Agricultural Marketing Service
Industry and Security Bureau
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National Oceanic and Atmospheric Administration
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Centers for Disease Control and Prevention
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National Indian Gaming Commission
Occupational Safety and Health Administration
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Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Agricultural Marketing Service, Department of Agriculture (USDA).
Direct final rule.
The Agricultural Marketing Service (AMS) is amending the Cotton Board Rules and Regulations, increasing the value assigned to imported cotton for the purposes of calculating supplemental assessments collected for use by the Cotton Research and Promotion Program. This amendment is required each year to ensure that assessments collected on imported cotton and the cotton content of imported products will be the same as those paid on domestically produced cotton. In addition, AMS is updating the Harmonized Tariff Schedule (HTS) statistical reporting numbers that were amended since the last assessment adjustment in 2022.
This direct final rule is effective October 16, 2023, without further action or notice, unless significant adverse comment is received by September 14, 2023. If significant adverse comment is received, AMS will publish a timely withdrawal of the amendment in the
Interested persons are invited to submit written comments concerning this direct final rule. Comments may be submitted by mail or hand delivery to Cotton Research and Promotion, Cotton and Tobacco Program, AMS, USDA, 100 Riverside Parkway, Suite 101, Fredericksburg, Virginia 22406 or via the internet at:
Shethir M. Riva, Director, Research and Promotion, Cotton and Tobacco Program, AMS, USDA, 100 Riverside Parkway, Suite 101, Fredericksburg, Virginia 22406, telephone (540) 361-2726, facsimile (540) 361-1199, or email at
Amendments to the Cotton Research and Promotion Act (7 U.S.C. 2101-2118) (Act) were enacted by Congress under Subtitle G of Title XIX of the Food, Agriculture, Conservation, and Trade Act of 1990 (Pub. L. 101-624, 104 Stat. 3909, November 28, 1990). These amendments contained two provisions that authorized changes in the funding procedures for the Cotton Research and Promotion Program. These provisions provided for: (1) the assessment of imported cotton and cotton products; and (2) termination of refunds to cotton producers. (Prior to the 1990 amendments to the Act, producers could request assessment refunds.)
As amended, the Cotton Research and Promotion Order (7 CFR part 1205) (Order) was approved by producers and importers voting in a referendum held July 17-26, 1991, and the amended Order was published in the
This direct final rule amends the value assigned to imported cotton in the Cotton Board Rules and Regulations (7 CFR 1205.510(b)(2)) that is used to determine the Cotton Research and Promotion assessment on imported cotton and cotton products. The total value of assessment levied on cotton imports is the sum of two parts. The first part of the assessment is based on the weight of cotton imported—levied at a rate of $1 per bale of cotton, which is equivalent to 500 pounds, or $1 per 226.8 kilograms of cotton. The second part of the import assessment (referred to as the supplemental assessment) is based on the value of imported cotton lint or the cotton contained in imported cotton products—levied at a rate of five-tenths of one percent of the value of domestically produced cotton.
Section 1205.510(b)(2) of the Cotton Board Rules and Regulations provides for assigning the calendar year weighted average price received by U.S. farmers for Upland cotton to represent the value of imported cotton. This is so that the assessment on domestically produced cotton and the assessment on imported cotton and the cotton content of imported products is the same. The source for the average price statistic is
The current value of imported cotton as published in 2022 in the
An example of the complete assessment formula and how the figures are obtained is as follows:
One bale is equal to 500 pounds.
One kilogram equals 2.2046 pounds.
One pound equals 0.453597 kilograms.
A 500-pound bale equals 226.8 kg. (500 × 0.453597).
$1 per bale assessment equals $0.002000 per pound or 0.2000 cents
The 2022 calendar year weighted average price received by producers for Upland cotton is $0.933 per pound or $2.056 per kg. (0.933 × 2.2046).
Five tenths of one percent of the average price equals $0.010282 per kg. (2.056 × 0.005).
The total assessment per kilogram of raw cotton is obtained by adding the $1 per bale equivalent assessment of $0.004409 per kg. and the supplemental assessment $0.010282 per kg., which equals $0.014691 per kg.
The current assessment on imported cotton is $0.013215 per kilogram of imported cotton. The revised assessment in this direct final rule is $0.014691, an increase of $0.001476 per kilogram. This reflects the increase in the average weighted price of Upland cotton received by U.S. farmers during the period January through December 2022.
The Import Assessment Table in § 1205.510(b)(3) of the Order indicates the total assessment rate ($ per kilogram) due for each Harmonized Tariff Schedule (HTS) number that is subject to assessment. This table must be revised each year to reflect changes in supplemental assessment rates and any changes to the HTS numbers. In this direct final rule, AMS is amending the Import Assessment Table.
AMS believes that these amendments are necessary to ensure that assessments collected on imported cotton and the cotton content of imported products are the same as those paid on domestically produced cotton. Accordingly, changes reflected in this rule should be adopted and implemented as soon as possible since it is required by regulation.
As described in this
Also, this direct-final rulemaking furthers the objectives of Executive Order 13563, which requires that the regulatory process “promote predictability and reduce uncertainty” and “identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends.”
AMS has used the direct rule rulemaking process since 2013 and has not received any adverse comments; however, if AMS receives significant adverse comments during the comment period, it will publish, in a timely manner, a document in the
This action has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation would not have substantial and direct effects on Tribal governments and would not have significant Tribal implications.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 12 of the Act, any person subject to an order may file with the Secretary of Agriculture (Secretary) a petition stating that the order, any provision of the plan, or any obligation imposed in connection with the order is not in accordance with law and requesting a modification of the order or to be exempted therefrom. Such person is afforded the opportunity for a hearing on the petition. After the hearing, the Secretary would rule on the petition. The Act provides that the District Court of the United States in any district in which the person is an inhabitant, or has his principal place of business, has jurisdiction to review the Secretary's ruling, provided a complaint is filed within 20 days from the date of the entry of the Secretary's ruling.
In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has examined the economic impact of this rule on small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such action so that small businesses will not be unduly or disproportionately burdened. The Small Business Administration (SBA) defines, in 13 CFR 121.201, a small cotton farming business as those having annual receipts of no more than $3.25 million (North American Industry Classification System (NAICS) Code 111920) and small “Other Farm Product Raw Material Merchant Wholesalers” (cotton merchants/importers) (NAICS Code 424590) as having no more than 175 employees.
According to the NASS 2017 Agriculture Census, the number of cotton farms is 15,846. NASS also reports that the total U.S. production value averages $5,993,255,333 for 2020-2022. Dividing the crop value by the number of cotton farms, the average crop value is approximately $378,219. Since $378,219 is well below $3.25 million and assuming a normal distribution, the majority of cotton farmers are small according to the SBA standards.
The Cotton Board estimates approximately 40,000 importers are subject to the Cotton Research and Promotion Order. According to the United States Census Bureau's “2019 Survey of SUSB Annual Data Tables by Establishment Industry,” most importers are considered small entities as defined by the SBA (13 CFR 121.201). This rule would only affect importers of cotton and cotton-containing products and would increase the assessments paid by the importers under the Cotton Research and Promotion Order. The current assessment on imported cotton is $0.013215 per kilogram of imported cotton. The amended assessment is $0.014691, which was calculated based on the 12-month weighted average of price received by U.S. cotton farmers in 2022. Section 1205.510 of the Order, “Levy of assessments”, provides “The rate of the supplemental assessment on imported cotton will be the same as that levied on cotton produced within the United States.” In addition, § 1205.510
Imported organic cotton and products may be exempt from assessment if eligible under § 1205.519 of the Order.
There are no Federal rules that duplicate, overlap, or conflict with this rule.
In compliance with Office of Management and Budget (OMB) regulations (5 CFR part 1320) which implement the Paperwork Reduction Act (PRA) (44 U.S.C. Chapter 35) the information collection requirements contained in the regulation to be amended have been previously approved by OMB and were assigned control number 0581-0093, National Research, Promotion, and Consumer Information Programs. This rule does not result in a change to the information collection and recordkeeping requirements previously approved.
A 30-day comment period is provided to comment on the changes to the Cotton Board Rules and Regulations herein. This period is deemed appropriate because an amendment is required to adjust the assessments collected on imported cotton and the cotton content of imported products to be the same as those paid on domestically produced cotton.
Advertising, Agricultural research, Cotton, Marketing agreements, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, AMS amends 7 CFR part 1205 as follows:
7 U.S.C. 2101-2118; 7 U.S.C. 7401.
(b) * * *
(2) The 12-month average of monthly weighted average prices received by U.S. farmers will be calculated annually. Such weighted average will be used as the value of imported cotton for the purpose of levying the supplemental assessment on imported cotton and will be expressed in kilograms. The value of imported cotton for the purpose of levying this supplemental assessment is $1.4691 cents per kilogram.
(3) * * *
7 U.S.C. 2101-2118.
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for The Boeing Company (Boeing) Model 737-10 series airplane. This airplane will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is oblique (side-facing) single-occupant seats equipped with airbag devices or 3-point restraints. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These 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.
This action is effective on Boeing on August 15, 2023. Send comments on or before September 29, 2023.
Send comments identified by Docket No. FAA-2023-1467 using any of the following methods:
•
•
•
•
•
John Shelden, Cabin Safety Section, AIR-624, Technical Policy Branch, Policy and Standards Division, Aircraft Certification Service, Federal Aviation Administration, 2200 South 216th Street, Des Moines, Washington 98198; telephone and fax 206-231-3214; email
The substance of these special conditions has been published in the
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in title 14, Code of Federal Regulations (14 CFR) 11.35, the FAA will post all comments received without change to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to these special conditions contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to these special conditions, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and the indicated comments will not be placed in the public docket of these special conditions. Send submissions containing CBI to John Shelden, Cabin Safety Section, AIR-624, Technical Policy Branch, Policy and Standards Division, Aircraft Certification Service, Federal Aviation Administration, 2200 South 216th Street, Des Moines, Washington 98198; telephone and fax 206-231-3214; email
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 and will consider comments filed late if it is possible to do so without incurring delay. The FAA may change these special conditions based on the comments received.
On October 28, 2022, Boeing applied for a change to Type Certificate No. A16WE for the installation of oblique (side-facing) passenger seats with or without airbag devices or 3-point restraints in the Boeing Model 737-10 series airplanes. The Boeing Model 737-10 series airplanes are twin-engine, transport category airplanes with a maximum certified passenger capacity of up to 230, and a maximum takeoff weight of approximately 197,900 lbs.
Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the Model 737-10 series airplanes, as changed, continue to meet the applicable provisions of the regulations listed in Type Certificate No. A16WE 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 (
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, the special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 737-10 series airplane must comply with the 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 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
The Boeing Model 737-10 series airplane will incorporate a seating configuration that is novel or unusual due to the installation of oblique (side-facing) passenger seats and surrounding furniture that introduces occupant alignment and loading concerns. These oblique seats may be installed at an angle of 18 to 45 degrees to the aircraft centerline and may include a 3-point restraint system and/or airbags, for occupant restraint and injury protection.
Title 14, Code of Federal Regulations (14 CFR) 25.785(d) requires that each occupant of a seat that makes more than an 18 degree angle with the vertical plane containing the airplane centerline must be protected from head injury by a safety belt and an energy absorbing rest that will support the arms, shoulders, head, and spine, or by a safety belt and shoulder harness that will prevent the head from contacting any injurious object.
The proposed Boeing Model 737-10 airplane seat installation is novel in that the current requirements do not adequately address protection of the occupant's neck and spine for seating configurations that are positioned at angles greater than 18 degrees up to and including 45 degrees from the airplane centerline. The installation of passenger seats at angles of 18 to 45 degrees to the airplane centerline is unique due to the seat/occupant interface with the surrounding furniture that introduces occupant alignment/loading concerns with or without the installation of a 3-point or airbag restraint system, or both.
The FAA has been conducting and sponsoring research on appropriate injury criteria for oblique (side-facing) seat installations. To reflect current research findings, the FAA issued policy statement PS-AIR-25-27. FAA-sponsored research has found that an un-restrained flailing of the upper torso, even when the pelvis and torso are nearly aligned, can produce serious spinal and torso injuries. At lower impact severities, even with significant misalignment between the torso and pelvis, these injuries did not occur. Tests with an FAA H-III anthropomorphic test dummy (ATD) have identified a level of lumbar spinal tension corresponding to the no-injury impact severity. This level of tension is included as a limit in the special conditions. The spine tension limit selected is conservative with respect to other aviation injury criteria since it corresponds to a no-injury loading condition.
As noted in the special conditions for each airbag restraint system, because an airbag restraint system is essentially a single use device, there is the potential that it could deploy under crash conditions that are not sufficiently severe as to require head injury protection from the airbag restraint system. Since an actual crash is frequently composed of a series of impacts before the airplane comes to rest, this could render the airbag restraint system useless if a larger impact follows the initial impact. This situation does not exist with energy absorbing pads or upper torso restraints, which tend to provide protection according to the severity of the impact. Therefore, the installation of the airbag restraint system should be such that the airbag restraint system will provide protection when it is required, and will not expend its protection when it is not needed.
Because these airbag restraint systems may or may not activate during various crash conditions, the injury criteria listed in these special conditions and in § 25.562 must be met in an event that is slightly below the activation level of the airbag restraint system. If an airbag restraint system is included with the oblique seats, the system must meet the requirements in one of the airbag (inflatable restraint) special conditions applicable to the Boeing Model 737 series airplanes. These special conditions supplement part 25 and, more specifically, supplement §§ 25.562 and 25.785.
These 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 special conditions are applicable to the Boeing Model 737-10 series airplane. Should Boeing apply at a later date for a change to the type certificate to include another 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 apply to that model as well.
This action affects only a certain novel or unusual design feature on one model series of airplanes. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(f), 106(g), 40113, 44701, 44702, and 44704.
In addition to the requirements of § 25.562, passenger seats installed at an angle between 18 degrees and 45 degrees from the aircraft centerline must meet the following:
Compliance with § 25.562(c)(5) is required, except that, if the anthropomorphic test dummy (ATD) has no apparent contact with the seat/structure but has contact with an airbag, a HIC unlimited score in excess of 1000 is acceptable, provided the HIC15 score (calculated in accordance with 49 CFR 571.208) for that contact is less than 700.
If a seat is installed aft of structure (
The seating system must protect the occupant from experiencing serious neck injury. The assessment of neck injury must be conducted with the airbag device activated, unless there is reason to also consider that the neck-injury potential would be higher for impacts below the airbag-device deployment threshold.
a. The N
i. F
ii. F
iii. M
iv. M
b. In addition, peak F
c. Rotation of the head about its vertical axis relative to the torso is limited to 105 degrees in either direction from forward facing.
d. The neck must not impact any surface that would produce concentrated loading on the neck.
a. The lumbar spine tension (F
b. Significant concentrated loading on the occupant's spine, in the area between the pelvis and shoulders during impact, including rebound, is not acceptable. During this type of contact, the interval for any rearward (X direction) acceleration exceeding 20g must be less than 3 milliseconds as measured by the thoracic instrumentation specified in 49 CFR part 572, subpart E filtered in accordance with SAE International (SAE) recommended practice J211/1, “Instrumentation for Impact Test—Part 1—Electronic Instrumentation.”
c. The occupant must not interact with the armrest or other seat components in any manner significantly different than would be expected for a forward-facing seat installation.
Any part of the load-bearing portion of the bottom of the ATD pelvis must not translate beyond the edges of the
Axial rotation of the upper leg (about the z-axis of the femur per SAE Recommended Practice J211/1) must be limited to 35 degrees from the nominal seated position. Evaluation during rebound does not need to be considered.
Longitudinal tests conducted to measure the injury criteria above must be performed with the FAA Hybrid III ATD, as described in SAE 1999-01-1609, “A Lumbar Spine Modification to the Hybrid III ATD for Aircraft Seat Tests.” The tests must be conducted with an undeformed floor, at the most-critical yaw cases for injury, and with all lateral structural supports (
If inflatable airbag restraint systems are installed, the airbag systems must meet the requirements in special conditions 25-386-SC, or other airbag system special conditions which are applicable to the Boeing Model 737 series airplanes.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
The FAA is adopting a new airworthiness directive (AD) for certain Piaggio Aviation S.p.A. (Piaggio) Model P-180 airplanes. This AD was prompted by a report of corrosion-induced cracking on the horizontal tail trim actuator (HTTA) fitting assembly. This AD requires repetitively inspecting the HTTA fitting assembly for corrosion and cracking until the HTTA fitting assembly is replaced with a new part. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective August 30, 2023.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of August 30, 2023.
The FAA must receive comments on this AD by September 29, 2023.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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• For service information identified in this final rule, contact Piaggio Aero Industries S.p.A., P180 Customer Support, via Pionieri e Aviatori d'Italia, snc-16154 Genoa, Italy; phone: +39 331 679 74 93; email:
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 901 Locust, Kansas City, MO 64106. For information on the availability of this material at the FAA, call (817) 222-5110. It is also available at
Mike Kiesov, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: (816) 329-4144; email:
The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Mike Kiesov, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.
The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2023-0122R1, dated July 5, 2023
To address the unsafe condition, the MCAI requires doing a high frequency eddy current inspection (HFEC) of the HTTA fitting assembly for corrosion and cracking and, depending on the findings, repeating the inspection and repairing any light corrosion, or replacing the HTTA fitting assembly with a new part. The MCAI states that replacing the HTTA fitting assembly terminates the repetitive inspections.
This condition, if not addressed, could result in structural failure of the HTTA fitting assembly and loss of control of the airplane. You may examine the MCAI in the AD docket at
The FAA reviewed Piaggio Aerospace Service Bulletin 80-0492, Revision 3, dated June 12, 2023. This service information specifies procedures for doing an HFEC inspection of the HTTA fitting assembly for corrosion and taking corrective actions. The corrective actions include repeating the HFEC inspection, repairing light corrosion, and replacing the HTTA fitting assembly with a new part.
The FAA also reviewed Piaggio Aerospace Temporary Revision TR-031 to Chapter 51-70-70, dated May 29, 2023, to the Piaggio P.180 Structural Repair Manual. This service information specifies procedures for replacing the HTTA fitting assembly.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information referenced above. The FAA is issuing this AD after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.
This AD requires accomplishing the actions specified in the service information already described, except as discussed under “Differences Between this AD and the MCAI.”
The MCAI allows airplanes with corrosion or cracking in certain areas of the HTTA fitting assembly to continue flights and be repaired within 150 hours time-in-service or 7 months, whichever occurs first. This AD requires that airplanes with corrosion exceeding light corrosion or with cracking on any part of the HTTA fitting assembly be repaired before further flight.
Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551
An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule because corrosion on the HTTA fitting assembly could lead to cracking that, if not addressed, could result in structural failure of the HTTA fitting assembly and loss of control of the airplane. For certain airplanes, the initial HFEC inspection must be accomplished within 30 hours time-in-service or 60 calendar days after the effective date of this AD, whichever occurs first. This compliance time is shorter than the time necessary for the public to comment and for publication of the final rule. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).
In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forgo notice and comment.
The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.
The FAA estimates that this AD affects 103 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
The FAA estimates the following costs to do any necessary corrective action that would be required based on the results of any inspection. The agency has no way of determining the number of aircraft that might need these actions:
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to take approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866, and
(2) Will not affect intrastate aviation in Alaska.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective August 30, 2023.
None.
This AD applies to the following Piaggio Aviation S.p.A. Model P-180 airplanes, certificated in any category:
(1) Serial numbers (S/N) 1002, 1034 through 1234 inclusive, 3001 through 3014 inclusive, 3016, and 3018; and
(2) S/N 1004 through 1033 inclusive if modified in accordance with Piaggio Service Bulletin 80-0142.
Joint Aircraft System Component (JASC) Code: 5520, Elevator Structure.
This AD was prompted by a report of corrosion-induced cracking on the horizontal tail trim actuator (HTTA) fitting assembly. The FAA is issuing this AD to address structural failure of the HTTA fitting assembly. The unsafe condition, if not addressed, could result in loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) For purposes of this AD, “light corrosion” is corrosion that does not exceed a depth of 0.15 millimeter (mm) and does not extend beyond 1 square inch (645.2 square mm).
(2) For purposes of this AD, a “new part” is a part with zero hours time-in-service (TIS).
Within the compliance time for your airplane listed in Table 1 to paragraph (h) of this AD, do a high frequency eddy current inspection of HTTA fitting assembly part number (P/N) 80-363283-401 for corrosion and cracking in accordance with Section 2.B., Part A, Steps (11) through (14) of the Accomplishment Instructions in Piaggio Aerospace Service Bulletin 80-0492, Revision 3, dated June 12, 2023.
Based on the result of the inspection required by paragraph (h) of this AD, do the applicable corrective action within the applicable compliance time specified in Table 2 to paragraph (i) of this AD.
Replacing the HTTA fitting assembly with a new part in accordance with Piaggio Aerospace Temporary Revision TR-031 to Chapter 51-70-70, dated May 29, 2023, to the Piaggio P.180 Structural Repair Manual constitutes terminating action for the repetitive inspections required by paragraph (i) of this AD for that airplane.
You may take credit for the initial inspection required by paragraph (h) of this AD if you performed the initial inspection before the effective date of this AD using Piaggio Aerospace Service Bulletin 80-0492, Revision 2, dated May 15, 2023.
Report to the manufacturer the results of each inspection required by paragraphs (h) and (i) of this AD within the applicable compliance time specified in paragraph (l)(1) or (2) of this AD using the Confirmation Slip
(1) If the inspection was done on or after the effective date of this AD: Submit the report within 10 days after the inspection.
(2) If the inspection was done before the effective date of this AD: Submit the report within 10 days after the effective date of this AD.
The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the International Validation Branch, mail it to the address identified in paragraph (n)(2) of this AD or email to:
(1) Refer to European Union Aviation Safety Agency (EASA) AD 2023-0122R1, dated July 5, 2023, for related information. This EASA AD may be found in the AD docket at
(2) For more information about this AD, contact Mike Kiesov, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: (816) 329-4144; email:
(3) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (o)(3) and (4) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Piaggio Aerospace Service Bulletin 80-0492, Revision 3, dated June 12, 2023.
(ii) Piaggio Aerospace Temporary Revision TR-031 to Chapter 51-70-70, dated May 29, 2023, to the Piaggio P.180 Structural Repair Manual.
(3) For service information identified in this AD, contact Piaggio Aero Industries S.p.A., P180 Customer Support, via Pionieri e Aviatori d'Italia, snc-16154 Genoa, Italy; phone: +39 331 679 74 93; email:
(4) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 901 Locust, Kansas City, MO 64106. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email:
In Rule Document 2023-11771, appearing on pages 37704 through 37747 in the issue of Thursday, June 8, 2023, make the following correction:
Appendix 1 to Subpart P of Part 404—Listing of Impairments
(a) The initial calculation is:
National Indian Gaming Commission, Department of the Interior.
Final rule.
In April 2023, the Commission issued a revised proposed rule refining proposed changes to the “primary management official” and “key employee” definitions as well as the newly proposed definitions for “Gaming Enterprise” and “Tribal Gaming Regulatory Authority” (TGRA). The revised proposal, like the 2022 original, also proposed: modernizing retention requirements for background investigations and licensing applications; vesting revocation hearing rights upon license issuance as well as in accordance with tribal law, regulation, or policy; and augmenting revocation decision notification and submission requirements. After closely considering comments received, this final rule permits tribes to designate other gaming enterprise employees as key employees and other employed gaming enterprise management officials as primary management officials, including TGRA personnel. These optional designations occur by any documentary means. Further, the key employee definition no longer sets forth a wage threshold but includes in the definition a gaming operation's four most highly compensated persons. And the terms “independent” and “governmental” have been struck from the TGRA definition, aligning it with a corresponding definition in NIGC regulations, part 547. Lastly, license revocation decisions only require notifying the Commission of the revocation along with a copy of the revocation decision.
Effective September 14, 2023.
Jo-Ann Shyloski, National Indian Gaming Commission, 1849 C Street NW, MS 161, Washington, DC 20240. Telephone: (202) 632-7003. Email:
The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100-497, 25 U.S.C. 2701
The Commission first defined “key employee” and “primary management official” in April of 1992, early in its existence. As mandated by IGRA, applicants for key employee and primary management official positions are subject to a background investigation as a condition of licensure. In 2009, the Commission expanded these definitions to permit tribes to designate other persons as key employees or primary management officials (74 FR 36926). The FBI, U.S. Department of Justice, took issue with this expansion, denying the processing of CHRI for the expanded positions' background investigations. This final rule rectifies this issue in part 502, as it now limits tribal designations to “[a]ny other employee of the gaming enterprise as documented by the tribe as a key employee” and “[a]ny other employed management official of the gaming enterprise documented by the tribe as a primary management official.”
Background investigation and licensing regulations for key employees and primary management officials were initially issued by the Commission in January 1993 (58 FR 5802-01) in parts 556 and 558, respectively. The Commission updated these regulations in 2013 to streamline the submission of documents; to ensure that two notifications are submitted to the Commission in compliance with IGRA; and to clarify the regulations regarding the issuance of temporary and permanent gaming licenses (78 FR 5276-01). This final rule modernizes retention requirements for background investigations and licensing applications; vests revocation hearing rights upon license issuance as well as in accordance with tribal law, regulation, or policy; and augments revocation decision notification and submission requirements. The rule also revises the “primary management official” and “key employee” definitions and creates new definitions for “Gaming Enterprise” and “Tribal Gaming Regulatory Authority” (TGRA). Importantly, the rule allows tribes to designate other gaming enterprise employees as key employees and other employed gaming enterprise management officials as primary management officials, including TGRA personnel.
On June 9, 2021, the National Indian Gaming Commission sent a Notice of Consultation announcing that the Agency intended to consult on numerous topics, including proposed changes to the key employee and primary management definitions and the backgrounding and licensing regulations. Prior to consultation, the Commission released proposed discussion drafts of the regulations for review. The proposed amendments to these regulations were intended to: address the FBI's concerns regarding the key employee and primary management official definitions; include gaming operation employees with unescorted access to secured areas as key employees; combine certain subsections of the key employee definition; add general managers and similar positions to the primary management official definition; and update licensing application retention requirements. The Commission held two virtual consultation sessions in July of 2021 to receive tribal input on the possible changes.
The Commission reviewed all comments received as part of the consultation process and addressed them in the initial proposed rule, issued on August 10, 2022. Again, the Commission thoroughly reviewed comments from the initial proposed rule, modified its proposal considering them, and issued a revised proposed rule on April 14, 2023.
The Commission received the following comments in response to our Revised Notice of Proposed Rulemaking.
The rule will not have a significant impact on a substantial number of small entities as defined under the Regulatory Flexibility Act, 5 U.S.C. 601,
The rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The rule does not have an effect on the economy of $100 million or more. The rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, local government agencies or geographic regions, nor will the proposed rule have a significant adverse effect on competition, employment, investment, productivity, innovation, or the ability of the enterprises, to compete with foreign based enterprises.
The Commission, as an independent regulatory agency, is exempt from compliance with the Unfunded Mandates Reform Act, 2 U.S.C. 1502(1); 2 U.S.C. 658(1).
In accordance with Executive Order 12630, the Commission has determined that the rule does not have significant takings implications. A takings implication assessment is not required.
In accordance with Executive Order 12988, the Commission has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
The Commission has determined that the rule does not constitute a major federal action significantly affecting the quality of the human environment and that no detailed statement is required pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4321,
The Paperwork Reduction Act (PRA), 44 U.S.C. 3501,
Described below are the proposed rule's information collection activities along with estimates of their annual burdens. These activities, along with annual burden estimates, do not include activities that are usual and customary industry practices. The burden estimates comprise the time necessary for Tribes to forward to the NIGC copies of their license revocation decisions unless they already submit such to the NIGC in the usual course of their business.
The Commission requests comment on all aspects of this information collection, including:
a. Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
b. The accuracy of the estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
c. Ways to enhance the quality, utility, and clarity of the information to be collected; and
d. How the agency might minimize the burden of the collection of information on those required to respond, including by appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The new rule proposed under 25 CFR 558.3(e) will create the following estimated burdens:
Written comments and suggestions on the information collection requirements should be submitted by September 14, 2023. Submit comments directly to OMB's Office of Information and Regulatory Affairs, Attn: Policy Analyst/Desk Officer for the National Indian Gaming Commission. Comments also may be emailed to
To request additional information about this ICR, contact Tim Osumi, Privacy & Records Information Manager, NIGC Information Management Program by email at
The National Indian Gaming Commission is committed to fulfilling its tribal consultation obligations—whether directed by statute or administrative action such as Executive Order (E.O.) 13175 (Consultation and Coordination with Indian Tribal Governments)—by adhering to the consultation framework described in its Consultation Policy, published July 15, 2013. The NIGC's consultation policy specifies that it will consult with tribes on Commission Action with Tribal Implications, which is defined as: Any Commission regulation, rulemaking, policy, guidance, legislative proposal, or operational activity that may have a substantial direct effect on an Indian tribe on matters including, but not limited to the ability of an Indian tribe to regulate its Indian gaming; an Indian tribe's formal relationship with the Commission; or the consideration of the Commission's trust responsibilities to Indian tribes.
Pursuant to this policy, on June 9, 2021, the National Indian Gaming Commission sent a Notice of Consultation announcing that the Agency intended to consult on a number of topics, including proposed changes to the key employee and primary management official regulatory definitions as well as the background and licensing regulations. Consultations were held on July 27 and 28, 2021. A proposed rule was issued on August 10, 2022, and a revised proposed rule was issued on April 14, 2023.
Gambling, Indian lands.
Therefore, for reasons stated in the preamble, 25 CFR parts 502, 556, and 558 are amended as follows:
25 U.S.C. 2701
(a) Any person who performs one or more of the following functions for the gaming operation:
(1) Bingo caller;
(2) Counting room supervisor;
(3) Chief of security;
(4) Floor manager;
(5) Pit boss;
(6) Dealer;
(7) Croupier;
(8) Approver of credit;
(9) Custodian of gaming systems as defined in 25 CFR 547.2 and similar class III systems, gaming cash or gaming cash equivalents, gaming supplies or gaming system records;
(10) Custodian of surveillance systems or surveillance system records.
(b) Any gaming operation employee authorized by the gaming operation for unescorted access to secured gaming areas designated as secured gaming areas by the TGRA;
(c) If not otherwise licensed as a key employee or primary management official, the four persons most highly compensated by the gaming operation;
(d) Any other employee of the gaming enterprise as documented by the tribe as a key employee.
Primary management official means:
(a) Any person having management responsibility for a management contract;
(b) Any person who has authority:
(1) To hire and fire employees of the gaming operation; or
(2) To establish policy for the gaming operation.
(c) The chief financial officer or a position with duties similar to a chief financial officer.
(d) The general manager or a position with duties similar to a general manager.
(e) Any other employed management official of the gaming enterprise as documented by the Tribe as a primary management official.
25 U.S.C. 2706, 2710, 2712.
A Tribe shall perform a background investigation for each primary management official and for each key employee of the gaming enterprise.
(a) When a Tribe licenses a primary management official or a key employee, the Tribe shall maintain the information listed under § 556.4(a)(1) through (14).
All tribal gaming ordinances and ordinance amendments approved by the Chair prior to September 14, 2023 do not need to be amended to comply with this part. All future ordinance submissions, however, must comply.
25 U.S.C. 2706, 2710, 2712.
(a) After a tribe has provided a notice of results of the background check to the Commission, a tribe may license a primary management official or key employee.
(b) Within 30 days after the issuance of the license, a tribe shall notify the Commission of its issuance.
(c) A key employee or primary management official who does not have a license after ninety (90) days shall not be permitted to perform the duties, functions, and/or responsibilities of a key employee or primary management official until so licensed.
(d) If a tribe does not license an applicant—
(1) The tribe shall notify the Commission; and
(2) Shall forward copies of its eligibility determination and notice of results, under § 556.6(b)(2) of this chapter, to the Commission for inclusion in the Indian Gaming Individuals Record System.
(e) If a tribe revokes a key employee or primary management official's license—
(1) The tribe shall notify the Commission; and
(2) Shall forward copies of its license revocation decision for inclusion in the Indian Gaming Individuals Record System.
(f) A tribe shall retain the following for inspection by the Chair or their designee for no less than three years from the date of termination of employment:
(1) The information listed under § 556.4(a)(1) through (14) of this chapter;
(2) Investigative reports, as defined in § 556.6(b) of this chapter;
(3) Eligibility determinations, as defined in § 556.5 of this chapter;
(4) Privacy Act notice, as defined in § 556.2 of this chapter; and
(5) False Statement notice, as defined in § 556.3 of this chapter.
(a) If, after the issuance of a gaming license pursuant to § 558.3, the Commission receives reliable information indicating that a key employee or a primary management official is not eligible for a license under § 556.5 of this chapter, the Commission shall notify the issuing tribe of the information.
(b) Upon receipt of such notification under paragraph (a) of this section, a tribe shall immediately suspend the license and shall provide the licensee with written notice of suspension and proposed revocation.
(c) A tribe shall notify the licensee of a time and a place for a hearing on the proposed revocation of a license.
(d) The right to a revocation hearing shall vest upon receipt of a license or at such earlier time as is determined by tribal law, regulation, and/or policy.
(e) After a revocation hearing, a tribe shall decide to revoke or to reinstate a gaming license. A tribe shall notify the Commission of its decision within 45 days of receiving notification from the Commission pursuant to paragraph (a) of this section.
All tribal gaming ordinances and ordinance amendments that have been approved by the Chair prior to September 14, 2023, and that reference this part do not need to be amended to comply with this section. All future ordinance submissions, however, must comply.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for the City of Nitro Labor Day Fireworks Display occurring on September 3, 2023, on the Kanawha River, Nitro, WV. The safety zone will cover all navigable waters between mile marker 46 and 46.5
This rule is effective from 9 through 10 p.m. on September 3, 2023.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Petty Officer Chelsea Zimmerman, Marine Safety Unit Huntington, U.S. Coast Guard, telephone 304-733-0198, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because publishing an NPRM would be impracticable. A safety zone is needed to alleviate safety concerns associated with a fireworks display. It is impracticable to publish an NPRM because we must establish this safety zone by September 3, 2023, and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Ohio Valley (COTP) has determined that safety needs associated with the City of Nitro Labor Day Fireworks Display on September 3, 2023, present a safety concern. The purpose of this rulemaking is to ensure the safety of the public surrounding regulated area before, during, and after the fireworks event.
This rule establishes a safety zone that will be enforced from 9 until 10 p.m. on September 3, 2023. The safety zone will cover all navigable waters between mile markers 46 to 46.5 on the Kanawha River. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel and a Federal, State, and local officer designated by or assisting the Captain of the Port Sector Ohio Valley (COTP) in the enforcement of the safety zone.
Persons or vessels seeking to enter the safety zone must request permission from the COTP on VHF-FM channel 16 or by telephone at 1-502-779-5424. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative.
The COTP or a designated representative will inform the public of the enforcement times and date for this safety zone through Broadcast Notices to Mariners, Local Notices to Mariners, and/or Safety Marine Information Broadcasts as appropriate.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location, duration, and time-of-day of the regulated area. This rule is limited to the Kanawha River from mile 46 to 46.5 on September 3, 2023, and will be enforced only for a one-hour duration. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the regulated area and the rule allows vessels to seek permission to enter the area.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves establishing a temporary safety zone lasting only one hour on the Kanawha River at mile 41.5 to 42.5 on September 3, 2023. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.
(a)
(b)
(c)
(2) To seek permission to enter, the COTP or the COTP's representative may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign “PATCOM”, or phone at 1-502-779-5424. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(3) The Patrol Commander may forbid and control the movement of all vessels in the regulated area. When hailed or signaled by an official patrol vessel, a vessel shall come to an immediate stop and comply with the directions given. Failure to do so may result in expulsion from the area, citation for failure to comply, or both.
(4) The Patrol Commander may terminate the event or the operation of any vessel at any time it is deemed necessary for the protection of life or property.
(5) The COTP will provide notice of the regulated area through advanced notice via local notice to mariners and broadcast notice to mariners and by on-scene designated representatives.
(d)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for
This rule is effective without actual notice from August 15, 2023, through 11:59 p.m. on August 23, 2023. For the purposes of enforcement, actual notice will be used from 11 a.m. on August 9, 2023 until August 15, 2023.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Lieutenant Commander Wade Thomson, Waterways Management Division, U.S. Coast Guard Sector Honolulu at (808) 541-2359 or
On August 9, 2023, high winds and wildfires struck portions of Maui, Hawaii, causing damage to coastal infrastructure and prompting mass rescue operations for area residents.
On August 9, 2023, the Coast Guard issued a temporary rule to establish a safety zone for all waters extending 1 nautical mile from shore starting from the northernmost point of Kekaa Point, Maui, thenceforth to the southernmost point at Hekili Point, Maui, to protect personnel, vessels, and the marine environment from potential hazards associated with emergency response and port recovery operations after wildfires affected the area.
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because immediate action is needed to facilitate an emergency salvage operation. Due to the numerous threats to safety posed by uncontrolled wildfires, timely emergency response efforts do not allow for public comment, and therefore publishing a NPRM is impracticable and contrary to public interest.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). August 9, 2023, the Coast Guard was informed of damage, pollution, and debris in the vicinity of Lahaina Boat Basin, Maui, Hawaii. The Coast Guard COTP Sector Honolulu has determined that the potential hazards associated with the emergency response and port recovery efforts connected to wildfires in the area constitute a safety concern for anyone within the designated safety zone. This rule is necessary to protect personnel, vessels, and the marine environment within the navigable waters of the safety zone during ongoing emergency response and port recovery operations.
This rule is effective from August 9, 2023 at 11 a.m. through August 23, 2023 at 11:59 p.m., or until emergency response and port recovery operations are complete, whichever is earlier. If the safety zone is terminated prior to 11:59 p.m. on August 23, 2023, the Coast Guard will provide notice via a broadcast notice to mariners. The temporary safety zone encompasses all waters extending 1 nautical mile from shore starting from the northernmost point of Kekaa Point, Maui, thenceforth to the southernmost point at Hekili Point, Maui. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards associated with ongoing emergency response and port recovery operations after wildfires affected the area. No vessel or person will be permitted to enter the safety zone absent the express authorization of the COTP or his designated representative.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location, and duration, of the safety zone. Vessel traffic will be able to safely transit around this safety zone which would impact a small designated area of the navigable waters off the shores of Lahaina, Maui, Hawaii. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator. This safety zone is limited in size and duration, and mariners may
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 14 days, or until operations are complete, that will prohibit entry into all waters extending 1 nautical mile from shore starting from the northernmost point of Kekaa Point, Maui, thenceforth to the southernmost point at Hekili Point, Maui. It is categorically excluded from further review under paragraph L60(d) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.
(a)
(b)
(c)
(1) Under the general safety zone regulations in subpart C of this part, you may not enter the safety zone described in paragraph (a) of this section unless authorized by the COTP or the COTP's designated representative.
(2) To seek permission to enter, contact the COTP at the Command Center telephone number (808) 842-2600 and (808) 842-2601, fax (808) 842-2642 or on VHF channel 16 (156.8 Mhz). Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for all navigable waters in the Upper Mississippi River at Mile Marker (MM)
This rule is effective from August 18, 2023, through August 31, 2023.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email MSTC Nathaniel Dibley, Sector Upper Mississippi River Waterways Management Division, U.S. Coast Guard; telephone 314-269-2560, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because a temporary safety zone must be established immediately to protect personnel, vessels, and the marine environment from potential hazards created by the use of explosives for the implosion of the power plant and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule. It is impracticable to publish an NPRM because we must establish this safety zone by August 18, 2023.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Upper Mississippi River (COTP) has determined that potential hazards associated with the use of explosions for the implosion of the Lansing Power Plant will be a safety concern for anyone operating or transiting within the Upper Mississippi River from MM 660.5 through 659.5. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the implosion is being conducted.
The implosion event will be occurring on two dates in which explosives will be used on an implosion of the Lansing Power Plant located between MM 660.5-659.5 beginning August 18, 2023. The safety zone is designed to protect waterway users until work is complete.
No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard (USCG) assigned to units under the operational control of USCG Sector Upper Mississippi River. To seek permission to enter, contact the COTP or a designated representative via VHF-FM channel 16, or through USCG Sector Upper Mississippi River at 314-269-2332. Persons and vessels permitted to enter the safety zone must comply with all lawful orders or directions issued by the COTP or designated representative. The COTP or a designated representative will inform the public of the effective period for the safety zone as well as any changes in the dates and times of enforcement, as well as reductions in the size of the safety zone through Local Notice to Mariners (LNMs), Broadcast Notices to Mariners (BNMs), and/or Safety Marine Information Broadcast (SMIB), as appropriate.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location, and duration of the safety zone. The safety zone would impact a small designated area located on the Upper Mississippi River at MM 660.5-659.5, near Lansing, IA. The Safety Zone is expected to be active only during the implosion events, from August 18 until August 31, 2023. Vessel traffic will be able to safely transit around this safety zone when the safety zone is not enforced.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator because the zone will be enforced only when work is being conducted.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone encompassing the width of the Upper Mississippi River at MM 660.5—659.5. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.
(a)
(b)
(c)
(1) In accordance with the general safety zone regulations in § 165.23, entry of persons or vessels into this safety zone described in paragraph (a) of this section is prohibited unless authorized by the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard (USCG) assigned to units under the operational control of USCG Sector Upper Mississippi River.
(2) To seek permission to enter, contact the COTP or a designated representative via VHF-FM channel 16, or through USCG Sector Upper Mississippi River at 314-269-2332. Persons and vessels permitted to enter the safety zone must comply with all lawful orders or directions issued by the COTP or designated representative.
(d)
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve three state implementation plan (SIP) revisions submitted by the State of California addressing the nonattainment new source review (NNSR) requirements for the 2015 8-hour ozone
This rule is effective September 14, 2023.
The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2021-0754. All documents in the docket are listed on the
Amita Muralidharan, EPA Region IX, 75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 947-4140 or by email at
Throughout this document, “we,” “us,” and “our” refer to the EPA.
On April 14, 2022 (87 FR 22163), the EPA proposed to approve the SIP revisions listed in Table 1, addressing the NNSR requirements for the 2015 ozone NAAQS for the SCAQMD, ICAPCD, and VCAPCD.
We proposed approval of the submitted SIP revisions because we determined that the 2015 ozone certifications submitted by the Districts fulfill the 40 CFR 51.1314 revision requirement and meet the requirements of CAA section 110 and the minimum SIP requirements of 40 CFR 51.165. Our proposed action contains more information on the SIP revisions and our evaluation.
The EPA's proposed action provided a 30-day public comment period. During this period, we received one non-germane comment. A copy of the comment is in the docket for this action.
No comments were submitted during the 30-day public comment period that change our assessment from what we described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is approving these three certifications into the California SIP as proposed.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act.
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines 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,
The State did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.
This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 16, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(c) * * *
(591) * * *
(ii) * * *
(B) * * *
(
(C) Ventura County Air Pollution Control District.
(
(
(D) Imperial County Air Pollution Control District.
(
(
Environmental Protection Agency (EPA).
Final rule.
Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is approving the July 20, 2021, revisions to the Texas State Implementation Plan (SIP) concerning Reasonably Available Control Technology (RACT) requirements for sources covered by the 2016 Oil and Natural Gas Control Techniques Guidelines (CTG or CTGs) for the Dallas-Fort Worth (DFW) and the Houston-Galveston-Brazoria (HGB) nonattainment areas (NAAs) for the 2008 8-hour ozone National Air Quality Ambient Air Quality Standards (NAAQS).
This rule is effective on September 14, 2023.
The EPA has established a docket for this action under Docket No. EPA-R06-OAR-2021-0525. Although listed in the index, some information is not publicly available,
Anupa Ahuja, EPA Region 6 Office, Infrastructure and Ozone Section, 214-665-2701,
Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.
The background for this action is discussed in detail in our February 17, 2023 proposal (88 FR 10253). In that document, we proposed to approve Texas' July 20, 2021 SIP submittal, which includes revisions to the Texas SIP concerning the DFW and HGB 2008 8-hour ozone NAAQS NAAs, as meeting the RACT requirements for sources covered by the Oil and Gas CTG.
We received comments on our proposal from several commenters. Our response to comments follows.
Ozone is one of the six criteria pollutants identified in the CAA. Accordingly, the CAA requires the EPA to periodically review and update the NAAQS to ensure that it provides adequate health and environmental protection. When the EPA establishes or revises a NAAQS, it is required to designate areas of the country as meeting or not meeting the standard. For areas that do not meet the standard, the Act provides emissions control requirements based on the extent of the ozone problem in the area. Section 182 of the CAA provides the specific attainment planning and additional requirements that apply to each ozone nonattainment area based on its classification. RACT for CTG-covered sources is one of the tools required by the CAA to reduce the emission of ozone precursors thereby reducing the formation of ground-level ozone.
Under the CAA, states have the primary responsibility to ensure the air quality within their geographic area is in compliance with the NAAQS. Each state must therefore develop and adopt their SIP as state law. The SIP is then submitted to the EPA for review. If the EPA approves the SIP, those control measures become federally enforceable. Therefore, the state of Texas and the EPA both have authority to bring enforcement actions for violations of the federally approved 30 TAC Chapter 115 rules.
We are approving the revisions to the 30 TAC Chapter 115, Subchapter B, Divisions 1, 2, 3, and 7 as meeting RACT to address VOC emissions from oil and gas sources in the DFW and HGB nonattainment areas submitted to the EPA on July 20, 2021, for inclusion into the Texas SIP. This action is being taken under Section 110 of the Act.
In this action, the EPA is approving the following revisions to the Texas SIP adopted on June 20, 2021, and submitted to the EPA on December 17, 2021:
• Revisions to 30 TAC Chapter 115, Sections 115.111, 115.112, 115.119, and 115.121,
• Adoption of Division 7: Oil and Natural Gas in Ozone Nonattainment
• Areas and 30 TAC Sections 115.170 through 115.181 and 115.183, and
Revisions to 30 TAC Section 115.357.
EPA reviewed demographic data, which provides an assessment of individual demographic groups of the populations living within the DFW and HGB 2008 ozone NAAs. EPA then compared the data to the national average, for each of the demographic groups. The results of this analysis are included in the docket for this action and are provided for informational and transparency purposes. The results of the demographic analysis indicate that communities in close proximity to industrial sources may be subject to disproportionate environmental impacts of air pollution.
This final action approves revisions to the Texas SIP to reduce VOC emissions from oil and natural gas sources in the DFW and HGB 2008 ozone NAAs. We expect that this action and resulting emissions reductions will generally be neutral or contribute to reduced environmental and health impacts on all populations in the DFW and HGB 2008 ozone NAAs, including people of color and low-income populations. At a minimum, this action would not worsen any existing air quality and is expected to ensure the area is meeting requirements to attain and/or maintain air quality standards. Further, there is no information in the record indicating that this action is expected to have disproportionately high or adverse human health or environmental effects on a particular group of people.
In this action, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of Texas' revisions to 30 TAC Chapter 115, Subchapter B, Divisions 1, 2, 3, and 7 as meeting RACT to address VOC emissions from oil and gas sources in the DFW and HGB nonattainment areas as described in the Final Action section above. The EPA has made, and will continue to make, these documents generally available electronically through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993), and 14094 (88 FR 21879, April 11, 2023);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act.
Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines 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 further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”
The air agency did not evaluate environmental justice considerations as part of its SIP submittal even though the CAA and applicable implementing regulations neither prohibit nor require an evaluation. EPA performed an environmental justice analysis, as is described above in the section titled, “Environmental Justice Considerations.” The analysis was done for the purpose of providing additional context and information about this rulemaking to the public, not as a basis of the action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. In addition, there is no information in the record upon which this decision is based that is inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 16, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
For the reasons stated in the preamble, the Environmental Protection Agency amends 40 CFR part 52 as follows:
42 U.S.C. 7401
(a) Under the subheading “Subchapter B: General Volatile Organic Compound Sources”,
(i) Revising the entries for sections 115.111, 115.112, 115.119, and 115.121; and
(ii) Adding “Division 7: Oil and Natural Gas in Ozone Nonattainment Areas” consisting of sections 115.170 through 115.181 and 115.183, immediately following the entry for section 115.169; and
(b) Under the subheadings “Subchapter D—Petroleum Refining, Natural Gas Processing, and Petrochemical Processes” and “Division 3: Fugitive Emission Control in Petroleum Refining, Natural Gas/Gasoline Processing, and Petrochemical Processes in Ozone Nonattainment Areas”, revising the entry for section 115.357.
The revisions and addition read as follows:
(c) * * *
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is approving, under the Clean Air Act (CAA), revisions to the State Implementation Plan (SIP) submitted by the Illinois Environmental Protection Agency (Illinois EPA) on October 22, 2020, and February 14, 2023. The revisions address the emissions inventory requirements for the Chicago and Metro-East nonattainment areas under the 2015 ozone National Ambient Air Quality Standard (NAAQS or standard). The Chicago nonattainment area includes Cook, DuPage, Grundy (Aux Sable and Goose Lake Townships), Kane, Kendall (Oswego Township), Lake, McHenry, and Will counties. The Metro-East nonattainment area includes Madison, Monroe, and St. Clair counties. The CAA requires emissions inventories for all ozone nonattainment areas.
This direct final rule will be effective October 16, 2023, unless EPA receives adverse comments by September 14, 2023. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2020-0555 at
Emily Crispell, Environmental Scientist, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-8512,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
On December 28, 2015, EPA promulgated a revised 8-hour ozone NAAQS of 0.070 parts per million (ppm). See 80 FR 65292. Portions of the Chicago area and the Metro-East area were designated as marginal nonattainment areas for the 2015 ozone NAAQS. See 83 FR 25776 (August 3, 2018). The Chicago and Metro-East areas have since been reclassified as moderate
CAA sections 172(c)(3) and 182(a)(1), 42 U.S.C. 7502(c)(3) and 7511a(a)(1), require states to develop and submit, as SIP revisions, emission inventories for all areas designated as nonattainment for any NAAQS, including the ozone NAAQS. An emission inventory for ozone is an estimation of actual emissions of air pollutants that contribute to the formation of ozone in an area. Ozone is a gas that is formed by the reaction of Volatile Organic Compounds (VOC) and Oxides of Nitrogen (NO
Emission inventories provide emissions data for a variety of air quality planning tasks, including establishing baseline emission level (anthropogenic [manmade] emissions associated with ozone standard violations), calculating emission reduction targets needed to attain the NAAQS and to achieve reasonable further progress (RFP) toward attainment of the ozone standard, determining emission inputs for ozone air quality modeling analyses, and tracking emissions over time to determine progress toward achieving air quality and emission reduction goals. As stated above, the CAA requires the states to submit emissions inventories for areas designated as nonattainment for ozone. The “Implementation of the 2015 National Ambient Air Quality Standards for Ozone: Nonattainment Area State Implementation Plan Requirements” specifies that states submit ozone season day emissions estimates for an inventory calendar year to be consistent with the baseline year for the RFP plan as required by 40 CFR 51.1310(b). See 83 FR 62998 (February 4, 2019). For the RFP baseline year for the 2015 ozone NAAQS under 40 CFR 51.1310(b), states may use a calendar year for the most recently available complete triennial (3-year cycle) emissions inventory (40 CFR 51, subpart A) preceding the year of the area's effective date of designation as a nonattainment area. (83 FR 63034-63035, December 6, 2018).
On October 22, 2020, Illinois EPA submitted a SIP revision addressing the emissions inventory requirement of CAA section 182(a)(1). The October 22, 2020, submittal did not provide information for McHenry and Monroe Counties as those counties were not originally included in the nonattainment areas. On June 14, 2021, McHenry County was added to the Chicago nonattainment area and Monroe County was added to the Metro-East nonattainment area (86 FR 31438). On February 14, 2023, Illinois EPA submitted an updated SIP revision including emissions inventory information for McHenry and Monroe Counties and an updated mobile source inventory using the most recent Motor Vehicle Emissions Simulator (MOVES3). Illinois EPA provided documentation of a 2017 NO
Illinois EPA estimated NO
To develop the NO
To develop the NO
To develop the NO
For point sources (electrical generating units (EGUs) and non-EGUs), Illinois EPA calculates and stores emissions data annually in the state's air emissions inventory database. Under the authority of 35 Ill. Adm. Code 254 and 203, Illinois EPA requires any facility in the state that emits a pollutant above the specified thresholds to submit emission inventory statements annually. These reports are required to contain detailed source type-specific or annual source unit-specific and seasonal actual emissions for all source units in a facility. Illinois EPA has provided a detailed list of point sources included in the 2017 base year inventory by nonattainment area and source category with their respective NO
For area source (sometimes referred to as non-point source) emissions, Illinois EPA relied on a variety of state-specific data to estimate emissions based on EPA's procedures and guidance for the 2017 base emissions inventory. Area sources are spread over wide areas with no distinct discharge points or are comprised of a large number of small point sources that are difficult to describe separately and whose emissions are not well characterized (
To develop an accurate and complete area source inventory, Illinois EPA used data from EPA's AP-42: Compilation of Air Emissions Factors, EPA's WebFIRE emission factor database, and data from Federal and state agencies including EPA's Office of Air Quality Planning and Standards, the U.S. Department of Energy, U.S. Bureau of Labor Statistics, Illinois Department of Transportation, Illinois Department of Agriculture, along with 2017 category activity levels, where available, or projections of changes in activity from 2014 to 2017 levels with a preference to Illinois-specific data. In most cases, Illinois EPA calculated 2017 area source emissions estimates by using emissions factors detailed in appendix D of Illinois EPA's submittal. In other cases, Illinois EPA estimated area source emissions by using growth factors to convert 2014 emissions to 2017 emission levels. The area source emissions for the partial county 2015 ozone NAAQS nonattainment areas, were apportioned by taking the whole county emission estimates and allocating to the partial county areas on a township level using surrogates related to the activity being estimated.
Illinois EPA has provided a detailed list of the area sources included in the 2017 base year inventory by Source Classification Code (SCC) and county, with their respective NO
The non-road mobile source emissions were developed by Illinois EPA using MOVES3. Commercial marine vessel emissions were grown from 2014 values. Aircraft emissions were calculated using the number of landings and take-offs in conjunction with an emission factor using the Emissions and Dispersion Modeling System. In appendices A and B of its submittal, Illinois EPA provided a list of the non-road sources included in the 2017 base year inventory by SCC and county, with their respective NO
On-road mobile source emissions were developed by Illinois EPA using MOVES3. The state-specific data inputs were retrieved from Division of Mobile Source Programs within the Illinois EPA's Bureau of Air.
Most of the quality assurance (QA) for on-road mobile emissions was processed through tools built into MOVES3. Additionally, just like the point and nonpoint inventories, QA was performed when the data was submitted to the Emissions Inventory System Gateway. In appendices A and B of the February 14, 2023, submittal, Illinois EPA documented on-road emissions by SCC and county.
EPA has reviewed Illinois EPA's October 22, 2020, and February 14, 2023, SIP submittals for consistency with sections 172(c)(3) and 182(a)(1) of the CAA, and EPA's emission inventory requirements. In particular, EPA has reviewed the techniques used by Illinois EPA to derive and quality assure the emissions estimates. Illinois EPA documented the procedures used to estimate the emissions for each of the major source types. The documentation of the emission estimation procedures is sufficient for EPA to determine that Illinois followed acceptable procedures to estimate the emissions.
Illinois EPA developed a QA plan and followed this plan during various phases of the emissions estimation and documentation process to QA the emissions for completeness and accuracy. These quality assurance procedures were summarized in the documentation describing how the emissions totals were developed. The quality assurance procedures have been determined to be adequate and acceptable. We conclude that Illinois EPA has developed inventories of NO
40 CFR part 51, appendix V, requires that the state provide sufficient notice and opportunity for public comment and hearing on all SIP submittals. On October 11, 2022, Illinois EPA notified the public of the 30-day period for the opportunity to comment on the requested SIP revisions pertaining to the emission inventories for the 2015 ozone NAAQS nonattainment areas. The notification was published on Illinois EPA's website at:
EPA is approving Illinois EPA's SIP revision submitted to address the ozone-related emission inventory requirements for the Chicago metropolitan area and the Metro-East area nonattainment areas for the 2015 ozone NAAQS. The
We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA.
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”
The Illinois EPA did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an environmental justice analysis and did not consider environmental justice in this action. Due to the nature of the action being taken, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of environmental justice is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.
This action is subject to the Congressional Review Act, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 16, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
For the reasons stated in the preamble, 40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Direct final rule.
New Hampshire has applied to the Environmental Protection Agency (EPA) for final authorization of revisions to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA), as amended. The EPA has reviewed New Hampshire's application and has determined that these revisions satisfy all requirements needed to qualify for final authorization. Therefore, we are taking direct final action to authorize the State's changes. In the “Proposed Rules” section of this issue of the
This final authorization will become effective on October 16, 2023, unless the EPA receives adverse written comments by September 14, 2023. If the EPA receives any such comment, the EPA will publish a timely withdrawal of this direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R01-RCRA-2023-0264, at
Tulasi Landes, RCRA Waste Management, and Lead Branch; Land, Chemicals and Redevelopment Division; EPA Region 1, 5 Post Office Square, Suite 100 (Mail code 07-1), Boston, MA 02109-3912; telephone number: (617) 918-1228; email address:
States that have received final authorization from the EPA under RCRA Section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, states must change their programs and ask the EPA to authorize the changes. Changes to state programs may be necessary when Federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, states must change their programs because of changes to the EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273, and 279.
New federal requirements and prohibitions imposed by Federal regulations that the EPA promulgates pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) take effect in authorized states at the same time that they take effect in unauthorized states. Thus, the EPA will implement those requirements and prohibitions in New Hampshire, including the issuance of new permits implementing those requirements, until New Hampshire is granted authorization to do so.
On June 9, 2023, New Hampshire submitted a complete program revision application seeking authorization of revisions to its hazardous waste program. The EPA concludes that New Hampshire's application to revise its authorized program meets all the statutory and regulatory requirements established by RCRA, as set forth in RCRA Section 3006(b), 42 U.S.C. 6926(b), and 40 CFR part 271. Therefore, the EPA grants final authorization to New Hampshire to operate its hazardous waste program with the revisions described in its authorization
The New Hampshire Department of Environmental Services (NHDES) has responsibility for permitting treatment, storage, and disposal facilities within its borders and for carrying out the aspects of the RCRA program described in its application, subject to the limitations of HSWA, as discussed above.
This decision serves to authorize New Hampshire for the revisions to its authorized hazardous waste program described in its authorization application. These changes will become part of the authorized State hazardous waste program and will therefore be federally enforceable. New Hampshire will continue to have primary enforcement authority and responsibility for its State hazardous waste program. The EPA would maintain its authorities under RCRA Sections 3007, 3008, 3013, and 7003, including its authority to:
• Conduct inspections, and require monitoring, tests, analyses and reports;
• Enforce RCRA requirements, including authorized State program requirements, and suspend or revoke permits; and
• Take enforcement actions regardless of whether the State has taken its own actions.
This action will not impose additional requirements on the regulated community because the regulations for which the EPA is authorizing New Hampshire are already effective under state law and are not changed by this action.
Along with this direct final rule, the EPA is publishing a separate document in the “Proposed Rules” section of this issue of the
If the EPA receives comments that oppose this authorization, the EPA will withdraw this direct final rule by publishing a document in the
If the EPA receives comments that oppose only the authorization of a particular revision to New Hampshire's hazardous waste program, the EPA will withdraw that part of this rule, but the authorization of the program revisions that the comments do not oppose will become effective on the date specified above. The
The State of New Hampshire initially received final authorization on December 18, 1984, effective January 3, 1985 (49 FR 49093) to implement the RCRA hazardous waste management program. EPA granted authorization for changes to New Hampshire's program on the following dates: November 14, 1994, effective January 13, 1995 (59 FR 56397); and February 27, 2006, effective April 28, 2006 (71 FR 9727); and March 1, 2019, effective May 17, 2019 (84 FR 22378).
On June 9, 2023, New Hampshire submitted a final complete program revision application, seeking authorization of additional revisions to its program in accordance with 40 CFR 271.21. New Hampshire seeks authority to administer the federal requirements that are listed in Table 1 below. This table lists New Hampshire's analogous requirements that are being recognized as no less stringent than the analogous federal requirements.
New Hampshire is seeking authorization for updated state regulations addressing most federal requirements and for changes to New Hampshire's base program for which they had been previously authorized. Significant program revisions in this package include the Management Standards for Hazardous Waste Pharmaceuticals, and the e-Manifest rule.
The EPA proposes to determine, subject to public review and comment, that New Hampshire's hazardous waste program revisions are equivalent to, consistent with, and no less stringent than the Federal program, and therefore satisfy all of the requirements necessary to qualify for final authorization. We are proposing to authorize the program changes as provided in each of the following Revision Checklists (RC):
When revised state rules differ from the Federal rules in the RCRA state authorization process, EPA determines whether the state rules are equivalent to, more stringent than, or broader in scope than the federal program. Pursuant to Section 3009 of RCRA, 42 U.S.C. 6929, state programs may contain requirements that are more stringent than the federal regulations. Such more stringent requirements can be federally authorized and, once authorized, become federally enforceable. Although the statute does not prevent states from adopting regulations that are broader in scope than the federal program, states cannot receive federal authorization for such regulations, and they are not federally enforceable. The most significant differences between the New Hampshire rules and the federal rules are highlighted and summarized in the Table 1 below. It should be noted that
There are aspects of the New Hampshire program which are more stringent than the federal program. These requirements would become part of New Hampshire's authorized program and would be federally enforceable. All of these more stringent requirements are, or will become, part of the federally enforceable RCRA program when authorized by the EPA and must be complied with in addition to the State requirements which track the minimum federal requirements. These more stringent requirements are identified as MS in the Table 2 below.
There are aspects of the New Hampshire program that are broader-in-scope than the federal program. These broader-in-scope requirements do not become part of the authorized program and EPA cannot enforce them. Regulated entities must comply with these requirements in accordance with State law. These broader-in-scope requirements are identified as BIS in the Table 2 below.
There are aspects of the New Hampshire program that are partially broader-in-scope than the federal program. These partially broader-in-scope requirements are the result of New Hampshire not adopting certain portions of the regulations. These partially broader-in-scope requirements are not part of the authorized program and EPA cannot enforce them. However, the parts of the regulations which are not partially broader-in-scope are part of the federally enforceable RCRA program. Regulated entities must comply with these requirements in accordance with State law. These broader-in-scope requirements are identified as Partially BIS in the Table 2 below.
New Hampshire also has some regulations that differ from, but have been determined to be equivalent to, the federal regulations. These state regulations will become part of the federally enforceable RCRA program when authorized by the EPA. These different but equivalent requirements are identified as EQ in the Table 2 below.
EPA cannot delegate certain federal requirements associated with the federal manifest registry system, the electronic manifest system, and international shipments (
There are several Federal rules that have been vacated, withdrawn, or superseded. As a result, authorization of these rules may be moot. However, for purposes of completeness, these rule checklists are included here with an explanation as to the rule's status in New Hampshire. These checklists include: CL 216: Exclusion of Oil-Bearing Secondary Materials Processed in a Gasification System to Produce Synthetic Gas (73 FR 57, January 2, 2008); CL 221: Expansion of RCRA Comparable Fuel Exclusion (73 FR 77954, December 19, 2008); CL 224: Withdrawal of the Emission Comparable Fuel Exclusion (75 FR 33712, June 15, 2010); and CL 234: Vacatur of the Comparable Fuels Rule and the Gasification Rule (80 FR 18777, April 8, 2015)—CLs 216, 221, and 224 have been vacated. CL 234 implements the vacatur of these provisions. New Hampshire did not adopt the exclusions contained in CLs 216, 221, or 224; therefore, the adoption of CL 234 in New Hampshire would be inconsequential. New Hampshire's authorized program continues to be equivalent to and no less stringent than the Federal program without having to make any conforming changes pursuant to these rule checklists.
When the final authorization takes effect, New Hampshire will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer and enforce any RCRA and HSWA (Hazardous and Solid Waste Act) permits or portions of permits that it has issued in New Hampshire prior to the effective date of this authorization until the State incorporates the terms and conditions of the federal permits into the State RCRA permits. EPA will not issue any new permits, or new portions of permits, for the provisions listed in the Table above after the effective date of this authorization. EPA will continue to implement, and issue permits for any HSWA requirements for which New Hampshire is not yet authorized. EPA has the authority to enforce state-issued permits after the State is authorized.
Codification is the process of placing citations and references to the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by adding those citations and references to the authorized State rules in 40 CFR part 272. EPA is not proposing to codify the authorization of New Hampshire's changes at this time. However, EPA reserves the ability to amend 40 CFR part 272, subpart UU for the authorization of New Hampshire's program at a later date.
The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). This action authorizes State requirements for the purpose of RCRA section 3006 and imposes no additional requirements beyond those imposed by State law. Therefore, this action is not subject to review by OMB. This action is not an Executive Order 14094 (88 FR 21879, April 11, 2023) regulatory action because actions such as the authorization of New Hampshire's revised hazardous waste program under RCRA are exempted under Executive Order 12866. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
Under RCRA section 3006(b), the EPA grants a state's application for authorization as long as the state meets the criteria required by RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a state authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in taking this action, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of this action in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.
This action is issued under the authority of Sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912(a), 6926, 6974(b).
Environmental Protection Agency (EPA).
Direct final rule.
The State of Montana Department of Environmental Quality has applied to the Environmental Protection Agency (EPA) for final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). The EPA has determined that these changes satisfy all requirements needed to qualify for final authorization, and is authorizing the State's changes through this direct final action. The EPA uses the regulations entitled “Approved State Hazardous Waste Management Programs” to provide notice of the authorization status of State programs and to incorporate by reference those provisions of State statutes and regulations that will be subject to the EPA's inspection and enforcement. This rule also codifies in the regulations the approval of Montana's hazardous waste management program and incorporates by reference the authorized provisions of the State's regulations.
This direct final rule is effective on October 16, 2023 unless EPA receives adverse written comment by September 14, 2023. If the EPA receives any such comment, we will publish a timely withdrawal of this direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R08-RCRA-2023-0033; FRL-10606-02-R8 by one of the following methods:
1.
2.
3.
4.
Moye Lin, Resource Conservation and Recovery Act Branch, EPA Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129; telephone number: (303) 312-6667; email address:
States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273 and 279.
On May 31, 2022, Montana submitted a final complete program revision application seeking authorization of changes to its hazardous waste program. The EPA concludes that Montana's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Montana final authorization to operate its hazardous waste program with the changes described in the authorization application. Montana has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs), and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA), for all areas within the State, except for (1) lands located within formal Indian Reservations within or abutting the State of Montana, including Blackfeet Indian Reservation, Crow Tribe of Montana Indian Reservation, Flathead Indian Reservation, Fort Belknap Indian Reservation, Fort Peck Indian Reservation, Northern Cheyenne Indian Reservation, Rocky Boy's Indian Reservation, (2) any land held in trust by the United States for an Indian tribe, (3) and any other land, whether on or off a reservation that qualifies as “Indian country” within the meaning of 18 U.S.C. 1151. New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Montana, including issuing permits, until Montana is authorized to do so.
The effect of this decision is that a facility in Montana subject to RCRA will have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. The State of Montana will continue to have enforcement responsibilities under its State hazardous waste program for violations of such program, but the EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:
• Conduct inspections and require monitoring, tests, analyses, or reports;
• Enforce RCRA requirements; suspend or revoke permits; and
• Take enforcement actions after notice to and consultation with the State.
This action to approve these provisions would not impose additional requirements on the regulated community because the regulations for which the State of Montana is requesting authorization are already effective under State law and are not changed by the act of authorization.
The EPA is publishing this rule without a prior proposal because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of this
If EPA receives comments that oppose this authorization, we will publish a timely withdrawal in the
Montana initially received final authorization on July 11, 1984, effective July 25, 1984 (49 FR 28245) to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on: January 19, 1994, effective March 21, 1994 (59 FR 2752); October 25, 1996, effective December 24, 1996 (61 FR 55223); December 26, 2000, effective December 26, 2000 (65 FR 81381); September 30, 2005, effective November 29, 2005 (70 FR 57152); and,
On May 31, 2022, the State of Montana submitted a final complete program revision application, seeking authorization of their changes in accordance with 40 CFR 271.21. We now make a final decision, subject to receipt of written comments that oppose this action, that Montana's hazardous waste program satisfies all of the requirements necessary to qualify for final authorization. Therefore, we grant Montana final authorization for the following changes:
The State of Montana revisions consist of regulations which specifically govern Federal hazardous waste revisions promulgated between July 1, 2006 and June 30, 2021, Revision Checklists 214, 215, 217, 218, 220, 222 and 223, Rule 225, and Revision Checklists 226 through 243 (RCRA Clusters XVII through XXIX). The State requirements from its Hazardous Waste Rules, Administrative Rules of Montana (ARM), Environmental Quality, Title 17, Chapter 53, sections 17.53.101 through 17.53.1502 are listed in the chart below.
Montana has made amendments to its regulations that are not directly related to any of the Federal rules addressed in Item G.1 above. These State-initiated changes are either conforming changes made to existing authorized provisions, or the adoption of provisions that clarify and make the State's regulations internally consistent. The State's regulations, as amended by these provisions, provide authority which remains equivalent to and no less stringent than the Federal laws and regulations. These State-initiated changes are submitted under the requirements of 40 CFR 271.21(a) and include the following provisions from the Administrative Rules of Montana (ARM), as amended, effective May 14, 2022: ARM 17.53.105(4); 17.53.107(1) introductory paragraph; 17.53.111(1); 17.53.111(3); 17.53.111(4) (except phrase addressing fees); 17.53.111(5); 17.53.406; 17.53.602(1); 17.53.1202(1); 17.53.1202(21); and 17.53.1303. In addition, effective December 25, 2009, Montana made State-initiated changes to adopt 40 CFR part 267 by reference at ARM 17.53.1501 and 17.53.1502. The State had previously adopted the final rule, Standardized Permit for RCRA Hazardous Waste Management Facilities, (September 8, 2005, 70 FR 53419) without the 40 CFR part 267 provisions. Sections 17.53.1501 and 17.53.1502 have been reviewed by EPA and are acceptable to be authorized.
The Montana revisions being authorized in this rule include provisions that contain purely Federal functions which are not delegable to States. The non-delegable Federal program areas include import/export requirements reserved as part of the Federal foreign relations function, and manifest registry and electronic manifest functions administered solely by the EPA. Montana has appropriately adopted these provisions by leaving the authority with the EPA for implementation and enforcement.
When revised State rules differ from the Federal rules in the RCRA State authorization process, EPA determines whether the State rules are equivalent to, more stringent than, or broader in scope than the Federal program. Pursuant to RCRA section 3009, 42 U.S.C. 6929, State programs may contain requirements that are more stringent than the Federal regulations. Such more stringent requirements can be federally authorized and, once authorized, become federally enforceable. Although the statute does not prevent States from adopting regulations that are broader in scope than the Federal program, States cannot receive Federal authorization for such regulations, and they are not federally enforceable.
We consider the following State requirements to be more stringent than the Federal requirements: ARM 17.53.502(5), 17.53.602(3), (10), (11), and (12), 17.53.603(1) introductory paragraph, 17.53.603(2), (3), and (4) because Montana requires an annual report in lieu of the Federal biennial reporting requirement. Additionally, we consider the following State requirement to be broader in scope than the Federal: ARM 17.53.111(6) because Montana requires transporters obtain a registration from the State.
The State of Montana will continue to issue permits for all the provisions for which it is authorized and will administer the permits it issues. The EPA will continue to administer any RCRA hazardous waste permits or portions of permits, which we issued prior to the effective date of this authorization, until Montana has equivalent instruments in place. EPA will continue to implement and issue permits for HSWA requirements for which Montana is not yet authorized.
Montana is not authorized to carry out its hazardous waste program in Indian country, as defined in 18 U.S.C. 1151. This includes, but is not limited to:
1. Lands within the exterior boundaries of the following Indian Reservations located within or abutting the State of Montana:
2. Any land held in trust by the U.S. for an Indian tribe; and
3. Any other land, whether on or off a reservation that qualifies as Indian country within the meaning of 18 U.S.C. 1151.
Therefore, this program revision does not extend to Indian country where the EPA will continue to implement and administer the RCRA program.
Codification is the process of including the statutes and regulations that comprise the State's authorized hazardous waste management program into the CFR. Section 3006(b) of RCRA, as amended, allows the Environmental Protection Agency (EPA) to authorize State hazardous waste management programs. The State regulations authorized by EPA supplant the Federal regulations concerning the same matter with the result that after authorization, EPA enforces the authorized regulations. Infrequently, State statutory language which acts to regulate a matter is also authorized by EPA with the consequence that EPA enforces the authorized statutory provision. EPA does not authorize State enforcement authorities and does not authorize State procedural requirements. EPA codifies the authorized State program in 40 CFR part 272 and incorporates by reference State statutes and regulations that make up the approved program, which is Federally enforceable in accordance with sections 3007, 3008, 3013, and 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934 and 6973, and any other applicable statutory and regulatory provisions.
The EPA first incorporated by reference Montana's authorized hazardous waste program effective January 31, 1986 (51 FR 3954) and program revisions effective March 8, 2006 (71 FR 11536). In this action, EPA is revising Subpart BB of 40 CFR part 272 to include the authorization revision actions described in this document.
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference of the authorized hazardous waste management program of the State of Montana. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Montana rules described in section I.G. of this preamble and set forth in the amendments to 40 CFR 272.1351. The EPA has made, and will continue to make, these documents available electronically through
This action codifies EPA's authorization of Montana's base hazardous waste management program and its revisions to that program. The codification reflects the State program that would be in effect at the time EPA's authorized revisions to the Montana hazardous waste management program addressed in this direct final rule become final. This action does not reopen any decision EPA previously made concerning the authorization of the State's hazardous waste management program. EPA is not requesting comments on its decisions published in the
The EPA is incorporating by reference EPA's approval of Montana's hazardous waste management program by amending Subpart BB to 40 CFR part 272. The action amends § 272.1351 and incorporates by reference Montana's authorized hazardous waste regulations, as amended, effective May 14, 2022. Section 272.1351 also references the demonstration of adequate enforcement authority, including procedural and enforcement provisions, which provide the legal basis for the State's implementation of the hazardous waste management program. In addition, § 272.1351 references the Memorandum of Agreement, the Attorney General's Statements and the Program Description, which are evaluated as part of the approval process of the hazardous waste management program in accordance with Subtitle C of RCRA.
EPA retains the authority under statutory provisions, including but not limited to, RCRA sections 3007, 3008, 3013 and 7003, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions and to issue orders in all authorized States. With respect to enforcement actions, EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than the State analogs to these provisions. Therefore, the EPA is not incorporating by reference Montana's inspection and enforcement authorities, nor are those authorities part of Montana's approved State program which operates in lieu of the Federal program. 40 CFR 272.1351(c)(2) lists these authorities for informational purposes, and because EPA also considered them in determining the adequacy of Montana's procedural and enforcement authorities. Montana's authority to inspect and enforce the State's hazardous waste management program requirements continues to operate independently under State law.
The public is reminded that some provisions of Montana's hazardous waste management program are not part of the federally authorized State program. These non-authorized provisions include:
(1) Provisions that are not part of the RCRA subtitle C program because they are “broader in scope” than RCRA subtitle C (see 40 CFR 271.1(i));
(2) State procedural and enforcement authorities which are necessary to establish the ability of the State's program to enforce compliance but which do not supplant the Federal statutory enforcement and procedural authorities.
State provisions that are “broader in scope” than the Federal program are not incorporated by reference in 40 CFR part 272. For reference and clarity, EPA lists in 40 CFR 272.1351(c)(3) the Montana statutory provisions which are “broader in scope” than the Federal program and which are not part of the authorized program being incorporated by reference. While “broader in scope” provisions are not part of the authorized program and cannot be enforced by EPA, the State may enforce such provisions under State law.
With respect to any requirement(s) pursuant to HSWA for which the State has not yet been authorized, and which EPA has identified as taking effect immediately in States with authorized hazardous waste management programs, EPA will enforce those Federal HSWA
The codification does not affect Federal HSWA requirements for which the State is not authorized. EPA has authority to implement HSWA requirements in all States, including States with authorized hazardous waste management programs, until the States become authorized for such requirements or prohibitions, unless EPA has identified the HSWA requirement(s) as an optional or as a less stringent requirement of the Federal program. A HSWA requirement or prohibition, unless identified by EPA as optional or as less stringent, supersedes any less stringent or inconsistent State provision which may have been previously authorized by EPA (50 FR 28702, July 15, 1985).
Some existing State requirements may be similar to the HSWA requirements implemented by EPA. However, until EPA authorizes those State requirements, EPA enforces the HSWA requirements and not the State analogs.
The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). Therefore, this action is not subject to review by OMB. This action authorizes and codifies State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant, and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.
Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Because this rule authorizes pre-existing State rules which are at least equivalent to, and no less stringent than existing Federal requirements, and imposes no additional requirements beyond those imposed by State law, and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898.
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.
Environmental protection, Hazardous materials transportation, Hazardous waste, Incorporation by reference, Intergovernmental relations, Water pollution control, Water supply.
This rule is issued under the authority of sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended, 42 U.S.C. 6912(a), 6926, 6974(b).
For the reasons set forth in the preamble, under the authority at 42 U.S.C. 6912(a), 6926, and 6974(b), EPA is granting final authorization under 40 CFR part 271 to the State of Montana for revisions to its hazardous waste program under the Resource Conservation and Recovery Act and is amending 40 CFR part 272 as follows:
Secs. 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).
(a) Material listed as incorporated by reference in part 272 was approved for incorporation by reference by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Material is incorporated as it exists on the date of the approval, and notice of any change in the material will be published in the
(b) Copies of materials incorporated by reference may be inspected at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email:
(1) Region 1 (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont): 5 Post Office Square, 1st floor, Boston, MA 02109-3912; phone number: (617) 918-1313,
(2) Region 2 (New Jersey, New York, Puerto Rico, Virgin Islands): Federal Office Building, 290 Broadway, 23rd Floor, New York, NY 10007-1866; phone number: (212) 637-3185),
(3) Region 3 (Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West Virginia): Four Penn Center, 1600 John F. Kennedy Blvd., Philadelphia, PA 19103-2852; phone number: (215) 814-5254,
(4) Region 4 (Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee): 61 Forsyth Street SW, Sam Nunn Atlanta Federal Center, 9th Floor, Atlanta, GA 30303, (513) 569-7703,
(5) Region 5 (Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin): 77 West Jackson Boulevard, Chicago, IL 60604; phone number: (312) 886- 6822,
(6) Region 6 (Arkansas, Louisiana, New Mexico, Oklahoma, Texas): 1201 Elm Street, Suite 500, Dallas, Texas 75270-2102; phone number: (214) 665-853,
(7) Region 7 (Iowa, Kansas, Missouri, Nebraska); 11201 Renner Boulevard, Lenexa, Kansas 66219; phone number: (919) 541-2777,
(8) Region 8 (Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming): 1595 Wynkoop St., Denver, CO 80202-2405; phone number: (303) 312-6667,
(9) Region 9 (Arizona, California, Hawaii, Nevada, Guam, American Samoa, Commonwealth of the Northern Mariana Islands): 75 Hawthorne Street, San Francisco, CA 94105; phone number: (415) 947-4406,
(10) Region 10 (Alaska, Idaho, Oregon, Washington): 1200 Sixth Avenue, Seattle, WA 98101; phone number: (206) 553-1289.
(c) For an informational listing of the state and local requirements incorporated in this part, see appendix A to this part.
(a)
(b)
(c)
(i) EPA-Approved Montana Regulatory Requirements Applicable to the Hazardous Waste Management Program, dated November 2022.
(ii) [Reserved]
(2)
(i) Montana Code Annotated (MCA) 2021, Title 2, “Government Structure and Administration,” Chapter 3, Public Participation in Governmental Operations, sections 2-3-102 introductory paragraph through 2-3-102(2), 2-3-103(1), 2-3-104, 2-3-105, 2-3-111, 2-3-112, 2-3-221, 2-3-301; Chapter 4, Administrative Procedure Act, sections 2-4-103, 2-4-307, 2-4-315; Chapter 6, Public Records, sections 2-6-1003 and 2-6-1006; Chapter 15, Executive Branch Officers and Agencies, sections 2-15-3501 and 2-15-3502.
(ii) Montana Code Annotated (MCA) 2022, Title 25, Civil Procedure: Chapter 20, Rules of Civil Procedure, Rule 24(a) and (b).
(iii) Montana Code Annotated (MCA) 2021, Title 27, Civil Liability, Remedies, and Limitations: Chapter 30, Nuisances, section 27-30-204.
(iv) Montana Code Annotated (MCA) 2021, Title 30, Trade and Commerce: Chapter 14, Unfair Trade Practices and Consumer Protection, sections 30-14-402,
(v) Montana Code Annotated (MCA) 2021, Title 75, Environmental Protection: Chapter 10, Waste and Litter Control, sections 75-10-107, 75-10-203, 75-10-402(3), 75-10-403 (except 75-10-403(13)), 75-10-404(1) introductory paragraph and (1)(a), 75-10-404(1)(b) through (e), 75-10-404(2), 75-10-405 (except 75-10-405(1)(i), (1)(j) and (2)(a)), 75-10-406, 75-10-408, 75-10-409, 75-10-410, 75-10-411, 75-10-413, 75-10-414, 75-10-415, 75-10-416, 75-10-417, 75-10-418, 75-10-419, 75-10-420, 75-10-421, 75-10-422, 75-10-424, 75-10-425, 75-10-426, 75-10-427, 75-10-441 and 75-10-442; Chapter 20, Major Facility Siting.
(vi) Administrative Rules of Montana (ARM), effective May 14, 2022, Title 17, Environmental Quality: Chapter 53, Hazardous Waste, sections 17.53.104, 17.53.201, 17.53.202, 17.53.206, 17.53.207, 17.53.208, 17.53.212, 17.53.213, 17.53.214, 17.53.215, 17.53.1202(6)(m) and (n), 17.53.1202(7).
(3)
(i) Montana Code Annotated (MCA) 2021, Title 75, Environmental Protection: Chapter 10, Waste and Litter Control, sections 75-10-403(13), 75-10-405(1)(i) and (j), 75-10-405(2)(a), 75-10-431, 75-10-432, 75-10-433, and 75-10-434.
(ii) Administrative Rules of Montana (ARM), effective May 14, 2022, Title 17, Environmental Quality, Chapter 53, Hazardous Waste, sections 17.53.111(4) (phrase addressing fees), 17.53.111(6), 17.53.112, 17.53.113, 17.53.301(2)(p) (phrase addressing fees), 17.53.703, 17.53.1202(6)(l), and 17.53.1202(18).
(4)
(5)
(6)
The regulatory provisions include: Administrative Rules of Montana, Title 17, Environmental Quality, Chapter 53, Hazardous Waste, effective May 14, 2022, sections 17.53.101, 17.53.102, 17.53.105, 17.53.107, 17.53.111(1), 17.53.111(2), 17.53.111(3), 17.5.111(4) (except the phrase “and receives the registration fee required by ARM 17.53.113”), 17.53.111(5), 17.53.111(7), 17.53.301 (except the phrase addressing fees at 17.53.301(2)(p)), 17.53.404, 17.53.405, 17.53.406, 17.53.501, 17.53.502, 17.53.601, 17.53.602, 17.53.603, 17.53.604, 17.53.701, 17.53.702, 17.53.704, 17.53.706, 17.53.707, 17.53.708, 17.53.801, 17.53.802, 17.53.803, 17.53.901, 17.53.902, 17.53.903, 17.53.1001, 17.53.1002, 17.53.1003, 17.53.1004, 17.53.1101, 17.53.1102, 17.53.1201, 17.53.1202 (except 17.53.1202(6)(l), (6)(m), (6)(n), (7) and (18)), 17.53.1203, 17.53.1301, 17.53.1302, 17.53.1303, 17.53.1401, 17.53.1402, 17.53.1501, and 1502.
Copies of the Montana regulations that are incorporated by reference are available from the Montana Secretary of State, Administrative Rules Services, P.O. Box 202801, Helena, MT 59620-2801 (Phone: 406-438-6122)
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission (Commission) take steps to increase Tribal library eligibility and continue to reduce administrative burdens in the program. In doing so, the Commission expects to make the program more accessible to Tribal communities, so that they can leverage E-Rate funds to improve and meet the broadband connectivity needs of their communities. Where appropriate, the Commission also amends its rules to benefit non-Tribal applicants as well, to simplify and streamline the E-Rate program for all participants. The Commission expects that these measures will provide a meaningful difference for Tribal communities, especially Tribal libraries that seek to participate in the E-Rate program.
Effective September 29, 2023, except for §§ 54.503(c)(2)(i)(B) and 54.504(a)(1)(ii), which are delayed indefinitely. The Commission will publish a document in the
Johnny Roddy
This is a synopsis of the Commission's Schools and Libraries Universal Service Support Mechanism, Federal-State Joint Board on Universal Service, and Changes to the Board of Directors of the National Exchange Carrier Association, Inc., Report and Order (Order) in CC Docket Nos. 02-6, 96-45 and 97-21; FCC 23-56, adopted July 20, 2023 and released July 21, 2023. The Commission also released a companion Further Notice of Proposed Rulemaking (
1. The E-Rate program provides support to ensure that schools and libraries can obtain affordable, high-speed broadband services and Wi-Fi equipment to connect today's students and library patrons with next-generation learning opportunities and services. In January 2022, the Commission began an initiative to increase Tribal libraries' access to E-Rate support, recognizing the valuable role that these entities
2. Consistent with efforts to encourage more Tribes to participate in the E-Rate program, the Commission now takes steps to increase Tribal library eligibility and continue to reduce administrative burdens in the program. In doing so, the Commission expects to make the program more accessible to Tribal communities, so that they can leverage E-Rate funds to improve and meet the broadband connectivity needs of their communities. Where appropriate, the Commission also amends the rules to benefit non-Tribal applicants as well, to simplify and streamline the E-Rate program for all participants. First, the Commission modifies the rules to allow Tribal college and university (TCU) libraries to apply for and receive E-Rate support, provided they are also serving as a public library in their community. Next, the Commission adopts a number of changes to simplify and improve the E-Rate application process for Tribal library and other applicants. The Commission also takes steps to enhance communication with Tribal Nations by providing additional outreach to Tribal entities and leaders and by adopting a definition of “Tribal” to better identify Tribal applicants. Finally, the Commission also adds a Tribal representative to the Universal Service Administrative Company (USAC) Board of Directors to ensure Tribal input into the administration and oversight of the federal USF and the universal service support programs. Taken together, the Commission expects that these measures will provide a meaningful difference for Tribal communities, especially Tribal libraries that seek to participate in the E-Rate program. The Commission also seeks comment on additional rule changes and clarifications suggested by commenters to further streamline and improve the application process for all E-Rate applicants. The Commission considers certain of those suggestions in the
3. Based on a review of the record and consistent with the authority pursuant to section 254(h) of the Communications Act of 1934, as amended, the Commission adopts the proposal to make TCU libraries eligible for E-Rate support when they also serve as a public library in their community. Commenters that addressed this issue unanimously supported the rule change and provided evidence about how TCU libraries offer valuable library services to their communities.
4. The American Library Association (ALA) argues, for example, that TCU libraries like Ilisagvik College's Tuzzy Consortium Library do not just serve students, faculty, and staff, but also the wider community, even providing workforce and career programs to members of the public, and should therefore be permitted to draw on the E-Rate program support like any other library. During the April 13, 2023 Tribal Consultation and Listening Session, the Director of Education for the Inupiat Community of the Arctic Slope, Mark Roseberry, explained that their TCU library is responsible for serving their entire Alaskan community and that the library would greatly benefit from E-Rate funding. The American Indian Higher Education Consortium (AIHEC) noted that, of the 35 accredited TCUs, 31 open their libraries to the public as the only public library in their rural communities, acting as a vital resource in the communities they serve. AIHEC further commented that TCU libraries serve the public at their own expense despite facing internet connection costs ranging from 21 to 70 times the national average at much slower speeds. It noted that TCU libraries, such as Oglala Lakota College, provide a wide variety of services to the public for free, offering computers and internet access to community members who would not otherwise have access to the internet so that they can do homework, complete research, and find employment. The Commission finds that permitting TCU libraries that also serve as public libraries to receive E-Rate support will provide a meaningful benefit to Tribal communities, particularly where the TCU library may be the only library in its community. The Commission therefore will consider a TCU library eligible to apply for E-Rate support if it serves as a public library by having dedicated library staff, regular hours, and a collection available for public use in its community.
5. In making this change, the Commission seeks to balance the goal of improving broadband connectivity on Tribal lands with the duty as a responsible steward of limited universal service resources. The Commission therefore adopts limitations to ensure that E-Rate support is restricted to TCU library use only, and not to support the broader connectivity requirements of the higher education institution. For example, TCU libraries cannot request funding for services or equipment beyond the needs of the library, and any category two equipment must be installed within the eligible library only and cannot be installed in another location within the TCU. Commenters suggest that TCU libraries not be required to perform cost-allocation calculations because they are burdensome and would potentially deter TCU libraries from seeking support. To address this concern, accordingly, the Commission will not require TCU libraries to perform cost-allocation calculations of the college student and staff usage at the library versus public usage of bandwidth, as members of the college community are also members of the public. If, however, the TCU library is seeking E-Rate support for a portion of the total bandwidth used at the Tribal college or university, it will be required to calculate the bandwidth usage from other parts of the Tribal college or university, and include only the library portion of bandwidth use in its E-Rate funding request. Such limitations will ensure that E-Rate funding is not improperly provided to the other TCU buildings like classrooms and dormitories.
6. The State E-Rate Coordinators' Alliance, the Schools, Health, and Libraries Broadband Coalition, the Consortium for School Networking, and the State Educational Technology Directors Association (collectively, the Joint Commenters), in their comments, also suggest that a TCU library should only be eligible when there is no other Tribal library accessible to the community. The Commission is not convinced that this restriction is either necessary or meaningful. First, there are a very limited number of TCU libraries, which limits the impact of granting eligibility. It is also administratively challenging to determine whether another Tribal library is “accessible” to the community. Finally, the Commission does not impose similar restrictions in the E-Rate program to
7. The Commission finds that the action is consistent with its statutory authority under section 254(h) of the Communications Act to enhance access to advanced telecommunications and information services for libraries. In defining which libraries would be eligible for E-Rate support in 1997, the Commission initially adopted rules barring all college and university libraries from eligibility so as to guard against “institutions of higher learning [that] could assert that their libraries, and thus effectively their entire institutions, were eligible for support,” finding it inconsistent with congressional intent that funding would flow to an institution of learning only if it is an elementary or secondary school. Here, the presence of other program protections, as well as the very limited number of TCUs and the value of the services they provide to their Tribal communities persuade the Commission to change the rules and ensure that TCU libraries that also serve as a public library are not barred from eligibility. Though one commenter suggested granting eligibility to non-TCU libraries at small colleges or in rural areas, the Commission does not have a sufficient record to evaluate this issue and seeks further comment in the
8. Allowing TCUs that serve as public libraries to participate in E-Rate is also consistent with the federal government's special treatment of TCUs. TCUs are unique higher education institutions that are controlled or chartered by a federally recognized Tribe, governed by a board of whose members are a majority Indian, and have a majority of Indians as its student body. Congress provides support for TCUs as part of its responsibility to provide for Indian education and facilitate its policy of enabling Tribal control of all matters relating to the education of Indian students. Congress has stated that the federal government has a special responsibility, as part of its overall trust responsibility to Indian Tribes, for the education of Indian students, and the federal government has long recognized and “charged itself with moral obligations of the highest responsibility and trust” toward Indian Tribes. Accordingly, TCUs are unique higher education institutions that are entitled to special treatment from the federal government based on their trust relationship between the United States and Indian Tribes and their mission of providing education to Indian students.
9. Building on the Commission proposals in the
10. To streamline the application process and simplify what is required for Tribal and other similarly-situated libraries making low-cost equipment purchases, the Commission adopts a competitive bidding exemption for library applicants seeking E-Rate support for category two equipment or services that total a pre-discounted amount of $3,600 or less in a single funding year. The exemption will simplify the E-Rate application process because it will allow libraries to purchase low-cost category two services and equipment without filing an FCC Form 470 to solicit bids and waiting 28 days before entering into a contract. A category two funding request will be eligible for this exemption only if the total cost per library is $3,600 or less; and the cost cannot be averaged across a number of libraries. By adopting this exemption to the competitive bidding process, the Commission believes it will be easier for smaller libraries, including Tribal libraries and libraries serving rural communities, to apply for E-Rate support when they are making limited purchases of equipment to install or upgrade their Wi-Fi networks.
11. Commenters broadly supported expanding the existing competitive bidding exemption to include category two equipment and services, with suggestions ranging from support for the proposed $3,600 exemption to eliminating the competitive bidding requirement entirely for Tribal entities. Because competitive bidding is essential to ensuring cost-effective purchasing in the E-Rate program, the Commission disagrees with commenters that suggest eliminating competitive bidding for Tribal entities entirely or where there is only one commercial service offering. At the same time, the Commission acknowledges that there are administrative costs associated with the E-Rate application process that can be burdensome, particularly for smaller entities. WTA explained that the low-cost category two services and equipment requests that small libraries often make also do not attract many bids in Tribal and rural areas. As commenters highlighted, the competitive bidding process can be challenging, especially for smaller libraries that have a limited staff. The Commission believes that adopting a $3,600 exemption for libraries requesting category two equipment and services, matching the existing $3,600 competitive bidding exemption for commercially available high-speed internet access services, strikes the right balance in simplifying the E-Rate application process, while retaining competitive bidding requirements where appropriate to ensure that limited E-Rate resources are spent efficiently and effectively. The Commission expects that the exemption will provide a meaningful benefit to Tribal, small, and rural library applicants by making it easier to receive funding for the Wi-Fi network equipment and services they need.
12. The Commission emphasizes that Tribal, and other small or rural library applicants may only request E-Rate support based on the actual cost of the equipment or service requested. The Commission cautions library applicants and service providers that cost-effective purchases are still required under this exemption in order to avoid waste in the program, and directs USAC to review the costs for equipment and services and to deny funding for purchases that are determined to not be cost-effective. In this regard, the Commission notes that it is generally straightforward to review and compare the costs of category two equipment, given that it tends to be widely commercially available, in order to ensure that
13. To increase Tribal library access to category two funding, the Commission increases the maximum discount rate for category two services for Tribal libraries to 90%, and increases the category two funding floor to $55,000 for Tribal libraries. The Commission expects that these changes will help Tribal libraries to better meet their needs by reducing the share that they must pay for Wi-Fi networks and increasing the amount of support they can receive. At the same time, the Commission expects that the budgetary impact to the E-Rate program will be minimal. Taken together, the Commission expects that these measures will encourage greater participation in the E-Rate program by Tribal libraries that will offer a substantial benefit to the communities they serve, at minimal cost to the overall E-Rate program.
14. Tribal libraries tend to be under-resourced, operating on a limited budget to meet the diverse needs of their patrons. Many lack full-time, permanent library staff, much less a dedicated information technology (IT) staff member, often relying on the same IT staff that serves the larger Tribal government. While the Commission appreciates the request by applicants for more support for staffing costs, section 254 of the Communications Act constrains what services are eligible for E-Rate program support. Given these statutory constraints that limit the Commission's ability to fund certain costs, the Commission therefore has tried to identify other options to make internet connectivity more affordable for Tribal libraries. The Commission believes that a five percentage point increase to the maximum discount rate, from 85% to 90%, will make category two services more affordable, allowing Tribal libraries to stretch their limited budgets to better meet their community's Wi-Fi network connectivity needs. Commenters agreed and broadly supported an increase, arguing that a higher discount rate would make a “big difference” to applicants and would result in important additional savings to Tribal applicants. In an April 13, 2023 Tribal Consultation and Listening Session, Tribal participants from Alaska noted that costs are very high in their remote communities, and that an increase in the discount rate would be especially helpful. By making category two services more affordable, the Commission expects that this increase will provide a meaningful benefit to Tribal libraries, that in turn, will encourage greater participation in the E-Rate program.
15. Increasing the category two funding floor to $55,000 from the current floor of $25,000 will also significantly aid Tribal libraries, where the remoteness of Tribal libraries on Tribal lands makes purchasing, installing, and maintaining equipment more difficult and, therefore, more costly. This means that Tribal libraries will be eligible to receive up to a pre-discount amount of $55,000 in category two funding over a five-year period, based on the actual costs of the equipment or services. This increase is consistent with the Washington State Library suggestion that because category two costs of serving small remote libraries is approximately $11,000 per year, setting the funding floor at $55,000 for the five-year budget cycle may be more appropriate. These amounts were estimated based on a recent state pilot project to connect a number of single and very small library systems (fewer than five branches) with a basic Wi-Fi package. The National Tribal Telecommunications Association claimed that, in many of these remote and expensive-to-serve communities, the internet connection available through the Tribal library may be the only broadband available to community members and recommended increasing the funding floor to $35,000. Based on this record evidence, the Commission agrees that an increase in minimum funding levels would help ensure that sufficient E-Rate funding is available to meet the Wi-Fi network requirements of Tribal libraries, and sets the category two services five-year funding floor at $55,000. While the Commission limits the $55,000 funding floor to Tribal library entities at this time, evaluating the impact of this change and considering whether to expand it to all libraries if there is a significant impact on the ability of libraries to meet the needs of their communities and is likely to increase participation in the E-Rate program.
16. As part of the efforts to simplify the E-Rate program, the
17. The Commission agrees with commenters that conducting cost allocations to exclude costs associated with minimal ineligible use or service components can be challenging, especially with regards to services. As a means of providing a safe harbor, the Commission adopts a presumption that
18. In specific regard to Tribal libraries, if the Tribal library is selecting the most cost-effective means of receiving the eligible service without regard to the value of the ineligible components, the burden to allocate a portion of the cost for any ineligible use may decrease participation by these small entities. So, with this presumption, the Commission expects the occasional office use, such as described by the Alaska Department of Education and Early Education and Alaska State Library, could be considered ancillary and cost allocation would not be required, as long as 90% of the requested internet service is used for the library's eligible purposes. The Commission declines to fully remove cost allocation requirements for all Tribal libraries housed in a multipurpose building because of concerns that the exception could lead to the E-Rate program funding largely ineligible services—for instance, if a large administrative building has a small Tribal library located within one room in the building—but the Commission seeks additional comment on this issue in the companion
19. Next, the Commission addresses concerns raised by the Joint Commenters and clarifies that expenses associated with cabling that is primarily being used to provide broadband connectivity within schools and libraries need not be cost allocated, provided it is the most cost-effective means of receiving the eligible service. The Joint Commenters note that applicants have periodically experienced difficulties receiving E-Rate support for cabling, or have been required to return funding based on what equipment the cabling was connected to after installation. They further explain that these issues typically arise in the context of installing internal cabling throughout a building that “provide data transmission to specific points located in the ceilings or in walls of a school or library building, thus creating a `drop' or `jack' for various types of equipment to connect to, and then gain access to the communications network.” Cabling is conditionally eligible for E-Rate support, which means that it is ineligible for E-Rate funding when it is for an ineligible use, such as for a security camera network or voice network, and the costs must be allocated or removed from the funding requests. However, the Commission agrees that it is unworkable to determine conditional eligibility of the cabling on a drop-by-drop basis, particularly after the fact, depending on what broadband-enabled device is plugged into the local area network cabling. Many devices may be connected to a school or library's local area network, both wired and wirelessly, and the devices connected to a network may change over time. The Commission therefore finds that the eligibility determination should be based on the purposes of the network as a whole, rather than for each cabling “drop” or “jack”. As such, cabling “drops” or “jacks” that are part of a local area network primarily serving an eligible purpose (
20. Finally, the Commission addresses an issue with the cost allocation required for shared equipment that is located at a non-instructional facility, including library administrative buildings. While NIFs are eligible for category one support, category two support is generally not available for NIFs unless the equipment is “essential for the effective transport of information to or within one or more instructional buildings of a school or non-administrative library buildings, or the Commission has found that the use of those services meets the definition of educational purpose.” This is generally a district switch located in an administrative building or data center. Under the current rules, a school district or library system generally cannot use any of its budget for category two equipment for a NIF. The exception for essential, shared equipment still applies, and therefore, applicants can purchase this type of equipment to be located in a NIF, but the rules now explicitly state that the applicant must remove the costs associated with the NIF's use of the shared equipment. As a result, the Commission has since learned that applicants have been required to undergo complicated cost-allocation calculations that have proven to be administratively burdensome, resulting in the removal of a small fraction of the funding request for the needed equipment, undercutting the Commission's efforts to streamline the category two application process. As long as the applicant is choosing the most cost-effective offering for the shared equipment (
21. The Commission recognizes that there still exist potential cost-allocation challenges for those Tribal libraries that share space with other governmental and/or community organizations or services, often in unique configurations. The Commission therefore directs USAC to publicly post plain language guidance, approved by the Wireline Competition Bureau (Bureau), providing examples of Tribal library cost allocations as they may arise. This could help other Tribal library applicants understand whether they need to cost allocate in their particular situation and provide examples on how they should cost allocate, if required. The Commission also seeks comment in the
22. To further strengthen the Commission's government-to-government relationship with Tribal Nations and to improve communication with Tribal communities to better support Tribal entities applying for and receiving E-Rate funding, the Commission also makes a number of changes to the rules and processes. First, the Commission establishes a formal definition of Tribal within the E-Rate program to better identify those Tribal applicants seeking E-Rate funding. Second, the Commission amends the rules to add a Tribal representative to the USAC Board of Directors who will represent the Tribal community and provide valuable insights for the administration of the USF and the universal service programs. Lastly, the Commission directs USAC to provide greater outreach to Tribal applicants, and all applicants, so as to create a smoother application process. Taken together, the Commission expects these actions will strengthen the government-to-government relationship between the Commission and Tribal Nations, to better support Tribal libraries and schools, and the communities that they serve.
23.
24. This definition of Tribal is modified slightly as compared to the definition proposed in the
25.
26. The Commission's existing rules with regards to directors will also apply to the Tribal director. The Tribal community shall nominate by consensus a new director. If consensus on a nominee is not reached or a nominee is not provided, the Chair of the Commission shall select an individual to be the Tribal director. The Tribal director will also serve a three-year term but will be eligible to serve for subsequent terms. In addition, the Commission adds the Tribal director to the Schools and Libraries Committee so that the Tribal board member can participate in and assist the Committee in carrying out its responsibilities and duties regarding the E-Rate program. As with other Board member positions, the Tribal director may also serve on other USAC Board committees as well. Since there will now be an even number of directors on the USAC Board, the Commission directs USAC to make any necessary changes to its bylaws to ensure procedures are in place to determine an outcome in the case of a tie.
27.
28. In addition to enhanced training, commenters identified other outreach opportunities to better support Tribal library applicants. Specifically, as suggested by ALA in their initial comments, the Commission directs USAC to identify and conduct outreach to first-time Tribal applicants (may also be known as billed entities or BENs) to provide additional information concerning the review process and to inquire as to any questions the first-time filer or applicants may have. Commenters also expressed confusion related to how a library, including a Tribal library, should set up their billed entity when the respective local government is the entity that pays the bill to vendors. Consistent with the comments from the Alaska Department of Education and Early Development and the Alaska State Library, the Commission directs USAC to post guidance on its website for first-time Tribal library applicants on how to properly set up a library in EPC when the Tribal government, rather than the library, is the entity responsible for paying bills and invoices. The Commission also directs USAC to publish library-specific guidance, upon approval from the Bureau, on issues libraries commonly experience while navigating the E-Rate program.
29. The Commission declines to adopt an extended or separate application filing window for Tribal libraries, as that could cause confusion, but directs the Bureau to continue considering requests for waiver of the FCC Form 471 application filing deadline, recognizing the special circumstances that Tribal library applicants face when applying for the E-Rate program. From speaking with Tribal governments and libraries, the Commission recognizes that the procurement processes for Tribal libraries can be on different timelines from the procurement processes for Tribal schools, that there are fewer staff to handle such filings, and that it can be time-consuming to get approvals for procurements from Tribal officials. However, commenters suggested that extending the filing window or creating a wholly separate filing window would not be helpful at this time and that waiver requests are a better way to assist Tribal libraries in applying for E-Rate support. Therefore, recognizing that the E-Rate process may be particularly challenging for small entities like Tribal libraries, the Commission urges such entities to file timely waiver requests of the FCC Form 471 application filing deadline and to describe in such requests relevant special circumstances, such as delays from additional Tribal approvals. The Commission expects the Bureau to adjudicate any such requests quickly. In this way, the Commission maintains useful program deadlines while also providing assistance to Tribal library applicants.
30. Finally, as suggested by commenters, the Commission directs USAC to develop a mechanism to remind all registered users in EPC three weeks prior to the invoice filing deadline for each funding request (FRN) where no requests for reimbursement have been submitted yet, with instructions on how to file for reimbursement and how to file for a 120-day invoice filing deadline extension. This reminder will offer applicants and service providers an opportunity to avoid missing the invoice filing deadline and to avoid imperiling their ability to receive reimbursement for their E-Rate funding requests. While the Commission hopes that this reminder will assist applicants and service providers that may have overlooked the invoice filing deadline, applicants and service providers are cautioned that it is their responsibility to comply with the Commission's invoice filing deadline rule, regardless of whether or not USAC has sent a reminder of the deadline. The Commission expects this direction to USAC will benefit all E-Rate applicants, especially Tribal library applicants who may be new to the E-Rate reimbursement process.
31. The document contains new information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the revised information collection requirements contained in this proceeding. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, the Commission previously sought specific comment on how it might further reduce the information collection burden on small business concerns with fewer than 25 employees.
32. The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), concurs, that this rule is “non-major” under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of the Report and Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).
33. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the
34. The Commission is required by section 254 of the Communications Act of 1934, as amended, to promulgate rules to implement the universal service provisions of section 254. On May 8, 1997, the Commission adopted rules to reform its system of universal service support mechanisms so that universal service is preserved and advanced as markets move toward competition. Specifically, under the schools and libraries universal service support mechanism, also known as the E-Rate Program, eligible schools, libraries, and consortia that include eligible schools and libraries may receive discounts for eligible telecommunications services, internet access, and internal connections.
35. Taking steps to close the digital divide is a top priority for the Commission. The Commission's E-Rate program, formally known as the schools and libraries universal service support mechanism, provides vital support to schools and libraries allowing them to obtain affordable, high-speed broadband services and internal connections, which enables them to connect students and library patrons to critical next-generation learning opportunities and services. In this document, the Commission enhances Tribal access to E-Rate funding by making both Tribal library specific rule changes and program wide changes that will help all
36. There were no comments filed that specifically address the rules and policies proposed in the IRFA.
37. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rule(s) as a result of those comments.
38. The Chief Counsel did not file any comments in response to the proposed rule(s) in this proceeding.
39. 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 rules, 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. A small business concern is one that: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
40.
41. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2020, there were approximately 447,689 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.
42. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2017 Census of Governments indicate there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number, there were 36,931 general purpose governments (county, municipal, and town or township) with populations of less than 50,000 and 12,040 special purpose governments—independent school districts with enrollment populations of less than 50,000. Accordingly, based on the 2017 U.S. Census of Governments data, the Commission estimates that at least 48,971 entities fall into the category of “small governmental jurisdictions.”
43. Small entities potentially affected by the rules herein are Schools, libraries, Wired Telecommunications Carriers, All Other Telecommunications, Wireless Telecommunications Carriers (except Satellite), Wireless Telephony, Wired Broadband internet Access Service Providers (Wired ISPs), Wireless Broadband internet Access Service Providers (Wireless ISPs or WISPs), internet Service Providers (Non-Broadband), Vendors of Infrastructure Development or Network Buildout, Telephone Apparatus Manufacturing, Radio and Television Broadcasting, and Wireless Communications Equipment Manufacturing.
44. The purpose of this document is to streamline and simplify procedures, and improve the E-Rate program processes. As such, the Commission's rule modifications will reduce the economic impact of current compliance obligations on small entities. For example, TCU libraries will not have to perform cost-allocation calculations of the college student usage at the library versus public usage of bandwidth, reducing compliance obligations. The changes the Commission makes will also reduce current compliance obligations by exempting certain small entity library applicants seeking E-Rate support for category two equipment or services of $3,600 or less in a single funding year from the competitive bidding process.
45. New procedures direct USAC to provide specific support for TCU libraries, outreach to first-time applicants, and invoice reminders for funding requests, which will ease operations and implementation costs for applicants and participants that are small entities. Additionally, the Wireline Competition Bureau will continue to provide leniency to Tribal library applicants that file waiver requests of the FCC Form 471 application filing deadline, easing the compliance burden for these small entities. The Commission is requesting additional information for Tribal affiliation as part of the application process, and this information request is simple enough that it will not increase the burden of applying for relevant applicants that are small entities. Small entities will not be required to hire professionals to comply with any rule modifications. Although the Commission cannot quantify the cost of compliance for small entities, the Commission anticipates the approaches it has taken in this document to streamline and simplify procedures, and improve the E-Rate program processes will have minimal or
46. The RFA requires an agency to provide, “a description of the steps the agency has taken to minimize the significant economic impact on small entities . . . including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.”
47. In this document, the Commission takes steps to minimize the economic impact on small entities with the rule changes that it has adopted. The Commission made rule changes that will lower the burden for applicants to the E-Rate program. By granting Tribal libraries an exemption from the competitive bidding process for category two purchases totaling under $3,600, the Commission greatly simplifies the process of receiving funding for these small purchases, making it easier for Tribal libraries with a small staff to apply for E-Rate. The Commission also made changes to category two funding for Tribal libraries, increasing the maximum discount they can be eligible for from 85% to 90%, and increasing the minimum funding budget, increasing the funding floor from $25,000 to $55,000 for Tribal libraries. This will reduce the share that they must pay for Wi-Fi networks, increase the amount of support that is eligible for reimbursement, and allow small libraries to have greater access to funding at a lower cost to themselves.
48. The Commission also clarifies its cost allocation rules to limit the burden on all applicants, including small entities, adopting a presumption that if at least 90% of an applicant's requested internet service is being used for eligible purposes, the remaining ineligible portion is presumed to be ancillary and, therefore, cost allocation is not required. The Commission considered but rejected alternatives for removing cost allocation requirements for Tribal libraries in multipurpose rooms because of concerns that this would lead to funding ineligible services. Finally, the Commission has directed USAC to provide enhanced support to all applicants, with particular attention being paid to small entities such as small libraries who work with their small, local governments to secure funding.
49. The Commission will send a copy of the
50.
51.
52.
53.
54.
For the reasons discussed above, the Federal Communications Commission amends 47 CFR part 54 as follows:
47 U.S.C. 151, 154(i), 155, 201, 205, 214, 219, 220, 229, 254, 303(r), 403, 1004, 1302, 1601-1609, and 1752, unless otherwise noted.
(b) * * *
(2) Except as provided in paragraph (b)(4) of this section, a library's eligibility for universal service funding shall depend on its funding as an independent entity. Only libraries whose budgets are completely separate from any schools (including, but not limited to, elementary and secondary schools, colleges, and universities) shall be eligible for discounts as libraries under this subpart.
(4) A Tribal college or university library that serves as a public library by having dedicated library staff, regular hours, and a collection available for public use in its community shall be eligible for discounts under this subpart.
(d) * * *
(4)
(6)
(e)
(i) internet access, as defined in § 54.5, is eligible for this exemption only if the purchased service offers at least 100 Mbps downstream and 10 Mbps upstream.
(ii) The Chief, Wireline Competition Bureau, is delegated authority to lower the annual cost of high-speed internet access services or raise the speed threshold of broadband services eligible for this competitive bidding exemption, based on a determination of what rates and speeds are commercially available prior to the start of the funding year.
(2) A library applicant that seeks support for category two services for a total pre-discount price of $3,600 or less per library annually is exempt from the competitive bidding requirements in paragraphs (a) through (c) of this section. Applicants must select a cost-effective service offering, based on the price of the equipment or services.
(c) * * *
(2) * * *
(i) * * *
(B) The libraries or library consortia eligible for assistance from a State library administrative agency under the Library Services and Technology Act of 1996 do not operate as for-profit businesses and, except for the limited case of Tribal colleges or universities, have budgets that are completely separate from any school (including, but not limited to, elementary and secondary schools, colleges, and universities).
(a) * * *
(1) * * *
(ii) The libraries or library consortia eligible for assistance from a State library administrative agency under the Library Services and Technology Act of 1996 do not operate as for-profit businesses and, except for the limited case of Tribal college or universities, their budgets are completely separate from any school (including, but not limited to, elementary and secondary schools, colleges, and universities).
(c)
(g)
(b)(1) The Administrator shall establish a twenty (20) member Board of Directors, as set forth in § 54.703. The Administrator's Board of Directors shall establish three Committees of the Board of Directors, as set forth in § 54.705:
(i) The Schools and Libraries Committee, which shall oversee the schools and libraries support mechanism;
(ii) The Rural Health Care Committee, which shall oversee the rural health care support mechanism; and
(iii) The High Cost and Low Income Committee, which shall oversee the high cost and low income support mechanism.
(2) The Board of Directors shall not modify substantially the power or authority of the Committees of the Board without prior approval from the Federal Communications Commission.
(b)
(12) One director shall represent state consumer advocates;
(13) One director shall represent Tribal communities; and
(a) * * *
(2) * * *
(iv) One Tribal community representative;
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS announces Federal management measures for the 2023 summer flounder, scup, and black sea bass recreational fisheries. The implementing regulations for these fisheries require NMFS to publish recreational measures for the fishing year. The intent of this action is to set management measures that allow the recreational fisheries to achieve, but not exceed, the recreational harvest targets and thereby prevent overfishing of the summer flounder, scup, and black sea bass stocks.
This rule is effective August 15, 2023.
Copies of this final rule and the small entity compliance guide prepared for permit holders are available from: Michael Pentony, Regional Administrator, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01938 and accessible via the internet at:
Mark Grant, Fishery Policy Analyst, (978) 281-9145, or
The Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission cooperatively manage summer flounder, scup, and black sea bass. The Council and the Commission's Management Boards meet jointly each year to recommend recreational management measures. This is the first time a new approach for developing recreational summer flounder, scup, and black sea bass recreational management measures is being used. The new process, referred to as the Percent Change Approach, was part of Framework Adjustment 17 to the Summer Flounder and Black Sea Bass Fishery Management Plan (FMP) and Framework Adjustment 6 to the Bluefish FMP (March 9, 2023, 88 FR 14499). The Percent Change Approach is a harvest control rule designed by the Council and Commission for use in managing mid-Atlantic recreational fisheries and uses two factors to determine if management measures could remain status quo, could be liberalized, or must be restricted. These two factors are: (1) A comparison of a confidence interval (CI) around an estimate of expected harvest under status quo measures to the average recreational harvest limit (RHL) for the upcoming 2 years; and (2) biomass compared to the target level, as defined by the most recent stock assessment. These two factors also determine the appropriate degree of change, defined as a percentage change in expected harvest. Changes to recreational management measures to achieve the required percent change are evaluated by the Monitoring Committee consisting of representatives from the Commission, the Council, state marine fishery agencies from Massachusetts to North Carolina, and NMFS. The FMP limits the choices for the types of measures to: Minimum and/or maximum fish size; per angler possession limit; and fishing season. A description of the application of this process for each species is provided below.
In this final rule, NMFS is implementing conservation equivalency to manage the 2023 summer flounder and black sea bass recreational fisheries, as proposed on March 30, 2023 (88 FR 19046). Under conservation equivalency, Federal recreational measures are waived and federally permitted party/charter vessels and all recreational vessels fishing in Federal waters are subject to the recreational fishing measures implemented by the state in which they land. This approach allows for more customized measures at a state or regional level that are likely to meet the needs of anglers in each area, compared to coastwide measures that may be advantageous to anglers in some areas and unnecessarily restrictive in others. The combination of state or regional measures must be “equivalent” in terms of conservation to a set of “non-preferred coastwide measures,” which are recommended by the Council and the Board each year. States, through the Commission, are collectively implementing measures designed to constrain landings to the 2023 harvest targets. Vessels fishing in Federal waters and Federal party/charter vessels are subject to the regulations in the state in which they land. These measures are consistent with the recommendations of the Council and the Commission. Additional information on the development of these measures is provided in the proposed rule (88 FR 19046, March 30, 2023) and not repeated here.
For scup, we are implementing a 40-fish possession limit, and an open season of May 1 through December 31. These measures are consistent with the December 2022 recommendation of the Council and Commission's Summer Flounder, Scup, and Black Sea Bass Board. However, at the March 2, 2023, meeting of only the Board, the Board requested that we reconsider the January 1 through April 30 Federal scup closure. Our rationale (which incorporates our reconsideration) for implementing the closure is explained in more detail below.
Application of the Percent Change Approach and the bio-economic model used to evaluate recreational behavior and catch resulted in a recommended 10-percent reduction in scup harvest in 2023.
The previously implemented Federal recreational scup management measures were a 10-inch (25.4-cm) minimum fish size, a 50-fish per person possession limit, and a year-round open season.
The measures being implemented in state waters collectively achieve a reduction of approximately 9.5 percent. The exact contribution (in terms of the percent reduction) of the Federal actions cannot be accurately quantified, but they will contribute to the overall reduction, and we expect the required 10-percent reduction will be achieved by the combined Federal actions and state waters measures.
Given the timing of the management process, Federal and state waters measures are not possible to implement at the start of the fishing year (January 1), and often are not effective until spring (May/June). However, the analyses used to determine the needed management changes often assume that changes can and will be made throughout the fishing year. Given the timing of this final rule, the Federal scup closure from January through April will not be effective until 2024. If, during the course of the fishing year, data indicate that the closure is not necessary, there are opportunities for the Council and the Commission's Summer Flounder, Scup, and Black Sea Bass Board to recommend action prior to January 1, to reopen all or some of the closure. At this time, we cannot determine that it would be appropriate to eliminate the closure. Additionally, the States of Massachusetts, Rhode Island, Connecticut, and New Jersey, where more than 99 percent of all recreationally harvested scup are landed, have all selected State waters measures that include a closure during January through April to help achieve the required reduction. These State waters closures will remain in place in 2024, and having Federal waters closed during the same period next year will promote compliance and enforcement with the States' measures.
We are implementing a Federal recreational scup possession limit of 40 fish per person, and an open season from May 1 through December 31. No changes to the Federal minimum size are being made. The Federal measures, in conjunction with changes to state waters measures, are expected to achieve the needed 10-percent harvest reduction.
On April 20, 2023, the Commission notified NMFS that it has certified that the 2023 recreational fishing measures required to be implemented in state waters for summer flounder are, collectively, the conservation equivalent of the season, fish size, and possession limit prescribed in 50 CFR 648.104(b), 648.105, and 648.106(a). According to § 648.107(a)(1), vessels subject to the recreational fishing measures are not subject to Federal measures and instead are subject to the recreational fishing measures implemented by the state in which they land. Section 648.107(a) is amended through this final rule to recognize state-implemented measures as the conservation equivalent of the Federal coastwide recreational management measures for 2023.
In addition, this action revises the default `non-preferred' summer flounder coastwide measures at §§ 648.104(b), 648.105, and 648.106(a). For 2023, the non-preferred coastwide measures are an 18-inch (45.72-cm) minimum fish size; a 3-fish per person possession limit; and an open season from May 15 through September 22. Compared to 2022, this is a decrease in the non-preferred minimum size from 18.5 inches to 18 inches (45.72 cm to 48.26 cm) total length; a 1-fish reduction of the possession limit; and an increase in the season length. The non-preferred coastwide measures become the default management measures in the subsequent fishing year, in this case 2024, until the joint process establishes either non-preferred coastwide measures or conservation-equivalency measures for the next year.
On April 20, 2023, the Commission notified NMFS that it has certified that the 2023 recreational fishing measures required to be implemented in state waters for black sea bass are, collectively, the conservation equivalent of the season, fish size, and possession limit prescribed in §§ 648.145(a), 648.146, and 648.147(b). According to § 648.142(d)(2), vessels subject to the recreational fishing measures are not subject to Federal measures and instead are subject to the recreational fishing measures implemented by the state in which they land. Section 648.151 is amended through this final rule to recognize state-implemented measures as the conservation equivalent of the Federal coastwide recreational management measures for 2023.
In addition, this action revises the default `non-preferred' black sea bass coastwide measures. For 2023, the non-preferred coastwide measures are: A 15-inch (12.7-cm) minimum size; a 5-fish possession limit; and an open season of May 15 through September 8. Compared to 2022, this is a 1-inch (2.54-cm) increase to the minimum size and a 1-month reduction to the season length. The non-preferred coastwide measures become the default management measures in the subsequent fishing year, in this case 2024, until the joint process establishes either non-preferred coastwide measures or conservation-equivalency measures for the next year.
There are no changes to the proposed rule, but there are corrections to two tables that appeared in the proposed rule. As noted above, the estimated scup harvest's CI values in Table 1 have been corrected. In the proposed rule, the incorrect CI was presented. In this rule, the correct CI is included in Table 1.
Further, in the proposed rule, Table 3 contained the incorrect black sea bass RHL value. The following table, Table 2, contains the correct RHL.
The errors existed only in the proposed rule tables and did not affect the determination of recreational measures.
We received 14 unique comment letters in response to the proposed rule (88 FR 19046, March 30, 2023). Comments are grouped and summarized by topic. One of these comments was not relevant to the proposed rule and is not discussed further. Many comments focused in whole or in part on state measures or on the allocation between the commercial and recreational fisheries, neither of which were part of the proposed action and, therefore, are not addressed in the following responses.
In addition to the overall socioeconomic effects included in the RDM, the Council conducted an evaluation of the potential socioeconomic impacts of the proposed measures as part of the Regulatory Impact Review (RIR) and Regulatory Flexibility Analysis (RFA) (see
Application of the Percent Change Approach and the RDM resulted in a recommended 10-percent reduction in scup harvest in 2023. This is because even though scup has a very high biomass (more than 150 percent of the target level), harvest under status quo measures is expected to be above the 2023 RHL. The Federal scup measures implemented by this rule, in conjunction with changes to state waters measures, are projected to achieve the needed 10-percent harvest reduction.
Additionally, this rule does not implement state-specific measures for black sea bass and summer flounder, but waives the Federal recreational measures for both species. Under conservation equivalency, Federal recreational measures are waived and federally permitted party/charter vessels and all private recreational vessels fishing in Federal waters are subject to the recreational fishing measures implemented by the state in which they land. States and regions set their own management measures, which are approved through the Commission process.
The Percent Change Approach has been established by the rulemaking implementing Frameworks 17 and 6 and, as such, must be followed in setting the recreational management measures in this action. Deviating from this approach would require new rulemaking to modify Frameworks 17 and 6, which is beyond the scope of this action. However, as explained in detail in the final rule implementing Framework 17, the new Percent Change Approach is a harvest control rule designed by the Council and Commission for use in managing mid-Atlantic recreational fisheries and uses two factors to determine if management measures could remain status quo, could be liberalized, or must be restricted. These two factors are: (1) a comparison of the CI around an estimate of expected harvest under status quo measures to the average RHL for the upcoming 2 years and; (2) biomass compared to the target level, as defined by the most recent stock assessment. These two factors also determine the appropriate degree of change, defined as a percentage change in expected harvest.
The Percent Change Approach does not change the process for setting measurable and objective status determination criteria (OFL, ABC, ACL) as required by National Standard 1. The status determination criteria continue to be based on the best available scientific information as determined by the Council's Scientific and Statistical Committee. The Percent Change Approach does not eliminate the recreational ACL or RHL, and continues to use both in the process of setting measures and evaluating accountability measures (AM). Together, these measures meet the requirements of National Standard 1. The Percent Change Approach is a method for determining the need for, and extent of, recreational fishing measures to prevent overfishing while allowing catch to target optimal yield. This new approach attempts to constrain harvest in order to prevent overfishing while also acknowledging that recreational catch estimates are uncertain and often highly variable (more so than commercial catch estimates). The Percent Change Approach makes incremental adjustments, thus reducing the tendency of management measures to chase after the highs and lows by either liberalizing or restricting measures too much in any given year in reaction to potentially large swings in recreational catch estimates.
The approach also builds in more precaution for stocks at lower biomass levels. Biomass levels and the target are taken directly from the approved and peer-reviewed stock assessments that occur every other year. Consider that when a stock biomass is in decline, it often becomes less available to the recreational fishery and, therefore, catch estimates may decline relative to the RHL. Formerly, management measures would be liberalized, sometimes significantly, while catch fell due to a declining biomass, increasing fishing pressure on a declining stock. Conversely, as healthy stocks increase, sometimes far above the target biomass level, such as the current situations with black sea bass and scup, the fish become more available to the fishery, even under restrictive measures, resulting in catch estimates that exceed the RHL. However, what appear to be overages have, in these circumstances, been found to have no negative biological impact on abundant stocks, as when we continue to see increases in biomass in a subsequent stock assessment. Therefore, not all overages result in overfishing. For example, black sea bass has not been subject to overfishing in over 10 years despite sustained high recreational catch levels that sometimes exceeded the RHL and the recreational ACL.
Prior to implementing the Percent Change Approach, the method used to determine recreational measures used the same criteria (RHL and estimated catch), but did not consider or incorporate stock biomass in determining the extent of changes (whether more liberal or more conservative). The old method prescribed the same degree of changes to management measures whether a stock biomass was considered overfished (less than 50 percent of its maximum sustainable yield target) or over 200 percent of its target level. The Percent Change Approach also considers the estimated harvest compared to the RHL, but, in contrast to the previous approach, also incorporates information about stock status to determine whether, and how much, to either liberalize or restrict management measures. This ensures more conservative responses than the previous method for stocks in lower biomass conditions while allowing potentially more liberal responses only for stocks at very high biomass levels.
NRDC's comments focus on the Percent Change Approach for setting the management measures, but that is only one component of the management system. In addition to setting the status determination criteria, AMs remain a critical part of management. The AMs incorporate the explicit consideration of fishing mortality to determine if overfishing occurred, which has the effect of more accurately reflecting when more stringent adjustments to management measures are needed. Thus, the Percent Change Approach is consistent with the National Standard 1 requirement to use status determination criteria to determine overfishing status.
The intent of the Percent Change Approach is to iteratively adjust measures as necessary to prevent overfishing and more closely monitor the impact that recreational harvest has on a stock. The potential annual adjustments are constrained within a range of certain percentages in order to minimize the social and economic impact of the large adjustments that were sometimes implemented under the previous system and that were driven by large statistical fluctuations in the data used to estimate catch.
Recreational data are highly variable and uncertain due, in part, to the sampling protocols used to separately collect information about effort and catch data. Catch estimates, even under consistent management measures, vary substantially from year to year. An effective system of managing the recreational fishery must acknowledge and address this variability and uncertainty. The past approach of reacting to large and uncertain swings in estimated harvest by correspondingly liberalizing or reducing those management controls in the subsequent year, in an attempt to achieve a specific harvest target, has been unsuccessful by all standards. The Percent Change Approach allows managers to consider additional scientific information beyond simply using an uncertain catch estimate when setting recreational measures to achieve optimum yield. Based on an evaluation of the current harvest levels compared to the upcoming RHLs and of the biomass relative to the target, the Percent Change Approach prescribes the degree of change necessary to be achieved by the recreational management measures. When a stock is at a lower biomass than the management target, such as the current situation for summer flounder, the management responses are more precautionary. This is because the conservation risk associated with overages is greater for stocks that are less abundant, whereas stocks that are well above their target biomass are more robust in the face of higher levels of fishing mortality. The overall goal of the Percent Change Approach is to iteratively adjust management measures to achieve the RHL, while minimizing potential overreaction (overcorrection) to annual variability in the harvest estimates.
As explained in detail in the proposed rule (88 FR 19046, March 30, 2023), this is the first time the Percent Change Approach was used for developing summer flounder, scup, and black sea bass recreational management measures. Application of the Percent Change Approach and the RDM generated conflicting results for summer flounder, depending on the initial assumptions used in the model configuration, specifically with regard to the years selected for Marine Recreational Information Program (MRIP) data used to project the amount of catch per trip. When the most recent complete year of MRIP data (2021) was used, the model-estimated summer flounder harvest under status quo measures was 8.38 million lb (3,801 mt), which is below the 2023 RHL. When an average of 2018-2022 MRIP data was used to determine the catch per trip, the model-estimated summer flounder harvest was 10.92 million lb (4,953 mt), which is slightly above the 2023 RHL. While these estimates are not significantly different, because of the way the Percent Change Approach uses the estimates and CIs, the recommended management action resulting from each estimate was different. The model run using only 2021 data resulted in a recommended 10-percent liberalization, and the model run using the 2018-2022 average resulted in a recommended 10-percent reduction in summer flounder harvest. Given the conflicting results, and uncertainty about which model run was more likely to reflect 2023 harvest, the Council and Board made some adjustments to the non-preferred coastwide measures, but ultimately decided to maintain status quo measures at the state and regional levels. This rule adopts the Council's recommendation.
The combination of state or regional measures must achieve equivalent conservation in lieu of the non-preferred coastwide measures, which are intended to maintain a status quo recreational harvest. The coastwide harvest target was calculated using the Percent Change Approach and the RDM. The non-preferred coastwide measures that are being waived include an 18-inch (45.7-cm) minimum size, a 3-fish bag limit, and an open season from May 15
The Percent Change Approach allows managers to consider additional scientific information beyond an uncertain catch estimate when setting recreational measures to achieve optimum yield. Based on an evaluation of the current harvest levels compared to the upcoming RHLs, and the biomass relative to the target, the Percent Change Approach prescribes the degree of change necessary to be achieved by the recreational management measures. When a stock is at a lower biomass (below the biomass target) the management responses are more precautionary. For example, even when harvest is expected to be close to the upcoming RHL, a 10-percent reduction is required for a stock in the low biomass category. For stocks such as black sea bass that have a very high biomass (more than 150 percent of the biomass target), a liberalization of no more than 10 percent would be allowed when harvest is close to the RHL. When harvest is expected to be higher than the RHL, a reduction is required regardless of stock size, but a reduction may be more significant for stocks at lower stock sizes. For stocks at very high biomass, a 10-percent reduction is required, and stocks at a high and low biomass are required to take a reduction based on the difference between the harvest estimate and RHL. This is because the conservation risk associated with overages is greater for stocks that are less abundant, whereas stocks that are well above their target biomass are more robust in the face of higher levels of fishing mortality.
Application of the Percent Change Approach and the RDM resulted in a recommendation of a 10-percent reduction in black sea bass harvest in 2023. This is because black sea bass has a very high biomass, but harvest under status quo measures is expected to be above the RHL. As healthy stocks increase, sometimes far above the target biomass level, such as with black sea bass and scup in 2023, the fish become more available to the fishery, even under restrictive measures, resulting in catch estimates that exceed the RHL. However, what appear to be overages often have no negative biological impact on abundant stocks. We continue to see increases in biomass of these stocks through subsequent stock assessments. The conservation risk of the Percent Change Approach, which reduces the magnitude of a needed reduction compared to what would occur with the previous approach, on a stock that is over 150 percent of its biomass target, is negligible. The Magnuson-Stevens Act defines overfishing as a “rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield
It is important to again note the uncertainty in estimated recreational harvests; this uncertainty is one of the main drivers for adoption of the Percent Change Approach in Framework 17 and for being used in this action. Here, the 80-percent CI around the estimated black sea bass recreational harvest using status quo measures ranges from 7.17 million lb (3,252 mt) to 8.63 million lb (3,914 mt), meaning that statistically the estimate can fall anywhere in that range with equal likelihood. If recreational harvest is at the lower end of the range, with the 10-percent reduction adopted here, the recreational harvest would fall below the RHL.
The combination of state or regional measures must achieve equivalent conservation as the non-preferred coastwide measures. The coastwide harvest target was calculated using the Percent Change Approach and the RDM. The non-preferred coastwide measures that are being waived include a 15-inch (38.1-cm) minimum size, a 5-fish bag limit, and an open season from May 15 through September 8. The precautionary
Application of the Percent Change Approach and the RDM resulted in a recommendation of a 10-percent reduction in scup harvest in 2023. This is because scup has a very high biomass, but harvest under status quo measures is expected to be above the RHL. As described in response to Comment 7, fish become more available to the fishery as healthy stocks increase, even under restrictive measures, resulting in catch estimates that exceed the RHL. However, what appear to be overages often have no negative biological impact on abundant stocks. We continue to see increases in biomass of these stocks through subsequent stock assessments. This scenario in which a stock continues to maintain a biomass significantly above the target does not constitute overfishing.
It is important to again note the uncertainty in estimated recreational harvests. This uncertainty is one of the main drivers for adoption of the Percent Change Approach in Framework 17 and for being used in this action. Here, the 80-percent CI around the estimated scup recreational harvest using status quo measures ranges from 11.55 million lb (5,216 mt) to 16.26 million lb (7,375 mt), meaning that statistically the estimate can fall anywhere in that range with equal likelihood. With the 10-percent reduction adopted here, recreational harvest of scup could be anywhere from 10.39 million pounds (4,715 mt) to 14.63 million pounds (6,638 mt), a range from 12 percent to 58 percent over the RHL. With such high scup biomass, making drastic adjustments of recreational catch may prove to be unwarranted as stocks increase; thus, the Percent Change Approach adopted in Framework 17 established a 10-percent reduction in this circumstance. To the extent that biomass remains high and additional reductions are needed the next time that recreational measures are developed, another 10-percent reduction would occur, moving gradually in the needed direction. However, in contrast with the inherent variability and uncertainty in recreational catch data in the context of a growing scup stock, drastic changes to measures could prove to be unwarranted, and could lead to the undesirable result of increased recreational discards of dead fish.
Furthermore, a determination of overfishing involves analysis of total catch, which included commercial catch as well as recreational catch. An overage of the recreational ACL does not necessarily mean that the overall ABC was exceeded if underharvest of the commercial ACL is equal to or greater than that overage of the recreational ACL. While separate sub-ACLs are allocated to the commercial and recreational fisheries, overfishing is a biological determination at the stock level, not the sub-ACL level. The commercial fishery did not completely harvest its commercial quota in any year between 2016 and 2021. The commercial underharvest in those years ranged between 16 percent and 44 percent. Moreover, from 2018 to 2021, the commercial sector only landed between 55 percent and 63 percent of its allocated scup quota, an annual average of 13.42 million lb (6,087 mt) landed compared to 22.67 million lb (10,283 mt) of commercial quota. In such a scenario, a recreational harvest slightly above the RHL is unlikely to result in negative biological consequences for the scup stock where the overall total of commercial and recreational harvests remains below the overall ABC and overfishing levels.
Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the Assistant Administrator for Fisheries, NOAA, has determined that this final rule is consistent with the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, other provisions of the Magnuson-Stevens Act, and other applicable law.
The Assistant Administrator for Fisheries, NOAA, finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay of effectiveness period for this rule, to ensure that the final management measures are in place as soon as possible. This action implements 2023 recreational
The Federal coastwide regulatory measures for recreational summer flounder fishing that were codified last year (87 FR 22863, April 18, 2022) remain in effect until the decision to waive Federal measures for 2023 is made effective by this final rule. Many states have already implemented their conservationally equivalent 2023 measures and a delay in implementing the measures of this rule will increase confusion on what measures are in place in Federal waters. Inconsistencies between the states' measures and the Federal measures could lead to misunderstanding of the applicable regulations and could increase the likelihood of noncompliant landings. Additionally, the Federal measures currently in place are more restrictive than many of the measures in state waters, which unnecessarily disadvantages federally permitted vessels who are subject to these more restrictive measures until this final rule is effective.
The Federal measures currently in place for scup are more liberal than the measures this action will implement. Further delay of the implementation of the 2023 measures will increase the likelihood that the 2023 RHL and recreational ACL will be exceeded. The MSA requires that we implement measures to constrain recreational harvest to prevent overfishing.
Unlike actions that require an adjustment period to comply with new rules, this action does not require recreational and charter/party operators to purchase new equipment or otherwise expend time or money to comply with this action's management measures. Rather, compliance with this final rule simply means adhering to the published state management measures for summer flounder and black sea bass while the recreational and charter/party operators are engaged in fishing activities.
For these reasons, the Assistant Administrator finds good cause to waive the 30-day delay in the date of effectiveness and to implement this rule upon the date of publication in the
This final rule has been determined to be not significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. We received no comments regarding this certification. Therefore, a final regulatory flexibility analysis was not required and none was prepared.
This final rule contains no information collection requirements under the Paperwork Reduction Act of 1995.
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, NMFS amends 50 CFR part 648 as follows:
16 U.S.C. 1801
(b)
No person may fish for summer flounder in the EEZ from May 15 through September 22 unless that person is the owner or operator of a fishing vessel issued a commercial summer flounder moratorium permit, or is issued a summer flounder dealer permit, or unless otherwise specified in the conservation equivalency measures at § 648.107. Persons aboard a commercial vessel that is not eligible for a summer flounder moratorium permit are subject to this recreational fishing season. This time period may be adjusted pursuant to the procedures in § 648.102. Possession of summer flounder harvested from state waters during this time is allowed for state-only permitted vessels when transiting Federal waters within the Block Island Sound Transit Area provided they follow the provisions at § 648.111 and abide by state regulations.
(a)
(a) The Regional Administrator has determined that the recreational fishing measures proposed to be implemented by the states of Maine through North Carolina for 2023 are the conservation equivalent of the season, size limits, and
Fishermen and vessels that are not eligible for a scup moratorium permit under § 648.4(a)(6), may possess scup from May 1 through December 31, subject to the possession limit specified in § 648.128(a). The recreational fishing season may be adjusted pursuant to the procedures in § 648.122. Should the recreational fishing season be modified, non-federally permitted scup vessels abiding by state regulations may transit with scup harvested from state waters on board through the Block Island Sound Transit Area following the provisions outlined in § 648.131.
(a) No person shall possess more than 40 scup in, or harvested from, the EEZ per trip unless that person is the owner or operator of a fishing vessel issued a scup moratorium permit, or is issued a scup dealer permit. Persons aboard a commercial vessel that is not eligible for a scup moratorium permit are subject to this possession limit. The owner, operator, and crew of a charter or party boat issued a scup moratorium permit are subject to the possession limit when carrying passengers for hire or when carrying more than five crew members for a party boat, or more than three crew members for a charter boat. This possession limit may be adjusted pursuant to the procedures in § 648.122. However, possession of scup harvested from state waters above this possession limit is allowed for state-only permitted vessels when transiting Federal waters within the Block Island Sound Transit Area provided they follow the provisions at § 648.131 and abide by state regulations.
Vessels that are not eligible for a black sea bass moratorium permit under § 648.4(a)(7), and fishermen subject to the possession limit specified in § 648.145(a), may only possess black sea bass from May 15 through September 8, unless otherwise specified in the conservation equivalent measures described in § 648.151 or unless this time period is adjusted pursuant to the procedures in § 648.142. However, possession of black sea bass harvested from state waters outside of this season is allowed for state-only permitted vessels when transiting Federal waters within the Block Island Sound Transit Area provided they follow the provisions at § 648.151 and abide by state regulations.
(b)
(a) The Regional Administrator has determined that the recreational fishing measures proposed to be implemented by the states of Maine through North Carolina for 2023 are the conservation equivalent of the season, size limits, and possession limit prescribed in §§ 648.146, 648.147(b), and 648.145(a). This determination is based on a recommendation from the Black Sea Bass Board of the Atlantic States Marine Fisheries Commission.
(1) Federally permitted vessels subject to the recreational fishing measures of this part, and other recreational fishing vessels harvesting black sea bass in or from the EEZ and subject to the recreational fishing measures of this part, landing black sea bass in a state whose fishery management measures are determined by the Regional Administrator to be conservation equivalent shall not be subject to the more restrictive Federal measures, pursuant to the provisions of § 648.4(b). Those vessels shall be subject to the recreational fishing measures implemented by the state in which they land.
(2) [Reserved]
(b) Federally permitted vessels subject to the recreational fishing measures of this part, and other recreational fishing vessels registered in states and subject to the recreational fishing measures of this part, whose fishery management measures are not determined by the Regional Administrator to be the conservation equivalent of the season, size limits and possession limit prescribed in §§ 648.146, 648.147(b), and 648.145(a), respectively, due to the lack of, or the reversal of, a conservation-equivalent recommendation from the Black Sea Bass Board of the Atlantic States Marine Fisheries Commission shall be subject to the following precautionary default measures: Season-June 1 through August 31; minimum size—16 inches (40.64 cm); and possession limit—2 fish.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting retention of “other rockfish” in the Aleutian Islands subarea of the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary because the 2023 “other rockfish” total allowable catch (TAC) in the Aleutian Islands subarea of the BSAI has been reached.
Effective 1200 hours, Alaska local time (A.l.t.), August 12, 2023, through 2400 hours, A.l.t., December 31, 2023.
Mary Furuness, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2023 “other rockfish” TAC in the Aleutian Islands subarea of the BSAI is 380 metric tons (mt) as established by the final 2023 and 2024 harvest specifications for groundfish in the BSAI (88 FR 14926, March 10, 2023). In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the 2023 “other rockfish” TAC in the Aleutian Islands subarea of the BSAI has been reached. Therefore, NMFS is requiring that “other rockfish” in the Aleutian Islands subarea of the BSAI be treated in the same manner as a prohibited species, as described under § 679.21(a), for the remainder of the year, except “other rockfish” species in the Aleutian Islands subarea caught by catcher vessels using hook-and-line, pot, or jig gear as described in § 679.20(j).
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion, and would delay prohibiting retention of “other rockfish” in the Aleutian Islands subarea of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 9, 2023.
The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
16 U.S.C. 1801
Office of Personnel Management.
Proposed rule.
The Office of Personnel Management (OPM) is proposing a rule to abolish the Allegheny, Pennsylvania, nonappropriated fund (NAF) Federal Wage System (FWS) wage area and redefine Cuyahoga County, Ohio, to the Macomb, Michigan, NAF wage area; Trumbull County, OH, to the Niagara, New York, NAF wage area; Allegheny and Butler Counties, PA, to the Cumberland, PA, NAF wage area; Harrison County, West Virginia, to the Prince William, Virginia, NAF wage area; and Westmoreland County, PA, will no longer be defined. These changes are necessary because NAF FWS employment in the survey area is now below the minimum criterion of 26 wage employees to maintain a wage area, and the local activities no longer have the capability to conduct local wage surveys.
Send comments on or before September 14, 2023.
You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) and title, by the following method:
•
All submissions received must include the agency name and docket number or RIN for this document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing at
Ana Paunoiu, by telephone at (202) 606-2858 or by email at
The Allegheny, Pennsylvania, NAF FWS wage area is presently composed of one survey county, Allegheny County, PA, and five area of application counties: Cuyahoga and Trumbull Counties, OH; Butler and Westmoreland Counties, PA; and Harrison County, WV. Under section 532.219 of title 5, Code of Federal Regulations, the OPM may establish a NAF wage area when there are a minimum of 26 NAF wage employees in the survey area, a local activity has the capability to host annual local wage surveys, and the survey area has at least 1,800 private enterprise employees in establishments within survey specifications. The Department of Defense (DOD) notified OPM that there has been a continuing decline of NAF FWS employment in the survey area and the local activities no longer have the capability to conduct local wage surveys. Currently, 11 DOD NAF FWS employees and 13 Department of Veterans Affairs NAF FWS employees work in Allegheny County.
Since Cuyahoga and Trumbull Counites, OH; Allegheny and Butler Counties, PA; and Harrison County, WV, will have continuing NAF employment and do not meet the regulatory criteria under 5 CFR 532.219 to be separate survey areas, they must be defined as areas of application to other wage areas. Section 532.219 lists the regulatory criteria OPM considers when defining FWS wage area boundaries. This regulation allows consideration of the following criteria: proximity of largest activity in each county, transportation facilities and commuting patterns, and similarities of the counties in overall population, private employment in major industry categories, and kinds and sizes of private industrial establishments.
In selecting a wage area to which Cuyahoga County, OH, should be redefined, proximity favors the Macomb, MI, NAF wage area. All other criteria are inconclusive. Based on these findings, OPM is defining Cuyahoga County as an area of application to the Macomb NAF wage area.
In selecting a wage area to which Trumbull County, OH, should be redefined, proximity favors the Niagara, NY, NAF wage area. All other criteria are inconclusive. Based on these findings, OPM is defining Trumbull County as an area of application to the Niagara NAF wage area.
In selecting a wage area to which Alleghany County, PA, should be redefined, proximity favors the Cumberland, PA, NAF wage area. All other criteria are inconclusive. Based on these findings, OPM is defining Alleghany County as an area of application to the Cumberland NAF wage area.
In selecting a wage area to which Butler County, PA, should be redefined, proximity favors the Cumberland, PA, NAF wage area. All other criteria are inconclusive. Based on these findings, OPM is defining Butler County as an area of application to the Cumberland NAF wage area.
In selecting a wage area to which Harrison County, WV, should be redefined, proximity favors the Prince William, VA, NAF wage area. All other criteria are inconclusive. Based on these findings, OPM is defining Harrison County as an area of application to the Prince William NAF wage area.
OPM is removing Westmoreland County from the wage area definition. There are no longer NAF FWS employees working in Westmoreland County. Under 5 U.S.C. 5343(a)(1)(B)(i), NAF wage areas “shall not extend beyond the immediate locality in which the particular prevailing rate employees are employed.” Therefore, Westmoreland County should not be defined as part of a NAF wage area.
The Macomb wage area would consist of one survey county (Macomb County, MI) and 15 area of application counties (Alpena, Calhoun, Crawford, Grand Traverse, Huron, Iosco, Kent, Leelanau, Ottawa, Saginaw, Washtenaw, and Wayne Counties, MI; and Cuyahoga, Lucas, and Ottawa Counties, OH).
The Niagara wage area would consist of one survey county (Niagara County, NY) and four area of application counties (Trumbull County, OH; Erie and Genesee Counties, NY, and Erie County, PA).
The Cumberland wage area would consist of one survey county
The Prince William wage area would consist of one survey county (Prince William County, VA) and two area of application counties (Fauquier County, VA, and Harrison County, WV).
The Federal Prevailing Rate Advisory Committee, the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, recommended these changes by consensus. These changes would be effective on the first day of the first applicable pay period beginning on or after 30 days following publication of the final regulations.
Section 5343 of title 5, U.S. Code, provides OPM with the authority and responsibility to define the boundaries of NAF FWS wage areas. Any changes in wage area definitions can have the long-term effect of increasing pay for Federal employees in affected locations. OPM expects this final rule to impact approximately 26 NAF FWS employees. Considering the small number of employees affected, OPM does not anticipate this rulemaking will substantially impact local economies or have a large impact in local labor markets. However, OPM is requesting comment in this rulemaking regarding the impact. As this and future wage area changes may impact higher volumes of employees in geographical areas and could rise to the level of impacting local labor markets, OPM will continue to study the implications of such impacts in this or future rules as needed.
This action is not a “significant regulatory action” under the terms of Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under E.O. 12866 and 13563 (76 FR 3821, January 21, 2011).
OPM certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities.
OPM has examined this proposed rule in accordance with Executive Order 13132, Federalism, and have determined that this proposed rule will not have any negative impact on the rights, roles and responsibilities of State, local, or tribal governments.
This regulation meets the applicable standard set forth in Executive Order 12988.
This proposed rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This proposed rule does not impose any reporting or record-keeping requirements subject to the Paperwork Reduction Act.
Administrative practice and procedure, Freedom of information, Government employees, Reporting and recordkeeping requirements, Wages.
Accordingly, OPM is proposing to amend 5 CFR part 532 as follows:
5 U.S.C. 5343, 5346; § 532.707 also issued under 5 U.S.C. 552.
Office of Personnel Management.
Proposed rule.
The Office of Personnel Management (OPM) is issuing a proposed rule to redefine the geographic boundaries of the Northeastern Arizona and Utah appropriated fund Federal Wage System (FWS) wage areas for pay-setting purposes. The proposed rule would redefine Washington County, UT, and several National Parks portions of Garfield, Grand, Iron, San Juan, and Wayne Counties, UT, to the Northeastern Arizona wage area. This change is based on a recent consensus recommendation of the Federal Prevailing Rate Advisory Committee (FPRAC).
Send comments on or before September 14, 2023.
You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) and title, by the following method:
•
All submissions received must include the agency name and docket number or RIN for this document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing at
Ana Paunoiu, by telephone at (202) 606-2858 or by email at
OPM is proposing a rule to redefine the geographic boundaries of the Northeastern Arizona and Utah appropriated fund FWS wage areas. This proposed rule would redefine Washington County, UT; and the Bryce Canyon, Capitol Reef, and Canyonlands National Parks portions of Garfield County, UT; the Arches and Canyonlands National Parks portions of Grand County, UT; the Cedar Breaks National Monument and Zion National Park portions of Iron County, UT; the Canyonlands National Park portion of San Juan County, UT; and the Capitol Reef and Canyonlands National Parks portions of Wayne County from the Utah wage area to the Northeastern Arizona wage area. This change is based on a recent recommendation of FPRAC, the statutory national labor-management committee responsible for advising OPM on matters affecting the pay of FWS employees. From time to time, FPRAC reviews the boundaries of wage areas and provides OPM with recommendations for changes if the Committee finds that changes are warranted.
As provided by 5 CFR 532.211, this regulation allows consideration of the following criteria when defining wage area boundaries: distance, transportation facilities, and geographic features; commuting patterns; and similarities in overall population, employment, and the kinds and sizes of private industrial establishments.
Southern Utah has numerous National Parks, National Monuments, and National Recreation Areas, and National Park Service FWS employees often perform overlapping maintenance work at locations in the Northeastern Arizona wage area. FWS wage area definitions
Washington County is currently defined to the Utah area of application. Our analysis of the regulatory criteria indicates that Washington County would be more appropriately defined as part of the Northeastern Arizona wage area. When measuring to cities, the distance criterion favors the Utah wage area. When measuring to host installations, the distance criterion favors the Northeastern Arizona wage area. Washington County has a similar distribution of surveyable employment to the Northeastern Arizona survey area. All other criteria are inconclusive. Although a standard review of regulatory criteria shows that some factors are indeterminate, distance to the host installations and overall population, total private sector employment, and kinds and sizes of private industrial establishments do favor the Northeastern Arizona wage area. Based on this analysis, we recommend that Washington County be redefined to the Northeastern Arizona wage area.
Garfield County is currently defined to the Utah area of application. Our analysis of the regulatory criteria indicates that Garfield County is appropriately defined as part of the Utah area of application. The distance criterion favors the Utah wage area more than the Northeastern Arizona wage area. All other criteria are inconclusive. However, since we are recommending that the Canyonlands National Park portion of San Juan County be redefined to the Northeastern Arizona wage area, and because we believe Bryce Canyon and Canyonlands National Park should not be split between the Northeastern Arizona and the Utah wage areas, we recommend that the portions of Garfield County occupied by Canyonlands and Bryce Canyon National Parks be part of the Northeastern Arizona wage area. We also believe that the Capitol Reef National Park portion of Garfield County should be redefined to the Northeastern Arizona wage area because of the close proximity to the Bryce Canyon and Canyonlands National Parks. This change would ensure equal pay treatment for FWS employees at Bryce Canyon, Capitol Reef, and Canyonlands National Parks are paid from the same wage schedule. The remaining portion of Garfield County would continue to be part of the Utah wage area. We believe the mixed nature of our regulatory analysis findings indicates that the remaining locations in Garfield County remain appropriately defined to the Utah wage area, with distance being the deciding factor.
Grand County is currently defined to the Utah area of application. Our analysis of the regulatory criteria indicates that Grand County is appropriately defined as part of the Utah area of application. When measuring to cities, the distance criterion favors the Utah wage area. When measuring to host installations, the distance criterion favors the Northeastern Arizona wage area. However, since we are recommending that the Canyonlands National Park portion of San Juan County be redefined to the Northeastern Arizona wage area, and because we believe Canyonlands National Park should not be split between the Northeastern Arizona and the Utah wage areas, we recommend that the portion of Grand County occupied by Canyonlands National Park be part of the Northeastern Arizona wage area. We also believe that the Arches National Park portion of Grand County should be redefined to the Northeastern Arizona wage area because of the close proximity to the Canyonlands National Park. This change would provide equal pay treatment for FWS employees at the two national parks. The remaining portion of Grand County would continue to be part of the Utah wage area. We believe the mixed nature of our regulatory analysis findings indicates that the remaining locations in Grand County remain appropriately defined to the Utah wage area, with distance being the deciding factor.
Iron County is currently defined to the Utah area of application. Our analysis of the regulatory criteria indicates that Iron County is appropriately defined as part of the Utah area of application. The distance criterion favors the Utah wage area more than the Northeastern Arizona wage area. Iron County has a similar distribution of surveyable employment to the Northeastern Arizona survey area. All other criteria are inconclusive. However, since we are recommending that Washington County be redefined to the Northeastern Arizona wage area, and because we believe Zion National Park should not be split between the Northeastern Arizona and the Utah wage areas, we recommend that the portion of Iron County occupied by Zion National Park be part of the Northeastern Arizona wage area. We also believe that the Cedar Breaks National Monument portion of Iron County should be redefined to the Northeastern Arizona wage area because of the close proximity to the Zion National Park. This change would provide equal pay treatment for FWS employees at the two national parks. We believe the mixed nature of our regulatory analysis findings indicates that the remaining locations in Iron County remain appropriately defined to the Utah wage area, with distance being the deciding factor.
San Juan County, except for the Canyonlands National Park portion, is currently defined to the Northeastern Arizona area of application. The distance and commuting patterns criteria for San Juan County favor the Northeastern Arizona wage area more than the Utah wage area. All other criteria are inconclusive. Since the remaining locations in San Juan County are already defined to the Northeastern Arizona wage area, we recommend that the portion of San Juan County occupied by Canyonlands National Park be part of the Northeastern Arizona wage area. An additional factor to weigh in the decision to redefine entire San Juan County the Northeastern Arizona wage area is that the American Federation of Government Employees believes that recent economic developments in the area indicate some linkage between San Juan County and the Northeastern Arizona wage area.
Wayne County is currently defined to the Utah area of application. Our analysis of the regulatory criteria indicates that Wayne County is appropriately defined as part of the Utah area of application. The distance and commuting patterns criteria for Wayne County favor the Utah wage area more than the Northeastern Arizona wage area. All other criteria are inconclusive. However, since we are recommending that the Canyonlands National Park portion of San Juan County be redefined to the Northeastern Arizona wage area, and because we believe Canyonlands National Park should not be split between the Northeastern Arizona and the Utah wage areas, we recommend that the portion of Wayne County occupied by Canyonlands National Park be part of the Northeastern Arizona wage area. We also believe that the Capitol Reef National Park portion of Wayne County should be redefined to the Northeastern Arizona wage area because of the close proximity to the Canyonlands National Park. This change would provide equal pay treatment for FWS employees at the two national parks. The remaining portion of Wayne County would continue to be part of the Utah wage area. We believe the mixed nature of our regulatory analysis findings indicates that the remaining locations in Wayne
FPRAC, the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, recommended this change by consensus. This change would be effective on the first day of the first applicable pay period beginning on or after 30 days following publication of the final regulations.
Section 5343 of title 5, U.S. Code, provides OPM with the authority and responsibility to define the boundaries of FWS wage areas. Any changes in wage area boundaries can have the long-term effect of increasing pay for FWS employees in affected locations. OPM expects this rulemaking to impact approximately 100 FWS employees. Of the changes this rulemaking implements, the most significate change in terms of the number of impacted employees would be in Washington County, UT, where approximately 32 FWS employees would be affected. Considering the small number of employees affected, OPM does not anticipate this rulemaking will have a substantial impact on the local economies or a large impact in the local labor markets. However, OPM is requesting comment in this proposed rule regarding the impact. OPM will continue to study the implications of such impacts in this or future rules as needed, as this and future changes in wage area definitions may impact higher volumes of employees in geographical areas and could rise to the level of impacting local labor markets.
This action is not a “significant regulatory action” under the terms of Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under E.O. 12866 and 13563 (76 FR 3821, January 21, 2011).
OPM certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities.
OPM has examined this proposed rule in accordance with Executive Order 13132, Federalism, and have determined that this proposed rule will not have any negative impact on the rights, roles and responsibilities of State, local, or tribal governments.
This regulation meets the applicable standard set forth in Executive Order 12988.
This proposed rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This proposed rule does not impose any reporting or record-keeping requirements subject to the Paperwork Reduction Act.
Administrative practice and procedure, Freedom of information, Government employees, Reporting and recordkeeping requirements, Wages.
Accordingly, OPM is proposing to amend 5 CFR part 532 as follows:
5 U.S.C. 5343, 5346; § 532.707 also issued under 5 U.S.C. 552.
Agricultural Marketing Service, USDA.
Proposed rule.
This document invites comments on a proposed amendment to the plant records requirement for the Agricultural Marketing Service (AMS) Dairy Grading and Inspection program. The proposal would allow butterfat tests to be performed at an in-house or approved third party laboratory and add a requirement for plants to maintain and make such records available for examination by a United States Department of Agriculture (USDA) inspector. This amendment would increase efficiency by conforming to current industry practice.
Comments on proposed amendments must be received by October 16, 2023 to be assured of consideration. Comments on the proposed information collection and the associated burden must also be received by October 16, 2023.
Interested persons are invited to submit comments on this proposed rule. Comments may be submitted through the Federal e-rulemaking portal at
Matthew M. Siedschlaw, Grading and Standardization Division, Dairy Program, Agricultural Marketing Service, U.S. Department of Agriculture, Room 2756—South Building, 1400 Independence Avenue SW, Washington, DC 20250-0230: Telephone: (202) 937-4901; Email:
The Secretary of Agriculture is authorized by the Agricultural Marketing Act (AMA) of 1946, as amended (7 U.S.C. 1621,
Historically, when the Grading and Inspection Program was implemented, the quality of butter was inconsistent, and quality-control testing by USDA was necessary to ensure a consistent product for the market. Today, plants more consistently manufacture high-quality butter products and maintain the butterfat standard necessary to be granted a USDA grade label for butter.
Currently, USDA inspectors or designated plant personnel perform tests of butter samples that have been selected by a USDA inspector for quality control on randomized batches of finished product pursuant to 7 CFR 58.338. Testing frequency varies by the volume of butter processed and whether a batch is randomly selected. Typically, USDA conducts monthly or weekly testing depending on the volume of butter processed. It is also current industry practice for plants to perform routine internal tests on their butter products to ensure quality and compliance with composition standards. Specific requirements for these tests are outlined in 7 CFR 58.336.
During manufacturing it is normal to have fluctuations in butterfat composition at different stages in butter making, and consequently test results may not be consistent throughout the process. Therefore, butter processing facilities continually monitor butterfat composition throughout production and make necessary adjustments to maintain the 80% butterfat required for butter (7 CFR 58.305). The facility maintains these monitoring records as part of its internal quality program and testing requirements.
Under the current Dairy Grading and Inspection program, USDA conducts a single butterfat test at the time of grading, which provides a limited perspective on overall butterfat composition of butter manufactured by the plant.
The proposed amendments would exempt plants from butterfat testing administered by a USDA inspector and allow in-plant quality control testing to satisfy butterfat testing requirements. The proposal would replace testing performed by a USDA inspector at the time of grading with a review of a plant's testing records. A records review of a plant's routine testing rather than a single-point test would provide a more accurate picture of whether the plant's butter products meet quality standards. It would also reduce costs to a facility by eliminating duplicate butterfat testing by a USDA inspector that it currently must pay for. As explained in the Regulatory Flexibility Analysis below, AMS estimates adopting a records review would save participating plants $4,560 to $31,450 annually.
Currently, the final butter product must contain a minimum of 80% butterfat by weight for it to comply with the regulations. That would not change as a result of the proposed amendment. However, under the proposal, AMS would annually review each plant's
Records inspected would include plant records of butterfat tests performed as required under 7 CFR 58.336, and analysis of records. The change to the recordkeeping requirements would apply to records kept in the regular course of business by the plant. As records would be reviewed on-site by USDA inspectors, plants would not be required to submit information to the agency.
Finally, AMS is proposing a revision of an administrative nature to correct a misspelling in the regulations. A proposed revision to § 58.336(a) would replace the word “insure” with “ensure.”
In accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. Chapter 35), AMS has requested approval of new information collection and recordkeeping requirements for the Dairy Grading and Inspection Program and comments are invited on this new information collection. All comments received on this information collection will be summarized and included in the final request for Office of Management and Budget (OMB) approval.
The information collection seeks to replace testing by USDA inspectors with an annual review of a plant's butterfat testing records. The review encompasses plant records of butterfat tests performed as required under 7 CFR 58.336, and analysis of records. Plants seeking USDA inspection for butter grading conduct their own routine, audited, butterfat tests to ensure quality and compliance with composition standards. The information sought in this collection is contained in records kept in the regular course of business by the inspected facility. Records would be reviewed on-site by a USDA inspector. The facility would not be required to submit information to the agency.
USDA is committed to complying with the E-Government Act (44 U.S.C. 3601,
USDA is issuing this proposed rule in conformance with Executive Orders 12866 and 13563, which direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This proposed rule has been determined to be not significant for purposes of Executive Order 12866; and, therefore has not been reviewed by the Office of Management and Budget (OMB).
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule is not intended to have a retroactive effect. If adopted, this proposed rule would not preempt any State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule.
Pursuant to the requirements set forth in the Regulatory Flexibility Act (5 U.S.C. 601-612), AMS has considered the economic impact of the action on small entities. Accordingly, AMS has prepared this Regulatory Flexibility Analysis (RFA).
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be unduly or disproportionately burdened. The Small Business Administration's definition (13 CFR 121.201) of small agricultural service firms, which includes dairy processors, varies based on the type of dairy product manufactured. Small butter manufacturers processors are defined as having 750 or fewer employees. Seventeen plants producing grade label butter in the U.S. participate in the Grade Label Program. According to AMS calculations, about 12, or approximately two-thirds, are operated by dairy farmer cooperatives, while the remaining 5 are independently owned. AMS estimates that six of 17 the participating butter processors would be considered small businesses.
AMS has determined that establishment of this proposal would not have a significant economic impact on small entities. The Dairy Grading and Inspection Program is a voluntary program. Small businesses have the option to participate. The proposed change would not unduly or disproportionately burden small butter processing entities. It would reduce costs to small businesses by eliminating a redundant butterfat test currently performed by USDA. AMS estimates the cost to plants for meeting USDA butterfat testing requirements ranges from $5,000 to $32,000 annually. The significant cost difference depends on whether the plant has an approved onsite laboratory or must ship samples to an outside AMS laboratory, and the frequency of butterfat samples submitted for testing.
The change would replace the USDA-inspector's test with a review of records of butterfat tests that manufacturers currently conduct in the normal course
Program provisions would be applied uniformly to both large and small businesses and would not be expected to burden small entities unduly or disproportionately.
This proposed rule has been reviewed under E.O. 13175—Consultation and Coordination with Indian Tribal Governments, which requires agencies to consider whether their rulemaking actions would have Tribal implications. AMS has determined that this proposed rule is unlikely to have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
Dairy product, Food grades and standards, Food labeling, Reporting and recordkeeping requirements.
For reasons set forth in the preamble, the Agricultural Marketing Service proposes to amend 7 CFR part 58 as follows:
7 U.S.C. 1621-1627.
(h) Butterfat test records. Retain for 12 months.
(a)
(b) Sampling and testing. (1) Composition. Sampling and testing for product composition shall be made on churns or batches as often as is necessary to insure adequate composition control. For in-plant control, the Kohman or modified Kohman test may be used.
(2) Sampling. Butterfat sampling may be performed as part of an in-plant quality program.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve, under the Clean Air Act (CAA), revisions to the State Implementation Plan (SIP) submitted by the Illinois Environmental Protection Agency on October 22, 2020, and February 14, 2023. The revisions address the emissions inventory requirements for the Chicago and Metro-East nonattainment areas under the 2015 ozone National Ambient Air Quality Standard. The Chicago nonattainment area includes Cook, DuPage, Grundy (Aux Sable and Goose Lake Townships), Kane, Kendall (Oswego Township), Lake, McHenry, and Will counties. The Metro-East nonattainment area includes Madison, Monroe, and St. Clair counties. The CAA requires emissions inventories for all ozone nonattainment areas.
Comments must be received on or before September 14, 2023.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2020-0555 at
Emily Crispell, Environmental Scientist, Control Strategies Section, Air Programs Branch (AR18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-8512,
In the Final Rules section of this
Environmental Protection Agency (EPA).
Proposed rule.
New Hampshire has applied to the Environmental Protection Agency (EPA) for final authorization of revisions to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA), as amended. The EPA proposes to grant final authorization to New Hampshire for these revisions by a direct final rule, which can be found in the “Rules and Regulations” section of this
Send your written comments by September 14, 2023.
Submit your comments, identified by Docket ID No. EPA-R01-RCRA-2023-0264, at
Tulasi Landes, RCRA Waste Management and Lead Branch; Land, Chemicals and Redevelopment Division; EPA Region 1, 5 Post Office Square, Suite 100 (Mail code 07-1), Boston, MA 02109-3912; phone: (617) 918-1228; email:
In the “Rules and Regulations” section of this
This proposed action is issued under the authority of sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912(a), 6926, 6974(b).
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to grant authorization to the State of Montana for the changes to its hazardous waste program under the Solid Waste Disposal Act, as amended, commonly referred to as the Resource Conservation and Recovery Act (RCRA). The EPA has determined that these changes satisfy all requirements needed to qualify for final authorization, and is authorizing the State's changes through a direct final action which can be found in the “Rules and Regulations” section of this
Send written comments by September 14, 2023.
Submit your comments, identified by Docket ID No. EPA-R08-RCRA-2023-0033 at
Moye Lin, Resource Conservation and Recovery Act Branch, EPA Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129; telephone number: (303) 312-6667, email address:
In the “Rules and Regulations” section of this
Unless EPA receives written comments that oppose the authorization and incorporation by reference during the comment period, the direct final rule will become effective on the date it establishes, and we will not take further action on this proposal. If we get comments that oppose the authorization, we will withdraw the direct final rule and it will not take immediate effect. We will then respond to public comments in a later final rule based on this proposal. You may not have another opportunity for comment. If you want to comment on this action, you must do so at this time.
Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).
Proposed rule; extension of comment period.
On June 27, 2023, PHMSA published a notice of proposed rulemaking, titled “Hazardous Materials: FAST Act Requirements for Real-Time Train Consist Information (HM-263),” proposing amendments to the Hazardous Materials Regulations to require all railroads to generate in electronic form, maintain, and provide to first responders, emergency response officials, and law enforcement personnel, certain information regarding hazardous materials in rail transportation to enhance emergency response and investigative efforts. In response to a request for an extension of the comment period submitted by the American Short Line and Regional Railroad Association (ASLRRA), PHMSA is extending the comment period for the HM-263 notice by an additional 60 days. Comments to the HM-263 notice will now be due by October 27, 2023.
Comments should be received on or before October 27, 2023. To the extent possible, PHMSA will consider late-filed comments.
Comments should reference Docket No. PHMSA-2016-0015 (HM-263) and may be submitted in the following ways:
•
•
•
•
Dirk Der Kinderen, Standards and Rulemaking Division, 202-366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.
On June 27, 2023, PHMSA published the HM-263 notice of proposed rulemaking (NPRM)
PHMSA initially provided a 60-day comment period for the HM-263 NPRM, which closes on August 28, 2023. In response to a request to extend the comment period from ASLRRA,
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments; notice of availability of a draft environmental assessment.
Under section 4(d) of the Endangered Species Act (ESA), the Secretary of Commerce (Secretary) shall issue protective regulations the Secretary deems necessary and advisable for the conservation of species listed as threatened. The Secretary may apply any of the prohibitions in section 9 of the ESA. This proposed rule would promulgate protective regulations to apply a subset of the ESA section 9 prohibitions to the Banggai cardinalfish (
Comments regarding the proposed rule and supporting documents may be sent to the appropriate address (see
You may submit comments, identified by NOAA-NMFS-2023-0099, by Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal
We will accept anonymous comments (enter N/A in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.
Celeste Stout, NMFS, Office of Protected Resources,
On January 20, 2016, we published a final rule listing the Banggai cardinalfish (
The prohibitions listed under section 9(a)(1) of the ESA automatically apply when a species is listed as endangered but not when listed as threatened. In the case of a threatened species, section 4(d) of the ESA requires the Secretary to issue such regulations the Secretary deems necessary and advisable to provide for the conservation of the species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under ESA section 9(a)(1). Thus, NMFS has flexibility under ESA section 4(d) to tailor protective regulations, taking into account the effectiveness of available conservation measures. The status review of the Banggai cardinalfish (Conant, 2015), and the Banggai Cardinalfish 5-Year Review (2021) provided extensive information on the status of the Banggai cardinalfish. The information and conclusions from these documents are briefly summarized below.
On April 22, 2021, NMFS received a petition from the Center for Biological Diversity, the Animal Welfare Institute, and the Defenders of Wildlife requesting NMFS promulgate a rule under section 4(d) of the ESA to provide for the conservation of the Banggai cardinalfish. On August 4, 2021, NMFS published in the
In the case of threatened species, pursuant to ESA section 4(d), the Secretary may by regulation prohibit any act prohibited under ESA section 9(a)(1). Such regulations may include any or all of the prohibitions in section 9(a)(1) that apply to endangered species. Those section 9(a)(1) prohibitions make it unlawful, with limited specified exceptions, for any person subject to the jurisdiction of the United States to: (A) import any such species into, or export any such species from the United States; (B) take any such species within the United States or the territorial sea of the United States; (C) take any such species upon the high seas; (D) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species taken in violation of subparagraphs (B) and (C); (E) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity, any such species; (F) sell or offer for sale in interstate or foreign commerce any such species; or (G) violate any regulation pertaining to such species or to any threatened species of fish or wildlife listed pursuant to section 4 of the ESA and promulgated by the Secretary pursuant to authority provided by the ESA. Section 11 of the ESA provides for civil and criminal penalties for violation of section 9 or regulations issued under the ESA.
The Banggai cardinalfish is a foreign species and occurs only in areas beyond the U.S. exclusive economic zone and territorial waters. The Banggai cardinalfish is a relatively small marine fish. Adults generally do not exceed 55 to 57 millimeters (mm) standard length (Vagelli, 2011). The species is distinguished by its tasseled first dorsal fin, elongated anal and second dorsal fin rays, and deeply forked caudal fin (Allen, 2000). It is brilliantly colored, with contrasting black and light bars with whitish spots over a silvery body. The Banggai cardinalfish has an exceptionally restricted natural range limited to 20-34 kilometers
The Banggai cardinalfish exhibits reversed sex roles, where males provide parental care and brood eggs in their mouths. It lacks a planktonic larval stage and extends the brooding of larvae for about 7 days after hatching, which results in the release of fully formed juveniles. Spawning occurs year-round but peaks around September through October, which is a period of fewer storms in the region (Ndobe
As a part of the listing process, we concluded that Banggai cardinalfish had experienced a decline in abundance, as evidenced by a decrease in mean density at survey sites between 2004 and 2012. Moreover, some researchers believe that the population may have experienced a dramatic decline from historical abundance due to overharvest based on comparisons between populations in a private bay and other populations (Conant, 2015). Several threats to the Banggai cardinalfish were identified as contributing to this decline, including the degradation of habitat, international trade as a live marine ornamental reef fish, disease linked to high mortality of wild-caught fish imported for the ornamental trade, and inadequate protections in its endemic range. The threat of overharvest was and continues to be a considerable threat to the Banggai cardinalfish for use in the international aquarium trade. According to the best available data, approximately 120,000 Banggai cardinalfish are imported to the United States each year, primarily for use in the aquarium and pet trade. This number is anticipated to remain fairly stable over the foreseeable future. The U.S. Fish and Wildlife Service tracks the importation of wildlife—including Banggai cardinalfish—and their derived products into the U.S. through the Law Enforcement Management Information System (LEMIS) database. While LEMIS data include select records of imports of Banggai cardinalfish declared under the Banggai cardinalfish species code, most imports of the fish are coded under the generic marine ornamental fish species code. As a result, our estimate of average annual imports of Banggai cardinalfish to the U.S. also reflects input from pet industry trade group representatives and academic experts.
On March 29, 2021, NMFS completed a review of the species ESA classification pursuant to section 4(c)(2), also known as a 5-year review, which again concluded that the threatened Banggai cardinalfish is at risk of extinction primarily because its populations have been reduced by anthropogenic stressors that include, but are not limited to: (1) degradation of habitat; (2) international trade as a live marine ornamental reef fish; (3) disease linked to high mortality of wild-caught fish imported for the ornamental trade; and (4) inadequate protections in its endemic range.
The review further concluded that the Banggai cardinalfish is likely to become an endangered species within the foreseeable future and should continue to be classified as a threatened species.
The ESA does not specify particular prohibitions for threatened species. Instead, under section 4(d) of the ESA, the Secretary has discretion to issue such protective regulations as the Secretary deems necessary and advisable to provide for the conservation of the species. The Secretary also has the discretion to, by regulation, prohibit with respect to any threatened species of fish or wildlife, any act prohibited under ESA section 9(a)(1). Permits may be issued to allow persons to engage in otherwise prohibited acts for certain purposes.
Under section 4(d) of the ESA, the Secretary may develop specific prohibitions and exceptions tailored to the particular conservation needs of a threatened species. In such cases, the Secretary may issue a 4(d) rule that includes some or all of the prohibitions set out in the ESA. We are exercising
Our conservation objective is to prevent further reduction of existing wild populations of Banggai cardinalfish. Therefore, we are proposing to apply to the Banggai cardinalfish the prohibitions in ESA section 9(a)(1)(A). The ESA section 9(a)(1)(A) prohibitions would make it unlawful for any person subject to the jurisdiction of the United States to import the species into or export the species from the United States.
This proposed rule would apply to all commercial and noncommercial international shipments of live and dead Banggai cardinalfish and parts and products, including the import and export of personal pets and research samples. The import and export of wild-caught and captive-bred Banggai cardinalfish into and from the United States and its territories would be prohibited.
We assessed the conservation needs of the Banggai cardinalfish in light of the lack of protections or other regulations of the international trade in this species. The best available commercial data indicate that the legal and illegal trade of Banggai cardinalfish for use in the international aquarium trade is currently a threat to the persistence of the species. The Banggai cardinalfish is a popular marine ornamental fish that has been heavily traded in the aquarium trade since the mid-1990s. The current trade estimates are between 500,000 and 900,000 individuals annually worldwide (Ndobe
This rule proposes to prohibit the import into and export from the United States and its territories. No other prohibitions under section 9 of the ESA would be applied. A person would continue to be able to deliver, receive, carry, transport, ship, sell, offer to sell, purchase, or offer to purchase Banggai cardinalfish in interstate commerce. Although we do not have current data, we believe there are a number of Banggai cardinalfish in the United States. However, we have no information to suggest that interstate commerce activities within the United States are associated with threats to Banggai cardinalfish or would negatively affect any efforts aimed at the recovery of wild populations of the species, and therefore we are not proposing to prohibit those activities.
The Banggai cardinalfish is a foreign species and occurs only in areas beyond the U.S. exclusive economic zone and territorial waters. The ESA primarily protects foreign species by restricting trade; under the ESA, certain activities, including import, export, take, commercial activity, interstate commerce, and foreign commerce may be prohibited. This rule proposes to prohibit the import and export of Banggai cardinalfish into and from the United States and its territories. Research and enhancement activities that require import or export authorization will be examined on a case-by-case basis as prescribed by ESA section 10. The effects of such authorizations would be limited, because the general import into and export from the United States and its territories would be prohibited, thereby eliminating international trade of the species into and from the United States and its territories.
We invite comments and suggestions from all interested parties regarding this proposed rule to issue protective regulations under ESA section 4(d) for the threatened Banggai cardinalfish (see
NMFS will consider holding a public hearing on this proposal, if requested. Requests must be filed by the date specified in the
In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review (Peer Review Bulletin), establishing minimum peer review standards, a transparent process for public disclosure, and opportunities for public input. The Peer Review Bulletin, implemented under the Information Quality Act (Pub. L. 106-554), is intended to provide public oversight on the quality of agency information, analyses, and regulatory activities. The text of the Peer Review Bulletin was published in the
A complete list of the references used in this proposed rule is available upon request (see
This proposed rule has been determined to be not significant for purposes of E.O. 12866 review. An IRFA has been prepared that considers the economic costs and benefits of this proposed rule to issue ESA section 4(d) protective regulations and alternatives to this rulemaking as required under E.O. 12866. To review this report, see the
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) was designed to ensure that the government considers the potential for its regulations to unduly inhibit the ability of small entities to compete. The goals of the RFA include increasing the government's awareness of the impact of regulations on small entities and encouraging agencies to exercise flexibility to provide regulatory relief to small entities. When a proposed rule is published for public comment in the
The proposed rule would prohibit the import and export of Banggai cardinalfish and would, therefore, directly regulate entities that import and sell the fish, as well as any entities that export the fish. The large majority of direct impacts of the proposed rule would be borne by businesses that import and sell the Banggai cardinalfish wholesale. Entities that import and sell Banggai cardinalfish wholesale are classified under the Other Miscellaneous Nondurable Goods Merchant Wholesalers industry of the North American Industry Classification System (NAICS). Direct impacts to these entities would comprise the loss of revenues from the sale of Banggai cardinalfish that would be generated absent the proposed rule.
According to data gathered for the IRFA, five or fewer businesses account for all imports of Banggai cardinalfish. These businesses import approximately 120,000 Banggai cardinalfish per year, and there is no anticipated increase or decrease in the level of imports over the foreseeable future. With an estimated wholesale price of $11 per Banggai cardinalfish, this proposed rule would result in annualized impacts to all wholesalers of approximately $1.32 million (in 2022 dollars) in lost revenues, relative to the baseline. According to data provided by industry trade group representatives, between 80 and 90 percent of these impacts are anticipated to be borne by a single entity, whose primary NAICS industry is Other Miscellaneous Nondurable Goods Merchant Wholesalers industry (NAICS Code 424990). For NAICS Code 424990, the Small Business Administration's (SBA's) Table of Small Business Size Standards designates a small business as one which employs 100 or fewer employees. Based on employment estimates for this entity gathered from the Dun and Bradstreet Hoovers database, this entity qualifies as a small business under SBA's small business size standards. The IRFA estimates that revenue generated from sale of the Banggai cardinalfish accounts for just under 6 percent of this company's average annual revenues. It is unknown how many additional importers would be impacted through the loss of the remaining 10-20 percent of annual U.S. wholesale sales of the Banggai cardinalfish and whether any of these businesses are small entities.
While not directly regulated by the proposed action, pet stores and other aquarium industry retailers of the Banggai cardinalfish would also be affected through the loss of revenues generated under the baseline. Entities that sell the fish retail are classified under the Pet and Pet Supplies Retailers NAICS industry. Based on an estimated retail price of approximately $33 per fish and total annual retail sales of approximately 120,000 fish, the IRFA estimates annualized impacts to these retailers of just under $4 million (in 2022 dollars). According to data provided by industry trade group representatives, between 80 and 90 percent of these impacts are anticipated to be borne by a single large business in the NAICS Pet and Pet Supplies Retailers industry (NAICS Code 459910). This business has annual sales greater than $1 billion, which is well above the SBA's small business size standard of $32 million in annual sales for companies in this industry. Impacts to this business are estimated to account for less than 0.1 percent of its average annual revenues. It is unknown how many additional retailers would be impacted through the loss of the remaining 10-20 percent of annual U.S. retail sales of the Banggai cardinalfish and whether any of these businesses are small entities.
According to interviews with industry trade group representatives, wholesale and retail sales of the Banggai cardinalfish account for nearly all U.S. trade of the fish. In comparison, import by aquaria and export for commercial or other purposes account for a small fraction of the trade of the species. Data were not available to quantify impacts to entities conducting these activities. The proposed rule would impact entities conducting scientific research on Banggai cardinalfish or other activities that enhance the propagation or survival of the species to the extent that obtaining required ESA section 10 permits would incrementally incur costs to the regulated entities and NMFS, relative to the baseline. However, ESA section 10 permits would only be required for entities conducting research on imported Banggai cardinalfish, and the extent to which current research relies on obtaining imported Banggai cardinalfish, and the resulting extent of potential impacts to the entities conducting such research, is uncertain and cannot be quantified due to the lack of available data.
Under the proposed rule, it is possible that directly regulated importers and indirectly impacted retailers could benefit from increased demand for imported aquarium fish species that represent substitutes for the Banggai cardinalfish. Retailers could also benefit from increased demand for domestically bred Banggai cardinalfish. However, these potential benefits would be indirect and are too uncertain to quantify.
The proposed rule would not duplicate or conflict with any other laws or regulations. Currently, there are no Federal restrictions on importing the Banggai cardinalfish into or exporting the fish from the United States, and Banggai cardinalfish are not listed in any appendices of the CITES.
The RFA requires consideration of any significant alternatives to the proposed rule that would accomplish the stated objectives of the applicable statutes and would minimize significant economic impacts to small entities. We considered the following alternatives when developing this proposed rule.
We have determined that this proposed rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of E.O. 12988. We are proposing protective regulations pursuant to the provisions of ESA section 4(d) and other ESA provisions.
The longstanding and distinctive relationship between the Federal and Tribal Governments is defined by treaties, statutes, executive orders, judicial decisions, and agreements, which differentiate Tribal Governments from the other entities that deal with, or are affected by, the Federal Government. This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the United States toward Indian Tribes and with respect to Indian lands, tribal trust resources, and the exercise of tribal rights. Pursuant to these authorities, lands have been retained by Indian Tribes or have been set aside for tribal use. These lands are managed by Indian Tribes in accordance with tribal goals and objectives within the framework of applicable treaties and laws. E.O. 13175, Consultation and Coordination with Indian Tribal Governments, outlines the responsibilities of the Federal Government in matters affecting tribal interests.
E.O. 13175 requires that if NMFS issues a regulation that significantly or uniquely affects the communities of Indian Tribal Governments and imposes substantial direct compliance costs on those communities, NMFS must consult with those governments, or the Federal Government must provide the funds necessary to pay the direct compliance costs incurred by the Tribal Governments. In developing this proposed rule, we found that it would not impose substantial direct compliance costs on the communities of Indian Tribal Governments and thus does not have tribal implications.
E.O. 13132 requires agencies to take into account any federalism impacts of regulations under development. It includes specific consultation directives for situations where a regulation will preempt state law, or impose substantial direct compliance costs on State and local governments (unless required by statute). Neither of those circumstances is applicable to this proposed rule.
This proposed rule does not contain any new or revised collection of information requirements. This rule, if adopted, would not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations.
In the case of a species listed as threatened, section 4(d) of the ESA directs that the Secretary of Commerce shall issue such regulations as the Secretary deems necessary and advisable to provide for the conservation of the species. The Secretary may, by regulation, prohibit with respect to any threatened species of fish or wildlife any or all acts prohibited under section 9(a)(1). Accordingly, the promulgation of ESA section 4(d) protective regulations is subject to the requirements of NEPA, and we have prepared a draft EA analyzing the proposed 4(d) regulations and alternatives. We are seeking comment on the draft EA, which is available on the Federal eRulemaking Portal website (
E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. According to E.O. 13211, “significant energy action” means any action by an agency that is expected to lead to the promulgation of a final rule or regulation that is a significant regulatory action under E.O. 12866 and is likely to have a significant adverse effect on the supply, distribution, or use of energy. NMFS has determined that the energy effects are unlikely to exceed the energy impact thresholds identified in E.O. 13211 because this proposed rule is not significant under E.O. 12866. Therefore, no Statement of Energy Effects is required.
Endangered and threatened species, Exports, Imports, Transportation.
For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 223 as follows:
16 U.S.C. 1531 1543; subpart B, § 223.201-202 also issued under 16 U.S.C. 1361
(a)
(b) [Reserved]
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding; whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by September 14, 2023 will be considered. Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number, and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
On March 31, 2022, in the U.S. District Court for the Southern District of Florida, Guiliano Pecci (“Pecci”) was convicted of violating 18 U.S.C. 554(a). Specifically, Pecci was convicted of smuggling firearm kits from the United States to Paraguay. As a result of his conviction, the Court sentenced Pecci to 18 months of confinement, three years of supervised release and a $200 assessment.
Pursuant to section 1760(e) of the Export Control Reform Act (“ECRA”),
BIS received notice of Pecci's conviction for violating 18 U.S.C. 554. As provided in section 766.25 of the Export Administration Regulations (“EAR” or the “Regulations”), BIS provided notice and opportunity for Pecci to make a written submission to BIS. 15 CFR 766.25.
Based upon my review of the record and consultations with BIS's Office of Exporter Services, including its Director, and the facts available to BIS, I have decided to deny Pecci's export privileges under the Regulations for a period of seven years from the date of Pecci's conviction. The Office of Exporter Services has also decided to revoke any BIS-issued licenses in which
Accordingly, it is hereby
A. Applying for, obtaining, or using any license, license exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.
A. Export, reexport, or transfer (in-country) to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable August 15, 2023.
Jonathan Hall-Eastman, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Ave. NW, Washington, DC 20230, telephone: (202) 482-1468.
On May 8, 2023, the U.S. Department of Commerce (Commerce), pursuant to section 702(h) of the Trade Agreements Act of 1979 (as amended) (the Act), published the quarterly update to the annual listing of foreign government subsidies on articles of cheese subject to an in-quota rate of duty covering the period October 1, 2022, through December 31, 2022.
Pursuant to section 702(h) of the Act, we hereby provide Commerce's update of subsidies on articles of cheese that were imported during the period January 1, 2023, through March 31, 2023. The appendix to this notice lists the country, the subsidy program or programs, and the gross and net amounts of each subsidy for which information is currently available.
Commerce will incorporate additional programs which are found to constitute subsidies, and additional information on the subsidy programs listed, as the information is developed. Commerce encourages any person having information on foreign government subsidy programs which benefit articles of cheese subject to an in-quota rate of duty to submit such information in writing through the Federal eRulemaking Portal at
This determination and notice are in accordance with section 702(a) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On July 19, 2023, the U.S. Court of International Trade (CIT or Court) issued its final judgment in
Applicable July 29, 2023.
Brendan Quinn, Program Manager, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5848.
On April 15, 2015, Commerce issued its final results in the fifth administrative review of the antidumping duty order on OTR tires from China.
On February 6, 2017, the CIT remanded Commerce's
After issuing its
Upon appeal, on June 10, 2021, the Federal Circuit issued a decision in
Because there is now a final court judgment, Commerce is amending its
Because the antidumping duty order on OTR Tires from China was revoked,
In the event the CIT's ruling is not appealed, or, if appealed, upheld by a final and conclusive court decision, Commerce intends to instruct U.S. Customs and Border Protection to assess antidumping duties on unliquidated entries of subject merchandise exported by Double Coin in accordance with 19 CFR 351.212(b) at the rate listed above.
This notice is issued and published in accordance with sections 516A(c) and (e) and 777(i)(1) of the Act.
National Advisory Council on Indian Education (NACIE), Department of Education.
Notice of an open meeting.
This notice sets forth the agenda, time, and instructions to access or participate in the August 29-30, 2023, virtual meeting of NACIE. This notice provides information about the meeting to members of the public who may be interested in attending the meeting and how to provide written comment for the meeting.
The NACIE open virtual meeting will be held on August 29-30, 2023, from 1:00-4:30 p.m. (EDT).
Crystal C. Moore, Designated Federal Official, Office of Elementary and Secondary Education (OESE)/Office of Indian Education (OIE), U.S. Department of Education, 400 Maryland Avenue SW, Office 3W243, Washington, DC 20202. Telephone: 202-453-5593, Email:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j. OES filed its Pre-Application Document (PAD) and request to use the Traditional Licensing Process (TLP) on April 14, 2023. OES published public notice of its Notice of Intent to file a license application, PAD, and request to use the TLP on the same day. After reviewing comments submitted by stakeholders, Commission staff denied OES's request to use the TLP on June 13, 2023. OES must use the Integrated Licensing Process to prepare a license application for the Owyhee Project.
k.
l. With this notice, we are initiating informal consultation with: (a) the U.S. Fish and Wildlife Service and/or NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR part 402; and (b) the Oregon State Historic Preservation Officer, as required by section 106, National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.
m. With this notice, we are designating OES as the Commission's non-Federal representative for carrying out informal consultation, pursuant to section 7 of the Endangered Species Act, and section 106 of the National Historic Preservation Act.
n. A copy of the PAD is available for review on the Commission's website (
You may register online at
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202)502-6595, or at
o. With this notice, we are soliciting comments on the PAD and Commission staff's Scoping Document 1 (SD1), as well as study requests. All comments on the PAD and SD1, and study requests should be sent to the address above in paragraph h. In addition, all comments on the PAD and SD1, study requests, requests for cooperating agency status, and all communications to and from
The Commission strongly encourages electronic filing. Please file documents using the Commission's eFiling system at
All filings with the Commission must bear the appropriate heading: “Comments on Pre-Application Document,” “Study Requests,” “Comments on Scoping Document 1,” “Request for Cooperating Agency Status,” or “Communications to and from Commission Staff.” Any individual or entity interested in submitting study requests, commenting on the PAD or SD1, and any agency requesting cooperating status must do so by October 7, 2023.
p. Scoping Process
In accordance with the National Environmental Policy Act (NEPA), Commission staff will prepare either an environmental assessment (EA) or an environmental impact statement (EIS) (collectively referred to as the “NEPA document”). The NEPA document will consider both site-specific and cumulative environmental effects, and reasonable alternatives to the proposed action. The Commission's scoping process will help determine the required level of analysis and satisfy the NEPA scoping requirements, irrespective of whether the Commission prepares an EA or EIS.
Commission staff will hold two public scoping meetings to receive input on the scope of the environmental issues that should be analyzed in the NEPA document. The daytime scoping meeting will focus on resource agency, Native American Tribes, and non-governmental organization (NGO) concerns, while the evening scoping meeting will focus on receiving input from the public. We invite all interested agencies, Native American Tribes, NGOs, and individuals to attend one of these meetings to assist us in identifying the scope of environmental issues that should be analyzed in the NEPA document. The dates, times and locations of these meetings are as follows:
Copies of SD1, outlining the subject areas to be addressed in the environmental document, was mailed to the individuals and entities on the Commission's mailing list and OES's PAD distribution list. Copies of SD1 may be viewed on the web at
The applicant and Commission staff will conduct an environmental site review of the proposed project. All interested agencies, Native American Tribes, NGOs, and individuals are invited to attend. All participants are responsible for their own transportation and must wear closed-toe shoes/boots for walking in uneven/sloped terrain around the proposed project area. If you plan to attend the environmental site review, please contact Matthew Shapiro with rPlus Hydro at (208) 246-9925, or via email at
At the scoping meetings, Commission staff will: (1) initiate scoping of the issues; (2) review and discuss existing conditions; (3) review and discuss existing information and identify preliminary information and study needs; (4) review and discuss the process plan and schedule for pre-filing activity that incorporates the time frames provided for in part 5 of the Commission's regulations and, to the extent possible, maximizes coordination of Federal, State, and Tribal permitting and certification processes; and (5) discuss the potential of any Federal or State agency or Native American Tribe to act as a cooperating agency for development of an environmental document. Meeting participants should come prepared to discuss their issues and/or concerns. Please review the PAD in preparation for the scoping meetings. Directions on how to obtain a copy of the PAD and SD1 are included in item n of this document.
The scoping meetings will be recorded by a court reporter, and all statements will become part of the Commission's public record for the project.
Agencies, Native American Tribes, NGOs, and individuals with environmental expertise and concerns are encouraged to attend the meetings and to assist Commission staff in defining and clarifying the issues to be addressed in the NEPA document.
The staff of the Federal Energy Regulatory Commission (FERC or
The EA assesses the potential environmental effects of the Project in accordance with the requirements of the National Environmental Policy Act (NEPA). The FERC staff concludes that approval of the proposed project, with appropriate mitigating measures, would not constitute a major federal action significantly affecting the quality of the human environment.
The Commission mailed a copy of the Notice of Availability of the EA to federal, state, and local government representatives and agencies; elected officials; non-governmental organizations, environmental, and public interest groups; potentially interested Indian tribes; affected landowners; and newspapers and libraries in the Project area. The EA is only available in electronic format. It may be viewed and downloaded from the FERC's website (
The EA is not a decision document. It presents Commission staff's independent analysis of the environmental issues for the Commission to consider when addressing the merits of all issues in this proceeding. Any person wishing to comment on the EA may do so. Your comments should focus on the EA's disclosure and discussion of potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. The more specific your comments, the more useful they will be. To ensure consideration of your comments on the proposal, it is important that the Commission receive your comments in on or before 5:00 p.m. Eastern Time on September 7, 2023.
For your convenience, there are three methods you can use to file your comments to the Commission. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208-3676 or
(1) You can file your comments electronically using the eComment feature on the Commission's website (
(2) You can also file your comments electronically using the eFiling feature on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the Commission. Be sure to reference the project docket number (CP23-57) on your letter. Submissions sent via the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426. Submissions sent via any other carrier must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
Filing environmental comments will not give you intervenor status, but you do not need intervenor status to have your comments considered. Only intervenors have the right to seek rehearing or judicial review of the Commission's decision. At this point in this proceeding, the timeframe for filing timely intervention requests has expired. Any person seeking to become a party to the proceeding must file a motion to intervene out-of-time pursuant to Rule 214(b)(3) and (d) of the Commission's Rules of Practice and Procedures (18 CFR 385.214(b)(3) and (d)) and show good cause why the time limitation should be waived. Motions to intervene are more fully described at
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website (
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202)502-6595 or
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
On April 28, 2023, Elba Liquefaction Company, LLC and Southern LNG Company, LLC (Companies) filed an application in Docket No. CP23-375-000 requesting an Authorization pursuant to section 3 of the Natural Gas Act to amend existing authorizations
On May 10, 2023, the Federal Energy Regulatory Commission (Commission or FERC) issued its Notice of Application for the Project. Among other things, that notice alerted agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on a request for a federal authorization within 90 days of the date of issuance of the Commission staff's environmental document for the Project.
This notice identifies Commission staff's intention to prepare an environmental assessment (EA) for the Project and the planned schedule for the completion of the environmental review.
If a schedule change becomes necessary, additional notice will be provided so that the relevant agencies are kept informed of the Project's progress.
The Companies propose to amend its June 1, 2016 Order (2016 Order) to modify certain Movable Modular Liquefaction System (MMLS) Dehydration and Heavies Removal units that would reduce the fouling rate in the liquefaction units, reduce the resultant flaring events associated with cold box deriming, and therefore allow the MMLS to operate in an optimized condition for longer periods of time without fouling within the existing Elba Island LNG terminal in Chatham County, Georgia. Specifically, the Companies would make modifications to ten MMLS units; construct and operate a new condensate plant; install three new liquid nitrogen vaporizers; and increase the total liquefaction capacity of the MMLS units up approximately 0.4 million tonnes per annum (MTPA) from 2.5 to 2.9 MTPA.
On June 9, 2023, the Commission issued a
All substantive comments will be addressed in the EA.
In order to receive notification of the issuance of the EA and to keep track of formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This service provides automatic notification of filings made to subscribed dockets, document summaries, and direct links to the documents. Go to
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental document that will discuss the environmental impacts of the Louisiana Connector Pipeline Amendment, which involves 38 modifications to the previously authorized pipeline alignment, construction footprint, and installation methods for the Louisiana Connector Project, which was approved by the Commission on April 18, 2019, in docket no. CP18-7-000.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies regarding the project. As part of the National Environmental Policy Act (NEPA) review process, the Commission takes into account concerns the public may have about proposals and the environmental impacts that could result from its action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. This gathering of public input is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the environmental document on the important environmental issues. Additional information about the
By this notice, the Commission requests public comments on the scope of issues to address in the environmental document. To ensure that your comments are timely and properly recorded, please submit your comments so that the Commission receives them in Washington, DC on or before 5:00 p.m. Eastern Time on September 8, 2023. Comments may be submitted in written form. Further details on how to submit comments are provided in the
Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts specifically related to the modifications proposed in the amendment, which are detailed further below. Your input will help the Commission staff determine what issues they need to evaluate in the environmental document. Commission staff will consider all written comments during the preparation of the environmental document.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed amendment and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a Port Arthur Pipeline, LLC (PAPL) representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed amended facilities. The company would seek to negotiate a mutually acceptable easement agreement. You are not required to enter into an agreement. However, if the Commission approves the project amendment, the Natural Gas Act conveys the right of eminent domain to the company. Therefore, if you and the company do not reach an easement agreement, the pipeline company could initiate condemnation proceedings in court. In such instances, compensation would be determined by a judge in accordance with state law. The Commission does not subsequently grant, exercise, or oversee the exercise of that eminent domain authority. The courts have exclusive authority to handle eminent domain cases; the Commission has no jurisdiction over these matters.
PAPL provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” which addresses typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. This fact sheet along with other landowner topics of interest are available for viewing on the FERC website (
There are three methods you can use to submit your comments to the Commission. Please carefully follow these instructions so that your comments are properly recorded. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208-3676 or
(1) You can file your comments electronically using the eComment feature, which is located on the Commission's website (
(2) You can file your comments electronically by using the eFiling feature, which is located on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the Commission. Be sure to reference the project docket number (CP23-513-000) on your letter. Submissions sent via the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426. Submissions sent via any other carrier must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, MD 20852.
Additionally, the Commission offers a free service called eSubscription which makes it easy to stay informed of all issuances and submittals regarding the dockets/projects to which you subscribe. These instant email notifications are the fastest way to receive notification and provide a link to the document files which can reduce the amount of time you spend researching proceedings. Go to
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
The proposed amended facilities are specific to 38 locations in Jefferson County, Texas and Cameron, Calcasieu, Beauregard, and Allen Parishes, Louisiana (between milepost 0 in Jefferson County, Texas and milepost 82.5 south of Reeves in Allen Parish, Louisiana), as detailed below:
• modifications to pipeline routes, construction methods, horizontal directional drill (HDD) entry points, and additional temporary workspaces to accommodate landowner requests, to reduce environmental impacts, to avoid newly identified non-PAPL pipelines, to avoid new structures, or to allow for safer construction access;
• shifting of pipeline easements to allow the permanent easements to abut other existing permanent easements;
• addition and modification of access roads for geotechnical boring access and/or to allow better and safer access to the HDD drill pad for construction and HDD inspection;
• modification of equipment and material storage areas and staging areas to utilize areas that were recently and permanently impacted by other parties;
• modification to water approaches to use existing boat ramp/dock improvements;
• relocation of mainline valves to reduce the amount of permanent right-of-way needed, to facilitate operations and maintenance, to provide for safer access via road, and to allow access to power and communications to comply with new and anticipated U.S. Department of Transportation/Pipeline and Hazardous Materials Safety Administration requirements;
• modification of three waterbody crossings methodologies from open cut to an HDD as requested by the U.S. Army Corps of Engineers;
• combine, in two locations, multiple HDDs into a single HDD which would result in avoiding an open-cut crossing and eliminating an HDD; and
• modification of HDD alignments to avoid conflicts with potential future deeper canal depths.
The general location of the project amendment facilities is shown in appendix 1.
Construction of the amended facilities would result in a net increase of approximately 20.9 acres of land as compared to what was previously authorized (total of 2,827.9 acres of land, as compared to 2,807.0 acres). This net increase would be attributable to the temporary workspace increases in open water and industrial/commercial areas (31.3 acres and 17.6 acres, respectively), while being reduced in residential and natural areas (
Operation of the modified facilities would permanently impact 20.8 acres less land (750.2 acres, as compared to 771.0 acres), most of which is accounted for in the removal of permanent access roads.
Any environmental document issued by the Commission will discuss impacts that could occur as a result of the construction and operation of the 38 modifications proposed in the amendment under the relevant general resource areas:
• geology and soils;
• water resources and wetlands;
• vegetation and wildlife;
• threatened and endangered species;
• cultural resources;
• land use;
• environmental justice;
• air quality and noise; and
• reliability and safety.
Commission staff will also evaluate reasonable alternatives to the proposed amendment or portions of the amendment and make recommendations on how to lessen or avoid impacts on the various resource areas. Your comments will help Commission staff identify and focus on the issues that might have an effect on the human environment and potentially eliminate others from further study and discussion in the environmental document.
Following this scoping period, Commission staff will determine whether to prepare an environmental assessment (EA) or an environmental impact statement (EIS). The EA or the EIS will present Commission staff's independent analysis of the issues. If Commission staff prepares an EA, a
With this notice, the Commission is asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project amendment to formally cooperate in the preparation of the environmental document.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, the Commission is using this notice to initiate consultation with the Louisiana State Historic Preservation Office, and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all landowners affected by the 38 proposed modifications (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project amendment and includes a mailing address with their comments. Commission staff will update the environmental mailing list as the analysis proceeds to ensure that Commission notices related to this environmental review are sent to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed amendment.
If you need to make changes to your name/address, or if you would like to remove your name from the mailing list, please complete one of the following steps:
(1) Send an email to
OR
(2) Return the attached “Mailing List Update Form” (appendix 2).
Additional information about the project amendment is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC
Any public sessions or site visits will be posted on the Commission's calendar located at
Take notice that the Commission has received the following Natural Gas and Oil Pipeline Rate and Refund Report filings:
Any person desiring to intervene, to protest, or to answer a complaint in any of the above proceedings must file in accordance with Rules 211, 214, or 206 of the Commission's Regulations (18 CFR 385.211, 385.214, or 385.206) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659. The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following qualifying facility filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene, to protest, or to answer a complaint in any of the above proceedings must file in accordance with Rules 211, 214, or 206 of the Commission's Regulations (18 CFR 385.211, 385.214, or 385.206) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit an information collection request (ICR), Implementation of the Fine Particulate Matter (PM
Comments must be submitted on or before October 16, 2023.
Submit your comments, referencing Docket ID Number EPA-HQ-OAR-2013-069, to the EPA online using
Ms. Leigh Herrington, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mailcode C539-01, Post Office Box 12055, Research Triangle Park, NC 27711; telephone number: 919-541-0882; fax number: (919) 541-2225; email address:
This is a proposed extension of the ICR, which is currently approved through January 31, 2024. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
This notice allows 60 days for public comments. Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the Paperwork Reduction Act (PRA), the EPA is soliciting comments and information to enable it to: (i) evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate forms of information technology. The EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval. At that time, the EPA will issue another
The initial ICR finalized with the PM
This ICR supersedes the existing ICR—for which the EPA is proposing renewal in this action—for purposes of PM
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal Agencies to take this opportunity to comment on the following information collection. Pursuant to the Small Business Paperwork Relief Act of 2002, the FCC seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
Written comments and recommendations for the proposed information collection should be submitted on or before September 14, 2023.
Comments should be sent to
For additional information or copies of the information collection, contact Cathy Williams at (202) 418-2918. To view a copy of this information collection request (ICR) submitted to OMB: (1) go to the web page
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the FCC invited the general public and other Federal Agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. Pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the FCC seeks specific comment on how it might “further
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
Written PRA comments should be submitted on or before October 16, 2023. If you anticipate that you will be submitting comments but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email to
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
The following is a description of the information collection requirements approved under this collection:
Section 27.14(k) requires 600 MHz licensees to demonstrate compliance with performance requirements by filing a construction notification with the Commission, within 15 days of the applicable benchmark.
Section 27.14(t)(6) requires 600 MHz licensees to make a renewal showing as a condition of each renewal. The showing must include a detailed description of the applicant's provision of service during the entire license period and address: (i) The level and quality of service provided by the applicant (including the population served, the area served, the number of subscribers, the services offered); (ii) the date service commenced, whether service was ever interrupted, and the duration of any interruption or outage; (iii) the extent to which service is provided to rural areas; (iv) the extent to which service is provided to qualifying tribal land as defined in 47 CFR 1.2110(f)(3)(i); and (v) any other factors associated with the level of service to the public.
Section 27.17(c) requires 600 MHz licensees to notify the Commission within 10 days of discontinuance if they permanently discontinue service by
Section 27.1321(b) previously designated as 27.19(b) requires 600 MHz licensees with base and fixed stations in the 600 MHz downlink band within 25 kilometers of Very Long Baseline Array (VLBA) observatories to coordinate with the National Science Foundation (NSF) prior to commencing operations.
Section 27.1321(c) previously designated as 27.19(c) requires 600 MHz licensees that intend to operate base and fixed stations in the 600 MHz downlink band in locations near the Radio Astronomy Observatory site located in Green Bank, Pocahontas County, West Virginia, or near the Arecibo Observatory in Puerto Rico, to comply with the provisions in 47 CFR 1.924.
Section 74.602(h)(5)(ii) requires 600 MHz licensees to notify the licensee of a studio-transmitter link (TV STL), TV relay station, or TV translator relay station of their intent to commence wireless operations and the likelihood of harmful interference from the TV STL, TV relay station, or TV translator relay station to those operations within the wireless licensee's licensed geographic service area. The notification is to be in the form of a letter, via certified mail, return receipt requested and must be sent not less than 30 days in advance of approximate date of commencement of operations.
Section 74.602(h)(5)(iii) requires all TV STL, TV relay station and TV translator relay station licensees to modify or cancel their authorizations and vacate the 600 MHz band no later than the end of the post-auction transition period as defined in 47 CFR 27.4.
These rules which contain information collection requirements are designed to provide for flexible use of this spectrum by allowing licensees to choose their type of service offerings, to encourage innovation and investment in mobile broadband use in this spectrum, and to provide a stable regulatory environment in which broadband deployment would be able to develop through the application of standard terrestrial wireless rules. Without this information, the Commission would not be able to carry out its statutory responsibilities.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
Written PRA comments should be submitted on or before October 16, 2023. If you anticipate that you will be submitting comments but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email to
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
The Commission seeks approval for revisions to its currently approved collection of information under OMB Control Number 3060-0800 to permit the collection of the additional information and changes in connection with assignments of authorizations pursuant to the rules adopted by the Commission's ECIP Report and Order. Specifically, in the ECIP Report and Order, the Commission revised its rules to allow partition and/or disaggregation assignment applications pursuant to
August 22, 2023 at 10:00 a.m.
Telephonic. Dial-in (listen only) information: Number: 1-202-599-1426, Code: 657 689 377#; or via web:
Kimberly Weaver, Director, Office of External Affairs, (202) 942-1640.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled Possession, Use, and Transfer of Select Agents and Toxins. This data collection allows CDC to continue to collect information and ensure compliance under the Select Agent regulations.
CDC must receive written comments on or before October 16, 2023.
You may submit comments, identified by Docket No. CDC-2023-0061 by either of the following methods:
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•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS H21-8, Atlanta, Georgia 30329; Telephone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected;
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
Possession, Use, and Transfer of Select Agents and Toxins (42 CFR 73) (OMB Control No. 0920-0576, Exp. 1/31/2024)—Extension—Office of Readiness and Response (ORR), Centers for Disease Control and Prevention (CDC).
Subtitle A of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, (42 U.S.C. 262a), requires the United States Department of Health and Human Services (HHS) to regulate the possession, use, and transfer of biological agents or toxins that have the potential to pose a severe threat to public health and safety (select agents and toxins). Subtitle B of the Public
CDC is requesting OMB approval to continue to collect information under the select agent regulations through the use of five forms:
• Application for Registration for Possession. Use, and Transfer of Select Agents and Toxins (APHIS/CDC Form 1) with an addendum form: Form 1 Sec 6A—Amendment to a Certificate of Registration.
• Request to Transfer Select Agents or Toxins (APHIS/CDC Form 2).
• Incident Notification and Reporting (Theft, Loss, or Release) (APHIS/CDC Form 3).
• Reporting the Identification of a Select Agent or Toxin (APHIS/CDC Form 4).
• Request for Exemption of Select Agents and Toxins for an Investigational Product (APHIS/CDC Form 5).
In addition to the forms listed above, the following forms will also be used:
• Request for Exclusions—An individual or entity may request an exclusion from the requirements of the select agent regulations of an attenuated strain of a select agent or a select toxin modified to be less potent or toxic. (42 CFR 73.3(e) and 73.4(e)).
• Documentation of self-inspection—Annual inspections that are conducted by the entity must be documented. (42 CFR 73.9(a)(6)).
• Request for Expedited Review—An individual's security risk assessment may be expedited upon written request by a Responsible Official and a showing of good cause. (42 CFR 73.10(f)).
• Request Regarding a Restricted Experiment—An individual or entity may request approval to perform a “restricted experiment” (42 CFR 73.13).
• Security Plan—An individual or entity must develop and implement a written security plan, biosafety plan, and incident response plan (42 CFR 73.11(a), 42 CFR 73.12(a), and 42 CFR 73.14(a)).
• Training—The Responsible Official at the must ensure a record of the training for each individual with access to select agents and toxins and each escorted individual is maintained (42 CFR 73.15(d)).
• Administrative Review—An individual or entity may appeal a denial, revocation, or suspension of registration. (42 CFR 73.20(a)).
• Biosafety Plan—An individual or entity required to register under this part must develop and implement a written biosafety plan that is commensurate with the risk of the select agent or toxin, given its intended use. The biosafety plan must contain sufficient information and documentation to describe the biosafety and containment procedures for the select agent or toxin, including any animals (including arthropods) or plants intentionally or accidentally exposed to or infected with a select agent (42 CFR 73.12(a)).
• Incident Response Plan—An individual or entity required to register under this part must develop and implement a written incident response plan based upon a site specific risk assessment. The incident response plan must be coordinated with any entity-wide plans, kept in the workplace, and available to employees for review (42 CFR 73.14 (a)).
• Records—An individual or entity required to register under this part must maintain complete records relating to the activities covered by the select agent regulations (42 CFR 73.17 (a)).
The total estimated annualized burden for all data collection was calculated using the 2021 Annual Report of the Federal Select Agent Program available at
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) received approval from the Office of Management and Budget (OMB) to conduct Rapid Surveys System (RSS) (OMB Control No. 0920-1408), which includes fielding four surveys per year. The 06/30/2023 approval gave clearance for Round 1 of the survey. In accordance with the Terms of Clearance NCHS will publish a 30-day
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) Minimize the burden of the collection of information on those who are to respond, including, through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570. Comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
National Center for Health Statistics (NCHS) Rapid Surveys System (RSS) Round 2 (OMB Control No. 0920-1408)—Revision—National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC).
Section 306 of the Public Health Service (PHS) Act (42 U.S.C.), as amended, authorizes that the Secretary of Health and Human Services (HHS), acting through NCHS, collect data about the health of the population of the United States. The NCHS Rapid Surveys System (RSS) collects data on emerging public health topics, attitudes, and behaviors using cross-sectional samples from two commercially available, national probability-based online panels. The RSS then combines these data to form estimates that approximate national representation in ways that many data collection approaches cannot. The RSS collects data in contexts in which decision makers' need for time-sensitive data of known quality about emerging and priority health concerns is a higher priority than their need for statistically unbiased estimates.
The RSS complements NCHS's current household survey systems. As quicker turnaround surveys that require less accuracy and precision than CDC's more rigorous population representative surveys, the RSS incorporates multiple mechanisms to carefully evaluate the resulting survey data for their appropriateness for use in public health surveillance and research (
The RSS has three major goals: (1) to provide CDC and other partners with time-sensitive data of known quality about emerging and priority health concerns; (2) to use these data collections to continue NCHS's evaluation of the quality of public health estimates generated from commercial online panels; and (3) to improve methods to communicate the appropriateness of public health estimates generated from commercial online panels. The RSS is designed to have four rounds of data collection each year with data being collected by two contractors with probability panels. A cross-sectional nationally representative sample will be drawn from the online probability panel maintained by each of the contractors. As part of the base (minimum sample size), each round of data collection will collect 2,000 responses per quarter. The RSS can be expanded by increasing the number of completed responses per round or the
Each round's questionnaire will consist of four main components: (1) basic demographic information on respondents to be used as covariates in analyses; (2) new, emerging, or supplemental content proposed by NCHS, other CDC Centers, Institute, and Offices, and other HHS agencies; (3) questions used for calibrating the survey weights; and (4) additional content selected by NCHS to evaluate against relevant benchmarks. NCHS will use questions from Components 1 and 2 to provide relevant, timely data on new, emerging, and priority health topics to be used for decision making. NCHS will use questions from Components 3 and 4 to weight and evaluate the quality of the estimates coming from questions in Components 1 and 2. Components 1 and 2 will contain different topics in each round of the survey. NCHS submits a 30-day
NCHS calibrates survey weights from the RSS to gold standard surveys. Questions used for calibration in this round of RSS will include marital status and employment, social and work limitations, use of the internet in general and for medical reasons, telephone use, civic engagement, and language used at home and in other settings. All these questions have been on the National Health Interview Survey (NHIS) in prior years allowing calibration to these data. Finally, all RSS rounds will include several questions that were previously on NHIS that will be used for benchmarking to evaluate data quality. Panelists in the RSS will be asked about health status; chronic conditions; social determinants of health; healthcare access and utilization; and health behaviors will be used to benchmark the RSS to NCHS survey.
The estimated total annual burden hours for the three-year approval period remains at 28,079 burden hours. There are no costs to respondents other than their time. For RSS Round 2, the following hours will be used. The NCHS RSS Round 2 (2023) data collection is based on 13,100 complete surveys (4,367 hours) and 20 cognitive interviews (20 hours) using the same survey instrument. The total number of responses is 13,120 and the total burden is 4,387 hours.
Office of Planning, Research, and Evaluation, Administration for Children and Families, Department of Health and Human Services.
Request for public comments.
The Office of Planning, Research, and Evaluation (OPRE), Administration for Children and Families (ACF) is proposing an information collection activity for the Child Abuse and Neglect Background Checks for Child Care and Early Education (CAN Checks for CCEE) Project. The goal of the project is to better understand how states and territories use findings from CAN registry checks, as required by the Child Care and Development Block Grant Act of 2014 (CCDBG), to make child care employment eligibility determinations. The study will also be used to understand state and territory variation, facilitators, and challenges in implementing CAN registries; and any resulting within- or across-state/territory equity implications.
You can obtain copies of the proposed collection of information and submit comments by emailing
CCDF lead agency staff and CAN registry custodians that participate in this information collection will be asked to complete a voluntary, one-time web-based survey. The survey for CCDF lead agency staff will focus on the practices and policies related both to in-state/territory and interstate CAN registry checks, including what data they request and receive, as well as how they use it in making child care employment eligibility decisions. The survey for CAN registry custodians will focus on the contents of CAN registries, policies around inclusion in/expunction from the registries, and policies regarding sharing data.
Approximately half of CCDF lead agency survey respondents (up to 28) will be invited to participate in voluntary follow-up interviews. This open-ended data collection format will allow for exploration of key themes that emerge from the surveys; facilitators and barriers in, and respondent recommendations around, implementing the CAN registry checks; how practice may vary from policy; and, in some cases, to obtain answers to questions not answered in the survey.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is issuing an order under the Federal Food, Drug, and Cosmetic Act (FD&C Act) debarring Ildiko M. Knoll for a period of 5 years from importing or offering for import any drug into the United States. FDA bases this order on a finding that Ms. Knoll engaged in a pattern of importing or offering for import misbranded drugs (
This order is applicable August 15, 2023.
Any application by Ms. Knoll for termination of debarment
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• If you want to submit an application with confidential information that you do not wish to be made available to the public, submit the application as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
•
• For a written/paper application submitted to the Dockets Management Staff, FDA will post your application, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit an application with confidential information that you do not wish to be made publicly available, submit your application only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of your application. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Jaime Espinosa, Division of Compliance and Enforcement, Office of Policy, Compliance, and Enforcement, Office of Regulatory Affairs, Food and Drug Administration, 240-402-8743, or
Section 306(b)(1)(D) of the FD&C Act permits debarment of an individual from importing or offering for import any drug into the United States if FDA finds, as required by section 306(b)(3)(D) of the FD&C Act, that the individual has engaged in a pattern of importing or offering for import (
After an investigation, FDA discovered that Ms. Knoll had engaged in numerous instances of importing or offering for import misbranded drugs. Specifically, between November 24, 2021, and November 29, 2022, Ms. Knoll imported or offered for import 100 parcels containing a total of 100 products (18,435 pieces, 9,495 tablets) that contained tadalafil and sildenafil. FDA determined that these products were misbranded drugs because their labeling lacked adequate directions for use, as required by section 502(f)(1) of the FD&C Act (21 U.S.C. 352(f)(1)), and/or they were prescription drugs and their labels failed to bear the symbol “Rx only,” as required by section 503(b)(4)(A) of the FD&C Act (21 U.S.C. 353(b)(4)(A)). All the parcels containing the misbranded drugs serving as the basis for this action were intercepted by FDA at the John F. Kennedy International Mail Facility and were addressed to Ms. Knoll at an address connected to her.
As a result of this pattern of importing or offering for import (
Therefore, the Assistant Commissioner, Office of Human and Animal Food Operations, under section 306(b)(3)(D) of the FD&C Act, under authority delegated to the Assistant Commissioner, finds that Ms. Knoll has engaged in a pattern of importing or offering for import (
As a result of the foregoing finding, Ms. Knoll is debarred for a period of 5 years from importing or offering for import any drug into the United States, effective (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA, Agency, or we) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit written comments (including recommendations) on the collection of information by September 14, 2023.
To ensure that comments on the information collection are received, OMB recommends that written comments be submitted to
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10 a.m.-12 p.m., 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
This information collection helps support FDA implementation of statutory and regulatory requirements that govern biologics product licensing. We have issued regulations in 21 CFR parts 600-680 setting forth applicable standards and procedures that include associated reporting, recordkeeping, and disclosure requirements. Respondents to the information collection are persons or entities who engage in manufacture of biologics products. We provide information on our website at
We are revising the information collection to support implementation of a standards recognition program for regenerative medicine therapies at FDA's Center for Biologics Evaluation and Research (CBER) designed to identify and recognize Voluntary Consensus Standards (VCS) to facilitate the development and assessment of regenerative medicine therapy (RMT) products regulated by CBER when such standards are appropriate. The draft guidance for industry entitled “Voluntary Consensus Standards Recognition Program for Regenerative Medicine Therapies” (June 2022) describes procedures CBER will follow when a request for recognition of a VCS is received. The draft guidance also explains that any interested party may request recognition of a VCS. The draft guidance document is available for download at
The use of recognized VCS can assist stakeholders in more efficiently meeting regulatory requirements and increasing regulatory predictability for RMT products. We will use requests for recognition to help identify appropriate VCS that facilitate the development and assessment of RMT products. We encourage sponsors to use FDA-recognized VCS in submissions, as conformity to relevant standards helps streamline regulatory review, foster quality, and may facilitate a manufacturer's preparation of submissions. As explained in Section V of the draft guidance document, any stakeholder can request recognition of a specific VCS.
In the
We estimate the burden of this collection of information as follows:
Our estimate is based on our experience with similar information collection activities. We note that standards development can be a lengthy process and provide an estimate we believe reflects the amount of time necessary to prepare and submit the information as discussed in Section V of the guidance document.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Either electronic or written comments on the collection of information must be submitted by October 16, 2023
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. The
Submit electronic comments in the following way:
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• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-793-5733,
Under the PRA (44 U.S.C. 3501-3521), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
This information collection helps to support implementation of section 503B of the FD&C Act (21 U.S.C. 353b) and the assessment and remission of user fees under section 744K of the FD&C Act (21 U.S.C. 379j-62).
Under section 503B of the FD&C Act a facility that compounds drugs may elect to register with FDA as an outsourcing facility. Upon electing to do so, outsourcing facilities must register annually between October 1 and December 31, providing information that includes its name, place of business, a unique facility identifier, and a point of contact's email address and phone number. The outsourcing facility must also indicate: (1) whether it intends to compound, within the next calendar year, a drug that appears on our drug shortage list in effect under section 506E of the FD&C Act (21 U.S.C. 356e); and (2) whether it compounds from bulk drug substances and, if so, whether it compounds sterile or nonsterile drugs from bulk drug substances. Registered outsourcing facilities must submit a drug product report upon initial registration under section 503B and twice each year in June and December for drug products produced during the previous 6-month period. We require this data be submitted electronically, unless a waiver is granted, in structured product labeling (SPL) format.
Drug products compounded in a registered outsourcing facility can qualify for exemptions from the FDA-approval requirements in section 505 of the FD&C Act (21 U.S.C. 355), the requirement to label products with adequate directions for use under section 502(f)(1) of the FD&C Act (21 U.S.C. 352(f)(1)), and the requirements for drug supply chain security in section 582 of the FD&C Act (21 U.S.C. 360eee-1) if the requirements in section 503B of the FD&C Act have been met. We provide general information and resources on website at
Upon registration, and in accordance with section 503B and 744K of the FD&C Act, facilities are assessed an establishment fee and receive an annual invoice from FDA with instructions for remitting payment. Until payment is made for each given fiscal year (FY), an establishment is not considered to be registered as an outsourcing facility. In accordance with section 744K of the FD&C Act, certain outsourcing facilities may qualify for a small business reduction in the amount of the annual establishment fee. To qualify for this reduction, an outsourcing facility must submit a written request to FDA certifying that the entity meets the requirements for the reduction. For each FY a firm seeks to qualify as a small business and receive the fee reduction, it must submit to FDA a written request by April 30 of the preceding FY. For example, an outsourcing facility must have submitted a written request for the small business reduction by April 30, 2023, to qualify for a reduction in the FY 2024 annual establishment fee.
Section 744K of the FD&C Act also requires an outsourcing facility to submit written requests for a small business reduction in a specified format: Form FDA 3908 entitled “Outsourcing Facilities for Human Drug Compounding: Small Business Establishment Fee Reduction Request.” The completed form should be submitted via email to
In accordance with section 503B of the FD&C Act, outsourcing facilities are subject to inspection and, in accordance with section 744K of the FD&C Act, subject to reinspection fees. A reinspection fee will be incurred for each reinspection and is intended to reimburse FDA when a particular outsourcing facility requires reinspection because of noncompliance identified during a previous inspection. After a reinspection is conducted, FDA will send an invoice to the email address indicated in the facility's registration file. The invoice contains instructions for remitting the reinspection fee. For further information on human drug compounding outsourcing facility fees, please visit our
Agency regulations under § 10.75 (21 CFR 10.75) provide for internal Agency review of decisions. Accordingly, an outsourcing facility may request reconsideration of an FDA decision related to the fee provisions of section 744K of the FD&C Act. Requests for reconsideration should include the facility's rationale for its position that FDA's decision was in error and include any additional information that is relevant to the outsourcing facility's assertion. The denial of a request for reconsideration may be appealed by submitting a written request to FDA, consistent with § 10.75.
To assist respondents with the information collection provisions, we have developed Agency guidance documents. The guidance document entitled “Registration of Human Drug Compounding Outsourcing Facilities Under Section 503B of the FD&C Act (November 2014)” describes the process for electronic submission of establishment registration information for outsourcing facilities and provides information on how to obtain a waiver from submitting registration information electronically. The guidance document entitled “Fees for Human Drug Compounding Outsourcing Facilities Under Sections 503B and 744K of the FD&C Act (November 2014)” (Fees for Human Drug Compounding Outsourcing Facilities guidance) describes the types and amounts of fees that outsourcing facilities must pay, the adjustments to fees required by law, how outsourcing facilities can submit payment to FDA, the consequences of outsourcing facilities' failure to pay fees, and how an outsourcing facility can qualify as a small business to obtain a reduction in fees. The guidance documents were issued consistent with our good guidance practice regulations (21 CFR 10.115), which provide for public comment at any time, and are available on our website at
All requests for dispute resolution should be sent via email to the Division of User Fee Management and Budget Formulation at
We estimate the burden of the information collection as follows:
We estimate 79 respondents annually will submit outsourcing facility registrations using the SPL format as specified in Agency guidance and assume each registration will require 4.5 hours to prepare and complete. We expect no more than one waiver request from the electronic submission requirement annually and assume each waiver request will require 1 hour to prepare and submit. We estimate each of the 76 registrants will remit annual establishment fees and assume this task requires 30 minutes per respondent. We estimate that 18 of those respondents will request a small business reduction in the amount of the annual establishment fee using Form FDA 3908.
We estimate 12 outsourcing facilities annually will remit reinspection fees and assume this will require 30 minutes. We also estimate that we will receive one request for reconsideration and one appeal of a denial of a request for reconsideration and assume 1 hour per respondent for this activity.
We estimate that annually 18 outsourcing facilities will maintain a copy of their small business designation letter and that maintaining each record will require 30 minutes. These estimates reflect a slight increase in the number of annual registrations, but a decrease in reinspection fee submissions.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the National Advisory Council on Alcohol Abuse and Alcoholism.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting. The open session will be videocast and can be accessed from the NIH Videocasting and Podcasting website (
A portion of this meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the Institute's/Center's home page:
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Department of Homeland Security (DHS).
60-Day notice and request for comments.
The Department of Homeland Security will submit the following Information Collection Request (ICR) to the Office of Management and Budget
Comments are encouraged and will be accepted until October 16, 2023. This process is conducted in accordance with 5 CFR 1320.1
You may submit comments, identified by docket number Docket # DHS-2023-0027, at:
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Department of Homeland Security (DHS) Form 11000-16 is used to request a DHS Personal Identity Verification Official (PIV-O) credential, and if applicable, a shield (
The collection of information is obtained from (or on behalf of) the respondent, who may be a current or prospective DHS contractor (
The collection of information is obtained from the respondent electronically using a fillable PDF form; upon completion, the form is submitted to the respective DHS Component credentialing office in accordance with internal procedures. This information collection does not have an impact on small businesses or other small entities. Collection of the information on DHS Form 11000-16 is voluntary; however, failure to provide the information requested may prevent the respondent (
There is no assurance of confidentiality provided to the respondents. Consistent with DHS's information sharing mission, this information collection may be shared with Federal, State, local, Tribal, foreign or international government agencies, including other DHS Components and offices. This sharing will only take place after DHS determines that the receiving entity has a need to know the information to carry out national security, law enforcement, immigration, intelligence, or other functions consistent with the routine uses set forth in Privacy Impact Assessment,
This is a new collection.
The Office of Management and Budget is particularly interested in comments which:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Office of Partnership and Engagement (OPE), Department of Homeland Security (DHS).
Notice of closed Federal advisory committee meeting.
The Homeland Security Advisory Council (HSAC) will meet virtually on Thursday, August 29, 2023. The meeting will be closed to the public.
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Rebecca Sternhell, Acting Executive Director, HSAC at 202-891-2876 or
Notice of this meeting is given pursuant to the Federal Advisory Committee Act (FACA), 5 U.S.C. 1009, which requires each FACA committee meeting to be open to the public unless the President, or the head of the agency to which the advisory committee reports, determines that a portion of the meeting may be closed to the public in accordance with 5 U.S.C. 552b(c).
The HSAC provides organizationally independent, strategic, timely, specific, actionable advice, and recommendations to the Secretary of Homeland Security on matters related to homeland security. The Council consists of senior executives from government, the private sector, academia, law enforcement, and non-governmental organizations.
The Artificial Intelligence (AI) Threats & Defense Subcommittee is tasked with (1) assessing the ways AI systems can be utilized and leveraged by adversarial forces and (2) providing recommendations to the Secretary on development and research strategies and defense initiatives to combat against malevolent and adversarial AI utilization.
The HSAC will meet in a closed session from 4:00 p.m. to 5:00 p.m. ET to receive a For Official Use Only (FOUO) and Law Enforcement Sensitive (LES) draft report from the AI Threats and Defense Subcommittee. HSAC members will receive a briefing from the Subcommittee Leadership and then the members will deliberate on the FOUO//LES report and vote on the report. Senior DHS Leadership will provide remarks prior to adjournment.
The Council will participate in a sensitive operational discussion containing For Official Use Only and Law Enforcement Sensitive information. The session is closed pursuant to U.S.C. 552b(c)(7) and (9)(B) because the disclosure of this information could significantly frustrate implementation of proposed agency actions.
Department of Homeland Security (DHS).
60-Day notice and request for comments.
The Department of Homeland Security will submit the following Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted until October 16, 2023. This process is conducted in accordance with 5 CFR 1320.1
You may submit comments, identified by docket number Docket # DHS-2023-0026, at:
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This information collection will be used to initiate the fitness screening process for determining if a person invited to perform work under a contract for the Department of Homeland Security (DHS), is fit to perform such work and eligible for access to DHS resources, based on the risk levels of the designated position. The respondent provides and/or verifies biographical information to complete Section II of DHS Form 11000-25. This collection of information is necessary to initiate the contractor fitness screening process for determining whether a person (
This is a new information collection. DHS collects this information from the respondent, so Personnel Security entities can initiate the appropriate screening process for determining whether the respondent should be deemed fit to perform work under a contract for, or on behalf of DHS, and eligible for logical and/or physical access to DHS resources based on the risk levels of the designated position.
This information collection utilizes an automated technological solution (
This information collection does not have an impact on small businesses or other small entities.
The information collection for DHS Form 11000-25 is voluntary; however, failure to provide this information may delay or prevent an individual's fitness determination and eligibility for physical and logical access to federally controlled facilities or information systems.
There is no assurance of confidentiality provided to the respondents. Consistent with DHS' information sharing mission, all or a portion of the information collection may be disclosed outside DHS consistent with the routine uses set forth in Privacy Impact Assessment,
This is a new collection.
The Office of Management and Budget is particularly interested in comments which:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Fish and Wildlife Service, Interior.
Notice of receipt of permit applications; request for comments.
We, the U.S. Fish and Wildlife Service, invite the public to comment on applications to conduct certain activities with foreign species that are listed as endangered under the Endangered Species Act (ESA). With some exceptions, the ESA prohibits activities with listed species unless Federal authorization is issued that allows such activities. The ESA also requires that we invite public comment before issuing permits for any activity otherwise prohibited by the ESA with respect to any endangered species.
We must receive comments by September 14, 2023.
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For more information, see Public Comment Procedures under
Timothy MacDonald, by phone at 703-358-2185 or via email at
We invite the public and local, State, Tribal, and Federal agencies to comment on these applications. Before issuing any of the requested permits, we will take into consideration any information that we receive during the public comment period.
You may submit your comments and materials by one of the methods in
When submitting comments, please specify the name of the applicant and the permit number at the beginning of your comment. Provide sufficient information to allow us to authenticate any scientific or commercial data you include. The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) those that include citations to, and analyses of, the applicable laws and regulations.
You may view and comment on others' public comments at
If you submit a comment at
To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(c) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
We invite comments on the following applications.
The applicant requests authorization to import biological samples of Galapagos giant tortoise (
The applicant requests a permit to export four live captive-bred Mongoose lemur (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for African penguin (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for radiated tortoise (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the following species, to enhance the propagation or survival of the species. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests a permit to import a sport-hunted trophy of one male bontebok (
After the comment period closes, we will make decisions regarding permit issuance. If we issue permits to any of the applicants listed in this notice, we will publish a notice in the
We issue this notice under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Bureau of Indian Affairs, Interior.
Notice of public meeting.
The Department of the Interior, Bureau of Indian Affairs (BIA), is announcing the annual meeting of the Federal agencies and Tribes that participate in the Indian Employment, Training, and Related Services Act of 2017, as amended, known as “Public Law 477 Work Group.”
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Send your comments to Johnna Blackhair, Acting Deputy Bureau Director, Indian Services, Bureau of Indian Affairs, 849 C Street NW, MS-3645-MIB, Washington, DC 20240; or by email to
Johnna Blackhair, (Acting) Deputy Bureau Director, Indian Services, Bureau of Indian Affairs,
This meeting is being held under the authority of Public Law 102-477, as amended (25 U.S.C. 3410(a)(3)(B)(i)), and section 2 of the Interdepartmental Memorandum of Agreement, signed by Secretary Haaland on September 12, 2022.
In 2017, the Congress enacted the Indian Employment Training and Related Services Consolidation Act of 2017, Public Law 115-93, codified at 25 U.S.C. 3401-3417 (2017 Act). The 2017 Act update amended and expanded the Indian Employment and Related Services Demonstration Act of 1992, Public Law 102-477 (as amended in 2017, Public Law 477) by, in part, identifying 12 Federal agencies that are now subject to the amended law. Under Public Law 477, Tribes may propose to integrate eligible grant programs from the Departments of the Interior, Agriculture, Commerce, Education, Energy, Health & Human Services, Homeland Security, Housing & Urban Development, Justice, Labor, Transportation, and Veterans Affairs, consolidate and reprogram grant funds in accordance with a single plan, budget, and report approved by the Secretary of the Interior (477 Plan). As required by the 2017 updates to Public Law 477, the Department of the Interior entered into a Memorandum of Agreement (MOA) among the 12 Federal agencies to implement Public Law 477. Each of the 12 Federal agencies signed a renegotiated MOA in the fall of 2022.
As DOI is the lead agency responsible for implementing Public Law 477, the BIA, as delegated by the Secretary of the Interior, announces the annual meeting of participating Tribes and Federal agencies. As directed by statute, the meeting will be co-chaired by the Assistant Secretary—Indian Affairs, Bryan Newland, and the 477 Tribal Workgroup Committee Chairs, Margaret Zientek (Contiguous 48) and Holly Morales (Alaska). 25 U.S.C. 3410(a)(3)(B)(i).
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○ Phone Number: (669) 254-5252
○ Meeting ID: 160 212 4317
○ Passcode: 337450
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Bureau of Land Management, Interior.
Notice of temporary closure and restrictions.
As authorized under the provisions of the Federal Land Policy and Management Act of 1976, as amended, notice is hereby given that a temporary closure and temporary restrictions of activities will be in effect on public lands administered by the Lake Havasu Field Office, Bureau of Land Management (BLM), to minimize the risk of potential collisions with spectators and racers during the annual Ultra4 USA Legends of the Fall off-highway vehicle (OHV) race events authorized under a special recreation permit (SRP).
The temporary restrictions for the Ultra4 USA Legends of the Fall take effect at 11:59 p.m., October 24, through midnight October 29, 2023. The temporary closure takes effect at 11:59 p.m., October 25, 2023, through midnight October 29, 2023. All times are listed in local time.
Sabrina Bice, Outdoor Recreation Planner, BLM Lake Havasu Field Office, 1785 Kiowa Avenue, Lake Havasu City, Arizona 86403, (928) 302-4255. Also see the Lake Havasu Field Office website:
The temporary closure and restrictions affect public lands in and around the Standard Wash Open OHV area near the communities of Lake Havasu City in Mohave County, Arizona. The temporary closure applies to all public use, including pedestrian and vehicle, unless excepted. The temporary closure area follows the event racecourse. The temporary restriction area applies to the remaining public lands in the Standard Wash Open OHV area as designated in the 2007 Lake Havasu Field Office Approved Resource Management Plan and Record of Decision. Within the temporary restriction area, the temporary restrictions apply in addition to all existing regulations.
On September 4, 2020, the decision record authorizing off-road high-speed events within the Standard Wash Open OHV area was signed. The environmental assessment analyzing these routes (EA #DOI-BLM-AZ-C030-2020-0043) concluded that allowing permitted motorized racers exclusive use of the designated open OHV area would mitigate safety concerns.
The temporary closure and restrictions are necessary because of the high-speed nature of the race event and the added safety concerns due to limited visibility during nighttime. Roads leading into the public lands under the temporary closure and restrictions will be posted with copies of the temporary closure, temporary restrictions, and associated maps to notify the public. The temporary closure and restriction orders will also be posted in the Lake Havasu Field Office and online at
The closures and restrictions are issued under the authority of 43 CFR 8364.1, which allows the BLM to establish closures and restrictions for the protection of persons, property, and public lands and resources. Violation of any of the terms, conditions, or restrictions contained within this closure and restrictions order may subject the violator to citation or arrest with a penalty of a fine or imprisonment or both as specified by law.
a. The designated racecourse is closed to public entry during the temporary closure, with the following exceptions:
i. The person is an employee or authorized volunteer with the BLM, a law enforcement officer, emergency medical service provider, fire protection provider, or another public agency employee working at and assigned to the event;
ii. The person is working at or attending the event directly on behalf of the permit holder.
b. Motor vehicles may be operated within the temporary closure area under the circumstances listed below:
i. Race participants and support vehicles on designated routes;
ii. BLM, medical, law enforcement, and firefighting vehicles are authorized at all times;
iii. Vehicles operated by the permit holder's staff or contractors and volunteers are authorized at all times. These vehicles must display evidence of event registration at all times in such manner that it is visible on the front of the vehicle while the vehicle is in motion.
a. Cutting or collecting firewood of any kind, including dead and downed wood or other vegetative material, is prohibited.
b. Grey Water Discharge: The discharge and dumping of grey water onto the ground surface is prohibited. Grey water is defined as water that has been used for cooking, washing, dishwashing, or bathing and/or contains soap, detergent, food scraps, or food residue, regardless of whether such products are biodegradable or have been filtered or disinfected.
c. Human Waste: The depositing of human waste (liquid and/or solid) on the ground surface is prohibited.
a. Possession of alcohol by minors is prohibited. Selling or offering to sell any alcoholic beverage on public lands under this notice is prohibited.
a. The possession of drugs and/or drug paraphernalia is prohibited.
a. Disorderly conduct is prohibited. No person shall cause a public disturbance or create a risk to other persons on public lands by engaging in activities which include, but are not limited to, the following:
i. Making unreasonable noise;
ii. Creating a hazard or nuisance;
iii. Refusing to disperse when directed to do so by an authorized officer;
iv. Resisting arrest or issuance of citation by an authorized officer engaged in performance of official duties; interfering with any Bureau of Land Management employee or volunteer engaged in performance of official duties;
v. Assaulting, committing a battery upon, or
vi. Knowingly giving any false or fraudulent report of an emergency situation or crime to any Bureau of Land Management employee or volunteer
a. The temporary restriction area is closed to any person who:
i. Has been evicted from the event by the permit holder, whether or not the eviction was requested by an employee or other authorized representative of the BLM;
ii. Has been evicted from the event by an employee or other authorized representative of the BLM; or
iii. Has been ordered by a federal, state, local, or Tribal law enforcement officer to leave the area of the permitted event.
b. Any person evicted from the event forfeits all privileges to be present within the temporary restriction area.
a. Motor vehicles must comply with the following requirements:
i. Motor vehicle operators must possess evidence of valid vehicle insurance.
ii. Motor vehicles and trailers must not block a street used for vehicular travel or a pedestrian pathway. Parking any off-highway vehicle in violation of posted restrictions; or in such a manner as to obstruct or impede normal or emergency traffic movement or the parking of other vehicles; creating a safety hazard; or endangering any person, property, or feature, is prohibited. Vehicles parked in violation are subject to citation, removal, and/or impoundment at the owner's expense.
iii. Operating a vehicle through, around, or beyond a restrictive sign, barricade, fence, or traffic control barrier or device is prohibited.
iv. Failure to obey any person authorized to direct traffic or control access to event area including federal, state, local, and Tribal law enforcement officers, BLM employees and their authorized representatives, and designated race officials is prohibited.
a. The temporary restriction area is closed to public camping with the following exceptions:
i. The permitted event's spectators, who are camped in designated spectator areas, as marked by protective fencing, barriers, and informational signage provided by the permit holder; and
ii. The permit holder's authorized staff, contractors, and BLM-authorized event managers.
b. Spectator area site reservations, or denying other visitors or parties from utilizing unoccupied portions of the spectator area by marking with flags, tape, posts, cones, etc., are prohibited. Vehicles and trailers may not be left unattended for over 72 hours.
c. Failure to observe restricted area quiet hours of midnight to 6 a.m. is prohibited.
a. Discharging or use of firearms or other weapons is prohibited.
b. The prohibition above shall not apply to federal, state, local, and Tribal law enforcement personnel who are working in their official capacity at the event.
a. Failure to obey any official sign posted by the BLM, federal, state, local, and Tribal law enforcement, La Paz County, or the permit holder is prohibited.
The following list of existing regulations is not intended to be comprehensive. A complete list of laws and regulations applicable to public lands in Arizona may be viewed at:
a. No person may deface, disturb, remove, or destroy any natural object—43 CFR 8365.1-5(a)(1).
b. Fireworks: The use, sale, or possession of personal fireworks is prohibited—43 CFR 9212.1 (h).
c. Black Water Discharge: The discharge and dumping of black water onto the ground surface is prohibited. Black water is defined as wastewater containing feces, urine, and/or flush water—43 CFR 8365.1-1(b)(3).
d. Trash: The discharge of any and all trash/litter onto the ground surface is prohibited. All event participants must pack out or properly dispose of all trash at an appropriate disposal facility—43 CFR 8365.1-1(b)(1).
e. Hazardous Materials: The dumping or discharge of vehicle oil, petroleum products, or other hazardous household, commercial, or industrial refuse or waste onto the ground surface is prohibited. This applies to all recreational vehicles, trailers, motorhomes, port-a-potties, generators, and other camp infrastructure—43 CFR 8365.1-1(b)(3).
a. Possession of an open container of an alcoholic beverage by the driver or operator of any motorized vehicle, whether or not the vehicle is in motion, is prohibited—43 CFR 8365.1-6.
b. Possession of alcohol by minors. Consumption or possession of any alcoholic beverage by a person under 21 years of age on public lands is prohibited—43 CFR 8365.1-6, Supplementary Rule 63 FR 43716.
c. Operation of a motor vehicle while under the influence of alcohol, marijuana, narcotics, or dangerous drugs is prohibited—43 CFR 8341.1(f)(3).
a. Obstructing, resisting, or attempting to elude a law enforcement officer, or failing to follow their orders or directions is prohibited—43 CFR 8365.1-4(a)(4).
a. Motor vehicles must comply with the following requirements:
i. The operator of a motor vehicle must possess a valid driver's license—43 CFR 8341.1(e).
ii. Motor vehicles and trailers must possess evidence of valid registration—43 CFR 8341.1(d).
iii. Motor vehicles must not exceed the posted speed limit—43 CFR 8341.1(f)(2).
a. Allowing any pet or other animal to be unrestrained is prohibited. All pets must be restrained by a leash of not more than six feet in length—43 CFR 8365.2-1(c).
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission (“Commission”) has determined not to review an initial determination (“ID”) (Order No. 23) of the presiding administrative law judge (“ALJ”) granting the unopposed motion of respondents Katun Corporation (“Katun”) and General Plastic Industrial Co. Ltd. (“General Plastic”) to terminate the modification proceeding based on withdrawal of their petition for modification. The modification proceeding is hereby terminated.
Lynde Herzbach, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-3228. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
On April 13, 2021, the Commission instituted this investigation under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 (“section 337”), based on a complaint filed by Canon Inc. of Tokyo, Japan; Canon U.S.A., Inc. of Melville, New York; and Canon Virginia, Inc. of Newport News, Virginia (collectively, “Complainants”).
The Commission instituted two separate investigations based on the complaint and defined the scope of the present investigation as whether there is a violation of section 337 in the importation, sale for importation, or sale within the United States after importation of toner supply containers and components thereof by reason of infringement of certain claims the '667 patent, the '060 patent, the '061 patent, the '957 patent, the '814 patent, the '032 patent, the '033 patent, the '654 patent, the '881 patent, and the '882 patent (collectively, “the Asserted Patents”).
The complaint and NOI were later amended to correct the name of a respondent. Order No. 5 (May 13, 2021),
Twenty-two of the named respondents were later found in default (hereinafter, “Defaulting Respondents”).
The Commission also terminated the investigation as to certain claims of the Asserted Patents. Order No. 11,
On August 1, 2022, the Commission affirmed an initial determination issued by the presiding ALJ, granting summary determination of a violation of section 337 with respect to Defaulting Respondents. 87 FR 48039-41 (Aug. 5, 2022). Accordingly, the Commission issued: (1) a GEO prohibiting the unlicensed entry of certain toner supply containers and components thereof that infringe one or more of claim 1 of the '667 patent; claim 1 of the '060 patent; claim 1 of the '061 patent; claim 1 of the '957 patent; claims 1 and 12 of the '814 patent; claims 50, 58, and 61 of the '032 patent; claims 1 and 13 of the '033 patent; claims 46 and 50 of the '654 patent; claims 1, 10, and 13 of the '881 patent; or claims 1 and 8 of the '882 patent; and (2) CDOs against certain of Defaulting Respondents.
On April 25, 2023, respondents Katun and General Plastic filed a petition pursuant to Commission Rule 210.76 (19 CFR 210.76) to modify the GEO in order to clarify that the order does not cover certain Katun and General Plastic redesigned toner supply containers. On May 5, 2023, Complainants filed an opposition to the petition. OUII did not file a response to the petition.
On June 1, 2023, the Commission instituted a modification proceeding, pursuant to Commission Rule 210.76(a) (19 CFR 210.76(a)), to determine whether certain redesigned toner supply containers of Katun and General Plastic infringe the '667 patent, the '060 patent, the '061 patent, the '957 patent, the '814 patent, the '032 patent, the '033 patent, the '654 patent, the '881 patent, or the '882 patent. 88 FR 35915-35917 (June 1, 2023).
On July 3, 2023, Katun and General Plastic filed a motion to terminate the modification proceeding based on the withdrawal of their petition. That same day, Complainants filed a response stating that Complainants do not oppose the motion but reserve their right to oppose institution of any future proceeding. On July 5, 2023, OUII filed a response supporting the motion to terminate.
On July 11, 2023, the presiding ALJ issued the subject ID granting Katun's and General Plastic's motion to terminate the modification proceeding pursuant to Commission Rule 210.21(a)(1) (19 CFR 210.21(a)(1)). Order No. 23 (July 11, 2023). The ID finds that the motion complies with the Commission's rules and that there are no extraordinary circumstances that might justify denying the motion. No party petitioned for review of the subject ID.
The Commission has determined not to review the subject ID. The modification proceeding is terminated.
The Commission vote for this determination took place on August 9, 2023.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as
By order of the Commission.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Employee Benefits Security Administration (EBSA)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that the agency receives on or before September 14, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Comments are invited on: (1) whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Nicole Bouchet by telephone at 202-693-0213, or by email at
This information collection requires plan fiduciaries to disclose plan- and investment-related fee and expense information to participants and beneficiaries in all participant directed individual account plans (
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number. See 5 CFR 1320.5(a) and 1320.6.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, OSHA announces the application of Intertek Testing Services NA, Inc., for expansion of the scope of recognition as a Nationally Recognized Testing Laboratory (NRTL) and presents the agency's preliminary finding to grant the application.
Submit comments, information, and documents in response to this notice, or requests for an extension of time to make a submission, on or before August 30, 2023.
Comments may be submitted as follows:
OSHA will place comments, including personal information, in the public docket, which will be available online. Therefore, OSHA cautions interested parties about submitting personal information such as Social Security numbers and birthdates.
Information regarding this notice is available from the following sources:
OSHA is providing notice that Intertek Testing Services NA, Inc. (ITSNA), is applying for an expansion of current recognition as a NRTL. ITSNA requests the addition of 23 test sites to its NRTL scope of recognition.
OSHA recognition of a NRTL signifies that the organization meets the requirements specified in 29 CFR 1910.7. Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within the scope of recognition. Each NRTL's scope of recognition includes (1) the type of products the NRTL may test, with each type specified by the applicable test standard and (2) the recognized site(s) that has/have the technical capability to perform the product-testing and product-certification activities for test standards within the NRTL's scope. Recognition is not a delegation or grant of government authority; however, recognition enables employers to use products approved by the NRTL to meet OSHA standards that require product testing and certification.
The agency processes applications by a NRTL for initial recognition, as well as for an expansion or renewal of recognition, following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the agency publish two notices in the
ITSNA currently has 13 facilities (sites) recognized by OSHA for product testing and certification, with the headquarters located at: Intertek Testing Services NA, Inc., 545 East Algonquin Road, Suite F, Arlington Heights, Illinois 60005. A complete list of ITSNA's scope of recognition is available at
ITSNA submitted an application, dated December 18, 2020 (OSHA-2007-0039-0047), requesting the conversion of 23 existing Satellite Notification Acceptance Program (SNAP) sites to recognized sites under the NRTL Policy for Transitioning to Satellite Notification and Acceptance Program Termination (SNAP Transition Policy) published in the
Table 1, below, lists the 23 sites that ITSNA's application requested for inclusion in the NRTL's expanded scope of recognition:
OSHA has preliminarily determined that it is appropriate to review this application under the SNAP Transition Policy. ITSNA's application was timely submitted under that policy, and OSHA preliminarily finds that the SNAP sites in ITSNA's application met all other preconditions of eligibility for conversion to recognized sites under the policy (See SNAP Termination Policy, part III 1.a-g, 85 FR at 75047). OSHA also preliminarily decided that it was not necessary to conduct on-site reviews in connection with ITSNA's expansion application, based on historical assessment records and supporting documentation submitted by ITSNA. Moreover, OSHA staff performed assessments of several ITSNA facilities included in the SNAP conversion application from June 2020 to November 2022, and, while assessors found some nonconformances with the requirements of 29 CFR 1910.7, ITSNA addressed these issues sufficiently. OSHA staff has preliminarily determined that OSHA should grant the application and grant recognition to the 23 sites requested in the application.
ITSNA submitted an acceptable application for expansion of its scope of recognition. OSHA's review of the application file and pertinent documentation indicates that ITSNA can meet the requirements prescribed by 29 CFR 1910.7 for expanding its recognition to include the addition of the 23 additional test sites for NRTL testing and certification. This preliminary finding does not constitute an interim or temporary approval of ITSNA's application.
OSHA seeks public comment on this preliminary determination.
OSHA welcomes public comment as to whether ITSNA meets the requirements of 29 CFR 1910.7 for expansion of recognition as a NRTL. Comments should consist of pertinent written documents and exhibits.
Commenters needing more time to comment must submit a request in writing, stating the reasons for the request by the due date for comments. OSHA will limit any extension to 10 days unless the requester justifies a longer time period. OSHA may deny a request for an extension if it is not adequately justified.
To review copies of the exhibit identified in this notice, as well as comments submitted to the docket, contact the Docket Office, Occupational Safety and Health Administration, U.S. Department of Labor. These materials also are generally available online at
OSHA staff will review all comments to the docket submitted in a timely manner. After addressing the issues raised by these comments, staff will make a recommendation to the Assistant Secretary of Labor for Occupational Safety and Health on whether to grant ITSNA's application for expansion of the scope of recognition. The Assistant Secretary will make the final decision on granting the application. In making this decision, the Assistant Secretary may undertake other proceedings prescribed in Appendix A to 29 CFR 1910.7.
OSHA will publish a public notice of the final decision in the
James S. Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue NW, Washington, DC 20210, authorized the preparation of this notice. Accordingly, the agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2), Secretary of Labor's Order No. 8-2020 (85 FR 58393; Sept. 18, 2020), and 29 CFR 1910.7.
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, OSHA announces the application of TUV SUD America, Inc., for expansion of the scope of recognition as a Nationally Recognized Testing Laboratory (NRTL) and presents the agency's preliminary finding to grant the application.
Submit comments, information, and documents in response to this notice, or requests for an extension of time to make a submission, on or before August 30, 2023.
Comments may be submitted as follows:
OSHA will place comments, including personal information, in the public docket, which will be available online. Therefore, OSHA cautions
Information regarding this notice is available from the following sources:
OSHA is providing notice that TUV SUD America, Inc. (TUVAM), is applying for an expansion of current recognition as a NRTL. TUVAM requests the addition of nine test sites to its NRTL scope of recognition.
OSHA recognition of a NRTL signifies that the organization meets the requirements specified in 29 CFR 1910.7. Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within the scope of recognition. Each NRTL's scope of recognition includes (1) the type of products the NRTL may test, with each type specified by the applicable test standard and (2) the recognized site(s) that has/have the technical capability to perform the product-testing and product-certification activities for test standards within the NRTL's scope. Recognition is not a delegation or grant of government authority; however, recognition enables employers to use products approved by the NRTL to meet OSHA standards that require product testing and certification.
The agency processes applications by a NRTL for initial recognition, as well as for an expansion or renewal of recognition, following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the agency publish two notices in the
TUVAM currently has 7 facilities (sites) recognized by OSHA for product testing and certification, with the headquarters located at: TUV SUD America, Inc., 401 Edgewater Place, Suite #500, Wakefield, Massachusetts 01880. A complete list of TUVAM's scope of recognition is available at
TUVAM submitted an application, dated January 24, 2021 (OSHA-2007-0043-0045), requesting the conversion of ten existing Satellite Notification Acceptance Program (SNAP) sites to recognized sites under the NRTL Policy for Transitioning to Satellite Notification and Acceptance Program Termination (SNAP Transition Policy) published in the
Table 1 below, lists the nine sites that TUVAM's application requested for inclusion in the NRTL's expanded scope of recognition:
OSHA has preliminarily determined that it is appropriate to review this application under the SNAP Transition Policy. TUVAM's application was timely submitted under that policy, and OSHA preliminarily finds that the SNAP sites in TUVAM's application met all other preconditions of eligibility for conversion to recognized sites under the policy (See SNAP Transition Policy, part III 1.a-g, 85 FR at 75047). OSHA also preliminarily decided that it was not necessary to conduct on-site reviews in connection with TUVAM's expansion application, based on historical assessment records and supporting documentation submitted by TUVAM. Moreover, OSHA staff performed assessments of several TUVAM facilities included in the SNAP conversion application from June 2020 to November 2022, and, while assessors found some nonconformances with the requirements of 29 CFR 1910.7, TUVAM addressed these issues sufficiently. OSHA staff has preliminarily determined that OSHA should grant the application and grant recognition to the nine sites requested in the application.
TUVAM submitted an acceptable application for expansion of its scope of recognition. OSHA's review of the application file and pertinent documentation indicates that TUVAM can meet the requirements prescribed by 29 CFR 1910.7 for expanding its recognition to include the addition of the nine additional test sites for NRTL testing and certification. This preliminary finding does not constitute an interim or temporary approval of TUVAM's application.
OSHA seeks public comment on this preliminary determination.
OSHA welcomes public comment as to whether TUVAM meets the requirements of 29 CFR 1910.7 for expansion of recognition as a NRTL. Comments should consist of pertinent written documents and exhibits.
Commenters needing more time to comment must submit a request in writing, stating the reasons for the request by the due date for comments. OSHA will limit any extension to 10 days unless the requester justifies a longer time period. OSHA may deny a request for an extension if it is not adequately justified.
To review copies of the exhibit identified in this notice, as well as comments submitted to the docket, contact the Docket Office, Occupational Safety and Health Administration, U.S. Department of Labor. These materials also are generally available online at
OSHA staff will review all comments to the docket submitted in a timely manner. After addressing the issues raised by these comments, staff will make a recommendation to the Assistant Secretary of Labor for Occupational Safety and Health on whether to grant TUVAM's application for expansion of the scope of recognition. The Assistant Secretary will make the final decision on granting the application. In making this decision, the Assistant Secretary may undertake other proceedings prescribed in Appendix A to 29 CFR 1910.7.
OSHA will publish a public notice of the final decision in the
James S. Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue NW, Washington, DC 20210, authorized the preparation of this notice. Accordingly, the agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2), Secretary of Labor's Order No. 8-2020 (85 FR 58393; Sept. 18, 2020), and 29 CFR 1910.7.
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, OSHA announces the application of CSA Group Testing & Certification, Inc., for expansion of the scope of recognition as a Nationally Recognized Testing Laboratory (NRTL) and presents the agency's preliminary finding to grant the application.
Submit comments, information, and documents in response to this notice, or requests for an extension of time to make a submission, on or before August 30, 2023.
Comments may be submitted as follows:
OSHA will place comments, including personal information, in the public docket, which will be available online. Therefore, OSHA cautions interested parties about submitting personal information such as Social Security numbers and birthdates.
Information regarding this notice is available from the following sources:
OSHA is providing notice that CSA Group Testing & Certification, Inc. (CSA), is applying for an expansion of current recognition as a NRTL. CSA requests the addition of sixteen test sites to its NRTL scope of recognition.
OSHA recognition of a NRTL signifies that the organization meets the requirements specified in 29 CFR 1910.7. Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within the scope of recognition. Each NRTL's scope of recognition includes (1) the type of products the NRTL may test, with each type specified by the applicable test standard and (2) the recognized site(s) that has/have the technical capability to perform the product-testing and product-certification activities for test standards within the NRTL's scope. Recognition is not a delegation or grant of government authority; however, recognition enables employers to use products approved by the NRTL to meet OSHA standards that require product testing and certification.
The agency processes applications by a NRTL for initial recognition, as well as for an expansion or renewal of recognition, following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the agency publish two notices in the
CSA currently has six facilities (sites) recognized by OSHA for product testing and certification, with the headquarters located at: CSA Group Testing & Certification, Inc., 178 Rexdale Boulevard, Etiobicoke, Ontario M9W 1R3. A complete list of CSA's scope of recognition is available at
CSA submitted an application, dated December 15, 2020 (OSHA-2006-0042-0034), requesting the conversion of sixteen existing Satellite Notification Acceptance Program (SNAP) sites to recognized sites under the NRTL Policy for Transitioning to Satellite Notification and Acceptance Program Termination (SNAP Transition Policy) published in the
Table 1, below, lists the sixteen sites that CSA's application requested for inclusion in the NRTL's expanded scope of recognition:
OSHA has preliminarily determined that it is appropriate to review this application under the SNAP Transition Policy. CSA's application was timely submitted under that policy, and OSHA preliminarily finds that the SNAP sites in CSA's application met all other preconditions of eligibility for conversion to recognized sites under the policy (See SNAP Termination Policy, part III 1.a-g, 85 FR at 75047). OSHA also preliminarily decided that it was not necessary to conduct on-site reviews in connection with CSA's expansion application, based on historical assessment records and supporting documentation submitted by CSA. Moreover, OSHA staff performed assessments of several CSA facilities included in the SNAP conversion application from June 2020 to November 2022, and, while assessors found some nonconformances with the requirements of 29 CFR 1910.7, CSA addressed these issues sufficiently. OSHA staff has preliminarily determined that OSHA should grant the application and grant recognition to the sixteen sites requested in the application.
CSA submitted an acceptable application for expansion of its scope of recognition. OSHA's review of the application files and pertinent documentation indicates that CSA can meet the requirements prescribed by 29 CFR 1910.7 for expanding its recognition to include the addition of the sixteen additional test sites for NRTL testing and certification. This preliminary finding does not constitute an interim or temporary approval of CSA's application.
OSHA seeks public comment on this preliminary determination.
OSHA welcomes public comment as to whether CSA meets the requirements of 29 CFR 1910.7 for expansion of recognition as a NRTL. Comments should consist of pertinent written documents and exhibits.
Commenters needing more time to comment must submit a request in writing, stating the reasons for the request by the due date for comments. OSHA will limit any extension to 10 days unless the requester justifies a longer time period. OSHA may deny a request for an extension if it is not adequately justified.
To review copies of the exhibit identified in this notice, as well as comments submitted to the docket, contact the Docket Office, Occupational Safety and Health Administration, U.S. Department of Labor. These materials also are generally available online at
OSHA staff will review all comments to the docket submitted in a timely manner. After addressing the issues raised by these comments, staff will make a recommendation to the Assistant Secretary of Labor for Occupational Safety and Health on whether to grant CSA's application for expansion of the scope of recognition. The Assistant Secretary will make the final decision on granting the application. In making this decision, the Assistant Secretary may undertake other proceedings prescribed in Appendix A to 29 CFR 1910.7.
OSHA will publish a public notice of the final decision in the
James S. Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue NW, Washington, DC 20210, authorized the preparation of this notice. Accordingly, the agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2), Secretary of Labor's Order No. 8-2020 (85 FR 58393; Sept. 18, 2020), and 29 CFR 1910.7.
Occupational Safety and Health Administration (OSHA), Labor.
Notice.
In this notice, OSHA announces the application of TUV Rheinland of North America, Inc., for expansion of the scope of recognition as a Nationally Recognized Testing Laboratory (NRTL) and presents the agency's preliminary finding to grant the application.
Submit comments, information, and documents in response to this notice, or requests for an extension of time to make a submission, on or before August 30, 2023.
Comments may be submitted as follows:
Information regarding this notice is available from the following sources:
OSHA is providing notice that TUV Rheinland of North America, Inc. (TUVRNA), is applying for an expansion of current recognition as a NRTL. TUVRNA requests the addition of four test standards to the NRTL scope of recognition.
OSHA recognition of a NRTL signifies that the organization meets the requirements specified in 29 CFR 1910.7. Recognition is an acknowledgment that the organization can perform independent safety testing and certification of the specific products covered within the scope of recognition. Each NRTL's scope of recognition includes (1) the type of products the NRTL may test, with each type specified by the applicable test standard and (2) the recognized site(s) that has/have the technical capability to perform the product-testing and product-certification activities for test standards within the NRTL's scope. Recognition is not a delegation or grant of government authority; however, recognition enables employers to use products approved by the NRTL to meet OSHA standards that require product testing and certification.
The agency processes applications by a NRTL for initial recognition, as well as for an expansion or renewal of recognition, following requirements in Appendix A to 29 CFR 1910.7. This appendix requires that the agency publish two notices in the
TUVRNA currently has ten facilities (sites) recognized by OSHA for product testing and certification, with the headquarters located at: TUV Rheinland of North America, Inc., 295 Foster Street, Suite 100, Littleton, Massachusetts 01460. A complete list of TUVRNA sites recognized by OSHA is available at
TUVRNA submitted an application, dated June 3, 2021 (OSHA-2007-0042-0068), to expand recognition as a NRTL to include four additional test standards. OSHA staff performed a detailed analysis of the application packet and reviewed other pertinent information. OSHA did not perform any on-site reviews in relation to this application.
Table 1 shows the test standards found in TUVRNA's application for expansion for testing and certification of products under the NRTL Program.
TUVRNA submitted an acceptable application for expansion of the scope of recognition. OSHA's review of the application file and pertinent documentation preliminarily indicates that TUVRNA can meet the requirements prescribed by 29 CFR 1910.7 for expanding its recognition to include the addition of these four test standards shown in Table 1, above, for NRTL testing and certification. This preliminary finding does not constitute an interim or temporary approval of TUVRNA's application.
OSHA seeks public comment on this preliminary determination.
OSHA welcomes public comment as to whether TUVRNA meets the requirements of 29 CFR 1910.7 for expansion of recognition as a NRTL. Comments should consist of pertinent written documents and exhibits.
Commenters needing more time to comment must submit a request in writing, stating the reasons for the request by the due date for comments. OSHA will limit any extension to 10 days unless the requester justifies a longer time period. OSHA may deny a request for an extension if it is not adequately justified.
To review copies of the exhibits identified in this notice, as well as comments submitted to the docket, contact the Docket Office, Occupational Safety and Health Administration, U.S. Department of Labor. These materials also are generally available online at
OSHA staff will review all comments to the docket submitted in a timely manner. After addressing the issues
OSHA will publish a public notice of the final decision in the
James S. Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, 200 Constitution Avenue NW, Washington, DC 20210, authorized the preparation of this notice. Accordingly, the agency is issuing this notice pursuant to 29 U.S.C. 657(g)(2), Secretary of Labor's Order No. 8-2020 (85 FR 58393; Sept. 18, 2020), and 29 CFR 1910.7.
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces the following meeting:
The meeting will be held as a hybrid, with some Advisory Committee members participating in person and others participating virtually. For members of NSF and the external community, livestreaming will be accessible through the following pages:
Additional sub-links for planned breakout sessions will be forthcoming on the BIO AC website prior to the meeting at:
Securities and Exchange Commission (“Commission” or “SEC”).
Notice.
Notice of application for an order (“Order”) under sections 6(b) and 6(e) of the Investment Company Act of 1940 (the “Act”) granting an exemption from all provisions of the Act, except sections 9, 17, 30, and 36 through 53, and the rules and regulations under the Act (the “Rules and Regulations”). With respect to sections 17(a), (d), (e), (f), (g), and (j) of the Act, sections 30(a), (b), (e), and (h) of the Act and the Rules and Regulations and rule 38a 1 under the Act, applicants request a limited exemption as set forth in the application.
Applicants request an order to exempt certain limited partnerships, limited liability companies, corporations, business or statutory trusts or other entities (“Partnership”) formed for the benefit of eligible employees of Apollo Global Management, Inc. and its affiliates from certain provisions of the Act. Each Partnership, and each series thereof (to the extent such series is an issuer for purposes of the Act), will be an “employees' securities company” within the meaning of section 2(a)(13) of the Act.
Apollo Global Management, Inc.
The application was filed on May 16, 2022 and amended on November 2, 2022, April 13, 2023, July 19, 2023, and July 28, 2023.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing on any application by emailing the SEC's Secretary at
The Commission:
Jessica D. Leonardo, Senior Counsel, or Marc Mehrespand, Branch Chief, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
For Applicants' representations, legal analysis, and conditions, please refer to Applicants' fourth amended and restated application, dated July 28, 2023, which may be obtained via the Commission's website by searching for the file number at the top of this document, or for an Applicant using the Company name search field, on the SEC's EDGAR system.
The SEC's EDGAR system may be searched at,
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
SCCP is filing a proposed rule change regarding a stockholders' agreement by and among the Exchange's parent corporation, Nasdaq, Inc. (“Nasdaq”), Adenza Parent, LP, a Delaware limited partnership (“Seller”), and the other parties thereto (“Stockholders' Agreement”). The Stockholders' Agreement will be implemented upon closing under the Merger Agreement (as defined below).
The text of the proposed rule change is available on the SCCP's website at
In its filing with the Commission, SCCP included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. SCCP has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
On June 10, 2023, Nasdaq entered into an Agreement and Plan of Merger (the “Merger Agreement”) by and among Nasdaq, Argus Merger Sub 1, Inc., a Delaware corporation and a direct wholly owned subsidiary of Nasdaq, Argus Merger Sub 2, LLC, a Delaware limited liability company and a direct wholly owned subsidiary of Nasdaq, Adenza Holdings, Inc., a Delaware corporation (“Adenza”), and Seller. Pursuant to the Merger Agreement, and upon the terms and subject to the conditions therein, Nasdaq will acquire 100% of the stock of Adenza (the “Transaction”). As a result of the Transaction, Seller is expected to hold, at closing, approximately 15% of the outstanding Nasdaq common stock based upon the outstanding shares of Nasdaq common stock as of June 9, 2023.
Adenza and Seller are affiliates of certain funds managed by Thoma Bravo, L.P., a Delaware limited partnership (“Thoma Bravo”).
The Stockholders' Agreement relates solely to the Nasdaq Board, and not to the boards of any of its subsidiaries, including the SCCP Board. Nevertheless, the provisions of the Stockholders' Agreement described above could be considered a proposed rule change of a subsidiary that is a self-regulatory organization (“SRO”), if the provisions were viewed as potentially impacting the governance of an SRO in its capacity as wholly-owned subsidiary of Nasdaq. Accordingly, the governing boards of directors of SCCP and its affiliated SROs have each reviewed the proposed change and determined that it should be filed with the Commission.
It is expected that the Board Designee, like the other directors of the Nasdaq Board, would be nominated by the Nominating & Governance Committee, the composition of which is subject to the independence requirements of the Nasdaq By-Laws and NSM Rule 5605.
SCCP believes that its proposal is consistent with section 17A(b)(3)(A) of the Act,
The proposal related to the Stockholders' Agreement would not impact SCCP's ability to be so organized as to have the capacity to be able to carry out the purposes of the Exchange Act. In particular, the proposed changes would not alter the limitations on voting and ownership set forth in Article Fourth of Nasdaq's Amended and Restated Certificate of Incorporation, and so the proposed changes would not enable a person to exercise undue control over the operations of Nasdaq's self-regulatory subsidiaries or to restrict the ability of the Commission or SCCP to effectively carry out their regulatory oversight responsibilities under the Act. Further, as discussed above, it is expected that the Board Designee, like the other directors of the Nasdaq Board, would be nominated by the Nominating & Governance Committee, whose members are subject to the independence requirements of the Nasdaq By-Laws and NSM Rule 5605. Further, the Board Designee must then be elected by the stockholders of Nasdaq, like the other directors of the Nasdaq Board. The Nasdaq Board is currently composed of 11 directors and is expected to increase to 12 directors upon the closing of the Transaction. Thus, the Board Designee would represent a small percentage (approximately 8.3%) of the Nasdaq Board.
SCCP also notes that the proposed rule change is substantially similar to prior proposals by SCCP or its affiliated SROs related to Nasdaq stockholders' agreements that gave similar rights to recommend Nasdaq Board designees.
Because the proposed rule change is related solely to Thoma Bravo's right to nominate the Board Designee to the Nasdaq Board pursuant to the Stockholders' Agreement and not to the operations of SCCP, SCCP does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
BSECC is filing a proposed rule change regarding a stockholders' agreement by and among the Exchange's parent corporation, Nasdaq, Inc. (“Nasdaq”), Adenza Parent, LP, a Delaware limited partnership (“Seller”), and the other parties thereto (“Stockholders' Agreement”). The Stockholders' Agreement will be implemented upon closing under the Merger Agreement (as defined below).
The text of the proposed rule change is available on BSECC's website at
In its filing with the Commission, BSECC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. BSECC has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
On June 10, 2023, Nasdaq entered into an Agreement and Plan of Merger (the “Merger Agreement”) by and among Nasdaq, Argus Merger Sub 1, Inc., a Delaware corporation and a direct wholly owned subsidiary of Nasdaq, Argus Merger Sub 2, LLC, a Delaware limited liability company and a direct wholly owned subsidiary of Nasdaq, Adenza Holdings, Inc., a Delaware corporation (“Adenza”), and Seller. Pursuant to the Merger Agreement, and upon the terms and subject to the conditions therein, Nasdaq will acquire 100% of the stock of Adenza (the “Transaction”). As a result of the Transaction, Seller is expected to hold, at closing, approximately 15% of the outstanding Nasdaq common stock based upon the outstanding shares of Nasdaq common stock as of June 9, 2023.
Adenza and Seller are affiliates of certain funds managed by Thoma Bravo, L.P., a Delaware limited partnership (“Thoma Bravo”).
The Stockholders' Agreement relates solely to the Nasdaq Board, and not to the boards of any of its subsidiaries, including the BSECC Board. Nevertheless, the provisions of the Stockholders' Agreement described above could be considered a proposed rule change of a subsidiary that is a self-regulatory organization (“SRO”), if the provisions were viewed as potentially impacting the governance of an SRO in its capacity as wholly-owned subsidiary of Nasdaq. Accordingly, the governing boards of directors of BSECC and its affiliated SROs have each reviewed the proposed change and determined that it should be filed with the Commission.
It is expected that the Board Designee, like the other directors of the Nasdaq Board, would be nominated by the Nominating & Governance Committee, the composition of which is subject to the independence requirements of the Nasdaq By-Laws and NSM Rule 5605.
BSECC believes that its proposal is consistent with section 17A(b)(3)(A) of the Act,
The proposal related to the Stockholders' Agreement would not impact BSECC's ability to be so organized as to have the capacity to be able to carry out the purposes of the Exchange Act. In particular, the proposed changes would not alter the limitations on voting and ownership set forth in Article Fourth of Nasdaq's Amended and Restated Certificate of Incorporation, and so the proposed changes would not enable a person to exercise undue control over the operations of Nasdaq's self-regulatory subsidiaries or to restrict the ability of the Commission or BSECC to effectively carry out their regulatory oversight responsibilities under the Act. Further, as discussed above, it is expected that the Board Designee, like the other directors of the Nasdaq Board, would be nominated by the Nominating & Governance Committee, whose members are subject to the independence requirements of the Nasdaq By-Laws and NSM Rule 5605. Further, the Board Designee must then be elected by the stockholders of Nasdaq, like the other directors of the Nasdaq Board. The Nasdaq Board is currently composed of 11 directors and is expected to increase to 12 directors upon the closing of the Transaction. Thus, the Board Designee would represent a small percentage (approximately 8.3%) of the Nasdaq Board.
BSECC also notes that the proposed rule change is substantially similar to prior proposals by BSECC or its affiliated SROs related to Nasdaq stockholders' agreements that gave similar rights to recommend Nasdaq Board designees.
Because the proposed rule change is related solely to Thoma Bravo's right to nominate the Board Designee to the Nasdaq Board pursuant to the Stockholders' Agreement and not to the operations of BSECC, BSECC does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Options 4, Section 3, Criteria For Underlying Securities. The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Options 4, Section 3, Criteria For Underlying Securities. ISE is proposing a listing rule change that is substantially similar in all material respects to the proposal approved for NYSE American LLC (“NYSE American”).
ISE Options 4, Section 3(b)(5) sets forth the guidelines to be considered in evaluating for option transactions
The Exchange notes that the three-day lookback period helps ensure that options on underlying securities may be listed and traded in a timely manner while also allowing time for OCC to accommodate the certification request. However, there are certain large IPOs that issue high-priced securities—well above the $3.00 per share threshold—that would obviate the need for the three-day lookback period. In this regard, NYSE American noted in its rule change that the Industry Working Group identified proposed changes that would help options on covered securities that have a market capitalization of at least $3 billion based upon the offering price of its IPO come to market earlier.
Accordingly, the Exchange proposes to modify Options 4, Section 3 to waive the three-day lookback period for covered securities that have a market capitalization of at least $3 billion based upon the offering price of the IPO of such securities and to allow options on such securities to be listed and traded starting on or after the second business day following the initial public offering day (
Under the proposed rule, if an IPO for a company with a market capitalization of $3 billion based upon the offering price of its IPO occurs on a Monday, the Exchange could submit its listing certificate to OCC (to list and trade options on the IPO'd security) as soon as all the other requirements for listing are satisfied. If, on Tuesday, all requirements are deemed satisfied, the IPO'd security could then be eligible for trading on the Exchange on Wednesday (
The Exchange believes the proposed change would allow options on IPO'd securities to come to market sooner without sacrificing investor protection. The Exchange represents that trading in IPO'd securities—like all other securities traded on the Exchange—is subject to surveillances administered by the Exchange and to cross-market surveillances administered by FINRA on behalf of the Exchange. Those surveillances are designed to detect violations of Exchange rules and applicable federal securities laws.
The proposed rule change will become operative within six months following the approval of the proposed Rule change to coincide with implementation on other options exchanges. The Exchange will announce the effective date of the proposed change by an Options Trader Update. The Exchange will coordinate the effective date to coincide with the implementation of the proposed change on the other options exchanges.
The Exchange believes that its proposal is consistent with section 6(b)
In particular, the Exchange believes the proposed change would facilitate options transactions and would remove impediments to and perfect the mechanism of a free and open market and a national market system, which would, in turn, protect investors and the public interest by providing an avenue for options on IPO'd securities to come to market earlier. The Exchange notes that the three-day look back period helps ensure that options on underlying securities may be listed and traded in a timely manner while also allowing time for OCC to accommodate the certification request. However, there are certain large IPOs that issue high-priced securities—well above the $3.00 per share threshold—that would obviate the need for the three-day lookback period. As noted above, NYSE American noted that it reviewed trading data for IPO'd securities dating back to 2017 and was unaware of an IPO'd security with a market capitalization of $3 billion or more (based upon the offering price of its IPO) that subsequently would have failed to qualify for listing and trading as options under the three-day lookback requirement.
Further, as noted herein, the Exchange believes the proposed change would allow options on IPO'd securities to come to market sooner (
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange anticipates that the other options exchanges will adopt substantively similar proposals, such that there would be no burden on intermarket competition from the Exchange's proposal. Accordingly, the proposed change is not meant to affect competition among the options exchanges. For these reasons, the Exchange believes that the proposed rule change reflects this competitive environment and does not impose any undue burden on intermarket competition.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act.
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act” or “Act”),
This proposed rule change would make certain administrative and clarifying amendments to OCC's Capital Management Policy and Cash and Investment Management Policy. Specifically, the proposed changes would: (1) provide that Management will, at a minimum, review OCC's fee schedule at each regularly scheduled Compensation and Performance Committee (“CPC”) meeting, consistent with recent updates to the OCC's Board of Director (“Board”) and Board-level committee (“Committee”) charters, which require each Committee meet at least four times per year, rather than quarterly as the Capital Management Policy currently provides; (2) make certain other edits and additions to the Capital Management Policy for clarity and consistency with OCC's other policies, and (3) amend the Cash and Investment Management Policy to better align the text of that policy to OCC Rules 604(a) and 1002(c), which provide separate treatment for cash deposited by Clearing Members in respect of margin requirements and Clearing Fund deposits, respectively.
The proposed changes are included in confidential Exhibit 5 to File No. SR-OCC-2023-006. Material proposed to be added is underlined and material proposed to be deleted is marked in strikethrough text. All terms with initial capitalization that are not otherwise defined herein have the same meaning as set forth in OCC's By-Laws and Rules.
In its filing with the Commission, OCC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. OCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
As the sole clearing agency for standardized equity options listed on national securities exchanges registered with the Commission, and with respect to OCC's clearance and settlement of futures and stock loan transactions, OCC maintains policies and procedures to manage the risks borne by OCC as a central counterparty. One such risk that OCC manages is general business risk—that is, the risk of potential impairment to OCC's financial position resulting from a decline in revenues or an increase in expenses. In order to manage this risk and help to ensure that OCC can continue operations and services as a going concern if general business losses materialize, OCC has filed, and the Commission has approved,
Regulations applicable to OCC require such risk management policies to be reviewed on a specified periodic basis and approved by the Board annually.
OCC is proposing to make certain administrative and clarifying amendments to OCC's Capital Management Policy, and Cash and Investment Management Policy identified and approved by the Board as part of the annual review of such policies. Specifically, as discussed in more detail below, the proposed changes to the Capital Management Policy would: (1) provide that Management will, at a minimum, review the fee schedule at each regularly scheduled CPC meeting, rather than quarterly, which would align the frequency of such reviews with recent updates to the Board and Committee charters that require each Committee to meet at least four times per year, not necessarily quarterly;
Under the Capital Management Policy, OCC determines its Target Capital Requirement, monitors its levels of shareholders' equity (“Equity”) and liquid net assets funded by equity (“LNAFBE”) to help ensure adequate financial resources are available for general business obligations, and manages Equity levels, including by adjusting OCC's fee schedule as appropriate and establishing a plan for accessing additional capital should OCC's Equity fall below certain thresholds (the “Replenishment Plan”).
Pursuant to the Capital Management Policy, the Target Capital Requirement is based on two components: (1) the amount of LNAFBE determined by OCC to be necessary to ensure compliance with OCC's regulatory obligations, including Rule 17Ad-22(e)(15) under the Exchange Act
On an annual basis, OCC's Chief Financial Officer (“CFO”) recommends a Target Capital Requirement for the coming year to OCC management.
OCC's fee structure is designed by the Board in accordance with Article IX, Section 9 of OCC's By-Laws. The current Capital Management Policy provides that, on a quarterly basis, management will review OCC's fee schedule and, considering factors including, but not limited to, projected operating expenses, projected volumes, anticipated cashflows and capital needs, recommend to the Board, or a Board-level Committee to which the Board has delegated authority,
Among other things, OCC's Cash and Investment Management Policy provides for how OCC may invest its own cash and cash deposited by Clearing Members in respect of margin requirements or Clearing Fund deposits. In recent filings, OCC explained that the policy would provide that “[i]nterest earned on
Currently, the Capital Management Policy requires management to review the fee schedule with the CPC “[o]n a quarterly basis.” The proposed changes would amend this language to instead
The proposed changes would also make other textual edits and additions to the Capital Management Policy for clarity and consistency with OCC's other policies. For one, OCC would amend the provision concerning management of OCC's Equity to facilitate capital expenditures to clarify OCC's intent that either of the two options identified for doing so—(1) increasing the Target Capital Requirement or (2) retaining the additional Equity as an amount in excess of the Target Capital Requirement—is available to the Board. The textual edits would state more generally at the outset that OCC may retain additional Equity generated from revenue for capital expenditures following a recommendation by Management and Board approval. Retention of such additional Equity generated from revenue is already implicit in the Capital Management Policy's provisions for setting the fee schedule and determining whether to employ other tools to lower costs for Clearing Members (
The Capital Management Policy also currently provides that in determining whether to retain additional Equity for capital expenditures, the Board will consider the potential impact of the “investment” on OCC's operations. The proposed changes would amend this language to instead provide that the Board will consider the potential impact of the “retention of additional Equity” on OCC's operations, consistent with the terminology that OCC proposes to use throughout that paragraph of the Capital Management Policy. Use of the term “investment” in reference to the retention of Equity may lead to confusion when compared to OCC's Cash and Investment Management Policy, which addresses guidelines for investing OCC's own cash and cash deposited by Clearing Members, as discussed above. “Investment” in that context is a separate concept from OCC's determination whether to retain additional Equity to meet its capital needs, rather than, for example, determining to use tools to decrease the cost of membership through a fee decrease, fee holiday or fee refund.
OCC is also proposing formatting edits to conform the Capital Management Policy to OCC's current template format for its policies and procedures. Specifically, the proposed changes would add a new introductory paragraph at the outset of the Capital Management Policy that addresses the policy's applicability and scope. This new introductory paragraph would clarify that the policy applies to the quantification, monitoring and management of OCC's Equity, as well as identify the OCC departments that have roles in those processes, including, primarily, Accounting and Finance, as well as Member Services, Corporate Risk Management, Legal, and Financial Risk Management business units. Finally, OCC would correct a typo by deleting a duplicative word in one of the footnotes to the Capital Management Policy, and such change would have no impact on the meaning of the footnote.
Finally, this proposed change would conform the text of the Cash and Investment Management Policy to the intended meaning by inserting “Clearing Fund” before “cash deposits” when stating that “[i]nterest earned on cash deposits held at a Federal Reserve Bank shall accrue to the benefit of Clearing Members less a cash management fee.” The term “Clearing Fund” was inadvertently omitted from the text of the policy, even though that was the intent of the change as described in the associated regulatory filings described above.
OCC believes the proposed changes are consistent with the requirements of the Exchange Act and the rules and regulations thereunder applicable to a registered clearing agency. In particular, OCC believes the proposed changes are consistent with section 17A(b)(3)(F) of the Exchange Act,
Section 17A(b)(3)(F) of the Exchange Act requires, among other things, that OCC's rules must be designed to promote the prompt and accurate clearance and settlement of securities transactions, assure the safeguarding of securities and funds which are in the custody or control of OCC or for which it is responsible, and protect investors and the public interest.
Rule 17Ad-22(e)(1) under the Exchange Act requires that OCC establish, implement, maintain, and enforce written policies and procedures reasonably designed to provide for a well-founded, clear, transparent, and enforceable legal basis for each aspect of its activities in all relevant jurisdictions.
Rule 17Ad-22(e)(2) under the Exchange Act requires, in part, that OCC establish, implement, maintain, and enforce written policies and procedures reasonably designed to provide for governance arrangements that are clear and transparent and specify clear and direct lines of responsibility.
Rule 17Ad-22(e)(3)(i) under the Exchange Act requires, in part, that OCC establish, implement, maintain, and enforce written policies and procedures reasonably designed to maintain a sound risk management framework for comprehensively managing general business risk and investment risk, among other risks, including risk management policies designed to identify, measure, monitor, and manage the range of risks that arise in or are borne by OCC, that are subject to review on a specified periodic basis and approved by the Board annually.
Section 17A(b)(3)(I) of the Exchange Act
Written comments were not and are not intended to be solicited with respect to the proposed rule change, and none have been received.
The foregoing rule change has become effective pursuant to section 19(b)(3)(A)
The proposal shall not take effect until all regulatory actions required with respect to the proposal are completed.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Vanessa Countryman, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
Do not include personal identifiable information in submissions; you should submit only information that you wish to make available publicly. We may redact in part or withhold entirely from publication submitted material that is obscene or subject to copyright protection. All submissions should refer to File Number SR-OCC-2023-006 and should be submitted on or before September 5, 2023.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative disaster declaration of a rural area for the State of California dated 08/09/2023.
Issued on 08/09/2023.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Recovery & Resilience, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's disaster declaration of a rural area, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 18049 B and for economic injury is 18050 0.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative disaster declaration of a rural area for the State of California dated 08/09/2023.
Issued on 08/09/2023.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Recovery & Resilience, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's disaster declaration of a rural area, applications for disaster loans may be filed at the address listed
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 18051 B and for economic injury is 18052 0.
Notice of meeting.
The Department of State will hold a virtual listening session to provide an update after the August 10-11 round of negotiations to modernize the Columbia River Treaty (CRT) regime, and to provide U.S. citizens from the Columbia Basin the opportunity to express their views on the CRT.
The session will be held on August 22, 2023, from 5:00 p.m.-6:30 p.m. PT (8:00 p.m.-9:30 p.m. ET).
The session will be held virtually.
Office of Canadian Affairs, Department of State,
This listening session is part of the Department's public engagement on the modernization of the CRT regime. (Per 22 U.S.C. 2651a and 2656.) The session is open to the public. To register, go to:
Federal Transit Administration (FTA), Department of Transportation (DOT).
Notice of public meeting and request for comment.
This notice seeks comments on how the Federal Transit Administration (FTA) Tribal Transit competitive program and technical assistance to Tribes is administered. This notice also introduces FTA's consultation process and schedule for implementation.
The official comment period for this consultation will close by December 13, 2023. However, FTA's partnership with Tribal leadership will remain ongoing. Late-filed comments will be considered to the extent practicable. Comments must be submitted in writing directly to the official docket per the instructions found in the
Comments should be submitted by the following method, identifying your submission by docket number FTA-2023-0015:
Elan Flippin-Jones, Office of Program Management, (202) 366-3800 or email
Federal public transportation law (49 U.S.C. 5338(a)(2)(F)) and 49 U.S.C. 5311(j)), as amended by the Infrastructure Investment and Jobs Act (Pub. L. 117-58, the “Bipartisan Infrastructure Law” or “BIL”)), authorizes the Public Transportation on Indian Reservations Program (Tribal Transit Program) for Fiscal Years (FY) 2022-2026. The Tribal Transit Program (TTP) is funded as a takedown from the FTA's Formula Grants for Rural Areas Program, 49 U.S.C. 5311. Eligible direct recipients are federally recognized American Indian Tribes and Alaskan Native Villages, groups and, communities providing public transportation in rural areas, as identified by the U.S. Department of the Interior (DOI) Bureau of Indian Affairs (BIA) at this link:
FTA is committed to ensuring that programs, policies, and procedures are
Since the program has now been administered under the requirements of the previous consultation for approximately a decade, funding levels have increased, as well as the number of Tribes participating in the program. Additionally, certain operational considerations may have changed, particularly in response to the COVID-19 pandemic, supply chain disruptions, and increases in the cost of goods and services. Therefore, FTA is consulting with Tribal recipients to ensure the program still is being administered in a beneficial way. Specifically, with the authorization of BIL, the amount made available under Tribal Transit competitive program increased by 83 percent over previously authorized levels of the Fixing America's Surface Transportation (FAST) Act. Furthermore, in Fiscal Year (FY) 2013, approximately 110 Tribes received funding under the TTP formula program. That number has grown to 136 Tribes receiving funding under the formula program in FY 2023.
Through this notice, FTA seeks comments on the administration of the Tribal Transit competitive program, as well as comments about the technical assistance that FTA provides to recipients of FTA Tribal Transit funding. Comments related to other aspects of the TTP, including the administration of the TTP formula program, will also be considered. Comments from eligible recipients of the Tribal Transit competitive program are highly encouraged.
In-person consultation will be held in conjunction with the National Transportation in Indian Country Conference (NTICC) in Anchorage, Alaska on Monday, September 25, 2023, from 1:30-3 p.m. ADT.
Additionally, a virtual consultation will be held on November 2, 2023. Tribes that are eligible recipients of FTA's TTP are encouraged to attend one or both of these meetings. Comments made at these meetings will inform FTA's decision-making. However, to be considered as part of the official consultation, comments must be made in writing to the docket.
• Inform Tribes of consultation efforts in Notice of Funding Opportunity (NOFO) for FY 2023 Tribal Transit Competitive Program: Published March 26, 2023 (88 FR 18364).
• In-Person listening session at Department of Transportation Tribal Transit Symposium held in Oklahoma City: May 24-25, 2023.
• In-Person consultation meeting at NTICC: September 25, 2023.
• Virtual outreach meeting: November 2, 2023.
• Publication of
A total of $45,812,610 is authorized for FY 2022-2026 for the Tribal Transit competitive grant program. Funds may be awarded to federally-recognized Indian Tribes for any purpose under the Section 5311 program. The outcome of this consultation may impact the administration of competitive funding awarded for FY 2024-2026. For FY 2024-2026, a total of $28,123,961 is made available under the Tribal Transit competitive program.
Program requirements for the Tribal Transit Program can be found in the Section 5311 Circular (
FTA seeks comments for the Tribal Transit competitive program on the following questions:
1. Should TTP competitive program funds continue to support capital, operating and planning projects? These types of projects are currently eligible under the program. Limitations on certain activities will leave more funding available for the other types of activities. For example, limiting or removing operating projects as an eligible project type will leave more funding available for capital and planning projects.
2. Should operating assistance under the competitive program be limited based on the amount of TTP formula allocation received? In the past, FTA has limited operating assistance to applicants who receive less than $20,000 under the TTP formula program. This threshold preserves TTP competitive funds for larger capital projects. Increasing or removing this threshold would potentially reduce the amount of funding available for capital projects.
3. Should TTP competitive program funds continue to support start-up, expansion, and replacement capital projects? These projects are currently eligible under the program. Should FTA prioritize start-up projects in order to advance Tribal transit providers into the formula program? Once a Tribal transit provider begins operating service and providing service data to the National Transit Database, the provider will begin to receive Tribal Transit formula funds.
4. Should FTA establish a minimum and/or maximum grant amount under the TTP competitive program? Currently, there is no minimum or maximum set for allocations under this program. However, planning grants are capped at $25,000. Establishing a maximum grant amount would preserve funds for additional projects but may prevent larger projects from being funded at the full request.
5. Should FTA continue to cap planning grants at $25,000 under the competitive program? Should FTA retain the cap for planning grants but set it at a different amount? This cap preserves TTP competitive funds for larger capital projects.
6. Should FTA require a local match of 10 percent of total project costs for both capital and operating assistance projects under the TTP competitive program? If so, should FTA continue to include an option for Tribes to submit a local match waiver request? Currently, there is no match required for both the competitive and formula programs. However, in the past, a match of 10 percent was required on competitive program projects, unless the Tribe applied for a hardship waiver. Requiring a local match would allow for more projects to be funded, but may discourage some Tribes from applying for funding.
7. Should FTA retain the condition that indirect costs not exceed 10 percent of each Tribal Transit competitive grant allocation? Providing a cap on the percentage of a grant that can be applied to indirect costs reserves more funding for capital projects, but may underestimate the true amount of indirect costs attributable to a project.
8. Should FTA continue to provide Tribes 90 days to submit applications under the TTP competitive program Notice of Funding Opportunity? In the past, FTA has had either a 60-day or a 90-day deadline for application submission under the TTP competitive program.
9. Should FTA examine or alter any other aspect of the Tribal Transit competitive program?
Through the Tribal Transit Technical Assistance Assessments Initiative, FTA Collaborates with Tribal Transit recipients to review processes and identify areas in need of improvement and then assists by offering solutions to address these needs—all in a supportive and mutually beneficial manner that results in technical assistance. These Assessments include discussions of compliance areas pursuant to FTA's Master Agreement (
In addition, FTA also offers technical assistance to Tribes through its National Rural Transit Assistance Program (
1. How can FTA improve its technical assistance efforts for Tribal recipients?
For FY 2024-2026, the TTP formula program has been authorized at $112.5 million.
Although no specific questions are posed, FTA also encourages comments and suggestions on ways to improve the TTP formula program.
Federal Transit Administration (FTA), Department of Transportation (DOT).
Notice.
This notice announces final environmental actions taken by the Federal Transit Administration (FTA) regarding the three projects: East Campus Expansion Project, Indianapolis, Marion County, Indiana; Metra UP North Rebuild: Fullerton to Addison Project, Chicago, Cook County, Illinois; and Silver Line Project, Tarrant, Dallas and Collin Counties, Texas. The purpose of this notice is to publicly announce FTA's environmental decisions on the subject projects, and to activate the limitation on any claims that may challenge these final environmental actions.
A claim seeking judicial review of FTA actions announced herein for the listed public transportation projects will be barred unless the claim is filed on or before January 12, 2024.
Kathryn Loster, Assistant Chief Counsel, Office of Chief Counsel, (312) 705-1269, or Saadat Khan, Environmental Protection Specialist, Office of Environmental Programs, (202) 366-9647. FTA is located at 1200 New Jersey Avenue SE, Washington, DC 20590. Office hours are from 9:00 a.m. to 5:00 p.m., Monday through Friday, except Federal holidays.
Notice is hereby given that FTA has taken final agency actions subject to 23 U.S.C. 139(l) by issuing certain approvals for the public transportation projects listed below. The actions on the projects, as well as the laws under which such actions were taken, are described in the documentation issued in connection with the projects to comply with the National Environmental Policy Act (NEPA) and in other documents in the FTA environmental project files for the projects. Interested parties may contact either the project sponsor or the relevant FTA Regional Office for more information. Contact information for FTA's Regional Offices may be found at
This notice applies to all FTA decisions on the listed projects as of the issuance date of this notice and all laws under which such actions were taken, including, but not limited to, NEPA (42 U.S.C. 4321-4375), section 4(f) requirements (49 U.S.C. 303), Section 106 of the National Historic Preservation Act (54 U.S.C. 306108),
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Bureau of the Fiscal Service, Treasury.
Notice of prompt payment interest rate.
For the period beginning July 1, 2023, and ending on December 31, 2023, the prompt payment interest rate is 4-7/8 per centum per annum.
Applicable July 1, 2023, to December 31, 2023.
Comments or inquiries may be mailed to: E-Commerce Division, Bureau of the Fiscal Service, 401 14th Street SW, Room 306F, Washington, DC 20227. Comments or inquiries may also be emailed to
Thomas M. Burnum, E-Commerce Division, (202) 874-6430; or Thomas Kearns, Senior Counsel, Office of the Chief Counsel, (202) 874-7036.
An agency that has acquired property or service from a business concern and has failed to pay for the complete delivery of property or service by the required payment date shall pay the business concern an interest penalty. 31 U.S.C. 3902(a). The Contract Disputes Act of 1978, sec. 12, Pub. L. 95-563, 92 stat. 2389, and the Prompt Payment Act, 31 U.S.C. 3902(a), provide for the calculation of interest due on claims at the rate established by the Secretary of the Treasury.
The Secretary of the Treasury has the authority to specify the rate by which the interest shall be computed for interest payments under section 12 of the Contract Disputes Act of 1978 and under the Prompt Payment Act. Under the Prompt Payment Act, if an interest penalty is owed to a business concern, the penalty shall be paid regardless of
Therefore, notice is given that the Secretary of the Treasury has determined that the rate of interest applicable for the period beginning July 1, 2023, and ending on December 31, 2023, is 4-7/8 per centum per annum.
Office of Foreign Assets Control, Department of the Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the name of a person whose property and interests in property have been unblocked and who has been removed from the List of Specially Designated Nationals and Blocked Persons (SDN List).
See
OFAC: Associate Director for Global Targeting, tel: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or Assistant Director for Sanctions Compliance & Enforcement, tel.: 202-622-2490.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On August 3, 2023, OFAC determined that the following person would be removed from the SDN List and that their property and interests in property subject to U.S. jurisdiction are unblocked pursuant to Executive Order 13818 of December 20, 2017 (“Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption”), and U.S. persons are no longer generally prohibited from engaging in transactions with them.
1. SEEMAR, Satish, United Arab Emirates; DOB 25 Dec 1961; POB Punjab, India; Gender Male; Passport Z1917610 expires 18 Mar 2019 (individual) [GLOMAG] (Linked To: KADYROV, Ramzan Akhmatovich).
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning communications excise tax; prepaid telephone cards.
Written comments should be received on or before October 16, 2023 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or by email to
Requests for additional information or copies of the regulation should be directed to Kerry Dennis at (202) 317-5751, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
The following paragraph applies to all the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained if their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
August 17, 2023, 12:00 p.m. to 3:00 p.m., Eastern time.
This meeting will be accessible via conference call and via Zoom Meeting and Screenshare. Any interested person may call (i) 1-929-205-6099 (US Toll) or 1-669-900-6833 (US Toll), Meeting ID: 941 2440 0273, to listen and participate in this meeting. The website to participate via Zoom Meeting and Screenshare is
This meeting will be open to the public.
The Unified Carrier Registration Plan Education and Training Subcommittee (the “Subcommittee”) will continue its work in developing and implementing the Unified Carrier Registration Plan and Agreement. The subject matter of this meeting will include:
The Subcommittee Chair will welcome attendees, call the meeting to order, call roll for the Subcommittee, confirm whether a quorum is present, and facilitate self-introductions.
The UCR Executive Director will verify the publication of the meeting notice on the UCR website and distribution to the UCR contact list via email followed by the subsequent publication of the notice in the
The Subcommittee Agenda will be reviewed, and the Subcommittee will consider adoption.
Draft minutes from the May 18, 2023—Subcommittee meeting will be reviewed. The Subcommittee will consider action to approve.
The Subcommittee Chair will discuss the development of key projects to include NRS module development, establishing educational audit taskforce, and creation of a UCR purpose and value video.
The Subcommittee Chair will call for any other items Subcommittee members would like to discuss.
The Subcommittee Chair will adjourn the meeting.
The agenda will be available no later than 5:00 p.m. Eastern time, August 10, 2023 at:
Elizabeth Leaman, Chair, Unified Carrier Registration Plan Board of Directors, (617) 305-3783,
The Department of Veterans Affairs gives notice under the Federal Advisory Committee Act, 5 U.S.C. ch. 10, that the Cooperative Studies Scientific Evaluation Committee will hold a meeting on August 31, 2023 by Zoom. The meeting will begin at 9:00 a.m. and end at 3:45 p.m. EST.
The Committee provides expert advice on VA cooperative studies, multi-site clinical research activities and policies related to conducting and managing these efforts. The session will be open to the public for approximately 30 minutes at the start of the meeting for the discussion of administrative matters and the general status of the program. The remaining portion of the meeting will be closed to the public for the Committee's review, discussion and evaluation of research and development applications.
During the closed portion of the meeting, discussions and recommendations will deal with qualifications of personnel conducting the studies, staff and consultant critiques of research proposals and similar documents and the medical records of patients who are study subjects, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. In addition, the premature disclosure of potential research activities prior to them being approved could frustrate the implementation of approved research activities. As provided by section 10(d) of Public Law 92-463, as amended, closing portions of this meeting is in accordance with 5 U.S.C. 552b(c)(6) and (c)(9)(B).
The Committee will accept oral comments from the public for the open portion of the meeting. Members of the public who wish to attend the open teleconference should call 872-701-0185, conference ID 456 277 285#. Those who plan to attend or wish additional information should contact David Burnaska, Program Manager, Cooperative Studies Program (14RD), Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, at 202-445-1295 or
Internal Revenue Service (IRS), Treasury.
Final regulations.
This document contains final regulations concerning the application of the low-income communities bonus credit program for the energy investment credit established pursuant to the Inflation Reduction Act of 2022. Under this program, applicants investing in certain solar or wind-powered electricity generation facilities for which the applicants otherwise would be eligible for an energy investment credit may apply for an allocation of environmental justice solar and wind capacity limitation to increase the amount of the energy investment credit for the taxable year in which the facility is placed in service. This document provides definitions and requirements that are applicable for this program. These final regulations affect applicants seeking allocations of the environmental justice solar and wind capacity limitation to increase the amount of the energy investment credit for which such applicants would otherwise be eligible once the facility is placed in service.
Concerning the regulations, Whitney Brady, the IRS Office of the Associate Chief Counsel (Passthroughs and Special Industries) at (202) 317-6853 (not a toll-free number).
This document contains amendments to the Income Tax Regulations (26 CFR part 1) relating to new section 48(e) of the Internal Revenue Code (Code). Section 13103 of Public Law 117-169, 136 Stat. 1818, 1921 (August 16, 2022), commonly known as the Inflation Reduction Act of 2022 (IRA), added new section 48(e) to the Code to increase the amount of the energy investment credit determined under section 48(a) (section 48 credit) with respect to eligible property of the taxpayer that is part of a qualified solar or wind facility if the taxpayer applies for and is awarded an allocation of environmental justice solar and wind capacity limitation (Capacity Limitation) as part of the low-income communities bonus credit program for the section 48 credit (Low-Income Communities Bonus Credit Program or Program).
The section 48 credit for a taxable year is generally calculated by multiplying the basis of each energy property placed in service by a taxpayer during that taxable year by the energy percentage (as defined in section 48(a)(2)). Section 48(e) increases the taxpayer's section 48 credit by increasing the energy percentage used to calculate the amount of the section 48 credit (section 48(e) Increase) in the case of eligible property that is part of a qualified solar or wind facility that receives an allocation of Capacity Limitation under the Program.
On February 13, 2023, the Department of the Treasury (Treasury Department) and the IRS released Notice 2023-17, 2023-10 I.R.B. 505, to establish the Program. Notice 2023-17 also provided initial Program guidance regarding applicable definitions and Program requirements.
On June 1, 2023, the Treasury Department and the IRS published in the
As announced in Proposed Rules, the Treasury Department and the IRS are also providing procedural and clarifying guidance applicable to the Program in Revenue Procedure 2023-27, 2023-35 I.R.B. This procedural and clarifying guidance is being issued simultaneously with these final regulations and provides the process for applying to the Program. These procedural rules provide guidance necessary to implement the Program, including, in relevant part, information an applicant must submit, the application review process, and the manner of obtaining an allocation.
Section 48(e)(2)(A) and the Proposed Rules define a single qualified solar or wind facility as any facility that (i) generates electricity solely from a wind facility, solar energy property, or small wind energy property; (ii) has a maximum net output of less than 5 megawatts (MW) (as measured in alternating current (AC)); and (iii) is described in at least one of the four facility categories described in section 48(e)(2)(A)(iii) (Category 1, 2, 3, or 4 are described in more detail in part III of this Summary of Comments and Explanation of Revisions section). In addition, for purposes of determining allocations, administering the Program fairly, and avoiding abuse, the Proposed Rules provided that multiple solar or wind energy properties or facilities that are operated as part of a single project would be aggregated and treated as a single facility. Whether multiple facilities or energy properties are operated as part of a single project would depend on the relevant facts and circumstances and would be evaluated based on the factors provided in section 7.01(2)(a) of Notice 2018-59 or section 4.04(2) of Notice 2013-29, as applicable.
A few commenters suggested the Treasury Department and the IRS should not impose the single project factors to aggregate multiple facilities or energy properties into a single facility for purposes of these regulations. For example, some commenters said this does not work well for Tribal or some other partially-consolidated “projects” that may share ownership, financing, and other factors for efficiency, yet are different and distinguishable facilities. Some of the commenters suggested that a Tribe must be allowed to apply Capacity Limitation allocations for multiple projects, as separate projects, to allow for phased deployment of projects, and to treat each phase as a different project. Another commenter recommended relaxing restrictions in
The Treasury Department and the IRS determined that to prevent some applicants from attempting to circumvent the less than 5 MW maximum net output limitation provided in section 48(e)(2)(A)(ii) by artificially dividing larger projects into multiple facilities, it is necessary to incorporate the single project factors tests provided in section 7.01(2)(a) of Notice 2018-59 or section 4.04(2) of Notice 2013-29, as applicable, into the definition of qualified solar or wind facility. Therefore, the final regulations generally adopt the definition of qualified solar or wind facility provided in the Proposed Rules. However, the final regulations clarify that if multiple facilities or energy properties are regarded as a single facility for purposes of this rule, they will be regarded as a single facility for all purposes under the Program. Additionally, to alleviate some commenters' concerns that multiple energy properties or facilities that satisfy any of the listed factors will conclusively result in a single project determination, the final regulations clarify that whether multiple facilities or energy properties are operated as part of a single project and thus treated a single facility, will depend on the relevant facts and circumstances. Thus, a single factor or factors are not determinative.
A commenter noted that the Proposed Rules specify that a qualified facility refers to a solar energy property with an output of less than 5 MW and recommended aligning the Program with the industry standard by allowing projects that have a capacity of up to 5 MW. This comment is not adopted because section 48(e)(2)(A)(ii) limits the Program to facilities that have a maximum net output of less than 5 MW (as measured in AC).
Depending on the category of the facility, an allocation of Capacity Limitation under the Program may result in a section 48(e) Increase equal to either 10 percentage points or 20 percentage points. Section 48(e)(1)(A)(i) provides for a section 48(e) Increase of 10 percentage points for eligible property that is located in a low-income community (Category 1 facility), or on Indian land (Category 2 facility). Section 48(e)(1)(A)(ii) provides for a section 48(e) Increase of 20 percentage points for eligible property that is part of a qualified low-income residential building project (Category 3 facility) or a qualified low-income economic benefit project (Category 4 facility).
Under section 48(e)(2)(A)(iii)(I), the term low-income community is generally defined under section 45D(e)(1), with certain modifications described elsewhere in section 45D(e), as any population census tract if the poverty rate for such tract is at least 20 percent, or, in the case of a tract not located within a metropolitan area, the median family income for such tract does not exceed 80 percent of statewide median family income, or in the case of a tract located within a metropolitan area, the median family income for such tract does not exceed 80 percent of the greater of statewide median family income or the metropolitan area median family income. Section 48(e)(2)(A)(iii)(I) provides that Indian land is defined in section 2601(2) of the Energy Policy Act of 1992 (25 U.S.C. 3501(2)). The final regulations clarify that the poverty rate for a census tract is generally based on the 2011-2015 American Community Survey (ACS) low-income community data for the New Markets Tax Credit (NMTC), however, if updated data is released, a taxpayer can choose to base the poverty rate for any population census tract on either the 2011-2015 ACS low-income community data or the updated ACS low-income community data for a period of 1 year following the date of the release of the updated data. After the 1-year transition period, the updated ACS low-income community data must be used. Applicants who satisfy the definition of low-income community at the time of application are considered to continue to meet the definition of low-income community for the duration of the recapture period, unless the location of the facility changes.
Section 48(e)(2)(B) provides that a facility will be treated as part of a qualified low-income residential building project if (i) such facility is installed on a residential rental building that participates in a covered housing program (as defined in section 41411(a) of the Violence Against Women Act of 1994 (34 U.S.C. 12491(a)(3)) (VAWA), a housing assistance program administered by the Department of Agriculture (USDA) under title V of the Housing Act of 1949, a housing program administered by a Tribally designated housing entity (as defined in section 4(22) of the Native American Housing Assistance and Self-Determination Act of 1996 (25 U.S.C. 4103(22)), or such other affordable housing programs as the Secretary may provide, and (ii) the financial benefits of the electricity produced by such facility are allocated equitably among the occupants of the dwelling units of such building.
Section 48(e)(2)(C) provides that a facility will be treated as part of a qualified low-income economic benefit project if at least 50 percent of the financial benefits of the electricity produced by such facility are provided to households with income of less than 200 percent of the poverty line (as defined in section 36B(d)(3)(A) of the Code) applicable to a family of the size involved, or less than 80 percent of area median gross income (as determined under section 142(d)(2)(B) of the Code).
One commenter stated that the statute does not provide for “facility categories” and that what section 48(e)(2)(A)(iii) describes is not four distinct facility categories, but four ways of meeting geographic or benefits-based qualifying criteria. The Treasury Department and the IRS determined that a change in the final regulations is not necessary because the use of facility categories as a means of differentiating the four distinct geographic or benefits-based qualifying criteria is consistent with the statute and serves as an administratively convenient mechanism to distinguish among them and describe requirements and definitions applicable to each. Accordingly, as discussed in part II of this Summary of Comments and Explanation of Revisions section, the final regulations, consistent with the Proposed Rules, require a qualified solar or wind facility to be described in one of the four categories described in section 48(e)(2)(A)(iii) (Category 1, 2, 3, or 4).
Another commenter asked for clarification on whether a project must just be located in a low-income
Specific to Category 2, another commenter noted that the definition of located on Indian land should include simple fee and trust lands located off-reservation owned by Tribes. Trust lands located off-reservation are covered under the statutory definition of Indian land referenced in section 48(e)(2)(A)(I). Fee lands, however, would only be covered if they are included within the boundaries of a reservation or in the census categories included within the Indian land definition. Therefore, the final regulations did not adopt the commenter's suggestion and define “Indian land” by reference to section 2601(2) of the Energy Policy Act of 1992 (25 U.S.C. 3501(2)) without additional clarification.
Specific to Category 3, a commenter asked for clarification that the installation of a facility on a “residential rental building” extends to the curtilage of the building, including carports, sheds, and open space on the same property. Another commenter asked for similar clarification stating that the guidance currently defines a facility as eligible if it is a facility installed on an eligible building. This commenter stated that this is an overly narrow statement that would not include adjacent carport or ground-mount solar on the same parcel. The commenter encouraged the Treasury Department and the IRS to include these other solar installation locations, as rural and suburban section 42 low-income housing credit (commonly referred to as LIHTC) properties often have excess land or large parking areas due to zoning requirements that could host solar installations. The final regulations adopt this comment by clarifying that a facility is treated as installed on a residential rental building that participates in a covered housing program or other affordable housing program (Qualified Residential Property) even if that facility is not on the Qualified Residential Property if the facility is installed on the same or adjacent parcel of land as the Qualified Residential Property, and the other requirements to be a Category 3 facility are satisfied.
Several commenters requested that the Treasury Department and the IRS categorically include any LIHTC project as a Category 3 project. Section 48(e)(2)(B)(i) provides that a covered housing program is defined in VAWA. The statutory cross-reference is comprehensive and includes numerous types of housing programs and policies across Federal agencies, including the low-income housing credit under section 42 of title 26. Accordingly, a solar or wind facility that is installed on a “qualified low-income building” under section 42 is eligible for Category 3. In response to commenters' general inquiries on covered housing programs, the Treasury Department and the IRS, in consultation with other Federal agencies, developed an illustrative list of Federal housing programs and policies that meet the requirements in section 48(e)(2)(B)(i). This list will be made available on the Program web page and is also listed here:
Covered housing programs and policies (as defined in VAWA) with active affordability covenants tied to the following:
• Department of Housing and Urban Development's (HUD) Section 202 Supportive Housing for the Elderly, including the direct loan program under Section 202;
• HUD's Section 811 Supportive Housing for Persons with Disabilities;
• HUD's Housing Opportunities for Persons With AIDS (HOPWA) program;
• HUD's homeless programs under title IV of the McKinney-Vento Homeless Assistance Act, including the Emergency Solutions Grants program, the Continuum of Care program, and the Rural Housing Stability Assistance program;
• HUD's HOME Investment Partnerships (HOME) program;
• Federal Housing Administration (FHA) mortgage insurance under Section 221(d)(3) subsidized with a below-market interest rate (BMIR) prescribed in the proviso of Section 221(d)(5) of the National Housing Act;
• HUD's Section 236 interest rate reduction payments;
• HUD Public Housing assisted under section 9 of the United States Housing Act of 1937;
• HUD tenant-based and project-based rental assistance under section 8 of the United States Housing Act of 1937;
• HUD Section 8 Moderate Rehabilitation Program;
• HUD Section 8 Moderate Rehabilitation Single Room Occupancy Program for Homeless Individuals;
• USDA Section 515 Rural Rental Housing;
• USDA Section 514/516 Farm Labor Housing;
• USDA Section 538 Guaranteed Rural Rental Housing;
• USDA Section 533 Housing Preservation Grant Program;
• Treasury/IRS Low-Income Housing Credit under section 42 of the Code;
• HUD's National Housing Trust Fund;
• Veterans Administration's (VA) Comprehensive Service Programs for Homeless Veterans;
• VA's grant program for homeless veterans with special needs;
• VA's financial assistance for supportive services for very low-income veteran families in permanent housing; and/or
• Department of Justice transitional housing assistance grants for victims of domestic violence, dating violence, sexual assault, or stalking.
Section 48(e)(2)(B)(i) also includes the following Federal housing programs:
• Housing assistance programs administered by the USDA under title V of the Housing Act of 1949; and/or
• Housing programs administered by an Indian Tribe or a Tribally designated housing entity (as defined in section 4(22) of the Native American Housing Assistance and Self-Determination Act of 1996 (25 U.S.C. 4103(22)).
One commenter also requested that Federal Weatherization Assistance Program (WAP) affordable housing categorically qualify as Category 3 covered housing. The WAP is not a housing program. The WAP is a program of the DOE that provides weatherization services and support for qualifying housing but does not provide or administer the actual housing. Therefore, the WAP program is not included as a Category 3 housing program.
Several commenters also requested that Category 3 include as an eligible residential rental building housing that is enrolled under a State-specific low-
State specific housing programs do not categorically qualify as Qualified Residential Properties nor do the facilities installed on such buildings categorically meet the requirements of section 48(e)(2)(B). The statute specifically lists only Federal housing programs and provides that the Secretary may include other affordable housing programs. The Treasury Department and the IRS decline to include additional housing programs in the final regulations at this time so that the Program will focus on the statutorily-prescribed housing programs. However, the Treasury Department and the IRS may include additional housing programs in future Program guidance.
The final regulations also do not provide a special review process for housing authorities to be considered as qualifying under State specific programs for the same reasons as provided earlier regarding State program eligibility. Moreover, a housing authority is not the same thing as a housing program. It is the solar or wind facility that is being reviewed, upon application, to determine whether the facility qualifies for an allocation, and not a specific housing authority or building that the facility will serve. The building on which the facility is built must already be a part of a Qualified Residential Property, otherwise the facility is not eligible under the requirements for Category 3.
One commenter also requested greater protection for the tenants of a Qualified Residential Property when a facility applies for or receives an allocation under Category 3. The commenter requested rent protection for the life of the solar or wind facility to ensure tenants are not subject to rent increases due to the installation of the solar or wind facility. The commenter also requested eviction protection, relocation assistance for tenants affected by construction, with a right of return for those tenants after construction, a sales restriction of five years for the building on which the facility is installed, and strong enforcement mechanisms.
The Treasury Department and the IRS considered this comment but did not adopt the commenter's suggestions because the requirements recommended by the commenter are outside the scope of section 48(e) and therefore what could be implemented by these final regulations.
“Eligible property” as defined by section 48(e)(3) means energy property that (i) is part of a wind facility described in section 45(d)(1) for which an election to treat the facility as energy property was made under section 48(a)(5) (wind facility), or (ii) is solar energy property described in section 48(a)(3)(A)(i) (solar energy property) or qualified small wind energy property described in section 48(a)(3)(A)(vi) (small wind energy property). Eligible property also includes energy storage technology (as described in section 48(a)(3)(A)(ix)) “installed in connection with” such energy property.
The Proposed Rules defined “installed in connection with” for energy storage technology to demonstrate what is required for such energy storage technology to be considered eligible property under section 48(e)(3), providing that this is met if both (1) the energy storage technology and other eligible property are considered part of a single qualified solar or wind facility because the energy storage technology and other eligible property are owned by a single legal entity, located on the same or contiguous pieces of land, have a common interconnection point, and are described in one or more common environmental or other regulatory permits; and (2) the energy storage technology is charged no less than 50 percent by the other eligible property.
The Proposed Rules also added a safe harbor, which would deem the energy storage technology to be charged at least 50 percent by the facility if the power rating of the energy storage technology is less than 2 times the capacity rating of the connected wind facility (in kW AC) or solar facility (in kW direct current (DC)).
A commenter stated that the last sentence relating to the safe harbor appears to have the phrases “power rating” and “capacity rating” reversed, and to have omitted how energy storage is measured. The commenter stated that energy storage is measured in kWh, a measure of energy. A generating facility such as a solar or wind farm produces power, measured in kW. The commenter believes that the apparent intended meaning of the sentence would be better rendered with: “The Treasury Department and the IRS also propose to add a safe harbor, which would deem the energy storage technology to be charged at least 50 percent by the facility if the [capacity] rating of the energy storage technology [(in kWh)] is less than 2 times the [power] rating of the connected wind facility (in kW AC) or solar facility (in kW DC).” The Treasury Department and the IRS considered this comment, but the final regulations do not adopt the commenter's suggestion.
Additionally, a couple of commenters requested that the Treasury Department and the IRS eliminate the requirement that energy storage technology be charged at least 50 percent by other eligible property. These commenters point to the general language in sections 48(a)(2)(A)(i)(VI) and 48(c)(6) on energy storage technology and argue against including the charging requirement for section 48(e). One commenter said there is no statutory basis to require energy storage technology to be charged by other eligible energy property and this goes against Congressional intent. Another commenter said this rule may set a problematic and inequitable precedent in the context of the underlying section 48 credit, which Congress deliberately moved away from this standard in the IRA to better promote the benefits of energy storage, and that the standard for storage inclusion should not be more burdensome for environmental justice communities or Tribes than for other projects seeking the section 48 credit.
The general language in sections 48(a)(2)(A)(vi) and 48(c)(6) describing energy storage technology eligible for the section 48 credit differs from what Congress included when describing energy storage technology eligible for a section 48(e) Increase. Eligible property as described in section 48(e)(3) includes
Another commenter suggested eliminating the co-location requirement applicable to energy storage technology because the language of the statute can and should be interpreted to include storage projects that have firm, contractual offtake agreements with offsite solar or wind projects, and that these projects would be located within the same balancing authority, ensuring that all benefits are local. The final regulations do not adopt the commenter's suggestion because the Treasury Department and the IRS view the Proposed Rule that the energy storage technology be located on the same or contiguous pieces of land as the other eligible property as consistent with the statutory requirement that limits energy storage technology eligible for a section 48(e) Increase to only energy storage technology that is installed in connection with other eligible property.
Finally, one commenter requested clarification that the power rating of connected energy storage technology will not be counted against a facility's Capacity Limitation allocation. Because the final regulations, consistent with the Proposed Rules, define a qualified solar or wind facility eligible for a Capacity Limitation without reference to energy storage technology, the Treasury Department and the IRS believe this clarification in the final regulations is unnecessary.
A few commenters also requested that final regulations expand the definition of “in connection with” under section 48(e)(3)(B) applicable to energy storage technology to include interconnection property under section 48(a)(8), so that interconnection costs are eligible for purposes of calculating the section 48(e) Increase.
Section 48(e)(3)(B) provides that energy storage technology defined under section 48(a)(3)(A)(ix) installed in connection with eligible solar or wind property described in section 45(d)(1) or section 48(a)(3)(A)(i) or (vi) is eligible property for purposes of calculating the section 48(e) Increase. Neither section 48(e)(3)(B) nor any other provision applicable to section 48(e) includes interconnection property or costs in the definition of eligible property. Therefore, the final regulations do not adopt these commenters' suggestion.
The Proposed Rules provided that a qualified solar or wind facility is treated as “located in a low-income community” or “on Indian land” under section 48(e)(2)(A)(iii)(I) or located in a geographic area under the Additional Selection Criteria (see part VII of this Summary of Comments and Explanation of Revisions section) if the facility satisfies the nameplate capacity test (Nameplate Capacity Test).
Under the Nameplate Capacity Test, a facility that has nameplate capacity (for example, wind and solar facilities) is considered located in or on the relevant geographic area if 50 percent or more of the facility's nameplate capacity is in a qualifying area. A facility's nameplate capacity percentage is determined by dividing the nameplate capacity of the facility's energy-generating units that are located in the qualifying area by the total nameplate capacity of all the energy-generating units of the facility.
Nameplate capacity for an electricity generating unit means the maximum electricity generating output that the unit is capable of producing on a steady state basis and during continuous operation under standard conditions, as measured by the manufacturer and consistent with the definition provided in 40 CFR 96.202. Energy-generating units that generate DC power before converting to AC (for example, solar photovoltaic) should use the nameplate capacity in DC, otherwise the nameplate capacity in AC should be used (for example, wind facilities). Where applicable, the International Standard Organization conditions are used to measure the maximum electricity generating output or usable energy capacity. The nameplate capacity of any energy storage technology installed in connection with the qualified solar or wind facility does not affect the assessment of the Nameplate Capacity Test.
A few commenters noted concerns on the Nameplate Capacity Test and what it means to be “located in.” Another commenter suggested that the Nameplate Capacity Test should provide maximum flexibility. This commenter noted that Tribal lands are often not contiguous, and that new housing is limited so it is often off-reservation and there are also issues of right of way.
The Nameplate Capacity Test to determine the location of a facility already inherently provides flexibility because it only requires that 50 percent or more (rather than a larger percentage) of the facility's nameplate capacity be in a qualifying area. The Treasury Department and the IRS concluded that a 50 percent standard is a reasonable standard, which strikes the right balance between providing flexibility to taxpayers and ensuring that statutory requirements are satisfied. Additionally, this standard is familiar to taxpayers because it is the same standard that is used to determine whether a facility is located in an energy community under Notice 2023-29, 2023-20 IRB 1.
Other commenters had concerns about the use of AC and DC. These commenters said that the Treasury Department and the IRS should update the Proposed Rules to clarify that the use of DC is limited to project location and does not apply to the maximum output of a qualified facility. One commenter also added that the Treasury Department and the IRS should update the Proposed Rules to clarify that an allocation will not be reduced if a qualified facility's AC output is less than the facility's DC output. Additionally, a few commenters suggested that the nameplate capacity for both wind and solar facilities should be based on AC as the statute indicates and questioned the differing standard.
In response to these comments, the Treasury Department and the IRS added language in the final regulations to clarify that the Nameplate Capacity Test only applies for purposes of determining whether a facility is located in a qualifying area. The Treasury Department and the IRS did not modify the Nameplate Capacity Test to remove the reference to DC for measuring the nameplate capacity of a solar facility because nameplate capacity for a solar
Section 48(e)(2)(D) provides that “electricity acquired at a below market rate” will not fail to be taken into account as a financial benefit. The Proposed Rules provided definitions of the terms “financial benefit” and “electricity acquired at a below market rate” under section 48(e)(2)(D), as well as a manner to apply such definitions, appropriately, to qualified low-income residential building projects (section 48(e)(2)(B)) and qualified economic benefit projects (section 48(e)(2)(C)).
For a facility to be treated as part of a qualified low-income residential building project, section 48(e)(2)(B)(ii) provides that the financial benefits of the electricity produced by such facility must be allocated equitably among the occupants of the dwelling units of a Qualified Residential Property. The Proposed Rules reserved allocations under this category exclusively for applicants that would apply the financial benefits requirement under Category 3 in the following manner.
The Proposed Rules provided that financial benefits can be demonstrated through net energy savings as defined later. At least 50 percent of the financial value of net energy savings would be required to be equitably passed on to building occupants. This requirement would recognize that not all the financial value of the net energy savings can be passed on to building occupants because a certain percentage can be assumed to be dedicated to lowering the operational costs of energy consumption for common areas, which benefits all building occupants. The Proposed Rules provided that applicants must equitably pass on net energy savings by distributing equal shares among the Qualified Residential Property's units that are designated as low-income under the covered housing program, or by distributing proportional shares based on each dwelling unit's electricity usage.
The Proposed Rules accounted for the specific nature of facilities serving low-income residential buildings and facility ownership, as the facility may be third-party owned or commonly owned with the building.
In scenarios where the facility and the Qualified Residential Property have the same ownership, the Proposed Rules defined the financial value of net energy savings as the financial value equal to the greater of: (1) 25 percent of the gross financial value of the annual energy produced or (2) the gross financial value of the annual energy produced minus the annual costs to operate the facility. Gross financial value of the annual energy produced is calculated as the sum of (a) the total self-consumed kilowatt-hours produced by the qualified solar or wind facility multiplied by the applicable building's metered price of electricity and (b) the total exported kilowatt-hours produced by the qualified solar or wind facility multiplied by the applicable building's volumetric export compensation rate for solar or wind kilowatt-hours. The annual operating costs are calculated as the sum of annual debt service, maintenance, replacement reserve, and other costs associated with maintaining and operating the qualified solar or wind facility.
If the facility and building are commonly owned, a signed benefit-sharing agreement between the building owner and the tenants would be required. The Proposed Rules requested comments on how to adjust definitions of gross financial value to account for scenarios in which building occupants are compensating the facility owner for energy services.
In scenarios where the facility and the Qualified Residential Property have different ownership and the facility owner enters into a power purchase agreement (PPA) or other contract for energy services with the Qualified Residential Property owner, the Proposed Rules defined net energy savings as equal to the greater of: (1) 50 percent of the financial value of the annual energy produced by the facility that accrues to the owner of the Qualified Residential Property in the form of utility bill credit and/or cash payments for net excess generation or (2) the financial value of the annual energy produced by the facility that accrues to the owner of the Qualified Residential Property in the form of utility bill credit and/or cash payments for net excess generation minus any payments made by the building owner to the facility owner for energy services associated with the facility in a given year. In these scenarios, the facility owner must enter into an agreement with the building owner for the building owner to distribute the savings to residents.
Two commenters provided that under certain State and Federal housing programs, housing authorities receive utility subsidies based on historical utility costs. These commenters also noted that a housing authority may have their utility allowance decreased if the housing authority reduces their utility costs through savings from the facility. Additionally, these commenters stated that the department managing a housing authority can claim a portion of net metering credits if the housing authority receives net metering credits. One of the commenters, therefore, requested that the Treasury Department and the IRS draft a rule that the housing authority be able to retain 100 percent of net metering credits, regardless of the energy savings received from the program and the facility. The other commenter requested that the Treasury Department and the IRS waive the requirement for public housing authorities to pass financial benefits along to residents. This commenter stated that in public housing, all benefits ultimately accrue to the benefit of residents. Another commenter stated that HUD-utility allowances may need to be increased for buildings if net benefits are to be shared between the owner and tenants, and the external financing is used to build the system, such that additional proceeds will be needed to pay debt service on the energy.
The Treasury Department and the IRS considered these comments but did not adopt them in the final regulations because section 48(e)(2)(B) requires that the financial benefits of the electricity produced by the facility be allocated equitably among the occupants of the Qualified Residential Property.
One commenter warned the Treasury Department and the IRS to guard against owner/related party financing designed to capture all or most of the energy savings benefits by artificially manipulating their terms of the financing to capture the savings during the term of the credit, and against owners seeking to purchase energy wholesale and mark up value to tenants to artificially inflate the value of the energy savings. The commenter says the value of the energy bill savings should be indexed against the approved meter rate as authorized by the relevant public service commission (where applicable) or some other third-party verifiable rate unrelated to the project sponsor or affiliates.
In response to this comment, the Treasury Department and the IRS have
Many commenters requested that the final regulations provide guidance for facility owners to prove equitable distribution of benefits to tenants. A few commenters stated that in certain cases, like a project using community renewable energy facility rate structures offered by utilities, separately metered residents can subscribe voluntarily, and some residents may choose not to subscribe. Therefore, these commenters requested that the regulations allow for a reduction in the equitable distribution requirement on a pro-rata basis by the (number) of residents who choose not to subscribe. However, one of the commenters recommended a minimum threshold of resident participation, suggesting 50 percent participation at placed in service, for the distribution of benefits to be considered equitable.
In consideration of these comments, the Treasury Department and the IRS have clarified in the final regulations that for any occupant(s) that choose to not receive utility bill savings, the portion of the financial value that would otherwise be distributed to non-participating occupants must be instead distributed equitably to the participating occupants. Additionally, no less than 50 percent of the Qualified Residential Property's occupants that are designated as low-income must participate and receive utility bill savings for the facility to utilize this method of benefit distribution.
A few commenters suggested changes to the definition of gross financial value. One commenter stated that for purposes of building occupants compensating the facility owner, gross financial value could be calculated based on the average monthly local utility rate for either residential or low-income residential (from the previous calendar year or trailing 12 months) multiplied by the average residential kilowatt hour usage per square foot multiplied by the per square footage of rentable residential space in the building. The commenter provided variation and detail on how this would be accomplished.
Another commenter requested clarification on how to define “gross financial value.” The commenter stated that it is unclear whether the “price of electricity” means only the energy costs or also all the delivery costs and other charges that may be charged on a per kilowatt hour basis. Additionally, the commenter noted that the “export compensation rate for . . . kilowatt hours” may not be solely tied to the energy but may also include additional compensation such as the value of renewable energy certificates or other incentives provided by States.
Finally, one commenter stated that calculating the “gross financial value of the annual energy produced,” as defined in the Proposed Rules, would be difficult for buildings due to the complexity of electricity rate structures in many jurisdictions, which may vary depending on the time of day and time of year.
The Treasury Department and the IRS considered the commenters' suggestions but generally did not adopt them because the Proposed Rules provide a clear and accurate framework for defining “gross financial value.” However, the final regulations clarify, consistent with the comments received, that gross financial value includes the sale of any renewable energy credits or other attributes associated with the facility's production, if separate from the metered price of electricity or export compensation rate. The same definition of gross financial value applies regardless of the ownership structure.
One commenter requested clarification about whether front of the meter (FTM) volumetric tariff compensation rate, such as Connecticut's Residential Renewable Energy Solutions Buy-All-Sell-All tariff (BASA Tariff), may be included in the gross financial value calculation when the facility and Qualified Residential Property have the same ownership. The commenter believes that the BASA tariff $/kWh revenue would be included in the definition of gross financial value because it is included in the definition as part of “the total exported kilowatt-hours produced by the qualified solar or wind facility multiplied by the applicable building's volumetric export compensation rate for solar.”
The Treasury Department and the IRS considered this comment but ultimately concluded that additional clarification in the final regulations to address specific State tariff rates is not necessary. The definition of gross financial value included in the final regulations, consistent with the Proposed Rules, already includes the total exported kilowatt-hours produced by the qualified solar or wind facility multiplied by the applicable building's volumetric export compensation rate for solar or wind kilowatt-hours, which would include compensation from the electricity produced from the facility.
Another commenter stated that it is not appropriate to define financial benefits in terms of the value of energy savings. Instead, this commenter claimed that the only financial benefit that can be generated by facilities in Category 3 would be through net metering, where the facility generates excess capacity that is sold back to the grid for off-site consumption. The commenter also implied that, in the case of net metering credits, the credit would go directly to the tenants, and that the building owner will never receive any financial benefit.
The Treasury Department and the IRS considered this comment but did not adopt it in the final regulations. The Treasury Department and the IRS determined that gross financial value from the electricity produced from a qualified solar or wind facility may stem from self-consumed kilowatt-hours produced by the facility, exported kilowatt-hours produced by the facility, or the sale of any renewable energy credits or other attributes associated with the facility's production (if separate from the metered price of electricity or export compensation rate). Further, financial value of energy savings from the electricity produced is a financial benefit of the electricity produced by the facility and section 48(e)(2)(B)(ii) provides that the financial benefits of the electricity produced by such facility must be allocated equitably among the occupants of the dwelling units of a Qualified Residential Property.
One commenter stated that rather than creating two methods, the Treasury Department and IRS should adopt a single method to calculate net energy savings. The commenter stated that for both scenarios (commonly owned and third-party owned), the final regulations should adopt the method from the Proposed Rules that was only proposed to apply when the facility and Qualified Residential Property have the same ownership. The Treasury Department and the IRS considered this comment but did not adopt it in the final regulation because it is appropriate for “net financial value” to be defined differently depending on whether the facility is commonly owned or third-party owned because in third-party
Another commenter cited to the Connecticut's Residential Renewable Energy Solutions BASA Tariff, which involves FTM projects, and requested a change to the net financial value definition for third-party owned facilities. The commenter proposed that, to include FTM projects in Category 3, the first definition of net financial value needs to be amended to reference “the total financial value of energy produced by the facility that accrues to the owner of the qualified residential property, or the facility owner, the tenants, or a combination thereof.” The commenter further provided that a set percentage can be required to be provided, like 25 percent, to the tenants, and the rest of the revenue can be allocated between the facility owner and the property owner in whatever manner is requested. This commenter also requested that the second definition of net financial value be amended to say that “the total financial value of the annual energy produced by the facility that accrues to the owner of the qualified residential property, or the facility owner, the tenants, or a combination thereof minus any payments made, or revenue allocated, to the facility owner for energy services associated with the facility in a given year” to consider solar site lease structures (for FTM project like BASA) in addition to PPAs.
Another commenter generally recommended that the Treasury Department and the IRS adopt a baseline requirement of passing on at least 25 percent of net energy savings to tenants, to ensure meaningful financial benefits are afforded to households in Category 3.
The Treasury Department and the IRS considered these comments but did not adopt them in the final regulations and maintain the baseline of 50 percent of the net energy savings calculated from a minimum of 25 percent of the gross financial value of electricity produced as described in the Proposed Rule, which is a higher value of meaningful financial benefits than the commenter suggests. The other 50 percent of the net energy savings can be assumed to be dedicated to lowering the operational costs of energy consumption for common areas, which benefits all building occupants. The Treasury Department and the IRS determined that the baseline of 50 percent of the net energy savings is consistent with the statutory intent for Category 3, which is to provide the financial benefits of the electricity produced directly to building occupants.
One commenter generally noted that the financial benefit definitions for Category 3 only contemplate multi-family housing. This commenter requests clarification for Tribal housing programs, which the commenter states primarily consist of Tribal single-family residences that would have their own meter.
In response to the comment, the Treasury Department and the IRS have modified the financial benefit definition to provide clarity for single-family residences that meet the criteria of a Qualified Residential Property. The final regulations state that a Qualified Residential Property could either be a multifamily rental property or single-family rental property. The same rules for financial benefits for Category 3 apply to both property types.
Several commenters expressed concern over the signed benefits sharing agreement between the building owner and the tenants if the facility and building are commonly owned. Generally, commenters suggested the elimination of this requirement. A few commenters noted the administrative burdens and challenges on the building owner in obtaining signed agreements from all tenants. Likewise, another commenter said that this requirement is overly burdensome, and that requiring each resident to voluntarily sign a benefits sharing agreement would prevent a facility from proceeding. This commenter also noted the possibility that requiring such an agreement may conflict with consumer protection laws, and another commenter agreed suggesting certain customer protection disclosures may be required. One commenter also stated that this process would potentially present a `false promise' to residents should the project not be selected for an allocation. Some commenters offered alternatives to a signed benefits sharing agreement. Several commenters recommended that the facility owner or building owner provide notice to all building occupants of the expected financial benefits and the proposed method of allocating the benefit. Similarly, another suggested that owners be required to develop a benefits sharing plan that must be communicated to tenants, with owners ensuring that sufficient time is given for tenants to provide feedback. Finally, a few commenters suggested that applicants instead submit a self-attestation form certifying that they will equitably distribute benefits in accordance with the standards set forth in HUD guidelines.
One commenter supported the requirement for a signed benefits sharing agreement. However, the commenter requested additional guidance on the contents of such a benefits sharing agreement, including specific required consumer protection disclosures, such as resources tenants can access to better understand or renegotiate the agreement. This commenter additionally encouraged the Treasury Department and the IRS to adopt a model affidavit or agreement between building owners and tenants based on the options considered and used in California's Solar on Multifamily Affordable Housing (SOMAH) program. Another commenter generally asked for clarification on how to prove or attest that financial benefits are due to cost savings associated with solar.
Several Tribal commenters requested that facilities owned by Tribes or Tribal housing authorities should be presumed to result in an economic benefit to Tribal members who reside on the reservation or who live in Tribal-owned housing, and thus should not be required to enter into a benefits sharing agreement with Tribal members to show the financial benefit to Tribal members.
The Treasury Department and the IRS agree that requiring a signed benefits sharing agreement between the building owner and the tenants is burdensome and not necessary to demonstrate compliance with Program requirements. Instead, to better achieve the goal of verifying Program compliance and to provide clarification to applicants regarding how they can demonstrate that statutory requirements are met the final regulations require that facility owners for all Category 3 facilities must
Regardless of ownership, residential buildings may have master-metered or sub-metered utilities. Therefore, the Proposed Rules provided that for sub-metered buildings, the tenants must receive the financial value associated with utility bill savings in the form of a credit on their utility bills. HUD has issued guidance for residents of sub-metered HUD-assisted housing that participate in community solar, providing an analysis of how community solar credits may affect utility allowance and annual income for rent calculations.
The Treasury Department and the IRS are aware that in some States or jurisdictions it may not be administratively, or legally, possible to apply utility bill savings on residents' electricity bills. The Proposed Rules requested comments on this issue and how financial benefits, such as services and building improvements, can be provided to residents in such residential buildings.
For master-metered buildings, the Proposed Rules provided that because residents do not have individually metered utilities and do not receive utility bills, the building owner must pass on the savings through other means, such as by providing certain benefits to the building residents beyond those provided prior to the qualified solar or wind facility being placed in service. HUD has issued guidance for how residents of mastered-metered HUD-assisted housing can benefit from owners' sharing of financial benefits accrued from an investment in solar energy generation.
Many commenters noted that it is difficult for utility bill credits to be distributed to residents even in sub-metered buildings and suggested that the financial benefit structure available under the Proposed Rules for master metered buildings be similarly applied to sub-metered buildings. Several commenters noted that it is not possible to distribute utility bill credits to residents in sub-metered buildings because most States lack legislation or regulations governing the allocation of solar credits to consumer utility bills, and, one commenter further stated, that even in States that do, the utilities may not have the administrative infrastructure to allocate credits across bills. Another commenter supported this by stating that only 21 States and DC have statewide policies that support sharing solar savings in multi-family housing in the form of utility bill credits. Many commenters also voiced general concern that the process of distributing utility credits is administratively burdensome on the owner of the facility. One commenter stated that many of the residents who would be eligible to receive bill credits on their utility bills will already receive a subsidized electricity price from their distribution company, which would result in their cost of power already being lower than other consumers in their service territory. This commenter asserts that it be more economical to “sell” or “allocate” the bill credits to another consumer in the same service territory and offset their higher energy costs and provide a greater overall financial benefit to tenants. The commenter states that this system would be similar to the process proposed for master-metered buildings.
Many commenters asked for flexibility in providing financial benefits to residents. A few commenters suggested that metering configuration should not be regarded for purposes of defining financial benefits. One commenter stated that financial benefits should be defined by HUD, and should be applicable to all properties, regardless of whether the residential unit is sub-metered or if the building is master-metered. This commenter specifically stated that financial benefits should be allowed to accrue to the common area meters and then be disbursed equitably to occupants based upon any approved method—without regard to metering configuration and without requiring a bill credit allocation method. Several other commenters suggested, as alternatives, services such as free or reduced cost high speed internet, shuttle services, public transportation subsidization, job training programs, community events, and building improvements as alternatives to be allowed instead of utility bill credits.
One commenter suggested that if utility bill credits are not available, applicants could determine a baseline year and calculate the average price per kilowatt hour for that year and then for all subsequent years (after placed in service date) and multiply it by the kilowatt hours of production multiplied by an annual acceptable adjustment. The commenter stated that net energy savings from a given period (month, quarter, or year) would then be required to be spent on residential service programs (available to the largest group of residents), facility upgrades benefiting residents, and other services that benefit a large group of residents.
A few commenters, although supportive, noted that the HUD guidance allowing for services or other benefits to be provided in master metered buildings, in lieu of direct financial savings to tenants, is limited in scope. One commenter pointed out that the HUD memorandum cited in the Proposed Rules only covers developments subsidized through HUD's multifamily programs. This commenter noted that this guidance does not cover HUD's Project Voucher Program and that the USDA does not provide matching guidance for the USDA supported housing. Therefore, this commenter suggests that the regulations directly define financial benefits for master metered housing,
Similarly, another commenter noted that certain financial benefits distributed directly to residents may be includable in a household's annual income. The commenter noted that HUD has determined that providing financial benefits in the form of gift cards or cash payments would generally be included in income. Therefore, this commenter supported the inclusion of language in the rules that would state that financial benefits can include credits on utility bills or could include benefits that can be equitably provided to residents but are not direct payments to the residents, such as resident services, free or reduced cost internet, job training, or building upgrades. However, another commenter requested the opposite, stating that direct payments or other financial benefits like rent reductions should be the preferred form of benefits.
In response to these comments, the Treasury Department and the IRS modified the Proposed Rules in the final regulations to provide maximum flexibility to equitably allocate financial benefits to residents while also ensuring the statutory requirements are satisfied. Accordingly, the final regulations provide that financial value can be distributed to building occupants via utility bill savings or through different means, and depending on the method selected, the final regulations prescribe the requirements that must be met. For purposes of this via utility bill savings provision, financial benefits will be considered to be equitably allocated if at least 50 percent of the financial value of the energy produced by the facility is distributed as utility bill savings in equal shares to each building dwelling unit among the Qualified Residential Property's occupants that are designated as low-income under the covered housing program or other affordable housing program (described in section 48(e)(2)(B)(i)) or alternatively distributed in proportional shares based on each low-income dwelling unit's square footage, or each low-income dwelling unit's number of occupants. For any occupant(s) that choose to not receive utility bill savings (for example, exercise their right to “opt out” of a community solar subscription in applicable jurisdictions), the portion of the financial value that would otherwise be distributed to non-participating occupants must be instead distributed to all participating occupants. No less than 50 percent of the Qualified Residential Property's occupants that are designated as low-income must participate and receive utility bill savings for the facility to utilize this method of benefit distribution. If financial value is not distributed via utility bill savings, financial benefits will be considered to be equitably allocated if at least 50 percent of the financial value of the energy produced by the facility is distributed to occupants using one of the methods described in HUD guidance, or other guidance or notices from the Federal agency that oversees the applicable housing program identified in section 48(e)(2)(B).
With respect to allocating financial value via utility bill savings, commenters addressed the language in the Proposed Rules that provided an alternative method for net energy savings to be distributed in proportional shares based on each dwelling unit's electricity unit. The commenters stated that this method is not permitted by HUD. These commenters also proposed a third option for equitable distribution, which they claim is used in California's SOMAH program, where shares are distributed to each unit based on square footage. In response to this comment, the Treasury Department and the IRS added language in the final regulations to clarify that the financial value should be distributed in equal shares to each building dwelling unit among the Qualified Residential Property's occupants that are designated as low-income under the covered housing program or other affordable housing program (described in section 48(e)(2)(B)(i)) or alternatively distributed in proportional shares based on each low-income dwelling unit's square footage, or each low-income dwelling unit's number of occupants.
Another commenter suggested that in a master-metered building, the facility owner be allowed to allocate the value of energy savings to the building's tenant association to distribute equally as the association sees fit. This was suggested in addition to and as alternative to the options provided in the HUD guidance.
In response to this comment, the Treasury Department and the IRS considered but did not adopt this suggestion. The Treasury Department and the IRS have provided additional clarity on the applicability of HUD guidance in the final regulations to provide flexibility to the applicant to determine the methodology most appropriate for allocation of the value of energy savings based on the circumstances of the Qualified Residential Property. This includes options that have been determined to not affect a tenants utility allowance and annual income for rent calculations.
For a facility to be treated as part of a qualified low-income economic benefit project, section 48(e)(2)(C) requires that at least 50 percent of the financial benefits of the electricity produced by the facility be provided to qualifying low-income households. To satisfy this standard, the Proposed Rules required that the facility serve multiple households and at least 50 percent of the facility's total output is distributed to qualifying low-income households under section 48(e)(2)(C)(i) or (ii). In addition, to further the overall goals of the Program, the Proposed Rules reserved allocations under this category exclusively for applicants that would provide at least a 20-percent bill credit discount rate for all such low-income households. The Proposed Rules defined a “bill credit discount rate” as the difference between the financial benefit distributed to the low-income household (including utility bill credits, reductions in the low-income household's electricity rate, or other monetary benefits accrued by the household) and the cost of participating in the Program (including subscription payments for renewable energy and any other fees or charges), expressed as a percentage of the financial benefit distributed to the low-income household. The bill credit discount rate can be calculated by starting with the financial benefit distributed to the low-income household, subtracting all payments made by the low-income customer to the facility owner and any related third parties as a condition of receiving that financial benefit, then dividing that difference by the financial benefit distributed to the low-income household.
Because of the financial benefits requirements that are structured for community solar projects, several commenters thought that the Proposed Rules too narrowly limited Category 4. Commenters noted that the Proposed Rule precluded otherwise eligible facilities from qualifying under Category 4, including behind the meter (BTM) facilities that meet the Category 4 requirements. One commenter suggested that Category 4 should be open to projects that directly benefit Tribal member small businesses. Similarly, a
Some commenters also made suggestions on how to define Category 4. One commenter suggested that projects under Category 4 allow only on-site commercial and industrial projects to reach overall deployment and savings goals. Similarly, one commenter requested that Category 4 incentivize larger agribusiness projects that employ residents living in these areas and working at these agribusiness facilities (or similar industries) and stated that the 50 percent household requirement is too complicated. This commenter felt that residential facilities are being prioritized in categories 1, 3, and 4, and, therefore, that Category 4 should be modified to incentivize facilities supplying power to businesses but providing financial benefits to low-income residents in the same area. Another commenter recommended that the Category 4 allocation give priority to qualified low-income benefit projects less than 1 MW that are located in low-income communities.
The Treasury Department and the IRS recognize the commenters' concerns that Category 4 is limited. However, projects must meet the statutory requirements under section 48(e)(2)(C) to be considered eligible for Category 4. To ensure these requirements are not too narrowly construed, the Treasury Department and the IRS adopted a change to the FTM definition in the final regulations applicable to Category 4 to ensure that projects meeting the intent of Category 4, as that intent was described in the Proposed Rules, are not unintentionally disqualified due to an overly strict definition of FTM. The final regulations clarify that a facility is FTM if it is directly connected to a grid and its primary purpose is to provide electricity to one or more offsite locations via such grid or utility meters with which it does not have an electrical connection; alternatively, FTM is defined as a facility that is not BTM. The final regulations also clarify that for the purpose of Category 4, a qualified solar or wind facility is also FTM if 50 percent or more of its electricity generation on an annual basis is physically exported to the broader electricity grid.
However, the Treasury Department and the IRS emphasize that this does not change the intent of Category 4 that projects falling under the definition of BTM are not eligible for Category 4, and that financial benefits to eligible low-income households can only be delivered via utility bill savings. Based on industry and market research, community solar programs primarily use utility bill savings to deliver financial benefits to households. For this reason, the Treasury Department and the IRS have defined financial benefits in this manner.
At least one other commenter requested allowing public and affordable housing buildings to participate in Category 4 through the use of geo-eligibility to establish qualification for a Category 4 site. One of these commenters mentioned the process being adopted in New York for its Inclusive Community Solar Adder, which will allow anyone who lives in a designated “Disadvantaged Community” to qualify upon demonstration that their address is in one of the so-called DAC zones. This commenter noted that the Climate and Economic Justice Screening Tool (CEJST) map is already being used to qualify sites for Category 1 participation.
Because section 48(e)(2)(C) provides requirements for ensuring that the financial benefits of the electricity produced by a qualified solar or wind facility are provided to qualifying households, establishing categorical eligibility for Category 4 based on geographic location of the project is inappropriate. Similarly, as discussed in more detail later under part V.B.6. of this Summary of Comments and Explanation of Revisions section, qualifying households based on geography is also inappropriate because of statutory requirements. Similarly, establishing eligibility for multifamily buildings (including master-metered buildings), agribusinesses, or other arrangements that do not directly result in utility bill savings for low-income households is also inappropriate. As discussed earlier, financial benefits to eligible low-income households can only be delivered via utility bill savings under these regulations. Therefore, the final regulations do not adopt these comments.
One commenter urged the Treasury Department and the IRS to require a higher bill discount rate than 20 percent, stating the programs in Illinois, Massachusetts, and Maryland already provide discounts at or above the proposed threshold level. This commenter believes that the increased credit for qualified low-income economic benefit projects should allow for an increase in the amount of financial benefit delivered to low-income customers in these markets.
Another commenter supported the method of requiring financial benefits in the form of bill credits, but suggested an additional requirement to be included in cases where beneficiaries have no cost of participation through a subscription fee. In this situation, the commenter suggested that the bill credit discount rate should be calculated as the total savings on a customer's utility bill, annually, divided by the total value of the electricity produced by the project, as measured by the income to the project paid by the utility, independent system operator (ISO), or other customer procuring power from the project.
Another commenter requested clarification on the interpretation of bill credit discount rate, which the commenter read to mean that 20 percent of the total export credit rate would be the minimum required revenue share with the low-income customer, rather than 20 percent of the customer's pre-solar electricity bill. This commenter also requested clarification as to whether the calculation will be annual, and whether the form of benefits must specifically be “utility bill credits” or could be other documented financial benefits provided to tenants.
One commenter stated that a 20 percent cost savings requirement will likely be unattainable in some energy markets, specifically States and localities that have less amicable laws and utility regulations for community solar. This commenter recommended a 15 percent cost savings for 2023, stating that 15 percent is still on the higher end of the current industry average for community solar cost savings. This commenter also requested that the benefit should be an annual reduction (of 15 percent) because there can be cost savings fluctuations throughout a calendar year. Although the Treasury Department and the IRS considered various percentages for required cost savings between 5 percent and 20 percent, based on a review of various State program rates and market information, the Treasury Department and the IRS have decided to maintain the 20 percent rate. This rate will allow for the greatest savings to the low-income households and further the
Tribal commenters requested that projects owned by Tribes or Tribal housing authorities should be presumed to result in an economic benefit to Tribal members who reside on the reservation or who live in Tribal-owned housing.
The Treasury Department and the IRS decline to adopt the suggestion of presumption of economic benefit. The statutory requirements for the Program require that an qualified low-income economic benefit project serves multiple households and at least 50 percent of the facility's total output is distributed to qualifying low-income households under section 48(e)(2)(C). To help applicants meet this requirement, the Treasury Department and the IRS have provided in the final regulations an illustrative list of categorical eligibility options to provide maximum flexibility to qualify low-income households. This includes eligibility based on Tribal programs and housing programs, among many other options.
Several commenters have requested that the Treasury Department and the IRS add eligibility under Category 4 for projects that benefit one single-family residence where 100 percent of the facility's total output is distributed to the qualifying low-income household residing at that residence, provided that the project meets all other Category 4 criteria, and the facility provides at least a 20-percent utility bill savings for such low-income household. Several commenters also added that Congress's use of the term “households” is more properly read as a programmatic term applying to all low-income households that can benefit from the Program, rather than a narrower reading suggested in the Proposed Rules. One commenter argued that this narrow reading (excluding single family households from Category 4) would unnecessarily and unfairly discriminate against certain households.
After consideration of all these comments, the final regulations do not adopt the commenter's suggestion. Section 48(e)(2)(C) applicable to Category 4 facilities requires that at least 50 percent of the financial benefits of the electricity produced by the facility be provided to “households” with certain income levels. Because the statute uses the plural term “households,” the Treasury Department and the IRS determined that providing financial benefits to a single household is insufficient to meet the requirements of section 48(e)(2)(C) applicable to Category 4 facilities.
Several Tribal comment letters requested that Category 4 should not be limited to projects that provide only individual benefits or community-scale projects. These commenters urged the Treasury Department and the IRS to expand the definition of “financial benefit” to include community-wide benefits, such as direct benefits to the Tribal government from the additional tax credit (especially for projects owned by the Tribe and receiving elective payments from the Treasury Department), job creation and economic benefits to low-income Tribal members. These same commenters also stated that Category 4 should be open to all projects, regardless of metering, that directly benefit Tribal member small businesses (where the small business can apply for the section 48 credit) or Tribal enterprises located on Tribal lands. Additionally, some of the Tribal comments requested flexibility for Tribal housing or economic development projects that are serving Tribal lands and Tribal households to define benefits collectively (rather than individually), because many of the Tribal commenters are located in States that do not allow for community solar. These commenters stated that they will have to negotiate directly with a utility to deploy community scale projects on the Reservation.
To promote more flexibility with respect to financial benefits requirements in Category 4, a few commenters requested that the Treasury Department and the IRS extend the same flexibility is provided for Category 3 projects regarding financial benefits to Category 4 projects as well. These commenters requested that a manner other than bill credits be permitted to provide financial benefits directly to low-income subscribers in Category 4 that still meets the nominal 20 percent discount requirement, like gift cards, direct payments, or checks. One commenter asked whether master-metered projects are eligible for Category 4 if a project adheres to the same HUD guidance used for Category 3 projects.
The Treasury Department and the IRS considered the comments requesting expansion or flexibility with respect to financial benefits for Category 4 to allow methods other than utility bill savings but ultimately decided not to adopt the commenters' suggestions in these final regulations. Requiring financial benefits via utility bill savings is the only means through which the Treasury Department and the IRS can ensure that the provision of financial benefits to qualifying households is sufficiently regulated such that the requirements of section 48(e)(2)(C) are satisfied. Therefore, the final regulations clarify that financial benefits for Category 4 must be tied to a utility bill of a qualifying household. The Treasury Department and the IRS may consider other methods of determining Category 4 financial benefits in future years.
The final regulations, however, address comments regarding the potential unsuitably of the proposed rules to net-credit billing, or other structures where the qualifying household does not make a direct payment to the project owner by providing an alternative methodology for calculating a 20 percent bill credit discount rate in this scenario. In cases where the qualifying household has no or only a nominal cost of participation, the bill credit discount rate should be calculated as the financial benefit provided to a qualifying household (including utility bill credits, reductions in a qualifying household's electricity rate, or other monetary benefits accrued by a qualifying household on their utility bill) divided by the total value of the electricity produced by the facility and assigned to the qualifying household (including any electricity services, products, and credits provided in conjunction with the electricity produced by such facility), as measured by paid by the utility, ISO, or other off-taker procuring electricity (and related services, products, and credits) from the facility.
One commenter requested that the facility should not have to provide power to households, as long as the financial benefits were distributed to residents of qualifying households. In this case, the commenter stated that a non-profit organization planned to build a facility on the non-profit office building but distribute the savings the non-profit derived from the facility to the residents of apartments the non-profit administers. Similarly, another commenter noted that the use of “distribute” rather than “assigned” in the requirement in the Proposed Rules that 50 percent of the facility's total output is distributed to qualifying low-income households may imply that beneficiaries are expected to receive the physical flows of electricity from the
In response to these comments and to clarify the intent of the Proposed Rules, which was to structure Category 4 consistent with the market as it exists today (including community solar business models), the final regulations adopt the suggestion of the commenter to change “distributed” to “assigned.” Therefore, the full clause in the final regulations is “at least 50 percent of the facility's total output must be assigned to Qualified Households.”
To ensure the requirements of section 48(e)(2)(C) are met, verification of households' qualifying low-income status is required. The Proposed Rules provided that applicants are responsible for proof-of-income verification and would be required to submit documentation upon placing the qualified solar or wind facility in service that identifies each qualifying low-income household, the output allocated to each qualifying low-income household in kW, and the method of income verification utilized.
The Proposed Rules provided that applicants may use categorical eligibility or other income verification methods to qualify low-income households. Categorical eligibility consists of obtaining proof of household participation in a needs-based Federal,
Several commenters commented on the verification methods to qualify low-income households. On self-attestation, many commenters disagree with the Proposed Rules prohibiting eligibility based on self-attestation. Many commenters were in favor of self-attestation, which according to one commenter could include an attestation to the effect that the household either participates in one of the programs that has the relevant standard as a criterion or otherwise meets the standard to the best of the resident's knowledge. One commenter stated that self-attestation is the fastest and most efficient way to ensure maximum low-income customer participation. This commenter noted that many customers will be skeptical of providing documents, and that the process of obtaining, processing, and verifying the documentation is administratively burdensome and time consuming. Another commenter noted a practical consideration that by accepting self-certification, households who are not yet enrolled in Federal or State energy assistance programs but are eligible or in the process of enrolling may still participate in qualified low-income economic benefit projects. Another commenter stated that only a fraction of eligible households currently participate in existing State, Federal, utility, or Tribal programs for which they are eligible, and many barriers—including knowledge, time, documentation, and language fluency—prevent many households from participating.
Some of the commenters' recommendations also tied into the use of State programs. One commenter suggested removing the self-attestation limitation where self-attestation is permitted by State agencies. Two other commenters similarly suggested the rules accept income verification via State-program verification where States specifically accept self-attestation with one of the commenters noting that subscribers and applicants should not have to double verify a household if self-attestation is used on the State level. Another commenter encouraged that applicants be allowed to use benefit cards as sufficient evidence of participation in qualifying programs where such cards are the means by which a State makes the benefit available to participants.
Another commenter requested that the rules clarify whether the use of State-approved geo-qualification maps or CEJST are approved income verification methods and recommended that, for individuals who reside within a CEJST or Persistent Poverty County (PPC), the rules should consider allowing self-attestation as a means of income-qualification in States where it is a permissible method for income-qualification. Another commenter asked for clarification about the interaction between this Program and State agency provided income verification, as well as Department of Energy's (DOE) community solar subscription tool tying eligibility, initially, to LIHEAP. The commenter noted that some State agencies allow self-attestation and/or State-approved geo-qualification maps in various programs and requested that the rules allow self-attestation and geo-qualification (including both State maps and CEJST) meeting certain standards to the maximum extent allowable by law. Another commenter suggested expanding those who can provide verification to not just the State agencies but also utilities. In contrast, another commenter instead recommended removing the concept of allowing State agencies to provide verification at all and proposed adding a requirement to make clear that the requirement is on applicants to receive verification directly from the customers.
Some commenters asked for the expansion of categorical eligibility. For example, one commenter recommended that public housing, USDA Rural Development, and the Project Based Voucher Program be added to the list of categorically eligible Federal assistance programs noted in footnote 5 of the Proposed Rules. Another commenter asked if the listed methods are the only possible methods of verification or if other State-approved methods may be considered as well. Another commenter also suggested for purposes of Category 4 that the rules allow participation in more programs as proof of income and that paystubs, tax returns, and credit checks should be removed as possibilities as these could alienate low-income households. An additional commenter noted their view on the importance of protecting Tribal data sovereignty. This commenter said the rules should not tie Tribes to external sources of data. This commenter believes that self-certification as to poverty levels or other metrics by Tribes should be sufficient.
A few commenters suggested adding geographic eligibility to verify low-income status. One commenter suggested adding geographic eligibility to the “category eligibility” and “other income verification methods” to qualify low-income households, where “geographic eligibility” is defined as a household that is currently residing in a LIHTC Qualified Census Tract (LIHTC Qualified Census Tract) and where at least one adult in that household has resided for at least the previous six months. The commenter claims that the LIHTC Qualified Census Tract
In contrast, one commenter supported the Proposed Rules noting that categorical income verification decreases costs and increases available low-income customer benefits. Another commenter provided an entirely different suggestion stating that income verification is a vestige of the community solar subscription model and is alternatively achieved by serving communities in low-income areas as measured by area or State median income census data. The commenter suggested that income verification through the Statewide Shared Clean Energy Facility (SCEF) program (which is a Connecticut program) relies on the distribution utilities determining customer eligibility.
After consideration of all of comments on the verification methods to qualify low-income households, the final regulations adopt these comments in part. The Treasury Department and the IRS considered numerous verification methods in crafting the Proposed Rules and the final regulations to strike a balance between reducing administrative burden for taxpayers and households and ensuring adequate checks that the facilities receiving a Capacity Limitation under Category 4 meet the requirements of section 48(e)(2)(C). The final regulations adopt the Proposed Rules' prohibition on self-attestations because they are not sufficiently reliable or verifiable. However, this prohibition on direct self-attestation from a household does not extend to categorical eligibility for needs-based Federal, State, Tribal, or utility programs with income limits that rely on self-attestation for verification of income. The final regulations clarify that income verification is accepted via program verification where the relevant jurisdiction specifically accepts self-attestation.
The Treasury Department and the IRS agree that subscribers and applicants should not have to double verify when a State program accepts self-attestation. The final regulations, consistent with the Proposed Rules, provide flexibility for applicants to qualify households through several means, including categorical eligibility and paystubs, tax returns, or income verification through crediting agencies and commercial data sources. Moreover, the list of Federal programs included in footnote 5 of the Proposed Rules is not the exclusive list of Federal programs that could be used to demonstrate categorical eligibility, which provide additional flexibility to qualify households. However, in response to the comments, the final regulations will include additional examples of programs that will be considered categorically eligible based on income status. Therefore, in response to the commenter's request the following additional programs will be added to the illustrative list that was provided in the Proposed Rules: Federal Communication Commission's Lifeline Support for Affordable Communications, USDA's National School Lunch Program; U.S. Social Security Administration's Supplemental Security Income; or any verified government or non-profit program serving Asset Limited Income Constrained Employed (ALICE) persons or households. The final regulations also clarify that to qualify for categorical eligibility under one of these programs, an individual in the household must be currently enrolled or must have received an award letter or other written documentation from the program in the last 12 months.
With respect to State programs, the final regulations, consistent with the Proposed Rules, provide that categorical eligibility also consists of obtaining proof of household participation in a needs-based State or utility program, so long as the income limits are at or below the qualifying income level for the specific facility. The final regulations clarify that the qualifying income level for a household is based on where such household is located. Without additional information or requirements, geographic-based eligibility verification does not prove that a particular household necessarily meets the income parameters of section 48(e)(2)(C). Although one commenter, for example, noted that LIHTC Qualified Census Tracts have stricter income requirements, this does not address the concern that a particular household's income may not qualify under the statute but only that there are households in the census tract that would qualify.
Two commenters requested eligibility of low-income households be established only at the time of enrollment and remain for the length of the subscription and that there should not be a continual obligation to verify households as low-income. This request is consistent with the Proposed Rules, which provided that applicants are responsible for proof-of-income verification and would be required to submit documentation once upon placing the qualified solar or wind facility in service that identifies each qualifying low-income household as well as other information. The final regulations maintain the Proposed Rule but clarify that the low-income status of a household is determined at the time the household is enrolled in the community program and does not need to be re-verified. Similarly, the recapture rules discussed in part XIII of this Summary of Comments and Explanation of Revisions section are not imposed if the low-income status of households change in later years; however, the Treasury Department and the IRS determined that a change in the final regulations to clarify this point is unnecessary.
Under section 48(e)(4)(C), the total annual Capacity Limitation is 1.8 gigawatts (GW) of DC capacity for each of the calendar year 2023 and 2024 programs. Consistent with section 4.02 of Notice 2023-17, the Proposed Rules specified how the annual Capacity Limitation would be allocated across the four facility categories for 2023. The Proposed Rules, consistent with Notice 2023-17, reserved a portion of the total annual Capacity Limitation of 1.8 GW of DC capacity for each facility category for calendar year 2023 as follows:
The Proposed Rules also provided that the Treasury Department and the IRS would retain the discretion to reallocate Capacity Limitation across categories and sub-reservations to maximize allocation in the event one category or sub-reservation is oversubscribed and another has excess capacity.
One commenter suggested eliminating the 1.8 GW Capacity Limitation altogether, in favor of the same uncapped allocation that they view other solar customers, typically customers in a higher income bracket, have previously received. However, section 48(e)(4)(C) provides the 1.8 GW Capacity Limitation, and it cannot be modified by the final regulations. Therefore, the final regulations do not adopt this comment.
Another commenter suggested re-allocating the Capacity Limitation under Category 3 to Category 4 to increase the total number of MW that can be deployed efficiently while yielding the highest economic benefit. Similarly, a different commenter recommended increasing Category 4 by combining Category 1 and 4 into a single 1.4 GW category applicable to both. In addition, this commenter suggested that the Treasury Department and the IRS should layer on preferences for economic benefits over location in facility selection, similar to its preferences around ownership and location (discussed in part VII of this Summary of Comments and Explanation of Revisions section). Procedurally, an applicant would submit an application for this combined category in the applicable sub-allocation and indicate under which category qualification, and thus bonus level, for the project is sought. The commenter added that the Treasury Department and the IRS can apply a similar approach to the Proposed Rules to sub-allocate capacity among facility types within that combined category, subdividing among commercial, community, and single-family residential solar as strongly recommended by both industry and environmental justice groups since last year. Another commenter also had recommendations about how to re-allocate capacity taking into account the Additional Selection Criteria (ASC). The commenter suggested that the Treasury Department and the IRS reallocate unused capacity in the same year. Specifically, the commenter suggested that if there is unused capacity from a category or an ASC reservation that it be allocated in the same year to ensure all 1.8 GW of projects can be efficiently deployed annually. The commenter encouraged the Treasury Department and the IRS to consider implementing subcategory capacity carveouts within each category to effectively allow for a rolling application system. For example, in Category 4, there should be more capacity dedicated to certain projects over others. Two commenters expressed disagreement for the large total reservation in Category 1. These commenters suggested that some of the Category 1 reservation should be moved to Category 4.
After consideration of these comments, the final regulations, consistent with the Proposed Rules, provide that the total Capacity Limitation for each Program year will be divided across the 4 facility categories and that the Treasury Department and the IRS retain the discretion to reallocate Capacity Limitation across categories and sub-reservations to maximize allocation in the event one category or sub-reservation is oversubscribed and another has excess capacity. The Treasury Department and the IRS continue to believe that the reservations based on facility category best allow a wide variety of facilities and benefits to go to low-income communities to further the intent of the statute. Absent category reservations, all the annual Capacity Limitation could get allocated to one facility category, which is contrary to the statute providing four distinct categories.
The final regulations clarify that the specific reservations for a Program year are provided in guidance published in the Internal Revenue Bulletin. For Program year 2023, Notice 2023-17 and Revenue Procedure 2023-27 provide the specific reservation amounts for each category. As clarified in the final regulations, the specific reservation amounts are established based on factors such as the anticipated number of applications that are expected for each category and the amount of Capacity Limitation that needs to be reserved for each category to encourage market participation in each category consistent with statutory intent.
One commenter stated that sub-allocations should be adaptable in future Program years to account for lessons learned. However, the commenter said that the 200 MW for Indian land should not be reallocated to other categories even if not fully claimed by applications in any given year, nor should any shortfall of applications be used to justify smaller future allocations. The Treasury Department and the IRS understand the importance of all of the categories provided by Congress in the statute and agree that the Capacity Limitation allocated to each facility category should be adaptable. Accordingly, the Treasury Department and the IRS have retained discretion to reallocate Capacity Limitation and to revise amounts reserved for each category in each Program year. After the 2023 Program year, the Treasury Department and the IRS will determine whether to change the facility category reservation amounts for the 2024 Program year based on the factors provided in the final regulations and will announce the specific reservation amounts in Program guidance applicable to 2024.
The Proposed Rules provided that facilities that meet at least one of the two categories of Ownership and Geographic Criteria, collectively the ASC, would receive priority for an allocation within each facility category described in section 48(e)(2)(A)(iii). The Proposed Rules also provided that at least 50 percent of the total Capacity Limitation in each facility category would be reserved for facilities meeting ASC.
The Proposed Rules provided that in evaluating applications received during the initial application window, priority would be given to eligible applications for facilities meeting at least one of the two ASC. If the eligible applications for Capacity Limitation for facilities that meet at least one of the two ASC criteria exceed the Capacity Limitation for a category, facilities meeting both ASC criteria would be prioritized for an allocation.
Several commenters expressed overall agreement and support for the inclusion of ASC, and the purpose behind these criteria, which commenters feel will promote community ownership. One commenter expressed disagreement with the use of ASC in the Program or that it should not be used for the 2023 Program. Another commenter echoed this by saying that the Treasury Department and the IRS should first assess the Program and applications received for 2023, and then consider including the ASC and a corresponding capacity reserve amount.
Other commenters suggested that if ASC is used, the percentage of the total Capacity Limitation in each facility category for ASC should be reduced from 50 percent to 25 percent or to 10 percent. Another commenter stated that the Ownership Criteria is too restrictive, and few applicants will be able to meet the high standard. This commenter recommended giving preferential allocation of capacity limitation to groups that meet one or both of the ASC, without reserving 50 percent of the capacity under each category on a
One commenter separately stated that except for reallocations (meaning reallocations of capacity between categories) for facilities meeting the ASC, the Treasury Department and the IRS should ensure that proposed reallocations more than 50 MW are subject to public notice and comment.
A few commenters who supported reduction of the ASC reservation amounts, stated that it will take significant time and coordinated effort for new community solar markets to emerge where efforts to establish Program frameworks have been lacking to date. These commenters stated that it is likely that there will be few applicants who meet the ASC, or that the projects developed by owners that would qualify tend to be small scale projects. Some commenters also asserted that the restrictive Ownership Criteria would likely encourage gaming.
In contrast, some commenters expressed support for at least 50 percent of the total Capacity Limitation being reserved for facilities meeting ASC. Additionally, one of the commenters supporting the reduction in the ASC reservation amounts stated that the Treasury Department and the IRS should prioritize reallocations to facility categories with more than 25 percent of the facilities meeting the ASC.
One commenter suggested that a third set of “Market-based” criteria should be added to ASC. The commenter stated that these criteria would prioritize projects that maximize the benefit delivered to the largest number of low-income customers. The two criteria provided by the commenter under this category are: 1. Proposed discount rate: Savings delivered to low-income customers; and 2. Percentage of project reserved for low-income customers: The percentage of the output capacity that will service low-income customers. However, the commenter only includes community solar projects in discussing the reason for this proposal. Two other commenters also proposed a third set of criteria focused on prioritizing projects that are participating in State low-income renewable energy programs, with one commenter specifically naming programs funded under the Environmental Protection Agency's (EPA) Greenhouse Gas Reduction Fund Solar For All Program. However, one of the comments specifically limits these criteria to Category 1 projects. Neither of the comments explain how these criteria would be equitably applied to facilities applying from all States, especially States that do not have such programs, nor do the commenters explain how wind facilities would be eligible under the previously recommended criteria. Other commenters provided additional criteria that could be considered including the use of minority and woman-owned businesses as contractors and employment of workers from low-income communities. Finally, a group of commenters suggested that the Treasury Department and the IRS consider applicants under ASC if the applicant signs a binding commitment to provide financial benefits for longer than the statute requires; or if the applicant sign a binding commitment promising to provide greater financial benefits than required. Another commenter, similarly, suggested incorporating a new category of ASC based on whether the project provides benefits to the local community and its members. The commenter suggested that this would better ensure that Category 1 and Category 2 projects are providing direct benefits to households or the local community. This comment gives examples of criteria for this “provision of benefits” category including: targeted hiring provisions, local procurement standards for Minority, Women and Disadvantaged owned Business Enterprises, Community Workforce Agreements, and Community Benefit Agreements; provision of direct financial benefits to community members, such as energy bill savings or reduction of energy burden; and for Category 1 projects, actual low-income status of households who would be benefited.
After consideration of these comments, the final regulations, consistent with the Proposed Rules, maintain that at least 50 percent of the total Capacity Limitation be reserved for facilities meeting ASC to help achieve the Treasury Department and the IRS's stated goals of the Program in Notice 2023-17 to (1) increase adoption of and access to renewable energy facilities in low-income communities and communities with environmental justice concerns; (2) encourage new market participants in the clean energy economy; and (3) provide social and economic benefits to people and communities that have been marginalized from economic opportunities and overburdened by environmental impacts. While many of the comments provide suggestions for alternative or additional ASC, many of the suggestions could not be applied to all categories or applied nation-wide such as the use of enrollment in a specific State energy program. Other suggestions are infeasible due to statutory conflict such as providing benefits for a longer duration than the statute requires. Lastly, the Treasury Department and the IRS are anticipating upwards of 100,000 applications annually for the Program. Selection criteria that is qualitative, subjective, and would require significant review such as a Community Benefits Agreement, Workforce Agreement, or procurement or hiring targets are administratively infeasible to have timely decisions made throughout the year. The Treasury Department and the IRS heard from many stakeholders that timely decisions will be key to Program success. The ASC proposed by the Treasury Department and the IRS are also directly connected to the applicant (ownership) or the facility (geography), which allows objective criteria. The Treasury Department and the IRS may consider other ASC in future guidance that help achieve these goals and are administratively feasible for the Program. However, the Treasury Department and the IRS did not adopt the commenters' suggestions to add other ASC at this time because the Treasury Department and the IRS determined the ASC provided in the Proposed Rules best promote the Program goals discussed earlier and should be the focus of the Program.
The final regulations maintain that at least 50 percent of the Capacity Limitation in each facility category will be reserved for facilities meeting the ASC but clarify that the method for utilizing the ASC and the specific amount of the reservation (at or above 50 percent) will be provided in guidance published in the Internal Revenue Bulletin. For program year 2023, those procedures are provided in Revenue Procedure 2023-27. The final regulations clarify that the total Capacity Limitation in each facility category reserved for qualified facilities meeting the ASC may be reevaluated in future guidance provided at least 50
One commenter stated that most, if not all, categories, will be oversubscribed, and acknowledged that there will need to be a selection process other than a first-come, first-served application process. However, this commenter recommended against using the proposed Ownership and Geographic Criteria as a means for prioritizing applications. This commenter asserted that criteria related to the ownership or location of a project provides no indication of project viability. This commenter stated that instead, applicants should be prioritized based on project maturity, providing a list of factors that are already included in the Proposed Rules for the Program, for some or all categories, such as site control and possession of all non-ministerial permits. The commenter suggested that a lottery be used in oversubscribed categories for projects that meet the commenters stated project maturity factors. A few other commenters requested that applicants who have made meaningful financial investments in relatively mature projects should be shown preference for an allocation. Specifically, this group of commenters suggested that the Treasury Department and the IRS, in addition to the Ownership and Geographic Criteria, prioritize projects that have signed agreements with income-qualified customers representing 10 percent of a project's capacity.
After consideration by the Treasury Department and the IRS, these comments are not adopted. The project maturity selection criteria that these commenters suggest are already part of the minimum Program requirements to apply that were provided in the Proposed Rules. ASC are selection factors for prioritizing projects in addition to the already required minimum project maturity level that this commenter requests. Prioritizing signed agreements with customers would not work for all categories, and applicants in Category 4
The Proposed Rules provided that the Ownership Criteria category is based on characteristics of the applicant that owns the qualified solar or wind facility. A qualified solar or wind facility will meet the Ownership Criteria if it is owned by a Tribal enterprise, an Alaska Native Corporation, a renewable energy cooperative, a qualified renewable energy company meeting certain characteristics, or a qualified tax-exempt entity. If an applicant wholly owns an entity that is the owner of a qualified solar or wind facility, and the entity is disregarded as separate from its owner for Federal income tax purposes (disregarded entity), the applicant, and not the disregarded entity, is treated as the owner of the qualified solar or wind facility for purposes of the Ownership Criteria.
The Proposed Rules provided that a Tribal enterprise, for purposes of the Ownership Criteria, (1) is an entity that is owned at least 51 percent, either directly or indirectly (through a wholly owned corporation created under its Tribal laws or through a section 3 or section 17 Corporation),
The Proposed Rules provided that an Alaska Native Corporation, for purposes of the Ownership Criteria, is defined in section 3 of the Alaska Native Claims Settlement Act, 43 U.S.C. 1602(m).
The Proposed Rules provided that a Renewable Energy Cooperative, for purposes of the Ownership Criteria, is an entity that develops qualified solar and/or wind facilities and owns at least 51 percent of a facility and is either (1) a consumer or purchasing cooperative controlled by its members who are low-income households (as defined in section 48(e)(2)(C)) with each member having an equal voting right, or (2) a worker cooperative controlled by its worker-members with each member having an equal voting right.
The Proposed Rules provided that a Qualified Renewable Energy Company (QREC), for purposes of the Ownership Criteria, is an entity that serves low-income communities and provides pathways for the adoption of clean energy by low-income households. In addition to its general business purpose, the Proposed Rules noted that the Treasury Department and the IRS were considering the following requirements and specifically requested comments on these potential requirements that a QREC would need to satisfy:
(1) At least 51 percent of the entity's equity interests are owned and controlled by (a) one or more individuals, (b) a Community Development Corporation (as defined in 13 CFR 124.3), (c) an agricultural or horticultural cooperative (as defined in section 199A(g)(4)(A) of the Code), (d) an Indian Tribal government (as defined in section 30D(g)(9)), (e) an Alaska Native corporation (as defined in section 3 of the Alaska Native Claims Settlement Act, 43 U.S.C. 1602(m)), or (f) a Native Hawaiian organization (as defined in 13 CFR 124.3);
(2) After applying the controlled group rules under section 52(a) of the Code, the entity has less than 10 full-time equivalent employees (as determined under section 4980H(c)(2)(E) and (c)(4) of the Code) and less than $5 million in annual gross receipts in the previous calendar year;
(3) The entity first installed or operated a qualified solar or wind facility as defined in section 48(e)(2)(A) two or more years prior to the date of application; and
(4) The entity has installed and/or operated qualified solar or wind facilities as defined in section 48(e)(2)(A) with at least 100 kW of cumulative nameplate capacity located in one or more Low-Income Communities as defined in section 48(e)(2)(A)(iii)(I).
The Proposed Rules provided that a “qualified tax-exempt entity”, for purposes of the Ownership Criteria, is (1) An organization exempt from the tax imposed by subtitle A of the Code by reason of being described in section 501(c)(3) or section 501(d); (2) Any State, the District of Columbia, or political subdivision thereof, any territory of the United States, or any agency or instrumentality of any of the foregoing; (3) An Indian Tribal government (as defined in section 30D(g)(9)), political subdivision thereof, or any agency or instrumentality of any of the foregoing; or (4) Any corporation described in section 501(c)(12) operating on a cooperative basis that is engaged in furnishing electric energy to persons in rural areas.
The final regulations modify the definition of “qualified tax-exempt entity” by striking “any territory of the United States.” The Treasury Department and the IRS made this change to correct a drafting error. The tax rules in section 50(b) related to investment tax credits (ITCs), such as section 48, generally provide that credit-eligible property cannot be used predominantly outside the United States
Another commenter stated that the Ownership Criteria should be eliminated because Congress indicated no intent in the IRA to prefer applications for the Program on project ownership. This commenter asserts that the Ownership Criteria results in non-profits organizations receiving outright allocation awards, while qualified business taxpayers will be subject to a lottery system for any remaining credit. Similarly, another commenter stated that the ASC and the reservations for ASC are not grounded in the statute. Although Congress did not include Ownership Criteria directly in the statute, it did direct the Treasury Department to create a Program to allocate the annual Capacity Limitation of 1.8 GW as measured in DC. As discussed earlier, the Treasury Department and the IRS stated three goals for the Program: (1) increase the adoption of and access to renewable energy facilities in low-income communities and communities with environmental justice concerns; (2) encourage new market participants in the clean energy economy; and (3) provide social and economic benefits to people and communities that have been marginalized from economic opportunities and overburdened by environmental impacts. Based on the breadth of research around the barriers to adoption of renewable energy technology by low-income communities and to meet statutory objectives and Program goals, the inclusion of Ownership Criteria will allow the participation of institutions that are well positioned to increase adoption of clean energy in low-income communities and by low-income households. Moreover, all applicants, with limited exception, in a given category and sub-category, are generally required to meet the same requirements to be awarded an allocation amount based on the projected net output of the facility. No applicant is being awarded the actual bonus credit amount during the application and selection period. All facility owner-applicants who are awarded an allocation will then have to place the facility in service and meet certain requirements before the owner can claim the section 48(e) Increase for the section 48 credit.
A few commenters stated that it is not appropriate to apply the ASC to Category 3 facilities. One commenter said that multi-family affordable housing guarantees that the benefits in Category 3 will be provided to low-income households. Another commenter claimed that Category 3 facilities are subject to existing rules that conflict with the ASC.
Several commenters stated that the current Ownership Criteria may conflict with ownership structures typically used for LIHTC projects. One commenter expressed concern that a tax-exempt applicant who is an owner of a facility through a partnership structured as a limited liability company or a limited partnership for State law purposes would not be considered a qualified tax-exempt entity because the tax-exempt applicant is not the sole owner. This commenter requested revision of the Ownership Criteria to ensure that tax-exempt entities (and other prioritized owner types) remain eligible if the entity controls the managing member or general partner of the partnership that owns the facility for Federal income tax purposes. Another commenter suggested that additional language should state that a qualified tax-exempt entity would still meet the Ownership Criteria if the tax-exempt entity directly serves as the managing member or general partner of the partnership that owns the facility for Federal income tax purposes. A few commenters also stated that most tax-exempt entities entering into a renewable energy tax credit transaction related to a LIHTC project will enter into a partnership with a tax equity investor where the tax-exempt entity is a general partner or managing member and has control over the partnership's operations, but is not the majority owner. The tax equity investor is usually the majority owner to allow the investor to claim most of the tax credits generated by the project.
The Treasury Department and the IRS understand that for tax credit monetization purposes, LIHTC projects and solar and wind facilities are often financed using tax equity partnership structures where a tax-exempt entity (or other Ownership Criteria entities) owns a minority interest (either directly or indirectly) in an entity treated as a partnership for Federal income tax purposes that owns the project or facility. In response to these comments, the Treasury Department and the IRS have clarified through additional language in the final regulations that a qualified solar or wind facility owned by an entity treated as a partnership for Federal income tax purposes is eligible for ASC consideration if an entity that meets the Ownership Criteria has at least a one percent interest (either directly or indirectly) in each material item of partnership income, gain, loss, deduction, and credit of the partnership and is a managing member or general partner (or similar title) under State law of the partnership (or directly owns 100 percent of the equity interests in the managing member or general partner) at all times during the existence of the partnership. Because indirect ownership is permissible, this means an entity that meets the Ownership Criteria can hold its partnership interest through a taxable subsidiary. This clarification should allow tax partnerships formed for the purpose of monetizing LIHTCs or section 48 credits that are directly or indirectly owned and managed by an entity that satisfies the Ownership Criteria to meet the ASC and thus better reflect potential applicants and financing structures for all Categories. The final regulations also clarify that a facility that has received a Capacity Limitation allocation based, in part, on meeting the Ownership Criteria will not be disqualified and lose its allocation if it is transferred by the original applicant to a tax partnership, prior to being placed in service, in which the original applicant retains the requisite direct or indirect ownership of the tax partnership and is a managing member or general partner (or similar title) under State law of such partnership (or directly owns 100 percent of the equity interests in the managing member or general partner) at all times during the existence of the partnership.
One commenter specifically noted that some Tribal enterprises do not have a “board of directors or equivalent governing board,” but the corresponding Tribes own utilities and have the power to appoint and remove the utility's leadership. Therefore, the commenter asked that the Treasury Department and the IRS to clarify Tribally owned utilities (or those Tribally owned entities that do not have a “board,” such as an LLC) meet the Ownership Criteria set forth in the Program. The commenter also stated that “Ownership” should stem from a Tribe's sovereign decision to construct a project rather than how a managing entity is structured and stated that Tribes should be able to attest to ownership control without further documentation. Several commenters included a similar statement. Another commenter further requested that the Tribe be considered the applicant and
In response to these comments, the Treasury Department and the IRS have modified the definition of Tribal enterprise in the final regulations by providing that a Tribal enterprise for purposes of the Ownership Criteria is an entity that (1) an Indian Tribal government (as defined in section 30D(g)(9) of the Code) owns at least a 51 percent interest in, either directly or indirectly (through a wholly owned corporation created under its Tribal laws or through a section 3 or section 17 Corporation), and (2) is subject to Tribal government rules, regulations, and or codes that regulate the operations of the entity.
Several commenters requested revisions to the definition of QREC. One commenter requested that QREC be further defined but did not provide specific language to further define the term. Additionally, a few commenters recommended that the Treasury Department and the IRS change the “and” at the end of the list of requirements that a QREC must satisfy to “or” so that the applicant only needs to meet one requirement, inclusive of the general business purpose to serve low-income communities. One commenter added that this would be more inclusive for new market entrants. Another commenter requested that the criteria for QREC be modified to include trusts as individuals, and that the requirement that 51 percent of the equity interest be controlled by an individual be reduced to 45 percent or, alternatively, at least 25 percent employee owned, and that the second requirement be expanded to provide that the company must have less than 100 full time employees and less than $30 million in annual gross receipts from the previous calendar year. The same commenter also suggested that the definition of a QREC be expanded to include public benefit corporations. One commenter suggested that Category 1(a) of the QREC definition, which currently reads as “one or more individuals,” should be replaced with “renewable energy cooperative,” claiming that this keeps the consistency of the definition with the previous section and requires more rigorous working agreements.
A few commenters variously commented on employee requirements for QRECs. Two commenters, also commenting on the gross receipts threshold, suggested that a QREC maintain less than 10 full time employees and less than $30.4 million in annual gross receipts from the previous calendar year. Another commenter stated that requiring a QREC to have fewer than ten full-time equivalent employees is excessively restrictive and unrealistic. This commenter also stated that the less than $5 million threshold for annual gross receipts in the previous calendar year may be unrealistically low. One commenter stated that the small size requirement appears to be arbitrary and suggested that the Treasury Department and the IRS use the Small Business Administration (SBA) small business size and revenue requirement to promote small business entrants. Further, another commenter stated that imposing an additional requirement to employ workers in certain low-income communities would be too onerous. Additionally, one commenter stated that it is unclear whether the requirement to employ low-income persons would be applicable at the time of application or through the life of the project. This commenter requested that the Treasury Department and the IRS clarify that this requirement is applicable at the time of application, and then consider allowing State or Federally approved workforce training programs, supported through the project, as a means of qualification. However, another commenter, who generally opposed the inclusion of QRECs as an ASC Ownership Criteria category, requested that the Treasury Department and the IRS require such companies to enter into Community Workforce Agreements to ensure workers within low-income and disadvantaged communities benefit from the wealth building opportunities provided by the Program. This commenter also provided a list of the community benefits that should be incorporated into the commenter's suggested agreements.
Additionally, one commenter stated that new market entrants are altogether barred from meeting this definition. Overall, the same commenter suggested as modification adding other consumer protection measures, minority- or women-owned business enterprise criteria, individual rather than company-based experience thresholds, and providing flexibility with regard to size, so as to enable more local clean energy business growth. A separate commenter also noted that new entrant companies, that would otherwise meet the QREC definition, will not qualify due to the specific experience requirement. Another commenter requested the Treasury Department and the IRS update the definition of QREC to include qualified rooftop lessors. This commenter provided an example of projects installed by small businesses that otherwise meet the definition but are counterparties to a lease provided by a third-party project developer. This commenter said that many single-family residential rooftop facilities use third-party ownership (TPO) models to meet the requirements of section 48 but claims that in many States legal title to such facilities is not possible for entities meeting the definition of a QREC, which, by virtue of their small size, do not have access to a lease fund. One commenter also noted that many new market entrants have prior experience as part of other solar projects that they do not own and suggested that companies that have been subcontractors be included for criteria (3) and (4), and that the scope be broadened to be “any solar provider.” A Tribal comment letter also stated that the definition of a QREC is too limited and does not support newly formed entities that are owned in part by Tribes. This commenter claims that, prior to the IRA, Tribes were not able to create joint ventures to deploy solar or wind projects.
After consideration of all comments on the definition of QREC, the final regulations adopt some changes and do not adopt others. The Treasury Department and the IRS will maintain the inclusion of QREC in the final regulations. However, to provide increased flexibility and to encourage new market participants, the Treasury Department and the IRS have modified the QREC definition to allow for previous participation in a renewable energy project as a service provider (either as an individual or a company) to demonstrate a track record for serving low-income communities. While some commenters stated that brand new entities may not meet the criteria for QREC, the Treasury Department and the IRS developed the QREC criteria to support companies or entrepreneurs with a commitment and track record of serving low-income communities that have not been able to grow their market share. The Treasury Department and the IRS also increased the annual gross receipts threshold based on the comments and additional market research to allow for flexibility to growing companies that may still not have significant market-share. After careful assessment of all the proposals provided in the comments and current market information, the final regulations provide additional flexibility to new market entrants by modifying the requirements that a QREC would need to satisfy:
(1) At least 51 percent of the entity's equity interests are owned and controlled by (a) one or more
(2) Has less than 10 full-time equivalent employees (as determined under section 4980H(c)(2)(E) and (c)(4) of the Code) and less than $20 million in annual gross receipts in the previous calendar year;
(3) First installed or operated a qualified solar and or facility as defined in section 48(e)(2)(A) two or more years prior to the date of application; or
(4) Has provided solar services as a contractor or subcontractor to qualified solar or wind facilities as defined in section 48(e)(2)(A) with at least 100 kW of cumulative nameplate capacity located in one or more Low-Income Communities as defined in section 48(e)(2)(A)(iii)(I).
The Treasury Department and the IRS may consider other changes to the definition of a QREC in future guidance based on updated market information and what is administratively feasible for the Program.
Another commenter suggested that the definition of QREC be revised to provide that the 51 percent ownership requirement applies as an average over the life of the project because of tax credit equity partnerships that may change facility ownership for a period of time.
In response to these comments, the Treasury Department and the IRS have clarified through additional language in the final regulations that a partnership for Federal income tax purposes is eligible for ASC consideration so long as an entity that meets the Ownership Criteria has at least a one percent interest (either directly or indirectly) in each material item of partnership income, gain, loss, deduction, and credit of the partnership that owns the qualified solar or wind facility and is a managing member or general partner (or similar title) under State law of the partnership (or directly owns 100 percent of the equity interests in the managing member or general partner) at all times during the existence of the partnership. Therefore, there is no need to revise the 51 percent ownership requirement as it applies as an average over the life of the project as the commenter suggests. This also allows more flexibility for all applicants that meet the Ownership Criteria to enter financing arrangements such as tax equity partnerships.
This commenter also suggested that the definition of Renewable Energy Cooperatives be revised to require not only that each member have an equal voting right, but also that each member have rights to profit distributions based on patronage as defined by the proportion of either (i) volume of energy or energy credits purchased (kWh), (ii) volume of financial benefits delivered ($), or (iii) volume of financial payments made ($), and in which at least 50 percent of the patronage in the qualified project is by cooperative members who are low-income households. The commenter noted that the second requested change clarifies that the Renewable Energy Cooperative as a whole does not need to be made up solely of low-income households, but only that for qualified projects that are seeking the Low-Income Bonus Credit, over 50 percent of the participating member interests (and corresponding member benefits) must accrue to households that qualify as low-income (as defined in section 48(e)(2)(C)).
One commenter stated, regarding Renewable Energy Cooperatives, that it may be difficult for cooperatives to ensure income verification of their members, and suggested adding eligibility pathways, potentially based on geography or charter documents, that retain an equity and justice focus while allowing greater flexibility.
Based on these comments, the Treasury Department and the IRS have modified the definition of Qualified Renewable Energy Cooperative in the final regulations to account for different energy cooperative models where profits could be distributed to members based on volume of energy, volume of financial benefits delivered, or volume of financial payments made. The modified language states that a Qualified Renewable Energy Cooperative is an entity that develops qualified solar and/or wind facilities and is either (1) a consumer or purchasing cooperative controlled by its members with each member having an equal voting right and with each member having rights to profit distributions based on patronage as defined by the proportion of either (i) volume of energy or energy credits purchased (kWh), (ii) volume of financial benefits delivered ($), or (iii) volume of financial payments made ($), and in which at least 50 percent of the patronage in the qualified project is by cooperative members who are low-income households (as defined in section 48(e)(2)(C)) or (2) a worker cooperative controlled by its worker-members with each member having an equal voting right.
One commenter expressed that qualified tax-exempt entity should not include all section 501(c)(3) entities without additional guardrails. This commenter further suggests that if QRECs are required to submit documentation of “general business purpose,” then section 501(c)(3) organizations applying as a qualified tax-exempt entity should be required to provide minimal documentation showing relevant charitable purposes. This commenter additionally requested clarification about the manner of application for tax-exempt entities in Puerto Rico and other territories. Similarly, one commenter noted that many large corporations have section 501(c)(3) organizations that could deploy renewable energy projects without tax credits but will be eligible under the definition in the Proposed Rules. This commenter proposed adding to the definition the following requirements: annual gross receipts of no more than $30.4 million (consistent with recommendations for QRECs); prior experience owning, operating, or consulting on a renewable energy project; and an organizational mission statement and/or values that show alignment with the Program.
One commenter requested more clarity on how Tribal enterprises, as well as Tribal governments, political sub-divisions, and agencies or instrumentalities thereof under the qualified tax-exempt entity definition and Tribally owned QRECs can satisfy the Ownership Criteria.
The Treasury Department and the IRS have not adopted any changes in the final regulations regarding qualified tax-exempt entities. The addition of guardrails such as requiring a particular business or charitable purpose is infeasible. All tax-exempt organizations that qualify for ASC will need to demonstrate a charitable purpose through their tax-exempt designation. The Treasury Department and the IRS anticipate that a wide variety of qualified tax-exempt entities may participate in the Program that may include community-based organizations, educational institutions of all sizes, and State and local governments, among others. Accordingly, there is no one business or charitable purpose for qualified tax-exempt entities that would apply to the range of entities that support meeting the stated goals of the Program. The Treasury Department and the IRS may consider changes in future guidance based on updated market information
The Proposed Rules provided that the Geographic Criteria category is based on where the facility will be placed in service. To meet the Geographic Criteria, a facility would need to be located in a PPC
The Proposed Rules defined a PPC generally as any county where 20 percent or more of residents have experienced high rates of poverty over the past 30 years. For the purposes of the Program, the Proposed Rules provided that the PPC measure adopted by the USDA should be used to make this determination. The most recent measure, which would apply for the 2023 Program year, incorporates poverty estimates from the 1980, 1990, 2000 censuses, and 2007-11 ACS 5-year average.
Generally, commenters were supportive of the Geographic Criteria, including several commenters who had concerns with Ownership Criteria. However, one commenter stated that the Geographic Criteria conflict with existing Federal housing policy because it would encourage facilities to be built in connection with housing in certain areas, rather than supporting low-income residents no matter where they live. Another commenter stated that the Geographic Criteria is imprecise because it does not take into account disadvantaged communities in certain areas, especially those that are highly disadvantaged but border affluent communities.
Several commenters on behalf of Tribes stated that Geographic Criteria should not be applied to Category 2 Projects. However, a few Tribal commenters asked that the Treasury Department and the IRS retain Geographic Criteria for Category 3 and Category 4 projects that are located on Indian land so that Tribal projects can better compete. In response to these comments, the Treasury Department and the IRS have decided to not include Geographic Criteria as an ASC for Category 2 but maintain the use of Geographic Criteria as an ASC as stated in the Proposed Rules in all other categories.
Another commenter provided several suggestions for revising the Geographic Criteria, stating that the Treasury Department and the IRS should consider broadening the Geographic Criteria by including all Indian land or not applying additional Geographic Criteria to them; adding LIHTC and New Markets Tax Credit designations; applying all or at least more of CEJST's burden thresholds as well as the Environmental Protection Agency's EJScreen's thresholds; allowing State screening tools and maps; providing for community self-nomination; or perhaps including adjacent tracts.
Another commenter, providing a comment on Category 3 projects, generally supported the use of Geographic Criteria to prioritize allocations, but recommended reconsideration of the use of the PPCs as a poverty measure. This commenter stated that the PPCs provide data at a county-level designation and that this masks significant variation within counties and does not capture persistent poverty within counties not registering as PPCs. This commenter instead recommended that the LIHTC Qualified Census Tract geographic definition be utilized as an option to determine whether a project meets the Geographic Criteria, stating that the QCT designation denotes census tracts where either (1) 50 percent or more of the households have an income less than 60 percent of the Area Median Gross Income, or (2) the poverty rate is over 25 percent. One Tribal commenter recommended that the Treasury Department and the IRS use a geographic determination based on the LIHTC, or the NMTC because Tribes have been using these to build new Tribal housing or invest in clean energy. Additionally, another commenter suggested that the Geographic Criteria should be expanded to include: disadvantaged communities in other burdened categories; a process for communities to be recognized as communities with environmental justice concerns based on State environmental justice screening tools; and a self-nomination process for communities to submit additional information to demonstrate that they are communities with environmental justice concerns that may not be captured by CEJST or other screening tools. This commenter additionally requested the provision of a publicly accessible mapping tool to identify the areas that meet the geographic criteria.
After consideration of these comments, the Treasury Department and the IRS have not adopted the suggestions. The intent of the Geographic Criteria as applied to Category 3 and to other categories is to encourage the construction of energy facilities in areas across the country that have high energy costs and that might otherwise suffer from underinvestment. This includes areas of the country where affordable housing currently exists but where the adoption of renewable energy technology may be challenging. The Treasury Department and the IRS have determined ASC based on their applicability across all categories. While LIHTC Qualified Census Tract as a Geographic criteria may meet some goals of the program, it is a methodology that is used primarily in the LIHTC industry and not widely known or used by other housing programs or in energy programs. Therefore, its inclusion as a Geographic Criteria is not adopted. Additionally, an allocation based on Geographic Criteria in Category 3 for a facility built in connection with an existing Federally subsidized housing building does not impact the Federal housing policy with regards to siting of the housing itself. The Treasury Department and the IRS may consider other metrics for Geographic Criteria in future guidance that help achieve the Program goals and are administratively feasible for the Program. A publicly accessible mapping tool will be available on DOE's Program website.
The Proposed Rules provided that the 700 MW Capacity Limitation reservation for facilities seeking a Category 1 allocation would be sub-divided with 560 MW reserved specifically for eligible residential BTM facilities, including rooftop solar. The Proposed Rules provided that the remaining 140 MW of Capacity Limitation would be available for applicants with FTM facilities as well as non-residential BTM facilities.
Several commenters opposed to the reservation of capacity in Category 1 for BTM residential facilities. Generally, these commenters requested that the 560 MW capacity reserved for BTM residential facilities be eliminated (leaving a general 700 MW reservation) or that the amounts should be revised. The main concern of commenters is that the proposed 140 MW will provide very limited eligibility for FTM projects, including community solar projects that would otherwise qualify under the statute. One commenter strongly recommended against subdividing the Category 1 Capacity Limitation into BTM and FTM MW blocks. This commenter stated that a BTM project typically requires a credit review and/or a long-term financial commitment from the customer, which the commenter believes is antithetical to the objective of a Program intended to ease financial burdens on low-income households, not impose them. The commenter suggested to instead require that a certain percentage of all generating facilities' capacity be allocated to low-income, residential subscribers. Another commenter pointed out that location is the only requirement in Category 1 under the statute, and that the focus on BTM residential facilities does not fit with the statute.
Other commenters have noted that this focus on BTM residential facilities limits the potential of other applicants to benefit from Category 1. For example, at least two commenters have noted that the prioritization of residential facilities limits the potential for non-profit organizations and municipalities from obtaining an allocation for facilities built to power schools, libraries, food pantries, shelters, houses of worship, education facilities, local community-based non-profits, assisted living facilities, performing arts centers, and community development corporations. One of these commenters explains that these organizations play crucial roles in their communities, providing necessary services and support to the residents of the surrounding area, and the sub-reservation overlooks the fact that commercial and industrial scale solar benefits may be more impactful. In arguing against the sub-reservation, another commenter noted the belief that Category 1 should be reserved specifically for facilities that are “Located in a Low-Income Community,” which directly benefit the residents of that community. As an alternative, the commenter asks that non-profits, public facilities, and municipalities be included in the larger sub-reservation. Another commenter, in its suggestion to revisit this sub-reservation, stated their view that community facilities represent the “highest and best use” of the 10 percent low-income adder from the standpoint of ensuring meaningful community benefit. Similarly, another commenter stated that the reservation of 560 MW exclusively for residential BTM ignores the fact that most agrivoltaic and agribusiness BTM projects that benefit farmers (and thus consumers) would also benefit from Category 1. This commenter states that the benefit of using renewable energy solar and storage is an emerging renewable agribusiness industry that would benefit America significantly by lowering energy input costs and lowering food prices for the nation by extension.
One commenter suggested to amend the requirements from focusing on FTM versus BTM to instead distinguish “on-site usage of credits” from “off-site usage of credits” to more accurately prioritize residential projects. Similarly, another commenter had concerns with the limitation of defining residential rooftop solar as BTM. The commenter appreciated the efforts to set aside an allocation for residential rooftop solar, but the commenter believed that the Proposed Rules go too far by defining residential rooftop solar as solely BTM. This commenter explained that Connecticut's regulated utilities offer a FTM solar tariff for residential and commercial solar projects and that FTM residential solar projects, though somewhat rare in Connecticut, are particularly attractive for projects in low-income communities. Therefore, this commenter suggested an updated definition that accounted for single family or multi-family residential that does not qualify under Category 3 and has a maximum net output (and is not limited as BTM). Another commenter noted that BTM arrangements are not achievable in States like Vermont and offered suggestions for redefining BTM.
Commenters had other suggestions on how to handle the sub-reservations in Category 1. One commenter recommended expanding the criteria for qualifying Category 1 projects to allow 600 MW (85 percent) of the allocated MW for FTM facilities. Another commenter noted that if the concern is that the 700 MW capacity allocation will be monopolized by businesses in low-income areas, the rules could reserve a portion of the total allocation for businesses, but that the rules should consider a larger reservation for commercial and industrial scale solar projects for non-profit community organizations, public entities, and other impactful entities that play a key role in these low-income communities. This commenter suggests considering, in addition to the 140 MW reservation for businesses, a 280 MW carve out for residential solar and a separate 280 MW carve out for community-based not-for-profit organizations. Another commenter suggested a sub-allocation of at least 400 MW for BTM installations at community facilities.
One commenter suggested that if the 560 MW amount cannot be changed, the rules should allow any facility that serves at least 50 percent residential customers to qualify. This commenter noted that the goal of the sub-reservation is a laudable intent, but that community solar, though predominantly deployed FTM, is also positioned to serve residential customers, especially low-income customers. Another commenter recommended altering the sub-reservations by providing a third sub-reservation in Category 1 of at least 150-200 MW for eligible community solar projects that are located on (non-residential) rooftops or parking lots in low-income communities, are less than 1 MW, reserve at least 50 percent of off-take for low-income households, and offer a minimum 20 percent discount to low-income subscribers.
Two commenters had additional concerns with Category 1, particularly related to consumer protections for residential customers. While this commenter is opposed to prioritization of residential rooftop solar over other types of solar installations within Category 1, the comment implied this is because of serious consumer protection issues associated with how these allocations are being implemented by the private marketplace. This commenter provided an example of solar installers telling potential customers that the IRS will send them a check for 70 percent of the cost of the solar installation if they sign up with the installer. Therefore, this commenter encourages the Treasury Department and the IRS to be vigilant and to ensure that companies awarded these credits are held accountable within the scope of
After consideration of the comments recommending elimination or significant modification of the rules regarding the Category 1 sub-reservation, the comments are not adopted. The purpose of the residential BTM sub-reservation is to preserve capacity for projects that directly benefit residential customers and would not otherwise be eligible for Category 3 or Category 4, while also recognizing the large and established market share of companies using the TPO single-family residential business model. Additionally, residential BTM (of which the majority is expected to be single-family) have faster development timelines, allowing this capacity to be efficiently allocated. Moreover, a separate set-aside allows like-projects to compete for capacity and will allow for more streamlined application processing.
Accordingly, the final regulations provide that the Program includes a sub-reservation for eligible BTM residential facilities but clarifies that the specific amount of the sub-reservation for a Program year will be provided in guidance published in the Internal Revenue Bulletin. The final regulations also clarify that the amount of the sub-reservation is established based on factors such as promoting efficient allocation of Capacity Limitation and allowing like-projects to compete for an allocation. Revenue Procedure 2023-27 provides the Category 1 sub-reservation for eligible BTM residential facilities for the 2023 Program year.
In response to the commenters' concerns about restrictions on FTM facilities and the ability of community facilities to apply for Category 1, FTM community facilities serving residential customers may apply for an allocation of the remaining Capacity Limitation in Category 1 and receive a section 48(e) Increase of 10 percentage points, assuming they do not meet Category 4 requirements, or apply for an allocation under Category 4 if they meet all of the requirements of Category 4 and receive a section 48(e) Increase of 20 percentage points. The Treasury Department and the IRS note that the rules do not impose additional requirements on Category 1 beyond the statutory location requirement, given the importance of creating an objective and administrable process that will allow taxpayers to quickly receive feedback on their applications. However, the Treasury Department and the IRS seek to encourage community solar projects to apply in Category 4 as opposed to Category 1 because, although Category 1 facilities must be located in low-income communities, they do not necessarily have to serve low-income customers and do not have to comply with Category 4 financial benefits requirements. Therefore, directing more community solar projects to Category 4 where there is a protected set aside of 700 MW better promotes programmatic goals.
In response to comments, the Treasury Department and the IRS agree that the 560 MW carve-out for residential BTM limits the potential for community organizations such as non-profit organizations and municipalities that serve communities from obtaining an allocation, and they will need to compete for limited capacity with for-profit nonresidential businesses (and all other projects that are located in a low-income community). As a result, the Treasury Department and the IRS modified the Category 1 sub-reservation for BTM residential in Revenue Procedure 2023-27 to reduce this sub-reservation to 490 MW for the 2023 Program. Therefore, a larger portion of the Capacity Limitation in Category 1 (210 MW) will be available to FTM and non-residential BTM projects. The Treasury Department and the IRS may change this sub-reservation amount for future years.
The Proposed Rules defined a FTM facility as a facility that is directly connected to a grid, and its sole purpose is to provide electricity to one or more offsite locations via such grid; alternatively, FTM is defined as a facility that is not BTM.
The Proposed Rules defined an eligible residential BTM facility as single-family or multi-family residential qualified solar or wind facility that does not meet the requirements for Category 3 and is BTM. A qualified wind and solar facility is BTM if: (1) it is connected with an electrical connection between the facility and the panelboard or sub-panelboard of the site where the facility is located, (2) it is to be connected on the customer side of a utility service meter before it connects to a distribution or transmission system (that is, before it connects to the electricity grid), and (3) its primary purpose is to provide electricity to the utility customer of the site where the facility is located. This also includes systems not connected to a grid and that may not have a utility service meter, and whose primary purpose is to serve the electricity demand of the owner of the site where the system is located. Commenters requested clarification on the meaning of “residential.”
The final regulations generally adopt the definition of BTM from the proposed rules, but the final regulations clarify that a qualified solar or wind facility is residential if it generates electricity for use in a dwelling unit used as a residence. The final regulations also clarify that a facility is FTM if it is directly connected to a grid and its primary purpose is to provide electricity to one or more offsite locations via such grid or utility meters with which it does not have an electrical connection; alternatively, FTM is defined as a facility that is not BTM. For the purposes of Category 4, a qualified solar or wind facility is also FTM if 50 percent or more of its electricity generation on an annual basis is physically exported to the broader electricity grid.
The Proposed Rules provided the general framework for evaluating applications for Capacity Limitation, including that applicants would be required to submit with each application certain information, documentation, and attestations specified in Program guidance.
The Proposed Rules described the following required documents and attestations.
The
In developing the application requirements for the 2023 Program year provided in Revenue Procedure 2023-27, the Treasury Department and the IRS carefully considered the comments submitted in response to the Proposed Rules.
One commenter requested that the Treasury Department and the IRS design the application intake mechanism to allow for bulk application submissions, including attestations. For example, the commenter stated that applicants could potentially be allowed to submit a spreadsheet for many projects at one time, along with required attestations. The commenter also cited to the efficient allocation language at section 48(e)(4)(A), which states “. . . the Secretary shall provide procedures to allow for an efficient allocation process, including, when determined appropriate, consideration of multiple projects in a single application if such projects will be placed in service by a single taxpayer.”
One commenter cited to the language in the Proposed Rules that states a Category 1 or Category 2 facility that also qualifies as a Category 3 or Category 4 facility is considered a Category 3 or Category 4 facility, and requested that these facilities be automatically reviewed under Category 1 if their application is denied for an allocation in Category 4. As provided in Revenue Procedure 2023-27, the Treasury Department and the IRS will not move applications from the category and sub-reservation under which the facility owner applied for an allocation. The statement the commenter cited was intended to remind applicants that if their facility meets the requirements under Category 1 or 2 and under Category 3 or 4, the applicant should apply under Category 3 or 4, as applicable, to be considered for the section 48(e) Increase of 20 percentage points. Additionally, as provided in Notice 2023-17 and Revenue Procedure 2023-27 each applicant may only apply
Several commenters were concerned with the required attestation that the facility has obtained all applicable Federal, State, Tribal, and local non-ministerial permits, or that the facility is not required to obtain such permits. A few commenters suggested alternatively that the rule instead require applicants to provide sufficient documentation that the project “expects to receive” or has received all necessary permits to comply with and Federal, State, or local requirements. Another commenter uses the phrase “proof of initiating” in its suggestion.
Commenters provided reasons for their concerns about the required permits. For example, a commenter stated that the requirement to have all necessary permits in place as a requirement for application (given the limited application window) as out of their direct control and not necessary given the other requirements of the guidelines. Another commenter considering the same issue noted that because there is tremendous variation in the scope and applicability of State and local permit requirements that eligible projects may be subject to depending on their geographic location, a completed permit requirement would serve to disqualify projects in locations that have suitable and appropriate permitting requirements and potentially advantage projects either already advancing without the benefit of Federal support or projects in jurisdictions with the lowest State and local permitting requirements.
Additionally, commenters requested guidance on the definition of non-ministerial permits. For example, a commenter requested clarity on whether “local non-ministerial permits” includes such things as building and/or electrical permits. The commenter noted their agreement with the need to ensure applications for projects that are likely to move forward but that obtaining such permits requires significant expenditure of funds and investment of time in a project and that if all permits are required, many developers will be unlikely to invest in projects that need the low-income community bonus credit. Other commenters assumed building permits are required as non-ministerial permits and noted their disagreement with the requirement. Another commenter suggested that the Treasury Department and the IRS should clarify whether the appeals period for non-ministerial permits must have lapsed prior to application submission. Finally, a commenter noted that given the uncertainty of a competitive program, projects should not be required to secure building permits. Another commenter said rooftops particularly should not require building permits in the application. Further, one commenter requested that if a roof is found to be unsuitable for installation of a facility, after an inspection, that the application to the Program allow for the inclusion of a scope of work contract to make the roof suitable, in lieu of attesting that the roof is suitable. The commenter additionally requested that the cost of such construction work be allowed to be included in the cost of the overall installation.
The Treasury Department and the IRS considered these comments but determined that a standard such as “expects to receive” or has “proof of initiating” with respect to required permits is not enough to demonstrate sufficient project maturity to give assurances of the viability of the project. As explained in the Proposed Rules, section 48(e)(4)(A) directs the Secretary to provide procedures to allow for an efficient allocation process. Additionally, section 48(e)(4)(E)(i) requires that facilities allocated an amount of Capacity Limitation be placed in service within four years of the date of allocation. Therefore, as explained in the Proposed Rules, the Treasury Department and the IRS determined that to promote efficient allocation and to ensure that allocations will be awarded to facilities that are sufficiently viable and well defined to allow for a review for an allocation and sufficiently advanced such that they are likely to meet the four-year placed in service deadline, applicants are required to submit certain documentation and attestations when applying for an allocation. This requirement includes an attestation that the facility has obtained all applicable Federal, State, Tribal, and local non-ministerial permits, or that the facility is not required to obtain such permits, which demonstrates completion of a critical project milestone.
In response to the concerns commenters raised regarding the lack of clarity with respect to the definition of non-ministerial permits, the Treasury Department and the IRS included the following definition of non-ministerial permits in Revenue Procedure 2023-27, clarifying that building and electrical permits are not considered non-ministerial permits. Revenue Procedure 2023-27 provides that non-ministerial permits are defined as: “Permits in which one or more officials or agencies consider various factors and exercise some discretion in deciding whether to issue or deny permits. This does not include ministerial permits based upon a determination that the request complies with established standards such as electrical or building permits. Non-ministerial permits typically come with conditions and usually require public notice or hearings. Examples of non-ministerial permits include local planning board authorization, conditional use permits, variances, and special orders.” Lastly, on the question of whether the appeals period for non-ministerial permits must have lapsed prior to application submission, the lapse of this period is not a requirement for application submission.
With respect to the comment about unsuitable roofs, applicants will continue to be required to attest that the location of the qualifying facility has been determined suitable for installation at application, to give assurances of the viability of the project. Additionally, the Treasury Department and the IRS cannot accommodate the request for the cost of roof repairs to be includable in the overall cost of the project, presumably, so that the repair costs are eligible costs for determining the bonus credit amount. The statutory language provides for the energy percentage increase with respect to eligible property that is part of a solar or wind facility. The roof of a building is not part of a solar or wind facility, and therefore, costs associated with building improvements are not includable in the basis of the solar or wind facility to determine the section 48(e) Increase.
Several commenters disagree with the documentation requirement in the Proposed Rules that for FTM and BTM larger than 1 MW, a copy of the final executed interconnection agreement, if applicable, is required. Commenters suggested that requiring negotiated or approved interconnection agreements is premature for the first application period. Some commenters suggested an interconnection proxy, such as a submitted interconnection application or some other documentation from the utility that acknowledges the interconnection process has formally begun.
Many commenters noted practical considerations. For example, a commenter pointed out that an executed
Other commenters suggested additional alternatives. For example, instead of an executed interconnection agreement, a commenter suggested allowing FTM facilities to submit interconnection applications and studies. Another commenter also suggested proof of an interconnection application stating it should be adequate given the differing processes across utilities districts (which reiterates the comment earlier describing limitations in certain States and Washington, DC) Another suggestion for a larger project is proof that such project has an active queue position and an attestation from the applicant that the project is not in default, payment or otherwise, with the relevant transmission and distribution companies. This commenter pointed out that with the time required, most applicants with an actual executed interconnection agreement started their projects before the IRA was enacted. This commenter suggested that for future application rounds for larger projects, an “executed interconnection agreement” may be a more feasible expectation. Another commenter similarly suggested that projects that are actively in the queue for interconnection, and projects with a proposed timeline for site interconnection application should suffice. Lastly, a commenter recommended that for BTM projects smaller than 1 MW, a “limited notice to proceed” with an EPC (engineering, procurement and construction) contractor authorizing the EPC to produce a design for a renewable energy facility and apply for interconnection should be considered adequate documentation in lieu of an executed contract to purchase the energy facility.
The Treasury Department and the IRS considered these comments but ultimately decided not to make a change to the interconnection agreement requirements, and the proposed requirements are included in Revenue Procedure 2023-27. For the same reasons explained earlier under part X.A1. of this Summary of Comments and Explanation of Revisions section, the interconnection agreement documentation requirements are necessary to achieve Program goals including ensuring applications represent mature, viable projects. In response to the comment that these projects with executed interconnection agreements would have begun prior to the implementation of the IRA, the Treasury Department and the IRS believe that this issue will be mitigated as the Program progresses.
Additionally, in response to the commenters who raised scenarios where interconnection agreements are not possible or feasible, footnote 9 of the Proposed Rules explained that if the facility is located in a market where the interconnection agreement cannot be signed prior to construction of the facility or interconnection facilities, the interconnection agreement requirement is satisfied by a signed conditional approval letter from the jurisdictional utility and/or an affidavit from a senior corporate officer of the applicant (or someone with authority to bind the applicant) stating that an interconnection agreement cannot be executed until after construction of the facility. The Treasury Department and the IRS determined that this alternative provided in the Proposed Rules covers the scenarios identified by commenters. Lastly, a commenter requested clarification if an interconnection service agreement (ISA) is amended after submission of the initial application, whether this amendment must be submitted to the Treasury Department and the IRS. Details on these procedural requirements will be provided in later Program information.
Generally, commenters requested eliminating the attestation that the applicant has appropriately sized the facility (to meet no more than 110 percent of historical customer load). One commenter stated that many utility rules for net metering already have a limit (typically 125 percent), and the Program rules should defer to those local rules. The commenter said these limits can be verified or validated through the approved interconnection agreement (or utility approval of rooftop solar projects). Furthermore, this commenter, similar to others described previously, agrees with the idea that size should be able to increase noting that if a Tribal housing authority or Tribal member also implements electrification efforts, the electric load of a Tribal residence will increase and that rooftop solar projects should be allowed to “oversize” with the expectation that the load will increase.
At least one commenter recognized that the purpose of a limitation may be to prevent abuse or waste in connection with the ability to claim section 48 credits, but the commenter anticipated there would also be renewable energy projects that could feasibly produce and
Another commenter gave additional reasons why it views the limitation as problematic noting that a Category 3 residential building may have multiple historical customer loads; this concept of limiting facility size to historical customer loads has previously been proposed to reduce the size of onsite solar facilities, limit financial benefits, and hinder overall distributed generation, which contradicts the intent of the statute; and that a limit to BTM facilities creates significant inconsistencies with other provisions of guidance referring to the fact that in certain States a Category 3 facility may only be allowed to interconnect to the local utility grid through a BTM configuration and this rule might be inconsistent with the requirement on 50 percent financial benefits.
Comments on behalf of Tribal entities also disagreed with the limitation. These commenters said that for Tribal housing clean energy projects that qualify under Category 3, the rule should not limit the size of a BTM project to 110 percent of load. Additionally, one commenter stated that many utility rules for net metering already have a limit (typically 125 percent of historical load) and another commenter said that several States permit facilities of up to 200 percent historical load, and the rules should defer to those local rules. The commenter said these limits can be verified or validated through the approved interconnection agreement (or utility approval of roof top solar projects). Furthermore, this commenter, similar to others described previously, agrees with the idea that size should be able to increase, noting that if a Tribal housing authority or Tribal member also implements electrification efforts the electric load of a Tribal residence will increase and that rooftop solar projects should be allowed to “oversize” with the expectation that the load will increase.
While some commenters recommended removing the limitation, other commenters suggested modifications. One commenter suggested slightly increasing the historical customer load limitation to 120 percent based on rules in place in Minnesota for BTM facilities. Another commenter seemed to agree with keeping the attestation but removing the limit, noting that the rules simply require attestation that the project is appropriately sized based on applicable State and local solar program or utility interconnection rules, which they generally must already comply with, and that this would better accommodate concurrent or future additions of electrical load. Another commenter agreed with keeping the attestation and removing the limitation but noted that if the 110 percent of historical customer load requirement is retained, it should be clarified to allow for reasonable estimates of customer usage in cases where the customer does not have a full 12 months of historical usage at the specific location. Lastly, one of the commenters suggested as an alternative, and to maintain a rule that will preclude gaming, the following attestation requirement along the lines of the Category 4 attestation: “For any facility that is projected to produce more than 110 percent of the its host property's historic annual kWh energy consumption, the applicant will ensure that either (A) any exported kWh will be provided to occupants of a qualified residential property at a 20 percent or greater bill credit discount related to the host property's volumetric export compensation rate for solar kWh, or (B) the applicant has reasonably accounted for an anticipated increase of the applicable building's energy consumption.” Similarly, another commenter also thought the attestation for Category 3 should be similar to that for Category 4 noting that “applicants should not be constrained to “110 percent of the historical customer load” for rooftop projects for Categories 3 and 4. A more reasonable approach would be to size the “customer's facility output share” appropriately as is proposed for FTM projects.
One commenter asked for clarification on how the Treasury Department and the IRS plan to define “appropriately sized” for purposes of the requirement applicable to FTM projects that the “applicant has appropriately sized the customer's facility output share and has based facility output share on historical customer load.” This commenter suggested as an example that their standard process for determining subscribers' allocation sizing is to size allocations at 85-90 percent of the customer's 12-month historical average kWh usage. The final regulations will not adopt a more detailed standard on this term and will use a reasonableness approach on whether an output share is appropriately sized.
In response to these comments, the Treasury Department and the IRS believe that the attestation for BTM facilities related to the host properties' historic energy usage should be retained to prevent Capacity Limitation allocations from going to facilities that are oversized. However, the Treasury Department and the IRS recognize the need to modify the attestation requirement to account for future load projections and to not limit sizing to 110 percent where State and local requirements may allow for more. Accordingly, Revenue Procedure 2023-27 includes the following revised attestation requirement: “The applicant has appropriately sized the facility, or the customer/offtaker subscriptions will be sized to meet the customer's energy needs, considering historical customer load and/or reasonable future load projections, in accordance with applicable State and local requirements.”
Some Tribal commenters requested modifications specifically regarding Tribal documentation requests. Commenters stated that development on certain Category 2 Indian land are subject to Tribal approval and regulatory authority and involve the co-management of the Department of Interior. To ensure applicants on Indian land understand documentation requirements, these commenters requested that the attestation requirements reflect a Tribal approval or a Tribal resolution for projects on lands
The United States has a trust relationship with Tribal governments whereby the Federal government manages certain Indian land for Tribal governments and Tribal citizens as the beneficial owners based on the cessation of Tribal lands.
One commenter also suggested that Tribally owned qualified solar or wind facilities have priority [for an allocation] over other third-party facility owners with respect to Category 2. Another commenter stated that Category 2 allocation should be fully reserved (not 50 percent reserved) for projects that meet the Tribal Ownership Criteria.
Commenters provided that projects owned directly by a Tribe, Tribal enterprise, Tribal utility, or Tribal housing authority, regardless of the category, should not have to comply with certain documentation and attestation requirements, such as site control, customer disclosures, benefit sharing agreement requirements, leases, contracts to purchase, PPAs (which should only be required if the project is structured to include a third-party owner), permits, and compliance with Tribal law. Another commenter agreed that for transactions not involving third parties, Tribes should not be required to provide certain application or attestation documents, and that Tribes should be able to self-certify that qualifying projects are compliant. Other Tribal commenters support the ability to self-certify and additionally advised the Treasury Department and the IRS not to rely on external census data to track poverty levels on Indian land. Similarly, another commenter agreed that documentation requirements should be tailored for Category 3 and Tribal-enterprise owned projects should be allowed more flexibility, based on Tribal recommendations.
The Treasury Department and the IRS considered these comments but did not adopt them in Revenue Procedure 2023-27 because, as explained in the Proposed Rules, the documentation and attestation requirements are critical for all projects to ensure an efficient allocation process (that is, to ensure that projects receiving an allocation are viable and can satisfy Program requirements). Moreover, some of the requirements, such as site control, permits, and compliance with Tribal laws are attestations that merely require Tribal entities to attest that the Program requirements are satisfied, similar to self-certification.
A commenter suggested that the Treasury Department and the IRS require applicants to submit documentation that they have received (or have contracted with a service provider that will be handling beneficiary personally identifiable information and that has received) a third-party cybersecurity assessment against a technology industry-standard framework such as SOC 2 Type II (sponsored by the American Institute of Certified Public Accountants), and that the assessment does not include unaddressed or unremediated material findings.
The Treasury Department and the IRS recognize that the Program requires information and documentation that may contain confidential information. The IRS and DOE are following all required protocols to protect information submitted to the IRS or DOE. However, the Treasury Department and the IRS think that it would be administratively impractical to impose cybersecurity assessment requirements on applicants, so this suggestion is not included in Program guidance.
Another commenter provided that the final regulations should confirm that executed contracts and other documents containing personally identifying and/or business confidential information submitted in connection with the applications constitute trade secrets and/or commercial or financial information that is exempt from disclosure under the Freedom of Information Act (FOIA).
After consideration of this comment, it is not adopted in these final regulations. Commenting on the IRS, DOE, or the Treasury's Department's response to any FOIA request is outside the scope of what can be appropriately addressed in Program guidance.
In contrast to the commenters who requested relaxing or eliminating certain documentation and attestation requirements, three commenters were supportive of the project maturity requirements and some suggested that the final regulations should impose additional requirements. One commenter is pleased that maturity requirements for all capacity categories are included and recommends further strengthening these maturity requirements by necessitating a documentation requirement providing an interconnection agreement or State approved interconnection process, a community solar State program capacity award or a PPA, and proof of non-ministerial permits rather than an attestation. The other commenter suggested enhancing application requirements for the initial application period and subsequent rolling application process. The commenter suggests that demonstration of site control (for example, an executed contract, lease, or option to lease or purchase or similar agreement between the property owner and the developer/installer) and all non-ministerial permits should be included as a “Proposed Document Requirement,” rather than a “Proposed Attestation Requirement” for FTM and BTM that are smaller than 1 MW. The commenter says these milestones, as well as an executed interconnection agreement, are clearest and most efficient. The final commenter was supportive as long as the information submitted was kept strictly confidential and not subject to public disclosure as discussed earlier.
For Category 3 specifically, one commenter suggested that the Documentation and Attestations table should be updated to add a line for “An executed contract to purchase the facility, an executed contract to lease the facility, or an executed power purchase agreement for the facility.” This same commenter also suggested that for Category 3, there should be a multifamily building financial benefits assignment plan to illustrate how the
Other commenters included suggestions for documentation alternatives or requests for clarification on documentation requirements. One commenter suggested that for BTM projects, site control should also be accepted through other recordable documents such as “Option Agreements” or “Memoranda of Understanding,” including attestation that such documents exist, similar to what the transmission and distribution companies accept for site control. The commenter stated that the three documents listed as required in Table 1 for BTM are all proprietary to an applicant and contain business sensitive information. In addition, executing these documents may depend on if the applicant receives the “adders (bonus).” To clarify, the site control document attestations are required for FTM; these attestations are not required for BTM so this commenter's particular concerns do not arise. Another commenter asked for clarification whether a lease option agreement satisfies the requirement for FTM facilities, which requires showing that the applicant has site control through ownership, an executed lease contract, site access agreement or similar agreement between the property owner and the applicant. The same commenter asked also for clarification that a submitted executed contract may have an execution date of August 16, 2022, or later. Lastly, a commenter urged the Treasury Department and the IRS to consider a guaranteed maximum price contract or other design/build contract in lieu of the requirement that BTM facilities provide documentation in the form of an executed contract to purchase the facility, an executed contract to lease the facility, or an executed PPA for the facility. This commenter said that in most cases, the commenter expects to develop the project themselves and hire a contractor to install the solar arrays, and so there would be no need for a purchase, lease, or PPA contract.
The Treasury Department and the IRS considered these comments but decided not to impose additional requirements. The Treasury Department and the IRS view the Proposed Rules as striking the right balance between requiring adequate documentation and attestations to ensure projects are viable and well defined to allow for a review for an allocation, and sufficiently advanced such that they are likely to meet the four-year placed in service deadline, while not being unduly burdensome for applicants. Additional documentation and attestations suggested by these commenters do not appear necessary to verify compliance with Program requirements.
On the requests for alternatives (a lease option agreement requested by one commenter and guaranteed maximum price contract or other design/build contract requested by another), the Treasury Department and the IRS also considered these suggestions but believe the original documents described in the Proposed Rules are best able to demonstrate a project is viable and well defined to allow for a review for an allocation, and sufficiently advanced such that they are likely to meet the four-year placed in service deadline, while not being unduly burdensome for applicants. Lastly, on the question of timing and whether a submitted executed contract may have an execution date of August 16, 2022, or later, the rules do not have any date restrictions on the documentation required.
The Proposed Rules also provided a that a lottery system may be used in oversubscribed categories to decide among similarly situated applications.
A few commenters requested that the lottery process be eliminated, and that the application process be entirely on a first-come, first-served basis. One commenter advised against a lottery system and advised that in the event the Program is oversubscribed, the Treasury Department and the IRS should select projects based on “project readiness”, which, the commenter states, in most existing solar markets, uses the earliest-in-time date of permit or ISA as a proxy for project maturity. Other commenters stated that they understand the purpose of a lottery in tie-breaker situations, but caution that a lottery may incentivize speculative project developers. The Treasury Department and the IRS made the decision to retain the lottery to provide an equitable review process for similarly situated applications. Due to the anticipated volume of applications, it would not be administratively feasible to select between applications for similar situated facilities that are submitted during the same time period for review without a lottery process that objectively prioritizes projects for review. The lottery process will allow for an efficient allocation process by ordering applications for review and allowing applications to be divided among reviewers for simultaneous review.
The final regulations adopt the lottery system from the Proposed Rules to be used if a facility category or sub-reservation is oversubscribed but clarifies that details regarding how the lottery procedures will operate are specified in guidance published in the Internal Revenue Bulletin. The final regulations also clarify that a category or sub-category is oversubscribed if it receives applications in excess of Capacity Limitation reserved for the facility category or reservation within a facility category. For the 2023 Program year, Revenue Procedure 2023-27 provides the application review and selection procedures. The specific review and selection procedure may be updated in future Program guidance for Program year 2024.
The Treasury Department and the IRS proposed an approach that includes an initial application window in which applications received by a certain time and date would be evaluated together, followed with a rolling application process if Capacity Limitation is not fully allocated after the initial application window closes.
Several commenters requested a first-come, first-served application process, with a few commenters adding that it should be first-come, first-served with respect to projects that are similarly situated. Additionally, several comment letters referred to the 60-day application period previously provided for the Program under Notice 2023-17. These comment letters generally state that a 60-day period is too short and request instead that the Program accept applications on a rolling basis. The Proposed Rules already provided for a change from the 60-day window under Notice 2023-17. This change was noted under “Selection Process” in the Proposed Rules.
As provided in Revenue Procedure 2023-27, for Program year 2023 there will be an initial 30-day window followed by a rolling application process thereafter for any capacity that remains in a given category or sub-reservation. At the end of the initial window, any category or sub-reservation that is oversubscribed will be subject to the lottery system. Applications may still be submitted in oversubscribed categories or for the Category 1 sub-reservation after the 30-day period and until the close of a Program year. Those applications may be reviewed in the order received only after DOE's review and the IRS's award determinations regarding all applications submitted
A few commenters additionally suggested that any category that has remaining capacity at the close of the Program for a particular capacity year should enter into a continuous rolling application process, rather than requiring a new application window. One commenter further specified that if the category remains in a rolling application process through the end of the calendar year, then on January 1 of the following year, new annual capacity should be allocated to the category and the rolling application process should continue. Otherwise, these commenters state that there will be a backlog of applications. One of the commenters also urged the Treasury Department and the IRS to create a waitlist for the following year's capacity allocation, with applications prioritized in the order received. This commenter stated that this would obviate the need for a lottery system for similarly situated applications in oversubscribed categories. Finally, a few commenters expressed concern about the short application period for the 2023 Program year. These commenters generally stated their belief that the 2023 Program will close on December 31, 2023 and that any unallocated Capacity Limitation will immediately rollover and be added to the 2024 Capacity Limitation on January 1, 2024.
The Treasury Department and the IRS will assess the 2023 Program and initial applications before determining any capacity changes to the 2024 Program and any changes to the application process. The Treasury Department and the IRS can also adjust Capacity Limitation among categories within a Program year. Moreover, although the statute provides for a Capacity Limitation for each calendar year, with the ability to rollover unused Capacity Limitation to the next year, there is no requirement to close the application and allocation period for the 2023 Program year on December 31, 2023. Applicants should refer to Revenue Procedure 2023-27 for additional details regarding the Program application process.
The Proposed Rules also required facilities that received a Capacity Limitation allocation to report to DOE that the facility has been placed in service, and to submit additional documentation or complete additional attestations with this reporting.
The Proposed Rules provided that an owner must submit documentation or attest to the following:
The final regulations adopt the requirement that the owner of a facility must report to DOE that the facility has been placed in service, and to submit additional documentation or complete additional attestations with this reporting but clarify that the specific information, documentation, and attestations that applicants are required to submit will be specified in guidance published in the Internal Revenue Bulletin. For the 2023 Program year, Revenue Procedure 2023-27 provides the placed in service documentation procedures. The specific information, documentation, and attestations that applicants are required to submit when a qualified facility is placed in service may get updated for Program year 2024.
One commenter provided that a final, PE stamped as-built design plan is unnecessary. The commenter stated that applicants should instead be able to rely upon the as-built design plan for the project (without a PE stamp, at least in jurisdictions where such a stamp is not required), or other permitting documentation from the authority having jurisdiction, demonstrating the nameplate capacity. This suggestion is partially adopted in the Revenue Procedure 2023-27, allowing as-built design plans to be submitted without a PE stamp in cases where the local jurisdiction does not require such a stamp. The Treasury Department and the IRS further note that the as-built design plan is only one of three options for verifying as-built nameplate capacity, which provides flexibility for applicants. A PTO letter with nameplate capacity listed or other documentation from an unrelated party verifying as-built nameplate capacity are also reliable and acceptable options.
Also, as discussed in part V.5 of this Summary of Comments and Explanation of Revisions section, the Treasury Department and the IRS determined that to better achieve the goal of verifying Program compliance, the final regulations will require that facility owners must prepare a Benefits Sharing Statement, which must include certain information, and that the Qualified Residential Property owner must formally notify the occupants of units in the Qualified Residential Property of the development of the facility and planned distribution of benefits. Therefore, this Benefits Sharing Statement, instead of a Benefits Sharing Agreement, will be required documentation upon placing a Category 3 property in service.
The Proposed Rules, consistent with an earlier statement in section 4.05 of Notice 2023-17, provided that facilities placed in service prior to being awarded an allocation of Capacity Limitation would not be eligible to receive an allocation.
Some commenters disagreed with the proposal that facilities must be placed in service after being awarded an allocation of Capacity Limitation to be eligible to receive an allocation. These commenters focused on the impact this will have on the economics of their projects for the Program as well as timing issues they argue arise due to waiting for allocation. For example, one commenter stated that they will not be able to complete projects without the bonus credit because the “economics” of their projects will be “severely impacted”, and if they must apply first to get an award, that the projects will be delayed to 2024. Another commenter noted specifically for Category 3 that multifamily affordable housing owners have been relying on the initial guidance and the February 13, 2023, statutory due date, and they have been planning on deploying solar power and storage that benefits residents of affordable housing since the day the IRA became law. The commenter added that these projects would not be economically viable without the Low-Income Communities Bonus Credit, and absent the bonus credit, these same developers would have planned to develop significantly smaller solar installations that offset common area electric loads only and would not have planned larger solar and storage facilities that also provide a direct economic benefit to low-income residents. This commenter disagreed with the statement that facilities placed in service prior to the allocation process do not increase adoption of and access to renewable energy facilities. Additionally, two commenters noted that the rationale for not allowing projects placed into service after January 1, 2023, but before receiving an allocation, to be eligible for the bonus allocation is insufficient, and should be rescinded.
Some commenters expressed concern over the potential impact that this proposal would have on low-income residents, including Tribal members. Likewise, another commenter suggested that the Treasury Department and the IRS should reconsider the placed into service requirements due to reliance concerns and negative economic impacts on Tribes. The commenter explained that many new Tribal projects were planned, developed and started construction after the IRA passed in anticipation of qualifying for the bonus credit. This expectation escalated Tribal projects that might not otherwise have been developed—just as the statute intended. This commenter specifically suggested that Tribal projects that are placed in service after January 1, 2023, should be eligible for this bonus allocation. Another commenter noted a particular project for which they would be able to provide 25 percent energy savings directly to low-income families if they receive the allocation, and without that bonus amount, their financing costs would rise (due to increased returns provided to their equity investor) and consequently they would have to reduce the economic savings to 20 percent. In this example, the commenter believed that providing an additional 5 percent in direct economic benefits to low-income families would increase adoption and access to renewable energy. Similarly, another commenter contended that, due to this requirement that a project must be placed in service after an allocation award, it would be more burdensome and therefore less likely that low-income communities with environmental justice concerns will benefit from the Program.
Two commenters suggested allowing facilities that were placed in service after the date of the initial guidance, February 13, 2023. Another commenter suggested including facilities for which construction began after the enactment of the IRA on August 16, 2022. One commenter made some specific recommendations depending on the type of project. This commenter suggested allowing all facilities (in addition to Category 1 facilities) that have allocations awarded under the rolling application process to be placed in service prior to an allocation award. Alternatively, this commenter suggested allowing single-family residential rooftop facilities in Category 1 that have allocations awarded under the rolling application process to be placed in service prior to allocation award. This commenter also agreed with other commenters that 2023 capacity allocations be allowed for any qualifying Category 3 facility placed in service after final Program rules are issued noting that this suggestion is based on the longer development timelines and unique cost considerations for Category 3 projects.
Another commenter suggested modifying the requirement to instead provide that projects must be placed in service after application, rather than after allocation.
After consideration of the comments described herein, the final regulations adopt the Proposed Rule providing that projects must be placed in service after allocation. The Treasury Department and the IRS considered these comments but ultimately decided not to make a change because requiring projects be placed in service after allocation provides the best way to promote the increase of, and access to, renewable energy facilities that would not be completed in the absence of the Program. Although Treasury and IRS recognize the economic and business-model concerns raised by commenters, these issues are largely the result of allocations not being readily available before the Program opens. These issues are therefore expected to significantly diminish in the future. Further, section 48(e)(4)(E)(i) provides a lengthy window of four years to place a facility in service following an allocation of Capacity Limitation, supporting that statutory intent is for allocations to go to new facilities that have not yet been placed in service. The Treasury Department and the IRS therefore believe that this rule best accomplishes Congress's intent of the Program to encourage new development of renewable energy and the corresponding benefits to low-income communities. The Program cannot encourage additional renewable energy facilities in connection with low-income communities if those facilities were already placed in service without the Program.
The Proposed Rules provided that a facility that was awarded a Capacity Limitation allocation is disqualified from receiving that allocation if prior to or upon the facility being placed in service: (1) the location where the facility will be placed in service changes; (2) the nameplate capacity of the facility increases such that it exceeds the less than 5 MW AC maximum net output limitation provided in section 48(e)(2)(A)(ii) or decreases by the greater of 2 kW or 25 percent of the Capacity Limitation awarded in the allocation; (3) the facility cannot satisfy the financial benefits requirements under section 48(e)(2)(B)(ii) as planned (if applicable) or cannot satisfy the financial benefits requirements under section 48(e)(2)(C) as planned (if applicable); (4) the eligible property that is part of the facility that received the Capacity Limitation allocation is not placed in service within four years after the date
Commenters expressed concern over some of the disqualification factors set forth in the Proposed Rules. In response to the proposal that a certain decrease in nameplate capacity results in a disqualification, one commenter suggested increasing the threshold for disqualification due to a size reduction from 25 percent to at least 30 percent. Another commenter recommended that the 2 kW or 25 percent threshold be applicable to both increasing and decreasing the system's size.
Based on an assessment of other similar State programs and because this is an allocated credit with a finite amount of capacity awarded each year, the Treasury Department and the IRS have declined to adopt the comment to increase the size reduction to 30 percent.
For a different disqualification factor that would occur when the eligible property that is part of the facility that received the Capacity Limitation allocation is not placed in service within four years after the date the applicant was notified of the allocation, a commenter suggested that projects receiving an allocation of bonus credits be allowed to show alternative forms of completion within the four-year window apart from “placed in service,” which commenter says unfairly depends on the utility's timeline for signing off on the project. Another commenter recommended adding additional requirements for the topic of placed in service for Category 1. This commenter suggested that for BTM projects that are smaller than 1 MW, these projects be required to attest that the project is active and moving forward towards being placed in service on an annual basis after receiving an allocation, or until the eligible property is placed in service. The commenter proposed that if the applicant is non-responsive or declines to attest that the project is active, then the allocation should be forfeited and the capacity returned and that applicants should also be able to proactively forfeit an allocation. The commenter's reasoning for this is that in commenter's view four years is far beyond the necessary time frame for smaller projects that can be completed in months instead of years.
The Treasury Department and the IRS did not adopt these recommendations. Section 48(e)(4)(E) sets the placed in service deadline for the Program by providing that section 48(e)(1) does not apply with respect to any property that is placed in service after the date that is four years after the date of the allocation with respect to the facility of which such property is a part. Therefore, providing any type of alternative forms of completion within the four-year window apart from “placed in service” is inconsistent with the statute and not allowed. Similarly, additional burdens (and repercussions for non-compliance) of annual attestation requirements for smaller Category 1 projects should not be imposed.
The Proposed Rules provided that if the facility received a Capacity Limitation allocation based, in part, on meeting the Ownership Criteria and ownership of the facility changes prior to the facility being placed in service such that the Ownership Criteria is no longer satisfied, unless (a) the original applicant retains an ownership interest in the entity that owns the facility and (b) the successor owner attests that after the five year recapture period, the original applicant that met the Ownership Criteria will become the owner of the facility or that this original applicant will have the right of first refusal. Commenters observed that put options, which are often used in tax equity structures, were excluded from the proposed rule. The Treasury Department and the IRS have modified this rule to better reflect contractual arrangements used with tax equity financing structures and to avoid unintended complications with other tax guidance. The final regulations eliminate the attestation regarding a call, put, or right of first refusal is that such contractual rights exist. Rather, the final regulations provide that if the facility received a Capacity Limitation allocation based, in part, on meeting the ownership criteria and if ownership of the facility changes prior to the facility being placed in service the facility is disqualified, unless the original applicant transfers the facility to an entity treated as a partnership for Federal income tax purposes and retains at least a one percent interest (either directly or indirectly) in each material item of partnership income, gain, loss, deduction, and credit of such partnership and is a managing member or general partner (or similar title) under State law of the partnership (or directly owns 100 percent of the equity interests in the managing member or general partner) at all times during the existence of the partnership.
In accordance with section 48(e)(5), the Proposed Rules provided for recapturing the benefit of any section 48(e) Increase with respect to any property that ceases to be property eligible for such section 48(e) Increase (but that does not cease to be investment credit property within the meaning of section 50(a)). In accordance with section 48(e)(5), the Proposed Rules provided that the period and percentage of such recapture is determined under rules similar to the rules of section 50(a). In accordance with section 48(e)(5), the Proposed Rules acknowledged such recapture may not apply with respect to any property if, within 12 months after the date the applicant becomes aware (or reasonably should have become aware) of such property ceasing to be property eligible for such section 48(e) Increase, the eligibility of such property for such section 48(e) Increase is restored. In accordance with section 48(a)(5), the Proposed Rules provided that such restoration of a section 48(e) Increase is not available more than once with respect to any facility.
The Proposed Rules provided that the following circumstances result in a recapture event if the property ceases to be eligible for the increased credit under section 48(e): (1) property described in section 48(e)(2)(A)(iii)(II) fails to provide financial benefits over the 5-year period after its original placed in service date; (2) property described under section 48(e)(2)(B) ceases to allocate the financial benefits equitably among the occupants of the dwelling units, such as not passing on to residents the required net energy savings of the electricity; (3) property described under section 48(e)(2)(C) ceases to provide at least 50 percent of the financial benefits of the electricity produced to qualifying households as described under section 48(e)(2)(C)(i) or (ii), or fails to provide those households the required minimum 20 percent bill credit discount rate; (4) for property described under section 48(e)(2)(B), the residential rental building the facility is a part of ceases to participate in a covered housing program or any other housing program described in section 48(e)(2)(B)(i), if applicable; and (5) a facility increases its output such that the facility's output is 5 MW AC or greater,
Commenters submitted recommendations and questions related to the recapture provisions in the Proposed Rules. One commenter suggested stricter rules by requiring attestations that the owner of the facility will maintain eligibility under the Program for a minimum of 15 years, or the lifetime of the project. This commenter said if it is not possible to require this sort of covenant or attestation, the Treasury Department and the IRS should instead implement continual and spontaneous audits of projects. The Treasury Department and the IRS did not adopt this suggestion. Under the recapture provisions of section 48(e)(5), Congress provided that the period and percentage of such recapture must be determined under rules similar to the rules of section 50(a). Section 50(a) generally provides that this is a five year period with differing applicable percentages depending on when the property ceases to qualify. Therefore, under section 48(e)(5), stricter restrictions related to recapture should not be imposed.
Two commenters raised concerns about the recapture event that occurs when the property ceases to provide at least 50 percent of the financial benefits of the electricity produced to qualifying households as described under section 48(e)(2)(C). Another commenter raised a similar issue regarding the Proposed Rule that projects can only cure an issue related to low-income verification one time if the 50 percent financial benefits threshold is not met. This commenter stated that, due to the complexity of subscription management, potential defaults, and subscription termination, it is possible that projects will dip below this 50 percent threshold more than once due to no fault of the project owner. This commenter recommended that the rules be revised to allow projects to dip below the 50 percent threshold if there is proven effort to restore the low-income percentage. The Treasury Department and the IRS did not adopt these recommendations because it is inconsistent with section 48(e)(5). Section 48(e)(5) allows only a one-time restoration of section 48(e) eligibility per facility if the facility ceases to qualify for an allocation of Capacity Limitation before recapture of the section 48(e) Increase is triggered.
A different commenter suggested an additional recapture event that rooftop solar lease and PPA providers should attest that they will adhere to the provisions of the Consumer Leasing Act (15 U.S.C. 1667-1667f), and the rules should make documented violations of the Consumer Leasing Act an event that would trigger recapture of the allocation. While the Treasury Department and the IRS understand the commenter's concern, the statute provides no requirements related to the Consumer Leasing Act, and therefore, the final regulations do not impose this requirement on the applicants.
The final regulations related to recapture adopt the requirements from the Proposed Rules but also include a clarification that any event that results in recapture under section 50(a) will also result in recapture of the benefit of the section 48(e) Increase. The exception to the application of recapture provided in § 1.48(e)-1(n)(2) does not apply in the case of a recapture event under section 50(a).
Pursuant to the Memorandum of Agreement, Review of Treasury Regulations under Executive Order 12866 (June 9, 2023), tax regulatory actions issued by the IRS are not subject to the requirements of section 6 of Executive Order 12866, as amended. Therefore, a regulatory impact assessment is not required.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) (PRA) requires that a Federal agency obtain the approval of OMB before collecting information from the public, whether such collection of information is mandatory, voluntary, or required to obtain or retain a benefit. The collections of information in these final regulations contain reporting and recordkeeping requirements that are required to obtain the section 48(e) Increase. This information in the collections of information would generally be used by the IRS and DOE for tax compliance purposes and by taxpayers to facilitate proper reporting and compliance. A Federal agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.
The recordkeeping requirements mentioned within this final regulation are considered general tax records under Section 1.6001-1(e). These records are required for the IRS to validate that taxpayers have met the regulatory requirements and are entitled to receive a section 48(e) Increase. For PRA purposes, general tax records are already approved by OMB under 1545-0123 for business filers, 1545-0074 for individual filers, and 1545-0047 for tax-exempt organizations.
The final regulations also describe reporting requirements for providing attestations and supporting documentation for the initial application, providing supporting documentation for specific facilities, and confirming a facility is placed in service as detailed in these final regulations.
These attestations and documentation would allow IRS to allocate Capacity Limitation and ensure taxpayers maintain compliance. To assist with the collections of information, DOE will provide certain administration services for the Program. Among other things, DOE will establish a website portal to review the applications for eligibility criteria and will provide recommendations to the IRS regarding the selection of applications for an allocation of Capacity Limitation. These collection requirements will be submitted to the Office of Management and Budget (OMB) under 1545-2308 for review and approval in accordance with 5 CFR 1320.11. The likely respondents are business filers, individual filers, and tax-exempt organization filers. A summary of paperwork burden estimates for the application, supporting documentation, and attestations is as follows:
The IRS solicited feedback on the collection requirements for the application, supporting documentation, and attestations. Although no public comments received by the IRS were directed specifically at the PRA or on the collection requirements, several commenters generally expressed concerns about the burdens associated with the documentation requirements contained in the Proposed Rules. As described in the relevant portions of this preamble, the Treasury Department and IRS believe that the documentation requirements are necessary to administer the Program.
The Regulatory Flexibility Act (5 U.S.C. 601
Pursuant to section 7805(f) of the Code, these final regulations were submitted to the Chief Counsel of Advocacy of the Small Business Administration, and no comments were received.
The final regulations would provide guidance for purposes of participation in the Program to allocate the environmental justice solar and wind capacity limitation under section 48(e) for the Program. The final regulations are expected to encourage applicants to invest in solar and wind energy. Thus, the Treasury Department and the IRS intend and expect that the final regulations will deliver benefits across the economy and environment that will beneficially impact various industries.
There were no comments filed that specifically addressed the Proposed Rules and policies presented in the IRFA. Additionally, no comments were filed by the Chief Counsel of Advocacy of the Small Business Administration.
A total of 1800 MW of capacity are eligible for the section 48(e) bonus credit annually. Assuming the average size of each successful application is near 1 MW, then there will be approximately 2,000 successful applications each year. The Treasury Department and the IRS expect the total number of applications to be significantly higher than this. In addition, the Treasury Department and the IRS also assume that some successful applicants will submit more than one successful application. The Treasury Department and the IRS do not have information on the expected business entity size distribution of successful applicants but will continue to examine this issue when data is collected during the first round of allocations.
The recordkeeping and reporting requirements would increase for applicants that participate in the Program. Although the Treasury Department and the IRS do not have sufficient data to determine precisely the likely extent of the increased costs of compliance, the estimated burden of complying with the recordkeeping and reporting requirements are described in the Paperwork Reduction Act section of this preamble. In particular, the Paperwork Reduction Act section of this preamble contains a summary of paperwork burden estimates for the application, supporting documentation, and submissions when projects are placed in service. The IRS solicited feedback on the collection requirements for the application, supporting documentation, and attestations. Although no public comments received by the IRS were directed specifically at the PRA or on the collection requirements, several commenters generally expressed concerns about the burdens associated with the documentation requirements contained in the Proposed Rule. As described in the relevant portions of this preamble, the Treasury Department and IRS believe that the documentation requirements are necessary to administer the Program.
The Treasury Department and the IRS considered alternatives to the final regulations. For example, the Treasury Department and the IRS considered exclusively using a lottery system for all over-subscribed categories, rather than creating reservations for facilities meeting ASC. Although a lottery system may ultimately need to be used for an oversubscribed category, the Treasury Department and the IRS decided that it was important to propose reserving Capacity Limitation for facilities that meet certain ASC that further the policy goals of the Program.
Additionally, when considering how to define “in connection with,” the Treasury Department and the IRS were mindful that the statute requires the energy storage technology to be installed in connection with a qualifying solar or wind facility to be eligible for an increase in the energy percentage used to calculate the amount of the section 48 credit. Different alternatives were considered on how to address this definition. For example, the Treasury Department and the IRS considered but ultimately decided not to incorporate the safe harbor (deeming the energy storage technology to be charged at least 50 percent by the facility if the power rating of the energy storage technology is less than 2 times the capacity rating of the connected wind or solar) as part of the general rule to define “in connection with.” The final regulations instead generally require the energy storage technology to have a sufficient nexus to the other eligible property because it is part of the single project and is significantly charged by the eligible property. The Treasury Department and the IRS maintain the safe harbor in the final regulations, but only as a means of deeming the energy storage technology charging requirement to be satisfied.
Another example where different alternatives were considered was with respect to application materials. Section 48(e)(4)(A) directs the Secretary to provide procedures to allow for an efficient allocation process, and section 48(e)(4)(E)(i) allows an applicant up to four years after receiving a Capacity Limitation allocation to place eligible property into service. Alternatives were considered on how best to balance these statutory requirements, considering practical issues for taxpayers and residents as well as the traditional structure and arrangement of these solar or wind transactions, including considerations on the type of facility (BTM or FTM) and the capacity of the facility. Among other things, the Treasury Department and the IRS considered whether an application for an interconnection agreement or an executed interconnection agreement should be required as part of the application materials. The final regulations are based on the view that the executed interconnection agreement, if applicable, is essential documentation to demonstrate sufficient project maturity.
Additionally, the Treasury Department and the IRS considered a variety of bill credit discounts for Category 4 qualified low-income benefit project facilities. The bill credit discounts considered included 10 percent, 15 percent, or 20 percent. Alternatively, the Treasury Department and the IRS considered the option of a range of discounts from 10 percent to 20 percent from which applicants could
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires that agencies assess anticipated costs and benefits and take certain other actions before issuing a final rule that includes any Federal mandate that may result in expenditures in any one year by a State, local, or Tribal government, in the aggregate, or by the private sector, of $100 million in 1995 dollars, updated annually for inflation. This final rule does not include any Federal mandate that may result in expenditures by State, local, or Tribal governments, or by the private sector in excess of that threshold.
Executive Order 13132 (Federalism) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial, direct compliance costs on State and local governments, and is not required by statute, or preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. These regulations do not have federalism implications and do not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive Order.
Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) prohibits an agency from publishing any rule that has Tribal implications if the rule either imposes substantial, direct compliance costs on Indian tribal governments, and is not required by statute, or preempts Tribal law, unless the agency meets the consultation and funding requirements of section 5 of the Executive Order. These regulations do not have substantial direct effects on one or more federally recognized Indian tribes and do not impose substantial direct compliance costs on Indian tribal governments within the meaning of the Executive Order.
Nevertheless, on June 26, 2023, the Treasury Department and the IRS held a consultation with Tribal leaders requesting assistance in addressing questions related to Low-Income Communities Bonus Credit Program, which informed the development of these regulations.
Pursuant to the Congressional Review Act (5 U.S.C. 801
Guidance cited in this preamble is published in the Internal Revenue Bulletin and is available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS website at
The principal author of these regulations is the Office of the Associate Chief Counsel (Passthroughs and Special Industries), IRS. However, other personnel from the Treasury Department and the IRS participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, the Treasury Department and IRS amend 26 CFR part 1 as follows:
26 U.S.C 7805, unless otherwise noted. 26 U.S.C. 7805, unless otherwise noted. 26 U.S.C. 7805. 26 U.S.C. 401(m)(9) and 26 U.S.C. 7805.
The additions read as follows:
This section lists the captions contained in § 1.48(e)-1.
(a)
(b)
(i) Generates electricity solely from a wind facility (described in section 45(d)(1) of the Code) for which an election to treat the facility as energy property was made under section 48(a)(5) (wind facility), solar energy property (described in section 48(a)(3)(A)(i)) (solar energy property), or small wind energy property (described in section 48(a)(3)(A)(vi)) (small wind energy property);
(ii) Has a maximum net output of less than 5 megawatts (MW) (as measured in alternating current (AC)); and
(iii) Is described in at least one of the four categories described in section 48(e)(2)(A)(iii) and paragraph (b)(2) of this section.
(2)
(ii)
(iii)
(iv)
(A) Two-hundred percent of the poverty line (as defined in section 36B(d)(3)(A) of the Code) applicable to a family of the size involved, or
(B) Eighty percent of area median gross income (as determined under section 142(d)(2)(B) of the Code).
(3)
(i) The facilities or energy properties are owned by a single legal entity;
(ii) The facilities or energy properties are constructed on contiguous pieces of land;
(iii) The facilities or energy properties are described in a common power purchase agreement (PPA) or more than one common power purchase agreements (PPAs);
(iv) The facilities or energy properties have a common interconnection;
(v) The facilities or energy properties share a common substation;
(vi) The facilities or energy properties are described in one or more common environmental or other regulatory permits;
(vii) The facilities or energy properties were constructed pursuant to a single master construction contract; or
(viii) The facilities or construction of the energy properties was financed pursuant to the same loan agreement.
(c)
(2)
(i) The requirements of this paragraph (c)(2)(i) are satisfied if the energy storage technology and other eligible property are considered part of a single qualified solar or wind facility based on the energy storage technology and other eligible property being:
(A) Owned by a single legal entity,
(B) Located on the same or contiguous pieces of land,
(C) Having a common interconnection point, and
(D) Described in one or more common environmental or other regulatory permits.
(ii) The requirement of this paragraph (c)(2)(ii) is satisfied if the energy storage technology is charged no less than an annual average of 50 percent by the other eligible property.
(3)
(d)
(2)
(i)
(ii)
(e)
(2)
(3)
(i) Twenty-five percent of the gross financial value (as defined in paragraph (e)(4) of this section) of the annual energy produced by the energy property, or
(ii) The net financial value (as defined in paragraph (e)(5) of this section) of the annual energy produced by the energy property.
(4)
(i) The total self-consumed kilowatt-hours produced by the qualified solar or wind facility multiplied by the applicable building's metered volumetric price of electricity,
(ii) The total exported kilowatt-hours produced by the qualified solar or wind facility multiplied by the applicable building's volumetric export compensation rate for solar or wind kilowatt-hours, and
(iii) The sale of any attributes associated with the facility's production (including, for example, any Federal, State, or Tribal renewable energy tax credits or incentives), if separate from the metered price of electricity or export compensation rate.
(5)
(ii)
(iii)
(A)
(B)
(6)
(A) A calculation of the facility's gross financial value using the method described paragraph (e)(4) of this section,
(B) A calculation of the facility's net financial value using the method described in paragraph (e)(5) of this section,
(C) A calculation of the financial value required to be distributed to building occupants using the method described in paragraph (e)(3) of this section,
(D) A description of the means through which the required financial value will be distributed to building occupants, and
(E) If the facility and Qualified Residential Property are separately owned, indication of which entity will be responsible for the distribution of benefits to the occupants.
(ii)
(f)
(i) The facility must serve multiple qualifying low-income households under section 48(e)(2)(C)(i) or (ii) (Qualifying Household),
(ii) At least 50 percent of the facility's total output in kW must be assigned to Qualifying Households, and
(iii) Each Qualifying Household must be provided a bill credit discount rate (as defined in paragraph (f)(2) of this section) of at least 20 percent.
(2)
(ii)
(iii)
(iv)
(A)
(B)
(3)
(ii)
(A)
(B)
(C)
(g)
(h)
(2)
(A) A Tribal enterprise (as defined in paragraph (h)(2)(iii) of this section),
(B) An Alaska native corporation (as defined in paragraph (h)(2)(iv) of this section),
(C) A renewable energy cooperative (as defined in paragraph (h)(2)(v) of this section),
(D) A qualified renewable energy company meeting certain characteristics (as defined in paragraph (h)(2)(vi) of this section), or
(E) A qualified tax-exempt entity (as defined in paragraph (h)(2)(vii) of this section).
(ii)
(B)
(iii)
(A) Owned at least 51 percent directly by an Indian Tribal government (as defined in section 30D(g)(9) of the Internal Revenue Code (Code)), or owned at least 51 percent indirectly through a corporation that is wholly owned by the Indian Tribal government and is created under either the Tribal laws of the Indian Tribal government or through a corporation incorporated under the authority of either section 17 of the Indian Reorganization Act of 1934, 25 U.S.C. 5124 or section 3 of the Oklahoma Indian Welfare Act, 25 U.S.C. 5203), and
(B) Subject to Tribal government rules, regulations, and/or codes that regulate the operations of the entity.
(iv)
(v)
(A) A consumer or purchasing cooperative controlled by its members with each member having an equal voting right and with each member having rights to profit distributions based on patronage as defined by proportion of volume of energy or energy credits purchased (kWh), volume of financial benefits delivered ($), or volume of financial payments made ($); and in which at least 50 percent of the patronage in the qualified facility is by cooperative members who are low-income households (as defined in section 48(e)(2)(C)), or
(B) A worker cooperative controlled by its worker-members with each member having an equal voting right.
(vi)
(A) At least 51 percent of the entity's equity interests are owned and controlled by one or more individuals.
(B) At least 51 percent of the entity's equity interests are owned and controlled by a Community Development Corporation (as defined in 13 CFR 124.3).
(C) At least 51 percent of the entity's equity interests are owned and controlled by an agricultural or horticultural cooperative (as defined in section 199A(g)(4)(A)).
(D) At least 51 percent of the entity's equity interests are owned and controlled by an Indian Tribal government (as defined in section 30D(g)(9)).
(E) At least 51 percent of the entity's equity interests are owned and controlled by an Alaska Native corporation (as defined in section 3 of the Alaska Native Claims Settlement Act, 43 U.S.C. 1602(m)).
(F) At least 51 percent of the entity's equity interests are owned and controlled by a Native Hawaiian organization (as defined in 13 CFR 124.3).
(G) Has less than 10 full-time equivalent employees (as determined under section 4980H(c)(2)(E) and (c)(4)) and less than $20 million in annual gross receipts in the previous calendar year; this must include the employees or receipts of all affiliates when determining the size of a business. Affiliation with another business is based on the power to control, whether exercised or not. The power to control exists when an external party has 50 percent or more ownership. It may also exist with considerably less than 50 percent ownership by contractual arrangement, or when one or more parties own a large share compared to other parties.
(H) First installed and/or operated a qualified solar or wind facility as defined in section 48(e)(2)(A) two or more years prior to the date of application; or
(I) Has provided solar services as a contractor or subcontractor to qualified solar or wind facilities as defined in section 48(e)(2)(A) with at least 100 kW of cumulative nameplate capacity located in one or more low-income communities as defined in section 48(e)(2)(A)(iii)(I).
(vii)
(A) An organization exempt from the tax imposed by subtitle A by reason of being described in section 501(c)(3) or section 501(d);
(B) Any State, the District of Columbia, or political subdivision thereof, or any agency or instrumentality of any of the foregoing;
(C) An Indian Tribal government (as defined in section 30D(g)(9)), a political subdivision thereof, or any agency or instrumentality of any of the foregoing; or
(D) Any corporation described in section 501(c)(12) operating on a cooperative basis that is engaged in furnishing electric energy to persons in rural areas.
(3)
(A)
(B)
(ii)
(A)
(B)
(C)
(D)
(E)
(i)
(2)
(A) It is connected with an electrical connection between the facility and the panelboard or sub-panelboard of the site where the facility is located,
(B) It is to be connected on the customer side of a utility service meter before it connects to a distribution or transmission system (that is, before it connects to the electricity grid), and
(C) Its primary purpose is to provide electricity to the utility customer of the site where the facility is located. This also includes systems not connected to a grid and that may not have a utility service meter, and whose primary purpose is to serve the electricity demand of the owner of the site where the system is located.
(ii)
(iii)
(j)
(2)
(3)
(k)
(2)
(3)
(4)
(i) The taxable year in which, under the taxpayer's depreciation practice, the period for depreciation with respect to such eligible property begins; or
(ii) The taxable year in which the eligible property is placed in a condition or state of readiness and availability for a specifically assigned function, whether in a trade or business or in the production of income.
(l)
(2)
(m)
(1) The location where the facility will be placed in service changes.
(2) The net output of the facility increases such that it exceeds the less than 5 MW AC output limitation provided in section 48(e)(2)(A)(ii) or the nameplate capacity decreases by the greater of 2 kW or 25 percent of the Capacity Limitation awarded in the allocation (AC for a wind facility; DC for a solar facility).
(3) The facility cannot satisfy the financial benefits requirements under section 48(e)(2)(B)(ii) and paragraph (e) of this section as planned, if applicable, or cannot satisfy the financial benefits requirements under section 48(e)(2)(C) or paragraph (f) of this section as planned, if applicable.
(4) The eligible property that is part of the facility that received the Capacity Limitation allocation is not placed in service within four years after the date the applicant was notified of the allocation of Capacity Limitation to the facility.
(5) The facility received a Capacity Limitation allocation based, in part, on meeting the ownership criteria and ownership of the facility changes prior to the facility being placed in service, unless the original applicant transfers the facility to an entity treated as a partnership for Federal income tax purposes and retains at least a one percent interest (either directly or indirectly) in each material item of partnership income, gain, loss, deduction, and credit of such partnership and is a managing member or general partner (or similar title) under State law of the partnership (or directly owns 100 percent of the equity interests in the managing member or general partner) at all times during the existence of the partnership.
(n)
(2)
(3)
(i) Property described in section 48(e)(2)(A)(iii)(II) fails to provide financial benefits.
(ii) Property described under section 48(e)(2)(B) ceases to allocate the
(iii) Property described under section 48(e)(2)(C) ceases to provide at least 50 percent of the financial benefits of the electricity produced to qualifying households as described under section 48(e)(2)(C)(i) or (ii), or fails to provide those households the required minimum 20 percent bill credit discount rate, as required by paragraph (f) of this section.
(iv) For property described under section 48(e)(2)(B), the residential rental building the facility is a part of ceases to participate in a covered housing program or any other affordable housing program described in section 48(e)(2)(B)(i), as applicable.
(v) A facility increases its output such that the facility's output is 5 MW AC or greater, unless the applicant can prove that the output increase is not attributable to the original facility but rather is output associated with a new facility under the 80/20 Rule (the cost of the new property plus the value of the used property).
(4)
(o)