(1) would prohibit the operation of a train with fewer than a two-person crew if the train is transporting certain hazardous materials making it subject to FRA's securement regulation (49 CFR 232.103(n)) if left unattended or if the train is transporting one or more car loads of any hazardous material TSA has designated as RSSM.
Proposed paragraph (c)(2) would require a minimum of two crewmembers for any train that contains one or more car loads of any material designated as RSSM as defined in 49 CFR 1580.3. Currently, a hazardous material shipment of RSSM can be any one of the following three types of shipments: (1) a rail car containing more than 2,268 kg (5,000 lbs.) of a Division 1.1, 1.2, or 1.3 (explosive) material, as defined in 49 CFR 173.50; (2) a tank car containing a material poisonous by inhalation as defined in 49 CFR 171.8, including anhydrous ammonia, Division 2.3 gases poisonous by inhalation as set forth in 49 CFR 173.115(c), and Division 6.1 liquids meeting the defining criteria in 49 CFR 173.132(a)(1)(iii) and assigned to hazard zone A or hazard zone B in accordance with 49 CFR 173.133(a), excluding residue quantities of these materials; and (3) a rail car containing a highway route-controlled quantity of a Class 7 (radioactive) material, as defined in 49 CFR 173.403.
The general requirement in proposed paragraph (d) is that a crewmember, other than the crewmember operating the train, may be located anywhere outside of the operating cab of the controlling locomotive when the train is moving under certain conditions. The NPRM is written under the premise that the locomotive engineer is the first crewmember,
The proposed requirement in paragraph (d) is written with an expectation that, in many operations, the best location for the conductor is in the cab of the controlling locomotive when the train is moving. When a conductor is in the cab, the crewmembers can easily communicate about upcoming restrictions, signal indications, and methods of operation. These job briefings and other timely communications help ensure that the locomotive engineer is operating safely and in compliance with all applicable rules and procedures. Knowing that the conductor can provide reminders of restrictions or a level of assurance that the engineer is calling signals correctly may reduce the stress level of the engineer. As FRA explained in the background section (III.D.1), it is when employees are under stress and overloaded with tasks, that a one-person crew is more likely to lose situational awareness and make a mistake,
Although for safety purposes the optimal location for crewmembers is usually in the operating cab of the controlling locomotive when the train is moving, FRA recognizes that in certain instances, trains can be operated safely when crewmembers are located elsewhere on the train. For example, FRA is aware that some operations are designed so that a crewmember not operating the train is positioned at the back of the train, which can facilitate train movements that require manually operating switches at the rear of the train. In other operations, railroads may have a crewmember ride in a locomotive that is not the controlling locomotive. This proposed rule does not prohibit crewmembers that are not operating the train from safely performing their duties from somewhere else on or near the moving train.
In paragraph (d)(1), it is proposed that the normal location of a crewmember be on the train except when necessary for that crewmember to temporarily disembark. The proposed general requirement is intended to prohibit two-person operations where the second crewmember is either never on the train or spends significant periods of time disassociated from physically being on or near the train. A second assigned crewmember that is regularly in a yard tower, for example, would be violating this proposed general requirement that only permits “temporarily disembarking from the train.” The relaxation of the requirement that a crewmember that is not operating the train be on the train is intended to permit only movements of short time or duration that are necessary in the normal course of train operations. For example, a conductor may get off a train to throw a switch and then the train may be moved so that the conductor can get back in the controlling locomotive cab without having to walk the entire length of the train. In other instances, there may be a train that cannot easily be moved to pick up a conductor that disembarked to throw a switch, and the conductor may be transported in a motor vehicle, or on a following train, several miles away where the conductor can then safely board the assigned train. Conversely, if a railroad's practice is to stop the train after passing more than one possible place where the train could be stopped safely for the conductor to board, FRA would view the practice as more than a temporary situation and it would appear to violate the proposed general requirement. Regarding proposed paragraph (d)(1), intercity passenger and
Proposed paragraph (d)(2) contains the requirement that, when a crewmember that is not operating the train is anywhere outside of the operating cab of the controlling locomotive when the train is moving, the crewmember and the locomotive engineer in the cab of the controlling locomotive can directly communicate with each other. FRA is not proposing to prescribe the methods of communication in this regulation. Deciding appropriate methods of direct communication between crewmembers is left to each railroad. Typically, crewmembers that are visible to one another will communicate by hand signals, as the employees' voices cannot be heard over the locomotive engine from any distance outside the cab. Other times, crewmembers will communicate with one another by radio or other wireless electronic devices in accordance with railroad rules and procedures and FRA's railroad communications regulation found at 49 CFR part 220. The important aspect of this proposed general requirement is that the assigned crewmembers are in direct contact with one another and do not have to communicate through an intermediary. Communication must also be two-way, so that the locomotive engineer can initiate direct communication with the other train crewmember(s).
FRA anticipates that there may be circumstances where direct communication is temporarily lost due to radio malfunctions or other communication failures. Sometimes the loss of communication will be due to circumstances within the control of the crewmembers or will be due to known radio signal obstacles (
Regarding proposed paragraph (d)(2), intercity passenger and commuter locomotives do not always have room for a crewmember that is not operating the train in the locomotive control compartment, but a second crewmember may be necessary to assist during shoving or pushing movements, or to otherwise assist the routine operation of the train. If the second crewmember is a conductor, that conductor may not always have a view of upcoming signal indications. Railroads with passenger train operations should look closely at the operating duties that crewmembers, not located in the cab, can perform when any crewmembers can directly communicate with the locomotive engineer in the cab of the controlling locomotive. For example, before leaving each station stop, a passenger conductor could remind the locomotive engineer of any upcoming restrictions that will be reached before arriving at the next station stop. Such job briefings between crewmembers are an effective practice by expert teams.
Proposed paragraphs (d)(3) and (4) also contain general requirements that apply when a crewmember that is not operating the train is anywhere outside of the operating cab of the controlling locomotive when the train is moving. The proposed paragraphs require that these crewmembers must be able to continue to perform the duties assigned even when the crewmembers are outside of the operating cab of the controlling locomotive when the train is moving and, under these circumstances, the location of the crewmembers must not violate any Federal railroad safety law, regulation, or order. These proposed general requirements are catch-all provisions intended to ensure that neither a railroad nor a crewmember concludes that the provisions in this regulation can somehow be used to avoid complying with a person's assigned duties or any Federal requirement. FRA understands that passenger train conductors will normally be in the body of the train, not in the locomotive cab with the engineer. In passenger train operations, normal areas for a conductor to occupy on a train include the locomotive, the passenger cars, the side of a rail car when protecting a move, or on the ground either throwing switches or inspecting the train.
Finally, under proposed paragraph (d), FRA's main concern is with adequately staffed moving trains, not stopped trains. The proposed regulatory text is silent regarding any requirements for the location of a crewmember on a stopped train, as FRA suggests that this is an issue that should be left for each railroad to decide, except to the extent addressed by another regulation—namely, FRA's passenger train emergency preparedness regulation (49 CFR part 239).
This proposed section is the first of three sections allowing for operational exceptions to the proposed requirement for assigning a minimum of two crewmembers on each train specified in § 218.123(b) and the proposed location requirements for a crewmember that is not operating the train found in § 218.123(d). In the discussion for each proposed paragraph, FRA explains why these proposed exceptions present an acceptable level of risk leading FRA to conclude that, generally, the operations would be consistent with railroad safety. As a reminder, the introductory paragraph of this section reiterates that the exceptions in this section do not apply when a train is transporting the hazardous materials of the types and quantities described in § 218.123(c). This proposed section is intended to cover those general exceptions that apply to freight, passenger, or tourist train operations. FRA requests comments for other similarly situated operations that it should consider excepting and whether a mechanism should be included in the rulemaking to allow future exceptions to be added through a petition process.
In this proposed section, two general exceptions are identified. The exceptions are identified by the shorthand descriptions: (1) helper service and (2) lite locomotive. These shorthand descriptions are used as headings at the beginning of each paragraph.
Paragraph (a) proposes to except trains performing helper service from the proposed two-person crew minimum requirement. The proposed paragraph states that a train is performing helper service when it is using a locomotive or group of locomotives to assist another train that has incurred mechanical failure or lacks the power to traverse difficult terrain. Helper service is a common service performed in the railroad industry as a one-person operation. It is typically not considered a complex operation as the locomotive engineer would be required to operate to the train needing assistance, and then couple to the train so the helper locomotive(s) can provide additional power that will assist the train's locomotive(s) in pushing or pulling it. The proposed paragraph clarifies that helper service includes the time spent traveling to or from a location where assistance is provided. FRA does not believe this type of operation poses a great risk to railroad employees or the general public because cars are not attached and a railroad has
Proposed paragraph (b) would exempt a lite locomotive or a lite locomotive consist from the two-person crew requirement based on a similar safety rationale as provided for the proposed helper service exception. That is, when a locomotive or a consist of locomotives is not attached to any piece of equipment, or attached only to a caboose, FRA expects that there is less risk to railroad employees and the general public. Lite locomotives are mainly used to move to a location where the locomotives could be better utilized for revenue trains that are taking or delivering rail cars to customers, or to other railroad yards where the locomotives can be used in switching operations. Additionally, lite locomotives may be operating as a train to take more than one locomotive to a repair shop for servicing. The proposed paragraph includes a definition of “lite locomotive” consistent with the definition in FRA's Railroad Locomotive Safety Standards regulation found in 49 CFR 229.5. However, this NPRM includes a further clarification that lite locomotive “excludes a diesel or electric-multiple unit (DMU or EMU) operation.” The reason for this additional clarification is that a DMU or EMU is a locomotive that is also a car that can transport passengers, and FRA does not intend this exception to cover a passenger train operation containing either single or multiple DMUs or EMUs. FRA has further clarified DMU/EMU exceptions for passenger trains in proposed § 218.127.
This proposed section permits four specific passenger and tourist train operation exceptions to the proposed requirement for assigning a minimum of two crewmembers on each train. FRA expects these proposed exceptions would avoid any potential disruptions in passenger train service and tourist train operations from the proposed rule without a significant effect on safety.
Proposed paragraph (a) excludes a tourist train operation that is not part of the general railroad system of transportation from the proposed two-person crew requirement. In § 218.5, FRA defined “tourist train operation” as a tourist, scenic, historic, or excursion train operation. FRA also defined a “tourist train operation that is not part of the general railroad system of transportation” as a tourist, scenic, historic, or excursion train operation conducted only on track used exclusively for that purpose (
In paragraph (b), the proposed rule would allow a passenger or tourist train operation with fewer than two crewmembers if the train's cars are empty of passengers and passengers will not board the train's cars until the crew conducts a safety briefing on the safe operation and use of the train's exterior side doors. The proposed exception would not apply just because a passenger or tourist train happens to be empty of passengers, as FRA is proposing a safety briefing requirement, consistent with FRA's passenger equipment safety standards,
FRA expects that the safety concerns associated with these empty passenger or tourist train operations are lower than for trains loaded with passengers because accidents cannot directly result in injury or fatality of a passenger. Therefore, the proposed rule would allow railroads to determine adequate safeguards to ensure that an empty
Proposed paragraph (c) contains an exception to the two-person crew general requirement for a passenger or tourist train operation involving a single self-propelled car or married-pair unit,
In the proposed paragraph (c) exception, FRA has considered the concerns of tourist railroads that would not be subject to the § 239.201 emergency preparedness plan FRA-approval requirement. Tourist railroads, including general system tourist operations, are not subject to 49 CFR part 239, as the passenger train emergency preparedness regulation excludes “[t]ourist, scenic, historic, or excursion operations, whether on or off the general railroad system.”
Proposed paragraph (d) provides an exception from the two-person crew requirement for a rapid transit operation in an urban area connected with the general railroad system of transportation under certain conditions. The proposed exception clarifies that a rapid transit operation in an urban area means an urban rapid transit system. For the exception to apply, a railroad operating a rapid transit operation in an urban area connected with the general system must ensure that all three listed conditions are met. First, the operation must be temporally separated from any conventional railroad operations, meaning that the rapid transit operation in an urban area is strictly time-separated from conventional operations. The biggest safety concern with rapid transit operations on the general system is that they have the potential to collide with much heavier freight or passenger trains. In such a collision, the rapid transit train is likely to suffer significant equipment damage and the potential for catastrophic injuries to passengers would be great. By requiring that these operations be “temporally separated from any conventional railroad operations,” the NPRM would help ensure that the excepted rapid transit operations could not potentially collide with heavier, conventional trains. A temporally separated urban rapid transit operation on the general system is required to obtain an FRA-approved waiver from all applicable FRA regulatory requirements demonstrating an acceptable level of safety, so FRA would have assurances that sufficient measures are in place so the operation can be conducted safely on the general system.
This proposed section provides four exceptions to the minimum two crewmember requirement for freight trains.
Proposed paragraph (a) would exclude certain unit train loading and unloading operations commonly referred to as “mine load-out” or “plant dumping operations.” As proposed, this exception would apply to certain low speed, “assembly line” unit train loading or unloading operations that take place on tracks which are temporarily made inaccessible from the general system of transportation during the operation. The loading or unloading for these operations takes place while
Proposed paragraph (b) would require that each railroad that implements an operation, described as an exception in paragraph (c) of this section, must have certain operating rules or practices that are consistent with railroad safety. These specific proposed requirements are based on FRA's statement in the background section, explaining that FRA would expect to approve the continuation of a freight operation if it met certain characteristics INRD used to describe its one-person train crew operation. The first of these specific requirements in proposed paragraph (b)(1) is that a one-person train crewmember remain in the locomotive cab during normal operations and may leave the locomotive cab only in case of an emergency affecting railroad operations. A one-person operation is a greater safety risk if the one-person crew will be expected to routinely get off and then climb back on the locomotive. A railroad can arrange for switches to be lined for the one-person train operation and for other operational issues to be handled by other railroad personnel that would simplify the operation for a one-person crew.
Proposed paragraph (b)(2) would require that the railroad have operating rules or practices requiring a one-person train crewmember to contact the dispatcher whenever it can be anticipated that radio communication could be lost, unless the railroad has technology or a protocol established to monitor the train's real-time progress. For example, based on the railroad's experience, it should be aware of the locations where a train is likely to lose radio communication, such as in a tunnel or in certain mountainous or remote territory. When a one-person train crew conveys the information to the dispatcher, the dispatcher can anticipate the length of the likely communication loss and act accordingly. FRA does not propose that a one-person train crewmember contact the dispatcher for anticipated radio communication losses when technology or other protocols establish a method of monitoring the train's real-time progress. For example, a GPS tracking device on the lead locomotive could be used to monitor the train's real-time progress when communication is lost. FRA also proposes allowing a railroad to establish a protocol that accomplishes real-time monitoring of a one-crewmember train's progress. FRA has not proposed such a requirement for train crews with two or more crewmembers because additional crewmembers could follow emergency protocols in case of incapacitation of another crewmember but, without at least one additional crewmember that is not operating the train, the dispatcher would be the person who would need to recognize that emergency measures are necessary.
Proposed paragraph (b)(3) would require that if the railroad cannot monitor the train's real-time progress, the railroad must have a method of determining the train's approximate location when communication is lost with a one-person crew. In case of an emergency, the railroad should have an established method for narrowing down the approximate location of the train so that it can send emergency responders or operational supervisor observers to monitor the train's progress. As in proposed paragraph (b)(2), the intent is to address incapacitation of a one-person train crew. Although it would be best to always know the exact location of the train, the size and scope of an operation may suggest that knowing the approximate location of the train is consistent with railroad safety.
Knowing the real-time progress of a one-person crewmember operation, or at least its approximate location, is necessary when performing search-and-rescue operations. In proposed paragraph (b)(4), FRA would require that the railroad establish a protocol for determining when search-and-rescue operations must be initiated when all communication is lost with a one-person train crew. FRA is concerned that a one-person train crewmember could be incapacitated without a second train crewmember available to call for emergency first responders. For example, if a one-person crewmember fainted, the alerter would stop the train and there would not be an accident for the public to notice or report. Without a second crewmember or a search-and-rescue initiation protocol, the incapacitated crewmember could be left on the train indefinitely without any emergency medical assistance.
Proposed paragraph (b)(5) would require that a one-person train operation's lead locomotive be equipped with an alerter as defined in 49 CFR 229.5 and that the one-person train crewmember must test that alerter to confirm it is working before departure. Although 49 CFR 229.140 permits some exceptions to the requirement for a working alerter on each locomotive, this NPRM would not permit those exceptions when a railroad is using a one-person freight train crew under this section. Without an alerter on the lead locomotive, a one-person train crew could become incapacitated with the train moving, and the train would continue to operate down the track indefinitely without another crewmember who could apply the emergency brake. In contrast, with an alerter, the train would be stopped with an emergency brake application after a designated period of inactivity.
Proposed paragraph (b)(6) would require that the dispatcher confirm with a one-person train crewmember that the train is stopped before conveying a mandatory directive by radio transmission as required in 49 CFR 220.61. FRA defines a mandatory directive as “any movement authority or speed restriction that affects a railroad
Proposed paragraph (b)(7) would require that a one-person train crewmember will have a working radio on the lead locomotive and a redundant, electronic device appropriate for railroad communications as permitted in 49 CFR part 220, subpart C. FRA does not currently require a working radio in the controlling locomotive of every train,
Except for trains transporting hazardous materials of the types and quantities described in § 218.123(c), proposed paragraph (c) provides the specific freight train exceptions that would apply to small railroads, work trains, and remote control operations.
Proposed paragraph (c)(1) contains two specific freight train exceptions that would only apply to certain operations of small railroads (
FRA is proposing to limit these exceptions to small railroads because the operations of these railroads are generally less complex, and thus pose less risk, as compared to the operations of larger railroads, leading FRA to conclude that the proposed exceptions generally present an acceptable level of risk. For example, small railroads typically have much less dense traffic levels than larger railroads and small railroad crews generally operate over the same territory day after day on routine schedules. Even slow speed operations on larger railroads do not share these same general operating characteristics (
The first proposed small railroad exception applies to operations that take place at speeds not exceeding 25 mph, over track with less than 1 percent grade over 3 continuous miles or 2 percent grade over 2 continuous miles, and with trains that do not exceed 6,000 feet in length. In FRA's experience, freight railroads with fewer than 400,000 total employee work hours annually that operate trains over their own track, at relatively slow speeds, and over territory without steep hills or mountains, do not pose an unacceptable safety risk to the general public or railroad employees if conducted with only one crewmember. Generally, the potential consequences of accidents increase as train speed increases. Most small freight railroads maintain their track to no greater than Class 2 track standards, which allow freight trains to be operated at speeds no greater than 25 mph.
As proposed, the exception in § 218.129(c)(1)(i) would apply only to small railroad operations over territory with limited grade. Specifically, FRA proposes to limit the exception to operations over track segments with an average grade of “less than 1 percent over 3 continuous miles or 2 percent over 2 continuous miles.” This proposed grade threshold is consistent with grade limitations in other FRA regulations.
A proposed maximum train length requirement is appropriate for this small railroad operation exception to address safety concerns with trains blocking crossings. Again, this would be a minimum requirement, and a small freight railroad could certainly require two or more train crewmembers if the operation's safety would be compromised by using only one person.
Blocked crossings are a safety concern for various reasons, and have recently led Congress to require that FRA establish a blocked crossing portal to collect information, perform outreach to communities, support collaboration in the prevention of incidents at highway-rail grade crossings, and assess the impacts of blocked crossings.
The second proposed small railroad operation exception applies to small operations of railroads with fewer than 400,000 total annual employee work hours that do not exceed 25 mph, and where a second train crewmember is assigned, but is not continuously on or observing the moving train as would be expected of a second crewmember that is working with a locomotive engineer as a unit that remains in close contact. The proposed exception in paragraph (c)(1)(ii) applies when a freight railroad with fewer than 400,000 total employee work hours annually assigns a second crewmember that has the flexibility to travel separately from the train and is assigned to intermittently assist the train's movements at critical times. For example, the second train crewmember may be “shadowing” the train by traveling alongside the train in a motor vehicle. The second crewmember could assist with flagging a highway-rail grade crossing, throwing hand-operated switches, or conducting switching service when the train enters a yard or customer's facility. The second train crewmember and the locomotive engineer in the cab of the controlling locomotive must also have a direct way of communicating with each other. Such communication is essential to holding any required job briefings in which train crewmembers exchange critical information about upcoming restrictions or difficult operational concerns. Most commonly, communication in this context will be by radio (or other wireless electronic devices in accordance with railroad rules and procedures and FRA's railroad communications regulation at 49 CFR part 220). Direct communication means that the train crewmembers have the capability to communicate with one another without going through an intermediary, such as a dispatcher. With direct communication, either the locomotive engineer or the second crewmember can request assistance from the other crewmember and expect to receive a timely response. As these operations are conducted at relatively low speeds, under conditions where the one-person crew on board the train is intermittently assisted, and when the crewmembers are in direct communication with each other, FRA expects that the second crewmember would play a critical role in improving the safety of the operation, even if the person is not always on board or observing the moving train.
Proposed paragraph (c)(2) would exempt work train operations from the two-person crew requirement. “Work train operations” is defined in this paragraph as operations where a non-revenue service train of 4,000 trailing tons or less is used for the administration and upkeep service of the railroad. This portion of the proposed definition of work train is the same as the definition FRA provided in 49 CFR 232.407(a)(4), in a regulation requiring end-of-train devices; and, as in that rule, the 4,000 trailing tons or less threshold is intended to provide operational flexibility for this proposed requirement on railroads, especially smaller railroads.
FRA expects that a work train with 4,000 trailing tons would allow a railroad to operate a work train with potentially up to 50 cars attached to locomotives. A work train that contains up to 50 cars provides a railroad with a lot of flexibility in permitting such trains to be operated without a minimum of two crewmembers. However, FRA expects operational complexities to arise with a work train with more than 4,000 trailing tons so that a second crewmember would be extremely beneficial for safety purposes. The proposed exception for work trains engaged in maintenance and repair activities on the railroad includes the time the work train is traveling to or from a work site. FRA seeks comments on the range of safety risks posed by work trains and the 4,000 trailing tons limitation, including the potential cost to railroads.
Proposed paragraph (c)(3) would permit an exception to the two-person crewmember requirement whenever remote control operations are conducted under certain circumstances. Because the general requirement for a two-person crew minimum only applies to trains, and the definition of train excludes switching service, this exception applies to the use of a remotely controlled locomotive (RCL) that is traveling between yards or customers' facilities, with or without cars. Typically, RCL operations involved in switching have one or two crewmembers. However, in switching, an RCL operation with two crewmembers is not a traditional locomotive engineer and conductor train crew arrangement. Instead, each crewmember has a remote control transmitter, and the crewmembers alternate controlling the RCL when the RCL is near that crewmember. This “pitch and catch” arrangement is more
Although RCL operations are best utilized for switching services, a railroad may need to move an RCL from one location to another where the RCL can be more efficiently used. FRA is aware that some railroads use a one-person RCL job to service customers. FRA does not find the practice inherently unsafe given the limitations of the technology. However, FRA might be more concerned if railroads tried to operate the one-person RCL jobs with increased complexity beyond the known acceptable limitations previously acknowledged by the industry. For example, the proposed exception in includes the limitations in paragraph (c)(3)(v) that a “train does not contain more than 20 multilevel cars,
The RCL operations limitations do not contain a distance restriction, although FRA's guidance on the issue explained that the agency expected that an added limitation would be for these operations to be restricted to main track terminal operations. Considering that RCL operations are already restricted to 15 mph,
The purpose of this proposed section is to provide a way for legacy one-person train operations to continue after the effective date of a final train crew size safety requirements rule until FRA can review the safety of the operation. FRA is proposing to define a legacy, one-person operation as one that a railroad established at least two years before the effective date of a final rule on train crew size safety requirements. Without at least two years of one-person train crew operations, a railroad would not have established an accident/incident safety record of a reasonable length on which FRA could base any determination of the level of safety the operation provides. For a railroad to have an operation “established at least two years before,” FRA means that during that two-year period, an operation must occur at regular intervals under a set of defined procedures or conditions. FRA understands that a railroad may substitute a multi-person train crew for the one-person operation occasionally but, if the circumstances allow for the one-person operation, the railroad will typically use the one-person train crew. If a railroad did not conduct one-person train crew operations regularly, even when the procedures or conditions were met, the existence of a legacy operation is questionable. FRA expects that railroads with potential legacy operations will submit comments on their particular factual circumstances so that FRA can consider the impact the proposed rule might have on the regulated community wishing to establish legacy operations. Accordingly, FRA requests comments on this issue.
FRA requests comment on the proposed two-year requirement for establishing a legacy, one-person train operation. FRA recognizes there may be other ways to demonstrate the existence of an established legacy operation such as total number of operating hours or rail miles operated. For example, a railroad that operates a one-person train once per week for two years might have fewer operating hours or rail miles than another railroad that operates a one-person train multiple times per week over a single year. For this reason, railroads with any type of legacy operation are encouraged to comment on the proposed rule and describe whether FRA would need to revise proposed § 218.131 so that the railroad's current operation could be considered a legacy operation. Still another option is that FRA could establish a specific date (
FRA is proposing to prohibit the continuance of legacy one-person freight train operations that transport the hazardous materials of the types and quantities described in § 218.123(c) and, per proposed paragraph (a) of § 218.131, that prohibition would apply as of the effective date of a final rule. Thus, to the extent a legacy one-person freight train operation may continue, it is proposed that it must do so without transporting the hazardous materials of the types and quantities described in § 218.123(c).
Proposed paragraph (a) would prohibit a railroad from continuing a legacy one-person train operation beyond 90 days after the effective date of a final rule if the railroad failed to file a special approval petition containing a description of the operation. Hence, each railroad that establishes a one-person train operation, for at least two years before the effective date of a final rule, would need to decide whether it wants to continue the operation beyond 90 days after the effective date of a final rule; if it does, the railroad will be required to file a special approval petition, unless the operation is covered under one of the proposed exceptions in § 218.125, § 218.127, or § 218.129. It is proposed in paragraph (a) that legacy train operations that are excepted under §§ 218.125 through 218.129 will be permitted to continue without the need to file a special approval petition. For those legacy, one-person train operations that file a petition for special approval under the proposed rule, the railroad may continue the operation unchanged beyond 90 days after the effective date of a final train crew size safety requirements rule, unless FRA issues a disapproval decision or attaches special conditions to the approval of the petition per § 218.137.
Proposed paragraph (b) contains a list of the minimum information requirements for a railroad's special approval petition requesting continuance of a legacy, one-person train operation. Proposed paragraph (b)(1) requires information about the primary person at the railroad who can be contacted about the petition. The remaining 14 numbered items listed under proposed paragraph (b) are intended to solicit an accurate description of the operation, the hazards present, the mitigating measures taken to improve safety, and the railroad's description of how it determined the operation was safe to implement.
Paragraph (b)(2) proposes a requirement for a railroad that wants to continue a legacy one-person train operation to identify the location of that
In consideration of the proposed location description requirement in paragraph (b)(2), a railroad's request for continuance of a legacy train operation staffed with a one-person train crew must identify the current parameters of the operation's location and should not expand the parameters based on plans for future expansion. A railroad that cannot provide records kept in the normal course of business to support a continuing operation should consider submitting affidavits in support of the existence and extent of the one-person train operation. Lacking a submission containing that type of evidence, the railroad would be relying on FRA to initiate an investigation to confirm the operation's location. If a railroad fails to provide adequate documentation of an operation to be continued, and FRA's investigation does not find adequate support of its existence, the request for continuance will be denied and the railroad will need to file a petition for special approval to initiate a train operation with fewer than two crewmembers per the petition requirements in § 218.133.
Proposed paragraphs (b)(3) through (7) and (10) are sufficiently descriptive that further analysis is unnecessary for those paragraphs. The required information is intended to assist FRA in reviewing the hazards and risk of the operation, in lieu of requiring the railroad to conduct a risk assessment.
Proposed paragraph (b)(8) would require a railroad with a legacy one-person operation to state in its petition for special approval whether the one-person operation hauls hazardous materials of any quantity and type, and the approximate percentage of carload traffic in the one-person operation that is hazardous materials. A one-person operation that does not haul hazardous materials would certainly present less risk than one that does, all else being equal. Considering other issues related to the operation's size and scope, understanding the quantity and type of hazardous materials hauled will help FRA evaluate the risks of the legacy one-person operation. In the background section, FRA explained that it would expect to approve the continuation of a freight operation if it met certain characteristics INRD used to describe its one-person train crew operation, including that 70 percent or more of the railroad's carload traffic is non-hazardous materials. FRA proposes that a railroad approximate the percentage of carload traffic in the one-person operation that is hazardous materials in its petition as it should be included as a factor in determining the risk posed. FRA does not view 30 percent as the upper limit for hazardous materials carload traffic in a one-person legacy operation, and FRA is not proposing any upper limit. FRA's concern is how to consider the hazards and risk of hazardous materials in the total safety of the operation, which is an issue that can be evaluated with the other proposed requirements for a petition in this section. Further, commenters to a petition for special approval can help illuminate the hazards and risk.
Proposed paragraph (b)(9) is intended to solicit information about whether any limitations are placed on a person operating as a one-person train crew. FRA expects that some railroads will limit a one-person train crew by establishing a maximum number of miles or hours the person may work during a single tour of duty. It is also possible that a railroad operating a legacy operation may have established a fatigue mitigation plan even though there is no current Federal requirement to do so. FRA expects that it would be more likely to grant a petition if a railroad implemented strategies for reducing railroad worker fatigue, such as improving the predictability of schedules, considering the time of day it permits one-person train crews to operate, and educating workers about fatigue and sleep disorders. The proposed petition could include an explanation for the rationale behind the limitation to show that it is part of the railroad's effort to ensure that the train operation would be consistent with railroad safety.
Proposed paragraph (b)(11) would require a detailed description of any technology that is used to perform tasks typically performed by a second crewmember or that prevents or mitigates the consequences of accidents. The technologies described must be already installed and operational, with all FRA approvals as necessary, so that the functionality and impact of the technology on the operation are understood and can be accurately accounted for by FRA in its decision. FRA does not intend this regulation to provide a forum for a railroad to gain approval for use of new technologies that are not already in use. As explained in the background section, railroads that want to use leading-edge rail automation technology should petition for a waiver of FRA's safety rules.
Proposed paragraph (b)(12) would require that each railroad with a legacy one-person operation must already have or add certain rules or practices that apply to the one-person train crew operation, but do not apply to train crew operations with two or more crewmembers. These specific proposed requirements are based on FRA's statement in the background section explaining that FRA would expect to approve the continuation of a freight operation if it met certain characteristics that INRD used to describe its one-person train crew operation. As these requirements are also proposed for the specific freight train exceptions to the two-person crew requirement in § 218.129(b), the section-by-section analysis for that proposed requirement is applicable here and will not be repeated.
Proposed paragraph (b)(13) would require a railroad's petition to include a disabled-train/post-accident protocol that quickly brings railroad employees to the scene of a disabled train or accident unless the railroad is conducting a passenger train operation that is required to comply with the passenger train emergency preparedness requirements in 49 CFR part 239. In multiple places in the background section, it was explained that without a second crewmember to take mitigation measures, a one-person train crew could be slower to respond to emergencies than a two-person crew but that the railroad could be as effective by implementing a disabled-train/post-accident protocol. FRA does not currently require freight railroads to adopt and comply with a disabled-train/post-accident protocol, although FRA anticipates that some legacy freight operations already maintain the equivalent within their own rules and practices. Thus, for purposes of continuing a legacy one-person freight operation, FRA proposes to require each railroad to submit such a protocol that it has implemented when filing its petition. FRA expects that some railroads already have such a protocol in place and others may need to develop one. Such a proposed protocol must describe the role and responsibilities of
Proposed paragraph (b)(14) would require a petition for special approval to include five (5) years of accident and incident data for the operation as identified in paragraph (b)(2) of this section, or at least the accident and incident data for the operation from the date the operation was established if the operation was established between 2 to 5 years before the effective date of a final rule. Although FRA requires railroads to report these accidents/incidents under 49 CFR part 225, FRA cannot accurately determine from that reported information which, if any, reportable accidents/incidents are attributable to a railroad's one-person train operation. FRA expects that each railroad will have more information about its own accidents/incidents and can flag the data that applies to the one-person train operation it is petitioning for special approval. The reference in the proposed requirement to paragraph (b)(2) of this section is intended to have the railroad narrow the requested data to the location of the continuing operation that the railroad has identified in its petition. As proposed, FRA does not want to receive accident/incident data unless it pertains to the one-person train operation(s) the railroad's petition is addressing.
Proposed paragraph (b)(15) is a catch-all provision which serves as a reminder to railroads that they may submit any other information describing protections implemented to support the safety of the one-person train operation that the railroad wants to continue after FRA's proposed deadline passes. FRA expects that some railroads would have completed a risk assessment, a safety analysis, or compiled a safety data report before implementing the legacy one-person train operation that the railroad would now want to continue. To the extent that the railroad is willing to share that information with FRA, FRA would like to receive it. Such information would offer assurance that the railroad carefully considered safety issues before implementation and the availability of such information in the petition is expected to be favorably received.
Proposed paragraph (c) would specify that FRA may request any additional information, beyond what is provided in the petition, that it deems necessary. FRA does not expect to routinely request additional information when a railroad provides the minimum required information listed in paragraph (b). However, FRA may need information clarifying what is provided or FRA may have follow-up questions when the information provided in the petition raises additional safety concerns.
This proposed section addresses the requirements for initiation of a train operation staffed with fewer than two crewmembers that is not otherwise prohibited or permitted by the other requirements of subpart G. For instance, except for operations permitted under §§ 218.125 through 218.131, proposed paragraph (a)(1) prohibits a railroad from conducting a train operation with fewer than two crewmembers unless it receives special approval under subpart G.
Proposed paragraph (a)(2) addresses the additional general requirements for passenger railroads seeking to begin train operations with fewer than two crewmembers. Because passenger railroads must comply with the existing regulatory requirement to adopt and comply with a written emergency preparedness plan approved by FRA under 49 CFR part 239,
Proposed paragraph (b) contains the minimum petition requirements for a railroad to request FRA's approval to initiate a train operation with fewer than two crewmembers. FRA expects that a petition meeting these minimum requirements will contain sufficient information for FRA to determine whether the operation is consistent with railroad safety.
Proposed paragraphs (b)(1) through (14) would require essentially the same minimum requirements for a new operation special approval petition as FRA is proposing for a railroad's special approval petition requesting continuance of a legacy one-person freight train operation in § 218.131(b)(1) through (14). The differences between these 14 paragraphs in the new operation and legacy operation proposed petition requirements are contextual in that a new operation cannot be initiated until the railroad has obtained FRA's approval to initiate the operation as proposed, while a railroad petitioning for FRA approval of a legacy operation may continue its operation while FRA is considering its petition. Given these similarities, for more background on proposed paragraphs (b)(1) through (14) of this section, please see the discussion of paragraphs (b)(1) through (14) of proposed § 218.131.
The significant difference between the filing requirements for a new operation versus a legacy operation is paragraph (b)(15) of each relevant section. For a legacy operation, proposed paragraph (b)(15) of § 218.131 is a catch-all
Proposed § 218.135 contains the minimum proposed requirements for a railroad's risk assessment required under subpart G. Generally, the goal of a risk assessment is to assess risk in an objective manner by following a decision-making process designed to systematically identify hazards, assess the degree of risk associated with those hazards, and based on those assessed risks, identify and implement measures to minimize or mitigate the risks to an acceptable level. In the context of this rulemaking, a risk assessment is the process of determining, either quantitatively or qualitatively, the level of risk associated with a proposed train operation staffed with fewer than two crewmembers, including mitigating the risks to an acceptable level. In this NPRM, FRA is proposing a process specific to analyzing the risks of train operations with fewer than two assigned crewmembers. While the proposed process and methodology are taken from existing standards in transportation and other industries, they are tailored to the specific context of this rulemaking.
FRA is proposing that a railroad's risk assessment be required to identify and account for the risks associated with: (1) the overall operating environment and all operating conditions associated with the proposed operation; and (2) all functions the proposed operation would require to be performed by a crewmember and/or equipment involved in a train's operation that may affect the safety of the operation. As proposed, § 218.135(a) sets the minimum standards for the content and analysis requirements for the required risk assessment. As proposed, however, paragraph (a) would allow a railroad to use alternative risk assessment methodologies and/or procedures if approved by the Associate Administrator.
Specifically, proposed paragraph (a) would require a railroad's risk assessment to contain six elements: (1) a complete description of the proposed operating environment; (2) a list and description of all functions, duties, and tasks associated with the operation of a train as proposed, performed by the crewmember, other railroad employee(s), or equipment, including at a minimum, any function performed; (3) a description of the allocation of all functions, duties, and tasks to the one crewmember, other railroad employee(s), or equipment; (4) a hazard analysis of train operation functions, duties, and tasks; (5) a risk matrix that classifies the severity and likelihood of each partially mitigated or unmitigated hazard; and (6) a risk report of the proposed train operation staffed with fewer than two crewmembers documenting the basis for acceptability of all partially mitigated or unmitigated hazards.
Understanding the specific operating conditions under which a train crew with fewer than two crewmembers would be required to operate is critical to identifying potential hazards and the risks associated with those hazards. Accordingly, paragraph (a)(1) requires a complete description of the operating environment, including, at a minimum: all authorized methods of operation;
Proposed paragraphs (a)(2) and (3) would require a risk assessment to contain a list and description of all functions, duties, and tasks associated with the operation of a train with fewer than two crewmembers that are performed by the one crewmember, other railroad employee(s), locomotive equipment or components, or operating and control systems; and identification of the allocation of those functions, duties, and tasks. Just as understanding the specific operating environment in which a fewer than two-person crew would be required to operate is critical to any risk assessment process, identifying the specific functions, duties, and tasks associated with operating in that environment is also critical, as is identifying the “division of labor” in performing those functions, duties, and tasks. Paragraph (a)(2) requires a railroad to identify and describe all functions, duties, and tasks performed by the crewmember, other railroad employee(s), or equipment (
Once all functions, duties, and tasks are identified and described under proposed paragraph (a)(2), proposed paragraph (a)(3) would require a railroad to identify the allocation of those functions, duties, and tasks to the crewmember, other railroad employee(s), or equipment. In other words, “who is responsible for doing what” must be identified. As the allocation of functions, duties, and tasks is completed, and it is confirmed whom or what performs specific functions, duties, or tasks, a railroad must also confirm whether there are additional measures, checks or procedures to confirm that the function, duty, or task is completed and performed correctly. This confirmation, and an understanding of what verification and validations steps are in place, are a critical input to the hazard analysis required by proposed paragraph (a)(4). For example, before a train departs, a single crewmember may be responsible for managing train make-up and obtaining a copy of the train consist and other relevant documentation (
Using the information gathered in response to paragraphs (a)(2) and (3), proposed paragraph (a)(4) requires a railroad to complete a hazard analysis of train operating functions, duties, and tasks for operations with fewer than two crewmembers. A “hazard,” as defined in § 218.5, is an existing or potential condition that can lead to an unplanned event or series of events (
As proposed, a hazard analysis must consider the entire state of the proposed fewer than two crewmember operation (
As proposed, paragraph (a)(4) would require a hazard analysis to include four elements: (1) a hazard log, consisting of a comprehensive description of all hazards associated with the proposed train operation; (2) an assessment of each hazard in terms of the severity (
A hazard log is a way to track all hazards associated with the operation (
A hazard log must include sufficient supporting documentation to demonstrate that a robust process was used to identify hazards. A hazard log may include hazard sheets documenting how the hazard was identified, who identified the hazard, the probability and severity of each identified hazard, and how each hazard will be mitigated. If any identified hazard is not fully mitigated, the hazard log must contain documentation demonstrating the partially mitigated or unmitigated hazard remaining and the potential consequences of that remaining hazard.
A hazard log is a living document that must be maintained and updated to reflect the current operating environment. If new hazards are identified, the hazard log must be updated. Similarly, if operational changes are made in a way that introduces additional risk, the hazard log must be updated. Changes to a hazard log must be effectively managed,
FRA proposes that a railroad identify each hazard in its hazard analysis in terms of both severity and probability. The severity of an identified hazard is a measure of the hazard's consequences (
FRA requests comments on these proposed categories.
Proposed paragraph (a)(4)(iii) would require the hazard analysis to assess each identified hazard in terms of probability (
Quantitatively, Table 2 proposes to define each probability category in terms of the probability of a hazard occurring per 1,000 operating hours as follows:
A hazard's probability should be based on all relevant information gathered under proposed paragraphs (a)(1) through (3), and the appropriate probability level for any identified hazard is the likelihood of the occurrence of that hazard at any given time.
The assessment of each hazard's severity and probability is essential to any risk assessment, and as proposed, necessary to complete the risk assessment matrix and risk report that paragraphs (a)(5) and (6) would require.
Paragraph (a)(4)(iv) contains the final proposed component of a hazard analysis, a hazard mitigation analysis. As proposed, a railroad's hazard mitigation analysis would be required to identify sustainable mitigating actions and circumstances (
Once a hazard analysis is completed (including implementation and analysis of the effects of all mitigating measures), proposed paragraph (a)(5) requires a risk matrix ranking the severity and likelihood of each hazard that was not eliminated (
Using the severity and probability rankings of one number followed by one letter assigned to each hazard remaining after completion of the hazard mitigation analysis under proposed paragraph (a)(4)(iv) (shown in Figure 2, for example, as 1A, 2B, 3C, 4D), proposed paragraph (a)(5) requires a railroad's risk matrix to categorize the residual risk associated with each hazard into one of 20 different risk categories, ranging from category 1A (a hazard with potential catastrophic consequences likely to occur frequently) to category 4E (an improbable hazard with negligible consequences).
Proposed paragraph (a)(6) requires a risk report documenting the basis for acceptability of all hazards not eliminated through the risk assessment process,
As proposed, if a hazard cannot be fully mitigated and its matrix categorization falls into the unacceptable category (
Proposed paragraph (a)(6)(ii) provides for the categorization of certain risks as “acceptable under specific conditions” (
The title of the hazard category includes the phrase “under specific conditions” to emphasize that FRA's review will focus on the specific operating conditions identified in a railroad's special approval petition. FRA expects that the risk report and underlying hazardous analysis for any hazard in this category will demonstrate how the specific mitigating measures placed on the operation reduce the identified risk to a level that allowing the operation under the specific conditions proposed is consistent with railroad safety.
FRA recognizes that given every railroad's unique operating environment and the varied size and scope of different railroads' operations, what may be an acceptable risk for one operation, may not be an acceptable risk for another. For this reason, FRA expects the evaluation of hazards identified as “acceptable under specific conditions” to be very fact-based and focused on the specific facts of an operation, as demonstrated by the supporting evidence provided in a railroad's risk report and underlying hazard analysis. For example, if a Class III freight railroad, with limited operations over one track over which no other railroad operates, identifies the grade of that track as a specific hazard, reducing the speed of operations over that track may be an acceptable mitigation measure given the overall size and scope of the operation. However, if a Class I freight railroad with extensive operations over a specific track segment similarly identifies the grade of the track as a hazard and other railroads operate over the same track, reducing the speed of the proposed fewer than two-person operation over that track may not be an acceptable mitigation measure because the additional operations by different railroads over the same track may lead to increased risk given the speed of the other operations, the capacity of the track to handle operations at varying speeds, and potentially the resulting density of operations over the track. FRA would expect that a petitioning railroad with any hazard categorized as “acceptable under specific conditions” would specifically address in its petition how its train operation with fewer than two crewmembers would be consistent with railroad safety. For example, a railroad might emphasize that the operation will have set daily schedules to reduce crewmember fatigue or will arrange to keep the operation's trains moving to reduce blocked crossings in communities passed through.
It is possible that a hazard could properly be determined to be “acceptable under specific conditions” if a railroad adopts one or more safety measures that exceed the minimum Federal rail safety requirements, and the operational or equipment safety measures adopted are established, proven measures that will reduce the overall severity or probability of risks in the operation generally, even if the additional safety measures do not directly lessen the partially mitigated or unmitigated hazard identified. For example, if a short line freight railroad with a history of low-speed derailments were to invest in track improvements that raised its track class but agreed in its petition that the train operation with fewer than two crewmembers would not operate at the now higher maximum authorized speed allowable, the improvements in track could be considered a specific condition that would offset an identified derailment hazard.
Under the last risk assessment matrix category, proposed paragraph (a)(6)(iii), a hazard that is partially mitigated or unmitigated may simply be acceptable. If it is acceptable, FRA will not deny the petition for special approval if the hazard is appropriately categorized. Thus, the hazards in this category have known and acceptable risks based on their severity and probability. As with
Paragraph (b) provides that the Associate Administrator may approve alternative methodologies and/or procedures other than those required by paragraph (a) to assess the risk associated with an operation proposed under subpart G. If, after providing public notice of the request for approval and an opportunity for public comment on the request, the Associate Administrator finds that any such petition demonstrates that the alternative proposed methodology or procedures will provide an accurate assessment of the risk associated with the operation, proposed paragraph (b) provides that the Associate Administrator may approve the use of the proposed alternative(s). As noted earlier, FRA recognizes that standardized risk assessment processes, tools, and methodologies exist in the transportation industry and other industries. Although in this NPRM, FRA is proposing a process based on these widely accepted existing standards and has tailored the proposed process to the specific context of this rulemaking, FRA recognizes that other industry standards may exist that may be similarly tailored and used to achieve the same goal of this NPRM (
As with all aspects of this NPRM, FRA requests comment on the proposal to require risk assessments as part of the petition process for a railroad seeking FRA's approval to initiate a train operation with fewer than two crewmembers. FRA also requests comment on the specific risk assessment process proposed.
This section contains the proposed procedure to petition FRA for special approval for both one-person legacy train operations and the initiation of a new operation with fewer than two train crewmembers. Proposed paragraph (a) would require that each railroad submitting a petition to continue a legacy operation or initiate a new operation under proposed §§ 218.131 and 218.133 shall send the petition by email to
Proposed paragraphs (b) through (d) would establish a special approval procedure. FRA is proposing to use a process to gather public comment on a petition and ensure transparency in FRA's evaluation of any petition. FRA proposed a public comment period so that stakeholders, such as the railroad's employees, or businesses and communities adjacent to or served by the railroad, can provide relevant safety information or data. The special approval procedure has been used successfully in other FRA regulations.
Proposed paragraph (c) would provide a 60-day comment period for each petition. Proposed paragraph (c)(1) contains the minimum requirement that each comment must provide all relevant information and data in support of the commenter's position. As proposed in paragraph (c)(2), comments must be submitted electronically to the assigned docket noted in the applicable
Proposed paragraph (d) addresses the process for disposition of petitions. For instance, in paragraph (d)(1), FRA proposes that the Administrator may conduct a hearing on a petition using the same procedures the agency uses to conduct other hearings under its rules of practice.
Proposed paragraphs (d)(2) and (3) set the expectation that FRA will normally grant or deny a petition within 120 days of its receipt and a petition must not be implemented until approved. However, should FRA require additional information from the petitioning railroad, or need to investigate issues raised by commenters, a decision on the petition could be delayed. If there is a delay, as proposed, the petition will remain pending until FRA decides it. Further, as proposed in paragraph (d)(2), FRA may attach special conditions as deemed necessary to any approval under this section.
Once approved, a petition does not expire, although FRA provides in proposed paragraph (d)(2) that it may reopen consideration of the petition for cause stated. “For cause” is a legal term that, in this proposed context, means that FRA will not reopen a petition for consideration unless the agency provides a specific reason, along with all supporting evidence it has as justification for doing so. If FRA were to discover significant safety concerns regarding an approved operation, the discovery could trigger a “for cause” reopening of the petition. In that case, it is proposed in paragraph (d)(4) that FRA would reopen the petition by sending a written notice to the petitioner. In closing any petition reopened for consideration, or granting or denying a petition, FRA proposes to notify petitioners in writing and publish the decision in the docket.
FRA may also reopen consideration of the petition for cause stated by a railroad petitioner. For example, if FRA denies a petition, or grants a petition with special conditions, and the railroad disagrees with FRA's decision, the railroad may ask FRA to reopen consideration of the petition. A request to reopen a denied petition should include an explanation or evidence supporting why FRA's decision should be amended. Meanwhile, a request to reopen a petition that was granted with special conditions should include any challenge to the special conditions, including any alternative conditions the railroad is willing to accept if FRA were to modify the decision in a manner acceptable to the railroad. If a request to reopen the petition is made contemporaneously with FRA's initial decision, FRA is likely to provide notice to the petitioner and interested parties in the same docket rather than publish a new notice in the
Proposed paragraph (e) would require a railroad that intends to materially modify an operation that has previously received FRA's special approval under this section to submit a description of how it intends to modify the operation, along with either a new or updated risk assessment accounting for the identified proposed modifications. Proposed paragraphs (e)(1) through (3) describe how FRA defines a material modification in this context. For instance, a modification is material if it is a change to a railroad's operations, infrastructure, or locomotive control or risk mitigation technology, that may affect the safety of the operation. A
FRA is mindful the special approval procedures take time and may be a source of uncertainty for railroads wishing to operate with less than two person crews; however, FRA believes the procedures are necessary to ensure those operations are performed safely. FRA would appreciate comment on how to improve the proposed special approval procedures to help reduce uncertainty and ensure timely approval of operations with fewer than two crew members that are determined to be safe.
This proposed section would require railroads that receive special approval under either § 218.131 or § 218.133 to conduct a formal, annual review and analysis of the FRA-approved train operation(s) with fewer than two crewmembers and annually provide a report of that reviews' findings and conclusions to FRA. FRA proposes that a railroad receiving special approval under subpart G will be required to complete its formal annual review and analysis no later than March 31 of each year, with the first report being due March 31 of the first year following FRA's approval of the petition. FRA expects that tracking and creating an annual report with this type of information as proposed will help identify trends or problems that are not consistent with railroad safety, but that may be acceptable under specific conditions. FRA would appreciate comments on this proposed requirement, including comments on whether three months will provide sufficient time to produce a report. FRA is also considering an alternative option that would require an annual report deadline depending on when each railroad receives FRA-approval to begin a one-person train operation;
Proposed paragraph (b) lists the formal review and analysis requirements that a railroad must include in its annual report for any FRA-approved train operation with fewer than two crewmembers. Each listed safety data item is proposed for inclusion because it will provide insight into the safety of the operation and track meaningful changes. For example, proposed paragraph (b)(1)(i) would require a railroad with an approved petition to provide the total number of FRA-reportable accidents/incidents under part 225 of this chapter. FRA does not want the total to double-count any single incident and therefore included a proposed requirement in paragraph (b)(1)(i) to prevent railroads from making that mistake. Under that same proposed paragraph, FRA would require that the data be subtotaled by whether the accident/incident occurred at a highway-rail grade crossing or not, as well as track the subtotals of accidents/incidents by State and cause separately.
Proposed paragraphs (b)(1)(ii) through (vii), (x), (xiii), and (xiv) concern data of the type that FRA routinely collects and makes available on its safety data and reporting website.
Proposed paragraphs (b)(1)(viii), (ix), (xi), and (xii) would require a railroad to include in its annual report the total number of certain types of occurrences involving a train with a fewer than two-person crew that would provide additional insight into how effective the railroad is in addressing certain types of safety hazards as well as how frequently these problems occur. For instance, proposed paragraph (b)(1)(viii) would require a railroad to report the total number of instances where a railroad employee did not comply with a railroad rule or practice applicable to the FRA-approved train operation(s) with fewer than two crewmembers, but not applicable to train crew operations with two or more crewmembers. FRA would expect that tracking that data would provide insight into the effectiveness of each railroad's rules or practices particular to the one-person train crew operation. The same rationale applies to proposed paragraph (b)(1)(ix) which would require a railroad to report the total number of instances where a person certified as both a locomotive engineer and conductor had a certification revoked for violation of an operating rule or practice that occurred when the person was operating per an FRA-approved train operation with fewer than two crewmembers. If FRA did not specifically propose a requirement for that data, it would be difficult for FRA to ascertain whether locomotive engineers operating as one-person train crews were involved in significant operating rule or practice
In addition to the proposed requirements for structured data, FRA proposed in paragraph (b)(2) that each instance described in paragraphs (b)(1)(i) through (xii) be sufficiently identified by date and location, and that a description of each event be provided. The proposed requirement for additional details would enable FRA to have greater insight into the types of instances that are occurring on each railroad and whether additional FRA action is warranted. For example, a description of an instance would help understand whether a second-crewmember could have helped prevent the instance or other remedial action would further reduce the risk of a hazard under a risk assessment.
Proposed paragraph (c) would require both legacy railroads and railroads initiating a new operation with fewer than two train crewmembers to include a written confirmation in its annual report to FRA that the operation remains unchanged or, if the operation has changed, a new or updated risk assessment. For new operations that completed a risk assessment, the proposed written confirmation must specify that no calculations or assumptions have changed requiring an updated risk assessment meeting the same requirements as the initially filed risk assessment. For legacy railroad operations that are not required to file a risk assessment with FRA as proposed, FRA proposes that these railroads provide FRA with annual, written confirmation that the operation remains substantially the same as described in the railroad's applicable special approval petition and that no technology changes have been implemented, or new or additional hazards identified. If a legacy railroad's operation has changed, it is proposed that the railroad must prepare and submit a risk assessment—even though a risk assessment would not be initially required for the legacy railroad operation. FRA's rationale for this proposed requirement is that substantial changes to the legacy operation would essentially change the operation to a new operation. FRA's prior approval would have been based on the safety and compliance record of the prior operation, not the new, substantially changed operation. Thus, a risk assessment is warranted to objectively determine the safety of any new operation.
FRA is interested in any technology changes because analysis may later reveal that the technology added tasks for a one-person train crew and led to a loss of situational awareness, or that the technology added a welcome redundancy. A new risk assessment of a technology would help understand when a change took place and then enable safety comparisons for before and after the technology change is implemented.
Proposed paragraph (c)(1) would require a railroad, with an approved petition, to revise or conduct a new risk assessment to help ensure the railroad is identifying any new hazards, and adjusting the risk calculations of existing hazards that have changed since the railroad's special approval petition was approved. For example, the operation may be serving more customers, and thus doing more switching. Another example of a new hazard or risk adjustment would be that a new customer is shipping hazardous materials of types and quantities not previously transported by the railroad. Still another new hazard or risk adjustment might be the addition of joint operations with another railroad that were not initiated until after FRA granted the railroad's special approval petition. In addition, in paragraph (c)(2), FRA proposed that any new or updated risk assessment submitted in accordance with this paragraph must include a written plan and schedule for implementing any mitigations required to address any newly identified hazards.
In paragraph (d), FRA proposed that it will review and respond to a railroad's annual report submission by September 30 of the year it is submitted. If necessary, FRA's response may include advice or recommendations. If a railroad's annual report submission suggests that the petition does not comply with the requirements of subpart G or that the operation is no longer consistent with railroad safety, FRA may reopen consideration of the petition under § 218.137.
This proposed rule is a significant regulatory action within the meaning of Executive Order 12866. Details on the estimated costs of this NPRM can be found in the Regulatory Impact Analysis (RIA), which FRA has prepared and placed in the docket (FRA-2021-0032).
FRA is proposing regulations establishing minimum requirements for the size of train crew staffs depending on the type of operation. A minimum requirement of two crewmembers is proposed for all railroad operations, with exceptions for those operations that FRA believes do not pose significant safety risks to railroad employees, the general public, or the environment by using fewer than two-person crews.
The proposed rule prescribes minimum requirements for the location of a crewmember that is not operating the train and promotes safe and effective teamwork. In addition, FRA proposes processes to allow railroads to continue operations with one-person train crews, and allow railroads to establish new operations with fewer than two crewmembers when the exceptions do not apply. FRA is not certain about the effect that the proposed rule would have on the total number of operations with crews of fewer than two persons relative to the number that would occur in the baseline without the rule.
The RIA presents estimates of the costs likely to occur over the first 10 years of the proposed rule. The analysis includes estimates of costs associated with special approvals, risk assessments, annual railroad responsibilities after receipt of special approval, and Government administrative costs.
FRA estimated 10-year costs of $2.0 million discounted at 7 percent. The annualized cost would be $0.3 million discounted at 7 percent. The following table shows the estimated 10-year costs of the proposed rule.
While FRA has qualitatively discussed the benefits in the RIA, it does not have sufficient data to monetize those benefits. The primary benefit of this rule is that it would ensure that railroads evaluate and address any potential safety concerns before moving to a train operation with fewer than two crewmembers. The safety of these trains could be eroded if a crew with fewer than two persons operates without accounting for additional risks. The proposed rule would help ensure that train crew staffing does not result in inappropriate or unacceptable levels of safety risks to railroad employees, the public, and the environment.
The Regulatory Flexibility Act of 1980
FRA invites all interested parties to submit data and information regarding the potential economic impact on small entities that would result from adoption of the proposals in this NPRM. FRA particularly encourages small entities that could potentially be impacted by the proposed amendments to participate in the public comment process. FRA will consider all information and comments received in the public comment process when making a determination of the economic impact on small entities.
FRA is concerned with the ability of railroads to utilize operations with fewer than two crewmembers without notifying FRA. Railroads may not be considering the adverse safety impact that fewer crewmembers will have. This NPRM would require two crewmembers unless certain exceptions are met. This proposed rule would ensure that railroads examine railroad safety with respect to crew size and work with FRA for special approval for operating trains with fewer than two crewmembers. If FRA did not issue the rule as proposed, railroads would be generally free to operate trains with fewer than two crewmembers, and States could also enforce varying crew size safety requirements.
This proposed rule would help FRA ensure that safety is not adversely affected when initiating train operations with fewer than two crewmembers. The annual railroad responsibilities would provide FRA information regarding train operations with fewer than two crewmembers on an annual basis that may be able to improve safety.
FRA is proposing regulations concerning train crew size safety requirements based on the statutory general authority of the Secretary. The general authority states, in relevant part, that the Secretary “as necessary, shall prescribe regulations and issue orders for every area of railroad safety supplementing laws and regulations in effect on October 16, 1970.”
The Regulatory Flexibility Act of 1980 requires a review of proposed and final rules to assess their impact on small entities, unless the Secretary certifies that the rule would not have a significant economic impact on a substantial number of small entities. “Small entity” is defined in 5 U.S.C. 601 as a small business concern that is independently owned and operated and is not dominant in its field of operation. The U.S. Small Business Administration (SBA) has authority to regulate issues related to small businesses, and stipulates in its size standards that a “small entity” in the railroad industry is a for profit “line-haul railroad” that has fewer than 1,500 employees, a “short line railroad” with fewer than 1,500 employees, a “commuter rail system” with annual receipts of less than $16.5 million dollars, or a contractor that performs support activities for railroads with annual receipts of less than $16.5 million.
Federal agencies may adopt their own size standards for small entities in consultation with SBA and in conjunction with public comment. Under that authority, FRA has published a proposed statement of agency policy that formally establishes “small entities” or “small businesses” as railroads, contractors, and hazardous materials shippers that meet the revenue requirements of a Class III railroad as set forth in 49 CFR part 1201, General Instruction 1-1, which is $20 million or less in inflation-adjusted annual revenues,
When shaping the proposed rule, FRA considered the impact that the proposed rule would have on small entities. FRA has provided exceptions to the two-person crew requirement which would limit the impact on small entities. In addition, tourist train operations that are not part of the general system may operate with one-person crews.
The proposed rule would be applicable to all railroads, although very few railroads would be affected. FRA estimates there are 744 Class III railroads, of which 704 operate on the general system. These railroads are of varying size, with some belonging to larger holding companies. Currently, nine railroads operate one-person crews; six of which are Class III railroads. Most small railroads would qualify for an exception under section 218.129 which allows for one-person operations if a railroad has under 400,000 employee hours annually and operates less than 25 mph. FRA estimates that 25% of railroads submitting special approval requests each year to initiate operations with fewer than two crewmembers would be Class III railroads.
Railroads would be required to submit information to FRA for special approval to operate trains with fewer than two crewmembers. FRA estimates that small railroads would require the same number of hours to complete the special approval request as Class I and Class II railroads. The risk assessment burden may be slightly less than larger railroads, but the average of 120 hours seems to encompass all operations, large and small.
Small railroads would likely have fewer hazards to address as the operation with fewer than two crewmembers may be smaller and less complex than larger railroads' operations. This would ease some of the burden on small railroads and may encourage more short line railroads to initiate train operations with fewer than two crewmembers.
The risk assessment and annual railroad responsibilities would be prepared by a professional or administrative employee. The burdened hourly compensation rate of a railroad employee who performs those duties is $77.44. The special approvals would be prepared by executives, officials, and staff assistants. The hourly compensation rate of a railroad employee who performs those duties is $115.24. The type of professional skills needed by these employees includes the ability to plan and organize work. Such an employee would also need good verbal and written communication skills and attention to detail.
Railroads with one-person train operations that were being conducted at least two years before the effective date of the final rule, and that are not otherwise prohibited from operating one-person operations, may continue those operations by filing a special approval petition containing a description of the operation. This process is described in § 218.131 of the proposed rule. FRA would review the information provided, and grant or deny approval to operate with fewer than two crewmembers.
FRA is currently aware of nine one-person train crew operations. Six of these railroads are Class III railroads. Each of these railroads would be required to submit information for special approval to continue those operations. Each special approval would require approximately 40 hours of railroad time. The following table shows the costs for special approval for these six existing one-person operations by Class III railroads. The total cost for special approvals for Class III railroads with existing one-person operations would be $27,657. That cost would only be incurred in the first year of the analysis.
In order to initiate an operation with fewer than two crewmembers, a railroad must apply for special approval as required by § 218.133. Railroads must submit the appropriate data or analysis so FRA can determine whether the train operation proposed is consistent with railroad safety. New technologies or alternative intervention from railroad employees could be included in the proposed rule to ensure that the operation with fewer than two crewmembers would not negatively impact safety.
Railroads must include a description of a disabled-train/post-accident protocol that quickly brings railroad employees to the scene of a disabled
The estimated cost to railroads for each special approval would be $5,531. The following table shows the costs for special approval for new operations.
FRA estimates that two new operations would commence in year 1 with fewer than two crewmembers. There would be an estimated 25% annual increase in the number of new operations with fewer than two crewmembers.
FRA estimates that 25% of new operations with fewer than two crewmembers would be on Class III railroads. The following table shows the number of new one-person operations per year.
The following table shows the 10-year estimated costs for special approvals for new operations with fewer than two crewmembers, for Class III railroads.
The cost for special approval for new operations with fewer than two crewmembers would be $127,222 over the 10-year analysis. The discounted value would be $85,687 (PV, 7 percent).
As part of the special approval process, railroads initiating new train operations utilizing fewer than two crewmembers would be required to conduct a risk assessment. The risk assessment must include a description of the proposed operation, a hazard analysis, and discussion of the tasks and functions of crewmembers.
Each risk assessment would require an average of 120 hours to complete. If a railroad applies for special approval for more than one train operation, the subsequent requests may take considerably less time than the initial request. This is especially true if the operating characteristics are similar between those operations.
The following table shows the cost for Class III railroads to conduct risk assessments.
Based on the estimated number of new operations with fewer than two crewmembers, the following table shows the 10-year estimated costs for risk assessments for Class III railroads.
The cost for risk assessments for new Class III railroad operations with fewer than two crewmembers would be $213,728 over the 10-year analysis. The discounted value would be $143,951 (PV, 7 percent).
If the risk assessment is incomplete or does not address all hazards presented by fewer than two-person operations, FRA may require a railroad to revise
FRA estimates that one small railroad's risk assessment would require a revision each year. Each revision would require approximately 24 additional hours of labor by the railroad. Once revisions are made, the special approval would once again be reviewed by FRA for a decision to be made.
The estimated cost for each risk assessment revision is shown in the table below.
The estimated total 10-year cost for risk assessment revisions for Class III railroads is $1,859. The discounted value is $1,011 (PV, 7 percent). The following table shows the costs for Class III railroads to revise risk assessments.
Legacy one-person operations would need to submit a risk assessment when a material modification is made. FRA estimates that this risk assessment would require approximately 120 hours of labor. Since only nine railroads currently operate trains with one-person crews, FRA estimates that only a small number would be required to perform a risk assessment over the 10-year analysis. Six of the nine railroads are Class III railroads. FRA estimates that one Class III railroad every other year would have a material modification to its operation and require a risk assessment.
The estimated total 10-year cost for risk assessments for Class III railroads would be $46,463. The discounted value would be $33,737 (PV, 7 percent). The following table shows the annual costs for legacy railroads that are performing a risk assessment.
As part of the proposed rule, railroads must update and resubmit their risk assessment 60 days before a “material modification” is made. A railroad that intends to materially modify an operation with fewer than two crewmembers would be required to submit a description of how it intends to modify the operation and an updated risk assessment accounting for the identified proposed modifications.
FRA estimates that approximately 15 percent of railroads would need to resubmit their risk assessment in any particular year. For these railroads, the burden for updating the risk assessment would be approximately 40 hours.
FRA calculated that the cost for updated risk assessments for new Class III operations with fewer than two crewmembers would be $40,268 over the 10-year analysis. The discounted value would be $25,549 (PV, 7 percent). The following table shows the annual costs for railroads that are resubmitting the risk assessment.
Each railroad that receives special approval for an operation with fewer than two crewmembers would be required to conduct an annual review and analysis, and report to FRA its findings and conclusions no later than March 31 of the following year.
As part of the annual railroad responsibilities in § 218.139, railroads must confirm that the risk assessment, including all calculations and assumptions, remains unchanged. This section also requires railroads to submit information about their specially approved operations collected over the course of the previous year.
The annual burden would be eight hours per train operation. The total estimated cost for annual railroad responsibilities for Class III railroads would be $69,694 over the 10-year analysis. The discounted value would be $46,979 (PV, 7 percent). The table below shows the annual costs for annual railroad responsibilities on Class III railroads.
The following table shows the annualized cost for Class III railroads that are conducting train operations with fewer than two crewmembers over the 10-year analysis period. The total annualized cost for all class III railroads would be $51,907 (PV, 7 percent).
The industry trade organization representing small railroads, ASLRRA, reports the average freight revenue per Class III railroad is $4.75 million.
The average annual cost for a Class III railroad that is operating with fewer than two-person crews would be $1,442. This represents a small percentage (0.03%) of the average annual revenue for a Class III railroad.
The estimates above show that the burden on Class III railroads would not be a significant economic burden. FRA requests comments on this estimate and will consider all comments when making a determination for the final rule.
FRA is not aware of any relevant Federal rule that duplicates, overlaps with, or conflicts with this NPRM. This proposed rule is complementary to, rather than duplicative of, other recent regulatory initiatives FRA has issued or is in the process of developing. These initiatives include: the implementation of positive train control (PTC) systems by required railroads;
This analysis considered two alternatives to the rule: the baseline approach, and a waiver process for FRA-approval of trains operating with fewer than two crewmembers. The baseline alternative (no action) would not ensure that safety is being considered by railroads when reducing crew size. There are many benefits to having two crewmembers in the locomotive. Without this rule, railroad operations may be less safe if railroads do not provide alternate measures to ensure safety is not eroded when reducing the number of crewmembers to fewer than two people.
A waiver process alternative requires a railroad seeking FRA-approval to file a petition containing adequate safety data, but does not require that the safety data include a risk assessment. Risk management is a method used to identify, control, and eliminate or reduce hazards to within a range of acceptability. The goal of a risk assessment is to assess risk in an objective manner by following a decision-making process designed to systematically identify hazards, assess the degree of risk associated with those hazards, and, based on those assessed risks, identify and implement measures to eliminate or mitigate the risks to an acceptable level. A waiver process alternative would remove the standardization and objectivity offered by a risk assessment, leaving it more difficult for FRA to consistently evaluate railroad operations with fewer than two crewmembers.
FRA is submitting the information collection requirements in this proposed rule to the Office of Management and Budget (OMB) for approval under the Paperwork Reduction Act of 1995.
All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA solicits comments concerning: Whether these information collection requirements are necessary for the proper performance of the functions of FRA, including whether the information has practical utility; the accuracy of FRA's estimates of the burden of the information collection requirements; the quality, utility, and clarity of the information to be collected; and whether the burden of collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology, may be minimized. For information or a copy of the paperwork package submitted to OMB, contact Ms. Hodan Wells, Information Collection Clearance Officer, at 202-493-0440. Organizations and individuals desiring to submit comments on the collection of information requirements should direct them via email to Ms. Wells at
OMB is required to decide concerning the collection of information requirements contained in this rule
Executive Order 13132, Federalism,
FRA has analyzed this proposed rule in accordance with the principles and criteria contained in Executive Order 13132. FRA has determined that this proposed rule has no federalism implications, other than the possible preemption of State laws under 49 U.S.C. 20106. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply, and preparation of a federalism summary impact statement for the proposed rule is not required.
The Trade Agreements Act of 1979
FRA has evaluated this proposed rule consistent with the National Environmental Policy Act
The main purpose of this rulemaking is to establish minimum requirements for the size of train crew staffs depending on the type of operation to maintain safety. This rule would not directly or indirectly impact any environmental resources and would not result in significantly increased emissions of air or water pollutants or noise. In analyzing the applicability of a CE, FRA must also consider whether unusual circumstances are present that would warrant a more detailed environmental review.
Pursuant to Section 106 of the National Historic Preservation Act and its implementing regulations, FRA has determined this undertaking has no potential to affect historic properties.
Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” and DOT Order 5610.2B
Under section 201 of the Unfunded Mandates Reform Act of 1995,
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.”
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, to
Occupational safety and health, Penalties, Railroad employees, Railroad safety, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, FRA proposes to amend chapter II, subtitle B of title 49 of the Code of Federal Regulations as follows:
49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; and 49 CFR 1.89.
(a) The purpose of this subpart is to ensure that each train is adequately staffed and has appropriate safeguards in place for safe train operations under all operating conditions.
(b) This subpart prescribes minimum requirements for the size of different train crew staffs depending on the type of operation and operating conditions. The minimum crew staffing requirements reflect the safety risks posed to railroad employees, passengers, the public, and the environment. This subpart also prescribes minimum requirements for the location of a second crewmember on a moving train and promotes safe and effective teamwork. Each railroad may prescribe additional or more stringent requirements in its operating rules, timetables, timetable special instructions, and other instructions.
(a)
(b)
(c)
(1) Twenty (20) or more loaded tank cars or loaded intermodal portable tanks of any one or any combination of hazardous materials identified in § 232.103(n)(6)(i)(B) of this chapter; or
(2) One or more car loads of rail-security sensitive materials (RSSM) as defined in § 1580.3 of this title.
(d)
(1) The train crewmember is on the train, except when the train crewmember cannot perform the duties assigned without temporarily disembarking from the train;
(2) The train crewmember and the locomotive engineer in the cab of the controlling locomotive can directly communicate with each other;
(3) The train crewmember can continue to perform the duties assigned; and
(4) The location does not violate any Federal railroad safety law, regulation, or order.
Except as provided in § 218.123(c), the following general exceptions apply to the requirements in § 218.123 for two-person crew staffing and the location of crewmember(s) when the train is moving. A train does not require a minimum of two crewmembers under the following conditions:
(a)
(b)
The following passenger and tourist train operations do not require a minimum of two crewmembers:
(a) The train is a tourist train operation that is not part of the general railroad system of transportation;
(b) A passenger or tourist train operation in which:
(1) The locomotive engineer is moving cars empty of passengers; and
(2) Passengers will not board the train's cars until the crew conducts a safety briefing on the safe operation and use of the train's exterior side doors, in accordance with § 238.135 of this chapter;
(c) A passenger or tourist train operation involving a single self-propelled car or married-pair unit,
(d) A rapid transit operation in an urban area,
(1) The operation is temporally separated from any conventional railroad operations;
(2) There is an FTA-approved and designated State Safety Oversight (SSO) Agency that is qualified to provide safety oversight; and
(3) The operator has an FTA/SSO-approved Public Transportation Agency Safety Plan in accordance with parts 673 and 674 of this title.
(a)
(b)
(1) A one-person train crewmember must remain in the locomotive cab during normal operations and may leave the locomotive cab only in case of an emergency affecting railroad operations;
(2) A one-person train crewmember must contact the dispatcher whenever it can be anticipated that radio communication could be lost,
(3) If the railroad cannot monitor the train's real-time progress, the railroad must have a method of determining the train's approximate location when communication is lost with the one-person crew;
(4) The railroad must establish a protocol for determining when search-and-rescue operations shall be initiated when all communication is lost with a one-person train crew;
(5) A one-person train operation's lead locomotive must be equipped with an alerter, as defined in § 229.5 of this chapter, and a one-person train crewmember must test that alerter to confirm it is working before departure;
(6) The dispatcher must confirm with a one-person train crewmember that the train is stopped before conveying a mandatory directive by radio transmission as required in § 220.61 of this chapter; and
(7) A one-person train crewmember must have a working radio on the lead locomotive and a redundant, electronic device appropriate for railroad communications as permitted in part 220, subpart C, of this chapter.
(c)
(1)
(i)(A) The average grade of any segment of the track operated over is less than 1 percent over 3 continuous miles or 2 percent over 2 continuous miles; and
(B) The total length of the train is no greater than 6,000 feet; or
(ii)(A) A second train crewmember, other than the locomotive engineer, is intermittently assisting the train's movements; and
(B) The second train crewmember and the locomotive engineer in the cab of the controlling locomotive can directly communicate with each other;
(2)
(3)
(i) The locomotive consist does not exceed 6,000 total working horsepower and is utilizing no more than 12 powering axles;
(ii) The train length, excluding locomotives, does not exceed 3,000 feet;
(iii) The train tonnage, excluding locomotives, does not exceed 4,000 tons;
(iv) The train does not exceed a total of 50 conventional cars or platforms, in any combination;
(v) The train does not contain more than 20 multilevel cars,
(vi) Movements are restricted from operating on any grade greater than 1 percent that extends for more than half a mile; and
(vii) The controlling railroad has developed air brake and train handling instructions governing these operations, and the remote control operator is required to comply with those instructions.
(a) Except as provided in § 218.123(c), a one-person train operation that has been established for at least two years before [EFFECTIVE DATE OF FINAL RULE], may continue if the railroad files a special approval petition under § 218.137, containing a description of the operation no later than [DATE 90 DAYS AFTER EFFECTIVE DATE OF FINAL RULE]. A railroad is not required to file a special approval petition if the one-person operation is limited to an exception covered by § 218.125, § 218.127, or § 218.129.
(b) The special approval petition shall, at a minimum, include the following:
(1) The name, title, address, telephone number, and email address of the primary person to be contacted regarding review of the special approval petition;
(2) The location of the continuing operation, with as much specificity as can be provided, as to industries or communities served, and track segments, territories, divisions, or subdivisions operated over;
(3) The class(es) of track operated over, the method of operation, and a list of the signal and train control systems, devices, and appliances installed and in operation;
(4) The locations of any track where the average grade of any segment of the track operated over is 1 percent or more over 3 continuous miles or 2 percent or more over 2 continuous miles;
(5) The maximum authorized speed of the operation;
(6) The approximate average number of miles and hours a single person operates as a one-person train crew;
(7) The maximum number of cars and tonnage set for the operation, if any;
(8) Whether the one-person operation is permitted to haul hazardous materials of any quantity and type, and the approximate percentage of carload traffic in the one-person operation that is hazardous materials;
(9) Whether any limitations are placed on a person operating as a one-person train crew. Such limitations may include, but are not limited to, a maximum number of miles or hours during a single tour of duty, or limitations placed on a person in coordination with a fatigue mitigation plan;
(10) Information regarding other operations traveling on the same track as the one-person train operation or that travel on an adjacent track. Such information shall include, but is not limited to, the volume of traffic and the types of opposing moves (
(11) A detailed description of any technology that is used to perform tasks typically performed by a second crewmember, or that prevents or mitigates the consequences of accidents or incidents;
(12) A copy of any railroad rule or practice that applies to the one-person train crew operation, but does not apply to train crew operations with two or more crewmembers. FRA will not approve a petition unless these railroad rules or practices include the following requirements:
(i) The one-person train crewmember must remain in the locomotive cab during normal operations and may leave the locomotive cab only in case of an emergency;
(ii) The one-person train crewmember must contact the dispatcher whenever it can be anticipated that radio communication could be lost,
(iii) If the railroad cannot monitor the train's real-time progress, the railroad must have a method of determining the train's approximate location when communication is lost with the one-person crew;
(iv) The railroad must establish a protocol for determining when search-and-rescue operations shall be initiated when all communication is lost with the one-person train crew;
(v) The one-person train operation's lead locomotive must be equipped with an alerter, as defined in § 229.5 of this chapter, and the one-person train crewmember must test that alerter to confirm it is working before departure;
(vi) The dispatcher must confirm with the one-person train crewmember that the train is stopped before conveying a mandatory directive by radio transmission as required in § 220.61 of this chapter; and
(vii) The one-person train crewmember must have a working radio on the lead locomotive and a redundant, electronic device appropriate for railroad communications as permitted in part 220, subpart C, of this chapter;
(13) A disabled-train/post-accident protocol that quickly brings railroad employees to the scene of a disabled train or accident. The protocol must describe the role and responsibilities of the one-person train crewmember and any other railroad employees, including supervisors, with responsibility to address a disabled train or accident. The proposed protocol must also describe any logistics and the railroad's expected response time(s). A passenger train operation with an approved emergency preparedness plan under part 239 of this chapter satisfies the requirement in this paragraph (b)(13);
(14) Five (5) years of accident and incident data, as required by part 225 of this chapter, for the operation identified in paragraph (b)(2) of this section or, for operations established less than five (5) years before [EFFECTIVE DATE OF FINAL RULE], accident and incident data for the operation from the date the operation was established; and
(15) Any other information describing protections provided in lieu of a second train crewmember, or relevant data or analysis, or both, for FRA to consider in determining whether approving the special approval petition is consistent with railroad safety.
(c) FRA may request any additional information, beyond what is provided in the petition, that it deems necessary.
(a)
(2) Passenger railroads seeking to begin train operations with fewer than two crewmembers must obtain FRA's approval under § 218.137 and have either:
(i) An approved passenger train emergency preparedness plan under part 239 of this chapter for the operation; or
(ii) An approved waiver from the passenger train emergency preparedness plan requirements as permitted under part 211 of this chapter. A passenger railroad may petition FRA for both a waiver under part 211 and special approval for initiation of train operations staffed with fewer than two crewmembers in the same filing.
(b)
(1) The name, title, address, telephone number, and email address of the primary person to be contacted regarding review of the special approval petition;
(2) The location of the operation, with as much specificity as can be provided, as to industries or communities served, and track segments, territories, divisions, or subdivisions operated over;
(3) The class(es) of track to be operated over, the method of operation, and a list of the signal and train control systems, devices, and appliances installed and in operation;
(4) The locations of any track where the average grade of any segment of the track operated over is 1 percent or more over 3 continuous miles or 2 percent or more over 2 continuous miles;
(5) The maximum authorized speed of the operation;
(6) The approximate average number of miles and hours a person is projected to operate as a train crewmember in a fewer than two-person train operation;
(7) The maximum number of cars and tonnage proposed for the operation, if any;
(8) Whether the operation will be permitted to haul hazardous materials (as defined by § 171.8 of this title) of any quantity and type;
(9) Whether any limitations will be placed on a person operating as a one-person train crew. Such limitations may include, but are not limited to, a maximum number of miles or hours during a single tour of duty, or limitations placed on a person in coordination with a fatigue mitigation plan;
(10) Information regarding other operations that may travel on the same track as, or an adjacent track to, the train operation staffed with fewer than two crewmembers. Such information shall include, but is not limited to, the volume of traffic and the types of opposing moves (
(11) A detailed description of any technology that will be used to perform tasks typically performed by a second crewmember, or that will prevent or significantly mitigate the consequences of accidents or incidents;
(12) A copy of any railroad rule or practice that will apply to the proposed train operation(s) with fewer than two crewmembers, but does not apply to train crew operations with two or more crewmembers;
(13) A disabled-train/post-accident protocol that quickly brings railroad employees to the scene of a disabled train or accident. The protocol must describe the role and responsibilities of the one-person train crewmember and any other railroad employees, including supervisors, with responsibility to address a disabled train or accident. The protocol must also describe any logistics and the railroad's expected response time(s). A passenger train operation with an approved emergency preparedness plan under part 239 of this chapter satisfies the requirement in this paragraph (b)(13);
(14) Five (5) years of accident and incident data, as required by part 225 of this chapter, for the operation identified in paragraph (b)(2) of this section, when operating with two or more crew members, or, for operations established less than five (5) years before [EFFECTIVE DATE OF FINAL RULE], accident and incident data for the operation from the date the operation was established;
(15) A risk assessment of the proposed operation that meets the requirements of § 218.135; and
(16) Any other information describing protections provided in lieu of a second train crewmember, or other relevant data or analysis.
(c)
(a)
(1) Contain a complete description of the railroad environment, including, at a minimum:
(i) All authorized method(s) of operation;
(ii) All applicable operating rules and practices;
(iii) Hours of operation;
(iv) Qualifications and certifications of crewmembers;
(v) Number and frequency of trains involved;
(vi) The tonnage, length, and makeup of the trains involved;
(vii) The route and terrain over which the trains will be operated (
(viii) Number and types of grade crossings;
(ix) Amount and types of hazardous materials to be transported, if any;
(x) The characteristics of the geographic areas through which the trains will operate (
(xi) Any other relevant factor.
(2) Contain a list and descriptions of all functions, duties, and tasks associated with the proposed operation to be performed by the one crewmember, other railroad employee(s), or equipment, including, at a minimum, any function performed:
(i) To prepare a train for operation (including, but not limited to, pre-departure inspections, obtaining track bulletins, orders, or manifests, managing the train consist, including train makeup, obtaining and ensuring the accuracy of the train consist, arming and testing the end-of-train device, and performing brake tests);
(ii) To operate a train (including, but not limited to, operating and controlling the train, interacting with non-crewmembers such as the dispatcher or roadway workers, and responding to emergencies or unexpected events); and
(iii) To ensure safety once a train has stopped moving (
(3) Describe the allocation of all functions, duties, and tasks to the one crewmember, other railroad employee(s), or equipment.
(4) Contain a hazard analysis for the proposed train operation's functions, duties, and tasks, including:
(i) A hazard log consisting of a comprehensive description of all hazards associated with the proposed train operation.
(ii) An assessment of each hazard in terms of the severity, measured as the worst-credible mishap resulting from the hazard and categorized in accordance with Table 1 to this paragraph (a)(4)(ii):
(iii) An assessment of each hazard in terms of probability of occurrence as defined in Table 2 to this paragraph (a)(4)(iii):
(iv) A hazard mitigation analysis outlining the sustainable actions and associated components, equipment, systems, or processes that are put in place to reduce or eliminate the probability or severity, or both, of each hazard. At a minimum, a hazard mitigation analysis must consider the following:
(A) The design of the system, equipment, and components, including equipment reliability and the necessary functions to be performed, in both a normal operation and in a failed state; and
(B) The human factors associated with the processes and tasks to be performed, including the required skills and
(5) A risk matrix in the format of Table 3 to this paragraph (a)(5) that classifies the severity and likelihood of each partially mitigated or unmitigated hazard as follows:
(6) A risk report of the train operation staffed with fewer than two crewmembers, documenting the basis for acceptability of all partially mitigated and unmitigated hazards identified in the matrix required by paragraph (a)(5) of this section. The risk report must, at a minimum, categorize the risk of each partially mitigated and unmitigated hazard as follows:
(i)
(ii)
(iii)
(b)
(a)
(b)
(c)
(1) Each comment shall provide all relevant information and data in support of the commenter's position.
(2) Each comment shall be submitted to FRA through
(d)
(2) A petition must not be implemented until approved. If FRA finds that the petition complies with the requirements of § 218.131 or § 218.133, as applicable, and that approving the petition is consistent with railroad safety, FRA will grant the petition, normally within 120 days of its receipt. If the petition is neither granted nor denied within 120 days, the petition remains pending for decision. FRA may attach special conditions to the approval of the petition. Following the approval of a petition, FRA may reopen consideration of the petition for cause stated.
(3) If FRA finds that a petition does not comply with the requirements of this subpart or that approving the petition would not be consistent with railroad safety, FRA will deny the petition, normally within 120 days of its receipt.
(4) When FRA decides a petition, reopens consideration of a petition, or closes a reopened petition, FRA will send written notice of the decision to the petitioner and publish that decision in the docket.
(e)
(1) To a railroad's operations, infrastructure, locomotive control technology, or risk mitigation technology, that may affect the safety of the operation;
(2) That would affect the assumptions underlying the risk assessment on which an FRA approval under this section is based; or
(3) That would affect the assumptions underlying the risk assessment's risk calculations or mitigations on which an FRA approval under this section is based.
(a) Each railroad that receives special approval under either § 218.131 or § 218.133 shall conduct a formal review and analysis each calendar year, of the FRA-approved train operation(s) with fewer than two crewmembers, and report to FRA its findings and conclusions from its review no later than March 31 of the following year to
(b) A railroad's annual report must include the safety data and information listed in paragraphs (b)(1) and (2) of this section for any FRA-approved train operation with fewer than two crewmembers.
(1) The total number of:
(i) FRA-reportable accident/incident under part 225 of this chapter, including subtotals for accidents/incidents that occurred at a highway-rail grade crossing and those that did not occur at a highway-rail grade crossing, and subtotals by State and cause. If an accident/incident was FRA-reportable for more than one reason (
(ii) FRA-reportable employee fatalities;
(iii) FRA-reportable employee injuries;
(iv) Trespasser fatalities at a highway-rail grade crossing;
(v) Trespasser injuries at a highway-rail grade crossing;
(vi) Passenger fatalities at a highway-rail grade crossing;
(vii) Passenger injuries at a highway-rail grade crossing;
(viii) Instances where a railroad employee did not comply with a railroad rule or practice applicable to the FRA-approved train operation(s) with fewer than two crewmembers, but not applicable to train crew operations with two or more crewmembers;
(ix) Instances where a person certified as both a locomotive engineer and conductor had a certification revoked for violation of an operating rule or practice that occurred when the person was operating per an FRA-approved train operation with fewer than two crewmembers;
(x) Accountable rail equipment accident/incident under part 225 of this chapter;
(xi) Instances when the railroad was required to implement its disabled-train/post-accident protocol for an FRA-approved train operation with fewer than two crewmembers;
(xii) Instances when a dispatcher unexpectedly lost communication with an FRA-approved train operation with fewer than two crewmembers;
(xiii) Employee hours worked; and
(xiv) Train miles.
(2) For each instance counted in the totals reported in paragraphs (b)(1)(i) through (xii) of this section, a railroad's annual report must clearly identify each instance by date and location and provide a complete factual description of the event.
(c) The annual report must also include written confirmation that the risk assessment for operations approved under § 218.133, including all calculations and assumptions, remain unchanged, or for an operation approved under § 218.131, written confirmation that the operation remains substantially the same as that described in the railroad's applicable special approval petition and that no technology changes have been implemented or new or additional hazards identified.
(1) If any risk assessment calculation or assumption changes for an operation approved under § 218.133, or an operation approved under § 218.131 is found to have substantially changed, a new or updated risk assessment meeting the requirements of § 218.135 must be prepared and submitted with the railroad's annual report. This annual reporting requirement does not negate the requirement to submit a new or updated risk assessment when making a material modification to an operation as required in § 218.137.
(2) Any new or updated risk assessment submitted in accordance with this paragraph (c) must include a written plan and schedule for implementing any mitigations required to address any newly identified hazards.
(d) FRA will review and respond to a railroad's annual report submission by September 30 of the year it is submitted. FRA's response may include advice or recommendations. FRA may reopen consideration of a petition under § 218.137 based on a finding that a railroad's annual report submission suggests that the petition does not comply with the requirements of this subpart or that the operation is no longer consistent with railroad safety.
Issued in Washington, DC.