The Energy Policy and Conservation Act, Public Law 94-163, as amended (“EPCA”), 1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B of EPCA  2 established the Energy Conservation Program for Consumer Products Other Than Automobiles. EPCA also grants DOE authority to establish coverage and prescribe energy conservation standards for additional consumer products. ( See 42 U.S.C. 6295(l)(1))

On June 14, 2022, the U.S. Department of Energy (“DOE”) published a request for information (“RFI”) regarding potential energy conservation standards for miscellaneous gas products (“MGPs”). In that RFI, DOE solicited information from the public to help DOE determine whether potential standards for miscellaneous gas products would result in significant energy savings and whether such standards would be technologically feasible and economically justified. DOE noted that such information would prove useful in the event DOE moved forward with a final coverage determination. Subsequently, in a final determination published on September 6, 2022 (“September 2022 Final Coverage Determination”), DOE determined that MGPs, which are comprised of decorative hearths and outdoor heaters, qualify as covered products under EPCA. 87 FR 54330.

DOE is publishing this NODA to get additional comment and input on the extensive data that has been collected to date and to help inform DOE as to whether energy conservation standards for MGPs would result in significant conservation of energy and be economically justified and technologically feasible, consistent with its obligations under EPCA.

In accordance with section 3(a) of 10 CFR part 430, subpart C, appendix A (“appendix A”), DOE notes that it is deviating from the provision in appendix A regarding the length of comment periods for the pre-NOPR stages for an energy conservation standards rulemaking. Section 6(d)(2) of appendix A specifies that the length of the public comment period for pre-NOPR rulemaking documents will not be less than 75 calendar days. For this NODA, DOE has opted instead to provide a 30-day comment period. In the June 2022 RFI, DOE initiated a review to determine whether potential energy conservation standards would satisfy the relevant requirements of EPCA for miscellaneous gas products. 87 FR 35925. The June 2022 RFI provided 30 days for submitting written comment, data, and information. In light of the previous 30-day comment period associated with the June 2022 RFI, DOE believes a 30-day comment period is appropriate and would provide interested parties a meaningful opportunity to comment on the clarifications, data, and accompanying analyses presented in this NODA.

This NODA presents various data that DOE has collected to date, through the June 2022 RFI, confidential manufacturer interviews, and other efforts. DOE intends to use this information to help determine whether energy conservation standards for MGPs would result in significant conservation of energy and be economically justified and technologically feasible.

In the September 2022 Final Coverage Determination, DOE established coverage for miscellaneous gas products and codified definitions for “miscellaneous gas products”, “decorative hearth product”, and “outdoor heater” in 10 CFR 430.2. 87 FR 54330. Specifically, DOE defined “miscellaneous gas products” to mean decorative hearth products and outdoor heaters. Further, DOE provided definitions for both decorative hearth products and outdoor heaters. A “decorative hearth product” means a gas fired appliance that—

(1) Simulates a solid-fueled fireplace or presents a flame pattern;

(2) Includes products designed for indoor use, outdoor use, or either indoor or outdoor use;

(3) Is not for use with a thermostat;

(4) For products designed for indoor use, is not designed to provide space heating to the space in which it is installed; and

(5) For products designed for outdoor use, is not designed to provide heat proximate to the unit.

And an “outdoor heater” means a gas-fired appliance designed for use in outdoor spaces only, and which is designed to provide heat proximate to the unit. 10 CFR 430.2.

In response to the June 2022 RFI, several commenters expressed confusion and/or concern related to the scope of a potential MGP energy conservation standard rulemaking. 3 (The American Public Gas Association, National Propane Gas Association, and American Gas Association (“Gas Associations”), No. 8 at p. 2; Hearth and Home Technologies and the Outdoor GreatRoom Company, No. 6 at p. 1; Hearth, Patio, & Barbecue Association (“HPBA”, No. 7 at pp. 3-4) For example, the Gas Associations stated that the June 2022 RFI did not provide enough information to determine which products would potentially be subject to a future energy conservation standard rulemaking.

DOE recognizes that a wide range of products meeting the definitions of decorative hearth product or outdoor heater (collectively, miscellaneous gas products) are available on the market, including, for example, vented gas log sets, gas fire pits, gas stoves, and gas fireplace inserts. And, while MGPs share similarities in form, function, and operation, DOE also recognizes that the different products that comprise MGPs may have different design characteristics, usage patterns, installation environments, and may offer differing utility for consumers. These factors can significantly influence an analysis of whether potential energy conservation standards would result in significant energy savings and would be technologically feasible and economically justified. In order to both provide more certainty for stakeholders regarding which MGPs would potentially be subject to energy conservation standards and ensure that DOE's analysis reflects the differences between certain types of MGPs, DOE has tentatively identified four distinct groups of MGPs for the purpose of conducting its energy conservation standard rulemaking analysis. The products within each representative group tend to have similar (or in some cases identical) ignition systems and are often certified to the same industry safety standards. The four groups of representative products are:

• Indoor vented gas log sets;

• Other indoor vented decorative hearth products (includes all other decorative hearth products that are not gas logs, including gas fireplaces, gas stoves, and gas fireplace inserts);

• Outdoor decorative hearth products (which includes outdoor decorative fireplaces, fire pits, fire bowls, fire columns, and fire tables); and,

• Outdoor patio heaters (which includes pyramid-style patio torch heaters, radiant patio torch heaters, and infrared heaters).

The first three representative product groups fall under the definition of “decorative hearth product” while the final group meets the definition of an “outdoor heater.” Performing separate analyses on each representative product group will enable DOE to better account for the differences among the products that comprise MGPs.

In addition to the general comments about the scope of potential energy conservation standards discussed in the prior paragraphs, commenters also had comments and questions about specific MGPs. For instance, some commenters requested additional clarity regarding the distinction between outdoor heaters and hearth heaters, especially in cases where a heater has a dual indoor and outdoor certification. (The Air-Conditioning, Heating, and Refrigeration Institute, No. 9 at p. 1; Madison Indoor Air Quality, No. 5 at pp. 1-2). In response, DOE notes that the definition for an outdoor heater requires that the appliance be “designed for use in outdoor spaces only”, and therefore a product that is certified for use both indoors and outdoors would not meet the definition of an outdoor heater. DOE also notes that hearth heaters, which are similar to decorative hearth products except that they are designed to provide heat to the indoor space in which they are used, 4 are not included within the scope of this NODA. Hearth heaters are addressed as part of a separate rulemaking process. 5

Commenters also sought clarification on whether gas lights would meet the definition of decorative hearth products because they present a flame pattern, are designed for outdoor use (at least), are not designed to be operated with a thermostat, and are not designed to provide heat proximate to the unit. (Hearth, Patio, & Barbecue Association, No. 7 at pp. 3-4) However, DOE has tentatively excluded gas lights from the current analysis due to a lack of information pertaining specifically to these products. Absent sufficient data, DOE has tentatively concluded not to analyze standards for these products at this time. Commenters also stated that if products with propane tanks include a continuous pilot, the pilot would not be left on because doing so would drain the fuel tank. (Hearth and Home Technologies and the Outdoor GreatRoom Company, No. 6 at p. 10) DOE agrees that continuous pilot lights are unlikely to be left on for products with propane tanks. DOE has tentatively concluded that portable propane products should not be included in this analysis because there would be minimal energy savings associated with removing standing pilots from these products.

Issue 1: DOE requests comment regarding these four representative product groups.

Issue 2: DOE requests comment on its tentative decision to exclude gas lights and portable propane products from the current analysis. DOE also requests comment on an appropriate definition for gas lights in order to distinguish them from other miscellaneous gas products, as well as data specific to gas lights. DOE also requests comment on whether any other products should be excluded from the current rulemaking.

DOE generally develops information in a market and technology assessment that provides an overall picture of the market for the products concerned, including general characteristics of the products, the industry structure, manufacturers, market characteristics, and technologies used in the products. This activity includes both quantitative and qualitative assessments, based primarily on publicly available information. The subjects addressed in the market and technology assessment include: (1) a determination of the scope of the rulemaking and product classes, (2) manufacturers and industry structure, (3) existing efficiency programs, (4) shipments information, (5) market and industry trends, and (6) technologies or design options that could improve the energy efficiency of the product. In this NODA, DOE presents initial findings from its review of the market and technologies for MGPs, as well as findings related to the design options that could improve the energy efficiency or reduce the energy consumption of MGPs.

As an initial step in analyzing the market for MGPs, DOE reviewed the market to identify the MGPs currently available and constructed a database of these products that includes information on their characteristics, such as whether the main burner is lit by a pilot ignition system or the main burner is lit directly without a pilot, ignition methods of the pilot (if applicable) or main burner ( e.g., electronic ignition, piezo ignition, etc.), pilot light control system (if applicable) ( e.g., continuous pilot, intermittent pilot, or pilot on demand), the main burner input rate, and other characteristics. Additional details about DOE's definitions of these features are discussed in section III.C.1.b. of this document. As a starting point in constructing a database for the current analysis, DOE reviewed the list of manufacturers identified in the technical support document (“TSD”) for a NOPR for hearth products published on February 9, 2015 (“February 2015 NOPR”). 6 ( See Docket EERE-2014-BT-STD-0036.) Although the scope of the February 2015 NOPR differed from the scope of MGPs, as defined in 10 CFR 430.2, DOE notes that many of the manufacturers identified for that analysis also manufacture MGPs. DOE collected information on MGPs available from many of these manufacturers from brochures, specification sheets, installation manuals, and other manufacturer literature available on manufacturer websites. DOE also reviewed the Natural Resources Canada (“NRCan”) database for gas fireplaces to identify additional manufacturers and models of MGPs. 7 Before adding any products from NRCan's database, DOE first ensured these products are available for sale in the United States. DOE supplemented data from NRCan's database with data gathered directly from manufacturer websites. Lastly, DOE reviewed retailer websites and conducted internet searches for MGPs to identify any additional manufacturers that were not identified in either the February 2015 NOPR or in NRCan's database and gathered information on their models. DOE notes that the scope of the February 2015 NOPR was different than the scope of this NODA, 8 and similarly, the definitions and scope of this NODA are not the same as the models listed in the NRCan database, which includes fireplace heaters. Therefore, DOE assessed each model individually and only included models in its database that meet the definition of MGPs. DOE's product database for MGPs currently includes information on over 3,500 models and 64 brands, but DOE is continuing to research additional manufacturers and models. To provide further context for the MGP market, the following paragraphs discuss the relevant domestic and international manufacturers of MGPs that DOE has currently identified.

The 64 brands of MGPs that DOE identified from its current database were found to be associated with 36 manufacturers. Many of these manufacturers import or privately label MGPs. From this list of manufacturers, DOE has so far identified 19 original equipment manufacturers (“OEMs”) with domestic manufacturing facilities for MGPs sold in the United States. Of those 19 OEMs with domestic manufacturing, 12 offer indoor vented gas log sets; 6 offer other indoor vented decorative hearths; 3 offer outdoor patio heaters; and 16 offer outdoor decorative hearths. DOE understands that many companies are OEM for key products but also source portions of their product offerings. Publicly available information was insufficient to consistently discern which specific product lines at a company are made versus private labeled.

Based on the DOE-compiled product database, DOE identified the manufacturers in Table III.1. DOE identifies OEMs with domestic manufacturing facilities with an asterisk.

Issue 3: DOE requests comment on the OEMs identified for each representative group: indoor vented gas log sets; other indoor vented decorative hearths; outdoor patio heaters; and outdoor decorative hearths. Additionally, DOE requests data on the number of OEMs with domestic production facilities for each group. DOE also requests comment on names of OEMs of MGPs that DOE did not identify in Table III.1.

DOE has identified several ignition system and pilot light technologies available on the market, which DOE has tentatively defined in order to provide a common understanding of these technologies between stakeholders and DOE for the purposes of this analysis.

DOE is aware of the following types of main burner ignition systems:

• Pilot ignition, in which the main burner is ignited by a pilot light; and

• Direct Main Burner Ignition, in which the main burner is ignited directly ( i.e. the absence of a pilot light).

Additionally, DOE is aware of the following ignition methods that can be utilized with either pilot ignition or direct main burner ignition:

• Electronic Ignition, in which an electronic spark automatically lights the pilot or main burner and which uses line power connection and/or battery power;

• Push-button Battery Ignition, in which a spark is manually generated by pushing a button to light the pilot or main burner and which uses energy from a battery to create the spark;

• Manually-lit Ignition, in which the pilot or main burner is manually lit using a match or lighter;

• Piezo Ignition, in which a piezo material creates a spark to ignite the pilot or main burner without the need for a battery or connection to line power; and,

• Hot Surface Ignition, in which a material that is heated through electricity is used to ignite the pilot or main burner.

Issue 4: DOE seeks comment regarding whether there are any ignition methods that are not captured in this section, or if any of the listed methods are not applicable to MGPs. DOE also seeks comment on whether the above descriptions for each ignition method accurately reflect the industry's understanding.

Additionally, DOE has observed the following types of pilot lights:

• Continuous pilot (or “ standing pilot” ), in which the pilot is capable of burning indefinitely until manually turned off;

• Intermittent or interrupted pilot, in which the pilot is automatically lit when it is needed to light the main burner, and it turns off automatically once the main burner turns off again or once the main burner is lit; and,

• Pilot on-demand, in which the pilot is automatically lit and burns continuously as long as the main burner is operated within a preprogrammed period of time ( e.g., 7 days) and the pilot is automatically shut off if the main burner is not operated within the preset time period.

Finally, DOE has found that some products are capable of using more than one of the ignition method or pilot light types described above. For example, DOE has observed products that provide an option to switch between intermittent pilot ignition, continuous pilot ignition, and/or on-demand pilot ignition. However, DOE notes that an MGP with an ignition system that features an option to select a continuous pilot mode, regardless of whether it can also operate in intermittent pilot and/or pilot on demand modes, meets DOE's definition of a continuous pilot system since it is capable of operating continuously until the pilot is manually extinguished. Further, such product would not meet the definition of an intermittent pilot or pilot on demand because the pilot will not necessarily turn off automatically when operating in continuous pilot mode.

Issue 5: DOE seeks comment regarding whether there are any pilot light technologies that are not captured in this section, or if any of the listed technologies are not applicable to MGPs. DOE also requests comment about any subsets of MGPs in which it would not be feasible to implement the aforementioned technologies. DOE also seeks comment on whether the above descriptions for each pilot light technology accurately reflect the industry's understanding. Finally, DOE seeks comment on the potential combinations of ignition systems and pilot lights that are available on the market, and on the prevalence of these combinations in each product group.

In its initial review of the market and technology, DOE has identified seven technology options that would be expected to improve the efficiency or reduce the energy consumption of MGPs, which include the following:

• Optimized air-to-fuel ratio. The mixture of air and fuel for combustion determines key flame aspects for many MGPs, in particular the flame color, height, and heat output. In order to achieve flame characteristics that mimic wood-burning flames, gas-fired MGPs utilize a “rich” mixture, that is, the ratio of air to fuel is low. For many natural gas products, primary air is in fact not pre-mixed, and what is burned is nearly 100 percent natural gas. This results in a tall yellow flame. For propane products, air is pre-mixed with fuel prior to combustion.

• Optimized burner port design. Gas burners for many MGPs comprise tubes with holes or slots through which the gas exits and combusts. The holes or slots are designed with particular sizes and patterns in order to achieve the desired flame pattern or aesthetic. While the primary objective of optimizing gas burner ports is to achieve the desired flame pattern, the ports could also be optimized to deliver an acceptable flame aesthetic while reducing the amount of fuel consumed.

• Improved simulated log design. Many MGPs incorporate cement, fiber, or ceramic logs that are designed to simulate the look of wood logs. The log shapes are optimized in conjunction with the burner design. The combination of the burner design and log shape, size, and placement results in the overall aesthetic for the product. Additionally, logs must be designed in conjunction with the burner to ensure that flames do not impinge on the logs themselves, as this causes the flame to cool and form soot. The log shape, size, placement, and material may be optimized to potentially impact the energy efficiency and/or energy use of products that include these design elements.

• Improved pan burner media/bead type. Many MGPs include an ember material that glows and radiates when heated. In pan type burners, sand is used to cover the burner and results in a flame pattern. In some products, glass beads may be used in place of simulated logs for effect. These media could potentially be selected to produce a satisfactory flame pattern while reducing the required gas consumption.

• Reflective walls and/or other components inside combustion zone. For MGPs that include a firebox or other enclosure, the interior walls could potentially be painted with a reflective coating. This could potentially give the illusion of more or taller flames, thereby reducing the fuel required to achieve a satisfactory aesthetic. This technology would only apply to the subset of products that include an enclosure surrounding the flame.

• Intermittent pilot. Intermittent pilot ignition systems are described in section III.C.1.b of this document and reduce the amount of fuel burned by the pilot when the main burner is not in use.

• Pilot on-demand. Pilot on-demand ignition systems are described in section III.C.1.b of this document and reduce the amount of fuel burned by the pilot when the main burner is not in use.

Issue 6: DOE requests comment regarding whether these technology options would impact the energy efficiency and/or energy use of MGPs. In addition, DOE requests comment on whether any other technologies are available to reduce the energy consumption of MGPs.

DOE uses the following five screening criteria to determine which technology options are suitable for further consideration in an energy conservation standards rulemaking:

(1) Technological feasibility. Technologies that are not incorporated in commercial products or in commercially viable, existing prototypes will not be considered further.

(2) Practicability to manufacture, install, and service. If it is determined that mass production of a technology in commercial products and reliable installation and servicing of the technology could not be achieved on the scale necessary to serve the relevant market at the time of the projected compliance date of the standard, then that technology will not be considered further.

(3) Impacts on product utility. If a technology is determined to have a significant adverse impact on the utility of the product to subgroups of consumers, or result in the unavailability of any covered product type with performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as products generally available in the United States at the time, it will not be considered further.

(4) Safety of technologies. If it is determined that a technology would have significant adverse impacts on health or safety, it will not be considered further.

(5) Unique-pathway proprietary technologies. If a technology has proprietary protection and represents a unique pathway to achieving a given efficiency level, it will not be considered further, due to the potential for monopolistic concerns.

10 CFR part 430, subpart C, appendix A, sections 6(b)(3) and 7(b).

If DOE determines that a technology, or a combination of technologies, fails to meet one or more of the listed five criteria, it will be excluded from further consideration in the engineering analysis.

DOE tentatively expects to screen out optimized air-to-fuel ratio, optimized burner report design, improved simulated log design, improved pan burner media/bead type, and reflective walls and/or other components inside combustion zone because of the potential negative impact on the aesthetics, and therefore utility, of MGPs. In contrast, DOE has tentatively determined not to screen out intermittent pilot ignition or pilot on-demand ignition.

Issue 7: DOE seeks comment regarding its tentative conclusion that only intermittent pilot ignition and on-demand ignition pass the screening criteria. DOE also requests comment on whether any other technology options should pass the screening analysis.

The purpose of the engineering analysis is to establish the relationship between the efficiency and cost of MGPs. There are two elements to consider in the engineering analysis; the selection of efficiency levels to analyze ( i.e., the “efficiency analysis”) and the determination of product cost at each efficiency level ( i.e., the “cost analysis”). In determining the performance of higher-efficiency products, DOE considers technologies and design option combinations not eliminated by the screening analysis. For each product class (or in this case, each representative product group), DOE estimates the manufacturer production cost (“MPC”) for the baseline as well as higher efficiency levels. The output of the engineering analysis is a set of cost-efficiency “curves” that are used in downstream analyses ( i.e., the life-cycle cost (“LCC”) and payback period (“PBP”) analyses and the national impact analysis (“NIA”)). In this NODA, DOE presents initial inputs and outputs for the engineering analysis and solicits relevant data and information.

As discussed in the June 2022 RFI, DOE is considering whether a prescriptive design requirement would be appropriate for MGPs. 87 FR 35925, 35929. As noted in section III.C.2 of this document, DOE has tentatively found that only intermittent pilot ignition and pilot on-demand ignition would pass the screening criteria. For this NODA, DOE tentatively focused its initial engineering analysis on the impacts of a prescriptive design requirement that would prohibit the use of a continuous pilot or pilot on-demand, as opposed to a performance-based design standard and associated test procedure, because an intermittent pilot ignition can reduce energy consumption of MGPs as compared to continuous pilot and pilot on-demand ignition systems.

Additionally, as discussed in section III.B of this document, for this analysis, DOE has tentatively divided MGPs into four representative groups for analysis. For each of these groups, DOE identified a baseline design that represents the most energy-consumptive designs typical of that group. Specifically, for each MGP product group, DOE has tentatively identified a standing pilot ignition system as a baseline design characteristic. DOE has received feedback from stakeholders that outdoor propane heaters which are not permanently installed should not be included in its analysis because the pilot on those units are not intended to stay lit when the product is not in use. In its market research, DOE did identify propane-burning products which provided instruction to extinguish the pilot when the unit is not in use. However, DOE notes that the tentative description of standing pilots which DOE is considering for this rulemaking (as discussed in section III.C.1.b) considers a standing pilot to be a pilot which is capable of burning indefinitely until manually turned off. DOE notes that pilot systems for outdoor propane heaters which provide additional instructions to extinguish the pilot light do not match the description of an intermittent pilot because the pilot is not necessarily extinguished automatically when the main burner is shut off. Therefore, DOE has tentatively included outdoor propane heaters in the analysis because they often include ignition systems that meet the description of standing pilots.

Additionally, for each of the four product groups, DOE conducted market research to evaluate what design options are often incorporated in conjunction with standing pilot ignition that provides basic functionality. Any components that are necessary for the product to ignite the main burner and provide the necessary functionality are included, while components that provide remote on/off functionality, variable flame height, etc. are not included. These design options are outlined in Table III.2.

Issue 8: DOE requests comment regarding the baseline design characteristics identified for each product group. DOE also requests comment regarding whether additional clarity is needed regarding the baseline design characteristics and the components in each design.

DOE then identified an alternative design for each product group that could reduce the energy consumption of a standing pilot light. As discussed, DOE tentatively focused its initial engineering analysis for this NODA on the impacts of a prescriptive design requirement that would prohibit the use of a continuous pilot or pilot on-demand ignition systems. Therefore, direct main burner ignition designs and other designs that do not include pilots would not be affected by this rulemaking. The design options typically found in products that include intermittent pilot ignition and that offer similar consumer utility as comparable products with constant pilot ignition systems are listed in Table III.3 for each of the four aforementioned product groups.

Issue 9: DOE requests comment regarding the alternate design characteristics identified for each product group.

For the current analysis, DOE plans to use physical teardowns to estimate the cost to replace a continuous pilot with an intermittent pilot. A physical teardown is an approach wherein DOE physically dismantles a commercially available product, component-by-component, to develop a detailed bill of materials (“BOM”) for the product. The BOMs incorporate all materials, components, and fasteners (classified as either raw materials or purchased parts and assemblies, and characterize the materials and components by weight, manufacturing processes used, dimensions, material, and quantity.

DOE uses the BOMs from the teardowns as inputs to calculate the MPC for the representative product for each product type and for each ignition type discussed in section. The materials and components in the BOMs are converted into dollar values using a computer cost model. DOE collects information on labor rates, tooling costs, raw material prices, and other factors as inputs into the cost estimates.

For this NODA, DOE has developed draft MPCs using teardowns of models from each of the for representative product groups. To compare only the cost difference between standing pilot and intermittent pilot models in each product group, DOE assessed the differences in major components including the gas valve, the pilot assembly (pilot, sparker, flame sensor, ignitor, thermocouple, etc.), the power supply, and the battery pack, as applicable. DOE did not include costs for additional features such as remote controls and accompanying remote receivers. Remote control functionality may be found more commonly on intermittent pilot ignition systems than on continuous pilot ignition systems, but are not necessary for either type of ignition system, and therefore DOE did not account for costs associated with such features.

For purchased parts, DOE estimates the purchase price based on volume-variable price quotations and detailed discussions with manufacturers and component suppliers. For parts fabricated in-house, the prices of the underlying “raw” metals ( e.g., tube, sheet metal) are estimated on the basis of 5-year averages to smooth out spikes in demand. Other “raw” materials, such as plastic resins, insulation materials, etc., are estimated on a current-market basis. The costs of raw materials are based on manufacturer interviews, quotes from suppliers, and secondary research. Past results are updated periodically and/or inflated to present-day prices using indices from resources such as MEPS Intl., 9 PolymerUpdate, 10 the U.S. geologic survey (“USGS”), 11 and the Bureau of Labor Statistics (“BLS”). 12 The cost of transforming the intermediate materials into finished parts is estimated based on current industry pricing.

The MPC is, in part, a function of the annual production volume since the production volume typically impacts the price the manufacture pays for sourced components. The production volumes used in this analysis are intended to reflect an average manufacturer in each product group and are shown in Table III.4.

The results of the engineering analysis performed for this NODA are shown in Table III.5. The MPCs of the “baseline design” reflect the cost to manufacture a basic design of a product that utilizes a continuous pilot in each category, while the MPC for the “alternate ignition system” reflects the MPC to manufacture an identical product that utilizes an intermittent pilot ignition system rather than a continuous pilot system. The MPC difference accounts for all design changes necessary to replace the continuous pilot system with the intermittent system.

Issue 10: DOE seeks comment regarding the estimated MPCs for each product group. Further, DOE seeks specific cost information and data about MGP ignition system components. These components include the gas valves, the pilot assembly, the power supply, and the battery pack.

Issue 11: DOE seeks feedback regarding the average production volumes used in this analysis, and whether these values are representative of the MGP market.

DOE converts MPC to the manufacturer selling price (“MSP”) by multiplying by the manufacturer markup. MSP is the price the manufacturer charges its first customer, when selling into product distribution channels. MSPs include direct manufacturing production costs ( i.e., labor, materials, and overhead estimated in MPCs), non-production costs ( i.e., SG&A, R&D, and interest), and profit.

The manufacturer markup accounts for manufacturer non-production costs and profit. DOE multiplied MPCs by an industry average manufacturer markup of 1.5 to estimate MSPs.

Issue 12: DOE requests feedback on the industry average manufacturer markup of 1.5 and whether this value is representative of the MGP market. Additionally, DOE requests feedback on whether the average manufacturer markups varies significantly across four groups: indoor vented gas log sets, other indoor vented decorative hearths, outdoor patio heaters; and outdoor decorative hearths.

The purpose of the energy use analysis is to determine the annual energy consumption of MGPs at different efficiencies in representative U.S. single-family homes, and multi-family residences, and to assess the energy savings potential of increased MGP efficiency. The energy use analysis estimates the range of energy use of MGPs in the field ( i.e., as they are actually used by consumers). The energy use analysis provides the basis for other analyses DOE performed, particularly assessments of the energy savings and the savings in consumer operating costs that could result from adoption of amended or new standards.

In order to estimate the energy consumption of standing pilot lights in MGPs, DOE must estimate the fraction of consumers that leave their standing pilots on all year long vs. those that shut off the standing pilot during some portion of the year. Table III.6 presents standing pilot usage data from a survey of hearth products in U.S. homes. 13 The average operating hours for standing pilot lights from this survey are 4593 hours per year. The survey primarily included respondents with indoor fireplaces, log sets, or stoves, although a small fraction of survey respondents had outdoor units. For outdoor decorative products, DOE does not have any data suggesting that standing pilot usage behavior is substantially different. For outdoor heaters, DOE assumed in the proposed and final coverage determination that standing pilot usage is 50 percent that of outdoor decorative hearth products. 87 FR 6786, 6791. For portable propane outdoor units, such as portable outdoor patio heaters, DOE assumes that standing pilots are never left on as that would quickly drain the portable tank.

As discussed in section III.C.1.b, an on-demand pilot will turn off automatically after a certain period of time (typically one week), but not immediately after the unit is turned off. Survey data  14 suggest that MGP users use their products at least once a week on average during the heating season and therefore the average period between last use and automatic turn-off is one week. As a result, on-demand pilot lights operate for a similar amount of time during the heating season as standing pilots.

Issue 13: DOE seeks comment regarding the estimated MGP operating hours for standing pilots.

The effect of new or amended energy conservation standards on individual consumers usually involves a reduction in operating cost and an increase in purchase cost. DOE used the following two metrics to measure consumer impacts:

• The LCC is the total consumer expense of an appliance or product over the life of that product, consisting of total installed cost (manufacturer selling price, distribution chain markups, sales tax, and installation costs) plus operating costs (expenses for energy use, maintenance, and repair). To compute the operating costs, DOE discounts future operating costs to the time of purchase and sums them over the lifetime of the product.

• The PBP is the estimated amount of time (in years) it takes consumers to recover the increased purchase cost (including installation) of a more-efficient product through lower operating costs. DOE calculates the PBP by dividing the change in purchase cost at higher efficiency levels by the change in annual operating cost for the year that amended or new standards are assumed to take effect.

In order to estimate the LCC and PBP for MGPs, DOE must estimate several input parameters including average product lifetime, repair and maintenance costs, and the distribution of different ignition types in the market.

In the February 2015 NOPR, DOE estimated that the average lifetime of MGPs was 15 years, with a minimum lifetime of 5 years and a maximum lifetime of 30 years. 15 This lifetime estimate was the same across all product categories. DOE continues to estimate the same average lifetime for MGPs.

In the February 2015 NOPR, DOE estimated repair costs for standing pilot lights and intermittent ignition systems. 16 These estimates are presented in Table III.7 and Table III.8, corrected to 2021$ using the Consumer Price Index. Labor hours are estimated from RSMeans 2022 data.

In the February 2015 NOPR, DOE estimated that approximately 14 percent of MGPs would experience an ignition system failure over the lifetime of the product. If the failure occurred in the first year, DOE assumed that the cost was covered by warranty; if the failure occurred between 2 and 5 years, the consumer only paid labor costs; and if the failure occurred after 5 years, the consumer paid labor and material costs for the repair. 17 DOE continues to estimate these same repair costs for MGPs.

In order to estimate the fraction of consumers impacted by an energy conservation standard at a given efficiency level, DOE must estimate the distributions across different efficiency levels in the market. A 2017 survey on hearth products in U.S. homes found that, at the time, most consumers had MGPs with a standing pilot, as seen in Table III.9. 18 A more recent examination of models available on the market (from retailer/manufacturer websites and product literature from manufacturers of MGPs, as discussed in section III.C.1.a) shows some variation among product groupings. In particular, there are fewer of Other Indoor Vented Decorative Hearths, Outdoor Decorative Hearths, and Outdoor Patio Heaters with a standing pilot. In particular, portable propane units that fall within outdoor decorative hearths and outdoor patio heaters do not have a standing pilot as that would quickly drain the propane tank. DOE does not intend to analyze these portable propane products. The updated estimates based on DOE's recent market research are shown in Table III.10.

Issue 14: DOE seeks comment regarding the estimated MGP lifetime, particularly if there are differences among product categories (such as indoor/outdoor products).

Issue 15: DOE seeks comment regarding the estimated MGP repair costs.

Issue 16: DOE seeks comment regarding the estimated distribution of ignition types among MGPs and the estimated fraction of products with main burners that are manually lit.

The NIA estimates the national energy savings (“NES”) and the net present value (“NPV”) of total consumer costs and savings expected to result from new standards at specific efficiency levels (referred to as candidate standard levels). 19 DOE calculates the NES and NPV for the potential standard levels considered based on projections of annual product shipments, along with the annual energy consumption and total installed cost data from the energy use and LCC analyses. For the present analysis, DOE projected the energy savings, operating cost savings, product costs, and NPV of consumer benefits over the lifetime of MGPs sold from 2029-2058.

DOE evaluates the impacts of new or amended standards by comparing a case without such standards with standards-case projections (“no-new-standards case”). The no-new-standards case characterizes energy use and consumer costs for each product class in the absence of new or amended energy conservation standards. For this projection, DOE considers historical trends in efficiency and various forces that are likely to affect the mix of efficiencies over time. DOE compares the no-new-standards case with projections characterizing the market for each product class if DOE adopted new or amended standards at specific energy efficiency levels for that class. For each efficiency level, DOE considers how a given standard would likely affect the market shares of product with efficiencies greater than the standard.

In order to estimate national impacts from 30 years of MGP shipments, DOE must project future MGP shipments for each product grouping based on historical shipments. For the February 2015 NOPR, DOE received total historical shipment data from HPBA, however these data included product categories that are not part of the current MGP analysis. 20 DOE notes that patio heaters were not included in the submitted shipment data. DOE received additional data from HPBA to clarify the categorization of some product groupings. From these data, DOE estimated the market shares of various product types as shown in Table III.12. Some of these product categories do not fall under the definition of MGP, therefore the corrected market shares of MGP product categories from the shipment data is shown in Table III.12. From these market share and historical shipment data, DOE estimates total historical MGP shipments as shown in Table III.13. DOE notes that outdoor portable propane units are included in these market share estimates and requests comment on their market share, so that they may be excluded from the analysis.

A more recent examination of models available on the market (from retailer/manufacturer websites and product literature from manufacturers of MGPs) based on DOE's current market database (as discussed in section III.C.1.a) shows some variation from the above market shares. These market shares are shown in Table III.14. DOE again notes that outdoor portable propane units are included in these market share estimates and requests comment on their market share, so that they may be excluded from the analysis.

Issue 17: DOE seeks comment regarding the estimated shipments of MGPs and the market shares of different MGP product categories. In particular, DOE requests comment on the market share of portable propane outdoor units so that they may be excluded from the analysis.

The purpose of the manufacturer impact analysis (“MIA”) is to identify and quantify the impacts of any potential new and/or amended energy conservation standards on manufacturers. DOE conducts the MIA in three phases, and further tailors the analytical framework based on the comments it receives. In Phase I, DOE creates an industry profile to characterize the industry and identify important issues that require consideration. In Phase II, DOE prepares an industry cash-flow model and considers what information it might gather in manufacturer interviews. In Phase III, DOE's contractors interview manufacturers and assesses the impacts of standards both quantitatively and qualitatively.

As part of DOE's rulemaking process, DOE's contractors reached out to MGP manufacturers to conduct confidential manufacturer interviews in 2022. The interviews covered a range of topics, including manufacturer key concerns, technology options, production costs, conversion costs, financial metrics, market shares, shipment levels, manufacturer markup, and competitive concerns. Given the sensitive nature of these topics, the interviews were conducted under nondisclosure agreement with DOE's contractors to ensure attributable data and sensitive business information was maintained as confidential. Only aggregate information was provided to the Department. DOE's contractors conducted interviews with manufacturers that sell product in each of the groups: indoor vented gas log sets, other indoor decorative hearth products, outdoor patio heaters, and outdoor decorative hearths. The interviews provided broadest coverage of indoor vented gas log set manufacturers. The interviews included manufacturers that account for 39% of indoor vented gas log sets models in the DOE-compiled product database.

DOE will accept comments, data, and information regarding this NODA no later than the date provided in the DATES section at the beginning of this document. Interested parties may submit comments, data, and other information using any of the methods described in the ADDRESSES section at the beginning of this document.

Submitting comments via www.regulations.gov. The www.regulations.gov web page will require you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

Do not submit to www.regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (“CBI”)). Comments submitted through www.regulations.gov cannot be claimed as CBI. Comments received through the website will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

DOE processes submissions made through www.regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that www.regulations.gov provides after you have successfully uploaded your comment.

Submitting comments via email, hand delivery/courier, or postal mail. Comments and documents submitted via email, hand delivery/courier, or postal mail also will be posted to www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information in a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via postal mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No telefacsimiles (“faxes”) will be accepted.

Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

Confidential Business Information. Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email two well-marked copies: one copy of the document marked “confidential” including all the information believed to be confidential, and one copy of the document marked “non-confidential” with the information believed to be confidential deleted. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

Issue 1: DOE requests comment on its tentative decision to exclude gas lights and portable propane products from the current analysis. DOE also requests comment on an appropriate definition for gas lights in order to distinguish them from other miscellaneous gas products. DOE also requests comment on whether any other products should be excluded from the current rulemaking.

Issue 2: DOE requests comment regarding these four representative product groups.

Issue 3: DOE requests comment on the OEMs identified for each representative group: indoor vented gas log sets; other indoor vented decorative hearths; outdoor patio heaters; and outdoor decorative hearths. Additionally, DOE requests data on the number of OEMs with domestic production facilities for each group. DOE also requests comment on names of OEMs of MGPs that DOE did not identify in Table III.1.

Issue 4: DOE seeks comment regarding whether there are any ignition methods that are not captured in this section, or if any of the listed methods are not applicable to MGPs. DOE also seeks comment on whether the above descriptions for each ignition method accurately reflect the industry's understanding.

Issue 5: DOE seeks comment regarding whether there are any pilot light technologies that are not captured in this section, or if any of the listed technologies are not applicable to MGPs. DOE also requests comment about any subsets of MGPs in which it would not be feasible to implement the aforementioned technologies. DOE also seeks comment on whether the above descriptions for each pilot light technology accurately reflect the industry's understanding. Finally, DOE seeks comment on the potential combinations of ignition systems and pilot lights that are available on the market, and on the prevalence of these combinations in each product group.

Issue 6: DOE requests comment regarding whether these technology options would impact the energy efficiency and/or energy use of MGPs. In addition, DOE requests comment on whether any other technologies are available to reduce the energy consumption of MGPs.

Issue 7: DOE seeks comment regarding its tentative conclusion that only intermittent pilot ignition and on-demand ignition pass the screening criteria. DOE also requests comment on whether any other technology options should pass the screening analysis.

Issue 8: DOE requests comment regarding the baseline design characteristics identified for each product group. DOE also requests comment regarding whether additional clarity is needed regarding the baseline design characteristics and the components in each design.

Issue 9: DOE requests comment regarding the alternate design characteristics identified for each product group.

Issue 10: DOE seeks comment regarding the estimated MPCs for each product group. Further, DOE seeks specific cost information and data about MGP ignition system components. These components include the gas valves, the pilot assembly, the power supply, and the battery pack.

Issue 11: DOE seeks feedback regarding the average production volumes used in this analysis, and whether these values are representative of the MGP market.

Issue 12: DOE requests feedback on the industry average manufacturer markup of 1.5 and whether this value is representative of the MGP market. Additionally, DOE requests feedback on whether the average manufacturer markups varies significantly across four groups: indoor vented gas log sets, other indoor vented decorative hearths, outdoor patio heaters; and outdoor decorative hearths.

Issue 13: DOE seeks comment regarding the estimated MGP operating hours for standing pilots.

Issue 14: DOE seeks comment regarding the estimated MGP lifetime, particularly if there are differences among product categories (such as indoor/outdoor products).

Issue 15: DOE seeks comment regarding the estimated MGP repair costs.

Issue 16: DOE seeks comment regarding the estimated distribution of ignition types among MGPs and the estimated fraction of products with main burners that are manually lit.

Issue 17: DOE seeks comment regarding the estimated shipments of MGPs and the market shares of different MGP product categories. In particular, DOE requests comment on the market share of portable propane outdoor units so that they may be excluded from the analysis.

The Secretary of Energy has approved publication of this notification of the availability of the preliminary technical support document and request for comment.

This document of the Department of Energy was signed on November 7, 2022, by Francisco Alejandro Moreno, Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

The FAA invites interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

The FAA will consider all comments received by the closing date for comments. The FAA may change these special conditions based on the comments received.

On September 16, 2019, Airbus applied for an amendment to Type Certificate No. A28NM to include the new Model A321neo XLR airplanes, which include the Model A321-271NY and A321-253NY airplanes. These airplanes are twin-engine, transport-category airplanes with seating for 244 passengers and a maximum takeoff weight of 222,000 pounds.

Under the provisions of 14 CFR 21.101, Airbus must show that the Model A321neo XLR airplanes meet the applicable provisions of the regulations listed in Type Certificate No. A28NM, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Airbus Model A321neo XLR airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Airbus Model A321neo XLR airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in § 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The Airbus Model A321neo XLR airplanes will incorporate the following novel or unusual design feature:

An electronic flight-control system that provides flight envelope protections.

Many new transport-category airplanes use advanced electronic flight-control systems (EFCS), which incorporate flight-envelope protection (limiting) designed to prevent the pilot from inadvertently or intentionally exceeding any number of flight-envelope parameters. Depending on a particular EFCS design, these limiting features may or may not be active in all normal and alternate flight-control modes, and may or may not be capable of being overridden by the pilot.

The FAA currently applies 14 CFR 25.143 to airplanes incorporating EFCS. The purpose of §  25.143 is to verify that operational maneuvers conducted within the operational envelope can be accomplished smoothly with average piloting skill, and without encountering a stall warning or other characteristics that might interfere with normal maneuvering, or without exceeding structural limits. The airplane response to control input should be predictable to the pilot. However, § 25.143 does not adequately ensure that airplanes incorporating EFCS with flight-envelope protections will have a level of safety equivalent to that of existing standards.

Envelope-protection functions are intended to reduce the likelihood of excursions, either commanded or uncommanded, to unintended or potentially hazardous airplane operating states. As a consequence of preventing excursions, these functions can also restrict aircraft maneuverability, and may introduce non-traditional behavior. The proposed special conditions will ensure that flight-envelope protection functions support safe operation, and do not interfere with required maneuvering in normal and emergency operations, and in forseeable atmospheric conditions.

The FAA previously issued separate special conditions for general limiting, normal load-factor limiting, high-speed limiting, and pitch and roll limiting for airplanes incorporating flight-envelope protection features. However, the FAA tasked the Aviation Rulemaking Advisory Committee (ARAC) in April 2014 (79 FR 20295) to develop recommended standards for fly-by-wire flight controls for general flight-envelope protection (limiting) similar to those provided for conventional control functions in 14 CFR 25.143. The ARAC recommended, 1 among other things, performance-based requirements that would encompass general limiting, normal load-factor limiting, high-speed limiting, and pitch and roll limiting which the FAA previously issued as separate special conditions. These proposed special conditions are based on that ARAC recommendation.

These proposed special conditions provide the same level of safety as the prescriptive, design-specific special conditions the FAA has issued in the past for general limiting, normal load-factor limiting, high-speed limiting, and pitch and roll limiting, thus the FAA need not issue separate special conditions to address each of these areas.

These proposed special conditions are in addition to the requirements of § 25.143. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these proposed special conditions apply to Airbus Model A321neo XLR airplanes. Should Airbus apply later for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on one model series of airplanes. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for Airbus Model A321neo XLR airplanes equipped with EFCS.

In addition to §  25.143, the following requirements apply:

(a) Envelope protection functions must not unduly limit the maneuvering capability of the airplane, nor interfere with its ability to perform maneuvers required for normal and emergency operations.

(b) Onset characteristics of each flight-envelope protection function must be appropriate to the phase of flight and type of maneuver, and must not conflict with the ability of the pilot to satisfactorily control the airplane flight path, speed, and attitude.

(c) Excursions of a limited flight parameter beyond its nominal design-limit value due to dynamic maneuvering, airframe and system tolerances, and non-steady atmospheric conditions must not result in unsafe flight characteristics or conditions.

(d) Operation of flight-envelope protection functions must not adversely affect aircraft control during expected levels of atmospheric disturbances, nor impede the application of recovery procedures in case of wind shear.

(e) Simultaneous action of flight-envelope protection functions must not result in adverse coupling or adverse priority.

(f) In case of abnormal attitude or excursion of flight parameters outside the protected boundaries, operation of flight-envelope protection functions must not hinder airplane recovery.

On August 22, 2022, The Department of Transportation (DOT or Department) published in the Federal Register a notice of proposed rulemaking (NPRM) that proposes to codify its longstanding interpretation that it is an unfair business practice for a U.S. air carrier, a foreign air carrier, or a ticket agent to refuse to provide requested refunds to consumers when a carrier has cancelled or made a significant change to a scheduled flight to, from, or within the United States, and consumers found the alternative transportation offered by the carrier or the ticket agent to be unacceptable (87 FR 51550). The NPRM proposes to define, for the first time, the terms significant change and cancellation. It would also require U.S. and foreign airlines and ticket agents inform consumers that they are entitled to a refund if that is the case before making an offer for travel credits, vouchers, or other compensation in lieu of refunds. The Department further proposes to require that U.S. and foreign air carriers and ticket agents provide non-expiring travel vouchers or credits to consumers holding non-refundable tickets for scheduled flights to, from, or within the United States who are unable to travel as scheduled in certain circumstances related to a serious communicable disease. If the carrier or ticket agent received significant financial assistance from the government as a result of a public health emergency, the Department proposes to require U.S. and foreign air carriers and ticket agents provide refunds, in lieu of non-expiring travel vouchers or credits. The NPRM proposes to allow carriers and ticket agents to require consumers provide evidence to support their assertion of entitlement to a travel voucher, credit, or refund. The NPRM provided for a comment period of 90 days after publication of the NPRM in the Federal Register , i.e., November 21, 2022.

On September 6, 2022, Airlines for America (A4A) and International Air Transportation Association (IATA) (jointly “Airline Petitioners”) requested an extension of 60 days for the comment period of this rulemaking. According to Airline Petitioners, the Department's proposals would significantly change airline ticket refund regulations, affecting refund and voucher rights and obligations of not only airlines but also ticket agents, booking entities, and consumers, which require a thorough and careful consideration of all potential impacts and unintended consequences of this rule for the traveling public. Airline Petitioners state that additional time is needed to adequately collect and consider all the relevant and necessary information to finalize this critical rule. Furthermore, Airline Petitioners point out that the NPRM asks comments on various scenarios in addition to the proposed rule and the additional questions posed by the Department warrant an in-depth analysis that will reasonably require more than 90 days to collect from all interested parties, and to review and comment.

On September 27, 2022, the Travel Technology Association, the American Society of Travel Advisors, and Travel Management Coalition (jointly “Distribution Petitioners”) requested an extension of 30 days for the comment period of this rulemaking. Distribution Petitioners states that the NPRM raises over 100 substantial issues for comments and the issues pertaining to public health emergencies are particularly novel in terms of the regulatory response proposed. Distribution Petitioners state that additional time is needed to allow each of their members to develop and prepare comments that would be most useful for the Department in reaching a fully informed decision.

Through this notice, the Department grants an extension of 25 days, or until December 16, 2022, for the public to comment on the NPRM. In doing so, the Department acknowledges that the NPRM raises numerous important issues, including the alternatives to the proposals that the Department is seeking information on, which requires in-depth analysis and consideration by stakeholders. The Department believes that granting a 25-day extension of the original 90-day comment period, is sufficient to allow stakeholders to conduct a thorough and careful consideration of all potential impacts and prepare comments. The Department has also taken into consideration the work of the Aviation Consumer Protection Advisory Committee (ACPAC) in relation to this rulemaking. Following the issuance of the NPRM, the ACPAC devoted a full day to discuss the NPRM and listen to public comments. The ACPAC is scheduled to meet again on December 9, 2022, to deliberate on what, if any, recommendations it will make to the Department regarding this rulemaking. The Department believes that extending the comment period for the NPRM until one week after the ACPAC meeting would provide the public an opportunity to consider the discussions and any recommendation of the ACPAC and provide further comments to the Department. Accordingly, the Department extends the time for comments on the proposed rule from November 21, 2022, to December 16, 2022.

In the request for extension of comment period, Airline Petitioners seek clarifications from the Department on various issues raised in the NPRM. Distribution Petitioners also state that several issues raised by Airline Petitioners are of particular interest to Distribution Petitioners and the Department's clarifications on those issues are needed for them to prepare comments on those issues. The Department's responses to the list of questions raised by Airline Petitioners have been posted in the rulemaking docket.

Submit your comments, identified by Docket ID No. OGC-2022-0885, at https://www.regulations.gov (our preferred method), or the other methods identified in the ADDRESSES section. 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 https://www.regulations.gov any information you consider to be Confidential Business Information (CBI), Proprietary Business Information (PBI), or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the full EPA public comment policy; information about CBI, PBI, or multimedia submissions; and general guidance on making effective comments.

This discussion is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This discussion includes the types of entities that the EPA is now aware could potentially be regulated by this action. Other types of entities not included could also be regulated. To determine whether your entity is regulated by this action, you should carefully examine the applicability criteria found in 40 CFR part 2. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section.

This action proposes changes to EPA's FOIA regulations at 40 CFR part 2. The proposed changes would alter the process by which individuals and entities request records from EPA under the Act. EPA proposes changes to clarify certain provisions and align with the FOIA and with EPA and government-wide policy.

In the 2019 “Freedom of Information Act Regulations Update,” 84 FR 30028, July 26, 2019 (Phase I Rule), EPA stated its intention to propose a second rulemaking phase to make discretionary and modernizing changes. Consistent with that statement, EPA is seeking public comment on the changes proposed in this document.

This action is the second phase in a two-phase process to update the agency's FOIA regulations. On July 26, 2019, EPA issued the Phase I Rule to “bring EPA's regulations into compliance with nondiscretionary provisions of the amended statute and reflect changes in the agency's organization, procedure, or practice.” 84 FR 30028.

EPA proposes to modify existing section 2.102(c) and move it to section 2.102(b), first, to define more clearly what it means for a FOIA request to reasonably describe the records sought and, second, to clarify how EPA would treat a FOIA request that does not reasonably describe the records sought. For the latter, this includes providing a clear timeline during which a requester may modify a submission that does not reasonably describe the records sought.

First, EPA proposes replacing “A request should reasonably describe the records the requester seeks in a way that will permit EPA employees to identify and locate them” with “Requesters should reasonably describe the records sought in sufficient detail to enable agency personnel to locate them with a reasonable amount of effort” to more clearly define a request that is reasonably described. 5 U.S.C. 552(a)(3)(A) requires agencies to respond to “any request for records which (i) reasonably describes such records.” The D.C. Circuit has recognized that a FOIA request reasonably describes the records sought “if it enabled a professional employee of the agency who was familiar with the subject area of the request to locate the record with a reasonable amount of effort.” Truitt v. Department of State, 897 F.2d 540, 545 n.36 (D.C. Cir. 1990), quoting H.R. Rep. No. 93-876, 93d Cong., 2d Sess. 5-6 (1974).

Incorporating this definition, which is used in legislative history and supported in caselaw, would provide clarity to FOIA requesters about how EPA reviews FOIA requests and applies the FOIA's requirements. EPA does not intend that this proposal would affect the EPA's existing processes or alter the FOIA's requirements.

Request for Comment 1: EPA seeks comment on whether the addition to 2.102(c) provides sufficient clarity.

Second, EPA proposes 20 calendar days as the time in section 2.102(c) a requester would be given to respond to EPA's notice that the requester has not reasonably described the records sought. The existing regulations state that EPA will afford a requester with an opportunity to modify the request if EPA determines that the submission did not reasonably describe the records sought. However, the existing regulations do not specify how long a requester may take to modify their request before EPA closes the request. See 40 CFR 2.102(c) (“A request should reasonably describe the records the requester seeks in a way that will permit EPA employees to identify and locate them.”). The agency believes that this change would provide requesters with additional guidance during this process, facilitate cooperation between the EPA and the requester, and clarify EPA's process for reviewing FOIA requests.

Based on EPA's experience, the proposed 20 calendar days timeline would be sufficient for requesters to review and modify their requests as appropriate. Although not required by the FOIA, EPA's regulations allow requesters an opportunity to modify a request that does not reasonably describe the records sought. EPA further notes that a requester may resubmit a new request reasonably describing the records sought, even after EPA closes a request upon the aforementioned 20-day deadline expiring.

Request for Comment 2: EPA seeks comments on providing a 20 calendar day timeline for a requester to modify their request after EPA has provided notice that EPA has determined that their request does not reasonably describe the records sought.

EPA also proposes and seeks comment on several provisions that EPA believes would enhance the readability, clarity, and usability of EPA's FOIA regulations.

First, EPA proposes reorganizing, but not making substantive changes to, 40 CFR 2.100(a) by moving to separate paragraphs the sentences describing other regulations relevant to the release of information. Those sentences relate to the access to confidential business information and requests made under the Privacy Act of 1974. Both sentences are purely informational. EPA believes this change would improve readability by separately listing information that is useful but unrelated to each other. This proposal would not change EPA's processing of records under the FOIA.

Second, EPA proposes to create a new paragraph (f) in section 2.100 to direct the public to the agency's website ( epa.gov/foia ) for records made publicly available in compliance with 5 U.S.C. 522(a)(2)(D)(ii)(II). This change would inform the public where they may access publicly available information. EPA notes that this change would not alter the agency's practices or responsibilities under the FOIA.

Third, EPA proposes to consolidate the provisions in EPA's FOIA regulations that discuss the timing of EPA's response to FOIA requests to simplify and accurately represent EPA's obligations under the FOIA. This change would combine into section 2.104(a) existing sections 2.101(c) and 2.102(a), and EPA proposes to directly incorporate into 2.104(a), the FOIA's language on timing of response from 5 U.S.C. 552(a)(6)(A)(i). EPA believes that allowing the statutory language to speak for itself is the clearest statement of EPA's obligations and clarifies ambiguities in the regulatory text. EPA also proposes to highlight in the regulatory text that EPA will work with requesters to come to an agreement regarding alternative timeframes for processing the request when EPA provides notice pursuant to 5 U.S.C. 552(a)(6)(B)(i) and (ii).

In addition, EPA proposes to add to section 2.104(a)(2) that requests submitted after 5:00 p.m. Eastern Time would be considered received on the next business day. Existing section 2.101(d) says that “Requesters submitting requests electronically must do so before 5:00 p.m. Eastern Time for the agency to consider the request as received on that date.” EPA would add on to this existing sentence, explaining how EPA would treat a request a request submitted at or after 5:00 p.m. EPA is not seeking feedback and does not propose to make changes to the existing language regarding requests and appeals received before 5:00 p.m. Eastern Time. This addition is intended to clarify the existing regulatory language and provide additional transparency to the public. Parallel to this proposal, EPA proposes modifying section 2.108(b) to state that appeals submitted after 5:00 p.m. Eastern Time would be considered received on the next business day.

Request for Comment 3: EPA seeks comment on whether the proposed reorganization, informational addition, and consolidation is clear.

EPA proposes three changes that are intended to more closely align with the Department of Justice's Template for Agency FOIA Regulations. See Department of Justice, Template for Agency FOIA Regulations at sections VIII and IX, https://www.justice.gov/oip/template-agency-foia-regulations (last updated February 22, 2017). These proposed changes are found at sections 2.106, 2.108(d)(3), and 2.108(e)(1), which discuss the preservation of records, handling appeals after FOIA litigation, and the contents of adverse administrative appeals decisions. EPA does not intend that these proposals would make any substantive changes to EPA's practices or the regulatory requirements in those provisions. These proposed changes are intended to reflect existing best practices and ensure clarity of EPA's processes.

EPA proposes correcting 40 CFR 2.107(b), which discusses how requesters make fee payments. The existing regulations state that checks or money orders should be made out to the U.S. Environmental Protection Agency. The updated language would say that requesters should make checks and money orders out to the Treasury of the United States. This proposal would only affect where FOIA requesters make certain FOIA fee payments and is purely administrative in nature.

Finally, EPA also proposes revising all references to EPA's electronic submission website, FOIAonline ( www.FOIAonline.gov ), to a more general location, EPA's FOIA website ( www.epa.gov/foia ). EPA proposes this change to ensure that the location of the platform to receive FOIA submissions remains clear even after the decommissioning of FOIA Online. Instead, EPA proposes to use its FOIA web page ( epa.gov/foia ) to identify for requesters the new electronic FOIA request submission platform, providing a prominent and easily accessible link. Please note also that the sunsetting of FOIA online is not a part of this rulemaking, and EPA is neither proposing nor asking for comments on that process here.

Request for Comment 4: EPA seeks comment on whether the changes detailed above improve the readability, usefulness, and clarity of those provisions.

Citizens for Responsibility and Ethics in Washington (CREW) and Center for Biological Diversity (CBD) filed lawsuits against EPA challenging aspects of the 2019 FOIA Regulations Update. Citizens for Responsibility and Ethics in Washington v. EPA, 1:19-cv-02181. As part of the agreement to settle those claims, EPA agreed to seek comment on 40 CFR 2.103(b) and on whether to reinstate methods of submissions previously listed at 40 CFR 2.101(a).

EPA proposes and seeks comment on removing the clause in 40 CFR 2.103(b) describing the term “determinations required by 5 U.S.C. 552(a)(6)(A).” Existing section 2.103(b) states, “[Listed positions within the EPA] are authorized to make determinations required by 5 U.S.C. 522(a)(6)(A), including to issue final determinations whether to release or withhold a record or a portion of a record on the basis of responsiveness or under one or more of the exemptions under the FOIA, and to issue `no records' responses.” There has been some confusion regarding the meaning of this clause, which has led to inaccurate understandings of EPA's authority regarding FOIA determination. EPA believes that removing this clause would ensure clarity and allow the Act to speak for itself.

Request for Comment 5: EPA seeks comment on whether to remove the explanatory clause in 40 CFR 2.103(b) that begins with “including” and ends with “responses.”

EPA seeks comment on whether to reinstate any methods of FOIA request submission that the EPA removed through the issuance of the 2019 FOIA Regulations Update. See 2019 FOIA Regulations Update, 84 FR 30028 at 30030. EPA does not propose changes to 40 CFR 2.101(a).

The 2019 FOIA rule removed submission methods previously allowed via U.S. mail and email to the Regions, and email requests to EPA headquarters. Id. The 2019 FOIA Rule removed those methods of submission to “reduce the number of misdirected requests” because the “2007 Amendments also decreased the amount of time an agency may take to route a request to the appropriate component . . . .” 2019 FOIA Regulations Update, 84 FR 30028 at 30030. The 2019 FOIA Rule designated the National FOIA Office as the location to which mailed FOIA requests must be submitted; the Rule did not centralize FOIA processing in that office.

Since the 2019 FOIA Regulations Update was implemented, EPA's National FOIA Office has efficiently implemented centralized intake of FOIA requests providing enhanced transparency and clarity to requesters. As a result, EPA more fully realized its goal to provide first-rate service and communication to the FOIA requester community.

Request for Comment 6: EPA requests comment on whether EPA should reinstate any of the methods of submission, located at 40 CFR 2.101(a), that were removed by the 2019 FOIA Rule.

EPA proposes to change the “ordinary” search cut-off date identified in section 2.103(a) from the date “the request was received” to “the Agency begins its search for responsive records.” A “cut-off” date delineates the scope of a FOIA request by treating records created after that date as not responsive to the FOIA request. See Bonner v. U.S. Dep't of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991) (observing that “[t]o require an agency to adjust or modify its FOIA responses based on post-response occurrences could create an endless cycle of judicially mandated reprocessing”). Under EPA's FOIA regulations, the ordinary cut-off date identified in 40 CFR 2.103(a) informs requesters of the cut-off date that the agency most typically uses. “The Agency will inform the requester if any other date is used.” 40 C.F.R 2.103(a).

Nothing in the existing or proposed FOIA regulations precludes the agency from evaluating the FOIA request for the most appropriate cut-off date or a FOIA requester from identifying a date range for the records sought.

Request for Comment 7: EPA seeks comment on whether to change the ordinary search cut-off date from the date the FOIA request is received to the date the agency begins the search for responsive records.

EPA proposes adding a provision stating that EPA may aggregate FOIA requests when EPA reasonably believes that multiple requests—submitted either by a requester or by a group of requesters acting in concert—constitute a single request that would otherwise give rise to unusual circumstances and the requests involve related matters.

5 U.S.C. 552(a)(6)(B)(iv) provides authority for such a provision, stating “Each agency may promulgate regulations . . . providing for the aggregation of certain requests . . . if the agency reasonably believes that such requests actually constitute a single request[.]” Mirroring the Act, EPA would only aggregate requests that are submitted by the same requester or group of requesters and the requests involve related manners. EPA is not proposing changes to the existing provision at 40 CFR 2.107(i), which allows for aggregation for fee-avoidance reasons.

Request for Comment 8: EPA requests comment on whether to add the request aggregation provision allowed for in 5 U.S.C. 552(a)(6)(B)(iv).

EPA proposes a provision stating that EPA may assign multiple tracking numbers to a request with distinct parts that will be processed by separate regions or program offices. EPA would notify the requester of the separate tracking numbers for the distinct parts of the request, which thereafter would be processed and responded to separately.

This provision would reduce unnecessary coordination on unrelated records among different EPA offices and regions when processing a single request with multiple unrelated parts. This includes communicating with the requester to clarify the request, seeking fee assurance, conducting the records search and review, and issuing interim and final responses.

EPA proposes modifying the methods of submission of FOIA appeals, located in the existing regulations at 40 CFR 2.104(j) and 2.108(a) in the proposed regulations, to match the methods of submission of FOIA requests. This change would streamline EPA's receipt and handling of FOIA appeals.

EPA proposes a provision to allow requesters to seek expedited processing of their request if the records sought pertain to an environmental justice-related need and will be used to inform an affected community. 5 U.S.C. 552(a)(6)(E)(i) provides that EPA may issue regulations “providing for expedited processing of requests for records (I) in cases in which the person requesting the records demonstrates a compelling need; and (II) in other cases determined by the agency.” (emphasis added). The Act defines what constitutes a “compelling need,” id. at section 552(a)(6)(E)(v), and does not limit the “other cases” that they agency may determine merit expedited processing.

EPA has recognized environmental justice concerns for many decades and has defined Environmental justice (EJ) as the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations, and policies. EPA recognizes the role timely access to information contained in EPA records may play in the opportunity for meaningful involvement by communities that potentially experience disproportionately high and adverse human health or environmental effects.

This provision would be in addition to and not modify the expedited processing for requests demonstrating a “compelling need,” which the FOIA provides at 5 U.S.C. 552(a)(6)(E)(i)(I). This proposed new expedited processing category would target an understood need for timely access for communities with environmental justice concerns to information, which may not be met by the statutorily provided “compelling need” categories.

Request for Comment 9: EPA seeks comment on whether to include a new expedited processing category for requests seeking environmental justice-related information and whether there is an unmet need for prompt access to information in communities affected by environment justice concerns. For example, EPA requests comment on the frequency and types of contact that occur with members of communities affected by environmental justice concerns and how information for which there is a pressing need is typically utilized by members of those communities.

EPA proposes narrowly tailored criteria to achieve the intended goal. To qualify for expedited processing under this proposed provision, a requester would need to show: (1) a pressing need; (2) to inform a community potentially experiencing disproportionately high and adverse human health or environmental effects; (3) about those effects; (4) affecting, or potentially affecting, that community.

Request for Comment 10: EPA seeks comment on whether EPA should further define or use another definition or term to more accurately identify communities for which there is a need for more rapid access to EPA records containing information regarding environmental harms affecting those communities.

In evaluating requests for expedited processing under this expedited processing category, EPA would consider the requester's intent to effectively convey the information to members of the community that is potentially experiencing disproportionately high and adverse human health or environmental effects. EPA would not require that a requester be a member of the affected community, although membership in the community may be relevant to the requester's intent and ability to convey the information to the community. EPA would consider the requester's ability to effectively convey the information received about the community back to the community within a timeframe sufficient to meet the identified pressing need. EPA proposes that a requester would not have to be a formal member of the news media to qualify for this expedited processing category.

EPA further proposes that the need to inform the affected community would not include a request where the disclosure is primarily in the commercial interest of the requester. EPA intends that this criterion would help tailor the provision by focusing on requests for which the purpose of the request is to share information with members of the affected community.

Request for Comment 11: EPA seeks feedback on whether the proposed criteria properly target EPA's stated intent.

To implement this provision, EPA could use EJScreen's “Supplemental Indexes” tool to assess a requester's claim that a particular community may be experiencing disproportionately high and adverse human health or environmental effects. EJScreen is an environmental justice mapping and screening tool that provides EPA with a nationally consistent dataset and approach for combining environmental and demographic indicators. EJScreen provides a way to display this information and includes a method for combining environmental and demographic indicators into EJ indexes. EJScreen's “Supplemental Indexes” are twelve indexes calculated by combing twelve environmental indicators and a five-factor demographic index. The five socioeconomic indicators considered are percent low-income, percent limited English-speaking, percent less than high school education, percent unemployed, and low life expectancy. EJScreen may also be a valuable tool for requesters to assess whether the community about which they are seeking records may be affected by disproportionately high and adverse human health or environmental effects. More information regarding EJScreen is available here: https://www.epa.gov/ejscreen/environmental-justice-indexes-ejscreen.

Request for Comment 12: EPA seeks comment on whether EPA should require requesters to identify in a particular manner the relevant community with environmental justice concerns. EPA also seeks comment on methods and approaches to evaluating whether a particular community is potentially experiencing disproportionately high and adverse human health or environmental effects.

EPA also proposes that if the agency grants a request for expedited processing under the environmental justice expedited processing category, the agency will also grant the requester a fee waiver for the request under 5 U.S.C. 552(a)(4)(A)(iii), and EPA's FOIA regulations, at section 2.107(l) of the existing regulations and section 2.107(n) of the proposed regulations. EPA believes that meeting the standard and factors provided in the proposed new expedited processing criteria would result in the requester having met the burden set forth by the FOIA to qualify for a waiver of fees. 5 U.S.C. 552(a)(4)(A)(iii) (“[D]isclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.”). EPA also recognizes the potential efficiencies for both requesters and the agency in this approach.

Request for Comment 13: EPA seeks comment on whether EPA should provide fee waivers to requests that qualify for the proposed environmental justice expedited processing provision.

EPA proposes modernizing its fee rates by establishing fee rates tied to the U.S. Office of Personnel and Management's General Schedule (GS) scale. EPA proposes two rates for agency personnel time spent processing FOIA requests, with one rate for grades GS-12 and below and a second rate for those with grades GS-13 and above, both adjusted for the value of benefits, expressed in quarter-hour rates, and rounded to the nearest $1 increment. As of the date of signature, the proposed rates would be calculated as such:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at https://www.epa.gov/dockets/commenting-epa-dockets .

3. Environmental justice. EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.

EPA is announcing receipt of a pesticide petition filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the request before responding to the petitioner. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petition described in this document contains data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the pesticide petition. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on this pesticide petition.

Pursuant to 40 CFR 180.7(f), a summary of the petition that is the subject of this document, prepared by the petitioner, is included in a docket EPA has created for this rulemaking. The docket for this petition is available at https://www.regulations.gov.

As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petition so that the public has an opportunity to comment on this request for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petition may be obtained through the petition summary referenced in this unit.

PP IN-11655. EPA-HQ-OPP-2022-0850. Corteva Agriscience, 9330 Zionsville Road, Indianapolis, IN 46268, requests to amend the tolerance descriptor under 40 CFR 180.560 for residues of cloquintocet-mexyl acetic acid, 5-chloro-8-quniolinyl oxy-, 1-methylhexyl ester (CAS Reg. No. 99607-70-2) and its acid metabolite 5-chloro-8-quinlinoxyacetic acid under 40 CFR 180.560, to include the use of these chemicals in combination with the active ingredient, tolpyralate. This action will not change the magnitude of the residues already established for this safener, but instead would now permit its use in combination with the active ingredient tolpyralate. Adequate enforcement methodologies have already been published in the Federal Register on June 29, 2011 (76 FR 38035) (FRL-8877-2). The two enforcement methods available are: High performance liquid chromatography with ultraviolet detection (HPLC-UV) method REM 138.01 for the determination of cloquintocet-mexyl parent and the HPLC-UV method REM 138.10, which allows for determination of its acid metabolite. Contact: RD

1. PP IN-11699. EPA-HQ-OPP-2022-0844. Ingredion Incorporated, 5 Westbrook Corporate Center, Westchester, IL 60154, requests to establish an exemption from the requirement of a tolerance for residues of dextrin, hydrogen 1-octenylbutanedioate (CAS Reg. No. 68070-94-0), when used as an inert ingredient in pesticide formulations under 40 CFR 180.920 for use as a seed treatment only. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD

2. PP IN-11696. EPA-HQ-OPP-2022-0848. Rosen's Inc., 700 SW 291 Hwy, Suite 204, Liberty, MO 64068, requests to establish an exemption from the requirement of a tolerance for residues of the inert ingredient potassium polyaspartate (CAS Reg. No. 64723-18-8) when used as a complexing agent at no more than 10% in pesticide formulations under 40 CFR 180.920. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD

3. PP IN-11715. EPA-HQ-OPP-2022-0841. Ingredion Incorporated, 5 Westbrook Corporate Center, Westchester, IL 60154, requests to establish an exemption from the requirement of a tolerance for residues of amylopectin, 2-hydroxypropyl ether, acid-hydrolyzed (CAS Reg. No. 2756130-86-4), when used as an inert ingredient in pesticide formulations under 40 CFR 180.920 for use as a seed treatment only. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD

1. PP 1E8951. EPA-HQ-OPP-2021-0658. Interregional Research Project Number 4, IR-4, IR-4 Project Headquarters, North Carolina State University, 1730 Varsity Drive, Venture IV, Suite 210, Raleigh, NC 27606, requests to establish a tolerance in 40 CFR 180.658 for residues of penthiopyrad N -2-1,3-dimethylbutyl-3-thienyl-1-methyl-3-trifluoromethyl-1H-pyrazole-4-carboxamide including its metabolites and degradates, in or on banana at 2 parts per million (ppm). A high-performance liquid chromatography method with tandem mass spectrometry (LC-MS/MS) detection, is used to measure and evaluate the chemical. Contact: RD.

2. PP 0F8890. EPA-HQ-OPP-2021-0529. Syngenta Crop Protection, LLC, 410 Swing Road, P.O. Box 18300, Greensboro, NC 27410, requests to establish a tolerance in 40 CFR part 180 for inadvertent residues of the fluazifop-p-butyl metabolite 5-Trifluoromethyl-2-Pyridone TFP in or on corn forage and grain at 0.01 ppm and corn stover at 0.015 ppm. The methods GRM044.09A, MRMT Multi Residue Method Test using QuEChERS, ILV, and Radiovalidation of GRM044.09A are used to measure and evaluate the chemical fluazifop-p-butyl metabolite TFP. Contact: RD.

3. PP 1F8979. EPA-HQ-OPP-2022-0452. Gowan Company, LLC., 370 South Main Street, Yuma, AZ 85364, requests to establish a tolerance in 40 CFR part 180 for residues of the miticide acynonapyr, 3- endo -2-propoxy-4-trifluoromethyl phenoxy-9-5-trifluoromethyl-2-pyridyloxy-9-azabicyclo 3.3.1 nonane and its metabolites AP, 3- endo -2-propoxy-4-trifluoromethyl phenoxy-9-azabicyclo 3.3.1 nonane, and AY, 5-trifluoromethyl-2-pyridinol in or on almond at 0.03 ppm; almond, hulls at 4.0 ppm; crop group 10-10; citrus fruits at 0.3 ppm; citrus, oil at 15.0 ppm; orange, dried pulp at 0.7 ppm; grape at 0.6 ppm; raisins at 3.0 ppm; hops at 50.0 ppm; crop group 11-10, pome fruits at 0.2 ppm; and apple, wet pomace at 0.4 ppm. LC-MS/MS detection is used to measure and evaluate the chemical acynonapyr and its metabolites AP, AP-2, AY, AY-3, and AY-1-Glc. Contact: RD.

This is a summary of the Commission's Second Notice of Proposed Rulemaking ( Second NPRM ), FCC 22-77, in MB Docket No. 20-299, adopted on October 4, 2022, and released on October 6, 2022. The complete text of this document is available electronically via the search function on the FCC's website at https:// www.fcc.gov/document/fcc-proposes-modifications-foreign-sponsorship-id-requirements.

1. With this Second Notice of Proposed Rulemaking ( Second NPRM ), we take the next step to ensure that we have strong foreign sponsorship identification rules. On April 22, 2021, the Commission released a Report and Order ( Order ) in the above captioned proceeding adopting a requirement that radio and television stations broadcast clear disclosures for programming that is provided by a foreign governmental entity and setting forth the procedures for exercising reasonable diligence to determine whether such a disclosure is needed. The Order defined the term “foreign governmental entity” to include those entities or individuals that would trigger a disclosure pursuant to the foreign sponsorship identification rules. This Second Notice of Proposed Rulemaking accords to the term “foreign governmental entity” the definition established in the Order. We adopted the requirements in response to reports of undisclosed foreign government programming being transmitted by U.S. broadcast stations. The principle that the public has a right to know the identity of those soliciting their support is a fundamental and long-standing tenet of broadcast regulation. We promulgated the foreign sponsorship identification rules against the backdrop of regulation that has evolved over ninety years to ensure that the public is informed when airtime has been purchased on broadcast stations in an effort to persuade audiences, enabling the public to distinguish between paid content and material chosen by the broadcaster itself.

2. On August 13, 2021, the National Association of Broadcasters (NAB), the Multicultural Media, Telecom and internet Council (MMTC), and the National Association of Black Owned Broadcasters (NABOB) (collectively, Petitioners) filed a Petition for Review of the Order with the U.S. Court of Appeals for the District of Columbia Circuit challenging one step in our reasonable diligence requirement, established to ensure that broadcasters independently confirm the lessee's status when determining whether programming is provided by a foreign governmental entity. The Petitioners alleged that the Commission lacked statutory authority to adopt such a requirement and also contended that such a requirement violated the First Amendment and the Administrative Procedure Act.

3. On July 12, 2022, the D.C. Circuit ruled on the Petition for Review, leaving untouched the bulk of the foreign sponsorship identification requirements and vacating only the provision that broadcasters check two federal sources to verify whether a lessee is a “foreign governmental entity,” as defined in the rules.

4. This Second NPRM seeks to fortify the rules in the wake of the court's decision. Specifically, pursuant to section 317(e), which directs the Commission to prescribe rules and regulations to carry out the provisions of section 317, we propose that, in order to comply with the “reasonable diligence” requirement regarding foreign sponsorship identification, a licensee must certify that it has informed its lessee of the foreign sponsorship identification rules and obtained, or sought to obtain, a certification from its lessee stating whether the lessee is or is not a “foreign governmental entity.” In turn, we propose that the lessee submit a certification in response to a licensee's request. These new certification requirements would subsume the duty of licensees under § 73.1212(j)(3)(v) of our rules to memorialize and retain their reasonable diligence inquiries. As this Second NPRM proposes to establish standardized certification language for licensees and lessees, the time and cost associated with compliance should be minimal. This Second NPRM also seeks comment on an alternative approach to the certification requirement. This alternative approach was raised as a hypothetical by the D.C. Circuit during the oral argument in NAB v. FCC. Under this approach, in the event that a lessee states it is not a “foreign governmental entity” a licensee must obtain from the lessee appropriate documentation ( e.g., a screen shot(s)) showing that the lessee's name does not appear on either of the two federal government websites which we identified in the Order as reference points for determining whether a given individual/entity is a “foreign governmental entity.” Finally, this Second NPRM provides interested parties an additional opportunity to comment on a pending Petition for Clarification “regarding the applicability of the foreign sponsorship identification rules to advertisements sold by local broadcast stations.”

5. The Order amended the Commission's long-standing sponsorship identification rules by establishing new foreign sponsorship identification rules designed to identify foreign government-provided programming airing on broadcast radio and television stations. In this Second NPRM, our use of the term “foreign government-provided programming” refers to all programming that is provided by an entity or individual that falls into one of the four categories listed in § 73.1212(j)(2) of our rules. The foreign sponsorship identification rules seek to increase transparency and ensure that audiences of broadcast stations are aware when a foreign government, or its representatives, are seeking to persuade the American public. The rules require a specific disclosure at the time of broadcast if material aired pursuant to the lease of time on a licensee's station has been sponsored, paid for, or furnished by a foreign governmental entity. Consistent with section 317(a)(2) of the Communications Act of 1934, as amended (Act) and the pre-existing sponsorship identification rules, the foreign sponsorship identification rules also require disclosure of political programming or programming involving the discussion of a controversial issue if such programming is provided by a foreign governmental entity for free, or for nominal compensation, as an inducement to air. Hence, the phrase “provided by” when used in relation to “foreign government programming” covers both the broadcast of programming in exchange for consideration and the furnishing of any “political program or any program involving the discussion of a controversial issue” for free as an inducement to broadcast the programming.

6. The requirements apply to leased programming because the record in the underlying proceeding identified leased airtime as the primary means by which foreign governmental entities are accessing U.S. airwaves to persuade the American public without adequately disclosing the true sponsor. The foreign sponsorship identification rules established a definition of “foreign governmental entity” based on existing definitions, statutes, or determinations by the U.S. government. Pursuant to the foreign sponsorship identification rules, to meet the “reasonable diligence” standard of section 317(c) of the Act, with regard to foreign government-provided programming, a licensee must at a minimum:

(1) Inform the lessee at the time of agreement and at renewal of the foreign sponsorship disclosure requirement;

(2) Inquire of the lessee at the time of agreement and at renewal whether it falls into any of the categories that qualify it as a “foreign governmental entity;”

(3) Inquire of the lessee at the time of agreement and at renewal whether it knows if any individual/entity further back in the chain of producing/distributing the programming that will be aired pursuant to the lease agreement, or a sub-lease, qualifies as a foreign governmental entity and has provided some type of inducement to air the programming;

(4) Independently confirm the lessee's status, at the time of agreement and at renewal by consulting the Department of Justice's FARA website and the Commission's semi-annual U.S.-based foreign media outlets reports for the lessee's name. This need not be done if the lessee has already disclosed that it falls into one of the covered categories and/or that there is a separate need for a disclosure because an individual/entity further back in the chain of producing/transmitting the programming falls into one of the covered categories and has provided some form of service, consideration, or, in the case of political programming the programming itself, as an inducement to broadcast the programming;

(5) Memorialize the above-listed inquiries and investigations and retain such memorialization in its records for the remainder of the then current license term or one year, whichever is longer.

7. The requirements listed above apply to licensees in the case of leased programming when “money, service or other valuable consideration” is provided pursuant to section 317(a)(1) of the Act. Likewise, the requirements apply to licensees, pursuant to section 317(a)(2), in the case of political programming or programming involving a controversial issue even when the programming itself has been provided as an inducement to air such programming.

8. While the “reasonable diligence” requirements of section 317(c) apply to licensees, as noted in the Order, lessees have an obligation, pursuant to section 507 of the Act, to communicate information to the licensee relevant to determining whether a sponsorship identification disclosure is required. Pursuant to section 507, the lessee's obligation to communicate information to the licensee is not limited to just programming provided in exchange for consideration. As stated in the Order, the provision of any “political program or any program involving the discussion of a controversial issue” by a foreign governmental entity to a party in the distribution chain for no cost and as an inducement to air that material on a broadcast station is a “service of other valuable consideration” under the terms of section 507. Thus, under this section, if an individual/entity involved in the production, preparation, or supply of programming that is intended to be aired on a station has received any “political program or any program involving the discussion of a controversial issue” from a foreign governmental entity for free, or at nominal charge, as an inducement for its broadcast, this individual/entity must disclose this fact to its employer, the person for whom the program is being produced, or the licensee of the station. In addition, this programming will require an appropriate identification.

9. Further, the Order established requirements concerning the format and frequency of the disclosure that must accompany foreign government-provided programming. The foreign sponsorship identification rules apply to all new leases and renewals of existing leases as of March 15, 2022. Lease agreements that were in place prior to March 15, 2022, were given an additional six months to come into compliance— i.e., by September 15, 2022. On June 17, 2021, a summary of the Order was published in the Federal Register , and thirty days after publication, the rules adopted became effective, although compliance with the information-collection and recordkeeping portions was not required until after review by the Office of Management and Budget (OMB). On March 7, 2022, OMB approved the information collection requirements associated with the foreign sponsorship identification and public inspection filing rules. On March 15, 2022, the Media Bureau announced that the notice of the compliance date for the rule changes was published in the Federal Register on March 15, 2022, and thus the compliance date for the Commission's foreign sponsorship identification rules is March 15, 2022. Sponsorship Identification Requirements for Foreign Government-Provided Programming, 87 FR 14404 (Mar. 15, 2022) (to be codified at 47 CFR part 73).

10. As stated above, following the Petitioners' challenge to the Order, the D.C. Circuit vacated the fourth reasonable diligence requirement itemized above, leaving all other elements of the rules in place. The court held that the Commission lacked authority under section 317(c) of the Act to require licensees to review two federal government websites to ascertain a lessee's status. The D.C. Circuit stated that the “reasonable diligence” requirement contained in section 317(c) of the Act imposes on licensees only “a duty of inquiry, not a duty of investigation.” The court looked to prior precedent in asserting that “Section 317(c) `is satisfied by appropriate inquiries made by the station to the party that pays it for the broadcast.' ”

11. Before the Commission's Order was appealed, on July 19, 2021, the ABC Television Affiliates Association, CBS Television Network Affiliates Association, FBC Television Affiliates Association, and NBC Television Affiliates (collectively, “the Affiliates”) filed a Petition for Clarification. The Affiliates asked us to clarify what constitutes “traditional, short-form advertising,” which we exempted from the foreign sponsorship identification requirements adopted in the Order. In their petition, the Affiliates recommended that the foreign sponsorship identification rules not apply when a licensee “sells time to advertisers in the normal course of business, no matter the length of the advertisement.” The petition resulted in just two responses from commenters, each requesting the Commission to clarify that all forms of advertising for commercial goods and services are not subject to the foreign sponsorship rules. The petition remains pending.

12. With this Second NPRM, we seek to strengthen the process supporting the foreign sponsorship identification rules in the wake of the D.C. Circuit's vacatur of the requirement that licensees search two government websites to verify a lessee's assertion that it is not a foreign governmental entity. As stated above, the foreign sponsorship identification rules require licensees to notify their lessees of the disclosure requirement pertaining to foreign government-provided programming at the time of entering into a lease agreement or at renewal of such an agreement. In addition, the licensee must inquire whether the lessee is a foreign governmental entity and if the lessee is aware of any individual/entity further back in the chain of production or distribution of the programming that may qualify as a foreign governmental entity and has provided compensation (including the programming itself, in the case of political programming or programming involving a controversial issue) as an inducement to air the programming. Finally, the licensee must memorialize these inquiries in writing and retain such documentation for a set time period. The rules do not, however, establish a format for this memorialization.

13. With the court's elimination of the obligation that a licensee verify the lessee's status independently using two federal government websites, the exchange between a licensee and lessee about the lessee's status takes on heightened importance in ensuring that the necessary disclosure is made, if needed. It is now even more imperative that the licensee inform any lessee in as clear a manner as possible about the foreign sponsorship identification rules and obtain a complete response in return regarding whether the lessee is, or is not, a foreign governmental entity or is aware of one further back in the chain that has produced/provided the programming in question.

14. Accordingly, in this Second NPRM, we seek comment on establishing a transparent mechanism to determine whether the licensee made the requisite inquiries of each lessee and that each lessee responded in a complete manner regarding whether it qualifies as a foreign governmental entity (or is aware of one further back in the chain) pursuant to our rules. We tentatively conclude that the optimal mechanism for achieving this outcome is to require both licensee and lessee to certify their respective parts in this critical inquiry regarding the lessee's status and lessee's knowledge of any individual/entity further back in the programming production or distribution chain who may qualify as a foreign governmental entity. Specifically, we propose that the licensee certify that it has made the appropriate inquiry of each lessee and sought a certification from the lessee regarding its status. Likewise, we propose that the lessee certify as to whether it is or is not a foreign governmental entity and whether it knows of any entity or individual further back in the programming production or distribution chain that qualifies as a foreign governmental entity and has provided some form of compensation, or, in some cases the programming itself, as an inducement to air the programming. In the case of political programming or programming concerning a controversial issue, provision of the programming itself as an inducement to air the programming triggers the disclosure requirement. We tentatively conclude that the proposed certification requirement for the licensee would subsume the licensee's duty to memorialize its inquiry of its lessee pursuant to § 73.1212(j)(3)(v) of the Commission's rules. We seek comment on our proposed rule and approach.

15. As these certifications would formalize an inquiry process that, under our current foreign sponsorship identification rules, occurs at the time that parties either enter into or renew a lease agreement, we tentatively conclude that this certification process should occur at those same times. Further, we tentatively conclude that a certification, in particular one containing standardized language, as proposed below, provides the most efficient means of gauging a licensee's compliance with both the disclosure to a lessee of the foreign sponsorship identification rules and the request for lessee's certification. Likewise, a certification from the lessee provides increased assurance that it has taken the time to fully understand licensee's query and given due consideration to its own response. Moreover, the proposed certifications provide the Commission with a straightforward mechanism to monitor compliance with the inquiry requirements contained in the foreign sponsorship identification rules. It will also provide the information necessary for the Commission to independently confirm the certification, should an investigatory need arise. We seek comment on these tentative conclusions and our proposed approach of requiring certifications by the parties involved in a leasing agreement.

16. We recognize that there may be rare instances in which a lessee declines to make the necessary certification or fails to submit the certification regarding its status to the licensee. We seek comment on whether, in these limited instances, the licensee's own certification is sufficient to demonstrate that the licensee has complied with its obligation to inform the lessee of the foreign sponsorship identification rules and to seek a certification from lessee. In these instances, should the licensee be permitted to move forward with the lease agreement, or has lessee's refusal to complete the certification as to its status raised sufficient questions about the involvement of a foreign governmental entity such that further action is required on the licensee's part? What additional actions, if any, could the licensee undertake consistent with section 317(c) of the Act to verify a lessee's status? In this regard, we note that § 73.1212(e) of our rules requires the licensee to disclose the “true identity of the person” who has sponsored the programming. Would notifying the Commission about the lessee's failure to certify alleviate some of the concerns associated with lessee's lack of response? Absent such a response, if the licensee decides to proceed with the lease agreement, should we require the licensee to notify the Media Bureau, via a designated email box, about a lessee's failure to certify? Should such notification include the lessee's full name and contact information (such as address, email address, and/or telephone number)? Such a notification with the contact information could enable the Media Bureau, perhaps in conjunction with the Enforcement Bureau, to conduct its own inquiry regarding the lessee's status and whether the lessee has violated its obligations pursuant to section 507 of the Act. Would such a notification alleviate the licensee of its responsibility under § 73.1212(e) of our rules to disclose the “true identity of the person” who has sponsored the programming?

17. Submission of Certifications to the Commission. With regard to oversight, we tentatively conclude that submission of licensee and lessee certifications to the Commission provides an efficient and transparent means of verifying compliance with the certification requirement. Given that a licensee must already upload copies of its lease agreements to its online public inspection file (OPIF), and that this certification process will essentially occur at the time of entering into, or renewing a lease, we tentatively conclude that the licensee should upload both its own and the lessee's certifications into the same designated public inspection file subfolder in which it places its lease agreements. In addition, we tentatively conclude that such certifications should be conspicuous, clear, and arranged in such a manner that the parties' certifications are readily discernable. While we do not propose to require that the certifications be incorporated into a lease agreement itself, we observe that incorporation into the lease, or attachment as an appendix to the lease, could be the most efficient means of facilitating oversight and ensuring the certification process is completed. In this regard, we note that a number of broadcasters already incorporate into their leases provisions concerning compliance with various Commission requirements. We seek comment on this proposed approach for memorializing and submitting the certifications and our tentative conclusions outlined above.

18. Further, we tentatively conclude that the transparency we seek regarding a licensee's inquiries of its lessee(s) depends, in part, upon the licensee placing the certifications into its public file in a timely manner. Thus, in accordance with current requirements for licensees to place their lease agreements into their OPIFs within 30 days of execution, we also propose that licensees place the certifications into their OPIFs within 30 days of execution. We expect that this filing period will impose minimal additional burden on licensees given that licensees should, under existing rules, be accustomed to placing copies of their agreements in their public file. Consistent with the guidance regarding lease agreements in the Order, for licensees that do not have obligations to maintain OPIFs, we propose that such licensees retain a record of the certifications in their station files within 30 days of execution. We seek comment on these proposals and proposed timing.

19. Time Period for Retaining Certifications. We recognize there is a divergence between the time period for which licensees must retain their leases in their public file and the time period that licensees are required, under the foreign sponsorship identification rules, to maintain their documentation memorializing their inquiries of the lessee. Pursuant to § 73.3526(e)(14) of our rules, a lease must be retained in the public file for as long as the agreement is in force; however, pursuant to § 73.1212(j)(3)(v) of our rules, the licensee must retain its memorialization for the remainder of the then current license term or one year, whichever is longer. We propose above that the certification requirement set forth herein would replace the licensee's duty to memorialize its inquiries of the lessee and tie the documentation memorializing such inquiries more closely to the lease agreement itself ( i.e., by requiring that the certifications be filed along with the lease in the public file). In the event that we adopt this proposal, we seek comment on whether to align the requirement to retain the certifications with the current time period mandated in § 73.3526(e)(14) for retention of the lease in the public file ( i.e., for the life of the lease agreement). We tentatively conclude that such an alignment would simplify compliance for licensees by conforming the time period for retaining a lease with the time period for retaining the licensee's documentation of its inquiries of the lessee.

20. Application of Certification Requirements on a Prospective Basis. We recognize that beginning on March 15, 2022, licensees had to comply with the new foreign sponsorship identification rules with respect to new lease agreements and renewals. The Order, however, gave licensees an additional six months to bring existing lease agreements into compliance ( i.e., by September 15, 2022). With respect to the certification requirement we propose today, we similarly propose to apply the requirement on a going forward basis with a six-month grace period for existing lease agreements to come into compliance. We seek comment on this proposal and on any alternative approaches.

21. We tentatively conclude that establishing standardized certification language would both minimize the compliance burden on licensees and lessees and bring greater uniformity to the certification process. In this regard, we note that, in previous filings in this proceeding, certain broadcaster groups had asserted that “they would have to expend extensive time and resources to alter their lease agreements so as to obtain certifications from lessees regarding their status.” The establishment of standardized certification language would eviscerate any need for licenses or lessees to seek outside assistance in crafting or reviewing certifications. Licensees and lessees can cut and paste the standardized certification language into the relevant documents and fill in simple details, such as the name of the licensee or lessee, whether the lessee is or is not a foreign governmental entity, and the name of any foreign governmental entity further back in the programming chain. Accordingly, we tentatively conclude that the adoption of standardized certification language should reduce any time and cost licensees have to expend on compliance.

22. Proposed Licensee Certification. We propose that broadcast licensees use the following standardized language when making the required certifications:

I am authorized on behalf of [Licensee] to certify the following: I certify that in accordance with 47 CFR 73.1212(j), [Licensee] has:

(1) Informed [Lessee] at the time of [entering into OR renewal of] this agreement of the foreign sponsorship disclosure requirement contained in 47 CFR 73.1212(j);

(2) Inquired of [Lessee] at the time of [entering into OR renewal of] this agreement whether [Lessee] falls into any of the categories listed in the Federal Communications Commission's (FCC) rules at 47 CFR 73.1212(j) such that the [Lessee] qualifies as a “foreign governmental entity,”;

The FCC's rules state that term “foreign governmental entity” includes a “government of a foreign country,” “foreign political party,” an “agent of a foreign principal,” and a “United States-based foreign media outlet.” 47 CFR 73.1212(j)(2). The FCC's rules, at 47 CFR 73.1212(j)(2)(i) through (iv), define these terms in the following manner:

(i) The term “government of a foreign country” has the meaning given such term in the Foreign Agents Registration Act of 1938 (FARA), 22 U.S.C. 611(e);

(ii) The term “foreign political party” has the meaning given such term in the Foreign Agents Registration Act of 1938 (FARA), 22 U.S.C. 611(f);

(iii) The term “agent of a foreign principal” has the meaning given such term in the Foreign Agents Registration Act of 1938 (22 U.S.C. 611(c)), and who is registered as such with the Department of Justice, and whose “foreign principal” is a “government of a foreign country,” a “foreign political party,” or directly or indirectly operated, supervised, directed, owned, controlled, financed, or subsidized by a “government of a foreign country” or a “foreign political party” as defined in § 73.1212(j)(2)(i) and (ii), and that is acting in its capacity as an agent of such “foreign principal;”

(iv) The term “United States-based foreign media outlet” has the meaning given such term in Section 722(a) of the Communications Act of 1934 (47 U.S.C. 624(a)).

(3) Inquired of [Lessee] at the time of [entering into OR renewal of] this agreement whether it knows if any individual/entity in the chain of producing or distributing the programming that will be aired pursuant to the lease agreement, or a sub-lease, qualifies as a “foreign governmental entity,” as that term is defined above, and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself;

(4) Sought and obtained from [Lessee] a certification stating that [Lessee] [is OR is not] a “foreign governmental entity,” as that term is defined above;

(5) Sought and obtained from [Lessee] a certification about whether it knows if any individual/entity in the chain of producing or distributing the programming that will be aired pursuant to the lease agreement, or a sub-lease, qualifies as a “foreign governmental entity,” as that term is defined above, and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself; and

(6) If [Lessee] qualifies, or knows of an individual/entity further back in the chain of producing and distributing the programming that qualifies, as a “foreign governmental entity,” as defined above, then [Licensee] obtained from [Lessee] the information needed to append the following disclosure to lessee's programming consistent with 47 CFR 73.1212(j)(1)(i):

“The [following/preceding] programming was [sponsored, paid for, or furnished], either in whole or in part, by [name of foreign governmental entity] on behalf of [name of foreign country].”

I, [insert name of person/entity authorized to certify on behalf of Licensee] by my signature attest to the truth of the statements listed above.

23. Proposed Lessee Certification. We propose that lessees use the following language when making the required certifications:

I am authorized on behalf of [Lessee] to certify to the following:

(1) [Licensee] has informed [Lessee] at the time of [entering into OR renewal of] this agreement of the foreign sponsorship disclosure requirement contained in 47 CFR 73.1212(j);

(2) [Licensee] has inquired of [Lessee] at the time of [entering into OR renewal of] this agreement whether [Lessee] falls into any of the categories listed in the Federal Communications Commission's (FCC) rules at 47 CFR 73.1212(j) such that the [Lessee] qualifies as a “foreign governmental entity,”;

The FCC's rules state that term “foreign governmental entity” includes a “government of a foreign country,” “foreign political party,” an “agent of a foreign principal,” and a “United States-based foreign media outlet.” 47 CFR 73.1212(j)(2). The FCC's rules, at 47 CFR 73.1212(j)(2)(i) through (iv), defines these terms in the following manner:

(i) The term “government of a foreign country” has the meaning given such term in the Foreign Agents Registration Act of 1938 (FARA), 22 U.S.C. 611(e);

(ii) The term “foreign political party” has the meaning given such term in the Foreign Agents Registration Act of 1938 (FARA), 22 U.S.C. 611(f);

(iii) The term “agent of a foreign principal” has the meaning given such term in the Foreign Agents Registration Act of 1938 (22 U.S.C. 611(c)), and who is registered as such with the Department of Justice, and whose “foreign principal” is a “government of a foreign country,” a “foreign political party,” or directly or indirectly operated, supervised, directed, owned, controlled, financed, or subsidized by a “government of a foreign country” or a “foreign political party” as defined in § 73.1212(j)(2)(i) and (ii), and that is acting in its capacity as an agent of such “foreign principal;”

(iv) The term “United States-based foreign media outlet” has the meaning given such term in Section 722(a) of the Communications Act of 1934 (47 U.S.C. 624(a)).

(3) [Licensee] has inquired of [Lessee] at the time of [entering into OR renewal of] this agreement whether [Lessee] knows if any individual/entity further back in the chain of producing or distributing the programming that will be aired pursuant to the lease agreement, or a sub-lease, qualifies as a “foreign governmental entity,” as that term is defined above, and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself;

(4) [Lessee] certifies that it [is OR is not] a “foreign governmental entity,” as that term is defined above;

(5) If applicable: [Lessee] certifies that to its knowledge [Individual/Entity] qualifies as a “foreign governmental entity,” as that term is defined above, and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself;

(6) If applicable: [Lessee] certifies that to its knowledge there is no individual/entity further back in the chain of producing or distributing the programming that will be aired pursuant to the lease agreement, or sub-lease, that qualifies as a “foreign governmental entity,” as that term is defined above, and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself;

(7) If applicable: [Lessee] certifies that to its knowledge there is an individual/entity further back in the chain of producing or distributing the programming that will be aired pursuant to the lease agreement, or sub-lease, that qualifies as a “foreign governmental entity,” as that term is defined above, and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself. The name, address, phone number, and email address, if known, of such individual/entity is [individual/entity name, address, phone number, and email address, if known];

(8) To the extent applicable, [Lessee] has provided [Licensee] the information needed to append the following disclosure to lessee's programming consistent with the FCC's rules, found at 47 CFR 73.1212(j)(1)(i):

“The [following/preceding] programming was [sponsored, paid for, or furnished], either in whole or in part, by [name of foreign governmental entity] on behalf of [name of foreign country].”

(9) [Lessee] certifies that during the course of the lease agreement, [Lessee] commits to notify [Licensee] if [Lessee's] status as a “foreign governmental entity” changes or if [Lessee] learns that there is an individual/entity further back in the chain of producing or distributing the programming that will be aired pursuant to the lease agreement, or sub-lease, that qualifies as a “foreign governmental entity,” as that term is defined above, and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself.

I, [insert name of individual/entity authorized to certify on behalf of Lessee] by my signature attest to the truth of the statements listed above.

24. We seek comment both on the utility of providing standardized language for licensees and lessees to use for their respective certifications and on the specific language laid out above. Should the standard certification language be modified in any way to better suit the needs of licensees or lessees, including licensees and lessees that are small entities?

25. A section 325(c) permit is required when an entity produces programming in the United States but, rather than broadcasting the programming from a U.S.-licensed station, transmits or delivers the programming from a U.S. studio to a non-U.S. licensed station in a foreign country for broadcast by the foreign station into the United States. Given the nature of the section 325(c) permits, pursuant to § 73.1212(k) of the Commission rules, the foreign sponsorship identification disclosure requirements apply to any programming permitted to be delivered to foreign broadcast stations under an authorization pursuant to section 325(c) of the Act if the material has been (i) sponsored by a foreign governmental entity; (ii) paid for by a foreign governmental entity; (iii) furnished for free by a foreign governmental entity to the section 325(c) permit holder as an inducement to air the material on the foreign station; or (iv) provided by the section 325(c) permit holder to the foreign station where the section 325(c) permit holder is a foreign governmental entity. Where the section 325(c) permit holder itself is a foreign governmental entity, the disclosure requirements apply to all programming provided by the permit holder to a foreign station.

26. In proposing § 73.1212(k), the Commission noted that applying foreign sponsorship identification disclosures to programs permitted to be delivered to foreign broadcast stations under an authorization pursuant to section 325(c) of the Act would level the playing field between programming aired by non-U.S. and U.S. broadcasters in the same geographic area within the United States and would eliminate any potential loophole in our regulatory framework with respect to the identification of foreign government-provided programming that may result from this proceeding. Under § 73.1212(j), if a content provider, including one that also holds a section 325(c) permit, meets the definition of foreign governmental entity and provides its content to a U.S. broadcaster under a lease agreement, its content is subject to foreign sponsorship identification disclosures. If such a content provider provides the same content to a foreign broadcast station under its section 325(c) permit, such content also is subject to foreign sponsorship identification disclosures. The disclosure requirements in that situation apply to materials permitted to be delivered to a foreign broadcast station under an authorization pursuant to section 325(c) of the Act regardless of the nature of the arrangement, if any, between the permit holder and the foreign broadcast station. In the context of section 325(c) permits, leasing of airtime is not a relevant prerequisite for application of the foreign sponsorship identification rules because section 325(c) permit holders' foreign broadcast arrangements can be struck in various ways, not just through leasing of airtime, under the laws of foreign countries. In this context, our rules ensure that no material provided by a permit holder that is a foreign governmental entity is broadcast into the United States through the use of section 325(c) permits without the appropriate disclosures. To provide greater clarity regarding the application of these disclosure requirements in the context of programming subject to a section 325(c) permit, we propose to modify § 73.1212(k) as shown in Appendix A. Pending a determination as to whether the proposed due diligence modifications to 47 CFR 73.1212(j) should apply to section 325(c) permittees, our proposed revisions to subsection (k) reflect the subsection (j) duty to memorialize due diligence efforts.

27. We expect that a section 325(c) permit holder would have direct knowledge of whether it is a foreign governmental entity as that term is defined in § 73.1212(j) of the rules and whether disclosures are required on that basis. However, even if a permit holder is not itself a foreign governmental entity, the disclosure requirements apply to any part of its programming that is sponsored, paid for, or furnished for free by a foreign governmental entity either directly to the permit holder or to an entity farther back in the content production chain. We seek comment on whether there is a need to apply any due diligence requirements proposed in this Second NPRM to any programming permitted to be delivered to a foreign station pursuant to a section 325(c) permit and, if applicable, whether the proposed certifications or other due diligence documentation should be placed in the IBFS by section 325(c) permit holders and for how long.

28. We tentatively conclude that the certification requirements we propose above are consistent with both the Act and the court's decision in NAB v. FCC. Section 317(c) of the Act states that the licensee of each radio station shall exercise reasonable diligence to obtain from its employees, and from other persons with whom it deals directly in connection with any program or program matter for broadcast, information to enable such licensee to make the announcement required by this section. Section 317(e), in turn, directs the Commission to prescribe appropriate rules and regulations to carry out the provisions of section 317. We tentatively conclude that sections 317(c) and (e) together provide ample authority to implement our proposed requirement that a licensee make inquiries of a lessee in the form of a certification and seek a lessee's response in the form of a reciprocal certification. We tentatively conclude that such an inquiry requirement for the licensee is entirely consistent with its statutory reasonable diligence obligation to discern the lessee's status as a “foreign governmental entity” and what the lessee knows about those further back in the chain of producing and distributing the programming. The licensee must ask these questions of lessee to obtain the information needed “to enable such licensee to make the announcement required by [section 317(c)].” We seek comment on these tentative conclusions.

29. Consistent with the court's holding that section 317(c) imposes only a duty of inquiry for licensees, rather than a duty to investigate and verify, the proposal contained in this Second NPRM merely requires licensees to certify to inquiries they must already undertake pursuant to the existing foreign sponsorship identification rules and formalizes the existing requirement to memorialize such inquiries. Accordingly, we tentatively conclude that our proposed certification requirements are consistent with the D.C. Circuit's vacatur of the prior requirement that a licensee independently verify whether a lessee is a “foreign governmental entity” by consulting two federal government sources. The court did not question the Commission's authority to require inquiries and memorialize responses, as we propose to do more formally today. Further, the proposed certification requirements do not require, or have the effect of requiring, licensees to engage in any “investigation” regarding the lessee's status nor to consult with any person or source other than that with whom it deals directly, namely, the lessee. We seek comment on these tentative conclusions.

30. With regard to the lessee specifically, we note that sections 507(b)-(c) impose an obligation on the lessee to disclose information relevant to determining whether a sponsorship identification is required. Section 507(c) states that any person who supplies to any other person program or program matter which is intended for broadcasting over any radio station shall, in advance of such broadcast, disclose to such other person any information of which he has knowledge, or which has been disclosed to him, as to any money, service or other valuable consideration which any person has paid or accepted, or has agreed to pay or accept, for the inclusion of any matter as a part of such program. As the individual/entity providing the programming to the licensee, the lessee is subject to the strictures of section 507(c). Likewise, section 507(b) imposes the same obligations on those involved in the production or preparation of programming and would similarly apply to the lessee if the lessee were involved in the production or preparation of the programming. The significance of lessee's transmission of relevant information is highlighted by the fact that section 317(b) of the Act requires the licensee to take note of information received pursuant to the section 507 disclosure requirement. We seek comment on the analysis laid out above with regard to section 507 of the Act.

31. We also seek comment on an alternative approach raised by the D.C. Circuit. At oral argument, the court asked whether it would be consistent with the Act and accomplish the same goal as the requirement that the court ultimately vacated to instead require a licensee to ask its lessee to provide the licensee with appropriate documentation ( e.g., the relevant FARA page showing that its sponsors are not listed there). In accord with the court's question, would it be consistent with the Commission's authority under section 317 to define licensees' reasonable diligence obligation by requiring them to seek or obtain such proof from lessees ( e.g., by a screen shot)? Should a licensee have to seek or obtain from its lessee proof that the lessee's name does not appear in either the FARA database or the Commission's U.S.-based foreign media outlet reports? Would this approach accomplish the same purpose as the vacated rule requirement? What would be the burdens of this approach on licensees and lessees? Would it have any benefits or drawbacks as compared to requiring the licensee to obtain a certification from the lessee?

32. As stated above, on July 19, 2021, the Affiliates filed a Petition for Clarification regarding the meaning of the phrase “traditional, short-form advertising” as it appeared in the Order . In their Petition, the Affiliates seek a clarification that the foreign sponsorship identification rules, and in particular the inquiries associated with these rules, do not apply when a station “sells time to advertisers in the normal course of business,” in contrast to when it leases airtime on the station. According to the Affiliates, the reference to “traditional short-form advertising” as an exception to the foreign sponsorship identification requirements has caused confusion amongst the Affiliates' members about what type of programming arrangements are subject to the requirements. As stated, the Affiliates' Petition generated minimal response. We seek comment on whether experience with these rules has provided licensees or others with additional insight regarding the issues raised in the Petition and specifically what criteria the Commission might adopt to distinguish between advertising and programming arrangements for the lease of airtime in a way that does not jeopardize the Commission's goals in this proceeding. For example, we seek comment on whether there are key characteristics that could assist in distinguishing advertising spots from a lease of airtime on a station, such as duration, content, editorial control, or differences in the nature of the contractual relationship between the licensee and the entity that purchases an advertising spot versus leasing airtime for programming. What criteria might we adopt to ensure that the concept of “advertising” does not subsume “leased time” or vice versa? Might the establishment of a safe harbor assist in this regard? For example, could we establish a presumption that any broadcast matter that is two minutes or less in length, absent any other indicia, will be considered “short-form advertising” for purposes of the foreign sponsorship identification rules?

33. Finally, the Commission, as part of its continuing effort to advance digital equity for all, including people of color, persons with disabilities, persons who live in rural or Tribal areas, and others who are or have been historically underserved, marginalized, or adversely affected by persistent poverty or inequality, invites comment on any equity-related considerations and benefits (if any) that may be associated with the proposals and issues discussed herein. Specifically, we seek comment on how our proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility, as well the scope of the Commission's relevant legal authority.

34. Ex Parte Rules—Permit-But-Disclose. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda, or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written in ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format ( e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

35. Filing Requirements—Comments and Replies. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.1415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

36. Initial Regulatory Flexibility Act Analysis. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that a regulatory flexibility analysis be prepared for notice and comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) is independently owned and operated; (2) is not dominated in its field of operations; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

37. With respect to this Second Notice of Proposed Rulemaking, an Initial Regulatory Flexibility Analysis (IRFA) under the RFA is contained in the Appendix. Written public comments are required on the IRFA and must be filed in accordance with the same filing deadlines as comments on this Notice of Proposed Rulemaking, with a distinct heading designating them as responses to the IRFA. In addition, a copy of this Notice of Proposed Rulemaking and the IRFA will be sent to the Chief Counsel for Advocacy of the SBA and will be published in the Federal Register .

38. Paperwork Reduction Act. This document seeks comment on whether the Commission should adopt new information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens and pursuant to the Paperwork Reduction Act of 1995, Public Law 104-13, invites the general public and the Office of Management and Budget (OMB) to comment on these information collection requirements. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

39. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and rules proposed in this Second Notice of Proposed Rulemaking ( Second NPRM ). The Commission requests written public comments on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments specified in the Second NPRM . The Commission will send a copy of the Second NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the Second NPRM and IRFA (or summaries thereof) will be published in the Federal Register .

40. On April 22, 2021, the Commission released a Report and Order adopting a requirement that radio and television stations broadcast clear disclosures for programming that is provided by a foreign governmental entity and setting forth the procedures whereby stations must exercise reasonable diligence to determine whether such a disclosure is required. The Commission promulgated these foreign sponsorship identification rules in response to reports of undisclosed foreign government programming being transmitted by U.S. broadcast stations. The Commission's rules established a definition of “foreign governmental entity” based on existing definitions, statutes, or determinations by the U.S. government. The Commission's requirements apply to leased programming because the record in the underlying proceeding identified leased airtime as the primary means by which foreign governmental entities are accessing U.S. airwaves to persuade the American public without adequately disclosing the true sponsor. The Commission promulgated the foreign sponsorship identification rules based on a fundamental and long-standing tenet of broadcast regulation; namely, that the public has a right to know the identity of those soliciting their support.

41. On August 13, 2021, the National Association of Broadcasters (NAB) and two public interest groups (collectively, “Petitioners”) filed a Petition for Review of the Commission's Order with the U.S. Court of Appeals for the District of Columbia Circuit challenging the Commission's reasonable diligence requirements, alleging that the Commission lacked statutory authority to adopt such requirements. On July 12, 2022, the D.C. Circuit ruled on the Petition for Review, upholding the core of the foreign sponsorship identification rules but vacating the requirement that broadcasters check two federal sources to verify whether a lessee is a “foreign governmental entity,” as that term is defined in the Commission's rules.

42. The Second Notice of Proposed Rulemaking ( Second NPRM ) seeks to fortify the Commission's rules in the wake of the court's decision by proposing that, in order to comply with the “reasonable diligence” requirement regarding foreign sponsorship identification, a licensee must certify that it has informed its lessee of the foreign sponsorship identification rules and sought, or obtained, a certification from its lessee stating whether the lessee is or is not a foreign governmental entity pursuant to the rules. The Second NPRM also proposes that the lessee submit a certification in response to licensee's request. These new certification requirements would subsume the duty of licensees under § 73.1212(j)(3)(v) of our rules to memorialize and retain their reasonable diligence inquiries. The Second NPRM also seeks comment on an alternative approach to the certification requirement. This alternative approach was raised as a hypothetical during the oral argument before the D.C. Circuit in NAB v. FCC . Under this approach, in the event that a lessee states it is not a “foreign governmental entity” a licensee must obtain from the lessee appropriate documentation ( e.g., a screen shot(s)) showing that the lessee's name does not appear on either of the two federal government websites which the Commission identified in the Order as reference points for determining whether a given individual/entity is a “foreign governmental entity.” Finally, the Second NPRM provides interested parties an additional opportunity to comment on a pending Petition for Clarification regarding the applicability of the foreign sponsorship identification rules to broadcast stations when they sell time to advertisers in the normal course of business.

43. The proposed action is authorized under sections 1, 2, 4(i), 4(j), 303(r), 307, 317, 325(c), 403, and 507 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(j), 303(r), 307, 317, 325(c), 403, and 508.

44. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rule revisions, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act (SBA). A small business concern is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. Below, we provide a description of such small entities, as well as an estimate of the number of such small entities, where feasible.

45. Television Broadcasting. This industry is comprised of “establishments primarily engaged in broadcasting images together with sound.” These establishments operate television broadcast studios and facilities for the programming and transmission of programs to the public. These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA small business size standard for this industry classifies businesses having $41.5 million or less in annual receipts as small. 2017 U.S. Census Bureau data indicate that 744 firms in this industry operated for the entire year. Of that number, 657 firms had revenue of less than $25,000,000. Based on this data we estimate that the majority of television broadcasters are small entities under the SBA small business size standard.

46. As of June 2022, there were 1,373 licensed commercial television stations. Of this total, 1,280 stations (or 93.2%) had revenues of $41.5 million or less in 2021, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on June 1, 2022, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission estimates as of June 2022, there were 384 licensed noncommercial educational (NCE) television stations, 383 Class A TV stations, 1,865 LPTV stations and 3,224 TV translator stations. The Commission, however, does not compile and otherwise does not have access to financial information for these television broadcast stations that would permit it to determine how many of these stations qualify as small entities under the SBA small business size standard. Nevertheless, given the SBA's large annual receipts threshold for this industry and the nature of these television station licensees, we presume that all of these entities qualify as small entities under the above SBA small business size standard.

47. Radio Broadcasting. This industry is comprised of “establishments primarily engaged in broadcasting aural programs by radio to the public.” Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA small business size standard for this industry classifies firms having $41.5 million or less in annual receipts as small. U.S. Census Bureau data for 2017 show that 2,963 firms operated in this industry during that year. Of this number, 1,879 firms operated with revenue of less than $25 million per year. Based on this data and the SBA's small business size standard, we estimate a majority of such entities are small entities.

48. The Commission estimates that as of June 30, 2022, there were 4,498 licensed commercial AM radio stations and 6,689 licensed commercial FM radio stations, for a combined total of 11,187 commercial radio stations. Of this total, 11,185 stations (or 99.98%) had revenues of $41.5 million or less in 2021, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Database (BIA) on June 1, 2022, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission estimates that as of June 30, 2022, there were 4,184 licensed noncommercial (NCE) FM radio stations, 2,034 low power FM (LPFM) stations, and 8,951 FM translators and boosters. The Commission however does not compile, and otherwise does not have access to financial information for these radio stations that would permit it to determine how many of these stations qualify as small entities under the SBA small business size standard. Nevertheless, given the SBA's large annual receipts threshold for this industry and the nature of these radio station licensees, we presume that all of these entities qualify as small entities under the above SBA small business size standard.

49. We note, however, that in assessing whether a business concern qualifies as “small” under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, another element of the definition of “small business” requires that an entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific radio or television broadcast station is dominant in its field of operation. Accordingly, the estimate of small businesses to which the rules may apply does not exclude any radio or television station from the definition of a small business on this basis and is therefore possibly over-inclusive. An additional element of the definition of “small business” is that the entity must be independently owned and operated. Because it is difficult to assess these criteria in the context of media entities, the estimate of small businesses to which the rules may apply does not exclude any radio or television station from the definition of a small business on this basis and similarly may be over-inclusive.

50. The Order had established certain requirements that licensees had to meet to comply with the “reasonable diligence” standard of section 317(c) of the Act, with regard to foreign government-provided programming. Specifically, pursuant to the Order, a licensee had to, at a minimum:

(1) Inform the lessee at the time of agreement and at renewal of the foreign sponsorship disclosure requirement;

(2) Inquire of the lessee at the time of agreement and at renewal whether it falls into any of the categories that qualify it as a “foreign governmental entity;”

(3) Inquire of the lessee at the time of agreement and at renewal whether it knows if anyone further back in the chain of producing/distributing the programming that will be aired pursuant to the lease agreement, or a sub-lease, qualifies as a foreign governmental entity and has provided some type of inducement to air the programming;

(4) Independently confirm the lessee's status, at the time of agreement and at renewal by consulting the Department of Justice's FARA website and the Commission's semi-annual U.S.-based foreign media outlets reports for the lessee's name. This need not be done if the lessee has already disclosed that it falls into one of the covered categories and/or that there is a separate need for a disclosure because an entity/individual further back in the chain of producing/transmitting the programming falls into one of the covered categories and has provided some form of service, consideration, or, in the case of political programming the programming itself, as an inducement to broadcast the programming; and

(5) Memorialize the above-listed inquiries and investigations and retain such memorialization in its records for the remainder of the then current license term or one year, whichever is longer.

51. Following the Petitioners' challenge to the Order, the D.C. Circuit decision vacated the fourth reasonable diligence requirement itemized above, leaving all other elements of the Commission's rules in place. The Second NPRM seeks to fortify the rules in the wake of the court's decision by proposing that a licensee must certify it has informed its lessee of the foreign sponsorship identification rules and obtained, or sought to obtain, a certification from its lessee stating whether the lessee is or is not a “foreign governmental entity,” as that term is defined in the Commission's rules. The Second NPRM also proposes that the lessee submit a certification in response to the licensee's request. These new certification requirements, if adopted by the Commission, would replace the duty of a licensee, as laid out above in items (1), (2), and (3) to inquire of its lessee whether it, or anyone further back in the chain of distributing/producing the programming, qualifies as a “foreign governmental entity,” and has provided some type of inducement ( e.g., compensation) to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself. The proposed certifications themselves would replace the memorialization requirement contained in item (5) above.

52. The Second NPRM recognizes that there may be rare instances in which a lessee declines to make the necessary certification or fails to submit the certification regarding its status to the licensee. The Second NPRM seeks comment on whether, in these limited instances, the licensee's own certification is sufficient to demonstrate that the licensee has complied with its obligation to inform the lessee of the foreign sponsorship identification rules and to seek a certification from lessee. The Second NPRM asks whether requiring the licensee to notify the Commission about lessee's failure to certify would alleviate some of the concerns associated with lessee's lack of response. In the event that the licensee decides to proceed with the lease agreement, the Second NPRM seeks comment on whether to require the licensee to notify the Commission's Media Bureau, via a designated email box, about a lessee's failure to certify along with the lessee's full name and contact information (such as address, email address, and/or telephone number).

53. Submission of Certifications to the Commission. The Second NPRM tentatively concludes that submission of licensee's and lessee's certifications to the Commission provides an efficient and transparent means of verifying compliance with the certification requirement. Given that a licensee must already upload copies of its lease agreements to its online public inspection file (OPIF), and that this certification process will essentially occur at the time of entering into, or renewing a lease, the Second NPRM tentatively concludes that the licensee should upload both its own and the lessee's certifications into the same public inspection file in which it places its lease agreements. While the Second NPRM does not propose to require that the certifications be incorporated into the lease agreement, it notes that incorporation into the lease, or attachment as an appendix to the lease, could be the most efficient means of ensuring the certification process is completed. The Second NPRM notes that a number of broadcasters already incorporate into their leases provisions concerning compliance with various Commission requirements.

54. In accordance with the current requirements for licensees to place their lease agreements into their OPIFs within 30 days of execution, the Second NPRM proposes that licensees place the certifications into their OPIFs within 30 days of execution. This filing period will impose minimal additional burden on licensees given that licensees should, under existing rules, be accustomed to placing copies of their agreements in their public files. For licensees that do not have obligations to maintain OPIFs, the Second NPRM proposes that such licensees retain a record of the certifications in their station files within 30 days of execution.

55. Time Period for Retaining Certifications. The Second NPRM proposes to align the time period for retaining the certifications with the current time period for retaining lease agreements in the licensees' OPIFs. Specifically, the Second NPRM proposes that, just as a licensee must retain its lease agreement in the public file for as long as the agreement is in force, the certifications should also be retained for this same time period. The Second NPRM tentatively concludes that such an alignment will simplify compliance for licensees by conforming the time period for retaining a lease with the time period for retaining the licensee's documentation of its inquiries of the lessee.

56. Standardized Language to be Included in Certification Requirement. The Second NPRM tentatively concludes that establishing standardized certification language would both minimize the compliance burden on licensees and lessees and bring greater uniformity to the certification process. In this regard, the Second NPRM notes that, in previous filings in this proceeding, certain broadcaster groups had asserted that they would have to expend extensive time and resources to alter their lease agreements so as to obtain certifications from lessees regarding their status. Accordingly, the Second NPRM tentatively concludes that the adoption of standardized certification language should reduce any time and cost licensees have to expend on compliance.

57. Proposed Licensee Certification. The Second NPRM proposes that broadcast licensees use the following standardized language when making the required certifications:

I am authorized on behalf of [Licensee] to certify the following: I certify that in accordance with 47 CFR 73.1212(j), [Licensee] has:

(1) Informed [Lessee] at the time of [entering into OR renewal of] this agreement of the foreign sponsorship disclosure requirement contained in 47 CFR 73.1212(j);

(2) Inquired of [Lessee] at the time of [entering into OR renewal of] this agreement whether [Lessee] falls into any of the categories listed in the Federal Communication's (FCC) rules at 47 CFR 73.1212(j) such that the [Lessee] qualifies as a “foreign governmental entity,”;

The FCC's rules state that term “foreign governmental entity” includes a “government of foreign country,” “foreign political party,” an “agent of a foreign principal,” and a “United States-based foreign media outlet.” 47 CFR 73.1212(j)(2). The FCC's rules, at 47 CFR 73.1212(j)(2)(i) through (iv), define these terms in the following manner:

(i) The term “government of a foreign country” has the meaning given such term in the Foreign Agents Registration Act of 1938 (FARA), 47 U.S.C. 611(e);

(ii) The term “foreign political party” has the meaning given such term in the Foreign Agents Registration Act of 1938 (FARA), 47 U.S.C. 611(f);

(iii) The term “agent of a foreign principal” has the meaning given such term in the Foreign Agents Registration Act of 1938 (22 U.S.C. 611(c)), and who is registered as such with the Department of Justice, and whose “foreign principal” is a “government of a foreign country,” a “foreign political party,” or directly or indirectly operated, supervised, directed, owned, controlled, financed, or subsidized by a “government of a foreign country” or a “foreign political party” as defined in § 73.1212(j)(2)(i) and (ii), and that is acting in its capacity as an agent of such “foreign principal;”

(iv) The term “United States-based foreign media outlet” has the meaning given such term in Section 722(a) of the Communications Act of 1934 (47 U.S.C. 624(a)).

(3) Inquired of [Lessee] at the time of [entering into OR renewal of] this agreement whether it knows if any individual/entity in the chain of producing or distributing the programming that will be aired pursuant to the lease agreement, or a sub-lease, qualifies as a “foreign governmental entity,” as that term is defined in 47 U.S.C. 73.1212(j)(2), and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself;

(4) Sought and obtained from [Lessee] a certification stating whether [Lessee] [is OR is not] a “foreign governmental entity,” as that term is defined in 47 U.S.C. 73.1212(j)(2);

(5) Sought and obtained from [Lessee] a certification about whether it knows if any individual/entity in the chain of producing or distributing the programming that will be aired pursuant to the lease agreement, or a sub-lease, qualifies as a “foreign governmental entity,” as that term is defined in 47 U.S.C. 73.1212(j)(2), and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself; and

(6) If [Lessee] qualifies, or knows of an individual/entity further back in the chain of producing or distributing the programming that qualifies, as a “foreign governmental entity,” pursuant to 47 CFR 73.1212(j)(2), then [Licensee] obtained from [Lessee] the information needed to append the following disclosure to lessee's programming consistent with 47 CFR 73.1212(j)(1)(i):

“The [following/preceding] programming was [sponsored, paid for, or furnished], either in whole or in part, by [name of foreign governmental entity] on behalf of [name of foreign country].”

I, [insert name of individual/entity authorized to certify on behalf of Licensee] by my signature attest to the truth of the statements listed above.

58. Proposed Lessee Certification. The Second NPRM proposes that lessees use the following language when making the required certifications:

I am authorized on behalf of [Lessee] to certify to the following:

(1) [Licensee] has informed [Lessee] at the time of [entering into OR renewal of] this agreement of the foreign sponsorship disclosure requirement contained in 47 CFR 73.1212(j);

(2) [Licensee] has inquired of [Lessee] at the time of [entering into OR renewal of] this agreement whether [Lessee] falls into any of the categories listed in the Federal Communications Commission's (FCC) rules at 47 CFR 73.1212(j) such that the [Lessee] qualifies as a “foreign governmental entity,”;

The FCC's rules state that the term “foreign governmental entity” includes a “government of foreign country,” “foreign political party,” an “agent of a foreign principal,” and a “United States-based foreign media outlet.” 47 CFR 73.1212(j)(2). The FCC's rules, at 47 CFR 73.1212(j)(2)(i) through (iv), defines these terms in the following manner:

(i) The term “government of a foreign country” has the meaning given such term in the Foreign Agents Registration Act of 1938 (FARA), 47 U.S.C. 611(e);

(ii) The term “foreign political party” has the meaning given such term in the Foreign Agents Registration Act of 1938 (FARA), 47 U.S.C. 611(f);

(iii) The term “agent of a foreign principal” has the meaning given such term in the Foreign Agents Registration Act of 1938 (22 U.S.C. 611(c)), and who is registered as such with the Department of Justice, and whose “foreign principal” is a “government of a foreign country,” a “foreign political party,” or directly or indirectly operated, supervised, directed, owned, controlled, financed, or subsidized by a “government of a foreign country” or a “foreign political party” as defined in § 73.1212(j)(2)(i) and (ii), and that is acting in its capacity as an agent of such “foreign principal;”

(iv) The term “United States-based foreign media outlet” has the meaning given such term in Section 722(a) of the Communications Act of 1934 (47 U.S.C. 624(a)).

(3) [Licensee] has inquired of [Lessee] at the time of [entering into OR renewal of] this agreement whether [Lessee] knows if any individual/entity further back in the chain of producing or distributing the programming that will be aired pursuant to the lease agreement, or a sub-lease, qualifies as a “foreign governmental entity,” as that term is defined in 47 CFR 73.1212(j)(2), and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself;

(4) [Lessee] certifies that it [is OR is not] a “foreign governmental entity,” as that term is defined in 47 CFR 73.1212(j)(2);

(5) If applicable: [Lessee] certifies that to its knowledge [Individual/Entity] qualifies as a “foreign governmental entity,” as that term is defined in 47 CFR 73.1212(j)(2), and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself;

(6) If applicable: [Lessee] certifies that to its knowledge there is no individual/entity further back in the chain of producing or distributing the programming that will be aired pursuant to the lease agreement, or sub-lease, that qualifies as a “foreign governmental entity,” as that term is defined in 47 CFR 73.1212(j)(2), and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself;

(7) If applicable: [Lessee] certifies that to its knowledge there is an individual/entity further back in the chain of producing or distributing the programming that will be aired pursuant to the lease agreement, or sub-lease, that qualifies as a “foreign governmental entity,” as that term is defined in 47 CFR 73.1212(j)(2), and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself. The name, address, phone number, and email address, if known, of such individual/entity is [individual/entity name, address, phone number, and email address, if known];

(8) To the extent applicable, [Lessee] has provided [Licensee] the information needed to append the following disclosure to lessee's programming consistent with the FCC's rules, found at 47 CFR 73.1212(j)(1)(i):

“The [following/preceding] programming was [sponsored, paid for, or furnished], either in whole or in part, by [name of foreign governmental entity] on behalf of [name of foreign country].”

(9) [Lessee] certifies that during the course of the lease agreement, [Lessee] commits to notify [Licensee] if [Lessee's] status as a “foreign governmental entity” changes or if [Lessee] learns that there is an individual/entity further back in the chain of producing or distributing the programming that will be aired pursuant to the lease agreement, or sub-lease, that qualifies as a “foreign governmental entity,” as that term is defined in 47 CFR 73.1212(j)(2), and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself.

I, [insert name of individual/entity authorized to certify on behalf of Lessee] by my signature attest to the truth of the statements listed above.

59. Section 325(c) Permits. A section 325(c) permit is required when an entity produces programming in the United States but, rather than broadcasting the programming from a U.S.-licensed station, transmits or delivers the programming from a U.S. studio to a non-U.S. licensed station in a foreign country for broadcast by the foreign station into the United States. The Second NPRM seeks to clarify under § 73.1212 of the Commission's rules that the foreign sponsorship identification disclosure requirements apply to any programming permitted to be delivered to foreign broadcast stations under an authorization pursuant to section 325(c) of the Act if the material has been (i) sponsored by a foreign governmental entity; (ii) paid for by a foreign governmental entity; (iii) furnished for free by a foreign governmental entity to the section 325(c) permit holder as an inducement to air the material on the foreign station; or (iv) provided by the section 325(c) permit holder to the foreign station where the section 325(c) permit holder is a foreign governmental entity. Where the section 325(c) permit holder itself is a foreign governmental entity, the disclosure requirements apply to all programming provided by the permit holder to a foreign station. The Second NPRM also seeks comment on whether there is a need to apply any reasonable diligence requirements proposed in this Second NPRM to any programming permitted to be delivered to a foreign station pursuant to a section 325(c) permit and if applicable whether the proposed certifications or other due diligence documentation should be placed in the IBFS by section 325(c) permit holders.

60. The Second NPRM proposes the following language to replace the existing language of § 73.1212(k):

Where any material delivered to foreign broadcast stations under an authorization pursuant to section 325(c) of the Communications Act (47 U.S.C. 325(c)) has been sponsored by a foreign governmental entity; paid for by a foreign governmental entity; furnished for free by a foreign governmental entity to the section 325(c) permit holder as an inducement to air the material on the foreign station; or provided by the section 325(c) permit holder to the foreign station where the section 325(c) permit holder is a foreign governmental entity, the material must include, at the time of broadcast, the following disclosure, in conformance with the terms of paragraphs (j)(4)-(6): “The [following/preceding] programming was [sponsored, paid for, or furnished], either in whole or in part, by [name of foreign governmental entity] on behalf of [name of foreign country].” A section 325(c) permit holder shall ensure that the foreign station will broadcast the disclosures along with the material and shall place copies of the disclosures required along with the name of the program to which the disclosures were appended in the International Bureau's public filing system (IBFS) under the relevant IBFS section 325(c) permit file. The filing must state the date and time the program aired. In the case of repeat airings of the program, those additional dates and times should also be included. Where an aural announcement was made, its contents must be reduced to writing and placed in the IBFS in the same manner. The section 325(c) permit holder shall exercise reasonable diligence to ascertain whether the foreign sponsorship disclosure requirements of paragraphs (j)(1) and (j)(4)-(6) apply to any material delivered to a foreign broadcast station, including obtaining from its employees, and from other persons with whom it deals directly in connection with any matter for broadcast, and in the same manner prescribed for broadcast stations in paragraph (j)(3), information to enable the permit holder to include the announcement required by this section; memorializing its conduct of such reasonable diligence; and retaining such documentation in its records for either the remainder of the then-current permit term or one year, whichever is longer, so as to respond to any future Commission inquiry. The term “foreign governmental entity” shall have the meaning set forth in paragraph (j)(2).

61. Alternative Approach. The Second NPRM also seeks comment on an alternative approach raised by the D.C. Circuit. At oral argument, the court asked whether it would be consistent with the Act and accomplish the same goal as the requirement that the court ultimately vacated to instead require licensees to ask lessees to provide appropriate documentation ( e.g., the relevant FARA page showing that their sponsors are not listed there). In accord with the court's question, the Second NPRM asks whether would it be consistent with the Commission's authority under section 317 of the Act to require licensees to seek or obtain such proof from lessees ( e.g., by a screen shot)? Should a licensee have to seek or obtain from its lessee proof that the lessee's name does not appear in either the FARA database or the Commission's U.S.-based foreign media outlet reports? Would this approach accomplish the same purpose as the vacated rule requirement? What would be the burdens of this approach on licensees and lessees? Would it provide greater assurance of ensuring identification of any foreign governmental entity sponsorship of the programming at issue compared to requiring the licensee to obtain a certification from the lessee?

62. Petition for Clarification. Finally, the Second NPRM provides interested parties an additional opportunity to comment on a pending Petition for Clarification “regarding the applicability of the foreign sponsorship identification rules to advertisements sold by local broadcast stations.” The Second NPRM seeks comment on whether experience with these rules has provided broadcasters or others with additional insight regarding the issues raised in the Petition and specifically what criteria the Commission might adopt to distinguish between advertising and programming arrangements for the lease of airtime. For example, are there key characteristics that could assist in distinguishing advertising spots from a lease of airtime on a station, such as duration, content, editorial control, or differences in the nature of the contractual relationship between the licensee and the entity that purchases an advertising spot versus leasing airtime for programming. What criteria might the Commission adopt to ensure that the concept of “advertising” does not subsume “leased time” or vice versa? Additionally, might the establishment of a safe harbor assist in this regard? For example, could the Commission establish a presumption that any broadcast matter that is two minutes or less in length, absent any other indicia, will be considered “short-form advertising” for purposes of the foreign sponsorship identification rules?

63. 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.

64. In proposing certification requirements, the Commission has carefully considered the resources available to radio and television broadcast stations, many of which are small entities. The Second NPRM proposes a certification process for licensees and lessees using proposed standardized certification language, which should significantly reduce the cost, time, and effort that licensees and lessees have to expend to comply with the “reasonable diligence” standard contained in section 317(c) of the Act with regard to foreign government-provided programming. The establishment of standardized certification language would eviscerate any need for licenses or lessees to seek outside assistance in crafting or reviewing certifications. Licensees and lessees can cut and paste the standardized certification language into the relevant documents and fill in simple details such as the name of the licensee or lessee, whether the lessee is or is not a foreign governmental entity, and the name of any foreign governmental sponsor further back in the programming chain. Separately, by seeking comment on the alternative approach offered by the D.C. Circuit, as described in paragraph 22, we seek feedback on other mechanisms that could potentially streamline the process for small broadcasters tasked with satisfying their reasonable diligence requirements under the Commission's rules. Additionally, the Second NPRM proposes and seeks comment on the harmonization of the time period for retaining certifications within the licensee's OPIF and the time period for retaining lease agreements. As stated in the Second NPRM, such an alignment can further simplify compliance for licensees.

65. None.

66. Accordingly, it is ordered that, pursuant to the authority contained in sections 1, 2, 4(i), 4(j), 303(r), 307, 317, 325(c), 403, and 507 of the Communications Act, 47 U.S.C. 151, 152, 154(i), 154(j), 303(r), 307, 317, 325(c), 403, and 508 this Second Notice of Proposed Rulemaking is adopted .

67. It is further ordered that, pursuant to applicable procedures set forth in §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on the Second Notice of Proposed Rulemaking in MB Docket No. 20-299 on or before thirty (30) days after publication in the Federal Register and reply comments on or before sixty (45) days after publication in the Federal Register .

68. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Second Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

The revisions and additions read as follows:

Why We Need To Publish a Proposed Rule. When a species is listed as threatened, section 4(d) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq. ), gives discretion to the Secretary of the Interior (Secretary) to issue regulations that the Secretary deems necessary and advisable to provide for the conservation of such species. In light of the rise in international trade of live elephants, particularly of wild-sourced elephants, we have reevaluated the provisions of the regulations that were issued under section 4(d) of the ESA for the African elephant. We propose to revise the 4(d) rule (in part 17 of title 50 of the Code of Federal Regulations at 50 CFR 17.40(e)) by adopting measures that are necessary and advisable for the current conservation needs of the species, based on our evaluation of the current threats to the African elephant. This proposed 4(d) rule would remove from 50 CFR 17.40(e)(2) the exception from prohibitions for import, export, interstate commerce, and foreign commerce in live African elephants, except when a permit can be issued under 50 CFR part 17. The proposed rule would also establish the standards used to evaluate “enhancement” under the ESA for the import of wild-sourced live African elephants under a new proposed 50 CFR 17.40(e)(10). That provision would establish an annual certification requirement for range countries that allow for export of live African elephants destined for the United States to provide the Service with information about the management and status of African elephants in their country.

This proposed rule would also clarify our evaluation of the existing enhancement requirement regarding applications for the import of sport-hunted trophies by adding a new provision to 50 CFR 17.40(e)(6). That provision would establish an annual certification requirement for range countries that allow for export of sport-hunted trophies destined for the United States to provide the Service with information about the management and status of African elephants and the hunting programs in their country. This proposal would not change the enhancement requirement for the import of sport-hunted trophies under the current 4(d) rule but would clarify how that requirement can be met.

The proposed rule would also include incorporating the CITES National Legislation Project category designations (see 50 CFR 23.7 and http://www.cites.org ) into the acceptance of imports under 50 CFR 17.40(e)(2), (e)(6), and (e)(10) under a new proposed 50 CFR 17.40(e)(11).

We have reevaluated the provisions of the current 4(d) rule and considered other administrative actions in light of the rise in international trade of live African elephants. In addition, we have received a rulemaking petition under the Administrative Procedure Act specifically relating to the import of African elephant sport-hunted trophies. The petition is a request to initiate an expedited rulemaking to reinstate negative enhancement findings for African elephant sport-hunted trophies taken in Zimbabwe (Friends of Animals (FOA), received May 17, 2021).

We are responding to the petition and information provided with it through the proposed revisions in this document to the 4(d) rule for the African elephant.

In the petition described above, FOA requests the Service to: (1) repeal or amend the memorandum dated March 1, 2018, in which the Service withdrew certain findings for ESA-listed species taken as sport-hunted trophies; (2) reinstate the Enhancement Finding for African Elephants Taken as Sport-hunted Trophies in Zimbabwe On or After January 1, 2015 (Mar. 26, 2015); and (3) enact an immediate moratorium on the importation of African elephant sport-hunted trophies from Zimbabwe. Additional information can be found below in Basis for Proposed Regulatory Changes; however, in summary, the Service previously issued enhancement findings for the import of African elephant sport-hunted trophies on a country-by-country basis ( i.e., on a “countrywide” basis). In response to a D.C. Circuit Court opinion, Safari Club Int'l v. Zinke, 878 F.3d 316 (D.C. Cir. 2017), on March 1, 2018, the Service revised its procedure for assessing applications to import certain hunted species, including African elephants. We withdrew our countrywide enhancement findings for elephants across several countries including Zimbabwe and now make findings for trophy imports on an application-by-application basis. On June 16, 2020, the D.C. Circuit upheld the Service's withdrawal of the countrywide findings and implementation of the application-by-application approach in Friends of Animals v. Bernhardt, 961 F.3d 1197 (D.C. Cir. 2020).

This proposed rule clarifies the enhancement criteria for our assessment of an application for the import of an African elephant sport-hunted trophy. Under the proposed rule, applications will continue to be evaluated on an application-by-application basis, but the clarified enhancement criteria include the requirement to obtain information on the status and management of the African elephant within the range country on an annual basis. The clarified enhancement criteria will assist the Service in ensuring that any import of an African elephant sport-hunted trophy contributes to enhancing the conservation of the species and that the import does not contribute to the decline in populations of the species.

Ultimately, under this proposed 4(d) rule, we have determined that there is a conservation need to (1) establish permitting requirements under the ESA for trade in live African elephants, enhancement standards under the ESA for the import of wild-sourced live African elephants, and requirements to ensure proposed recipients of live African elephants are suitably equipped to house and care for the elephants; (2) clarify the enhancement standards for the import of African elephant sport-hunted trophies; and (3) incorporate the CITES National Legislation Project designations into the requirements for certain imports.

We find it is appropriate for the United States to propose requirements under the ESA to ensure that activities with live African elephants under U.S. jurisdiction contribute to enhancing the conservation of the species and that live African elephants are well cared for, so that any domestic demand for live African elephants enhances the conservation of the species and does not contribute to the decline in populations of the species in the wild. In addition, clarifying the enhancement requirement for the import of African elephant sport-hunted trophies and receiving information from the range countries will enable us to ensure that authorized imports contribute to enhancing the conservation of the species and do not contribute to the decline in populations of the species. Clarifying the enhancement standards for the import of African elephant sport-hunted trophies would also increase transparency with stakeholders in the decision-making process. In order to support U.S. African elephant conservation efforts, we propose to allow certain types of imports only from countries that have achieved a Category One designation under the CITES National Legislation Project, which is accomplished by meeting the basic requirements to implement CITES through the Party's adoption of national laws to implement the treaty.

African elephants are a “keystone species” (a species on which other species in an ecosystem largely depend, such that if it were removed the ecosystem would change drastically) and have a unique role in the ecosystem. The species inhabits a wide variety of habitat types, such as savannahs, forests, deserts, and grasslands, and can migrate long distances, depending upon resource availability. African elephants modify habitat through numerous means, such as through bulk processing of plant materials, preventing the encroachment of woodlands onto grasslands, dispersing seeds, and maintaining waterways, among others. As a result of this habitat modification, the species has the potential to alter fire regimes, influence the spatial distribution of other species, and change species richness. Because of the numerous and often complex relationships between African elephants and (1) other African elephants, (2) other species on the landscape, and (3) their environment, the removal of African elephants from the wild has the potential to have large-scale ramifications on the composition and, in turn, health of the ecosystem. According to the International Union for Conservation of Nature, the principal threat to African elephants has been poaching for ivory, but increasingly, development for agriculture, coupled with associated human-elephant conflict as suitable elephant habitat is gradually reduced.

The Service has a responsibility to conserve both domestic and foreign species, and the ESA makes no distinction between foreign species and domestic species in listing species as threatened or endangered. The protections of the ESA, including section 9 and 4(d), generally apply to both listed foreign species and domestic species, and section 8 of the ESA provides authorities for international cooperation on foreign species. However, some significant differences in the Service's authorities result in differences in our ability to affect conservation for foreign and domestic species under the ESA. The major differences are that the Service has no regulatory jurisdiction over take of a listed species in a foreign country, or of trade in listed species outside the United States by persons not subject to the jurisdiction of the United States. 50 CFR 17.21. The Service also does not designate critical habitat within foreign countries or in other areas outside of the jurisdiction of the United States. 50 CFR 424.12(g). The protections of the ESA through listing are likely to have their greatest conservation effect for foreign species with regard to regulating trade to, from, through, or within the United States, and other activities with foreign species in the United States.

Accordingly, we find it is necessary and advisable to propose requirements under the ESA to ensure that activities with live African elephants under U.S. jurisdiction contribute to enhancing the conservation of the species, and that live African elephants are well cared for, so that any demand for live African elephants in the United States enhances the conservation of the species and does not contribute to the decline in populations of the species in the wild. We also evaluated our current process for making ESA enhancement findings related to permit applications requesting the import of sport-hunted trophies of African elephants. We considered how our permitting process and resulting decisions could be more transparent so that applicants, the public, and stakeholders understand the requirements under the ESA. In order to clarify and improve this process, we are proposing to add new provisions to 50 CFR 17.40(e)(6) and 50 CFR 17.40(e)(10) that would establish an annual certification requirement for African elephant range countries that export sport-hunted African elephant trophies or live, wild-sourced African elephants to the United States to provide the Service with information about the management and status of African elephants and the hunting programs in their country. This requirement and the information from the range countries will be a part of our decision-making on applications to permit the import of African elephant sport-hunted trophies or live, wild-sourced African elephants. It will enable us to ensure that authorized imports contribute to enhancing the conservation of the species and that the imports do not contribute to the decline in populations of the species.

Clarifying the enhancement standards and improving this process for the import of African elephant sport-hunted trophies or live, wild-sourced African elephants would also increase transparency with stakeholders and more efficient evaluations of applications. This proposed change to the 4(d) rule would not have any effect on the ability of U.S. citizens to travel to countries that allow hunting of African elephants and engage in sport hunting. The import of any associated sport-hunted trophy into the United States would continue to be regulated and require an enhancement finding and threatened species import permit. The proposed measures are also anticipated to support development and implementation of effective management measures in foreign countries that enhance African elephant conservation.

Further, we find it necessary to ensure that we allow African elephant imports only from countries that have met the basic requirement to implement CITES under their national laws. Thus, we propose to incorporate a requirement that certain African elephant imports, including live elephants, sport-hunted trophies, and parts or products other than ivory and sport-hunted trophies, be considered only when the country of origin and export or re-export has achieved a Category One designation under the CITES National Legislation Project. Making this proposed regulatory change would further ensure that authorized imports of African elephants are not detrimental to the survival of the species.

In the United States, the African elephant is protected under the ESA, the African Elephant Conservation Act (AfECA) (16 U.S.C. 4201 et seq. ), and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES or Convention) (27 U.S.T. 1087), as implemented in the United States through the ESA.

Endangered Species Act. Under the ESA, species may be listed either as “endangered” or “threatened.” When a species is listed as endangered under the ESA, certain actions are prohibited under section 9 (16 U.S.C. 1538), as specified at 50 CFR 17.21. With respect to endangered species of fish or wildlife, these include prohibitions on import; export; take within the United States, within the territorial seas of the United States, or upon the high seas; possession and other acts with unlawfully taken specimens; delivery, receipt, carriage, transport, or shipment in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity; and sale or offer for sale in interstate or foreign commerce of the species and their parts and products. It is also unlawful to attempt to commit, to solicit another to commit, or to cause to be committed any such conduct. However, under certain circumstances, permits may be issued that authorize exceptions to prohibited activities.

Section 4(d) of the ESA contains two sentences. The first sentence states that the Secretary shall issue such regulations as he or she deems necessary and advisable to provide for the conservation of species listed as threatened species. The U.S. Supreme Court has noted that statutory language like “necessary and advisable” demonstrates a large degree of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). “Conservation” is defined in the ESA to mean the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the ESA are no longer necessary [16 U.S.C. 1532(3)]. Additionally, the second sentence of section 4(d) of the ESA states that the Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1), in the case of fish or wildlife, with respect to endangered species. Thus, the combination of the two sentences of section 4(d) provides the Secretary with wide latitude of discretion to select and promulgate appropriate regulations tailored to the specific conservation needs of the threatened species. The second sentence grants particularly broad discretion when adopting the prohibitions under section 9.

The courts have recognized the extent of the Secretary's discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have upheld rules developed under section 4(d) as a valid exercise of agency authority where they prohibited take of threatened wildlife or include a limited taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do not address all of the threats a species faces (see State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when the ESA was initially enacted, “once an animal is on the threatened list, the Secretary has an almost infinite number of options available to [her] with regard to the permitted activities for those species. [She] may, for example, permit taking, but not importation of such species, or [she] may choose to forbid both taking and importation but allow the transportation of such species” (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).

The African elephant was listed as threatened under the ESA, effective June 11, 1978 (43 FR 20499, May 12, 1978). A review of the status of the species at that time showed that the African elephant was declining in many parts of its range and that habitat loss, illegal killing of elephants for their ivory, and inadequacy of existing regulatory mechanisms were factors contributing to the decline. At the same time the African elephant was designated as a threatened species, the Service promulgated a 4(d) rule to regulate import and certain interstate commerce of the species in the United States (43 FR 20499, May 12, 1978). The 1978 4(d) rule for the African elephant stated that the prohibitions at 50 CFR 17.31 applied to any African elephant, alive or dead, and to any part, product, or offspring thereof, with certain exceptions.

Specifically, under the 1978 rule, the prohibition at 50 CFR 17.31 against importation did not apply to African elephant specimens that had originated in the wild in a country that was a Party to CITES if they had been exported or re-exported in accordance with Article IV of the Convention and had remained in customs control in any country not party to the Convention that they transited enroute to the United States (at that time, the only African elephant range states that were Parties to CITES were Botswana, Ghana, Niger, Nigeria, Senegal, South Africa, and Zaire [now the Democratic Republic of the Congo].) The 1978 rule allowed for the Service to issue a special purpose permit in accordance with the provisions of 50 CFR 17.32 to authorize any activity otherwise prohibited with regard to the African elephant, upon receipt of proof that the specimens were already in the United States on June 11, 1978, or that the specimens were imported under the exception described above.

The 4(d) rule has been amended four times, in part in response to the population decline of African elephants and the increase in illegal trade in elephant ivory, and to more closely align U.S. requirements with actions taken by the CITES Parties. On September 20, 1982, the Service amended the 4(d) rule for the African elephant (47 FR 31384, July 20, 1982) to ease restrictions on domestic activities and to align its requirements more closely with provisions in CITES Resolution Conf. 3.12, Trade in African elephant ivory, adopted by the CITES Parties at the third meeting of the Conference of the Parties (CoP3, 1981). The 1982 rule applied only to import and export of ivory (and not other elephant specimens) and eliminated the prohibitions under the ESA against taking, possession of unlawfully taken specimens, and certain activities for the purpose of engaging in interstate and foreign commerce, including the sale and offer for sale in interstate commerce of African elephant specimens. At that time, the Service concluded that the restrictions on interstate commerce contained in the 1978 rule were unnecessary and that the most effective means of utilizing limited resources to control ivory trade was through enforcement efforts focused on imports.

The ESA 4(d) rule for the African elephant was revised on September 9, 1992 (57 FR 35473, August 10, 1992), following establishment of the 1989 moratorium under the African Elephant Conservation Act on the import of African elephant ivory into the United States, and again on June 26, 2014 (79 FR 30400, May 27, 2014), associated with an update of U.S. CITES implementing regulations. In the 2014 revision of the 4(d) rule, we removed the CITES marking requirements for African elephant sport-hunted trophies. At the same time, these marking requirements were updated and incorporated into our CITES regulations at 50 CFR 23.74. The purpose of this regulatory change was to make clear what is required under CITES (at 50 CFR part 23) for trade in sport-hunted trophies and what is required under the ESA (at 50 CFR part 17).

In response to the alarming rise in poaching to fuel the growing illegal trade in ivory, the Service again revised the 4(d) rule on July 6, 2016 (81 FR 36388, June 6, 2016). The revised rule prohibited the import and export of African elephant ivory with limited exceptions for musical instruments, items that are part of a traveling exhibition, and items that are part of a household move or inheritance when specific criteria are met and ivory for law enforcement or genuine scientific purposes. The revised rule amended the exception for import of sport-hunted trophies with an enhancement finding by adding a requirement that a threatened species import permit be issued under 50 CFR 17.32. The revised rule also limited the number of sport-hunted African elephant trophies imported into the United States to two per hunter per year. Interstate and foreign commerce in African elephant ivory was prohibited except for items that qualify as ESA antiques and certain manufactured or handcrafted items that contain a small ( de minimis ) amount of ivory and meet specific criteria. The revised rule also prohibited take of live African elephants in the United States to help ensure that elephants held in captivity receive an appropriate standard of care. For example, live elephants in the United States cannot be used for sport hunting. Killing or otherwise hunting an elephant in the United States would be prohibited take. The revised rule did not amend exceptions allowing for trade in live African elephants and African elephant parts and products other than ivory and sport-hunted trophies. Specifically, under the current 4(d) rule, live African elephants and African elephant parts and products other than ivory and sport-hunted trophies may be imported into or exported from the United States; sold or offered for sale in interstate or foreign commerce; and delivered, received, carried, transported, or shipped in interstate or foreign commerce in the course of a commercial activity without a threatened species permit issued under 50 CFR 17.32, provided the requirements in 50 CFR parts 13, 14, and 23 have been met. Under the current 4(d) rule, it is unlawful to sell or offer for sale in interstate or foreign commerce or to deliver, receive, carry, transport, or ship in interstate or foreign commerce and in the course of a commercial activity any sport-hunted African elephant trophy.

In summary, under the current provisions of the 4(d) rule, at 50 CFR 17.40(e), all of the prohibitions and exceptions in 50 CFR 17.31 (incorporating 50 CFR 17.21) and 17.32 apply to the African elephant, with certain exceptions for qualifying activities provided in 50 CFR 17.40(e)(2) through (e)(9). Other than activities that qualify for an exception, the prohibitions make it illegal for any person subject to the jurisdiction of the United States to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any African elephant. In addition, it is unlawful to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) African elephants within the United States or on the high seas. It is also illegal to possess, sell, deliver, carry, transport, or ship, by any means whatsoever any African elephant that has been taken illegally.

We note that the Service has been petitioned to reclassify the African elephant as endangered and to recognize two species of African elephants and classify them both as endangered. Review of those petitions, through a process separate from this rulemaking, is ongoing.

African Elephant Conservation Act. The AfECA was enacted in 1988 to “perpetuate healthy populations of African elephants” by regulating the import and export of certain African elephant ivory to and from the United States. Building from and supporting existing programs under CITES, the AfECA called on the Service to establish moratoria on the import of raw and worked ivory from both African elephant range countries and intermediary countries (those that export ivory that does not originate in that country) that failed to meet certain statutory criteria. The statute also states that it does not provide authority for the Service to establish a moratorium that prohibits the import of sport-hunted trophies that meet certain standards. This limitation is specific to the AfECA and does not limit agency authority under the ESA.

In addition to authorizing establishment of the moratoria and prohibiting any import in violation of the terms of any moratorium, the AfECA prohibits: The import of raw African elephant ivory from any country that is not a range country; the import of raw or worked ivory exported from a range country in violation of that country's laws or applicable CITES programs; the import of worked ivory, other than certain personal effects, unless the exporting country has determined that the ivory was legally acquired; and the export of all raw (but not worked) African elephant ivory. While the AfECA comprehensively addresses the import of ivory into the United States, it does not address other uses of ivory or African elephant specimens other than ivory and sport-hunted trophies. The AfECA does not regulate the use of ivory within the United States and, other than the prohibition on the export of raw ivory, does not regulate export of ivory from the United States. The AfECA also does not regulate the import or export of live African elephants.

Following enactment of the AfECA (in October 1988), the Service established, on December 27, 1988, a moratorium on the import into the United States of African elephant ivory from countries that were not parties to CITES (53 FR 52242). On February 24, 1989, the Service established a second moratorium on all ivory imports into the United States from Somalia (54 FR 8008). On June 9, 1989, the Service put in place a moratorium that banned the import of ivory other than sport-hunted trophies from both range and intermediary countries (54 FR 24758).

Convention on International Trade in Endangered Species of Wild Fauna and Flora ( CITES ). CITES entered into force in 1975 and currently has 184 Parties (183 countries and 1 regional economic integration organization that have ratified the Convention), including the United States. The aim of CITES is to regulate international trade in listed animal and plant species, including their parts and products, to ensure the trade is legal and does not threaten the survival of species. CITES regulates both commercial and noncommercial international trade through a system of permits and certificates that must be presented when leaving and entering a country with CITES specimens. Species are listed in one of three appendices, which provide different levels of protection. In some circumstances, different populations of a species are listed at different levels. Appendix I includes species that are threatened with extinction and are or may be affected by trade. The Convention states that Appendix I species must be subject to “particularly strict regulation” and trade in specimens of these species should be authorized only “in exceptional circumstances.” Appendix II includes species that are not necessarily threatened with extinction now but may become so if international trade is not regulated. Appendix III includes species that a range country has identified as being subject to regulation within its jurisdiction and as needing cooperation of other Parties in the control of international trade.

Import and export of CITES species is prohibited unless accompanied by any required CITES documents. Documentation requirements vary depending on the CITES Appendix in which the species or population is included and other factors. CITES documents cannot be issued until specific biological and legal findings have been made. U.S. CITES implementing regulations are found in 50 CFR part 23. The CITES Appendices are found on the CITES website (see www.cites.org; https://cites.org/eng/app/appendices.php; 50 CFR 23.7, 23.91).

Ghana first listed the African elephant in CITES Appendix III on February 26, 1976. Later that year, the CITES Parties agreed to add African elephants to Appendix II, effective February 4, 1977. In October 1989, all populations of African elephants were transferred from CITES Appendix II to Appendix I (effective in January 1990), which ended much of the legal commercial trade in African elephant ivory.

In 1997, based on proposals submitted by Botswana, Namibia, and Zimbabwe and the report of a panel of experts (which concluded, among other things, that populations in these countries were stable or increasing and that poaching pressure was low), the CITES Parties agreed to transfer the African elephant populations in these three countries to CITES Appendix II. The Appendix II listing included an annotation that allowed noncommercial export of hunting trophies, export of live animals to appropriate and acceptable destinations, export of hides from Zimbabwe, and noncommercial export of leather goods and some ivory carvings from Zimbabwe. It also allowed for a one-time export of raw ivory to Japan (which took place in 1999), once certain conditions had been met. All other African elephant specimens from these three countries were deemed to be specimens of a species listed in Appendix I and regulated accordingly.

The African elephant population of South Africa was transferred from CITES Appendix I to Appendix II in 2000, with an annotation that allowed trade in hunting trophies for noncommercial purposes, trade in live animals for reintroduction purposes, and trade in hides and leather goods. At that time, the panel of experts reviewing South Africa's proposal concluded, among other things, that South Africa's elephant population was increasing, that there were no apparent threats to the status of the population, and that the country's anti-poaching measures were “extremely effective.” Since then, the CITES Parties have revised the Appendix II listing annotation.

The current annotation covers the Appendix-II populations of Botswana, Namibia, South Africa, and Zimbabwe for the exclusive purpose of allowing trade in:

• sport-hunted trophies for noncommercial purposes;

• live animals to appropriate and acceptable destinations, as defined in Resolution Conf. 11.20 (Rev. CoP18), for Botswana and Zimbabwe and for in situ conservation programs for Namibia and South Africa;

• hides;

• hair;

• trade in leather goods for commercial or noncommercial purposes for Botswana, Namibia, and South Africa and for noncommercial purposes for Zimbabwe;

• certain ivory carvings from Namibia and Zimbabwe for noncommercial purposes; and

• a one-time export of specific quantities of raw ivory, once certain conditions had been met (this export, to China and Japan, took place in 2009).

These specimens can be traded under CITES as Appendix II specimens. As in previous versions of the annotation, all other African elephant specimens from these four populations are deemed to be specimens of species included in Appendix I, and the trade in them is regulated accordingly.

With regard to live African elephants, as noted above, African elephants are included in CITES Appendix I, except for the annotated African elephant populations of Botswana, Namibia, South Africa, and Zimbabwe that are included in CITES Appendix II. Live African elephants exported from Botswana and Zimbabwe under the annotation are for trade to “appropriate and acceptable destinations” as defined in Resolution Conf. 11.20 (Rev. CoP18) on Definition of the term `appropriate and acceptable destinations', while live African elephants exported from Namibia and South Africa under the annotation are for “in situ conservation programs.” Under the annotation, all other live African elephant specimens from these four populations shall be deemed to be specimens of species included in Appendix I, and the trade in them shall be regulated accordingly. The annotation reads, in relevant part, as follows:

Populations of Botswana, Namibia, South Africa and Zimbabwe (listed in Appendix II):

For the exclusive purpose of allowing: