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U.S. Citizenship and Immigration Services, DHS.
Notification of numerical limitation.
The Secretary of Homeland Security announces that the annual fiscal year numerical limitation for the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW–1) nonimmigrant classification for fiscal year (FY) 2017 (October 1, 2016—September 30, 2017) is set at 12,998. This notice announces the mandated annual reduction of the CW–1 numerical limitation and provides the public with additional information regarding the new CW–1 numerical limit. This notice ensures that CNMI employers and employees have sufficient information regarding the maximum number of foreign workers who may be granted CW–1 transitional worker status during FY 2017.
Paola Rodriguez Hale, Adjudications Officer (Policy), Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW., Washington, DC 20529–2060. Contact telephone 202–272–8377.
Title VII of the Consolidated Natural Resources Act of 2008 (CNRA) extended U.S. immigration law, with limited exception, to the CNMI and provided CNMI-specific provisions affecting foreign workers.
The CNRA authorized the Secretary of Homeland Security to create a nonimmigrant classification that would ensure adequate employment in the CNMI during the transition period.
The CNRA mandated an annual reduction in the allocation of the number of permits issued per year and in 2014 Congress extended the sunset date to provide for the total elimination of the CW nonimmigrant classification by the December 31, 2019 sunset date.
DHS subsequently opted to publish any future annual numerical limitations by
DHS followed this same rationale for the FY 2013 and FY 2014 numerical limitations. After assessing all workforce needs, including the opportunity for economic growth, DHS set the CW–1 numerical limitation at 15,000 and 14,000 respectively for FY 2013 and FY 2014.
The CNRA directed that the U.S. Secretary of Labor must determine whether an extension of the CW program for an additional period of up to 5 years is necessary to ensure that an adequate number of workers will be available for legitimate businesses in the CNMI. The CNRA further provided the Secretary of Labor with the authority to provide for such an extension through notice in the
DHS based the FY 2015 numerical limitation on a number of factors, including:
• The Department of Labor's extension of the CW program;
• The CNMI's labor market needs; and
• The CNRA's mandate to annually reduce the number of transitional workers until the end of the extended transitional worker program.
On December 16, 2014, Congress amended the law to extend the transition period until December 31, 2019.
For FY 2016, DHS reduced the numerical limitation by 1,000 to a limit of 12,999.
The CNRA requires an annual reduction in the number of transitional workers but does not mandate a specific numerical reduction.
Because the CW–1 numerical limit was reached for FY 2016 on May 5, DHS has decided to preserve the status quo, or current conditions, rather than aggressively reduce CW–1 numbers for FY 2017. DHS recognizes that any numerical limitation must account for the fact that the CNMI economy continues to be based on a workforce composed primarily of foreign workers. DHS must reduce the annual numerical limitation as statutorily mandated. At the same time, DHS should ensure that there are enough CW–1 workers for future fiscal years until the end of the program. DHS therefore is reducing the numerical limitation nominally by one, resulting in an FY 2017 limit of 12,998.
This new numerical limitation preserves access to foreign labor in the CNMI. Accordingly, DHS is reducing the maximum number of transitional workers from the current fiscal year numerical limitation of 12,999 and establishing 12,998 as the maximum number of persons who may be granted CW–1 nonimmigrant status in FY 2017. DHS nonetheless emphasizes that the statute requires the Department to reduce the annual numerical limitation to zero no later than the end of calendar year 2019. It therefore may be prudent for CNMI employers and CW–1 workers to plan for more significant reductions in the annual numerical limitation in the years ahead.
The FY 2017 numerical limitation for CW–1 nonimmigrant workers will be in effect beginning on October 1, 2016. Consistent with the rules applicable to other nonimmigrant worker visa classifications, if the numerical limitation for the fiscal year is not reached, the unused numbers do not carry over to the next fiscal year.
Generally, each CW–1 nonimmigrant worker with an approved employment start date that falls within FY 2017 (October 1, 2016—September 30, 2017) will be counted against the new numerical limitation of 12,998. Counting each CW–1 nonimmigrant worker in this manner will help ensure that USCIS does not approve requests that would exceed the numerical limitation of 12,998 CW–1 nonimmigrant workers granted such status in FY 2017.
This notice does not affect the current immigration status of foreign workers who have CW–1 nonimmigrant status. Foreign workers, however, will be affected by this notice when their CNMI employers file:
• For an extension of their CW–1 nonimmigrant classification, or
• A change of status from another nonimmigrant status to that of CW–1 nonimmigrant status.
This notice does not affect the status of any individual currently holding CW–2 nonimmigrant status as the spouse or minor child of a CW–1 nonimmigrant worker. This notice also does not directly affect the ability of any individual to extend or otherwise obtain CW–2 status, as the numerical limitation applies to CW–1 principals only. This notice, however, may indirectly affect individuals seeking CW–2 status since their status depends on the CW–1 principal's ability to obtain or retain CW–1 status.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain International Aero Engines AG (IAE) V2522–A5, V2524–A5, V2525–D5, V2527–A5, V2527E–A5, V2527M–A5, V2528–D5, V2530–A5, and V2533–A5 turbofan engines. This AD was prompted by the fracture of the high-pressure turbine (HPT) stage 2 hub during flight, which resulted in an in-flight shutdown (IFSD), undercowl fire, and smoke in the cabin. This AD requires inspecting the HPT stage 1 hub and HPT stage 2 hub, and, if necessary, their replacement with parts that are eligible for installation. We are issuing this AD to prevent failure of the HPT stage 1 or HPT stage 2 hubs, which could result in uncontained HPT blade release, damage to the engine, and damage to the airplane.
This AD is effective October 7, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of October 7, 2016.
For service information identified in this final rule, contact International Aero Engines AG, 400 Main Street, East Hartford, CT 06118; phone: 800–565–0140; email:
You may examine the AD docket on the Internet at
Brian Kierstead, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781–238–7772; fax: 781–238–7199; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain IAE V2522–A5, V2524–A5, V2525–D5, V2527–A5, V2527E–A5, V2527M–A5, V2528–D5, V2530–A5, and V2533–A5 turbofan engines. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.
IAE and Cathay Pacific requested that we update this AD to refer to Non-Modification Service Bulletin (NMSB) V2500–ENG–72–0661 Revision 2, dated May 27, 2016, and allow credit for previous actions to include hubs inspected and cleared to IAE's NMSB V2500–ENG–72–0661, Original issue, dated November 10, 2015; and Revision 1, dated February 5, 2016.
We agree. We updated this AD to refer to NMSB V2500–ENG–72–0661, Revision 2, dated May 27, 2016. We are also including a Credit for Previous Actions paragraph that references IAE NMSB V2500–ENG–72–0661, Original issue, dated November 10, 2015; and Revision 1, dated February 5, 2016.
IndiGo and Cathay Pacific stated that the NPRM uses hub cycles since new (CSN) to determine when hub inspections are required. However, the commenters requested that this AD be specific as to the date on which CSN of the hubs are established. The IAE NMSB, Compliance Section, Table 1 refers to a compliance time within “Hub cycles as of February 1, 2016”, but the NPRM does not mention any date. One commenter states that compliance to the February 1, 2016 date will not provide adequate planning time to operators for compliance.
We agree. This AD requires actions after the effective date of this AD. Therefore, we changed paragraphs (e)(1)(i), (ii), (iii), and (iv) of this AD to read “for hubs with [xxx] CSN on the effective date of this AD”.
Germanwings GmbH requested that the effective date of this AD be aligned with IAE NMSB V2500–ENG–72–0661, Revision 2, dated May 27, 2016, which refers to “Hub cycles as of February 1, 2016.” The commenter states that the difference in time between the effective date of this AD and February 1, 2016 listed in the NMSB will cause a mismatch in the compliance time.
We disagree. Basing the compliance times on the effective date of this AD is less restrictive than the IAE NMSB, so complying with this AD based on hub CSN as of the earlier NMSB date, would satisfy this AD. We did not change this AD.
Delta Airlines and one other commenter requested that we change the definition of shop visit from separation of pairs of major mating engine flanges, to either piece-part exposure, HPT flange separation, or disassembly of the HPT rotor and stator assemblies.
Delta Airlines stated that compliance at the next shop visit, as defined in this AD would result in unnecessary cost and extended shop time. The other commenter stated that changing the definition would allow more flexibility in fleet management. Both commenters state that inspection at the next shop visit is not needed, since removal of the suspect hubs within the proposed cycle limits will provide an acceptable level of safety.
We disagree. Allowing all engines to operate until their respective cycle limit would not provide an acceptable level of safety. By inspecting a specific quantity of engines that will be inducted into the shop before the cycle limit occurs, the safety risk assessment is satisfied. Therefore, waiting until the piece-part exposure, HPT flange separation, or the cycle threshold in lieu of inspection at the next shop visit, does not meet the requirement of this AD. We did not change this AD.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (81 FR 19516, April 5, 2016) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (81 FR 19516, April 5, 2016).
We reviewed IAE NMSB V2500–ENG–72–0661, Revision 2, dated May 27, 2016. The NMSB describes procedures for inspecting the HPT stage 1 and stage 2 hubs. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 668 engines with 947 hubs installed on airplanes of U.S. registry. Some of the 668 engines have two hubs installed. We estimate that it would take about 8 hours per hub to perform the piece-part inspection. The average labor rate is $85 per hour. We estimate that 568 hubs will require replacement. We estimate the pro-rated cost to replace an HPT stage 1 hub to be $50,271 and the pro-rated cost to replace an HPT stage 2 hub to be $40,063. Based on these figures, we estimate the cost of this AD on U.S. operators to be $26,298,816.
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.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 7, 2016.
None.
This AD applies to International Aero Engines AG (IAE) V2522–A5, V2524–A5, V2525–D5, V2527–A5, V2527E–A5, V2527M–A5, V2528–D5, V2530–A5, and V2533–A5 engines with either of the following installed:
(1) High-pressure turbine (HPT) stage 1 hub, part number (P/N) 2A5001, with a serial number (S/N) listed in Table 1, Appendix A, of IAE Non-Modification Service Bulletin (NMSB) V2500–ENG–72–0661, Revision 2, dated May 27, 2016; or
(2) HPT stage 2 hub, P/N 2A4802, with an S/N listed in Table 2, Appendix A, of IAE NMSB V2500–ENG–72–0661, Revision 2, dated May 27, 2016.
This AD was prompted by the fracture of the HPT stage 2 hub during flight, which resulted in an in-flight shutdown, undercowl fire, and smoke in the cabin. We are issuing this AD to prevent failure of the HPT stage 1 or HPT stage 2 hubs, which could result in uncontained HPT blade release, damage to the engine, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Inspect the HPT stage 1 hub, P/N 2A5001, and HPT stage 2 hub, P/N 2A4802, at the next shop visit or as follows, whichever comes first:
(i) For hubs with 0 to 7,000 CSN on the effective date of this AD, before accumulating 13,000 CSN;
(ii) For hubs with 7,001 to 11,000 CSN on the effective date of this AD, within 6,000 cycles from the effective date of this AD or before accumulating 15,000 CSN, whichever occurs first;
(iii) For hubs with 11,001 to 15,500 CSN on the effective date of this AD, within 4,000 cycles from the effective date of this AD or before accumulating 17,000 CSN, whichever occurs first;
(iv) For hubs with 15,501 CSN or more on the effective date of this AD, within 1,500 cycles from the effective date of this AD.
(2) Use Accomplishment Instructions, paragraphs 2.A., 2.C., and 2.D., of IAE NMSB V2500–ENG–72–0661, Revision 2, dated May 27, 2016, to inspect the HPT stage 1 hub, P/N 2A5001.
(3) Use Accomplishment Instructions, paragraphs 2.E., 2.G., and 2H., of IAE NMSB V2500–ENG–72–0661, Revision 2, dated May 27, 2016 to inspect the HPT stage 2 hub, P/N 2A4802.
(4) Remove from service any HPT stage 1 hub, P/N 2A5001, or HPT stage 2 hub, P/N 2A4802, that fails the inspections required by paragraphs (e)(2) and (e)(3) of this AD, and replace with a part that is eligible for installation.
For the purpose of this AD, a “shop visit” is the induction of an engine into the shop for maintenance involving the separation of pairs of major mating engine flanges, except that the separation of engine flanges solely for the purposes of transportation without subsequent engine maintenance does not constitute an engine shop visit.
If you performed inspection and or replacement using IAE NMSB V2500–ENG–72–0661, original issue, dated November 10, 2015 or NMSB V2500–ENG–72–0661, Revision 1, dated February 5, 2016, you met the requirements of paragraphs (e)(2) and (e)(3) of this AD.
The Manager, Engine Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request. You may email your request to:
For more information about this AD, contact Brian Kierstead, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA 01803; phone: 781–238–7772; fax: 781–238–7199; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) International Aero Engines AG Non-Modification Service Bulletin V2500–ENG–72–0661, Revision 2, dated May 27, 2016.
(ii) Reserved.
(3) For International Aero Engines AG service information identified in this AD, contact International Aero Engines AG, 400 Main Street, East Hartford, CT 06118; phone: 800–565–0140; email:
(4) You may view this service information at FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781–238–7125.
(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, call 202–741–6030, or go to:
Securities and Exchange Commission.
Final rule.
Pursuant to section 763(i) of Title VII (“Title VII”) of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”), the Securities and Exchange Commission (“Commission”) is adopting amendments to rule 13n–4 under the Securities Exchange Act of 1934 (“Exchange Act”) related to regulatory access to security-based swap data held by security-based swap data repositories. The rule amendments would implement the conditional Exchange Act requirement that security-based swap data repositories make data available to certain regulators and other authorities.
Effective November 1, 2016.
Carol McGee, Assistant Director, Joshua Kans, Senior Special Counsel, or Kateryna Imus, Special Counsel, at (202) 551–5870; Division of Trading and Markets, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–7010.
The Commission is adding paragraphs (b)(9) and (b)(10) to Exchange Act rule 13n–4 to implement the statutory requirement that security-based swap data repositories conditionally provide data to certain regulators and other authorities. The Commission also is adding paragraph (d) to rule 13n–4 to specify the method to be used to comply with the associated statutory notification requirement.
Title VII of the Dodd-Frank Act amended the Exchange Act to provide a comprehensive regulatory framework for security-based swaps, including the regulation of security-based swap data repositories.
References in this release to the terms “data repository,” “trade repository,” “repository” or “SDR” generally address security-based swap data repositories unless stated otherwise.
Those amendments, among other things, require that security-based swap data repositories make data available to certain regulators and other entities. In particular, the amendments conditionally require that security-based swap data repositories “on a confidential basis pursuant to section 24, upon request, and after notifying the Commission of the request, make available security-based swap data obtained by the security-based swap data repository, including individual counterparty trade and position data” to specified recipients.
Access to data pursuant to these provisions is conditioned on the repository receiving “a written agreement from each entity stating that the entity shall abide by the confidentiality requirements described in section 24 relating to the information on security-based swap transactions that is provided.”
As enacted in 2010, moreover, the data access provisions stated that before such data is shared, “each entity shall agree to indemnify the security-based swap data repository and the Commission for any expenses arising from litigation relating to the information provided under section 24.”
In 2015, prior to the legislative revision of the data access provisions, the Commission proposed rule amendments to implement the data access provisions.
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A commenter criticized the inclusion of a notification requirement,
One comment submitted to the comment file did not address the substance of the Commission's proposal.
The Commission reopened the comment period earlier this year to allow the public the opportunity to comment on the remainder of the proposal in light of the statutory changes, including removal of the statutory indemnification requirement.
For the reasons discussed below, and after considering commenter concerns, the Commission is adopting final rules to implement the data access statutory provisions. The final rules largely are the same as those that were proposed, apart from eliminating the proposed indemnification exemption in response to the removal of the underlying statutory provision.
Accordingly, should the confidentiality condition to data access be satisfied, security-based swap data repositories would be legally obligated to provide relevant authorities with access to security-based swap data, consistent with the parameters of any Commission orders, MOUs or other arrangements that are relevant to the availability and scope of access.
As noted above, the Exchange Act provides that a repository is conditionally obligated to make information available to, among others, “each appropriate prudential
For example, the definition provides that the Board is a prudential regulator with regard to, among others, certain dealers and major participants that are: State-chartered banks and agencies, foreign banks that do not operate insured branches, or members of bank holding companies. Also, for example, the definition provides that the Office of the Comptroller of the Currency is a prudential regulator with regard to, among others, certain dealers or major participants that are national banks, federally chartered branches or agencies of foreign banks or federal saving associations.
No commenter addressed the proposal to specifically identify the prudential regulators or the Federal Reserve Banks as being eligible to access such data.
The final rule incorporates the elements of proposed Exchange Act rule 13n–4(b)(9)(i)–(v), as discussed below, without change.
The final rule accordingly identifies each of the five prudential regulators as being able to access data. Consistent with the discussion in the proposal, this is to specify that those regulators' ability to access security-based swap data would not vary depending on whether entities regulated by the regulators are acting as security-based swap dealers, as major security-based swap participants, or in some other capacity,
The final rules also include “any Federal Reserve Bank” among the entities conditionally eligible to access security-based swap data from repositories,
A Federal Reserve Bank's ability to access such data would be subject to
The Exchange Act also states that FSOC, CFTC, and the Department of Justice may access security-based swap data,
No commenter addressed these aspects of the proposal.
The final rule incorporates these elements of the proposal without change.
Moreover, the Commission believes that such access by the OFR is appropriate in light of the OFR's regulatory mandate and legal responsibility and authority.
The OFR is also required to report annually to Congress its analysis of any threats to the financial stability of the United States.
As with the other entities that may access data pursuant to the data access provision, the OFR's ability to access such data would be subject to conditions related to confidentiality.
As noted, the Dodd-Frank Act amended the Exchange Act to provide that data access under these provisions would be available to “any other person that the Commission” determines to be appropriate, including foreign financial supervisors (including foreign futures authorities), foreign central banks and foreign ministries.
In the proposal, the Commission further stated that in connection with making such a determination, it would consider the presence of a confidentiality-related MOU or other arrangement between the Commission and a relevant authority, and whether the information would be subject to robust confidentiality safeguards. The Commission added that it would consider an authority's interest in access to security-based swap data based on the relevant authority's regulatory mandate or legal responsibility or authority, and that the Commission preliminarily expected that determination orders typically would incorporate conditions that specify the scope of a relevant authority's access to data, and that limit such access in a manner that reflects the relevant authority's regulatory mandate or legal responsibility or authority.
As part of the proposal, the Commission noted that it may issue determination orders of a limited duration, and that the Commission may revoke a determination at any time.
As discussed below, one commenter addressed the Commission's future determination orders regarding data access.
To implement its determination authority the Commission largely is adopting these provisions as proposed, except that the final rule, consistent with the recent statutory change, also identifies “other foreign authorities” within the nonexclusive list of the types of entities that may be subject to a determination pursuant to this authority.
As stated in the proposal, the Commission expects that it would consider a variety of factors in connection with making such a determination, and that it may impose associated conditions in connection with the determination. In part, given the importance of maintaining the confidentiality of security-based swap data, the Commission expects to consider whether there is an MOU or other arrangement between the Commission and the relevant authority that is designed to protect the confidentiality of the security-based swap data provided to the authority.
In addition, the Commission may consider the relevant authority's interest in access to security-based swap data based on the relevant authority's regulatory mandate or legal responsibility or authority. Consistent with that factor, the Commission expects that such determination orders typically would incorporate conditions that specify the scope of a relevant authority's access to data, and that limit this access in a manner that reflects the relevant authority's regulatory mandate or legal responsibility or authority.
The Commission continues to anticipate taking into account any other factors that are appropriate to the determination, including whether such a determination would be in the public interest, and whether the relevant authority agrees to provide the Commission and other U.S. authorities with reciprocal assistance in matters within their jurisdiction.
One commenter suggested that the ability of authorities (other than prudential regulators) to access data pursuant to these provisions should be subject to request-by-request Commission determinations that address permissible uses and disclosures of such data, to balance the need for information sharing against “overly expansive access to confidential information.”
The Commission has considered these suggestions, but has determined not to change the approach of the proposal, either by implementing a request-by-request approach toward access for some entities, or by allowing data access to other entities without further action. The Commission concludes that a request-by-request approach for access generally would be impracticable in terms of resources and operational delays, as well as unnecessary in light of the final rule's approach of linking access under the Commission's determination authority in a manner that reflects an entity's regulatory mandate or legal responsibility or authority. In our view, this approach reasonably achieves the goal of providing clear and specific guidance to repositories, as suggested by the commenter, in a manner that appropriately balances the benefits of information sharing with the need to protect the confidentiality of information. Moreover, with respect to the suggestion that data access may be allowed for certain entities without further action by these entities or the repository, in our view such an approach would not achieve the confidentiality benefits that will flow from using MOUs or other arrangements. The final rule's approach of using MOUs or other arrangements between the Commission and recipient
Consistent with the proposal, the Commission may take various approaches in deciding whether to impose additional conditions in connection with its consideration of requests for determination orders. For example, the Commission may issue a determination order that is of a limited duration. In addition, the Commission further may revoke a determination at any time, such as, for example, if a relevant authority fails to comply with the MOU or other arrangement by failing to keep confidential security-based swap data provided to it by a repository. Even absent such a revocation, an authority's access to data pursuant to these provisions also would cease upon the termination of the MOU or other arrangement used to satisfy the confidentiality condition.
The Commission continues to expect that repositories will provide relevant authorities with access to security-based swap data in accordance with the determination orders, and the Commission generally does not expect to be involved in reviewing, signing-off on or otherwise approving relevant authorities' requests for security-based swap data from repositories that are made in accordance with a determination order. The final rule also does not prescribe any specific processes to govern a repository's treatment of requests for access.
Finally, consistent with the proposal, the Commission notes that when it designates an authority to receive direct electronic access to data under section 13(n)(5)(D)—which states that a repository must provide such access to the Commission “or any designee of the Commission, including another registered entity”—the Commission may elect to apply these determination factors and consider applying protections similar to those in the data access provisions of Exchange Act sections 13(n)(5)(G) and (H).
The Exchange Act states that a repository must notify the Commission when an entity requests the repository to make available security-based swap data.
In making this proposal, the Commission noted that one commenter had opposed any requirement that the Commission receive notice of a recipient's initial request, on the grounds that such notice may cause other authorities to hesitate to make such requests. The Commission explained, however, that it is necessary for the Commission to be informed of the initial request from a particular entity, and that commenter's concerns that other regulators may be reluctant to place the Commission on notice of such initial requests are mitigated by the Commission's long history of cooperation with other authorities in supervisory and enforcement matters.
The Commission is adopting as proposed the approach for implementing the notification requirement.
Under the final rule, the repository also must maintain records of all information related to the initial and all subsequent requests for data access requests from that entity, including records of all instances of online or electronic access, and records of all data provided in connection with such requests or access.
Consistent with the discussion accompanying the proposal, the Commission concludes that the final
In response to the proposal, one commenter reiterated its opposition to the Commission being provided notice of a recipient's initial request, on the grounds that such notice might cause other authorities to hesitate to make such requests.
The proposed rule amendments specifically addressed access to “security-based swap data” obtained by a security-based swap data repository.
No commenter addressed this limitation on the type of data made available by repositories.
The 2015 amendment to the data access provisions under the Exchange Act clarified that those provisions specifically addressed the disclosure of security-based swap data.
As noted, the Exchange Act provides that, prior to providing data, a repository “shall receive a written agreement from each entity stating that the entity shall abide by the confidentiality requirements described in section 24 relating to the information on security-based swap transactions that is provided.”
Exchange Act section 24, 15 U.S.C. 78x, generally addresses disclosures of information by the Commission and its personnel. In relevant part it provides that the Commission may, “in its discretion and upon a showing that such information is needed,” provide all records and other information “to such persons, both domestic and foreign, as the Commission by rule deems appropriate if the person receiving such records or information provides such assurances of confidentiality as the Commission deems appropriate.”
The proposed rule implementing this condition would require that, before a repository provides information to an entity pursuant to the data access provisions, the Commission and the entity shall have entered into an MOU or other arrangement addressing confidentiality. This arrangement would be deemed to satisfy the statutory requirement that the repository receive a written confidentiality agreement from the entity.
As discussed below, one commenter addressed the Commission's future determination orders regarding data access in response to the Comment Reopening Release.
The Commission is adopting as proposed the approach for implementing the confidentiality requirement. Accordingly, the final rule provides that “there shall be in effect an arrangement between the Commission and the entity (in the form of a memorandum of understanding or otherwise) to address the confidentiality of the security-based swap information made available to the entity,” and that this arrangement between the Commission and a regulator or other recipient entity will satisfy the statutory confidentiality condition.
As discussed in the proposal, in the Commission's view this approach should help obviate the need for each individual repository to negotiate and enter into multiple agreements and help avoid the possibility of uneven and potentially inconsistent application of confidentiality protections across data repositories and recipient entities.
Consistent with the importance of protecting confidentiality of the security-based swap data provided, MOUs or other arrangements may include a variety of means of safeguarding confidentiality. These may include, for example, restrictions regarding the personnel who may access the data provided, and limits on the distribution of that data to third parties. Moreover, such MOUs or other arrangements may incorporate conditions that specify the scope of the relevant authority's access to data, and that limit this access in a manner that reflects the relevant authority's regulatory mandate or legal responsibility or authority.
One commenter expressed the view that an MOU should help determine a regulatory body's interest in security-based swap data, notify the Commission of the intent to access the data and provide the Commission with “confirmation that an appropriate confidentiality agreement has been made by the requesting regulatory authority or that statutory confidentiality requirements are applicable to such requesting authority.” The commenter further requested that the rule permit repositories to require entities to certify their ability to keep such data confidential.
In the Proposing Release, the Commission discussed how Exchange Act sections 13(n)(5)(G) and (H)
The Exchange Act provides that relevant authorities may obtain security-based swap data from the Commission, rather than directly from data repositories.
These amendments to Exchange Act rule 13n–4 to implement the data access requirements will become effective 60 days following publication of the rule amendments in the
The obligation of a security-based swap data repository to provide data pursuant to the rules will be conditioned on the Commission and a relevant authority entering into an MOU or other arrangement addressing the confidentiality of the security-based swap information that is made available.
Certain provisions of the final rules contain “collection of information” requirements within the meaning of the Paperwork Reduction Act of 1995 (“PRA”).
In the Proposing Release, the Commission solicited comment on the collection of information requirements and the accuracy of the Commission's statements.
Although the final rules have been changed from the proposal to reflect the removal of the proposed indemnification exemption, in the Commission's view this change does not alter the estimates from the Proposing Release. In particular, although the conditions to the proposed indemnification exemption would have caused the Commission and a relevant authority to enter into an MOU or other arrangement to address confidentiality, and to address the types of activities that would be within the regulatory mandate or legal responsibility or authority of that relevant authority, the Commission would still expect to enter into that type of MOU or other arrangement with the relevant authority in connection with the confidentiality condition. Accordingly, the Commission's estimates remain unchanged from the Proposing Release.
The final rules would require security-based swap data repositories to make security-based swap data available to other parties, including certain government bodies. This data access obligation would be conditioned on a confidentiality requirement. The final rules further would require such repositories to create and maintain information regarding such data access.
The data access requirement and associated conditions would provide the regulators and other authorities that receive the relevant security-based swap data with tools to assist with the oversight of the security-based swap market and of dealers and other participants in the market, and to assist with the monitoring of risks associated with that market.
The data access requirement will apply to every person required to be registered with the Commission as a security-based swap data repository—that is, every U.S. person performing the functions of a security-based swap data repository, and to every non-U.S. person performing the functions of a security-based swap data repository within the United States absent an exemption. The Commission continues to estimate, for PRA purposes, that ten persons might register with the Commission as security-based swap data repositories.
The conditions to data access under these rules further will affect all persons that may seek access to security-based swap data pursuant to these provisions. As discussed below, these may include up to 30 domestic entities.
The data access provisions may implicate various types of PRA burdens and costs: (i) Burdens and costs that regulators and other authorities incur in connection with negotiating MOUs or other arrangements with the Commission in connection with the data access provisions; (ii) burdens and costs that certain authorities that have not been determined by statute or Commission rule may incur in connection with requesting that the Commission grant them access to repository data;
As discussed above, entities that access security-based swap data pursuant to these data access provisions would be required to enter into MOUs or other arrangements with the Commission to address the confidentiality condition. In some cases, any such entity also would enter into an MOU or other arrangement in connection with the Commission's determination of the entity as authorized to access such data (to the extent that the entity's access is not already determined by statute or by the final rules). For purposes of the PRA requirements, the Commission estimates that up to 30 domestic entities potentially might enter into such MOUs or other arrangements, reflecting the nine entities specifically identified by statute or the final rules, and up to 21 additional domestic governmental entities or self-regulatory organizations that may seek access to such data. Based on the Commission's experience in negotiating similar MOUs that address regulatory cooperation, including confidentiality issues associated with regulatory cooperation, the Commission believes that each regulator on average would expend 500 hours in negotiating such MOUs and other arrangements.
To the extent that each of those 30 domestic entities were to seek to access data pursuant to these provisions, and each of the applicable MOUs or other arrangements were to take 500 hours on average, the total burden would amount to 15,000 hours.
Separately, certain entities that are not identified by statute and/or the final rules may request that the Commission determine that they may access such security-based swap data. For those entities, in light of the relevant information that the Commission may consider in connection with such determinations (apart from the MOU issues addressed above)—including information regarding how the entity would be expected to use the information, information regarding the entity's regulatory mandate or legal responsibility or authority, and information regarding reciprocal access—the Commission estimates that each such entity would expend 40 hours in connection with such request. As noted above, the Commission estimates that 21 domestic entities not encompassed in the final rule may seek access to the data. Accordingly, to the extent that 21 domestic entities were to request access (apart from the nine entities identified by statute or the final rule), the Commission estimates a total burden of 840 hours for these entities to prepare and submit requests for access.
The Commission previously addressed the PRA costs associated with the Exchange Act's data access requirement in 2010, when the Commission initially proposed rules to implement those data access requirements in conjunction with other rules to implement the duties applicable to security-based swap data repositories. At that time, based on discussions with market participants, the Commission estimated that a series of proposed rules to implement duties applicable to security-based swap data repositories—including the proposed data access rules as well as other rules regarding repository duties (
The Commission incorporated those same burden estimates in 2015, when the Commission adopted final rules to implement the duties applicable to security-based swap data repositories, apart from the data access requirement.
Subject to the connectivity issues addressed below, the Commission believes that the burden estimates associated with the 2010 proposed repository rules encompassed the costs and burdens associated with the data access requirements in conjunction with other system-related requirements applicable to security-based swap dealers. To comply with those other system-related requirements—including in particular requirements that repositories provide direct electronic access to the Commission and its designees—we believe that it is reasonable to expect that repositories may use the same systems as they would use to comply with the data access requirements at issue here, particularly given that both types of access requirements would require repositories to provide security-based swap information to particular recipients subject to certain parameters.
The Commission also recognizes, however, that once the relevant systems have been set up, repositories may be expected to incur additional incremental burdens and costs associated with setting up access to security-based swap data consistent with the recipient's regulatory mandate or legal responsibility or authority.
Under the final rules, repositories would be required to inform the Commission when it receives the first request for security-based swap data from a particular entity.
The final rules further require that repositories must maintain records of all information related to the initial and all subsequent requests for data access, including records of all instances of online or electronic access, and records of all data provided in connection with such access.
The Commission does not believe that the confidentiality provision of the final rule will be associated with collections of information that would result in a reporting or recordkeeping burden for security-based swap data repositories. This is because, under the final rule, the confidentiality condition will be satisfied by an MOU or other arrangement between the Commission and the recipient entity (
As discussed above, however, the confidentiality condition is expected to impose burdens on authorities that seek to access data pursuant to these provisions, as a result of the need to negotiate confidentiality MOUs or other arrangements.
The conditional data access requirements of Exchange Act sections 13(n)(5)(G) and (H) and the underlying rules are mandatory for all security-based swap data repositories. The confidentiality condition is mandatory for all entities that seek access to data under those requirements.
The Commission will make public requests for a determination that an authority is appropriate to conditionally access security-based swap data, as well as Commission determinations issued in response to such requests. The Commission expects that it will make publicly available the MOUs or other arrangements with the Commission used to satisfy the confidentiality condition.
Initial notices of requests for access provided to the Commission by repositories will be kept confidential, subject to the provisions of applicable law. To the extent that the Commission obtains subsequent requests for access that would be required to be maintained by the repositories, such as in connection with an examination or investigation, the Commission also will keep those records confidential, subject to the provisions of applicable law.
As discussed above, the Commission is adopting final rules to implement data access requirements for relevant authorities other than the Commission that the Dodd-Frank Act imposes on security-based swap repositories. To carry out their regulatory mandate, or legal responsibility or authority, certain relevant entities other than the Commission may periodically need access to security-based swap data collected and maintained by SEC-registered security-based swap data repositories, and the final rules are intended to facilitate such access.
Although the final rules have been changed from the proposal to reflect the removal of the proposed indemnification exemption, in the Commission's view this change does not significantly alter the economic costs and benefits from the Proposing Release. In particular, although the conditions to the proposed indemnification exemption would have caused the Commission and a relevant authority to enter into an MOU or other arrangement to address confidentiality, and to address the types of activities that would be within the regulatory mandate or legal responsibility or authority of that relevant authority, such MOU or other arrangement will still be necessary in connection with the confidentiality condition. Accordingly, the Commission's assessment of the costs and benefits remain largely unchanged from the Proposing Release.
The Commission is sensitive to the economic effects of its rules, including the costs and benefits and the effects of its rules on efficiency, competition and capital formation. Section 3(f)
The security-based swap market prior to the passage of the Dodd-Frank Act has been described as being opaque, in part because transaction-level data were not widely available to market participants or to regulators.
Consistent with the goal of increasing transparency to regulators, the data access provisions at issue here set forth a framework for security-based swap data repositories to provide access to security-based swap data to relevant authorities other than the Commission. The final rules implement that framework for repositories to provide data access to other relevant entities in order to fulfill their regulatory mandate, or legal responsibility or authority.
The data access rules, in conjunction with the transparency-related requirements generally applicable to security-based swap data repositories, are designed, among other things, to make available to the Commission and other relevant authorities data that will provide a broad view of the security-based swap market and help monitor for pockets of risk and potential market abuses that might not otherwise be observed by those authorities.
A broad view of the security-based swap market, including information regarding aggregate market exposures to particular reference entities (or securities), positions taken by individual entities or groups, and data elements necessary to determine the market value of the transaction, may be expected to provide the Commission and other relevant authorities with a better understanding of the actual and potential risks in the market and promote better risk monitoring efforts. The information provided by security-based swap data repositories also may be expected to help the Commission and other relevant authorities investigate market manipulation, fraud and other market abuses.
As highlighted in more detail in the Economic Baseline below, the security-based swap market is a global market. Based on market data in the Depository Trust and Clearing Corporation's Trade Information Warehouse (“DTCC–TIW”), the Commission estimates that only 12 percent of the global transaction volume that involves either a U.S.-domiciled counterparty or a U.S-domiciled reference entity (as measured by gross notional) between 2008 and 2015 was between two U.S.-domiciled counterparties, compared to 48 percent entered into between one U.S.-domiciled counterparty and a foreign-domiciled counterparty and 40 percent entered into between two foreign-domiciled counterparties.
In light of the security-based swap market's global nature there is the possibility that regulatory data may be fragmented across jurisdictions, particularly because a large fraction of transaction volume includes at least one counterparty that is not a U.S. person
The data access requirements are designed to increase the quality and
Moreover, by facilitating access to security-based swap data for relevant authorities, including non-U.S. authorities designated by the Commission, the Commission anticipates an increased likelihood that the Commission itself will have commensurate access to security-based swap data stored in trade repositories located in foreign jurisdictions.
As discussed above, the Commission anticipates considering whether the relevant authority requesting access agrees to provide the Commission and other U.S. authorities with reciprocal assistance in matters within their jurisdiction when making a determination whether the requesting authority shall be granted access to security-based swap data held in registered SDRs.
Such data access may be especially critical during times of market turmoil, by giving the Commission and other relevant authorities information to examine risk exposures incurred by individual entities or in connection with particular reference entities. Increasing the available data about the security-based swap market should further give the Commission and other relevant authorities better insight into how regulations are affecting or may affect the market, which may allow the Commission and other regulators to better craft regulations to achieve desired goals, and therefore increase regulatory effectiveness.
To assess the economic impact of the data access rules adopted herein, the Commission is using as a baseline the security-based swap market as it exists today, including applicable rules that have already been adopted and excluding rules that have been proposed but not yet finalized. Thus we include in the baseline the rules that the Commission adopted to govern the registration process, duties and core principles applicable to security-based swap data repositories, and to govern regulatory reporting and public dissemination of security-based swap transactions.
There are not yet any registered security-based swap data repositories; therefore, the Commission does not yet have access to regulatory reporting data.
There currently is no robust, widely accessible source of information about individual security-based swap transactions. In 2006, a group of major dealers expressed their commitment in support of DTCC's initiative to create a central “industry utility trade contract warehouse” for credit derivatives.
The data that the Commission receives from DTCC–TIW do not encompass CDS transactions that both: (i) Do not involve any U.S. counterparty, and (ii) are not based on a U.S. reference entity.
While DTCC–TIW generally provides detailed data on positions and transactions to regulators that are members of the ODRF, DTCC–TIW makes only summary information available to the public.
The Commission's understanding of the market is informed in part by available data on security-based swap transactions, though the Commission acknowledges that limitations in the data prevent the Commission from quantitatively characterizing certain aspects of the market.
Specifically, the Commission's analysis of the state of the current security-based swap market is based on data obtained from the DTCC–TIW, especially data regarding the activity of market participants in the single-name CDS market during the period from 2008 to 2015. According to data published by the Bank for International Settlements (“BIS”), the global notional amount outstanding in single-name CDS was approximately $7.18 trillion,
Based on this information, our analysis below indicates that the current security-based swap market: (i) Is global in scope, and (ii) is concentrated among a small number of dealing entities. Although under the voluntary reporting regime discussed above there was a single repository, as various jurisdictions have implemented mandatory reporting rules in their jurisdictions the number of trade repositories holding security-based swap data has grown.
A key characteristic of security-based swap activity is that it is concentrated among a relatively small number of entities that engage in dealing activities.
As noted above, the data provided to the Commission by DTCC–TIW includes only transactions that either include at least one U.S.-domiciled counterparty or reference a U.S. entity or security. Therefore, any entity that is not domiciled in the U.S., never trades with a U.S.-domiciled entity and never buys or sells protection on a U.S. reference entity or security would not be included in this analysis.
Although the security-based swap market is global in nature, approximately 60 percent of the transaction volume reflected in DTCC–TIW data during the 2008–2015 period included at least one U.S.-domiciled entity (
The fraction of new accounts with transaction activity that are domiciled in the United States fell through the 2008–2015 period. Figure 2 below is a chart of: (1) The percentage of new accounts with a domicile in the United States,
We note that cross-border rules related to regulatory reporting and public dissemination of security-based swap transactions depend on, among other things, the U.S.-person status of the counterparties.
No security-based swap data repositories are currently registered with the Commission.
The CFTC has provisionally registered four swap data repositories.
Efforts to regulate the swap and security-based swap markets are underway not only in the United States, but also abroad. Consistent with the call of the G20 leaders for global improvements in the functioning, transparency and regulatory oversight of OTC derivatives markets,
As discussed above, the security-based swap market to date largely has developed as an opaque OTC market with limited dissemination of transaction-level price and volume information.
In finalizing these rules to implement the Exchange Act data access requirement, the Commission has attempted to balance different goals. On the one hand, the Commission believes that these rules will facilitate the sharing of information held by repositories with relevant authorities, which should assist those authorities in acting in accordance with their regulatory mandate, or legal responsibility or authority. At the same time, although regulatory access raises important issues regarding the confidentiality of the information, the Commission believes that the rules should appropriately reduce the risk of breaching the confidentiality of the data by providing for a reasonable assurance that confidentiality will be maintained before access is granted.
Additionally, we note that the magnitude of the costs and benefits of these rules depend in part on the type of access granted to relevant authorities. Ongoing, unrestricted direct electronic access by relevant authorities may be most beneficial in terms of facilitating efficient access to data necessary for those authorities to act in accordance with their regulatory mandate, or legal responsibility or authority, but at the cost of increasing the risk of improper disclosure of confidential information. Restricting each relevant authority's access to only that data consistent with that authority's regulatory mandate, or legal responsibility or authority, reduces the quantity of data that could become subject to improper disclosure. On the other hand, restricting a relevant authority's access to data may make it more difficult for it to effectively act in accordance with its regulatory mandate or legal responsibility or authority.
The potential economic effects stemming from the final rules can be grouped into several categories. In this section, we first discuss the general costs and benefits of the final rules, including the benefits of reducing data fragmentation, data duplication and enhancing regulatory oversight, as well as the risks associated with potential breaches of data confidentiality. Next, we discuss the effects of the rules on efficiency, competition and capital formation. Finally, we discuss specific costs and benefits linked to the final rules.
As discussed above, the final rules would implement the statutory provisions that require a security-based swap data repository to disclose information to certain relevant authorities. Access under the final rules would be conditioned upon the authority entering into an MOU or other arrangement with the Commission addressing the confidentiality of the information provided.
The final rules should facilitate access to security-based swap transaction and position data by entities that require such information to fulfill their regulatory mandate or legal responsibility or authority. Market participants accordingly should benefit from relevant domestic authorities other than the Commission having access to the data necessary to fulfill their responsibilities. In particular, such access could help promote stability in the security-based swap market particularly during periods of market turmoil,
Moreover, as noted in part II.C.1, the Commission anticipates, when making a determination concerning a relevant authority's access to security-based swap data, considering whether the relevant authority agrees to provide the Commission and other U.S. authorities with reciprocal assistance in matters within their jurisdiction. Allowing non-U.S. authorities access to security-based swap data held by registered security-based swap data repositories may be expected to help facilitate the Commission's own ability to access data held by repositories outside the United States.
The ability of other relevant authorities to access data held in trade repositories registered with the Commission, as well as the ability of the Commission to access data held in repositories registered with other regulators, may be especially crucial during times of market turmoil. Increased data sharing should provide the Commission and other relevant authorities more-complete information to monitor risk exposures taken by individual entities and exposures connected to particular reference entities, and should promote global stability through enhanced regulatory transparency. Security-based swap data repositories registered with the Commission are required to retain complete records of security-based swap transactions and maintain the integrity of those records.
Additionally, improving the availability of data regarding the security-based swap market should give the Commission and other relevant authorities improved insight into how regulations are affecting, or may affect, the market. This may be expected to help increase regulatory effectiveness by allowing the Commission and other regulators to better craft regulation to achieve desired goals.
In addition, the Commission believes that providing relevant foreign authorities with access to data maintained by repositories may help reduce costs to market participants by reducing the potential for duplicative security-based swap transaction reporting requirements in multiple jurisdictions. The Commission notes that relevant foreign authorities have imposed their own reporting requirements on market participants within their jurisdictions.
The Commission believes that although there are benefits to security-based swap data repositories providing access to relevant authorities to data maintained by the repositories, such access will likely involve certain costs and potential risks. For example, the Commission expects that repositories will maintain data that are proprietary and highly sensitive
To help mitigate these risks and potential costs to market participants, the Exchange Act and the final data access rules impose certain conditions on relevant authorities' access to data maintained by repositories.
The final rules further require that, before a repository shares security-based swap information with a relevant authority, there must be an arrangement (in the form of an MOU or otherwise) between the Commission and the relevant authority that addresses the confidentiality of the security-based swap information provided. The arrangement should reduce the likelihood of confidential trade or position data being inadvertently made public.
The final rules described in this release are intended to facilitate access for relevant authorities to data stored in repositories registered with the Commission and therefore affect such repositories, but do not directly affect security-based swap market participants. As discussed below, access by relevant authorities to security-based swap data could indirectly affect market participants through the benefits that accrue from the relevant authorities' improved ability to fulfill their regulatory mandate or legal responsibility or authority as well as the potential impact of disclosure of confidential data. However, because these rules will condition access to security-based swap data on the agreement of the relevant authorities to protect the confidentiality of the data, the Commission expects these rules to have little effect on the structure or operations of the security-based swap market. Therefore, the Commission believes that effects of the final rules on efficiency, competition and capital formation will be small.
In part VI.B of this release, the Commission describes the baseline used to evaluate the economic impact of the final rules, including the impact on efficiency, competition and capital formation. In particular, the Commission notes that the security-based swap data currently available from DTCC–TIW is the result of a voluntary reporting system and access to that data is made consistent with guidelines published by the ODRF.
Under the voluntary reporting regime, CDS transaction data involving counterparties and reference entities from most jurisdictions is reported to a single entity, DTCC–TIW. DTCC–TIW, using the ODRF guidelines, then allows relevant authorities, including the Commission, to obtain data necessary to carry out their respective authorities and responsibilities with respect to OTC derivatives and the regulated entities that use derivatives.
To the extent that the final data access provisions increase the quantity of transaction and position information available to regulatory authorities about the security-based swap market, the ability of the Commission and other relevant authorities to respond in an appropriate and timely manner to market developments could enhance investor protection through improved detection, and facilitate the investigation of fraud and other market abuses. Moreover, as noted above, we do not anticipate that the final rules will directly affect market participants, and such enhancements in investor protections may decrease the risks and indirect costs of trading and could therefore encourage greater participation in the security-based swap market for a wider range of entities seeking to engage in a broad range of hedging and trading activities.
In addition, the improvement in the quantity of data available to regulatory authorities, including the Commission, should improve their ability to monitor concentrations of risk exposures and evaluate risks to financial stability and could promote the overall stability in the capital markets.
Aside from the effects that the final data access rules may have on regulatory oversight and market participation, the Commission expects the rules potentially to affect how SDRs are structured. In particular, the data access rules could reduce the potential for SDRs to be established along purely jurisdictional lines. That is, effective data sharing may reduce the need for repositories to be established along jurisdictional lines, reducing the likelihood that a single security-based swap transaction must be reported to multiple swap-data repositories. As noted previously by the Commission, due to high fixed costs and increasing economies of scale, the total cost of providing trade repository services to the market for security-based swaps may be lower if the total number of repositories is not increased due to a regulatory environment that results in
Furthermore, multiple security-based swap data repositories with duplication of reporting requirements for cross-border transactions increase data fragmentation and data duplication, both of which increase the potential for difficulties in data aggregation. To the extent that the data access rules facilitate the establishment of SDRs that accept transactions from multiple jurisdictions, there may be benefits in terms of efficient collection and aggregation of security-based swap data. To the extent that these rules allow relevant authorities to have better access to the data necessary to form a more complete picture of the security-based swap market—including information regarding risk exposures and asset valuations—these rules should help the Commission and other relevant authorities perform their oversight functions in a more effective manner.
However, while reducing the likelihood of having multiple SDRs established along jurisdictional lines would resolve many of the challenges involved in aggregating security-based swap data, there may be costs associated with having fewer repositories. In particular, the existence of multiple repositories may reduce operational risks, such as the risk that a catastrophic event or the failure of a repository leaves no repositories to which transactions can be reported, impeding the ability of the Commission and relevant authorities to obtain information about the security-based swap market.
Finally, as we noted above, a relevant authority's inability to protect the privacy of data maintained by repositories could erode market participants' confidence in the integrity of the security-based swap market. More specifically, confidentiality breaches, including the risk that trading strategies may no longer be anonymous due to a breach, may increase the overall risks associated with trading or decrease the profits realized by certain traders. Increased risks or decreased profits may reduce incentives to participate in the security-based swap markets which may lead to reduced trading activity and liquidity in the market. Depending on the extent of confidentiality breaches, as well as the extent to which such breaches lead to market exits, disclosures of confidential information could hinder price discovery and impede the capital formation process.
Apart from the general costs and benefits associated with the structure of the Exchange Act data access provisions and implementing rules, certain discrete aspects of the final rules and related interpretation raise additional issues related to economic costs and benefits.
The Commission is adopting an approach to determining whether an authority, other than those expressly identified in the Exchange Act and the implementing rules,
The Commission also believes that its approach in determining the appropriate relevant authorities would reduce the potential for fragmentation and duplication of security-based swap data among trade repositories by facilitating mutual access to the data. Narrower approaches such as allowing regulatory access to security-based swap data only to those entities specifically identified in the Exchange Act
Furthermore, the Commission believes that its approach in conditioning access to security-based swap data held in SDRs by requiring there to be in effect an arrangement between the Commission and the authority in the form of a MOU or other arrangement would promote the intended benefits of access by relevant authorities to data maintained by SDRs. Under this approach, rather than requiring regulatory authorities to negotiate confidentiality agreements with multiple SDRs, a single MOU or other arrangement between the Commission and the relevant authority can serve as the confidentiality agreement that will satisfy the requirement for a written agreement stating that the relevant authority will abide by the confidentiality requirements described in section 24 of the Exchange Act relating to the security-based swap data. The Commission routinely negotiates MOUs or other arrangements with relevant authorities to secure mutual assistance or for other purposes, and the Commission believes that this approach
The Commission further believes that negotiating a single such agreement with the Commission will be less costly for the authority requesting data than negotiating directly with each registered SDR. This approach is intended to eliminate the need for each SDR to negotiate as many as 300 confidentiality agreements with requesting authorities. This approach would also avoid the difficulties that may be expected to accompany an approach that requires SDRs to enter into confidentiality agreements—particularly questions regarding the parameters of an adequate confidentiality agreement, and the presence of uneven and potentially inconsistent confidentiality protections across SDRs and recipient entities.
The Commission is adopting an approach by which an SDR may satisfy the notification requirement by notifying the Commission upon the initial request for security-based swap data by a relevant authority and maintaining records of the initial request and all subsequent requests.
The Commission's final rule also is designed to simplify a relevant authority's direct access to security-based swap data needed in connection with its regulatory mandate or legal responsibility or authority, because a repository would not be required to provide the Commission with actual notice of every request prior to providing access to the requesting relevant authority.
The final rules in part would condition regulatory access on there being an arrangement between the Commission and the recipient entity, in the form of an MOU or otherwise, addressing the confidentiality of the security-based swap information made available to the recipient. These rules add that those arrangements shall be deemed to satisfy the statutory requirement for a written confidentiality agreement.
As discussed above, the Commission believes that this approach reflects an appropriate way to satisfy the interests associated with the confidentiality condition. The benefits associated with this approach include obviating the need for repositories to negotiate and enter into multiple confidentiality agreements, avoiding difficulties regarding the parameters of an adequate confidentiality agreement, and avoiding uneven and potentially inconsistent confidentiality protections. This approach also would build upon the Commission's experience in negotiating such agreements.
The Commission recognizes that its approach to providing access to relevant authorities other than the Commission to security-based swap data held in repositories has the potential to involve certain costs and risks.
The relevant authorities requesting security-based swap data would incur some costs in seeking a Commission order deeming the authority appropriate to receive security-based swap data. These costs would include the negotiation of an MOU or other arrangement to address the confidentiality of the security-based swap information it seeks to obtain and providing information to justify that the security-based swap data relates to the entity's regulatory mandate or legal responsibility or authority. As discussed above, the Commission estimates that up to 300 entities potentially might enter into such MOUs or other arrangements.
In addition, authorities that are not specified by the final rule may request that the Commission determine them to be appropriate to receive access to such security-based swap data. Given the relevant information that the Commission would consider in connection with such designations (apart from the MOU issues addressed
Security-based swap data repositories would incur some costs to verify that an entity requesting data entered into the requisite agreements concerning confidentiality with the Commission. The Commission generally expects that such verification costs would be minimal because information regarding such Commission arrangements would generally be readily available.
To the extent that the security-based swap data repository provides the requested data through direct electronic means, the repository may incur some cost in providing the requesting authority access to the system that provides such access and setting data permissions to allow access only to the information that relates to the authority's regulatory mandate, or legal responsibility or authority. The Commission believes most of the costs associated with providing such access would be the fixed costs incurred in designing and building the systems to provide the direct electronic access required by rules the Commission adopted last year to address the registration process, duties and core principles applicable to security-based swap data repositories.
In addition, under the Commission's notification compliance rule, SDRs would be required to notify the Commission of the initial request for data but would not have to inform the Commission of all relevant authorities' requests for data prior to a SDR fulfilling such requests. Based on the estimate that approximately 300 relevant authorities may make requests for data from security-based swap data repositories, the Commission estimates that a repository would provide the Commission with actual notice approximately 300 times.
Pursuant to the rule, SDRs would be required to maintain records of subsequent requests.
The Commission considered a number of alternative approaches to implementing the Exchange Act data access provisions, but, for the reasons discussed below, is not adopting any of them.
The Commission considered the alternative approach of permitting confidentiality agreement between an SDR and the recipient of the information to satisfy the confidentiality condition to the data access requirement. The Commission believes, however, that the approach taken in the final rules, which would instead make use of confidentiality arrangements between the Commission and the recipients of the data, would avoid difficulties such as questions regarding the parameters of the confidentiality agreement, and the presence of uneven and inconsistent confidentiality protections.
Finally, the Commission considered requiring repositories to provide notice to the Commission of all requests for data prior to repositories fulfilling such requests, rather than the approach of requiring such notice only of the first request from a particular recipient, with the repository maintaining records of all subsequent requests.
Section 3(a) of the Regulatory Flexibility Act of 1980 (“RFA”)
For purposes of Commission rulemaking in connection with the RFA, a small entity includes: (1) When used with reference to an “issuer” or a “person,” other than an investment company, an “issuer” or “person” that, on the last day of its most recent fiscal year, had total assets of $5 million or less;
For purposes of the Regulatory Flexibility Act, the definition of “small entity” also encompasses “small governmental jurisdictions,” which in relevant part means governments of locales with a population of less than fifty thousand. 5 U.S.C. 601(5), (6). Although the Commission anticipates that these final rules may be expected to have an economic impact on various governmental entities that access data pursuant to Dodd-Frank's data access provisions, the Commission does not anticipate that any of those governmental entities will be small entities.
In initially proposing rules regarding the registration process, duties and core principles applicable to SDRs, the Commission stated that it preliminarily did not believe that any persons that would register as repositories would be considered small entities.
In the Proposing Release for these rule amendments, the Commission stated that it continued to hold the view that any persons that would register as SDRs would not be considered small entities. The Commission accordingly certified that the proposed rules would not have a significant economic impact on a substantial number of small entities for purposes of the RFA.
We continue to believe that the entities that will register as SDRs will not be small entities. Accordingly, the Commission certifies that the final rules will not have a significant economic impact on a substantial number of small entities for purposes of the RFA.
Pursuant to the Exchange Act, and particularly sections 3(b), 13(n), and 23(a) thereof, 15 U.S.C. 78c(b), 78m(n), and 78w(a), and section 752(a) of the Dodd-Frank Act, 15 U.S.C 8325, the Commission is adopting amendments to rule 13n–4 under the Exchange Act by adding paragraphs (b)(9), (b)(10), and (d) to that rule.
Confidential business information, Reporting and recordkeeping requirements, Securities.
For the reasons stated in the preamble, the Commission is amending Title 17, Chapter II, of the Code of Federal Regulations as follows:
15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78c–3, 78c–5, 78d, 78e, 78f, 78g, 78i, 78j, 78j–1, 78k, 78k–1, 78
(b) * * *
(9) On a confidential basis, pursuant to section 24 of the Act (15 U.S.C. 78x), upon request, and after notifying the Commission of the request in a manner consistent with paragraph (d) of this section, make available security-based swap data obtained by the security-based swap data repository, including individual counterparty trade and position data, to the following:
(i) The Board of Governors of the Federal Reserve System and any Federal Reserve Bank;
(ii) The Office of the Comptroller of the Currency;
(iii) The Federal Deposit Insurance Corporation;
(iv) The Farm Credit Administration;
(v) The Federal Housing Finance Agency;
(vi) The Financial Stability Oversight Council;
(vii) The Commodity Futures Trading Commission;
(viii) The Department of Justice;
(ix) The Office of Financial Research; and
(x) Any other person that the Commission determines to be appropriate, conditionally or unconditionally, by order, including, but not limited to—
(A) Foreign financial supervisors (including foreign futures authorities);
(B) Foreign central banks;
(C) Foreign ministries; and
(D) Other foreign authorities;
(10) Before sharing information with any entity described in paragraph (b)(9) of this section, there shall be in effect an arrangement between the Commission and the entity (in the form of a memorandum of understanding or otherwise) to address the confidentiality of the security-based swap information made available to the entity; this arrangement shall be deemed to satisfy the requirement, set forth in section 13(n)(5)(H) of the Act (15 U.S.C. 78m(n)(5)(H)), that the security-based swap data repository receive a written agreement from the entity stating that the entity shall abide by the confidentiality requirements described in section 24 of the Act (15 U.S.C. 78x) relating to the information on security-based swap transactions that is provided; and
(d)
By the Commission.
State Department.
Final rule.
This final rule provides various changes and updates to the Department of State passport rules as a result of the passage of two laws: International Megan's Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders (IML); and the Fixing America's Surface Transportation Act (FAST Act). The final rule incorporates statutory passport denial and revocation requirements for certain covered sex offenders under the IML, those persons with a seriously delinquent tax debt as defined by the FAST Act, and/or those persons who submit a passport application without a correct and valid Social Security number.
The effective date of this regulation is September 2, 2016.
Stephanie Traub, Office of Legal Affairs, Passport Services, (202) 485–6500. Hearing- or speech-impaired persons may use the Telecommunications Devices for the Deaf (TDD) by contacting the Federal Information Relay Service at 1–800–877–8339.
The Department is amending § 51.60 of subpart E within part 51 of title 22 of the Code of Federal Regulations. The rules incorporate statutory passport denial and revocation requirements as codified at 22 U.S.C. 2714a for certain individuals who have seriously delinquent tax debt or submit passport applications without correct and valid Social Security numbers. The rules incorporate new provisions for denial and revocation of passport books that do not contain conspicuous identifiers for covered sex offenders as defined in 42 U.S.C. 16935a. The rule provides for denial of passport cards to these same covered sex offenders, as passport cards are not able to contain the unique identifier required by 22 U.S.C. 212b.
The new § 51.60(a)(3) requires denial of a passport to an individual who is certified by the Secretary of the Treasury as having a seriously delinquent tax debt as described in 26 U.S.C. 7345.
The new § 51.60(f) permits denial of a passport to an individual who does not include his or her Social Security number or willfully, intentionally, negligently, or recklessly includes an incorrect or invalid Social Security number on his or her passport application.
The new § 51.60(g) requires denial of a passport card to an individual who is a covered sex offender as described in 42 U.S.C. 16935a.
Because this rulemaking implements the Congressional mandates within the FAST Act and IML, the Department is publishing this rulemaking without notice and comment under the “good cause” exemption of 5 U.S.C. 553(b). The Department believes that public comment on this rulemaking would be unnecessary, impractical, and contrary to the public interest. In addition, for the same reasons, the effective date for this rulemaking is the date of publication in accordance with the “good cause” provision of 5 U.S.C. 553(d)(3).
The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities.
This 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 rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of U.S.-based companies to compete with foreign based companies in domestic and import markets.
The Department of State does not consider this rule to be an economically significant regulatory action under Executive Order 12866, Regulatory Planning and Review. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in both Executive Order 12866 and Executive Order 13563, and certifies that the benefits of this regulation outweigh any cost to the public.
This regulation will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement.
The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.
This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35. Prior to the passage of the FAST Act, passport applicants were already asked to provide their Social Security numbers to obtain or renew passports. With respect to the IML requirements, the applicant does not report his or her status as a covered sex offender to the Department during the application process; rather, the Department obtains that information from other government sources. Therefore, this rulemaking imposes no additional burden on the applicant.
Passports.
Accordingly, for the reasons set forth in the preamble, the Department has amended 22 CFR part 51 as follows:
8 U.S.C. 1504; 18 U.S.C. 1621; 22 U.S.C. 211a, 212, 212b, 213, 213n (Pub. L. 106–113 Div. B, Sec. 1000(a)(7) [Div. A, Title II, Sec. 236], 113 Stat. 1536, 1501A–430); 214, 214a, 217a, 218, 2651a, 2671(d)(3), 2705, 2714, 2714a, 2721, & 3926; 26 U.S.C. 6039E; 31 U.S.C. 9701; 42 U.S.C. 652(k) [Div. B, Title V of Pub. L. 103–317, 108 Stat. 1760]; E.O. 11295, Aug. 6, 1966, FR 10603, 3 CFR, 1966–1970 Comp., p. 570; Pub. L. 114–119, 130 Stat. 15; Sec. 1 of Pub. L. 109–210, 120 Stat. 319; Sec. 2 of Pub. L. 109–167, 119 Stat. 3578; Sec. 5 of Pub. L. 109–472, 120 Stat. 3554; Pub. L. 108–447, Div. B, Title IV, Dec. 8, 2004, 118 Stat. 2809; Pub. L. 108–458, 118 Stat. 3638, 3823 (Dec. 17, 2004).
(a) * * *
(3) The applicant is certified by the Secretary of the Treasury as having a seriously delinquent tax debt as described in 26 U.S.C. 7345.
(4) The applicant is a covered sex offender as defined in 42 U.S.C. 16935a, unless the passport, no matter the type, contains the conspicuous identifier placed by the Department as required by 22 U.S.C. 212b.
(f) The Department may refuse to issue a passport to an applicant who fails to provide his or her Social Security account number on his or her passport application or who willfully, intentionally, negligently, or recklessly includes an incorrect or invalid Social Security account number.
(g) The Department shall not issue a passport card to an applicant who is a covered sex offender as defined in 42 U.S.C. 16935a.
Internal Revenue Service (IRS), Treasury.
Final regulations.
This document contains final regulations that reflect the holdings of
Mark Shurtliff at (202) 317–3400 (not toll-free number).
This document contains amendments to the Income Tax Regulations (26 CFR part 1), the Estate Tax Regulations (26 CFR part 20), the Gift Tax Regulations (26 CFR part 25), the Generation-Skipping Transfer Tax Regulations (26 CFR part 26), the Employment Tax and Collection of Income Tax at Source Regulations (26 CFR part 31), and the Regulations on Procedure and Administration (26 CFR part 301).
On October 23, 2015, the Department of the Treasury (Treasury) and the IRS published in the
Written comments responding to the proposed regulations were received, and one person requested a public hearing. A public hearing was held on January 28, 2016; however, the individual who requested the hearing was not able to attend, but did submit supplemental comments. When given the opportunity, no one who attended the hearing asked to speak. After consideration of the
The IRS received twelve comments in response to the notice of proposed rulemaking. All comments were considered and are available for public inspection at
The majority of commenters strongly supported the proposed regulations. Many commended Treasury and the IRS for publishing proposed regulations that reflect the holdings of
One commenter suggested that the regulations specifically reference “same-sex marriage” so that the definitions apply regardless of gender and to avoid any potential issues of interpretation. Treasury and the IRS believe that the definitions in the proposed regulations apply equally to same-sex couples and opposite-sex couples, and that no clarification is needed. Proposed § 301.7701–18(a) states, without qualification, that, “[f]or federal tax purposes, the terms
One comment reflected an overall negative view of same-sex marriage. However, the comment did not recommend any specific amendment to the proposed regulations. Because this comment addresses issues outside the scope of these regulations, the final regulations do not address this comment.
Section 301.7701–18(a) of the proposed regulations provides that for federal tax purposes, the terms “spouse,” “husband,” and “wife” mean an individual lawfully married to another individual. The term “husband and wife” means two individuals lawfully married to each other. The preamble to the proposed regulations explains that after
The overwhelming majority of commenters expressed support for proposed § 301.7701–18(a). However, one of the commenters recommended that the IRS update all relevant forms to use the gender-neutral term “spouse” instead of “husband and wife.” The commenter stated that updating the forms to use gender-neutral terms would be cost-neutral and would more accurately reflect the varied composition of today's families. The commenter further stated that updating the forms to be inclusive of same-sex couples would increase government efficiency by alleviating confusion, delays, and denials caused by current forms using outdated terms.
The commenter's recommendation relates to forms and is therefore outside the scope of these final regulations. Nevertheless, Treasury and the IRS will consider the commenter's recommendation when updating IRS forms and publications.
Section 301.7701–18(b) of the proposed regulations provides that a marriage of two individuals is recognized for federal tax purposes if the marriage would be recognized by any state, possession, or territory of the United States. The comments received on paragraph (b) are summarized below.
One commenter stated that proposed § 301.7701–18(b) is redundant and unnecessary in light of
Treasury and the IRS disagree that proposed § 301.7701–18(b) is unnecessary in light of
Another commenter recommended amending § 301.7701–18(b) of the proposed regulations to simply state that the determination of an individual's marital status will be made under the laws of the relevant state, possession, or territory of the United States or, where appropriate, under the laws of the relevant foreign country (for example, the country where the marriage was celebrated or, if conflict of laws questions arise, another country). The commenter pointed out that this revision is needed to ensure that a couple's intended marital status is recognized by the IRS. Specifically, the commenter explains that the language in proposed § 301.7701–18(b) makes it possible for unmarried couples living in a state that does not recognize common-law marriage to be treated as married for federal tax purposes if the couple would be treated as having entered into a common-law marriage under the law of any state, possession, or territory of the United States.
Next, the commenter explains that the language of the proposed regulations could result in questions about the validity of a divorce. Under Revenue Ruling 67–442, a divorce is recognized for federal tax purposes unless the divorce is invalidated by a court of
Finally, the commenter states that the language of proposed § 301.7701–18(b) could create a conflict with proposed § 301.7701–18(c) if at least one state, possession, or territory of the United States recognizes a couple's registered domestic partnership, civil union, or other similar relationship as marriage. The commenter points out that in such a situation, regardless of the couple's intention and where they entered into their alternative legal relationship, they could be treated as married for federal tax purposes under the language of proposed § 301.7701–18(b) if any state, possession, or territory recognizes their alternative legal relationship as a marriage.
According to the commenter, these examples demonstrate that the language in proposed § 301.7701–18(b) could be interpreted to treat couples who divorce or who never intended to enter into a marriage under the laws of the state where they live or where they entered into an alternative legal relationship as married for federal tax purposes. Without a change to proposed § 301.7701–18(b), these couples would be required to analyze the laws of all the states, possessions, and territories of the United States to determine whether any of these laws would fail to recognize their divorce or would denominate their alternative legal relationship as a marriage
This was not the intent of the proposed regulations. Rather, the proposed regulations were intended to recognize a marriage only when a couple entered into a relationship denominated as marriage under the law of any state, territory, or possession of the United States or under the law of a foreign jurisdiction if such a marriage would be recognized by any state, possession, or territory of the United States. To address these concerns, § 301.7701–18(b) is revised in the final regulations to provide a general rule for recognizing a domestic marriage for federal tax purposes and a separate rule for recognizing foreign marriages for federal tax purposes (discussed in section III.C.
Accordingly, under the general rule in § 301.7701–18(b)(1) of the final regulations, a marriage of two individuals is recognized for federal tax purposes if the marriage is recognized by the state, possession, or territory of the United States in which the marriage is entered into, regardless of the married couple's place of domicile. This revision addresses the concerns raised by the commenter and ensures that only couples entering into a relationship denominated as marriage, and who have not divorced, are treated as married for federal tax purposes. By relying on the place of celebration to determine which state, possession, or territory of the United States is the point of reference for determining whether a couple is married for federal tax purposes, this rule is consistent with the longstanding position of Treasury and the IRS regarding the determination of marital status for federal tax purposes. See Revenue Ruling 2013–17; Revenue Ruling 58–66 (1958–1 CB 60).
Section 301.7701–18(b) of the proposed regulations generally provides that a marriage of two individuals is recognized for federal tax purposes if the marriage would be recognized by any state, possession, or territory of the United States. The preamble to the proposed regulations explains that under this rule, as a matter of comity, a marriage conducted in a foreign jurisdiction will be recognized for federal tax purposes if that marriage would be recognized in at least one state, possession, or territory of the United States. The rule in § 301.7701–18(b) of the proposed regulations was intended to address both domestic and foreign marriages, regardless of where the couple is domiciled and regardless of whether the couple ever resides in the United States (or a possession or territory of the United States). One commenter suggested amending the proposed regulation to recognize marriages performed in any foreign jurisdiction, for federal tax purposes, if the marriage is recognized in at least one state, possession, or territory of the United States. Similarly, another commenter recommended amending the proposed regulation to reflect the discussion in the preamble to the proposed regulation regarding the recognition of marriages conducted in foreign jurisdictions. This commenter noted that the preamble to the proposed regulation states, “[W]hether a marriage conducted in a foreign jurisdiction will be recognized for federal tax purposes depends on whether that marriage would be recognized in at least one state, possession, or territory of the United States.” The commenter recommended that, rather than relying on the preamble, language should be included in the regulations' text making this recognition explicit.
Proposed § 301.7701–18(b) was drafted to apply to both domestic and foreign marriages. In light of the comments, the proposed rule has been amended to be more explicit. To clarify how foreign marriages will be recognized for federal tax law, § 301.7701–18(b) has been amended to provide a specific rule for foreign marriages. Accordingly, a new paragraph (b)(2) has been added to § 301.7701–18 to provide that two individuals entering into a relationship denominated as marriage under the laws of a foreign jurisdiction are married for federal tax purposes if the relationship would be recognized as marriage under the laws of at least one state, possession, or territory of the United States. This rule enables couples who are married outside the United States to determine marital status for federal tax purposes, regardless of where they are domiciled and regardless of whether they ever reside in the United States. Although this rule requires couples to review the laws of the various states, possessions, and territories to determine if they would be treated as married, it is sufficient if they would be treated as married in a single jurisdiction and there is no need to consider the laws of all of the states, territories, and possessions of the United States. In addition, unlike the language in § 301.7701–18(b) of the proposed regulations, this rule incorporates the place of celebration as the reference point for determining whether the legal relationship is a marriage or a legal alternative to marriage, avoiding the potential conflict with § 301.7701–18(c) identified by the commenter, above. Finally, this rule avoids the concern that a couple intending to enter into a legal alternative to marriage will be treated as married because this rule recognizes only legal relationships denominated as marriage under foreign law as eligible to be treated as marriage for federal tax purposes. This separate rule for foreign marriages in § 301.7701–18(b)(2) is consistent with the proposed regulations' intent, as described in the preamble to the notice of proposed rulemaking, and provides the clarity commenters request.
One commenter stated that some states that recognize common-law marriage only do so in the case of opposite-sex couples. Accordingly, the commenter recommended amending the regulations to clarify that common-law marriages of same-sex couples will be recognized for federal tax purposes. The
As discussed in the preamble to the proposed regulations, on June 26, 2013, the Supreme Court in
In light of these holdings, Treasury and the IRS determined that marriages of couples of the same sex should be treated the same as marriages of couples of the opposite sex for federal tax purposes. See 80 FR 64378, 64379. Neither the proposed regulations nor these final regulations differentiate between civil marriages and common-law marriages, nor is such differentiation warranted or required for federal tax purposes. See Revenue Ruling 58–66 (treating common-law marriage as valid, lawful marriage for federal tax purposes) and Revenue Ruling 2013–17 (reiterating that common-law marriages are valid, lawful marriages for federal tax purposes). Thus, the general rules regarding marital status for federal tax purposes provided in the proposed and final regulations address marital status regardless of whether the marriage is a civil marriage or a common-law marriage.
Furthermore, even after the
In addition, Revenue Ruling 2013–17 does not distinguish between civil marriages and common-law marriages of same-sex couples. Therefore, same-sex couples in common-law marriages may rely on Revenue Ruling 2013–17 for the purpose of filing original returns, amended returns, adjusted returns, or claims for credit or refund for any overpayment of tax resulting from the holdings of Revenue Ruling 2013–17 and the definitions provided in these regulations, provided the applicable limitations period for filing such claim under section 6511 has not expired.
Section 301.7701–18(c) of the proposed regulations provides that the terms “spouse,” “husband,” and “wife” do not include individuals who have entered into a registered domestic partnership, civil union, or other similar relationship not denominated as marriage under the law of a state, possession, or territory of the United States. That section further provides that the term “husband and wife” does not include couples who have entered into such a relationship and that the term “marriage” does not include such relationship.
The preamble to the proposed regulations provides several reasons for the rule in proposed regulation § 301.7701–18(c). First, except when prohibited by statute, the IRS has traditionally looked to states to define marriage. Second, regardless of rights accorded to relationships such as civil unions, registered domestic partnerships, and similar relationships under state law, states have intentionally chosen not to denominate those relationships as marriage. Third, some couples deliberately choose to enter into or remain in a civil union, registered domestic partnership, or similar relationship even when they could have married or converted these relationships to marriage, and these couples have an expectation that their relationship will not be treated as marriage for purposes of federal tax law. Finally, no Code provision indicates that Congress intended to recognize civil unions, registered domestic partnerships, or similar relationships as marriages. Several commenters submitted comments addressing this section of the proposed regulations. Many agreed with proposed § 301.7701–18(c), but three did not. These comments are discussed below.
In addition to the four commenters that expressed strong support for the proposed regulations generally, two commenters provided specific comments agreeing with the position taken in proposed § 301.7701–18(c). One of these commenters stated that because no Code section requires, or even permits, Treasury and the IRS to allow individuals in registered domestic partnerships, civil unions, and other similar relationships, to elect a married filing status under section 6013, any extension of section 6013 is a policy choice that Congress should make. This commenter also noted that to evaluate the rights and obligations created by various state legal relationships to determine if they are the same as relationships denominated as a marriage would be a significant drain on IRS resources. Finally, the commenter provided historical examples demonstrating how states have attempted to change state family law to reduce their residents' federal income tax obligations. Based on this historical analysis, the commenter concluded that if Treasury and the IRS were to reverse their position on the status of registered domestic partnerships, civil unions, and other similar relationships, there would be nothing to prevent states from permitting a private contract to create an equivalent state-law marriage to enable their residents to choose a filing status that reduces their federal income tax obligations.
The second commenter that agreed with proposed § 301.7701–18(c) observed that the proposed regulations respect the choices made by couples who entered into a civil union or registered domestic partnership with the expectation that their relationship will not be treated as a marriage for federal law purposes. The commenter also observed that the proposed regulations recognize that couples deliberately remain in these relationships, rather than marry, for lawful reasons.
Three commenters disagreed with the proposed regulations, stating that registered domestic partnerships, civil unions, and similar formal relationships should be treated as marriage for federal tax purposes. Their comments are summarized below.
Two of the commenters recommended that the substance of the legal rights and obligations of individuals in registered domestic partnerships, civil unions, and similar relationships should control whether these relationships are
While some states extend the rights and responsibilities of marriage to couples in registered domestic partnerships, civil unions, or other similar relationships, as the commenters point out, these states also retain marriage as a separately denominated legal relationship. We also recognize that some states have permitted couples in those relationships to convert them to marriage under state law. Many of those states have continued to designate marriage separately from alternative legal relationships that are not a marriage, such as registered domestic partnerships, civil unions, or other similar relationships.
The IRS has traditionally recognized a couple's relationship as a marriage if the state where the relationship was entered into denominates the relationship as a marriage. See Revenue Ruling 58–66 (if a state recognizes a common-law marriage as a valid marriage, the IRS will also recognize the couple as married for purposes of federal income tax filing status and personal exemptions). Similarly, the IRS has not traditionally evaluated the rights and obligations provided by a state to determine if an alternative legal relationship should be treated as marriage for federal tax purposes.
Adopting the commenters' recommendation to treat registered domestic partnerships, civil unions, and similar relationships as married for federal tax purposes if the couple has the same rights and responsibilities as individuals who are married under state law would be inconsistent with Treasury and the IRS's longstanding position to recognize the marital status of individuals as determined under state law in the administration of the federal income tax. This position is, moreover, consistent with the reasoning of the only federal court that has addressed whether registered domestic partners should be treated as spouses under the Code. See
In addition, it would be unduly burdensome for the IRS to evaluate state laws to determine if a relationship not denominated as marriage should be treated as a marriage. It would be also be burdensome for taxpayers in these alternative legal relationships, to evaluate state law to determine marital status for federal tax purposes. Besides being burdensome, the determination of whether the relationship should be treated as a marriage could result in controversy between the IRS and the affected taxpayers. This can be avoided by treating a relationship as a marriage only if a state denominates the relationship as a marriage, as the IRS has traditionally done.
Two of the commenters stated that by not recognizing registered domestic partnerships, civil unions, and other similar relationships as marriage for federal tax purposes, the IRS is disregarding the states' intent in creating these alternative legal relationships rather than deferring to state law.
To illustrate, one of the commenters noted that Illinois affords parties to a civil union the same rights and obligations as married spouses, and that when Illinois extended marriage to same-sex couples, it enacted a statutory provision permitting parties to a civil union to convert their union to a marriage during the one-year period following the law's enactment. 750 Ill. Comp. Stat. Sec. 75/65 (2014). The Illinois law also provides that, for a couple converting their civil union to a marriage, the date of marriage relates back to the date the couple entered into the civil union. The commenter stated that the fact that couples could convert their civil union to a marriage, and that the date of their marriage would relate back to the date of their union, indicates that Illinois defines civil unions as marriages.
The commenter further observed that when Delaware extended the right to marry to same-sex couples, it stopped allowing its residents to enter into civil unions. Following a one-year period during which couples could voluntarily convert their civil union into marriage, Delaware automatically converted into marriage all remaining civil unions (except those subject to a pending proceeding for dissolution, annulment or legal separation), with the date of each marriage relating back to the date that each civil union was established. The commenter concluded that the laws in Delaware and Illinois make it clear that by not recognizing civil unions and domestic partnerships as marriage, the IRS is not deferring to the state's judgment in defining marital status.
Rather than support the commenter's position, these examples actually support proposed § 301.7701–18(c). As discussed in the preamble to the proposed regulations, states have carefully considered which legal relationships will be recognized as a marriage and which will be recognized as a legal alternative to marriage, and have enacted statutes accordingly. For instance, Illinois did not automatically convert all civil unions into marriages or include civil unions in the definition of marriage. Instead, it allowed couples affected by the new law to either remain in a civil union or convert their civil union into a marriage. Furthermore, under Illinois law, couples who waited longer than one year to convert their civil union into marriage must perform a new ceremony and pay a fee to have their civil union converted into and be recognized as a marriage. Moreover, Illinois continues to allow both same-sex couples and opposite-sex couples to enter into civil unions, rather than marriages.
The law in Delaware also demonstrates the care that states have taken to determine which legal relationships will be denominated as marriage. In 2014, Delaware law eliminated the separate designation of civil union in favor of recognizing only marriages for couples who want the legal status afforded to couples under state law. On July 1, 2014, Delaware automatically converted all civil unions to marriage by operation of law. Del. Code Ann. tit. 13, Sec. 218(c). Civil unions that were subject to a pending proceeding for dissolution, annulment, or legal separation as of the date the law went into effect, however, were not automatically converted. As a result, these couples are not treated as married under Delaware law, and the dissolution, annulment, or legal separation of their civil union is governed by Delaware law relating to civil unions rather than by Delaware law relating to marriage. Del. Code Ann. tit. 13, Sec. 218(d).
As these examples demonstrate, states have carefully determined which relationships will be denominated as marriage. In addition, states may retain alternatives to marriage even after allowing couples to convert those relationships to marriage. IRS's reliance on a state's denomination of a relationship as marriage to determine marital status for federal tax purposes avoids inconsistencies with a state's intent regarding the status of a couple's relationship under state law.
As explained in the notice of proposed rulemaking, some couples have chosen to enter into a civil union or registered domestic partnership even when they could have married. In addition, some couples who are in civil unions or registered domestic partnerships have chosen not to convert those relationships into marriage when they had the opportunity to do so. In many cases, the choice not to enter into a relationship denominated as marriage was deliberate, and may have been made to avoid treating the relationship as marriage for purposes of federal law, including federal tax law.
Two commenters stated that taxpayer expectations do not support § 301.7701–18(c). According to the commenters, many same-sex couples entered into a domestic partnership or civil union because at the time they were prohibited under state law from marrying. According to the commenters, now that they have the option to marry, some of these couples have remained in domestic partnerships or civil unions not by choice, but because one member of the couple has died, has become incapacitated, or otherwise lacks the capacity to enter into a marriage. One of the commenters stated that these couples are trapped in this alternative legal relationship and have no ability to marry, even if they have an expectation that their relationship be treated as a marriage for federal tax purposes. The other commenter pointed out that some taxpayers may have resisted entering into or converting their relationship into marriage because of a principled opposition to the marriage institution, but may still have an expectation of being treated as married for federal tax purposes. Thus, the commenters conclude, many taxpayers do not voluntarily enter into or remain in alternative legal relationships because of any particular expectation that they will not be treated as married for federal purposes.
The commenters stated that even if the type of relationship entered into represents a decision not to be treated as married for federal purposes, taxpayer expectations should not be taken into account for purposes of determining whether alternative legal relationships are recognized as marriage for federal tax purposes. One commenter stated that taking taxpayer expectations into account encourages tax-avoidance behavior. The other commenter stated that it is inappropriate for the IRS to determine tax policy based on taxpayers' expectations of reaping nontax benefits, such as Social Security.
However, another commenter, who also disagreed with proposed § 301.7701–18(c), stated the opposite, explaining that non-tax reasons support treating alternative legal relationships as marriage for federal tax purposes. According to this commenter, because nationwide protections for employment and housing are lacking, many same-sex couples remain at risk for termination at work or eviction from an apartment if their sexual orientation is discovered. Similarly, the commenter contends that individuals in the Foreign Service who work overseas may also feel unsafe entering into a same-sex marriage. Therefore, the commenter explained, in light of these realities, registered domestic partnerships, civil unions, and similar relationships provide a level of stability and recognition for many couples through federal programs like Social Security, and, therefore, should be treated as marriages for federal tax purposes. Finally, the commentator stated that recognizing these relationships as marriages for federal tax purposes would not impede the IRS's ability to effectively administer the internal revenue laws.
Treasury and the IRS disagree with the commenters and continue to believe that the regulation should not treat registered domestic partnerships, civil unions, and other similar relationships—entered into in states that continue to distinguish these relationships from marriages—as marriage for federal tax purposes. While not all same-sex couples in registered domestic partnerships, civil unions, or similar relationships had an opportunity to marry when they entered into their relationship, after
In addition, the fact that some couples may not voluntarily enter into marriage because of a principled opposition to marriage supports not treating alternative legal relationships as marriages for federal tax purposes because this ensures that these couples do not risk having their relationship characterized as marriage. Further, as discussed in the preamble to the proposed regulations, treating alternative legal relationships as marriages for federal tax purposes may have legal consequences that are inconsistent with these couples' expectations. For instance, the filing status of a couple treated as married for federal tax purposes is strictly limited to filing jointly or filing as married filing separately, which often results in a higher tax liability than filing as single or head of household. After
Two commenters stated that not recognizing registered domestic partnerships, civil unions, and other similar relationships as marriages for federal tax purposes makes it difficult for couples in these relationships to calculate their federal tax liability. One commenter explained that when these couples dissolve their relationships, they are required to go through the same processes that spouses go through in a divorce; alimony obligations are calculated in the same way, and property divisions occur in the same way as for spouses. Yet, because they are not treated as married for federal tax purposes, these couples cannot rely on the certainty of tax treatment associated with provisions under the Code such as sections 71 (relating to exclusion from income for alimony and separate maintenance), 215 (relating to the deduction for alimony or separate maintenance payments), 414(p) (defining qualified domestic relations orders), 1041 (relating to transfers of property between spouses incident to divorce), 2056 (relating to the estate tax marital deduction), and 2523 (relating to gifts to spouses).
The purpose of these regulations is to define marital status for federal tax law purposes. The fact that the Code includes rules that address transfers of property between individuals who are or were married should not control how marriage is defined for federal tax
After describing the reasons for not treating civil unions, registered domestic partnerships, and similar relationships as marriage for federal tax purposes, the preamble to the proposed regulations states “Further, no provision of the Code indicates that Congress intended to recognize as marriages civil unions, registered domestic partnerships, or similar relationships.” That language makes clear that the Code is silent with respect to alternative legal relationships, and therefore, does not preclude the IRS from not recognizing these relationships as marriage for federal tax purposes.
Two commenters took issue with this language and stated that the government should not interpret the lack of a Code provision specifically addressing the marital status of legal alternatives to marriage as an indication of Congressional intent that such relationships should not be recognized as marriage for federal tax purposes. In addition, the commenters explained that the reason Congress did not enact such a provision after DOMA is because it would have been inconsistent with DOMA's restriction on treating same-sex couples as married for federal law purposes.
These comments are unpersuasive. Since DOMA was enacted on September 21, 1996, many states have allowed both same-sex and opposite-sex couples to enter into registered domestic partnerships, civil unions, and similar relationships. Although it would have been inconsistent for Congress to recognize alternative legal relationships between same-sex couples as marriage under DOMA, nothing prevented Congress from recognizing these relationships as marriages for federal tax purposes in the case of opposite-sex couples. Yet, since DOMA was enacted nearly 20 years ago, Congress has passed no law indicating that opposite-sex couples in registered domestic partnerships, civil unions, or similar relationships are recognized as married for federal tax purposes. Because no Code provision specifically addresses the marital status of alternative legal relationships for federal tax purposes, there is no indication that Congress intended to recognize registered domestic partnerships, civil unions, or similar relationships as marriage for purposes of federal tax law.
In sum, Treasury and the IRS received twelve comments with respect to the proposed regulations. Only three of those comments disagreed with the approach taken in proposed § 301.7701–18(c), which provides that registered domestic partnerships, civil unions, and similar relationships not denominated as marriage by state law are not treated as marriage for federal tax purposes. Of the nine comments that supported the proposed regulations, two provided specific reasons why they agreed with the approach taken in proposed § 301.7701–18(c). Accordingly, the majority of comments supported the approach taken in proposed § 301.7701–18(c).
For the reasons discussed above, the points raised by the three comments that disagreed with the approach taken in proposed § 301.7701–18(c) are not persuasive. Treasury and the IRS believe that federal tax law should continue to defer to states for the determination of marital status, and the rule in proposed § 301.7701–18(c) does that. Any other approach would unduly burden the IRS and taxpayers by requiring an interpretation of multiple state laws and potential controversy when disagreements arise regarding this interpretation. In addition, Treasury and the IRS continue to believe that treating couples in registered domestic partnerships, civil unions, and similar relationships not denominated as marriage under state law, as married for federal tax purposes could undermine taxpayer expectations regarding the federal tax consequences of these relationships. To provide a rule that concludes otherwise would leave those couples who choose alternative legal relationships over marriage without a remedy to avoid the federal tax consequences of being married. In contrast, couples who wish to be treated as married may do so after
While § 301.7701–18(c) of the regulations will continue to provide that registered domestic partnerships, civil unions, and other similar relationships not denominated as marriage under state law are not recognized as married for federal tax purposes, § 301.7701–18(c) is revised in the final regulations similar to revisions to § 301.7701–18(b) to account for the place of celebration. As discussed in section III.
One commenter recommended amending the proposed regulations to make a clear connection between marital status and community property tax treatment under state law. These regulations provide definitions for purposes of determining marital status for federal tax law purposes. These regulations do not provide substantive rules for the treatment of married or non-married couples under federal tax law. Accordingly, because the federal tax treatment of issues that arise under community-property law involves resolution of issues under substantive tax law, which is outside the scope of these regulations, the commenter's recommendation is not adopted by these final regulations.
These final regulations will obsolete Revenue Ruling 2013–17 as of September 2, 2016. Taxpayers may continue to rely on guidance related to the application of Revenue Ruling 2013–17 to employee benefit plans and the benefits provided under such plans, including Notice 2013–61, Notice 2014–37, Notice 2014–19, Notice 2014–1, and Notice 2015–86 to the extent they are not modified, superseded, obsoleted, or clarified by subsequent guidance.
These regulations are effective on September 2, 2016.
IRS Revenue Procedures, Revenue Rulings notices, notices and other guidance cited in this preamble are published in the Internal Revenue Bulletin (or Cumulative Bulletin) and are available from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402, or by visiting the IRS Web site at
Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. In addition, because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Accordingly, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act (5 U.S.C. chapter 6).
The principal author of these regulations is Mark Shurtliff of the Office of the Associate Chief Counsel, Procedure and Administration.
Income taxes, Reporting and recordkeeping requirements.
Estate taxes, Reporting and recordkeeping requirements.
Gift taxes, Reporting and recordkeeping requirements.
Estate, Reporting and recordkeeping requirements.
Employment taxes, Income taxes, Penalties, Pensions, Railroad retirement, Reporting and recordkeeping requirements, Social Security, Unemployment compensation.
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping requirements.
Accordingly, 26 CFR parts 1, 20, 25, 26, 31, and 301 are amended as follows:
26 U.S.C. 7805 * * *
(a)
(b)
26 U.S.C. 7805 * * *
(a)
(b)
26 U.S.C. 7805 * * *
(a)
(b)
26 U.S.C. 7805 * * *
(a)
(b)
26 U.S.C. 7805 * * *
(a)
(b)
26 U.S.C. 7805 * * *
(a)
(b)
(2)
(c)
(d)
Department of Justice.
Final rule.
This rule finalizes the Interim Final Rule published on June 15, 2016, which implemented recently-enacted statutory changes governing the September 11th Victim Compensation Fund of 2001 (the “Fund”). After consideration of all of the public comments filed in response to the Interim Final Rule, the Special Master has concluded that no substantive changes to the Interim Final Rule are needed. Accordingly, this Final Rule adopts as final the provisions of the Interim Final Rule, with only two minor technical corrections.
This final rule takes effect on September 2, 2016.
Jordana H. Feldman, September 11th Victim Compensation Fund, Civil Division, U.S. Department of Justice, 290 Broadway, Suite 1300, New York, NY 10007, telephone 855–885–1555 (TTY 855–885–1558).
On December 18, 2015, President Obama signed into law the James Zadroga 9/11 Victim Compensation Fund Reauthorization Act (the “Reauthorized Zadroga Act”), Public Law 114–113, Div. O, Title IV. The Act extends the September 11th Victim Compensation Fund of 2001 (the “Fund”) which provides compensation to any individual (or a personal representative of a deceased individual) who suffered physical harm or was killed as a result of the terrorist-related aircraft crashes of September 11, 2001, or the rescue and recovery efforts during the immediate aftermath of such crashes or the debris removal efforts that took place in the immediate aftermath of those crashes.
On June 15, 2016, Special Master Sheila L. Birnbaum published an Interim Final Rule to revise the existing regulations to implement changes required by the Reauthorized Zadroga Act. (81 FR 38936). Since the issuance of the Interim Final Rule, Sheila Birnbaum has stepped down as Special Master and the Attorney General has appointed Rupa Bhattacharyya in her place, effective July 21, 2016.
The Interim Final Rule took effect on the date of publication (June 15, 2016), but provided a 30-day period for interested persons to submit public comments. Special Master Bhattacharyya is issuing this Final Rule, which addresses the issues that have been raised. For the reasons described below, after consideration of all of the public comments, the Special Master has concluded that no substantive changes to the Interim Final Rule are needed. Accordingly, this Final Rule adopts the provisions of the Interim Final Rule without change, except for two minor technical corrections.
The June 15, 2016, Interim Final Rule (81 FR 38936) provided a brief history of the September 11th Victim Compensation Fund of 2001, the James Zadroga 9/11 Health and Compensation Act of 2010 (Zadroga Act), and the regulations issued by the Special Masters pursuant to those statutes.
On December 18, 2015, President Obama signed into law Public Law 114–113, providing for the reauthorization of the Zadroga Act. The Reauthorized Zadroga Act extends the time period during which eligible claimants may submit claims, increases the Fund's total funding available to pay claims, creates different categories of claims, directs the Special Master to issue full compensation to eligible claimants, and instructs the Special Master to implement certain changes to the policies and procedures used to evaluate and process claims.
The Interim Final Rule addressed those changes mandated by the statute. The Interim Final Rule was published in the
Accordingly, this Final Rule adopts the provisions of the Interim Final Rule without change, except for two technical corrections, as follows. These are not substantive changes and merely correct minor drafting errors in the wording of the Interim Final Rule as published.
(1) In section 104.21, Presumptively covered conditions, this Final Rule corrects an unintended wording error in the second sentence of paragraph (a), by restoring the missing word “or,” in this sentence.
(2) In section 104.62, Time limit for filing claims, in paragraph (b), this Final Rule restores the missing cross-reference to paragraph “(a)” of the section.
Many comments focused on the statutory definition of Group A claims and the decision by Congress to define the two categories of claims by reference to the date the Special Master “postmarks and transmits” a final award determination to the claimant. Several commenters argued that the “cut-off” date for inclusion in Group A should have been the date the claim was submitted or filed by the claimant, rather than the date the final award amount was determined by the Special Master. The commenters asserted that claims that had been submitted to the Fund on or before December 17, 2015, but did not have a loss determined by that time, should be considered Group A claims and subject to the standards in effect at the time of their submission.
The Reauthorized Zadroga Act makes clear that the critical date is the date
Some commenters asserted that the statutory definition is unfair or contrary to laws and principles that ensure that certain rights and benefits are not changed or compromised without notice. These comments focused on the unfairness of evaluating a claim submitted prior to reauthorization under the standards set forth in subsequently enacted legislation. In this regard, however, the Special Master is constrained by the law as Congress enacted it, and cannot disregard the clear language of the statute.
One commenter suggested a change that would violate other applicable law. This commenter proposed that the Special Master backdate loss determination letters to December 17, 2015, for all claims or amendments that were pending at the time of reauthorization. Such an action would be in violation of the law and of generally accepted accounting principles. Therefore, the Special Master cannot accept that suggestion.
Several commenters argued about the fairness of the statutory $200,000 cap on annual gross income. One commenter was concerned about the broad scope of the definition of “annual gross income” in computing economic loss. The Reauthorized Zadroga Act explicitly provides that the term “gross income” is defined as set forth in Section 61 of the Internal Revenue Code. Section 405(b)(7)(B), (C). There, the definition of “gross income” is broadly defined to include “all income from whatever source derived,” including (but not limited to) compensation for services, including fees, commissions, fringe benefits, and other similar items, pensions, annuities, interest, and other sources of income. Sections 104.43 and 104.45 of the Interim Final Rule, the provisions that address the determination of economic loss for decedents and for injured claimants who suffered an eligible physical harm respectively, were revised to account for the $200,000 annual gross income cap as required by the Reauthorized Zadroga Act. Because Congress explicitly provided this definition and annual income cap requirement in the statute, these requirements cannot be changed by the Special Master.
One commenter noted that the cap may have unintended consequences for a claimant who is disabled at a young age and therefore has a long remaining work life. Another commenter suggested that the Special Master should mitigate the effect of the $200,000 annual gross income cap by adjusting certain components of the loss calculation methodology, such as extending work life, reducing the tax offset, or lowering the residual earnings deduction, in claims where the cap is implicated. The Special Master cannot make adjustments to the loss calculation methodology for the purpose of eliminating the effect of the annual gross income cap, as doing so would violate Congressional intent. The Special Master, however, intends to exercise her discretion to apply the cap in ways that are favorable to claimants, while consistent with the language and intent of the statute. For example, the VCF will apply the tax adjustment to earnings before computing the annual cap, rather than after computing the cap. By applying this adjustment before the annual cap is computed, the amount of gross income is reduced and thus the award reduction resulting from the application of the cap is reduced. This is consistent with the overall purpose of the loss computation which is to determine the amount of earnings—after all deductions—that is lost to the claimant as a result of the September 11th attacks. The Special Master will provide additional information concerning the Fund's valuation methodologies on the Fund's Web site in order to give claimants greater insight into, and confidence in, its decision-making process.
Other comments questioned how the $200,000 annual gross income cap ended up in the statute. One commenter stated that a citizens group that advocated for the extension of the Zadroga Act in 2015 made no mention of such a cap. Another commenter asked whether the Fund advised Congress to designate the cap. The Fund took no such action. The Special Master cannot respond to questions about the process by which Congress develops legislation.
The Reauthorized Zadroga Act imposes caps on the amount of noneconomic loss that may be awarded for a claim that results from any type of cancer at $250,000 and for a claim that does not result from any type of cancer at $90,000. The Interim Final Rule, sections 104.45 and 104.46, clarified that, in computing the total noneconomic loss, the Special Master has discretion to consider the effect of multiple cancer conditions or multiple cancer and non-cancer conditions, and that, in computing the amount of noneconomic loss for economic loss claims, the Special Master has discretion to consider the extent of disability and the fact that different eligible conditions may contribute to the disability. Several commenters commended the Special Master for interpreting the statutory noneconomic loss caps as not imposing an aggregate cap on noneconomic loss, noting that this interpretation is consistent with both the letter and spirit of the statute. One commenter stated that the Special Master's interpretation appropriately addresses the realities of the first responders who are diagnosed with multiple forms of cancer and non-cancer conditions and is therefore important in ensuring that claimants receive full compensation as contemplated by the Reauthorized Zadroga Act. This commenter also noted that the Interim Final Rule properly interpreted the statute as not affecting the noneconomic loss amounts for claims filed on behalf of decedents.
The Zadroga Act defines the timing requirements for filing a claim as the date no later than two years after the claimant “knew (or reasonably should have known) . . . that the individual suffered a physical harm at a 9/11 crash site as a result of the terrorist-related aircraft crashes of September 11, 2001, or as a result of debris removal,” and “knew (or should have known) . . . that the individual was eligible to file a claim” with the Fund. Section 405(c)(3)(A). The Reauthorized Zadroga Act does not change this requirement.
One commenter suggested that the Special Master interpret the “knowledge” component to mean personal knowledge that the claimant's eligible physical condition was related to his/her 9/11-related exposure based on the date the claimant received a diagnosis from the WTC Health Program of an eligible physical harm. The commenter argued that it is not reasonable to assume that a clean-up worker, resident, or other “survivor” knew or reasonably should have known that his/her physical condition was related to his/her 9/11-related exposure until that time, given repeated assurances from public officials regarding the safety of the air quality around the WTC site, the lack of resources available to that community
While these comments do not require changes in the regulations, they raise issues that merit consideration by the Special Master in evaluating the issue of “timeliness.” The Special Master will provide additional information concerning this issue on the Fund's Web site in order to give claimants greater insight into the decision-making process.
Two comments were submitted regarding revisions or clarifications to the provisions on the amounts that a representative of a claimant may charge in connection with a claim to the Fund. One commenter suggested that the Special Master clarify that Section 104.81 be revised to make clear that the limitation on attorneys' fees applies to charges “to a claimant” and that expenses not charged to a claimant need not be approved by the Special Master. The Special Master believes that the existing language is sufficiently clear and that no change is needed.
Another commenter suggested the addition of a provision to address how costs associated with the transfer of claimant files should be allocated if a claimant terminates counsel and retains new counsel. The commenter suggested that any costs for such a transfer should be borne solely by “incoming” counsel. The Special Master does not believe that this is an issue to be addressed in the regulations and therefore no changes to the Final Rule are made with respect to this issue.
The Special Master received a number of additional comments that, while not requiring changes to the regulations, raise important issues for the administration of the Fund. Former Special Master Birnbaum indicated from the reopening of the Fund in 2011 that her goal was to design, implement, and administer a program that is transparent and fair. Special Master Bhattacharyya is similarly committed to those goals in the administration of the Fund for the next five years.
Comments stressed the importance of transparency so that claimants can understand the reasons for how their claims are handled. Some commenters suggested that certain claims were submitted months or years before the reauthorization and did not receive a loss calculation or other correspondence from the Fund requesting missing information or clarification of previously submitted information, and as a result, those claims will be unfairly subject to Group B statutory standards. These commenters did not identify specific claims and therefore the Special Master could not investigate the reasons why this may have happened or whether the loss amount in those claims would yield a different value under Group B standards. As a general matter, many claims that did not receive a loss calculation letter at the time of reauthorization had incomplete compensation forms, had an eligibility issue that precluded compensation review, were missing required supporting documents that were not submitted with the claim, or presented unique circumstances related to compensation that require additional research or third-party verification. Other claims may have submitted all of the paperwork necessary to process the claim but unfortunately were not fully evaluated and determined when Congress enacted the new legislation. The Fund has prioritized and granted expedited review for claimants suffering from a terminal illness or extreme financial hardship and undertook great efforts to review claims in the order in which they were submitted. The Fund continues its commitment to reviewing claims when they are fully submitted in a first in, first out order.
The Special Master appreciates these comments. While these comments do not require changes in the regulations, they suggest ways that the Fund can better achieve its mission. The Special Master is attuned to these issues and will take them into account as she works to ensure that the Fund serves the 9/11 community as the Zadroga Act intended.
Other commenters suggested changes that are outside the scope of this program. For example, two commenters called for the expansion of the New York State World Trade Center (WTC) Disability Law, which allows certain first responders to receive a disability pension due to injuries sustained as a result of 9/11 exposure, to include first responders who voluntarily left their employment or are not otherwise covered. Such an action would have to be addressed by the state legislature.
One commenter objected to the definition of the “9/11 crash site” on the grounds that the northern boundary line does not encompass the full New York City exposure zone and is inconsistent with the boundary used in the WTC Health Program, but properly recognized that it would require an act of Congress to revise the boundary.
This Final Rule is being made effective on the date of publication in the
This Final Rule implements Public Law 114–113 which reauthorizes the September 11th Victim Compensation Fund of 2001. In order to be able to evaluate claims and provide compensation, the Fund must collect information from an individual (or a personal representatives of a deceased individual) who suffered physical harm or was killed as a result of the terrorist-related aircraft crashes of September 11, 2001 or the debris removal efforts that took place in the immediate aftermath of those crashes. Accordingly, in connection with the approval of the Interim Final Rule, the Department of Justice, Civil Division, submitted an information collection request to the Office of Management and Budget for review and clearance in accordance with the emergency review procedures of the Paperwork Reduction Act of 1995. This request sought reinstatement of the prior information collection authorized under Public Law 111–347. The Department also published a Notice in the
These regulations set forth procedures by which the Federal government will award compensation benefits to eligible victims of the September 11, 2001, terrorist attacks. Under 5 U.S.C. 601(6), the term “small entity” does not include the Federal government, the party charged with incurring the costs attendant to the implementation and administration of the Victim Compensation Fund. This rule provides compensation to individuals, not to entities.
Further, because a general notice of proposed rulemaking was not required for the Interim Final rule, and in accordance with the Regulatory Flexibility Act (5 U.S.C. 603(a) and 604(a)), a Regulatory Flexibility Act analysis was not required.
This Final Rule has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review” section 1(b), Principles of Regulation and in accordance with Executive Order 13563 “Improving Regulation and Regulatory Review” section 1(b) General Principles of Regulation. The Office of Management and Budget had determined that the Interim Final Rule was an “economically significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly the Interim Final Rule had been reviewed by the Office of Management and Budget. This Final Rule, however, adopts as final the regulatory provisions promulgated by the Interim Final Rule, with no substantive change. Accordingly, the Department has determined that this Final Rule is not a significant regulatory action under Executive Order 12866, and this rule has not been reviewed by the Office of Management and Budget.
This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This rule is substantively identical to the Interim Final Rule published on June 15, 2016, and the Department of Justice worked cooperatively with state and local officials in the affected communities, and notified national associations representing elected officials, in the preparation of the Interim Final Rule.
This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one 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 rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
This rule adopts as final the provisions of the Interim Final Rule published on June 15, 2016 (81 FR 38936). Upon consideration of the public comments submitted in response to the Interim Final Rule, the Special Master has determined that no substantive changes need to be made in the regulations in 28 CFR part 104, which took effect on June 15, 2016. This rule makes no amendments to the existing regulations in 28 CFR part 104, except for two technical changes correcting minor drafting errors.
The Special Master has determined that this Final Rule does not fall within the definition of a “rule” under the Congressional Review Act, 5 U.S.C. 804(3)(C), because it is a rule of agency practice or procedure that does not substantially affect the rights or obligations of non-agency parties. Accordingly, the requirement to submit a report pursuant to 5 U.S.C. 801 is not applicable.
Disaster assistance, Disability benefits, Terrorism.
Accordingly, for the reasons set forth in the preamble, the interim rule amending 28 CFR part 104, which was published at 81 FR 38936, on June 15, 2016, is adopted as final with the following changes:
Title I V of Pub. L. 107–42, 115 Stat. 230, 49 U.S.C. 40101 note; Title II of Pub. L. 111–347, 124 Stat. 3623; Div. O, Title IV of Pub. L. 114–113, 129 Stat. 2242.
(a) * * * Group B claims shall be eligible for compensation only if the Special Master determines based on the evidence presented that a claimant who seeks compensation for physical harm has at least one WTC-Related Physical Health Condition, or, with respect to a deceased individual, the cause of such individual's death is determined at least in part to be attributable to a WTC-Related Physical Health Condition.
(b)
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the US40–322 (Albany Avenue) Bridge across the NJICW (Inside Thorofare), mile 70.0, at Atlantic City, NJ. The deviation is necessary to facilitate the Atlantic City IRONMAN Triathlon. This deviation allows the bridge to remain in the closed-to-navigation position.
The deviation is effective from 6:30 a.m. to 2 p.m. on September 18, 2016.
The docket for this deviation, [USCG–2016–0613] is available at
If you have questions on this temporary deviation, call or email Mr. Michael Thorogood, Bridge Administration Branch Fifth District, Coast Guard, telephone 757–398–6557, email
The DelMoSports, LLC, on behalf of the New Jersey Department of Transportation, who owns the US 40–322 (Albany Avenue) Bridge across the NJICW (Inside Thorofare), mile 70.0, at Atlantic City, NJ, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.733(f) to ensure the safety of the participants and spectators associated with the Atlantic City IRONMAN Triathlon.
Under this temporary deviation, the bridge will be maintained in the closed-to-navigation position from 6:30 a.m. to 2 p.m. on September 18, 2016. The bridge is a double bascule bridge and has a vertical clearance in the closed-to-navigation position of 10 feet above mean high water.
The NJICW (Inside Thorofare) is used by recreational vessels. The Coast Guard has carefully considered the nature and volume of vessel traffic in publishing this temporary deviation.
Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will be able to open in case of an emergency. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notice to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the 3rd Street Drawbridge across China Basin, mile 0.0 at San Francisco, CA. The deviation is necessary to allow participants to cross the bridge during the San Francisco Giant Race at AT&T Park event. This deviation allows the bridge to remain in the closed-to-navigation position during the deviation period.
This deviation is effective from 5 a.m. to 12 p.m. on September 11, 2016.
The docket for this deviation, [USCG–2016–0851], is available at
If you have questions on this temporary deviation, call or email David H. Sulouff, Chief, Bridge Section, Eleventh Coast Guard District; telephone 510–437–3516, email
The City of San Francisco has requested a temporary change to the operation of the 3rd Street Drawbridge, mile 0.0, over China Basin, at San Francisco, CA. The drawbridge navigation span provides a vertical clearance of 3 feet above Mean High Water in the closed-to-navigation position. The draw opens on signal if at least one hour notice is given, as required by 33 CFR 117.149. Navigation on the waterway is recreational.
The drawspan will be secured in the closed-to-navigation position from 5 a.m. to 12 p.m. on September 11, 2016, to allow participants to cross the bridge during the San Francisco Giant Race at AT&T Park event. This temporary deviation has been coordinated with the waterway users. No objections to the proposed temporary deviation were raised.
Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of butanedioic acid, 2-methylene-, polymer with 1,3-butadiene, ethenylbenzene and 2-hydroxyethyl 2-propenoate; when used as an inert ingredient (emulsifier or binder) in a pesticide chemical formulation. Keller and Heckman on behalf of Trinseo LLC submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA),
This regulation is effective September 2, 2016. Objections and requests for hearings must be received on or before November 1, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2016–0201, is available at
Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; main telephone number: (703) 305–7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2016–0201 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before November 1, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP–2016–0201, by one of the following methods.
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•
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and use in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing an exemption from the requirement of a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . .” and specifies factors EPA is to consider in establishing an exemption.
EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be shown that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of
Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers expected to present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b) and the exclusion criteria for identifying these low-risk polymers are described in 40 CFR 723.250(d). Butanedioic acid, 2-methylene-, polymer with 1,3-butadiene, ethenylbenzene and 2-hydroxyethyl 2-propenoate conforms to the definition of a polymer given in 40 CFR 723.250(b) and meets the following criteria that are used to identify low-risk polymers.
1. The polymer is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.
2. The polymer does contain as an integral part of its composition the atomic elements carbon, hydrogen, and oxygen.
3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).
4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.
5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.
6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 daltons.
7. The polymer does not contain certain perfluoroalkyl moieties consisting of a CF
Additionally, the polymer also meets as required the following exemption criteria specified in 40 CFR 723.250(e).
8. The polymer's number average MW of 10,000 is greater than or equal to 10,000 daltons. The polymer contains less than 2% oligomeric material below MW 500 and less than 5% oligomeric material below MW 1,000.
Thus, butanedioic acid, 2-methy-lene-, polymer with 1,3-butadiene, ethenylbenzene and 2-hydroxyethyl 2-propenoate meets the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in this unit, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to butanedioic acid, 2-methylene-, polymer with 1,3-butadiene, ethenylbenzene and 2-hydroxyethyl 2-propenoate.
For the purposes of assessing potential exposure under this exemption, EPA considered that the butanedioic acid, 2-methylene-, polymer with 1,3-butadiene, ethenylbenzene and 2-hydroxyethyl 2-propenoate could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The minimum number average MW of butanedioic acid, 2-methylene-, polymer with 1,3-butadiene, ethenylbenzene and 2-hydroxyethyl 2-propenoate is 10,000 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since butanedioic acid, 2-methylene-, polymer with 1,3-butadiene, ethenylbenzene and 2-hydroxyethyl 2-propenoate conforms to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.
Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”
EPA has not found butanedioic acid, 2-methylene-, polymer with 1,3-butadiene, ethenylbenzene and 2-hydroxyethyl 2-propenoate to share a common mechanism of toxicity with any other substances, and butanedioic acid, 2-methylene-, polymer with 1,3-butadiene, ethenylbenzene and 2-hydroxyethyl 2-propenoate does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that butanedioic acid, 2-methylene-, polymer with 1,3-butadiene, ethenylbenzene and 2-hydroxyethyl 2-propenoate does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of butanedioic acid, 2-methylene-, polymer with 1,3-butadiene, ethenylbenzene and 2-hydroxyethyl 2-propenoate, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.
Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of butanedioic acid, 2-methylene-, polymer with 1,3-butadiene, ethenylbenzene and 2-hydroxyethyl 2-propenoate.
There are no existing exemptions from the requirements of a tolerance.
An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established a MRL for butanedioic acid, 2-methylene-, polymer with 1,3-butadiene, ethenylbenzene and 2-hydroxyethyl 2-propenoate.
Accordingly, EPA finds that exempting residues of butanedioic acid, 2-methylene-, polymer with 1,3-butadiene, ethenylbenzene and 2-hydroxyethyl 2-propenoate from the requirement of a tolerance will be safe.
This action establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
Federal Communications Commission.
Final rule.
The Commission adopts this Report and Order to implement a historic consensus proposal for ensuring that people with hearing loss have full access to innovative handsets.
These rules are effective October 3, 2016.
Eli Johnson, Wireless Telecommunications Bureau, (202) 418–1395, email
This is a summary of the Federal Communications Commission's Report and Order in WT Docket 15–285, adopted August 4, 2016, and released August 5, 2016. The document is available for download at
1. In this Report and Order, the Commission takes several steps to implement a historic consensus proposal for ensuring that people with hearing loss have full access to innovative handsets. First, the Commission amends the hearing aid compatibility requirements that are generally applicable to wireless service providers and manufacturers of digital wireless handsets. Specifically, the Commission increases the number of hearing aid-compatible handsets that service providers and manufacturers are required to offer with two new percentage benchmarks: (1) 66 Percent of offered handset models must be compliant following a two-year transition period for manufacturers, with additional compliance time for service providers, and (2) 85 percent of offered handset models must be compliant following a five-year transition period for manufacturers, with additional compliance time for service providers. The Commission also expands the
2. The Commission also reconfirms its commitment to pursuing 100 percent hearing aid compatibility to the extent achievable. The Commission therefore invites consensus plan stakeholders and other interested parties to make supplemental submissions over the next several years on the achievability of a 100 percent hearing aid compatibility deployment benchmark considering technical and market conditions. As part of this process, the Commission also expects stakeholders to make submissions on additional points of agreement regarding other unresolved issues raised in this proceeding, including using alternative technologies to achieve hearing aid compatibility and establishing a safe harbor for service providers based on a public clearinghouse that claims to identify compliant handsets.
3. In order to advance towards the Commission's proposed 100 percent compatibility deployment benchmark, the Commission seeks to continue the productive collaboration between stakeholders and other interested parties so that it can obtain data and information about the technical and market conditions involving wireless handsets and hearing improvement technologies. In this regard, the Commission suggests a timeline identifying general milestones over the next several years when the consensus plan stakeholders and other interested parties may, at their election, make additional submissions. Based in significant part on the information it receives, the Commission intends to determine the achievability of a 100 percent compliance standard for wireless hearing aid compatibility by no later than 2024.
4. The current hearing aid compatibility deployment benchmarks require that, subject to a
5. In general, under the
6. To help ensure compliance with these benchmarks, the Commission's hearing aid compatibility rules also require wireless handset manufacturers and wireless service providers to submit annual reports to the Commission detailing the covered handsets that they offer for sale, the models that are hearing aid-compatible (and the specific rating), and other information relating to the requirements of the rule. In June 2009, the Commission introduced the electronic FCC Form 655 as the mandatory form for filing these reports, and since that time, both service providers and manufacturers have filed reports using the electronic system. Service provider compliance filings are due January 15 each year and manufacturer reports are due July 15 each year.
7. On November 12, 2015, three consumer advocacy organizations and three industry trade associations submitted a Joint Consensus Proposal (JCP) providing for a process for moving away from the current fractional benchmark regime. The parties to the
8. Specifically, the JCP provides that within two years of the effective date of the new rules, 66 percent of wireless handset models offered to consumers should be compliant with the Commission's acoustic coupling (M rating) and inductive coupling (T rating) requirements. The proposal provides further that within five years of the effective date, 85 percent of wireless handset models offered to consumers should be compliant with the Commission's M and T rating requirements.
9. In addition to these two-year and five-year benchmarks, the proposal provides that “[t]he Commission should commit to pursue that 100% of wireless handsets offered to consumers should be compliant with [the M and T rating requirements] within eight years.” The JCP conditions the transition to 100 percent, however, on a Commission determination within seven years of the rules' effective date that reaching the 100 percent goal is “achievable.” The JCP prescribes the following process for making that determination:
A task force will be created, including all stakeholders, identifying questions for exploration in year four after the effective date that the benchmarks described above are established. After convening, the stakeholder task force will issue a report to the Commission within two years.
The Commission, after review and receipt of the report described above, will determine whether to implement 100 percent compliance with [the M and T ratings requirements] based on concrete data and information about the technical and market conditions involving wireless handsets and the landscape of hearing improvement technology collected in years four and five. Any new benchmarks resulting from this determination, including 100 percent compliance, would go into effect no less than twenty-four months after the Commission's determination.
Consumer groups and the Wireless Industry shall work together to hold meetings going forward to ensure that the process will include all stakeholders: At a minimum, consumer groups, independent research and technical advisors, wireless industry policy and technical representatives, hearing aid manufacturers and Commission representatives.
10. The proposal provides that these new benchmarks should apply to manufacturers and service providers that offer six or more digital wireless handset models in an air interface, except that compliance dates for Tier I carriers and service providers other than Tier I carriers would be imposed six months and eighteen months, respectively, behind those for manufacturers, to account for the availability of handsets and inventory turn-over rates. The proposal recommends that the existing
11. On April 21, 2016 and July 29, 2016, the parties to the JCP filed ex parte letters supplementing their proposal and further addressing the proposed multi-stakeholder task force process.
12. As proposed in the JCP and the
13. Consistent with the JCP and the
14. The Commission modifies the JCP's proposed modification to the
15. The expanded
16. The Commission concludes that the changes it adopts today satisfy the Commission's statutory obligations. The Commission notes that the Section 710(b)(2)(b) four-part test for lifting an exemption does not apply here where the Commission is assessing benchmarks for services and equipment already within the scope of Section 20.19 of the rules. Section 710(e), however, requires the Commission to “consider costs and benefits to all telephone users, including persons with and without hearing loss,” and to “ensure that regulations adopted to implement [the Hearing Aid Compatibility Act] encourage the use of currently available technology and do not discourage or impair the development of improved technology.” Section 710(e) further directs that the Commission should use appropriate timetables and benchmarks to the extent necessary due to technical feasibility or to ensure marketability or availability of new technologies to users. As discussed below, considering the costs and benefits to all end users, including persons with and without hearing loss and the impact on the use and development of technology, the Commission finds the new benchmarks and implementation schedule to be appropriate, reasonable, and technically feasible, and therefore in the public interest. The Commission further finds, given the acceptance of these benchmarks by both industry and consumer stakeholders, there does not appear to be any suggestion or evidence that they would impede the marketability and availability of new technologies to users.
17. As reflected in the wide and unanimous support in the record for revising the Commission's hearing aid compatibility requirements as described above, these changes strike an appropriate balance between the interests of handset manufacturers, large and small service providers, and consumers with hearing loss. The Commission's actions today will provide significant benefits by expanding access to hearing aid-compatible handsets, while preserving the flexibility that allows competition and innovation in devices to flourish. Consumers with hearing loss, including those who rely on hearing aids or cochlear implants, will have more compatible handsets from which to choose when purchasing new phones, and manufacturers and service providers will have the time they need to meet the Commission's new benchmark requirements. This approach properly accounts for the realities of technology constraints as well as the needs of those with hearing loss. Further, no commenting party has argued that the costs of complying with the new benchmarks and their related implementation provisions would be detrimental to any consumers, with or without hearing loss. In fact, commenters broadly support the new benchmarks, timelines, additional implementation periods, and related provisions.
18. In addition to benefitting hearing aid users generally, raising the benchmarks to increase the percentage of handset models with at least a T3 rating will be particularly beneficial to wireless users in the deaf and hard of hearing community who rely on telecoil-equipped hearing aids and cochlear implants. Further, given that these benchmarks were agreed to by the parties to the JCP, the stakeholders have already agreed that the associated costs of meeting hearing aid compatibility requirements for a higher percentage of models are reasonable. In light of the support for these changes from both consumers and the industries that would bear the costs, and given the lack of any significant related opposition or evidence to the contrary, the Commission finds it reasonable, consistent with the mandate of Section 710(e), to conclude that the benefits of adopting these benchmarks will exceed their costs.
19. Further, the Commission finds that the transition periods the Commission adopts today are reasonable and are in the public interest. The Commission notes in particular that the JCP stakeholders crafted and proposed them, signaling broad support for these timelines. Moreover, the Commission has previously determined that two years is an appropriate period to accommodate the typical handset industry product cycle. The Commission believes that the transition periods identified in the JCP provide adequate time for handset manufacturers and service providers to adjust handset portfolios to ensure compliance with the new benchmarks, and the Commission therefore adopts them.
20. While RWA argues that the compliance deadline for small service providers should be 24 months beyond the end of the two and five year transition periods for manufacturers, the Commission finds that the additional 18 months proposed in the JCP and the
21. In addition, the Commission finds it in the public interest to continue to use the M3 and T3 ratings as the minimum that covered handsets must meet. The Commission declines to adopt ACI Alliance's proposal to put in place a benchmark or other mechanism that would require manufacturers to offer M4 and T4 rated handsets. The Commission believes this issue is better considered in the ANSI standards setting process or the ongoing stakeholder consensus process. Further, the Commission disagrees with ACI Alliance's assertion that the number of M4 and T4 rated handsets has been decreasing. In fact, manufacturers' compliance filings show the opposite. In light of this increase, it does not appear necessary to revise this component of the hearing aid compatibility requirements at this time.
22. As proposed by the JCP and the
23. The JCP proposed that the new benchmarks apply only “if testing protocols are available for a particular interface.” The Commission notes that, as with the current deployment requirements and consistent with past Commission precedent, manufacturers and service providers will be required to meet the new benchmarks only for technologies operating in the frequency bands covered by the approved technical standards. Further, these approved technical standards specify testing protocols for determining M and T ratings for mobile devices operating within the frequency range covered by the standards. Accordingly, the Commission does not agree that testing protocols are unavailable for new technologies within the scope of the standards. The Commission acknowledges, however, that, there may be cases of new technologies for which additional guidance or clarification on the application of the procedures may be helpful, and that temporary relief may be appropriate pending such guidance. In the past, the Commission has considered such issues on a case-by-case basis as they are raised by parties, and the Commission finds no reason to depart from this approach, given that there is no indication that this approach has not been successful in addressing any industry concerns. Accordingly, to the extent that parties request further guidance on testing procedures in connection with a particular new technology deployed in those bands, the Commission will, as it has in the past, address such requests on a case-by-case basis and provide appropriate guidance, or tailored accommodations pending guidance from the Commission or appropriate standards-setting bodies, as needed. The Commission would not, however, want the development of such testing protocols to delay hearing aid compatibility for new air interfaces or equipment. Therefore, the Commission expects the timely development of such testing protocols, and caution against unnecessary delays.
24. The Commission also finds that it is in the public interest to retain the existing
25. The Commission finds it in the public interest to maintain the Commission's current rounding rules for fractional deployment obligations. Currently, when calculating the total number of handset models that must be offered over an air interface results in a fractional deployment obligation, manufacturers may round this number down, but service providers must round this number up. The Commission sees no reason to change this current practice.
26. By no later than 2024, the Commission intends to make a determination regarding the Commission's proposed requirement that 100 percent of covered handsets be hearing aid-compatible. In consideration of the fact that both the hearing aid and mobile device markets will evolve during the time before the Commission makes this determination, the Commission will keep this docket open for all relevant submissions. The Commission anticipates that it will provide additional notice of wireless hearing aid compatibility proposals as they arise and become appropriate for more specific comment by manufacturers, service providers, consumer groups, and members of the public. The Commission believes this open process will afford all interested parties the same flexibility with which the Commission and stakeholders worked in the past to achieve consensus and establish the current hearing aid compatibility benchmarks and related requirements.
27. In the discussion below, the Commission sets forth a process and timeline, consistent with the proposals in the JCP and the supplemental filings, for stakeholders to submit information individually or collectively, including from any independent task force or consensus group that they create. The
28. In the July Supplemental Filing, the parties to the JCP discussed “how the Commission can be kept apprised of the status of the Task force's progress once the Task Force is established.” Recognizing the need for transparency through the process, they “acknowledge that an annual report once the Task Force is established could satisfy the Commission's interest in the Task Force's activities.” They further recommend that, “[r]ather than prescribe the specific contents of any additional reports . . . the Commission should permit the Task Force the flexibility to work together to determine the best way to communicate the status of the determination process to the FCC and the public.” The consumer group signatories further suggest that “so long as the language is not proscriptive, they would not object to guidance from the Commission on the kind of information that could be included in the yearly reports.”
29. Consistent with these proposals, and to allow stakeholders to reach further consensus on the various proposals set forth in the JCP and raised in the Commission's subsequent
30. The Commission finds that maintaining an open docket is the best method to reach an outcome that reflects a consensus among all interested parties. Although the Commission's open docket will permit broad participation among many interested participants over the next several years, the Commission expects that parties will continue to work together to establish whatever task force and/or working groups are necessary to submit consensus filings. The Commission therefore does not expect that every party affected by the outstanding issues in this proceeding will file reports or other submissions, and anticipates that such filings will most likely be filed solely by the task force or other groups that are established. Stakeholders themselves are best positioned to work collectively to obtain and report the data necessary to craft a regime that ensures full hearing aid compatibility while protecting market incentives to innovate and invest. The Commission encourages the formation of groups that represent the broadest number of participants, including representatives of consumers who use hearing aid devices, research and technical advisors, wireless industry policy and technical representatives, and hearing aid manufacturers.
31. With the assumption that interested parties will convene a task force to make submissions in this docket, the Commission notes that such a group would be established by the stakeholders themselves and would operate separate from the Commission. Although the Commission anticipates that any such task force group will use its best efforts to reach compromises that result in consensus positions, the Commission realizes that it may not be possible in all cases to achieve agreement among all participants or on all issues. Accordingly, by maintaining an open docket for submissions from all interested parties, the Commission also provides an opportunity for any individual, as well as any minority, positions to be presented to the Commission during the course of this proceeding.
32. The Commission asks interested parties to make submissions in accordance with the timeframes outlined below. These timeframes generally correspond to the timeline in the April 21, 2016
33. The Commission clarifies that the submissions described below are intended to be illustrative and that it will be up to any task force or consensus group to determine the best means of apprising the Commission of its activities. Guided by the additional data, information, and reports the Commission expects to receive, the Commission's intent is to make a final determination in this proceeding by no later than 2024. The Commission expects that interested parties will work independently and collectively to obtain valuable information and assist the Commission's ultimate achievability determination by making submissions as follows:
Stakeholder Participation:
By December 31, 2017 (end of Year 1)—
Report on outreach efforts by or to relevant stakeholders to gain commitments to participate in a consensus group.
Report on the formation of any stakeholder consensus group(s), including membership, leadership, and operations.
By December 31, 2018 (end of Year 2)—
Report on outreach efforts by or to relevant stakeholders to gain commitments to participate in a consensus group.
Report on the formation of any stakeholder consensus group(s), including membership, leadership, and operations.
Consensus Issues and Data:
By December 31, 2019 (end of Year 3)—
Report on any meetings, operations, and accomplishments to date of any stakeholder consensus group(s).
Report on the questions and scope of hearing aid compatibility issues to be evaluated by any stakeholder consensus group(s).
Report on any information and data planned to be collected by any stakeholder consensus group(s).
Report on any developments regarding the matters identified above under Stakeholder Participation (if applicable).
By December 31, 2020 (end of Year 4)—
Report on any meetings, operations, and accomplishments to date of any stakeholder consensus group(s).
Report on the information and data collected over Year 4 on those hearing aid compatibility issues being evaluated by any stakeholder consensus group(s).
By December 31, 2021 (end of Year 5)—
Report on any meetings, operations, and accomplishments to date of any stakeholder consensus group(s).
Report on the information and data collected over Year 5 on those hearing aid compatibility issues being evaluated by any stakeholder consensus group(s).
Determination and Report:
By December 31, 2022 (end of Year 6)—
Report on any meetings, operations, and accomplishments to date of any stakeholder consensus group(s).
Report on the information and data collected over Years 4 and 5 on those hearing aid compatibility issues being evaluated by any stakeholder consensus group(s).
Submit final report on the achievability of a 100 percent hearing aid compatibility deployment benchmark and on other hearing aid compatibility issues being evaluated by any stakeholder consensus group(s).
34. Although the Commission has decided to generally leave matters open and defer action until a future proceeding, the Commission expects stakeholders and other interested parties to use their best efforts to reach consensus on the remaining issues and proposals set forth in the JCP filed on November 12, 2015 and raised in the subsequent
35. The Commission's ultimate approach on the outstanding issues from the JCP and the subsequent
36.
37. The Commission notes that in response to the
38.
39. As interested parties prepare a report on the achievability of a 100 percent hearing aid compatibility deployment benchmark, the Commission expects that they will consider alternative hearing aid compatibility technologies, along with emerging technologies and devices designed to assist in modifying or amplifying sound for individuals with hearing loss, such as personal sound amplification (PSA) products. The Commission also invites parties to explain how these technologies and devices should be incorporated into a future benchmark framework. Because telecoils may be comparable to analog technologies, the Commission invites submissions regarding the inclusion of digital technologies, such as Bluetooth, within the rules as alternatives for meeting some or all of any future deployment benchmark(s). The Commission emphasizes the importance of broad interoperability between hearing aids and compatibility technologies, and the Commission flags the costs the consumers could face if certain technologies work only with select hearing aids. The Commission is encouraged by the extent to which Apple's proprietary solutions may lead to further research towards more universal standards that can someday be recognized by a standards body like ANSI, particularly if they lead to interoperable alternative solutions that can be deployed more widely across all manufacturers' devices and can work reliably with more than just certain select hearing aid models.
40.
41. While the Commission reaches no conclusion at this time about a safe harbor based on the Accessibility Clearinghouse, it finds that the hearing aid compatibility rating information contained in manufacturers' Form 655 reports is reliable. In those reports, manufacturers must identify each handset model's hearing aid compatibility rating, which in turn must reflect the testing results produced by a Commission-approved Telecommunications Certification Body. Manufacturers are further required to certify that statements reported in the form “are accurate, true and correct.” Because the Commission concludes that this information is reliable, it will treat a service provider as compliant with the hearing aid compatibility rules to the extent that its compliance is based on its reasonable reliance on data contained in, or aggregated from, manufacturers' Form 655 submissions.
42.
43. To ensure that a wide selection of digital wireless handset models are available to consumers with hearing loss, the Commission's rules require both manufacturers and service providers to meet defined benchmarks for offering hearing aid-compatible wireless phones.
44. As proposed in the Joint Consensus Proposal (JCP) and the
45. Consistent with the JCP, the Commission also determined to maintain the current
46. In the Report and Order, the Commission also set forth a process and timeline, consistent with the proposals in the JCP, for interested parties to make submissions individually or collectively, including from any independent task force or consensus group that they create. The Commission determined to leave many hearing aid compatibility issues open and deferred action on a final rule codifying a 100 percent compatibility deployment benchmark. It also identified for specific consideration several issues raised by parties to the JCP and the
47. There were no comments filed that specifically addressed the rules and policies proposed in the IRFA.
48. Pursuant to the Small Business Jobs Act of 2010, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.
49. The following small entity licensees and regulatees may be affected by the rules changes adopted in the Report and Order:
50. The current hearing aid compatibility regulations impose a number of obligations on covered wireless service providers and the manufacturers of digital wireless handsets used with those services, including: (1) Requirements to deploy a certain number or percentage of handset models that meet hearing aid compatibility standards, (2) “refresh” requirements on manufacturers to meet their hearing aid-compatible handset deployment benchmarks in part using new models, (3) a requirement that service providers offer hearing aid-compatible handsets with varying levels of functionality, (4) a requirement that service providers make their hearing aid-compatible models available to consumers for testing at their owned or operated stores, (5) point of sale disclosure requirements, (6) requirements to make consumer information available on the manufacturer's or service provider's Web site, and (7) annual reporting requirements. In the Report and Order, the Commission did not impose any additional reporting, record keeping, or other compliance requirements.
51. In the Report and Order, the Commission adopted a number of provisions to help small businesses in meeting the new hearing aid compatibility deployment requirements. Specifically, the Commission decided to keep in place and expand the existing
52. None.
53. The Commission will send a copy of the Report and Order, including this FRFA, in a report to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Report and Order and FRFA (or summaries thereof) will also be published in the
54. The Report and Order does not contain substantive new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104–13. In addition, therefore, it does not contain any substantive new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107–198,
55. The Commission will include a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act,
56. Accordingly,
57.
58.
Communications common carriers, Communications equipment, Radio.
For the reasons discussed in the preamble, the Federal Communications Commission amends part 20 of title 47 of the Code of Federal Regulations as follows:
47 U.S.C. 151, 152(a) 154(i), 157, 160, 201, 214, 222, 251(e), 301, 302, 303, 303(b), 303(r), 307, 307(a), 309, 309(j)(3), 316, 316(a), 332, 610, 615, 615a, 615b, 615c, unless otherwise noted.
(c) * * *
(1) * * *
(i) * * *
(C) Beginning October 3, 2018, at least sixty-six (66) percent of those handset models (rounded down to the nearest whole number) must comply with the requirements set forth in paragraphs (b)(1) and (2) of this section.
(D) Beginning October 4, 2021, at least eighty-five (85) percent of those handset models (rounded down to the nearest whole number) must comply with the requirements set forth in paragraphs (b)(1) and (2) of this section.
(2) * * *
(iii) Beginning April 3, 2019, each Tier I carrier must ensure that at least sixty-six (66) percent of the handset models it offers comply with paragraphs (b)(1) and (2) of this section, calculated based on the total number of unique digital wireless handset models the carrier offers nationwide. Beginning April 4, 2022, each Tier I carrier must ensure that at least eighty-five (85) percent of the handset models it offers comply with paragraphs (b)(1) and (2) of this section, calculated based on the total number of unique digital wireless handset models the carrier offers nationwide.
(3) * * *
(iii) Beginning April 3, 2020, ensure that at least sixty-six (66) percent of the handset models it offers comply with paragraphs (b)(1) and (2) of this section, calculated based on the total number of unique digital wireless handset models the carrier offers.
(iv) Beginning April 3, 2023, ensure that at least eighty-five (85) percent of the handset models it offers comply with paragraphs (b)(1) and (2) of this section, calculated based on the total number of unique digital wireless handset models the carrier offers.
(d) * * *
(1) * * *
(ii) * * *
(D) Beginning October 3, 2018, at least sixty-six (66) percent of the handset models in that air interface, which must comply with paragraphs (b)(1) and (2) of this section.
(E) Beginning October 4, 2021, at least eighty-five (85) percent of the handset models in that air interface, which must comply with paragraphs (b)(1) and (2) of this section.
(2) * * *
(iii) Beginning April 3, 2019, each Tier I carrier must ensure that at least sixty-six (66) percent of the handset models it offers comply with paragraphs (b)(1) and (2) of this section, calculated based on the total number of unique digital wireless handset models the carrier offers nationwide. Beginning April 4, 2022, each Tier I carrier must ensure that at least eighty-five (85) percent of the handset models it offers comply with paragraphs (b)(1) and (2) of this section, calculated based on the total number of unique digital wireless handset models the carrier offers nationwide.
(3) * * *
(iii) Beginning April 3, 2020, ensure that at least sixty-six (66) percent of the handset models it offers comply with paragraphs (b)(1) and (2) of this section, calculated based on the total number of unique digital wireless handset models the carrier offers;
(iv) Beginning April 3, 2023, ensure that at least eighty-five (85) percent of the handset models it offers comply with paragraphs (b)(1) and (2) of this section, calculated based on the total number of unique digital wireless handset models the carrier offers.
(e) * * *
(3) Beginning October 3, 2018, manufacturers that offer four or five digital wireless handset models in an air interface must offer at least two handset models compliant with paragraphs (b)(1) and (2) of this section in that air interface. Beginning April 3, 2019, Tier I carriers who offer four digital wireless handset models in an air interface must offer at least two handsets compliant with paragraphs (b)(1) and (2) of this section in that air interface and Tier I carriers who offer five digital wireless handset models in an air interface must offer at least three handsets compliant with paragraphs (b)(1) and (2) of this section in that air interface. Beginning April 3, 2020, service providers, other than Tier I carriers, who offer four digital wireless handset models in an air interface must offer at least two handset models compliant with paragraphs (b)(1) and (2) of this section in that air interface and service providers, other than Tier I carriers, who offer five digital wireless handset models in an air interface must offer at least three handsets compliant with paragraphs (b)(1) and (2) of this section in that air interface.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Final rule; correction.
This notice makes corrections to a final rule published in the
This rule is effective September 2, 2016.
All background documents, comments, and materials related to this rule may be viewed in docket number FMCSA–2015–0176 using either of the following methods:
•
• Docket Management Facility (M–30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590–0001.
Mr. Mike Huntley, Vehicle and Roadside Operations Division, Office of Bus and Truck Standards and Operations, Federal Motor Carrier Safety Administration, telephone: 202–366–5370;
To view comments submitted to previous rulemaking documents on this subject, go to
All comments received were posted without change to
FMCSA is making minor corrections to fix errors found in the final rule published on July 22, 2016. In § 393.11, the Agency corrects Footnote 11 of Table 1 to read “No rear license plate lamp is required on vehicles that do not display a rear license plate.” FMCSA inadvertently omitted the word “not” in this footnote.
The Agency corrects section 1.l.(4)(b) of Appendix G to Subchapter B of Chapter III, to read “only to the vehicle's stop lamp circuit.” FMCSA inadvertently omitted the phrase “vehicle's stop lamp circuit” in this section.
As noted in the final rule, the National Highway Traffic Safety Administration had extended the compliance date for antilock brake systems (ABS) on hydraulic braked vehicles from March 1, 1999, to September 1, 1999, but that action was limited to an extension of the malfunction indicator lamp requirement in S5.3.3(b) of FMVSS No. 105—and not for the general requirement to equip hydraulic-braked vehicles with ABS. As such, all hydraulic-braked vehicles were still expected to be equipped with ABS effective March 1, 1999. While FMCSA included footnotes to help explain the different effective dates for the various ABS requirements in the Appendix G periodic inspection requirements, those footnotes are amended and repositioned to accurately reflect the effective dates for the various ABS requirements in Appendix G.
Lastly, section 1.l.(5) is amended to note that it only applies to towed vehicles equipped with air brakes.
Highway safety, Motor carriers, Motor vehicle safety.
Accordingly, for reasons set forth in the preamble, FMCSA amends 49 CFR part 393 and appendix G to subchapter B of chapter III as follows:
49 U.S.C. 31136, 31151, and 31502; sec. 1041(b) of Pub. L. 102–240, 105 Stat. 1914, 1993 (1991); sec. 5524 of Pub. L. 114–94, 129 Stat. 1312, 1560; and 49 CFR 1.87.
Table 1 of § 393.11—Required Lamps and Reflectors on Commercial Motor Vehicles
Footnote—11 To be illuminated when headlamps are illuminated. No rear license plate lamp is required on vehicles that do not display a rear license plate.
1. Brake System
l. Antilock Brake System
(1) Missing ABS malfunction indicator components (
(2) ABS malfunction indicator that does not illuminate when power is first applied to the ABS controller (ECU) during initial power up.
(3) ABS malfunction indicator that stays illuminated while power is continuously applied to the ABS controller (ECU).
(4) ABS malfunction indicator lamp on a trailer or dolly does not cycle when electrical power is applied (a) only to the vehicle's constant ABS power circuit, or (b) only to the vehicle's stop lamp circuit.
(5) With its brakes released and its ignition switch in the normal run position, power unit does not provide continuous electrical power to the ABS on any air-braked vehicle it is equipped to tow.
(6) Other missing or inoperative ABS components.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; correction.
This action corrects two errors in the total allowable landing values specified in the final rule to implement Framework Adjustment 3 to the Northeast Skate Complex Fishery Management Plan published in the
Effective September 2, 2016.
William Whitmore, Fishery Policy Analyst, phone: 978–281–9182; email:
On August 17, 2016, we published a final rule for Framework Adjustment 3 to the Northeast Skate Complex Fishery Management Plan (81 FR 54744). That final rule included two errors in the 2016–2017 final specifications that are not consistent with the values included in Framework Adjustment 3 and the June 6, 2016, proposed rule (81 FR 36251). The specifications in Framework Adjustment 3 and its proposed rule are correct and will remain.
The final rule mistakenly stated that the skate complex total allowable landings (TAL) is 12,872 mt. A draft version of Framework 3 specified a TAL of 12,872 mt, but the TAL was later revised through an addendum to the Framework after the formula used to calculate the proportion of dead skate discards was revised. The correct skate TAL for fishing years 2016–2017 is 12,590 mt.
A typographical error for the Season 1 skate wing TAL was included in Table 1 of the final rule. This correction rule adjusts the Season 1 skate wing TAL from 4,722 mt to the correct value of 4,772 mt, as specified in the Framework 3 proposed rule.
In FR Doc. 2016–19601 appearing on page 54744 in the
1. On page 54744, in the third column, the first paragraph under
Specifications including the acceptable biological catch (ABC), annual catch limit (ACL), annual catch target (ACT), and total allowable landings (TALs) for the skate wing and bait fisheries, as well as possession limits, may be specified for up to 2 years. The 2016–2017 skate complex ABC and ACL is 31,081 metric tons (mt). After removing management uncertainty from the ABC, the ACT that remains is 23,311 mt. After removing discards and state landings from the ACT, the TAL that remains is 12,590 mt. Tables 1 and 2 (below) detail TALs and possession limits for the skate wing and skate bait fisheries—there are no possession limit changes from last year. These specifications and possession limits remain in effect until they are replaced.
2. On pages 54744 and 54745, Table 1 is corrected to read as follows:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; approval of quota transfer.
NMFS announces its approval of the State of North Carolina transferring a portion of its 2016 commercial bluefish quota to the State of New York. This approval of the quota complies with the Atlantic Bluefish Fishery Management Plan quota transfer provision. This announcement also informs the public of the revised commercial quotas for North Carolina and New York.
Effective September 1, 2016, through December 31, 2016.
Reid Lichwell, Fishery Management Specialist, (978) 281–9112.
Regulations governing the Atlantic bluefish fishery are found in 50 CFR 648.160 through 648.167. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from Maine through Florida. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.162.
The final rule implementing Amendment 1 to the Bluefish Fishery Management Plan published in the
New York and North Carolina have requested the transfer of 100,000 lb (45,359 kg) of Atlantic bluefish commercial quota from North Carolina
This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; adjustment to specifications.
We, NMFS, are adjusting the 2016 fishing year sub-annual catch limits for commercial groundfish vessels, including sector allocations based on the final Northeast multispecies sector rosters submitted as of May 1, 2016. The revisions to 2016 catch limits are necessary to account for changes in the number of participants electing to fish in either sectors or the common pool fishery. These adjustments are routine and formulaic, and are required to match allocations to sector enrollment.
Effective September 2, 2016, through April 30, 2017.
Aja Szumylo, Fishery Policy Analyst, (978) 281–9195.
We recently approved Framework Adjustment 55, which set annual catch limits for groundfish stocks and three jointly managed U.S./Canada stocks for the 2016 fishing year. This action became effective on May 1, 2016 (81 FR 26412). Framework 55 included allocations for the 19 sectors approved to operate in 2016 based on enrollment as of March 15, 2016. A sector receives an allocation of each stock, or annual catch entitlement (referred to as ACE, or allocation), based on its members' catch histories. State-operated permit banks also receive an allocation that can be transferred to qualifying sector vessels. The sum of all sector and state-operated permit bank allocations is referred to as the sector sub-annual catch limit (sub-ACL). The groundfish allocations remaining after sectors and state-operated permit banks receive their allocations are then allocated to the common pool (
This rule adjusts the 2016 fishing year sector and common pool allocations based on final sector membership as of May 1, 2016. Permits enrolled in a sector and the vessels associated with those permits have until April 30, the last day prior to the beginning of a new fishing year, to withdraw from a sector and fish in the common pool. As a result, the actual sector enrollment for the new fishing year is unknown when the final specifications are published and sector enrollment from an earlier date is used until final enrollment is known. Consistent with regulatory requirements, each year we subsequently publish an adjustment rule modifying sector and common pool allocations based on final sector enrollment. The Framework 55 proposed and final rules both explained that sector enrollments may change and that there would be a need to adjust the sub-ACLs and sector ACEs accordingly.
Adjustments to sector ACEs and the sub-ACLs for sectors and the common pool are typically minimal as there has been little change in sector enrollment since 2010. Vessels currently enrolled in sectors have accounted for approximately 99 percent of the historical groundfish landings. This year's sector final rule specified sector ACEs based on the 837 permits enrolled in sectors on March 15, 2016. As of May 1, 2016, there were 841 Northeast multispecies permits enrolled in sectors, which means four additional permits elected to join sectors for the 2016 fishing year. Tables 1, 2, and 3 explain the revised 2016 fishing year allocations. Table 4 compares the allocation changes between the Framework 55 final rule and this adjustment rule.
This rulemaking also corrects transcription errors in the 2016–2018 Southern New England/Mid-Atlantic (SNE/MA) yellowtail flounder ACLs published in the Framework 55 final rule. Specifically, there were errors in the total groundfish fishery sub-ACL, the sector and common pool sub-ACLs, and the scallop fishery sub-ACL. Table 5 presents both the incorrect values presented in the Framework 55 final rule, as well as the corrected values. Although the values were listed incorrectly in the Framework 55 final rule, the total fishery ACLs for SNE/MA yellowtail flounder (255 mt) were listed correctly for all three years. In addition, the Environmental Assessment and supporting analysis for Framework 55 included the correct values. These adjustments are minor, and will not affect fishery operations.
We have completed 2015 fishing year data reconciliation with sectors and determined final 2015 fishing year sector catch and the amount of allocation that sectors may carry over from the 2015 to the 2016 fishing year. With the exception of Georges Bank yellowtail flounder, a sector may carry over up to 10 percent of unused ACE for each stock from the end of 2015 to 2016. Table 6 includes the maximum amount of allocation that sectors may carry over from the 2015 to the 2016 fishing year. Because the amount of unused ACE combined with the overall sector sub-ACL may not exceed the acceptable biological catch (ABC) for each stock, the unused ACE is adjusted down when necessary to ensure the combined carryover of unused ACE and the sector sub-ACL do not exceed each stock's ABC.
Table 7 includes the
Common pool enrollment also changed after March 15, 2016, and also requires adjustments to applicable catch limits. The common pool sub-ACL for each stock (except for SNE/MA winter flounder, windowpane flounder, ocean
The NMFS Assistant Administrator has determined that this final rule is consistent with the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.
This action is exempt from the procedures of E.O. 12866 because this action contains no implementing regulations.
Pursuant to 5 U.S.C. 553(b)(3)(B), we find good cause to waive prior public notice and opportunity for public comment on the catch limit and allocation adjustments because allowing time for notice and comment is impracticable, unnecessary, and contrary to the public interest. We also find good cause to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become effective upon filing.
There are several reasons that notice and comment are impracticable, unnecessary, and contrary to the public interest. First, the proposed and final rules for Framework 55 explained the need and likelihood for adjustments of sector and common pool allocations based on final sector rosters. These adjustments are routine and formulaic, required by regulation, and necessary to match allocations to sector enrollment. No comments were received on the potential for these adjustments, which provide an accurate accounting of a sector's or common pool's allocation. Furthermore, we have followed a similar process since Amendment 16 was implemented in 2010; this annual adjustment action is anticipated by industry. Second, these adjustments are based on either objective sector enrollment data or a pre-determined accountability measure and are not subject to NMFS' discretion, so there would be no benefit to allowing time for prior notice and comment. Data regarding final sector enrollment only became available after rosters were finalized in May 2016. In addition, reconciliation of final 2015 fishing year sector catch was completed in August 2016. This information allows us to determine the amount of allocation that sectors may carry over from the 2015 to the 2016 fishing year, and it was not practicable to finalize this information sooner. If this rule is not effective immediately, the sector and common pool vessels will be operating under incorrect information on the catch limits for each stock for sectors and the common pool. This could cause confusion and negative economic impacts to the both sectors and the common pool, depending on the size of the allocation, the degree of change in the allocation, and the catch rate of a particular stock.
The catch limit and allocation adjustments are not controversial and the need for them was clearly explained in the proposed and final rules for Framework 55. Adjustments for overages are also explained in detail in the Amendment 16 proposed and final rules. As a result, Northeast multispecies permit holders are expecting these adjustments and awaiting their implementation. Fishermen may make both short- and long-term business decisions based on the catch limits in a given sector or the common pool. Any delays in adjusting these limits may cause the affected fishing entities to slow down, or speed up, their fishing activities during the interim period before this rule becomes effective. Both of these reactions could negatively affect the fishery and the businesses and communities that depend on them. Therefore, it is important to implement adjusted catch limits and allocations as soon as possible. For these reasons, we are waiving the public comment period and delay in effectiveness for this rule, pursuant to 5 U.S.C. 553(b)(3)(B) and (d), respectively.
Also, because advanced notice and the opportunity for public comment are not required for this action under the Administrative Procedure Act, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601,
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; inseason adjustment.
NMFS is adjusting the 2016 C seasonal apportionments of the total allowable catch (TAC) for pollock in the Gulf of Alaska (GOA) by re-apportioning unharvested pollock TAC in Statistical Areas 610, 620, and 630 of the GOA. This action is necessary to provide opportunity for harvest of the 2016 pollock TAC, consistent with the goals and objectives of the Fishery Management Plan for Groundfish of the Gulf of Alaska.
Effective 1200 hours, Alaska local time (A.l.t.), August 30, 2016, until 2400 hours A.l.t., December 31, 2016.
Josh Keaton, 907–586–7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council (Council) under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The annual pollock TACs in Statistical Areas 610, 620, and 630 of the GOA are apportioned among four seasons, in accordance with § 679.23(d)(2). Regulations at § 679.20(a)(5)(iv)(B) allow the underharvest of a seasonal apportionment to be added to subsequent seasonal apportionments, provided that any revised seasonal apportionment does not exceed 20 percent of the seasonal apportionment for a given statistical area. Therefore, NMFS is increasing the C season apportionment of pollock in Statistical Area 620 of the GOA to reflect the underharvest of pollock in those areas during the B season. In addition, any underharvest remaining beyond 20 percent of the originally specified seasonal apportionment in a particular area may be further apportioned to other statistical areas. Therefore, NMFS also is increasing the C season apportionment of pollock to Statistical Areas 610 and 630 based on the underharvest of pollock in Statistical Areas 620 of the GOA. These adjustments are described below.
The C seasonal apportionment of the 2016 pollock TAC in Statistical Area 610 of the GOA is 24,421 metric tons (mt) as established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016). In accordance with § 679.20(a)(5)(iv)(B), the Administrator, Alaska Region, NMFS (Regional Administrator), hereby increases the C season apportionment for Statistical Area 610 by 4,873 mt to account for the underharvest of the TAC in Statistical Areas 620 in the B season. This increase is in proportion to the estimated pollock biomass and is not greater than 20 percent of the C seasonal apportionment of the TAC in Statistical Area 610. Therefore, the revised C seasonal apportionment of the pollock TAC in Statistical Area 610 is 29,294 mt (24,421 mt plus 4,873 mt).
The C seasonal apportionment of the pollock TAC in Statistical Area 620 of the GOA is 15,404 mt as established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016). In accordance with § 679.20(a)(5)(iv)(B), the Regional Administrator hereby increases the C seasonal apportionment for Statistical Area 620 by 3,081 mt to account for the underharvest of the TAC in Statistical Areas 620 in the B season. This increase is not greater than 20 percent of the C seasonal apportionment of the TAC in Statistical Area 620. Therefore, the revised C seasonal apportionment of the pollock TAC in Statistical Area 620 is 18,485 mt (15,404 mt plus 3,081 mt).
The C seasonal apportionment of pollock TAC in Statistical Area 630 of the GOA is 19,822 mt as established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016). In accordance with § 679.20(a)(5)(iv)(B), the Regional Administrator hereby increases the C seasonal apportionment for Statistical Area 630 by 3,243 mt to account for the underharvest of the TAC in Statistical Areas 620 in the B season. This increase is in proportion to the estimated pollock biomass and is not greater than 20 percent of the C seasonal apportionment of the TAC in Statistical Area 630. Therefore, the revised C seasonal apportionment of pollock TAC in Statistical Area 630 is 23,065 mt (19,822 mt plus 3,243 mt).
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is 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 provide opportunity to harvest increased pollock seasonal apportionments. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 29, 2016.
The AA 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.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
U.S. Office of Special Counsel.
Notice of proposed rulemaking and related information collection activity.
The U.S. Office of Special Counsel (OSC) proposes to revise its regulations regarding the filing of complaints and disclosures with OSC, and also to update the prohibited personnel practice provisions. In accordance with the Paperwork Reduction Act of 1995, and implementing Office of Management and Budget (OMB) regulations, OSC has also requested approval from OMB for a new, dynamic electronic form to be used for filing complaints and disclosures. This new form will replace Forms OSC–11, OSC–12, and OSC–13, which were previously approved by OMB. Access to the new electronic form relevant to this proposed rule has been submitted to the OMB for review.
Written comments must be received by November 1, 2016. Note, however, that OMB is required to act on the collection of information discussed in this proposed rule between 30 and 60 days after this notice's publication in the
You may submit comments by any of methods listed below. Comments received may be posted to
•
• Office of Information and Regulatory Affairs, Office of Management and Budget, by email via:
• Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for OSC, New Executive Office Building, Room 10235, Washington, DC 20503.
Kenneth Hendricks, Associate General Counsel, U.S. Office of Special Counsel, by telephone at 202–254–3600, by facsimile at (202) 254–3711, or by email at
The proposed rule makes minor changes to the existing language in 5 CFR 1800.1(c)(1) through (5) and (d), and 1800.2(b)(1) and (2) by replacing references to, and information about, the old OSC forms with references to, and information about, forms established by OSC. The language in the proposed rule refers to forms established by OSC, and it covers the new form that OSC submitted to OMB for approval. The proposed rule will enable us to revise our forms in the future, while still providing for public notice and OMB's review of future revisions. The proposed rule also updates the prohibited personnel practice provisions, at 5 CFR 1800.1(a)(13), based on the requirements of 5 U.S.C. 2302(b)(13) regarding nondisclosure forms, policies, or agreements. Comments are invited on the proposed rule and the new form.
OSC is an independent agency responsible for, among other things, (1) investigation of allegations of prohibited personnel practices defined by law at 5 U.S.C. 2302(b), protection of whistleblowers, and certain other illegal employment practices under titles 5 and 38 of the U.S. Code, affecting current or former Federal employees or applicants for employment, and covered state and local government employees; and (2) the interpretation and enforcement of Hatch Act provisions on political activity in chapters 15 and 73 of title 5 of the U.S. Code.
Filing of complaints and allegations.
For the reasons stated in the preamble, OSC proposes to revise 5 CFR part 1800 as follows:
5 U.S.C. 1212(e).
(a)
(1) Discrimination, including discrimination based on marital status or political affiliation (see § 1810.1 of this chapter for information about OSC's deferral policy);
(2) Soliciting or considering improper recommendations or statements about individuals requesting, or under consideration for, personnel actions;
(3) Coercing political activity, or engaging in reprisal for refusal to engage in political activity;
(4) Deceiving or obstructing anyone with respect to competition for employment;
(5) Influencing anyone to withdraw from competition to improve or injure the employment prospects of another;
(6) Granting an unauthorized preference or advantage to improve or injure the employment prospects of another;
(7) Nepotism;
(8) Reprisal for whistleblowing (whistleblowing is generally defined as the disclosure of information about a Federal agency by an employee or applicant who reasonably believes that the information shows a violation of any law, rule, or regulation; gross mismanagement; gross waste of funds; abuse of authority; or a substantial and specific danger to public health or safety);
(9) Reprisal for:
(i) Exercising certain appeal rights;
(ii) Providing testimony or other assistance to persons exercising appeal rights;
(iii) Cooperating with the Special Counsel or an Inspector General; or
(iv) Refusing to obey an order that would require the violation of law;
(10) Discrimination based on personal conduct not adverse to job performance;
(11) Violation of a veterans' preference requirement;
(12) Taking or failing to take a personnel action in violation of any law, rule, or regulation implementing or directly concerning merit system principles at 5 U.S.C. 2301(b); and
(13) Implementing or enforcing nondisclosure policies, forms, or agreements that do not contain the statement required by 5 U.S.C. 2302(b)(13).
(b)
(1) Violation of the Federal Hatch Act at title 5 of the U.S. Code, chapter 73, subchapter III;
(2) Violation of the state and local Hatch Act at title 5 of the U.S. Code, chapter 15;
(3) Arbitrary and capricious withholding of information prohibited under the Freedom of Information Act at 5 U.S.C. 552 (except for certain foreign and counterintelligence information);
(4) Activities prohibited by any civil service law, rule, or regulation, including any activity relating to political intrusion in personnel decision making;
(5) Involvement by any employee in any prohibited discrimination found by any court or appropriate administrative authority to have occurred in the course of any personnel action (unless the Special Counsel determines that the allegation may be resolved more appropriately under an administrative appeals procedure); and
(6) Violation of uniformed services employment and reemployment rights under 38 U.S.C. 4301,
(c)
(2) Forms filed in connection with allegations of reprisal for whistleblowing must identify:
(i) Each disclosure involved;
(ii) The date of each disclosure;
(iii) The person to whom each disclosure was made; and
(iv) The type and date of any personnel action that occurred because of each disclosure.
(3) Except for complaints limited to alleged violation(s) of the Hatch Act, OSC will not process a complaint filed
(4) The OSC Form is available:
(i) Online, at:
(ii) By calling OSC, at: (800) 872–9855 (toll-free), or (202) 653–7188 (in the Washington, DC area); or
(iii) By writing to OSC, at: U.S. Office of Special Counsel, Complaints Examining Unit, 1730 M Street NW., Suite 218, Washington, DC 20036–4505.
(5) A complainant can file a completed Form with OSC by any of the following methods:
(i)
(ii)
(iii)
(d)
(i) The complainant's name, mailing address, telephone number, and a time when OSC can contact that person about his or her complaint (unless the matter is submitted anonymously);
(ii) The department or agency, location, and organizational unit complained of; and
(iii) A concise description of the actions complained about, names and positions of employees who took the actions, if known to the complainant, and dates of the actions, preferably in chronological order, together with any documentary evidence that the complainant can provide.
(2) The OSC Form for filing a complaint is available as described in paragraphs (c)(4)(i) through (iii) of this section.
(3) A written Hatch Act complaint can be filed with OSC by any of the methods listed in paragraphs (c)(5)(i) through (iii) of this section.
(a)
(b)
(1) Filers are encouraged to use the Form established by OSC to file a disclosure of the type of information described in paragraph (a) of this section with OSC. The Form provides more information about OSC jurisdiction, and procedures for processing whistleblower disclosures. The Form is available:
(i) Online, at:
(ii) By calling OSC, at: (800) 572–2249 (toll-free), or (202) 653–9125 (in the Washington, DC area); or
(iii) By writing to OSC, at: U.S. Office of Special Counsel, Disclosure Unit, 1730 M Street NW., Suite 218, Washington, DC 20036–4505.
(2) Filers may use another written format to submit a disclosure to OSC, but the submission should include:
(i) The name, mailing address, and telephone number(s) of the person(s) making the disclosure(s), and a time when OSC can contact that person about his or her disclosure;
(ii) The department or agency, location and organizational unit complained of; and
(iii) A statement as to whether the filer consents to disclosure of his or her identity by OSC to the agency involved, in connection with any OSC referral to that agency.
(3) A disclosure can be filed in writing with OSC by any of the following methods:
(i) Electronically, at:
(ii) By fax, to: (202) 653–5151; or
(iii) By mail, to: U.S. Office of Special Counsel, Disclosure Unit, 1730 M Street NW., Suite 218, Washington, DC 20036–4505.
Securities and Exchange Commission.
Notice of intent to issue order.
The Securities and Exchange Commission (“Commission” or “SEC”) intends to issue an order pursuant to section 206 of the Investment Advisers Act of 1940 (the “Advisers Act”) and rule 206(4)–5 thereunder (the “SEC Pay to Play Rule”) finding that the Municipal Securities Rulemaking Board (“MSRB”) rule G–37 (the “MSRB Pay to Play Rule”) imposes substantially equivalent or more stringent restrictions on municipal advisors than the SEC Pay to Play Rule imposes on investment advisers and is consistent with the objectives of the SEC Pay to Play Rule.
Hearing requests should be received by the Commission by 5:30 p.m. on September 19, 2016.
Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
Sirimal R. Mukerjee, Senior Counsel, Melissa Roverts Harke, Senior Special Counsel, or Sara Cortes, Assistant Director, at (202) 551–6787 or
An order will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary. Hearing requests should be received by the Commission by 5:30 p.m. on September 19, 2016. Pursuant to rule 0–5 under the Advisers Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and
The Commission intends to issue an order under the Advisers Act.
The Commission adopted the SEC Pay to Play Rule [17 CFR 275.206(4)–5] under the Advisers Act [15 U.S.C. 80b] to prohibit an investment adviser from providing advisory services for compensation to a government client for two years after the adviser or certain of its executives or employees (“covered associates”) make a contribution to certain elected officials or candidates.
Rule 206(4)–5 became effective on September 13, 2010 and the compliance date for the third-party solicitor ban was set to September 13, 2011.
On December 16, 2015, the MSRB filed with the Commission proposed amendments to the MSRB Pay to Play Rule to extend its application to municipal advisors, which the Commission published for notice and comment on December 23, 2015 pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the “Exchange Act”) and rule 19b–4 thereunder.
Pursuant to section 206 of the Advisers Act and rule 206(4)–5(f)(9)(iii)(B) thereunder, the Commission is providing notice
• Prohibit a municipal advisor from engaging in municipal advisory business with a municipal entity for two years, subject to exceptions, following the making of a contribution to certain officials of the municipal entity by the municipal advisor, a municipal advisor professional of the municipal advisor, or a political action committee controlled
• Prohibit municipal advisors and municipal advisor professionals from soliciting contributions, or coordinating contributions, to certain officials of a municipal entity with which the municipal advisor is engaging, or seeking to engage, in municipal advisory business;
• Prohibit municipal advisors and certain municipal advisor professionals from soliciting payments, or coordinating payments, to political parties of states and localities with which the municipal advisor is engaging in, or seeking to engage in, municipal advisory business;
• Prohibit municipal advisors and municipal advisor professionals from committing indirect violations of the MSRB Pay to Play Rule;
• Extend applicable interpretive guidance under the existing MSRB pay to play rule to municipal advisors;
• Include a new defined term (“municipal advisor third-party solicitor”) for municipal advisors that undertake a solicitation of a municipal entity on behalf of a third-party dealer, municipal advisor or investment adviser. Certain aspects of the rule will apply to this distinct type of municipal advisor.
The Commission believes that the rule imposes substantially equivalent or more stringent restrictions on municipal advisors than rule 206(4)–5 imposes on investment advisers and would be consistent with the objectives of rule 206(4)–5.
By the Commission.
Securities and Exchange Commission.
Notice of intent to issue order.
The Securities and Exchange Commission (“Commission” or “SEC”) intends to issue an order pursuant to section 206 of the Investment Advisers Act of 1940 (the “Advisers Act”) and rule 206(4)–5 thereunder (the “SEC Pay to Play Rule”) finding that Financial Industry Regulatory Authority (“FINRA”) rule 2030 (the “FINRA Pay to Play Rule”), which was approved by the Commission on August 25, 2016, imposes substantially equivalent or more stringent restrictions on brokers-dealers than the SEC Pay to Play Rule imposes on investment advisers and is consistent with the objectives of the SEC Pay to Play Rule.
Hearing requests should be received by the Commission by 5:30 p.m. on September 19, 2016.
Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
Sirimal R. Mukerjee, Senior Counsel, Melissa Roverts Harke, Senior Special Counsel, or Sara Cortes, Assistant Director, at (202) 551–6787 or
An order will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary. Hearing requests should be received by the Commission by 5:30 p.m. on September 19, 2016. Pursuant to rule 0–5 under the Advisers Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
The Commission intends to issue an order under the Advisers Act.
The Commission adopted the SEC Pay to Play Rule [17 CFR 275.206(4)–5] under the Advisers Act [15 U.S.C. 80b] to prohibit an investment adviser from providing advisory services for compensation to a government client for two years after the adviser or certain of its executives or employees (“covered associates”) make a contribution to certain elected officials or candidates.
Rule 206(4)–5 became effective on September 13, 2010 and the compliance date for the third-party solicitor ban was set to September 13, 2011.
On December 16, 2015, FINRA filed with the Commission the proposed rule change relating to the FINRA Pay to Play Rule, which the Commission published for notice and comment in the
Pursuant to section 206 of the Advisers Act and rule 206(4)–5(f)(9)(ii)(B) thereunder, the Commission is providing notice
• Prohibits a covered member from engaging in distribution or solicitation activities for compensation with a government entity on behalf of an investment adviser that provides or is seeking to provide investment advisory services to such government entity within two years after a contribution to an official of the government entity is made by the covered member or a covered associate (including a person who becomes a covered associate within two years or, under certain circumstances, six months after the contribution is made);
• Prohibits a covered member or covered associate from coordinating or soliciting any person or political action committee to make any (i) contribution to an official of a government entity in respect of which the covered member is engaging in, or seeking to engage in, distribution or solicitation activities on behalf of an investment adviser or (ii) payment to a political party of a state or locality of a government entity with which the covered member is engaging in, or seeking to engage in, distribution or solicitation activities on behalf of an investment adviser;
• Provides that it shall be a violation of the rules for any covered member or any of its covered associates to do anything indirectly that, if done directly, would result in a violation of the rule;
• Provides that a covered member that engages in distribution or solicitation activities with a government entity on behalf of a covered investment pool in which a government entity invests or is solicited to invest shall be treated as though the covered member was engaging in or seeking to engage in distribution or solicitation activities with the government entity on behalf of the investment adviser to the covered investment pool directly; and
• Provides exceptions under, and an exemption provision in respect of, the rule similar to those in rule 206(4)–5.
The Commission believes that the rule imposes substantially equivalent or more stringent restrictions on broker-dealers than rule 206(4)–5 imposes on investment advisers and would be consistent with the objectives of rule 206(4)–5.
By the Commission.
Office of the Under Secretary of Defense for Personnel and Readiness, DoD.
Proposed rule.
This rule establishes policy, assigns responsibilities, and provides procedures for personal commercial solicitation on DoD installations, and identifies prohibited practices that may cause withdrawal of personal commercial solicitation privileges on DoD installations and establishes notification requirements when privileges are withdrawn.
Comments must be received by November 1, 2016.
You may submit comments, identified by docket number or Regulatory Information Number (RIN) number and title, by any of the following methods:
•
•
Jane Westbay, 703–588–0953.
DoD is establishing regulations governing access to DoD installations for purposes of commercial solicitation. This rule is needed to establish the procedures applicable to requests for personal commercial solicitors on DoD installations and identifies prohibited practices that may cause withdrawal of permission for such access.
Section 577 of Public Law 109–163, “The National Defense Authorization Act for Fiscal Year 2006,” requires DoD to prescribe regulations on policies and procedures for personal commercial solicitation on DoD installations. In addition, Public Law 109–290, “Military Personnel Financial Services Protection Act,” specifies requirements for engaging military personnel in the sale of insurance, financial, and investment products.
This rule informs commercial companies, agencies, and agents about the procedures for personal commercial solicitation activities on DoD installations. These procedures include the limitations on commercial solicitation by educational institutions, associations, and companies offering life insurance products and securities on DoD installations. The supervision of installation personal commercial solicitation activities; prohibited practices; advertising and commercial sponsorship; financial education programs; overseas life insurance registration procedures; and denial, suspension, and withdrawal of installation solicitation privileges are also discussed in this rule.
In recent years, some financial educational institutions have attempted to gain access to installations for marketing purposes, even though they are not approved to operate as an educational institution (or school) on the installation. By including them as a regulated commercial solicitor, DoD aims to prevent circumvention of the system, which will ultimately help protect Service members from unscrupulous advertising and business practices that may harm them.
This rule has minimal administrative costs to DoD for overseas life insurance registration as well as quarterly solicitation privileges reporting. There is no cost to the public and no cost to solicitors. The rule prevents circumvention of the system that is in place by prohibiting new commercial solicitors from advertising on an installation through a separate agreement with an organization that is already authorized to operate on the installation (
Executive Orders 13563 and 12866 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, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. It has been determined that this rule is not a significant regulatory action. The rule does not: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive Orders.
Section 1532 of title 2, U.S. Code, of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104–4) requires agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2014, that threshold is approximately $141 million. This rule will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.
The Department of Defense certifies that this proposed rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.
It has been certified that 32 CFR part 50 does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This proposed rule will not have a substantial effect on State and local governments.
Consumer protection, Federal buildings and facilities, Government employees, Life insurance, Military personnel.
Accordingly, 32 CFR part 50 is proposed to be revised to read as follows:
Section 577 of Public Law 109–163, Public Law 109–290.
This part:
(a) Establishes policy, assigns responsibilities, and provides procedures for personal commercial solicitation on DoD installations in accordance with the authority in Section 577 of Public Law 109–163, “The National Defense Authorization Act for Fiscal Year 2006.”
(b) Identifies prohibited practices that may cause withdrawal of personal commercial solicitation privileges on DoD installations and establishes notification requirements when privileges are withdrawn.
(a) Applies to Office of the Secretary of Defense, the Military Departments, the Office of the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the DoD (referred to collectively in this part as the “DoD Components.”)
(b) Applies to all personal commercial solicitation on DoD installations, whether conducted individually or in conjunction with meetings on DoD installations involving private, nonprofit, tax-exempt organizations or educational institutions providing educational programs and services through the DoD Voluntary Education Program. Attendance at these meetings is voluntary and the time and place of such meetings are subject to the discretion of the installation commander or his or her designee.
(c) Does not apply to services furnished by residential service companies, such as deliveries of milk, laundry, newspapers, and related services, to personal residences on the installation requested by the resident and authorized by the installation commander.
These terms and their definitions are for the purpose of this part.
It is DoD policy that:
(a) This part will establish uniform rules for conducting all personal commercial solicitation on DoD installations to safeguard and promote the welfare of DoD personnel as consumers. Agents, agencies, and companies failing to follow the policy in this part may be restricted or denied the opportunity to solicit on installations.
(b) Life insurance agents must register annually with the DoD to sell their products on DoD installations overseas.
(c) Educational institutions authorized to provide education, guidance, and training opportunities or participate in education fairs on DoD installations, must comply with federal law, DoD Instruction 1322.19, “Voluntary Education Programs in Overseas Areas” (available at
(d) Installation commanders will approve or prohibit any personal commercial solicitation covered by this part. Nothing in this part limits an installation commander's inherent authority to deny access to vendors or to establish time and place restriction on personal commercial solicitation activities at the installation.
(e) Nothing in this part limits the authority of the installation commander or other appropriate authority to request or institute administrative or criminal action against any person, including those who violate the conditions and restrictions upon which installation entry is authorized.
(a) Under the authority, direction, and control of the Under Secretary of Defense for Personnel and Readiness (USD(P&R)), and in accordance with DoD Directive 5124.09, “Assistant Secretary of Defense for Readiness and Force Management (ASD(R&FM))” (available at
(1) Identifies and publishes procedures implementing the policies in this part.
(2) Maintains the current master file on agents, agencies, and companies whose personal commercial solicitation privileges have been withdrawn at any DoD installation.
(3) Develops and maintains a list of all State insurance commissioner points of contact for DoD matters and forwards this list to the Military Departments.
(4) Reviews and approves applications for the Overseas Life Insurance Registration Program, as outlined in Appendix B of this part.
(b) The DoD Component heads:
(1) Ensure implementation of this part on installations under their authority and compliance with its provisions.
(2) Require installations under their authority to report each instance of withdrawal of personal commercial solicitation privileges.
(3) Submit the Solicitation Privileges Report, listing all agents, agencies, and
(a)
(1) The solicitor is licensed under applicable federal, State, or municipal laws where the installation is located and has complied with installation regulations pursuant to Section 8 of Public Law 109–290, “Military Personnel Financial Services Protection Act.”
(2) The solicitor is entering the installation to attend a specific prearranged appointment with an individual, either in family quarters or another designated business appointment area.
(3) Agents must identify themselves as working for a specific agency or company when scheduling their appointments with DoD personnel. Insurance agents must identify their agency and insurers. Securities agents must identify their registered brokers, dealers, or investment advisors.
(4) Each scheduled meeting is conducted only in family quarters or in other areas designated by the installation commander.
(5) The solicitor agrees to provide each person solicited a copy of DD Form 2885, “Personal Commercial Solicitation Evaluation,” (located on the DoD Forms Management Program Web site at
(6) The solicitor agrees to provide DoD personnel with a written reminder that free legal advice is available from the Office of the Staff Judge Advocate prior to accepting a financial commitment.
(7) If overseas, solicitors also observe the applicable laws of the host country. Upon request, the solicitor must present documentation to the installation commander that the agency or company the solicitor represents, and its agents, meet the applicable licensing requirements of the host country.
(b)
(2) Educational institutions wishing to provide education, guidance, and training opportunities or participate in educational fairs on a DoD installation must obtain access approval from the installation education advisor, who will review and analyze requests on behalf of the installation commander. The installation education advisor and installation commander, in consultation with the installation's servicing ethics counselor, will approve requests in accordance with Sections 3–200, 3–206, and 3–211 of DoD 5500.07–R, “Joint Ethics Regulation (JER)” (available at
(3) Only educational institutions participating in the Voluntary Education Program at DoD installations worldwide (to include enduring and contingency locations) may conduct or provide any type of education programs and services at those locations. The educational institutions must obtain access approval through the installation education advisor, or, for overseas locations, the contracting officer representative.
(c)
(d)
(2) Installation commanders may permit insurers and their agents to solicit on DoD installations if the requirements of paragraph (a) of this section are met. Installation commanders will verify the agent's license status and complaint history with the appropriate regulatory authorities before granting the agent permission to solicit on the installation.
(3) Before approving life insurance products and securities agents' requests for permission to solicit, installation commanders will review the Solicitation Privileges Report at
(4) Installation commanders will make disinterested third-party insurance counseling available to any DoD personnel desiring counseling. Financial counselors will encourage DoD personnel to seek legal assistance or other advice from a disinterested third party before entering a contract for life insurance products or securities.
(e) Supervision of installation personal commercial solicitation activities. Installation commanders will:
(1) Designate authorized business appointment areas on the installation. Use of these areas will be extended to all solicitors on an equitable basis. The installation commander may develop and publish local policy for the reservation and use of this area, especially where space and other considerations limit availability.
(2) Post installation personal commercial solicitation regulations in an easily accessible location for those conducting and receiving personal commercial solicitation on the installation.
(3) Provide the following to anyone conducting personal commercial solicitation activities on the installation:
(i) A copy of installation personal commercial solicitation regulations.
(ii) A warning that failure to follow installation personal commercial solicitation regulations may result in the loss of personal commercial solicitation privileges.
(4) The installation commander will investigate alleged violations of this part and installation personal commercial solicitation regulations, or questionable solicitation practices. Submitted DD Form 2885s are used as a means to monitor solicitation activities on the installation and bring potential violations to the attention of the command.
(f)
(i) Soliciting recruits, trainees, and transient personnel in a group setting or mass audience or solicitation of any DoD personnel in a captive audience where attendance is not voluntary.
(ii) Meeting with or soliciting DoD personnel during their normally scheduled duty hours.
(iii) Soliciting in barracks, day rooms, unit areas, transient personnel housing, or other areas where the installation commander has not authorized solicitation.
(iv) Gaining access to DoD installations with DoD or uniform service identification cards or DoD vehicle decals, for the purpose of soliciting, without presenting installation solicitation authorization documentation.
(v) Procuring, attempting to procure, supplying, or attempting to supply non-public listings of DoD personnel for purposes of personal commercial solicitation, except for releases made in accordance with 32 CFR part 285.
(vi) Offering unfair, improper, or deceptive inducements to purchase or trade.
(vii) Using promotional incentives to facilitate transactions or eliminate competition.
(viii) Using manipulative, deceptive, or fraudulent devices, schemes, or artifices, including misleading advertising and sales literature. All financial products that contain insurance features must clearly explain the insurance features of those products.
(ix) Using oral or written representations to suggest or give the appearance that the DoD sponsors or endorses any particular agency, company, its agents, or the goods, services, and commodities it sells.
(x) Soliciting to DoD personnel who are junior in rank or grade, or to the family members of such personnel, except as authorized in Sections 2–205 and 5–409 of DoD 5500.07–R.
(xi) Entering an unauthorized or restricted area.
(xii) Using any portion of installation facilities, including quarters, as a showroom or store for the sale of goods or services, except as specifically authorized by DoD Instruction 1330.09, “Armed Services Exchange Policy” (available at
(xiii) Soliciting door to door or without an appointment.
(xiv) Using the following without authorization for personal commercial solicitation or advertising on the installation:
(A) Personal addresses or telephone numbers.
(B) Official positions, titles, or organization names, except as authorized in DoD 5500.07–R. Military grade and military service as part of an individual's name (
(xv) Contacting DoD personnel by way of a government telephone, government fax machine, government computer, or any other government communication device unless a pre-existing relationship exists between the parties (
(2) In addition to the solicitation prohibitions listed in paragraph (f)(1) of this section, the DoD Components will prohibit:
(i) DoD personnel from representing any insurer; dealing directly or indirectly on behalf of any insurer or any recognized representative of any insurer on the installation; or, acting as an agent or in any official or business capacity, with or without compensation.
(ii) Agents from:
(A) Participating in any Military Department-sponsored education or orientation program.
(B) Using any title that states or implies any type of endorsement from the U.S. Government, the Military Departments, or any State or federal agency or government entity (
(C) Using desk space for anything other than a specific prearranged appointment. During such appointment, the agent will not be permitted to display desk signs or other materials announcing his or her name or agency or company affiliation.
(D) Using an installation daily bulletin, marquee, newsletter, Web page, or other official notice to announce his or her presence or availability.
(g) Denial, suspension, and withdrawal of installation solicitation privileges.
(1) The installation commander will deny, suspend, or withdraw permission for an agency or company or its agents to conduct personal commercial solicitation activities on the installation if such action is in the best interests of the command. The grounds for taking these actions may include, but are not limited to:
(i) Failure to meet the licensing and other regulatory requirements prescribed throughout this part, or violations of the State law where the installation is located. Commanders will request that appropriate State officials determine whether an agency, company or agent violated State law.
(ii) Engaging in any prohibited practice in paragraph (f) of this section.
(iii) Substantiated complaints or adverse reports regarding the quality of goods, services, or commodities, and the manner in which they are offered for sale.
(iv) Knowing and willful violations of 15 U.S.C. 1601 with regard to use of consumer credit and personal property leases.
(v) Knowing and willful violations of Public Law 109–290 with regard to financial services.
(vi) Personal misconduct while on the installation.
(vii) Possession or any attempt to obtain supplies of or use direct deposit forms or any other form or device used by Military Departments to direct a Service member's pay to a third party. This includes using a Service member's “MyPay” account or other similar internet medium for the purpose of establishing a direct deposit for the purchase of insurance or other investment products.
(viii) Failure to incorporate and abide by the standards of fairness policies contained in DoD Instruction 1344.09, “Indebtedness of Military Personnel” (available at
(2) Personal commercial solicitation privileges may be immediately suspended while an investigation is conducted, at the discretion of the installation commander. Upon suspending solicitation privileges, the installation commander will promptly inform the agent and the agency or company the agent represents, in writing.
(3) The installation commander will determine whether to suspend or withdraw personal commercial solicitation privileges to the agent alone or extend it to the agency or company the agent represents. This decision is based on the circumstances of the particular case, including, but not limited to:
(i) The nature and frequency of the violations.
(ii) Whether other agents of the agency or company have engaged in such practices.
(iii) Any other matters showing the culpability of an agent, the agency, or the company.
(4) If the investigation determines an agent, agency, or company does not possess a valid license or the agent, agency, company, or product has failed to meet other State or federal regulatory requirements, the installation commander will immediately notify the appropriate regulatory authorities.
(5) In a withdrawal action, the commander will:
(i) Allow the agent, agency, or company an opportunity to show cause as to why the action should not be taken.
(ii) Make a final decision regarding withdrawal based upon the entire record in each case.
(6) The installation commander will report to his or her Military Department concerns or complaints involving the quality or suitability of products or concerns or complaints involving marketing methods used to sell those products.
(7) The installation commander will report any withdrawal of insurance product or securities solicitation privileges to the appropriate regulatory authorities.
(8) The installation commander will inform their Military Department of any withdrawal or reinstatement of an agent, agency, or company's personal commercial solicitation privileges and, if warranted, may recommend extending that action to other DoD installations.
(i) The Secretary of the Military Department concerned will inform the USD(P&R) immediately of the withdrawal or reinstatement and may extend the action to other military installations in that Department.
(ii) USD(P&R) will maintain a list of companies, agencies, and agents whose privileges have been withdrawn on any or all DoD installations. At a minimum, USD(P&R) will request review of the Solicitation Privileges Report from the Military Departments during the last month of each fiscal quarter. This list may be viewed at
(9) Withdrawal of privileges may be permanent or for a set period of time. If for a set period, the agent, agency, or company may reapply for permission to solicit through the installation commander or Military Department originally imposing the restriction when that period expires. The installation commander or Military Department reinstating permission to solicit will notify the USD(P&R) and appropriate State and federal regulatory agencies when such suspensions or withdrawals are lifted.
(10) The Secretaries of the Military Departments may direct the Armed Forces Disciplinary Control Boards in all geographical areas in which the grounds for withdrawal action have occurred to consider all applicable information and take action the Boards deem appropriate.
(h)
(2) The advertising of credit terms will conform to the provisions of 15 U.S.C. 1601 as implemented by Federal Reserve Board Regulation Z, in accordance with 12 CFR part 226.
(3) Personal commercial solicitors may provide commercial sponsorship to DoD MWR programs or events in accordance with DoD Instruction 1015.10. However, sponsorship may not be used as a means to obtain personal contact information for any participant at these events without written permission from the individual participant. Additionally, commercial sponsors may not use sponsorship to advertise products or services not specifically agreed to in the sponsorship agreement.
(4) Commercial sponsorship program personnel must obtain concurrence of the installation education advisor prior to accepting sponsorship from educational institutions. The installation educational advisor will ensure that all educational institutions desiring to serve as an MWR program or event sponsor meet the minimum eligibility requirements to enter into a Voluntary Education Partnership memorandum of understanding (MOU) with the DoD, as set forth in Enclosure 3 of DoD Instruction 1322.25, although such an MOU does not need to be in place. Additionally, if an educational institution enters into a partnership or agreement with a non-federal entity through an arrangement such as sponsorship or donation, the educational institution is not authorized to market on the installation or provide promotional items through that partnership or agreement. Only educational institutions participating in an education fair and granted access to the installation in accordance with DoD Instruction 1322.25 may provide promotional items on the installation during the education fair event.
(5) The installation commander may permit organizations to display sales literature in designated locations, subject to command policies. In accordance with Volume 5 of DoD 7000.14–R, “Department of Defense Financial Management Regulations (FMRS)” (available at
(i)
(i) Ensure that all instructors are qualified as appropriate for the subject matter presented. See paragraphs (i)(3) and (i)(4) of this section for guidance on using on-base financial institutions or other non-government organization resources for financial education purposes.
(ii) Make qualified personnel and facilities available for individual counseling on loans and consumer credit transactions in order to encourage thriftiness and financial responsibility and promote a better understanding of the wise use of credit, as prescribed in Chapter 34 of Volume 5 of DoD 7000.14–R.
(iii) Encourage Service members to seek advice from a legal assistance officer, the installation financial counselor, their own lawyers, or a financial counselor before making a substantial loan or credit commitment.
(iv) Provide advice and guidance to DoD personnel who have a complaint pursuant to DoD Instruction 1344.09 or who allege a criminal violation of its provisions, including referral to the appropriate regulatory agency for processing of the complaint.
(2) On-base financial institutions must provide financial counseling services as an integral part of their financial services offerings.
(3) Representatives of and materials provided by on-base financial institutions may be used to provide the financial education programs and information required by this part, subject to the following conditions:
(i) If the on-base financial institution sells insurance products or securities or has any affiliation with an agency or company that sells or markets insurance or other financial products, the installation commander will consider that agency's or company's history of complying with this part before authorizing the on-base financial institution to provide financial education.
(ii) On-base financial institution educators must agree to use appropriate disclaimers in their presentations and other educational materials. The disclaimers must clearly indicate that the educators do not endorse or favor any commercial supplier, product, or service or promote the services of a specific financial institution.
(4) Use of other non-government organizations to provide financial education programs is limited as follows:
(i) Under no circumstances will commercial agents, including employees or representatives of commercial loan, finance, insurance, or investment companies, be used.
(ii) The limitation in paragraph (i)(4)(i) of this section does not apply to educational programs and information regarding the Survivor Benefits Program. It also does not apply to government benefits provided by tax-exempt organizations pursuant to 26 U.S.C. 501(c) or by organizations providing government benefits under a contract with the government.
(iii) Expert educators in personal financial affairs from non-government, non-commercial organizations may provide the financial education programs and information required by this part. The presentations and materials used by the educators must contain appropriate disclaimers demonstrating no endorsement of the organization by DoD or the Military Departments concerned. Such expert educators and their materials must be approved by a Presidentially appointed, Senate-confirmed (PAS) official of the Military Department concerned. The initial approval will last for three years; reauthorization for additional three-year periods is subject to review by such a PAS official that a continued need exists for the organization's services. The Military Department will use the following criteria when considering whether to permit a non-government, non-commercial organization to present a financial education program or provide materials on personal financial affairs:
(A) The organization must qualify as a tax-exempt organization in accordance with paragraph (c)(3) or (c)(23) of 26 U.S.C. 501.
(B) If the organization has any affiliation with an agency or company that sells or markets insurance or other financial products, the approval authority will consider that agency's or company's history of complying with this part.
(C) Non-government organization educators must agree to use appropriate disclaimers in their presentations and other educational materials which clearly indicate that they and the DoD do not endorse or favor any commercial supplier, product, or service or promote the services of a specific financial institution.
(iv) Presentations by approved non-government, non-commercial organizations will be conducted only at the express request of the installation commander.
(v) Any educational institutions providing financial education programs must be approved by the installation education advisor and meet the criteria outlined in Enclosure 3 of DoD Instruction 1322.25 for offering educational programs on base.
(a) Life insurance product content prerequisites. In addition to the required disclosures listed in Section 10 of Public Law 109–290, the following prerequisites apply to the sale of life insurance products to Service members and their families on DoD installations:
(1) Life insurance agencies and companies must provide a written description for each product or service they intend to market.
(i) Descriptions must be written in plain language and must fully disclose the fundamental nature of the policy.
(ii) All forms to be used must be approved by and filed with the insurance department of the State where the installation is located, where applicable.
(iii) Life insurance products marketed on overseas installations must conform to the standards prescribed by the laws of the State where the agency or company is domiciled.
(2) Life insurance products offered and sold worldwide, other than certificates or other evidence of insurance issued by a self-insured association, must:
(i) Comply with the insurance laws of the State or country in which the installation is located and the requirements of this part.
(ii) Contain no restrictions by reason of the insured's military service or military occupational specialty, unless such restrictions are clearly indicated on the face of the contract.
(iii) Plainly indicate any extra premium charges imposed by reason of the insured's military service or military occupational specialty.
(iv) Contain no variation in the amount of death benefit or premium based on the length of time the contract has been in force, unless all such variations are clearly described in the contract.
(3) Life insurance policies must be written in plain language and use type font large enough to be easily read; all provisions of the policy must be in a font type that is at least as large as the font used for the majority of the policy. The policies must inform Service members of:
(i) The availability and cost of government-subsidized Servicemen's Group Life Insurance.
(ii) The address and phone number where consumer complaints are received by the State Insurance Commissioner for the State in which the insurance product is being sold. For policies sold overseas, the disclosure must include the address and phone number where the state insurance commissioner for the State which has issued the agent a resident license or where the agency or company is domiciled receives consumer complaints, as applicable.
(iii) That the U.S. Government has in no way sanctioned, recommended, or encouraged the sale of the product being offered.
(4) To comply with paragraphs (a)(2)(ii), (a)(2)(iii), and (a)(2)(iv) of this appendix, an appropriate reference stamped on the first page of the contract will draw the attention of the policyholder to any restrictions by reason of the insured's military service or military occupational specialty. The reference will describe any extra premium charges and any variations in the amount of death benefit or premium based upon the length of time the contract has been in force.
(5) Variable life insurance products may be offered by appropriately licensed insurance agents or securities dealers, provided the products meet the criteria of the appropriate insurance regulatory agency and the Securities and Exchange Commission.
(6) Life insurance products will not be marketed or sold disguised as investments. If there is a savings component to a life insurance product, the agent will provide the customer written documentation which clearly explains how much of the premium goes to the savings component per year, broken down over the life of the policy. This document also must show the total amount per year allocated to life insurance premiums. The customer must receive a copy of this document signed by the insurance agent.
(b)
(1) All securities must be registered with the Securities and Exchange Commission in accordance with the Securities Act of 1933, and all sales must comply with Securities and Exchange Commission regulations and the regulations of the Financial Industry Regulatory Authority.
(2) Where the accredited insurer's policy permits, an overseas accredited life insurance
(c)
(2) For personnel in pay grades E–4 and below to obtain financial counseling, at least 7 calendar days must elapse between the signing of a life insurance application and the certification of a military pay allotment for any supplemental commercial life insurance. Installation finance officers are responsible for ensuring this 7-day period is monitored and enforced. The purchaser's commanding officer may grant a waiver of the requirement for a 7-day period for good cause, such as the purchaser's imminent deployment or permanent change of station.
(a)
(ii) Insurers must be listed in A.M. Best's Rating and Criteria Center and be assigned a financial strength rating of B+ (Very Good) or better, or an equivalent ranking from an independent insurance ranking agency, for the business year preceding the government's fiscal year for which registration is sought.
(2)
(ii) Insurers must retain an A.M. Best financial strength rating of B+ or better, as described in paragraph (a)(1)(ii) of this appendix.
(iii) Insurers must demonstrate a record of compliance with the policies found in this part.
(2) Waiver provisions. Waivers of the initial registration or re-registration provisions will be considered for those insurers demonstrating substantial compliance with paragraphs (a)(1) and (a)(2) of this appendix.
(b)
(2)
(ii) The application letter will contain the following information, submitted in the order listed (where criteria are not applicable, the letter will so state):
(A) The overseas Combatant Commands (
(B) A statement that the agency or company complies with the applicable laws of the country or countries in which it proposes to solicit. This includes all national, provincial, city, or county laws or ordinances of any country, as applicable.
(C) A statement that the products for sale conform to the standards prescribed in paragraphs (a)(1) through (a)(6) of Appendix A and those products contain only the standard provisions, such as those prescribed by the laws of the State where the company's headquarters are located.
(D) A statement that the agency or company will assume full responsibility for the acts of its agents with respect to solicitation. If warranted, the number of agents may be limited by the overseas command concerned.
(E) A statement that the agency or company will use only agents licensed by the appropriate State and registered by the overseas command concerned to sell to DoD personnel on DoD installations.
(F) A statement that the agency's or company's agents are appointed in accordance with the prerequisites established in paragraph (c) of this appendix.
(G) Any explanatory or supplemental comments that will assist in evaluating the application.
(iii) If requested by the MWR and Resale Policy Directorate, the agency or company will provide additional facts or statistics beyond those normally involved in registration.
(3) Subsidiaries. If a company is a life insurance company subsidiary, it must be registered separately on its own merits.
(c)
(2) Agents may represent only one registered commercial insurance agency or company. This principle may be waived by the overseas Combatant Commander if multiple representations are in the best interest of DoD personnel.
(3) An agent must have at least 1 year of successful life insurance sales experience in the United States or its territories (including Guam and the Northern Mariana Islands), generally within the 5 years preceding the date of initial application, in order to be approved for overseas solicitation.
(4) The overseas Combatant Commanders may exercise further agent control procedures as necessary.
(5) Once registered in an overseas area, an agent may not change affiliation from the staff of one agency or company to another and retain his or her registration, unless the previous agency or company agrees in writing to retaining the registration. Overseas Combatant Commanders have final authority to determine whether the agent may retain his or her registration or will have to re-register.
(d)
(2) In the event registration is denied, specific reasons for the denial will be provided to the applicant.
(i) The applicant will have 30 days from the receipt of notification of denial of registration (sent certified mail, return receipt requested) in which to request reconsideration of the original decision. This request must be in writing and accompanied by substantiating data or information in rebuttal of the specific reasons upon which the denial was based.
(ii) Action by USD(P&R) on a request for reconsideration is final.
(iii) An applicant that is presently registered as an insurer will have 90 calendar days from final action denying registration in which to close operations.
(3) Upon receiving a registration approval letter, each insurance agency or company will send the applicable overseas Combatant Commander a verified list of agents currently registered for overseas solicitation. Where applicable, the agency or company also will include the names and prior military affiliation of new agents for whom original registration and permission to solicit on the installation is requested. The DoD will furnish issuance for agent registration procedures in overseas areas to these insurers.
(4) Material changes affecting the corporate status and financial condition of the agency or company that occur during the fiscal year of registration must be reported to USD(P&R) at the address in paragraph (b)(2)(i) of this appendix as they occur.
(i) USD(P&R) reserves the right to terminate registration if such material changes appear to substantially affect the financial and operational standards described in paragraphs (a)(1) and (a)(2) of this appendix, on which registration was based.
(ii) Failure to report such material changes may result in termination of registration, regardless of how it affects the standards.
(5) If an analysis of information furnished by the agency or company indicates that
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a series of security zones in the National Capital Region (NCR) on specified waters of the Potomac River and Anacostia River, and adjacent waters during increased security events. This action is necessary to prevent terrorist acts and incidents immediately before, during, and after events held within the NCR, whenever such an event exists, as determined by the Captain of the Port Maryland-National Capital Region. This rule prohibits vessels and persons from entering the security zone and requires vessels and persons in the security zone to depart the security zone, unless specifically exempt under the provisions in this rule or granted specific permission from the Coast Guard Captain of the Port Maryland-National Capital Region. The proposed regulations will enhance the safety and security of persons and property within the Nation's Capital, while minimizing, to the extent possible, the impact on commerce and legitimate waterway use.
Comments and related material must be received by the Coast Guard on or before November 1, 2016.
You may submit comments identified by docket number USCG–2016–0675 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email Mr. Ronald L. Houck, at Sector Maryland-National Capital Region Waterways Management Division, U.S. Coast Guard; telephone 410–576–2674, email
The Coast Guard has given each Coast Guard COTP the ability to implement comprehensive port security regimes designed to safeguard human life, vessels, and waterfront facilities while still sustaining the flow of commerce. A security zone is a tool available to the Coast Guard that may be used to control vessel movements in specified waters, which the Coast Guard has determined need additional security measures during certain situations. The COTP has made a determination that it is necessary to establish a series of security zones within the NCR. The purpose of this rulemaking is to enhance public and maritime safety and security in order to safeguard life, property, and the environment on specified navigable waters of the Potomac River and Anacostia River and adjacent waters during increased security events taking place in close proximity to navigable waterways within the COTP's Area of Responsibility.
The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231.
Whenever an event that requires increased security is taking place the proposed security zones will help ensure the safety and security of persons and property on or near the navigable waters of the United States. Accordingly, the COTP Maryland-National Capital Region proposes to establish a series of security zones to protect high-ranking United States officials, foreign dignitaries, and the public; mitigate potential terrorist acts; and enhance public and maritime safety and security in order to safeguard life, property, and the environment on specified waters of the Potomac River, Anacostia River and adjacent waters. The security zones would cover specified navigable waters within the NCR. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the event. No vessel or person would be permitted to enter the security zone without obtaining permission from the COTP or a designated representative. The COTP Maryland-National Capital Region will notify the maritime community, via Broadcast Notice to Mariners (BNM), of the location and duration of the security zone as the increased security event dictates. The security zone established for a specific increased security event will consist of one or more of the security zones categorized below.
Security zone one includes all navigable waters of the Potomac River, from shoreline to shoreline, bounded to the north by the Francis Scott Key (US–29) Bridge, at mile 113, and bounded to the south by a line drawn from the Virginia shoreline at Ronald Reagan Washington National Airport, at 38°51′21.3″ N., 077°02′00.0″ W., eastward across the Potomac River to the District of Columbia shoreline at Hains Point at position 38°51′24.3″ N., 077°01′19.8″ W., including the waters of the Boundary Channel, Pentagon Lagoon, Georgetown Channel Tidal Basin, and Roaches Run. Events that typically require enforcement of the zone include activities associated with the U.S. Presidential Inauguration and State funerals for former Presidents of the U.S.
Security zone two includes all navigable waters of the Anacostia River, from shoreline to shoreline, bounded to the north by the John Philip Sousa (Pennsylvania Avenue) Bridge, at mile 2.9, and bounded to the south by a line drawn from the District of Columbia shoreline at Hains Point at position 38°51′24.3″ N., 077°01′19.8″ W., southward across the Anacostia River to the District of Columbia shoreline at Giesboro Point at position 38°50′52.4″ N., 077°01′10.9″ W., including the waters of the Washington Channel. Events that typically require enforcement of the zone include activities associated with the U.S. Presidential Inauguration and State funerals for former Presidents of the U.S.
Security zone three includes all navigable waters of the Potomac River, from shoreline to shoreline, bounded to the north by a line drawn from the
The above zones may also be enforced for unplanned events requiring increased security, including but not limited to, presidential nominating conventions; international summits and conferences; and meetings of international organizations.
Security zone four, currently described at 33 CFR 165.508, includes all navigable waters of the Georgetown Channel of the Potomac River, 75 yards from the eastern shore measured perpendicularly to the shore, between the Long Railroad Bridge (the most eastern bridge of the 5-span, Fourteenth Street Bridge Complex) to the Theodore Roosevelt Memorial Bridge and all waters in between, totally including the waters of the Georgetown Channel Tidal Basin. This zone is enforced annually from 12:01 a.m. to 11:59 p.m. local time on July 4. There are no proposed changes to this zone; it is retained and included in this rulemaking.
Security zone five includes all navigable waters in the Potomac River, including the Boundary Channel and Pentagon Lagoon, bounded on the west by a line running north to south from points along the shoreline at 38°52′50″ N./077°03′25″ W., thence to 38°52′49″ N./077°03′25″ W.; and bounded on the east by a line running from points at 38°53′10″ N./077°03′30″ W., thence northeast to 38°53′12″ N./077°03′26″ W., thence southeast to 38°52′31″ N./077°02′34″ W., and thence southwest to 38°52′28″ N./077°02′38″ W. This zone will be enforced on three days each year: Memorial Day (observed), September 11, and November 11. Specifically, the zone will be enforced from 10 a.m. until 1 p.m. on Memorial Day (observed); from 8 a.m. until 11:59 a.m. on September 11; and from 10 a.m. until 1 p.m. on November 11.
Security zone six includes all navigable waters of the Potomac River, from shoreline to shoreline, bounded on the north by the Francis Scott Key (U.S. Route 29) Bridge at mile 113.0, downstream to and bounded on the south by the Woodrow Wilson Memorial (I–95/I–495) Bridge, at mile 103.8, including the waters of the Boundary Channel, Pentagon Lagoon, Georgetown Channel Tidal Basin, and Roaches Run; and all waters of the Anacostia River, from shoreline to shoreline, bounded on the north by the John Philip Sousa (Pennsylvania Avenue) Bridge, at mile 2.9, downstream to and bounded on the south by its confluence with the Potomac River. This zone will be enforced annually for the State of the Union Address, starting at 9 a.m. on the day of the State of the Union Address through 2 a.m. the following day.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.
This regulatory action determination is based on the size, location, duration and time of year of the security zones. The Coast Guard determined that this rulemaking would not be a significant regulatory action for the following reasons: Security zones one, two and three are expected to be enforced for only a week or two at a time and on only a few occasions per year. Additionally, the Coast Guard designed the areas for security zones one, two and three to cover only a portion of the navigable waterways while still sustaining the flow of commerce, and mariners may request permission from the COTP Maryland-National Capital Region or the designated representative to transit the zone. Security zones four and five are expected to be enforced for only less than 24 hours at a time and on only a few occasions per year. Additionally, the Coast Guard designed the areas for security zones four and five to cover only a small portion of the navigable waterways, waterway users may transit the Potomac River around the areas, and mariners may request permission from the COTP Maryland-National Capital Region or the designated representative to transit the zone. Security zone six is expected to be enforced for only less than 24 hours at a time and on only on one occasion per year when vessel traffic is normally low. Additionally, the Coast Guard designed the area for security zone six to cover only a portion of the navigable waterways while still sustaining the flow of commerce, and mariners may request permission from the COTP Maryland-National Capital Region or the designated representative to transit the zone. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF–FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601–612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321–4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves security zones that would prohibit entry on specified waters of the Potomac River and Anacostia River, and adjacent waters, during increased security events. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2–1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(1)
(2)
(3)
(4)
(5)
(6)
(b)
(1) Entry into or remaining in a zone listed in paragraph (a) in this section is prohibited unless authorized by the Coast Guard Captain of the Port Maryland-National Capital Region. Public vessels and vessels already at berth at the time the security zone is implemented do not have to depart the security zone. All vessels underway within the security zone at the time it is implemented are to depart the zone at the time the security zone is implemented.
(2) Persons desiring to transit the area of the security zone must first obtain authorization from the Captain of the Port Maryland-National Capital Region or his or her designated representative. To seek permission to transit the area, the Captain of the Port Maryland-National Capital Region and his or her designated representatives can be contacted at telephone number 410–576–2693 or on Marine Band Radio, VHF–FM channel 16 (156.8 MHz). The Coast Guard vessels enforcing this section can be contacted on Marine Band Radio, VHF–FM channel 16 (156.8 MHz). Upon being hailed by a U.S. Coast Guard vessel, or other Federal, State, or local agency vessel, by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed. If permission is granted, all persons and vessels must comply with the instructions of the Captain of the Port Maryland-National Capital Region or his designated representative and proceed at the minimum speed necessary to maintain a safe course while within the zone.
(3) The U.S. Coast Guard may be assisted in the patrol and enforcement of the security zones listed in paragraph (a) in this section by Federal, State, and local agencies.
(c)
(d)
(2) Security Zone 4, established in paragraph (a)(4) of this section, will be enforced annually, from 12:01 a.m. to 11:59 p.m. on July 4.
(3) Security Zone 5, established in paragraph (a)(5) of this section, will be enforced annually on three dates: Memorial Day (observed), September 11, and November 11. Security Zone 5 will be enforced from 10 a.m. until 1 p.m. on Memorial Day (observed); from 8 a.m. until 11:59 a.m. on September 11; and from 10 a.m. until 1 p.m. on November 11.
(4) Security Zone 6, established in paragraph (a)(6) of this section, will be enforced annually on the day the State of the Union Address is delivered. Security Zone 6 will be enforced from 9 a.m. on the day of the State of the Union Address until 2 a.m. on the following day.
(e)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability of fishery management plan amendment; request for comments.
NMFS announces that the Mid-Atlantic Fishery Management Council has submitted Amendment 16 to the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan,
Comments must be received on or before November 1, 2016.
The Council prepared an environmental assessment (EA) for Amendment 16 that describes the proposed action and other considered alternatives and provides a thorough analysis of the impacts of the proposed measures and alternatives. Copies of Amendment 16, including the EA, the Regulatory Impact Review (RIR), and the Initial Regulatory Flexibility Analysis (IRFA), are available from: Christopher Moore, Executive Director, Mid-Atlantic Fishery Management Council, Suite 201, 800 State Street, Dover, DE 19901. The EA/RIR/IRFA are accessible online at
You may submit comments on this document, identified by NOAA–NMFS–2016–0086, by any of the following methods:
•
•
Peter Christopher, Fishery Policy Analyst, 978–281–9288; fax 978–281–9135.
On January 16, 2013, the Council published a Notice of Intent (NOI) to prepare an Environmental Impact Statement (78 FR 3401) for Amendment 16 to the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan (FMP) to consider measures to protect deep-sea corals from the impacts of commercial fishing gear in the Mid-Atlantic. The Council conducted scoping meetings during February 2013 to gather public comments on these issues. Following further development of Amendment 16 through 2013 and 2014, the Council conducted public hearings in January 2015. Following these public hearings, and with disagreement about the boundaries of the various alternatives, the Council held a workshop with various stakeholders on April 29–30, 2015, to further refine the deep-sea coral area boundaries. The workshop was an example of effective collaboration among fishery managers, the fishing industry, environmental organizations, and the public to develop management recommendations with widespread support. The Council adopted Amendment 16 on June 10, 2015. The Council submitted Amendment 16 on August 15, 2016, for final review by NMFS, acting on behalf of the Secretary of Commerce. The Council developed the action, and the measures described in this notice, under the discretionary provisions for deep-sea coral protection in section 303(b) of the Magnuson-Stevens Fishery Act. This provision gives the Regional Fishery Management Councils the authority to:
• Designate zones where, and periods when, fishing shall be limited, or shall not be permitted, or shall be permitted only by specified types of fishing vessels or with specified types and quantities of fishing gear;
• Designate such zones in areas where deep-sea corals are identified under section 408 (this section describes the deep-sea coral research and technology program), to protect deep-sea corals from physical damage from fishing gear or to prevent loss or damage to such fishing gear from interactions with deep-sea corals, after considering long-term sustainable uses of fishery resources in such areas; and
• With respect to any closure of an area under the Magnuson-Stevens Act that prohibits all fishing, ensure that such closure
o Is based on the best scientific information available;
○ Includes criteria to assess the conservation benefit of the closed area;
○ Establishes a timetable for review of the closed area's performance that is consistent with the purposes of the closed area; and
○ Is based on an assessment of the benefits and impacts of the closure, including its size, in relation to other management measures (either alone or in combination with such measures), including the benefits and impacts of limiting access to: Users of the area, overall fishing activity, fishery science, and fishery and marine conservation.
Consistent with these provisions, the Council proposed the measures in Amendment 16 to balance the impacts of measures implemented under this discretionary authority with the management objectives of the Mackerel, Squid, and Butterfish FMP and the value of potentially affected commercial fisheries. Measures recommended by the Council would:
• Establish a deep-sea coral protection area that would be in Mid-Atlantic waters only. It would consist of a broad zone that would start at a depth contour of approximately 450 meters (m) and extend to the U.S. Exclusive Economic Zone boundary, and to the north and south to the boundaries of the Mid-Atlantic waters (as defined in the Magnuson-Stevens Act). In addition, the deep-sea coral protection area would include 15 discrete zones that outline deep-sea canyons on the continental shelf in Mid-Atlantic waters. The deep-sea coral area, including both broad and discrete zones, would be one continuous area.
• Restrict the use of bottom-tending commercial fishing gear within the designated deep-sea coral area, including bottom-tending otter trawls; bottom-tending beam trawls; hydraulic dredges; non-hydraulic dredges; bottom-tending seines; bottom-tending longlines; sink or anchored gill nets; and pots and traps except those used to fish for red crab and American lobster;
• Require the use of vessel monitoring systems for
• Allow vessels to transit the deep-sea coral area protection area provided the vessels bring bottom-tending fishing gear onboard the vessel, and reel bottom-tending trawl gear onto the net reel; and
• Expand framework adjustment provisions in the FMP for future modifications to the deep-sea coral protection measures.
The Council recommended that the deep-sea coral protection area should be named in honor of the late Senator Frank R. Lautenberg. Senator Lautenberg was responsible for several important pieces of ocean conservation legislation and authored several provisions included in the reauthorized Magnuson-Stevens Act, including the discretionary provision for coral. Therefore, the Council proposed that the combined broad and discrete zones be officially known as the “Frank R. Lautenberg Deep-Sea Coral Protection Area.”
The proposed geographic range and gear restrictions in this action overlap with several fisheries outside the Atlantic Mackerel, Squid, and Butterfish FMP and could potentially affect any federally permitted vessel intending to fish within the proposed deep-sea coral area. However, during the initiation and scoping of this action, the Council determined that this action would not apply to the American lobster fishery. Therefore, this action would not restrict the use of lobster pots in the proposed deep-sea coral area. Deep-sea red crab pots and traps would also be allowed in the deep-sea coral zone under the proposed action. The Council proposed the exemption for this gear because red crab fishing occurs entirely within the deep-sea coral protection zone. Prohibiting the gear in the area would eliminate a large portion of the red crab fishery, with likely disproportional negative impacts on the red crab fishery relative to other fisheries.
Through this document, NMFS seeks comments on Amendment 16 and its incorporated documents through the end of the comment period stated in the
16 U.S.C. 1801
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 (1) 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; (2) the accuracy of the agency's estimate of burden 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 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 October 3, 2016 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
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.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
Foresthill Public Utility District (Foresthill) has submitted an application to the Tahoe National Forest (TNF) to amend their existing Special Use Permit (Permit) for Sugar Pine Dam and Reservoir (Sugar Pine Project) to increase water storage capacity of the reservoir and improve the stability of Foresthill's water supply by installing radial steel gates in the spillway of the dam. Installation of the radial gates would increase water storage capacity by 3,950 acre-feet (AF) up from 6,922 AF currently to 10,872 AF after installation; the maximum surface elevation of the reservoir would rise 20 vertical feet and inundate approximately 44 additional acres of NFS lands. The surface area of the reservoir would increase from 160 acres to approximately 204 acres if the project is implemented. Important NFS resources would be impacted by the project; popular reservoir recreation facilities would be inundated along with habitat for plants and wildlife, including habitat for Forest Service Sensitive Species.
Comments concerning the scope of the analysis must be received by October 3, 2016 for purposes of standing pursuant to Forest Service predecisional administrative review regulations at 36 CFR part 218; however, public input will be continue to be accepted and considered by the Forest Service throughout the course of the environmental analysis. The draft environmental impact statement is expected in winter 2016 and the final environmental impact statement is expected by fall of 2017.
Send written comments to: Eli Ilano, Tahoe National Forest Supervisor, c/o NEPA Contractor, 2525 Warren Drive, Rocklin, CA 95677. Comments may also be sent via email to
Additional information concerning the proposed project can be obtained from the TNF projects Web page at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
Applications for use and occupancy of NFS lands are required to be consistent with the Forest Plan. The TNF's purpose in responding to Foresthill's Permit amendment application is to achieve Forest Plan desired conditions for issuance of permits, or permit amendments, when such uses maximize public benefits and impacts to NFS resources are mitigated. The Forest Plan recognizes the importance of Sugar Pine Reservoir as a municipal water supply and describes the potential for installation of radial gates in the existing spillway of the dam. The Forest Plan emphasizes recreation management for the Sugar Pine Reservoir basin in conjunction with other uses.
The TNF needs to respond to Foresthill's application in order to comply with Title V of the Federal Land Policy Management Act and related Forest Service land use regulations. Amendment of the Permit to authorize installation of the radial gates would be consistent with provisions of the Sugar Pine Dam and Reservoir Conveyance Act which require that changes in use or operation of reservoir facilities comply with all applicable laws and regulations at the time of the changes. Foresthill proposes to increase the water storage capacity of Sugar Pine Reservoir to ensure the availability of the reliable long term water supply for existing development and planned future land uses within the existing water right place of use for State Water Resources Control Board Permit Number 15375 and the Foresthill Divide Community Plan. The additional water storage provided by the proposed project is also intended to enhance water supply reliability needed to protect Foresthill from a prolonged drought; climate change concerns and state initiatives to increase water storage in California are also factors which support the need for action on Foresthill's requested permit amendment.
Prior to full implementation of the Foresthill Divide Community Plan, or build-out, Foresthill may continue to carry out short-term transfers of stored reservoir water to reduce shortages in downstream communities, to provide ecological benefits or for other beneficial uses consistent with the California Water Code and State Water Resources Control Board's water transfer program. Foresthill used revenue generated from a 2015 water transfer to help fund replacement of an aging storage tank used to provide potable water for the Foresthill community and to maintain water system pressure necessary to comply with state requirements for firefighting; revenue generated by Foresthill from future water transfers may be used to fund similar water system infrastructure projects.
The proposed action is to amend Foresthill's existing Permit to authorize an increase the size and water storage capacity of the reservoir. The proposed action has four components: (1) Installation of radial gates in the spillway of the existing dam, (2) changes in reservoir operations, (3) timber harvest and hazard tree abatement involving one to two million board feet (mmbf) of timber on lands affected by the project and (4) implementation of project design features and mitigation measures to avoid, minimize or compensate for projected impacts to NFS recreation and habitat resources; including replacement of recreation facilities affected by inundation of additional NFS lands.
The Tahoe National Forest is the lead federal agency for the Environmental Impact Statement (EIS) pursuant to requirements of the National Environmental Policy Act (NEPA). Foresthill Public Utility District is a cooperating agency and the lead state agency for the Environmental Impact Report (EIR) pursuant to requirements of the California Environmental Quality Act (CEQA). The Tahoe National Forest and Foresthill Public Utility District will be preparing a joint environmental document (EIS/EIR) to meet NEPA and CEQA requirements.
The Responsible Official is the Forest Supervisor of the Tahoe National Forest.
The decision to be made is whether to approve the Permit amendment as described above, to modify the project to meet the purpose and need while addressing issues raised in public scoping, or to take no action at this time.
Amendment of Foresthill's Special Use Permit for Sugar Pine Dam and Reservoir.
This notice of intent initiates the scoping process, which guides the development of the environmental impact statement. Two public scoping meetings will be held during the scoping comment period:
It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions. The most useful comments to inform development of the environmetnal impact statement are those that identify issues in the context of a cause and effect relationship associated with the proposed action or alternatives to the proposed action.
This project will be subject to 36 CFR 218 Project-level Predecisional Administrative Review Process (Parts A and B). Individuals and entities who have submitted timely, specific written comments regarding a proposed project or activity during public comment periods, including this 30-day public scoping period, may file an objection (36 CFR 218.5(a)). Written comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection (36 CFR 218.25(b)(2)). For purposes of meeting
A notice by the U.S. Arctic Research Commission on August 26, 2016
Notice is hereby given that the U.S. Arctic Research Commission will hold its 106th meeting in Washington, DC, on September 29–30, 2016. The business sessions, open to the public, will convene at 8:30 a.m. at the U.S. Global Change Research Program, 1800 G St. NW., #9100, Conf. Rm. A, Washington, DC 20006. Photo identification is required to enter the building. Forms of acceptable identification are a driver's license, federal identification card, or passport. All attendees and visitors are required to go through a metal detector with the exception of pregnant women, and individuals with heart conditions. Security must be advised by those individuals with the above mentioned health conditions.
The Agenda items include:
The focus of this meeting will include reports and updates on programs and research projects affecting Alaska and the greater Arctic.
The Arctic Research and Policy Act of 1984 (Title I Pub. L. 98–373) and the Presidential Executive Order on Arctic Research (Executive Order 12501) dated January 28, 1985, established the United States Arctic Research Commission.
If you plan to attend this meeting, please notify us via the contact information below. Any person planning to attend, who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission of those needs in advance of the meeting.
Contact person for further information: Kathy Farrow, Communications Specialist, U.S. Arctic Research Commission, 703–525–0111 or TDD 703–306–0090.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On June 13, 2016 the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on certain oil country tubular goods (OCTG) from Taiwan. The period of review (POR) is July 18, 2014, through August 31, 2015. The review covers one producer/exporter of the subject merchandise, Tension Steel Industries Co., Ltd. (Tension Steel). We invited parties to comment on the preliminarily results. None were received. Accordingly, for the final results, we continue to find that Tension Steel did not make sales of subject merchandise at less than normal value.
Effective September 2, 2016.
Thomas Schauer, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–0410.
On June 13, 2016, the Department published the
The merchandise covered by the order is certain OCTG, which are hollow steel products of circular cross-section, including oil well casing and tubing, of iron (other than cast iron) or steel (both carbon and alloy), whether seamless or welded, regardless of end finish (
Excluded from the scope of the order are: Casing or tubing containing 10.5 percent or more by weight of chromium; drill pipe; unattached couplings; and unattached thread protectors.
The merchandise subject to the order is currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7304.29.10.10, 7304.29.10.20, 7304.29.10.30, 7304.29.10.40, 7304.29.10.50, 7304.29.10.60, 7304.29.10.80, 7304.29.20.10, 7304.29.20.20, 7304.29.20.30, 7304.29.20.40, 7304.29.20.50, 7304.29.20.60, 7304.29.20.80, 7304.29.31.10, 7304.29.31.20, 7304.29.31.30, 7304.29.31.40, 7304.29.31.50, 7304.29.31.60, 7304.29.31.80, 7304.29.41.10, 7304.29.41.20, 7304.29.41.30, 7304.29.41.40, 7304.29.41.50, 7304.29.41.60, 7304.29.41.80, 7304.29.50.15, 7304.29.50.30, 7304.29.50.45, 7304.29.50.60, 7304.29.50.75, 7304.29.61.15, 7304.29.61.30, 7304.29.61.45, 7304.29.61.60, 7304.29.61.75, 7305.20.20.00, 7305.20.40.00, 7305.20.60.00, 7305.20.80.00, 7306.29.10.30, 7306.29.10.90, 7306.29.20.00, 7306.29.31.00, 7306.29.41.00, 7306.29.60.10, 7306.29.60.50, 7306.29.81.10, and 7306.29.81.50.
The merchandise subject to the order may also enter under the following HTSUS item numbers: 7304.39.00.24, 7304.39.00.28, 7304.39.00.32, 7304.39.00.36, 7304.39.00.40, 7304.39.00.44, 7304.39.00.48, 7304.39.00.52, 7304.39.00.56, 7304.39.00.62, 7304.39.00.68, 7304.39.00.72, 7304.39.00.76, 7304.39.00.80, 7304.59.60.00, 7304.59.80.15, 7304.59.80.20, 7304.59.80.25, 7304.59.80.30, 7304.59.80.35, 7304.59.80.40, 7304.59.80.45, 7304.59.80.50, 7304.59.80.55, 7304.59.80.60, 7304.59.80.65, 7304.59.80.70, 7304.59.80.80, 7305.31.40.00, 7305.31.60.90, 7306.30.50.55,
While the HTSUS subheadings are provided for convenience and customs purposes, the written description is dispositive.
The Department made no changes to the
In accordance with 19 CFR 351.212(b) and the
For entries of subject merchandise during the POR produced by Tension Steel for which it did not know that the merchandise was destined for the United States, we will instruct CBP to liquidate un-reviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction. We intend to issue instructions to CBP 15 days after publication of the final results of this review.
The following deposit requirements will be effective upon publication of the final results of administrative review for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for Tension Steel will be 0.00 percent, the weighted-average dumping margin established in the final results of this administrative review; (2) for merchandise exported by manufacturers or exporters not covered in this review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding; (3) if the exporter is not a firm covered in this review, a prior review, or the less-than-fair-value investigation but the manufacturer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the manufacturer of the merchandise; (4) if neither the exporter nor the manufacturer has its own rate, the cash deposit rate will be 2.34 percent.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on large power transformers (LPTs) from the Republic of Korea (Korea). The period of review is August 1, 2014, through July 31, 2015. The review covers five producers/exporters of the subject merchandise. We preliminarily determine that sales of subject merchandise by Hyosung Corporation (Hyosung) and Hyundai Heavy Industries Co., Ltd. (Hyundai), the two companies selected for individual examination, were made at less than normal value during the period of review. Interested parties are invited to comment on these preliminary results.
Effective September 2, 2016.
John Drury or Edythe Artman, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–0195 or (202) 482–3931, respectively.
The scope of this order covers large liquid dielectric power transformers having a top power handling capacity greater than or equal to 60,000 kilovolt amperes (60 megavolt amperes), whether assembled or unassembled, complete or incomplete. The merchandise subject to the order is currently classified in the Harmonized Tariff Schedule of the United States at subheadings 8504.23.0040, 8504.23.0080 and 8504.90.9540. This tariff classification is provided for convenience and Customs purposes; however, the written description of the scope of the order is dispositive.
The Preliminary Decision Memorandum is a public document and is on file electronically
As explained in the memorandum from the Acting Assistant Secretary for Enforcement and Compliance, the Department exercised its discretion to toll all administrative deadlines due to a closure of the Federal Government. All deadlines in this segment of the proceeding have been extended by four business days. The revised deadline for the preliminary results of this review is now August 26, 2016.
The Department is conducting this review in accordance with section 751(a)(2) of the Tariff Act of 1930, as amended (the Act). Constructed export price is calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying our conclusions,
We preliminarily determine that, for the period August 1, 2014, through July 31, 2015, the following weighted-average dumping margins exist:
The Department will disclose to parties to the proceeding any calculations performed in connection with these preliminary results of review within five days after the date of publication of this notice.
Parties who submit case or rebuttal briefs in this proceeding are requested to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance within 30 days of the date of publication of this notice. Requests should contain: (1) The party's name, address and telephone number; (2) the number of participants; and (3) a list of issues parties intend to discuss. Issues raised in the hearing will be limited to those raised in the respective case and rebuttal briefs. If a request for a hearing is made, the Department intends to hold the hearing at the U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, at a date and time to be determined.
The Department intends to publish the final results of this administrative review, including the results of its analysis of issues raised in any case or rebuttal brief, no later than 120 days after publication of these preliminary results, unless extended.
Upon completion of this administrative review, the Department shall determine, and Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries. If a respondent's weighted-average dumping margin is not zero or
Regarding entries of subject merchandise during the period of review that were produced by Hyosung and Hyundai and for which they did not know that the merchandise was destined for the United States, we will instruct CBP to liquidate un-reviewed entries at the all-others rate of 22.00 percent, as established in the less-than-fair-value investigation of the order, if there is no rate for the intermediate company(ies) involved in the
We intend to issue liquidation instructions to CBP 15 days after publication of the final results of this review.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for Hyosung and Hyundai and other companies listed above will be equal to the weighted-average dumping margin established in the final results of this administrative review; (2) for previously reviewed or investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding in which they were reviewed; (3) if the exporter is not a firm covered in this review, a prior review, or in the investigation but the producer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the producer of the merchandise; and (4) the cash deposit rate for all other producers or exporters will continue to be the all-others rate of 22.00 percent, the rate established in the investigation of this proceeding.
This notice also serves as a reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The North Pacific Fishery Management Council (Council) Crab Plan Team (CPT) will meet September 20 through September 23, 2016.
The meeting will be held on Tuesday, September 20, 2016 through Friday, September 23, 2016, from 9 a.m. to 5 p.m.
The meeting will be held at the Alaska Fishery Science Center Traynor Room 2076, 7600 Sand Point Way NE., Building 4, Seattle, WA 98115.
Diana Stram, Council staff; telephone: (907) 271–2809.
The CPT will review updated stock assessments to determine overfishing status and catch specifications for PIBKC (Pribilof Islands Blue King Crab), BBRKC (Bristol Bay Red King Crab), PIRKC (Pribilof Island Red King Crab), SMBKC (St. Matthew Blue King Crab), Bering Sea Snow Crab, and Bering Sea Tanner Crab. The Agenda is subject to change, and the latest version will be posted at
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Shannon Gleason at (907) 271–2809 at least 7 working days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The North Pacific Fishery Management Council (Council) Observer Advisory Committee (OAC) will meet in Seattle, WA.
The meeting will be held on Monday, September 19, 2016, from 9 a.m. to 5 p.m. and on Tuesday, September 20, 2016, from 8:30 a.m. to 1 p.m.
The meeting will be in the Observer Training Room, Building 4 at the Alaska Fisheries Science Center,
Diana Evans, Council staff; telephone: (907)–271–2809.
The agenda will include a review of the Draft 2017 Observer Annual Deployment Plan, the lead level 2 discussion paper, the EM (Electronic Monitoring) analysis and 2017 EM Plan, other analytic project priorities, and scheduling and other issues. The Agenda is subject to change, and the latest version will be posted at
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Shannon Gleason at (907) 271–2809 at least 7 working days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The SEDAR Steering Committee will meet to discuss the SEDAR process and assessment schedule. See
The SEDAR Steering Committee will meet from 1 p.m. on Tuesday, September 20, until 4 p.m. on Wednesday, September 21, 2016.
John Carmichael, Deputy Executive Director, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone: (843) 571–4366 or toll free: (866) SAFMC–10; fax: (843) 769–4520; email:
The items of discussion are as follows:
SEDAR Steering Committee Agenda, Tuesday, September 20, 2016, 1 p.m.–5 p.m. and Wednesday, September 21, 2016, 8:30 a.m.–4 p.m.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the SAFMC office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability; request for comments.
NMFS has completed a Draft Environmental Assessment (EA) to consider the potential impacts of authorizing an exempted fishing permit (EFP) for longline vessels to fish within the U.S. West Coast exclusive economic zone (EEZ).
Written comments on the draft EA must be submitted by October 3, 2016.
Written comments on the draft EA should be submitted to the Sustainable Fisheries Division, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802. Comments may also be submitted by email to
The EA is available for review upon written request or by appointment in the following office: The Sustainable Fisheries Division, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802; or on NMFS' West Coast Region Web site:
Amber Rhodes (ph: 562–980–3231; email:
This Draft EA was completed to consider potential impacts of issuing an EFP authorizing the applicants to fish with longline gear
16 U.S.C. 1801
Office for Coastal Management (OCM), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of Public Hearing and Availability of Draft Environmental Impact Statement and Draft Management Plan for the proposed designation of the He`eia National Estuarine Research Reserve in Hawai`i.
Notice is hereby given that, pursuant to the Coastal Zone Management Act, the National Oceanic and Atmospheric Administration (NOAA), Office for Coastal Management (OCM) is announcing a forty-five day public comment period and will hold a public hearing for the purpose of receiving comments on the Draft Environmental Impact Statement and Draft Management Plan (DEIS/DMP) prepared for the proposed designation of the He`eia National Estuarine Research Reserve in Hawai`i. The DMP addresses research, monitoring, education, and stewardship/cultural resource needs for the proposed reserve, and the DEIS analyzes alternatives to the proposed action along with their potential environmental impacts. The National Estuarine Research Reserve System (NERRS) is a federal-state partnership administered by NOAA. The system protects more than 1.3 million acres of estuarine habitat for long-term research, monitoring, education and stewardship throughout the coastal United States. Established by the Coastal Zone Management Act of 1972, as amended, each reserve is managed by a lead state agency or university, with input from local partners. NOAA provides funding and national programmatic guidance.
NOAA is accepting public comments through 5:00 p.m. (HST), October 17, 2016. In addition, NOAA will also accept public comments, conveyed orally or through submitted written statements, during a public hearing held from 6:00 p.m. to 7:00 p.m. on October 6, 2016, at He`eia State Park, 46–465 Kamehameha Highway, Kāne`ohe, HI 96744. NOAA is soliciting the views of interested persons and organizations on the adequacy of the DEIS/DMP. All relevant comments received at the hearing and during the 45-day public comment period ending 5:00 p.m. (HST), October 17, 2016, will be considered in the preparation of the Final Environmental Impact Statement (FEIS) and Final Management Plan (FMP).
Comments may be submitted by any one of the following methods:
•
•
Jean Tanimoto, Coastal Management Specialist, Policy, Planning, and Communications Division, Office for Coastal Management at (808) 725–5253 or via email at
Electronic copies of the Draft Environmental Impact Statement and Draft Management Plan may be found on the OCM Web site at
The requirements of 40 CFR parts 1500–1508 (Council on Environmental Quality (CEQ) regulations to implement the National Environmental Policy Act) apply to the preparation of Environmental Impact Statements. Specifically, 40 CFR 1506.6 requires agencies to provide public notice of the availability of environmental documents. Likewise, the NERRS implementing regulations at 15 CFR 921.13(d) require NOAA to provide notice, in the
National Oceanic and Atmospheric Administration (NOAA), Office of Oceanic and Atmospheric Research, Department of Commerce.
Notice of solicitation for members of the NOAA Science Advisory Board.
NOAA is soliciting nominations for members of the NOAA Science Advisory Board (SAB). The SAB is the only Federal Advisory Committee with the responsibility to advise the Under Secretary of Commerce for Oceans and Atmosphere and NOAA Administrator on long- and short-range strategies for research, education, and application of science to resource management and environmental assessment and prediction. The SAB consists of approximately fifteen members reflecting the full breadth of NOAA's areas of responsibility and assists NOAA in maintaining a complete and accurate understanding of scientific issues critical to the agency's missions.
Composition and Points of View: The Board will consist of approximately fifteen members, including a Chair, designated by the Under Secretary in accordance with FACA requirements.
Members will be appointed for three-year terms, renewable once, and serve at the discretion of the Under Secretary. If a member resigns before the end of his or her first term, the vacancy appointment shall be for the remainder of the unexpired term, and shall be renewable twice if the unexpired term is less than one year. Members will be appointed as special government employees (SGEs) and will be subject to the ethical standards applicable to SGEs. Members are reimbursed for actual and reasonable travel and per diem expenses incurred in performing such duties but will not be reimbursed for their time. As a Federal Advisory Committee, the Board's membership is required to be balanced in terms of viewpoints represented and the functions to be performed as well as the interests of geographic regions of the country and the diverse sectors of U.S. society.
The SAB meets in person three times each year, exclusive of teleconferences or subcommittee, task force, and working group meetings. Board members must be willing to serve as liaisons to SAB working groups and/or participate in periodic reviews of the NOAA Cooperative Institutes and overarching reviews of NOAA's research enterprise.
Nominations should be sent to the web address specified below and must be received by October 17, 2016.
Applications should be submitted electronically to
Dr. Cynthia Decker, Executive Director, Science Advisory Board, NOAA, Rm. 11230, 1315 East-West Highway, Silver Spring, Maryland 20910. (Phone: 301–734–1156, Fax: 301–713–1459, Email:
At this time, individuals are sought with expertise in marine ecosystem science and `omics, formal and informal education, oceanography, risk management and resilience, and data science. Individuals with expertise in other NOAA mission areas are also welcomed to apply.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public workshops.
Free Atlantic Shark Identification Workshops and Protected Species Safe Handling, Release, and Identification Workshops will be held in October, November, and December of 2016. Certain fishermen and shark dealers are required to attend a workshop to meet regulatory requirements and to maintain valid permits. Specifically, the Atlantic Shark Identification Workshop is mandatory for all federally permitted Atlantic shark dealers. The Protected Species Safe Handling, Release, and Identification Workshop is mandatory for vessel owners and operators who use bottom longline, pelagic longline, or gillnet gear, and who have also been issued shark or swordfish limited access permits. Additional free workshops will be conducted during 2017 and will be announced in a future notice.
The Atlantic Shark Identification Workshops will be held on October 13, November 10, and December 8, 2016.
The Protected Species Safe Handling, Release, and Identification Workshops will be held on October 20, October 26, November 4, November 7, December 7, and December 16, 2016.
See
The Atlantic Shark Identification Workshops will be held in Somerville, MA; Mount Pleasant, SC; and Clearwater, FL.
The Protected Species Safe Handling, Release, and Identification Workshops will be held in Charleston, SC; Manahawkin, NJ; Kitty Hawk, NC; Panama City, FL; Key Largo, FL; and Ronkonkoma, NY.
See
Rick Pearson by phone: (727) 824–5399, or by fax: (727) 824–5398.
The workshop schedules, registration information, and a list of frequently asked questions regarding these workshops are posted on the Internet at:
Since January 1, 2008, Atlantic shark dealers have been prohibited from receiving, purchasing, trading, or bartering for Atlantic sharks unless a valid Atlantic Shark Identification Workshop certificate is on the premises of each business listed under the shark dealer permit that first receives Atlantic sharks (71 FR 58057; October 2, 2006). Dealers who attend and successfully complete a workshop are issued a certificate for each place of business that is permitted to receive sharks. These certificate(s) are valid for 3 years. Approximately 124 free Atlantic Shark Identification Workshops have been conducted since January 2007.
Currently, permitted dealers may send a proxy to an Atlantic Shark Identification Workshop. However, if a dealer opts to send a proxy, the dealer must designate a proxy for each place of business covered by the dealer's permit which first receives Atlantic sharks.
1. October 13, 2016, 12 p.m.–4 p.m., LaQuinta Inn, 23 Cummings Street, Somerville, MA 02145.
2. November 10, 2016, 12 p.m.–4 p.m. Hampton Inn, 1104 Isle of Palms Connector, Mount Pleasant, SC 29464.
3. December 8, 2016, 12 p.m.–4 p.m. LaQuinta Inn, 5000 Lake Boulevard, Clearwater, FL 33760.
To register for a scheduled Atlantic Shark Identification Workshop, please contact Eric Sander at
To ensure that workshop certificates are linked to the correct permits, participants will need to bring the following specific items to the workshop:
• Atlantic shark dealer permit holders must bring proof that the attendee is an owner or agent of the business (such as articles of incorporation), a copy of the applicable permit, and proof of identification.
• Atlantic shark dealer proxies must bring documentation from the permitted dealer acknowledging that the proxy is attending the workshop on behalf of the permitted Atlantic shark dealer for a specific business location, a copy of the appropriate valid permit, and proof of identification.
The Atlantic Shark Identification Workshops are designed to reduce the number of unknown and improperly identified sharks reported in the dealer reporting form and increase the accuracy of species-specific dealer-reported information. Reducing the number of unknown and improperly identified sharks will improve quota monitoring and the data used in stock assessments. These workshops will train shark dealer permit holders or their proxies to properly identify Atlantic shark carcasses.
Since January 1, 2007, shark limited-access and swordfish limited-access permit holders who fish with longline or gillnet gear have been required to submit a copy of their Protected Species Safe Handling, Release, and Identification Workshop certificate in order to renew either permit (71 FR 58057; October 2, 2006). These certificate(s) are valid for 3 years. As such, vessel owners who have not already attended a workshop and received a NMFS certificate, or vessel owners whose certificate(s) will expire prior to the next permit renewal, must attend a workshop to fish with, or renew, their swordfish and shark limited-access permits. Additionally, new shark and swordfish limited-access permit applicants who intend to fish with longline or gillnet gear must attend a Protected Species Safe Handling, Release, and Identification Workshop and submit a copy of their workshop certificate before either of the permits will be issued. Approximately 238 free Protected Species Safe Handling, Release, and Identification Workshops have been conducted since 2006.
In addition to certifying vessel owners, at least one operator on board vessels issued a limited-access swordfish or shark permit that uses longline or gillnet gear is required to attend a Protected Species Safe Handling, Release, and Identification Workshop and receive a certificate. Vessels that have been issued a limited-access swordfish or shark permit and that use longline or gillnet gear may not fish unless both the vessel owner and operator have valid workshop certificates onboard at all times. Vessel operators who have not already attended a workshop and received a NMFS certificate, or vessel operators whose certificate(s) will expire prior to their next fishing trip, must attend a workshop to operate a vessel with swordfish and shark limited-access permits that uses longline or gillnet gear.
1. October 20, 2016, 9 a.m.–5 p.m., Hampton Inn, 678 Citadel Haven Drive, Charleston, SC 29414.
2. October 26, 2016, 9 a.m.–5 p.m., Holiday Inn, 151 Route 72 East, Manahawkin, NJ 08050.
3. November 4, 2016, 9 a.m.–5 p.m., Hilton Garden Inn, 5353 North Virginia Dare Trail, Kitty Hawk, NC 27949.
4. November 7, 2016, 9 a.m.–5 p.m., Hilton Garden Inn, 1101 US Highway 231, Panama City, FL 32405.
5. December 7, 2016, 9 a.m.–5 p.m., Holiday Inn, 99701 Overseas Highway, Key Largo, FL 33037.
6. December 16, 2016, 9 a.m.–5 p.m., Hilton Garden Inn, 3485 Veterans Memorial Highway, Ronkonkoma, NY 11779.
To register for a scheduled Protected Species Safe Handling, Release, and Identification Workshop, please contact Angler Conservation Education at (386) 682–0158.
To ensure that workshop certificates are linked to the correct permits, participants will need to bring the following specific items with them to the workshop:
• Individual vessel owners must bring a copy of the appropriate swordfish and/or shark permit(s), a copy of the vessel registration or documentation, and proof of identification.
• Representatives of a business-owned or co-owned vessel must bring proof that the individual is an agent of the business (such as articles of incorporation), a copy of the applicable swordfish and/or shark permit(s), and proof of identification.
• Vessel operators must bring proof of identification.
The Protected Species Safe Handling, Release, and Identification Workshops are designed to teach longline and gillnet fishermen the required techniques for the safe handling and release of entangled and/or hooked protected species, such as sea turtles, marine mammals, and smalltooth sawfish. In an effort to improve reporting, the proper identification of protected species will also be taught at these workshops. Additionally, individuals attending these workshops will gain a better understanding of the requirements for participating in these fisheries. The overall goal of these workshops is to provide participants with the skills needed to reduce the mortality of protected species, which may prevent additional regulations on these fisheries in the future.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Ecosystem Based Fishery Management (EBFM) Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Monday, September 19, 2016 at 10 a.m.
The meeting will be held at the DoubleTree Hotel, 50 Ferncroft Road, Danvers, MA 01923; telephone: (978) 777–2500; fax: (978) 750–7991.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465–0492.
The committee will discuss and provide feedback on a Draft Operating Model for the Georges Bank Ecosystem Production Unit description prepared by the EBFM Plan Development Team. This operating model will provide the foundation for a Georges Bank Fishery Ecosystem Plan and Management Strategy Evaluation. The committee will also review and draft comments on a Draft NOAA Fisheries EBFM Policy and Roadmap. Other business will be discussed if time permits.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465–0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Gulf of Mexico Fishery Management Council will hold a one and a half day meeting of its Standing,
The meeting will begin at 1 p.m. on Tuesday, September 20, 2016, and end at 5 p.m. on Wednesday, September 21, 2016.
The meeting will be held at the Gulf Council's Conference Room, and via Webinar. You may attend the meeting via Webinar by registering at:
Steven Atran, Senior Fishery Biologist, Gulf of Mexico Fishery Management Council;
You may register for SSC Meeting: Standing,
The Agenda is subject to change, and the latest version along with other meeting materials will be posted on the Council's file server. To access the file server, the URL is
The meeting will be Webcast over the internet. A link to the Webcast will be available on the Council's Web site, at
Although other non-emergency issues not on the agenda may come before the Scientific and Statistical Committee for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meeting. Actions of the Scientific and Statistical Committee will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira, at the Gulf Council Office (see
16 U.S.C. 1801
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to and Deletions from the Procurement List.
This action adds products to the Procurement List that will be furnished by a nonprofit agency employing persons who are blind or have other severe disabilities, and deletes products and a service from the Procurement List previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202–4149.
Barry S. Lineback, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
On 7/29/2016 (81 FR 49960–49961), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed additions to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and impact of the additions on the current or most recent contractors, the Committee has determined that the products listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501–8506 and 41 CFR 51–2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products to the Government.
2. The action will result in authorizing small entities to furnish the products to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501–8506) in connection with the products proposed for addition to the Procurement List.
Accordingly, the following products are added to the Procurement List:
On 5/6/2016 (81 FR 27419–27420) and 7/29/2016 (81 FR 49960–49961), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products and service listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501–8506 and 41 CFR 51–2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products and service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501–8506) in connection with the products and service deleted from the Procurement List.
Accordingly, the following products and service are deleted from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed Additions to and Deletions from the Procurement List.
The Committee is proposing to add products to the Procurement List that will be furnished by the nonprofit agency employing persons who are blind or have other severe disabilities, and deletes products and services previously furnished by such agencies.
Comments must be received on or before October 2, 2016.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202–4149.
Barry S. Lineback, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51–2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the products listed below from the nonprofit agency employing persons who are blind or have other severe disabilities.
The following products are proposed for addition to the Procurement List for production by the nonprofit agency listed:
The following products and services are proposed for deletion from the Procurement List:
10:00 a.m., Friday, September 9, 2016.
Three Lafayette Centre, 1155 21st Street NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance, enforcement, and examinations matters. In the event that the time, date, or location of this meeting changes, an announcement of the change, along with the new time, date, and/or place of the meeting will be posted on the Commission's Web site at
Christopher Kirkpatrick, 202–418–5964.
Federal Student Aid, Department of Education.
Notice of an altered system of records.
In accordance with the Privacy Act of 1974, as amended (Privacy Act), the Chief Operating Officer for Federal Student Aid (FSA) of the U.S. Department of Education (the Department) publishes this notice to revise the system of records entitled “Common Services for Borrowers (CSB)” (18–11–16).
The Department publishes this notice to supplement the description of the CSB system to include paper records obtained from guarantee agencies as part of the appeal of guarantee agencies' decisions to the Department and to revise the CSB system of records as a result of receiving multiple requests for documents from Federal, State, local, or tribal governmental entities seeking to verify Department contractors' compliance with consumer protection, debt collection, financial, and other applicable statutory, regulatory, or local requirements. To more easily accommodate these requests, FSA proposes to add a new routine use to allow the Department to make disclosures to governmental entities at the Federal, State, or local levels regarding the practices of Department contractors who have been provided with access to the CSB system (
Submit your comments on this altered system of records notice on or before October 3, 2016.
The Department has filed a report describing the altered system of records covered by this notice with the Chair of the Senate Committee on Homeland Security and Governmental Affairs, the Chair of the House Committee on Oversight and Government Reform, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB) on August 22, 2016. This altered system of records will become effective on the later date of: (1) The expiration of the 40-day period for OMB review on August 22, 2016; or (2) October 3, 2016, unless the altered system of records notice needs to be changed as a result of public comment or OMB review. The Department will publish any changes to the altered system of records notice that result from public comment or OMB review.
Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments submitted by fax or by email or those submitted after the comment period. To ensure that we do not receive duplicate copies, please submit your comments only once. In addition, please include the Docket ID at the top of your comments.
•
•
The Department's policy is to make all comments received from members of the public available for public viewing in their entirety on the Federal eRulemaking Portal at
William Leith, Director, Program Management Services, Business Operations, Federal Student Aid, U.S. Department of Education, UCP, 830 First Street NE., Room 111I1, Washington, DC 20202–5132. Telephone number: (202) 377–3676.
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), you may call the Federal Relay Service (FRS), toll free, at 1–800–877–8339.
The CSB system of records covers records for all activities that the Department carries out with regard to making and servicing Federal title IV, HEA loans, and collecting or otherwise resolving obligations owed by an individual with respect to a Federal title IV, HEA loan or grant program. The CSB system contains records of an individual's Federal title IV, HEA loans or grants and of transactions performed by the Department to carry out the purposes of this notice.
Authority to collect data to make and service title IV, HEA loans, and to otherwise resolve obligations owed by an individual with respect to a Federal title IV, HEA grant program, is provided by titles IV–A, IV–B, IV–D, and IV–E of the HEA.
The Privacy Act (5 U.S.C. 552a(e)(4) and (11)) requires Federal agencies to publish in the
The Privacy Act applies to records about individuals that contain individually identifying information and that are retrieved by a unique identifier associated with each individual, such as a name or Social Security number. The information about each individual is called a “record,” and the system, whether manual or computer-based, is called a “system of records.”
Whenever the Department makes a significant change to an established system of records, the Privacy Act requires the Department to publish a notice of an altered system of records in the
A change to a system of records is considered to be a significant change that must be reported whenever an agency expands the types or categories of information maintained, significantly expands the number, types, or categories of individuals about whom records are maintained, changes the purpose for which the information is used, changes the equipment configuration in a way that creates substantially greater access to the records, or adds a routine use disclosure to the system. The CSB system of records was first published in the
This notice will add a new category of records to the categories of records in the CSB system. This category will include records obtained by the Department as part of the appeal of guarantee agency decisions. These records are kept by the Department in paper form and are not included in any electronic systems. Including these records in the CSB system will ensure the accurate description of the records used by the Department to carry out student loan-related activities.
This notice will also add a new programmatic routine use (1)(r) to allow the Department to make disclosures to governmental entities at the Federal, State, local, or tribal levels regarding the practices of Department contractors who have been provided with access to the CSB system (
You may also access documents of the Department published in the
Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.
For the reasons discussed in the preamble, the Chief Operating Officer of Federal Student Aid (FSA), U.S. Department of Education (Department), publishes a notice of an altered system of records. The following amendment is made to the Notice of Altered and Deleted Systems of Records entitled “Common Services for Borrowers (CSB)” (18–11–16), as last published in the
Common Services for Borrowers (CSB).
None.
Maximus Federal Services, Inc., 9651 Hornbaker Road, Manassas, VA 20109 [Department contractor—Debt Management Collection System (DMCS) Data Center].
U.S. Department of Education, Federal Student Aid, 830 First Street NE., Union Center Plaza (UCP), Washington, DC 20202–5132.
See Appendix II to this notice for the name and location of additional
Federal Loan Servicers:
• Great Lakes Educational Loan Services, Inc., 2401 International Lane, Madison, WI 53704–3121;
• Nelnet Servicing LLC, 1001 Fort Crook Road N., Suite 132, Bellevue, NE 68005, 6420 Southpoint Parkway, Jacksonville, FL 32216–8009 and 3015 South Parker Road, Aurora, CO 80014–2906;
• Pennsylvania Higher Education Assistance Agency (PHEAA), 1200 North 7th Street, Harrisburg, PA 17102–1419;
and
• Navient Corporation, 11100 USA Parkway, Fishers, IN 46037–9203.
The Department contracts with the aforementioned four Federal Loan Servicers group to effectively manage the servicing and processing of the large number of Federal Family Education Loan Program loans purchased by the Department and as a result of the transition to 100 percent Direct Loans.
The Department also contracts with Not-for-Profit (NFP) Servicers, which also serve as Federal Loan Servicers to support loan servicing. See Appendix II to this notice for the name and location of each NFP Servicer with which the Department contracts.
In addition to the Federal Loan Servicers listed above, the Department contracts with Educational Computer Systems, Inc. (ECSI), 181 Montour Run Road, Coraopolis, PA 15108–9408, to service Federal Perkins Loans.
The Department also contracts with Private Collection Agencies (PCAs) to collect delinquent or defaulted loans. See Appendix II to this notice for the name and location of each PCA with which the Department contracts.
Other contractors that the Department contracts with to maintain this system of records are found in Appendix II to this notice along with the name of the system that they support.
The CSB system contains records on those individuals who received a loan or who are otherwise obligated to repay a loan or grant made under title IV of the Higher Education Act of 1965, as amended (HEA), held and collected by the Department, which was made under: (1) The Federal Family Education Loan (FFEL) Program, including Stafford Loans, Federal Insured Student Loans (FISL), Supplemental Loans for Students (SLS), PLUS Loans (formerly Parental Loans for Undergraduate Students), and Consolidation Loans; (2) the William D. Ford Federal Direct Loan (Direct Loan) Program, including Federal Direct Unsubsidized and Subsidized Stafford/Ford Loans, Federal Direct Consolidation Loans, and Federal Direct PLUS Loans; (3) the Federal Perkins Loan Program; (4) the Federal Pell Grant Program; (5) the Federal Supplemental Education Opportunity Grant (FSEOG) Program; (6) the Leveraging Educational Assistance Partnership (LEAP) Program; (7) the Special Leveraging Educational Assistance Partnership (SLEAP) Program; (8) Academic Competiveness Grant (ACG) Program; (9) National Science and Mathematics Access to Retain Talent (SMART) Grant Program; (10) Teach Education Assistance for College and Higher Education (TEACH) Grant Program; (11) the Iraq and Afghanistan Service Grant Program; (12) the Civil Legal Assistance Attorney Student Loan Repayment Program (CLAARP); and (13) the Public Service Loan Forgiveness (PSLF) Program.
This system also contains records on individuals who apply for, but do not receive a Direct Loan, as well as individuals identified by the borrower or recipient of the Federal title IV, HEA loan or grant as references or as household members whose income and expenses are considered in connection with the making or the enforcement of the grant or loan.
This system of records covers the records in all systems used by the Department to carry out activities with regard to making and servicing loans, including collecting or otherwise resolving obligations owed by an individual under title IV of the HEA. The following systems are covered by this system of records notice: DMCS, CLAARP system, PSLF system, systems operated by the Federal Loan Servicers to accomplish the purpose(s) of this system of records, systems operated by the Federal Perkins Loan Program Servicer to accomplish the purpose(s) of this system of records, systems operated by the PCAs to accomplish the purpose(s) of this system of records, and Total and Permanent Disability (TPD) system, as well as paper records obtained by the Department from guarantee agencies in the process of considering appeals by title IV loan borrowers of guarantee agency decisions.
This system of records contains the employment information, educational status, family income, Social Security number (SSN), address(es), email address(es), and telephone number(s) of the individuals obligated on the debt or whose income and expenses are included in a financial statement submitted by the individual. This system also contains records including, but not limited to, the application for, agreement to repay, and disbursements on the loan, and loan guaranty, if any; the repayment history, including deferments and forbearances; claims by lenders on the loan guaranty; and cancellation or discharges on grounds of qualifying service, bankruptcy discharge, disability (including medical records submitted to support application for discharge by reason of disability), death, or other statutory or regulatory grounds for relief.
Additionally, for title IV, HEA grant overpayments, the system contains records about the amount disbursed, the school that disbursed the grant, and the basis for overpayment; for all debts, the system contains demographic, employment, and other data on the individuals obligated on the debt or provided as references by the obligor, and the collection actions taken by any holder, including write-off amounts and compromise amounts.
Titles IV–A, IV–B, IV–D, and IV–E of the HEA.
The information maintained in this system of records is used for the following purposes:
(1) To verify the identity of an individual;
(2) To determine program eligibility and benefits;
(3) To facilitate default reduction efforts by program participants;
(4) To enforce the conditions or terms of a loan or grant;
(5) To make, service, collect, assign, adjust, transfer, refer, or discharge a loan or collect a grant obligation;
(6) To counsel a debtor in repayment efforts;
(7) To investigate possible fraud or abuse or verify compliance with program regulations;
(8) To locate a delinquent or defaulted borrower or an individual obligated to repay a loan or grant;
(9) To prepare a debt for litigation, provide support services for litigation on a debt, litigate a debt, or audit the results of litigation on a debt;
(10) To prepare for, conduct, or enforce a limitation, suspension, termination, or debarment action;
(11) To ensure that program requirements are met by educational and financial institutions, Federal Loan Servicers, the Federal Perkins Loan Servicer, PCAs, and guaranty agencies;
(12) To verify whether a debt qualifies for discharge, cancellation, or forgiveness;
(13) To conduct credit checks or respond to inquiries or disputes arising from information on the debt already furnished to a credit-reporting agency;
(14) To investigate complaints, update information, or correct errors contained in Department records;
(15) To refund credit balances to the individual or loan holder;
(16) To allow educational institutions, financial institutions, Federal Loan Servicers, the Federal Perkins Loan Servicer, PCAs, and guaranty agencies to report information to the Department on all aspects of loans and grants made under title IV of the HEA in uniform formats to permit the Department directly to compare data submitted to the Department by individual educational institutions, financial institutions, third-party servicers, guaranty agencies, Federal Loan Servicers, the Federal Perkins Loan Servicer, or PCAs; and
(17) To report to the Internal Revenue Service (IRS) information required by law to be reported, including, but not limited to, reports required by 26 U.S.C. 6050P and 6050S.
The Department may disclose information contained in a record in this system of records under the routine uses listed in this system of records without the consent of the individual if the disclosure is compatible with the purposes for which the information in the record was collected. These disclosures may be made on a case-by-case basis, or, if the Department has complied with the computer matching requirements of the Privacy Act of 1974, as amended (Privacy Act), under a computer matching agreement. Return information that the Department obtains from the IRS (
(1) Program Disclosures. The Department may disclose records for the following program purposes:
(a) To verify the identity of the individual whom records indicate has applied for or received the loan or grant, disclosures may be made to guaranty agencies, educational and financial institutions, and their authorized representatives; to Federal, State, or local agencies, and their authorized representatives; to private parties, such as relatives, business and personal associates, and present and former employers; to creditors; to consumer reporting agencies; to adjudicative bodies; and to the individual whom the records identify as the party obligated to repay the debt;
(b) To determine program eligibility and benefits, disclosures may be made to guaranty agencies, educational and financial institutions, and their authorized representatives; to Federal, State, or local agencies, and their authorized representatives; to private parties, such as relatives, business and personal associates, and present and former employers; to creditors; to consumer reporting agencies; and to adjudicative bodies;
(c) To facilitate default reduction efforts by program participants, disclosures may be made to guaranty agencies, educational and financial institutions, and their authorized representatives; to Federal, State, or local agencies, and their authorized representatives; to consumer reporting agencies; and to adjudicative bodies;
(d) To enforce the conditions or terms of the loan or grant, disclosures may be made to guaranty agencies, educational and financial institutions, and their authorized representatives; to Federal, State, or local agencies, and their authorized representatives; to private parties, such as relatives, business and personal associates, and present and former employers; to creditors; to consumer reporting agencies; and to adjudicative bodies;
(e) To permit making, servicing, collecting, assigning, adjusting, transferring, referring, or discharging a loan or collecting a grant obligation, disclosures may be made to guaranty agencies, educational institutions, or financial institutions that made, held, serviced, or have been assigned the debt, and their authorized representatives; to a party identified by the debtor as willing to advance funds to repay the debt; to Federal, State, or local agencies, and their authorized representatives; to private parties, such as relatives, business and personal associates, and present and former employers; to creditors; to consumer reporting agencies; and to adjudicative bodies;
(f) To counsel a debtor in repayment efforts, disclosures may be made to guaranty agencies, educational and financial institutions, and their authorized representatives; and to Federal, State, or local agencies, and their authorized representatives;
(g) To investigate possible fraud or abuse or verify compliance with program regulations, disclosures may be made to guaranty agencies, educational and financial institutions, and their authorized representatives; to Federal, State, or local agencies, and their authorized representatives; to private parties, such as relatives, present and former employers, and business and personal associates; to creditors; to consumer reporting agencies; and to adjudicative bodies;
(h) To locate a delinquent or defaulted borrower, or an individual obligated to repay a loan or grant, disclosures may be made to guaranty agencies, educational and financial institutions, and their authorized representatives; to Federal, State, or local agencies, and their authorized representatives; to private parties, such as relatives, business and personal associates, and present and former employers; to creditors; to consumer reporting agencies; and to adjudicative bodies;
(i) To prepare a debt for litigation, to provide support services for litigation on a debt, to litigate a debt, or to audit the results of litigation on a debt, disclosures may be made to guaranty agencies and their authorized representatives; to Federal, State, or local agencies, and their authorized representatives; and to adjudicative bodies;
(j) To prepare for, conduct, or enforce a limitation, suspension, and termination or a debarment action, disclosures may be made to guaranty agencies, educational or financial institutions, and their authorized representatives; to Federal, State, or local agencies, and their authorized representatives; and to adjudicative bodies;
(k) To ensure that HEA program requirements are met by educational and financial institutions, guaranty agencies, Federal Loan Servicers, the Federal Perkins Loan Servicer, and PCAs, disclosures may be made to guaranty agencies, educational or financial institutions, and their authorized representatives, and to auditors engaged to conduct an audit of a guaranty agency or an educational or financial institution; to Federal, State, or local agencies, their authorized representatives, or accrediting agencies; and to adjudicative bodies;
(l) To verify whether a debt qualifies for discharge, forgiveness, or cancellation, disclosures may be made to guaranty agencies, educational and financial institutions, and their authorized representatives; to Federal, State, or local agencies, and their authorized representatives; to private parties, such as relatives, present and former employers, and business and
(m) To conduct credit checks or to respond to inquiries or disputes arising from information on the debt already furnished to a credit reporting agency, disclosures may be made to credit reporting agencies; to guaranty agencies, educational and financial institutions, and their authorized representatives; to Federal, State, or local agencies, and their authorized representatives; to private parties, such as relatives, present and former employers, and business and personal associates; to creditors; and to adjudicative bodies;
(n) To investigate complaints or to update information or correct errors contained in Department records, disclosures may be made to guaranty agencies, educational and financial institutions, and their authorized representatives; to Federal, State, or local agencies, and their authorized representatives; to private parties, such as relatives, present and former employers, and business and personal associates; to creditors; to credit reporting agencies; and to adjudicative bodies;
(o) To refund credit balances that are processed through the Department's systems, as well as the U.S. Department of the Treasury's (Treasury's) payment applications, to the individual or loan holder, disclosures may be made to guaranty agencies, educational and financial institutions, and their authorized representatives; to Federal, State, or local agencies, and their authorized representatives; to private parties, such as relatives, present and former employers, and business and personal associates; and to creditors;
(p) To allow the reporting of information to the Department on all aspects of loans and grants made under title IV of the HEA in uniform formats and to permit the Department directly to compare data submitted to the Department by individual educational institutions, financial institutions, third-party servicers, guaranty agencies, Federal Loan Servicers, the Federal Perkins Loan Servicer, or PCAs, disclosures may be made to educational institutions, financial institutions, guaranty agencies, Federal Loan Servicers, the Federal Perkins Loan Servicer, and PCAs; and
(q) To report information required by law to be reported, including, but not limited to, reports required by 26 U.S.C. 6050P and 6050S, disclosures may be made to the IRS.
(r) To allow the Department to make disclosures to governmental entities at the Federal, State, local, or tribal levels regarding the practices of Department contractors who have been provided with access to the CSB system (
(2) Feasibility Study Disclosure. The Department may disclose information from this system of records to other Federal agencies, and to guaranty agencies and to their authorized representatives, to determine whether computer matching programs should be conducted by the Department for purposes such as to locate a delinquent or defaulted debtor or to verify compliance with program regulations.
(3) Disclosure for Use by Other Law Enforcement Agencies. The Department may disclose information to any Federal, State, local, tribal, or foreign agency or other public authority responsible for enforcing, investigating, or prosecuting violations of administrative, civil, or criminal law or regulation if that information is relevant to any enforcement, regulatory, investigative, or prosecutorial responsibility within the receiving entity's jurisdiction.
(4) Enforcement Disclosure. In the event that information in this system of records indicates, either alone or in connection with other information, a violation or potential violation of any applicable statutory, regulatory, or legally binding requirement, the Department may disclose the relevant records to an entity charged with the responsibility for investigating or enforcing those violations or potential violations.
(5) Litigation and Alternative Dispute Resolution (ADR) Disclosure.
(a) Introduction. In the event that one of the parties listed below is involved in judicial or administrative litigation or ADR, or has an interest in such litigation or ADR, the Department may disclose certain records to the parties described in paragraphs (b), (c), and (d) of this routine use under the conditions specified in those paragraphs:
(i) The Department or any of its components;
(ii) Any Department employee in his or her official capacity;
(iii) Any Department employee in his or her individual capacity where the Department of Justice (DOJ) has been requested to or agrees to provide or arrange for representation for the employee;
(iv) Any Department employee in his or her individual capacity where the Department has agreed to represent the employee; and
(v) The United States, where the Department determines that the litigation is likely to affect the Department or any of its components.
(b) Disclosure to the DOJ. If the Department determines that disclosure of certain records to the DOJ is relevant and necessary to the judicial or administrative litigation or ADR, the Department may disclose those records as a routine use to the DOJ.
(c) Adjudicative Disclosure. If the Department determines that disclosure of certain records to an adjudicative body before which the Department is authorized to appear or to an individual or an entity designated by the Department or otherwise empowered to resolve or mediate disputes is relevant and necessary to the judicial or administrative litigation or ADR, the Department may disclose those records as a routine use to the adjudicative body, individual, or entity.
(d) Parties, Counsel, Representatives, and Witnesses. If the Department determines that disclosure of certain records to a party, counsel, representative, or witness is relevant and necessary to the judicial or administrative litigation or ADR, the Department may disclose those records as a routine use to the party, counsel, representative, or witness.
(6) Employment, Benefit, and Contracting Disclosure.
(a) For Decisions by the Department. The Department may disclose a record to a Federal, State, or local agency maintaining civil, criminal, or other relevant enforcement or other pertinent records, or to another public authority or professional organization, if necessary to obtain information relevant to a Department decision concerning the hiring or retention of an employee or other personnel action, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant, or other benefit.
(b) For Decisions by Other Public Agencies and Professional Organizations. The Department may disclose a record to a Federal, State, local, or other public authority or professional organization, in connection with the hiring or retention of an
(7) Employee Grievance, Complaint, or Conduct Disclosure. If a record is relevant and necessary to an employee grievance, complaint, or disciplinary action, the Department may disclose the record in this system of records in the course of investigation, fact-finding, or adjudication to any witness, designated fact-finder, mediator, or other person designated to resolve issues or decide the matter.
(8) Labor Organization Disclosure. The Department may disclose a record from this system of records to an arbitrator to resolve disputes under a negotiated grievance procedure or to officials of a labor organization recognized under 5 U.S.C. chapter 71 when relevant and necessary to their duties of exclusive representation.
(9) Freedom of Information Act (FOIA) and Privacy Act Advice Disclosure. The Department may disclose records to the DOJ or to the Office of Management and Budget (OMB) if the Department determines that disclosure is desirable or necessary in determining whether particular records are required to be disclosed under the FOIA or the Privacy Act.
(10) Disclosure to the DOJ. The Department may disclose records to the DOJ, or the authorized representative of DOJ, to the extent necessary for obtaining DOJ advice on any matter relevant to an audit, inspection, or other inquiry related to the programs covered by this system.
(11) Contracting Disclosure. If the Department contracts with an entity for the purposes of performing any function that requires disclosure of records in this system to employees of the contractor, the Department may disclose the records to those employees. Before entering into such a contract, the Department shall require the contractor to maintain Privacy Act safeguards as required under 5 U.S.C. 552a(m) of the Privacy Act with respect to the records in the system.
(12) Research Disclosure. The Department may disclose records to a researcher if the Department determines that the individual or organization to which the disclosure would be made is qualified to carry out specific research related to functions or purposes of this system of records. The Department may disclose records from this system of records to that researcher solely for the purpose of carrying out that research related to the functions or purposes of this system of records. The researcher shall be required to maintain Privacy Act safeguards with respect to the disclosed records.
(13) Congressional Member Disclosure. The Department may disclose the records of an individual to a Member of Congress in response to an inquiry from the Member made at the written request of that individual whose records are being disclosed. The Member's right to the information is no greater than the right of the individual who requested the inquiry.
(14) Disclosure to OMB for Credit Reform Act (CRA) Support. The Department may disclose records to OMB as necessary to fulfill CRA requirements. These requirements currently include transfer of data on lender interest benefits and special allowance payments, defaulted loan balances, and supplemental pre-claims assistance payments information.
(15) Disclosure in the Course of Responding to a Breach of Data. The Department may disclose records to appropriate agencies, entities, and persons when (a) the Department suspects or has confirmed that the security or confidentiality of information in a system covered by this system of records notice has been compromised; (b) the Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other system or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and (c) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
(16) Disclosure to Third Parties through Computer Matching Programs. Unless otherwise prohibited by other laws, any information from this system of records, including personal information obtained from other agencies through computer matching programs, may be disclosed to any third party through a computer matching program, which is conducted under a Computer Matching Agreement between the Department and the third party, and requires that the matching be conducted in compliance with the requirements of the Privacy Act. Purposes of these disclosures may be: (a) To establish or verify program eligibility and benefits, (b) to establish or verify compliance with program regulations or statutory requirements, such as to investigate possible fraud or abuse; and (c) to recoup payments or delinquent debts under any Federal benefit programs, such as to locate or take legal action against a delinquent or defaulted debtor. Appendix I to this notice includes a listing of the computer matching programs that the Department currently engages in or has recently engaged in with respect to this system of records.
(17) Disclosure of Information to Treasury. The Department may disclose records of this system to (a) a Federal or State agency, its employees, agents (including contractors of its agents), or contractors, or (b) a fiscal or financial agent designated by the Treasury, including employees, agents, or contractors of such agent, for the purpose of identifying, preventing, or recouping improper payments to an applicant for, or recipient of, Federal funds, including funds disbursed by a State in a State-administered, Federally funded program; and disclosure may be made to conduct computerized comparisons for this purpose.
Disclosure pursuant to 5 U.S.C. 552a(b)(12): The Department may disclose to a consumer reporting agency information regarding a valid overdue claim of the Department; such information is limited to: (1) The name, address, taxpayer identification number, and other information necessary to establish the identity of the individual responsible for the claim; (2) the amount, status, and history of the claim; and (3) the program under which the claim arose. The Department may disclose the information specified in this paragraph under 5 U.S.C. 552a(b)(12) and the procedures contained in 31 U.S.C. 3711(e). A consumer reporting agency to which these disclosures may be made is defined in 15 U.S.C. 1681a(f) and 31 U.S.C. 3701(a)(3).
The records are maintained in hardcopy, microfilm, magnetic storage, and optical storage media, such as tape, disk, etc.
Records in this system pertaining to a title IV, HEA loan borrower or grant recipient are retrieved by a single data element or a combination of the
All physical access to the Department's site, and to the sites of the Federal Loan Servicers, PCAs, the Federal Perkins Loan Servicer, and other contractors listed in Appendix II to this notice, where this system of records is maintained, is controlled and monitored by security personnel who check each individual entering the building for his or her employee or visitor badge.
In accordance with the Department's Administrative Communications System Directive OM: 5–101 entitled “Contractor Employee Personnel Security Screenings,” all contract and Department personnel who have facility access and system access are required to undergo a security clearance investigation. Individuals requiring access to Privacy Act data are required to hold, at a minimum, a moderate-risk security clearance level. These individuals are required to undergo periodic screening at five-year intervals.
In addition to conducting security clearances, contract and Department employees are required to complete security awareness training on an annual basis. Annual security awareness training is required to ensure that contract and Department users are appropriately trained in safeguarding Privacy Act data in accordance with OMB Circular No. A–130, Appendix III.
The computer system employed by the Department offers a high degree of resistance to tampering and circumvention. This security system limits data access to Department and contract staff on a “need-to-know” basis, and controls individual users' ability to access and alter records within the system. All users of this system of records are given a unique user identification and password. The Department's FSA Information Security and Privacy Policy requires the enforcement of a complex password policy. In addition to the enforcement of a complex password policy, users are required to change their password at least every 60 to 90 days in accordance with the Department's Information Technology standards.
At the system locations of the Federal Loan Servicers, PCAs, the Federal Perkins Loan Servicer, and other contractors, as listed in Appendix II entitled “Additional System Locations,” additional physical security measures are in place and access is monitored 24 hours per day, 7 days a week.
In accordance with the Department's record retention and disposition schedule, records for Pell Grant Program awards are retained for fifteen years after final payment or audit, whichever is sooner, and thereafter destroyed. Insured loans are retained for three years after repayment or cancellation of the loan and thereafter destroyed. The Department will work with the National Archives and Records Administration to develop a disposition schedule for the other records in this system of records. The records will be maintained until such a schedule has been established.
Sue O'Flaherty, Director, Program Management Services, Business Operations, Federal Student Aid, U.S. Department of Education, 830 First Street NE., Room 64E1, UCP, Washington, DC 20202–5132.
If you wish to determine whether a record exists regarding you in this system of records, provide the system manager with your name, date of birth, and SSN. Requests must meet the requirements of the regulations in 34 CFR 5b.5 and 5b.7, including proof of identity.
If you wish to gain access to a record in this system, provide the system manager with your name, date of birth, and SSN. Requests by an individual for access to a record must meet the requirements of the regulations in 34 CFR 5b.5, including proof of identity.
If you wish to contest the content of a record in this system of records, contact the system manager with your name, date of birth, and SSN; identify the specific items to be changed; and provide a written justification for the change. Requests to amend a record must meet the requirements of the regulations in 34 CFR 5b.7.
The system includes information that the Department obtains from applicants and those individuals and their families who received, or who are otherwise obligated to repay, a loan or grant held and collected by the Department. The Department also obtains information from Federal Loan Servicers, PCAs, the Federal Perkins Loan Servicer, references, guaranty agencies, educational and financial institutions and their authorized representatives, and Federal, State, and local agencies and their authorized representatives; private parties, such as relatives and business and personal associates; present and former employers; creditors; consumer reporting agencies; and adjudicative bodies.
None.
(1) The Department is performing, or has recently engaged in, computer matching programs involving a computerized comparison between this system of records and systems of records maintained by the following Federal agencies:
(a) The U.S. Department of the Treasury, IRS [matching notice last published on May 31, 2012 (77 FR 32085–32086)], as authorized under section 6103(m)(2) and (m)(4) of the Internal Revenue Code (26 U.S.C. 6103(m)(2) and (m)(4)), to obtain taxpayer mailing addresses for use in locating individuals to collect or compromise Federal claims, in accordance with 31 U.S.C. 3711, 3717, and 3718, and in locating individuals who received overpayments of grants made under subpart 1 of part A of title IV of the HEA or who defaulted on loans made under part B, D, or E of title IV of the HEA;
(b) The Department of Housing and Urban Development's Credit Alert Interactive Voice Response System (CAIVRS) [matching notice last published on July 5, 2011 (76 FR 39119–39120)] to allow program agencies to prescreen applicants for loans made or loans guaranteed by the Federal government to determine if the applicant is delinquent or has defaulted
(c) The Department of Health and Human Services' National Directory of New Hires Data Base (NDNH) [matching notice last published on May 9, 2006 (71 FR 26934–26935)], as authorized under Section 453(j)(6) of the Social Security Act (42 U.S.C. 653(j)(6)), to obtain employment-related and address information on individuals who have defaulted on a loan made under title IV of the HEA or have an obligation to refund a grant overpayment awarded under title IV of the HEA.
These computer matching programs are conducted in compliance with the requirements of the Privacy Act, including publishing in the
U.S. Department of Education, 50 Beale Street, San Francisco, CA 94105.
U.S. Department of Education, 500 West Madison Street, Chicago, IL 60661.
U.S. Department of Education, 61 Forsyth Street, Atlanta, GA 30303.
Nelnet Servicing LLC, 1001 Fort Crook Road N., Suite 132, Bellevue, NE 68005 (Department contractor—TPD).
PHEAA [FedLoan Servicing (FedLoan) & American Education Services (AES)], 1200 North 7th Street, Harrisburg, PA 17102–1419 (FedLoan: Department contractor—TEACH Grant; AES: Department contractor—FFEL Program).
Maximus Federal Services, Inc., 5202 Presidents Court, Frederick, MD 21703 (Department contractor—DMCS Program Management and Help Desk).
Maximus Federal Services, Inc., 1891 Metro Center Drive, Reston, VA 20190 (Department contractor—Help Desk Application).
Maximus Federal Services, Inc., 11400 Westmoor Circle, Westminster, CO 80021 (Department contractor—DMCS Disaster Recovery Site).
Maximus Federal Services, Inc., 501 Bleecker Street, Utica, NY 13501 (Department contractor—DMCS Business and Financial Operations Management).
Maximus Federal Services, Inc., 6201 I–30, Greenville, TX 75403 (Department contractor—DMCS Financial Processing).
MPM Communications, 3480 Catterton Place, Suite 102, Waldorf, MD 20602 (sub-contractor—Fulfillment Services for DMCS mailings).
General Dynamics Information Technology, 2400 Oakdale Boulevard, Coralville, IA 52241 (Department contractor—DMCS).
General Dynamics Information Technology, 1 Imeson Park Boulevard, Jacksonville, FL 32218 (Department contractor—DMCS).
• Missouri Higher Education Loan Authority (MOHELA): 633 Spirit Drive, Chesterfield, MO 63005; 400 East Walnut Street, Columbia, MO 65201; 1001 N. 6th Street, Harrisburg, PA 17102; 300 Long Meadow Road, Sterling Forest, NY 10979.
• Education Servicers of America, Inc. (ESA)/Edfinancial: 298 N. Seven Oaks Drive, Knoxville, TN 37922; 120 N. Seven Oaks Drive, Knoxville, TN 37922; 5600 United Drive, Smyrna, GA 30082; 1001 Fort Crook Road N., Suite 132, Bellevue, NE 68005–4247; 700 East 54th Street North, Suite 200, Sioux Falls, SD 57104; 13271 North Promenade Boulevard, Stafford, TX 77477–3957; 2307 Directors Row, Indianapolis, IN 46241.
• Utah Higher Education Assistance Authority (UHEAA)/Cornerstone Education Loan Services: 60 S. 400 W., Board Of Regents' Building, Gateway Two, Salt Lake City, UT 84101–1284; 350 S. 900 W., Richfield, UT 84701; 6279 East Little Cottonwood Road, Sandy, UT 84092; 1001 N. 6th Street, Harrisburg, PA 17102.
• Oklahoma Student Loan Authority (OSLA): 525 Central Park Drive, Suite 600, Oklahoma City, OK 73154; 7499 East Paradise Lane Suite 108, Scottsdale, AZ 85260; 11300 Partnership Drive #C, Oklahoma City, OK 73013; 1001 Fort Crook Road N., Suite 132, Bellevue, NE 68005; 700 East 54th Street North, Suite 200, Sioux Falls, SD 57104; 13100 North Promenade Boulevard, Stafford, TX 77477; 1601 Leavenworth Street, Omaha, NE 68102.
• Vermont Student Assistance Corporation (VSAC): 10 East Allen Street, Winooski, VT 05404; 1001 Fort Crook Road N., Suite 132, Bellevue, NE 68005–4247; 700 East 54th Street North, Suite 200, Sioux Falls, SD 57104.
• ISL Service Corporation/Aspire Resources Inc.: 6775 Vista Drive, West Des Moines, IA 50266; 6955 Vista Drive, West Des Moines, IA 50266; 3096 104th Street, Urbandale, IA 50322; 1870 East Euclid Avenue, Des Moines, IA 50313; 1435 Northridge Cr., NE., Altoona, IA 50009; 1001 N. 6th Street, Harrisburg, PA 17102; 300 Long Meadow Road, Sterling Forest, NY 10979.
• New Hampshire Higher Education Loan Corporation (NHHELCO)/Granite State Management & Resources (GSM&R): 3 and 4 Barrell Court, Concord, NH 03301; 401 N. Broad Street, Suite 600, Philadelphia, PA 19108; 21 Terry Avenue, Burlington, MA 01803; 1001 Fort Crook Road N., Suite 132, Bellevue, NE 68005–4247; 700 East 54th Street North, Suite 200, Sioux Falls, SD 57104; 13100 North Promenade Boulevard, Stafford, TX 77477; 1601 Leavenworth Street, Omaha, NE., 68102.
• South Carolina Student Loan Corporation: 16 Berryhill Road, Ste. 121, Columbia, SC 29210; 401 North Broad Street, Philadelphia, PA 19108; 2400 Reynolda Road, Winston-Salem, NC 27106.
• Tru Student, Inc.: 2500 Broadway, Helena, MT 59601; 680 E. Swedesford Road, Wayne, PA 19087; 1424 National Avenue, Helena, MT 59601; 1700 National Avenue, Helena, MT 59601; 1001 N. 6th Street, Harrisburg, PA 17102; 300 Long Meadow Road, Sterling Forest, NY 10979.
• Kentucky Higher Education Student Loan Corporation (KHESLC): 10180 Linn Station Road, Louisville, KY 40223; 2400 Reynolda Road, Winston-Salem NC 27106; 6825 Pine Street, Omaha, NE 68106; 1001 Fort Crook Road N., Suite 132, Bellevue, NE 68005–4247.
• College Foundation, Inc.: 2917 Highwoods Boulevard, Raleigh, NC 27604; 3120 Poplarwood Court, Raleigh, NC 27604; 924 Ellis Road, Durham, NC 27703; 2400 Reynolda Road, Winston-Salem, NC 27106.
• Council for South Texas Economic Progress (COSTEP): 2540 W. Trenton Road, Edinburg, TX 78539; 1044 Liberty Park Drive, Austin, TX 78746; 2400 Reynolda Road, Winston-Salem, NC 27106.
• Georgia Student Finance Authority: 2082 East Exchange Place, Tucker, Georgia 30084; 401 North Broad Street, Philadelphia, PA 19130; 5600 United Drive, Smyrna, GA 30082; 2400 Reynolda Road, Winston-Salem, NC 27106.
• New Mexico Educational Assistance Foundation: 7400 Tiburon NE., Albuquerque, NM 87109; 123 Central Ave NW., Albuquerque, NM 87102; 1200 North Seventh Street, Harrisburg, PA 17102–1444; 300 Long Meadow Lane, Sterling Forest, NY 10979.
• Connecticut (Campus Partners): 2400 Reynolda Road, Winston-Salem, NC 27106; 8906 Two Notch Road, Columbia, SC 29223; 10180 Linn Station Road, Suite C200, Louisville, KY 40223; 2917 Highwoods Boulevard, Raleigh, NC 27629; 1001 Fort Crook Road North, Suite 132, Bellevue, NE 68005; 11425 South 84th Street, Papillion, NE 68046; 20441 Century Boulevard, Germantown, MD 20874; 400 Perimeter Park Drive, Morrisville, NC 27560; 1600 Malone Street, Millville, NJ 08332; 123 Wyoming Avenue, Scranton, PA 18503.
• Collecto, Inc. Dba EOS CCA: 700 Longwater Drive, Norwell, MA 02061.
• GC Services: 4326 N. Broadway Northgate Plaza, Knoxville, TN 37917.
• Allied Interstate: 335 Madison Avenue, 27th floor, New York, NY 10017.
• The CBE Group, Inc.: 1309 Technology Parkway, Cedar Falls IA 50613.
• Diversified Collection Service (DCS): 333 North Canyons Parkway, Suite 100, Livermore, California 94551.
• Financial Asset Management Systems, Inc. (FAMS): 1967 Lakeside Parkway, Suite 402, Tucker, GA 30084.
• NCO Financial Systems, Inc.: 507 Prudential Road, Horsham, PA 19044.
• Pioneer Credit Recovery, Inc.: 26 Edward Street, Arcade, NY 14009.
• Account Control Technology, Inc.: 6918 Owensmouth Avenue, Canoga Park, CA 91303.
• Van Ru Credit Corporation: 1350 E. Touhy Avenue, Suite 300E, Des Plaines, IL 60018.
• Progressive Financial Services: 1510 Chester Pike Suite 250, Eddystone, PA 19022.
• West Asset Management Enterprises, Inc.: 2221 New Market Parkway, Suite 120, Marietta, GA 30067.
• Premiere Credit of North America: 2002 Wellesley Boulevard, Suite 100, Indianapolis, IN 46219.
• ConServe: 200 CrossKeys Office Park, Fairport, NY 14450.
• Financial Management Systems (FMS): 1000 E. Woodfield Road, Suite 102, Schaumburg, IL 60173–4728.
• Collection Technology, Inc.: 1200 Corporate Center Drive, Suite 325, Monterey Park, CA 91754.
• Enterprise Recovery Systems, Inc. (ERS): 2400 S. Wolf Road, Suite 200, Westchester, IL 60154.
• Windham Professionals, Inc.: 380 Main Street, Salem, NH 03079.
• Delta Management Associates, Inc.: 100 Everett Avenue Suite 6, Chelsea, MA 02150.
• Immediate Credit Recovery, Inc.: 169 Myers Corners Road Suite 110, Wappingers Falls, NY 12590.
• National Recoveries: 14735 Hwy. 65, Ham Lake, MN 55403.
• Coast Professional, Inc.: 214 Expo Circle, West Monroe, LA 71292.
Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Nevada. The Federal Advisory Committee Act (Pub. L. 92–463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Wednesday, September 21, 2016, 4:00 p.m.
Frank H. Rogers Science and Technology Building, 755 East Flamingo, Las Vegas, Nevada 89119.
Barbara Ulmer, Board Administrator, 232 Energy Way, M/S 167, North Las Vegas, Nevada 89030. Phone: (702) 630–0522; Fax (702) 295–2025 or Email:
Purpose of the Board: The purpose of the Board is to make recommendations to DOE–EM and site management in the areas of environmental restoration, waste management, and related activities.
Tentative Agenda:
Public Participation: The EM SSAB, Nevada, welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Barbara Ulmer at least seven days in advance of the meeting at the phone number listed above. Written statements may be filed with the Board either before or after the meeting. Individuals who wish to make oral presentations pertaining to agenda items should contact Barbara Ulmer at the telephone number listed above. The request must be received five days prior to the meeting and reasonable provision will be made to include the presentation in the agenda. The Deputy Designated Federal Officer is empowered to conduct the meeting in a fashion that will facilitate the orderly conduct of business. Individuals wishing to make public comments can do so during the 15 minutes allotted for public comments.
Minutes: Minutes will be available by writing to Barbara Ulmer at the address listed above or at the following Web site:
Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy.
Notice and request for OMB review and comment.
The Department of Energy (DOE) invites public comment on a proposed collection of information that DOE is developing for submission to the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) 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; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments regarding this collection must be received on or before September 16, 2016. 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, please advise the DOE Desk Officer at OMB of your intention to make a submission as soon as possible. The Desk Officer may be telephoned at 202–395–4718.
Written comments may be sent to Kelly Yaker, National Renewable Energy Laboratory, Attn: Recipient's Name Mail Stop: RSF034, 15013 Denver West Parkway, Golden, CO 80401, or by fax at 303–630–2108, or by email at
Requests for additional information or copies of the information collection instrument and instructions should be directed to: Brian Naughton, Sandia National Laboratories, 505.844.4033,
This information collection request contains: (1) OMB No. “New”; (2) Information Collection Request Title: Wind Technology to Market Industry Survey; (3) Type of Request: New collection; (4) Purpose: In an effort to improve technology transfer from the Department of Energy and the national labs, to the U.S. wind energy industry, this survey is necessary to collect data from industry members in order to identify:
• New and improved research capabilities and tools that would be valuable to the wind industry.
• Opportunities for, and barriers to, national laboratory and industry collaboration on technology development and transfer in those high-value areas.
Currently, no such information is available to labs. The information collected in this survey will be published in a report and help to inform new possibilities for the national labs. (5) Annual Estimated Number of Respondents: 80; (6) Annual Estimated Number of Total Responses: 80; (7) Annual Estimated Number of Burden Hours: 19.5 Hours; (8) Annual Estimated Reporting and Recordkeeping Cost Burden: $200,000.
Statutory Authority: DOE Org Act (42 U.S.C. 7373)
Office of the Secretary, Department of Energy.
Notice of renewal.
Pursuant to Section 14(a)(2)(A) of the Federal Advisory Committee Act, (Pub. L. 92–463), and in accordance with Title 41 of the Code of Federal Regulations, Section 102–3.65(a), and following consultation with the Committee Management Secretariat, General Services Administration, notice is hereby given that the Secretary of Energy Advisory Board (SEAB) will be renewed for a two-year period beginning on August 29, 2016.
The Committee will provide advice and recommendations to the Secretary of Energy on a range of energy-related issues.
Additionally, the renewal of the SEAB has been determined to be essential to conduct business of the Department of Energy and to be the in the public interest in connection with the performance of duties imposed upon the Department of Energy, by law and agreement. The Committee will continue to operate in accordance with the provisions of the Federal Advisory Committee Act, adhering to the rules and regulations in implementation of that Act.
Karen Gibson, Designated Federal Officer at (202) 586–3787.
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on August 25, 2016, pursuant to sections 206 and 306 of the Federal Power Act, 16 U.S.C. 824e and 825h (2012), and Rule 206 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.206 (2015), Tilton Energy LLC (Complainant) filed a formal complaint against Midcontinent Independent System Operator, Inc. (Respondent) alleging that Respondent has been improperly charging Complainant certain congestion costs, all as more fully explained in the complaint.
Complainant states that copies of the complaint were served on the contacts for Respondent listed on the Commission's list of Corporate Officials.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on August 17, 2016, Western Area Power Administration
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is requesting comment on applications from BMW of North American (BMW), Ford Motor Company (Ford), General Motors Corporation (GM), and Volkswagen Group of America (VW) for off-cycle carbon dioxide (CO
Comments must be received on or before October 3, 2016.
Submit your comments, identified by Docket ID No. EPA–HQ– OAR–2016–0503, to the Federal eRulemaking Portal:
Roberts French, Environmental Protection Specialist, Office of Transportation and Air Quality, Compliance Division, U.S. Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105. Telephone: (734) 214–4380. Fax: (734) 214–4869. Email address:
EPA's light-duty vehicle greenhouse gas (GHG) program provides three pathways by which a manufacturer may accrue off-cycle carbon dioxide (CO
Under the regulations, a manufacturer seeking to demonstrate off-cycle credits with an alternative methodology (
• Use modeling, on-road testing, on-road data collection, or other approved analytical or engineering methods;
• Be robust, verifiable, and capable of demonstrating the real-world emissions benefit with strong statistical significance;
• Result in a demonstration of baseline and controlled emissions over a wide range of driving conditions and number of vehicles such that issues of data uncertainty are minimized;
• Result in data on a model type basis unless the manufacturer demonstrates that another basis is appropriate and adequate.
Further, the regulations specify the following requirements regarding an application for off-cycle CO
• A manufacturer requesting off-cycle credits must develop a methodology for demonstrating and determining the benefit of the off-cycle technology, and carry out any necessary testing and analysis required to support that methodology.
• A manufacturer requesting off-cycle credits must conduct testing and/or prepare engineering analyses that demonstrate the in-use durability of the technology for the full useful life of the vehicle.
• The application must contain a detailed description of the off-cycle technology and how it functions to reduce CO
• The application must contain a list of the vehicle model(s) which will be equipped with the technology.
• The application must contain a detailed description of the test vehicles selected and an engineering analysis that supports the selection of those vehicles for testing.
• The application must contain all testing and/or simulation data required under the regulations, plus any other data the manufacturer has considered in the analysis.
Finally, the alternative methodology must be approved by EPA prior to the manufacturer using it to generate credits. As part of the review process defined by regulation, the alternative methodology submitted to EPA for consideration must be made available for public comment.
Using the alternative methodology approach discussed above, BMW of North America (BMW) is applying for credits for model years prior to 2014, and thus prior to when the list of default credits became available. BMW has applied for off-cycle credits using the alternative demonstration methodology pathway for the following technologies: high efficiency exterior lighting, solar reflective glass/glazing, active seat ventilation, active cabin ventilation, and active engine warmup. With the exception of active cabin ventilation, EPA has already approved credits for these technologies for model years prior to 2014.
Using the alternative methodology approach discussed above, Ford Motor Company (Ford) is applying for credits for model years prior to 2014, and thus prior to when the list of default credits became available. Ford has applied for off-cycle credits using the alternative demonstration methodology pathway for the following technologies: high efficiency exterior lighting, active seat ventilation, active aerodynamics, active transmission warmup, active engine warmup, and engine idle stop-start systems. EPA has already approved credits for these technologies for the 2012 and 2013 model years for Ford, and for some of these technologies for Fiat Chrysler for the 2009–2013 model years.
Using the alternative methodology approach discussed above, General Motors Corporation (GM) is applying for credits for model years prior to 2014, and thus prior to when the list of default credits became available. GM has applied for off-cycle credits using the alternative demonstration methodology pathway for the following technologies: high efficiency exterior lighting, solar reflective glass/glazing, solar reflective paint, active seat ventilation, active aerodynamics, active engine warmup, and engine idle stop-start systems. EPA has already approved credits for these technologies for model years prior to 2014.
Using the alternative methodology approach discussed above, Volkswagen of America (VW) is applying for credits for model years prior to 2014, and thus prior to when the list of default credits became available. VW has applied for off-cycle credits using the alternative demonstration methodology pathway for the following technologies: Active aerodynamics systems, active seat ventilation, solar reflective glass/glazing, solar reflective surface coating (paint), active engine warmup, active transmission warmup, engine idle stop-start systems, and high efficiency lighting. EPA has already approved credits for these technologies for model years prior to 2014.
EPA has reviewed the applications for completeness and is now making the applications available for public review and comment as required by the regulations. The off-cycle credit applications submitted by BMW, Ford, GM, and VW (with confidential business information redacted) have been placed in the public docket (see
Office of Federal Activities, EPA.
Notice.
Weekly receipt of Environmental Impact Statements (EISs).
General Information (202) 564–7146 or
Pursuant to 40 CFR 1506.9.
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Revision to FR Notice Published 08/26/2016; Change Review Period to No Review Period.
Under 49 U.S.C. 304a(b), NHTSA has issued a Final EIS and ROD. Therefore, the 30-day wait/review period under NEPA does not apply to this action.
Environmental Protection Agency (EPA).
Notice; correction and reopening of comment period.
EPA issued a notice in the
Comments, identified by the docket identification (ID) listed in the body of this document, must be received on or before September 19, 2016.
Follow the detailed instructions as provided in the
Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 305–7090; email address:
The Agency included in the July 22, 2016, notice a list of those who may be potentially affected by this action.
The docket for this action, identified by the following docket identification (ID) number: EPA–HQ–OPP–2015–0022 is available at
This document reopens the public comment period for the Pesticide Product Registration; Receipt of Applications for New Uses notice, which was published in the
FR Doc. 2016–17407 published in the
First, on page 47795, in the first column, under
Second, on page 47795, in the second column under the heading
7 U.S.C. 136
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, 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 the renewal of existing information collections, as required by the Paperwork Reduction Act of 1995. On June 29, 2016, (81 FR 42353), the FDIC requested comment for 60 days on a proposal to renew the information collections described below. No comments were received. The FDIC hereby gives notice of its plan to submit to OMB a request to approve the renewal of these collections, and again invites comment on this renewal.
Comments must be submitted on or before October 3, 2016.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
•
•
•
•
Manny Cabeza, at the FDIC address above.
Proposal to renew the following currently-approved collections of information:
1.
Burden Estimate:
2.
3.
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collection, 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) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
Federal Deposit Insurance Corporation.
The Commission gives notice that it has formally requested that the parties to the below listed agreement provide additional information pursuant to 46 U.S.C. 40304(d). This action prevents the agreement from becoming effective as originally scheduled. Interested parties may file comments within fifteen (15) days after publication of this notice in the
By Order of the Federal Maritime Commission.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than September 30, 2016.
A. Federal Reserve Bank of Richmond (Adam M. Drimer, Assistant Vice President) 701 East Byrd Street, Richmond, Virginia 23261–4528. Comments can also be sent electronically to or
1.
B. Federal Reserve Bank of Dallas (Robert L. Triplett III, Senior Vice President) 2200 North Pearl Street, Dallas, Texas 75201–2272:
1.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than September 20, 2016.
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198–0001:
1.
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 efforts to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on the information collection request Airline and Traveler Information Collection: Domestic Manifests and the Passenger Locator Form. This information aligns with current activities with regard to the collection of manifests from domestic flights within the United States, as well as the collection of traveler information using the Passenger Locator Form (PLF) on both international and domestic flights, in the event that a communicable disease has been confirmed during travel that puts other passengers at risk.
Written comments must be received on or before November 1, 2016.
You may submit comments, identified by Docket No. CDC–2016–0088 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact the Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS–D74, Atlanta, Georgia 30329; phone: 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
Airline and Traveler Information Collection: Domestic Manifests and the Passenger Locator Form—Existing Information Collection in use without an OMB Control Number—National Center for Emerging Zoonotic and Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
Stopping a communicable disease outbreak—whether it is naturally occurring or intentionally caused—requires the use of the most rapid and effective public health tools available. Basic public health practices, such as collaborating with airlines in the identification and notification of potentially exposed contacts, are critical tools in the fight against the introduction, transmission, and spread of communicable diseases in the United States.
The collection of timely, accurate, and complete contact information enables Quarantine Public Health Officers in CDC's Division of Global Migration and Quarantine (DGMQ) to notify state and local health departments in order for them to make contact with individuals who may have been exposed to a contagious person during travel and identify appropriate next steps.
Under the Public Health Service Act (42 United States Code § 264) and under 42 Code of Federal Regulations (CFR) § 70.2 CDC can order airlines traveling between states to submit a data set, including airline flight details, and passenger and crew member information, if CDC reasonably believes that a traveler exposed to or infected with a communicable disease of public health concern could have put other passengers at risk for a communicable disease.
In order to collect this data set, aka a manifest, CDC seeking approval for domestic airline and traveler information orders under current authorities in 42 Code of Federal Regulations (CFR) 70.2. This activity is already current practice.
Additionally, CDC requests to transition the Passenger Locator Form (PLF), previously included and approved by OMB in 0920–0134 Foreign Quarantine Regulations, into this Information Collection Request. Further, CDC is requesting approval for the use of the PLF for the collection of traveler information from individuals on domestic flights. The PLF, a formed developed by the International Civil Aviation Organization (ICAO) in concert with its international member states and other aviation organizations, is used when there is a confirmation or strong suspicion that an individual(s) aboard a flight is infected with or exposed to a communicable disease that is a threat to co-travelers, and CDC is made aware of the individual(s) prior to arrival in the United States. This prior awareness can provide CDC with an opportunity to collect traveler contact information directly from the traveler prior to departure from the arrival airport. CDC conducts this information collection under its regulations at 42 CFR 70.6 for domestic flights and 71.32 and 71.33 for flights arriving from foreign countries.
CDC is seeking three years of OMB clearance for this information collection request.
CDC estimates that for each set of airline and traveler information ordered, airlines require approximately six hours to review the order, search their records, and send those records to CDC. CDC anticipates that travelers will need approximately five minutes to complete the PLF. There is no cost to respondents other than their time to perform these actions. For manifest information, CDC does not have a specified format for these submissions, only that it is one acceptable to both CDC and the respondent.
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by November 1, 2016.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786–1326.
Reports Clearance Office at (410) 786–1326.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501–3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
1.
Centers for Medicare & Medicaid Services.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by October 3, 2016.
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs, Attention: CMS Desk Officer, Fax Number: (202) 395–5806
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786–1326.
Reports Clearance Office at (410) 786–1326.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501–3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
1.
2.
This reinstatement request clarifies the removal of the HIPAA Security complaint category. Specifically, the information collection revisions clarify the “Identify the HIPAA Non-Privacy/Security complaint category” section of the complaint form. In this section, complainants are given an opportunity to check the “Unique Identifiers” and “Operating Rules” option to additionally categorize the type of HIPAA complaint being filed. The revised form now includes an option for identifying Unique Identifier and Operating Rules complaints. It also requests email information about filed against entities, if available.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) 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.
Fax written comments on the collection of information by October 3, 2016.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202–395–7285, or emailed to
FDA PRA Staff, Office of Operations, Food and Drug Administration, Three White Flint North, 10A63, 11601 Landsdown St., North Bethesda, MD 20852,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Under section 512(b)(2) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act), any person may file an abbreviated new animal drug application (ANADA) seeking approval of a generic copy of an approved new animal drug. The information required to be submitted as part of an ANADA is described in section 512(n)(1) of the FD&C Act. Among other things, an ANADA is required to contain information to show that the proposed generic drug is bioequivalent to, and has the same labeling as, the approved new animal drug. We use the information submitted, among other things, to assess bioequivalence to the originally approved drug and thus, the safety and effectiveness of the generic new animal drug. We allow applicants to submit a complete ANADA or to submit information in support of an ANADA for phased review. Applicants may submit Form FDA 356v with a complete ANADA or a phased review submission to ensure efficient and accurate processing of information.
In the
FDA estimates the burden of this collection of information as follows:
We base our estimates on our experience with ANADA submissions and requests for phased review. We estimate that we will receive 21 ANADA submissions per year over the next three years and that three of those submissions will request phased review. We estimate that each applicant that uses the phased review process will have approximately five phased reviews per application. We estimate that an applicant will take approximately 159 hours to prepare either an ANADA or the estimated 5 ANADA phased review submissions and the administrative ANADA.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) 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.
Fax written comments on the collection of information by October 3, 2016.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202–395–7285, or emailed to
FDA PRA Staff, Office of Operations, Food and Drug Administration, Three White Flint North, 10A63, 11601 Landsdown St., North Bethesda, 20852,
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 was established because epidemiological evidence gathered in the United Kingdom suggested that bovine spongiform encephalopathy (BSE), a progressively degenerative central nervous system disease, is spread to ruminant animals by feeding protein derived from ruminants infected with
Specifically, this regulation requires renderers, feed manufacturers, and others involved in feed and feed ingredient manufacturing and distribution to maintain written procedures specifying the cleanout procedures or other means, and specifying the procedures for separating products that contain or may contain protein derived from mammalian tissue from all other protein products from the time of receipt until the time of shipment. These written procedures are intended to help the firm formalize their processes, and then to help inspection personnel confirm that the firm is operating in compliance with the regulation. Inspection personnel will evaluate the written procedure and confirm it is being followed when they are conducting an inspection.
These written procedures must be maintained as long as the facility is operating in a manner that necessitates the record, and if the facility makes changes to an applicable procedure or process the record must be updated. Written procedures required by this section shall be made available for inspection and copying by FDA.
In the
FDA estimates the burden of this collection of information as follows:
We base our estimate of the number of recordkeepers on inspectional data, which reflect a decline in the number of recordkeepers. We attribute this decline to a reduction in the number of firms handling animal protein for use in animal feed.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by November 1, 2016.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, 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
FDA PRA Staff, Office of Operations, Food and Drug Administration, Three White Flint North, 10A63, 11601 Landsdown St., North Bethesda, MD 20852,
Under the PRA (44 U.S.C. 3501–3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “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.
Section 741 of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 379j–21) establishes three different kinds of user fees: (1) Fees for certain types of abbreviated applications for generic new animal drugs; (2) annual fees for certain generic new animal drug products; and (3) annual fees for certain sponsors of abbreviated applications for generic new animal drugs and/or investigational submissions for generic new animal drugs (21 U.S.C. 379j–21(a)). Because concurrent submission of user fees with applications is required, the review of an application cannot begin until the fee is submitted. Form FDA 3728 is the AGDUFA Cover Sheet, which is designed to provide the minimum necessary information to determine whether a fee is required for review of an application, to determine the amount of the fee required, and to account for and track user fees.
FDA estimates the burden of this collection of information as follows:
Respondents to this collection of information are generic animal drug applicants. Based on FDA's data base system, there are an estimated 20 sponsors of new animal drugs potentially subject to AGDUFA.
Health Resources and Services Administration, HHS.
Notice.
In compliance with the Paperwork Reduction Act of 1995, HRSA has submitted an Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and approval. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public during the review and approval period.
Comments on this ICR should be received within 30 days of this notice.
Submit your comments, including the ICR Title, to the desk officer for HRSA, either by email to
To request a copy of the clearance requests submitted to OMB for review, email the HRSA Information Collection Clearance Officer at
To determine whether a requester is eligible for CICP benefits (compensation) for the injury, the CICP must review the Request for Benefits Package, which includes the Request for Benefits Form and Authorization for Use or Disclosure of Health Information Form(s), as well as the injured countermeasure recipient's medical records and supporting documentation.
A requester who is an injured countermeasure recipient may be eligible to receive benefits for unreimbursed medical expenses and/or lost employment income. The estate of a deceased countermeasure recipient may be eligible to receive medical benefits and/or benefits for lost employment income accrued prior to the injured countermeasure recipient's death. If death was the result of the administration or use of the countermeasure, certain survivor(s) of deceased eligible countermeasure recipients may be eligible to receive a death benefit, but not unreimbursed medical expenses or lost employment income benefits. 42 CFR 110.33. The death benefit is calculated using either the “standard calculation” or the “alternative calculation.” The “standard calculation” is based on the death benefit available under the Public Safety Officers' Benefits (PSOB) Program. 42 CFR 110.82(b). The “alternative calculation” is based on the deceased countermeasure recipient's income and is only available to the recipient's dependent(s) younger than age 18 at the time of the countermeasure recipient's death. 42 CFR 110.82(c).
Approval is requested for the required continued information collection via the Request for Benefits Package and for the continued use of CICP's mechanisms for obtaining medical documentation and supporting documentation collection. During the eligibility review, the CICP provides requesters with the opportunity to supplement their Request for Benefits with additional medical records and supporting documentation before a final determination is made. The CICP asks requesters to complete and sign a form indicating whether they intend to submit additional documentation prior to the final determination of their case.
Approval is requested for the continued use of the benefits documentation package that the CICP sends to requesters who may be eligible for compensation, which includes certification forms and instructions outlining the documentation needed to determine the types and amounts of benefits. This documentation is required under 42 CFR 110.61–110.63 of the CICP's implementing regulation to enable the CICP to determine the types and amounts of benefits the requester may be eligible to receive.
National Institutes of Health, HHS.
Notice.
This is notice, in accordance with 35 U.S.C. 209(c)(1) and 37 CFR part 404.7(a)(1)(i), that the National Cancer Institute (NCI) and the Clinical Center (CC), National Institutes of Health, Department of Health and Human Services, are contemplating the grant of an exclusive license to Advanced Imaging Projects, LLC, a company having a place of business in Boca Raton, FL, to practice the inventions embodied in the following patent applications:
U.S. Patent No. 7,300,940, filed 4 August 2004, titled “Integrin α-v β-3 antagonists for use in imaging and therapy” (HHS Ref. No.: E–170–2004/0–US–01);
PCT Application No. PCT/US2005/027868, filed 3 August 2005, now abandoned, titled “Integrin α-v β-3 antagonists for use in imaging and therapy” (HHS Ref. No.: E–170–2004/0–PCT–02);
Switzerland Patent No. 1781622, titled “Integrin α-v β-3 antagonists for use in imaging and therapy” filed 4 March 2007, issued 18 May 2011 (HHS Ref. No.: E–170–2004/0–CH–04);
Germany Patent No. 602005028137.1, titled “Integrin α-v β-3 antagonists for use in imaging and therapy” filed 4 March 2007, issued 18 May 2011 (HHS Ref. No.: E–170–2004/0–DE–05);
France Patent No. 1781622, titled “Integrin α-v β-3 antagonists for use in imaging and therapy” filed 4 March 2007, issued 18 May 2011 (HHS Ref. No.: E–170–2004/0–FR–060); and
Ireland Patent No. 1781622, titled “Integrin α-v β-3 antagonists for use in imaging and therapy” filed 4 March 2007, issued 18 May 2011 (HHS Ref. No.: E–170–2004/0–IE–07).
The patent rights in these inventions have been assigned to the Government of the United States of America. The territory of the prospective exclusive license may be worldwide, and the field of use may be limited to “Conjugate of Alpha-V beta-3 antagonist NIH–CC–013 for theranostic application to diagnose, prevent and treat oncological, infectious, ocular and cardiovascular disorders.”
Only written comments and/or applications for a license which are received by the NCI Technology Transfer Center on or before September 19, 2016 will be considered.
Requests for copies of the patent application(s), inquiries, comments, and other materials relating to the contemplated exclusive license should be directed to: Jaime M. Greene, M.S., Senior Licensing and Patenting Manager, Technology Transfer Center, National Cancer Institute, 9609 Medical Center Drive, Rockville, MD 20850; telephone: 240–276–6633; email:
This technology concerns small molecule compositions that are antagonists for the receptor integrin αvβ3. Integrins are functional molecules for cell adhesion activity that are expressed by the majority of normal and cancer cells. They are trans-membrane heterodimer receptors that include two subunits, α and β chains, that primarily allow cell adhesion to extracellular matrix components such as fibrillar collagen, vitronectin and osteopontin. This technology may be useful for the development of diagnostics and therapeutics for cancers and other conditions involving the integrin αvβ3.
The prospective exclusive license will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR part 404.7. The prospective exclusive license may be granted unless within fifteen (15) days from the date of this published notice, the NIH receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR part 404.7.
Complete applications for a license in the prospective field of use that are filed in response to this notice will be treated as objections to the grant of the contemplated Exclusive Patent License Agreement. Comments and objections submitted to this notice will not be made available for public inspection and, to the extent permitted by law, will not be released under the
National Institutes of Health, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 209 and 37 CFR part 404 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the indicated licensing contact at the National Heart, Lung and Blood Institute, Office of Technology Transfer and Development, National Institutes of Health, 31 Center Drive Room 4A29, MSC2479, Bethesda, MD 20892–2479; telephone: 301–402–5579. A signed Confidential Disclosure Agreement may be required to receive copies of the patent applications.
Technology descriptions follow.
• US Provisional Patent Application No. 62/378,307 filed 23 Aug 2016.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Advisory Eye Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
The Office of Partnership and Engagement, DHS.
Notice of tasking assignment for the Homeland Security Advisory Council.
The Secretary of the Department of Homeland Security (DHS), Jeh Johnson, tasked the Homeland Security Advisory Council to establish a subcommittee entitled the Privatized Immigration Detention Facilities Subcommittee on August 26, 2016. The Subcommittee will provide findings and recommendations to the Homeland Security Advisory Council on the Department's U.S. Immigration and Customs Enforcement's (ICE) current policy and practices concerning privatized immigration detention facilities and evaluate whether they should be eliminated. This notice informs the public of the establishment of the Privatized Immigration Detention Facilities Subcommittee and is not a notice for solicitation.
Sarah E. Morgenthau, Executive Director of the Homeland Security Advisory Council, Office of Partnership and Engagement, U.S. Department of Homeland Security at (202) 447–3135 or
The Homeland Security Advisory Council provides organizationally independent, strategic, timely, specific, and actionable advice and recommendations for the consideration of the Secretary of the Department of Homeland Security on matters related to homeland security. The Council is comprised of leaders of law enforcement, first responders, State and local government, the private sector, and academia.
Privacy Office, Department of Homeland Security.
Notice of Privacy Act System of Records.
In accordance with the Privacy Act of 1974, the Department of Homeland Security (DHS) proposes to update and reissue the DHS system of records titled, “DHS/U.S. Customs and Border Protection (CBP)–009 Electronic System for Travel Authorization (ESTA) System of Records.” This system of records allows DHS/CBP to collect and maintain records on nonimmigrant aliens seeking to travel to the United States under the Visa Waiver Program and other persons, including U.S. citizens and lawful permanent residents, whose names are provided to DHS as part of a nonimmigrant alien's ESTA application or Form I–94W. The system is used to determine whether an applicant is eligible to travel to and enter the United States under the Visa Waiver Program (VWP) by vetting his or her ESTA application information or Form I–94W information against selected security and law enforcement databases at DHS, including TECS (not an acronym) and the Automated Targeting System (ATS). In addition, ATS retains a copy of ESTA application and Form I–94W data to identify individuals from Visa Waiver Program countries who may pose a security risk to the United States. The ATS maintains copies of key elements of certain databases in order to minimize the impact of processing searches on the operational systems and to act as a backup for certain operational systems. DHS may also vet ESTA application information against security and law enforcement databases at other federal agencies to enhance DHS's ability to determine whether the applicant poses a security risk to the United States and is eligible to travel to and enter the United States under the VWP. The results of this vetting may inform DHS's assessment of whether the applicant's travel poses a law enforcement or security risk and whether the application should be approved.
DHS/CBP is updating this system of records notice, last published on June 17, 2016, to clarify the category of individuals, expand a routine use, and expand the record source categories to include information collected from publicly available sources, such as social media.
Submit comments on or before October 3, 2016. This updated system will be effective October 3, 2016.
You may submit comments, identified by docket number DHS–2016–0054 by one of the following methods:
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•
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For general questions, please contact: Debra L. Danisek, (202) 344–1610, Acting CBP Privacy Officer, Privacy and Diversity Office, 1300 Pennsylvania Ave. NW., Washington, DC 20229. For privacy questions, please contact: Jonathan R. Cantor, (202) 343–1717, Acting Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528–0655.
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP) is updating and reissuing a current DHS system of records titled, “DHS/CBP–009 Electronic System for Travel Authorization (ESTA) System of Records.”
In the wake of September 11, 2001, Congress enacted the Implementing Recommendations of the 9/11 Commission Act of 2007, Public Law 110–53. Section 711 of that Act sought to address the security vulnerabilities associated with Visa Waiver Program (VWP) travelers not being subject to the same degree of screening as other international visitors. As a result, section 711 required DHS to develop and implement a fully automated electronic travel authorization system to collect biographical and other information necessary to evaluate the security risks and eligibility of an applicant to travel to the United States under the VWP. The VWP is a travel facilitation program that has evolved to include more robust security standards that are designed to prevent terrorists and other criminal actors from exploiting the program to enter the country.
Electronic System for Travel Authorization is a web-based system that DHS/CBP developed in 2008 to determine the eligibility of foreign nationals to travel by air or sea to the United States under the VWP. Using the ESTA Web site, applicants submit biographic information and answer questions that permit DHS to determine eligibility for travel under the VWP. DHS/CBP uses the information submitted to ESTA to make a determination regarding whether the applicant is eligible to travel under the VWP, including whether his or her intended travel poses a law enforcement or security risk. If eligible individuals from VWP countries attempt to enter the United States without an ESTA, they must file a Form I–94W at the time of entry. DHS/CBP vets the ESTA applicant information and Form I–94W information against selected security and law enforcement databases, including TECS (DHS/CBP–011 U.S. Customs and Border Protection TECS, 73 FR 77778 (December 19, 2008)) and ATS (DHS/CBP–006 Automated Targeting System, 77 FR 30297 (May 22, 2012)).
The ATS also retains a copy of the ESTA application and Form I–94W data to identify individuals who may pose a security risk to the United States. The ATS maintains copies of key elements of certain databases in order to minimize the impact of processing searches on the operational systems and to act as a backup for certain operational systems. DHS may also vet ESTA and Form I–94W application information against security and law enforcement databases at other federal agencies to enhance DHS's ability to determine whether the applicant poses a security risk to the United States or is otherwise eligible to travel to and enter the United States under the VWP. The results of this vetting may inform DHS's assessment of whether the applicant's travel poses a law enforcement or security risk. The ESTA eligibility determination is made prior to a visitor boarding a carrier
Due to the ongoing national security concerns surrounding foreign fighters exploiting the VWP, DHS/CBP is updating this system of records notice, last published on June 17, 2016 (81 FR 39680), to give notice of a clarification to the category of individuals to include individuals who are eligible for an ESTA but instead submit a Form I–94W (likely during a land border crossing) and an expanded
On June 23, 2016 DHS/CBP published in the
DHS is publishing this revised system of records notice to include, among other things, the social media identifiers included in the proposed revision to ESTA and the I–94W. While this SORN will allow DHS to maintain the information described herein, DHS will not be able to collect social media identifiers using ESTA and I–94W until OMB approves the DHS/CBP's Information Collection Request under the Paperwork Reduction Act (OMB Control Number 1651–0111).
Adding social media data will enhance the existing process, and provide DHS/CBP greater clarity and visibility to possible nefarious activity and connections by providing an additional tool set which DHS/CBP may use to make better informed eligibility determinations. DHS/CBP's collection of a subject's social media identifiers adds another layer of information to the analysis for eligibility determination by providing potential further leads to terrorism or criminal activity.
DHS/CBP is modifying the overall description of when information may be shared as a routine use pursuant to 5 U.S.C. 552a(b)(3), to clarify that information covered by this system of records notice may be shared either in bulk, or on a case-by-case basis. DHS/CBP is expanding Routine Use G to clarify that DHS may share information when it determines that the information would assist in the enforcement of civil or criminal matters, and not only when the record itself facially indicates a violation or potential violation of law. DHS/CBP is frequently called upon to share information in connection with specific cases, DHS/CBP also shares data (including in bulk) that may be used by another agency to vet against the other agency's databases to identify violations proactively. The updated Routine Use G also clarifies that DHS/CBP is able to share information, consistent with its many international arrangements, relating to the enforcement of licenses or treaties.
Consistent with DHS's information sharing mission, information stored in the “DHS/CBP–009 Electronic System for Travel Authorization System of Records” may be shared with other DHS Components that have a need to know the information to carry out their national security, law enforcement, immigration, intelligence, or other homeland security functions. In addition, DHS/CBP may share information stored in ESTA in bulk as well as on a case-by-case basis with appropriate federal, state, local, tribal, territorial, foreign, or international government agencies consistent with the routine uses set forth in this system of records notice. DHS/CBP documents ongoing, systematic sharing with
DHS/CBP previously issued a Final Rule to exempt this system of records from certain provisions of the Privacy Act on August 31, 2009 (74 FR 45069). These regulations remain in effect. This updated system will be included in DHS's inventory of record systems.
The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which Federal Government agencies collect, maintain, use, and disseminate individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals when systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors.
Given the importance of providing privacy protections to international travelers, and because the ESTA application has generally solicited contact information about U.S. persons, DHS always administratively applied the privacy protections and safeguards of the Privacy Act to all international travelers subject to ESTA. The ESTA falls within the mixed system policy and DHS will continue to extend the administrative protections of the Privacy Act to information about travelers and non-travelers whose information is provided to DHS as part of the ESTA application.
Below is the description of the DHS/U.S. Customs and Border Protection–009 Electronic System for Travel Authorization System of Records System of Records.
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this system of records to the Office of Management and Budget and to Congress.
Department of Homeland Security (DHS)/U.S. Customs and Border Protection (CBP)–009.
DHS/CBP–009 Electronic System for Travel Authorization System (ESTA).
Unclassified. The data may be retained on classified networks but this does not change the nature and character of the data until it is combined with classified information.
DHS/CBP maintains records at the CBP Headquarters in Washington, DC and field offices. Records are replicated from the operational system and maintained on the DHS unclassified and classified networks.
Categories of individuals covered by this system include:
1. Persons who seek to enter the United States under the VWP; and,
2. Persons, including U.S. Citizens and lawful permanent residents, whose information is provided in response to ESTA application or Form I–94W questions.
Visa Waiver Program travelers may seek the required travel authorization by electronically submitting an application consisting of biographical and other data elements via the ESTA Web site. The categories of records in ESTA include:
• Full name (first, middle, and last);
• Other names or aliases, if available;
• Date of birth;
• City of birth;
• Country of birth;
• Gender;
• Email address;
• Social media identifiers, such as username(s) and platforms used;
• Publicly available information from social media Web sites or platforms;
• Telephone number (home, mobile, work, other);
• Home address (address, apartment number, city, state/region);
• Internet protocol (IP) address;
• ESTA application number;
• Global Entry Program Number;
• Country of residence;
• Passport number;
• Passport issuing country;
• Passport issuance date;
• Passport expiration date;
• Department of Treasury
• Country of citizenship;
• Other citizenship (country, passport number);
• National identification number, if available;
• Address while visiting the United States (number, street, city, state);
• Emergency point of contact information (name, telephone number, email address);
• U.S. Point of Contact (name, address, telephone number);
• Parents' names;
• Current job title;
• Current or previous employer name;
• Current or previous employer street address; and
• Current or previous employer telephone number.
The categories of records in ESTA also include responses to the following questions:
• Do you have a physical or mental disorder, or are you a drug abuser or addict,
• Cholera
• Diphtheria
• Tuberculosis, infection
• Plague
• Smallpox
• Yellow Fever
• Viral Hemorrhagic Fevers, including Ebola, Lassa, Marburg, Crimean-Congo
• Severe acute respiratory illnesses capable of transmission to other persons and likely to cause mortality.
• Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority?
• Have you ever violated any law related to possessing, using, or distributing illegal drugs?
• Do you seek to engage in or have you ever engaged in terrorist activities, espionage, sabotage, or genocide?
• Have you ever committed fraud or misrepresented yourself or others to obtain, or assist others to obtain, a visa or entry into the United States?
• Are you currently seeking employment in the United States or were you previously employed in the United States without prior permission from the U.S. Government?
• Have you ever been denied a U.S. visa you applied for with your current or previous passport, or have you ever been refused admission to the United States or withdrawn your application for admission at a U.S. port of entry? If yes, when and where?
• Have you ever stayed in the United States longer than the admission period granted to you by the U.S. Government?
• Have you traveled to, or been present in, Iraq, Syria, Iran, Sudan, Somalia, Libya, or Yemen on or after March 1, 2011? If yes, provide the country, date(s) of travel, and reason for travel. Depending on the purpose of travel to these countries, additional responses may be required including:
• Previous countries of travel;
• Dates of previous travel;
• Countries of previous citizenship;
• Other current or previous passports;
• Visa numbers;
• Laissez-Passer numbers;
• Identity card numbers;
• Organization, company, or entity on behalf of which you traveled;
• Official position/title with the organization, company, or entity behalf of which you traveled;
• Contact information for organization, company, or entity on behalf of which you traveled;
• Iraqi, Syrian, Iranian, Sudanese, Somali, Libyan, or Yemeni Visa Number;
• I–Visa, G–Visa, or A–Visa number, if issued by a U.S. Embassy or Consulate;
• All organizations, companies, or entities with which you had business dealings, or humanitarian contact;
• Grant number, if applicant's organization has received U.S. Government funding for humanitarian assistance within the last five years;
• Additional passport information (if issued a passport or national identity card for travel by any other country), including country, expiration year, and passport or identification card number;
• Any other information provided voluntarily in open, write-in fields provided to the ESTA applicant.
• Have you ever been a citizen or national of any other country? If yes, other countries of previous citizenship or nationality? If Iraq, Syria, Iran, Sudan, Somalia, Libya, or Yemen are selected, follow-up questions are asked regarding status of current citizenship including dual-citizenship information, and how citizenship was acquired.
Applicants who identify Iraq, Syria, Iran, Sudan, Somalia, Libya, or Yemen as their Country of Birth on ESTA will be directed to follow-up questions to determine whether they currently are a national or dual national of their country of birth.
Title IV of the Homeland Security Act of 2002, 6 U.S.C. 201
The purpose of this system is to collect and maintain a record of persons who want to travel to the United States under the VWP, and to determine whether applicants are eligible to travel to and enter the United States under the VWP. The information provided through ESTA is also vetted—along with other information that the Secretary of Homeland Security determines is necessary, including information about other persons included on the ESTA application—against various security and law enforcement databases to identify those applicants who pose a security risk to the United States. This vetting includes consideration of the applicant's IP address, social media information, and all information provided in response to the ESTA application questionnaire, including all free text write-in responses.
The Department of Treasury
DHS maintains a replica of some or all of the data in ESTA on the unclassified and classified DHS networks to allow for analysis and vetting consistent with the above stated uses and purposes and this published notice.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (DOJ), including Offices of the United States Attorneys, or other federal agency conducting litigation or in proceedings before any court, adjudicative, or administrative body, when it is relevant or necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. DHS or any Component thereof;
2. Any employee or former employee of DHS in his/her official capacity;
3. Any employee or former employee of DHS in his/her individual capacity when DOJ or DHS has agreed to represent the employee; or
4. The United States or any agency thereof.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration (NARA) or General Services Administration pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To an agency or organization for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.
E. To appropriate agencies, entities, and persons when:
1. DHS suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;
2. DHS has determined that as a result of the suspected or confirmed compromise, there is a risk of identity theft or fraud, harm to economic or property interests, harm to an individual, or harm to the security or integrity of this system or other systems or programs (whether maintained by DHS or another agency or entity) that rely upon the compromised information; and
3. The disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
F. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act
G. To an appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, when a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.
H. To appropriate federal, state, local, tribal, or foreign governmental agencies or multilateral governmental organizations for the purpose of protecting the vital health interests of a data subject or other persons (
I. To third parties during the course of a law enforcement investigation to the extent necessary to obtain information pertinent to the investigation, provided disclosure is appropriate in the proper performance of the official duties of the officer making the disclosure.
J. To a federal, state, tribal, local, international, or foreign government agency or entity for the purpose of consulting with that agency or entity: (1) To assist in making a determination regarding redress for an individual in connection or program; (2) for the purpose of verifying the identity of an individual seeking redress in connection with the operations of a DHS Component or program; or (3) for the purpose of verifying the accuracy of information submitted by an individual who has requested such redress on behalf of another individual.
K. To federal and foreign government intelligence or counterterrorism agencies or components when DHS becomes aware of an indication of a threat or potential threat to national or international security to assist in countering such threat, or to assist in anti-terrorism efforts.
L. To the Department of State in the processing of petitions or applications for benefits under the Immigration and Nationality Act, and all other immigration and nationality laws including treaties and reciprocal agreements.
M. To an organization or individual in either the public or private sector, either foreign or domestic, when there is a reason to believe that the recipient is or could become the target of a particular terrorist activity or conspiracy, to the extent the information is relevant to the protection of life or property.
N. To the carrier transporting an individual to the United States, prior to travel, in response to a request from the carrier, to verify an individual's travel authorization status.
O. To the Department of Treasury's
P. To a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, in response to a subpoena, or in connection with criminal law proceedings.
Q. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information, when disclosure is necessary to preserve confidence in the integrity of DHS, or when disclosure is necessary to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent the Chief Privacy Officer determines that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
None.
DHS/CBP stores records in this system electronically or on paper in secure facilities in a locked drawer behind a locked door. The records may be stored on magnetic disc, tape, and digital media.
DHS/CBP may retrieve records by any of the data elements supplied by the applicant.
DHS/CBP safeguards records in this system according to applicable rules and policies, including all applicable DHS automated systems security and access policies. DHS/CBP has imposed strict controls to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to those individuals who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
Application information submitted to ESTA generally expires and is deemed “inactive” two years after the initial submission of information by the applicant. In the event that a traveler's passport remains valid for less than two years from the date of the ESTA approval, the ESTA travel authorization will expire concurrently with the passport. Information in ESTA will be retained for one year after the ESTA travel authorization expires. After this period, the inactive account information will be purged from online access and archived for 12 years. Data linked at any time during the 15-year retention period (Generally 3 years active, 12 years archived), to active law enforcement lookout records, will be matched by DHS/CBP to enforcement activities, and/or investigations or cases, including ESTA applications that are denied authorization to travel, will remain accessible for the life of the law enforcement activities to which they may become related. NARA guidelines for retention and archiving of data will apply to ESTA and DHS/CBP continues to negotiate with NARA for approval of the ESTA data retention and archiving plan. Records replicated on the unclassified and classified networks will follow the same retention schedule. Payment information is not stored in ESTA, but is forwarded to
Director, Office of Automated Systems, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW., Washington, DC 20229.
Applicants may access their ESTA information to view and amend their applications by providing their ESTA number, birth date, and passport number. Once they have provided their ESTA number, birth date, and passport number, applicants may view their ESTA status (authorized to travel, not authorized to travel, pending) and submit limited updates to their travel itinerary information. If an applicant does not know his or her application number, he or she can provide his or her name, passport number, date of birth, and passport issuing country to retrieve his or her application number.
In addition, ESTA applicants and other individuals whose information is included on ESTA applications may submit requests and receive information maintained in this system as it relates to data submitted by or on behalf of a person who travels to the United States and crosses the border, as well as, for ESTA applicants, the resulting determination (authorized to travel, pending, or not authorized to travel). However, the Secretary of Homeland Security has exempted portions of this system from certain provisions of the Privacy Act related to providing the accounting of disclosures to individuals because it is a law enforcement system. DHS/CBP will, however, consider individual requests to determine whether or not information may be released. In processing requests for access to information in this system, DHS/CBP will review the records in the operational system and coordinate with DHS to ensure that records that were replicated on the unclassified and classified networks, are reviewed and based on this notice provide appropriate access to the information.
Individuals seeking notification of and access to any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the Chief Privacy Officer and Headquarters Freedom of Information Act (FOIA) Officer, whose contact information can be found at
When seeking records about yourself from this system of records or any other Departmental system of records, your request must conform with the Privacy Act regulations set forth in 6 CFR part 5. You must first verify your identity, meaning that you must provide your full name, current address, and date and place of birth. You must sign your request, and your signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. While no specific form is required, you may obtain forms for this purpose from the Chief Privacy Officer and Chief FOIA Officer,
• Explain why you believe the Department would have information on you;
• Identify which component(s) of the Department you believe may have the information about you;
• Specify when you believe the records would have been created; and
• Provide any other information that will help the FOIA staff determine which DHS component agency may have responsive records.
If your request is seeking records pertaining to another living individual, you must include a statement from that individual certifying his or her agreement for you to access his or her records.
Without the above information, the component(s) may not be able to conduct an effective search, and your request may be denied due to lack of specificity or lack of compliance with applicable regulations.
See “Notification procedure” above.
See “Notification procedure” above.
DHS/CBP obtains records from information submitted by travelers via the online ESTA application at
No exemption shall be asserted with respect to information maintained in the system as it relates to data submitted by or on behalf of a person who travels to visit the United States and crosses the border, nor shall an exemption be asserted with respect to the resulting determination (authorized to travel, pending, or not authorized to travel). Information in the system may be shared with law enforcement and/or intelligence agencies pursuant to the above routine uses. The Privacy Act requires DHS to maintain an accounting of the disclosures made pursuant to all routines uses. Disclosing the fact that a law enforcement or intelligence agency has sought and been provided particular records may affect ongoing law enforcement activities. As such, pursuant to 5 U.S.C. 552a(j)(2), DHS will claim exemption from Sections (c)(3), (e)(8), and (g) of the Privacy Act of 1974, as amended, as is necessary and appropriate to protect this information. Further, DHS will claim exemption from sec. (c)(3) of the Privacy Act of 1974,
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice of funding awards.
In accordance with section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989, this announcement notifies the public of funding decisions made by the Department in a competition for funding under the Notice of Funding Availability (NOFA) for the Self-Help Homeownership Opportunity Program. This announcement contains the names of the awardees and the amounts of the awards made available by HUD.
Jackie L. Williams, Ph.D., Director, Office of Rural Housing and Economic Development, Office of Community Planning and Development, 451 Seventh Street SW., Room 7240, Washington, DC 20410–7000; telephone (202) 708–2290 (this is not a toll free number). Hearing- and- speech impaired persons may access this number via TTY by calling the Federal Relay Service toll-free at 1–800–877–8339.
SHOP is authorized by Section 11 of the Housing Opportunity Program Extension Act of
The Catalog of Federal Domestic Assistance number for this Self-Help Homeownership Opportunity Program Appalachia Economic Development Initiative program is 14.247. The Self-Help Homeownership Opportunity Program SHOP funding is intended to facilitate and encourage innovative homeownership opportunities on a national and geographically-diverse basis. The program supports self-help housing programs that require a significant amount of sweat equity by the homebuyer toward the construction or rehabilitation of his or her home. Volunteer labor is also required. Eligible applicants for SHOP funding include national and regional non-profit organizations and consortia with experience facilitating homeownership opportunities on a national, geographically-diverse basis through the provision of self-help homeownership housing programs. The funds made available under this program were awarded competitively through a selection process conducted by HUD.
In accordance with section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989 (103 Stat. 1987. 42 U.S.C. 3545), the Department is publishing the grantees and amounts of the awards in Appendix A to this document.
Office of Community Planning and Development, HUD.
Notice.
HUD is announcing that it received approval from the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) of the information collection in the application to obtain funding under HUD's Youth Homeless Demonstration Program (YHDP) Notice of Funding Availability (NOFA). In accordance with the implementing regulations of the PRA, HUD requested emergency review under 5 CFR 1320.13(a)(2)(i) because public harm was reasonably likely to occur if the regular clearance procedures were followed. OMB granted emergency approval in response to HUD's request.
While HUD has PRA approval for the YHDP NOFA application, HUD needs to establish traditional approval of this application (
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202–395–5806. Email:
Matthew Aronson, SNAPS Specialist, CPD, Department of Housing and Urban Development, 10 Causeway St., Boston, MA 02114; email Matthew Aronson at
This notice informs the public that HUD has submitted to OMB a request for approval of the information collection described in section A. HUD's Youth Homeless Demonstration Program NOFA and accompanying application can be found at
Once communities have been selected, HUD must collect individual grant applications to meet the Act requirement that YHDP projects be renewable under the Continuum of Care (CoC) Program authorized by the McKinney-Vento Act, as amended by S. 896 The Homeless Emergency Assistance and Rapid Transition to Housing (HEARTH) Act of 2009 (42 U.S.C. 11371
Finally, HUD must collect the Coordinated Community Plan to meet the appropriations requirement “to demonstrate how a comprehensive approach to serving homeless youth . . . can dramatically reduce youth homelessness.” In HUD's experience leading similar coordinated community efforts (
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
Fish and Wildlife Service, Interior.
Notice of issuance of recovery permits.
We, the U.S. Fish and Wildlife Service, have issued the following permits to conduct activities with endangered and threatened species under the authority of the Endangered Species Act (Act), as amended. With some exceptions, the Act prohibits activities involving listed species unless a Federal permit is issued that allows such activity. We provide this list for the convenience of the public as a summary of our permit issuances for the first half of calendar year 2016.
See the contact information in the Permits Issued section.
We have issued the following permits to conduct activities with endangered and threatened species in response to recovery permit applications that we received under the authority of section 10(a)(1)(A) of the Endangered Species Act (16 U.S.C. 1531
The following permits were applied for and issued in Region 1. For more information about any of the following permits, contact the Recovery Permit Coordinator by email at
The following permits were applied for and issued in Region 2. For more information about any of the following permits, contact the Recovery Permit Coordinator by email at
The following permits were applied for and issued in Region 3. For more information about any of the following permits, contact the Recovery Permit Coordinator by email at
The following permits were applied for and issued in Region 4. For more information about any of the following permits, contact the Recovery Permit Coordinator by email at
The following permits were applied for and issued in Region 5. For more information about any of the following permits, contact the Recovery Permit Coordinator by email at
The following permits were applied for and issued in Region 6. For more information about any of the following permits, contact the Recovery Permit Coordinator by email at
The following permits were applied for and issued in Region 7. For more information about any of the following permits, contact the Recovery Permit Coordinator by email at
The following permits were applied for and issued in Region 8. For more information about any of the following permits, contact the Recovery Permit Coordinator by email at
The
We provide this notice under the authority of section 10 of the Act (16 U.S.C. 1531
Bureau of Land Management, Interior.
Notice of Withdrawal Applications.
The Department of the Air Force (DAF) has filed an application with the Department of the Interior to extend the current withdrawal of public lands from all forms of appropriation under the public land laws, including the mining laws, the mineral leasing laws, and the geothermal leasing laws, subject to valid existing rights, for military use of the Nevada Test and Training Range (NTTR), in Clark, Lincoln, and Nye Counties, Nevada. The DAF has also requested the withdrawal of approximately 301,507 additional acres of public lands from all forms of appropriation under the public land laws, including the mining laws, the mineral leasing laws, and the geothermal leasing laws, subject to valid existing rights. This notice temporarily segregates these lands from all forms of appropriation under the public land laws, including the mining laws, the mineral leasing laws, and the geothermal leasing laws, for 2 years; gives the public an opportunity to comment on the extension and withdrawal applications; and announces the date, time, and location of public meetings.
Comments on the extension and withdrawal applications, including their environmental consequences, should be received on or before December 10, 2016. In addition, the BLM and DAF will hold joint public meetings on the extension and withdrawal applications, and DAF's National Environmental Policy Act (NEPA) evaluation of the withdrawals. The dates and locations of the public meetings are listed in the
Comments pertaining to the DAF withdrawal extension proposal and/or the DAF withdrawal expansion proposal should be sent to Nellis Air Force Base 99th Air Base Wing Public Affairs, 4430 Grissom Ave., Suite 107, Nellis AFB, NV 89191. Comments pertaining to this Notice should be submitted by any of the following methods:
Tom Seley, Project Manager, BLM Southern Nevada District Office, 4701 North Torrey Pines Drive, Las Vegas, NV, 89130–2301; email:
Pursuant to section 3016 of the National Defense Authorization Act for Fiscal Year 2000 (FY 2000 NDAA), Pub. L. 106–65, and section 3092(k) of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act of Fiscal Year 2015 (FY 2015 NDAA), the Department of the Air Force (DAF) has filed an application to extend the current withdrawal of public lands from all forms of appropriation under the public land laws, including the mining laws, the mineral leasing laws, and the geothermal leasing laws, subject to valid existing rights, for military use of the Nevada Test and Training Range (NTTR), in Clark, Lincoln, and Nye Counties, Nevada. The lands are currently withdrawn under the Act, which reserves these lands for defense-related purposes for a period of 20 years. Unless Congress extends the withdrawal, it will expire on November 5, 2021.
In addition to the DAF's request that the current withdrawal be extended, the DAF filed an application requesting the withdrawal and reservation of additional public lands for military use as a national security testing and training range at the NTTR, located in Clark, Lincoln, and Nye Counties, Nevada. The application to expand the acreage of lands withdrawn for the Air Force's use at the NTTR seeks the withdrawal of approximately 301,507 additional acres of public lands from all forms of appropriation under the public land laws, including the mining laws, the mineral leasing laws, and the geothermal leasing laws, subject to valid existing rights.
As required by section 204(b)(1) of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1714(b)(1), and the BLM regulations at 43 CFR part 2300, the BLM is publishing Notice of the DAF applications. While the BLM and the Department of the Interior (DOI) assist the DAF with the processing of this application, and the Secretary of the Interior makes a recommendation to Congress on the proposed withdrawal, Congress, not the Secretary, will make the decision on the requested extension and expansion of the existing NTTR withdrawal.
The DAF lands not withdrawn from the public domain and non-Federal lands are contained within the lands withdrawn boundary. Portions of the lands are unsurveyed and the acres were based upon protraction diagrams.
The area described aggregates 361,558 acres in Clark County, 778,681 acres in Lincoln County, and 1,808,244 acres in Nye County.
The area described aggregates 87.49 acres in Lincoln County.
The area described aggregates 365 acres in Nye County.
The area described aggregates 1,120 acres in Clark County.
The total area aggregates 2,949,603 acres.
The area described aggregates 17,960 acres in Nye County.
The area described aggregates 39,119 acres in Clark County and 9,780 acres in Nye County.
The area described aggregates 7,621 acres in Clark County.
The area described aggregates 72,649 acres in Clark County, and 154,378 acres in Lincoln County.
In the event any non-Federally owned lands within these areas described above return or pass to Federal ownership in the future, they would be subject to the terms and conditions described.
The purpose of the requested extension and expansion of the withdrawals at NTTR is to withdraw and reserve the lands for use by the DAF for training for aerial gunnery, rocketry, electronic warfare, and tactical maneuvering and air support; as an armament and high-hazard testing area; for equipment and tactics development and testing; as well as other defense-related purposes. National defense requirements are rapidly evolving in response to changing world conditions, modern conflicts, developing technologies, and new emerging threats. The NTTR is a Major Range and Test Facility Base national asset and is used to accommodate two major national defense necessities: Test and Evaluation (T&E) and large-scale training. It is sized, operated, and maintained to provide T&E information to Department of Defense (DoD) component users in support of DoD research, development, and acquisition. The NTTR must provide a broad base of T&E capabilities that is sufficient to support the full spectrum of DoD T&E requirements. The NTTR also contributes to combat readiness training, providing a venue for major training events, 5th-generation aircraft training, and training for other Federal agencies, state and local governments, allied foreign governments, and commercial entities. The NTTR is the Air Combat Command's premier range for Tactics Development and Evaluations due to its focus on high-end combat training and operationally relevant testing. The DAF indicates that the requested withdrawals are essential to enhance large-scale training at the NTTR to support advanced weapons systems and large-scale combat training exercises while providing for public safety.
Copies of the legal descriptions and the maps depicting the lands that are the subject of the DAF's applications are available for public inspection at the following offices: State Director, BLM Nevada State Office, 1430 Financial Blvd., Reno, Nevada 89502 District Manager, BLM Southern Nevada District Office, 4701 North Torrey Pines Drive, Las Vegas, NV, 89130–2301.
For a period until December 1, 2016 all persons who wish to submit comments, suggestions, or objections in connection with the withdrawal applications may present their comments in writing to the persons and offices listed in the
Notice is hereby given that public meetings addressing the withdrawal applications will be held concurrently with the DAF's public meetings associated with NEPA evaluation of the proposed withdrawals. Public meetings will be held at the following locations:
The DAF will be the lead agency for evaluation of the proposed withdrawal extension and expansion pursuant to NEPA and other applicable environmental and cultural resources authorities, and will be publishing its own scoping and other notices.
Comments, including names and street addresses of respondents, will be available for public review at the DAF and BLM addresses noted above, during regular business hours Monday through Friday, except Federal holidays. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Subject to valid existing rights, the public lands that are the subject of the DAF application for expansion of the withdrawal, and that are described in this Notice, will be segregated from all forms of appropriation under the public land laws, including the mining laws, the mineral leasing laws, and the geothermal leasing laws. The segregation will be effective for a period until [two years from date of publication in FR], unless the expansion application is denied or canceled or the requested withdrawal is approved prior to that date. Licenses, permits, cooperative agreements, or discretionary land use authorizations may be allowed during the period of segregation, but only with the approval of the authorized officer and, as appropriate, with the concurrence of DAF.
The applications for withdrawal and reservation will be processed in accordance with the regulations at 43 CFR part 2300.
43 U.S.C. 1714(b)(1) and 43CFR 2300.
Bureau of Land Management, Interior.
Notice.
In accordance with the National Environmental Policy Act of 1969, as amended (NEPA), the Federal Land Policy and Management Act of 1976, as amended (FLPMA), and the Omnibus Public Lands Management Act of 2009 (OPLMA), the Bureau of Land Management (BLM) has prepared proposed resource management plans (RMPs) for the Beaver Dam Wash National Conservation Area and the Red Cliffs National Conservation Area and a proposed amendment to the St. George Field Office RMP (Proposed Amendment). The three planning efforts were initiated concurrently and are supported by a single environmental impact statement (EIS), and by this notice, the BLM is announcing their availability.
The BLM planning regulations state that any person who meets the conditions described in those regulations may protest the BLM's Proposed RMPs/Proposed Amendment and abbreviated Final EIS and must file the protest within 30 days following the date that the Environmental Protection Agency publishes its Notice of Availability in the
Copies of the Proposed RMPs/Proposed Amendment and abbreviated Final EIS have been sent to affected Federal and State agencies, tribal governments, local governmental entities, and to other stakeholders and members of the public who have requested copies. Copies of the Proposed RMPs/Proposed Amendment and abbreviated Final EIS are available for inspection at the Interagency Public Lands Information Center, 345 East Riverside Drive, St. George, UT 84790, and the BLM Utah State Office Public Room, 440 West 200 South, Suite 500, Salt Lake City, Utah 84101; during normal business hours (8 a.m. to 4:30 p.m.), Monday through Friday, except holidays. The Proposed RMPs/Proposed Amendment and abbreviated Final EIS are also available online at:
All protests must be in writing and mailed to one of the following addresses:
Keith Rigtrup, RMP Planner, telephone 435–865–3000; address: 345 East Riverside Drive, St. George, Utah 84790; email:
Persons who use a telecommunications device for the deaf may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The purpose of this planning process is to satisfy specific mandates from the Omnibus Public Land Management Act of 2009 (Pub. L. 111–11, at Title 1, Subtitle O, hereinafter OPLMA) that directed the Secretary of the Interior, through the BLM, to develop comprehensive management plans for the Beaver Dam Wash National Conservation Area (63,480 acres of public land) and the Red Cliffs National Conservation Area (44,859 acres of public land), located in Washington County, Utah. Both National Conservation Areas (NCAs) were established on March 30, 2009, when President Barack Obama signed OPLMA into law. The need to amend the St. George Field Office RMP (approved in 1999) is also derived from OPLMA. Section 1979(a)(1) and (2) of OPLMA directed the Secretary, through the BLM, to identify areas located in the county where biological conservation is a priority, and undertake activities to conserve and restore plant and animal species and natural communities within such areas. The decisions contained in the Proposed Amendment and abbreviated Final EIS do not pertain to private and State lands within the boundaries of the St. George Field Office planning area or the NCAs.
Section 1977(b)(1) of OPLMA, directed the BLM to develop a comprehensive travel management plan for public lands in Washington County. The St. George Field Office RMP must be amended to modify certain existing off-highway vehicle (OHV) area designations (open, limited or closed) before this comprehensive travel management plan can be developed.
BLM Utah developed the Proposed RMPs and Proposed Amendment by combining components of the four alternatives that were presented in the Draft RMPs and Draft Amendment and associated Draft EIS, released for public review on July 17, 2015. These alternatives contained goals, objectives, and management decisions for the two NCAs that were designed to address the long-term management of public land resources and land uses, while fulfilling the conservation purpose of the NCAs included in OPLMA. The alternatives identified in the Draft Amendment were developed to satisfy the requirements of OPLMA related to biological conservation and travel management and to comply with FLPMA and other relevant Federal laws, regulations, and agency policies.
The four alternatives considered in the Draft RMPs and Draft EIS included the following:
Alternative A was the No Action alternative required by NEPA and served as a baseline against which to compare potential environmental consequences that could be associated with implementation of the other alternatives. Under this alternative, management for the two NCAs would be derived primarily from management decisions in the 1999 St. George Field Office RMP, as amended.
Alternative B, the BLM's Preferred Alternative in the Draft, emphasized resource protection, while allowing land uses that were consistent with the NCA purposes, current laws, Federal regulations, and agency policies. Management actions would strive to protect ecologically important areas, native vegetation communities, habitats for wildlife, including special status species, cultural resources, and the scenic qualities of each NCA from natural and human-caused impacts.
Alternative C emphasized the conservation and protection of NCA ecological, cultural, and scenic values and the restoration of damaged lands. Higher levels of restrictions on certain land uses and activities were proposed to achieve conservation goals, while continuing to allow for compatible public uses in the two NCAs.
Alternative D proposed a broader array and higher levels of public use and access by emphasizing diverse and
The Proposed RMPs for the Beaver Dam Wash and Red Cliffs NCAs and Proposed Amendment to the St. George Field Office RMP are primarily based on the management goals, objectives, and actions identified in the draft plans as the BLM's Preferred Alternative, Alternative B. However, in response to public comments and input from the Cooperating Agencies, other Federal and State agencies, tribal governments, and local governmental entities, components of the other alternatives that were presented in the draft plans and analyzed in the Draft EIS were selected to comprise management decisions in the Proposed RMPs and Proposed Amendment. In some cases, minor edits or clarifications were made and these are shown in italicized text surrounded by brackets in the proposed plans. None of the minor edits or clarifications required modifications to the analysis of the environmental consequences presented in Chapter 4 of the Draft EIS. The BLM has prepared an abbreviated Final EIS to support the Proposed NCA RMPs and Proposed Amendment, consistent with Federal regulations at 40 CFR 1503.4 (c). The resulting Proposed RMPs and Proposed Amendment address the range of public, agency, and governmental concerns about resource management and land uses in the planning area raised during the planning process, and meet the Congressionally-defined purposes of the NCAs and OPLMA's mandates related to public land management in Washington County.
In accordance with 43 CFR 1610.7–2(b), the Notice of Availability for the Draft RMPs and Draft Amendment/Draft EIS (80 FR 42527, July 17, 2015) announced a concurrent public comment period on proposed ACECs. The Proposed Amendment includes proposed ACEC designations for the following areas:
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Instructions for filing a protest with the Director of the BLM regarding the proposed plans may be found in the “Dear Reader” Letter of the Proposed RMPs for the Beaver Dam Wash National Conservation Area and the Red Cliffs National Conservation Area, and Proposed Amendment to the St. George Field Office RMP/abbreviated Final EIS and at 43 CFR 1610.5–2. All protests must be in writing and mailed to the appropriate address, as set forth in the
40 CFR 1506.6, 40 CFR 1506.10, 43 CFR 1610.2, 43 CFR 1610.5.
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972, and the U.S. Department of the Interior, Bureau of Land Management (BLM), the John Day-Snake Resource Advisory Council (RAC) will meet as indicated below.
The John Day-Snake RAC will hold a meeting Friday, October 7, 2016, at the River Lodge and Grill in Boardman, Oregon. The meeting will run from 8 a.m. to 5 p.m. A public
Larry Moore, Public Affairs Specialist, BLM Vale District Office, 100 Oregon St., Vale, Oregon 97918, phone (541) 473–6218, or email
The John Day-Snake RAC consists of 15 members, chartered and appointed by the Secretary of the Interior. Their diverse perspectives are represented in commodity, conservation, and general interests. They provide advice to BLM and Forest Service resource managers regarding management plans and proposed resource actions on public land in central and eastern Oregon.
Agenda items for the meeting include a discussion on fees associated with the Snake and Deschutes Rivers. Other topics will be posted along with the agenda on the John Day Snake RAC Web site at:
All meetings are open to the public. Information to be distributed to the John Day-Snake RAC is requested prior to the start of each meeting. A public comment period will be offered on October 7, 2016, from 10:30 a.m. to 11 a.m. Unless otherwise approved by the John Day-Snake RAC Chairs, the public comment period in each meeting will last no longer than 30 minutes. Each speaker may address the John Day-Snake RAC for a maximum of 5 minutes. A public call-in number for both meeting locations is provided on the John Day-Snake RAC Web site at
Meeting times and the duration scheduled for public comment periods may be extended or altered when the authorized representative considers it necessary to accommodate business and all who seek to be heard regarding matters before the John Day-Snake RAC.
Bureau of Land Management, Interior.
Proposed Supplementary Rules.
The Bureau of Land Management (BLM), Malta Field Office is proposing additional supplementary rules for the Zortman Ranger Station, a historic U.S. Forest Service Ranger Station now administered by the BLM in Zortman, Montana, and Buffington Day Use Area at the Camp Creek Recreation Area. The supplementary rules are necessary to maintain the public health and safety and to protect the environment of the recreation areas. They will help reduce erosion, reduce fire hazards, provide for public safety, prevent damage to natural resources, reduce user conflicts, and increase visitor satisfaction.
To ensure that comments will be considered, the BLM must receive written comments on the proposed supplementary rules by November 1, 2016. In developing final supplementary rules, the BLM may not consider comments postmarked or received in person or by electronic mail after this date.
Comments may be mailed or hand delivered to the BLM Malta Field Office, Attn: Field Manager, 501 South 2nd Street East, Malta, MT 59538. You may also submit comments via email to
Vinita Shea, Malta Field Manager, at the above address, or by calling 406–654–5131. Persons who use a telecommunications device for the deaf may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
You may mail, email, or hand-deliver comments to the Malta Field Office, at the addresses listed above (See
Comments, including names, street addresses, and other contact information for respondents, will be available for public review at the Malta Field Office address listed in the section
The Zortman Ranger Station, built in 1905, was part of the Lewis and Clark National Forest until 1965, when management of public lands in the area was transferred to the BLM. The site includes the four-room main building, a storage shed, and amphitheater which was built for the Lewis and Clark Bicentennial celebration. The main building is eligible for listing on the National Register of Historic Places. In 2013, the BLM partnered with the Forest Service's historic preservation team to repair the outside of the main building and landscape the yard to divert runoff which was undermining the foundation. The interior of the building has been inventoried and abated for asbestos and lead paint. The site also features an amphitheater which is used for interpretive presentations.
Buffington Day Use Area is located within the Camp Creek Recreation Area just northeast of Zortman, Montana.
The proposed supplementary rules are authorized by 43 CFR 8365.1–6, which states, “The State Director may establish such supplementary rules as he/she deems necessary. These rules may provide for the protection of persons, property, and public lands and resources. No person shall violate such supplementary rules.”
The supplementary rules are necessary to maintain the public health and safety, and to protect the environment and facilities of the recreation areas. The rules will also help reduce erosion and fire hazards, prevent damage to natural resources, reduce user conflicts, and increase visitor satisfaction.
The proposed rules would limit the number of days that a person or group could rent the Zortman Ranger Station allowing more people to access the facility and thereby increase visitor satisfaction and reduce user conflicts. Game carcasses would not be allowed to be stored and no fish or game would be allowed to be cleaned inside the Zortman Ranger Station. These rules would protect facilities, assist in ensuring visitor satisfaction, and protect public health.
Pets would be required to be leashed if left unattended outside or kenneled if left unattended inside the Zortman Ranger Station. These rules would protect the Ranger Station. Pets would be required to be leashed and would not be allowed to be left unattended at the Buffington Day Use Area. This rule would protect public safety. No cutting of standing trees or any vegetation at the Zortman Ranger Station or the Buffington Day Use Area would be allowed. These rules would prevent damage to natural resources and reduce erosion. Campfires would only be allowed in BLM-provided fire rings to prevent fire hazards.
Visitors would be prohibited from leaving any personal property or refuse after vacating the Zortman Ranger Station or the Buffington Day Use Area, even if that property is intended for other campers or occupants, in order to increase visitor satisfaction and safety. Quiet hours at the Zortman Ranger Station would be 10:00 p.m.–7:00 a.m. and site usage at the Buffington Day Use Area would be 6:00 a.m.–11:00 p.m. These rules would enhance visitor satisfaction.
The proposed supplementary rules would apply to the Zortman Ranger Station, a historic U.S. Forest Service Ranger Station now administered by the BLM in Zortman, Montana, and Buffington Day Use Area at the Camp Creek Recreation Area. Both areas comprise approximately 3 acres of public lands within Phillips County, Montana.
These supplementary rules are not significant regulatory actions and are not subject to review by the Office of Management and Budget under Executive Order 12866. The supplementary rules will result in an annual cost of less than $100 million or more on the economy. They will not adversely affect in a material way the economy, productivity, competition, jobs, environment, public health or safety, or State, local, or tribal governments or communities. These supplementary rules will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The rules do not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients, nor do they raise novel legal or policy issues. These rules would merely impose rules of conduct within the recreation sites.
Executive Order 12866 requires each agency to write regulations that are simple and easy to understand.
The BLM invites your comments on how to make these proposed supplementary rules easier to understand, including answers to questions such as the following:
(1) Are the requirements in the proposed supplementary rules clearly stated?
(2) Do the proposed supplementary rules contain technical language or jargon interfering with their clarity?
(3) Does the format of the proposed supplementary rules (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?
(4) Would the proposed supplementary rules be easier to understand if they were divided into more (but shorter) sections?
(5) Is the description of the proposed supplementary rules in the
Please send any comments you have on the clarity of the proposed supplementary rules to the address specified in the
Supplementary rules are made under the Visitor Services regulations of the Bureau of Land Management found at 43 CFR 8365.1–6. The BLM has determined that these proposed supplementary rules are administrative in nature, and are therefore categorically excluded from environmental review under Section 102(2)(C) of NEPA, 43 CFR 46.205, and 43 CFR 46.210(c) and (i). The BLM's Malta Field Office has prepared a Categorical Exclusion (CX) document to determine that these proposed supplementary rules do not meet any of the 12 criteria for exceptions to categorical exclusions listed at 43 CFR 46.215. Pursuant to the Council on Environmental Quality regulations (40 CFR 1508.4) and the environmental regulations, policies, and procedures of the Department of the Interior, the term “categorical exclusions” means a category of actions which do not individually or cumulatively have a significant effect on the human environment and that have been found to have no such effect in procedures adopted by a Federal agency and for which neither an environmental assessment nor an environmental impact statement is required. The supplementary rules merely contain rules of conduct for certain recreational lands in Montana. These rules are designed to protect the environment and the public health and safety. The BLM has placed the CX and the Decision Record (DR) on file in the BLM Administrative Record at the address specified in the
Congress enacted the Regulatory Flexibility Act of 1980 (RFA), as amended, 5 U.S.C. 601–612, to ensure that government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial,
These fees and supplementary rules do not constitute a “major rule” as defined at 5 U.S.C. 804(2). They would not result in an annual effect on the economy of $100 million or more, in a major increase in costs or prices, or in significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. They will merely impose reasonable restrictions on certain actions within the Malta Field Office fee campgrounds.
The Unfunded Mandates Reform Act (UMRA), 2 U.S.C. 1501
These supplementary rules are not a government action capable of interfering with constitutionally protected property rights. The rules will have no effect on private lands or property. Therefore, the BLM has determined that these supplementary rules will not cause a taking of private property or require preparation of a takings assessment under this Executive Order.
These supplementary rules 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. These supplementary rules will have little or no effect on State or local government. Therefore, in accordance with Executive Order 13132, the BLM has determined that these supplementary rules do not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.
The BLM has determined that the supplementary rules will not unduly burden the judicial system and that they meet the requirements of sections 3(a) and 3(b)(2) of the Order.
The proposed supplementary rules would merely establish rules of conduct for public use of a limited area of public land and would not affect land held for the benefit of Indians or Alaska Natives or impede their rights. The BLM has found that the supplementary rules do not include policies that have tribal implications.
In accordance with Executive Order 13352, the BLM has determined that the proposed supplementary rules would not impede facilitating cooperative conservation; would take appropriate account of and consider the interests of persons with ownership or other legally recognized interests in land or other natural resources; would properly accommodate local participation in the Federal decision-making process; and would provide that the programs, projects, and activities are consistent with protecting public health and safety.
In developing these proposed supplementary rules, the BLM did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Section 515 of Pub. L. 106–554).
These supplementary rules do not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
The supplementary rules do not comprise a significant energy action. They will not have an adverse effect on energy supplies, production, or consumption. They address recreational use of specific public lands, and have no connection with energy policy.
1. Rental of the Zortman Ranger Station is limited to no more than 7 consecutive days and no more than 14 days per year per person or group.
2. Campfires are allowed only in BLM-provided fire rings.
3. Fish and game are not to be cleaned inside the building.
4. No game carcasses are allowed in the building.
5. Pets must be leashed and cannot be left unattended outside the building.
6. Pets must be kenneled if left unattended inside the building.
7. Quiet hours are 10:00 p.m. to 7:00 a.m.
8. No cutting of standing trees or any vegetation is allowed at the site.
9. You must not leave any personal property or refuse after vacating the premises. This includes any property left for the purposes of use by another camper or occupant.
The proposed supplementary rules for Buffington Day Use Area are:
1. Site occupancy is limited to day use from 6:00 a.m. to 11:00 p.m.
2. Campfires are allowed only in BLM-provided fire rings.
3. Pets must be leashed and must not be left unattended.
4. No cutting of standing trees or any vegetation is allowed at the site.
5. You must not leave any personal property or refuse after vacating the premises. This includes any property left for the purposes of use by another camper or occupant.
Any person who violates any of these supplementary rules may be tried before a United States Magistrate and fined in accordance with 18 U.S.C. 3571, imprisoned no more than 12 months under 43 U.S.C. 1733(a) and 43 CFR 8560.0–7, or both. In accordance with 43 CFR 8365.1–7, State or local officials
The following persons are exempt from these supplementary rules: Any Federal, State, local, and/or military employees acting within the scope of their duties; members of any organized rescue or fire-fighting force performing an official duty; and persons, agencies, municipalities or companies holding an existing special-use permit and operating within the scope of their permit.
Bureau of Land Management, Interior.
Notice of withdrawal applications.
The Department of the Navy (DON) has filed an application to extend the current withdrawal of public lands from all forms of appropriation under the public land laws, including the mining laws, the mineral leasing laws, and the geothermal leasing laws, subject to valid existing rights, for military use of the Naval Air Station (NAS) Fallon, Fallon Range Training Complex (FRTC) in Churchill County, Nevada (withdrawal extension). The DON has also requested the withdrawal of approximately 604,789 additional acres of public lands from all forms of appropriation under the public land laws, including the mining laws, the mineral leasing laws, and the geothermal leasing laws, subject to valid existing rights (withdrawal expansion). This notice temporarily segregates the 604,789 acres from all forms of appropriation under the public land laws, including the mining laws, the mineral leasing laws, and the geothermal leasing laws, for 2 years; gives the public an opportunity to comment on the proposed withdrawal extension and withdrawal expansion; and announces the date, time, and location of public meetings on both the extension and the expansion.
Comments on the withdrawal applications, including their environmental consequences, should be received on or before December 1, 2016. In addition, public meetings on the withdrawal applications will be held jointly with the DON's public meetings associated with the National Environmental Policy Act of 1969, as amended (NEPA) evaluation of the withdrawals.. The dates and locations of the public meetings are listed in the
Comments pertaining to the DON withdrawal extension proposal and/or the DON withdrawal expansion proposal should be sent to: Naval Facilities Engineering Command Southwest; Attention: Amy P. Kelley, Code EV21.AK; 1220 Pacific Highway; Building 1, 5th Floor; San Diego, California 92132. Comments pertaining to this Notice should be submitted by any of the following methods:
Colleen Sievers, BLM, Carson City District Office, 775–885–6168; address: 5665 Morgan Mill Road, Carson City, NV 89701; email:
Pursuant to section 3016 of the National Defense Authorization Act (NDAA) for Fiscal Year 2000, Pub. L. 106–65, the Department of the Navy (DON) has filed an application to extend the current withdrawal of public lands from all forms of appropriation under the public land laws, including the mining laws, the mineral leasing laws (except for approximately 68,804 acres in the Dixie Valley Training Area which is currently included in the overall withdrawal but not withdrawn from the mineral leasing laws), and the geothermal leasing laws, subject to valid existing rights, for military use of the Naval Air Station (NAS) Fallon, Fallon Range Training Complex (FRTC) in Churchill County, Nevada. The lands are currently withdrawn under the Military Lands Withdrawal Act of 1999, which is part of the NDAA for Fiscal Year 2000, which reserves these lands for defense-related purposes for a period of 20 years. Unless Congress extends the withdrawal, it will expire on November 5, 2021.
In addition to the DON's request that the current withdrawal be extended, the DON filed an application requesting the withdrawal and reservation of additional public lands for military training exercises involving the NAS Fallon at Fallon, Churchill County, Nevada. The application to expand the acreage of lands withdrawn for the Navy's use at Fallon seeks the withdrawal of approximately 604,789 additional acres of public lands from all forms of appropriation under the public land laws, including the mining laws, the mineral leasing laws, and the geothermal leasing laws, subject to valid existing rights.
In addition, the application seeks to extend the existing withdrawal of 68,804 acres in the Dixie Valley Training Area (DVTA). Pursuant to Section 3011 of the NDAA for Fiscal Year 2000, the FRTC DVTA acres are currently withdrawn from all forms of appropriation under the public land laws, including the mining and geothermal leasing laws, but not withdrawn from the mineral leasing laws. This application seeks the withdrawal of these 68,804 acres of the DVTA from the mineral leasing laws, subject to valid existing rights. The DON's requested 604,789 expansion acres do not include the 68,804 DVTA acres, as the DVTA acres are already withdrawn from the other public land laws, and reserved for DON use.
As required by section 204(b)(1) of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1714(b)(1), and the BLM regulations at 43 CFR part 2300, the BLM is publishing this Notice of the DON applications. While the BLM and the Department of the Interior (DOI) assist the DON with the processing of withdrawal applications, and the Secretary of the Interior makes a recommendation to Congress on proposed withdrawals, it will be Congress, not the Secretary of the Interior, that will make the final decision on the requested extension and expansion of the existing NAS Fallon withdrawal.
The area described for B–16 aggregates 18,270.20 acres in Churchill County.
The area described for B–16 aggregates 9,088.77 acres in Churchill County.
The area described for B–17 aggregates 53,546.45 acres in Churchill County.
The area described for B–17 contains 25.42 acres in Churchill County.
The area described for B–17 aggregates 1,214.97 acres in Churchill County.
The area described for B–19 aggregates 29,012.14 acres in Churchill County.
The area described for B–20 aggregates 20,948.44 acres in Churchill County.
The area described for B–20 aggregates 19,429.35 acres in Churchill County.
The area described for B–20 contains 627.96 acres in Churchill County.
The area described for Shoal Site aggregates 2,560.90 acres in Churchill County.
The area described for Dixie Valley Training Area aggregates 68,804.44 acres in Churchill County.
The area described for Dixie Valley Training Area contains 28.10 acres in Churchill County.
The areas B–16, B–17, B–20, and the Dixie Valley Training Area aggregate 678,671 acres. Portions of these lands are unsurveyed and the acres obtained from protraction diagram information or calculated using Geographic Information System.
The area described for B–16 aggregates 32,201.17 acres in Churchill and Lyon Counties.
The area described for B–17 aggregates 176,977.16 acres in Churchill, Nye, and Mineral Counties.
A portion of M.S. No. 4773 (Viking's Daughter, Turtle, Tungsten, and Don).
The area described for B–17 aggregates 1,036.37 acres in Churchill, Nye, and Mineral Counties.
The area described for B–20 aggregates 49,986.79 acres in Churchill and Pershing Counties.
The area described for B–20 aggregates 65,375.88 acres in Churchill County.
The area described for B–20 contains 3,201.00 acres in Churchill County.
The area described for B–20 contains 61,764.88 acres in Churchill and Pershing Counties.
The area described for Dixie Valley Training Area aggregates 277,046.69 acres in Churchill and Mineral Counties.
The area described for Dixie Valley Training Area aggregates 8,722.47 acres in Churchill, and Mineral Counties.
The area described for Dixie Valley Training Area aggregates 2,351.80 acres in Churchill and Mineral Counties.
In the event any non-federally owned lands within the requested withdrawal area return or pass to Federal ownership in the future, they would be subject to the terms and conditions described above.
The purpose of the requested withdrawal extension and expansion at NAS FRTC is to withdraw and reserve the lands for use by the DON for testing and training involving air-to-ground weapons delivery, tactical maneuvering, use of electromagnetic spectrum, land warfare maneuver, and air support, as well as other defense-related purposes consistent with these purposes. National defense requirements are rapidly evolving in response to new and emerging worldwide threat conditions. The Department of Defense has responded to these new and emerging threats with advances in combat platform and weapon technologies, in an effort to maintain a competitive edge in combat operations abroad. The evolution of modern combat systems has placed an increased demand on tactical training ranges to meet combat pre-deployment training requirements. All deploying naval strike aviation units train at the FRTC prior to deployment. Many deploying Naval Special Warfare units also train at FRTC. The introduction of modern and advanced weapons systems already exceeds the DON's ability to train realistically at the FRTC while maintaining public safety. According to the DON, Training protocols are severely limited due to a lack of adequate training space at the FRTC. These limitations diminish the DON's ability to train to realistic deployment methods of existing weapons systems. The DON indicates that extension and expansion of the withdrawn and reserved Federal lands at Fallon are essential to provide a realistic tactical training at the FRTC while continuing to provide for public safety.
Copies of the legal descriptions and the maps depicting the lands that are the subject of the DON's applications are available for public inspection at the following offices:
For a period until December 1, 2016 all persons who wish to submit comments, suggestions, or objections in connection with the withdrawal applications may present their comments in writing to the persons and offices listed in the
Notice is hereby given that public meetings addressing the withdrawal applications will be held jointly with the DON's public meetings associated with NEPA evaluation of the proposed withdrawals. Public meetings will be held at the following locations:
The DON will be the lead agency for evaluation of the proposed withdrawal extension and expansion pursuant to NEPA and other applicable environmental and cultural resources authorities, and will be publishing its own scoping and other notices.
Comments, including names and street addresses of respondents, will be available for public review at the DON and BLM addresses noted above, during regular business hours Monday through Friday, except Federal holidays. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Subject to valid existing rights, the Federal lands that are the subject of the DON application for expansion of the withdrawal and reservation for DON use at Fallon, and that are described in this Notice, will be segregated from all forms of appropriation under the public land laws, including the mining laws, the mineral leasing laws, and the geothermal leasing laws. The segregation will continue for a period until [two years from date of publication in
The applications for withdrawal and reservation will be processed in accordance with the regulations at 43 CFR part 2300.
43 U.S.C. 1714(b)(1) and 43 CFR 2300.
National Park Service, Interior.
Notice of availability.
The National Park Service announces the availability of the Final Environmental Impact Statement (FEIS) for the Moose-Wilson Corridor Comprehensive Management Plan, Grand Teton National Park, Wyoming. The FEIS analyzes four alternatives for future management of the corridor. Alternative C has been identified as the NPS preferred alternative.
The National Park Service will execute a Record of Decision (ROD) no sooner than 30 days following publication by the Environmental Protection Agency of the Notice of Availability of the Final Environmental Impact Statement.
The FEIS is available to the public online at
David Vela, Superintendent, Grand Teton National Park, P.O. Drawer 170, Moose, Wyoming 83012–0170, (307) 739–3411,
In recent years, the Moose-Wilson corridor in Grand Teton National Park has experienced changes in ecological conditions, development patterns, and use by visitors and local residents. As a result, the National Park Service is conducting a comprehensive planning and environmental impact process to determine how best to protect park resources and values while providing appropriate opportunities for visitor use, experience, and enjoyment of the corridor. The final plan: (1) Identifies management strategies to address natural and cultural resource protection; (2) identifies management strategies to address visitor safety concerns and conflicts with wildlife; (3) addresses vehicle/bicycle management related to road use, trailhead parking areas and pullouts; (4) identifies management strategies related to the operation of facilities within the corridor; (5) considers if a multi-use pathway should be provided along Moose-Wilson Road; and (6) examines specific road realignment and paving options for the Moose-Wilson and Death Canyon Roads.
Four management alternatives, Alternatives A through D, are analyzed in the FEIS. Alternative A, the no-action alternative, would continue current management practices related to resources, visitor use, park operations, and maintenance of facilities within the Moose-Wilson corridor. Alternatives B through D address increases in traffic and volume-related congestion on the Moose-Wilson Road during peak use periods by either restricting its use as a through-travel route or limiting the number of vehicles entering the corridor at any one time.
Alternative B emphasizes managing the corridor as a visitor destination. Reduced crowding on Moose-Wilson Road and at destinations within the corridor would provide visitors an opportunity for self-discovery. This would be accomplished by restricting through-traffic in either direction during peak use periods through the management of a gate system on Moose-Wilson Road within the Laurance S. Rockefeller Preserve. Existing developed areas and facilities would be maintained where appropriate and removed or
Alternative C, the NPS preferred alternative, emphasizes the conservation legacy stories within the corridor. The intensity and timing of visitor use would be managed to effectively provide high quality visitor opportunities by reducing high traffic volumes and congestion. This would be accomplished using time sequencing techniques and the establishment of vehicle queuing lanes on the north and south ends of the corridor during peak visitation periods. Development within the corridor would generally be maintained within the existing development footprint.
Alternative D would enhance recreational opportunities with additional amenities, including the construction of a separated multi-use pathway parallel to Moose-Wilson Road. This alternative would integrate the Moose-Wilson corridor with the region's larger recreational network, and would enhance the recreational scenic driving experience by reducing high traffic volumes and congestion by establishing a reservation system during peak use periods.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
The authority for publishing this notice is contained in 40 CFR 1506.6.
National Park Service, Interior.
Notice.
The National Park Service is soliciting comments on the significance of properties nominated before August 6, 2016, for listing or related actions in the National Register of Historic Places.
Comments should be submitted by September 19, 2016.
Comments may be sent via U.S. Postal Service to the National Register of Historic Places, National Park Service, 1849 C St. NW., MS 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St. NW., 8th floor, Washington, DC 20005; or by fax, 202–371–6447.
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before August 6, 2016. Pursuant to section 60.13 of 36 CFR part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
60.13 of 36 CFR part 60.
National Park Service, Interior.
Notice.
The National Park Service is soliciting comments on the significance of properties nominated before August 13, 2016, for listing or related actions in the National Register of Historic Places.
Comments should be submitted by September 19, 2016.
Comments may be sent via U.S. Postal Service to the National Register of Historic Places, National Park Service, 1849 C St. NW., MS 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St. NW., 8th floor, Washington, DC 20005; or by fax, 202–371–6447.
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before August 13, 2016. Pursuant to section 60.13 of 36 CFR part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
A request to move has been received for the following resource:
60.13 of 36 CFR part 60
United States International Trade Commission.
Notice of remand proceedings.
The U.S. International Trade Commission (“Commission”) hereby gives notice of the remand of its final determinations in the antidumping and countervailing duty investigations of steel concrete reinforcing bar (“rebar”) from Mexico and Turkey. For further information concerning the conduct of these remand proceedings and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subpart A (19 CFR part 207).
Douglas Corkran (202–205–3057), Office of Investigations, or John Henderson (202–205–2130), Office of General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202–205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202–205–2000. General information concerning the Commission may also be obtained by accessing its internet server (
The comments must be based solely on the information in the Commission's record. The Commission will reject submissions containing additional factual information or arguments pertaining to issues other than the specific one on which the Panel has remanded this matter. The deadline for filing comments is September 13, 2016. Comments shall be limited to no more than fifteen (15) double-spaced and single-sided pages of textual material.
Parties are advised to consult with the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subpart A (19 CFR part 207) for provisions of general applicability concerning written submissions to the Commission. All written submissions must conform with the provisions of section 201.8 of the Commission's rules; any submissions that contain BPI must also conform with the requirements of sections 201.6, 207.3, and 207.7 of the Commission's rules. The Commission's
Additional written submissions to the Commission, including requests pursuant to § 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with §§ 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigation must be served on all other parties to the investigation (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
By order of the Commission.
Notice is hereby given that, on August 5, 2016, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 301
Also, Smarteye Corporation, Rochester Hills, MI; HB-Softsolution,
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and ODVA intends to file additional written notifications disclosing all changes in membership.
On June 21, 1995, ODVA filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on May 12, 2016. A notice was published in the
Notice is hereby given that, on July 18, 2016, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and CHEDE–VII intends to file additional written notifications disclosing all changes in membership.
On January 6, 2016, CHEDE–VII filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on April 21, 2016. A notice was published in the
Notice.
The Department of Labor (DOL) Employment And Training Administration (ETA) is soliciting comments concerning a proposed extension for the authority to conduct the information collection request (ICR) titled, “Federal-State Unemployment Insurance Program Data Exchange Standardization.” This comment request is part of continuing Departmental efforts to reduce paperwork and respondent burden in accordance with the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
Consideration will be given to all written comments received by November 1, 2016.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free by contacting Subri Raman by telephone at 202–693–3058, (this is not a toll-free number) or by email at
Submit written comments about, or requests for a copy of, this ICR by mail or courier to the U.S. Department of Labor, Employment And Training Administration, 200 Constitution Ave. NW., Washington, DC 20210; by email:
The DOL, as part of continuing efforts to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies an opportunity to comment on proposed and/or continuing collections of information before submitting them to the OMB for final approval. This program helps to ensure requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements can be properly assessed.
On February 22, 2012, the President signed the Middle Class Tax Relief and Job Creation Act of 2012 (78 FR 12655). Section 2104 of the Act amends Title IX, SSA (42 U.S.C. 1111
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
Interested parties are encouraged to provide comments to the contact shown in the
Submitted comments will also be a matter of public record for this ICR and posted on the Internet, without redaction. The DOL encourages commenters not to include personally identifiable information, confidential business data, or other sensitive statements/information in any comments.
The DOL is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3506(c)(2)(A).
10:00 a.m., Tuesday, September 13, 2016.
NeighborWorks America—Gramlich Boardroom, 999 North Capitol Street NE., Washington, DC 20002.
Open (with the exception of Executive Sessions).
Jeffrey Bryson, General Counsel/Secretary, (202) 760–4101;
The General Counsel of the Corporation has certified that in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552(b)(4) permit closure of the following portions of this meeting:
Nuclear Regulatory Commission.
Exemption and combined license amendment; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is granting an exemption to allow a departure from the certification information of Tier 1 of the generic design control document (DCD) and is issuing License Amendment No. 50 to Combined Licenses (COLs), NPF–93 and NPF–94. The COLs were issued to South Carolina Electric & Gas Company, (the licensee); for construction and operation of the Virgil C. Summer Nuclear Station (VCSNS) Units 2 and 3, located in Fairfield County, South Carolina.
The granting of the exemption allows the changes to Tier 1 information asked for in the amendment. Because the acceptability of the exemption was determined in part by the acceptability of the amendment, the exemption and amendment are being issued concurrently.
The exemption was issued on July 20, 2016.
Please refer to Docket ID NRC–2008–0441 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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Paul Kallan, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–2809; email:
The NRC is granting an exemption from Paragraph B of Section III, “Scope and Contents,” of appendix D, “Design Certification Rule for the AP1000,” to part 52 of title 10 of the
Part of the justification for granting the exemption was provided by the review of the amendment. Because the exemption is necessary in order to issue the requested license amendment, the NRC granted the exemption and issued the amendment concurrently, rather than in sequence. This included issuing a combined safety evaluation containing the NRC staff's review of both the exemption request and the license amendment. The exemption met all applicable regulatory criteria set forth in 10 CFR 50.12, 10 CFR 52.7, and Section VIII.A.4 of appendix D to 10 CFR part 52. The license amendment was found to be acceptable as well. The combined safety evaluation is available in ADAMS under Accession No. ML16203A071.
Identical exemption documents (except for referenced unit numbers and license numbers) were issued to the licensee for VCSNS Units 2 and 3 (COLs NPF–93 and NPF–94). The exemption documents for VCSNS Units 2 and 3 can be found in ADAMS under Accession Nos. ML16202A516 and ML16202A518, respectively. The exemption is reproduced (with the exception of abbreviated titles and additional citations) in Section II of this document. The amendment documents for COLs NPF–93 and NPF–94 are available in ADAMS under Accession Nos. ML16202A508 and ML16202A514, respectively. A summary of the amendment documents is provided in Section III of this document.
Reproduced below is the exemption document issued to Summer Units 2 and Unit 3. It makes reference to the combined safety evaluation that provides the reasoning for the findings made by the NRC (and listed under Item 1) in order to grant the exemption:
1. In a letter dated November 4, 2015, the licensee requested from the Commission an exemption from the provisions of 10 CFR part 52, appendix D, Section III.B, as part of license amendment request 15–04, “Diverse Actuation System (DAS) Cabinet Changes (LAR–15–04).”
For the reasons set forth in Section 3.1, “Evaluation of Exemption,” of the NRC staff's Safety Evaluation, which can be found in ADAMS under Accession No. ML16203A071, the Commission finds that:
A. The exemption is authorized by law;
B. the exemption presents no undue risk to public health and safety;
C. the exemption is consistent with the common defense and security;
D. special circumstances are present in that the application of the rule in this circumstance is not necessary to serve the underlying purpose of the rule;
E. the special circumstances outweigh any decrease in safety that may result from the reduction in standardization caused by the exemption; and
F. the exemption will not result in a significant decrease in the level of safety otherwise provided by the design.
2. Accordingly, the licensee is granted an exemption from the certified DCD Tier 1 information, with corresponding changes to Appendix C of the Facility Combined Licenses as described in the licensee's request dated November 4, 2015. This exemption is related to, and necessary for, the granting of License Amendment No. 50, which is being issued concurrently with this exemption.
3. As explained in Section 5.0, “Environmental Consideration,” of the NRC staff's Safety Evaluation (ADAMS Accession No. ML16203A071), this exemption meets the eligibility criteria for categorical exclusion set forth in 10 CFR 51.22(c)(9). Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment needs to be prepared in connection with the issuance of the exemption.
4. This exemption is effective as of the date of its issuance.
By letter dated November 4, 2015, the licensee requested that the NRC amend the COLs for VCSNS, Units 2 and 3, COLs NPF–93 and NPF–94. The proposed amendment is described in Section I of this
The Commission has determined for these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed no significant hazards consideration determination, and opportunity for a hearing in connection with these actions, was published in the
The Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments.
Using the reasons set forth in the combined safety evaluation, the staff granted the exemption and issued the amendment that the licensee requested on November 4, 2015.
The exemption and amendment were issued on July 20, 2016 as part of a combined package to the licensee (ADAMS Accession No. ML16202A486).
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
License amendment application; notice of opportunity to comment, request a hearing, and petition for leave to intervene.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an amendment to Combined Licenses (NPF–93 and NPF–94), issued to South Carolina Electric & Gas
Submit comments by October 3, 2016. Requests for a hearing or petition for leave to intervene must be filed by November 1, 2016.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
William (Billy) Gleaves, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555–000; telephone: 301–415–5848; email:
Please refer to Docket ID NRC–2008–0441 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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•
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Please include Docket ID NRC–2008–0441 in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC posts all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The NRC is considering issuance of an amendment to Facility Operating License Nos. NPF–93 and NPF–94, issued to SCE&G and Santee Cooper for operation of the Virgil C. Summer Nuclear Station, Units 2 and 3, located in Fairfield County, South Carolina.
The proposed amendment, as revised, requests change to the Updated Final Safety Analysis Report (UFSAR) in the form of departures from the incorporated plant-specific Design Control Document Tier 2* and associated Tier 2 information. Specifically, the proposed departures consist of changes to the UFSAR to revise the details of the structural design of auxiliary building floors within module CA20 at approximate design elevations between 82′–6″ and 135′–3″ and at the north end of the auxiliary building at approximate design elevations between 117′–6″ and 135′–3″.
A Biweekly
Before any issuance of the proposed license amendment, the NRC will need to make the findings required by the Atomic Energy Act of 1954, as amended (the Act), and the NRC's regulations.
The NRC has made a proposed determination that the license amendment request involves no significant hazards consideration. Under the NRC's regulations in § 50.92 of title 10 of the
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The design functions of the auxiliary building floors are to provide support, protection, and separation for the seismic Category I mechanical and electrical equipment located in the auxiliary building. The auxiliary building is a seismic Category I structure and is designed for dead, live, thermal, pressure, safe shutdown earthquake loads, and loads due to postulated pipe breaks. The proposed changes to UFSAR descriptions and figures are intended to address changes in the detail design of floors in the auxiliary building. The thickness and strength of the auxiliary building floors are not reduced. As a result, the design function of the auxiliary building structure is not adversely affected by the proposed changes. There is no change to plant systems or the response of systems to postulated accident conditions. There is no change to the predicted radioactive releases due to postulated accident conditions. The plant response to previously evaluated accidents or external events is not adversely affected, nor do the changes described create any new accident precursors.
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The changes to UFSAR descriptions and figures are proposed to address changes in
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The criteria and requirements of American Concrete Institute (ACI) 349 and American Institute of Steel Construction (AISC) N690 provide a margin of safety to structural failure. The design of the auxiliary building structure conforms to criteria and requirements in ACI 349 and AISC N690 and therefore maintains the margin of safety. Analysis of the connection design confirms that code provisions are appropriate to the floor to wall connection. The proposed changes to the UFSAR address changes in the detail design of floors in the auxiliary building. The proposed changes also incorporate the requirements for development and anchoring of headed reinforcement which were previously approved. There is no change to design requirements of the auxiliary building structure. There is no change to the method of evaluation from that used in the design basis calculations. There is not a significant change to the in structure response spectra.
Therefore, the proposed amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the license amendment request involves a No Significant Hazards Consideration.
The NRC is seeking public comments on this proposed determination that the license amendment request involves no significant hazards consideration. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day notice period if the Commission concludes the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this proceeding and who desires to participate as a party in the proceeding must file a written request for hearing or a petition for leave to intervene specifying the contentions which the person seeks to have litigated in the hearing with respect to the license amendment request. Requests for hearing and petitions for leave to intervene shall be filed in accordance with the NRC's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR. The NRC's regulations are accessible electronically from the NRC Library on the NRC's Web site at
If a request for a hearing or petition for leave to intervene is filed within 60 days, the Commission or a presiding officer designated by the Commission or by the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel, will rule on the request and/or petition; and the Secretary or the Chief Administrative Judge of the Atomic Safety and Licensing Board will issue a notice of a hearing or an appropriate order.
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also set forth the specific contentions which the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion to support its position on the issue. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that person's admitted contentions, including the opportunity to present evidence and to submit a cross-examination plan for cross-examination of witnesses, consistent with the NRC's regulations, policies, and procedures.
Petitions for leave to intervene must be filed no later than 60 days from the date of publication of this notice. Requests for hearing, petitions for leave to intervene, and motions for leave to file new or amended contentions that are filed after the 60-day deadline will
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of any amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission by November 1, 2016. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions for leave to intervene set forth in this section, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or Federally-recognized Indian Tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may also have the opportunity to participate under 10 CFR 2.315(c).
If a hearing is granted, any person who does not wish, or is not qualified, to become a party to the proceeding may, in the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of position on the issues, but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Details regarding the opportunity to make a limited appearance will be provided by the presiding officer if such sessions are scheduled.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 FR 46562, August 3, 2012). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form.
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
For further details with respect to this action, see the application for license amendment dated June 16, 2016 and revised August 12, 2016.
Attorney for licensee: Ms. Kathryn M. Sutton, Morgan, Lewis & Bockius LLC, 1111 Pennsylvania Avenue NW., Washington, DC 20004–2514. NRC Branch Chief: Jennifer Dixon-Herrity.
For the Nuclear Regulatory Commission.
September 5, 12, 19, 26, October 3, 10, 2016.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of September 26, 2016.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of October 10, 2016.
The schedule for Commission meetings is subject to change on short notice. For more information or to verify the status of meetings, contact Denise McGovern at 301–415–0681 or via email at
The NRC Commission Meeting Schedule can be found on the Internet at
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301–415–1969), or email
Thursday, September 15, 2016, at 10:00 a.m.
Las Vegas, Nevada.
Closed.
1. Strategic Issues.
2. Financial Matters.
3. Personnel Matters and Compensation Issues.
4. Executive Session—Discussion of prior agenda items and Board governance.
The General Counsel of the United States Postal Service has certified that the meeting may be closed under the Government in the Sunshine Act.
Julie S. Moore, Secretary of the Board, U.S. Postal Service, 475 L'Enfant Plaza SW., Washington, DC 20260–1000. Telephone: (202) 268–4800.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501), the Securities and Exchange Commission (the “Commission”) is soliciting comments on the collections of information summarized below. The Commission plans to submit these existing collections of information to the Office of Management and Budget (“OMB”) for extension and approval.
Section 17(a) of the Investment Company Act of 1940 (the “Act”) generally prohibits affiliated persons of a registered investment company (“fund”) from borrowing money or other property from, or selling or buying securities or other property to or from, the fund or any company that the fund controls.
The rule is designed to permit transactions between funds and their portfolio affiliates in circumstances in which it is unlikely that the affiliate would be in a position to take advantage of the fund. In determining whether a financial interest is “material,” the board of the fund should consider whether the nature and extent of the interest in the transaction is sufficiently small that a reasonable person would not believe that the interest affected the determination of whether to enter into the transaction or arrangement or the terms of the transaction or arrangement. The information collection requirements in rule 17a–6 are intended to ensure that Commission staff can review, in the course of its compliance and examination functions, the basis for a board of director's finding that the financial interest of an otherwise prohibited participant in a party to a transaction with a portfolio affiliate is not material.
Based on staff discussions with fund representatives, we estimate that funds currently do not rely on the exemption from the term “financial interest” with respect to any interest that the fund's board of directors (including a majority of the directors who are not interested persons of the fund) finds to be not material. Accordingly, we estimate that annually there will be no principal transactions under rule 17a–6 that will result in a collection of information.
The Commission requests authorization to maintain an inventory of one burden hour to ease future renewals of rule 17a–6's collection of information analysis should funds rely on this exemption to the term “financial interest” as defined in rule 17a–6.
The estimate of burden hours is made solely for the purposes of the Paperwork Reduction Act. The estimate is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules. Complying with this collection of information requirement is necessary to obtain the benefit of relying on rule 17a–6. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Written comments are invited on: (a) 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) the accuracy of the agency's estimate of the burden of the collection of information; (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 respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, C/O Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549; or send an email to:
In the Matter of:
Allianz Life Insurance Company of North America, Allianz Life Variable Account A, Allianz Life Variable Account B, Allianz Life Insurance Company of New York, Allianz Life of NY Variable Account C (collectively, the “Section 26 Applicants”); and Allianz Variable Insurance Products Trust (together with the Section 26 Applicants, the “Section 17 Applicants”) filed an application on November 16, 2015, and an amended and restated application on June 27, 2016. The Section 26 Applicants requested an order pursuant to section 26(c) of the Act to approve the substitutions of shares of certain registered management investment companies with shares of certain other registered management investment companies (“Substitutions”). The Section 17 Applicants requested an order under section 17(b) of the Act exempting them from section 17(a) of the Act to the extent necessary to permit them to engage in certain in-kind transactions in connection with the Substitutions.
On August 3, 2016, a notice of the filing of the application was issued (Investment Company Act Release No. 32207). The notice gave interested persons an opportunity to request a hearing and stated that an order disposing of the application would be issued unless a hearing was ordered. No request for a hearing has been filed, and the Commission has not ordered a hearing.
The matter has been considered, and it is found that the Substitutions are consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
It is also found that the terms of the proposed transactions, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned, and that the proposed transactions are consistent with the policy of each registered investment company concerned, as recited in its registration statement and reports filed under the Act, and with the general purposes of the Act.
Accordingly, in the matter of Allianz Life Insurance Company of North America,
For the Commission, by the Division of Investment Management, under delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 12h–1(f) (17 CFR 240.12h–1(f)) under the Securities Exchange Act of 1934 (“Exchange Act”) provides an exemption from the Exchange Act Section 12(g) registration requirements for compensatory employee stock options of issuers that are not required to file periodic reports under the Exchange Act. The information required under Exchange Act Rule 12h–1 is not filed with the Commission. Exchange Act Rule 12h–1(f) permits issuers to provide the required information to the option holders either by: (i) Physical or electronic delivery of the information; or (ii) written notice to the option holders of the availability of the information on a password-protected Internet site. We estimate that it takes approximately 2 burden hours per response to prepare and provide the information required under Rule 12h–1(f) and that the information is prepared and provided by approximately 40 respondents. We estimate that 25% of the 2 hours per response (0.5 hours per response) is prepared by the company for a total annual reporting burden of 20 hours (0.5 hours per response × 40 responses).
Written comments are invited on: (a) Whether this proposed collection of information is necessary for the performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden imposed by the collection of information; (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 respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Please direct your written comment to Pamela Dyson, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549 or send an email to:
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 1042A, Exercise of Options Contracts and Options Floor Procedure Advice G–1, Index Option Exercise Advice Forms
The text of the proposed rule change is available on the Exchange's Web site 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 is amending Rule 1042A to provide additional clarity to member organizations and add additional requirements regarding the procedures to be followed in order to exercise American style index option contracts. Currently, Rule 1042A states that “[a] memorandum to exercise any American style stock index option contract, issued or to be issued in a customer, market maker or firm account at the Options Clearing Corporation must be received or prepared by the member organization no later than five minutes after the close of trading on that day and must be time-stamped at the time it is received or prepared.”
Rule 1042A also requires a member or member organization to that intends to submit an “exercise notice” for any American style option contract(s) on behalf of a customer, specialist, Registered Options Trader, or firm account to deliver an “Exercise Advice” on a form prescribed by the Exchange, to a place designated by the Exchange, no later than five minutes after the close of trading.
The Exchange has consequently determined to provide additional clarity to member organizations regarding procedures to be followed in order to exercise an American-style index option contract. It proposes to delete all rule text currently found in section (a) of Rule 1042A with the exception of the first part of the first sentence, which reads simply and clearly that “[w]ith respect to index option contracts, clearing members are required to follow the procedures of the Options Clearing Corporation for tendering exercise notices”. In place of the deleted text, the Exchange proposes to adopt several new provisions that clearly articulate the procedures to be followed.
The new language specifies that Clearing Members must follow the procedures of the Options Clearing Corporation (“OCC”) when exercising American-style cash-settled index options contracts issued or to be issued in any account at OCC. Member organizations must also observe certain procedures with respect to American-style cash-settled index options. Specifically, for all contracts exercised by the member organization or by any customer of the member organization, an “exercise advice” must be delivered by the member organization in such form or manner prescribed by the Exchange no later than five (5) minutes after the close of trading on that day.
The new rule language also adds some new provisions not covered by the existing rule text. It provides that the Exchange may determine to extend the applicable deadline for the delivery of “exercise advice” and “advice cancel” notifications pursuant to this paragraph if unusual circumstances are present.
The new language requires each member organization to prepare a memorandum of every exercise instruction received showing by time stamp the time when such instruction was so received. It provides that such memoranda shall be subject to the requirements of Commission Rule 17a–4(b).
The Exchange also proposes to amend Options Floor Procedure Advice (“OFPA”) G–1 by conforming it to the requirements of updated Rule 1042A. References to a specific “Exercise Advice Form” are replaced with general references to exercise advices to eliminate any suggestion that a specified form must be used in order to comply with Rule 1042A. The Exchange intends that any written evidence reflecting that Rule 1042A's requirements have been met will be sufficient to constitute an exercise advice.
The Exchange believes that its proposal is consistent with section 6(b) of the Act
The Exchange believes that the introductory language of Rule 1042A as revised, as well as sections (i), (vii) and (viii) largely restate the existing rule, but in a much more clear and understandable way. New sections (ii) and (iii) provide, respectively, for the delivery of “advice cancels” if made on a timely basis and for the extension of applicable deadlines for delivery of exercise advices and advice cancel notifications in unusual circumstances. The advice cancel language codifies existing practice that is not spelled out in the current rule, and the rule providing for extension of deadlines provides the Exchange with flexibility to deal with unusual market circumstances in a way that is fair to market participants. New subsection (iv) clearly prohibits the preparation, time stamping or submitting an “exercise advice” prior to the purchase of the contracts to be exercised, if the member organization knew or had reason to know that the contracts had not yet been purchased. New sections (v) and (vi) articulate clearly that violation of Rule 1042A may result in consequences including disgorgement and that preparing or submitting an exercise advice or advice cancel after the applicable deadline on the basis of material information released after the deadline violates Rule 1042A and constitutes activity inconsistent with just and equitable principles of trade. These provisions should discourage lack of compliance with Rule 1042A. Finally, compliance should be enhanced by the adoption of section (ix), a new requirement to establish procedures to ensure secure time stamps for the recording of submissions to exercise or not exercise expiring options. The proposed amendments to OFPA G–1 are designed to promote just and equitable principles of trade and to protect investors and the public interest by conforming it to the requirements of updated Rule 1042A, eliminating potential confusion concerning a requirement that a specified form must be used in order to comply with Rule 1042A, eliminating an outdated reference to C/MACS, reflecting current practice that exercise advices may be delivered to Exchange staff in the trading crowd as well as at the Surveillance Post on the Exchange floor, and acknowledging that expiration now typically occurs on a business day rather than on a Saturday.
The Exchange does not believe that the proposed rule change will impose any burden on competition not
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
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: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) 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.
Securities and Exchange Commission (“Commission”).
Notice of an application under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from section 15(a) of the Act and rule 18f–2 under the Act, as well as from certain disclosure requirements in rule 20a–1 under the Act, Item 19(a)(3) of Form N–1A, Items 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8) and 22(c)(9) of Schedule 14A under the Securities Exchange Act of 1934, and Sections 6–07(2)(a), (b), and (c) of Regulation S–X (“Disclosure Requirements”). The requested exemption would permit an investment adviser to hire and replace certain sub-advisers without shareholder approval and grant relief from the Disclosure Requirements as they relate to fees paid to the sub-advisers.
Starboard Investment Trust (the “Trust”), a Delaware statutory trust registered under the Act as an open-end management investment company with multiple series, and Cavalier Investments, Inc., a Massachusetts corporation registered as an investment adviser under the Investment Advisers Act of 1940 (the “Adviser,” and, collectively with the Trust, the “Applicants”).
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on September 23, 2016, and should be accompanied by proof of service on the applicants, in the form of an affidavit or, for lawyers, a certificate of service. Pursuant to rule 0–5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. Applicants: The Trust, 116 South Franklin Street, Rocky Mount, NC 27804; the Adviser, 50 Braintree Hill Park #105, Braintree, MA 02184.
Hae-Sung Lee, Attorney-Adviser, at (202) 551–7345, or Mary Kay Frech, Branch Chief, at (202) 551–6821 (Division of
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or an applicant using the Company name box, at
1. The Adviser will serve as the investment adviser to the Subadvised Series pursuant to an investment advisory agreement with the Trust (the “Investment Management Agreement”).
2. Applicants request an exemption to permit the Adviser, subject to Board approval, to hire certain Sub-Advisers pursuant to Sub-Advisory Agreements and materially amend existing Sub-Advisory Agreements without obtaining the shareholder approval required under section 15(a) of the Act and rule 18f–2 under the Act.
3. Applicants agree that any order granting the requested relief will be subject to the terms and conditions stated in the application. Such terms and conditions provide for, among other safeguards, appropriate disclosure to Subadvised Series shareholders and notification about sub-advisory changes and enhanced Board oversight to protect the interests of the Subadvised Series' shareholders.
4. Section 6(c) of the Act provides that the Commission may exempt any person, security, or transaction or any class or classes of persons, securities, or transactions from any provisions of the Act, or any rule thereunder, if such relief is necessary or appropriate in the public interest and consistent with the protection of investors and purposes fairly intended by the policy and provisions of the Act. Applicants believe that the requested relief meets this standard because, as further explained in the application, the Investment Management Agreements will remain subject to shareholder approval, while the role of the Sub-Advisers is substantially similar to that of individual portfolio managers, so that requiring shareholder approval of Sub-Advisory Agreements would impose unnecessary delays and expenses on the Subadvised Series. Applicants believe that the requested relief from the Disclosure Requirements meets this standard because it will improve the Adviser's ability to negotiate fees paid to the Sub-Advisers that are more advantageous for the Subadvised Series.
For the Commission, by the Division of Investment Management, under delegated authority.
On May 11, 2016, NYSE Arca, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Commission approved the listing and trading of shares (“Shares”) of the Funds under NYSE Arca Equities Rule 8.600,
Fidelity Investments Money Management, Inc. (“FIMM”), an affiliate of Fidelity Management & Research Company (“FMR”), is the manager (“Manager”) of each Fund. FMR Co., Inc. (“FMRC”) serves as a sub-adviser for the Fidelity Total Bond ETF. FMRC has day-to-day responsibility for choosing certain types of investments of foreign and domestic issuers for Fidelity Total Bond ETF. Other investment advisers, which also are affiliates of FMR, serve as sub-advisers to the Funds and assist FIMM with foreign investments, including Fidelity Management & Research (U.K.) Inc., Fidelity Management & Research (Hong Kong) Limited, and Fidelity Management & Research (Japan) Inc. (individually, “Sub-Adviser,” and together with FMRC, collectively “Sub-Advisers”). Fidelity Distributors Corporation is the distributor for the Funds' Shares.
The Funds are funds of Fidelity Merrimack Street Trust (“Trust”), a Massachusetts business trust.
As described in the Prior Corporate Bond Notice, the Fidelity Corporate Bond ETF seeks a high level of current income. The Manager normally invests at least 80% of Fidelity Corporate Bond ETF assets in investment-grade corporate bonds and other corporate debt securities.
The Fidelity Corporate Bond ETF may hold uninvested cash or may invest it in cash equivalents such as money market securities, or shares of short-term bond exchanged-traded funds registered under the 1940 Act (“ETFs”), or mutual funds or money market funds, including Fidelity central funds (special types of investment vehicles created by Fidelity for use by the Fidelity funds and other advisory clients). The Manager uses the Barclays U.S. Credit Bond Index as a guide in structuring the Fund and selecting its investments. FIMM manages the Fund to have similar overall interest rate risk to the Barclays U.S. Credit Bond Index.
As stated in the Prior Corporate Bond Releases, in buying and selling securities for the Fund, the Manager analyzes the credit quality of the issuer, security-specific features, current valuation relative to alternatives in the market, short-term trading opportunities resulting from market inefficiencies, and potential future valuation. In managing the Fund's exposure to various risks, including interest rate risk, the Manager considers, among other things, the market's overall risk characteristics, the market's current pricing of those risks, information on the Fund's competitive universe and internal views of potential future market conditions.
While the Manager normally invests at least 80% of assets of the Fund in investment grade corporate bonds and other corporate debt securities, as described above, the Manager may invest up to 20% of the Fund's assets in other securities and financial instruments, as summarized below.
In addition to corporate debt securities, the debt securities in which the Fund may invest are U.S. Government securities; repurchase agreements and reverse repurchase agreements; mortgage- and other asset-backed securities; loans; loan participations, loan assignments, and other evidences of indebtedness, including letters of credit, revolving credit facilities, and other standby financing commitments; structured securities; stripped securities; municipal securities; sovereign debt obligations; obligations of international agencies or supranational entities; and other securities believed to have debt-like characteristics, including hybrid securities, which may offer characteristics similar to those of a bond security such as stated maturity and preference over equity in bankruptcy.
The Fund may invest in restricted securities, which are subject to legal restrictions on their sale. Restricted securities generally can be sold in privately negotiated transactions, pursuant to an exemption from registration under the Securities Act, or in a registered public offering.
As described in the Prior Total Bond Notice, the Fidelity Investment Grade Bond ETF (which has not yet commenced operation) will seek a high level of current income. The Manager normally will invest at least 80% of the
As described in the Prior Total Bond Notice, the Fidelity Investment Grade Bond ETF may hold uninvested cash or may invest it in cash equivalents such as repurchase agreements, shares of short term bond ETFs, mutual funds, or money market funds, including Fidelity central funds (special types of investment vehicles created by Fidelity for use by the Fidelity funds and other advisory clients). The Manager will use the Barclays U.S. Aggregate Bond Index (“Aggregate Index”) as a guide in structuring the Fund and selecting its investments, and will manage the Fund to have similar overall interest rate risk to the Aggregate Index.
As described in the Prior Total Bond Notice, the Manager will consider other factors when selecting the Fidelity Investment Grade Bond ETF's investments, including the credit quality of the issuer, security-specific features, current valuation relative to alternatives in the market, short-term trading opportunities resulting from market inefficiencies, and potential future valuation. In managing the Fidelity Investment Grade Bond ETF's exposure to various risks, including interest rate risk, the Manager will consider, among other things, the market's overall risk characteristics, the market's current pricing of those risks, information on the Fidelity Investment Grade Bond ETF's competitive universe, and internal views of potential future market conditions.
As described in the Prior Total Bond Notice, the Fidelity Limited Term Bond ETF seeks to provide a high rate of income. The Manager normally invests at least 80% of the Fidelity Limited Term Bond ETF's assets in investment-grade Debt Securities (those of medium and high quality).
The Fidelity Limited Term Bond ETF may hold uninvested cash or may invest it in cash equivalents such as repurchase agreements, shares of short term bond ETFs, mutual funds, or money market funds, including Fidelity central funds (special types of investment vehicles created by Fidelity for use by the Fidelity funds and other advisory clients). The Manager uses the Fidelity Limited Term Composite Index (“Composite Index”) as a guide in structuring the Fund and selecting its investments. The Manager manages the Fidelity Limited Term Bond ETF to have similar overall interest rate risk to the Composite Index.
The Manager considers other factors when selecting the Fidelity Limited Term Bond ETF's investments, including the credit quality of the issuer, security-specific features, current valuation relative to alternatives in the market, short-term trading opportunities resulting from market inefficiencies, and potential future valuation. In managing the Fidelity Limited Term Bond ETF's exposure to various risks, including interest rate risk, the Manager considers, among other things, the market's overall risk characteristics, the market's current pricing of those risks, information on the Fund's competitive universe, and internal views of potential future market conditions.
As described in the Prior Total Bond Notice, the Fidelity Total Bond ETF seeks a high level of current income. The Manager normally invests at least 80% of the Fidelity Total Bond ETF's assets in Debt Securities. The Manager allocates the Fidelity Total Bond ETF's assets across investment-grade, high yield, and emerging market Debt Securities. The Manager may invest up to 20% of the Fund's assets in lower-quality Debt Securities.
The Fidelity Total Bond ETF may hold uninvested cash or may invest it in cash equivalents such as repurchase agreements, shares of short term bond ETFs, mutual funds, or money market funds, including Fidelity central funds (special types of investment vehicles created by Fidelity for use by the Fidelity funds and other advisory clients).
The Manager uses the Barclays U.S. Universal Bond Index (“Universal Index”) as a guide in structuring and selecting the investments of the Fidelity Total Bond ETF and selecting its investments, and in allocating the Fidelity Total Bond ETF's assets across the investment-grade, high yield, and emerging market asset classes. The Manager manages the Fidelity Total Bond ETF to have similar overall interest rate risk to the Universal Index. The Manager considers other factors when selecting the Fund's investments, including the credit quality of the issuer, security-specific features, current valuation relative to alternatives in the market, short-term trading opportunities resulting from market inefficiencies, and potential future valuation. In managing the Fund's exposure to various risks, including interest rate risk, the Manager considers, among other things, the market's overall risk characteristics, the market's current pricing of those risks, information on the Fund's competitive universe, and internal views of potential future market conditions.
As described in the Prior Total Bond Notice, the Manager may invest the Fidelity Total Bond ETF's assets in Debt Securities of foreign issuers in addition to securities of domestic issuers.
While, as described above, the Manager normally invests at least 80% of assets of Fidelity Limited Term Bond ETF in investment-grade Debt Securities (and will normally invest at least 80% of assets of the Fidelity Investment Grade Bond ETF in investment-grade Debt Securities), and the Manager normally invests at least 80% of assets of the Fidelity Total Bond ETF in Debt Securities, the Manager may invest up to 20% of a Fund's assets in other securities and financial instruments (“Other Investments,” as described in the Prior Total Bond Notice). As described in the Prior Corporate Bond Notice and Prior Total Bond Notice, as part of a Fund's Other Investments, (
The Exchange proposes that each Fund may include Rule 144A securities within a Fund's principal investments in debt securities (
FMR has represented to the Exchange that Rule 144A securities account for approximately 20% of daily trading volume in U.S. corporate bonds. Dealers trade and report transactions in Rule 144A securities in the same manner as registered corporate bonds. While the average number of daily trades and U.S. dollar volume in registered corporate bonds is much higher than in Rule 144A securities, the average lot size is higher for Rule 144A securities.
In addition, in 2013, the Commission approved FINRA rules relating to dissemination of information regarding transactions in Rule 144A securities in TRACE.
Real-time dissemination of last-sale information could aid dealers in deriving better quotations, because they would know the prices at which other market participants had recently transacted in the same or similar instruments. This information could aid all market participants in evaluating current quotations, because they could inquire why dealer quotations might differ from the prices of recently executed transactions. Furthermore, post-trade transparency affords market participants a means of testing whether dealer quotations before the last sale were close to the price at which the last sale was executed. In this manner, post-trade transparency can promote price competition between dealers and more efficient price discovery and ultimately lower transaction costs in the market for Rule 144A securities.
Transactions executed by FINRA members became subject to dissemination through FINRA's TRACE on June 30, 2014, thus providing a level of transparency to the Rule 144A market comparable to that of registered bonds.
The Exchange notes that, while the proposed rule change would categorize Rule 144A securities within a Fund's principal investments in debt securities, any investments in Rule 144A securities, of course, would be required to comply with restrictions under the 1940 Act and rules thereunder relating to investment in illiquid assets. As stated in the Prior Corporate Bond Notice and Prior Total Bond Notice, each Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), including Rule 144A securities deemed illiquid by the Manager or Sub-Advisers. Each Fund monitors its portfolio liquidity on an ongoing basis to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained, and will consider taking appropriate steps in order to maintain adequate liquidity if, through a change in values, net assets, or other circumstances, more than 15% of a Fund's net assets are held in illiquid assets. Illiquid assets include assets subject to contractual or other restrictions on resale and other instruments that lack readily available markets as determined in accordance with Commission staff guidance.
Moreover, as stated in the Prior Corporate Bond Notice and Prior Total Bond Notice, each Fund does not currently intend to purchase any asset if, as a result, more than 10% of its net assets would be invested in assets that are deemed to be illiquid because they are subject to legal or contractual restrictions on resale or because they cannot be sold or disposed of in the ordinary course of business at approximately the prices at which they are valued. For purposes of a Fund's illiquid assets limitation discussed above, if through a change in values, net assets, or other circumstances, a Fund were in a position where more than 10% of its net assets were invested in illiquid assets, it would consider appropriate steps to protect liquidity.
The Prior Corporate Bond Notice and Prior Total Bond Notice stated that various factors may be considered in determining the liquidity of a Fund's investments, including: (1) The frequency of trades and quotes for the asset; (2) the number of dealers wishing to purchase or sell the asset and the number of other potential purchasers; (3) dealer undertakings to make a market in the asset; and (4) the nature
The Exchange believes that the size of the Rule 144A market (approximately 20% of daily trading volume in U.S. corporate bonds), the active participation of multiple dealers utilizing trading protocols that are similar to those in the corporate bond market, and the transparency of the 144A market resulting from reporting of Rule 144A transactions in TRACE will deter manipulation in trading the Shares. The Exchange notes that all of the Rule 144A securities in which a Fund invests will be corporate debt securities for which transactions are reported in TRACE.
The Exchange represents that, except for the change described above, all other representations made in the Prior Corporate Bond Releases and the Prior Total Bond Releases remain unchanged. The Funds will continue to comply with all initial and continued listing requirements under NYSE Arca Equities Rule 8.600.
The Exchange further represents that the trading in the Shares will be subject to the existing trading surveillances administered by the Exchange, as well as cross-market surveillances administered by FINRA, on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
The Exchange also represents that all statements and representations made in this filing and the Prior Corporate Bond Releases and Prior Total Bond Releases regarding (a) the description of the Funds' respective portfolios, (b) limitations on portfolio holdings or reference assets, or (c) the applicability of Exchange rules and surveillance procedures shall constitute continued listing requirements for listing the Shares of the Funds on the Exchange. The Adviser has represented to the Exchange that it will advise the Exchange of any failure by a Fund to comply with the continued listing requirements, and, pursuant to its obligations under section 19(g)(1) of the Act, the Exchange will monitor for compliance with the continued listing requirements. If a Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under NYSE Arca Equities Rule 5.5(m).
The Commission is instituting proceedings pursuant to section 19(b)(2)(B) of the Act
Pursuant to section 19(b)(2)(B) of the Act,
The Commission requests that interested persons provide written submissions of their views, data, and arguments with respect to the issues identified above, as well as any other concerns they may have with the proposal, as modified by Amendment No. 1. In particular, the Commission invites the written views of interested persons concerning whether the proposal, as modified by Amendment No. 1, is consistent with section 6(b)(5) or any other provision of the Act, or the rules and regulations thereunder. Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b–4, any request for an opportunity to make an oral presentation.
Interested persons are invited to submit written data, views, and arguments regarding whether the proposal should be approved or disapproved by September 23, 2016. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by October 7, 2016. The Commission asks that commenters address the sufficiency of the Exchange's statements in support of the proposal, which are set forth in the Notice,
The Commission generally seeks comment on whether the Exchange's representations relating to the proposed portfolio holdings in Rule 144A securities are sufficient to prevent the susceptibility of the Funds to manipulation and are thereby consistent with the requirements of section 6(b)(5) of the Act, which, among other things, requires that the rules of an exchange be designed to prevent fraudulent and manipulative acts and practices and to protect investors and the public interest. In particular, the Commission seeks comment on the following:
As described above, the Exchange has proposed that each Fund be permitted to include Rule 144A securities within a Fund's principal investments in debt securities. As a result of the proposed change, each Fund would be permitted to invest 100% of its principal investments in Rule 144A securities. The Exchange also provides that all of the Rule 144A securities in which a Fund invests will be corporate debt securities for which transactions are reported in TRACE. Rule 144A securities are restricted securities, which, as described above, are subject to legal restrictions on their sale and generally are sold in privately negotiated transactions, pursuant to an exemption from registration under the Securities Act, or in a registered public offering. The Exchange has not proposed additional quantitative criteria with respect to minimum liquidity or minimum diversification measures to be applied to the Rule 144A securities. Do commenters have views on whether the specific Rule 144A securities in which each Fund may invest would be sufficiently liquid and sufficiently diversified so as to reduce the extent to which Managed Fund Shares holding principally restricted securities may be susceptible to manipulation?
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.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Luxeyard, Inc. (CIK No. 1493587), a Delaware corporation with its principal place of business listed as Los Angeles, California, with stock quoted on OTC Link (previously, “Pink Sheets”) operated by OTC Markets Group, Inc. (“OTC Link”) under the ticker symbol LUXR, because it has not filed any periodic reports since April 9, 2013. On August 19, 2015, Luxeyard, Inc. was sent a delinquency letter by the Division of Corporation Finance requesting compliance with its periodic filing obligations, but did not receive the delinquency letter due to its failure to maintain a valid address on file with the Commission as required by Commission rules (Rule 301 of Regulation S–T, 17 CFR 232.301 and Section 5.4 of EDGAR Filer Manual).
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of SuperDirectories, Inc. (CIK No. 1338624), a delinquent Wyoming corporation with its principal place of business listed as Merrill, New York, with stock quoted on OTC Link under the ticker symbol SDIR, because it has not filed any periodic reports since the period ended June 30, 2014. On September 25, 2015, SuperDirectories, Inc. was sent a delinquency letter by the Division of Corporation Finance requesting compliance with its periodic filing obligations, but did not receive the delinquency letter due to its failure to maintain a valid address on file with the Commission as required by Commission rules (Rule 301 of Regulation S–T, 17 CFR 232.301 and Section 5.4 of EDGAR Filer Manual).
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company.
Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed company is suspended for the period from 9:30 a.m. EDT on August 31, 2016, through 11:59 p.m. EDT on September 14, 2016.
By the Commission.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to expand the Short Term Option Series Program to allow Wednesday expirations for SPY options.
The text of the proposed rule change is available on the Exchange's Web site 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 ISE Rule 100 and 504 at Supplementary Material .02 to expand the Short Term Option Series Program to permit the listing and trading of options with Wednesday expirations. The Exchange also proposes to amend the definition of Short Term Options Series in Rule 100(47) to conform the rule text to include Thursday, which is currently included in the Short Terms Options Series Program at Rule 504 at Supplementary Material .02.
Currently, under the Short Term Option Series Program, the Exchange may open for trading on any Thursday or Friday that is a business day series of options on that class that expire on each of the next five consecutive Fridays, provided that such Friday is not a Friday in which monthly options series or Quarterly Options Series expire (“Short Term Option Series”). The Exchange is now proposing to amend its rule to permit the listing of options expiring on Wednesdays. Specifically, the Exchange is proposing that it may open for trading on any Tuesday or Wednesday that is a business day, series of options on the SPDR S&P 500 ETF Trust (SPY) to expire on any Wednesday of the month that is a business day and is not a Wednesday in which Quarterly Options Series expire (“Wednesday SPY Expirations”)
In regards to Wednesday SPY Expirations, the Exchange is proposing to remove the current restriction preventing the Exchange from listing Short Term Option Series that expire in the same week in which monthly option series in the same class expire. Specifically, the Exchange will be allowed to list Wednesday SPY Expirations in the same week in which monthly option series in SPY expire. The current restriction to prohibit the expiration of monthly and Short Term Option Series from expiring on the same trading day is reasonable to avoid investor confusion. This confusion will not apply with Wednesday SPY Expirations and standard monthly options because they will not expire on the same trading day, as standard monthly options do not expire on Wednesdays. Additionally, it would lead to investor confusion if Wednesday SPY Expirations were not listed for one week every month because there was a monthly SPY expiration on the Friday of that week.
Under the proposed Wednesday SPY Expirations, the Exchange may list up to five consecutive Wednesday SPY Expirations at one time. The Exchange may have no more than a total of five Wednesday SPY Expirations listed. This is the same listing procedure as Short Term Option Series that expire on Fridays. The Exchange is also proposing to clarify that the five series limit in the current Short Term Option Series Program Rule will not include any Wednesday SPY Expirations.
Currently, for each Short Term Option Expiration Date, the Exchange is limited to opening thirty (30) series for each expiration date for the specific class. The thirty (30) series restriction does not include series that are open by other securities exchanges under their respective short term option rules; the Exchange may list these additional series that are listed by other exchanges.
As is the case with current Short Term Option Series, the Wednesday SPY Expiration series will be P.M.-settled. The Exchange does not believe
The Exchange is also amending the definition of Short Term Option Series to make clear that it includes Wednesday and Thursday.
The Exchange believes that its proposal is consistent with section 6(b) of the Act,
In particular, the Exchange believes the Short Term Option Series Program has been successful to date and that Wednesday SPY Expirations simply expand the ability of investors to hedge risk against market movements stemming from economic releases or market events that occur throughout the month in the same way that the Short Term Option Series Program has expanded the landscape of hedging.
Similarly, the Exchange believes Wednesday SPY Expirations should create greater trading and hedging opportunities and flexibility, and provide customers with the ability to more closely tailor their investment objectives. The Exchange believes that allowing Wednesday SPY Expirations and monthly SPY expirations in the same week will benefit investors and minimize investor confusion by providing Wednesday SPY Expirations in a continuous and uniform manner.
Finally, the Exchange represents that it has an adequate surveillance program in place to detect manipulative trading in Wednesday SPY Expirations in the same way it monitors trading in the current Short Term Option Series. The Exchange also represents that it has the necessary systems capacity to support the new options series. Also, the Exchange notes that BOX Options Exchange LLC (“BOX”) recently received approval to list Wednesday expirations for SPY options.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange notes that having Wednesday expirations is not a novel proposal, BOX has received approval to list Wednesday expirations for SPY options.
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, the proposed rule change has become effective pursuant to section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b–4(f)(6) normally does not become operative for 30 days from the date of filing. However, Rule 19b–4(f)(6)(iii)
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.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Multi-Corp. International, Inc. (CIK No. 1405260), a defaulted Nevada corporation with its principal place of business listed as Las Vegas, Nevada, with stock quoted on OTC Link (previously, “Pink Sheets”) operated by OTC Markets Group, Inc. (“OTC Link”) under the ticker symbol MULI, because it has not filed any periodic reports since the period ended March 31, 2013. On June 6, 2014, Multi-Corp. International, Inc. was sent a delinquency letter sent by the Division of Corporation Finance requesting compliance with its periodic filing obligations, but did not receive the delinquency letter due to its failure to maintain a valid address on file with the Commission as required by Commission rules (Rule 301 of Regulation S–T, 17 CFR 232.301 and Section 5.4 of EDGAR Filer Manual).
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Pan American Goldfields Ltd. (CIK No. 1046672), a Delaware corporation with its principal place of business listed as Toronto, Ontario, Canada, with stock quoted on OTC Link under the ticker symbol MXOM, because it has not filed any periodic reports since the period ended November 30, 2013. On March 25, 2015, Pan American Goldfields Ltd. was sent a delinquency letter by the Division of Corporation Finance requesting compliance with its periodic filing obligations, and Pan American Goldfields Ltd. received the delinquency letter on April 10, 2015, but failed to cure its delinquencies.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Sky Harvest Energy Corp. (CIK No. 1332445), a revoked Nevada corporation with its principal place of business listed as Vancouver, British Columbia, Canada with stock quoted on OTC Link under the ticker symbol SKYH, because it has not filed any periodic reports since the period ended May 31, 2013. On January 26, 2015, Sky Harvest Energy Corp. was sent a delinquency letter by the Division of Corporation Finance requesting compliance with its periodic filing obligations, but did not receive the delinquency letter due to its failure to maintain a valid address on file with the Commission as required by Commission rules (Rule 301 of Regulation S–T, 17 CFR 232.301 and Section 5.4 of EDGAR Filer Manual).
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company.
Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed company is suspended for the period from 9:30 a.m. EDT on August 31, 2016, through 11:59 p.m. EDT on September 14, 2016.
By the Commission.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to adopt the Third Party Connectivity Service under Rules 7034(b) and 7051.
The text of the proposed rule change is available on the Exchange's Web site 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 parts of such statements.
The Exchange is proposing to adopt the Third Party Connectivity Service under Rules 7034(b) and 7051, in light of increased capacity requirements, including recent changes to the Consolidated Tape Association (“CTA”) and Options Price Reporting Authority (“OPRA”) feeds
Under both Rules 7034 and 7051, the Exchange assesses fees for various means to connect to the Exchange. Under Rule 7034 the Exchange provides charges for co-location services, and subparagraph (b) of the rule provides the fees assessed for connectivity, which include capacity options ranging from 1 Gb copper connectivity to 10 Gb Ultra fiber connectivity. Co-location services are a suite of hardware, power, telecommunication, and other ancillary products and services that allow market participants and vendors to place their trading and communications equipment in close physical proximity to the quoting and execution facilities of the Exchange and other Nasdaq, Inc. markets.
Subscribers to the connectivity options provided under Rules 7034(b) and 7051 may use the connectivity provided to link them to the Exchange for order entry and to receive proprietary data feeds, to receive public quote feeds from Securities Information Processors (“SIPs”),
The Exchange has observed a steady increase in the capacity requirements of the various data services to which a member may connect through the connectivity options under Rules 7034(b) and 7051. The increased capacity requirements are reducing the number of data feeds that may be provided in any single connectivity option. In addition to increased capacity requirements of proprietary data feeds, the CTA and OPRA SIPs recently increased their capacity requirements. Moreover, the UTP SIP Operating Committee approved a migration plan for the UTP SIP to the Nasdaq, Inc.'s INET technology for the UTP data services. The new enhanced technology will significantly increase the data transmitted, handling a minimum peak rate of two million messages per second, per data feed. The initial capacity recommendation per multicast group is 1.7 Gb.
To address the issue caused by the increased capacity requirements of data feeds, the Exchange is proposing to segregate connectivity to the Exchange and its proprietary data feeds from connectivity to third party services and data feeds, including SIP data feeds. The Exchange is proposing to offer the new Third Party Connectivity Service to both non-co-location and co-location customers alike, which will enable customers to receive third party market data feeds, including SIP data, and other non-exchange services.
The Exchange notes that, as is the case with current connectivity options, customers that do not wish to subscribe to the Third Party Connectivity Service may alternatively connect through an extranet provider or a market data redistributor.
Last, the Exchange is proposing to offer services currently available to Direct Connectivity subscribers under Rule 7051 to subscribers to Third Party Services. Specifically, the Exchange currently offers Optional Cable Router and Per U of Cabinet Space services for its direct connectivity options under Rule 7051. The Exchange provides customers who are not co-located in the Exchange's data center, but require shared cabinet space and power for optional routers, switches, or modems to support their direct circuit connections. The Exchange assesses an install fee of $925 per router, switch or modem, and monthly fees of $150 for space based on a unit height of approximately 1.75 inches, commonly called a “U” space, and a maximum power of 125 Watts per U space. The Exchange is proposing to also offer these services to customers of the Third Party Connectivity Service because they may have the same connectivity needs as customers of the existing Direct Connectivity service.
The Exchange is proposing to assess fees for Third Party Connectivity Service under Rules 7034(b) and 7051(b). Under Rules 7034(b) and 7051(b), the Exchange is proposing to assess an installation fee of $1,500 for installation of either a 10 Gb Ultra or 1 Gb Ultra Third Party Services co-location or direct connectivity subscription, as applicable. The Exchange is proposing to assess an ongoing monthly fee of $5,000 for a 10 Gb Ultra connection and $2,000 for a 1 Gb Ultra connection, under each of the rules. The Exchange is proposing to waive all of these fees through October 31, 2016.
The Exchange believes that its proposal is consistent with section 6(b) of the Act,
The Exchange believes that the proposal facilitates transactions in securities, removes impediments to and perfects the mechanism of a free and open market and a national market system, and, in general, protects investors and the public interest by ensuring that market participants are provided with adequate capacity to receive data feeds, and to access trading and trade reporting venues in times of high demand. As noted above, the ever-increasing demand for capacity has strained current connectivity options. As an example, the UTP SIP data feeds will require significantly greater capacity than current UTP SIP data feeds. The Exchange is segregating the various services and data feeds that may be connected to between existing and proposed connectivity options based on whether the service or data feed is provided by the Exchange or by a third party. The Exchange notes that there is no difference in the connectivity provided under the current analogous connectivity options and the proposed connectivity. Thus, a subscriber to an Exchange service or data feed over a 10 Gb Ultra co-location connectivity option under Rule 7051(a), for example, will have the same connectivity that a subscriber to a third party data feed over a 10 Gb Ultra co-location connectivity option under Rule 7051(b) [sic]. The Exchange determined to segregate the services and data feeds as proposed because it is the most efficient means to allocate the services and it will assist subscribers with risk management, since Exchange connectivity will be separated from third party services and data feeds.
The Exchange believes that [sic] proposed fees are reasonable because they are comparable to the fees currently assessed for analogous connectivity under Rules 7034(b) and 7051. In terms of the installation fees,
The Exchange believes that the proposed new fees are an equitable allocation and are not unfairly discriminatory because the Exchange will apply the same fees to all subscribers to the same connectivity option. The Exchange notes that, although the ongoing monthly fees are less than the comparable connectivity offered to subscribers to the Exchange services and data feeds, these fees are not unfairly discriminatory because the lower fees are designed to account for the fact that most members will be required to acquire a new connectivity subscription due to the change. In this regard, the Exchange has assessed the impact of the new fees and found that the majority of current subscribers will need to subscribe to a Third Party Connectivity Service subscription; however, the Exchange notes that in the absence of the new service, the same current subscribers would be compelled to subscribe to a new connectivity option under the current rules, with certain subscribers that do not currently have a 10 Gb Ultra connection and that receive a SIP feed through a 1 Gb subscription being compelled to subscribe to a 10 Gb Ultra co-location subscription under Rule 7034(b) at $15,000 per month or a 10 Gb direct connectivity option under Rule 7051 at $7,500 per month. Both of these options would represent a significant premium over the proposed Third Party Connectivity Service 10 Gb Ultra offerings under Rules 7034(b) and 7051(b) at $5,000 per month each. Existing clients that currently have multiple connections to the Exchange subscribed to under Rules 7034(b) and 7051 may realize a fee decrease by segregating its [sic] data feeds under the proposal. For example, a client that has four 10 Gb connections under Rule 7051 is currently assessed a total monthly fee of $30,000. If that client subscribes to two 10 Gb Ultra Third Party Services Direct Connections under new Rule 7051(b) in lieu of two existing 10 Gb connections, the client would be assessed a total monthly fee of $25,000.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In terms of inter-market competition, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive. Moreover, market participants have many other options to choose from to connect to the Exchange, other than the proposed connectivity of this filing. In such an environment, the Exchange must act cautiously when increasing or implementing a new fee because market participants may easily unsubscribe to the Exchange's connectivity options and instead contract with a third-party connectivity provider. As discussed above, the capacity requirements of the data feeds and services to [sic] which the current connectivity options under Rules 7034(b) and 7051 provide have grown significantly, leaving the Exchange with the option of decreasing the number of services and data feeds that may be linked with any given connectivity option, which would in turn require subscribers to have more connectivity subscriptions to maintain the status quo in terms of data feeds and services, or, alternatively, dividing the services itself in a manner it deems best and offering a lower monthly price based on that division. Here, the Exchange has selected the latter, and determined that the most efficient and logical divide is to distinguish between Exchange data feeds and services and those of third parties. For these reasons, the Exchange does not believe that any of the proposed changes will impair the ability of members or competing order execution venues to maintain their competitive standing in the financial markets. Because there are numerous competitive alternatives to Exchange's connectivity options, it is likely that the Exchange will lose market share as a result of the changes if they are unattractive to market participants.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the
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.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of OKLAHOMA (FEMA–4274–DR), dated 07/15/2016.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of OKLAHOMA, dated 07/15/2016, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
On August 15, 2016, the City of Tacoma (the City) filed with the Surface Transportation Board (Board) a petition under 49 U.S.C. 10502 for exemption from the prior approval requirements of 49 U.S.C. 10903 to discontinue common carrier service over approximately 10.2 miles of rail lines consisting of the following two segments (the Lines): (1) From milepost 3.72Q at Quadlok to milepost 0.0Q at St. Clair in Thurston County, Washington (the Quadlok-St. Clair line) and (2) from milepost 16.0B at Belmore to milepost 9.07B at Olympia in Thurston County, Washington (the Belmore-Olympia line). The Lines are owned by BNSF Railway Company (BNSF).
In 2004, the City acquired authority from the Board to operate over the Lines through a lease with BSNF.
The City states that it is not the owner of the Lines. As the former lessee, the City states that it does not know if the Lines contain federally granted rights-of-way, but that any documentation in its possession will be made available promptly to those requesting it.
The interest of railroad employees will be protected by the conditions set
Because this is a discontinuance proceeding and not an abandonment proceeding, trail use/rail banking and public use conditions are not appropriate. Because there will be environmental review during abandonment, this discontinuance does not require an environmental review.
By issuance of this notice, the Board is instituting an exemption proceeding pursuant to 49 U.S.C. 10502(b). A final decision will be issued by December 2, 2016.
Any offer of financial assistance (OFA) under 49 CFR 1152.27(b)(2) to subsidize continued rail service will be due no later than December 12, 2016, or 10 days after service of a decision granting the petition for exemption, whichever occurs first. Each OFA must be accompanied by a $1,700 filing fee.
All filings in response to this notice must refer to Docket No. AB 1239 (Sub-No. 2X) and must be sent to: (1) Surface Transportation Board, 395 E Street SW., Washington, DC 20423–0001; and (2) William Fosbre, Chief Deputy City Attorney, City of Tacoma-City Attorney's Office, 3628 S. 35th St., Tacoma, WA 98409. Replies to the petition are due on or before September 22, 2016.
Persons seeking further information concerning discontinuance procedures may contact the Board's Office of Public Assistance, Governmental Affairs, and Compliance at (202) 245–0238 or refer to the full abandonment or discontinuance regulations at 49 CFR part 1152. Questions concerning environmental issues may be directed to the Board's Office of Environmental Analysis (OEA) at (202) 245–0305. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1–800–877–8339.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT).
Forty-Third Meeting of the SC–224 Airport Security Access Control Systems.
The FAA is issuing this notice to advise the public of a meeting of Forty-Third Meeting of the SC–224 Airport Security Access Control Systems.
The meeting will be held September 29, 2016, 10:00 a.m. to 1:00 p.m.
The meeting will be held at: 1150 18th Street NW., Suite 910, Washington, DC 20036.
Karan Hofmann at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92–463, 5 U.S.C., App.), notice is hereby given for a meeting of the Forty-Third Meeting of the SC–224 Airport Security Access Control Systems. The agenda will include the following:
Attendance is open to the interested public but limited to space availability. With the approval of the chairman, members of the public may present oral statements at the meeting. Persons wishing to present statements or obtain information should contact the person listed in the
Federal Aviation Administration (FAA), DOT.
Request for Public Comment.
The FAA hereby provides notice of intent to release certain airport properties 8.73 acres at the Vero Beach Regional Airport, Florida from the conditions, reservations, and restrictions as contained in a Quitclaim Deed agreement between the FAA and the Vero Beach Regional Airport, dated October 3, 1947. The City of Vero Beach dedicated an 8.73 acre tract along 27th Avenue, Aviation Boulevard and Airport Drive to become a Public Right-of-Way. This release will be retroactive for the improvements along the airport entrance roadway by the City of Vero Beach. The Fair Market Value (FMV) of this parcel has been determined to be $228,510.16.
Documents reflecting the Sponsor's request are available, by appointment only, for inspection at the Vero Beach Regional Airport and the FAA Airports District Office.
Comments are due on or before October 3, 2016.
Documents are available for review at the Vero Beach Regional Airport, P.O. Box 1389, 3400 Cherokee Drive, Vero Beach, FL 32961 and the FAA Airports District Office, 5950 Hazeltine National Drive, Suite 400, Orlando, FL 32822. Written comments on the Sponsor's request must be delivered or mailed to: Stephen Wilson, Program Manager, Orlando Airports District Office, 5950 Hazeltine National Drive, Suite 400, Orlando, FL 32822–5024.
In addition, a copy of any comments submitted to the FAA must be mailed or delivered to Mr. Eric Menger, Airport
Stephen Wilson, Program Manager, Orlando Airports District Office, 5950 Hazeltine National Drive, Suite 400, Orlando, FL 32822–5024.
Section 125 of The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR–21) requires the FAA to provide an opportunity for public notice and comment prior to the “waiver” or “modification” of a sponsor's Federal obligation to use certain airport land for non-aeronautical purposes.
Federal Aviation Administration (FAA), Department of Transportation.
Notice of Availability (NOA).
In accordance with the National Environmental Policy Act of 1969 and Council on Environmental Quality (CEQ) regulations, the FAA issues this notice to advise the public that a Final EIS for the proposed airport in Angoon, Alaska, has been prepared. Included in the Final EIS are a subsistence evaluation consistent with Section 810 of the Alaska National Interest Lands Conservation Act (ANILCA) and a final evaluation pursuant to Section 4(f) of the Department of Transportation Act of 1966. The FAA will not make a decision on the proposed action for a minimum of 30 days following the publication of this NOA in the
Copies of the Final EIS and the evaluations are available at the following locations. Paper copies may be viewed during regular business hours.
1. Online at
2. Juneau Public Library:
3. U.S. Forest Service, Admiralty Island National Monument Office, 8510 Mendenhall Loop Road, Juneau, AK 99801.
4. Angoon Community Association Building, 315 Heendae Road, Angoon, AK 99820.
5. Angoon City Government Office, 700 Aan Deina Aat Street, Angoon, AK 99820.
6. Angoon Senior Center, 812 Xootz Road, Angoon, AK 99820.
7. The FAA Airports Division in Anchorage, AK. Please contact Leslie Grey at (907) 271–5453 to schedule.
Leslie Grey, AAL–611, Federal Aviation Administration, Alaskan Region, Airports Division, 222 W. 7th Avenue, Box #14, Anchorage, AK 99513. Ms. Grey may be contacted by telephone during business hours at (907) 271–5453, by fax at (907) 271–2851, or by email at
The Alaska Department of Transportation and Public Facilities (DOT&PF) has requested funding and approval from the FAA for a new land-based airport and an access road to improve the availability and reliability of transportation services to and from Angoon. The DOT&PF's proposed action would be located in the Admiralty Island National Monument and Kootznoowoo Wilderness Area (Monument-Wilderness Area). The FAA has proposed alternatives to the proposed action, including the no action alternative. The purpose and need for the airport are discussed in detail in the Final EIS.
The project would consist of a paved, 3,300-foot-long and 75-foot-wide runway, with future expansion to 4,000 feet long.
Construction of the proposed airport would be completed in two to three construction seasons. Many of the impact categories considered in the Final EIS are required by FAA Orders 1050.1E and 5050.4B. In addition, subsistence activities, wilderness character, and impacts to the Admiralty Island National Monument are evaluated. Because the DOT&PF's proposed action is located in the Monument-Wilderness Area, the DOT&PF has submitted an application to the FAA, the U.S. Forest Service, and the U.S. Army Corps of Engineers under ANILCA Title XI to use the lands. The federal agencies have drafted findings and a notification of tentative disapproval of the application. At this time, no notification will be sent to the President pending discussions with the sponsor and the cooperating agencies on next steps.
Additional details regarding the project can be found on the project Web site at
Federal Aviation Administration (FAA), DOT.
Request for Public Comment.
The FAA hereby provides notice of intent to release certain airport properties 2.58 acres at the Vero Beach Regional Airport, Florida from the conditions, reservations, and restrictions as contained in a Quitclaim Deed agreement between the FAA and the Vero Beach Regional Airport, dated October 3, 1947. The City of Vero Beach dedicated a 2.58 acre tract along Airport Drive to become a Public Right-of-Way. This release will be retroactive for the improvements along the airport entrance roadway by the City of Vero Beach. The Fair Market Value (FMV) of this parcel has been determined to be $112,134.12.
Documents reflecting the Sponsor's request are available, by appointment only, for inspection at the Vero Beach Regional Airport and the FAA Airports District Office.
Comments are due on or before October 3, 2016.
Documents are available for review at the Vero Beach Regional Airport, P.O. Box 1389, 3400 Cherokee Drive, Vero Beach, FL 32961 and the FAA Airports District Office, 5950 Hazeltine National Drive, Suite 400,
In addition, a copy of any comments submitted to the FAA must be mailed or delivered to Mr. Eric Menger, Airport Director, Vero Beach Regional Airport, P.O. Box 1389, 3400 Cherokee Drive, Vero Beach, FL 32961–1389.
Stephen Wilson, Program Manager, Orlando Airports District Office, 5950 Hazeltine National Drive, Suite 400, Orlando, FL 32822–5024.
Section 125 of The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR–21) requires the FAA to provide an opportunity for public notice and comment prior to the “waiver” or modification” of a sponsor's Federal obligation to use certain airport land for non-aeronautical purposes.
Federal Railroad Administration (FRA), U.S. Department of Transportation (DOT).
Notice of availability and request for comments.
This document provides the public with notice that the Union Pacific Railroad (UP) submitted to FRA its Positive Train Control (PTC) Safety Plan (PTCSP) Version 1.0, dated June 1, 2016. UP requests that FRA approve its PTCSP and issue a PTC System Certification for UP's Interoperable Electronic Train Management System (I–ETMS).
FRA will consider communications received by October 3, 2016 before taking final action on the PTCSP. FRA will consider comments received after that date if practicable.
All communications concerning this proceeding should identify Docket Number FRA–2010–0061 and may be submitted by any of the following methods:
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Dr. Mark Hartong, Senior Scientific Technical Advisor, at (202) 493–1332,
In its PTCSP, UP asserts that the I–ETMS system it is implementing is designed as a vital overlay PTC system as defined in 49 CFR 236.1015(e)(2). The PTCSP describes UP's I–ETMS implementation and the associated I–ETMS safety processes, safety analyses, and test, validation, and verification processes used during development of I–ETMS. The PTCSP also contains UP's operational and support requirements and procedures.
UP's PTCSP and the accompanying request for approval and system certification are available for review online at
Interested parties are invited to comment on the PTCSP by submitting written comments or data.
Anyone can search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). In accordance with 49 CFR 211.3, FRA solicits comments from the public to better inform its decisions. DOT posts these comments, without edit, including any personal information the commenter provides, to
Federal Transit Administration (FTA), DOT.
Notice of intent to prepare an environmental impact statement.
The Federal Transit Administration (FTA), Metro (the regional government and metropolitan planning organization that serves the cities and counties of the Portland, Oregon metropolitan area) and the Tri-County Metropolitan Transportation District of Oregon (TriMet) intend to prepare an Environmental Impact Statement (EIS) to evaluate the benefits and impacts of the proposed Southwest Corridor Light Rail Project (Project). The Project would improve public transportation between and through southwest Portland, Tigard and Tualatin. FTA may provide funding for the Project through its Capital Investment Grant program. FTA, Metro and TriMet will prepare the EIS in accordance with the National Environmental Policy Act (NEPA), FTA environmental regulations, and the Fixing America's Surface Transportation Act (FAST Act). This Notice initiates formal scoping for the EIS, provides
The public scoping period will begin on the date of publication of this Notice and will continue through September 30, 2016 or 30 days from the date of publication, whichever is later. Please send written comments on the scope of the EIS, including the preliminary statement of the purpose of and need for the Project, the alternatives to be considered in the EIS, the environmental and community impacts to be evaluated, and any other Project-related issues, to the address below. Public scoping meetings will be held at the times and locations indicated in
Written comments on the scope of the EIS must be received by September 30, 2016 or 30 days from the publication date of this Notice, whichever is later. Please send them to Chris Ford, Investment Areas Project Manager, Metro, 600 NE Grand Avenue, Portland Oregon 97232 or to
• Wilson High School, 1151 SW. Vermont Street, Portland, Oregon, on September 22, 2016, from 6 to 8 p.m.
A scoping meeting for interested tribes and Federal and non-Federal agencies will be at:
• TriMet, 1800 SW 1st Ave, 3rd Floor, Columbia Conference Room, Portland, Oregon on September 20 from 1 to 3 p.m.
All meeting places are accessible to persons with disabilities. Any individual with a disability who requires special assistance, such as a sign language interpreter, or any individual who requires translation or interpretation services, must contact Yuliya Kharitonova at (503) 813–7535 at least 48 hours before the meeting. A scoping information packet will be available before the meetings on the Project Web site or by calling Yuliya Kharitonova at (503) 813–7535; copies will also be available at the public scoping meeting.
John Witmer, FTA Community Planner,
FTA, Metro and TriMet are considering two alternatives for the Project: (1) A No-Build Alternative, as required by NEPA, that reflects the existing transportation system plus the future transportation improvements included in the Metro Regional Transportation Plan, but not including the Project; and (2) a Light Rail Transit (LRT) Alternative (Build Alternative) that would extend the existing TriMet MAX system 12 miles from the Transit Mall in downtown Portland to Bridgeport Village in Tualatin, generally running along the SW Barbur Boulevard/Interstate 5 corridor through Southwest Portland, the Tigard Triangle and downtown Tigard. The Build Alternative has design options in several locations.
Metro and TriMet developed the proposed Build Alternative through an early scoping process and an analysis of a wide range of potential alternatives. FTA and Metro published notice of the early scoping process in the
The Southwest Corridor is a fast-growing part of the Portland metropolitan region. Its major transportation facilities, including Interstate 5 (I–5), Oregon State Highway 217, and Oregon State Highway 99W, are congested and unreliable. As more people and employers locate in the corridor, worsening traffic conditions will impact economic development and livability. The corridor ranked as the highest priority corridor in Metro's 2009 High Capacity Transit System Plan, and in May 2016 the Project's steering committee chose light rail as the preferred mode to provide high capacity transit (HCT) service.
• Provide light rail transit service that is cost-effective to build and operate, and that can serve existing and anticipated demand in the corridor;
• Improve transit reliability, frequency, and travel times, and connect to Westside Express Service (WES) commuter rail and other existing and future transit networks;
• Support adopted regional and local plans including the 2040 Growth Concept, the Barbur Concept Plan, the Tigard Triangle Strategic Plan and the Tigard Downtown Vision;
• Create multimodal transportation networks to provide safe and convenient access to transit and adjacent land uses;
• Advance active transportation and encourage physical activity;
• Provide travel options that reduce overall transportation costs;
• Improve multimodal access to existing jobs, housing and educational opportunities and foster opportunities for commercial development and a
• Ensure that benefits and impacts promote community equity; and
• Advance transportation projects that are sensitive to the environment, improve water and air quality, and help achieve the sustainability goals in applicable plans.
The Project is needed because:
• Transit service to important destinations in the corridor is limited, and unmet demand for transit is increasing due to growth;
• Limited street connectivity and gaps in pedestrian and bicycle networks create barriers and unsafe conditions for transit access and active transportation;
• Travel is slow and unreliable on congested roadways;
• The corridor has a limited supply and range of housing options with good access to multimodal transportation networks, and has inadequate transportation between residences, employment, and services;
• Regional and local plans call for High Capacity Transit in the corridor to meet land use goals; and
• State, regional and local goals require investments to reduce greenhouse gas emissions.
The LRT Alternative travels generally southwest from the south end of the Downtown Portland Transit Mall through southwest Portland and Tigard to Bridgeport Village in Tualatin. The route is about 12 miles long.
FTA, Metro and TriMet propose to consider several design options for the LRT Alternative. The scoping materials (at
In South Portland, the alignment runs along either SW Barbur Boulevard or SW Naito Parkway. Between SW 13th Avenue and SW 60th Avenue, the alignment could run either in the center of SW Barbur, crossing I–5 at-grade at SW Capitol Highway, or next to I–5, crossing I–5 and SW Capitol Highway with an above-grade structure. Near the Portland-Tigard city limits the alignment would turn south over I–5 into the Tigard Triangle on a new structure and then proceed south and west to SW 70th Avenue. There are two options from SW 70th Avenue: (1) Through-Routed LRT and (2) Branched LRT. Through-Routed LRT would extend south from the Portland Transit Mall to downtown Tigard following one of two routes—crossing Highway 217 on a new structure extending from SW Clinton Street to SW Hall Boulevard, or extending from SW Beveland Street to SW Ash Street—and then traveling to Bridgeport Village following one of two routes, either generally next to I–5 or generally next to the existing WES and freight rail line. Branched LRT would diverge at the Tigard Triangle, with one branch turning west to terminate in downtown Tigard following one of three routes—crossing Highway 217 on a new structure extending from SW Clinton Street to SW Hall Boulevard, from SW Beveland Street to SW Ash Street, or from SW Beveland Street to SW Wall Street—and one branch continuing south on a separate crossing of Highway 217 to terminate at Bridgeport Village without traveling through downtown Tigard.
Under any of the options, the Project would include stations at these locations:
• Between SW Gibbs Street and SW Grover Street (on SW Barbur or SW Naito)
• Between SW Custer Street and SW 13th Avenue (on SW Barbur or adjacent to I–5)
• At the Barbur Transit Center with a modified or expanded park-and-ride
• At SW 53rd Avenue with a new park-and-ride (on SW Barbur or adjacent to I–5)
• On SW 70th Avenue between SW Atlanta Street and SW Baylor Street (could include a new park-and-ride)
• At SW Bonita Road (adjacent to freight rail or adjacent to I–5) (at location next to I–5, could include a new park-and-ride)
• At SW Upper Boones Ferry Road (adjacent to freight rail or adjacent to I–5) (could include a park-and-ride)
• Bridgeport Village (could include an expanded park-and-ride)
In addition, depending on the option, there would be stations at these locations:
• SW Capitol Hill Road and SW Barbur Boulevard
• SW 19th Avenue and SW Barbur Boulevard
• SW 26th or SW 30th Avenue and SW Barbur Boulevard
• SW Spring Garden Street and adjacent to I–5
• SW 26th Avenue and adjacent to I–5
• On SW Beveland Street near SW 70th Avenue,
• Adjacent to the WES commuter rail tracks near the existing Tigard Transit Center, (could include an expanded park-and-ride)
• On SW Ash Street near SW Commercial Street (could include an expanded park-and-ride for the nearby Tigard Transit Center)
• Near SW Wall Street and SW Hunziker Street (could include a new park-and-ride)
The LRT Alternative will include
The LRT Alternative also includes
Public and agency input received during scoping will help FTA, Metro and TriMet select a range of reasonable alternatives and options to evaluate in the Draft EIS. FTA, Metro and TriMet also invite comment on potential Joint Development opportunities along the alignment.
In accordance with FTA policy and regulations, FTA, Metro and TriMet will comply with all Federal environmental laws, regulations, and executive orders applicable to the proposed project during the environmental review process.
Interested parties may review a draft Coordination Plan for public and agency involvement at the Project Web site. It identifies the Project's coordination approach and structure, details the major milestones for agency and public involvement, and includes an initial list of interested agencies and organizations.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Public notice and invitation to comment.
Interested parties are invited to comment on an application by the National Tank Truck Carriers, Inc. (NTTC) for an administrative determination as to whether Federal hazardous material transportation law preempts regulations of the State of California that prohibit an employer from requiring an employee to work during any mandatory meal or rest period.
Comments received on or before October 17, 2016 and rebuttal comments received on or before December 1, 2016 will be considered before an administrative determination is issued by PHMSA's Chief Counsel. Rebuttal comments may discuss only those issues raised by comments received during the initial comment period and may not discuss new issues.
The NTTC's application and all comments received may be reviewed in the Docket Operations Facility (M–30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. The application and all comments are available on the U.S. Government
Comments must refer to Docket No. PHMSA–2016–0097 and may be submitted by any of the following methods:
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A copy of each comment must also be sent to (1) Prasad Sharma, Esq., Scopelitis, Garvin, Light, Hanson & Feary, 1850 M Street, NW., Suite 280, Washington, DC 20036, and (2) Kamala D. Harris, Attorney General, Office of the Attorney General, 1300 “I” Street, Sacramento, CA 95814–2919. A certification that a copy has been sent to these persons must also be included with the comment. (The following format is suggested: “I certify that copies of this comment have been sent to Mr. Sharma and Ms. Harris at the addresses specified in the
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing a comment submitted on behalf of an association, business, labor union, etc.). You may
A subject matter index of hazardous materials preemption cases, including a listing of all inconsistency rulings and preemption determinations, is available through PHMSA's home page at
Vincent Lopez, Office of Chief Counsel (PHC–10), Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone No. 202–366–4400; facsimile No. 202–366–7041.
NTTC has applied to PHMSA for a determination whether Federal hazardous material transportation law, 49 U.S.C. 5101
NTTC presents three main arguments for why it believes the meal and rest break requirements should be preempted. First, NTTC contends that the California requirements “were not promulgated with an eye toward safe transportation of hazardous materials[,]” or the Federal hours of service regulations, and thus, they create the potential for unnecessary delay when a driver must deviate from his or her route to comply with the requirements. Next, NTTC argues that the meal and rest break requirements conflict with the Hazardous Material Regulations (HMR)'s attendance requirements because under certain circumstances, the HMR “implicate the driver `working' under California law.” As such, NTTC says that a carrier (employer) cannot comply with both the State and Federal requirements. Last, NTTC points out that although not mandatory in the HMR security plan requirements, many motor carriers include a “constant attendance of cargo” requirement in their written security plans. However, NTTC contends that the California meal and rest break requirements are inflexible and may create unnecessary stops or prohibit constant attendance. Therefore, NTTC believes the requirements are an obstacle to the security objectives of the HMR.
In summary, NTTC contends the California meal and rest break regulations should be preempted because they:
• Create unnecessary delay for the transportation of hazardous materials;
• Conflict with the HMR attendance requirements; and
• Create an obstacle to accomplishing the security objectives of the HMR.
Section 5125 of 49 U.S.C. contains express preemption provisions relevant to this proceeding. As amended by Section 1711(b) of the Homeland Security Act of 2002 (Pub. L. 107–296, 116 Stat. 2319), 49 U.S.C. 5125(a) provides that a requirement of a State, political subdivision of a State, or Indian tribe is preempted—unless the non-Federal requirement is authorized by another Federal law or DOT grants a waiver of preemption under § 5125(e)—if
(1) complying with a requirement of the State, political subdivision, or tribe and a requirement of this chapter, a regulation prescribed under this chapter, or a hazardous materials transportation security regulation or directive issued by the Secretary of Homeland Security is not possible; or
(2) the requirement of the State, political subdivision, or tribe, as applied or enforced, is an obstacle to accomplishing and carrying out this chapter, a regulation prescribed under this chapter, or a hazardous materials transportation security regulation or directive issued by the Secretary of Homeland Security.
These two paragraphs set forth the “dual compliance” and “obstacle” criteria that PHMSA's predecessor agency, the Research and Special Programs Administration, had applied in issuing inconsistency rulings prior to 1990, under the original preemption provision in the Hazardous Materials Transportation Act (HMTA). Pub. L. 93–633 § 112(a), 88 Stat. 2161 (1975). The dual compliance and obstacle criteria are based on U.S. Supreme Court decisions on preemption.
Subsection (b)(1) of 49 U.S.C. 5125 provides that a non-Federal requirement concerning any of the following subjects is preempted—unless authorized by another Federal law or DOT grants a waiver of preemption—when the non-Federal requirement is not “substantively the same as” a provision of Federal hazardous material transportation law, a regulation prescribed under that law, or a hazardous materials security regulation or directive issued by the Department of Homeland Security:
(A) the designation, description, and classification of hazardous material.
(B) the packing, repacking, handling, labeling, marking, and placarding of hazardous material.
(C) the preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents.
(D) the written notification, recording, and reporting of the unintentional release in transportation of hazardous material and other written hazardous materials transportation incident reporting involving State or local emergency responders in the initial response to the incident.
(E) the designing, manufacturing, fabricating, inspecting, marking, maintaining, reconditioning, repairing, or testing a package, container, or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce.
To be “substantively the same,” the non-Federal requirement must conform “in every significant respect to the Federal requirement. Editorial and other similar
The 2002 amendments and 2005 reenactment of the preemption provisions in 49 U.S.C. 5125 reaffirmed Congress's long-standing view that a single body of uniform Federal regulations promotes safety (including security) in the transportation of hazardous materials. More than thirty years ago, when it was considering the HMTA, the Senate Commerce Committee “endorse[d] the principle of preemption in order to preclude a multiplicity of State and local regulations and the potential for varying as well as conflicting regulations in the area of hazardous materials transportation.” S. Rep. No. 1102, 93rd Cong. 2nd Sess. 37 (1974). When Congress expanded the preemption provisions in 1990, it specifically found:
(3) many States and localities have enacted laws and regulations which vary from Federal laws and regulations pertaining to the transportation of hazardous materials, thereby creating the potential for unreasonable hazards in other jurisdictions and confounding shippers and carriers which attempt to comply with multiple and conflicting registration, permitting, routing, notification, and other regulatory requirements,
(4) because of the potential risks to life, property, and the environment posed by unintentional releases of hazardous materials, consistency in laws and regulations governing the transportation of hazardous materials is necessary and desirable,
(5) in order to achieve greater uniformity and to promote the public health, welfare, and safety at all levels, Federal standards for regulating the transportation of hazardous materials in intrastate, interstate, and foreign commerce are necessary and desirable.
Public Law 101–615 § 2, 104 Stat. 3244. (In 1994, Congress revised, codified and enacted the HMTA “without substantive change,” at 49 U.S.C. Chapter 51. Public Law 103–272, 108 Stat. 745 (July 5, 1994).) A United States Court of Appeals has found uniformity was the “linchpin” in the design of the Federal laws governing the transportation of hazardous materials.
Under 49 U.S.C. 5125(d)(1), any person (including a State, political subdivision of a State, or Indian tribe) directly affected by a requirement of a State, political subdivision or tribe may apply to the Secretary of Transportation for a determination whether the requirement is preempted. The Secretary of Transportation has delegated authority to PHMSA to make determinations of preemption, except for those concerning highway routing (which have been delegated to the Federal Motor Carrier Safety Administration). 49 CFR 1.97(b).
Section 5125(d)(1) requires notice of an application for a preemption determination to be published in the
Preemption determinations do not address issues of preemption arising under the Commerce Clause, the Fifth Amendment or other provisions of the Constitution, or statutes other than the Federal hazardous material transportation law unless it is necessary to do so in order to determine whether a requirement is authorized by another Federal law, or whether a fee is “fair” within the meaning of 49 U.S.C. 5125(f)(1). A State, local or Indian tribe requirement is not authorized by another Federal law merely because it is not preempted by another Federal statute.
In making preemption determinations under 49 U.S.C. 5125(d), PHMSA is guided by the principles and policies set forth in Executive Order No. 13132, entitled “Federalism” (64 FR 43255 (Aug. 10, 1999)), and the President's May 20, 2009 memorandum on “Preemption” (74 FR 24693 (May 22, 2009)). Section 4(a) of that Executive Order authorizes preemption of State laws only when a statute contains an express preemption provision, there is other clear evidence Congress intended to preempt State law, or the exercise of State authority directly conflicts with the exercise of Federal authority. The President's May 20, 2009 memorandum sets forth the policy “that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.” Section 5125 contains express preemption provisions, which PHMSA has implemented through its regulations.
All comments should be directed to whether 49 U.S.C. 5125 preempts regulations of the State of California that prohibit an employer from requiring an employee to work during any mandatory meal or rest period. Comments should specifically address the preemption criteria discussed in Part II above.
Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, PHMSA issues this notice to announce that the Information Collection Requests (ICR) discussed below will be forwarded to the Office of Management and Budget (OMB) for renewal and extension. This ICR describes the nature of the information collection and its expected burden. On June 27, 2016 [81 FR 41648], PHMSA published a
Interested persons are invited to submit comments on, or before October 3, 2016.
Send comments regarding the burden estimate, including suggestions for reducing the burden, by any of the following methods:
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We invite comments on: (1) Whether the proposed 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 Department's estimate of the burden of the proposed information collection; (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 the use of automated collection techniques or other forms of information technology.
Steven Andrews or T. Glenn Foster, Standards and Rulemaking Division (PHH–12), Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE., East Building, 2nd Floor, Washington, DC 20590–0001, Telephone (202) 366–8553.
Section 1320.8 (d), title 5, Code of Federal Regulations requires PHMSA to provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. This notice identifies an information collection request that PHMSA will be submitting to OMB for renewal and extension. This information collection is contained in 49 CFR 171.6 of the Hazardous Materials Regulations (HMR; 49 CFR parts 171–180). PHMSA has revised burden estimates, where appropriate, to reflect current reporting levels or adjustments based on changes in proposed or final rules published since the information collection was last approved. The following information is provided for the information collection: (1) Title of the information collection, including former title if a change is being made; (2) OMB control number; (3) summary of the information collection activity; (4) description of affected public; (5) estimate of total annual reporting and recordkeeping burden; and (6) frequency of collection. PHMSA will request a three-year term of approval for the information collection activity and, when approved by OMB, publish a notice of the approval in the
PHMSA requests comments on the following information collection:
Office of the Comptroller of the Currency, Department of the Treasury (OCC).
Request for nominations.
The OCC is seeking nominations for members of the Mutual Savings Association Advisory Committee (MSAAC) and the Minority Depository Institutions Advisory Committee (MDIAC). The MSAAC and the MDIAC assist the OCC in assessing the needs and challenges facing mutual savings associations and minority depository institutions, respectively. The OCC is seeking nominations of individuals who are officers and/or directors of federal mutual savings associations, or officers and/or directors of federal stock savings associations that are part of a mutual holding company structure, to be considered for selection as MSAAC members. The OCC also is seeking nominations of individuals who are officers and/or directors of OCC-regulated minority depository institutions, or officers and/or directors of other OCC-regulated depository institutions with a commitment to supporting minority depository institutions, to be considered for selection as MDIAC members.
Nominations must be received on or before October 7, 2016.
Nominations of MSAAC members should be sent to
About the MSAAC, Michael R. Brickman, Deputy Comptroller for Thrift Supervision, 400 7th Street SW., Washington, DC 20219; (202) 649–6450;
The MSAAC and the MDIAC will be administered in accordance with the Federal Advisory Committee Act, 5 U.S.C. App. 2. The MSAAC will advise the OCC on ways to meet the goals established by section 5(a) of the Home Owners' Loan Act, 12 U.S.C. 1464. The Committee will advise the OCC with regard to mutual savings associations on means to: (1) Provide for the organization, incorporation, examination, operation and regulation of associations to be known as federal savings associations (including federal savings banks); and (2) issue charters therefore, giving primary consideration of the best practices of thrift institutions in the United States. The MSAAC will help meet those goals by providing the OCC with informed advice and
Internal Revenue Service, Treasury.
Notice of closed meeting of Art Advisory Panel.
Closed meeting of the Art Advisory Panel will be held in Washington, DC.
The meeting will be held September 14, 2016.
The closed meeting of the Art Advisory Panel will be held at 999 North Capitol Street NE., Washington, DC 20003.
Maricarmen Cuello, AP:SO:AAS, 51 SW 1st Avenue, Room 1014, Miami, FL 33130. Telephone (305) 982–5364 (not a toll free number).
Notice is hereby given pursuant to section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App., that a closed meeting of the Art Advisory Panel will be held at 999 North Capitol Street NE., Washington, DC 20003.
The agenda will consist of the review and evaluation of the acceptability of fair market value appraisals of works of art involved in Federal income, estate, or gift tax returns. This will involve the discussion of material in individual tax returns made confidential by the provisions of 26 U.S.C. 6103.
A determination as required by section 10(d) of the Federal Advisory Committee Act has been made that this meeting is concerned with matters listed in sections 552b(c)(3), (4), (6), and (7), of the Government in the Sunshine Act, and that the meeting will not be open to the public.
Notice.
Pursuant to United States Code, Title 31, section 5135(b)(8)(C), the United States Mint announces the Citizens Coinage Advisory Committee (CCAC) public meeting scheduled for March 15, 2016.
Interested persons should call the CCAC HOTLINE at (202) 354–7502 for the latest update on meeting time and room location.
In accordance with 31 U.S.C. 5135, the CCAC:
Advises the Secretary of the Treasury on any theme or design proposals relating to circulating coinage, bullion coinage, Congressional Gold Medals, and national and other medals.
Advises the Secretary of the Treasury with regard to the events, persons, or places to be commemorated by the issuance of commemorative coins in each of the five calendar years succeeding the year in which a commemorative coin designation is made.
Makes recommendations with respect to the mintage level for any commemorative coin recommended.
Betty Birdsong, Acting United States Mint Liaison to the CCAC; 801 9th Street NW., Washington, DC 20220; or call 202–354–7200.
Any member of the public interested in submitting matters for the CCAC's consideration is invited to submit them by fax to the following number: 202–756–6525.
31 U.S.C. 5135(b)(8)(C).
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Supplemental notice of proposed rulemaking (SNOPR).
The Energy Policy and Conservation Act of 1975 (EPCA), as amended, prescribes energy conservation standards for various consumer products and certain commercial and industrial equipment, including residential conventional cooking products. EPCA also requires the U.S. Department of Energy (DOE) to determine whether more-stringent, amended standards would be technologically feasible and economically justified, and would save a significant amount of energy. In this SNOPR, DOE proposes new and amended energy conservation standards for residential conventional cooking products, specifically conventional cooking tops and conventional ovens.
Comments regarding the likely competitive impact of the proposed standard should be sent to the Department of Justice contact listed in the
1.
2.
3.
4.
No telefacsimilies (faxes) will be accepted. For detailed instructions on submitting comments and additional information on the rulemaking process, see section VII of this document (“Public Participation”).
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to Office of Energy Efficiency and Renewable Energy through the methods listed above and by email to
EPCA requires the Attorney General to provide DOE a written determination of whether the proposed standard is likely to lessen competition. The U.S. Department of Justice Antitrust Division invites input from market participants and other interested persons with views on the likely competitive impact of the proposed standard. Interested persons may contact the Division at
A link to the docket Web page can be found at:
Title III, Part B
Pursuant to EPCA, any new or amended energy conservation standard must be designed to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Furthermore, the new or amended standard must result in a significant conservation of energy. (42 U.S.C. 6295(o)(3)(B)) EPCA also provides that not later than 6 years after issuance of any final rule establishing or amending a standard, DOE must publish either a notice of determination that standards for the product do not need to be amended, or a notice of proposed rulemaking including new proposed energy conservation standards. (42 U.S.C. 6295(m)(1))
In accordance with these and other statutory provisions discussed in this document, DOE proposes new and amended energy conservation standards for residential conventional cooking products. Per its authority in 42 U.S.C. 6295(h)(2), DOE proposes to remove the existing prescriptive standard for gas cooking tops prohibiting a constant burning pilot light. Instead, for conventional cooking tops, DOE proposes performance standards only, shown in Table I.1, which are the maximum allowable integrated annual energy consumption (IAEC). The IAEC includes active mode, standby mode, and off mode energy use. These proposed standards for conventional cooking tops, if adopted, would apply to all product classes listed in Table I.1 and manufactured in, or imported into, the United States starting on the date 3 years after the publication of any final rule for this rulemaking. The proposed standards correspond to trial standard level (TSL) 2, which is described in section V.A. DOE notes that constant burning pilot lights, which are currently prohibited under the existing prescriptive standard for gas cooking tops (10 CFR 430.32(j)), consume approximately 2,000 kilo British thermal units (kBtu) per year. While DOE's proposal would remove this prescriptive requirement from its regulations, DOE notes that, based on its review of the existing prescriptive standard prohibiting constant burning pilots for gas cooking tops and the proposed efficiency levels presented in section IV.C.3.b, the proposed performance standards of 924.4 kBtu per year for gas cooking tops would not be achievable by products if they were to incorporate a constant burning pilot.
For conventional ovens, the proposed standard is a prescriptive design requirement for the control system of the oven. Conventional electric ovens shall not be equipped with a control system that uses a linear power supply. Conventional gas ovens shall be equipped with a control system that uses an intermittent/interrupted ignition or intermittent pilot ignition and does not use a linear power supply (See Table I.2). These proposed standards for conventional ovens, if adopted, would apply to all conventional ovens manufactured in, or imported into, the United States starting on the date 3 years after the publication of any final rule for this rulemaking. DOE considered a combination of factors in developing its proposal to prescribe a control system design requirement for conventional ovens, rather than proposing to regulate IAEC with a performance standard. The rationale for this tentative decision is further explained in sections IV.C.5 and V.B.8 of this SNOPR. DOE also notes that the current prescriptive standards for conventional gas ovens prohibiting constant burning pilot lights would continue to be applicable. (10 CFR 430.32(j)). Table I.2 provides a summary of the proposed standards for conventional ovens.
Table I.3 presents DOE's evaluation of the economic impacts of the proposed standards on consumers of residential conventional cooking products, as measured by the average life-cycle cost (LCC) savings and the simple payback period (PBP).
DOE's analysis of the impacts of the proposed standards on consumers is described in section IV.F of this SNOPR.
The industry net present value (INPV) is the sum of the discounted cash flows to the industry from the reference year through the end of the analysis period (2016 to 2048). Using a real discount rate of 9.1 percent, DOE estimates that the INPV for manufacturers of residential conventional cooking products is $1,238.1 million in 2015$. Under the proposed standards, DOE expects that manufacturers may lose up to 7.2 percent of their INPV, which is approximately $89.6 million in 2015$. Additionally, based on DOE's interviews with the manufacturers of residential conventional cooking
Table I.4 and Table I.5 show the financial impacts (represented by changes in INPV) of new and amended energy conservation standards on residential conventional cooking product manufacturers as well as the conversion costs that DOE estimates manufacturers would incur under the preservation of gross margin and preservation of operating profit markup scenarios (described in section IV.J.2). As noted above, the proposed standards correspond to TSL 2.
DOE's analysis of the impacts of the proposed standards on manufacturers is described in section IV.J of this SNOPR.
DOE's analyses indicate that the proposed standards would save a significant amount of energy. The lifetime energy savings from residential conventional cooking products purchased in the 30-year period that begins in the assumed year of compliance with the proposed standards (2019–2048), relative to the no-new-standards case without the proposed standards, amount to 0.76 quadrillion British thermal units (quads).
The cumulative net present value (NPV) of total consumer costs and savings of the proposed standards for residential conventional cooking products ranges from $2.72 billion (at a 7-percent discount rate) to $6.24 billion (at a 3-percent discount rate). This NPV expresses the estimated present value of future operating-cost savings minus the estimated increased product costs for products purchased in 2019–2048.
In addition, the proposed standards are projected to yield significant environmental benefits. The energy savings described above are estimated to result in cumulative emission reductions of 45.3 million metric tons (Mt)
The value of the CO
Table I.6 summarizes the national economic costs and benefits expected to result from the proposed standards for residential conventional cooking products.
The benefits and costs of the proposed standards, for products sold in 2019–2048, can also be expressed in terms of annualized values. The annualized monetary values are the sum of: (1) The national economic value of the benefits in reduced consumer operating costs, minus (2) the increase in product purchase prices and installation costs, plus (3) the value of the benefits of CO
Although the values of operating cost savings and CO
Estimates of annualized benefits and costs of the proposed standards are
Using a 7-percent discount rate for benefits and costs other than CO
Using a 3-percent discount rate for all benefits and costs and the average SCC series corresponding to a value of $40.6/ton in 2015 (2015$), the estimated cost of the proposed standards for cooking products is $42.3 million per year in increased equipment costs, while the benefits are $380 million per year in reduced operating costs, $80.8 million in CO
DOE's analysis of the national impacts of the proposed standards is described in sections IV.H, IV.K and IV.L of this SNOPR.
DOE has tentatively concluded that the proposed standards represent the maximum improvement in energy efficiency that is technologically feasible and economically justified, and would result in the significant conservation of energy. DOE further notes that products achieving these standard levels are already commercially available for at least some,
DOE also considered more-stringent energy efficiency levels as TSLs, and is considering them in this rulemaking. However, DOE has tentatively concluded that the potential burdens of the more-stringent energy efficiency levels would outweigh the projected benefits. Based on consideration of the public comments DOE receives in response to this SNOPR and related information collected and analyzed during the course of this rulemaking effort, DOE may adopt energy efficiency levels presented in this SNOPR that are either higher or lower than the proposed standards, or some combination of level(s) that incorporate the proposed standards in part.
The following section briefly discusses the statutory authority underlying this proposal, as well as some of the relevant historical background related to the establishment of standards for residential conventional cooking products.
Title III, Part B of the Energy Policy and Conservation Act of 1975 (EPCA or the Act), Public Law 94–163 (codified as 42 U.S.C. 6291–6309) established the Energy Conservation Program for Consumer Products Other Than Automobiles, a program covering most major household appliances (collectively referred to as “covered products”), which includes residential cooking products,
Pursuant to EPCA, DOE's energy conservation program for covered products consists essentially of four parts: (1) Testing; (2) labeling; (3) the establishment of Federal energy conservation standards; and (4) certification and enforcement procedures. The Federal Trade Commission (FTC) is primarily responsible for labeling, and DOE implements the remainder of the program. Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of each covered product. (42 U.S.C. 6293) Manufacturers of covered products must use the prescribed DOE test procedure as the basis for certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA and when making representations to the public regarding the energy use or efficiency of those products. (42 U.S.C. 6293(c) and 6295(s)) Similarly, DOE must use these test procedures to determine whether the products comply with standards adopted pursuant to EPCA.
DOE must follow specific statutory criteria for prescribing new or amended standards for covered products. As indicated above, any new or amended standard for a covered product must be designed to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Furthermore, DOE may not adopt any standard that would not result in the significant conservation of energy. (42 U.S.C. 6295(o)(3)) Moreover, DOE may not prescribe a standard: (1) For certain products, including residential conventional cooking products, if no test procedure has been established for the product, or (2) if DOE determines by rule that the standard is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3)(A)–(B)) In deciding whether a standard is economically justified, DOE must determine whether the benefits of the standard exceed its burdens. (42 U.S.C. 6295(o)(2)(B)(i)) DOE must make this determination after receiving comments on the proposed standard, and by considering, to the greatest extent practicable, the following seven statutory factors:
1. The economic impact of the standard on manufacturers and consumers of the products subject to the standard;
2. The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the imposition of the standard;
3. The total projected amount of energy, or as applicable, water, savings likely to result directly from the imposition of the standard;
4. Any lessening of the utility or the performance of the covered products likely to result from the imposition of the standard;
5. The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the imposition of the standard;
6. The need for national energy and water conservation; and
7. Other factors the Secretary of Energy (Secretary) considers relevant. (42 U.S.C. 6295(o)(2)(B)(i)(I)–(VII))
EPCA, as codified, also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6295(o)(1)) Also, the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States of any covered product type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States. (42 U.S.C. 6295(o)(4))
Further, EPCA, as codified, establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy
Additionally, EPCA specifies requirements when promulgating a standard for a type or class of covered product that has two or more subcategories. DOE must specify a different standard level than that which applies generally to such type or class of products for any group of covered products that have the same function or intended use if DOE determines that products within such group (A) consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature which other products within such type (or class) do not have and such feature justifies a higher or lower standard. (42 U.S.C. 6295(q)(1)) In determining whether a performance-related feature justifies a different standard for a group of products, DOE must consider such factors as the utility to the consumer of the feature and other factors DOE deems appropriate.
Federal energy conservation requirements generally supersede State laws or regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)–(c)) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions set forth under 42 U.S.C. 6297(d)).
Finally, pursuant to the amendments contained in the Energy Independence and Security Act of 2007 (EISA 2007), Public Law 110–140, any final rule for new or amended energy conservation standards promulgated after July 1, 2010, is required to address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)) Specifically, when DOE adopts a standard for a covered product after that date, it must, if justified by the criteria for adoption of standards under EPCA (42 U.S.C. 6295(o)), incorporate standby mode and off mode energy use into the standard, or, if that is not feasible, adopt a separate standard for such energy use for that product. (42 U.S.C. 6295(gg)(3)(A)–(B)) DOE's current test procedures for residential conventional cooking tops address standby mode and off mode energy use. In this rulemaking, DOE intends to incorporate such energy use into any new or amended energy conservation standards it adopts in the final rule. As discussed in section III.C, DOE is proposing to repeal the test procedures for conventional ovens. As a result, a performance standard that addresses standby mode and off mode energy use is not feasible for conventional ovens. However, as discussed in section III.B, DOE is proposing in this SNOPR to adopt prescriptive design requirements for the control system of conventional ovens that would address standby mode and off mode energy use.
In a final rule published on April 8, 2009 (April 2009 Final Rule), DOE prescribed the current energy conservation standards for residential cooking products to prohibit constant burning pilots for all gas cooking products (
The National Appliance Energy Conservation Act of 1987 (NAECA), Public Law 100–12, amended EPCA to establish prescriptive standards for gas cooking products, requiring gas ranges and ovens with an electrical supply cord that are manufactured on or after January 1, 1990, not to be equipped with a constant burning pilot light. NAECA also directed DOE to conduct two cycles of rulemakings to determine if more stringent or additional standards were justified for kitchen ranges and ovens. (42 U.S.C. 6295 (h)(1)–(2))
DOE undertook the first cycle of these rulemakings and published a final rule on September 8, 1998, which found that no standards were justified for conventional electric cooking products at that time. In addition, partially due to the difficulty of conclusively demonstrating that elimination of standing pilots for conventional gas cooking products without an electrical supply cord was economically justified, DOE did not include amended standards for conventional gas cooking products in the final rule. 63 FR 48038. For the second cycle of rulemakings, DOE published the April 2009 Final Rule amending the energy conservation standards for conventional cooking products to prohibit constant burning pilots for all gas cooking products (
EPCA also requires that, not later than 6 years after the issuance of a final rule establishing or amending a standard, DOE publish a notice of proposed rulemaking (NOPR) proposing new standards or a notice of determination that the existing standards do not need to be amended. (42 U.S.C. 6295(m)(1)) Based on this provision, DOE was required to publish by March 31, 2015, either a NOPR proposing new standards for conventional electric cooking products and/or amended standards for conventional gas cooking products
On February 12, 2014, DOE published a request for information (RFI) notice (the February 2014 RFI) to initiate the mandatory review process imposed by EPCA. As part of the RFI, DOE sought input from the public to assist with its determination on whether new or amended standards pertaining to conventional cooking products are warranted. 79 FR 8337. In making this determination, DOE must evaluate whether new or amended standards would (1) yield a significant savings in energy use and (2) be both technologically feasible and economically justified. (42 U.S.C. 6295(o)(3)(B))
On June 10, 2015, DOE published a NOPR (the June 2015 NOPR) proposing new and amended energy conservation standards for residential conventional ovens. 80 FR 33030. The June 2015 NOPR also announced that a public meeting would be held on July 14, 2015 at DOE headquarters in Washington, DC. At this meeting, DOE presented the methodologies and results of the analyses set forth in the NOPR, and interested parties that participated in the public meeting discussed a variety of topics. DOE received a number of comments from interested parties in response to the June 2015 NOPR. DOE considered these comments, as well as comments from the public meeting, in preparing this SNOPR. The commenters are summarized in Table II.1. Relevant comments, and DOE's responses, are provided in the appropriate sections of this SNOPR.
As part of the June 2015 NOPR, DOE also noted that it was deferring its decision regarding whether to adopt amended energy conservation standards for conventional cooking tops, pending further study. 80 FR 33030, 33038–33040. In both the test procedure NOPR published on January 30, 2013 (78 FR 6232, the January 2013 TP NOPR) and the test procedure SNOPR published on December 3, 2014 (79 FR 71894, the December 2014 TP SNOPR), DOE proposed amendments to the cooking products test procedure in Appendix I that would allow for the testing of active mode energy consumption of induction cooking tops. After reviewing public comments on the December 2014 TP SNOPR, conducting further discussions with manufacturers, and performing additional analyses, DOE decided that further study was required before an updated cooking top test procedure could be established that produces test results which measure energy use during a representative average use cycle for all types of cooking tops, is repeatable and reproducible, and is not unduly burdensome to conduct. 80 FR 37954 (July 2, 2015).
As discussed in section III.C, on August 22, 2016, DOE published in the
As discussed in section II.A of this SNOPR, 42 U.S.C. 6292(a)(10) of EPCA covers kitchen ranges and ovens, or “cooking products.” DOE's regulations define “cooking products” as consumer products that are used as the major household cooking appliances. They are designed to cook or heat different types of food by one or more of the following
DOE proposed in the August 2016 TP SNOPR to define a combined cooking product as a household cooking appliance that combines a conventional cooking top and/or conventional oven with other appliance functionality, which may or may not include another cooking product. 81 FR 57374, 57378. In this rulemaking, DOE is not considering combined cooking products as a distinct product category and is not basing its product classes on that category. Instead, DOE is considering energy conservation standards for conventional cooking tops and conventional ovens separately. Because combined cooking products consist, in part, of a cooking top and/or oven, any potential cooking top or oven standards would apply to the individual components of the combined cooking product.
As part of the 2009 standards rulemaking for conventional cooking products, DOE did not consider energy conservation standards for residential conventional gas cooking products with higher burner input rates, including products marketed as “commercial-style” or “professional-style,” due to a lack of available data for determining efficiency characteristics of those products. DOE considered such products to be gas cooking tops with burner input rates greater than 14,000 British thermal units (Btu)/hour (h) and gas ovens with burner input rates greater than 22,500 Btu/h. 74 FR 16040, 16054 (Apr. 8, 2009); 72 FR 64432, 64444–64445 (Nov. 15, 2007). DOE also stated that the DOE cooking products test procedures at that time may not adequately measure performance of gas cooking tops and ovens with higher burner input rates. 72 FR 64432, 64444–64445 (Nov. 15, 2007).
As part of the February 2014 RFI, DOE stated that it tentatively planned to consider energy conservation standards for all residential conventional cooking products, including commercial-style gas cooking products with higher burner input rates. In addition, DOE stated that it may consider developing test procedures for these products and determine whether separate product classes are warranted. 79 FR 8337, 8340 (Feb. 12, 2014).
As discussed in section III.C of this SNOPR, DOE is proposing to amend the conventional cooking top test procedure in Appendix I to, in part, measure the energy use of commercial-style gas cooking tops with high burner input rates.
DOE notes that the current definitions for “conventional cooking top” and “conventional oven” in 10 CFR 430.2 already cover commercial-style gas cooking products with higher burner input rates, as these products are household cooking appliances with surface units or compartments intended for the cooking or heating of food by means of a gas flame. As a result, DOE is proposing energy conservation standards for all residential conventional cooking tops and conventional ovens, including commercial-style products with higher burner input rates. As discussed in section IV.A.2 of this SNOPR, DOE is not proposing to establish a separate product class for gas cooking tops and ovens with higher burner input rates that are marketed as “commercial-style” and, as a result, DOE is not proposing separate definitions for these products.
In response to the June 2015 NOPR, AHAM and GE commented that DOE should revise the definition of conventional ovens to make it clear that the definition encompasses the primary cooking product in a home and does not include ancillary cooking products that do not fit conventional cooking product use patterns (
DOE notes that the change to the conventional oven definition proposed by AHAM and GE could result unintentionally in certain products not being covered. DOE currently defines “conventional ovens” in 10 CFR 430.2 as cooking products that are used as the major household cooking appliance and consist of one or more compartments intended for the cooking or heating of food by means of either a gas flame or electric resistance heating. DOE notes that the means of heating and description of the product are clearly specified in the current definition. DOE's definition relates to the functionality of the product, not its intended use, so a conventional oven would be considered a covered product whether it serves a primary or ancillary application. DOE is not proposing to define conventional ovens based on their intended use and a product that meets the existing definition would be considered a covered product. If a manufacturer is unable to test a product in accordance with the provisions in the test procedure (
This SNOPR proposes to adopt a prescriptive design requirement for the control system of conventional ovens. DOE considered a combination of factors in developing its proposal to prescribe a control design requirement for conventional ovens, rather than proposing to regulate IAEC with a performance standard. The rationale for this tentative decision is explained below.
DOE's analysis determined that the baseline efficiency level for conventional ovens corresponds to a linear power supply control design. For conventional gas ovens, DOE's analysis showed that the baseline control design also uses an “intermittent ignition” system with a glo-bar (also referred to as a hot surface) igniter. As discussed in section V.A of this SNOPR, the design
DOE conducted the analysis for conventional ovens for this SNOPR based on the test procedure adopted in the July 2, 2015 final rule (80 FR 37954, hereinafter referred to as the July 2015 TP Final Rule), which was the current test procedure at the time the standards analysis was conducted. After reviewing public comments and considering additional feedback and test data from manufacturers, DOE concluded that commercial-style ovens have inherently lower efficiencies than for residential-style ovens with comparable cavity sizes when measured using the previous version of the test procedure adopted in the July 2015 TP Final Rule, due to the greater thermal mass of the cavity and racks in commercial-style ovens. Due to uncertainty regarding such efficiency measurement, DOE is proposing to repeal the conventional oven test procedure, as described in the August 2016 TP SNOPR, and determined that further investigation would be required to develop test methods that appropriately account for the effects of certain commercial-style oven design features (
As discussed in section II.B.1 of this SNOPR, manufacturers are not currently required to conduct testing to certify compliance with standards because DOE has promulgated only prescriptive standards for gas cooking products. The prescriptive-based standard for conventional ovens proposed in this SNOPR would continue to minimize burden on manufacturers because it would not require manufacturers to test, rate, and label conventional ovens.
For the reasons cited above, DOE is proposing a prescriptive requirement for conventional ovens that would require conventional electric ovens to not be equipped with a control system that uses a linear power supply. The proposed standards would also require that conventional gas ovens be equipped with a control system that uses intermittent/interrupted ignition or intermittent pilot ignition and does not use a linear power supply.
EPCA sets forth generally applicable criteria and procedures for DOE's adoption and amendment of test procedures. (42 U.S.C. 6293) Manufacturers of covered products must use these test procedures to certify to DOE that their product complies with energy conservation standards and to quantify the efficiency of their product. DOE's test procedures for conventional cooking tops, conventional ovens, and microwave ovens are codified at appendix I to subpart B of Title 10 of the CFR part 430.
DOE established the test procedures in a final rule published in the
DOE subsequently conducted a rulemaking to address standby and off mode energy consumption, as well as certain active mode (
On January 30, 2013, DOE published a NOPR (78 FR 6232, the January 2013 TP NOPR) proposing amendments to Appendix I that would allow for testing the active mode energy consumption of induction cooking products;
In response to the February 2014 RFI, AHAM commented that DOE should rely on the finalized version of the test procedure (
AHAM and Whirlpool commented that a test procedure should be developed to address commercial-style cooking products if DOE plans to
On December 3, 2014, DOE published an SNOPR (the December 2014 TP SNOPR), in which DOE modified its proposal from the January 2013 TP NOPR to specify different test equipment that would allow for measuring the energy efficiency of induction cooking tops, and would include an additional test block size for electric surface units with large diameters (both induction and electric resistance). 79 FR 71894. In addition, DOE proposed methods to test non-circular electric surface units, electric surface units with flexible concentric cooking zones, and full-surface induction cooking tops.
In the December 2014 TP SNOPR, DOE also proposed methods for measuring conventional oven volume, clarification that the existing oven test block must be used to test all ovens regardless of input rate, and a method to measure the energy consumption and efficiency of conventional ovens equipped with an oven separator. 79 FR 71894 (Dec. 3, 2014). DOE published the July 2015 TP Final Rule adopting the test procedure amendments discussed above for conventional ovens only. 80 FR 37954.
AHAM and Electrolux commented that DOE did not provide sufficient time after finalizing the test procedure for conventional ovens for stakeholders to evaluate the proposed conventional oven standards. AHAM and Electrolux stated that manufacturers do not regularly conduct energy tests because there is no current standard for conventional ovens. As a result, they stated that more time was needed for manufacturers to fully understand the impact of the final test procedure and evaluate the proposed standards for conventional ovens. (AHAM, No. 29 at pp. 4–5; Electrolux, No. 27 at pp. 2–3)
AHRI commented that DOE states in its regulations that it will finalize amended test procedures before introducing applicable amended standards.
Sub-Zero expressed concern that limitations in the test procedures and available data might unfairly impact commercial-style products in a rulemaking establishing energy conservation standards. (Sub-Zero, No. 25 at p. 2)
AHAM submitted an additional comment after the end of the June 2015 NOPR comment period to discuss additional industry product testing. As part of this comment, AHAM reiterated its concern that manufacturers were unable to adequately analyze DOE's proposed rule during the comment period because DOE did not provide sufficient time after finalizing the conventional oven test procedure for stakeholders to evaluate the proposed standards. (AHAM, No. 38 at p. 2)
DOE has considered these comments as part of this rulemaking and notes that this SNOPR provides additional opportunity for interested parties to provide comment based on the proposed cooking product test procedure discussed below. With respect to the process of establishing test procedures and standards for a given product, DOE notes that, while not legally obligated to do so, it generally follows the approach laid out in guidance found in 10 CFR part 430, subpart C, Appendix A (Procedures, Interpretations and Policies for Consideration of New or Revised Energy Conservation Standards for Consumer Products). That guidance provides, among other things, that, when necessary, DOE will issue final, modified test procedures for a given product prior to publication of the NOPR proposing energy conservation standards for that product. While DOE strives to follow the procedural steps outlined in its guidance, there may be circumstances in which it may be necessary or appropriate to deviate from it. In such instances, the guidance indicates that DOE will provide notice and an explanation for the deviation. Accordingly, DOE is providing notice that it continues to develop the final test procedure for conventional cooking products. As discussed below, DOE has carefully considered the significant comments regarding the test procedures for both induction cooking tops and commercial-style cooking products, which led to DOE publishing an additional SNOPR on August 22, 2016. DOE believes proposed amendments in the August 2016 TP SNOPR address the significant concerns regarding the conventional cooking products test procedure and will issue the final test procedure before the standards final rule. Furthermore, as discussed in section IV.C.5 of this SNOPR, DOE is proposing to adopt a prescriptive design requirement for conventional ovens. Because this proposed standard is a design requirement and not a performance standard (
As discussed in the June 2015 NOPR for conventional ovens, DOE received a significant number of comments regarding the proposed hybrid test block test method for cooking tops in response to the December 2014 TP SNOPR and in separate interviews conducted with conventional cooking product manufacturers in February and March of 2015. AHAM and manufacturers commented that the hybrid test block method, as proposed, presented many issues with the construction and configuration of the test block which had not yet been addressed, and which left the repeatability and reproducibility of the test procedure in question. 80 FR 33030, 33039–33040 (June 10, 2015). A number of manufacturers that produce and sell products in Europe supported the use of a water-heating test method and harmonization with International Electrotechnical Commission (IEC) Standard 60350–2 Edition 2, “Household electric appliances—Part 2: Hobs—Method for measuring performance” (IEC Standard 60350–2) for measuring the energy consumption of electric cooking tops. These manufacturers noted the test methods in IEC Standard 60350–2 are compatible with all electric cooking top types, specify additional cookware diameters
For these reasons, DOE decided to defer its decision regarding adoption of energy conservation standards for conventional cooking tops until a representative, repeatable and reproducible test method for cooking tops was finalized. 80 FR 33030, 33040 (June 10, 2015).
AHAM, GE, and Electrolux commented in response to the June 2015 NOPR supporting DOE's decision to not propose standards for cooking tops because there was not yet a representative, repeatable, reproducible test procedure for this product category. (AHAM, No. 29 at p. 2; GE, No. 32 at p. 1; Electrolux, No. 27 at p. 2) AHAM stated that in addition to the time required to identify an appropriate test method for cooking tops, manufacturers will need time to obtain test equipment, verify that the test method is repeatable and reproducible, test their full product lines, and provide data to DOE to form the basis for any energy conservation standards. Therefore, AHAM believed that consideration of energy conservation standards for cooking tops would only be possible and appropriate in the next standards rulemaking cycle for conventional cooking products. (AHAM, No. 29 at p. 3)
AHAM, GE and Electrolux commented that 42 U.S.C. 6295(m)(4)(B), which specifies that a manufacturer shall not be required to apply new standards to a product with respect to which other new standards have been required during the prior 6-year period, prohibits DOE from proceeding with cooking tops on a different schedule than conventional ovens if DOE decides to proceed with standards for conventional ovens. (AHAM, No. 29 at pp. 2,3; GE, No. 32 at p. 2; Electrolux, No. 27 at p. 2) GE added that, regardless of when standards for cooking tops are proposed or finalized, the compliance date must not be until at least 6 years after the compliance date for the proposed standards for conventional ovens. (GE, No. 32 at p. 2)
Whirlpool commented that, although the FTC has not ruled on whether EnergyGuide labels will be justified for conventional ranges, Natural Resources Canada requires a comprehensive label that declares the energy consumption of the combined product. Whirlpool stated that DOE should consider this possibility when evaluating whether to align the compliance dates for conventional cooking tops and ovens. (Whirlpool, No. 33 at p. 4)
EEI commented that if DOE adopts new standards for both conventional cooking tops and ovens, the compliance dates for both products should be as close as possible to be market neutral. (EEI, Public Meeting Transcript, No. 35 at p. 18)
DOE published an additional test procedure SNOPR on August 22, 2016 (81 FR 57374) that proposes to amend the test procedures for conventional cooking tops. Given the feedback from interested parties discussed above and based on the additional testing and analysis conducted for the test procedure rulemaking, in the August 2016 TP SNOPR, DOE withdrew its proposal for testing conventional cooking tops with a hybrid test block. Instead, DOE is proposing to amend its test procedure to incorporate by reference the relevant sections of European Standard EN 60350–2:2013 “Household electric cooking appliances Part 2: Hobs—Methods for measuring performance”
DOE is also proposing to extend the test methods provided in EN 60530–2:2013 to gas cooking tops by correlating the burner input rate and test vessel diameters specified in EN 30–2–1:1998 “Domestic cooking appliances burning gas—Part 2–1: Rational use of energy—General” (EN 30–2–1) to the test vessel diameters and water loads already included in EN 60350–2:2013. The range of gas burner input rates covered by EN 30–2–1 includes surface units with burners exceeding 14,000 Btu/h, and thus EN 30–2–1 provides a method to test gas surface units with high input rate burners, which previously had not been addressed in the DOE test procedure or energy conservation standards. 81 FR 57374, 57385–57386.
In the August 2016 TP SNOPR, DOE proposed to amend the conventional cooking top test procedure to specify that the test energy consumptions measured for each surface unit be averaged together and then normalized to a representative load size to determine the total per-cycle energy consumption of the cooking top. The annual active mode energy consumption of the cooking top would be calculated by multiplying the total per-cycle energy consumption of the cooking top by the “adjusted cooking frequency.” 81 FR 57374, 57387–57388. As discussed in the August 2016 TP SNOPR, DOE determined the adjusted cooking frequency by comparing the energy use determined based on cooking frequency data from 2009 DOE Energy Information Administration (EIA)
Because DOE has proposed test procedures for conventional cooking tops that produce representative, repeatable, reproducible test results, DOE is now combining the rulemaking to consider energy conservation standards for conventional cooking tops and ovens and is correspondingly aligning the compliance dates for both product categories. For this SNOPR, DOE evaluated its proposed energy conservation standards for conventional cooking tops based on the proposed cooking top test procedure discussed above.
As discussed in section III.B, DOE is proposing to repeal the conventional oven test procedure as discussed in the August 2016 TP SNOPR and is proposing to adopt prescriptive design requirements for the control system of conventional ovens. As a result, manufacturers would not need to test, rate, and label conventional ovens to demonstrate compliance with the proposed prescriptive design requirements.
Whirlpool and EEI support the use of an IAEC metric that includes cooking energy, standby energy, and self-clean energy because it allows manufacturers flexibility in incorporating cost-effective design options that improve energy efficiency. Whirlpool also believes it would allow manufacturers to consider tradeoffs between consumer utility and energy efficiency improvements. (Whirlpool, No. 33 at p. 5; EEI, No. 30 at p. 3) EEI added that an integrated metric would facilitate the development of “smart” ovens that are more interactive with energy supply grids to allow consumers to determine the most energy-efficient and cost-effective times to operate them. EEI stated that a smart oven may need to communicate with an energy grid on a continuous basis, but the communication function may require a very small increase in the energy used in the standby mode or off mode. According to EEI, a separate standard for standby mode or off mode could result in appliances that are not able to have the “smart” functionality. (EEI, No. 30 at p. 3)
In this SNOPR, DOE performed its analysis for both ovens and cooking tops using the IAEC metric to account for both active mode and standby mode design options. As described in section V.C.1 of this SNOPR, DOE is proposing a prescriptive standard for conventional ovens and a performance standard using the IAEC metric for conventional cooking tops. For conventional ovens, DOE tentatively determined that a prescriptive requirement would be a more effective means of achieving energy savings for all oven product types (
In response to the June 2015 NOPR, Whirlpool also questioned the energy use metric for conventional ranges in light of the potentially separate standards schedule for conventional cooking tops and conventional ovens. Whirlpool stated that an integrated metric would allow manufacturers to pursue the most technically-feasible and/or economically-justifiable design options to meet the relevant standard while still achieving the same national energy conservation had they been separate. (Whirlpool, No. 33 at p. 3) Whirlpool noted that since standby power is included in the oven and cooking top test procedures, and that standby power for conventional ranges cannot be separated into oven and cooking top portions of standby energy, it is unclear how manufacturers would test and certify the oven and cooking top portions of conventional ranges separately. (Whirlpool, No. 33 at p. 3)
As discussed above, DOE is now proposing standards for both conventional cooking tops and ovens with the same compliance date. As noted in section III.A of this SNOPR, any potential cooking top or oven standard would apply to the individual components of the combined cooking product. As a result, DOE does not foresee any issues with compliance for combined cooking products, such as conventional ranges, that include both a conventional cooking top and conventional oven. The test procedure amendments proposed in the August 2016 TP SNOPR include provisions for measuring the standby power of combined cooking products and calculating the IAEC for the conventional cooking top component of combined cooking products. In addition, as discussed above, because DOE is proposing prescriptive standards for conventional ovens, manufacturers would not be required to conduct testing according to Appendix I to demonstrate compliance with standards.
In each energy conservation standards rulemaking, DOE conducts a screening analysis based on information gathered on all current technology options and prototype designs that could improve the efficiency of the products or equipment that are the subject of the rulemaking. As the first step in such an analysis, DOE develops a list of technology options for consideration in consultation with manufacturers, design engineers, and other interested parties. DOE then determines which of those means for improving efficiency are technologically feasible. DOE considers technologies incorporated in commercially available products or in working prototypes to be technologically feasible. 10 CFR part 430, subpart C, appendix A, section 4(a)(4)(i).
After DOE has determined that particular technology options are technologically feasible, it further evaluates each technology option in light of the following additional screening criteria: (1) Practicability to manufacture, install, and service; (2) adverse impacts on product utility or availability; and (3) adverse impacts on health or safety. 10 CFR part 430, subpart C, appendix A, section 4(a)(4)(ii)–(iv). Section IV.B of this SNOPR discusses the results of the screening analysis for residential conventional cooking products, particularly the designs DOE considered, those it screened out, and those that are the basis for the TSLs in this rulemaking. For further details on the screening analysis for this rulemaking, see chapter 4 of the SNOPR Technical Support Document (TSD).
When DOE proposes to adopt an amended standard for a type or class of covered product, it must determine the maximum improvement in energy efficiency or maximum reduction in energy use that is technologically feasible for such product. (42 U.S.C. 6295(p)(1)) Accordingly, in the
For each TSL, DOE projected energy savings from the products that are the subject of this rulemaking purchased in the 30-year period that begins in the year of compliance with new and amended standards (2019 to 2048).
DOE uses its national impact analysis (NIA) spreadsheet models to estimate national energy savings (NES) from potential new and amended standards. The NIA spreadsheet model (described in section IV.H of this SNOPR) calculates energy savings in terms of site energy, which is the energy directly consumed by products at the locations where they are used. Based on the site energy, DOE calculates NES in terms of primary energy savings at the site or at power plants, and also in terms of full-fuel-cycle (FFC) energy savings. The FFC metric includes the energy consumed in extracting, processing, and transporting primary fuels (
To adopt any new or amended standards for a covered product, DOE must determine that such action would result in “significant” energy savings. (42 U.S.C. 6295(o)(3)(B)) Although the term “significant” is not defined in the Act, the U.S. Court of Appeals for the District of Columbia Circuit, in
As noted above, EPCA provides seven factors to be evaluated in determining whether a potential energy conservation standard is economically justified. (42 U.S.C. 6295(o)(2)(B)(i)) The following sections discuss how DOE has addressed each of those seven factors in this rulemaking.
In determining the impacts of a potential amended standard on manufacturers, DOE conducts a manufacturer impact analysis (MIA), as discussed in section IV.J of this SNOPR. DOE first uses an annual cash-flow approach to determine the quantitative impacts. This step includes both a short-term assessment—based on the cost and capital requirements during the period between when a regulation is issued and when entities must comply with the regulation—and a long-term assessment over a 30-year period. The industry-wide impacts analyzed include (1) INPV, which values the industry on the basis of expected future cash flows; (2) cash flows by year; (3) changes in revenue and income; and (4) other measures of impact, as appropriate. Second, DOE analyzes and reports the impacts on different types of manufacturers, including impacts on small manufacturers. Third, DOE considers the impact of standards on domestic manufacturer employment and manufacturing capacity, as well as the potential for standards to result in plant closures and loss of capital investment. Finally, DOE takes into account cumulative impacts of various DOE regulations and other regulatory requirements on manufacturers. For individual consumers, measures of economic impact include the changes in LCC and PBP associated with new or amended standards. These measures are discussed further in the following section. For consumers in the aggregate, DOE also calculates the national net present value of the economic impacts applicable to a particular rulemaking. DOE also evaluates the LCC impacts of potential standards on identifiable subgroups of consumers that may be affected disproportionately by a national standard.
EPCA requires DOE to consider the savings in operating costs throughout the estimated average life of the covered product in the type (or class) compared to any increase in the price of, or in the initial charges for, or maintenance expenses of, the covered product that are likely to result from a standard. (42 U.S.C. 6295(o)(2)(B)(i)(II)) DOE conducts this comparison in its LCC and PBP analysis.
The LCC is the sum of the purchase price of a product (including its installation) and the operating expense (including energy, maintenance, and repair expenditures) discounted over the lifetime of the product. The LCC analysis requires a variety of inputs, such as product prices, product energy consumption, energy prices, maintenance and repair costs, product lifetime, and consumer discount rates appropriate for consumers. To account for uncertainty and variability in specific inputs, such as product lifetime and discount rate, DOE uses a distribution of values, with probabilities attached to each value.
The PBP is the estimated amount of time (in years) it takes consumers to recover the increased purchase cost (including installation) of a more-efficient product through lower operating costs. DOE calculates the PBP by dividing the change in purchase cost due to a more-stringent standard by the change in annual operating cost for the year that standards are assumed to take effect.
For its LCC and PBP analysis, DOE assumes that consumers will purchase the covered products in the first year of compliance with amended standards. The LCC savings for the considered efficiency levels are calculated relative
Although significant conservation of energy is a separate statutory requirement for adopting an energy conservation standard, EPCA requires DOE, in determining the economic justification of a standard, to consider the total projected energy savings that are expected to result directly from the standard. (42 U.S.C. 6295(o)(2)(B)(i)(III)) As discussed in section III.E of this SNOPR, DOE uses the NIA spreadsheet models to project national energy savings.
In establishing product classes and in evaluating design options and the impact of potential standard levels, DOE evaluates potential standards that would not lessen the utility or performance of the considered products. (42 U.S.C. 6295(o)(2)(B)(i)(IV)) Based on data available to DOE, the standards proposed in this SNOPR would not reduce the utility or performance of the products under consideration in this rulemaking.
EPCA directs DOE to consider the impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from a proposed standard. (42 U.S.C. 6295(o)(2)(B)(i)(V)) It also directs the Attorney General to determine the impact, if any, of any lessening of competition likely to result from a proposed standard and to transmit such determination to the Secretary within 60 days of the publication of a proposed rule, together with an analysis of the nature and extent of the impact. (42 U.S.C. 6295(o)(2)(B)(ii)) DOE will transmit a copy of this proposed rule to the Attorney General with a request that the Department of Justice (DOJ) provide its determination on this issue. DOE will publish and respond to the Attorney General's determination in the final rule. DOE invites comment from the public regarding the competitive impacts that are likely to result from this proposed rule. In addition, stakeholders may also provide comments separately to DOJ regarding these potential impacts. See
DOE also considers the need for national energy conservation in determining whether a new or amended standard is economically justified. (42 U.S.C. 6295(o)(2)(B)(i)(VI)) The energy savings from new or amended standards are likely to provide improvements to the security and reliability of the nation's energy system. Reductions in the demand for electricity also may result in reduced costs for maintaining the reliability of the nation's electricity system. DOE conducts a utility impact analysis to estimate how standards may affect the nation's needed power generation capacity, as discussed in section IV.M of this SNOPR.
The proposed standards also are likely to result in environmental benefits in the form of reduced emissions of air pollutants and greenhouse gases (GHGs) associated with energy production and use. DOE conducts an emissions analysis to estimate how standards may affect these emissions, as discussed in section IV.K of this SNOPR; the emissions impacts are reported in section V.B of this SNOPR. DOE also estimates the economic value of emissions reductions resulting from the considered TSLs, as discussed in section IV.L of this proposed rule.
EPCA allows the Secretary of Energy, in determining whether a standard is economically justified, to consider any other factors that the Secretary deems to be relevant. (42 U.S.C. 6295(o)(2)(B)(i)(VII)) To the extent interested parties submit any relevant information regarding economic justification that does not fit into the other categories described above, DOE could consider such information under “other factors.”
As set forth in 42 U.S.C. 6295(o)(2)(B)(iii), EPCA creates a rebuttable presumption that an energy conservation standard is economically justified if the additional cost to the consumer of a product that meets the standard is less than three times the value of the first year's energy savings resulting from the standard, as calculated under the applicable DOE test procedure. DOE's LCC and PBP analyses generate values used to calculate the effects that proposed energy conservation standards would have on the payback period for consumers. These analyses include, but are not limited to, the 3-year payback period contemplated under the rebuttable-presumption test. In addition, DOE routinely conducts an economic analysis that considers the full range of impacts to consumers, manufacturers, the Nation, and the environment, as required under 42 U.S.C. 6295(o)(2)(B)(i). The results of this analysis serve as the basis for DOE's evaluation of the economic justification for a potential standard level (thereby supporting or rebutting the results of any preliminary determination of economic justification). The rebuttable presumption payback calculation is discussed in section IV.F.10 of this proposed rule.
In this SNOPR, DOE is proposing to update the certification requirements for cooking products in 10 CFR 429.23 to include the annual energy use and integrated annual energy use metrics for conventional gas and electric cooking tops in the sampling plan requirements. Additionally, DOE is proposing to update the reporting requirements for conventional ovens to reflect the proposed prescriptive design requirements. DOE notes that the certification and reporting requirements for conventional cooking tops and conventional ovens also apply to the conventional cooking top component and conventional oven component of combined cooking products.
AHAM submitted a late comment discussing additional industry product testing, and provided a recommendation regarding the proposed standard levels selected for electric self-clean ovens. In this comment, AHAM stated that DOE did not analyze a sufficient sample size of electric standard ovens and, as a result, the efficiency levels for electric standard ovens presented in the June 2015 NOPR are significantly stricter than for electric self-clean ovens. (AHAM, No. 39 at pp. 2–4) AHAM claimed that the standard levels proposed in the June 2015 NOPR could result in manufacturers adding a self-clean cycle to electric standard ovens instead of improving the oven's efficiency to meet the proposed standard for electric standard ovens, thus eliminating or reducing the availability of electric standard ovens from the market. AHAM further stated that electric standard ovens are the lowest-priced conventional ovens in the retail market, so eliminating them would provide a hardship for low-
AHAM recommended standards for electric standard ovens that are based on subtracting the average self-clean energy consumption from the corresponding standard for electric self-clean ovens. AHAM believes this approach would mitigate the uncertainties of the analysis, avoid discriminating against consumers of electric standard ovens, and have a negligible effect on the total energy savings compared to the standard levels proposed in the June 2015 NOPR. (AHAM, No. 39 at pp. 7–8)
For the reasons discussed in section III.B of this SNOPR, DOE is proposing a prescriptive design requirement for the control system for conventional ovens in this SNOPR. This prescriptive standard would require the same design changes for both standard and self-clean ovens. As a result, DOE expects that the standards proposed in this SNOPR would not impose stricter requirements on electric standard ovens than on electric self-clean ovens, and would not eliminate or reduce the availability of electric standard ovens.
DOE used several analytical tools to estimate the impact of the proposed standards. The first tool is a spreadsheet that calculates the LCC and PBP of potential energy conservation standards. The national impacts analysis uses a spreadsheet set that provides shipments forecasts and calculates national energy savings and net present value resulting from potential energy conservation standards. DOE uses the third spreadsheet tool, the Government Regulatory Impact Model (GRIM), to assess manufacturer impacts of potential standards. These three spreadsheet tools are available at the Web site for this rulemaking:
For the market and technology assessment, DOE develops information that provides an overall picture of the market for the products concerned, including the purpose of the products, the industry structure, and market characteristics. This activity includes both quantitative and qualitative assessments, based primarily on publicly available information. Chapter 3 of the SNOPR TSD contains additional discussion of the market and technology assessment.
When evaluating and establishing energy conservation standards, DOE divides covered products into product classes by the type of energy used or by capacity or other performance-related features that justifies a different standard. In making a determination whether a performance-related feature justifies a different standard, DOE must consider such factors as the utility to the consumer of the feature and other factors DOE determines are appropriate. (42 U.S.C. 6295(q))
During the previous energy conservation standards rulemaking for cooking products, DOE evaluated product classes for conventional cooking tops based on energy source (
• Electric cooking tops—low or high wattage open (coil) elements;
• Electric cooking tops—smooth elements; and
• Gas cooking tops—conventional burners.
As part of the February 2014 RFI, DOE stated that it tentatively planned to maintain the product classes for conventional cooking tops from the previous standards rulemaking, as presented above. DOE also stated that it planned to consider induction heating as a technology option for electric smooth cooking tops rather than as a separate product class. DOE noted that induction heating provides the same basic function of cooking or heating food as heating by gas flame or electric resistance, and that the installation options available to consumers are also the same for both cooking products with induction and electric resistance heating. DOE stated that it might consider whether separate product classes are warranted for commercial-style gas cooking products with higher burner input rates. 79 FR 8337, 8341–8342 (Feb. 12, 2014).
In response to the February 2014 RFI, Laclede Gas Company (Laclede) claimed that the two product classes for electric cooking tops are based solely on aesthetics, which is not a sufficient reason for establishing separate product classes. (Laclede, No. 8 at p. 5) As noted above, DOE determined that the ease of cleaning smooth elements provides enhanced consumer utility over coil elements. Because smooth elements typically use more energy than coil elements, DOE defined two separate product classes for electric cooking tops. DOE maintains this determination that electric smooth cooking tops provide enhanced utility while using more energy than coil elements, and as a result, proposes to consider separate product classes for this SNOPR.
Natural Resources Defense Council (NRDC) agreed with DOE that induction heating should not be considered a separate product class, and further recommended classifying all electric cooking tops in a single product class. NRDC commented that DOE determined in the previous standards rulemaking that smooth element cooking tops warranted a separate product class because they consume more energy than open coil element cooking tops and provide the consumer utility of ease of cleaning. NRDC stated, however, that electric cooking tops using induction technology are now available that provide both high energy efficiency and ease of cleaning. NRDC believes that open coil elements do not provide any additional benefit to consumers and therefore may not necessitate a separate product class. (NRDC, No. 12 at p. 2) DOE recognizes that smooth cooking tops with induction technology can achieve higher energy efficiency than electric coil cooking tops while providing ease of cleaning, as suggested by NRDC. However, DOE notes that the electric resistance heating technology more commonly found in smooth element cooking tops are typically less efficient than coil elements. As a result, DOE is not proposing to establish a single product class for all electric cooking tops.
In response to the February 2014 RFI, AHAM and Whirlpool commented that induction cooking tops should be considered a separate product class and
• Induction cooking tops are easier to clean than smooth cooking tops with electric resistance heating because there is less likelihood of baked-on foods, which are difficult to clean. With induction cooking tops, the pot alone is heated through electromagnetic energy, while the spilled food on the cooking top receives only a small amount of conduction heating from the pot;
• Induction cooking tops heat faster than smooth cooking tops with electric resistance heating. AHAM and Whirlpool stated that there is a precedent to establishing separate product classes based on cycle time. According to these commenters, in the clothes washer rulemaking, DOE separated front-loading and top-loading clothes washers because the cycle times varied, significantly impacting consumer utility and product performance;
• Standby energy use will typically be higher for induction cooking tops than for smooth cooking tops because there are more advanced electronics, especially for full surface induction cooking tops that sense a pot when it is placed anywhere on the unit's surface. To maintain that consumer utility, induction cooking tops need a higher standby energy for the sensors to detect the placement of a pot;
• Magnetic cookware is needed for induction cooking tops, but not for smooth cooking tops with electric resistance heating. This may affect cooking performance and energy use by the end user, as certain non-magnetic cookware, such as aluminum, does not retain heat well; and
• Induction is an entirely different method of heating food (electromagnetic energy) than smooth cooking tops with electric resistance heating (radiant and conduction energy). (AHAM, No. 9 at pp. 4–5, 6, 7; Whirlpool, No. 13 at pp. 3, 4, 5)
NRDC and the California IOUs agreed with DOE that induction heating should be considered as a technology option for electric smooth cooking tops. (NRDC, No. 12 at p. 2; California IOUs, No. 11 at p. 2) NRDC noted that many induction cooking top models from multiple brands and manufacturers have entered the market, and that some manufacturers offer induction “hot plates,” as well as hybrid ranges and cooking tops that have electric and induction elements. NRDC also stated that induction cooking tops hold a significant portion of the market in Europe and Asia. For these reasons, NRDC urged DOE to consider induction technology in its analysis. (NRDC, No. 12 at pp. 1–2) The California IOUs urged DOE to review the Food Service Technology Center reports available on induction technology for commercial cooking products, which include measurements of energy input rate, heat-up temperature response, and heavy-load energy efficiency under the American Society for Testing and Materials (ASTM) Standard F1521–03. According to the California IOUs, these reports would be helpful in assessing the test procedures and measured energy efficiency of induction cooking tops. (California IOUs, No. 11 at p. 2)
DOE observes that induction cooking tops provide the same basic function of cooking or heating food as does electric resistance heating. In addition, in considering whether there are any performance-related features that justify a higher energy use standard to establish a separate product class, DOE notes that the utility of speed of cooking, ease of cleaning, and requirements for specific cookware for induction cooking tops do not appear to be uniquely associated with higher energy use compared to other smooth cooking tops with electric resistance heating elements. DOE recognizes that induction cooking tops are only compatible with ferromagnetic cooking vessels. However, DOE does not identify any consumer utility unique to any specific type of cookware that would warrant establishing separate product classes. As discussed in section IV.F.2 of this SNOPR, DOE considered the cost of replacing cookware as part of the LCC analysis. DOE also conducted standby testing on full-surface induction cooking tops. Based on DOE's testing, the sensors required to detect the presence of a pot placed on the cooking surface do not remain active while the product is in standby mode. In addition, DOE notes that the standby power required for the tested model (0.25 watts (W)) was below the average standby power for other cooking tops in DOE's test sample (2.25 W). For these reasons, DOE is not considering a separate product class for induction cooking products in this proposal. As noted in section IV.A.3 of this SNOPR, DOE is considering induction heating as a technology option for electric smooth cooking tops. Because residential induction cooking tops are available on the market, DOE analyzed these products rather than information from commercial products, as suggested by the California IOUs, as part of the engineering analysis, including testing and tearing down multiple sample units.
With regard to commercial-style cooking products, including those with higher burner input rates, AHAM commented in response to the February 2014 RFI that without a definition or test procedure for commercial-style cooking products, neither AHAM nor DOE can determine whether these products would warrant a separate product class. AHAM stated that DOE should first develop a test procedure for these products to allow for analysis of them. (AHAM, No. 9 at p. 12)
Based on DOE's review of conventional gas cooking tops available on the market, DOE determined that products marketed as commercial-style cannot be distinguished from standard residential-style products based on performance characteristics or consumer utility. While conventional gas cooking tops marketed as commercial-style have more than one burner rated above 14,000 Btu/h and cast iron grates, approximately 50 percent of cooking top models marketed as residential-style also have one or more burners rated above 14,000 Btu/h and cast iron grates.
DOE considered whether separate product classes for commercial-style gas cooking tops with higher burner input rates are warranted by comparing the test energy consumption of individual surface units in a sample of cooking tops tested by DOE.
As indicated in Figure IV.1, there was no statistically significant correlation between burner input rate and the ratio of surface unit energy consumption to test load mass for cooking tops marketed as either residential-style or commercial-style. DOE's testing, as presented further in section IV.C.2 of this SNOPR, showed that this efficiency ratio for gas cooking tops is more closely related to burner and grate design rather than input rate.
In response to the June 2015 NOPR, Sub-Zero and BSH submitted late comments regarding commercial-style cooking tops. Sub-Zero commented that “high-performance cooking” is a better descriptor of this product segment than “commercial-style.” Sub-Zero stated that high-performance cooking products can be defined as cooking products that offer residential consumers performance similar to that found in restaurant equipment at a safety and convenience level that is acceptable for residential use. (Sub-Zero, No. 40 at p. 2)
Sub-Zero commented that a separate product class should be established for high-performance gas cooking tops to recognize the unique utility and performance attributes associated with high-performance cooking products. Sub-Zero expressed concern that DOE may not be adequately considering cooking performance in its analysis for cooking tops, and that DOE may not be fully addressing any combustion and emissions issues arising from potential design changes made to improve the efficiency of gas cooking tops. (Sub-Zero, No. 40 at p. 2)
Sub-Zero and BSH stated that customer input drives the design and cooking performance requirements for their gas cooking tops, and that high-performance gas cooking tops include design features that enhance cooking performance (rapid boiling, precision simmering, and even heat distribution) but negatively impact efficiency. (Sub-Zero, No. 25 at pp. 2–3; BSH, No. 41 at pp. 1–2) Sub-Zero and BSH noted that these features include:
• High input rate burners with large diameters provide faster heat up times and allow consumers to use larger cooking vessels while maintaining even heat distribution (Sub-Zero, No. 25 at p. 3; BSH, No. 41 at p. 2);
• High input rate burners with high levels of flame controllability, specifically high turndown ratios, allow for simmering of foods such as chocolates and sauces while also providing faster heat up times (Sub-Zero, No. 25 at p. 3; BSH, No. 41 at p. 2);
• Spacing between the gas flame, grate, and cooking vessel must be greater for high input rate burners than low input rate burners to meet performance and safety requirements, specifically even heat distribution and reduction of carbon monoxide. Reducing the spacing between the gas flame and the cooking vessel can increase efficiency, but flame quenching due to flame impingement and contact with the grate/cooking vessel can lead to increased carbon monoxide emissions and combustion by-products (Sub-Zero, No. 25 at p. 3);
• Heavy cast iron grates allow for better heat distribution to cooking vessels while also providing the strength required to support large loads and increased product longevity. (Sub-Zero, No. 25 at p. 4; BSH, No. 41 at p. 2) Heavier cast iron grates also retain
Sub-Zero and BSH commented that safety, performance, and efficiency attributes of the cooking top must be considered systematically in terms of product design (
For these reasons, Sub-Zero requested that DOE consider the impact that any proposed standard levels would have on small, niche-market, high-performance cooking product manufacturers and their ability to serve their unique set of customers. According to Sub-Zero, eliminating the unique features of commercial-style gas cooking tops would not allow companies such as Sub-Zero to adequately serve their customer base. (Sub-Zero, No. 40 at p. 4)
BSH commented that although it agrees with DOE's general approach of not analyzing cooking performance, commercial-style products must meet greater customer demands than residential-style products. BSH also commented that if DOE does not differentiate between commercial-style and residential-style products, more stringent standards would apply primarily to commercial-style products and have no effect on residential-style products. BSH commented that this could result in the elimination of commercial-style products from the market and limit consumer choice. BSH commented, therefore, that DOE should consider either a different test procedure or a separate product class for commercial-style products. (BSH, No. 41 at p. 3)
The Wisconsin Senators expressed concern that recombining the rulemaking to consider standards for both cooking tops and ovens would likely impact high performance products and would require significant design changes resulting in lessened consumer utility and product performance. (Wisconsin Senators, No. 45 at p. 1) Arizona Congress Member Grijalva and the Arizona Congressional Delegation similarly noted that recombining the rulemaking will make it more difficult to have separate product classes to account for the unique features of high performance products. (Arizona Congress Member Grijalva, No. 43 at p. 1; Arizona Congressional Delegation, No. 44 at pp. 1–2) The Wisconsin Senators, Arizona Congress Member Grijalva, and the Arizona Congressional Delegation noted that new standards could negatively impact manufacturers like Sub-Zero and their ability to compete in the marketplace if high performance cooking products are not distinguished from conventional residential-style products. (Wisconsin Senators, No. 45 at p. 1; Arizona Congress Member Grijalva, No. 43 at p. 1)
DOE recognizes that the presence of certain features, such as heavy cast iron grates and multiple high input rate burners, may help consumers perceive a difference between commercial-style and residential-style gas cooking top performance. However, DOE is not aware of clearly-defined and consistent design differences and corresponding utility provided by commercial-style gas cooking tops as compared to residential-style gas cooking tops. Although DOE's testing, presented in section IV.C.2, indicates there is a difference in energy consumption between residential-style and commercial-style gas cooking tops, this difference could not be correlated to any specific utility provided to consumers. Moreover, DOE is not aware of an industry test standard that evaluates cooking performance and that would quantify the utility provided by these products. In addition, as discussed above, DOE's testing showed that there was no statistically significant correlation between burner input rate and the ratio of surface unit energy consumption to test load mass for cooking tops marketed as either residential-style or commercial-style.
For these reasons, DOE is not proposing to establish a separate product class for gas cooking tops marketed as commercial-style or conventional gas cooking tops with higher burner input rates. However, as discussed in sections IV.C.3.b and V.C.1 of this SNOPR, DOE conducted its engineering analysis consistent with products currently available on the market and is proposing energy conservation standards for gas cooking tops in this SNOPR that would maintain the features available in conventional cooking tops marketed as commercial-style (
During the first energy conservation standards rulemaking for cooking products, DOE evaluated product classes for conventional ovens based on energy source (
• Electric ovens—standard oven with or without a catalytic line;
• Electric ovens—self-clean oven;
• Gas ovens—standard oven with or without a catalytic line; and
• Gas ovens—self-clean oven.
As part of the February 2014 RFI, DOE stated that it tentatively planned to maintain the product classes for conventional ovens from the previous standards rulemaking, as presented above. DOE stated that it might consider whether separate product classes are warranted for commercial-style gas ovens with higher burner input rates. 79 FR 8337, 8341–8342 (Feb. 12, 2014).
Based on DOE's review of conventional gas ovens available on the U.S. market, and based on manufacturer interviews and testing conducted as part of the engineering analysis, DOE noted in the June 2015 NOPR that the self-cleaning function of the self-clean oven may employ methods other than a high-temperature pyrolytic cycle to perform the cleaning action. 80 FR 33030, 33043. Specifically, DOE noted that it is aware of a type of self-cleaning oven that uses a proprietary oven coating and water to perform a self-clean cycle with a shorter duration and at a significantly lower temperature setting. The self-cleaning cycle for these ovens, unlike catalytically-lined standard ovens that provide continuous cleaning during normal baking, still have a separate self-
Whirlpool agreed that separate product classes are justified for standard and self-clean ovens. (Whirlpool, No. 33 at p. 6) Whirlpool also agreed with DOE that ovens that provide the same consumer utility and benefits of self-clean via means other than a standard pyrolytic process should be subject to the same standards as those that employ a pyrolytic process because this framework promotes innovation in self-clean performance and energy efficiency. (Whirlpool, No. 33 at p. 5) GE commented that, while it supports the treatment of self-clean ovens as a separate product class, including non-pyrolytic models in the definition of self-clean would require unique provisions in the test procedure for this technology. In particular, GE suggested that DOE determine whether a usage factor of four times per year is appropriate for both pyrolytic and non-pyrolytic self-clean technologies, since the former is not as effective and requires additional cycles per year to achieve the same performance. (GE, No. 32 at p. 3)
DOE is not aware of any differences in consumer behavior in terms of the frequency of use of the self-clean function that would be predicated on the type of self-cleaning technology rather than on cleaning habits or cooking usage patterns that are not dependent on the type of technology. Therefore, DOE is not proposing a different usage factor for non-pyrolytic self-clean operation. However, DOE welcomes data on the consumer usage patterns of pyrolytic versus non-pyrolytic self-cleaning functions in conventional ovens.
With regards to gas oven burner input rates, DOE noted in the June 2015 NOPR that based on its review of the residential conventional gas ovens available on the market, residential-style gas ovens typically have an input rate of 16,000 to 18,000 Btu/h whereas residential gas ovens marketed as commercial-style typically have burner input rates ranging from 22,500 to 30,000 Btu/h.
DOE conducted testing for the June 2015 NOPR using the version of the test procedure later adopted in the July 2015 TP Final Rule to determine whether commercial-style gas ovens with higher burner input rates warrant establishing a separate product class.
DOE evaluated the cooking efficiency of eight conventional gas ovens, including five ovens with burners rated at 18,000 Btu/h or less and the remaining three with burner input rates ranging from 27,000 Btu/h to 30,000 Btu/h. 80 FR 33030, 33043. DOE's testing showed that the measured cooking efficiencies for ovens with burner input rates above 22,500 Btu/h were lower than for ovens with ratings below 22,500 Btu/h, even after normalizing cooking efficiency to a fixed cavity volume. However, DOE also noted that the conventional gas ovens with higher burner input rates in DOE's test sample were marketed as commercial-style and had greater total thermal mass, including heavier racks and thicker cavity walls, even after normalizing for cavity volume. DOE's testing of a 30,000 Btu/h oven suggested that much of the energy input to commercial-style ovens with higher burner input rates goes to heating the added mass of the cavity, rather than the test load, resulting in relatively lower measured efficiency when measured according to the test procedure adopted in the July 2015 TP Final Rule. 80 FR 33030, 33043–33044. DOE also investigated the time it took each oven in the test sample to heat the test load to a final test temperature of 234 °F above its initial temperature, as specified in the DOE test procedure in Appendix I at the time of the testing. DOE's testing showed that gas ovens with burner input rates greater than 22,500 Btu/h do not heat the test load significantly faster than the ovens with lower burner input rates, and two out of the three units with the higher burner input rates took longer than the average time to heat the test load. Therefore, DOE concluded in the June 2015 NOPR that there is no unique utility associated with faster cook times that is provided by gas ovens with burner input rates greater than 22,500 Btu/h. 80 FR 33030, 33045.
Based on DOE's testing, reverse engineering, and additional discussions with manufacturers, DOE posited in the June 2015 NOPR that the major differentiation between conventional gas ovens with lower burner input rates and those with higher input rates, including those marketed as commercial-style, was design and construction related to aesthetics rather than improved cooking performance. Further, DOE did not identify any unique utility conferred by commercial-style gas ovens. For the reasons discussed above, DOE did not propose to establish a separate product class for commercial-style gas ovens with higher burner input rates. 80 FR 33030, 33045.
The Joint Efficiency Advocates agreed with DOE's determination that commercial-style gas ovens do not provide any unique utility. The Joint Efficiency Advocates added that Consumer Reports similarly found in their tests that “higher Btu hasn't guaranteed faster heating.” They noted that Consumer Reports also found that “pro-style ranges are big on style, but aren't the best ranges” and that “even regular ranges now have beefy knobs, rugged grates, and stainless trim for a lot less money,” observations which support DOE's decision not to establish a separate product class for commercial-style gas ovens with higher burner input rates. (Joint Efficiency Advocates, No. 31 at p. 2)
As noted for cooking tops, Sub-Zero commented that “high performance cooking” is a better descriptor of this product segment than “commercial-style.” Sub-Zero commented that a separate product class should be established for high performance electric and gas ovens to recognize the unique utility and performance attributes associated with high performance cooking products. Sub-Zero expressed concern that DOE did not consider cooking performance in its analysis for this rulemaking. According to Sub-Zero, the ability of any oven to bake and broil evenly, allow yeast products to rise consistently, and produce consistent quality from rack to rack when several racks are being used
Sub-Zero and BSH stated that inputs from their customers drive the design and cooking performance requirements for their ovens. (Sub-Zero, No. 25 at pp. 2, 3; BSH, No. 41 at pp. 1–2) Sub-Zero commented that high performance ovens include the following design features that enhance cooking performance (professional quality baking, broiling, roasting, slow bake, proofing, and other functions) but negatively impact efficiency:
• Heavier gauge materials which extend product life and enhance product quality, cooking functionality and durability;
• Configurations that allow for up to six-rack baking capability with full extension, heavy-gauge oven racks to support large loads and provide enhanced safety and ergonomic benefit;
• Full oven-height dual convection blowers to optimize cooking air flow;
• Hidden bake elements that enhance customer safety, cleanability and heat distribution for better cooking performance;
• Controls and software to maximize the long-term reliability of oven cavity porcelain when employing a hidden bake element; and
• Cooling fans for the electronic printed circuit boards that provide precise oven control and touch-screen user interface for cooking modes and other features. (Sub-Zero, No. 25 at pp. 3, 5–6)
BSH also noted that commercial-style ovens include design features identified by Sub-Zero, including: Robust, full-extension ball-bearing oven racks to support heavy food loads; the ability to cook on three racks simultaneously with high output heating elements for even heat distribution; hidden bake elements. (BSH, No. 41 at p. 2) BSH also noted the following additional design features associated with commercial-style products:
• Soft-close hinges to handle constant loading and unloading of the oven to eliminate the noise of slamming doors;
• A variety of modes and options not typically found in residential-style products (
• Powerful heating elements to maintain set temperatures during sessions of loading and unloading food (
• Very large usable baking space,
Sub-Zero commented that testing of their products shows that the standard levels must be increased for ovens with enhanced high performance and customer utility attributes. Its test data showed that there are significant differences in efficiency levels when comparing high performance oven designs to conventional oven designs. (Sub-Zero, No. 25 at pp. 2–3)
For these reasons, Sub-Zero requested that DOE reconsider the impact that the proposed standard levels will have on small, niche-market, high-performance cooking manufacturers and their ability to serve their unique set of customers. According to Sub-Zero, the proposed standard levels would not allow companies such as Sub-Zero to adequately serve their customer base. Sub-Zero added that the proposed standards would force them and other high performance cooking product manufacturers to compete in the conventional oven market space by requiring them to employ lighter gauge materials, exposed heating elements, lighter racks, simpler controls, and single versus dual convection fan systems, which Sub-Zero claims would eliminate the utility and performance features that market analysis shows is needed for its company to stay viable. (Sub-Zero, No. 25 at p. 6)
An Arizona Senator, California Congress Member, and Tennessee Congress Member separately commented that the proposed rule lacks any sort of distinction among residential ovens based on the cooking features they provide to the consumer, and may compromise the quality, functionality, and features associated with high-performance ovens. (Arizona Senator, No. 37 at p. 1; California Congress Member, No. 47 at p. 1; Tennessee Congress Member, No. 46 at p. 1) The Arizona Senator, the Arizona Congressional Delegation, California Congress Member, and Tennessee Congress Member encouraged DOE to work with the affected industry entities to reevaluate its proposal to prescribe a separate set of standards for high-performance ovens that acknowledges the unique characteristics of high-performance products and preserves customer choice. (Arizona Senator, No. 37 at p. 1; Arizona Congressional Delegation, No. 36 at p. 1; California Congress Member, No. 47 at pp. 1–2; Tennessee Congress Member, No. 46 at p. 2) The Arizona Congressional Delegation, California Congress Member, and Tennessee Congress Member also commented that the proposed rule is overly burdensome and would impose significant costs for companies in the high-performance oven market, including Sub-Zero and BSH. (Arizona Congressional Delegation, No. 36 at pp. 1; California Congress Member, No. 47 at pp. 1; Tennessee Congress Member, No. 46 at p. 1) The Arizona Congressional Delegation added that forcing a manufacturers like Sub-Zero to abandon its distinct line of cooking products and to manufacture mass-market products would lessen customer utility and the performance of its ovens, and create a significant disparity in the company's competitive landscape. (Arizona Congressional Delegation, No. 36 at p. 1)
As discussed previously for cooking tops, BSH commented that although it agrees with DOE's general approach of not analyzing cooking performance for ovens, commercial-style products have to fulfill higher customer demands than residential-style products. BSH stated that if DOE does not differentiate between commercial-style and residential-style products, more stringent standards would apply mainly to commercial-style products and have no effect on residential-style products. BSH commented that this could result in the elimination of commercial-style products from the market and limit consumer choice. Based on this, BSH commented that DOE should either consider a different test procedure or a separate product class for commercial-style products. (BSH, No. 41 at p. 3)
Miele also submitted a late comment in response to the June 2015 NOPR regarding commercial-style ovens. Miele commented that DOE should either consider establishing a separate product class and exempt commercial-style ovens from standards or delay the rulemaking until there is a finalized test procedure that adequately measures commercial-style products energy use and accounts for the enhanced cooking performance so that these products are not eliminated from the market. Miele commented that the DOE test procedure does not adequately reflect the energy use of commercial-style products because it does not account for the effects of door openings and the energy required for thermal recovery. Miele noted that the added mass of commercial-style ovens provides the advantage of requiring less energy and time to recover, which alters the quality of foods being cooked. (Miele, No. 42 at pp. 1–2)
To further address whether commercial-style ovens provide a
Furthermore, DOE has observed many of the design features identified by manufacturers as unique to commercial-style ovens and that may impact the energy consumption, such as extension racks, convection fans, cooling fans, and hidden bake elements, in residential-style products. DOE recognizes that the presence of these features, along with thicker oven cavity walls and higher burner input rates, may help consumers perceive a difference between commercial-style and residential-style ovens. However, DOE is not aware of a clearly-defined and consistent design difference and corresponding utility provided by commercial-style ovens as compared to residential-style ovens.
For these reasons, DOE is not proposing to establish a separate product class for commercial-style ovens. As discussed in sections III.B and III.C of this SNOPR, DOE is proposing to repeal the oven test procedure in the August 2016 TP SNOPR, noting that further investigation would be required to develop test methods that appropriately account for the effects of certain commercial-style oven design features (
As discussed in section III.C of this SNOPR, in the October 2012 TP Final Rule, DOE amended Appendix I to include methods for measuring fan-only mode.
AHAM, Whirlpool, and Electrolux supported DOE's proposal to establish separate product classes for freestanding and built-in/slide-in ovens. (AHAM, No. 29 at p. 8; Whirlpool, No. 33 at p. 6; Electrolux, No. 27 at p. 4) In the absence of adverse comments, and for the reasons discussed above, DOE is maintaining its proposal to establish separate product classes for freestanding and built-in/slide-in ovens.
In summary, DOE proposes the product classes listed in Table IV.1 for this SNOPR.
As part of the market and technology assessment, DOE uses information about existing and past technology options and prototype designs to help identify technologies that manufacturers could use to improve energy efficiency. Initially, these technologies encompass all those that DOE believes are technologically feasible. Chapter 3 of the NOPR TSD includes the detailed list and descriptions of all technology options identified for this equipment.
In the February 2014 RFI, DOE stated that based on a preliminary review of the cooking products market and information published in recent trade publications, technical reports, and
In response to the February 2014 RFI, DOE received a number of comments regarding the technology options for conventional cooking tops.
Whirlpool commented that there would not be efficiency gains from insulation for electric coil and gas cooking tops. Whirlpool further questioned where extra insulation would be placed on an electric coil or gas cooking top and whether consumers would accept that in the product's design. (Whirlpool, No. 13 at pp. 3, 4) Based on discussions with multiple manufacturers, DOE agrees that it is unclear where insulation could be placed in electric coil and gas cooking tops to improve efficiency, nor were manufacturers able to provide data demonstrating any measurable efficiency improvement association with added insulation. As a result, DOE did not further analyze this technology option for these proposed product classes.
Whirlpool commented that small energy savings are associated with thermostatically controlled burners for gas cooking tops, and that manufacturers would need to assess the possible quality impact from subjecting the electronics to high temperatures. (Whirlpool, No. 13 at p. 4) Whirlpool also commented that most electric coil element and smooth element cooking tops on the market today have electronic controls. (Whirlpool, No. 13 at p. 4) Based on DOE's review of products on the market, DOE agrees that the majority of electric smooth cooking tops on the market today have electronic controls. However, all of the electric coil cooking tops reviewed by DOE were equipped with electromechanical controls. Nonetheless, DOE determined that thermostatically controlled burners and electronic controls, which allow the burners or heating elements to automatically adjust in response to cooking-state set points (
AHAM and Whirlpool commented that halogen elements should not be considered as a technology option for electric smooth cooking tops because they may not heat enough to properly cook food. AHAM and Whirlpool stated that they do not believe that these elements typically are capable of achieving temperatures greater than about 350 °F. (AHAM, No. 9 at p. 5; Whirlpool, No. 13 at p. 4) DOE notes that this technology option would incorporate radiant heating coils around the halogen element to provide supplemental heat around the element's edge, producing a highly responsive element with an even temperature distribution. Based on data presented in the 2009 TSD, halogen elements may increase efficiency by approximately 1.5 percent. As a result, DOE is retaining halogen elements as a technology option for electric smooth cooking tops.
Whirlpool commented that there may be negligible savings from improved contact conductance, as the coil element changes shape when heating, making it difficult to keep the element completely flat throughout the cooking cycle. According to Whirlpool, radiation also acts like conduction at very short distances (
Whirlpool commented that small energy savings are possible with low-standby-loss electronic controls for electric smooth cooking tops, but they are not expected to be economically justified. (Whirlpool, No. 13 at p. 4) As part of DOE's testing and reverse engineering analyses, DOE observed that a large percentage of cooking top models incorporate SMPS, which result in lower standby power consumption compared to products with conventional linear power supplies. Based on discussions with manufacturers, DOE notes that multiple manufacturers are already transitioning to SMPS for their full product offerings. DOE also observed that one electric smooth cooking top in its test sample is equipped with an automatic power-down function in addition to the SMPS that powers down the controls to a lower-power state after a period of user inactivity to reduce standby power. As a result, DOE maintained low-standby-loss electronic controls as a technology option and assessed the associated costs in the engineering analysis.
Whirlpool commented that about 99 percent of electric coil cooking tops already have chrome drip bowls, which act as a reflective surface. (Whirlpool, No. 13 at p. 4) Whirlpool commented that there are possible savings associated with reflective surfaces for gas cooking tops, which could be implemented by the use of stainless steel, but consumers would not accept cooking products being available only in stainless steel. (Whirlpool, No. 13 at p. 3) Based on DOE's review of products on the market, DOE is unaware of any
Whirlpool commented that there could be savings from less waste heat and increased burner efficiency from radiant gas burners, but it would not be economically justifiable. (Whirlpool, No. 13 at p. 3) DOE notes that the 2009 TSD indicated that prototype designs using radiant gas burners showed improved efficiency for gas cooking tops. As a result, DOE retained this as a technology option for further consideration. Economic impacts are addressed in the engineering, LCC, and PBP analyses.
DOE notes that sealed burners for conventional gas cooking tops were considered a technology option in the 2009 TSD. However, as discussed in section IV.C.2 of this SNOPR, DOE determined based on its testing that neither sealed nor open burner types clearly performed better or worse than the other. As a result, DOE is not considering sealed burners as a technology option for conventional gas cooking tops for this SNOPR.
DOE is proposing to consider an additional technology option for conventional gas cooking tops based on product testing and reverse engineering analyses conducted for this SNOPR. DOE testing, described in in section IV.C.2 of this SNOPR and chapter 5 of the SNOPR TSD, revealed that gas cooking top efficiency was correlated to burner system design (
Table IV.3 lists the proposed technology options for cooking tops that DOE is considering for this SNOPR.
In the June 2015 NOPR, DOE proposed to consider the technology options listed in Table IV.4. 80 FR 33030, 33046–33047.
In the June 2015 NOPR, DOE stated that it was considering an additional technology option for optimizing the burner and cavity design for gas ovens based on product testing and reverse engineering analyses. DOE's testing indicated that reducing the thermal mass of the oven cavity can increase cooking efficiency. Because oven cavity and burner design are interdependent, DOE proposed to consider optimized burner and cavity design as a technology option for increasing efficiency for gas ovens consistent with products available on the market rather than the reduced thermal mass technology option considered for the previous rulemaking. 80 FR 33030, 33047.
AHAM commented that the market already incentivizes manufacturers to reduce the gauge of the metals they use to the extent practical, and that products that just meet the proposed standard level are already doing this t. AHAM stated that there is only so far a manufacturer can reduce gauge and retain consumer utility, product functionality and performance, and safety. (AHAM, No. 29 at p. 8) Electrolux similarly disagreed with the DOE position that optimizing the oven cavity, by reducing the gauge of steel (and thus thermal mass) used in manufacturing the oven cavity, is a viable means for reducing energy consumption. Electrolux stated that it has already reduced the thermal mass of the oven cavity in its products and there is no more efficiency that can be safely gained by reducing the gauge of steel any further. (Electrolux, No. 27 at p. 4)
As part of DOE's reverse-engineering analyses, described in section IV.C of this SNOPR and chapter 5 of the SNOPR TSD, DOE observed that the commercial-style ovens in its test sample had wall thicknesses approximately 1.5 times greater than those of residential-style ovens. Additionally, DOE observed that these products had heavier rack weights. DOE's testing showed that by optimizing the burner/cavity design, IAEC could be reduced by approximately 22 percent, depending on the oven cavity volume. DOE also notes that, as discussed in section IV.A.2.b of this SNOPR, ANSI Z21.1 and UL 858 include requirements for the oven structure and racks to be able to support loads with a certain weight range, depending on the width of the rack. For these reasons, DOE maintained the optimized burner/cavity design as a technology option.
DOE's analysis revealed that conventional ovens at the baseline efficiency level use a conventional linear power supply control design. A linear power supply typically produces unregulated as well as regulated power. The main characteristic of an unregulated power supply is that its output may contain significant voltage ripple and that the output voltage will usually vary with the current drawn. The voltages produced by regulated power supplies are typically more stable, exhibiting less ripple than the output from an unregulated power supply and maintaining a relatively constant voltage within the specified current limits of the device(s) regulating the power. The unregulated portion of a linear power supply typically consists of a transformer that steps alternating current (AC) line voltage down, a voltage rectifier circuit for AC to direct current (DC) conversion, and a capacitor to produce unregulated, direct current output. However, there are many means of producing and implementing an
Within a linear power supply, the unregulated output serves as an input into a single or multiple voltage-regulating devices. Such regulating devices include Zener diodes, linear voltage regulators, or similar components which produce a lower-potential, regulated power output from a higher-potential direct current input. This approach results in a rugged power supply which is reliable, but typically has an efficiency of about 40 percent. As discussed in section IV.C.3.b of this SNOPR, DOE's analysis showed that switching from a conventional linear power supply to an SMPS reduces the standby mode energy consumption for conventional ovens. An SMPS offer higher conversion efficiencies of up to 75 percent in appliance applications for power supply sizes similar to those of conventional ovens. An SMPS also reduces the no-load standby losses.
AHRI commented that DOE's discussion of the electronic spark ignition design option and the proposed standard levels in the June 2015 NOPR strongly suggest a practical effect of eliminating glo-bar ignition systems. AHRI commented that the typical glo-bar ignition systems currently used in gas ovens remain energized during the entire time that the main burner is on. AHRI noted that this is directly related to a key safety feature of these ignition systems—that the electric current sufficient to open the gas valve cannot pass through the igniter until the igniter has attained a temperature that will ignite the gas at the burner. According to AHRI, DOE's analysis is technically inaccurate and the major reduction in the electrical consumption of the ignition systems is not due to replacing the glo-bar with a spark igniter, but instead to changing the ignition system to an “interrupted” type of system. AHRI noted that the North American safety standard for automatic gas ignition systems specifies that an intermittent/interrupted ignition system is energized prior to the admission of fuel to the main burner and is de-energized when the main burner flame is established. AHRI stated that this is the proper technical description of the technology option that was analyzed. (AHRI, No. 34 at p. 1)
AHRI also commented that it understands that the proposed maximum energy use standards for gas ovens in the June 2015 NOPR do not require the use of an electronic spark ignition system, but that if this understanding is not correct, then DOE would be proposing a prescriptive design requirement within a rule that is intended to be a performance standard. (AHRI, No. 34 at p. 2)
DOE acknowledges that by describing the gas ignition system technology option analyzed in the June 2015 NOPR as electronic spark ignition, DOE could potentially preclude certain ignition types from consideration that may result in reduced energy consumption. As a result, DOE conducted a review of ignition systems available on the market as well as various industry definitions for automatic gas ignition available in household gas appliances. DOE based its analysis on existing industry terminology such as definitions available in ANSI Z21.1 and ANSI Z21.20, “Automatic Electrical Controls for Household and Similar Use Part 2: Particular Requirements for Automatic Burner Ignition Systems and Components.”
When a conventional gas oven cooking cycle is initiated, an ignition system is energized before gas is allowed to flow to the main burner to be lit. Ignition types observed on the market for conventional gas ovens fall under four categories: (1) Continuous (
Continuous ignition systems are a type of ignition that, once placed in operation, are intended to remain ignited or energized continuously until manually interrupted. Thus, they would remain energized throughout, and outside of, a cooking cycle. Constant burning pilot igniters are considered continuous ignition systems. As noted in section II.B.1 of this SNOPR, in the April 2009 Final Rule, DOE prescribed the current energy conservation standards for conventional cooking products to prohibit constant burning pilots for all gas cooking products.
For intermittent ignition systems, the ignition source is ignited or energized when the appliance controls call for heat. The ignition source remains continuously ignited or energized during each period of main burner operation and is extinguished or de-energized when each main burner operating cycle is completed. DOE's analysis determined that baseline conventional gas ovens are equipped with an intermittent ignition system that uses a glo-bar igniter (also referred to as a hot surface igniter). For these ignition systems, when the thermostat is set to a specific temperature and the oven controls call for heat, line voltage is applied to the igniter. As the glo-bar heats and increases in temperature, the current draw decreases. A safety valve is installed in series with the igniter such that the valve allows gas flow to the main burner only when the current draw of the glo-bar falls below a certain point, which corresponds to a temperature capable of igniting the gas at the burner. Because the safety valve remains open only when the glo-bar igniter is drawing the correct current, the igniter must continually draw power to keep the burner ignited. Based on DOE's testing, glo-bar ignition systems consume between 300 W and 450 W when energized.
For intermittent/interrupted ignition systems, the ignition source is ignited or energized each time the appliance controls call for heat. However, the ignition source is extinguished or de-energized after the main burner flame is ignited. DOE notes that some conventional ovens on the market use a direct electronic spark ignition, which is a type of intermittent/interrupted ignition system. When the direct electronic spark igniter receives a signal from the controls (either by a rotary-actuated control dial or from an electronic control system), the spark electrode sparks to ignite the main burner directly. The spark igniter is de-energized once ignition of the main burner is complete. DOE is also aware of a ceramic glo-bar igniter designed to be used in an intermittent/interrupted ignition system, which is energized when there is a call for heat and de-energized once the main burner flame has been ignited.
For intermittent pilot ignition systems, upon a call for the burner to ignite, a spark module lights a pilot flame, which in turn ignites the main burner. In the systems reviewed by DOE, DOE observed that when the main burner shuts off, the pilot also shuts off. DOE welcomes comment that would confirm the operation sequence of intermittent pilot ignition systems used in conventional gas oven applications. DOE notes that battery-power ignition systems would be considered an intermittent pilot ignition system and already exist in conventional gas ovens available on the market. DOE further notes that a similar electronic spark ignition system that uses line power and that ignites a pilot flame would also be considered an intermittent pilot ignition system.
As discussed in section IV.C.3.b of this SNOPR, DOE's testing conducted for the June 2015 NOPR showed that intermittent pilot ignition systems (
As discussed in section I and section III.B of this SNOPR, DOE is proposing to adopt a prescriptive standard for the control system of conventional gas ovens to require the use an intermittent/interrupted ignition or intermittent pilot ignition. As a result, DOE is proposing to define intermittent/interrupted ignition and intermittent pilot ignition in 10 CFR 430.2. DOE would define intermittent/interrupted ignition to be an ignition source which is ignited or energized upon initiation of each main burner operational cycle and which is extinguished or no longer energized after the main burner is ignited. DOE would define intermittent pilot ignition to be an ignition source which, upon initiation of each main burner operational cycle, ignites a pilot that remains lit continuously during the main burner operational cycle and is extinguished when the main burner operational cycle is completed. DOE seeks comment on the use of these terms as descriptors for the ignition systems capable of reducing the energy consumption of conventional gas ovens.
In the June 2015 NOPR, DOE proposed to consider reducing the vent rate as a technology option for standard-clean electric ovens. 80 FR 33030, 33047. Electrolux stated that the technology option of providing for a reduced vent rate is not practical and cannot be used to increase the energy efficiency of conventional ovens because venting of the oven cavity during the cooking operation is necessary for the optimum cooking performance of the oven. (Electrolux, No. 27 at p. 5)
DOE recognizes that some electric standard ovens may already have a reduced vent rate. However, this may not be the case for all electric standard ovens on the market. For example, DOE's test sample included standard and self-clean versions of the same basic model of electric oven, and during the reverse engineering analysis described in section IV.C.2 of this SNOPR, DOE observed that both units had the same design, construction, and fan-only mode energy consumption, indicating that their vent rate was identical. This indicates that a reduced vent rate could be considered for the standard version of this model. Additionally, in the previous rulemaking, manufacturers themselves confirmed that vent rate could be reduced for electric standard ovens. Thus, DOE continues to include this design option as part of its analysis but requests comment on whether a reduced vent rate could be used to increase the energy efficiency of conventional electric standard ovens.
In the June 2015 NOPR, DOE proposed to consider improved insulation as a technology option for standard-clean ovens. 80 FR 33030, 33047. AHAM and Electrolux commented that DOE has not clearly defined high density insulation. AHAM added that, as a result, they cannot comment on the whether this technology is already in use in standard-clean ovens. (AHAM, No. 29 at p. 8; Electrolux, No. 27 at pp. 4–5) As noted in chapter 5 of the NOPR TSD, DOE considers the improved insulation technology option to consist of switching from the low-density (~1.09 pounds (lb)/ft
DOE uses the following four screening criteria to determine which technology options are suitable for further consideration in an energy conservation standards rulemaking:
1.
2.
3.
4.
10 CFR part 430, subpart C, appendix A, 4(a)(4) and 5(b).
In sum, if DOE determines that a technology, or a combination of technologies, fails to meet one or more of the above four criteria, it will be excluded from further consideration in the engineering analysis. The reasons for eliminating any technology are discussed below.
The subsequent sections include comments from interested parties pertinent to the screening criteria, DOE's evaluation of each technology option against the screening analysis criteria, and whether DOE determined that a technology option should be excluded (“screened out”) based on the screening criteria.
For conventional cooking tops, DOE screened out radiant gas burners, catalytic burners, reduced excess air at burner, and reflective surfaces for the reasons that follow.
In the previous rulemaking, manufacturers concluded that infrared jet-impingement radiant gas burners would not be able to comply with the ANSI Standard Z21.1–2005, “Household Cooking Gas Appliances.” Field testing had shown that users were unable to turn down the burner satisfactorily, which indicated a potential health and safety risk. 72 FR 64432, 64455 (Nov. 15, 2007). No more recent designs of radiant gas burners for residential cooking tops have resolved this issue, and therefore, due to potential impacts on consumer health and safety, DOE screened out radiant gas burners from further analysis.
In response to the February 2014 RFI, Whirlpool commented that catalytic burners are not applicable to today's market for gas cooking tops. Whirlpool stated that these seem to be more applicable to industrial furnaces than residential gas cooking top burners. (Whirlpool, No. 13 at p. 3) In the absence of any commercialized catalytic burners for residential gas cooking tops, DOE asserts that it would not be practicable to manufacture, install and service this technology on the scale necessary to serve the relevant market at the time of the effective date of an amended standard. Also, because this technology is in the research stage, it is
Whirlpool commented that reduced excess air at burner does not seem to be applicable to residential gas cooking tops, as excess air is needed for clean, safe, and complete combustion. (Whirlpool, No. 13 at p. 3) Reduced excess air at the burner has not been definitively shown to increase efficiency. In addition, DOE cannot assess adverse impacts on consumers' utility, health, or safety or equipment availability for this technology. Reducing excess air at the burner increases the possibility of adverse conditions such as poor flame quality and elevated carbon monoxide levels, which would suggest adverse impacts on consumers' utility, health, and safety. For these reasons, DOE screened out reduced excess air at the burner from further analysis.
Reflective surfaces for gas cooking tops utilize highly polished or chromed drip pans underneath the burner. The primary mechanism for heat transfer to the cooking vessel for gas cooking tops is convection. As a result, the efficiency gains resulting from using reflective pans are extremely small because gas flames and burners have minimal infrared emissions. Based on data provided by manufacturers through AHAM, DOE estimated in the 2009 TSD that an efficiency increase of only 0.1 percent was possible. Also, as reported in the 1996 TSD,
For conventional ovens, in the June 2015 NOPR, DOE screened out added insulation, bi-radiant oven, halogen lamp oven, no oven door window, and reflective surfaces. 80 FR 33030, 33047–33048.
DOE did not receive any comments opposing the technology options screened out in the June 2015 NOPR. For the same reasons discussed in the June 2015 NOPR, DOE is continuing to screen out added insulation, bi-radiant oven, halogen lamp oven, no oven door window, and reflective surfaces from further analysis.
Additionally, as discussed in section IV.A.3.b of this SNOPR, the optimized burner and cavity design technology option would require changes to commercial-style ovens that include reducing the thermal mass of the oven cavity. DOE recognizes that an energy conservation standard that requires this technology option may result in the unavailability of a certain product type,
Based on the screening analysis, DOE considered the design options listed in Table IV.5 for conventional cooking tops and Table IV.6 for conventional ovens.
The engineering analysis estimates the cost-efficiency relationship of products at different levels of increased energy efficiency. This relationship serves as the basis for the cost-benefit calculations for consumers, manufacturers, and the Nation. In determining the cost-efficiency relationship, DOE estimates the increase in manufacturer cost associated with increasing the efficiency of products from the baseline up to the maximum technologically feasible (“max-tech”) efficiency level for each product class.
DOE typically structures the engineering analysis using one of three approaches: (1) The design-option approach, which provides the incremental costs of adding design options to a baseline model that will improve its efficiency (
To determine the cost-efficiency relationship, DOE structured its engineering analysis for this SNOPR using a design-option approach, supplemented by reverse engineering (physical teardowns and testing of existing products in the market) to identify the incremental cost and efficiency improvement associated with each design option or design option combination. In addition, DOE considered cost-efficiency data from the 2009 TSD. DOE also conducted interviews with manufacturers of conventional cooking products to develop a deeper understanding of the various combinations of design options used to increase product efficiency, and their associated manufacturing costs.
To develop the cost-efficiency relationships for the engineering analysis, DOE conducted testing and reverse engineering teardowns on products available on the market. Because there are no performance-based energy conservation standards or energy reporting requirements for conventional cooking products, DOE selected test units based on performance-related features and technologies advertised in product literature.
For conventional cooking tops, DOE's test sample included four gas cooking tops, eight gas ranges, six electric cooking tops, and two electric ranges for a total of 20 conventional cooking tops
DOE first conducted testing on each cooking top in its test sample. DOE then conducted physical teardowns on each test unit to develop a manufacturing cost model and to evaluate key design features. DOE supplemented its reverse engineering analyses by conducting manufacturer interviews to obtain feedback on efficiency levels, design options, inputs for the manufacturing cost model, and resulting manufacturing costs. DOE used the results from testing, reverse engineering, and manufacturer interviews to develop the efficiency levels and manufacturing costs discussed in section IV.C.3 and section IV.C.4 of this SNOPR.
Table IV.7 and Table IV.8 present the testing results for the conventional gas and electric cooking tops, respectively. Residential conventional ranges include both a cooking top and oven but each component is tested individually and falls into a separate product class. Thus, DOE separated the range components for its analysis and each of the units in the following tables represent a cooking top that may be either a standalone unit or a component of a range.
As
A baseline unit is a product that just meets current Federal energy conservation standards. DOE uses the baseline unit for comparison in several phases of the SNOPR analyses, including the engineering analysis, LCC analysis, PBP analysis, and NIA. To determine energy savings that will result from an amended energy conservation standard, DOE compares energy use at each of the higher energy efficiency levels to the energy consumption of the baseline unit. Similarly, to determine the changes in price to the consumer that will result from an amended energy conservation standard, DOE compares the price of a unit at each higher efficiency level to the price of a unit at the baseline.
As part of the February 2014 RFI, DOE initially developed baseline efficiency levels by considering the current standards for conventional gas cooking tops and the baseline efficiency levels for conventional electric cooking tops from the previous standards rulemaking analysis. DOE developed tentative baseline efficiency levels for the February 2014 RFI using the former test block-based test procedure and the proposed test procedure amendments in the January 2013 TP NOPR that included modifications to the test block to allow for the test of induction cooking tops. The baseline efficiency levels proposed in the February 2014 RFI are presented in Table IV.11. 79 FR 8337, 8343 (Feb. 12, 2014). DOE developed baseline efficiency levels for standby mode and off mode based on test data presented in the microwave oven test procedure SNOPR.
As discussed in III.C, DOE recently published the August 2016 TP SNOPR proposing to amend the cooking tops test procedure in Appendix I to be based on the water heating test method. DOE developed baseline efficiency levels for this SNOPR considering both data from the previous standards rulemaking and the energy use for the test units based
The baseline efficiency levels for this SNOPR differ from those presented in the 2014 RFI for each product class. This is primarily due to the difference between the withdrawn hybrid test block method and the adopted water-heating test methods, and the differences in the calculation of annual energy consumption. As outlined in section III.C of this SNOPR, in the August 2016 TP SNOPR, DOE proposed to adjust its calculation of annual energy consumption for cooking tops to account for changes in consumer cooking frequency and differences between actual field usage of the cooking top and the DOE test method. 81 FR 57374, 57387–57388. As a result, the IAEC for each cooking top included in DOE's test sample, as calculated using the methods adopted in the August 2016 TP SNOPR, is lower than the baseline IAEC values established in the 2009 cooking products energy conservation standards rulemaking as well as those presented in the 2014 RFI for each product class. However, after scaling the baseline values from the 2014 RFI to reflect the updated IAEC calculation method, the highest measured IAEC in DOE's test sample for this SNOPR was higher than the baseline IAEC observed during the 2009 rulemaking for each cooking top product class, suggesting that the baseline energy consumption of cooking tops has increased since 2009. Thus, to establish the new baseline IAEC for cooking tops, DOE set the baseline IAEC equal to the maximum IAEC measured in the test sample for each product class.
Because baseline electric coil cooking tops and gas cooking tops have only electromechanical controls, the baseline IAEC for these product classes is calculated based on zero standby mode and off mode energy consumption. In contrast, baseline electric cooking tops with smooth elements have electronic controls which consume energy in standby and off mode. To determine the baseline IAEC for smooth element electric cooking tops, DOE set baseline standby energy consumption equal to that of the cooking top with the highest standby energy consumption in its test sample to maintain the full functionality of controls for consumer utility.
The proposed baseline efficiency levels for conventional cooking tops for this SNOPR are presented in Table IV.12. Additional details on the development of the proposed baseline efficiency levels for conventional cooking tops are included in chapter 5 of the SNOPR TSD. The baseline efficiency levels were based on testing of DOE's sample of products, as presented in section IV.C.2. DOE recognizes that manufacturers implement different heating element or burner designs and welcomes additional data regarding the proposed baseline efficiency levels.
For the June 2015 NOPR, DOE developed baseline efficiency levels for conventional ovens considering both data from the previous standards rulemaking and the measured energy use for the test units. DOE conducted testing for all units in its test sample to measure IAEC, which includes energy use in active mode (including fan-only mode) and standby mode. DOE also requested energy use data as part of the manufacturer interviews. However, because manufacturers are not currently required to conduct testing according to the DOE test procedure, DOE noted that very little energy use information was available. 80 FR 33030, 33050.
To establish the baseline efficiency levels for conventional ovens, first DOE derived a relationship between IAEC and cavity volume as discussed in section IV.C.3.c of this SNOPR. Using the slope from the previous rulemaking, DOE selected new intercepts corresponding to the ovens in its test sample with the lowest efficiency, so that no ovens in the test sample were cut off by the baseline curve. DOE then set baseline standby energy consumption for conventional ovens equal to that of the oven (including the oven component of a range) with the highest standby energy consumption in DOE's test sample to maintain the full functionality of controls for consumer utility. While only DOE test data was available to validate the baseline equation for gas ovens, DOE compared the new baseline equation for electric ovens with data available in the Natural Resources Canada (NRCan) databases, which showed that DOE's assumptions for slopes and intercepts reasonably represented the market.
DOE developed separate baseline efficiency levels for each proposed product class based on testing conducted for the June 2015 NOPR. The proposed baseline efficiency levels for the NOPR are presented in Table IV.13 and are based on an oven with a cavity volume of 4.3 ft
As noted in section III.H of this SNOPR, AHAM, Whirlpool, and Electrolux expressed concern that DOE has based its analysis on an insufficient sample size of models, in particular for the electric standard oven baseline efficiency levels. (AHAM, No. 29 at p. 5; AHAM, No. 38 at pp. 2–3; Whirlpool, No. 33 at p. 5; Electrolux, No. 27 at pp. 3–4)
To address concerns regarding the limited data used to establish the baseline efficiency levels for the electric standard oven product classes, DOE augmented its analysis of electric standard ovens by considering the energy use of the electric self-clean units in its test sample, adjusted to account for the differences between standard-clean and self-clean ovens. For these electric self-clean ovens, DOE first subtracted the annual self-cleaning energy consumption and adjusted the cycles per year
Augmenting the electric standard oven dataset with self-clean models from the DOE test sample allowed DOE to consider a wider range of cavity volumes in its analysis. Based on this analysis, DOE adjusted the baseline IAEC versus cavity volume relationship for electric standard ovens so that no models in DOE's dataset, including those in the augmented sample, were cut off by the baseline curve.
The proposed baseline efficiency levels for this SNOPR are presented in Table IV.14 and are based on an oven with a cavity volume of 4.3 ft
For each product class for both conventional cooking tops and conventional ovens, DOE analyzes several efficiency levels and determines the incremental cost at each of these levels.
For the February 2014 RFI, DOE tentatively proposed the incremental efficiency levels for conventional cooking tops presented in Table IV.15 through Table IV.17. DOE developed these levels based primarily on the efficiency levels presented in the 2009 TSD, adjusted using the former test block-based test procedure and the proposed test procedure amendments in the January 2013 TP NOPR that included modifications to the test block to allow for the test of induction cooking tops. DOE also considered separate efficiency levels associated with reducing standby mode and off mode energy use by first changing conventional linear power supplies to SMPS and then by meeting the 1 W maximum standby power limit set forth in the Commission of the European Communities Regulation 1275/2008 (hereinafter “Ecodesign regulation”). 79 FR 8337, 8345–8346 (Feb. 12, 2014).
In response to the February 2014 RFI, AHAM disagreed with DOE's consideration of the 1–W Ecodesign regulation standby power requirement because products sold in the European Union are different from the products sold in the United States. (AHAM, No. 9 at p. 6) As discussed below, DOE reevaluated the efficiency levels associated with standby power improvements based on product testing and reverse engineering. As a result, DOE is no longer considering an efficiency level specifically associated with the 1–W Ecodesign regulation standby power requirement.
Laclede commented that induction cooking tops save a significant amount of energy and meet the criteria of technologically feasible and economically justified based upon their widespread commercial availability. Consequently, Laclede urged DOE to use electric induction cooking top efficiencies to set the minimum efficiencies of electric cooking tops. (Laclede, No. 8 at pp. 4, 5) DOE included an efficiency level associated with this technology based on product testing. As discussed in section II.A of
Whirlpool commented that sealed burners already comprise a majority of the market (<90 percent), so this technology is not appropriate as a max-tech level for gas cooking tops. Whirlpool commented that it is unaware of any technologies or efficiency levels for max-tech for gas cooking tops. (Whirlpool, No. 13 at p. 6) Based on DOE's testing of both sealed and open burners, presented in section IV.C.2 of this SNOPR, DOE noted that neither burner type clearly performed better or worse than the other. As a result, DOE did not consider an efficiency level associated with sealed burners for conventional gas cooking tops.
For this SNOPR, DOE developed incremental efficiency levels for each cooking top product class by first considering information from the 2009 TSD. In cases where DOE identified design options during testing and reverse engineering teardowns, DOE updated the efficiency levels based on the tested data. In addition to the efficiency levels associated with design options identified in the February 2014 RFI, DOE identified an additional efficiency level for smooth element electric cooking tops associated with low-standby-loss controls for an automatic power-down function that shuts off certain power-consuming components after a specified period of user inactivity that was observed during testing and teardowns.
DOE also considered additional efficiency levels associated with optimized burner and grate design for conventional gas cooking tops. DOE's testing, as presented in sections IV.A.2 and IV.C.2 of this SNOPR, showed that energy use was correlated to burner design (
Although, as discussed in section IV.A.2 of this SNOPR, DOE's testing showed that there was no statistically significant correlation between burner input rate and cooking energy consumption of the cooking top, DOE notes that cooking tops that incorporate different combinations of burners, including high input rate burners for larger food loads, have differing capabilities to cook or heat different sized food loads. As a result, DOE is proposing multiple efficiency levels that take into account key burner configurations. DOE is proposing Efficiency Level 1 based on an optimized burner and improved grate design of the unit in the test sample with the lowest measured IAEC among those with cast iron grates and a six surface unit configuration with at least four out of the six surface units having burner input rates exceeding 14,000 Btu/h. DOE selected these criteria to maintain the full functionality of cooking tops marketed as commercial-style. DOE notes that while there are some such products with fewer than six surface units and fewer than four high burner input rate burners, DOE did not observe any products marketed as residential-style with the burner configuration DOE is associating with Efficiency Level 1.
DOE is proposing Efficiency Level 2 for conventional gas cooking tops based on an optimized burner and further improved grate design of the unit in the DOE test sample with the lowest measured IAEC among those units with cast iron grates and at least one surface unit having a burner input rate exceeding 14,000 Btu/h. None of the gas units in the DOE test sample marketed as commercial-style were capable of achieving this efficiency level. The cooking tops in the DOE test sample capable of meeting this efficiency level were marketed as residential-style and had significantly lighter cast-iron grates than the commercial-style units.
DOE established Efficiency Level 3 (max-tech) based on the unit in the DOE test sample with the lowest measured IAEC among those with cast iron grates, regardless of the number of burners or burner input rate. DOE notes that the grate weight for this unit was not lowest in the DOE test sample, confirming that a fully optimized burner and grate design, and not a reduction in grate weight alone, is required to improve cooking top efficiency.
Table IV.18 through Table IV.20 show the incremental efficiency levels for each cooking top product class, including whether the efficiency level is from the 2009 TSD or based on testing for the SNOPR. Details of the derivations of each efficiency level are provided in chapter 5 of the SNOPR TSD. The efficiency levels were based, in part, on testing of DOE's sample of products, as presented in section IV.C.2 of this SNOPR. DOE recognizes that manufacturers implement different heating element or burner designs and welcomes additional test data regarding the proposed efficiency levels.
For the June 2015 NOPR, DOE developed incremental efficiency levels for each conventional oven product class by first considering information from the 2009 TSD. In cases where DOE identified design options during testing and reverse engineering teardowns, DOE updated the efficiency levels based on the tested data. In addition to the efficiency levels associated with design options identified in the 2009 TSD, DOE also included an efficiency level for electric ovens based on a test unit equipped with an oven separator that allowed for reducing the cavity volume that is used for cooking. For conventional gas ovens, DOE's testing showed that energy use was correlated to oven burner and cavity design (
Table IV.21 through Table IV.24 show the incremental efficiency levels presented in the June 2015 for each conventional oven product class, including whether the efficiency level is from the 2009 TSD or based on testing for the NOPR. The efficiency levels are normalized based on an oven with a cavity volume of 4.3 ft
GE commented that DOE's estimate of a 9.71 percent decrease in IAEC when converting from glo-bar to spark ignition is overestimated. GE stated that its data indicate that the actual improvement would be only 60 percent of DOE's estimate. (GE, No. 32 at p. 3) As discussed in chapter 5 of the SNOPR TSD, DOE determined the relative decrease in energy consumption due to electronic spark ignition by comparing two gas ovens of similar design but different ignition systems. DOE notes that this efficiency improvement is also on the same order of magnitude considered in the 2009 rulemaking analysis. Therefore, DOE retains its estimated decrease in IAEC for this technology option in this SNOPR. DOE also notes that, as discussed in section IV.A.3.b of this SNOPR, it has revised the description of this technology option to include intermittent/interrupted ignition systems in addition to intermittent pilot ignition systems, recognizing that other ignition systems are available that reduce the energy of consumption of a gas oven. DOE welcomes any additional data demonstrating the reduction in IAEC resulting from use of intermittent/interrupted ignition or intermittent pilot ignition systems as compared to intermittent glo-bar ignition systems.
AHAM and Electrolux commented that, once DOE establishes an accurate baseline for conventional ovens, as discussed in section IV.C.3.a of this SNOPR, DOE should adjust the proposed efficiency levels to be proportionate to the new baseline efficiency levels. (AHAM, No. 29 at p. 7; Electrolux, No. 27 at p. 4)
As discussed in section IV.C.3.a of this SNOPR, DOE has updated its estimates of the baseline efficiency levels for conventional ovens for this SNOPR. DOE has accordingly updated the incremental efficiency levels relative to the new baseline estimates for each product class. In addition, as discussed in section IV.A.3.b and IV.B.1.b of this SNOPR, DOE revised its description of the design options pertaining to gas ignition systems and screened out the optimized burner and cavity design option from the engineering analysis. Table IV.25 through Table IV.28 present the updated efficiency levels for each product class, normalized based on an oven with a cavity volume of 4.3 ft
Implicit in the design option descriptor for Efficiency Level 1 for each conventional oven product class is that an SMPS replaces any linear power supply in the control system. DOE notes that conventional ovens equipped with electromechanical control systems have neither a linear power supply nor an SMPS, but do not consume energy in standby mode. As a result, DOE is not proposing a prescriptive design standard to require SMPS and is instead proposing to exclude linear power supplies for all conventional ovens.
The conventional oven efficiency levels detailed above are predicated upon baseline ovens with a cavity volume of 4.3 ft
For the June 2015 NOPR, DOE established the slopes by first evaluating the data from the 2009 TSD, which presented the relationship between measured energy factor (EF) and cavity volume, then translated from EF to IAEC considering the range of cavity volume for the majority of products available on the market. DOE suggested in the June 2015 NOPR that these slopes continue to be relevant based on DOE's testing. 80 FR 33030, 33053 (June 10, 2015). For electric ovens, DOE considered the data for standard and self-clean ovens available in the Natural Resources Canada product databases.
As part of the analyses conducted for this SNOPR, DOE reviewed the slopes for electric ovens derived for the 2009 rulemaking analysis. Both electric standard and self-clean ovens but a different baseline y-intercept. As noted in the SNOPR TSD, due to the conversion from EF to IAEC, the relationship between IAEC and cavity volume developed for the June 2015 NOPR analysis, using the 2009 slope, was not linear. Thus, for this SNOPR, DOE performed a linear curve fit on the IAEC evaluated at discrete cavity volumes that were considered to represent the range of cavity volumes available on the market. This resulted in different slopes for the electric standard and self-clean oven product classes. After expanding the dataset used to establish baseline energy consumption for electric standard ovens, as described in section IV.C.3.a of this SNOPR, to include a wider range of cavity volumes, DOE modified the slope for the electric oven product classes so that it was representative of the augmented dataset.
Table IV.31 and Table IV.32 present the updated results. IAEC versus cavity volume relationship for each product class. DOE also notes that for gas ovens, the slope and y-intercepts have changed slightly from the values presented in June 2015 NOPR. This is related to a minor technical error in IAEC calculation specified in the test procedure. The conventional oven test procedure adopted in the July 2015 TP Final Rule calculates the annual secondary energy consumption for gas ovens (
Based on the analyses discussed above, DOE developed the cost-efficiency results for each conventional cooking top product class shown in Table IV.33. Where available, DOE developed incremental manufacturing production costs (MPCs) based on manufacturing cost modeling of test units in its sample featuring the proposed design options. For design options that were not observed in DOE's sample of test units for this SNOPR, DOE used the incremental manufacturing costs developed as part of the 2009 TSD, then adjusted the values to reflect changes in the Bureau of Labor Statistics' Producer Price Index (PPI) for household cooking appliance manufacturing.
For the June 2015 NOPR, DOE developed the cost-efficiency results for each conventional oven product class shown in Table IV.34. DOE noted that the estimated incremental MPCs would be equivalent for the freestanding and built-in/slide-in oven product classes. 80 FR 33030, 33053–33054.
AHAM disagreed with DOE's conclusion that the optimized burner/cavity design option has a zero-cost. AHAM stated that for manufacturers that have not reduced the gauge of the metals, this change would require a retooling cost for reducing the gauge. (AHAM, No. 29 at p. 8) As discussed in section IV.B.1.b of this SNOPR, DOE screened out the optimized burner and cavity design option from the engineering analysis. As a result, DOE removed this efficiency level from the analysis for this SNOPR. The cost-efficiency results for each conventional oven product class are shown in Table IV.35.
In determining whether a standard is economically justified, EPCA requires DOE to consider “any lessening of the utility or the performance of the covered products likely to result from the imposition of the standard.” (42 U.S.C. 6295(o)(2)(B)(i)(IV))
In response to the February 2014 RFI, AHAM and Whirlpool commented that new energy conservation standards could likely impact the utility of conventional cooking tops in the following ways:
• A standard could lower burner input rates, which will impact cooking times. Higher burner input rates allow for quicker cooking time, which is an important consumer utility;
• A standard could require changes to grate materials. Heavy duty grates, such as cast iron grates, hold larger cooking vessels and provide for better pot stability. Thus, a change to less sturdy grates would impact consumer utility;
• A standard could also result in the removal of accent lighting and large displays which are preferred consumer features. There is reduced consumer utility from further reducing standby power from what products use today. According to Whirlpool, the market is still pushing manufacturers to add more advanced electronics that use more standby power. (AHAM, No. 9 at p. 7; Whirlpool, No. 13 at pp. 5, 8).
Accordingly, AHAM and Whirlpool opposed amendment of the existing standards for cooking products. AHAM and Whirlpool stated that not only would amended standards fail to be technologically feasible or economically justified, but they would also impact the utility of cooking products. (AHAM, No. 9 at p. 7; Whirlpool, No. 13 at p. 8)
DOE conducted the engineering analysis by considering cooking top design options that are consistent with products currently on the market, and as a result, DOE did not consider changes that would result in removal of accent lighting and display features. For gas cooking tops, DOE considered efficiency levels associated with optimizing the burner and grates, but selected efficiency levels based on products tested with cast iron grates to maintain ability to provide stability for pots containing larger loads. As discussed in section V.B.8 of this SNOPR, the energy conservation standards for gas cooking tops proposed in this SNOPR correspond to the efficiency level that maintains features of gas cooking tops marketed as commercial-style, namely multiple high input rate burners (
In the June 2015 NOPR, DOE noted that it conducted the engineering analysis by considering design options that are consistent with products currently on the market and that it did not believe that any of the design options and efficiency levels considered would impact the consumer utility of conventional ovens. 80 FR 33030, 33054.
DOE also noted that gas ovens with higher burner input rates did not have significantly faster cooking times when tested according to the test procedure adopted in the July 2015 TP Final Rule. This is likely due in large part to the fact that gas ovens with higher burner input rates marketed as commercial-style often have significantly larger thermal masses, which absorb a significant amount of additional heat. 80 FR 33030, 33054.
Sub-Zero commented in response to the June 2015 NOPR for conventional ovens in which DOE did not consider a separate product class for commercial-style products, that manufacturers of commercial-style ovens differentiate their product offerings based on features such as heavier gauge materials and higher input rate burners. According to Sub-Zero, these manufacturers may be forced to exit the market if a standard were to require that they produce gas ovens that can no longer meet customer expectations. (Sub-Zero, No. 25 at p. 7)
As discussed in section IV.A.2.b of this SNOPR, DOE was not able to identify a clearly-defined utility provided to consumers by commercial-style ovens and, as a result, DOE did not establish separate product classes for these products. However, DOE recognizes that commercial-style ovens are a product type that typically incorporate certain features that may be expected by purchasers of such products (
The markups analysis develops appropriate markups in the distribution chain to convert the MPC estimates derived in the engineering analysis to consumer prices. At each step in the distribution channel, companies mark up the price of the product to cover business costs and profit margin. For conventional cooking products, the main parties in the distribution chain are manufacturers and retailers.
Thus, DOE analyzed a manufacturer-to-consumer distribution channel consisting of three parties: (1) The manufacturers of the products; (2) the retailers purchasing the products from manufacturers and selling them to consumers; and (3) the consumers who purchase the products.
The manufacturer markup converts MPC to manufacturer selling price (MSP). DOE developed an average manufacturer markup by examining the annual Securities and Exchange Commission (SEC) 10–K reports filed by publicly traded manufacturers primarily engaged in appliance manufacturing and whose combined product range includes conventional cooking products.
For retailers, DOE developed separate markups for baseline products (baseline markups) and for the incremental cost of more efficient products (incremental markups). Incremental markups are coefficients that relate the change in the MSP of higher-efficiency models to the change in the retailer sales price. DOE relied on economic data from the U.S. Census Bureau to estimate average baseline and incremental markups.
AHAM criticized DOE's reliance on the concept of incremental markups, stating that its theory has been disproved and it is in contradiction to empirical evidence. (AHAM, No. 29 at p. 9) In an attachment to AHAM's comment, Shorey Consulting, Inc. (Shorey Consulting) stated that (1) DOE requires a strong form of economic theory, since it is saying that something will happen solely because theory says it should; and (2) an a priori resort to economic theory without clear empirical support is highly problematic. Shorey Consulting interviewed a sample of local/regional and national appliance retailers and reported that, with very few exceptions, they reacted to the DOE concept that percentage margins will be lower in a post-standards situation with incredulity. It concluded that DOE needs to abandon the incremental margin approach and revert to the average margin approach that corresponds to actual industry practice. (AHAM, No. 29 at pp. A–10–A–11)
DOE disagrees that the theory behind the concept of incremental markups has been disproved. The concept is based on a simple notion: An increase in profitability, which is implied by keeping a fixed markup when the product price goes up, is not likely to be viable over time in a business that is reasonably competitive. DOE agrees that empirical data on markup practices would be desirable, but such information is closely held and difficult to obtain.
Regarding the interviews with appliance retailers, it is difficult for DOE to evaluate the characterization of the responses without knowing what questions were posed to the retailers. DOE's analysis necessarily considers a very simplified version of the world of appliance retailing: Namely, a situation in which nothing changes except for those changes in appliance offerings that occur in response to amended standards. DOE implicitly asks: Assuming the product cost increases while the other costs remain constant (no change in labor, material and operating costs), are retailers still able to keep the same markup over time as before? DOE recognizes that retailers are likely to seek to maintain the same markup on appliances if the price they pay goes up as a result of appliance standards, but it believes that over time adjustment is likely to occur due to competitive pressures. Other retailers may find that they can gain sales by reducing the markup and maintaining the same per-unit operating profit. The incremental markup approach reflects a similar perspective as the “preservation of per-unit operating profit markup scenario” used in the MIA (see section IV.J of this document).
In summary, DOE acknowledges that its approach to estimating retailer markup practices after amended standards take effect is an approximation of real-world practices that are both complex and varying with business conditions. However, DOE maintains that its assumption that standards do not facilitate a sustainable increase in profitability is reasonable. DOE welcomes information that could support improvement in its methodology.
Chapter 6 of the SNOPR TSD provides details on DOE's development of markups for conventional cooking products.
The energy use analysis provides estimates of the annual energy consumption of cooking tops and ovens at the considered efficiency levels. DOE uses these values in the LCC and PBP analyses and in the NIA to establish the savings in consumer operating costs at various product efficiency levels. DOE developed energy consumption estimates for all product classes analyzed in the engineering analysis. DOE's energy use analysis estimated the range of energy use of cooking products in the field,
For this SNOPR, DOE used the 2009 California Residential Appliance Saturation Survey (RASS)
Energy use by residential cooking products varies greatly based on consumer usage patterns. DOE established a range of energy use from data in the Energy Information Administration (EIA)'s 2009
From RECS 2009, DOE developed household samples for each product class. For each household using a conventional cooking product, RECS provides data on the frequency of use and number of meals cooked in the following bins: (1) Less than once per week, (2) once per week, (3) a few times per week, (4) once per day, (5) two times per day, and (6) three or more times per day. DOE utilized the frequency of use to define the variability of the annual energy consumption. First, DOE assumed that the weighted-average cooking frequency from RECS represents the average energy use values based on the California RASS and FSEC studies. DOE then varied the annual energy consumption across the RECS households based on their reported cooking frequency relative to the weighted-average cooking frequency.
Chapter 7 of the SNOPR TSD describes the energy use analysis in detail.
The purpose of the LCC and PBP analysis is to evaluate the economic impacts of potential energy conservation standards for cooking products on individual consumers. The LCC is the total consumer expense over the life of the product, including purchase and installation expense and operating costs (energy expenditures, repair costs, and maintenance costs). The PBP is the number of years it would take for the consumer to recover the increased costs of purchasing a higher efficiency product through energy savings. To calculate LCC, DOE discounted future operating costs to the time of purchase and summed them over the lifetime of the product.
For any given efficiency level, DOE measures the change in LCC relative to an estimate of the base-case product efficiency distribution. The base-case estimate reflects the market in the absence of new or amended energy conservation standards, including the market for products that exceed the current energy conservation standards. In contrast, the PBP is measured relative to the baseline product.
DOE calculated the LCC and payback periods for conventional cooking tops and ovens for a nationally representative set of housing units selected from RECS 2009. By using a representative sample of households, the analysis captured the variability in energy consumption and energy prices associated with cooking product use.
For each sample household, DOE determined the energy consumption for the cooking product and the appropriate energy price. DOE first calculated the LCC associated with a baseline cooking product for each household. To calculate the LCC savings and PBP associated with products meeting higher efficiency standards, DOE substituted the baseline unit with more efficient designs.
As part of the LCC and PBP analyses, DOE developed data that it used to establish product prices, installation costs, annual household energy consumption, energy prices, maintenance and repair costs, product lifetime, and discount rates. Inputs to the LCC and PBP analysis are categorized as: (1) Inputs for establishing the total installed cost and (2) inputs for calculating the operating costs. DOE models the uncertainty and the variability in the inputs to the LCC and PBP analysis using Monte Carlo simulations and probability distributions.
The following sections contain comments on the inputs and key assumptions of DOE's LCC and PBP analysis and explain how DOE took these comments into consideration. Chapter 8 of the TSD accompanying this SNOPR contains detailed discussion of the methodology and data utilized for the LCC and PBP analysis.
To calculate the prices faced by cooking products purchasers, DOE multiplied the manufacturing costs developed from the engineering analysis by the supply chain markups it developed (along with sales taxes).
To project future product prices, DOE examined the electric and gas cooking products PPI for the period 1982–2013. This index, adjusted for inflation, shows a declining trend. The decline for gas cooking products is somewhat more
Installation costs include labor, overhead, and any miscellaneous materials and parts. For this SNOPR, DOE used data from the 2013 RS Means Mechanical Cost Data on labor requirements to estimate installation costs for conventional cooking products.
In general, DOE estimated that installation costs would be the same for different efficiency levels. In the case of electric smooth cooking tops, the induction heating design option requires a change of utensils to those that are ferromagnetic to operate the cooking tops. DOE treated this as additional installation cost for this particular design option. DOE used average number of pots and pans utilized by a representative household to estimate this portion of the installation cost. See chapter 8 of the SNOPR TSD for details about this component. Given the installation costs of the induction cooktop, the market share is expected to remain at 2.6% in the standards case. See section IV.F.9 and IV.H.1 for details on the market shares.
Section IV.E of this SNOPR describes the derivation of annual energy use for conventional cooking products.
DOE did not find any evidence of a rebound effect, in which consumers use a more efficient appliance more intensively, for conventional cooking products. Cooking practices are affected by people's eating habits, which are unlikely to change due to higher product efficiency. DOE requests comment on its decision to not use a rebound effect for cooking products (see issue 11 in section VII.E of this SNOPR).
DOE derived marginal residential electricity and natural gas prices for 27 geographic areas.
For electricity, DOE derived marginal and average prices which vary by season, region, and baseline electricity consumption level. DOE estimated these prices using data published with EEI, Typical Bill and Average Rates reports for summer and winter 2014.
For the residential sector, DOE defined the average price as the ratio of the total bill to the total electricity consumption. DOE also used the EEI data to define a marginal price as the ratio of the change in the bill to the change in energy consumption. DOE first calculated weighted-average values for each geographic area for each type of price. Each EEI utility in an area was assigned a weight based on the number of consumers it serves. Consumer counts were taken from the most recent EIA Form 861 data (2012).
DOE assigned seasonal average prices to each household in the LCC sample based on its location and its baseline monthly electricity consumption for an average summer or winter month. For sampled households who were assigned a product efficiency greater than or equal to the considered level for a standard in the no-new-standards case, DOE assigned marginal price to each household based on its location and the decremented electricity consumption. In the LCC sample, households could be assigned to one of 27 geographic areas.
DOE obtained data for calculating prices of natural gas from the EIA publication, Natural Gas Navigator.
The method used to calculate marginal natural gas prices differs from that used to calculate electricity prices, because EIA does not provide consumer- or utility-level data on gas consumption and prices. EIA provides historical monthly natural gas consumption and expenditures by State. This data was used to determine 10-year average marginal price factors for the geographical areas. These factors are then used to convert average monthly energy prices into marginal monthly energy prices. Because cooking products operate all year around, DOE determined summer and winter marginal price factors.
To estimate future trends in electricity and natural gas prices, DOE used price forecasts in
The spreadsheet tool used to conduct the LCC and PBP analysis allows users to select the
See Chapter 8 of the SNOPR TSD for more information on the derivation of energy prices.
Repair costs are associated with repairing or replacing components that have failed in the appliance. Maintenance costs are associated with maintaining the operation of the equipment.
Typically, small incremental changes in product efficiency incur no, or only very small, changes in repair and maintenance costs over baseline products. For all electric cooking products, DOE did not include any changes in repair and maintenance costs for products more efficient than baseline products.
For gas ovens, DOE determined the repair and maintenance costs associated with different types of ignition systems. For the July 2015 NOPR for conventional ovens, DOE estimated an average repair cost of $170 occurring every fifth year during the product's lifetime. 80 FR 33030, 33056.
For electronic spark ignition systems, DOE estimated an average repair cost of $206 occurring in the tenth year of the product's life. DOE received comments regarding the frequency of repair for the electric globar/hot surface ignition systems. AHAM commented that a globar is replaced less often than three times during the lifetime of an oven. (AHAM, No. 29 at p. 8) Electrolux noted that during their life-cycle testing of an oven using globars, they estimated a replacement rate of approximately 0.70 glo-bars. (Electrolux, No. 27 at p.5) GE commented that the globar replacement occurs significantly less frequently than the three times DOE estimated. (GE, No.32 at p.3) Utilizing these inputs along with the earlier data from manufacturer inputs, DOE revised the average repair cost attributable to globar and electronic spark ignition systems and annualized it over the life of the unit at $21.04 and $20.60 for globar and electronic spark ignition systems, respectively. Based on input from manufacturers, DOE did not include maintenance costs for glo-bars or electronic ignitions.
DOE seeks comments on its repair cost estimation for gas ovens, as well as on its decision not to include changes in repair and maintenance costs for products more efficient than baseline products for electric cooking products (see section VII.B of this SNOPR).
See chapter 8 of the TSD accompanying this SNOPR for further information regarding repair and maintenance costs.
Equipment lifetime is the age at which the equipment is retired from service. DOE used a variety of sources to establish low, average, and high estimates for product lifetime. In the July 2015 NOPR, DOE utilized data from Appliance Magazine Market Insight, and established average product lifetimes of 15 years for conventional electric cooking products and 17 years for conventional gas cooking products.
See chapter 8 of the TSD accompanying this SNOPR for further details on the sources used to develop product lifetimes, as well as the use of Weibull distributions.
In the calculation of LCC, DOE applies discount rates appropriate to households to estimate the present value of future operating costs. DOE estimated a distribution of residential discount rates for conventional cooking products based on consumer financing costs and opportunity cost of funds related to appliance energy cost savings and maintenance costs.
To establish residential discount rates for the LCC analysis, DOE's approach involved identifying all relevant household debt or asset classes in order to approximate a consumer's opportunity cost of funds related to appliance energy cost savings and maintenance costs. DOE estimated the average percentage shares of the various types of debt and equity by household income group using data from the Federal Reserve Board's Survey of Consumer Finances (SCF) for 1995, 1998, 2001, 2004, 2007, 2010, and 2013.
The compliance date is the date when a covered product is required to meet a new or amended standard. DOE calculated the LCC and PBP for all customers as if each were to purchase a new product in the year that compliance with amended standards is required. Any final rule establishing amended standards would apply to conventional cooking products manufactured 3 years after the date on which the final rule is published (42 U.S.C. 6295(m)(4)(A)(i)). For purposes of its analysis, DOE assumed that a final rule would be published in 2016, which results in 2019 being the first year of compliance with amended standards.
To estimate the share of consumers that would be affected by a potential energy conservation standard at a particular efficiency level, DOE's LCC analysis considered the projected distribution (market shares) of product efficiencies in the no-new-standards case (
To establish the current efficiency distribution for electric cooking products and conventional gas ovens, DOE developed and implemented a consumer-choice model
To establish the current efficiency distribution for gas cooking tops, DOE relied on publicly available data on gas cooking top models in the market
Given the lack of data on historic efficiency trends, DOE assumed that the estimated current distributions would apply in 2019.
Table IV.37, Table IV.38, and Table IV.39 present the market shares of the efficiency levels in the no-new-standards case for conventional cooking products.
DOE seeks comments on its use of consumer choice model for establishing no-new standards efficiency distribution for some of the product classes (see section VII.B of this SNOPR).
See chapter 8 of the TSD accompanying this SNOPR for further information regarding no-new standards efficiency distribution.
The PBP is the amount of time it takes the consumer to recover the additional installed cost of more efficient equipment, compared to baseline equipment, through energy cost savings. PBPs are expressed in years. PBPs that exceed the life of the product mean that the increased total installed cost is not recovered in reduced operating expenses.
The inputs to the PBP calculation are the total installed cost of the product to the customer for each efficiency level and the annual first year operating expenditures for each efficiency level. The PBP calculation uses the same inputs as the LCC analysis, except that energy price trends and discount rates are not needed.
EPCA establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy savings during the first year that the consumer will receive as a result of the standard, as calculated under the test procedure in place for that standard. (42 U.S.C. (o)(2)(B)(iii) For each considered efficiency level, DOE determines the value of the first year's energy savings by calculating the quantity of those savings in accordance with the applicable DOE test procedure, and multiplying that amount by the average energy price forecast for the year in which compliance with the amended standards would be required. While DOE examined the rebuttable-presumption criterion, it considered whether the standard levels considered for this rule are economically justified through a more detailed analysis of the economic impacts of those levels pursuant to 42 U.S.C. 6295(o)(2)(B)(i) (See section V.B.1.c.).
DOE uses projections of product shipments to calculate the national impacts of standards on energy use, NPV, and future manufacturer cash flows. DOE develops shipment projections based on historical data and an analysis of key market drivers for each product. Historical shipments data are used to build up an equipment stock and also to calibrate the shipments model. For conventional cooking products, DOE accounted for three market segments: (1) New construction, (2) existing homes (
To determine new construction shipments, DOE used a forecast of new housing coupled with product market saturation data for new housing. For new housing completions and mobile home placements, DOE adopted the projections from EIA's
DOE estimated replacements using product retirement functions developed from product lifetimes. DOE used retirement functions based on Weibull distributions.
To reconcile the historical shipments with the model, DOE assumed that every retired unit is not replaced. DOE attributed the reason for this non-replacement to building demolition occurring over the period 2013–2048. The not-replaced rate is distributed across electric and gas cooking products.
DOE allocated shipments to each product class based on the current market share of the class. DOE developed the market shares based on data collected from Appliance Magazine Market Research report
DOE did not estimate any fuel switching for electric and gas cooking products, as no significant switching was observed from historical data.
Table IV.40 summarizes the approach and data DOE used to derive the inputs to the shipments analysis for the SNOPR.
DOE considered the impact of prospective standards on product shipments. DOE concluded that it is unlikely that the price increase due to the proposed standards would impact the decision to install a cooking product in the new construction market. In the replacement market, DOE assumed that, in response to an increased product price, some consumers will choose to repair their old cooking product and extend its lifetime instead of replacing it immediately. DOE estimated the magnitude of such impact through a purchase price elasticity of demand. The estimated price elasticity of −0.367 is based on data on cooking products as described in appendix 9A of the SNOPR TSD. This elasticity relates the repair or replace decision to the incremental installed cost of higher efficiency cooking products. DOE estimated that the average extension of life of the repaired unit would be 5 years, and then that unit will be replaced with a new cooking unit.
DOE seeks comments on its approach and use of data for shipments analysis (see section VII.B of this SNOPR).
For further details on the shipments analysis, please refer to chapter 9 of the SNOPR TSD.
The NIA assesses the national energy savings and the national NPV of total consumer costs and savings that would be expected to result from amended standards at specific efficiency levels.
DOE used an MS Excel spreadsheet model to calculate the national energy savings and the consumer costs and savings from each TSL.
DOE evaluated the impacts of potential standards for conventional cooking products by comparing a case without such standards with standards-case projections. The no-new-standards case characterizes energy use and customer costs for each product class in the absence of proposed energy conservation standards. DOE compares the no-new-standards case with projections characterizing the market for each product class if DOE adopted new or amended standards at specific energy efficiency levels (
Table IV.41 summarizes the key inputs for the NIA. The sections following provide further details, as does chapter 10 of the SNOPR TSD.
A key component of DOE's estimates of national energy savings and NPV is the energy efficiencies forecasted over time. For the no-new-standards case, DOE utilized the consumer choice model (as described in section IV.F.9 of this SNOPR) in combination with the equipment price projection (as described in section IV.F.1 of this SNOPR) to determine the efficiencies in each future year.
To estimate the impact that standards would have in the year compliance becomes required, DOE assumed that equipment efficiencies in the no-new-standards case that do not meet the standard level under consideration would “roll up” to meet the new standard level, and market shares at efficiencies above the standard level under consideration will shift based on the consumer choice model. In the case of gas cooking tops, which do not follow a consumer choice model, the market shares at efficiencies above the standard level under consideration would remain unchanged.
For each year in the forecast period, DOE calculates the national energy savings for each standard level by multiplying the shipments of cooking products by the per-unit annual energy savings. Cumulative energy savings are the sum of the annual energy savings over the lifetime of all equipment shipped during 2019–2048.
The annual energy consumption per unit depends directly on equipment efficiency. DOE used the shipment-weighted energy efficiencies associated with the no-new-standards case and each standards case, in combination with the annual energy use data, to estimate the shipment-weighted average annual per-unit energy consumption under the no-new-standards case and standards cases. The national energy consumption is the product of the annual energy consumption per unit and the number of units of each vintage, which depends on shipments. DOE calculates the total annual site energy savings for a given standards case by subtracting total energy use in the standards case from total energy use in the no-new-standards case. Note that total shipments are nearly the same in the standards cases as in the no-new-standards case.
DOE converted the site electricity consumption and savings to primary energy (power sector energy consumption) using annual conversion factors derived from the
In response to the recommendations of a committee on “Point-of-Use and Full-Fuel-Cycle Measurement Approaches to Energy Efficiency Standards” appointed by the National Academy of Science, DOE announced its intention to also use FFC measures of energy use, GHG emissions and other emissions in the national impact analyses and emissions analyses included in future energy conservation standards rulemakings. 76 FR 51281 (August 18, 2011). After evaluating the approaches discussed in the August 18, 2011 notice, DOE published a statement of amended policy in the
The National Propane Gas Association (NPGA) commented that DOE uses FFC to project the energy savings and energy consumption of ovens under the proposed standards, but DOE also employs a separate methodology exclusively to forecast savings for electricity, which seems to double estimates of electricity savings. NPGA stated that DOE's primary energy savings calculations are in addition to FFC energy savings. Therefore, electricity receives two energy savings estimates: That of primary energy savings calculations and FFC energy savings calculations. (NPGA, No. 35 at p. 3)
The estimated primary energy savings from energy conservation standards are not in addition to the FFC savings. DOE continues to report primary energy savings because this is a metric that has been familiar to stakeholders. However, DOE regards FFC energy savings as providing a more complete picture of the impacts of potential standards.
The inputs for determining the NPV of the total costs and benefits experienced by consumers are: (1) Total annual installed cost; (2) total annual operating costs; and (3) a discount factor to calculate the present value of costs and savings. DOE calculates the lifetime net savings for equipment shipped each year as the difference between the no-new-standards case and each standards case in total savings in lifetime operating costs and total increases in
The total installed cost includes both the equipment price and the installation cost. For each product class, DOE calculated equipment prices by efficiency level using manufacturer selling prices and weighted-average overall markup values. Because DOE calculated the total installed cost as a function of equipment efficiency, it was able to determine annual total installed costs based on the annual shipment-weighted efficiency levels determined in the shipments model. DOE accounted for the repair and maintenance costs associated with typical repairs in cooking products.
As noted in section IV.F.1 of this SNOPR, DOE assumed a declining trend in the conventional cooking product prices over the analysis period. In addition, DOE conducted sensitivity analyses using alternative price trends: one in which the rate of decline in prices is greater than the reference trend, and one in which the rate of decline is lower. These price trends, and the NPV results from the associated sensitivity cases, are described in appendix 10B of the SNOPR TSD.
The per-unit energy savings were derived as described in section IV.H.2 of this SNOPR. To calculate future electricity and natural gas prices, DOE applied the projected trend in national-average residential electricity and natural gas prices from the
In addition, DOE analyzed scenarios that used the energy price projections in the
In calculating the NPV, DOE multiplies the net dollar savings in future years by a discount factor to determine their present value. DOE estimates the NPV using both a 3-percent and a 7-percent real discount rate in accordance with guidance provided by the OMB to Federal agencies on the development of regulatory analysis.
In analyzing the potential impact of new or amended standards on individual consumers, DOE evaluates the impact on identifiable subgroups of consumers that may be disproportionately affected by a national standard level. The purpose of a subgroup analysis is to determine the extent of any such disproportional impacts. DOE evaluates impacts on particular subgroups of consumers by analyzing the LCC impacts and PBP for those particular consumers from alternative standard levels. For this SNOPR, DOE used RECS 2009 data to analyze the potential effect of standards for residential cooking products on two consumer subgroups: (1) Households with low income levels, and (2) households comprised of seniors. DOE used the LCC and PBP spreadsheet model to estimate the impacts of the considered efficiency levels on these subgroups.
More details on the consumer subgroup analysis can be found in chapter 11 of the SNOPR TSD accompanying this SNOPR.
DOE conducted an MIA for residential conventional cooking products to estimate the financial impact of new and amended energy conservation standards on manufacturers of these products. The MIA has both quantitative and qualitative aspects. The quantitative part of the MIA relies on the GRIM, an industry cash-flow model customized for residential conventional cooking products covered in this rulemaking. The key GRIM inputs are data on the industry cost structure, manufacturer production costs, shipments, and assumptions about manufacturer markups and conversion costs. The key MIA output is INPV. DOE used the GRIM to calculate cash flows using standard accounting principles and to compare changes in INPV between a no-new-standards case and various TSLs in the standards cases. The difference in INPV between the no-new-standards and standards cases represent the financial impact of new and amended energy conservation standards on residential conventional cooking product manufacturers. Different sets of assumptions (scenarios) produce different INPV results. The qualitative part of the MIA addresses factors such as manufacturing capacity; characteristics of, and impacts on, any particular subgroup of manufacturers; and impacts on competition.
DOE conducted the MIA for this rulemaking in three phases. In the first phase DOE prepared an industry characterization based on the market and technology assessment, as well as publicly available information. In the second phase, DOE developed an interview guide based on the industry financial parameters derived in the first phase. In the third phase, DOE conducted interviews with a variety of residential conventional cooking product manufacturers, all of whom accounted for more than 85 percent of domestic residential conventional cooking product sales covered by this rulemaking. During these interviews, DOE discussed engineering, manufacturing, procurement, and financial topics specific to each company and obtained each manufacturer's view of the residential conventional cooking product industry as a whole. The interviews provided information that DOE used to evaluate the impacts of new and amended standards on manufacturers' cash flows, manufacturing capacities, and direct domestic manufacturing employment levels. Section V.B.2 of this SNOPR contains a discussion on the estimated changes in the number of domestic employees involved in manufacturing residential conventional cooking products covered by the proposed standards. Section IV.J.4 of this SNOPR contains a description of the key issues manufacturers raised during the interviews.
During the third phase, DOE also used the results of the industry characterization analysis in the first phase and feedback from manufacturer interviews to group together manufacturers that exhibit similar production and cost structure characteristics. DOE identified two manufacturer subgroups for a separate impact analysis—small business manufacturers and commercial-style manufacturers.
Small business manufacturers are defined by the Small Business Administration (SBA) for this particular industry as having less than 1,500 total employees. This threshold includes all employees in a business' parent company and any other subsidiaries. Based on this classification, DOE identified nine residential conventional cooking product manufacturers that qualify as small businesses. Commercial-style manufacturers are defined as manufacturers primarily selling residential gas cooking products that are marketed as commercial-style. DOE identified five commercial-style manufacturers primarily selling commercial-style cooking products covered by this rulemaking. The impacts on the small business manufacturer subgroup are discussed in greater detail in section VI.B of this SNOPR and the impacts on the commercial-style manufacturer subgroup are discussed in greater detail in section V.B.2.d of this SNOPR.
DOE uses the GRIM to quantify the changes in cash flows over time due to new and amended energy conservation standards. These changes in cash flows result in either a higher or lower INPV for the standards cases compared to a case where new and amended standards have not been set (no-new-standards case). The GRIM analysis uses a standard annual cash flow analysis that incorporates manufacturer costs, manufacturer markups, industry shipments, and industry financial information as inputs. It then models changes in manufacturer production costs, manufacturer investments, and manufacturer margins that result from new and amended standards. The GRIM uses these inputs to calculate a series of annual cash flows beginning with the reference year of the analysis, 2016, and continuing to 2048. DOE computes INPV by summing the stream of annual discounted cash flows during the analysis period. DOE used a real discount rate of 9.1 percent for residential conventional cooking product manufacturers. The discount rate estimates were derived from industry corporate annual reports to the Securities and Exchange Commission (SEC 10–Ks). During manufacturer interviews residential conventional cooking product manufacturers were asked to provide feedback on this discount rate. Most manufacturers agreed that a discount rate of 9.1 was appropriate to use for residential conventional cooking product manufacturers. Many inputs into the GRIM came from the engineering analysis, the shipment analysis, manufacturer interviews, and other research conducted during the MIA. The major GRIM inputs are described in detail in the following sections.
DOE expects new and amended energy conservation standards for residential conventional cooking products to cause manufacturers to incur conversion costs to bring their production facilities and product designs into compliance with the new and amended standards. For the MIA, DOE classified these conversion costs into two major groups: (1) Capital conversion costs, and (2) product conversion costs. Capital conversion costs are investments in property, plant, and equipment necessary to adapt or change existing production facilities such that new product designs can be fabricated and assembled. Product conversion costs are investments in research, development, testing, marketing, certification, and other non-capitalized costs necessary to make product designs comply with new and amended standards.
Using feedback from manufacturer interviews, DOE conducted a top-down analysis to calculate the capital and product conversion costs for residential conventional cooking product manufacturers. DOE asked manufacturers during interviews to estimate the total capital and product conversion costs they would need to incur to be able to produce each residential conventional cooking product at specific efficiency levels. DOE then summed these values provided by manufacturers to arrive at total top-down industry conversion cost for residential conventional cooking products.
See chapter 12 of the SNOPR TSD for a complete description of DOE's assumptions for the capital and product conversion costs.
Manufacturing more efficient residential conventional cooking products is typically more expensive than manufacturing baseline products due to the need for more costly materials and components. The higher MPCs for these more efficient products can affect the revenue, gross margin, and the cash flows of residential conventional cooking product manufacturers. DOE developed MPCs for each representative unit at each efficiency level analyzed. DOE purchased a number of units from each product class, then tested and tore down those units to create a unique bill of materials for the purchased unit. Using the bill of materials for each residential conventional cooking product, DOE was able to create an aggregated MPC based on the material costs from the bill of materials; the labor costs based on an average labor rate and the labor hours necessary to manufacture the residential conventional cooking products; and the overhead costs, including depreciation, based on a markup applied to the material and labor costs based on the materials used. For more information about MPCs, see section IV.C of this SNOPR.
INPV, the key GRIM output, depends on industry revenue, which depends on the quantity and prices of residential conventional cooking products shipped in each year of the analysis period. Industry revenue calculations require forecasts of: (1) The total annual shipment volume of residential conventional cooking products; (2) the distribution of shipments across product classes (because prices vary by product class); and (3) the distribution of shipments across efficiency levels (because prices vary with efficiency).
For the no-new-standards case scenario of the shipment analysis, DOE develops shipment projections based on historical data and an analysis of key market drivers. In the standards cases, DOE modeled a roll-up scenario. The roll-up scenario represents the case in which all shipments in the no-new-standards case that do not meet the new and amended standards are redesigned to now meet the new and amended standards levels, but do not exceed the new and amended standards levels. Also, no shipments that meet or exceed the new and amended standards have an increase in efficiency due to the new and amended standards.
For a complete description of the shipments used in the no-new-standards case and standards cases see the shipments analysis discussion in section IV.G of this SNOPR.
As discussed in the manufacturer production costs section previously, the MPCs for each of the product classes of residential conventional cooking products are the manufacturers' factory costs for those units. These costs include materials, direct labor, depreciation, and overhead, which are collectively referred to as the cost of goods sold (COGS). The MSP is the price received by residential conventional cooking product manufacturers from their customers, typically retail outlets, regardless of the
Modifying these manufacturer markups in the standards cases yields a different set of impacts on residential conventional cooking product manufacturers than in the no-new-standards case. For the MIA, DOE modeled two standards case markup scenarios for residential conventional cooking products to represent the uncertainty regarding the potential impacts on prices and profitability for residential conventional cooking product manufacturers following the implementation of new and amended energy conservation standards. The two scenarios are: (1) A preservation of gross margin markup scenario and (2) a preservation of operating profit markup scenario. Each scenario leads to different manufacturer markup values, which, when applied to the inputted MPCs, result in varying revenue and cash flow impacts on residential conventional cooking product manufacturers.
The preservation of gross margin markup scenario assumes that the COGS for each residential conventional cooking product is marked up by a flat percentage to cover SG&A expenses, R&D expenses, interest expenses, and profit. This allows manufacturers to preserve the same gross margin percentage in the standards cases as in the no-new-standards case throughout the entire analysis period. This markup scenario represents the upper bound of the residential conventional cooking product industry profitability in the standards cases because residential conventional cooking product manufacturers are able to fully pass through additional costs due to standards to their consumers.
To derive the preservation of gross margin markup percentages for residential conventional cooking products, DOE examined the SEC 10–Ks of all publicly traded residential conventional cooking product manufacturers to estimate the industry average gross margin percentage. DOE estimated that the manufacturer markup is 1.20 for all residential conventional cooking products. Manufacturers were then asked about this industry gross margin percentage derived from SEC 10–Ks during interviews. Residential conventional cooking product manufacturers agreed that the 1.20 average industry gross margin calculated from SEC 10–Ks was an appropriate estimate to use in the MIA. DOE seeks comment on the use of 1.20 as a manufacturer markup for all residential conventional cooking products.
DOE included an alternative markup scenario, the preservation of operating profit markup scenario, because manufacturers stated they do not expect to be able to markup the full cost of production in the standards cases, given the highly competitive residential conventional cooking product market. The preservation of operating profit markup scenario assumes that manufacturers are able to maintain only the no-new-standards case total operating profit in absolute dollars in the standards cases, despite higher production costs and investment. The no-new-standards case total operating profit is derived from marking up the COGS by the preservation of gross margin markup previously described. In the standards cases for the preservation of operating profit markup scenario, DOE adjusted the residential conventional cooking product manufacturer markups in the GRIM at each TSL to yield approximately the same earnings before interest and taxes in the standards cases in the year after the compliance date of the new and amended standards as in the no-new-standards case. Under this scenario manufacturers are not able to earn additional operating profit on higher per unit production costs and increased capital and product investments required to comply with new and amended energy conservation standards. However, they are able to maintain the same operating profit in absolute dollars in the standards cases that was earned in the no-new-standards case.
The preservation of operating profit markup scenario represents the lower bound of industry profitability in the standards cases. This is because manufacturers are not able to fully pass through the additional costs necessitated by new and amended energy conservation standards, as they are able to do in the preservation of gross margin markup scenario. Therefore, manufacturers earn less revenue in the preservation of operating profit markup scenario than they do in the preservation of gross margin markup scenario.
The February 2014 RFI for residential conventional cooking products did not focus on the MIA or specifically address any issues relating to the MIA. Therefore, DOE did not receive any MIA-specific comments from this February 2014 RFI. However, during the July 2015 NOPR public meeting for residential conventional ovens, interested parties commented on the assumptions and results of the residential conventional ovens NOPR. These issues included, test procedure, safety requirements, and the cumulative regulatory burden placed on manufacturers.
AHAM commented that DOE's recent practice of amending the test procedure parallel to proposing amended standards increases the burden on manufacturers of residential conventional cooking products in responding to DOE's proposed rules. When the rulemakings are parallel to each other, it is difficult to comment on the proposed energy conservation standard because the test procedure is not yet finalized. (AHAM, No. 38 at p. 10) DOE has considered these comments as part of this rulemaking and notes that this SNOPR provides additional opportunity for interested parties to provide comment based on the proposed cooking product test procedure discussed in section III.C.
Manufacturers expressed concern that the new safety requirements, UL 858 and Canadian Standards Association (CSA) C22.2.61 “Household Cooking Ranges,” for conventional cooking products would consume a significant amount of human and capital resources until 2018, which would cause a strain on resources needed for the implementation of energy conservation standards. It was suggested that the effective date of standards be shifted to allow manufacturers first to meet safety standards and then focus their limited resources on meeting the new and amended energy conservation standards. (Whirlpool, No. 33 at p. 4, 5, and 7; Electrolux, No. 27 at p. 5) DOE
Several manufacturers noted the regulatory burden that numerous regulations will have on manufacturers. The regulatory burden of new safety requirements, UL 858 and CSA C22.2.61; DOE energy conservation standards on other home appliances; and the dual investments for adopting oven and cooking top standards are a concern amongst manufacturers. Manufacturers stated that DOE should also consider additional products that manufacturers of residential conventional cooking products make, which are also subject to potential DOE energy conservation standards. This places further cumulative regulatory burden on time and resources needed to evaluate and respond to both test procedures and energy conservation standards. (Whirlpool, No. 33 at p. 4 and 7; Electrolux, No. 27 at p. 5; AHAM, No. 38 at p. 10) DOE analyzed cumulative regulatory burden, V.B.2.e, and included this in analyzing impacts of the proposed standard on manufacturers.
DOE conducted manufacturer interviews following publication of the February 2014 RFI in preparation for the June 2015 NOPR analysis. In these interviews, DOE asked manufacturers to describe their major concerns with this residential conventional cooking products rulemaking. The following section describes the key issues identified by residential conventional cooking product manufacturers during these interviews. DOE conducted additional discussions with select manufacturers to follow up on information received on the June 2015 NOPR, but those discussions focused primarily on the engineering analysis.
Manufacturers stated that their premium products (
Some manufacturers stated that induction cooking tops should be considered as a separate product class apart from electric smooth cooking tops. Manufacturers stated that while induction cooking tops tends to be more efficient that other electric smooth cooking tops, induction cooking tops could require consumers to replace some or all of their cookware if they are not ferromagnetic.
Manufacturers stated that energy efficiency is not one of the most important attributes that consumers value when purchasing residential conventional cooking products. Manufacturers stated that there are several other factors, such as performance and durability, which consumers value more when purchasing residential conventional cooking products. Forcing manufacturers to improve the efficiency of their products could lead to some manufacturers removing premium features that consumers desire from their products, reducing overall consumer utility.
Several manufacturers expressed concern about the testing and recertification costs associated with new and amended energy conservation standards for residential conventional cooking products. Because testing and certification costs are incurred on a per model basis, if a large number of models are required to be redesigned to meet new and amended standards, manufacturers would be forced to spend a significant amount of money testing and certifying products that were redesigned due to new and amended standards. Manufacturers stated that these testing and certification costs associated with residential conventional cooking products could significantly strain their limited resources if these costs were all incurred in the 3-year time frame from the publication of a final rule to the implementation of the new and amended standards.
The emissions analysis consists of two components. The first component estimates the effect of potential energy conservation standards on power sector and site (where applicable) combustion emissions of CO
The analysis of power sector emissions uses marginal emissions factors that were derived from data in
Combustion emissions of CH
The emissions intensity factors are expressed in terms of physical units per MWh or MMBtu of site energy savings. Total emissions reductions are estimated using the energy savings calculated in the national impact analysis.
For CH
Because the on-site operation of gas cooking tops requires use of fossil fuels and results in emissions of CO
The
SO
EIA was not able to incorporate CSAPR into
The attainment of emissions caps is typically flexible among EGUs and is enforced through the use of emissions allowances and tradable permits. Under existing EPA regulations, any excess SO
Beginning in 2016, however, SO
CAIR established a cap on NO
The MATS limit mercury emissions from power plants, but they do not include emissions caps and, as such, DOE's energy conservation standards would likely reduce Hg emissions. DOE estimated mercury emissions reduction using emissions factors based on
EEI commented that DOE's general approach to the long-term assessment of the impacts of energy conservation
DOE believes it would be inappropriate to use projections of the power sector that attempt to incorporate regulations that have not been finalized. The final shape of a regulation affects its impacts on the power sector and is not certain until the regulation has become effective.
As part of the development of this proposed rule, DOE considered the estimated monetary benefits from the reduced emissions of CO
The SCC is an estimate of the monetized damages associated with an incremental increase in carbon emissions in a given year. It is intended to include (but is not limited to) changes in net agricultural productivity, human health, property damages from increased flood risk, and the value of ecosystem services. Estimates of the SCC are provided in dollars per metric ton of carbon dioxide. A domestic SCC value is meant to reflect the value of damages in the United States resulting from a unit change in carbon dioxide emissions, while a global SCC value is meant to reflect the value of damages worldwide.
Under section 1(b)(6) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), agencies must, to the extent permitted by law, assess both the costs and the benefits of the intended regulation and, recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. The purpose of the SCC estimates presented here is to allow agencies to incorporate the monetized social benefits of reducing CO
As part of the interagency process that developed the SCC estimates, technical experts from numerous agencies met on a regular basis to consider public comments, explore the technical literature in relevant fields, and discuss key model inputs and assumptions. The main objective of this process was to develop a range of SCC values using a defensible set of input assumptions grounded in the existing scientific and economic literatures. In this way, key uncertainties and model differences transparently and consistently inform the range of SCC estimates used in the rulemaking process.
When attempting to assess the incremental economic impacts of carbon dioxide emissions, the analyst faces a number of challenges. A report from the National Research Council points out that any assessment will suffer from uncertainty, speculation, and lack of information about: (1) Future emissions of greenhouse gases; (2) the effects of past and future emissions on the climate system; (3) the impact of changes in climate on the physical and biological environment; and (4) the translation of these environmental impacts into economic damages.
Despite the limits of both quantification and monetization, SCC estimates can be useful in estimating the social benefits of reducing carbon dioxide emissions. The agency can estimate the benefits from reduced (or costs from increased) emissions in any future year by multiplying the change in emissions in that year by the SCC values appropriate for that year. The NPV of the benefits can then be calculated by multiplying each of these future benefits by an appropriate discount factor and summing across all affected years.
It is important to emphasize that the interagency process is committed to updating these estimates as the science and economic understanding of climate change and its impacts on society improves over time. In the meantime, the interagency group will continue to explore the issues raised by this analysis and consider public comments as part of the ongoing interagency process.
In 2009, an interagency process was initiated to offer a preliminary assessment of how best to quantify the benefits from reducing carbon dioxide emissions. To ensure consistency in how benefits are evaluated across Federal agencies, the Administration sought to develop a transparent and defensible method, specifically designed for the rulemaking process, to quantify avoided climate change damages from reduced CO
After the release of the interim values, the interagency group reconvened on a regular basis to generate improved SCC estimates. Specifically, the group considered public comments and further explored the technical literature in relevant fields. The interagency group relied on three integrated assessment models commonly used to estimate the SCC: The FUND, DICE, and PAGE models. These models are frequently cited in the peer-reviewed literature and were used in the last assessment of the Intergovernmental Panel on Climate
Each model takes a slightly different approach to model how changes in emissions result in changes in economic damages. A key objective of the interagency process was to enable a consistent exploration of the three models while respecting the different approaches to quantifying damages taken by the key modelers in the field. An extensive review of the literature was conducted to select three sets of input parameters for these models: Climate sensitivity, socio-economic and emissions trajectories, and discount rates. A probability distribution for climate sensitivity was specified as an input into all three models. In addition, the interagency group used a range of scenarios for the socio-economic parameters and a range of values for the discount rate. All other model features were left unchanged, relying on the model developers' best estimates and judgments.
In 2010, the interagency group selected four sets of SCC values for use in regulatory analyses.
The SCC values used for this SNOPR were generated using the most recent versions of the three integrated assessment models that have been published in the peer-reviewed literature.
AHAM suggested that DOE rely on the 2010 estimates for SCC until it has resolved all comments on the derivation of the SCC estimates from the 2013 report. DOE notes that the 2013 report provides an update of the SCC estimates based solely on the latest peer-reviewed version of the models, replacing model versions that were developed up to 10 years ago in a rapidly evolving field. It does not revisit other assumptions with regard to the discount rate, reference case socio-economic and emission scenarios, or equilibrium climate sensitivity. Improvements in the way damages are modeled are confined to those that have been incorporated into the latest versions of the models by the developers themselves in the peer-reviewed literature. Given the above, using the 2010 estimates would be inconsistent with DOE's objective of using the best available information in its analyses.
It is important to recognize that a number of key uncertainties remain, and that current SCC estimates should be treated as provisional and revisable since they will evolve with improved scientific and economic understanding. The interagency group also recognizes that the existing models are imperfect and incomplete. The National Research Council report mentioned above points out that there is tension between the goal of producing quantified estimates of the economic damages from an incremental ton of carbon and the limits of existing efforts to model these effects. There are a number of analytical challenges that are being addressed by the research community, including research programs housed in many of the Federal agencies participating in the interagency process to estimate the SCC. The interagency group intends to periodically review and revise those estimates to reflect increasing knowledge of the science and economics of climate impacts, as well as improvements in modeling.
In summary, in considering the potential global benefits resulting from reduced CO
DOE multiplied the CO
The Cato Institute stated that the SCC is not supported by scientific literature, not in accordance with OMB guidelines, fraught with uncertainty, illogical and thus unsuitable and inappropriate for Federal rulemaking. The comment emphasized that the SCC is discordant with the best scientific literature on the equilibrium climate sensitivity and the fertilization effect of carbon dioxide. Further, the estimates should make a clear distinction between global and domestic cost-benefit estimates and delineate the potential positive impact on agriculture. The Cato Institute argued that use of the SCC in cost/benefit analyses in this rulemaking should be suspended. (Cato Institute, No. 24 at pp. 3, 13) NPGA also commented on the issue of a clear distinction between global and domestic cost-benefit estimates. (NPGA, No. 35 at p. 2)
DOE acknowledges the limitations of the SCC estimates, which are discussed in detail in the 2010 Report. Specifically, the 2010 Report discusses and explains the reasons for uncertainties in the assumptions regarding climate sensitivity, as well as other model inputs such as economic growth and emissions trajectories.
With respect to distinguishing between global and domestic benefits from reducing CO
As noted previously, DOE has estimated how the considered energy conservation standards would reduce site NO
DOE estimated the monetized value of NO
DOE estimated the monetized value of NO
DOE multiplied the emissions reduction (in tons) in each year by the associated $/ton values, and then discounted each series using discount rates of 3 percent and 7 percent as appropriate. DOE will continue to evaluate the monetization of avoided NO
DOE is evaluating appropriate monetization of avoided SO
The utility impact analysis estimates several effects on the electric power industry that would result from the adoption of new or amended energy conservation standards. The utility impact analysis estimates the changes in installed electrical capacity and generation that would result for each TSL. The analysis is based on published output from the NEMS associated with
The output of this analysis is a set of time-dependent coefficients that capture the change in electricity generation, primary fuel consumption, installed capacity and power sector emissions due to a unit reduction in demand for a given end use. These coefficients are multiplied by the stream of electricity savings calculated in the NIA to provide estimates of selected utility impacts of new or amended energy conservation standards.
Employment impacts from new or amended energy conservation standards include direct and indirect impacts. Direct employment impacts are any changes in the number of employees of manufacturers of the equipment subject to standards; the MIA addresses those impacts. Indirect employment impacts are changes in national employment that occur due to the shift in expenditures and capital investment caused by the purchase and operation of more efficient equipment. Indirect employment impacts from standards consist of the jobs created or eliminated in the national economy, other than in the manufacturing sector being regulated, due to: (1) Reduced spending by end users on energy; (2) reduced spending on new energy supply by the utility industry; (3) increased consumer spending on the purchase of new equipment; and (4) the effects of those three factors throughout the economy.
One method for assessing the possible effects on the demand for labor of such shifts in economic activity is to compare sector employment statistics developed by the Labor Department's Bureau of Labor Statistics (BLS). BLS regularly publishes its estimates of the number of jobs per million dollars of economic activity in different sectors of the economy, as well as the jobs created elsewhere in the economy by this same economic activity. Data from BLS indicate that expenditures in the utility sector generally create fewer jobs (both directly and indirectly) than expenditures in other sectors of the economy.
DOE estimated indirect national employment impacts for the standard levels considered in this SNOPR using an input/output model of the U.S. economy called Impact of Sector Energy Technologies, Version 3.1.1 (ImSET).
DOE notes that ImSET is not a general equilibrium forecasting model, and understands the uncertainties involved in projecting employment impacts, especially changes in the later years of the analysis. Because ImSET does not incorporate price changes, the employment effects predicted by ImSET may over-estimate actual job impacts over the long run. Therefore, DOE generated results for near-term timeframes, where these uncertainties are reduced. For more details on the employment impact analysis, see chapter 16 of the SNOPR TSD.
The following section addresses the results from DOE's analyses with respect to potential energy conservation standards for conventional cooking products. It addresses the TSLs examined by DOE and the projected impacts of each of these levels if adopted as energy conservation standards for conventional cooking products. Additional details regarding DOE's analyses are contained in the SNOPR TSD supporting this SNOPR.
DOE analyzed the benefits and burdens of four TSLs for conventional cooking products. These TSLs were developed by combining specific efficiency levels for each of the product classes analyzed by DOE. DOE presents the results for the TSLs in this document, while the results for all efficiency levels that DOE analyzed are in the SNOPR TSD.
Table V.1 through Table V.3 present the TSLs and the corresponding efficiency levels for conventional cooking products.
DOE analyzed the economic impacts on conventional cooking products consumers by looking at the effects potential amended standards would have on the LCC and PBP. DOE also examined the impacts of potential standards on consumer subgroups. These analyses are discussed below.
In general, higher-efficiency products affect consumers in two ways: (1) Purchase price increases, and (2) operating costs decrease. Inputs used for calculating the LCC and PBP include total installed costs (
Table V.4 through Table V.25 show the LCC and PBP results for all efficiency levels considered for each conventional cooking product class. In the first of each pair of tables, the simple payback is measured relative to the baseline product. In the second table, the LCC savings are measured relative to the no-new-standards case efficiency distribution in the compliance year (see section IV.F.9 of this SNOPR). Because some consumers purchase products with higher efficiency in the no-new-standards case, the average savings are less than the difference between the average LCC of the lowest-efficiency level and the average LCC at each TSL. The savings refer only to consumers who are affected by a standard at a given TSL. Those who already purchase a product with efficiency at or above a given TSL are not affected. Consumers for whom the LCC increases at a given TSL experience a net cost.
As described in section IV.I of this SNOPR, DOE determined the impact of the considered TSLs on low-income households and senior-only households. Table V.26 through Table V.36 compare the average LCC savings and PBP at each efficiency level for the two consumer subgroups, along with the average LCC savings for the entire sample. In most cases, the average LCC savings and PBP for low-income households and senior-only households at the considered efficiency levels are not substantially different from the average for all households. Chapter 11 of the SNOPR TSD presents the complete LCC and PBP results for the subgroups.
As discussed above, EPCA provides a rebuttable presumption that an energy conservation standard is economically justified if the increased purchase cost for a product that meets the standard is less than three times the value of the first-year energy savings resulting from the standard. In calculating a rebuttable presumption payback period for the considered TSLs, DOE used discrete values rather than distributions for input values, and, as required by EPCA, based the energy use calculation on the DOE test procedures for conventional cooking products. In contrast, the PBPs presented in section V.B.1.a of this SNOPR were calculated using distributions that reflect the range of energy use in the field.
Table V.37 presents the rebuttable-presumption payback periods for the considered TSLs. While DOE examined the rebuttable-presumption criterion, it considered whether the standard levels considered for this rule are economically justified through a more detailed analysis of the economic impacts of those levels pursuant to 42 U.S.C. 6295(o)(2)(B)(i). The results of that analysis serve as the basis for DOE to evaluate the economic justification for a potential standard level (thereby supporting or rebutting the results of any preliminary determination of economic justification).
DOE performed an MIA to estimate the impact of new and amended energy conservation standards on manufacturers of residential conventional cooking products. The following sections describe the expected impacts on residential conventional cooking product manufacturers at each TSL. Chapter 12 of the SNOPR TSD explains the MIA in further detail.
Table V.38 through Table V.39 depict the financial impacts (represented by changes in INPV) of new and amended energy conservation standards on residential conventional cooking product manufacturers as well as the conversion costs that DOE estimates manufacturers would incur at each TSL. To evaluate the range of cash flow impacts on the residential conventional cooking product industry, DOE modeled two markup scenarios that correspond to the range of anticipated market responses to new and amended standards. Each markup scenario results in a unique set of cash flows and corresponding industry values at each TSL.
In the following discussion, the INPV results refer to the difference in industry value between the no-new-standards case and the standards cases that result from the sum of discounted cash flows from the reference year (2016) through the end of the analysis period. The results also discuss the difference in cash flows between the no-new-standards case and the standards cases in the year before the compliance date for new and amended energy conservation standards. This figure represents the size of the required conversion costs relative to the cash flow generated by the residential conventional cooking product industry in the absence of new and amended energy conservation standards. In the engineering analysis, DOE enumerates common technology options that achieve the efficiencies for each of the product classes. For descriptions of these technology options and the required efficiencies at each TSL, see section IV.C and section V.A, respectively, of this SNOPR.
To assess the upper (less severe) end of the range of potential impacts on residential conventional cooking product manufacturers, DOE modeled a preservation of gross margin markup scenario. This scenario assumes that in the standards cases, manufacturers would be able to pass along all the higher production costs required for more efficient products to their consumers. Specifically, the industry would be able to maintain its average no-new-standards case gross margin (as a percentage of revenue) despite the higher production costs in the standards cases. In general, the larger the product price increases, the less likely manufacturers are to achieve the cash flow from operations calculated in this scenario because it is less likely that manufacturers would be able to fully mark up these larger production cost increases.
To assess the lower (more severe) end of the range of potential impacts on the residential conventional cooking product manufacturers, DOE modeled the preservation of operating profit markup scenario. This scenario represents the lower end of the range of potential impacts on manufacturers because no additional operating profit is earned on the higher production costs, eroding profit margins as a percentage of total revenue.
Table V.38 and Table V.39 present the projected results for residential conventional cooking products under the preservation of gross margin and preservation of operating profit markup scenarios. DOE examined results for all product classes together since the majority of manufacturers sell products across a variety of the analyzed product classes.
TSL 1 sets the efficiency level at baseline for two product classes, electric open (coil) element cooking tops and gas cooking tops; EL 1 for all electric and gas ovens; and EL 2 for one product class, electric smooth element cooking tops. At TSL 1, DOE estimates impacts on INPV range from −$39.8 million to −$38.0 million, or a change in INPV of −3.2 percent to −3.1 percent. At TSL 1, industry free cash flow (operating cash flow minus capital expenditures) is estimated to decrease to $83.2 million, or a drop of 19.1 percent, compared to the no-new-standards case value of $102.8 million in 2018, the year leading up to new and amended energy conservation standards.
Percentage impacts on INPV are slightly negative at TSL 1. DOE does not anticipate that manufacturers would lose a significant portion of their INPV at this TSL, given the limited conversion costs and number of residential conventional cooking products projected to comply with the analyzed standards at this TSL. DOE projects that in the expected year of compliance (2019), 100 percent of electric open (coil) element cooking top and gas cooking top shipments; 28 percent of electric smooth element cooking top shipments; 60 percent of electric standard free standing oven and electric standard built-in oven shipments; 53 percent of electric self-clean free standing oven and electric self-clean built-in oven shipments; 56 percent of gas standard free standing oven and gas standard built-in oven shipments; and 52 percent of gas self-clean free standing oven and gas self-clean built-in oven shipments would meet or exceed the efficiency levels required at TSL 1.
DOE expects conversion costs to be small at TSL 1 because the design changes prescribed at this TSL only affect standby mode power consumption and do not apply to active mode power consumption. DOE expects residential conventional cooking product manufacturers would incur $19.9 million in product conversion costs for product redesigns that include converting electric smooth cooking tops and both gas and electric ovens to transition from using linear power supplies to SMPS in order to reduce standby power consumption; as well as implementing automatic power down controls for electric smooth cooking tops. DOE expects $29.9 million in capital conversion costs for manufacturers to upgrade production lines and retool equipment associated with achieving this reduction in standby power.
At TSL 1, under the preservation of gross margin markup scenario, the shipment-weighted average MPC increases very slightly by approximately 0.2 percent relative to the no-new-standards case MPC. This extremely slight price increase is significantly outweighed by the $49.8 million in conversion costs estimated at TSL 1, resulting in slightly negative INPV impacts at TSL 1 under the preservation of gross margin markup scenario.
Under the preservation of operating profit markup scenario, manufacturers earn the same nominal operating profit as would be earned in the no-new-standards case, but manufacturers do not earn additional profit from their investments. The very slight increase in the shipment weighted-average MPC results in a slightly lower average manufacturer markup (slightly smaller than the 1.20 manufacturer markup used in the no-new-standards case). This slightly lower average manufacturer markup and the $49.8 million in conversion costs, results in slightly negative INPV impacts at TSL 1 under the preservation of operating profit.
TSL 2 sets the efficiency level at EL 1 for six product classes, electric open (coil) element cooking tops, gas cooking tops, electric standard free-standing ovens, electric standard built-in ovens, electric self-clean free-standing ovens, and electric self-clean built-in ovens; and EL 2 for five product classes, electric smooth element cooking tops, gas standard free-standing ovens, gas standard built-in ovens, gas self-clean free-standing ovens, and gas self-clean built-in ovens. At TSL 2, DOE estimates impacts on INPV to range from −$89.6 million to −$81.4 million, or a change in INPV of −7.2 percent to −6.6 percent. At TSL 2, industry free cash flow is estimated to decrease to $59.3 million, or a drop of 42.3 percent, compared to the no-new-standards case value of $102.8 million in 2018, the year leading up to new and amended energy conservation standards.
Percentage impacts on INPV are moderately negative at TSL 2. While the $119.2 million in industry conversion costs represent a larger investment for manufacturers than at TSL 1, DOE does not anticipate that manufacturers would lose a significant portion of their INPV at this TSL since the no-new-standards case INPV for manufacturers is more than $1,238.1 million. DOE projects that in 2019, 33 percent of electric open (coil) element cooking top shipments; 28 percent of electric smooth element cooking top shipments; 74 percent of gas cooking top shipments; 60 percent of electric standard free standing oven and electric standards built-in oven shipments; 53 percent of electric self-clean free standing oven and electric self-clean built-in oven shipments; 46 percent of gas standard free standing oven and gas standard built-in oven shipments; and 39 percent of gas self-clean free standing oven and gas self-clean built-in oven shipments would meet or exceed the efficiency levels required at TSL 2.
DOE expects that product conversion costs will rise from $19.9 million at TSL 1 to $71.3 million at TSL 2 for extensive product redesigns and testing. Capital conversion costs will also increase from $29.9 million at TSL 1 to $47.9 million at TSL 2 to upgrade production equipment to accommodate for added or redesigned features in each product class. The large conversion costs at TSL 2 are driven by the need to improve contact conductance for electric open (coil) cooking tops; transition from using linear power supplies to SMPS to reduce standby power consumption while also implementing automatic power down controls for electric smooth cooking tops; improve burner and grate design for gas cooking tops; transition from using linear power supplies to SMPS to reduce standby power consumption for electric ovens; and transition from using linear power supplies to SMPS to improve power consumption in gas ovens.
At TSL 2, under the preservation of gross margin markup scenario, the shipment weighted-average MPC only slightly increases by 0.9 percent, relative to the no-new-standards case MPC. In this scenario, INPV impacts are moderately negative because manufacturers incur larger conversion costs, $119.2 million, and are not able to recover much of those conversion costs through the slight increase in the shipment weighted-average MPC at TSL 2.
Under the preservation of operating profit markup scenario, the 0.9 percent shipment weighted-average increase in MPC results in a slightly lower average manufacturer markup (slightly smaller than the 1.20 manufacturer markup used in the no-new-standards case). This slightly lower average manufacturer markup and the $119.2 million in conversion costs result in moderately negative INPV impacts at TSL 2.
TSL 3 sets the efficiency level at EL 1 for three product classes, electric open (coil) cooking tops, electric self-clean free-standing ovens, and electric self-clean built in ovens; EL 2 for one product class, electric smooth element cooking tops; EL 3 for one product class, gas cooking tops; EL 4 for four product classes, electric standard free-standing ovens, electric standard built-in ovens, gas self-clean free-standing ovens, and gas self-clean built-in ovens; and EL 6 for two product classes, gas standard free-standing ovens and gas standard built-in ovens. At TSL 3, DOE estimates impacts on INPV to range from −$393.5 million to −$370.1 million, or a change in INPV of −31.8 percent to −29.9 percent. At this standard level, industry free cash flow is estimated to decrease to −$89.7, or a drop of 187.2 percent, compared to the no-new-standards case value of $102.8 million in 2018, the year leading up to new and amended energy conservation standards.
Percentage impacts on INPV are significantly negative at TSL 3. The $510.0 million in industry conversion costs represent a significant investment for manufacturers, and is the primary cause of the potential drop in INPV of up to 31.8 percent and a negative free cash flow in the year leading up to the new and amended standards. DOE projects that in 2019, 33 percent of electric open (coil) cooking top shipments; 28 percent of electric smooth element cooking top shipments; 13 percent of gas cooking top shipments; 31 percent of electric standard free standing oven and electric standard built-in oven shipments; 53 percent of electric self-clean free standing oven and electric self-clean built-in oven shipments; 9 percent of gas standard free standing oven and gas standard built-in oven shipments; and 13 percent of gas self-cleaning free standing oven and gas self-cleaning built-in oven shipments would meet or exceed the efficiency levels at TSL 3.
DOE expects that product conversion costs will significantly rise from $71.3 million at TSL 2 to $261.8 million at
At TSL 3, under the preservation of gross margin markup scenario, the shipment weighted-average MPC increases by 2.5 percent, relative to the no-new-standards case MPC. In this scenario, INPV impacts are negative because manufacturers incur sizable conversion costs ($510.0 million) and are not able to recover much of those conversion costs through the 2.5 percent increase in the shipment weighted-average MPC at TSL 3.
Under the preservation of operating profit markup scenario, the 2.5 percent shipment weighted-average increase in MPC results in a slightly lower average manufacturer markup (1.199, compared to the 1.20 manufacturer markup used in the no-new-standards case). This slightly lower average manufacturer markup and the $510.0 million in conversion costs results in significantly negative INPV impacts at TSL 3.
Commercial-style manufacturers, manufacturers producing gas cooking products that are primarily marketed as commercial-style, would not be able to meet the standards required at TSL 3. As described in sections IV.C.3.b and IV.C.5 of this SNOPR, the features inherent to such gas cooking products would preclude this product configuration from being able to meet the standards required at TSL 3, and would likely force commercial-style manufacturers to exit the gas cooking product market.
TSL 4 sets the efficiency level at EL 1 for one product class, electric open (coil) element cooking tops; EL 3 for one product class, gas cooking tops; EL 4 for five product classes, electric smooth element cooking tops, electric self-clean free-standing ovens, electric self-clean built-in ovens, gas self-clean free-standing ovens, and gas self-clean built-in ovens; EL 6 for two product classes, gas standard free-standing ovens and gas standard built-in ovens; and EL 7 for two product classes, electric standard free-standing ovens and electric standard built-in ovens. This represents max-tech for all product classes. At TSL 4, DOE estimates impacts on INPV to range from −$923.6 million to −$727.1 million, or a change in INPV of −74.6 percent to −58.7 percent. At TSL 4, industry free cash flow is estimated to decrease to −$340.7 million, or a drop of 431.3 percent, compared to the no-new-standards case value of $102.8 million in 2018, the year leading up to new and amended energy conservation standards.
At TSL 4 conversion costs significantly increase, causing free cash flow to become significantly negative, −$340.7 million, in the year leading up to energy conservation standards and causing manufacturers to lose a substantial amount of INPV. Also, the percent change in INPV at TSL 4 is significantly negative due to the extremely large conversion costs, $1,105.7 million. Manufacturers at this TSL would have a very difficult time in the short term to make the necessary investments to comply with new and amended energy conservation standards prior to when standards went into effect. Also, the long-term profitability of residential conventional cooking product manufacturers could be seriously jeopardized as several manufacturers would struggle to comply with standards at this TSL, especially the commercial-style manufacturer subgroup. These manufacturers produce gas cooking products that are primarily marketed as commercial-style. As described in sections IV.C.3.b and IV.C.5 of this SNOPR, the features inherent to such gas cooking products would preclude this product configuration from being able to meet the standards required at TSL 4, and would likely force commercial-style manufacturers to exit the gas cooking product market.
A high percentage of total shipments will need to be redesigned to meet the efficiency levels prescribed at TSL 4. DOE projects that in 2019, 33 percent of electric open (coil) element cooking top shipments; 3 percent of electric smooth element cooking top shipments; 13 percent of gas cooking top shipments; 7 percent of electric standard free standing oven and electric standard built-in oven shipments; 12 percent of electric self-clean free standing oven and electric self-clean built-in oven shipments; 9 percent of gas standard free standing oven and gas standard built-in oven shipments; and 13 percent of gas self-clean free standing oven and gas self-clean built-in oven shipments would meet the efficiency levels at TSL 4.
DOE expects significant conversion costs at TSL 4, which represents max-tech. DOE expects product conversion costs to significantly increase from $261.8 million at TSL 3 to $525.4 million at TSL 4. Large increases in product conversion are due to the vast majority of shipments needing extensive redesign as well as a significant increase in testing and recertification for redesigned products. DOE estimates that capital conversion costs will also significantly increase from $248.2 million at TSL 3 to $580.2 million at TSL 4. Capital conversion costs are driven by investments in production equipment to accommodate for the addition of induction heating elements for electric smooth cooking tops; improved contact conductance for electric open (coil) element cooking tops; and by optimizing the burner and grate system for residential-style gas cooking tops; reducing vent rate, improving insulation and door seals, forcing convection, developing oven separators, and reducing conduction loses for electric standard ovens; forcing convection, developing oven separators, and reducing conduction loses for electric self-clean ovens; electronic spark ignition, improve insulation, increase the efficiency of door seals, forcing convection, and reducing convection losses for gas standard ovens; and forcing convection and reducing conduction losses in gas self-clean ovens. DOE estimates that most commercial-style manufacturers would not be able to meet the gas cooking product standards prescribed at TSL 4 and would be forced to exit the gas cooking product market.
At TSL 4, under the preservation of gross margin markup scenario, the shipment weighted-average MPC increases by 18.0 percent relative to the no-new-standards case MPC. In this scenario, INPV impacts are severely negative because the $1,105.7 million in conversion costs outweigh the modest increase in shipment weighted-average MPC, resulting in significantly negative INPV impacts at TSL 4.
Under the preservation of operating profit markup scenario, the 18.0 percent shipment weighted-average increase in MPC results in a slightly lower average manufacturer markup of 1.192 (compared to 1.20 used in the no-new-standards case). This lower average manufacturer markup and the $1,105.7 million in conversion costs, results in significantly negative INPV impacts at TSL 4.
DOE quantitatively assessed the impacts of new and amended energy
In the GRIM, DOE used the labor content of the MPCs to estimate the annual labor expenditures in the industry. DOE used census data and interviews with manufacturers to estimate the portion of the total labor expenditures that is attributable to domestic labor.
The production worker estimates in this section cover only workers up to the line-supervisor level directly involved in fabricating and assembling a product within a manufacturing facility. Workers performing services that are closely associated with production operations, such as material handing with a forklift, are also included as production labor. DOE's estimates account for production workers who manufacture only the specific products covered in this rulemaking.
The employment impacts shown in Table V.40 represent the potential domestic production employment that could result following new and amended energy conservation standards. The upper bound of the results estimates the maximum change in the number of production workers that could occur after compliance with new and amended energy conservation standards when assuming that manufacturers continue to produce the same scope of covered products in the same production facilities. It also assumes that domestic production does not shift to lower labor-cost countries. Because there is a real risk of manufacturers evaluating sourcing decisions in response to new and amended energy conservation standards, the lower bound of the employment results includes DOE's estimate of the total number of U.S. production workers in the industry who could lose their jobs if some or all existing domestic production were moved outside of the United States. While the results present a range of domestic employment impacts following 2019, the following sections also include qualitative discussions of the likelihood of negative employment impacts at the various TSLs. Finally, the direct employment impacts shown are independent of the employment impacts from the broader U.S. economy, documented in chapter 17 of the SNOPR TSD.
Using 2014 ASM data and interviews with manufacturers, DOE estimates that approximately 60 percent of the residential conventional cooking products sold in the United States are manufactured domestically. With this assumption, DOE estimates that in the absence of new and amended energy conservation standards, there would be approximately 8,663 domestic production workers involved in manufacturing residential conventional cooking products in 2019. Table V.40 shows the range of the impacts of new and amended energy conservation standards on U.S. production workers in the residential conventional cooking product industry.
At the upper end of the range, all examined TSLs show a slight increase in the number of domestic employment for residential conventional cooking products. DOE believes that manufacturers would increase production hiring due to the increase in the labor associated with adding the required components to make residential conventional cooking products more efficient. However, as previously stated, this assumes that in addition to hiring more production employees, all existing domestic production would remain in the United States and not shift to lower labor-cost countries.
DOE expects any significant changes in domestic employment at TSL 1 to be limited because standards would only affect standby mode power consumption at this TSL. Most manufacturers stated that this TSL would not require significant design changes and therefore would not have a significant impact on domestic employment decisions.
At TSL 2, TSL 3, and TSL 4, all product classes would require higher efficiency standards and therefore most manufacturers would be required to make modifications to their existing production lines. However, manufacturers stated that due to the larger size of most residential conventional cooking products, very few units are manufactured and shipped from far distances such as Asia or Europe. The vast majority of residential conventional cooking products are currently made in North America. Some manufacturers stated that even significant changes to production line would not cause them to shift their production to lower labor-cost countries, as several manufacturers either only produce residential conventional cooking products domestically or have recently made significant investments to continue to produce residential conventional cooking products domestically. DOE estimates that, at most, 10 percent of the domestic labor for residential conventional cooking products could move to other countries in response to the standards proposed at TSL 2.
At TSL 3, manufacturers could alter production locations in response to standards since all product classes would be required to meet more stringent standards than at TSL 2. DOE estimated that at most 25 percent of the
At TSL 4, manufacturers could alter production locations in response to standards since all product classes would be required to meet max-tech. DOE estimated that at most 50 percent of the domestic labor for residential conventional cooking products could move to other countries in response to the standards prescribed at TSL 4.
DOE seeks comment on the potential domestic employment impacts to residential conventional cooking product manufacturers at the proposed efficiency levels.
Residential conventional cooking product manufacturers stated that they did not anticipate any capacity constraints at the proposed standards, TSL 2. Some manufacturers stated that any standard requiring induction heating technology for all electric smooth element cooking tops would present a very difficult standard to meet since only around 3 percent of the existing electric smooth element cooking tops use induction technology. Manufacturers stated that converting 97 percent of their electric smooth element cooking tops in the 3-year compliance window would present a significant challenge since the production of induction heating cooking tops differs significantly from current cooking top production. However, DOE is not proposing to set efficiency standards that would require manufacturers to use induction technology. Therefore, DOE does not anticipate a manufacturer capacity constraint at TSL 2, the proposed standard.
DOE requests comment on any potential manufacturer capacity constraints caused by the proposed standards in this SNOPR, TSL 2.
Using average cost assumptions to develop an industry cash-flow estimate may not be adequate for assessing differential impacts among manufacturer subgroups. Small manufacturers, niche product manufacturers, and manufacturers exhibiting cost structures substantially different from the industry average could be affected disproportionately. DOE analyzed the impacts to small businesses in section VI.B of this SNOPR. DOE also identified the commercial-style manufacturer subgroup as a potential manufacturer subgroup that could be adversely impacted by this rulemaking based on the results of the industry characterization.
The commercial-style manufacturer subgroup consists of cooking product manufacturers that primarily sell gas cooking tops, gas ovens, and electric self-clean ovens marketed as commercial-style, either as a standalone product or as a component of a conventional range. Commercial-style gas cooking tops typically have heavy cast iron grates that act as an additional thermal load and up to six high input rate burners that contribute to reduced cooking top efficiency. No commercial-style manufacturers sell electric coil element cooking tops and the subgroup would be unaffected by any standard required for this product class. However, some, but not all, commercial-style manufacturers produce electric smooth element cooking tops. Of those commercial-style manufacturers that do produce electric smooth element cooking tops, all have products that use induction technology that would be capable of meeting max-tech for this product class. Commercial-style electric and gas ovens typically have cavities with thick gauge cavity walls and heavier racks that result in inherently lower efficiencies as compared to residential-style ovens with comparable cavities sizes, due to the greater thermal mass of the cavity and racks, when measured by the previous DOE test procedure DOE assumes that the commercial-style manufacturer subgroup is primarily impacted by the proposed energy conservation standards required for the gas cooking top, gas oven, and electric self-clean oven product classes and are not significantly impacted by the standards proposed for the electrical cooking top and the electric standard oven product classes.
For the gas cooking top product class, EL 1 represents DOE's estimate of the most efficient cooking top available on the market with cast-iron grates and six burners, at least four of which are high input rate, which are features associated with gas cooking tops marketed as commercial-style. Commercial-style manufacturers would not be able to meet a gas cooking top standard set at EL 2 or EL 3 while retaining the full functionality of a commercial-style product. Therefore, these commercial-style manufacturers would likely be forced to exit the gas cooking top market as a result of gas cooking top standards set at EL 2 or EL 3. TSL 3 and TSL 4 require EL 3 for the gas cooking top product class.
For the gas oven and electric self-clean oven product classes, TSL 2 represents a prescriptive design requirement for the oven control systems that would maintain features associated with ovens marketed as commercial-style, such as thick gauge cavity walls and heavier extension racks. Commercial-style manufacturers would not be able to meet a performance-based standard for ovens set at a TSL higher than TSL 2 while retaining the full functionality of their commercial-style product. Therefore, these commercial-style manufacturers would be likely forced to exit the conventional oven market as a result of conventional oven standards set above TSL 2.
DOE requests comment on the two manufacturer subgroups that DOE identified, the impacts of the proposed standards on those manufacturer subgroups, and any other potential manufacturer subgroups that could be disproportionally impacted by this rulemaking.
While any one regulation may not impose a significant burden on manufacturers, the combined effects of recent or impending regulations may have serious consequences for some manufacturers, groups of manufacturers, or the entire industry. Assessing the impact of a single regulation may overlook this cumulative regulatory burden. In addition to energy conservation standards, other regulations can significantly affect manufacturers' financial operations. Multiple regulations affecting the same manufacturer can strain profits and lead companies to abandon product lines or markets with lower expected future returns than competing products. For these reasons, DOE conducts a cumulative regulatory burden analysis as part of its rulemakings pertaining to appliance efficiency.
As discussed in section II.B.2 of this SNOPR, DOE published a separate NOPR proposing energy conservation standards for conventional ovens. 80 FR 33030 (June 10, 2015). AHAM and Electrolux commented in response to the June 2015 NOPR that DOE's proposal to bifurcate standards for cooking tops and ovens means that conventional ranges, a single product which makes up over 80 percent of conventional cooking product shipments, could be subject to two different standards on two different timelines. AHAM and Electrolux stated that DOE's proposal to promulgate separate standards for cooking tops and ovens on two separate timelines would likely result in two product redesigns and dual investments for conventional ranges. AHAM added that this would
Whirlpool agreed with AHAM's comments and opposed DOE's proposal to pursue energy conservation standards for cooking tops on a different regulatory timeline than standards for ovens. Whirlpool noted that along with potentially imposing dual product redesigns and investments for conventional ranges, manufacturers may also choose to redesign these products together and launch models to the market in advance of the lagging standard compliance date in order to meet both standards; the net effect of this is a shortened lead-in period for the product tied to the lagging standard. Whirlpool urged DOE to reconsider its proposal and align regulatory timelines for ovens and cooking tops to prevent unnecessary and substantial regulatory burden on industry. (Whirlpool, No. 33 at pp. 3, 4, 8)
DOE recognizes that combined cooking products that include both a conventional cooking top and oven (
Manufacturers also commented that conventional electric ranges are facing an additional redesign in the same time period in order to comply with a recent change to UL 858. That change to the voluntary safety standard will require conventional electric ranges, a combined cooking product covered by this rule, to monitor pan bottom temperature and is aimed at reducing the incidences of unattended cooking fires. Manufacturers noted that the change to UL 858 would likely occur just before the compliance date of new and amended residential conventional cooking product standards. Manufacturers added that changes to comply with the requirements in UL 858 to significantly reduce surface temperatures during a prescribed baking operation may also impact the measured efficiency for these products. Manufacturers further explained that the changes in UL 858 will require a major redesign for all electric coil cooking tops by every manufacturer.
DOE acknowledges that most residential conventional cooking product manufacturers also make appliances that are or could be subject to future energy conservation standards implemented by DOE. DOE looks at these regulations that could affect residential conventional cooking product manufacturers that will take effect approximately 3 years before or after the estimated 2019 compliance date of new and amended energy conservation standards for residential conventional cooking products. These energy conservation standards include those for microwave ovens with a compliance date in 2016,
The compliance years and expected industry conversion costs of relevant new and amended energy conservation standards are indicated in Table V.41.
DOE discusses these and other requirements and includes the full details of the cumulative regulatory burden analysis in Chapter 12 of the SNOPR TSD. DOE will continue to evaluate its approach to assessing cumulative regulatory burden for use in future rulemakings to ensure that it is effectively capturing the overlapping impacts of its regulations. In particular, DOE will assess whether looking at rules where any portion of the compliance period potentially overlaps with the compliance period for the subject rulemaking would yield a more accurate reflection of cumulative regulatory burden.
DOE seeks comment on the compliance costs of any other regulations residential conventional cooking product manufacturers must follow, especially if compliance with those regulations is required three years before or after the estimated compliance date of this proposed standard (2019). Additionally, DOE welcomes comment on how it analyzes and considers cumulative regulatory burden.
To estimate the energy savings attributable to potential standards for conventional cooking products, DOE compared the energy consumption of those products under the no-new-standards case to their anticipated energy consumption under each TSL. The savings are measured over the entire lifetime of products purchased in the 30-year period that begins in the year of anticipated compliance with amended standards (2019–2048). Table V.42 presents DOE's projections of the national energy savings for each TSL considered for conventional cooking products. The savings were calculated using the approach described in section IV.H of this SNOPR.
OMB Circular A–4
DOE estimated the cumulative NPV to the nation of the total costs and savings for consumers that would result from particular standard levels for conventional cooking products. In accordance with the OMB's guidelines on regulatory analysis (OMB Circular A–4, section E, September 17, 2003),
The NPV results based on the aforementioned 9-year analytical period are presented in Table V.45. The impacts are counted over the lifetime of products purchased in 2019–2027. As mentioned previously, such results are presented for informational purposes only and is not indicative of any change in DOE's analytical methodology or decision criteria.
The above results reflect the use of a default trend to estimate the change in price for conventional cooking products over the analysis period (see section IV.F.1 of this SNOPR). DOE also conducted a sensitivity analysis that considered one scenario with a lower rate of price decline than the reference case and one scenario with a higher rate of price decline than the reference case. The results of these alternative cases are presented in appendix 10C of the SNOPR TSD. In the high price decline case, the NPV is higher than in the default case. In the low price decline case, the NPV is lower than in the default case.
DOE expects energy conservation standards for conventional cooking products to reduce energy bills for consumers of those products, and the resulting net savings to be redirected to other forms of economic activity. These expected shifts in spending and economic activity could affect the demand for labor. As described in section IV.N of this SNOPR, DOE used an input/output model of the U.S. economy to estimate indirect employment impacts of the TSLs that DOE considered in this rulemaking. DOE understands that there are uncertainties involved in projecting employment impacts, especially changes in the later years of the analysis. Therefore, DOE generated results for near-term timeframes, where these uncertainties are reduced.
The results suggest that the proposed standards are likely to have negligible impact on the net demand for labor in the economy. The net change in jobs is so small that it would be imperceptible in national labor statistics and might be offset by other, unanticipated effects on employment. Chapter 16 of the SNOPR TSD presents detailed results.
Based on testing conducted in support of this proposed rule, discussed in section IV.C.2 of this SNOPR, DOE concluded that the standards proposed in this SNOPR would not reduce the utility or performance of the conventional cooking products under consideration in this rulemaking. Manufacturers of these products currently offer units that meet or exceed the proposed standards.
DOE has also considered any lessening of competition that is likely to result from the proposed standards. The Attorney General determines the impact, if any, of any lessening of competition likely to result from a proposed standard, and transmits such determination to DOE, together with an analysis of the nature and extent of such impact. (42 U.S.C. 6295(o)(2)(B)(i)(V) and (B)(ii))
DOE will transmit a copy of this SNOPR and the accompanying TSD to the Attorney General, requesting that the DOJ provide its determination on this issue. DOE will consider DOJ's comments on the proposed rule in determining whether to proceed with the proposed energy conservation standards. DOE will also publish and respond to DOJ's comments in the
Enhanced energy efficiency, where economically justified, improves the nation's energy security, strengthens the economy, and reduces the environmental impacts (costs) of energy production. Reduced electricity demand due to energy conservation standards is also likely to reduce the cost of maintaining the reliability of the electricity system, particularly during peak-load periods. As a measure of this reduced demand, chapter 15 in the SNOPR TSD presents the estimated reduction in generating capacity, relative to the no-new-standards case, for the TSLs that DOE considered in this rulemaking.
Energy conservation resulting from proposed standards for conventional cooking products are expected to yield environmental benefits in the form of reduced emissions of air pollutants and greenhouse gases. Table V.46 provides DOE's estimate of cumulative emissions reductions to result from the TSLs considered in this rulemaking. The table includes site emissions, power sector emissions and upstream emissions. The emissions were calculated using the multipliers discussed in section IV.K of this SNOPR. DOE reports annual emissions reductions for each TSL in chapter 13 of the SNOPR TSD.
As part of the analysis for this proposed rule, DOE estimated monetary benefits likely to result from the reduced emissions of CO
Table V.47 presents the global value of CO
DOE is well aware that scientific and economic knowledge about the contribution of CO
DOE also estimated the cumulative monetary value of the economic benefits associated with NO
The Secretary of Energy, in determining whether a standard is economically justified, may consider any other factors that the Secretary deems to be relevant. (42 U.S.C. 6295(o)(2)(B)(i)(VII)) No other factors were considered in this analysis.
The NPV of the monetized benefits associated with emissions reductions can be viewed as a complement to the NPV of the consumer savings calculated for each TSL considered in this rulemaking. Table V.49 presents the NPV values that result from adding the estimates of the potential economic benefits resulting from reduced CO
Although adding the value of consumer savings to the values of emission reductions provides a valuable perspective, two issues should be considered. First, the national operating cost savings are domestic U.S. monetary
When considering new or amended energy conservation standards that DOE adopts for any type or class of covered product, they must be designed to achieve the maximum improvement in energy efficiency that the Secretary determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) In determining whether a standard is economically justified, the Secretary must determine whether the benefits of the standard exceed its burdens, considering to the greatest extent practicable the seven statutory factors discussed previously. (42 U.S.C. 6295(o)(2)(B)(i)) The new or amended standard must also result in a significant conservation of energy. (42 U.S.C. 6295(o)(3)(B))
For this SNOPR, DOE considered the impacts of potential amended standards for conventional cooking products at each TSL, beginning with the maximum technologically feasible level, to determine whether that level was economically justified. Where the max-tech level was not justified, DOE then considered the next most efficient level and undertook the same evaluation until it reached the highest efficiency level that is both technologically feasible and economically justified and saves a significant amount of energy.
To aid the reader as DOE discusses the benefits and/or burdens of each trial standard level, tables present a summary of the results of DOE's quantitative analysis for each TSL. In addition to the quantitative results presented in the tables, DOE also considers other burdens and benefits that affect economic justification. Those include the impacts on identifiable subgroups of consumers who may be disproportionately affected by a national standard. Section V.B.1 of this SNOPR presents the estimated impacts of each TSL for these subgroups.
DOE also notes that the economics literature provides a wide-ranging discussion of how consumers trade off upfront costs and energy savings in the absence of government intervention. Much of this literature attempts to explain why consumers appear to undervalue energy efficiency improvements. This undervaluation suggests that regulation that promotes energy efficiency can produce significant net private gains (as well as producing social gains by, for example, reducing pollution). There is evidence that consumers undervalue future energy savings as a result of (1) a lack of information; (2) a lack of sufficient salience of the long-term or aggregate benefits; (3) a lack of sufficient savings to warrant delaying or altering purchases; (4) excessive focus on the short term, in the form of inconsistent weighting of future energy cost savings relative to available returns on other investments; (5) computational or other difficulties associated with the evaluation of relevant tradeoffs; and (6) a divergence in incentives (between renters and owners, or builders and purchasers). Having less than perfect foresight and a high degree of uncertainty about the future, consumers may trade off these types of investments at a higher than expected rate between current consumption and uncertain future energy cost savings.
In DOE's current regulatory analysis, potential changes in the benefits and costs of a regulation due to changes in consumer purchase decisions are included in two ways: First, if consumers forego a purchase of a product in the standards case, this decreases sales for product manufacturers, and the impact on manufacturers attributed to lost revenue is included in the MIA. Second, DOE accounts for energy savings attributable only to products actually used by consumers in the standards case; if a regulatory option decreases the number of products used by consumers, this decreases the potential energy savings from an energy conservation standard. DOE provides estimates of shipments and changes in the volume of product purchases in chapter 9 of the SNOPR TSD. However, DOE's current analysis does not explicitly control for heterogeneity in consumer preferences, preferences across subcategories of products or specific features, or consumer price sensitivity variation according to household income.
While DOE is not prepared at present to provide a fuller quantifiable framework for estimating the benefits and costs of changes in consumer purchase decisions due to an energy conservation standard, DOE is committed to developing a framework that can support empirical quantitative tools for improved assessment of the consumer welfare impacts of appliance standards. DOE has posted a paper that discusses the issue of consumer welfare impacts of appliance energy efficiency standards, and potential enhancements to the methodology by which these impacts are defined and estimated in the regulatory process.
Table V.51 summarize the quantitative impacts estimated for each TSL for conventional cooking products. The national impacts are measured over the lifetime of conventional cooking products purchased in the 30-year period that begins in the anticipated year of compliance with amended standards (2019–2048). The energy savings, emissions reductions, and value of emissions reductions refer to full-fuel-cycle results. The efficiency levels contained in each TSL are described in section V.A of this SNOPR.
DOE first considered TSL 4, which represents the max-tech efficiency levels. TSL 4 would save 1.85 quads of energy, an amount DOE considers significant. Under TSL 4, the NPV of consumer benefit would be negative 8.94 billion using a discount rate of 7 percent, and negative 11.91billion using a discount rate of 3 percent.
The cumulative emissions reductions at TSL 4 are 109 Mt of CO
At TSL 4, the average LCC impact ranges from a loss of $280.82 for PC2 (Electric Smooth Element Cooking Tops) to a savings of $15.83 for PC3 (Gas Cooking Tops). The simple payback period ranges from 0.5 years for PC1 (Electric Open Element Cooking Tops) to 61.9 years for PC2 (Electric Smooth Element Cooking Tops). The fraction of consumers experiencing an LCC net cost ranges from 6 percent for PC3 (Gas Cooking Tops) to 98 percent for PC2 (Electric Smooth Element Cooking Tops).
DOE notes that the reduction in IAEC at TSL 4 could result in the unavailability of certain product types, specifically commercial-style cooking tops that incorporate certain features that may be expected by purchasers of such products,
At TSL 4, the projected change in INPV ranges from a decrease of $923.6 million to a decrease of $727.1 million, equivalent to a loss of 74.6 percent and a loss of 58.7 percent, respectively.
Products that meet the efficiency standards specified by TSL 4 are forecast to represent 13 percent of shipments in the year leading up to new and amended standards. As such, manufacturers would have to redesign nearly all products by the 2019 compliance date to meet demand. Redesigning all units to meet max-tech would require considerable capital and product conversion expenditures. At TSL 4, DOE estimates capital conversion costs would total $580.2 million and product conversion costs would total $525.4 million. Total capital and product conversion costs associated with the changes in products and manufacturing facilities required at TSL 4 would require significant use of manufacturers' financial reserves and would significantly reduce manufacturer INPV. Additionally, manufacturers are more likely to reduce their margins to maintain a price-competitive product at higher TSLs, so DOE expects that TSL 4 would yield impacts closer to the most severe range of INPV impacts. If the most severe range of impacts is reached, as DOE expects could happen, TSL 4 could result in a net loss of 74.6 percent in INPV to residential conventional cooking product manufacturers. As a result, at TSL 4, DOE expects that some companies could be forced to exit the residential conventional cooking product market or shift production abroad, both of which would negatively impact domestic manufacturing capacity and employment. The commercial-style manufacturer subgroup, which primarily produces gas cooking products that are marketed as commercial-style, would not be able to meet the gas cooking product standards required at this TSL and would likely be forced to exit the gas cooking product market, which could negatively impact domestic employment.
In view of the foregoing, DOE has tentatively concluded that, at TSL 4 for conventional cooking products, the benefits of energy savings, positive NPV of total customer benefits, customer LCC savings for six of the eleven product classes, emission reductions and the estimated monetary value of the emissions reductions would be outweighed by the negative customer impacts for product classes 2, 4, 5, 6 and 7 (Electric Smooth Element Cooking Tops and all Electric Ovens), the potential burden on consumers from the unavailability of certain product types for PC3 (Gas Cooking Tops), the uncertainty of performance-based standards for PC4 through PC11 (Conventional Ovens) since DOE is proposing to repeal its conventional oven test procedure, the significant reduction in industry value at TSL 4, as well as the potential for loss of domestic manufacturing. Consequently, DOE has tentatively concluded that TSL 4 is not economically justified.
DOE then considered TSL 3, which comprises efficiency levels providing maximum NES with positive NPV. TSL 3 would save 1.01 quads of energy, an amount DOE considers significant. Under TSL 3, the NPV of consumer benefit would be $2.50 billion using a discount rate of 7 percent, and $6.28 billion using a discount rate of 3 percent.
The cumulative emissions reductions at TSL 3 are 59.1 Mt of CO
At TSL 3, the average LCC impact is a savings ranging from $2.87 for PC1 (Electric Coil Cooking Tops) to $24.37 for PC2 (Electric Smooth Element Cooking Tops). The simple payback period ranges from 0.5 years for PC1 (Electric Open Element Cooking Tops) to 6.0 years for Gas Standard Ovens. The fraction of consumers experiencing an LCC net cost ranges from zero percent for PC2, PC6, and PC7 (Electric Smooth Element Cooking Tops, and all Electric Self-Clean Ovens) to 61 percent for all Gas Standard Ovens.
As described for TSL 4, the reduction in IAEC at TSL 3 could also result in a lack in the availability of commercial-style cooking tops that incorporate certain features that may be expected by purchasers of such products,
At TSL 3, the projected change in INPV ranges from a decrease of $393.5 million to a decrease of $370.1 million, equivalent to a loss of 31.8 percent and a loss of 29.9 percent, respectively.
Products that meet the efficiency standards specified by TSL 3 are forecast to represent 30 percent of shipments in the year leading up to new and amended standards. As such, manufacturers would have to redesign a large portion of products by the 2019 compliance date to meet demand. Redesigning the majority of units to meet efficiency requirements at TSL 3 would require considerable capital and product conversion expenditures. At TSL 3, DOE estimates capital conversion costs would total $248.2 million and product conversion costs would total $261.8 million. Total capital and product conversion costs associated with the changes in products and manufacturing facilities required at TSL 3 would require significant use of manufacturers' financial reserves and would significantly reduce manufacturer INPV. As a result, at TSL 3, DOE expects that some companies could be forced to exit the residential conventional cooking product market or shift production abroad, both of which would negatively impact domestic manufacturing capacity and employment. The commercial-style manufacturer subgroup, which primarily produces gas cooking products that are marketed as commercial-style, would not be able to meet the gas cooking product standards required at this TSL and would likely be forced to exit the gas cooking product market, which could negatively impact domestic employment.
In view of the foregoing, DOE has tentatively concluded that, at TSL 3 for conventional cooking products, the benefits of energy savings, positive NPV of total customer benefits, customer LCC savings for all the product classes, emission reductions and the estimated monetary value of the emissions reductions would be outweighed by the negative customer impacts for product classes 8 through 11 (all Gas Ovens), the potential burden on consumers from the unavailability of certain product types for PC3 (Gas Cooking Tops), the uncertainty of performance-based standards for PC4 through PC11 (Conventional Ovens) since DOE has proposed to repeal its conventional oven test procedure, the significant reduction in industry value at TSL 3, as well as the potential for loss of domestic manufacturing. Consequently, DOE has tentatively concluded that TSL 3 is not economically justified.
DOE then considered TSL 2. TSL 2 includes the prescriptive standards for conventional ovens and represents a level between TSL 1 and TSL 3 that does not eliminate commercial-style cooking tops from the market and yields an NPV greater than TSL 1. TSL 2 would save 0.76 quads of energy, an amount DOE considers significant. Under TSL 2, the NPV of consumer benefit is $2.72 billion using a discount rate of 7 percent, and $6.24 billion using a discount rate of 3 percent.
The cumulative emissions reductions at TSL 2 are 45.3 Mt of CO
At TSL 2, the average LCC impact is a savings ranging from $1.10 for PC3 (Gas Cooking Tops) to $48.05 for PC11 (Gas Self-Cleaning Ovens, Built-in/Slide-in). The simple payback period ranges from 0.5 years for PC1 (Electric Open Element Cooking Tops) to 9.1 years for PC3 (Gas Cooking Tops). The fraction of consumers experiencing a LCC net cost ranges from zero percent for PC2 and PC4 through PC11 (Electric Smooth Element Cooking Tops, and all Electric and Gas Ovens) to 19 percent for PC1 (Electric Open Element Cooking Tops).
At TSL 2, the projected change in INPV ranges from a decrease of $89.6 million to a decrease of $81.4 million, equivalent to a loss of 7.2 percent and a loss of 6.6 percent, respectively. Products that meet the efficiency standards specified by this TSL are forecast to represent 49 percent of shipments in the year leading up to new and amended standards. DOE estimates that compliance with TSL 2 would require manufacturers to make an estimated $47.9 million in capital conversion costs and would require manufacturers to make an estimated $71.3 million in product conversion costs primarily relating to the research and development programs needed to improve upon existing platforms to meet the specified efficiency levels. The substantial reduction in conversion costs corresponding to compliance with TSL 2, compared to compliance with TSL 3 and TSL 4, greatly mitigates the operational risk and impact on manufacturer INPV.
DOE estimates that the reduction in IAEC due to a performance standard under TSL 2 for PC3 (Gas Cooking Tops) would not result in the unavailability of certain product types and features. Specifically, the commercial-style gas cooking tops that may be lost under TSL 3 would be retained at TSL 2. Based on DOE's testing, as presented in section IV.C.2 of this SNOPR, commercial-style gas cooking tops are available on the market that meet the proposed efficiency level under TSL 2.
Additionally, because TSL 2 is composed of prescriptive requirements for conventional ovens, the industry would not face the costs associated with complying with performance requirements for these product classes. TSL 2 would require conventional gas ovens to be equipped with a control system that uses intermittent/interrupted ignition or intermittent pilot ignition and does not use a linear power supply. For conventional electric ovens, TSL 2 would require that conventional electric ovens not be equipped with a control system that uses a linear power
After considering the analysis and weighing the benefits and burdens, the Secretary tentatively concludes that at TSL 2 for residential conventional cooking products, the benefits of energy savings, positive NPV of consumer benefits, emission reductions, and the estimated monetary value of the CO
Therefore, based on the above considerations, DOE proposes TSL 2 for conventional cooking products. The proposed energy conservation standards for conventional cooking tops are shown in Table V.52. As discussed in section IV.C.3 in this SNOPR, the efficiency levels analyzed in this SNOPR are based, in part, on DOE's testing of products in its test sample. DOE recognizes that manufacturers implement different heating element or burner designs and welcomes additional test data regarding the proposed standard levels.
For conventional ovens, the proposed standards at TSL 2 correspond to a prescriptive design requirement for the control system of the oven. DOE is proposing to require that conventional electric ovens not be equipped with a control system that uses a linear power supply. DOE is also proposing that conventional gas ovens be equipped with a control system that uses an intermittent/interrupted ignition or intermittent pilot ignition and does not use a linear power supply. DOE also notes that the current prescriptive standards for conventional gas ovens prohibiting constant burning pilot lights would continue to be applicable. (10 CFR 430.32(j)).
The benefits and costs of the proposed standards can also be expressed in terms of annualized values. The annualized net benefit is the sum of (1) the annualized national economic value (expressed in 2015$) of the benefits from operating products that meet the proposed standards (consisting primarily of operating cost savings from using less energy, minus increases in product purchase costs, which is another way of representing consumer NPV), and (2) the monetary value of the benefits of CO
Table V.53 shows the annualized values for conventional cooking products under TSL 2, expressed in 2015$. The results under the primary estimate are as follows.
Using a 7-percent discount rate for benefits and costs other than CO
Section 1(b)(1) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), requires each agency to identify the problem that it intends to address, including, where applicable, the failures of private markets or public institutions that warrant new agency action, as well as to assess the significance of that problem. The problems that the proposed standards address are as follows:
(1) Insufficient information and the high costs of gathering and analyzing relevant information leads some consumers to miss opportunities to make cost-effective investments in energy efficiency.
(2) In some cases the benefits of more efficient products are not realized due to misaligned incentives between purchasers and users. An example of such a case is when the products purchase decision is made by a building contractor or building owner who does not pay the energy costs.
(3) There are external benefits resulting from improved energy efficiency of appliances that are not captured by the users of such products. These benefits include externalities related to public health, environmental protection, and national security that are not reflected in energy prices, such as reduced emissions of air pollutants and greenhouse gases that impact human health and global warming.
The Administrator of the Office of Information and Regulatory Affairs (OIRA) in the OMB has determined that the proposed regulatory action is a significant regulatory action under section (3)(f) of Executive Order 12866. Accordingly, pursuant to section 6(a)(3)(B) of the Order, DOE has provided to OIRA: (i) The text of the draft regulatory action, together with a reasonably detailed description of the need for the regulatory action and an explanation of how the regulatory action will meet that need; and (ii) An assessment of the potential costs and benefits of the regulatory action, including an explanation of the manner in which the regulatory action is consistent with a statutory mandate. DOE has included these documents in the rulemaking record.
In addition, DOE has determined that this regulatory action is an “economically significant regulatory action” under Executive Order 12866. Accordingly, pursuant to section 6(a)(3)(C) of the Order, DOE has
DOE has also reviewed this regulation pursuant to Executive Order 13563. 76 FR 3281 (Jan. 21, 2011). Executive Order 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, agencies are required by Executive Order 13563 to: (1) Propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.
DOE emphasizes as well that Executive Order 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, OIRA has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, DOE believes that this SNOPR is consistent with these principles, including the requirement that, to the extent permitted by law, benefits justify costs and that net benefits are maximized.
The Regulatory Flexibility Act (5 U.S.C. 601
For manufacturers of residential conventional cooking products, the SBA has set a size threshold, which defines those entities classified as “small businesses” for the purposes of the statute. DOE used the small business size standards published by SBA to determine whether any small entities would be required to comply with this rule.
DOE reviewed the potential standard levels considered in this SNOPR under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. To better assess the potential impacts of this rulemaking on small entities, DOE conducted a more focused inquiry of the companies that could be small businesses of products covered by this rulemaking. During its market survey, DOE used available public information to identify potential small businesses. DOE's research involved industry trade association membership directories (
DOE also asked stakeholders and industry representatives if they were aware of any additional small businesses during manufacturer interviews and at DOE public meetings. DOE reviewed publicly available data and contacted various companies on its complete list of businesses, as necessary, to determine whether they
DOE identified 21 companies that either manufacture or sell residential conventional cooking products that would be affected by this proposal. Of these 21 companies, DOE identified 10 that met the SBA's definition of a small business. However, DOE believes that only eight of these 10 small businesses actually manufacture the products they sell. The other two are rebranders and do not manufacture the products they sell.
DOE contacted identified businesses to invite them to take part in a manufacturer impact analysis interview. DOE contacted all 10 potential small businesses to participate in manufacturer interviews. DOE was able to reach and discuss potential standards with two small businesses. DOE also obtained information about small businesses and potential impacts on small businesses while interviewing large manufacturers.
Three major manufacturers supply approximately 85 percent of the market for residential conventional cooking products. None of the three major manufacturers of residential conventional cooking products affected by this rulemaking is a small business. DOE estimates that the remaining 15 percent of the market is served by a combination of 10 small businesses and eight large businesses, not counting the three major manufacturers.
In general, small manufacturers differ from large manufacturers in several ways that affect the extent to which a manufacturer may be impacted by proposed standards. Characteristics of small manufacturers typically include: lower production volumes, fewer engineering resources, and less access to capital. Lower production volumes in particular may place small manufacturers at a competitive disadvantage relative to large manufacturers as they convert products and facilities to comply with new and amended standards. When producing at lower volumes, a small manufacturer's conversion costs must be spread over fewer units than a larger competitor's. Therefore, unless a small manufacturer can differentiate its products in order to earn a price premium, the small manufacturer may experience a disproportionate cost penalty as it spreads one-time conversion costs over fewer unit sales. Additionally, when producing at lower volumes, small manufacturers may lack the purchasing power of their larger competitors and may therefore face higher costs when sourcing components for more efficient products. Disadvantages tied to lower production volumes may be further exacerbated by the fact that small manufacturers often have more limited engineering resources than their larger competitors, thereby complicating the redesign effort required to comply with new and amended standards. Finally, small manufacturers often have less access to capital, which may be needed to cover the conversion costs associated with new and amended standards. Combined, these factors may entail a disproportionate burden on small manufacturers compared to large manufacturers.
DOE discovered that small businesses can be divided into two groups; (1) small manufacturers, that manufacture their products; and (2) rebranders, that label already-manufactured products under their company name. Even though small businesses that re-label already-manufactured products may experience slightly higher unit costs, DOE does not anticipate this rulemaking having a significant effect on these businesses, since these rebranders are not responsible for the conversion costs associated with the proposed standards.
There are two types of small businesses responsible for manufacturing the products they sell; niche small manufacturers and premium small manufacturers. Niche small manufacturers typically produce inexpensive cooking products in non-conventional sizes for unique applications. They typically do not compete with large manufacturers due to the lower sales volumes associated with these non-conventional sizes and unique applications. In order to comply with the proposed oven standards, several niche small manufacturers would need to purchase SMPS for their ovens. However, since this is a purchased part, DOE does not anticipate a significant impact to these manufacturers due to the proposed standards for ovens. For cooking tops, most niche small manufacturers use lighter metal grates in their cooking tops that are more efficient and would already meet the proposed standards for cooking tops.
Premium small manufacturers sell premium cooking products that typically do not compete in the market place on price. These products can be significantly more expensive than the mass volume cooking products that large manufacturers typically sell. Most premium small manufacturers already use switch mode power supplies in their ovens and would not be significantly impacted by the proposed standards for ovens. While some premium manufacturers would have to redesign their cooking tops to meet the proposed standards, there are premium cooking tops on the market that are able to meet these standards while still retaining their premium quality.
At TSL 2, the level proposed in this SNOPR, DOE estimates capital conversion costs of $1.5 million and product conversion costs of $4.0 million for an average small manufacturer. This brings the total conversion costs to approximately $5.5 million for an average small manufacturer. Based on publicly available information from online sources such as Hoovers,
Since the proposed standards could impact up to eight small manufacturers' level of investment and profitability, DOE cannot certify that the proposed standards would not have a significant impact on a substantial number of small businesses.
DOE requests comments on the number of small businesses identified and on the impacts of new and amended energy conservation standards on small businesses, including small rebranders and small manufacturers.
DOE is not aware of any rules or regulations that duplicate, overlap, or conflict with the rule being proposed.
The discussion in the previous section analyzes impacts on small businesses that would result from the proposed standards. In reviewing alternatives to the proposed rule, DOE examined energy conservation standards set at higher and lower efficiency levels, TSL 4, TSL 3, and TSL 1. DOE estimates that for an average small manufacturer, conversion costs would be 86.8 percent lower at TSL 2 ($5.5 million) compared to the conversion costs at TSL 4 ($41.8 million) and would be 75.5 percent lower at TSL 2 ($5.5 million) compared to the conversion costs at TSL 3 ($22.6 million). The substantial reduction in small manufacturer conversion costs corresponding to TSL 2 compared to TSL 4 and TSL 3 greatly mitigates the operational risk and the impact of the standards on small manufacturer's profitability.
While TSL 1 would reduce the impacts on small businesses, it would come at the expense of a significant reduction in energy savings and NPV benefits to consumers, achieving 29 percent lower energy savings and 36 percent less NPV benefits to consumers compared to the energy savings and NPV benefits at TSL 2.
DOE believes that establishing standards at TSL 2 balances the benefits of the energy savings and the NPV benefits to consumers created at TSL 2 with the potential burdens placed on residential conventional products manufacturers, including small businesses. Accordingly, DOE is declining to adopt one of the other TSLs, or the other policy alternatives detailed as part of the regulatory impacts analysis included in chapter 17 of the SNOPR TSD.
Additional compliance flexibilities may be available through other means. For example EPCA provides that a manufacturer whose annual gross revenue from all of its operations does not exceed $8 million may apply for an exemption from all or part of an energy conservation standard for a period not longer than 24 months after the effective date of a final rule establishing the standards. (42 U.S.C. 6295(t)) DOE estimates that three of the nine small manufacturers could potentially petition for a waiver based on their annual gross revenue not exceeding $8 million. Additionally, Section 504 of the Department of Energy Organization Act, 42 U.S.C. 7194, provides authority for the Secretary to adjust a rule issued under EPCA in order to prevent “special hardship, inequity, or unfair distribution of burdens” that may be imposed on that manufacturer as a result of such rule. Manufacturers should refer to 10 CFR part 430, subpart E, and part 1003 for additional details.
DOE continues to seek input from businesses that would be affected by this rulemaking and will consider comments received in the development of any final rule (See section VII.B of this SNOPR that solicits specific data as well as input on the results of the analyses contained in this section VI.B.4.)
Manufacturers of covered products must certify to DOE that their products comply with any applicable energy conservation standards. In certifying compliance, manufacturers must test their products according to the applicable DOE test procedure, including any amendments adopted for that test procedure. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including conventional cooking products. 76 FR 12422 (March 7, 2011). The collection-of-information requirement for the certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been approved by OMB under OMB control number 1910–1400. DOE requested OMB approval of an extension of this information collection for 3 years, specifically including the collection of information proposed in the present rulemaking, and estimated that the annual number of burden hours under this extension is 30 hours per company. In response to DOE's request, OMB approved DOE's information collection requirements covered under OMB control number 1910–1400 through November 30, 2017. 80 FR 5099 (Jan. 30, 2015).
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
Pursuant to the National Environmental Policy Act (NEPA) of 1969, DOE has determined that the proposed rule fits within the category of actions included in Categorical Exclusion (CX) B5.1 and otherwise meets the requirements for application of a CX. See 10 CFR part 1021, App. B, B5.1(b); 1021.410(b) and App. B, B(1)–(5). The proposed rule fits within the category of actions because it is a rulemaking that establishes energy conservation standards for consumer products or industrial equipment, and for which none of the exceptions identified in CX B5.1(b) apply. Therefore, DOE has made a CX determination for this rulemaking, and DOE does not need to prepare an Environmental Assessment or Environmental Impact Statement for this proposed rule. DOE's CX
Executive Order 13132, “Federalism.” 64 FR 43255 (Aug. 10, 1999) imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) No further action is required by Executive Order 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996). Regarding the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this proposed rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104–4, sec. 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at
Although the proposed rule does not contain a Federal intergovernmental mandate, it may require expenditures of $100 million or more in any one year by the private sector. Such expenditures may include: (1) Investment in research and development and in capital expenditures by conventional cooking product manufacturers in the years between the final rule and the compliance date for the new standards, and (2) incremental additional expenditures by consumers to purchase higher-efficiency conventional cooking products.
Section 202 of UMRA authorizes a Federal agency to respond to the content requirements of UMRA in any other statement or analysis that accompanies the proposed rule. 2 U.S.C. 1532(c). The content requirements of section 202(b) of UMRA relevant to a private sector mandate substantially overlap the economic analysis requirements that apply under section 325(o) of EPCA and Executive Order 12866. The
Under section 205 of UMRA, the Department is obligated to identify and consider a reasonable number of regulatory alternatives before promulgating a rule for which a written statement under section 202 is required. 2 U.S.C. 1535(a). DOE is required to select from those alternatives the most cost-effective and least burdensome alternative that achieves the objectives of the proposed rule unless DOE publishes an explanation for doing otherwise, or the selection of such an alternative is inconsistent with law. As required by 42 U.S.C. 6295(d), (f), and (o), 6313(e), and 6316(a), this proposed rule would establish new and amended energy conservation standards for conventional cooking products that are designed to achieve the maximum improvement in energy efficiency that DOE has determined to be both technologically feasible and economically justified. A full discussion of the alternatives considered by DOE is presented in the “Regulatory Impact Analysis” section of the TSD for the proposed rule.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105–277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
Pursuant to Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (Mar. 18, 1988), DOE has determined that this regulation would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed the SNOPR under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
DOE has tentatively concluded that this regulatory action, which sets forth energy conservation standards for conventional cooking products, is not a significant energy action because the proposed standards are not likely to have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects on the proposed rule.
On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy (OSTP), issued its Final Information Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (Jan. 14, 2005). The Bulletin establishes that certain scientific information shall be peer reviewed by qualified specialists before it is disseminated by the Federal Government, including influential scientific information related to agency regulatory actions. The purpose of the bulletin is to enhance the quality and credibility of the Government's scientific information. Under the Bulletin, the energy conservation standards rulemaking analyses are “influential scientific information,” which the Bulletin defines as scientific information the agency reasonably can determine will have, or does have, a clear and substantial impact on important public policies or private sector decisions. 70 FR 2667.
In response to OMB's Bulletin, DOE conducted formal in-progress peer reviews of the energy conservation standards development process and analyses and has prepared a Peer Review Report pertaining to the energy conservation standards rulemaking analyses. Generation of this report involved a rigorous, formal, and documented evaluation using objective criteria and qualified and independent reviewers to make a judgment as to the technical/scientific/business merit, the actual or anticipated results, and the productivity and management effectiveness of programs and/or projects. The “Energy Conservation Standards Rulemaking Peer Review Report” dated February 2007 has been disseminated and is available at the following Web site:
DOE will accept comments, data, and information regarding this proposed rule no later than the date provided in the
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Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person that would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
Although DOE welcomes comments on any aspect of this proposal, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:
1. DOE welcomes comments on whether there are products currently available on the market that would meet DOE's definition of a conventional oven, but that could not be tested according to the DOE test procedures adopted in adopted in the July 2015 TP Final Rule (see section III.A of this SNOPR).
2. DOE requests comment on the proposed product classes for residential conventional cooking products. DOE welcomes comment and data on the determination that conventional gas cooking products with higher input rates (
3. DOE seeks comment the proposed determination to consider induction heating as a technology option for electric smooth cooking tops rather than as a separate product class. DOE noted that induction heating provides the same basic function of cooking or heating food as heating by gas flame or electric resistance and that the installation options available to consumers are also the same for both cooking products with induction and electric resistance heating. DOE also noted that the utility of speed of cooking, ease of cleaning, and requirements for specific cookware for induction cooking tops do not appear to be uniquely associated with higher energy use compared to other smooth cooking tops with electric resistance heating elements (see section IV.A.2.a of this SNOPR).
4. DOE requests comment on its determination to consider self-clean ovens as a separate product class and that the self-cleaning function of the self-clean oven may employ methods other than a high temperature pyrolytic cycle to perform the cleaning action. DOE welcomes data on the effectiveness and frequency of consumer use of pyrolytic versus non-pyrolytic self-cleaning technologies (see section IV.A.2.b of this SNOPR).
5. DOE welcomes comment on whether improved contact conductance should be considered as a technology option, in particular information and data substantiating the claims that radiation acts like conduction at very short distances and the degree to which the heating element or cookware may deform and impact the heat transfer between the two surfaces (see section IV.A.3.a of this SNOPR).
6. DOE requests comment on the proposed definitions of the terms “intermittent/interrupted ignition” and “intermittent pilot ignition” (see section IV.A.3.b of this SNOPR).
7. DOE requests comment on whether a reduced vent rate should be considered a design option and whether a reduction in vent rate could be used to reduce the energy consumption of conventional electric standard ovens (see section IV.A.3.b of this SNOPR).
8. DOE requests comment and data regarding additional design options or variants of the considered design options that can increase the range of considered efficiency improvements for conventional cooking tops, including design options that may not yet be found in the market (see section IV.B.2 of this SNOPR).
9. DOE requests comment on the proposed baseline and incremental efficiency levels. DOE specifically requests inputs and test data on the baseline efficiency levels and the efficiency improvements associated with the design options identified at each incremental efficiency level that were determined based on either the analysis from the 2009 TSD or updated based on testing and reverse engineering analyses for this SNOPR (see section IV.C.3 of this SNOPR).
10. DOE requests input and data on the proposed incremental manufacturing production costs for each efficiency level analyzed that were determined based on either the analysis from the 2009 TSD adjusted to reflect changes in the PPI or costs determined based on testing and reverse engineering analyses conducted for this SNOPR (see section IV.C.4 of this SNOPR).
11. DOE seeks comment on the tentative determination that the proposed efficiency levels and design options would not impact the consumer utility of conventional cooking products (see section IV.C.5 of this SNOPR).
12. DOE requests comments on its repair cost estimation for gas ovens, as well as on its decision not to include changes in repair and maintenance costs for products more efficient than baseline products for electric cooking products (see section IV.F.5 of this SNOPR).
13. DOE requests comments on the use of a consumer choice model to establish the no-new standards case and standards case efficiency distribution for both electric and gas cooking products (see section of this IV.F.9 SNOPR)
14. DOE requests comments on it approach to developing the shipments forecast and the use of relevant data in the shipments analysis (see section IV.G of this SNOPR).
15. DOE requests comment on extending data it received from AHAM on the average lifetime for ovens to cooktop products as well, resulting in an average lifetime estimate for all gas ovens and cooktops of 13 years and all electric ovens and cooktops of 16 years (See section IV.F. 6).
16. DOE requests data that would allow for use of different price trend projections for electric and gas cooking products (see section IV.H.3.b of this SNOPR).
17. To estimate the impact on shipments of the price increase for the considered efficiency levels, DOE determined that the new construction market will be inelastic to price changes and will not impact shipments, and any impact of the price increase would be on the replacement market. DOE welcomes input on the effect of new and amended standards on impacts across products within the same fuel class and equipment (see section IV.G of this SNOPR).
18. DOE requests comment on the reasonableness of the approach DOE has used to consider the rebound effect with higher-efficiency cooking products (see section IV.F.3 of this document).
19. DOE requests comment on DOE's approach for estimating monetary benefits associated with emissions reductions (see section IV.L of this SNOPR).
20. DOE seeks comment on the use of 1.20 as a manufacturer markup for all residential conventional cooking products (see section IV.J.2 of this SNOPR).
21. DOE seeks comment on the potential domestic employment impacts to residential conventional cooking product manufacturers at the proposed efficiency levels (see section V.B.2 of this SNOPR).
22. DOE requests comment on any potential manufacturer capacity constraints caused by the proposed standards in this SNOPR, TSL 2 (see section V.B.2 of this SNOPR).
23. DOE requests comment on the two manufacturer subgroups that DOE identified, the impacts of the proposed standards on those manufacturer subgroups, and any other potential manufacturer subgroups that could be disproportionally impacted by this rulemaking (see section V.B.2 of this SNOPR).
24. DOE seeks comment on the compliance costs of any other regulations that residential conventional cooking product manufacturers may incur, especially if compliance with those regulations is required 3 years before or after the estimated compliance date of this proposed standard (2019) (see section V.B.2 of this SNOPR).
25. DOE requests comments on the number of small businesses identified and on the impacts of new and amended energy conservation standards on small businesses, including small rebranders and small manufacturers (see section VI.B of this SNOPR).
The Secretary of Energy has approved publication of this proposed rule.
Confidential business information, Energy conservation, Household appliances, Imports, Reporting and recordkeeping requirements.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental relations, Reporting and recordkeeping requirements, and Small businesses.
For the reasons set forth in the preamble, DOE proposes to amend parts 429 and 430 of chapter II, subchapter D, of title 10 of the Code of Federal Regulations, as set forth below:
42 U.S.C. 6291–6317; 28 U.S.C, 2461 note.
(a)
(2) For each basic model of cooking products a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of estimated annual operating cost, standby mode power consumption, off mode power consumption, annual energy consumption, integrated annual energy consumption, or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
And
(b)
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:
(i) Conventional gas cooking tops: The integrated annual energy consumption in thousand British thermal units per year (kBtu/yr);
(ii) Conventional electric cooking tops: The integrated annual energy consumption in thousand watt-hours per year (kWh/yr);
(iii) Conventional gas ovens: The type of gas ignition and power supply with a declaration that the manufacturer has incorporated the applicable design requirements;
(iv) Conventional electric ovens: The type of power supply with a declaration that the manufacturer has incorporated the applicable design requirements; and
(v) Microwave ovens: The average standby power in watts (W).
42 U.S.C. 6291–6309; 28 U.S.C. 2461 note.
(j)
(i) Not be equipped with a constant burning pilot light for gas ovens manufactured on or after April 9, 2012;
(ii) Be equipped with an intermittent/interrupted ignition or intermittent pilot ignition for gas ovens manufactured on or after [
(iii) Not be equipped with a linear power supply for electric and gas ovens manufactured on or after [
(2) Conventional cooking tops manufactured on or after [
(3) Microwave-only ovens and countertop convection microwave ovens manufactured on or after June 17, 2016 shall have an average standby power not more than 1.0 watt. Built-in and over-the-range convection microwave ovens manufactured on or after June 17, 2016
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7266, Washington, DC 20410; telephone (202) 402–3970; TTY number for the hearing- and speech-impaired (202) 708–2565 (these telephone numbers are not toll-free), call the toll-free Title V information line at 800–927–7588 or send an email to
In accordance with 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property. This Notice is also published in order to comply with the December 12, 1988 Court Order in
Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, and suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the property excess to the agency's needs, or (3) a statement of the reasons that the property cannot be declared excess or made available for use as facilities to assist the homeless.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to: Ms. Theresa M. Ritta, Chief Real Property Branch, the Department of Health and Human Services, Room 5B–17, Parklawn Building, 5600 Fishers Lane, Rockville, MD 20857, (301) 443–2265 (This is not a toll-free number.) HHS will mail to the interested provider an application packet, which will include instructions for completing the application. In order to maximize the opportunity to utilize a suitable property, providers should submit their written expressions of interest as soon as possible. For complete details concerning the processing of applications, the reader is encouraged to refer to the interim rule governing this program, 24 CFR part 581.
For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other Federal use. At the appropriate time, HUD will publish the property in a Notice showing it as either suitable/available or suitable/unavailable.
For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available.
Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1–800–927–7588 for detailed instructions or write a letter to Ann Marie Oliva at the address listed at the beginning of this Notice. Included in the request for review should be the property address (including zip code), the date of publication in the
For more information regarding particular properties identified in this Notice (
Office of the Secretary of Health and Human Services, HHS.
Notice.
This notice acknowledges the Secretary of the Department of Health and Human Services' (HHS) receipt and review of the 2016 National Quality Forum Annual Report to Congress and the Secretary submitted by the consensus-based entity (CBE) under a contract with the Secretary as mandated by section 1890(b)(5) of the Social Security Act, established by section 183 of the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA) and amended by section 3014 of the Patient Protection and Affordable Care Act of 2010. The statute requires the Secretary to review and publish the report in the
Sophia Chan (410) 786–5050.
The order in which information is presented in this notice is as follows:
The Patient Protection and Affordable Care Act of 2010 (ACA) provides strategies and tools to more fully achieve “
A key ACA strategy for “
Efforts to transform the health care system to provide higher quality care require accurate, valid, and reliable measurement of the quality and efficiency of health care. Recognition of the need for such measurement predates ACA; MIPPA created section 1890 of the Social Security Act (the Act), which requires the Secretary of HHS to contract with a CBE to perform multiple duties to help improve performance measurement. Section 3014 of ACA expanded the duties of the CBE to help in the identification of gaps in available measures and to improve the selection of measures used in health care programs.
In response to MIPPA, in January of 2009, a competitive contract was awarded by HHS to the National Quality Forum (NQF) to fulfill requirements of section 1890 of the Act. A second, multi-year contract was awarded again to NQF after an open competition in 2012. This contract now includes the following duties created by MIPPA and ACA and contained in section 1890(b) of the Act:
(i) The implementation of quality and efficiency measurement initiatives and the coordination of such initiatives with quality and efficiency initiatives implemented by other payers;
(ii) recommendations on an integrated national strategy and priorities for health care performance measurement;
(iii) performance of the CBE's duties required under its contract with HHS;
(iv) gaps in endorsed quality and efficiency measures, including measures that are within priority areas identified by the Secretary under the national strategy established under section 399HH of the Public Health Service Act (National Quality Strategy), and where quality and efficiency measures are unavailable or inadequate to identify or address such gaps;
(v) areas in which evidence is insufficient to support endorsement of quality and efficiency measures in priority areas identified by the Secretary under the National Quality Strategy, and where targeted research may address such gaps; and
(vi) the convening of multi-stakeholder groups to provide input on: (1) The selection of quality and efficiency measures from among such measures that have been endorsed by the CBE and such measures that have not been considered for endorsement by the CBE but are used or proposed to be used by the Secretary for the collection or reporting of quality and efficiency measures; and (2) national priorities for improvement in population health and the delivery of health care services for consideration under the National Quality Strategy.
The statutory requirements for the CBE to annually report to Congress and the Secretary of HHS also specify that the Secretary of HHS must review and publish the CBE's annual report in the
This
Over the last eight years, Congress has passed two statutes with several extensions that call upon the Department of Health and Human Services (HHS) to work with a consensus-based entity (the “entity”) to facilitate multistakeholder input into: (1) Setting national priorities for healthcare performance measurement, and (2) endorsement and maintenance of measures. The first of these statutes is the 2008 Medicare Improvements for Patients and Providers Act (MIPPA) (Pub. L. 110–275), which established the responsibilities of the consensus-based entity by creating section 1890 of the Social Security Act. The second statute is the 2010 Patient Protection and Affordable Care Act (ACA) (Pub. L. 111–148), which modified and added to the consensus-based entity's responsibilities. The American Taxpayer Relief Act of 2012 (PL 112–240) extended funding under the MIPPA statute to the consensus-based entity through fiscal year 2013. The Protecting Access to Medicare Act of 2014 (PAMA) (Pub. L. 113–93) extended funding under the MIPPA and ACA statutes to the consensus-based entity through March 31, 2015. The Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) (Pub. L. 114–10) extended funding for fiscal years 2015 through 2017. HHS has awarded the consensus-based entity contract under these statutes to the National Quality Forum (NQF).
Section 1890(b)(5) of the Social Security Act specifically charges the Entity to report annually on its work:
As amended by the above laws, the Social Security Act (the Act)—specifically section 1890(b)(5)(A)—mandates that the entity report to Congress and the Secretary of the Department of Health and Human Services (HHS) no later than March 1st of each year. The report must include descriptions of: (1) How NQF has implemented quality and efficiency measurement initiatives under the Act and coordinated these initiatives with those implemented by other payers; (2) NQF's recommendations with respect to an integrated national strategy and priorities for health care performance measurement in all applicable settings; (3) NQF's performance of the duties required under its contract with HHS; (4) gaps in endorsed quality and efficiency measures, including measures that are within priority areas identified by the Secretary under HHS' national strategy, and where quality and efficiency measures are unavailable or inadequate to identify or address such gaps; (5) areas in which evidence is insufficient to support endorsement of measures in priority areas identified by the National Quality Strategy, and where targeted research may address such gaps and (6) matters related to convening multistakeholder groups to provide input on: (a) The selection of certain quality and efficiency measures, and (b) national priorities for improvement in population health and in the delivery of healthcare services for consideration under the National Quality Strategy.
This seventh annual report highlights NQF's work related to these laws and conducted between January 1 and December 31, 2015, under contract with the HHS. The deliverables produced under contract in 2015 are referenced throughout this report, and a full list is included in Appendix A.
Section 1890(b)(1) of the Act mandates that the consensus-based entity (entity) also required under section 1890 of the Act shall “synthesize evidence and convene key stakeholders to make recommendations . . . on an integrated national strategy and priorities for health care performance measurement in all applicable settings.” In making such recommendations, the entity shall ensure that priority is given to measures that address the healthcare provided to
In 2010, at the request of HHS, the NQF-convened National Priorities Partnership (NPP) provided input that helped shape the initial version of the National Quality Strategy (NQS).
NQF has continued to further the NQS by endorsing measures linked to the NQS priorities and by convening diverse stakeholder groups to reach consensus on key strategies for performance measurement. In 2015, NQF began or completed work in several emerging areas of importance that address the NQS, such as how to improve population health within communities, the need to address gaps in quality measurement in home and community-based services, and exploring quality reporting improvements in rural communities.
Under section 1890(b)(2) and (3) of the Act, the entity must provide for the endorsement of standardized health care performance measures. The endorsement process shall consider whether measures are evidence-based, reliable, valid, verifiable, relevant to enhanced health outcomes, actionable at the caregiver level, feasible to collect and report, responsive to variations in patient characteristics, and consistent across health care providers. In addition, the entity must maintain endorsed measures, including updating endorsed measures or retiring obsolete measures as new evidence is developed.
Since its inception in 1999, NQF has developed a measure portfolio that currently contains approximately 600 measures, subsets of which are used in a variety of settings. About 300 NQF-endorsed measures are used in more than 20 federal public reporting and pay-for-performance programs; these measures used in the federal programs along with other endorsed measures are also used in private-sector and state programs.
In building upon NQF's endorsement and maintenance work, HHS charged NQF with two new tasks in the areas of variation of measures and attribution. These two new tasks that aim to improve maintenance and usability of endorsed measures relate to how a measure works both in the field on an operational basis and in payment linked to measure performance.
Health Information Technology (HIT) continues to evolve and drive change in healthcare for both providers and patients. As this field grows rapidly, it is important to recognize and understand the potential effects that HIT will have on performance measures. While HIT presents many new opportunities to improve patient care and safety, it can also create new hazards and pose additional challenges, specifically regarding establishing harmonized and consistent value sets—potentially altering measures and leaving validity and reliability at question. NQF embarked on two new task orders specifically addressing patient safety in HIT and value set harmonization.
In 2015, NQF endorsed 161 measures and removed 42 measures from its portfolio across 14 HHS-funded projects. These measure endorsement and maintenance projects help ensure that the measure portfolio contains “best-in-class” measures across a variety of clinical and cross-cutting topic areas. Expert committees review both previously endorsed and new measures in a particular topic area to determine which measures deserve to be endorsed or re-endorsed because they are best-in-class. Working with expert multistakeholder committees,
In 2015, NQF endorsed measures in order to:
During 2015, NQF also removed 42 measures from its portfolio for a variety of reasons: measures no longer met endorsement criteria; measures were harmonized with other similar, competing measures; measure developers chose to retire measures that they no longer wished to maintain; a better, substitute measure was submitted; or measures “topped out,” with providers consistently performing at the highest level. Continuously culling the portfolio through these means and through the measure maintenance process ensures that the NQF portfolio is relevant to the most current practices in the field.
In October 2015, HHS awarded NQF additional endorsement projects, addressing topics such as pulmonary and critical care, neurology, perinatal, cancer, and palliative and end-of-life care. NQF has begun work on these projects by issuing calls for measures to be reviewed and considered for endorsement.
Under section 1890A of the Act, HHS is required to establish a pre-rulemaking process under which a consensus-based entity (currently NQF) would convene multistakeholder groups to provide input to the Secretary on the selection of quality and efficiency measures for use in certain federal programs. The list of quality and efficiency measures HHS is considering for selection is to be publicly published no later than December 1 of each year. No later than February 1 of each year, the consensus-based entity is to report the input of the multistakeholder groups, which will be considered by HHS in the selection of quality and efficiency measures.
The Measure Applications Partnership (MAP) is a public-private partnership convened by NQF, as mandated by the ACA (Pub. L. 111–148, section 3014). MAP was created to provide input to HHS on the selection of quality and efficiency measures for more than 20 federal public reporting and performance-based payment programs. Launched in the spring of 2011, MAP is comprised of representatives from more than 90 major
During the 2014–2015 pre-rulemaking process, MAP examined almost 200 unique measures for consideration for use in 20 different federal health programs. MAP convened workgroups specified by care settings both in person and by webinar to evaluate the measures and make recommendations concerning their proposed use in various federal programs.
In 2015, MAP conducted an “off-cycle” review to provide recommendations to HHS on a selection of performance measures under consideration to implement the Improving Medicare Post-Acute Care Transformation (IMPACT) Act of 2014 (Pub. L. 113–185). An off-cycle deliberation is one that occurs outside of the usual timing for MAP deliberations and in which HHS seeks input from the MAP on additional measures under consideration on an expedited 30-day timeline. The IMPACT Act requires, among other things, standardized patient assessment data to enable comparisons across four different post-acute care settings: skilled nursing facilities, inpatient rehabilitation facilities, long-term care hospitals, and home health agencies. In these deliberations, MAP highlighted the importance of integrating data with existing assessment instruments where possible, as well as noted the challenges in standardizing across the four different settings of care.
Under separate funding from the CMS, MAP also convened task forces to address the unique needs of Medicare and Medicaid dual beneficiaries, as well as made recommendations on strengthening the Adult and Child Core Sets of Measures utilized in Medicaid and CHIP programs. The Adult Core Set refers to the Core Set of Health Care Quality Measures for Adults Enrolled in Medicaid. The Child Core Set refers to the Core Set of Healthcare Quality Measures for Children Enrolled in Medicaid and CHIP. Work on the Adult and Child core sets of measures utilized in the Medicaid and CHIP programs helped HHS fulfill requirements for Child and Adult core sets of measures required under the Affordable Care Act (ACA) § 2701 and the Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA).
Under section 1890(b)(5)(iv) of the Act, the entity is required to describe gaps in endorsed quality and efficiency measures, including measures within priority areas identified by HHS under the agency's National Quality Strategy, and where quality and efficiency measures are unavailable or inadequate to identify or address such gaps. Under section 1890(b)(5)(v) of the Act, the entity is also required to describe areas in which evidence is insufficient to support endorsement of quality and efficiency measures in priority areas identified by the Secretary under the National Quality Strategy and where targeted research may address such gaps.
In 2015, NQF staff examined the current measure portfolio and after exhaustive review, identified over 250 measure gaps that have yet to be filled. Additionally, building upon its ongoing role in identifying gaps in measurement, MAP developed a scorecard approach which quantifies the number of MAP-recommended measures in gap areas organized by the priority areas of the National Quality Strategy.
MAP also addressed the need for alignment across multiple programs by focusing on comparable performance across care settings, data sources, and measure elements to facilitate better information exchange that could close potential “reporting gaps,” areas of measurement lacking sufficient data, across the healthcare system.
Section1890(b)(5)(A)(i) of the Social Security Act mandates that the Annual Report to Congress and the Secretary include a description of the implementation of quality and efficiency measurement initiatives under this Act and the coordination of such initiatives with quality and efficiency initiatives implemented by other payers.
This year NQF worked with other payers and entities to better understand the areas of alignment and socioeconomic risk adjustment of measures in an effort to coordinate quality measurement across the public and private sectors.
The Centers for Medicare & Medicaid Services (CMS) and America's Health Insurance Plans (AHIP) brought together private- and public-sector payers to work on better measure alignment in 2015. NQF provided technical assistance to this effort which is largely focused on aligning clinician level measures in ambulatory settings across CMS and private plans. While these collaborative efforts are not intended to solve all alignment challenges, they will serve as an important first step toward accomplishing a lofty and very necessary goal.
Additionally, NQF commenced a two-year trial period, evaluating risk adjustment of measures for socioeconomic status (SES) and other demographic factors. This two-year trial period is a temporary policy change that will allow for the SES risk adjustment of performance measures where there is a sound conceptual and empirical basis for doing so. At the conclusion of this trial period, NQF will determine whether to make this policy change permanent.
Section 1890(b)(1) of the Social Security Act (the Act), mandates that the consensus-based entity (entity) shall “synthesize evidence and convene key stakeholders to make recommendations . . . on an integrated national strategy and priorities for health care performance measurement in all applicable settings. In making such recommendations, the entity shall ensure that priority is given to measures: (i) That address the health care provided to patients with prevalent, high-cost chronic diseases; (ii) with the greatest potential for improving the quality, efficiency, and patient-centeredness of health care; and (iii) that may be implemented rapidly due to existing evidence, standards of care, or other reasons.” In addition, the entity is to “take into account measures that: (i) May assist consumers and patients in making informed healthcare decisions; (ii) address health disparities across groups and areas; and (iii) address the continuum of care a patient receives, including services furnished by multiple health care providers or practitioners and across multiple settings.”
In 2010, at the request of HHS, the NQF-convened National Priorities Partnership (NPP) provided input that helped shape the initial version of the National Quality Strategy (NQS).
Annually, NQF has continued to further the National Quality Strategy by endorsing measures linked to the NQS priorities and by convening diverse stakeholder groups to reach consensus on key strategies for performance measurement. In 2015, NQF began or
The National Quality Strategy's population health aim focuses on:
One of the NQS's related six priorities specifically emphasizes:
With the expansion of coverage due to the Affordable Care Act (ACA), the federal government has had opportunities to meaningfully coordinate its improvement efforts with those of local communities in order to better integrate and align medical care and population health. Such efforts can help improve the nation's overall health and potentially lower costs.
In September 2014, NQF launched phase 2 of the Population Health Framework project, enlisting 10 diverse communities to begin an 18-month field test of the deliverables of the first phase of this project. The deliverables included an evidence-based framework; key terms; a core set of measure domains and measures, building off of the CMS-developed domains and subdomains; measure gaps; data granularity needed to produce actionable information at the community level; and a list of essential `actors' who need to be engaged in community-based work to chart and undertake a course of action when embarking on a systematic effort to improve population health in their region. The 10 field testing groups participating include:
During the field test, these groups are participating in a variety of activities including:
• Applying the “
• Determining what works and what needs enhancement in the guide; and
• Offering examples and ideas for revised or new content based on their own experiences.
These communities represent a range of groups, each with different levels of experience, varied geographic and demographic focus, and demonstrated involvement in or plans to establish population health-focused programs. These groups participate through in-person Committee meetings and monthly conference calls.
In July 2015, the
Home and community-based services (HCBS) are vital to promoting independence and wellness for people with long-term care needs. The United States spends $130 billion each year on long-term services and support, a figure that is likely to increase dramatically as the number of Americans over age 65 is expected to double by the end of 2016.
This project offers an important opportunity to address the gap in HCBS measures that support community living. NQF convened a multistakeholder Committee to accomplish the following tasks:
• Create a conceptual framework for measurement, including a definition for HCBS;
• Perform a synthesis of evidence and an environmental scan for measures and measure concepts;
• Identify gaps in HCBS measures based on the framework; and
• Make recommendations for HCBS measure development efforts.
In August 2015, the Committee released an interim report titled
This report aims to develop a shared understanding and approach to assessing the quality of home and community-based services. NQF reviewed state-level and international quality measurement activities in three states and three nations. The next steps of the project will discuss the evidentiary findings and environmental scan—also taking into consideration feasibility of measurement, barriers to implementation, and mitigation strategies for identified barriers. Project completion is expected in September 2016.
Challenges such as geographic isolation, small practice size, heterogeneity in settings and patient population, and low case volumes make participation in performance measurement and improvement efforts especially challenging for many rural providers. Although some rural hospitals and clinicians participate in a variety of private-sector, state, and federal quality measurement and improvement efforts, many quality initiatives implemented by the Centers for Medicare & Medicaid Services (CMS)
In September 2015, the NQF-convened Rural Health Committee released its final report,
The Committee's overarching recommendation is to make participation in CMS quality measurement and quality improvement programs mandatory for all rural providers but allow for a phased approach, calling for the inclusion of new reporting requirements over a number of years to allow rural providers time to adjust to new requirements and build the required infrastructure for their practices. Further, the Committee recommended that the low case volume must be addressed prior to mandatory participation in reporting programs. The Committee also made several additional stand-alone recommendations with the intention of easing the transition of rural providers from voluntary to mandatory participation in quality measurement and improvement programs. These recommendations were as follows:
1. Fund development of rural-relevant measures—specifically patient hand-offs and transitions, access to care and timeliness of care, cost, population health at the geographic levels;
2. Develop and/or modify measures to address low case volume explicitly considering measures that are broadly applicable across rural providers, measures that reflect wellness in the community, and measures constructed using continuous variables and ratio measures;
3. Consider rural-relevant sociodemographic factors in risk adjustment (statistical methods to control or account for patient-related factors when computing performance measure scores); and
4. When creating and using composite measures, ensure that the component measures are appropriate for rural providers.
Under section 1890(b)(2) and (3) of the Act, the entity must provide for the endorsement of standardized health care performance measures. The endorsement process is to consider whether measures are evidence-based, reliable, valid, verifiable, relevant to enhanced health outcomes, actionable at the caregiver level, feasible for collecting and reporting, responsive to variations in patient characteristics, and consistent across types of health care providers. In addition, the entity must establish and implement a process to ensure that endorsed measures are updated (or retired if obsolete), as new evidence is developed.
Standardized healthcare performance measures are used by a range of healthcare stakeholders for a variety of purposes. Measures help clinicians, hospitals, and other providers understand whether the care they provide their patients is optimal and appropriate, and if not, where to focus their efforts to improve. In addition, performance measures are increasingly used in federal accountability public reporting and pay-for-performance programs, to inform patient choice, to drive quality improvement, and to assess the effects of care delivery changes.
Working with multistakeholder committees to build consensus, NQF reviews and endorses healthcare performance measures. Currently NQF has a portfolio of approximately 600 NQF-endorsed measures which are in widespread use; subsets of the portfolio apply to particular settings and levels of analysis. The federal government, states, and private sector organizations use NQF-endorsed measures to evaluate performance and to share information with employers, patients, and their families. Together, NQF measures serve to enhance healthcare value by ensuring that consistent, high-quality performance information and data are available, which allows for comparisons across providers and the ability to benchmark performance.
In building upon NQF's endorsement work, HHS charged NQF with two new tasks related directly to the use of endorsed measures—both in the field and in their relation to payment. At the direction of HHS, NQF embarked on a project to understand how measures are sometimes altered in the field leading to variation of measure specifications. In the second project, as financial stakes are increasingly tied to measures, there are growing debates about how to appropriately attribute a clinician's care to the outcome of the patient, made especially difficult when many providers contribute to the care of a single patient.
Implementation and adoption of health information technology (HIT) is widely viewed as essential to the transformation of healthcare. As this field grows rapidly, it is important to recognize and understand the potential effects that the introduction of HIT will have on performance measures. While HIT presents many new opportunities to improve patient care and safety, it can also create new hazards and pose additional challenges, specifically establishing harmonized and consistent value sets—potentially altering measures and leaving validity and reliability in question.
In 2015, NQF worked on two projects directed by HHS to advance eHealth Measurement: (1) The Prioritization and Identification of Health IT Patient Safety Measures, and (2) Value Set Harmonization.
At the direction of HHS, NQF embarked on a new task order designed to look at currently endorsed measures and how they are used and modified, when the modified measure used produces data that is equivalent to the endorsed measures, or when the modification changes the measure significantly enough that the data collected is not comparable and essentially the modified measure is a new measure.
In this project, NQF will convene a multistakeholder Expert Panel to provide leadership, guidance, and input that includes:
• Conducting an environmental scan to assess the current landscape of measure variation;
• Developing a conceptual framework to help identify, develop, and interpret variations in measure specifications and evaluate the effects of those variations;
• Developing a glossary of standardized definitions for a limited number of key measurement terms, concepts, and components that are known to be common sources of variation in otherwise-similar measures; and
• Providing recommendations for core principles and guidance on how to mitigate variation and improve variability across new and existing measures.
This project was awarded in October 2015 and is currently underway with the formation of the Expert Panel.
Attribution. Attribution can be defined as the methodology used to assign patients and their quality outcomes to providers. Measurement approaches are needed that recognize the multiple providers involved in delivering care and their individual and joint responsibility to improve quality across the patient episode of care. These issues have become increasingly important with the creation and design of the Medicare Merit-Based Incentive Payment (MIPS) program and alternative payment models (APMs) for physicians under the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). In all of these payment approaches, improvements in outcomes may not be directly tied to a single provider.
Increasingly, care is provided within structures of shared accountability, and guidance is needed regarding attribution of providers to patients. The issues regarding attribution to individual providers, which include primary care physicians, specialist physicians, physician groups, the role of nurse practitioners, and the full healthcare team, have complicated the use and evaluation of performance measures. HHS has directed NQF to examine this topic through its multistakeholder review process and commission a paper to include a set of principles for attribution. As the financial stakes tied to measures have grown, policy debates over physician payment have intensified. This project will synthesize and help further a better understanding of different approaches for addressing attribution. The lack of clarity in attribution approaches remains a major limitation to the use of outcome and cost measures.
The Panel's final report will:
• Describe the problem that exists with respect to attribution of performance measurement results to one or more providers;
• Detail the subset of measures that are affected by attribution;
• Include principles that guide the selection and implementation of approaches to attribution;
• Put forth potential approaches that could be used to validly and reliably attribute performance measurement results to one or more providers under different delivery models; and
• Put forth models of approaches to attribution that adhere to the principles described above and are developed and described in sufficient detail to enable their testing on CMS data.
This project was awarded in October 2015 and is currently underway.
Increasing public awareness of HIT-related safety concerns has raised this issue's profile and added urgency to efforts to assess the scope and nature of the problem and to develop potential solutions. The 2012 Food and Drug Administration Safety Innovation Act required coordinated activity between the Food and Drug Administration, the Office of the National Coordinator for Health Information Technology, and the Federal Communications Commission on a strategy to develop a regulatory framework for HIT that promotes patient safety, among other goals. These agencies' subsequent work and the HIT Policy Committee's recommendation to create a public-private Health IT Safety Center have underscored the importance of partnerships, collaboration, and shared responsibility in ensuring the safe use of HIT.
An HIT-related safety event—sometimes called “e-iatrogenesis”—has been defined as “patient harm caused at least in part by the application of health information technology.”
This project, launched in September 2014, assesses the current environment related to the measurement of HIT-related safety events and constructs a framework for advancement of measurement to improve the safety of HIT. The multistakeholder Committee for the project will work to:
• Explore the intersection of HIT and patient safety;
• Create a comprehensive framework for assessment of HIT safety measurement efforts;
• Construct a measure gap analysis; and
• Provide recommendations on how to address identified gaps and challenges, as well as best-practices for the measurement of HIT safety issues.
The Committee adopted a three-domain framework for categorizing and conceptualizing potential measurement concepts and gaps in the areas of HIT safety, and provided a framework for recommendations around future HIT safety measure development. The goals of the framework are to ensure (1) that clinicians and patients have a foundation for safe HIT; (2) that HIT is properly integrated and used within the healthcare organizations to deliver safe care; and (3) that HIT is part of a continuous improvement process to make care safer and more effective. After receiving public input on the framework report, posted for public comment in November 2015, the Committee reflected upon these comments prior to the release of a final report in 2016.
Interoperable electronic health records (EHRs) can enable the development and reporting of innovative performance measures that address critical performance and measurement gaps across settings of care. However, to achieve this future state, the field needs electronic clinical data standards and reusable “building blocks” of code vocabularies, known as value sets, to ensure measures can be consistently and accurately implemented across disparate systems. A value set consists of unique codes and descriptions which are used to define clinical concepts,
Launched in January 2015, the Committee of experts and key stakeholders on this project is developing a value set harmonization test pilot and approval process to promote consistency and accuracy in electronic CQM (eCQM) value sets. NQF defines value set harmonization as the process by which unnecessary or unjustifiable variance will be reduced and eventually eliminated from common value sets in eCQMs by the reconciliation and integration of competing and/or overlapping value sets. This project is guided by a multistakeholder Value Set Committee (VSC), as well as subject specific technical expert panels (TEPs).
The VSC will help NQF to determine the overall approach to the
• The development of evaluation criteria;
• How to evaluate the results of the harmonization process; as well as
• Broader recommendations on how harmonized and approved value sets should be integrated into the measure endorsement process.
A final report is expected in 2016.
Across 14 HHS-funded projects in 2015, NQF endorsed 161 measures and removed 42 measures from its portfolio. NQF ensures that the measure portfolio contains “best-in-class” measures across a variety of clinical and cross-cutting topic areas. Expert committees review both previously endorsed and new measures in a particular topic area to determine which measures deserve to be endorsed or re-endorsed because they are best-in-class. Working with expert multistakeholder committees,
NQF removes measures from its portfolio for a variety of reasons, including failure to meet more rigorous endorsement criteria, the need to facilitate measure harmonization and mitigate competing similar measures or retire measures that developers no longer wish to maintain. In addition, measures that are “topped-out” are put into reserve because they show consistently high levels of performance, and are therefore no longer meaningful in differentiating performance across providers. This culling of measures ensures that time is spent measuring aspects of care in need of improvement, rather than retaining measures related to areas where widespread success has already been achieved.
While NQF pursues strategies to make its measure portfolio appropriately lean and responsive to real-time changes in clinical evidence, it also aggressively seeks measures from the field that will help to fill known measure gaps and to align with the NQS goals.
Finally, NQF also works with developers to harmonize related or near-identical measures and eliminate nuanced differences. Harmonization is critical to reducing measurement burden for providers, who may be inundated with requests to report near-identical measures. Successful harmonization also results in fewer endorsed measures for providers to report and for payers and consumers to interpret. Where appropriate, NQF also works with measure developers to replace existing process measures with more meaningful outcome measures.
In 2015, NQF reviewed 48 new measures for endorsement and 113 measures for the periodic maintenance review for re-endorsement. These measures (discussed below) were in the categories of behavioral health, cost and resource use, etc. As a result of this, NQF added 48 new measures to its portfolio, while 113 measures reviewed retained their NQF endorsement in 2015. Eighty-nine of the 161 endorsed measures (both new and renewed measures) are outcome measures (12 are patient-reported outcomes (PROs)), 61 are process measures, three are efficiency measures, three are composite measures, three are structural measures, and two are cost and resource use measures.
While undergoing endorsement and maintenance, all measures are evaluated for their suitability based on the standardized criteria in the following order:
More information is available in the
A list of measures reviewed in 2015 and the results of the review are listed in Appendix A. Summaries of endorsement and maintenance projects completed in 2015 and projects underway but not completed in 2015 are presented below.
Behavioral health measures. In the United States, it is estimated that approximately 26 percent of the population suffers from a diagnosable mental disorder.
Phase 3 of the behavioral health measures project began in October of 2014 and concluded its endorsement process in May 2015. The Standing Committee evaluated 13 new measures and 6 existing measures for maintenance review. Measures examined in this phase dealt with tobacco use, alcohol and substance use, psychosocial functioning, attention deficit hyperactivity disorder (ADHD), depression and health screening, and assessment for people with serious mental illness. At the end of their review (which included public comment), 16 of these measures were endorsed by the Committee, one was approved for trial use (to further examine its validity), one was not recommended, and one was deferred.
Phase 2 evaluated three cost and resource use measures focused on cardiovascular conditions—specifically the relative resource use for people with cardiovascular conditions, hospital-level, risk-standardized payment associated with a 30-day episode for Acute Myocardial Infarction, and hospital-level, risk standardized payment associated with a 30-day episode-of-care heart failure. All three of these measures were endorsed. Two of the endorsed measures were endorsed with the following conditions:
•
•
•
In phase 3, the NQF Expert Panel evaluated three cost and resource use
Osteoporosis, a bone disease characterized by low bone mass and density, affects an estimated 9 percent of U.S. adults age 50 and over.
NQF selected the endocrine measure evaluation project to pilot test a process improvement focused on frequent submission and evaluation of measures, with the goal of speeding up endorsement time and shortening the time from measure development to use in the field. This 25-month project includes three full endorsement cycles, allowing for the submission and review of both new and previously endorsed measures every six months, in contrast to usual review every three years, in a given topical area.
Summarized in the final report released November 2015, the Endocrine Standing Committee evaluated five new measures and 18 measures undergoing maintenance review against NQF's standard evaluation criteria. Of the 23 measures evaluated, 22 measures were recommended for endorsement by the Standing Committee and have been endorsed by NQF. Only one measure was not recommended for endorsement, Discharge Instructions—Emergency Department, because the Committee stated that the discharge instructions did not equate to coordination of care. The Committee noted that there is minimal evidence indicating that written discharge instructions improve care for osteoporosis patients or have had any impact on such outcomes as prevention of future fractures.
The Musculoskeletal Standing Committee evaluated 12 measures: Eight new measures and four measures undergoing maintenance review. Measures submitted addressed the clinical areas of rheumatoid arthritis, gout, pain management, and lower back injury. Three measures were recommended for endorsement, four measures were recommended for trial measure approval (an optional pathway for eMeasures being piloted in this project), two measures were not recommended for trial measure approval, one measure was not recommended for endorsement, and two measures were deferred for later consideration. The final report of this project was issued January 2015.
Completed August 31, 2015, the cardiovascular phase 2 project identified and endorsed measures for heart rhythm disorders, cardiovascular implantable electronic devices, heart failure, acute myocardial infarction, congenital heart disease, and statin medication. Many of the measures in the portfolio currently are used in public and/or private accountability and quality improvement programs; however, significant measurement gaps remain related to cardiovascular care.
In phase 2, the Cardiovascular Standing Committee evaluated eight new measures and eight measures undergoing maintenance review against NQF's standard evaluation criteria. Eleven of these measures were recommended for endorsement by the Committee, four were not recommended, and one was withdrawn by the developer.
Phase 3 of this project is still in progress. This phase is currently reviewing 23 measures that can be used to assess cardiovascular conditions at any level of analysis or setting of care, as well as reviewing endorsed measures scheduled for maintenance. A final report is expected by April 2016. Phase 4 was launched in October 2015, with a final report expected in February of 2017. Measures are currently being submitted for this phase.
People with chronic conditions and multiple co-morbidities—and their families and caregivers—often find it difficult to navigate our complex healthcare system. As this ever-growing population transitions from one care setting to another, they are more likely to suffer the adverse effects of poorly coordinated care. These include incomplete or inaccurate transfer of information, poor communication, and a lack of follow-up which can lead to poor outcomes, such as medication errors. Effective communication within and across the continuum of care will improve both quality and affordability.
In July 2011, NQF launched a multiphased Care Coordination project focused on healthcare coordination across episodes of care and care transitions. Phase 1, completed in 2012, sought to address the lack of cross-cutting measures in the NQF measure portfolio by developing a path forward to more meaningful measures of care coordination leveraging health information technology (HIT). Phase 2 addressed the implementation and methodological issues in care coordination measurement, as well as the evaluation of 15 care coordination performance measures. While phase 3 was completed in December 2014, the Care Coordination Standing Committee is currently conducting an off-cycle review process. An off-cycle deliberation is one that occurs outside of the usual timing for MAP deliberations and in which HHS seeks input from MAP on additional measures under consideration on an expedited 30-day timeline. Off-cycle measures reviewed focused on emergency department transfers, medication reconciliation, and timely transfers. These areas are key within care coordination measurement though do not fully address the many domains in the Care Coordination Framework. During the standard review process, the Coordinating Committee reviewed 12 measures: one new and 11 undergoing maintenance. A final report is expected in 2016.
All-cause admissions and readmissions measures. Unnecessary admissions and avoidable readmissions to acute-care facilities are an important focus for quality improvement by the healthcare system. Previous studies have shown that nearly 1 in 5 Medicare patients is readmitted to the hospital within 30 days of discharge, placing the patient at risk for new health problems caused by hospital-acquired conditions and costing upwards of $26 billion annually.
The final report for phase 2, issued in April 2015, states that the All-Cause Admissions and Readmissions Standing Committee endorsed 16 measures, which marks the first time that the NQF portfolio includes measures examining community-level readmissions, pediatric readmissions, and readmissions measures in the post-acute care and long-term care settings.
With the completion of phase 1 in November 2014, phase 2 of this project began with a call for measures in January 2015. Currently the Health and Well-Being Standing Committee has seven measures under review, including community-level indicators of health and disease, health-related behaviors and practices to promote healthy living, modifiable socioeconomic and environmental determinants of health, and primary screening prevention. Phase 3 of this project was awarded in October 2015 with an anticipated completion date in June of 2016. Phase 3 will review new and existing measures for endorsement in focus areas that include physical activity, cervical and colorectal cancer screenings, and adult and childhood vaccinations.
Phase 1 of this project concluded in January 2015 with publication of the final report.
Currently, both phase 2 and phase 3 of this project are underway. These phases of the project will address topic areas including, but not limited to, fall screening and risk management; medication reconciliation; patient safety measure for skilled nursing facilities, inpatient rehabilitation facilities, and other settings; unplanned admission-related measures from other settings; all-cause and condition-specific admission measures; condition-specific readmissions measures; and measures examining length of stay. Final reports for both phases are expected in 2016.
NQF undertook this project in two phases. In phase 1, completed in March 2015, this project focused on measures of patient and family engagement in care, care based on patient needs and preferences, shared decisionmaking, and activation for self-care management. The Person- and Family-Centered Care Standing Committee evaluated one new measure and 11 measures undergoing maintenance against NQF's standard evaluation criteria in this first phase. At the end of phase 1, ten of these eleven measures were recommended for endorsement, one was no longer recommended for use after the Committee chose a superior measure addressing the same domain, and one additional measure was withdrawn.
In phase 2, the Committee reviewed 28 measures of functional status and outcomes, both clinical and patient-assessed. A final report is expected in 2016.
The project continues with a phase 3 and phase 4 awarded in October 2015, and both phases are currently underway. In these phases, the Committee will examine clinician and patient-assessed measures of functional status. This new phase of work will focus on health-related quality of life and the communication domain of person- and family-centered care. Currently, both phases are calling for measures.
As part of NQF's ongoing work with performance measurement for patients
In phase 1, the Surgery Measures Standing Committee evaluated a total of 29 measures—nine new surgical measures and 20 measures undergoing maintenance review. In the final report dated February 13, 2015, 21 of these measures were recommended for endorsement (nine of which were recommended for reserve status) by the Committee, seven were not recommended, and one was withdrawn by the developer. Measures recommended for reserve status are “topped out,” meaning they are considered standard practice and performance is at the highest levels. Because they are good measures, removal is not warranted. If needed, they could be re-integrated into the portfolio.
Phase 2 was completed in December 2015. This phase included measures in the areas of general and specialty surgery that address surgical processes, including pre- and post-surgical care, timing of prophylactic antibiotic, and adverse surgical outcomes. The Surgery Standing Committee evaluated four new measures, one resubmitted measure, and 19 measures undergoing maintenance and review. The Committee recommended 22 of these measures for endorsement (including one for reserve status); one was not recommended; and one was deferred.
Phase 3 began in October 2015. This project will include performance measures in the areas of general and specialty surgery that address surgical events, including pre-, intra- and post-surgical care, use of medication peri-operatively, adverse surgical outcomes, and other related topics. Currently, a call for measures is underway.
This project is currently in progress. Awarded in March 2015, the Committee is currently considering 24 measures for endorsement—including seven eMeasures. These measures deal with the topic areas of glaucoma, macular degeneration, hearing screening and evaluation, and ear infections. Measures of interest to NQF for this project include outcome measures; measures applicable to more than one setting; measures applicable to adults and children; measures that capture data from broad populations; measures of chronic care management and care coordination for chronic conditions; and eMeasures. A final report is scheduled for release in 2016.
Awarded in February 2015, the first phase of this project was completed in December 2015. The newly convened Standing Committee evaluated 14 NQF-endorsed measures for maintenance review and 11 new measures for endorsement recommendations. Fifteen measures were recommended for endorsement, four measures were recommended for endorsement with reserve status, and the Committee did not recommend six measures.
A second phase of this project was awarded in October 2015 with an expected completion date in April 2016. Phase 2 will continue to address conditions, treatments, interventions, or procedures related to ESRD, CKD, and other renal conditions.
The Pediatric Measures project launched in July 2015. This project evaluates measures related to child health that can be used for accountability and public reporting for all pediatric populations and in all settings of care. This project addresses topic areas including but not limited to:
• Child- and adolescent-focused clinical preventive services and follow-up to preventive services;
• Child- and adolescent-focused services for management of acute conditions;
• Child- and adolescent-focused services for management of chronic conditions; and
• Cross-cutting topics.
For this project, the Committee evaluated 23 newly submitted measures and one previously reviewed measures against NQF's standard evaluation criteria. A final report is expected in 2016.
NQF currently has 25 endorsed measures in the portfolio that are due for maintenance and will be reevaluated against the most recent NQF measure criteria along with newly submitted measures. NQF has issued a call for measures in this topic area, with expected project completion in July 2016.
The multistakeholder Standing Committee will evaluate newly submitted measures in the topic areas above as well as assess the 22 NQF-endorsed measures undergoing maintenance. A final report is expected in September 2016.
This project will identify and endorse performance measures that specifically address the areas of reproductive health, pregnancy planning and contraception, pregnancy, childbirth, and postpartum and neonatal care. Along with new measures submitted for review, the Standing Committee will also evaluate 24 NQF-endorsed measures that are due for maintenance. Topics addressed by these endorsed measures include cesarean section rates, early elective deliveries, maternal and newborn infection rates, access to prenatal and postpartum care, screening measures, and breastfeeding measures. A final report is expected June 2016.
In addition to new measures submitted for review and endorsement, 16 NQF-endorsed measures will undergo maintenance and re-evaluation against the most recent NQF measure evaluation criteria. Measures will focus on, but not be limited to, access to and timeliness of care, patient and family experience with care, patient and family engagement, care planning, avoidance of unnecessary hospital or emergency department admissions, cost of care, and caregiver support.
Currently, this project is underway with its call for measures. A final report is expected in June 2016.
As part of this endorsement project, NQF will solicit composite, outcome, and process measures related to desired outcomes applicable to any healthcare setting. The NQF multistakeholder Standing Committee will evaluate new measures and those undergoing maintenance in the following areas: breast cancer, colon cancer, chemotherapy, hematology, leukemia, prostate cancer, esophageal cancer, melanoma diagnosis, symptom management, and end-of-life care.
Currently, there are 21 NQF-endorsed measures that will undergo maintenance, and a call for new measures has been issued. A final report is expected in January 2017.
Under section 1890A of the Act, HHS is required to establish a pre-rulemaking process under which a consensus-based entity (currently NQF) would convene multistakeholder groups to provide input to the Secretary on the selection of quality and efficiency measures for use in certain federal programs. The list of quality and efficiency measures HHS is considering for selection is to be publicly published no later than December 1 of each year. No later than February 1 of each year, the consensus-based entity is to report the input of the multistakeholder groups, which will be considered by HHS in the selection of quality and efficiency measures.
The Measure Applications Partnership (MAP) is a public-private partnership convened by NQF, as mandated by the ACA (PL 111–148, section 3014). MAP was created to provide input to HHS on the selection of performance measures for more than 20 federal public reporting and performance-based payment programs. Launched in the spring of 2011, MAP is composed of representatives from more than 90 major private-sector stakeholder organizations, seven federal agencies, and approximately 150 individual technical experts. For detailed information regarding the MAP representatives, criteria for selection to MAP, and length of service, please see Appendix D.
MAP provides a forum to facilitate the private and public sectors to reach consensus with respect to use of measures to enhance healthcare value. In addition, MAP serves as an interactive and inclusive vehicle by which the federal government can solicit critical feedback from stakeholders regarding measures used in federal public reporting and payment programs. This approach augments CMS's traditional rulemaking, allowing the opportunity for substantive input to HHS in advance of rules being issued. Additionally, MAP provides a unique opportunity for public- and private-sector leaders to develop and then broadly review and comment on a future-focused performance measurement strategy, as well as provides shorter-term recommendations for that strategy on an annual basis. MAP strives to offer recommendations that apply to and are coordinated across settings of care; federal, state, and private programs; levels of attribution and measurement analysis; and payer type.
Since 2012, MAP has provided guidance at the request of HHS on the measures to be included in Medicare programs, as well as Medicaid and Children's Health Insurance Program (CHIP) programs nationwide. MAP recommendations for Medicare are considered for mandatory reporting in various federal programs, while recommendations to the Adult and Child Core Sets for Medicaid/CHIP are reported on a voluntary basis by the individual states. MAP also provided guidance to HHS on the use of performance measures to evaluate and improve care of dual eligible beneficiaries, who are enrolled in both Medicaid and Medicare—a distinct population with complex and often costly medical needs.
MAP completed its deliberations for the 2014–15 rulemaking cycle with the publication of its annual report in January 2015; this was MAP's fourth review of measures for HHS programs. During this pre-rulemaking process, MAP examined 199 unique measures for potential use in 20 different federal health programs (see Appendix C). There were also a number of improvements to the MAP process this year, including the addition of a preliminary analysis of measures; a more detailed examination of the needs and objectives of the programs; a more consistent approach to measure deliberations; and expanded public comment. Conducted by staff, the preliminary analysis is intended to provide MAP members with a succinct profile of each measure and to serve as a starting point for MAP discussions.
• Does the MUC meet a critical program objective?
• Is the MUC fully developed?
• Is the MUC tested for the appropriate settings and/or level of analysis for the program? If no, could the measure be adjusted to use in the program's setting or level of analysis?
• Is the MUC currently in use? If yes, does a review of its performance history raise any red flags?
• Does the MUC contribute to the efficient use of measurements resources for data collection and reporting and support alignment across programs?
• Is the MUC NQF-endorsed for the program's setting and level of analysis?
MAP has solidified its three-step process for pre-rulemaking deliberations:
1. Define critical program objectives;
2. Evaluate measures under consideration for potential inclusion in specific programs; and
3. Identify and prioritize measurement gaps for programs and care settings.
More specifically, in October 2014, MAP workgroups convened via webinar to consider each program in its setting with the goal of identifying its specific measurement needs and critical program objectives. The workgroup recommendations on critical program objectives were then reviewed by the Coordinating Committee in a November meeting.
MAP workgroups met in person in December 2014 to evaluate the measures under consideration and made recommendations for use of those measures in various federal programs, which were then reviewed by the Coordinating Committee in January 2015. In their review, the Coordinating Committee deliberated on the workgroup recommendations as well as public and member comments received.
MAP reviewed 81 measures under consideration for nine hospital and setting-specific programs: Hospital Inpatient Quality Reporting (IQR), Hospital Value-Based Purchasing (VBP), Hospital Readmissions Reduction Program (HRRP), Hospital-Acquired Condition Reduction Program (HAC), Hospital Outpatient Quality Reporting (OQR), Ambulatory Surgical Center Quality Reporting (ASCQR), Medicare and Medicaid EHR Incentive Program for Hospitals and Critical Access Hospitals (Meaningful Use), and Inpatient Psychiatric Facility Quality Reporting (IPFQR).
The workgroup identified several overarching themes across the nine programs as it discussed individual measures. These workgroup deliberations are considered in MAP's pre-rulemaking recommendations to HHS for measures in these programs and reflect the MAP Measure Selection Criteria (see Appendix B), how well the measures address the identified program goal, and NQF's prior work to identify families of measures.
First, the programs should include measures that help consumers get the information that they need to make informed decisions about their healthcare, help to direct them to facilities with the highest quality of care, and spur improvements in quality and efficiency.
Second, a limited set of “high-value measures” allows providers to focus on high-priority aspects of healthcare where performance varies or is less than optimal. “High-value” measures are measures that are more meaningful and usable for various stakeholders and more likely to drive improvements in quality, including outcomes, patient-reported outcomes (PROs), composite measures, intermediate outcome measures, process measures that are closely linked by empirical evidence to outcomes, cost and resource use measures, appropriate use measures, care coordination measures, and patient safety measures. The workgroup noted that it should support measures that add value to the current set and work with existing measures to improve crucial quality issues. It also recognized that the value of a measure should be assessed while considering the burden of the full measure set, further emphasizing the need for parsimony and alignment.
Finally, MAP stressed the importance of aligning or using a more uniform set of measures across programs in order to be able to compare performance across settings and data types. In response to the need for greater alignment, MAP cautioned that the evolution of these programs calls for new areas of increased attention. Specifically, MAP raised a number of challenges to achieving alignment that need further consideration, including the unique program objectives of individual programs, updating existing measure specifications, and balancing shared accountability with appropriate attribution.
MAP reviewed 81 measures and made the following recommendations for federal programs:
• Inpatient Quality Reporting Program—outcome measures, particularly readmission measures, should be reviewed in the upcoming NQF trial period for adjustment for SES factors;
• Hospital Value-Based Purchasing Program—the need to include more measures addressing high-impact areas for performance and quality improvement with a strong preference for NQF-endorsed measures;
• Hospital Readmissions Reduction Program—planned and unrelated readmissions should be excluded from measures in the program as are not markers of poor quality and readmissions measure generally should be included in the SES trial period;
• Hospital Acquired Condition Program—measures are needed to fill gaps that are focused on minimizing the major drivers of patient harm, and there is a need for greater antibiotic stewardship programs;
• Hospital Outpatient Quality Reporting Program—measures should be aligned to reduce un undue burden on providers and patients;
• Ambulatory Surgery Center Quality Reporting Program—increased need for the development of measures in the areas of surgical quality, infections, complications from anesthesia-related complications, post-procedure follow-up, and patient and family engagement;
• Medicare and Medicaid EHR Incentive Program for Hospitals—eMeasures in the program should be valid and reliable with a preference for measures that go through the endorsement process—these measures should be assessed for comparability with measures derived from alternative data sources used in other programs;
• PPS-Exempt Cancer Hospital Quality Reporting Program—measures appropriate to cancer hospitals that reflect high-priority service areas should align with measures in the IQR and OQR programs where appropriate; and
• Inpatient Psychiatric Facility Quality Reporting Program—measurement needs to move beyond just psychiatric care at inpatient psychiatric facilities to include other important general medical conditions that affect patients with psychiatric conditions.
Following the same MAP pre-rulemaking criteria stated above, the clinician workgroup identified characteristics that are associated with ideal measure sets used for public reporting and payment programs for physicians and other clinicians. MAP reviewed 254 measures under consideration for two programs, the
In past years, the clinician workgroup noted that some condition/topic areas had more high-value measures and requested a “scorecard” process to better judge progress toward more high-value measures under consideration. MAP noted that clinicians who report on more high-value measures receive the same incentive payments even though they are reporting more challenging measures. Greater incentives for those who report on high-value measures might spur development of similar measures in other condition/topic areas.
The workgroup first concluded that while noteworthy progress to more high-value measures has been made in a few areas, such as cardiac care, eye care, renal disease, and surgery, uneven or slow progress persisted for specific patient and other applications, such as individuals with multiple chronic conditions and complex conditions, outcome measures for cancer patients, measures for palliative/end-of-life care, measures for eligible professionals (EPs) in the medical field, and EHR measures that promote interoperability and health information exchange.
The workgroup felt that a greater focus on prudent alignment of measures across programs is essential to reduce burden and improve participation in quality programs. A more focused and aligned set of measures will also reduce confusion for users of public reporting data and synergize quality improvements across providers and settings of care. Greater focus on selecting composite measures, appropriate use measures, and outcome measures could promote parsimony over the number of measures. Calls for alignment of the measures in federal programs recognize the benefits of reducing data collection and reporting burdens on clinicians.
Finally, the clinician workgroup concluded that financial incentives for many stakeholders within the quality measurement enterprise could yield greater development of meaningful measures. Specifically, MAP recommended that measure developers need ongoing financial support, and clinicians must invest in infrastructure to support the reporting of measures. This investment could drive the evolution of measures from basic “building block” measures to more meaningful measures. Reporting on high-value measures can pose a financial hardship on providers who do not have the required capacity or infrastructure. As a result, MAP recommended that CMS consider innovative incentives to further provider participation, such as waiving nonparticipation penalties in quality programs in exchange for acting as a test site or participating in a registry. For example, primary care and emergency medicine physicians have not yet developed registries despite growing pressure to do so and are seeking a business case that would make a registry viable. Public comments strongly supported the need for steady funding for measure development.
MAP reviewed 254 clinician measures and made the following recommendations for federal programs:
• Physician Quality Reporting System, Physician Compare, Physician Value-Based Payment Modifier—include more high-value measures; encourage widespread participation in PQRS; measures selected for the program that are not NQF-endorsed should be submitted for endorsement; and nonendorsed measures should include measures that support alignment, measure outcomes that are not already addressed by outcome measures in the program, and be clinically relevant to specialties/subspecialties that do not currently have clinically relevant measures; and
• Medicare and Medicaid EHR Incentive Programs—include indorsed measures that have eMeasure specifications available; alignment with other federal programs particularly PQRS; and the need for increased focus on measures that reflect efficiency in data collection and reporting, measures that leverage HIT capabilities, and innovative measures made possible through the use of HIT.
MAP reviewed 19 measures under consideration for five setting-specific federal programs addressing post-acute care (PAC) and long-term care (LTC): the Inpatient Rehabilitation Facility Quality Reporting Program (IRF QRP), the Long-Term Care Hospital Quality Reporting Program (LTCH QRP), the End-Stage Renal Disease Quality Incentive Program (ESRD QIP), the Skilled Nursing Facility Value-Based Purchasing Program (SNF VBP), and the Home Health Quality Reporting Program (HH QRP). Although in previous years, MAP provided guidance on measures for the Hospice Quality Reporting Program (Hospice QRP), there were no measures under consideration for the Hospice QRP during this review cycle.
Based upon the workgroup's findings, MAP defined high-leverage areas for performance measures and identified 13 core measure concepts to best address each of the high-leverage areas. Specifically, MAP recognized the six highest-leverage areas for PAC/LTC performance measurement to include function, goal attainment, patient engagement, care coordination, safety, and cost/access. Core measure concepts for each of these high-leverage areas are as follows:
• Function—functional and cognitive status assessment and mental health;
• Goal attainment—establishment of patient/family/caregiver goals, and advanced care planning and treatment;
• Patient Engagement—experience of care and shared decisionmaking;
• Care Coordination—transition planning;
• Safety—falls, pressure ulcers, and adverse drug events; and
• Cost/Access—inappropriate medicine use, infection rates, and avoidable admissions.
Through the discussion of the individual measures across the five programs, MAP identified several overarching issues. First, PAC/LTC facilities should coordinate efforts with respect to patient assessment instruments used in PAC/LTC settings to improve and maintain the quality of data. Second, HHS should emphasize that harmonization of measures is critical to promoting patient-centered care across PAC/LTC programs. Finally, HHS should better align performance measurement across PAC/LTC settings as well as with other settings to ensure comparability of performance and to facilitate information exchange.
The Improving Medicare Post-Acute Care Transformation (IMPACT) Act of 2014 requires certain standardized patient assessment data, data on quality measures, and data on resource use and other measures specified under sections 1899B(c)(1) and (d)(1) respectively of the Act to be standardized and interoperable to allow for their exchange among PAC providers and other providers to facilitate care coordination and improve Medicare beneficiary outcomes. New quality measures for these programs will ideally address specified core-measure concepts and more accurately communicate health information and care preferences when a patient is transferred across settings of care. MAP stressed that following a person across the care continuum from facility to home-based care or beyond will allow for a better assessment of a person's outcomes and experience across time and settings. Additionally, the workgroup was generally supportive of standardizing patient assessment data across PAC settings; however, it noted
MAP reviewed 19 PAC/LTC measures and made the following recommendations for federal programs:
• Inpatient Rehabilitation Facility Quality Reporting Program—the inclusion of five measures that address patient safety and functional status; conditional support for four functional outcome measures noting that the measures are meaningful to patients and actionable;
• Long-Term Care Hospital Quality Reporting Program—after the review of three measures that addressed patient safety, one was recommended while the other two were encouraged to undergo continued development;
• End-Stage Renal Disease Quality Incentive Program—after the review of seven measures, three dialysis adequacy measures were supported as they addressed both the adult and pediatric populations and encourage parsimony; four measures were not supported due to concerns raised about feasibility in the dialysis facility setting;
• Skilled Nursing Facility Value-Based Purchasing Program—one measure was reviewed and supported due to its alignment with readmissions measures in other settings;
• Home Health Quality Reporting Program—one measure was supported addressing pressure ulcers under the required IMPACT domain; and
• Hospice Quality Reporting Program—no specific measure recommendations but the inclusion of measures that address concepts such as goal attainments, patient engagement, care coordination, depression, caregiver roles, and timely referral to hospice were noted as needed for inclusion in the Hospice Item Set.
MAP convened during February 2015—in what is considered an off-cycle review—to provide recommendations to HHS on selection of performance measures to meet requirements of the Improving Medicare Post-Acute Care Transformation (IMPACT) Act of 2014. In addition to the annual Measure Applications Partnership (MAP) pre-rulemaking cycle process, the federal government sought input from MAP on additional measures under consideration following an expedited 30-day timeline.
As is noted above, the IMPACT Act, which was enacted on October 6, 2014, requires post-acute care (PAC) providers to report certain standardized patient assessment data as well as data on quality, resource use, and other measures within domains specified in the Act. The Act requires, among other things, the specification of measures to address resource use and efficiency, such as total estimated Medicare spending per beneficiary, discharge to community, and measures to reflect all-condition risk-adjusted potentially preventable hospital readmission rates. Such measures are to be specified across four different PAC settings: Skilled nursing facilities (SNFs), inpatient rehabilitation facilities (IRFs), long-term care hospitals (LTCHs), and home health agencies (HHAs). In its deliberations, MAP highlighted the importance of integrating data with existing assessment instruments where possible, as well as noted the challenges in standardizing between the four different care settings.
MAP reviewed four measures under consideration and made recommendations on their potential use in federal programs within the post-acute and long-term care settings. The first measure, Percent of Residents or Patients with Pressure Ulcers That Are New or Worsened (Short Stay), was supported by MAP as a way to address the domain of skin integrity and changes in skin integrity; this measure is NQF-endorsed for the SNF, IRF, and LTCH settings.
The second measure reviewed was the Percent of Residents Experiencing One or More Falls with Major Injury (Long Stay). MAP supported this measure, conditional upon pending proper risk adjustments and attribution for the home health setting to address the domain of incidence of major falls—addressing the IMPACT Act domain and a MAP PAC/LTC core concept. This measure is currently in use in the Nursing Home Quality Initiative. MAP also supported an All-Cause Readmission measure, noting that it specifically addresses an IMPACT Act domain and a PAC/LTC core concept.
The final measure evaluated in the off-cycle deliberation was the Percent of Patients/Residents/Persons with an Admission and Discharge Functional Assessment and a Care Plan that Addresses Function. MAP conditionally supported this measure. It addresses an IMPACT Act domain and PAC/LTC core concept.
In support of the NQS aims to provide better, more patient-centered care as well as improve the health of the U.S. population through behavioral and social interventions, HHS asked NQF to again convene a multistakeholder group via MAP to address measurement issues related to people enrolled in both the Medicare and Medicaid programs—a population often referred to as the “dual eligibles” or Medicare-Medicaid enrollees.
While the dual eligibles make up 20 percent of the Medicare population, they account for 34 percent of Medicare spending. Better healthcare, care coordination, and supportive services for dual eligible beneficiaries have the potential to make significant differences in their health and quality of life. Improvements for this population also have the potential to address the higher cost of their care.
In August 2015, MAP released its sixth annual report addressing this population. In this report, MAP provided its latest guidance to HHS on the use of performance measures to evaluate and improve care provided to Medicare-Medicaid enrollees. MAP promotes the selection of aligned measures within programs by publishing a Dual Eligible Family of Measures. It provides a varied list of potential measures from which program administrators can choose a subset most appropriate to fit individual program needs. This workgroup reviewed a total of 22 measures and added 18 new measures to the MAP Family of Measures for Dual Eligible Beneficiaries, including 12 new behavioral health measures, five admission/readmission measures, and one care coordination measure.
To inform MAP regarding the use of measures in the Dual Eligible set of measures, NQF conducted an analysis to document the use of measures across a range of public and private programs. It revealed numerous measures frequently used in programs, but none focused on an issue that reflects the health and social complexity that sets dual eligible beneficiaries apart from other healthcare consumers. MAP recommended more rapid development of new measures for this unique population in topic areas such as:
• Person-centered, goal-directed care;
• access to community-based long-term supports and services; and
• psychosocial needs.
The report also contained feedback from stakeholders regarding the use and utility of measures recommended by MAP. Through a series of stakeholder interviews, the report revealed that measurement is primarily dictated by external reporting requirements and that limited resources are available to conduct detailed analyses of this high-need population. Participants noted success in improving quality outcomes where they could promptly identify and
MAP favors the use of targeted, appropriate measures that can support program goals while driving improvement in consumer experience and outcomes. It recommends that HHS and other stakeholders do away with nonessential measurement, attestation, and regulatory requirements to free up system bandwidth for innovation. In its final recommendation, MAP suggested that wider use of measure stratification will allow for a better understanding of the impact of health disparities, for example the use of data to identify geographical locations by municipality or zip code that provide insight into the care of diverse populations, with the goal of speeding up progress in addressing them.
MAP reviewed the Medicaid Adult Core Set to identify and evaluate opportunities to improve the measures in use. In doing so, MAP considered states' feedback from the first year of implementation of the measures and applied its standard measure selection criteria. On August 31, 2015, MAP issued the final report,
The version of the Adult Core Set for 2015 contains 26 measures, spanning many clinical conditions. MAP supported all but one of the current measures for continued use in the Adult Core Set. MAP recommended the removal of NQF-endorsed measure #0648 Timely Transmission of Transition Record (Discharges from an Inpatient Facility to Home/Self Care or Any Other Site of Care) due to reports of low feasibility and lack of reporting by states.
In addition, MAP supported or conditionally supported nine measures for phased addition over time to the measure set spanning many clinical areas including behavioral health, reproductive health, and treatment options for those with terminal illnesses. MAP is aware that additional federal and state resources are required for each new measure; therefore, the task force recommended that measures be ranked to provide a clear sense of priority based on the expert opinions of the group on the most important measures to report. Additionally, many important priorities for quality measurement and improvement do not yet have metrics available to properly address them.
HHS awarded NQF additional work in 2015 to assess and strengthen the Child Core Set. Using a similar approach to its review of the Adult Core Set, MAP performed an expedited review over a period of 10 weeks to provide input to HHS within the 2015 federal fiscal year (FFY). MAP considered states' feedback from their ongoing participation in the voluntary reporting program and applied its standard measure selection criteria to identify opportunities to improve the Child Core Set. The final report titled, Strengthening the Core Set of Healthcare Quality Measures for Children Enrolled in Medicaid and CHIP, 2015,
The 2015 Child Core Set contains 24 measures representing the diverse health needs of the Medicaid and CHIP enrollee population, spanning many clinical topic areas. The measures are relevant to children ages 0–18 as well as pregnant women in order to encompass both prenatal and postpartum quality-of-care issues. Not finding significant implementation difficulties, MAP supported all of the FFY 2015 Child Core Set measures for continued use. In addition, MAP recommended that CMS consider up to six measures for phased implementation, allowing providers more time to prepare for data collection and reporting without creating undue burden on providers and their practices, specifically in the topic areas of perinatal care, behavioral health, pediatric health, and readmissions.
Under section 1890(b)(5)(iv) of the Act, the entity is required to describe in the annual report gaps in endorsed quality and efficiency measures, including measures within priority areas identified by HHS under the agency's National Quality Strategy, and where quality and efficiency measures are unavailable or inadequate to identify or address such gaps. Under section 1890(b)(5)(v) of the Act, the entity is also required to describe areas in which evidence is insufficient to support endorsement of quality and efficiency measures in priority areas identified by HHS under the National Quality Strategy and where targeted research may address such gaps.
In October 2015, a team of NQF staff worked to assess current gap areas within the portfolio, a byproduct of NQF measure endorsement and selection work, as well as gaps in new areas. After careful review, NQF staff identified 254 measure gaps; some of these gap areas may be addressed through recently launched projects.
The topic areas with the largest number of gaps reported are Neurology, Cancer, Behavioral Health, Care Coordination, and Resource Use. These gaps can persist for many reasons, including lack of measure development due to a funder's priorities or agendas, lack of a champion for these gap areas, limitation on data sources, particularly for those measures that require data that does not come from administrative claims or charts, and measure gap areas such as care coordination and resource use that are difficult to conceptualize and may require new methodologies. Both neurology and cancer projects have announced a call for measures. Additionally, care coordination and cost and resource use measures can be cross-cutting and apply to multiple disease-specific areas and practice portfolios.
For a full list of the NQF portfolio gaps identified, refer to Appendix F.
In a separate but related process, each MAP workgroup has identified measure gaps in their respective areas, as well as considered efforts related to alignment and reducing disparities that may be better addressed by risk adjustment and stratification. These need to be considered in light of the gaps identified through the endorsement process.
Building upon MAP's ongoing role in identifying gaps in measurement, MAP developed a scorecard approach which quantifies the number of MAP-recommended measures in gap areas. The 2015 scorecard is in Appendix E. Organized by the priority areas of the National Quality Strategy, the scorecard shows that MAP recommended multiple measures in some gap areas, while underscoring that measures are still needed in other important areas. Notable areas with a many gaps include the clinical quality measures in cancer and cardiovascular conditions, care coordination and communication, safety—particularly hospital acquired infections (HAI), medication and pain management, and person- and family-centered care—and the use of shared decisionmaking and care planning.
This high-level summary provided by the scorecard can help identify which gaps are starting to be addressed and where more work remains.
MAP members outlined several ways to strengthen the gap-filling approach in its deliberations. They included: (1) Identify where measures are not available or inadequately assess performance; (2) prioritize gaps by importance, impact, and feasibility; and (3) highlight barriers to gap-filling, such as infrastructure support needs, and offer potential solutions to these barriers. Each area-specific working group weighed in on the gaps in the Clinician, Hospital, and PAC/LTC spaces along with the Medicaid and CHIP programs.
In this year's MAP deliberations, members noted that measurement gaps could arise when measures are removed from programs. For example, this year more than 50 measures were removed from the Physician Quality Reporting System (PQRS) across a variety of condition areas. These removals could lead to measurement gaps, and programs should be subjected to ongoing scrutiny and analysis to ensure that they continue to assess important areas. This scrutiny is of particular importance for clinician programs, which seek to have relevant measures across all clinical specialties. Public commenters shared this concern and suggested monitoring to assure that removal would not leave a gap in measurement. In the PQRS program, there is an increased need for outcome rather than process measures as well as measures that address patient safety and adverse events, appropriate use of diagnosis and therapeutics, efficiency, cost, and resource use.
MAP also suggested critical improvements to the program objectives of the Value-Based Payment Modifier and Physician Feedback of Quality Resource and Use Reports (QRURs). MAP suggested that these programs use measures that have been reported for at least one year, and ideally can be linked with particular cost or resource use measures to capture value. Also, MAP suggested that there should be a greater focus on monitoring the unintended consequences to vulnerable populations.
Similarly, MAP identified the need for greater focus on outcome measures and measures that are meaningful to consumers and purchasers for the Physician Compare Initiative—with a focus on patient experience, patient-reported outcomes (
Finally, with the rapidly growing world of electronic health records (EHRs), MAP identified a few key areas of measurement focus for the Medicare and Medicaid EHR Incentive Programs for EPs. MAP suggested including more measures that have eMeasure specifications available. Moving forward, MAP also noted that the clinician level programs should focus on measures that reflect efficiency in data collection and reporting through the use of health IT, measures that leverage health IT capabilities, and innovative measures made possible by health IT.
Priority measure gaps for the Ambulatory Surgical Center Quality Reporting (ASCQR) Program include surgical quality care, infection rates, follow-up after procedures, complications including anesthesia-related complications, cost, and patient and family engagement measures including an Ambulatory Surgical Center (ASC)-specific Consumer Assessment of Healthcare Providers and Systems (CAHPS) module and patient-reported outcomes.
MAP suggested that for the Hospital Acquired Condition (HAC) Reduction program measures should focus on reducing major drivers of harm. Measures used by both HAC Reduction Program and the Hospital VBP Program can help to focus attention on critical safety issues.
Several gap areas were identified by MAP for the Hospital VBP Program. These gaps include medication errors, mental and behavioral health, emergency department throughput, a hospital's culture of safety, and patient and family engagement.
MAP suggested several areas for increased work and development for the Hospital Readmissions Reduction Program. Improved care transitions, increased care coordination across providers, and improved communication of important inpatient information to those who will be taking care of the patient post-discharge are measure areas that could benefit from further development in order to reduce readmissions.
Measure gaps in the Inpatient Psychiatric Facility Quality Reporting (IPFQR) program include step down care—care provided between hospital discharge and full immersion back into the home and community—behavioral health assessments and care in the emergency department (ED), readmissions, identification and management of general medical conditions, partial hospitalization or day programs, and a psychiatric care module for CAHPS.
Gaps identified in the Hospital Outpatient Quality Reporting (OQR) Program measure set include measures of ED overcrowding, wait times, and disparities in care—specifically, disproportionate use of EDs by vulnerable populations. Other gaps include measures of cost, patient-reported outcomes, patient and family engagement, follow-up after procedures, fostering important ties to community resources to enhance care coordination efforts, and an outpatient CAHPS module.
Finally, MAP identified several gaps in the PPS-Exempt Cancer Hospital Quality Reporting (PCHQR) Program. These measures should address gaps in cancer care including pain screening and management, patient and family/caregiver experience, patient-reported symptoms and outcomes, survival, shared decisionmaking, cost, care coordination, and psychosocial/supportive services.
MAP carried forward the recommendation from last year's pre-rulemaking deliberations for the Nursing Home Quality Initiative (NHQI) program. There is still a need for added measures that assess discharge to the community and the quality of transition planning, as well as the inclusion of the nursing home-CAHPS measures in the program to address patient experience.
Under the Home Health Quality Reporting Program (HHQRP), while no specific measure gaps were identified, MAP recommended that CMS conduct a thorough analysis of the measure set to identify priority gap areas, measures that are topped out, and opportunities to improve the existing measures.
Consistent with the previous year, MAP states that the Inpatient Rehabilitation Facility Quality Reporting Program (IRFQRP) measure set is still too limited and could be enhanced by addressing core measure concepts not currently in the set such as care coordination, functional status, and medication reconciliation and the safety issues that have high incidence in IRFs, such as MRSA, falls, CAUTI and Clostridium Difficile (
MAP made recommendations for the future directions for the End-Stage Renal Disease Quality Incentive Program (ESRDQIP). MAP prefers to include more outcome measures and pediatric measures to assess the pediatric population that has been largely excluded from the existing measures, and sees a need to identify appropriate data elements and sources to support measures. Similarly, MAP made recommendations for the future direction of the HHQRP. These recommendations include the development of an outcome measure addressing pain and the selection of measures that address care coordination, communication, timeliness/responsiveness, responsiveness of care, and access to the healthcare team on a 24-hour basis.
During its deliberations, the task force convened to address the needs of Dual Eligible beneficiaries identified high-priority gaps in the family of measures for Dual Eligibles. The list of gaps identified this year has not changed since the previous report, Dual Eligible Beneficiary Population Interim Report 2012. This consistency emphasizes that new and improved measures are still urgently needed to evaluate:
• Goal-directed, person-centered care planning and implementation;
• Shared decisionmaking;
• Systems to coordinate acute care, long-term services and supports;
• Beneficiary sense of control/autonomy/self-determination;
• Psychosocial needs; and
• Optimal functioning levels.
During its deliberations on the current state of the Medicaid Adult Core Set, MAP documented the following gaps (in no particular order of priority) that need to be filled in order to further strengthen the core set of measures:
• Access to primary, specialty, and behavioral healthcare;
• Beneficiary reported outcomes—health-related quality of life;
• Care coordination including the integration of medical and psychosocial services, and primary care and behavioral integration;
• Efficiency, specifically the inappropriate use of the emergency department (ED);
• Long-term supports and services, notably HCBS;
• Maternal health—inter-conception care to address risk factors, poor birth outcomes; postpartum complications, support with breastfeeding after hospitalization;
• Promotion of wellness;
• Treatment outcomes for behavioral health conditions and substance use disorders;
• Workforce;
• New chronic opiate use (45 days);
• Polypharmacy;
• Engagement and activation in healthcare; and
• Trauma-informed care.
As with Adult Core Set, many important priorities for quality measurement and improvement do not have the metrics available to address them. The following measure gaps (in no particular order of priority) will be a starting point for future discussion and will guide annual revisions to further strengthen the Child Core Set:
• Care coordination—HCBS, social service coordination, and cross-sector measures that would foster joint accountability with the education and criminal justice systems;
• Screening for abuse and neglect;
• Injuries and trauma;
• Mental health—notably access to outpatient and ambulatory mental health services, ED use for behavioral health, and behavioral health functional outcomes that stem from trauma-informed care;
• Overuse/medically unnecessary care—specifically appropriate use of CT scans;
• Durable medical equipment; and
• Cost measures—targeting people with chronic needs and family out-of-pocket spending.
During this year's deliberations, the MAP discussions centered on the need for measurement alignment across multiple programs by focusing on having standardized measures that allow for comparing performance across care settings, data sources, and standardized definitions for measure elements—the core items needed for comprehensive assessment within the measure.
MAP noted the usefulness of expanding certain hospital programs to allow small and rural hospitals the ability to report measures, thus closing potential “reporting gaps” across the healthcare system. The recommendations in the report,
However in their discussions, MAP members also noted the limits of alignment. Some measurement programs may have specific purposes which necessitate the use of specialized measures. Moreover, there were questions about what constituted alignment, such as whether measures need to be exactly the same or could differ slightly and still be considered comparable.
The public comments NQF received on the recommendations of the workgroups reflected appreciation for MAP's recognition of the importance of alignment and further emphasized the need to simplify measures across settings—leveraging consistency of similar measures used in multiple programs. Other comments centered on the importance of aligning measures on the national and the state/regional level—emphasizing a need to understand measure variation between payers.
MAP also raised the issue of the need to better assess disparities. Many measures could be stratified for different populations or conditions to understand the nature and extent of variations in measure results. However, the data currently available may not contain all the information needed to allow for meaningful measure stratification. This often hampers the efforts to address health disparities. Further work is required to specify and build the data infrastructure needed to fully understand variations and disparities in care delivery and health outcomes.
Section1890(b)(5)(A)(i) of the Social Security Act mandates that the Annual Report to Congress and the Secretary include a description of the implementation of quality and efficiency measurement initiatives under this Act and the coordination of such initiatives with quality and efficiency initiatives implemented by other payers.
This year NQF worked with other payers and entities to better understand the areas of alignment and socioeconomic risk adjustment of
Beginning in 2014, CMS and America's Health Insurance Plans (AHIP) have brought together private- and public-sector payers to work on better measure alignment between the two sectors.
The stakeholders formed a variety of working groups charged with the mission to foster measure alignment in those clinical areas. The working groups address the specific areas of accountable care organizations and patient-centered medical homes, cardiology, obstetrics and gynecology, oncology, orthopedics, gastroenterology, ophthalmology, HIV and Hepatitis C, and pediatrics. Nearly all the measures that have been identified for alignment purposes are NQF-endorsed.
Their focus has been on clinician level measures and has largely been oriented toward measures used in ambulatory settings. As the endorser of measures, NQF contributed technical assistance to these working groups. The guidance that NQF provided centered on the current status of the portfolio and the individual measures.
Fostering greater measure alignment is a goal shared by many stakeholders. While these working groups are not intended to solve the alignment conundrum, they will serve as an important first step toward accomplishing this lofty and much needed goal. A report from the AHIP–CMS Core Measures Group is expected in 2016; however, no specific deadline has been publicized.
Risk adjustment (also known as case-mix adjustment) refers to statistical methods to control or account for patient-related factors when computing performance measure scores. Risk adjusting outcome performance measures to account for differences in patient health status and clinical factors that are present at the start of care is widely accepted. There has been growing interest from policymakers and other healthcare leaders regarding whether measures used in comparative performance assessments, including public reporting and pay-for-performance, should be adjusted for socioeconomic status and other demographic factors (SES) in order to improve the comparability of performance. Because patient-related factors can have an important influence on patient outcomes, risk adjustment can improve the ability to make an accurate and fair conclusion about the quality of care patients receive.
In January 2015, NQF's Cost and Resource Use Standing Committee and All-Cause Admissions and Readmissions Standing Committee convened to discuss the NQF Board's recommendations regarding measures endorsed with conditions (see page 20). NQF staff also briefed measure developers on the need for a conceptual and empirical evaluation of potential measures for inclusion in a trial period. This two-year trial period is a temporary policy change that will allow risk adjustment of performance measures for SES and other demographic factors. At the conclusion of the trial, NQF will determine whether to make this policy change permanent.
In April 2015, the SES trial officially opened for all newly submitted measures, as well as measures undergoing endorsement maintenance review and measures already in the trial period. Measures included the SES trial are the aforementioned all cause admission/readmission and cost/resource use measures, as well as cardiovascular measures. For measures included in the trial period, measure developers are requested to provide information on socioeconomic and other related factors that were available and analyzed during measure development. However, not all measures are prime for inclusion in the trial. There must be a sound conceptual and empirical basis to be included in the SES adjustment trial. The conceptual basis for inclusion refers to a logical theory that explains the association between an SES factor(s) and the outcome of interest—it may be informed by prior research and/or healthcare experience related to the measure focus, but a direct causal relationship is not required.
Measures that are selected for this trial period have been reviewed under the regular endorsement and maintenance process prescribed by statute and have been granted a conditional endorsement based on the appropriate risk adjustment and stratification of the measures to account for socioeconomic status and other demographic factors.
NQF has evolved in the 16 years it has been in existence and since it endorsed its first performance measures more than a decade ago. While its focus on improving quality, enhancing safety, and reducing costs by endorsing performance measures has remained a constant, its role has expanded. New roles have included providing private sector input into the development of the National Quality Strategy, defining measure gaps, and recommending measures for an array of public programs. What has also changed is the centrality of performance measures in efforts by public and private policymakers to transform delivery and payment systems. In essence, performance measures are becoming more and more consequential.
NQF's work in evolving the science of performance measurement has also expanded over the years, and recent projects focus on challenges that stand in the way of getting to high-value outcome and cost measures, as well as bringing new kinds of providers into accountability programs. More specifically, this year NQF launched projects focused on attribution and variation, which will provide important guidance to developers and those implementing measures, respectively. And an Expert Panel made recommendations on how best to include rural and low-volume providers in accountability programs over the next number of years and suggested particular considerations that should be taken into account in doing so.
In 2015, NQF's work also focused on helping to facilitate the transition to eMeasurement. Efforts in this area included encouraging the submission of eMeasures for endorsement, creating a framework to help advance the notion of using measures to improve the safety of health information technology, and facilitating the development of evaluation criteria and an overall approach to the harmonization and approval of value sets, the “building blocks” of code vocabularies, to ensure measures can be consistently and accurately implemented across disparate HIT systems.
Moving forward into 2016, NQF looks forward to addressing other issues that stymie our collective efforts to use eMeasures, continuing our progress in addressing measurement science challenges, and furthering the portfolio of high-value measures that public and private payers, providers, and patients rely on to improve health and healthcare.
The Measure Selection Criteria (MSC) are intended to assist MAP with identifying characteristics that are associated with ideal measure sets used for public reporting and payment programs. The MSC are not absolute rules; rather, they are meant to provide general guidance on measure selection decisions and to complement program-specific statutory and regulatory requirements. Central focus should be on the selection of high-quality measures that optimally address the National Quality Strategy's three aims, fill critical measurement gaps, and increase alignment. Although competing priorities often need to be weighed against one another, the MSC can be used as a reference when evaluating the relative strengths and weaknesses of a program measure set, and how the addition of an individual measure would contribute to the set. The MSC have evolved over time to reflect the input of a wide variety of stakeholders.
To determine whether a measure should be considered for a specified program, the MAP evaluates the measures under consideration against the MSC. MAP members are expected to familiarize themselves with the criteria and use them to indicate their support for a measure under consideration.
1. NQF-endorsed measures are required for program measure sets, unless no relevant endorsed measures are available to achieve a critical program objective demonstrated by a program measure set that contains measures that meet the NQF endorsement criteria, including importance to measure and report, scientific acceptability of measure properties, feasibility, usability and use, and harmonization of competing and related measures.
2. Program measure set adequately addresses each of the National Quality Strategy's three aims demonstrated by a program measure set that addresses each of the National Quality Strategy (NQS) aims and corresponding priorities. The NQS provides a common framework for focusing efforts of diverse stakeholders on
3. Program measure set is responsive to specific program goals and requirements demonstrated by a program measure set that is “fit for purpose” for the particular program.
4. Program measure set includes an appropriate mix of measure types demonstrated by a program measure set that includes an appropriate mix of process, outcome, experience of care, cost/resource use/appropriateness, composite, and structural measures necessary for the specific program.
5. Program measure set enables measurement of person- and family-centered care and services demonstrated by a program measure set that addresses access, choice, self-determination, and community integration.
6. Program measure set includes considerations for healthcare disparities and cultural competency demonstrated by a program measure set that promotes equitable access and treatment by considering healthcare disparities. Factors include addressing race, ethnicity, socioeconomic status, language, gender, sexual orientation, age, or geographical considerations (
7. Program measure set promotes parsimony and alignment demonstrated by a program measure set that supports efficient use of resources for data collection and reporting, and supports alignment across programs. The program measure set should balance the degree of effort associated with measurement and its opportunity to improve quality.
MAP operates through a two-tiered structure. Guided by the priorities and goals of HHS's National Quality Strategy, the MAP Coordinating Committee provides direction and direct input to HHS. MAP's workgroups advise the Coordinating Committee on measures needed for specific care settings, care providers, and patient populations. Time-limited task forces consider more focused topics, such as developing “families of measures”—related measures that cross settings and populations—and provide further information to the MAP Coordinating Committee and workgroups. Each multistakeholder group includes individuals with content expertise and organizations particularly affected by the work.
MAP's members are selected based on NQF Board-adopted selection criteria, through an annual nominations process and an open public commenting period. Balance among stakeholder groups is paramount. Due to the complexity of MAP's tasks, individual subject matter experts are included in the groups. Federal government
Amy Mullins, MD, CPE, FAAFP
Diane Padden, Ph.D., CRNP, FAANP
Janis Orlowski, MD
As published in the
Once again we thank the National Quality Forum (NQF) and the many stakeholders who participate in NQF projects for helping to advance the science and utility of health care quality measurement. As part of its annual recurring work to maintain a strong portfolio of endorsed measures for use across varied providers, settings of care, and health conditions, NQF reports that in 2015 it updated its portfolio of approximately 600 endorsed measures by reviewing and endorsing or re-endorsing 161 measures and removing 42. Removed measures no longer met endorsement criteria, were retired by their developers, were replaced by stronger measures, or were no longer needed because providers consistently performed at the highest level on these measures. NQF-endorsed measures address a wide range of health care topics relevant to HHS programs including such high prevalence and high impact conditions and topics as: Person- and family-centered care, care coordination, palliative and end-of-life care, cardiovascular disease, behavioral health, pulmonary/critical care, neurology, perinatal care, and cancer. Additionally, as part of its annual review of measures proposed for use in the Medicare program, NQF stakeholder teams reviewed and made recommendations on nearly 200 measures for use in 20 different programs, including measures under consideration to implement new post-acute care measurement requirements
In addition to this important recurring work, a number of NQF's 2015 projects tackled or began tackling several difficult quality measurement issues that are key to the successful implementation of new patient care models and the transformation of the health care delivery system overall. These projects address:
• How to “attribute” patient health care and outcomes to individual providers under newer payment models in which multiple providers are involved in delivering care;
• How to address the performance measurement challenges of geographic isolation and small practice size common to rural and other low-volume providers;
• How to detect and assess new types of health care errors as we increasingly rely on health information technology (Health IT) to reform health care; and
• How to address patient social risk factors when measuring healthcare quality and outcomes.
“Attribution” is a method used to assign patients and their quality outcomes to specific providers when trying to evaluate patient care. As HHS works to develop new models of care delivery and alternative payment models that integrate and coordinate care delivered by multiple providers, attributing the quality of health care delivered and the outcomes of that care to a particular provider or providers becomes more difficult. This issue has become increasingly important as these new models of care delivery often are built on an expectation of shared accountability—across primary care physicians, specialist physicians, physician groups, nurse practitioners, and the full healthcare team. In 2015 HHS requested NQF to convene a multi-stakeholder committee to examine this topic and recommend principles to guide the selection and implementation of approaches to attribution, potential approaches to validly and reliably attribute performance measurement results to one or more providers under different delivery models, and models of attribution for testing. Although this work just began in late 2015, HHS is closely following it and eager to receive the recommendations of this committee.
NQF's report on “Performance Measurement for Rural Low-Volume Providers” similarly was commissioned by HHS' Health Resources and Services Administration (HRSA) to identify challenges in healthcare performance measurement faced by rural providers and to make recommendations to address these, particularly in the context of Medicare pay-for-performance programs. This report aimed to support Critical Access Hospitals (CAHs), Rural Health Clinics, Community Health Centers, small rural non-CAH hospitals, other small rural clinical practices, and the clinicians who serve in any of these settings.
The resulting NQF report well-articulated the challenges these providers face, including the geographic isolation of some rural providers and the concomitant lack of patient transportation and provider information technology capabilities. These rural providers also may not have enough patients to achieve reliable and valid performance measurement results for all measures. Because of these “small number” challenges and because rural providers sometimes are paid differently than other providers, many HHS quality initiatives have historically excluded them from participation. We recognize that this can have the unintended effects of preventing rural residents from having access to information on provider performance, and preventing these rural providers from earning payment incentives that are open to non-rural providers.
To address these challenges, the stakeholders convened by NQF recommended phasing in rural providers' participation in quality measurement and quality improvement programs, and a number of specific approaches to measure development, alignment, selection and rural provider participation in pay-for-performance programs to support this transition. In response, HRSA, CMS, and HHS' Office of the Assistant Secretary for Planning and Evaluation are working together to examine how best to act on these recommendations.
The effective deployment of Health IT such as electronic health records (EHRs) is another critical dimension of reforming the delivery of health care. Health IT and health information exchange play a critical role in the continuing evolution of delivery system reform. As evidence of this, the new Merit-based Incentive Payment System (MIPS) for payments to physicians and other clinicians created by the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA) specified Advancing Care Information (referred to in the statute as meaningful use of certified EHR technology) as one of four performance categories upon which payment adjustments will be based. Approximately 98% of hospitals and more than 80% of physicians currently use EHRs to help provide better patient care.
While promoting and assisting providers to adopt this new technology, HHS is mindful that the use of new technology of all kinds can be accompanied by unintended consequences and the potential risk of new types of errors. With respect to health IT, for example, the NQF HIT Safety Committee found that health IT user interfaces have sometimes proven to be unclear, confusing, cumbersome, or time-consuming for clinicians to use, leading to inadvertent mistakes in data entry or retrieval of information, and other opportunities for error. Conversely, HHS recognizes that there are opportunities for this new technology to eliminate or reduce the occurrence of a variety of adverse events. For this reason, HHS' Office of the National Coordinator for Health Information Technology (ONC) requested NQF to examine the intersection of Health IT and patient safety; identify priority measurement areas with the greatest potential for both improving the safety of Health IT and using Health IT to improve patient safety; make recommendations on how to address identified gaps and challenges in Health IT safety measurement; and identify best-practices for the measurement of Health IT safety issues. Although the report of this work was not released until early 2016, the majority of this work was conducted in 2015. The final report was very helpful to ONC and HHS overall, and ONC is working with AHRQ and CMS to incorporate the Health IT safety measure framework and measure concepts into measurement strategies.
Finally, we note that in 2015, NQF began a two year trial period during which new measures submitted for endorsement and endorsed measures that are undergoing maintenance review would be reviewed for possible “risk adjustment” for socioeconomic status (SES) and other demographic factors. Risk adjustment is a statistical technique that allows certain factors to be taken into account when computing and making comparisons between different performers. Although it has been common to “risk adjust” health care provider performance measures based on certain patient health factors such as how ill or how old patients are, it is been debated for some time whether performance measures should be adjusted for factors other than a patients' illness—such as a patient's race, ethnicity, income or where they live. If populations with SES risk factors
This issue is now being studied by HHS' Office of the Assistant Secretary for Planning and Evaluation (ASPE) as mandated by the
In conclusion, the need for quality measurement to evolve alongside healthcare delivery reform is evident in many of the targeted projects that NQF is being asked to undertake. HHS greatly appreciates the ability to bring many and diverse stakeholders to the table to help develop the strongest possible approaches to quality measurement as a key component to health care delivery system reform. We look forward to continued strong partnership with the National Quality Forum in this ongoing endeavor.
This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 35).
Fish and Wildlife Service, Interior.
Announcement of draft policy; request for public comment.
We, the U.S. Fish and Wildlife Service, announce the draft Endangered Species Act (ESA) Compensatory Mitigation Policy. The draft new policy is needed to implement recent Executive Office and Department of the Interior mitigation policies that necessitate a shift from project-by-project to landscape-scale approaches to planning and implementing compensatory mitigation. The draft new policy is also needed to improve consistency in the use of compensatory mitigation as recommended or required under the ESA. The draft ESA Compensatory Mitigation Policy, if adopted, would cover permittee-responsible mitigation, conservation banking, in-lieu fee programs, and other third-party mitigation mechanisms, and would stress the need to hold all compensatory mitigation mechanisms to equivalent and effective standards. We request comments, information, and recommendations on the draft new policy from all interested parties.
We will accept comments on the draft policy from all interested parties until October 17, 2016. Please note that if you are using the Federal eRulemaking Portal (see
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• For the Information Collection Aspects of the draft policy: You may review the Information Collection Request online at
Craig Aubrey, U.S. Fish and Wildlife Service, Division of Environmental Review, 5275 Leesburg Pike, Falls Church, VA 22041–3803; telephone 703–358–2442.
The mission of the U.S. Fish and Wildlife Service (Service or USFWS) is working with others to conserve, protect, and enhance fish, wildlife, and plants and their habitat for the continuing benefit of the American people. As part of our mission, we continually seek opportunities to engage both the public and private sectors to work with us to conserve species and the ecosystems on which they depend. This collaborative effort includes conservation of endangered and threatened (listed) species and their designated critical habitat protected under the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
This draft policy is the first comprehensive treatment of compensatory mitigation under authority of the ESA to be issued by the Service. Both the 1995 interagency policy on the establishment and operation of wetland mitigation banks (60 FR 58605, November 28, 1995), and the 2000 interagency policy on the use of in-lieu fee arrangements (65 FR 66914, November 7, 2000) are specific to wetland mitigation, but provide guidance that is generally applicable to conservation banking and in-lieu fee programs for species associated with wetlands or uplands. These interagency policies were superseded by the Environmental Protection Agency–U.S. Army Corps of Engineers 2008 Compensatory Mitigation Rule for Losses of Aquatic Resources (73 FR 19670, April 10, 2008). In 2003, the Service issued guidance on the establishment, use, and operation of conservation banks (68 FR 24753, May 8, 2003). In 2008, we issued recovery crediting guidance (73 FR 44761, July 31, 2008). This draft ESA Compensatory Mitigation Policy would replace these previous policies and guidance documents and expand coverage to all compensatory mitigation mechanisms recommended or supported by the Service when implementing the ESA, including, but not limited to, conservation banks, in-lieu fee programs, habitat credit exchanges, and permittee-responsible mitigation.
The primary intent of the draft policy is to provide Service personnel with direction and guidance in the planning and implementation of compensatory mitigation, primarily through encouraging strategic planning at the landscape level and setting standards and providing minimum criteria that mitigation programs and projects must meet to achieve conservation that is effective and sustainable. Compensatory mitigation is defined in this draft policy as compensation for remaining unavoidable impacts after all appropriate and practicable avoidance and minimization measures have been applied, by replacing or providing substitute resources or environments (see 40 CFR 1508.20) through the restoration, establishment,
By memorandum (80 FR 68743), the President directed all Federal agencies that manage natural resources, “to avoid and then minimize harmful effects to land, water, wildlife, and other ecological resources (natural resources) caused by land- or water-disturbing activities, and to ensure that any remaining harmful effects are effectively addressed, consistent with existing mission and legal authorities.” This draft policy is consistent with the Presidential memorandum (“Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment”) issued November 3, 2015; the Secretary of the Department of the Interior (Department) Secretarial Order 3330 entitled, “Improving Mitigation Policies and Practices of the Department of the Interior,” issued October 31, 2013; and is intended to institute the policies and procedures reflected in the guiding principles on mitigation established by the Department through the report to the Secretary entitled, “A Strategy for Improving the Mitigation Policies and Practices of The Department of the Interior,” issued in April 2014 (Clement et al. 2014). These directives anticipate a more comprehensive use of a landscape-scale approach to planning and implementing mitigation. The landscape-scale approach to mitigation is not a new concept. For example, in 2013 the Service issued mitigation guidance for two listed song birds in central Texas based on recovery goals for these species. The song bird mitigation guidance sets minimum standards that must be met by mitigation providers and encourages the use of consolidated compensatory mitigation in the form of permanent protection and management of large, contiguous patches of species habitat. Proactive approaches, such as this example, provide greater regulatory certainty for project proponents and encourage the establishment of conservation banks and other mitigation opportunities by mitigation sponsors for use by project proponents.
This draft policy adopts the mitigation principles in the Presidential memorandum (80 FR 68743); the strategy report to the Secretary (Clement et al. 2014); the Department's Mitigation Policy, “Implementing Mitigation at the Landscape-scale” (600 DM 6); and the Service's draft revision of our Mitigation Policy (81 FR 12380, March 8, 2016), including a mitigation goal to improve (
This draft policy would set forth standards for compensatory mitigation that would implement the tenets in the directives cited above and reflect the many lessons learned by the Service during our more than 40-year history implementing the ESA, particularly sections 7 and 10 of the ESA. The standards would apply to all compensatory mitigation mechanisms (
Adherence to the mitigation principles and compensatory mitigation standards identified in this draft policy would be expected to achieve greater consistency, predictability, and transparency in implementation of the ESA. Service offices are encouraged to work with Federal agencies and other partners to establish compensatory mitigation programs based on landscape-scale conservation plans, such as more efficient, better coordinated, and expedited regulatory processes, which can provide project applicants with incentives to mitigate their actions. Compensatory mitigation programs and projects designed and implemented in accordance with the standards set forth in this draft policy and that also adhere to prescriptive guidance provided in this draft policy would be expected to achieve the best conservation outcomes for listed, proposed, and at-risk species through effective management of the risks associated with compensatory mitigation.
This draft policy would encourage the use of market-based compensatory mitigation programs such as conservation banking in conjunction with programmatic approaches to ESA section 7 consultations and habitat conservation plans that can be designed to achieve a no net loss or net gain mitigation goal. Consultations and habitat conservation plans that establish a “program” to address multiple, similar actions and/or impacts to one or more species operate on a larger landscape scale and expedite regulatory processes. Market-based mitigation programs improve regulatory predictability, provide efficiencies of scale, and incentivize private investment in species conservation (Fox and Nino-Murcia 2005). The benefits provided by these mitigation programs generally encourage Federal agencies and incentivize applicants to develop proposed actions that fully compensate for adverse impacts to affected species anticipated as a result of their actions.
“In enacting the ESA, Congress recognized that individual species should not be viewed in isolation, but must be viewed in terms of their relationship to the ecosystem of which they form a constituent element. Although the regulatory mechanisms of the [ESA] focus on species that are formally listed as endangered or threatened, the purposes and policies of the [ESA] are far broader than simply providing for the conservation of individual species or individual members of listed species” (Conference Report No. 97–835 House of Representatives, September 17, 1982). This comment, made over 30 years ago during reauthorization of the ESA, is a reminder of the challenges still before us. Incorporating a landscape-scale approach to development and conservation planning, including mitigation, that ensures a net gain or, at a minimum, no net loss in the status of affected resources, as directed by the Presidential memorandum (80 FR 68743), would help address the additive impacts that lead to significant
As discussed later in this document, the Service's authority to require compensatory mitigation under the ESA is limited and differs under Sections 7 and 10. However, we can recommend the use of compensatory mitigation to offset the adverse impacts of actions under certain provisions of the ESA and under other authorities, such as the Fish and Wildlife Coordination Act (16 U.S.C. 661–667e) and the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
The additive effects of impacts adversely affecting listed and at-risk species as a result of many past and current human-caused actions are significant. The number of listed species has increased from slightly more than 300 in 1982 (when the ESA was reauthorized) to more than 1,500 by the end of 2015. While some listed species have been downlisted or delisted within the last 40 years, the projected increase in human population growth, increasing demand on our natural resources associated with this projected population growth, accelerated climate change, continued introductions of invasive species, and other stressors are putting even more species at risk and compromising the essential functions of ecosystems necessary to improve the status of these species and recover listed species. We cannot expect to change the status trajectories of these species without a commitment to responsible and implementable standards for accomplishing effective, sustainable compensatory mitigation that fully offsets the adverse impacts of actions to species and other resources of concern.
Compensatory mitigation is a conservation measure that can be used within an appropriate context under section 7 of the ESA to address proposed actions that may result in incidental take of listed species that cannot be avoided. Under section 7(a)(1) of the ESA, all Federal agencies are required to use their authorities to carry out conservation programs for listed species. Federal agencies may choose to develop and implement section 7(a)(1) conservation programs for listed species in conjunction with section 7(a)(2) consultation through a coordinated program. The Service supports these efforts, and we encourage Federal agencies to coordinate with us on development of such programs.
Compensatory mitigation can be used under section 10(a)(1)(B) of the ESA through habitat conservation plans developed to address adverse impacts of non-federal actions on listed and other covered species that cannot be avoided. Landscape-scale habitat conservation plans developed for use by multiple applicants to conserve multiple resources are generally the most efficient and effective approaches. The Service supports these efforts and encourages applicants, particularly local and State agencies and organizations, to coordinate with us on the development of such plans.
Taking a landscape-level approach to mitigation will assist the Service to modernize our compensatory mitigation procedures and practices and better meet the challenges posed by the growing human population's demands on our natural resources and changing conditions such as those resulting from climate change. Conservation banking is a market-based compensatory mitigation mechanism based on a landscape approach to mitigation that achieves compensation for listed and other resources of concern in advance of project impacts. In-lieu fee programs also establish compensatory mitigation sites but generally not in advance of impacts and often not through a market-based approach. Habitat credit exchanges are market-based compensatory mitigation programs based on a clearinghouse model that may or may not accomplish mitigation in advance of project impacts. All three of these mitigation mechanisms use a landscape-level approach to consolidate and locate compensatory mitigation in areas identified as conservation priorities. These programs have designated service areas within which proposed actions that meet certain criteria may be mitigated with Service approval. The functions and services provided for listed, proposed, and at-risk species by these compensatory mitigation programs are represented by credits. Credits are used to offset impacts (often referred to as debits). Most credit transactions involve a permittee purchasing the amount of credits needed to offset the anticipated adverse effects of an action from the mitigation project sponsor. The Service must approve credit transactions as to their conservation value and appropriate application for use related to any authorization or permit issued under the ESA.
The conservation banking model is generally perceived as successful at achieving effective conservation outcomes and, when used in conjunction with section 7 consultations and section 10 habitat conservation plans, has achieved notable regulatory efficiencies. Results include ecological performance that usually achieves no net loss, and often a net benefit, in species conservation; increased regulatory predictability for Federal agencies and applicants; and more efficient and better coordinated permitting processes, especially when multiple agencies with overlapping regulatory jurisdictions are involved.
Permittee-responsible mitigation for many small to moderate impacts cannot provide adequate compensation because it is often difficult to achieve effective conservation on a small scale. Small mitigation sites are often not ecologically defensible, and it is often difficult to ensure long-term stewardship of these sites. Most individual actions result in small or moderate impacts to species and habitat, yet the additive effects of these actions (often referred to as “death by a thousand cuts”), when not compensated for, can have substantial adverse effects on these resources. In general, conservation banking, in-lieu fee programs, and similar mitigation mechanisms that consolidate compensatory mitigation on larger landscapes are designed to serve project proponents with small to moderate impact actions, are ecologically more effective, and provide more economical options to achieve compensation than permittee-responsible mitigation.
Furthermore, larger landscape-scale conservation programs with market-based compensatory mitigation
Because endangered and threatened species are by definition in danger of extinction or likely to become so in the foreseeable future, avoiding, minimizing, and compensating for impacts to their populations are all forms of mitigation that the Service may consider when administering the ESA. The Council on Environmental Quality (CEQ) National Environmental Policy Act (42 U.S.C. 4321
• Avoiding the impact altogether by not taking a certain action or parts of an action;
• Minimizing impacts by limiting the degree or magnitude of the action and its implementation;
• Rectifying the impact by repairing, rehabilitating, or restoring the affected environment;
• Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action; and
• Compensating for the impact by replacing or providing substitute resources or environments.
In 600 DM 6, the Department of the Interior states that mitigation, as enumerated by CEQ, is compatible with Departmental policy; however, as a practical matter, the mitigation elements are categorized into three general types that form a sequence: Avoidance, minimization, and compensatory mitigation for remaining unavoidable (also known as residual) impacts. Historically, those administering the ESA have often used a condensed mitigation sequence—avoid, minimize, and compensate or avoid, minimize, and mitigate. This draft policy adopts the Department's definition of compensatory mitigation—compensation for remaining unavoidable impacts after all appropriate and practicable avoidance and minimization measures have been applied, by replacing or providing substitute resources or environments (see 40 CFR 1508.20) through the restoration, establishment, enhancement, or preservation of resources and their values, services, and functions (600 DM 6.4C). And, throughout this draft policy, “compensatory mitigation” or “compensation” is used in this broad sense to include any measure that would rectify, reduce, or compensate for an impact to an affected resource. We also use the term “minimize” in the broad sense throughout this draft policy to include any conservation measure, including compensation, which would lessen the impact of the action on the species or other affected resource. We recognize there is some overlap in the use of these terms but, as a practical matter, this use in practice is consistent with the intent of the ESA. Information regarding avoidance and observance of the mitigation sequence can be found at our draft Mitigation Policy (81 FR 12380, March 8, 2016). This draft ESA Compensatory Mitigation Policy would cover permittee-responsible mitigation, conservation banking, in-lieu fee programs, and all other compensatory mitigation mechanisms.
The draft policy follows:
This policy adopts the mitigation principles established in the U.S. Fish and Wildlife Service (Service) draft Mitigation Policy (81 FR 12380, March 8, 2016), establishes compensatory mitigation standards, and provides guidance for the application of compensatory mitigation through implementation of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Adherence to the principles, standards, and guidance identified in this policy is expected to: (1) Provide greater clarity on applying compensatory mitigation to actions subject to ESA compliance requirements; (2) improve consistency and predictability in the implementation of the ESA by standardizing compensatory mitigation practices; and (3) promote the use of compensatory mitigation at a landscape scale to help achieve the purposes of the ESA.
This policy encourages Service personnel to collaborate with other agencies, academic institutions, nongovernmental organizations, Tribes, and other partners to develop and implement compensatory mitigation measures and programs through a landscape-scale approach to achieve the best possible conservation outcomes for activities subject to ESA compliance. It also encourages the use of programmatic approaches to compensatory mitigation that have the advantages of advance planning and economies of scale to: (1) achieve a net gain in species' conservation; (2) reduce the unit cost of compensatory mitigation; and (3) improve regulatory procedural efficiency.
Appendices A and B provide a list of acronyms and a glossary of terms used in this policy, respectively.
This policy is focused on compensatory mitigation that can be achieved under the ESA. The Service's authority to require mitigation is limited, and our authority to require a “net gain” in the status of listed or at-risk species has little or no application under the ESA. However, we can recommend the use of mitigation, and in particular compensatory mitigation, to offset the adverse impacts of actions under the ESA. Other statutes also provide the Service with authority for recommending compensatory mitigation for actions affecting fish, wildlife, plants, and their habitats (
Synchronizing environmental review processes, especially through early coordination with project proponents, allows the Service to provide comments and recommendations for all mitigation types (
The supplemental mandate of NEPA (42 U.S.C. 4335) adds to the existing authority and responsibility of the Service to protect the environment when carrying out our mission under the ESA. The Service's goal is to provide a coordinated review and analysis of the impacts of proposed actions on listed, proposed, and at-risk species, and designated and proposed critical habitat that are also subject to the requirements of other statutes such as NEPA, CWA, and FWCA. Consultation, conference, and biological assessment procedures under section 7 and permitting procedures under section 10(a)(1)(B) of the ESA can be integrated with interagency cooperation procedures required by other statutes such as NEPA or FWCA. This is particularly the case for cumulative effects. Cumulative effects are often difficult to analyze, are defined differently under different statutes, and are often not adequately considered when making decisions affecting the type and amount of mitigation recommended or required.
The ESA Compensatory Mitigation Policy covers all forms of compensatory mitigation, including, but not limited to, permittee-responsible mitigation, conservation banking, in-lieu fee programs, and other third-party mitigation projects or arrangements, for all species and habitat protected under the ESA and for which the Service has jurisdiction. Endangered and threatened species, species proposed as endangered or threatened, designated critical habitat, and proposed critical habitat are the primary focus of this policy. Candidates and other at-risk species would also benefit from adherence to the standards set forth in this policy, and all Service programs are encouraged to develop compensatory mitigation programs and tools to conserve at-risk species in cooperation with States and other partners.
This policy does not apply retroactively to approved mitigation programs; however, it does apply to amendments and modifications to existing conservation banks, in-lieu fee programs, and other third-party compensatory mitigation arrangements unless otherwise stated in the mitigation instrument. Examples of amendments or modifications to which this policy would apply include authorization of additional sites under an existing instrument or agreement, expansion of an existing site, or addition of a new type of resource credit such as addition of a new species credit.
Additional guidance that provides more specific operational steps may be developed by the Service to further implement this policy. Existing guidance documents will be reviewed and revised as necessary to ensure consistency with this policy.
This policy supersedes the Service's “Guidance for the Establishment, Use, and Operation of Conservation Banks,” published in the
This policy does apply to other Federal or non-Federal actions permitted or otherwise authorized or approved prior to issuance of this policy under circumstances where the action may require additional compliance review under the ESA if: new information becomes available that reveals effects of the action to listed species or critical habitat not previously considered; the action is modified in a manner that causes effects to listed species and critical habitat not previously considered; authorized levels of incidental take are exceeded; a new species is listed or critical habitat is designated that may be affected by the actions; or the project proponent specifically requests the Service to apply the policy. This policy does not apply to actions that are specifically exempted under the ESA. It also does not apply where the Service has already agreed in writing to mitigation measures for pending actions, except where new activities or changes in current activities associated with those actions would result in new impacts, or where new authorities, or failure to implement agreed upon recommendations warrant new consideration regarding mitigation. Service offices may elect to apply this policy to actions that are under review as of the date of publication of the final policy.
The mitigation principles, as described in the Service's draft Mitigation Policy (81 FR 12380, March 8, 2016), are goals the Service intends to achieve, in part through recommending or requiring, as appropriate, under the ESA and other applicable authorities, the inclusion of compensatory mitigation in proposed actions with adverse impacts to listed, proposed or at-risk species and designated or proposed critical habitat. The compensatory mitigation standards described in this section of the policy will implement the mitigation principles, as outlined in the draft Mitigation Policy, including using a landscape approach to inform mitigation and aspiring to meet the goal to improve (
Compensatory mitigation will be sited in locations that have been identified in landscape-scale conservation plans or mitigation strategies as areas that will meet conservation objectives and provide the greatest long-term benefit to the listed, proposed, and/or at-risk species and other resources of primary conservation concern. In the absence of such plans, conservation needs of the species will be assessed at scales appropriate to inform the selection of sustainable mitigation areas that are expected to produce the best ecological outcomes for the species using the best available science. The following factors should be considered when selecting sites for compensatory mitigation:
• Core areas of existing and projected suitable species habitat and areas that provide connectivity between core areas;
• Designated and proposed critical habitat;
• Recovery plan, 5-year review, and State conservation recommendations;
• Size and configuration of the site within the landscape;
• Land use trends and compatibility with adjacent land uses;
• Habitat types that provide the required ecological functions and services (these may not be the same habitat types that are impacted);
• Existing encumbrances on the site and split estates (
• Degree of threat to the proposed site (
• Existing and projected landscape conditions (
Other factors may also warrant consideration when siting compensatory mitigation. Compensatory mitigation plans and programs may not necessarily be limited to the above list.
Compensatory mitigation must be in-kind for the listed, proposed, or at-risk species affected by the proposed action. The same requirement does not necessarily apply to the habitat type affected, as the best conservation outcome for the species may not be an offset of the same habitat type or ecological attribute of the habitat impacted by the action. Many species use different habitat types at different life stages or for different life-history requirements such as feeding, breeding, and sheltering. For example, some species are migratory. Selecting a habitat type different from that impacted by the action or selecting more than one type of habitat for compensatory mitigation may best meet the conservation needs of the species.
Offsetting impacts to designated or proposed critical habitat through the use of compensatory mitigation should target the maintenance, restoration, or improvement of the recovery support function of the affected critical habitat as described in the relevant biological or conference opinion, conservation or mitigation plan, mitigation instrument, permit, or conference report. Recovery plans, 5-year reviews, proposed and final critical habitat rules, and the best available science on species status, threats, and needs should be relied on to inform the selection of habitat types subject to compensatory mitigation actions for unavoidable adverse impacts to species or critical habitat.
The use of compensatory mitigation to minimize the impacts of incidental take on listed species can be based on a habitat or another surrogate such as a similarly affected species or ecological conditions under circumstances where it is not practicable to express or monitor the amount or extent of take in terms of the number of individuals of the species, in accordance with 50 CFR 402.14(i)(1)(i). A causal link between the surrogate and take of the species must be explained and must be scientifically defensible. For example, occupied habitat of a listed species has been used as a surrogate to express the amount or extent of take of the vernal pool fairy shrimp (
Metrics developed to measure ecological functions and/or services at compensatory mitigation sites and impact sites must be science-based, quantifiable, consistent, repeatable, and related to the conservation goals for the species. These metrics may be species- or habitat-based. Metrics used to calculate credits should be the same as those used to calculate debits for the same species or habitat type. If they are not the same, the relationship (conversion) between credits and debits must be transparent and scientifically defensible. Metrics must account for duration of the impact, temporal loss to the species, management of risk associated with compensatory mitigation, and other such measures. This does not mean that metrics developed to measure losses and gains on the landscape must be precise, as this is rarely possible in biological systems, but uncertainty should be noted where it exists and metrics must be based on the best scientific data available to gauge the adequacy of the compensatory mitigation. Modifying existing metrics on which approved conservation banks or other compensatory mitigation programs are based and still in use warrants careful consideration and must be based on best available science.
Scientifically defensible metrics also are needed to measure biological and ecological performance criteria used to monitor the outcome of compensatory mitigation. It may be necessary to adjust metrics over time through monitoring and adaptive management processes in order to respond to changing conditions and ensure they remain effective at assessing the conservation objectives of the compensatory mitigation program. However, modifying metrics used to monitor performance should not be a substitute for lack of compliance or failure to implement adaptive management.
Compensatory mitigation must provide benefits beyond those that would otherwise have occurred through routine or required practices or actions, or obligations required through legal authorities or contractual agreements. A compensatory mitigation measure is “additional” when the benefits of the measure improve upon the baseline conditions of the impacted resources and their values, services, and functions in a manner that is demonstrably new and would not have occurred without the compensatory mitigation measure (600 DM 6.4G). The additional benefits may result from restoration or enhancement of habitat; preservation of existing habitat that lacks adequate protection; management actions that protect, maintain, or create habitat (
Demonstrating additionality on lands already designated for conservation purposes can be challenging, particularly when the lands under consideration are public lands. In general, credit can only be issued for compensatory mitigation on public lands if additionality can be clearly demonstrated and is legally attainable. See section 6.2. Eligible Lands for guidance on using public lands for compensatory mitigation.
Compensatory mitigation projects must achieve conservation objectives within a reasonable timeframe and for at least the duration of the impacts. Ideally, compensatory mitigation should be implemented in advance of the action that adversely impacts the species or critical habitat. When this is not possible or practicable, temporal losses to the affected species must be compensated through some means (
Compensatory mitigation must be secured by adequate legal, real estate, and financial protections that ensure the success of the mitigation. Most compensatory mitigation projects are permanent, and the viability of the assurances to achieve long-term stewardship of a mitigation site must be carefully planned and implemented to ensure durability. A compensatory mitigation measure is “durable” when the effectiveness of the measure is sustained for the duration of the associated impacts (including direct and indirect impacts) of the authorized action (600 DM 6.4H). The parties responsible for establishment, implementation, performance, long-term management of the mitigation site, management of financial resources, and oversight of various aspects of the mitigation project must be clearly identified in the permit or other regulatory documentation that authorizes the use of compensatory mitigation and, in the case of third-party mitigation providers, the authorizations for the establishment and use of third-party mitigation (
Compensatory mitigation programs and projects will be assessed to determine if they are achieving their conservation objectives through use of science-based, outcome-based ecological performance criteria that are reasonable, objective, measureable, defensible, and verifiable. Ecological performance criteria must be tied to conservation goals and specific objectives identified in compensatory mitigation programs and projects. Continued management, monitoring, and reporting are required for long-term compensatory mitigation projects (most long-term projects are permanent) after initial ecological performance criteria are met (
The Service has authority to conduct direct oversight of all compensatory mitigation programs and projects for which we have exempted or permitted incidental take under the ESA. A standard condition of HCP incidental take permits provides for such oversight. Incidental take exemptions provided by statute to Federal agencies and applicants through the ESA section 7 process require that mandatory terms and conditions included with the take statement must be implemented by the federal agency or its applicant to activate the exemption in 7(o)(2) of the Act. Compensatory mitigation instruments and conservation easements must include language that clearly states the Service has this oversight authority. The Service may rely on third-party evaluators to provide project-specific information on ecological and administrative compliance through monitoring and other reports. The cost for these services must be built into and covered by the mitigation project. Should a mitigation project fail to meet its performance criteria and therefore fail to provide the expected conservation for the species, the responsible party must provide equivalent compensation through other means. A process for achieving remediation or alternative mitigation for compensatory mitigation failures beyond the control of the responsible party (
Successful landscape-scale compensatory mitigation depends on the engagement of affected communities and stakeholders. Governments, communities, organizations, and individuals support what they help to develop. The Service will provide opportunities for and encourage appropriate stakeholder participation in development of landscape-scale compensatory mitigation strategies that affect listed, proposed, and at-risk species and proposed and designated critical habitat through appropriate public processes such as those used for programmatic habitat conservation plans. Programmatic approaches to
Consistent implementation of ESA programs that permit or authorize incidental take of listed species will provide regulatory predictability for everyone. The Service will share appropriate information on the availability of compensatory mitigation programs and projects with the public through online media or other appropriate means. Mitigation instruments, long-term management plans, mitigation monitoring reports, and other supporting documents for approved mitigation projects should be readily available to the public, with the exception of any personally identifiable information or other information that would be exempt in accordance with the Freedom of Information Act (5 U.S.C. 552, as amended). This information will be available on the Regulatory In-lieu fee and Bank Information Tracking System (RIBITS) for conservation banks. RIBITS can be accessed at
Sections of the ESA under which the Service has authority to recommend or require compensatory mitigation for species or their habitat are identified below. In this section, we provide guidance on applications of these ESA authorities within the context of compensatory mitigation. The compensatory mitigation standards set forth in section 4. Compensatory Mitigation Standards of this policy apply to compensatory mitigation programs and projects established under the ESA, as appropriate.
Section 2(c)(1) of the ESA directs all Federal departments and agencies to conserve endangered and threatened species. “Conserve” is defined in section 3 of the ESA as all actions necessary to bring the species to the point that measures provided pursuant to the ESA are no longer necessary (
When the ESA was enacted in 1973, section 7 was a single paragraph directing “all Federal departments and agencies . . . [to] utilize their authorities in furtherance of the purposes of [the ESA] by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 4 of [the ESA]
Section 7(a)(1) of the ESA states “. . . Federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of [the ESA] by carrying out programs for the conservation of endangered species and threatened species.” The Secretary's role has been delegated to the Service, and the Service therefore consults with and assists Federal agencies to accomplish these programs.
Section 7(a)(2) of the ESA states, “[e]ach Federal agency shall . . . insure that any action authorized, funded, or carried out, by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat.” The Service determines through consultation under section 7(a)(2) whether or not the proposed action is likely to jeopardize the continued existence of listed species or destroy or adversely modify critical habitat. The Service then issues a
To better implement section 7(a)(2) of the ESA and prevent species declines, the Service will work with Federal agencies and applicants to identify conservation measures, using the full mitigation sequence, that can be included as part of proposed actions for unavoidable impacts to listed species and critical habitat to achieve, at a minimum, no net loss in the species' conservation. The mitigation sequence should be observed (
When the Service issues a biological opinion with a finding of jeopardy or adverse modification of critical habitat, we include Reasonable and Prudent Alternatives (RPAs) when possible. RPAs may include any and all forms of mitigation, including compensatory mitigation, that can be applied to avoid proposed actions from jeopardizing the existence of listed species or destroying or adversely modifying critical habitat, provided they are consistent with the regulatory definition of RPAs in 50 CFR 402.02.
When the Service issues a biological opinion with a finding of no jeopardy, we provide the Federal agency and applicant (if any) with an incidental take statement, if take is reasonably certain to occur, in accordance with section 7(b)(4) of the ESA. The incidental take statement specifies the amount or extent of anticipated take, the impact of such take on the species, and any reasonable and prudent measures (RPMs) and implementing terms and conditions determined by the Service to be necessary or appropriate to minimize the impact of the take. RPMs can include compensatory mitigation, in appropriate circumstances, if such a measure minimizes the effect of the incidental take on the species, and as long as the measure is consistent with the interagency consultation regulations at 50 CFR 402.14. RPMs should also be commensurate with and proportional to the impacts associated with the action. The Service should provide an explanation of why the measures are necessary or appropriate. If the proposed action includes conservation measures sufficient to fully compensate for incidental take, it may not be necessary to include additional minimization measures (beyond monitoring) through RPMs.
Section 7(a)(4) of the ESA states, “[e]ach Federal agency shall confer with [the Service] on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed . . . or result in the destruction or adverse modification of critical habitat proposed to be designated for such species.” The conference is designed to assist the Federal agency and any applicant to identify and resolve potential conflicts at an early stage in the planning process.
Under a candidate conservation agreement with assurances (CCAA), private and other non-Federal property owners may voluntarily undertake conservation management activities on their properties to address threats to unlisted species and to enhance, restore, or maintain habitat benefiting species that are candidates or proposed for listing under the ESA or other at-risk species in exchange for assurances that no further action on their part is required should the species become listed during the term of the CCAA. Under a safe harbor agreement (SHA), private and other non-Federal property owners may voluntarily undertake management activities on their property to enhance, restore, or maintain habitat benefiting species listed under the ESA in exchange for assurances that there will not be any increased property use restrictions as a result of their efforts that either attract listed species to their property or that increase the numbers or distribution of listed species already on their property during the term of the agreement. Both types of agreements are designed to encourage conservation of species on non-Federal land.
Landowners enrolled in CCAAs while the species remains unlisted can provide compensatory mitigation under a State or other non-Service mitigation program if the actions related to the mitigation are additional to those taken to satisfy the CCAA requirement. Should the species become listed before the CCAA expires, the landowner has the option to roll over the existing mitigation agreement to a Service-approved mitigation instrument that meets the standards established in this policy. See the Service's draft Policy Regarding Voluntary Prelisting Conservation Actions (79 FR 42525) for more information on these types of programs.
Section 10(a)(1)(B) of the ESA allows the Service to issue an incidental take permit for “any taking otherwise prohibited by section 9(a)(1)(B) [of the ESA] if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.” Pursuant to section 10(a)(2)(A) of the ESA, an applicant must first submit a habitat conservation plan (HCP) that specifies, among other requirements, the “. . . steps the applicant will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps.” If under section 10(a)(2)(B) of the ESA the Service finds the issuance criteria are met by the applicant, including that the applicant will, “to the maximum extent practicable, minimize and mitigate the impacts of such taking,” the Service will issue a permit. Plant species and unlisted animal species may also be covered in the HCP, provided the applicant meets requirements for their coverage described in the implementing regulations. The Service incorporates these measures as terms and conditions of the permit. Regulations governing incidental take permits for endangered and threatened wildlife species are found at 50 CFR 17.22 and 17.32. The Service is required to conduct a section 7(a)(2) consultation on issuance of an incidental take permit.
Section 4(d) of the ESA authorizes the Service to issue protective regulations that are necessary and advisable to provide for the conservation of threatened species. The Service used this authority to extend the prohibition of take (section 9) to all threatened species by regulation in 1978, through promulgation of a “blanket 4(d) rule” (50 CFR 17.31). This blanket 4(d) rule can be modified by a species-specific 4(d) rule (
Section 5 of the ESA provides authority for the Service and the U.S. Department of Agriculture, with respect to the National Forest System, to establish and implement a program to conserve fish, wildlife, and plants, including those which are listed as endangered species or threatened species through:
• Use of land acquisition and other authority under the Fish and Wildlife Act of 1956, as amended, the Fish and Wildlife Coordination Act, as amended, and the Migratory Bird Conservation Act, as appropriate; and
• Acquisition by purchase, donation, or otherwise, of lands, waters, or interests therein.
Establishment of compensatory mitigation programs that conserve listed or at-risk species on lands adjacent to National Forests could be used to offset losses to those species and their habitats by actions authorized by the Service and also help buffer National Forests from incompatible neighboring land uses.
The appropriate form of compensatory mitigation (
Preference shall be given to compensatory mitigation projects sited within the boundaries of priority conservation areas identified in existing landscape-scale conservation plans as described in the Service's draft Mitigation Policy (81 FR 12380, March 8, 2016). Priority conservation areas for listed species may be identified in a species status assessment, recovery plan, or 5-year review.
After following the principles and standards outlined in this policy and all other considerations being equal, preference will be given to compensatory mitigation projects implemented in advance of impacts to the species. Mitigation implemented in advance of impacts reduces risk and uncertainty. Demonstrating that mitigation is successfully implemented in advance of impacts provides ecological and regulatory certainty that is rarely matched by a proposal of mitigation to be accomplished concurrent with, or subsequent to, the impacts of the actions even when that proposal is supplemented with higher mitigation ratios. While conservation banking is by definition mitigation in advance of impacts, other third-party mitigation arrangements and permittee-responsible mitigation may also satisfy this preference by implementing compensatory mitigation in advance of impacts. In-lieu fee programs can also satisfy this preference through a “jump start” that achieves and maintains a supply of credits that offer mitigation in advance of impacts.
Mitigation mechanisms that consolidate compensatory mitigation on the landscape such as conservation banks, in-lieu fee programs, and habitat credit exchanges are generally preferred to small, disjunct compensatory mitigation sites spread across the landscape. Consolidated mitigation sites generally have several advantages over multiple, small, isolated mitigation sites. These advantages include:
• Avoidance of a piecemeal approach to conservation efforts that often results in small, non-sustainable parcels of habitat scattered throughout the landscape;
• Sites that are usually a component of a landscape-level strategy for conservation of high-value resources;
• Cost effective compensatory mitigation options for small projects, allowing for effective offsetting of the cumulative adverse effects that result from numerous, similar, small actions;
• An increase in public-private partnerships that plan in advance and a landscape-scale approach to mitigation to provide communities with opportunities to conserve highly valued natural resources while still allowing for community development and growth;
• Greater capacity for bringing together financial resources and scientific expertise not practicable for small conservation actions;
• Economies of scale that provide greater resources for design and implementation of compensatory mitigation sites and a decreased unit cost for mitigation;
• Improved administrative and ecological compliance through the use of third-party oversight;
• Greater regulatory and financial predictability for project proponents, greatly reducing the uncertainty that often causes project proponents to view compensatory mitigation as a burden; and
• Expedited regulatory compliance processes, particularly for small projects, saving all parties time and money.
Compensatory mitigation sites may be established by willing parties on private, public, or Tribal lands that provide the maximum conservation benefit for the listed, proposed, and at-risk species and other affected resources. Maintaining the same classification of land ownership between the impact area and mitigation site may be important in preventing a long-term net loss in conservation, in particular a reduction in the range of the species. Because most private lands are not permanently protected for conservation and are generally the most vulnerable to development actions, the use of private lands for mitigating impacts to species occurring on any type of land ownership is usually acceptable as long as durability can be ensured. Locating compensatory mitigation on public lands for impacts to species on private lands is also possible, and in some circumstances may best achieve the conservation objectives for species, but should be carefully considered—see section 6.2.2. Use of Public Land to Mitigate Impacts on Private Land for additional guidance.
Good candidates for compensatory mitigation sites are unprotected lands that are high value for conservation and that are acceptable to the Service. Designations of high conservation value may include lands with existing high-value habitat or habitat that when restored, enhanced, established, or
• Lands previously secured through easements or other means but that lack the full complement of protections necessary to conserve the species (
• Lands adjacent to undeveloped, protected public lands such as National Wildlife Refuges or State Wildlife Management Areas;
• Private lands enrolled in programs that provide financial compensation from public sources to landowners in exchange for agreements that protect, restore, or create habitat for federally listed or at-risk species for a limited period of time, such as the Service's Partners for Wildlife Program or some Farm Bill programs (
• Private lands enrolled in programs that provide regulatory assurances to the landowner such as an SHA or CCAA that can be transitioned into compensatory mitigation, after all terms and conditions of the agreement have been met and the agreement has expired or the permit is surrendered in exchange for a mitigation instrument (see section 5.2.1. for additional guidance); and
• Private lands with existing conservation easements for which landowners have not received financial compensation from public sources or regulatory assurances from the Service.
See section 4.1.
Lands that generally do not qualify as compensatory mitigation sites include:
• Lands without clear title unless the existing encumbrances (
• Split estates (
• Private or public lands already designated for conservation purposes, unless the proposed compensatory mitigation project would add additional conservation benefit for the species above and beyond that attainable under the existing land designation;
• Private lands enrolled in government programs that compensate landowners who permanently protect, restore, or create habitat for federally listed or at-risk species (
• Inventory and debt restructure properties under the Food Security Act of 1985 (16 U.S.C. 3801
• Lands protected or restored for conservation purposes under fee title transfers.
Additional guidance on limitations involving Federal funding and mitigation, including grants, is provided in the Service's draft Mitigation Policy (81 FR 12380, March 8, 2016).
Lands with split estate ownership and laws and policies governing existing rights (
In general, the Service supports compensatory mitigation on public lands that are already designated for the conservation of natural resources to offset impacts to the species on private lands only if additionality is clearly demonstrated and is legally attainable. Additionality is a reasonable expectation that the conservation benefits associated with the compensatory mitigation actions would not occur in the foreseeable future without those actions. Offsetting impacts to private lands by locating compensatory mitigation on public lands already designated for conservation purposes generally risks a long-term net loss in landscape capacity to sustain species (
• Compensatory mitigation is an appropriate means of achieving the mitigation planning goal for the species;
• Additionality can be clearly demonstrated and quantified, and is supplemental to conservation the public agency is foreseeably expected to implement absent the mitigation (only conservation benefits that provide additionality are counted towards achieving the mitigation planning goal);
• Durability of the compensatory mitigation is ensured (see section 6.2.3. “Ensuring Durability on Public Lands”);
• It is consistent with and not otherwise prohibited by all relevant statutes, regulations, and policies; and
• Private lands suitable for compensatory mitigation are unavailable or are available but cannot provide an equivalent or greater contribution towards offsetting the impacts to meet the mitigation planning goal for the species.
When the public lands under consideration for use as compensatory mitigation for impacts on private lands are National Wildlife Refuge (NWR) System lands, the Regional Director must recommend the mitigation to the Service Director for approval. Additional considerations may apply for NWR System lands for habitat losses authorized through the section 10/404 program (
Ensuring the durability of compensatory mitigation on public lands presents particular challenges, especially regarding site protection assurances, long-term management, and funding assurances for long-term stewardship. Mechanisms available for ensuring durability of land protection for compensatory mitigation on public lands vary from agency to agency, are subject to site-specific limitations, and are likely to be politically and administratively challenging to secure. Some mechanisms may require a
To ensure the durability of long-term management on public lands, there should be a high degree of confidence that incompatible uses are removed or precluded to ensure that uses of the public lands do not conflict with or compromise the conservation of the species for which the compensatory mitigation project was established. If the compensatory mitigation obligation will be met by the Federal agency or applicant, the authorization, permit, or license should include in whole or by reference a final mitigation plan as a formal condition of the authorization, permit, or license. If the compensatory mitigation obligation will be satisfied through use of a conservation bank or other third-party mitigation provider, then the authorization, permit, or license should identify the party responsible for providing the compensatory mitigation and the type(s) and amount(s) of credits that must be secured. Any agreements enabling mitigation on public lands should include provisions for equivalent alternative mitigation if subsequent changes in public land management directives result in actions on public land that are incompatible with the conservation needs of the species. These provisions should also be identified in the administrative and regulatory documents (
Ensuring funding to accomplish long-term management of compensatory mitigation on public lands is generally the same mechanism used for conservation banks and in-lieu fee programs on private lands. Government agencies are limited in their ability to accept, manage, and disburse funds for this purpose and must not be given responsibility for holding endowments for compensatory mitigation sites on public or private lands. These funds must be held by a qualified third party as described in section 8.3.
Private mitigation lands may be transferred to public agencies with a conservation mission if allowed by applicable laws, regulations, and policies. The Service considers this to be generally consistent with this policy if:
a. The mitigation property is consistent with the agency's purposes;
b. All administrative and ecological performance criteria have been met, and the mitigation project is in compliance with the mitigation instruments;
c. The mitigation property has retired or forfeited any and all remaining mitigation credits;
d. The agency agrees to maintain the mitigation property in accordance with the long-term management plan developed for the mitigation property as part of the original mitigation instrument; and
e. Funding for the management, monitoring, and reporting of the mitigation lands continue to be held, managed, and disbursed by a qualified third party as described in section 8.3.
Tribal lands are generally eligible as compensatory mitigation sites if they meet the standards and other requirements set forth in this policy. Ensuring durability, particularly site protection, is usually a sensitive issue for a tribal nation because a conservation easement entrusts the land to another entity (Terzi 2012), but acceptable entities may be available to hold easements (see section 8.2.3.5. “Real Estate Assurances”). Financial assurances can be handled similarly to other governmental mitigation sponsors. Additional guidance regarding mitigation and Tribes is included in the Service's draft Mitigation Policy (81 FR 12380, March 8, 2016).
A service area is the geographic area assigned to a compensatory mitigation site within which credits for a specific resource (
The service area is an important component for a potential mitigation sponsor who will need to evaluate the market for credits prior to committing to a mitigation project. The mitigation sponsor has the responsibility to determine if a proposed mitigation project or program will be financially feasible and if they will move forward with the action. The mitigation instrument should clearly define any constraints that exist within the service area. These might include exclusion of areas that have been identified in an approved or developing HCP (
A credit is a defined unit representing the accrual or attainment of ecological functions and/or services at a mitigation site. Credits are often expressed as a measure of surface area (
Metrics developed to support credits by measuring an increase in ecological functions and services at compensatory mitigation sites and those developed to measure an expected loss or debit in ecological functions and services at impact sites must be science-based, quantifiable, consistent, repeatable, and related to the conservation goals for the species. In general, the method of calculating credits at a mitigation site should be the same as calculating debits at project impact sites. If use of a common “currency” between credits and debits is not practicable, the conversion between crediting and debiting metrics must be transparent.
Credits are available for use as mitigation once they are verified and released by the Service. Credits are released in proportion to administrative and ecological milestones specified in the instrument (see section 6.6.3. “Credit Release Schedules”). Credits are considered retired if they are no longer available for use as mitigation, including credits that have been transferred to fulfill mitigation obligations. Credits may also be voluntarily retired, without being used for mitigation, which may help achieve no net loss or net conservation benefit goals. Credits are not to be traded among developers or anyone else and cannot be re-sold. Once a credit has been transferred as mitigation for a particular action, it may not be used again.
A mitigation site may contain habitat that is suitable for multiple listed species or other resources in the same spatial area. When this occurs, it is important to establish how the credits will be stacked or bundled and if they can be unstacked and sold separately. See section 9.3.
Compensatory mitigation programs that use credits are voluntary and permittees are never required to purchase credits from these compensatory mitigation sources. Pricing of credits is solely at the discretion of the mitigation provider.
The Service does not have mandated timelines for review of conservation banks, in-lieu fee programs, or other compensatory mitigation projects that are not part of a consultation or permit decision. However, this does not mean that compensatory mitigation programs and projects are not a priority for the Service. Establishment of programmatic compensatory mitigation options for project proponents will provide efficiencies, particularly when developed in coordination with programmatic consultations and HCPs for large landscapes. These efficiencies include reducing the Service's ESA sections 7 and 10 workloads, expediting incidental take authorization for project proponents, and achieving better conservation outcomes for listed and other at-risk species.
Compensatory mitigation can be a valuable conservation tool for offsetting unavoidable adverse impacts to listed and at-risk species if the risk can be sufficiently managed. Predictions about the effectiveness of compensatory mitigation measures have varying degrees of uncertainty. Compensatory mitigation accounting systems (
Adaptive management is an iterative approach to decision-making, providing the opportunity to adjust initial and subsequent decisions in light of learning with an overarching goal of reducing uncertainty over time. Frameworks such as the Service's strategic habitat conservation (SHC) model (USFWS and USGS 2006) and the Department's technical guidance regarding adaptive management (Williams et al. 2009) should be used both in the assessment of models used to inform metrics for compensatory mitigation programs as well as development and implementation of long-term management plans for individual compensatory mitigation projects.
The management of natural resources can be complex, and it will be even more challenging to make resource decisions in a structured and transparent way based on science to account for uncertainty in an environment that has always been dynamic but is now experiencing accelerated climate change. Incorporating adaptive management strategies into compensatory mitigation site management plans can help to manage risk and uncertainty for any type of mitigation project if clear goals, objectives, and measurable success criteria are defined in the management plan. The monitoring data can be used to determine if the desired results are being achieved or if management actions need to be modified. Adequate long-term funding assurances are also necessary for successful implementation of adaptive management.
Buffers may be necessary to protect compensatory mitigation sites from edge effects. Undesirable edge effects may include increased opportunities for the introduction of invasive species, garbage dumping, erosion due to damaging runoff or other hydrological conditions on adjacent lands, noise, or a variety of other activities or conditions that would adversely affect the species. Small mitigation sites or sites with a high edge-to-area ratio are generally the most vulnerable to edge effects. Buffers may be able to reduce these risks when properly located, sized, and managed. If buffers also provide functions and services for the species or other resources of concern, compensatory mitigation credit will be provided at a level commensurate with the level of functions and/or services provided to the species.
One way to manage risk associated with the establishment of compensatory mitigation sites is by designing credit release schedules that only allow credit releases when specific performance criteria are met. Performance criteria should be designed with clear milestones that identify when risk and uncertainty have been substantially reduced. Phased credit release based on both ecological and administrative performance is highly recommended. This approach will buffer situations in which default or other unintended events occur, allowing for mitigation project remediation rather than failure. Administrative performance relative to credit release is usually based on durability such as funding a specific percentage of the endowment required for long-term site management by a set date, and on timely submission of reports. The mitigation instrument should provide a schedule for credit releases that are tied to achievement of appropriate milestones. The credit
Mitigation ratios can be used as a risk-management tool to address uncertainty, ensure durability, or implement policy decisions to meet the net gain or no net loss goal. However, ratios should be reserved for dealing with the true uncertainty of any mitigation program or for policy-based incentives and not to compensate for limited understanding of species' conservation needs. Mitigation ratios should be developed within the context of a landscape conservation plan and mitigation strategy that is designed to meet specific conservation goals for the species. The rationale for the required mitigation ratio must be justified and documented. Mitigation ratios must be based in science, readily explained and understood, and consistently applied. Effects contributing to the need for mitigation ratios may include, but are not limited to:
a. Type of compensatory mitigation (preservation, restoration, enhancement, establishment, or some combination of these types);
b. Temporal loss due to loss of functions and services to the species;
c. Temporal loss due to interruption of breeding and/or impaired fecundity as a direct or indirect result of the proposed action;
d. The likelihood of success of the mitigation site (
e. Degree of threat to the mitigation site by existing or anticipated future land use at adjacent sites;
f. Differences in the functions and services to be lost at the impact site and projected to be gained at the mitigation site;
g. Scarcity of the species or resources at the impact and mitigation sites;
h. Projected change in physical parameters affecting habitat condition as a result of processes such as climate change; and/or
i. Distance from the impact site.
Mitigation ratios can be adjusted to achieve conservation goals. For example, mitigation ratios may be adjusted upward to create an incentive for avoidance of impacts in areas of high conservation concern (
A reserve credit account can spread the risk among mitigation providers and provide added assurance that the goal for the mitigation project or program is achieved. It may be appropriate to establish a “reserve credit account” to manage risk associated with mitigation projects or programs that require additional assurances for contingencies. Potential uses of these accounts may include offsetting catastrophic natural events such as wildfire or flooding, adjacent land use that may negatively affect a mitigation site, or risk associated with split estates, as agreed to by the Service and defined in the mitigation instrument. In such cases, the use of reserve credits would allow the mitigation program to continue uninterrupted (
The number of reserve credits in the account should reflect a conservative estimate of the anticipated risk as determined by best available science and should be managed adaptively to changing conditions on the landscape. If expended, reserve credits should be replenished in accordance with a process and schedule clearly described in the mitigation instrument.
Reserve credit accounts may also be created to contribute to a net gain goal for a project or program. In this case the reserve credits are not used, but are immediately retired to provide an overall benefit. If both types of credits exist within a reserve credit account, then each type of credit must be accounted for separately and used for its intended purpose.
The signature of the Service on a mitigation instrument constitutes regulatory approval that the conservation bank, in-lieu fee program, or other mitigation project satisfies standards of biology and durability and can, therefore, be used to provide compensatory mitigation under the ESA in appropriate circumstances. The instrument is not a contract between the Service and any other entity. Any dispute arising under the instrument will not give rise to any claim for monetary damages by any party or third party. Compensatory mitigation instruments and agreements shall not involve participation by the Service in project management, including receipt or management of financial assurances or long-term financing mechanisms. Compensatory mitigation programs and projects must comply with all applicable Federal, State, and local laws.
Compensatory mitigation mechanisms can be divided broadly into habitat-based mechanisms and other non-habitat-based mitigation programs or projects. Whatever mechanism(s) are selected, compensatory mitigation is expected to provide either equivalent or additional conservation for the species to that lost as a result of the action.
Compensatory mitigation mechanisms based on habitat acquisition and protection may consist of restoration of damaged or degraded habitat, enhancement of existing habitat, establishment of new habitat, preservation of existing habitat not already protected, or some combination of these that offsets the impacts of the action and results in or contributes to sustainable, functioning ecosystems for the species. Preservation of existing habitat often includes a change in land management that renders the site suitable for the species or provides additional ecological function or services for the species. Preservation includes site protection and is a valid mechanism for achieving compensatory mitigation that, at a minimum, reduces threats to the species. Existing habitat that is not protected and managed for the long term is vulnerable to loss and cannot count toward recovery of listed species.
The five habitat-based mitigation mechanisms described below and compared in Table 1 differ by: (1) The party responsible for the success of the mitigation site (the permittee or a third party); (2) whether the mitigation site is within or adjacent to the action area (on-site) or elsewhere (off-site); and (3) whether credits are generated at the mitigation site for use by more than one action. All compensatory mitigation sites require site protection assurances, a management plan, and financial assurances. Habitat-based compensatory mitigation will be held to equivalent standards (the standards set forth in this policy) regardless of the mitigation mechanism(s) proposed. Habitat-based compensatory mitigation programs developed to credit conservation actions that benefit unlisted species should meet all compensatory mitigation standards set forth in this policy if they are intended to be used as compensatory mitigation for adverse impacts of actions undertaken after listing.
Permittee-responsible compensatory mitigation is a conserved and managed mitigation site that provides ecological functions and services as part of the conservation measures associated with a permittee's proposed action. Permittee-responsible mitigation sites are usually permanent, as most proposed actions with a need for compensatory mitigation are anticipated to result in permanent impacts to the species. The permittee retains responsibility for ensuring the required compensatory mitigation is completed and successful. This includes long-term management and maintenance when the mitigation is intended to be permanent. Permittee-responsible compensatory mitigation may be on-site or off-site, and each permittee-responsible mitigation site is linked to the specific action that required the mitigation. Permittee-responsible mitigation approved for a specific action is not transferable to other actions and cannot be used for other mitigation needs.
A conservation bank is a site or suite of sites established under a conservation bank instrument (CBI) that is conserved and managed in perpetuity and provides ecological functions and services expressed as credits for specified species that are later used to compensate for adverse impacts occurring elsewhere to the same species. The details of the establishment, operation, and use of a conservation bank are documented in a CBI that is approved by the Service. The signature of the bank sponsor and/or property owner on the CBI indicates their acceptance of the relevant terms, much like permit conditions are accepted by regulated entities. Bank sponsors may be public or private entities. Ensuring the required compensatory mitigation measures for a permitted action are completed and successful is the responsibility of the bank sponsor. The bank sponsor assumes liability for success of the mitigation through the transfer (usually a purchase by the permittee) of credits. Conservation banks provide mitigation in advance of impacts. An umbrella CBI can be established to facilitate approval and establishment of multiple bank sites over a specified period of time for a particular species, suite of species, habitat type, or ecosystem.
An in-lieu fee site is a conserved and managed compensatory mitigation site established as part of an in-lieu fee program that provides ecological functions and services expressed as credits for specified species and used to compensate for adverse impacts occurring elsewhere to the same species. In-lieu fee sites are usually permanent as most proposed actions with a need for compensatory mitigation are anticipated to result in permanent impacts to the species. In-lieu fee programs may be sponsored by a government agency or an environmental conservation-based not-for-profit organization with a mission that is consistent with species or habitat conservation. The in-lieu fee sponsor collects fees from permittees that have been approved by the Service to use the in-lieu fee program, instead of providing permittee-responsible compensatory mitigation. An in-lieu fee site that meets the mitigation requirements for the impacts of permittees' actions will be established when the in-lieu fee program has collected sufficient funds. The establishment, operation, and use of an in-lieu fee program requires an in-lieu fee program instrument which is approved by the Service and accepted by the sponsor, and the property owner(s). All responsibility for ensuring the required compensatory mitigation measures are completed and successful, including long-term management and maintenance, is transferred from the permittee to the in-lieu fee program sponsor through the transfer (usually purchase) of credits. In-lieu fee programs generally do not provide mitigation in advance of impacts.
In-lieu fee programs can also be established to fund non-habitat-based compensatory mitigation measures. See section 7.3
A habitat credit exchange is an environmental market that operates as a clearinghouse in which an exchange administrator, operating as a mitigation sponsor, manages credit transactions between compensatory mitigation providers and project permittees. This is in contrast to the direct transactions between compensatory mitigation providers and permittees that generally occur through conservation banking and in-lieu fee programs. Exchanges provide ecological functions and services expressed as credits that are conserved and managed for specified species and are used to compensate for adverse impacts occurring elsewhere to the same species. Exchanges may be designed to provide credits for permanent compensatory mitigation sites, short-term compensatory mitigation sites, or both types of sites. Habitat credit exchanges may operate at a local or larger landscape scale, may consist of one or more mitigation sites, and may obtain credits from conservation banks or in lieu fee programs. Exchange administrators may be public or private entities. Exchanges developed for federally listed species will require Service approval through a habitat credit exchange instrument signed by the Service and the exchange administrator.
A compensatory mitigation site may be established by a third party to compensate for impacts to specified species for a single action taken by a permittee. The third-party mitigation site provides ecological functions and services that are conserved and managed for the species. Third-party compensatory mitigation sites are usually permanent, as most proposed actions with a need for compensatory mitigation are anticipated to result in permanent impacts to the species. Third-party mitigation sites may be located on-site or off-site. All responsibility for ensuring the required compensatory mitigation measures are completed and successful, including long-term management and maintenance, is transferred from the permittee to the third-party mitigation provider and/or property owner through a bill of sale between the parties. This arrangement requires a mitigation instrument approved by the Service and accepted by the permittee, the third-
The concept of short-term compensatory mitigation has merit if it serves the conservation goals of the species. Short term compensatory mitigation may be appropriate in some situations to offset impacts that can be completely rectified by repairing, rehabilitating, or restoring the affected environment within a short and predictable timeframe. Under this policy, short-term compensatory mitigation includes rectifying the damage at the impact site and providing short-term compensation to offset the temporal loss caused by the action to achieve a conservation outcome that results in, at a minimum, no net loss to the species.
A short-term impact is defined in this policy as an action that meets the following criteria: (1) The impact is limited to harassment or other forms of nonlethal take; (2) the impact can be completely rectified through natural or active processes, and the site will function long term within the landscape at the same or greater level than before the impact; (3) restoration of the impact site can occur within a short and predictable timeframe based on current science and the knowledge of the species; and (4) all temporal loss to the species by the impact can be estimated and compensated. Opportunities for short-term compensation are likely to be very limited and may not apply to most species.
Inherent in applying short-term compensatory mitigation is the recovery of the affected species' populations to pre-disturbance levels and any additional increase in population levels that was anticipated to occur if the action had not taken place (
Compensatory mitigation is based on the concept of replacing or providing substitute resources or environments for the impacted resource (40 CFR 1508.20). However, mechanisms or conservation measures that do not exactly meet this definition, but that meet the conservation objectives for the specified species and are expected to compensate for adverse effects to species or their habitats, may be suitable as compensatory mitigation. These types of compensatory mitigation measures are acceptable if they are closely tied to recovery actions identified in species status assessments, recovery plans, 5-year reviews, or best available science on the threats and needs of the species. Compensatory mitigation of this type is often funded through an in-lieu fee program. Examples of potentially suitable compensatory measures include, but are not limited to:
a. Transfer and retirement of timber, water, mineral, or other severed rights to an already existing conservation site, thereby significantly reducing or eliminating the risk of future development on the site that would be incompatible with conservation of the species;
b. Restricting human use of waterways or other public spaces through legal means to allow for increased or exclusive use by the species;
c. Controlled propagation, population augmentation, and reintroduction of individuals of the species to offset losses from an action;
d. Captive rearing and release of individuals of the species to offset losses from an action;
e. Administering vaccination programs vital to species survival and recovery;
f. Gating of caves that serve as habitat for the species;
g. Construction of wildlife overpasses or underpasses to protect migratory passages for the species; and/or
h. Programs that reduce the exposure of the species to contaminants in the environment that are known to cause injury or mortality.
In rare circumstances, research or education that can be linked directly to the relative threats to the species and provide a quantifiable benefit to the species may be included as part of a mitigation package. Although research can assist in identifying substitute resources, it does not replace impacted resources or adequately compensate for adverse effects to species or habitat. See the Service's draft Mitigation Policy (81 FR 12380, March 8, 2016) for additional guidance on appropriate uses of research or education as mitigation.
Compensatory mitigation programs and projects will be established subject to authorization from the Service or a combination of the Service and other Federal and/or State regulatory agencies. Compensatory mitigation proposals must meet minimum criteria described in this policy to be acceptable. Compensatory mitigation programs designed to serve multiple mitigation sites should discuss within the program documents how the minimum criteria described in this policy will be met by the program and what is required for each mitigation site. Service regional and field offices may provide more detailed guidance as needed for their jurisdictions. Any additional guidance, including checklists, templates, or assessment methods, will be posted on the Web site of the regional and/or field office that developed the guidance documents and on RIBITS. To the extent appropriate, regional and/or field offices should strive for consistency within and across jurisdictions when developing compensatory mitigation programs and species/resource specific mitigation guidance.
Service criteria for establishing compensatory mitigation projects should be compatible with criteria already established by statute in other Federal and/or State agencies so that mitigation programs and sites may satisfy the requirements of multiple agencies. While it is our intent to work with other Federal, State, and/or local agencies, the Service recognizes that there may be situations in which coordinated multi-agency processes do not exist, and project applicants may need to coordinate with each agency separately.
The purpose of the agency review is to provide guidance and feedback to prospective mitigation providers as they develop their mitigation project proposals and instruments, and to project applicants as they develop their conservation plans and measures as part of their proposed actions.
The Service will conduct agency review when a mitigation proposal addresses solely Service-administered resources. When a mitigation proposal includes mitigation requirements by other agencies, a multi-agency team should be formed to complete the review. The agency review process details will be developed by the Service's regional and/or field offices.
We recognize that the Service has common goals with other Federal, State, and local agencies that may be served by collaborative review of mitigation project proposals. To facilitate collaboration, the Service's regional or field offices may develop collaborative review processes through a memorandum of understanding or/memorandum of agreement with other Federal, State, and/or local agencies.
For conservation banks, in-lieu fee programs, and habitat credit exchanges in which the sponsor seeks mitigation credits under multiple authorities, including species under Service authority, the Service will serve on the Mitigation Review Team (MRT) as chair or co-chair. MRTs consist of Service and other Federal, State, Tribal, and/or local regulatory and resource agency representatives that review mitigation documents and advise managers and decision-makers within their respective agencies or Tribes on the establishment and management of mitigation programs and projects. The Service representative is the chair of the MRT. Any other agencies that will also issue credits for resources under their jurisdiction and will be signatories to the instrument are designated as co-chairs of the MRT. If a government agency or Tribe is the compensatory mitigation project sponsor, that agency or Tribe is excluded from the MRT for that project.
For wetland and stream mitigation banks and in-lieu fee programs authorized by the U.S. Army Corps of Engineers (USACE) and U.S. Environmental Protection Agency (EPA), in which the mitigation sponsor also seeks mitigation credits for species under Service authority (
When co-chairs on the MRT disagree on substantive aspects of a mitigation program or project under review and have exhausted all tools for resolution within the MRT, the issue can be elevated to the appropriate decision makers in their respective agencies. When a dispute arises between co-chairs on an IRT and the bank or in-lieu fee program under review is a joint mitigation-conservation bank or in-lieu fee program to which the Service and USACE are to be signatories, the Service will follow the dispute resolution process described in the EPA–USACE 2008 Compensatory Mitigation Rule (33 CFR 332.8(e)).
For consistency, it is recommended that the same MRT or IRT used for banks, in-lieu fee programs, and habitat credit exchanges also review other types of mitigation projects, such as permittee-responsible mitigation and other third-party mitigation arrangements, when practicable to ensure consistency in the application of this policy.
This policy identifies the minimum requirements for establishment and operation of compensatory mitigation programs or projects requiring Service approval. The Service's regional or field offices may develop more specific guidance or additional requirements. Each stage of the process is subject to approval by the Service, and the mitigation sponsor must obtain Service approval before moving on to the next stage in the process (
All prospective mitigation sponsors, Federal agencies, and applicants are encouraged to contact the Service early in their project planning processes. In the case of a conservation bank or in-lieu fee program the sponsor may engage the MRT or IRT by submitting a draft proposal, which includes enough information for the agencies to give informed feedback on site selection and overall concept. Habitat credit exchanges should engage the MRT early in the process. This scoping is optional, but highly recommended, as it provides the sponsor with an opportunity to
In general, a more detailed draft proposal will better enable the Service to render a timely and informed opinion as to the suitability of a proposed mitigation site. A draft proposal is optional, but if submitted, must include at least the following:
a. Maps and aerial photos showing the location of the site and surrounding area;
b. Contact information for the applicant, mitigation sponsor, property owner(s), and consultants;
c. Narrative description of the property including: acreage, access points, street address, major cities, roads, county boundaries, biological resources (including the resource/species to be mitigated at the site), and current land use;
d. Narrative description of the surrounding land uses and zoning, including the anticipated future development in the area, where known;
e. Ownership of surface and subsurface mineral and water rights and other separated rights (
f. Existing encumbrances (
g. Additional information as determined by the Service's regional and/or field office.
In addition, a conservation bank, in-lieu fee program, or habitat credit exchange draft proposal must also include:
a. Proposed service area(s) with map(s) and narrative(s); and
b. Proposed type(s) and number of credits to be generated by the program or project.
Umbrella conservation banks follow the same process as conservation banks, and must include at least one site in the proposal. The bank would become an umbrella bank as new sites are added.
The Service, MRT, or IRT, as appropriate, will review the draft proposal and provide comments to the mitigation sponsor or applicant. The mitigation sponsor or applicant may then choose to submit a complete or full proposal for formal review by the Service, MRT, or IRT, as appropriate.
All mitigation sponsors must submit a full proposal describing their proposed mitigation program or project. Federal agencies/applicants include any proposed compensatory mitigation measures with the description of the proposed action. All proposals must include enough information at a sufficient level of detail for the Service to provide informed feedback. Mitigation sponsors and Federal agencies/applicants should be aware the Service has discretion to reject a proposed mitigation site that is unsuitable. In-lieu fee programs and habitat credit exchanges may develop a proposal prior to identifying specific sites, in which case they must include the non-site-specific information listed below.
Proposals must include, but are not limited to, the following:
a. Name of proposed mitigation site(s), conservation bank, or in-lieu fee program;
b. Maps and aerial photos showing the location of the site(s) and surrounding area;
c. Contact information for the applicant, mitigation sponsor/provider, property owner, and consultants;
d. Narrative description of the property including: acreage, access points, street address, major cities, roads, county boundaries, biological resources, and current land use;
e. Narrative description of the surrounding land uses and zoning, including the anticipated future development in the area, where known;
f. Description of how the site fits into conservation plans for the species;
g. Proposed ownership arrangements and long-term management strategy for the site;
h. Qualifications of the mitigation sponsor/provider to successfully complete the type of project proposed, including a description of past such activities by the mitigation sponsor/provider;
i. Preliminary title report showing all encumbrances on the proposed mitigation site;
j. Phase I Environmental Site Assessment evaluating the proposed site for any recognized environmental condition(s);
k. Ecological suitability of the site to achieve the objectives, including physical, chemical, and biological characteristics (
l. Assurances of sufficient water rights to support the long-term sustainability of any proposed aquatic habitat(s); and
m. Additional information as determined by the Service's regional and/or field office.
In addition, a conservation bank, in-lieu fee program, or habitat credit exchange draft proposal must also include:
a. Description of the general need for the bank, in-lieu fee program, or credit exchange, and the basis for such a determination;
b. Proposed service area(s) with map(s) and narrative(s); and
c. Proposed type(s) and number of credits to be generated by the program or project.
In-lieu fee programs and habitat credit exchanges that do not provide mitigation in advance of impacts must also include:
a. Prioritization strategy for selecting mitigation sites and compensatory mitigation activities;
b. Description of any public and private stakeholder involvement in plan development and implementation, including any coordination with Federal, State, Tribal, and local resource management authorities; and
c. Description of the in-lieu fee program or exchange account.
A mitigation enabling instrument will be developed after the Service has approved a full proposal. This instrument sets forth the basis on which the Service has approved the proposal and the conditions to which it is subject. The Service's signature on the instrument constitutes the Service's regulatory conclusion that the proposal meets the applicable mitigation standards subject to any conditions. The sponsor's signature constitutes agreement to those terms. The final mitigation instrument may only be submitted subsequent to Service approval of the draft instrument. The draft instrument must be based on the proposal and must describe in detail the physical and legal characteristics of the mitigation site(s), conservation bank, in-lieu fee or habitat credit exchange program, and how it will be established and operated. The instrument must also include a closure plan that specifies responsibilities once all credits are transferred and/or forfeited, performance criteria are achieved, and financial obligations are met. The draft instrument must include the following items:
• Restoration or habitat development plan
• Service area maps
• Credit evaluation/credit table
• Management plans
• Real estate assurances
• Financial assurances
• Additional requirements for business entities
• Closure plan
A restoration or habitat development plan is required if habitat is to be enhanced, restored, or established. This plan is typically submitted as an exhibit to the mitigation instrument. Minimum requirements for this plan include:
a. Baseline conditions of the mitigation site, including biological resources; geographic location and features; topography; hydrology; vegetation; past, present, and adjacent land uses; species and habitats occurring on the site;
b. Surrounding land uses and zoning, including anticipated future development in the area;
c. Historic aerial photographs and/or historic topographic maps (if available), especially if restoration to a historic condition is proposed;
d. Discussion of the overall habitat development goals and objectives;
e. Description of activities and methodologies for establishing, restoring, and/or enhancing habitat types;
f. Detailed anticipated increases in functions and services of existing resources and their corresponding effect within the watershed or other relevant geographic area (
g. Ecological performance criteria and a discussion of the suitability of the site to achieve them (
h. Maps detailing the anticipated location and acreages of habitat developed for species;
i. Monitoring methodologies to evaluate habitat development and document success in meeting performance criteria;
j. An approved schedule for reporting monitoring results;
k. A discussion of possible remedial actions; and
l. Additional information as determined by the Service's regional and/or field office.
The minimum requirement is a map showing the service area for each species or credit type proposed. The map must be at an appropriate scale to determine the boundaries at street level and contain a narrative description of the limits. The Service ultimately establishes service areas—see section 6.3
A credit evaluation is an explanation of the assessment undertaken to formulate the habitat value and total number of each type of credit. Credit evaluations are typically developed for banks and in-lieu fee programs, but may also apply to other types of mitigation provided by third parties. The credit evaluation should include a credit table showing the number and type of credits proposed for approval by the Service to transfer as compensation for unavoidable impacts to species as a result of permitted actions. Any spatially overlapping mitigation resources or credits must be clearly shown in the table with an explanation as to how these credits will be debited from the credit ledger. Overlapping, bundled, or stacked credits can be used only one time and for a single impact project. For details on the use of credits, see section 9.3.
Management plans prescribe the management, monitoring, and reporting activities to be conducted for the term of the mitigation site (
Requirements for the interim management of a site may be the same or very similar to those for long-term management (this is often the case for sites that are preserved, and on which no habitat restoration or establishment is undertaken). In this case, the interim management requirements may be included with the long-term management requirements in one management plan. A combined interim and long-term management plan must make clear that this is the case, and must cover the period from establishment of a mitigation site or bank through the required duration of the mitigation project (in perpetuity for most compensatory mitigation sites).
When the requirements for the interim management of a site differ from those for long-term management, then the interim management plan may be a separate plan or a separate section within the long-term plan. At a minimum, the interim plan should include a description of:
a. All management actions to be undertaken on the site during this period;
b. All performance criteria and any monitoring necessary to gauge the attainment of performance criteria;
c. Reporting requirements;
d. Monitoring and reporting schedule; and
e. A cost analysis to implement the plan.
Reporting requirements include:
a. Copies of completed data sheets and/or field notes, with photos;
b. Monitoring results to date; and
c. A discussion of all monitoring results to date to achievement of the performance criteria.
The long-term management plan is intended to be a living document based on adaptive management principles and should be revised as necessary to respond to changing circumstances (
The long-term management plan must be incorporated by reference into the conservation easement or other site protection mechanism and should include at minimum:
a. Purpose of mitigation site establishment and purpose of long-term management plan;
b. Baseline description of the setting, location, history and types of land use activities, geology, soils, climate, hydrology, habitats present (after the mitigation site meets performance criteria), and species descriptions;
c. Overall management, maintenance, and monitoring goals; specific tasks and timing of implementation; and a discussion of any constraints which may affect goals;
d. Biological monitoring scheme including a schedule, appropriate to the species and site; biological monitoring over the long term is not required annually, but must be completed periodically to inform any adaptive management actions that may become necessary over time;
e. Reporting schedule for ecological performance and administrative compliance;
f. Cost-analysis of all long-term management activities, cross-referenced with the tasks described in paragraph c. above and including a discussion of the assumptions made to arrive at the costs for each task (these itemized costs are used to calculate the amount required for the long-term management endowment);
g. Discussion of adaptive management principles and actions for reasonably foreseeable events, possible thresholds for evaluating and implementing adaptive management, a process for undertaking remedial actions, including monitoring to determine success of the changed/remedial actions, and reporting;
h. Rights of access to the mitigation area and prohibited uses of the mitigation area, as provided in the real estate protection instrument;
i. Procedures for amendments and notices; and
j. Reporting schedule for annual reports to the Service.
Annual reports to the Service are necessary for the Service to fulfill its due diligence responsibilities in ensuring that authorized mitigation programs are successful and continue to meet their stated objectives. To that end, the reports must contain the appropriate level of detail, and at a minimum, must include:
a. Description of mitigation area condition, with photos;
b. Description of management activities undertaken for the year, including adaptive management measures, and expenditure of funds to implement each of these activities;
c. Management activities planned for the coming year; and
d. Results of any biological monitoring undertaken that year, including photos, copies of data sheets, and field notes. This level of documentation is important in verifying the conclusions reached by report preparers and can be essential in informing necessary adaptive management actions. In the interests of reducing paperwork, the Service may require that annual reports be submitted in electronic form and uploaded into RIBITS.
In-lieu fee programs and habitat credit exchanges that do not provide mitigation in advance of impacts must also include:
a. In-lieu fee or exchange program account description, including the specific tasks, equipment, etc., for which funds are to be used;
b. Methodology for determining the fee schedule(s);
c. Methodology and criteria for adding mitigation sites;
d. Timeframe in which the funds must be used for their intended purpose; and
e. Timeframe in which conservation must be implemented.
Real estate assurances ensure that a compensatory mitigation project or site will be available for use as mitigation for the duration specified in the permit or consultation and protect the site from development or other incompatible uses that are inconsistent with the conservation goals of the bank or other mitigation project. Proposed mitigation sites must be vetted prior to acceptance by the Service to ensure they are biologically appropriate and legally able to be encumbered with a site protection instrument. A perpetual conservation easement held by a qualified entity, not the fee title owner, is the required site protection instrument when mitigation is to be permanent and where not prohibited by law. Conservation easements and other site protection instruments are generally governed by State laws and vary from State to State. Where conservation easements are of limited duration by law (
Granting a conservation easement on tribal land poses additional challenges due to Tribal sovereignty. State and local governments and nonprofit organizations are usually not acceptable to Tribes. A supportive service organization created by a consortium of Tribes is generally acceptable as an easement holder if the organization's representative for the Tribe proposing the bank or in-lieu fee program steps aside in any decision concerning matters arising from the bank's or in-lieu fee program's conservation easement. The Lummi Nation's Wetland and Habitat Bank provides an example (Terzi 2012).
For land that will be held in fee by Federal agencies that cannot accept land encumbered by a conservation easement, that Federal agency will be required to place the land under conservation easement upon transfer to a subsequent owner. Where perpetual conservation easements are prohibited by law, another and/or additional long-term site protection mechanism approved by the Service must be used.
Site protection instruments must meet the following requirements and are subject to Service approval:
a. The site protection instrument must designate the Service as a third-party beneficiary with rights of enforcement (may not apply to Federal land protection mechanisms).
b. The site protection instrument must incorporate the interim and long-term management plans for the mitigation site, as set forth therein.
c. The site protection instrument must, to the extent appropriate and practicable, prohibit incompatible uses (
d. The site protection instrument must contain a provision requiring 60-day advance notification to the Service before any action is taken to void or modify the instrument or other site protection mechanism, including transfer of any title to or establishment of any other legal claims over the compensatory mitigation site.
e. If changes in statute, regulation, or agency needs or mission results in an incompatible use on public lands that have been set aside for compensatory mitigation through a Federal facility management plan or other similar mechanism, the public agency authorizing the incompatible use is responsible for providing alternative compensatory mitigation that is acceptable to the Service. The alternative compensation must be commensurate with and proportional to the loss in functions and services resulting from the incompatible use.
f. Service approval of a site protection instrument for permittee-responsible mitigation must be obtained in advance of, or concurrent with, the activity causing the authorized or permitted impacts. The Service will require a preliminary title report and title insurance for the mitigation site and will consider, at a minimum, the following attributes of the property:
• Title/ownership;
• Existing liens, mortgages, and other financial encumbrances on the site;
• Existing easements, rights-of-way, and other real property encumbrances on the site;
• Split estates (properties where the surface and subsurface mineral rights are under separate ownership);
• Ownership of water rights, timber rights, and any other severed rights; and
• Other attributes of the proposed mitigation site that may be incompatible with the purposes of the mitigation.
In the case of a split estate, the Service preference is for severed
Other potential measures for managing risk associated with split estates are accounting for the future uncertainty in the crediting methodology or establishing a reserve credit account.
Financial assurances are necessary to ensure that compensatory mitigation projects will be successfully completed in accordance with a permit, consultation, or instrument, and any attendant performance criteria. The amount of the financial assurances will be reviewed by the Service and is expected to be based on the size and complexity of the compensatory mitigation project, the likelihood of success, the past performance of the project applicant or mitigation sponsor, and any other factors the Service deems appropriate to consider for any specific project. Financial assurances may be in the form of an endowment, performance bonds, escrow accounts, casualty insurance, letters of credit, or other appropriate instruments, depending on the purpose, duration, and entity providing the compensatory mitigation. The acceptance of any financial assurance is discretionary on the part of the Service and is subject to approval.
While the Service's regional and field offices have discretion to determine which forms of short-term financial assurance are acceptable, the long-term financial assurance must be in the form of a perpetual endowment for permanently protected sites. The mitigation provider must provide documentation of the rationale for determining the amount of the required financial assurance. In reviewing the proposed financial assurance, the Service will consider the cost of providing replacement mitigation, including costs for land acquisition, planning and engineering, legal fees, mobilization, construction and monitoring, and long-term stewardship.
Financial assurances should be in place prior to commencing the action authorizing the impact action.
Short-term financial assurances are required in an amount adequate to guarantee performance of measures such as construction of habitat or initial fencing of the mitigation site. Short-term financial assurances are intended to be phased out once the compensatory mitigation project has been determined by the Service to be successful in accordance with its performance criteria. The Service-approved document must clearly specify the conditions under which the financial assurances are to be released to the project applicant, mitigation sponsor, or other financial assurance provider, including linkage to achievement of performance criteria specified in the mitigation instrument or management plan, or compliance with terms and conditions or a permit, as appropriate.
Interim financial assurances are required in an amount adequate to fund management and operation of the mitigation site until long-term financial assurances are available. The amount is expected to be calculated based on the projected cost of managing and monitoring the mitigation site for a period of at least 3 years after the long-term management endowment has been fully funded. Interim financial assurances are intended to be phased out once the endowment fund becomes available and may be released to the project applicant, mitigation sponsor, or other financial assurance provider, or may be used to fund the initial years of long-term management, as applicable. The mitigation instrument, permit, or biological opinion must clearly specify the conditions under which the financial assurances are to be released to the project applicant, sponsor, or other financial assurance provider, including linkage to funding the long-term endowment, and to specific management and operation tasks required by the management plan or interim management plan that are needed to maintain the mitigation site in accordance with the mitigation instrument, permit, or biological opinion.
The following apply to short-term and interim financial assurances:
a. Each form of financial assurance must include a provision that states the Service will receive notification at least 120 days in advance of any termination or revocation. For third-party assurance providers, this may take the form of a contractual requirement for the assurance provider to notify the Service at least 120 days before the assurance is revoked or terminated.
b. In the event a mitigation project has not met performance criteria as specified in the mitigation instrument or management plan, the financial assurance will be used for corrective action. Specific instructions for use must be included in the financial assurance instrument (
Long-term financial assurances are required to ensure long-term stewardship of compensatory mitigation sites and must be in the form of a perpetual endowment. Endowments may be funded over time only when the funding source is the sale of mitigation credits or when the funding source is through legislative appropriation for government agency-sponsored projects. In such cases, a funding schedule and a target date for fully funding the endowment must be specified in the instrument. If an endowment is not fully funded by its target date, the Service may, at its discretion, negotiate a new target date or require that the endowment be fully funded within 30 days of the original target date.
Endowments must be held by qualified third parties who are subject to approval by the Service (see section 8.3.
a. Hold, invest, and manage the endowment to the extent allowed by law and consistent with modern “prudent investor” and endowment law, such as the Uniform Prudent Management of Institutional Funds Act of 1972 (UPMIFA). UPMIFA incorporates a general standard of prudent spending measured against the purpose of the fund and invites consideration of a wide array of other factors.
b. Disburse funds on a timely basis to meet the stewardship expenses of the entity holding the property consistent with UPMIFA.
c. Use accounting standards consistent with standards promulgated by the Financial Accounting Standards Board or any successor entity (if a nonprofit) and with standards promulgated by the Governmental Accounting Standards Board or any successor entity (if a governmental entity).
d. Provide the Service with an annual fiscal report that contains at least the following elements:
i. Balance of each individual endowment at the beginning of the reporting period;
ii. Amount of any contribution to the endowment during the reporting period including, but not limited to gifts, grants, and contributions received;
iii. Net amounts of investment earnings, gains, and losses during the reporting period, including both realized and unrealized amounts;
iv. Amounts distributed during the reporting period that accomplish the purpose for which the endowment was established;
v. Administrative expenses charged to the endowment from internal or third-party sources during the reporting period;
vi. Balance of the endowment or other fund at the end of the reporting period;
vii. Specific asset allocation percentages, including, but not limited to, cash, fixed income, equities, and alternative investments; and
viii. Most recent financial statements for the organization audited by an independent auditor who is, at a minimum, a certified public accountant.
If the mitigation sponsor or owner of the mitigation site is a business entity, such as a Limited Liability Company (LLC), the sponsor/owner must provide the following documentation:
a. Articles of incorporation or equivalent documents;
b. Bylaws or other governing documents; and
c. List of board members, including biographies.
The instrument must include a closure plan that describes at what point a mitigation project or program is “closed” and what responsibilities remain. Upon closure, the long-term stewardship phase begins, where the property owner is primarily responsible for managing the site as described in the long-term management plan, the easement holder is responsible for oversight as described in the real estate protection instrument, and the endowment holder is responsible for managing and making disbursements from the endowment fund as described in the endowment funding and management agreement or declaration of trust. Once a mitigation project or program is closed, it can no longer be used as mitigation for new impacts. Minimum criteria for closure for mitigation programs or sites are:
a. Transfer of all credits or forfeiture of any remaining credits;
b. Attainment of all performance criteria;
c. Endowment maturation;
d. Compliance with all terms of the mitigation instrument; and
e. Written acknowledgement from the Service that all closure criteria have been met.
Qualifications for entities entrusted with holding real estate protection instruments and/or financial assurance instruments intended to fund the stewardship of compensatory mitigation sites are essential in ensuring that mitigation is carried out for the duration specified in the permit or consultation. Holders of these instruments are proposed by the mitigation sponsor and are subject to approval by the Service. Minimum qualifications (listed below) must be met prior to Service approval of a mitigation program, project, or site.
Land trusts that are accredited by the Land Trust Accreditation Commission (Commission) and are in good standing will automatically meet the minimum requirements for holding real estate and financial assurance instruments and be approved by the Service. We recognize that the Commission has developed national standards for excellence, upholding the public trust, and ensuring that conservation efforts are permanent. We are confident that organizations successfully completing this rigorous process will meet the needs for long-term stewardship of mitigation lands. Therefore, the use of an accredited land trust as holder or grantee of a conservation easement is required in those areas where accredited land trusts are available and willing to hold easements for Service-approved mitigation sites. In the event that a land trust acting as grantee on a conservation easement or holding stewardship funds fails to maintain accreditation or otherwise loses accredited status, the Service may require that the conservation easement and/or endowment fund be transferred to another entity. Should other national or State accreditation programs that use the same rigorous criteria as the Commission be developed in the future, the Service may consider entities qualifying in those programs for an expedited approval process.
The Service recognizes that accredited land trusts willing to hold easements for Service-approved mitigation sites are not available in all areas. For those areas in which accredited land trusts are not available, holders of real estate and/or financial assurance instruments must meet these minimum qualifications prior to Service approval of a mitigation program or site:
a. A nonprofit organization or government entity having as its principal purpose and activity the direct protection or stewardship of land, water, or natural resources, including, but not limited to agricultural lands, wildlife habitat, wetlands, and endangered species habitat;
b. Adoption and demonstrated implementation of the Land Trust Alliances' Land Trust Standards and Practices;
c. For holders of easements or other long-term site protection mechanisms, an organization with a history of successfully holding land or easements in long-term stewardship for the above purposes that:
i. has been incorporated (or formed as a trust) for at least five years,
ii. is named as the Grantee on at least two conservation easements, and
iii. has successfully upheld their responsibilities under the conservation easements which they hold as Grantee;
d. For holders of financial assurances, a successful history of holding and managing funds for the above purposes consistent with requirements under UPMIFA; and,
e. A non-profit, non-governmental organization must also:
i. qualify for tax exempt status in accordance with Internal Revenue Code section 501(c)(3);
ii. have a Board of Directors comprising at least 51% disinterested parties;
iii. disclose the relationship between all board members and the mitigation provider and/or project applicant;
iv. be registered as a charitable trust with the appropriate State agency for the State in which the mitigation area is located, or otherwise comply with applicable State laws; and
v. adhere to generally accepted accounting practices that are promulgated by the Financial Accounting Standards Board, or any successor entity.
The National Fish and Wildlife Foundation (NFWF) is approved by the Service to hold financial assurance instruments. NFWF is organized under IRC section 501(c)(3), and was established by Congress in 1984 to support the Service's mission to conserve fish, wildlife and plant species. NFWF is one of the nation's largest non-profit funders for wildlife conservation, is transparent, and accountable to Congress, federal agencies and the public, and has a record for successfully managing endowments for permanent conservation. NFWF generally does not hold conservation easements.
Government agencies are limited in their ability to accept, manage, and disburse funds for the purposes described here and must not be given responsibility for holding endowments or other financial assurances for compensatory mitigation projects. These funds must be held by a third party as described in this section.
Activities regulated under section 7 or section 10 of the ESA may be eligible to use third-party sponsored mitigation, if the adverse impacts to the species from the particular project can be offset by transfer of the appropriate type and number of credits provided by the third party sponsored mitigation program. The impacts for which third party sponsored mitigation is sought must be located within the service area for the species provided by the third party sponsored mitigation program unless otherwise approved by the Service. In no case may the same credit(s) be used to compensate for more than one action. However, the same credit(s) may be used to compensate for a single action that requires authorization under more than one regulatory authority (
Only credits that have been verified by the Service and released are considered available. Only available credits can be used to mitigate actions.
The mitigation sponsor assumes liability for success of the mitigation through the transfer (usually a purchase by the permittee) of credits or other quantified amount of compensatory mitigation documented in a mitigation instrument. The credit sale must be recorded in a fully executed sales contract between the permittee and the mitigation sponsor that specifically states the transfer of liability to be legally binding. Service offices must retain a copy of the executed sales contract in the project file and maintain a copy in RIBITS (if the bank or mitigation project is tracked in RIBITS) or in the file for the authorized in-lieu fee program, or habitat credit exchange.
The Service's role is regulatory. The Service must approve credit transactions as to their conservation value and appropriate application for use related to any authorization or permit issued under the ESA. Service approval is usually through signature; however, the Service's signature as an approving entity on the sales contract does not mean the Service is party to the contract. Market and legal risks arising from the purchase and use of mitigation credits are borne solely by the parties to the sale of such credits. See section 6.7.
The Service recognizes the inherent efficiencies in leveraging multiple conservation efforts on the landscape and encourages these coordinated efforts. However, compensatory mitigation and other conservation actions that occur on the same mitigation site must be accounted for separately, and all aspects of the different actions must be managed and tracked in a transparent manner. Stacking mitigation credits within a mitigation site (
Compensatory mitigation projects may be designed to holistically address requirements under multiple programs and authorities for the same action and may use bundled credits to accomplish this goal. For example, a stream credit may satisfy requirements for an U.S. Army Corps of Engineers section 404 CWA permit and issuance of incidental take authority under the ESA for a listed mussel species occurring in that stream, or a county-wide HCP may establish an in-lieu fee program for which a single fee is collected from project applicants for a permit which covers multiple mitigation obligations under Federal, State, and local authorities. In both these examples the bundled credit is used as a single commodity (
Compensatory mitigation projects established for use under one Service program (
A tracking system is essential in ensuring compliance with the mitigation instruments used to implement compensatory mitigation programs described in this policy.
Transactions (credit withdrawals) at a Service authorized mitigation program or project that are not related to ESA compliance and are not approved by the Service must be tracked in the same tracking system. The Service is not liable for any event or transaction that eludes detection through the Service's tracking function.
Conservation banks, in-lieu fee programs, and habitat credit exchanges must comply with the terms of their instruments, including meeting performance criteria and submitting required reports. Appropriate action will be taken if the Service determines a compensatory mitigation program is not meeting performance criteria or complying with the terms of the enabling instrument or site protection instrument. Such actions may include decreasing available credits, suspending the use of credits as mitigation, and/or determining that financial assurance resources should be used to perform remediation or alternative mitigation as provided by the mitigation instrument.
Permittee-responsible mitigation projects are linked to one permitted action, therefore no credits are available to reduce or suspend. Failure to complete mitigation or failure of a mitigation site to meet performance criteria may trigger reinitiation under 50 CFR 402.16 or suspension of a section 10(a)(1)(B) permit. If the Service determines that a permittee-responsible mitigation site is not meeting performance criteria, appropriate corrective actions will be taken, such as determining financial assurance resources should be used to perform remediation or alternative mitigation, as provided by the mitigation instrument.
Similar to conservation banks and in-lieu fee programs the responsibility for ensuring success of a mitigation project provided by a third party lies with the third party. Like permittee-responsible mitigation projects, these projects are linked to a single permitted action. If the Service determines that a third party mitigation project is not meeting performance criteria or is not in compliance with the mitigation instrument or site protection instrument, appropriate corrective actions will be taken, such as determining financial assurance resources should be used to perform remediation or alternative mitigation, as provided by the mitigation instrument.
Reports will be required at least annually. Reports document the compensatory mitigation program's or project's performance. Reports generally include a description of the mitigation site conditions, attainment of performance criteria, status of the endowment fund or other financial assurance mechanism, expenditures, and management actions taken and expected to be taken in the future. See Section 8.2.
Conservation banks, in-lieu fee programs, and habitat credit exchanges often have requirements for reaching milestones which lead to the release of credits to be made available for use as mitigation. Annual monitoring reports document the condition of the sites and the achievement of these milestones. Credits should not be released until all reports are submitted and verified.
Third-party monitoring of the real estate protection instrument (
Each use of credits as compensatory mitigation is subject to authorization by the Service. The Service will review each proposed use of credits to determine if the mitigation program is in good standing (
Monitoring reports and other documents used to evaluate compliance will be uploaded into the Service's Environmental Conservation and Online System (ECOS) or the Regulatory In-lieu fee and Bank Information Tracking System (RIBITS), as appropriate. Permittee-responsible mitigation is tracked in ECOS. Conservation banks are tracked in RIBITS. In-lieu fee programs and habitat credit exchanges will be tracked in RIBITS when sufficient modifications to RIBITS have been made to accommodate these mitigation mechanisms. Until that time, in-lieu fee programs and habitat credit exchanges must be tracked in databases
Documents uploaded into the RIBITS cyber repository will be available to the public to the extent allowed by law and in accordance with the requirements of mitigation instruments approved by the Service. At a minimum, mitigation instruments and credit ledgers will be visible to the public. Regional and/or Field Offices will determine the types of additional documents to be uploaded into the cyber repository and made visible to the public. Field Offices will coordinate with mitigation sponsors to ensure that credit ledgers are updated at least monthly.
Definitions in this section apply to the implementation of the U.S. Fish and Wildlife Service (Service) Endangered Species Act Compensatory Mitigation Policy and were developed to provide clarity and consistency. Some definitions are defined in Service authorities such as the Endangered Species Act or the National Environmental Policy Act, or in regulations or policies existing at the time this policy was issued. Other definitions have been developed based on compensatory mitigation practices. Definitions in the glossary do not substitute for statutory or regulatory definitions in the exercise of those authorities.
• Avoid the impact altogether by not taking the action or parts of the action;
• minimize the impact by limiting the degree or magnitude of the action and its implementation;
• rectify the impact by repairing, rehabilitating, or restoring the affected environment;
• reduce or eliminate the impact over time by preservation and maintenance operations during the life of the action; and
• compensate for the impact by replacing or providing substitute resources or environments.”
This sequence is often condensed to: Avoidance, minimization, and compensation.
Section 5 of this policy addresses sections of the ESA under which the Service has authority to recommend or require compensatory mitigation for species or their habitat. Specific regulatory requirements exist for marine mammals under the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361
Section 101(a)(5)(A) provides for the promulgation of Incidental Take Regulations (ITRs), which can be issued for a period of up to 5 years. The ITRs set forth permissible methods of taking pursuant to the activity and other means of effecting the least practicable adverse impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. In addition, ITRs include requirements pertaining to the monitoring and reporting of such takings.
Section 101(a)(5)(D) established an expedited process to request authorization for the incidental, but not intentional, take of small numbers of marine mammals for a period of not more than 1 year if the taking will be limited to harassment,
As stated in section 17 of the ESA, no provision of the ESA shall take precedence over any more restrictive conflicting provision of the MMPA.
An IHA prescribes permissible methods of taking by harassment and includes other means of affecting the least practicable impact on marine mammal species or stocks and their habitats, paying particular attention to rookeries, mating grounds, and areas of similar significance. In addition, the IHA will include appropriate measures that are necessary to ensure no unmitigable adverse impact on the availability of the species or stock for subsistence purposes in Alaska. IHAs also specify monitoring and reporting requirements pertaining to the taking by harassment. Both the promulgation of ITRs and requests for IHAs are subject to a 30-day public comment period.
The Service shall recommend mitigation for impacts to species covered by the MMPA that are under our jurisdiction consistent with the guidance of this policy. Proponents may adopt these recommendations as components of proposed actions. However, such adoption itself does not constitute full compliance with the MMPA.
We intend that a final policy will consider information and recommendations from all interested parties. We, therefore, invite comments, information, and recommendations from governmental agencies, Indian Tribes, the scientific community, industry groups, environmental interest groups, and any other interested parties. All comments and materials received by the date listed above in
In addition to more general comments and information, we ask that you comment on the following specific aspects of the draft new policy:
(1) Compensatory mitigation standards set forth in section 4 of the draft policy.
(2) The clarity of the information in section 6. General Considerations.
(3) The clarity of the information in section 8. Establishment and Operation of Compensatory Mitigation Programs and Projects.
If you submit information via
As mentioned above, we intend to apply this policy when considering the adequacy of compensatory mitigation programs, projects, and measures proposed by Federal agencies and applicants as part of a proposed action and mitigation sponsors. Below we discuss compliance with several
We have analyzed the draft new policy in accordance with the criteria of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(c)), the Council on Environmental Quality's Regulations for Implementing the Procedural Provisions of NEPA (40 CFR parts 1500–1508), and the Department of the Interior's NEPA procedures (516 DM 2 and 8; 43 CFR part 46).
Issuance of policies, directives, regulations, and guidelines are actions that may generally be categorically excluded under NEPA (43 CFR 46.210(i)). However, our initial analysis has determined the draft new policy may not be purely administrative in nature and may not meet the requirements for a categorical exclusion (40 CFR 1508.4 and 43 CFR 46.210(i)). While reliance on a categorical exclusion may be possible for this proposed action, extraordinary circumstances may be present, as outlined in 43 CFR 46.215. Therefore, although the draft new policy may qualify for a categorical exclusion, we announce our intent to prepare an environmental assessment (EA) pursuant to the National Environmental Policy Act (NEPA) of 1969, as amended, to assist our agency in its decision (per 40 CFR 1501.3) and avoid delays that may arise should there be public concern that we did not perform a thorough NEPA analysis. We request comments on the scope of the NEPA review, information regarding important environmental issues which should be addressed, the alternatives to be analyzed, and issues that should be addressed at the programmatic stage in order to inform the site-specific stage. This notice provides an opportunity for input from other Federal and State agencies, local government, Native American Tribes, nongovernmental organizations, the public, and other interested parties.
This proposed policy contains information collection requirements that we have submitted to the Office of Management and Budget (OMB) for review and approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
We are proposing to collect the following information:
Phase I: Information collected as part of the mitigation proposal process for a mitigation proposal as part of an individual action; or a mitigation proposal for a conservation/mitigation bank, in-lieu fee program, habitat credit exchange, that is intended to serve multiple actions; or other third-party sponsored mitigation site or program proposal that is intended to serve one or multiple actions. The draft proposal includes, but is not limited to:
1. Maps and aerial photos showing the location of the mitigation site and surrounding area;
2. Contact information for the applicant, mitigation sponsor, property owner(s), and consultants;
3. Narrative description of the property including: Acreage, access points, street address, major cities, roads, county boundaries, biological resources (including the resource/species to be mitigated at the site), and current land use;
4. Narrative description of the surrounding land uses and zoning along with the anticipated future development in the area, where known;
5. Description of how the site fits into conservation plans for the species or meets species specific criteria;
6. Proposed ownership arrangements and long-term management strategy for the site;
7. Qualifications of the mitigation sponsor/provider to successfully complete the type of project proposed, including a description of past such activities by the mitigation sponsor/provider;
8. Preliminary title report showing all encumbrances (
9. Phase I Environmental Site Assessment evaluating the proposed site for any recognized environmental condition(s);
10. Ecological suitability of the site to achieve the objectives, including physical, chemical, and biological characteristics (
11. Assurances of sufficient water rights to support the long-term sustainability of any proposed aquatic habitat(s).
In addition, the draft proposal for a conservation bank, in-lieu fee program, habitat credit exchange, or other third-party sponsored mitigation project intended to be used by multiple actions also includes, but is not limited to:
1. Name of proposed mitigation site(s), conservation/mitigation bank, in-lieu fee program, or habitat credit exchange;
2. Proposed service area(s) with map(s) and narrative(s); and
3. Proposed type(s) and number of credits to be generated by the program or project. In-lieu fee programs and habitat credit exchanges that do not provide mitigation in advance of impacts also include:
1. Prioritization strategy for selecting mitigation sites and compensatory mitigation activities;
2. Description of any public and private stakeholder involvement in plan development and implementation, including any coordination with Federal, State, Tribal, and local resource management authorities; and
3. Description of the in-lieu fee program or exchange account.
Phase II: If the Service supports development of the mitigation proposal, the following information is collected as part of a fully developed mitigation instrument for a conservation/mitigation bank, in-lieu fee program, habitat credit exchange, or other third-party mitigation project; or equivalent applicable information regarding mitigation for an individual action: A fully developed mitigation instrument/agreement that includes, but is not limited to:
1. A description of the framework of the mitigation program/project;
2. The roles and responsibilities of each party (
3. A closure plan (this can be in the form of an exhibit) that specifies responsibilities once all credits are transferred and/or forfeited, performance criteria are achieved, and financial obligations are met; and
4. The following exhibits, as applicable:
A. Restoration or habitat development plan, which includes, but is not limited to:
(1) Baseline conditions of the mitigation site, including biological resources; geographic location and features; topography; hydrology; vegetation; past, present, and adjacent land uses; species and habitats occurring on the site;
(2) Surrounding land uses and zoning, along with the anticipated future development in the area;
(3) Historic aerial photographs and/or historic topographic maps (if available), especially if restoration to a historic condition is proposed;
(4) Discussion of the overall habitat development goals and objectives;
(5) Description of activities and methodologies for establishing, restoring, and/or enhancing habitat types (if applicable);
(6) Detailed anticipated increases in functions and services of existing resources and their corresponding effect within the watershed or other relevant geographic area (
(7) Ecological performance criteria and a discussion of the suitability of the site to achieve them (
(8) Maps detailing the anticipated location and acreages of habitat developed for species;
(9) Monitoring methodologies to evaluate habitat development and document success in meeting performance criteria;
(10) An approved schedule for reporting monitoring results; and
(11) A discussion of possible remedial actions.
B. Service area maps for each credit type proposed;
C. Credit evaluation/credit table;
D. Management Plans—Interim (if applicable) and long term management plans that describe the management, monitoring, and reporting activities to be conducted for the term of the mitigation project or program. The interim management plan includes, but is not limited to:
(1) Description of all management actions to be undertaken on the site during this period;
(2) Description of all performance criteria and any monitoring necessary to gauge the attainment of performance criteria;
(3) Monitoring and reporting schedule;
(4) Cost analysis to implement the plan; and
(5) Description of reporting requirements. Reporting requirements include, but are not limited to:
(a) Copies of completed data sheets and/or field notes, with photos;
(b) Monitoring results to date; and
(c) A discussion relating all monitoring results to date to achievement of the performance criteria.
The long-term management plan includes, but is not limited to:
(1) Purpose of mitigation site establishment and purpose of long-term management plan;
(2) Baseline description of the setting, location, history and types of land use activities, geology, soils, climate, hydrology, habitats present (after the mitigation site meets performance criteria), and species descriptions;
(3) Overall management, maintenance, and monitoring goals; specific tasks and timing of implementation; and a discussion of any constraints which may affect goals;
(4) Biological monitoring scheme including a schedule, appropriate to the species and site; biological monitoring over the long term is not required annually, but must be completed periodically to inform any adaptive management actions that may become necessary over time;
(5) Reporting schedule for ecological performance and administrative compliance;
(6) Cost-analysis of all long-term management activities, cross-referenced with the tasks described in c. above and including a discussion of the assumptions made to arrive at the costs for each task (these itemized costs are used to calculate the amount required for the long-term management endowment);
(7) Discussion of adaptive management principles and actions for reasonably foreseeable events, possible thresholds for evaluating and implementing adaptive management, a process for undertaking remedial actions, including monitoring to determine success of the changed/remedial actions, and reporting;
(8) Rights of access to the mitigation area and prohibited uses of the mitigation area, as provided in the real estate protection instrument;
(9) Procedures for amendments and notices; and
(10) Reporting schedule for annual reports to the Service. Annual reports include, but are not limited to:
(a) Description of mitigation area condition, with photos;
(b) Description of management activities undertaken for the year, including adaptive management measures, and expenditure of funds to implement each of these activities;
(c) Management activities planned for the coming year; and
(d) Results of any biological monitoring undertaken that year, including photos, and copies of data sheets and field notes. This level of documentation is important in verifying the conclusions reached by report preparers, and can be essential in informing necessary adaptive management actions. In the interests of reducing paperwork, the Service may require that annual reports be submitted in electronic form, and uploaded into the Regulatory In-lieu Fee and Bank Information Tracking System (RIBITS).
E. Description of the form(s) of real estate assurance to be used and qualifications of proposed holder(s) of the assurance(s) and any related assurance documentation such as a Minerals Assessment Report (if applicable); and
F. Description of the form(s) of financial assurances (short, interim, and long term assurances) to be used and the qualifications of proposed holder(s) of the assurance(s).
1. In-lieu fee or exchange program account description, including the specific tasks, equipment, etc., for which funds are to be used;
2. Methodology for determining the fee schedule(s);
3. Methodology and criteria for adding mitigation sites;
4. Timeframe in which the funds must be utilized; and
5. Timeframe in which conservation must be implemented.
1. Articles of incorporation or equivalent documents;
2. Bylaws or other governing documents; and
3. List of board members, including biographies.
Phase III: Operation, maintenance, monitoring, and reporting of approved mitigation projects and programs (
1. Description of mitigation project or program, with photos;
2. Description of management activities undertaken for the year or period specified in the mitigation instrument, including adaptive management measures, and expenditure of funds to implement each of these activities;
3. Management activities planned for the coming year or period specified in the mitigation instrument; and
4. Results of any biological monitoring undertaken that year, including all information requirements described above under section 4.D. Management Plans, including photos, and copies of data sheets and field notes;
5. Annual report(s) on site visit from holder(s) of real estate assurance(s) in accordance with the Management Plan and including verification of current qualifications to hold such assurance(s); and
6. Documentation of any changes in land ownership or management responsibility.
1. Name of Seller;
2. Name of Purchaser (or Permittee, or Project Applicant, or other purchasing entity);
3. Name of Bank, Program, or Exchange;
4. Type of credit;
5. Number of credits;
6. Permit or biological opinion or file number associated with the credit transaction (if applicable);
7. Date of transaction.
We invite comments concerning this information collection on:
• Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
• The accuracy of our estimate of the burden for this collection of information;
• 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 respondents.
If you wish to comment on the information collection requirements of this proposed policy, send your comments directly to OMB (see detailed instructions under the heading Comments on the Information Collection Aspects of this Proposal in the
In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175 “Consultation and Coordination with Indian Tribal Governments,” and the Department of the Interior Manual at 512 DM 2, we have considered possible effects on federally recognized Indian tribes and have determined that there are no potential adverse effects of issuing this policy. Our intent with the policy is to provide a consistent approach to the consideration of compensatory mitigation programs, projects, and measures, including those taken on Tribal lands. We will work with Tribes as applicants proposing compensatory mitigation as part of proposed actions and with Tribes as mitigation sponsors.
The authorities for this action include the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Office of the Secretary, Department of Defense (DoD).
Final rule.
This final rule modifies the TRICARE regulation to reduce administrative barriers to access to mental health benefit coverage and to improve access to substance use disorder (SUD) treatment for TRICARE beneficiaries, consistent with earlier Department of Defense and Institute of Medicine recommendations, current standards of practice in mental health and addiction medicine, and governing laws. This rule seeks to eliminate unnecessary quantitative and non-quantitative treatment limitations on SUD and mental health benefit coverage and align beneficiary cost-sharing for mental health and SUD benefits with those applicable to medical/surgical benefits, expand covered mental health and SUD treatment under TRICARE to include coverage of intensive outpatient programs and treatment of opioid use disorder and to streamline the requirements for mental health and SUD institutional providers to become TRICARE authorized providers, and to develop TRICARE reimbursement methodologies for newly recognized mental health and SUD intensive outpatient programs and opioid treatment programs.
This rule is effective October 3, 2016.
Dr. John Davison, Defense Health Agency, Clinical Support Division, Condition-Based Specialty Care Section, 703–681–8746.
This final rule updates TRICARE mental health and substance use disorder benefits, consistent with earlier Department of Defense and Institute of Medicine recommendations, current standards of practice in mental health and addiction medicine, and our governing laws. The Department of Defense remains intently focused on supporting the mental health of our service members and their families, as this continues to be a top priority. The Department is also working to further de-stigmatize mental health treatment and expand the ways by which our beneficiaries can access authorized mental health services. This regulatory action eliminates unnecessary requirements that may be viewed as barriers to medically necessary and appropriate mental health services.
This rule has four main objectives: (a) To eliminate unnecessary quantitative and non-quantitative treatment limitations on SUD and mental health benefit coverage and align beneficiary cost-sharing for mental health and SUD benefits with those applicable to medical/surgical benefits; (b) to expand covered mental health and SUD treatment under TRICARE, to include coverage of intensive outpatient programs and treatment of opioid use disorder; (c) to streamline the requirements for mental health and SUD institutional providers to become TRICARE authorized providers; and (d) to develop TRICARE reimbursement methodologies for newly recognized mental health and SUD intensive outpatient programs and opioid treatment programs.
The requirements of the Mental Health Parity Act (MHPA) of 1996 and the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act (MHPAEA) of 2008, as well as the plan benefit provisions contained in the Patient Protection and Affordable Care Act (PPACA) do not apply to the TRICARE program. The provisions of MHPAEA and PPACA served as models for TRICARE in proposing changes to existing benefit coverage. These changes are intended to reduce administrative barriers to treatment and increase access to medially or psychologically necessary mental health care consistent with TRICARE statutory authority and program design.
Section 703 of the National Defense Authorization Act (NDAA) National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2015, signed into law December 19, 2014, amended section 1079 of title 10 of the U.S.C. to remove prior existing statutory limits and requirements on TRICARE coverage of inpatient mental health services. This rule is necessary to conform the regulation to provisions in the enacted law. Specifically, TRICARE coverage is no longer subject to an annual limit on stays in inpatient mental health facilities of 30 days for adults and 45 days for children. In addition, TRICARE coverage is no longer subject to a 150-day annual limit for stays at Residential Treatment Centers (RTCs) for eligible beneficiaries.
In addition to the elimination of these statutory inpatient day limits and corresponding waiver provisions, the rule will also eliminate other unnecessary quantitative and non-quantitative treatment limitations, consistent with principles of mental health parity and our governing laws.
Additionally, this rulemaking will remove the categorical exclusion on treatment of gender dysphoria. This change will permit coverage of all non-surgical medically necessary and appropriate care in the treatment of gender dysphoria, consistent with the program requirements applicable for treatment of all mental or physical illnesses. Surgical care remains prohibited by statute at 10 U.S.C. 1079(a)(11), as discussed further below.
Finally, following the recent repeal (section 703 of the NDAA for FY 15) of the statutory authority (previously codified at 10 U.S.C. 1079(i)(2)) for separate beneficiary financial liability for mental health benefits, the rule revises the cost-sharing requirements for mental health and SUD benefits to be consistent with those that are applicable to TRICARE medical and surgical benefits.
Previously, TRICARE benefits did not fully reflect the full range of contemporary SUD treatment approaches (
An amendment to the regulation was necessary to authorize TRICARE benefit coverage of medically and psychologically necessary services and supplies which represent appropriate medical care and that are generally accepted by qualified professionals to be reasonable and adequate for the diagnosis and treatment of mental disorders. TRICARE coverage of
While TRICARE's comprehensive certification standards were once considered necessary to ensure quality and safety, these comprehensive certification requirements proved to be overly restrictive and at times inconsistent with current industry-based institutional provider standards and organization. There are currently several geographic areas that are inadequately served because providers in those regions did not meet TRICARE certification requirements, though they may have met the industry standard. This final rule will streamline TRICARE regulations to be consistent with industry standards for authorization of qualified institutional providers of mental health and SUD treatment. It is anticipated that these revisions will result in an increase in the number and geographic coverage areas of participating institutional providers of mental health and SUD treatment for TRICARE beneficiaries.
Along with recognition of several new categories of TRICARE authorized providers, this rule establishes reimbursement methodologies for these providers. Specifically, new reimbursement methodologies are instituted for IOPs for mental health and SUD treatment as well as OTPs, as these providers had not previously been recognized by TRICARE and thus appropriate reimbursement methodologies must be established. Existing reimbursement methodologies for SUDRFs, RTCs, and PHPs will continue to apply.
The legal authority for this final rule is 10 U.S.C., section 1073, which authorizes the Secretary of Defense to make decisions concerning TRICARE and to administer the medical and dental benefits provided in title 10 U.S.C., chapter 55. The Department is authorized to provide medically necessary and appropriate medical care for mental and physical illnesses, injuries and bodily malfunctions, including hospitalization, outpatient care, drugs, and treatment of mental health conditions under 10 U.S.C. 1077(a)(1) through (3) and (5). Although section 1077 identifies the types of health care to be provided in military treatment facilities (MTFs) to those authorized such care under section 1076, these same types of health care (with certain specified exceptions) are authorized for coverage within the civilian health care sector for ADFMs under section 1079 and for retirees and their dependents under section 1086. In general, the scope of TRICARE benefits covered within the civilian health care sector and the TRICARE authorized providers of those benefits are found at 32 CFR 199.4 and 199.6, respectively.
TRICARE beneficiary cost-sharing is governed by statute and regulation based upon both the beneficiary category and TRICARE option being utilized. With the recent repeal of the statutory authority (previously codified at 10 U.S.C. 1079(i)(2)) for separate beneficiary financial liability for mental health benefits, this final rule revises the cost-sharing requirements for mental health and SUD benefits to be consistent with those that are applicable to TRICARE medical and surgical benefits.
With respect to institutional provider reimbursement, pursuant to 10 U.S.C. 1079(i)(2), the Secretary is required to publish regulations establishing the amount to be paid to any provider of services, including hospitals, comprehensive outpatient rehabilitation facilities, and any other institutional facility providing services for which payment may be made. The amount of such payments shall be determined, to the extent practicable, in accordance with the same reimbursement rules as apply to payments to providers of services of the same type under Medicare. TRICARE provider reimbursement methods are found at 32 CFR 199.14. When it is not practicable to adopt Medicare's methods or Medicare has no established reimbursement methodology (
This final rule makes a number of comprehensive revisions to the TRICARE mental health and SUD treatment coverage. In an effort to further de-stigmatize SUD care, treatment of SUDs is no longer separately identified as a limited special benefit under 32 CFR 199.4(e) but rather has now been incorporated into the general mental health provisions in § 199.4(b) governing institutional benefits and § 199.4(c) governing professional service benefits. Further, this rule eliminates a number of mental health and SUD quantitative and non-quantitative treatment limitations, and corresponding waiver provisions, instead relying on determinations of medical necessity and appropriate utilization management tools, as are used for all other medical and surgical benefits. Proposed revisions include eliminating:
• All inpatient mental health day limits, following the statutory revisions to 10 U.S.C. 1079;
• The 60-day partial hospitalization and SUDRF residential treatment limitations;
• Annual and lifetime limitations on SUD treatment;
• Presumptive limitations on outpatient services including the six-hours per year limit on psychological testing; the limit of two sessions per week for outpatient therapy; and limits for family therapy (15 visits) and outpatient therapy (60 visits) provided in free-standing or hospital based SUDRFs;
• The limit of two smoking cessation quit attempts in a consecutive 12 month period and 18 face-to-face counseling sessions per attempt; and
• The regulatory prohibition that categorically excludes all treatment of gender dysphoria.
The rule also changes cost-sharing for mental health treatment for TRICARE Prime and Standard/Extra beneficiaries to align with the applicable cost-sharing provisions for other non-mental health inpatient and outpatient benefits.
The regulatory language defines and authorizes new services by TRICARE authorized institutional and individual providers of SUD care outside of SUDRF settings at § 199.2 and 199.6. Revisions to treatment benefits at § 199.4 and § 199.6 will allow intensive outpatient programs (IOPs) for mental health and SUD treatment; care in opioid treatment programs (OTPs); and outpatient SUD treatment (
Significant revisions to 32 CFR 199.6 eliminate the administratively burdensome provider certification process and streamline approval for institutional mental health and SUD providers to become TRICARE authorized providers. In multiple regions providers may meet industry standards but do not meet TRICARE certification requirements. Consequently, providers in these regions were unable to serve TRICARE beneficiaries. The applicable provisions for residential treatment centers, psychiatric and SUD partial hospitalization programs, and SUDRFs, have been rewritten in their entirety to address institutional provider eligibility, organization and administration, participation agreement requirements and any other requirements for approval as a TRICARE authorized provider. The requirement and formal process of certification will be eliminated. Similarly, new regulatory provisions for the newly recognized categories of institutional providers, namely IOPs and OTPs are instituted.
Finally, amendments to 32 CFR 199.14, which specifies provider reimbursement methods, establish allowable all-inclusive per diem payment rates for psychiatric and SUD, PHP, IOP and OTP services.
The amendment is not anticipated to have an annual effect on the economy of $100 million or more. An independent government cost estimate found that this rule is estimated to have a net increase in costs of approximately $58 million. The government's regulatory impact analysis based on this cost estimate can be found in the docket folder associated with this proposed rule [at DOD–2015–HA–0109]. To summarize, provisions to implement mental health parity account for approximately $36 million (62%) of the $58 million net cost increase. While modifying mental health cost-sharing will increase costs, these revisions are required as the former statutory authority for mental health-specific cost sharing has been deleted from the statute (section 703 of the NDAA for FY15). As a result, the existing statutory cost-shares are utilized and this aligns mental health cost-shares with the current medical-surgical cost-shares. The largest cost increase ($21.6 million) is attributable to lowering outpatient mental health cost-sharing for Non-Active Duty Dependent (NADD) TRICARE beneficiaries (from $25 per visit to the medical/surgical outpatient cost-sharing of $12 per visit).
Elimination of the statutory day limits for inpatient psychiatric and Residential Treatment Center (RTC) care for children (to comply with section 703 of the NDAA for FY15) will only minimally increase costs. This is because these previously published presumptive day limits were also subject to waivers and TRICARE had been reimbursing for medically necessary inpatient stays with waivers when continued medical necessity was supported. Eliminating the limit of two sessions per week for outpatient therapy is estimated to incur an increased cost ($7.5 million), but this is based on the conservative assumption that the proportion of NADD beneficiaries who will pursue three psychotherapy sessions per week is comparable to the proportion of Active Duty Service Members (ADSMs) who do so (17%), even though ADSMs incur no cost-sharing and most receive psychotherapy within MTFs instead of civilian providers. Eliminating other limits (
Creating additional levels, providers, and types of mental health care (
Additionally, TRICARE currently has an estimated 15,000 to 20,000 beneficiaries with opioid use disorder who, under the previous benefit, could not access medication-assisted treatment (MAT;
Streamlining requirements for institutional providers to become TRICARE authorized providers of mental health and SUD care will incur an estimated increased cost of $3.2 million due to an anticipated increase in the number of institutional providers joining the TRICARE network. To focus on RTC care as an example, TRICARE strives to provide a robust mental health treatment benefit to our child beneficiaries, but access to RTC care for children is significantly limited in many geographic areas by TRICARE's existing certification requirements. Less than one sixth of RTCs accredited by the Joint Commission are currently TRICARE certified, and only about one half of individual states have at least one TRICARE certified RTC. Revising TRICARE institutional provider authorization requirements for RTCs will make it much more likely that parents will seek RTC care for their children whose behavioral health condition is so severe as to require RTC services, and this change to the TRICARE behavioral health benefit is projected to increase utilization of RTC services by 20 percent. Ultimately, the net increase in costs associated with this final rule will greatly be outweighed by the enhanced mental health benefits, options and access available to beneficiaries.
On February 1, 2016 (81 FR 5061–5086), the Office of the Secretary of Defense published a proposed rule for a 60-day public comment period, and provided an opportunity to comment on implementing changes to TRICARE benefits. As a result of publication of the proposed rule, DoD received 290 comments. A large majority of commenters expressed overwhelming support for the rule change, while others expressed concerns about the cost and necessity of the proposed changes. We thank all those who provided comments. Specific matters raised by those who submitted comments are summarized below in the appropriate sections of the preamble.
1. Provisions of the Proposed Rule. This final rule will remove a number of unnecessary quantitative and non-quantitative limits for coverage of mental health and SUD care under the TRICARE Program, including:
• All inpatient mental health day (30 days maximum for adults and 45 days maximum for children at 32 CFR 199.4(b)(9)) and annual day limits (150 days at 32 CFR 199.4(b)(8)) for RTC care for beneficiaries 21 years and younger, following the statutory revisions to 10 U.S.C. 1079;
• The 60-day limitation on partial hospitalization (32 CFR 199.4(b)(10)(iv)) and SUDRF residential treatment (32 CFR 199.4(e)(4)(ii)(A));
• Annual (60 days in a benefit period) and lifetime (three treatment episodes—32 CFR 199.4(e)(4)(ii)) limitations on SUD treatment;
• Presumptive limitations on outpatient services including the six-hour per year limit on psychological testing (32 CFR 199.4(c)(3)(ix)(A)(
• Limits on family therapy (15 visits (32 CFR 199.4(e)(4)(ii)(C)) and outpatient therapy (60 visits—(32 CFR 199.4(e)(4)(ii)(B)) provided in free-standing or hospital based SUDRFs; and
• The limit of two smoking cessation quit attempts in a consecutive 12 month period and 18 face-to-face counseling sessions per attempt (32 CFR 199.4(e)(30)).
This rule will also allow coverage of outpatient treatment that is medically or psychologically necessary, including psychotherapy, family therapy and other covered diagnostic and therapeutic services, by a TRICARE authorized institutional provider or by authorized individual mental health providers without limits on the number of treatment sessions. All claims submitted for services under TRICARE remain subject to review for quality and appropriate utilization in accordance with the Quality and Utilization Review Peer Review Organization Program, under 10 U.S.C. 1079(n) and 32 CFR 199.15.
The rule also removes certain regulatory exclusions for the treatment of gender dysphoria for TRICARE beneficiaries who are diagnosed by a TRICARE authorized provider, practicing within the scope of his or her license, to be suffering from a mental disorder, as defined in 32 CFR. 199.2. It is no longer justifiable to categorically exclude and not cover currently accepted medically and psychologically necessary treatments for gender dysphoria (such as psychotherapy, pharmacotherapy, and hormone replacement therapy) that are not otherwise excluded by statute. (Section 1079(a)(11) of title 10, U.S.C., excludes from CHAMPUS coverage surgery which improves physical appearance but is not expected to significantly restore functions, including mammary augmentation, face lifts, and sex gender changes.)
2. Analysis of Major Public Comments. Many commenters expressed strong support for the removal of presumptive quantitative limitations on mental health treatment benefits, such as elimination of inpatient mental health day limits, the previous six hours per year limit on psychological testing, the limit of two sessions per week for outpatient therapy, and the limit of two smoking cessation quit attempts in a consecutive 12 month period. One commenter specifically suggested a raised limit on the number of smoking cessation quit attempts in a consecutive 12 month period. There was also one specific expression of support for the inclusion of music therapy as an ancillary therapy. One commenter noted that individuals with substance use disorders should be allowed only one treatment episode, and subsequent to this, benefit coverage for SUD treatment should be suspended.
The Department believes that it is important to note that TRICARE is a program of medical benefits provided by the U.S. Government under public law to specified categories of individuals who are qualified for those benefits by virtue of their relationship to one of the seven Uniformed Services. In response to the public comments citing general challenges with plan disclosure requirements and problems with noncompliance and inconsistent application of NQTLs by issuers and plans subject to the MHPAEA, the Department stresses that TRICARE is a statutory entitlement program; it is not health insurance and it is not administered through issuers or plans. As addressed in greater detail in the supplementary information background section of the proposed rule, TRICARE is not a group health plan subject to the MHPA of 1996, the MHPAEA of 2008, or the Health Care Reconciliation Act of 2010. Unlike private insurers, TRICARE is a federal entitlement program of uniform benefits, as outlined in law and regulations, for eligible beneficiaries. Benefit design is dictated by federal statute and regulation, as are patient deductibles and cost-sharing, provider reimbursement, and the rules and procedures regarding quality and utilization review. Further, federal regulations at 32 CFR 199.10 set forth the policies and procedures for appealing decisions. Therefore, while the provisions of these acts served as a model for TRICARE in proposing changes to existing benefit coverage so as to reduce unnecessary administrative barriers to treatment and increase access to medically necessary mental health care consistent with TRICARE statutory authority, the Department does not believe it is necessary or appropriate to incorporate into the TRICARE regulation suggested enforcement provisions applicable to issuers and plans.
We would also like to respond to the specific comments and recommendations we received that suggested additional revisions to existing TRICARE regulatory provisions could be made to achieve greater alignment and parity with medical/surgical benefits. First, one commenter suggested that the preauthorization, utilization review and quality assurance requirements for mental health care at § 199.4(a)(11) and (12) constitute NQTLs and should be eliminated. The Department emphasizes that all health care services for which reimbursement is sought under TRICARE are subject to review for quality of care and appropriateness of utilization as required by statute, 10 U.S.C. 1079(n). TRICARE's Quality and Utilization Review Peer Review Organization Program at 32 CFR 199.15 prescribes the objectives, requirements and procedures for how TRICARE addresses quality assurance, reauthorization and other utilization review practices for all health care services, including medical and surgical care. With that said, the Department is committed to removing unnecessary quantitative and non-quantitative treatment limitations and simplifying our regulations where it makes sense. In re-reviewing the existing regulatory language in § 199.4(a)(11) and (12), we agree that the language is unnecessary and should be eliminated. With the remaining regulatory provisions that are applicable to all covered services, including both medical/surgical as well as mental health/SUD, there is no need to separately address quality and utilization review of mental health services. Therefore, within § 199.4, the parenthetical reference to utilization and quality review of mental health services in paragraph (a)(11) has been removed. Additionally, paragraph (a)(12) regarding utilization and quality review specifically for inpatient mental health and partial hospitalization has been removed and the paragraph reserved.
Additionally, the same commenter raised concerns that specific medical necessity criteria were included within the regulatory language under § 199.4 for mental health and SUD services while similar medical necessity criteria were not specified for medical/surgical services and settings. While the
Regarding comments that the Department set forth more elaborate descriptions and requirements for mental health institutional providers than for medical/surgical settings, a major objective of this rule has been to achieve significant streamlining of the descriptions and requirements for TRICARE authorization of institutional mental health care providers under §§ 199.6(b)(4)(vii) (RTCs), 199.6(b)(4)(xii) (PHPs), and 199.6(b)(4)(xiv) (SUDRFs) and we believe we have achieved that objective. The proposed revisions which are finalized in this rule have eliminated a large portion of the existing descriptions and requirements for existing mental health/SUD institutional providers. For each type of provider, the amended regulation includes a definition/general description of the type of institutional provider and eligibility requirements including licensing, accreditation, a written participation agreement and adherence to general TRICARE requirements. We have eliminated the elaborate descriptions that are contained in the existing regulations regarding such things as the organization of the facility and specific qualifications of the governing body (including the facility's Chief Executive Officer, Clinical Director, Medical Director and Medical or professional staff organization), staff composition, staff qualifications, admission process, assessments, treatment planning, discharge and transition planning, standards for physical plant and environment and a variety of other requirements that we believe are more appropriately satisfied through a national accreditation process. Similarly, we have also eliminated the requirements regarding capacity (30 percent) and length of time licensed and at full operational status (6 months) for OTPs, RTCs, PHPs, IOPs, and SUDRFs.
Furthermore, we would note the general requirement in § 199.6(a)(8)(i) that all institutional providers must be participating providers under TRICARE. Hospitals (whether providing medical/surgical and/or mental health/SUD care) that are certified and participating under Medicare are deemed to meet TRICARE requirements and are not required to request TRICARE approval formally. (See § 199.6(b)(3).) Section 199.6 lists a variety of additional institutional providers, some of the medical/surgical variety (including, for example, skilled nursing facilities, freestanding ambulatory surgery centers, birthing centers, hospice programs, and home health agencies) and others that are mental health and SUD providers, which require specific approval to become TRICARE authorized institutional providers.
With respect to comments about specific requirements for inclusion in participation agreements, all institutional providers are required, under § 199.6(8)(i)(A), to be a participating provider under TRICARE, and the general provisions that must be included in the agreement are outlined in regulation at § 199.6(a)(13) and are equally applicable to medical/surgical and mental health/SUD institutional providers. In general, we believe the specific requirements outlined in § 199.6(b) are reflective of the general participation agreement requirements and simply tailored to the particular type of provider (so for instance, when requiring that the participating provider agree to accept the determined allowable amount, the regulatory provisions cross reference to the applicable reimbursement methodology for that type of provider). Again, we have sought to balance the competing interests of streamlining our regulations to the extent practicable with ease of reference for the reader, coupled with our commitment to ensuring transparency in program requirements. Further, these participation agreements ensure providers accept assignment on TRICARE claims, thereby protecting our beneficiaries from financial liability above their applicable deductibles and cost-shares, and ensure compliance with applicable program requirements in support of the provision of safe, quality care to our beneficiaries.
Additionally, while we wanted to address the general mental health parity comments here, several of the specific requirements for mental health and SUD institutional providers contained in § 199.6 and referenced in public comments are more appropriately addressed below in the following sections.
Surgical coverage of gender dysphoria was not included in the proposed rule, is not included in this final rule, and remains prohibited by statute at 10 U.S.C. 1079(a)(11). Several commenters argued the rule did not go far enough and others suggested the Department reconsider including coverage for transgender surgeries. Several argued the statutory exclusion was otherwise not applicable or ambiguous, must be interpreted in accordance with modern medical science and contemporary standards of care, and thus should not be read to exclude medically necessary surgical care to treat gender dysphoria. The pertinent statutory provision (10 U.S.C. 1079(a)(11)) states: “Surgery which improves physical appearance but is not expected to significantly restore functions (including mammary augmentation, face lifts, and sex gender changes) may not be provided. . . .” The statute lists three exceptions—breast reconstructive surgery following a mastectomy, reconstructive surgery to correct serious deformities caused by congenital anomalies or accidental injuries, and neoplastic surgery. Some commenters believed that DoD could disregard the listing of “sex gender changes” in the parenthetical examples of surgery “which improves physical appearance but is not expected to significantly restore functions” because it is contrary to modern medical assessment and because they believe there is Supreme Court precedent
3. Provisions of the Final Rule. The final rule is consistent with the proposed rule except that sections making specific reference to mental health inpatient and partial hospitalization utilization review, quality assurance, and reauthorization requirements have been removed at § 199.4(a)(11) and (12).
1. Provisions of the Proposed Rule. Following the recent repeal of statutory authority for separate beneficiary financial liability for mental health benefits, the rule eliminates any differential in cost-sharing between mental health and SUD benefits and medical/surgical benefits. The regulatory changes to 32 CFR 199.4(f) and 32 CFR 199.18 will reduce financial barriers to both outpatient and inpatient mental health and SUD benefits while, consistent with statutory requirements, minimize out-of-pocket risk for those beneficiaries.
With respect to TRICARE Prime co-payments, active duty family members (ADFMs) enrolled in TRICARE Prime will continue to pay no copayment for inpatient or outpatient services. Retirees and all other non-active duty dependents enrolled in Prime will see the following changes:
• The co-pay for individual outpatient mental health visits will be reduced from $25 to $12.
• The co-pay for group outpatient mental health visits will be reduced from $17 to $12.
• The per diem charge of $40 for mental health and SUD inpatient admissions will be reduced to the non-mental health per diem rate of $11, with a minimum charge of $25 per admission.
Regarding TRICARE Standard cost-sharing, ADFMs utilizing TRICARE Standard/Extra previously paid a higher per diem for mental health inpatient care than for other inpatient stays. ADFMs will see the following change:
• The per diem cost-share for inpatient mental health services will be reduced from $20/day to the daily charge ($18/day for FY16) that would have been charged had the inpatient care been provided in a Uniformed Services hospital.
Retirees and their dependents who are not enrolled in Prime but use non-network providers (Standard) for mental health care are generally required to pay 25% of the allowable charges for inpatient care, and this will not change. Retirees and their dependents using Standard and Extra are currently responsible for their outpatient deductible and outpatient cost-sharing of 25% (Standard)/20% (Extra) of the CHAMPUS-determined allowable costs. This also will not change.
Cost-sharing for partial hospitalization programs (PHPs) will change from inpatient to outpatient to more accurately reflect the services being rendered, ensure consistency with the applicable statutes governing cost-sharing, and to further ensure parity between the surgical/medical and mental health benefit. Congress revoked the statutory authority granted to the Secretary to establish different cost-shares for mental health care. These factors provided the impetus for adoption of outpatient cost-sharing for
2. Analysis of Major Public Comments. Numerous commenters agreed that differential cost-sharing requirements have served as a further disincentive for individuals seeking treatment, and agree that aligning cost-sharing requirements will reduce financial barriers for consumers on both inpatient and outpatient mental health and SUD benefits while minimizing out-of-pocket risks for beneficiaries. One commenter noted concern regarding having retirees and their dependents pay higher copays, given high unemployment and homelessness rates among Veterans.
3. Provisions of the Final Rule. The final rule is consistent with the proposed rule, and no substantive changes were made regarding beneficiary cost-sharing for mental health and SUD benefits.
1. Provisions of the Proposed Rule. Mental health and SUD IOP services were not previously identified as separate levels of care from partial hospitalization in TRICARE regulations. Although hospital-based and free-standing facilities that are TRICARE authorized to offer partial hospitalization services can provide less intensive IOP, covered at the half-day partial hospitalization rate, the previous TRICARE certification requirements for these programs restricted the typical mental health or SUD IOP from being recognized as a distinct covered benefit and TRICARE-authorized institutional provider type. SUD IOPs offer a validated level of care endorsed by ASAM, and the provision of mental health and SUD IOP services will better accommodate patients who require step-down services from an inpatient stay or a PHP. Explicit authorization of IOP is also anticipated to expand the number of TRICARE participating providers and improve access to care. IOP care institutional providers will be required to be accredited by an accrediting body approved by the Director, Defense Health Agency, and meet the requirements outlined in 32 CFR 199.6(b)(4)(xviii) to become TRICARE authorized.
2. Analysis of Major Public Comments. Several national organizations and many commenters expressed strong support for the authorization of new services for SUD care outside of SUDRF settings, citing the need for additional treatment options consistent with the full range of the continuum of care. One national organization also requested clarification regarding application processes and contract amendments for existing TRICARE providers who serve patients in their PHP services but who would want to expand their services to include the new IOP level of care.
3. Provisions of the Final Rule. The final rule is consistent with the proposed rule, and no substantive changes were made with respect to Intensive Outpatient (IOP) care for Psychiatric and Substance Use Disorders.
1. Provisions of the Proposed Rule. This rule expands treatment of opioid use disorder, with the provision of medication assisted treatment (MAT), through both TRICARE authorized institutional and individual providers. In addition to SUD IOPs, this rule allows TRICARE coverage of opioid treatment programs (OTPs), with the inclusion of a definition of OTPs in 32 CFR 199.2 and the requirements for OTPs to become TRICARE authorized institutional providers outlined in 32
2. Analysis of Major Public Comments. A number of commenters, along with multiple national organizations sent comments in support of the addition of benefit coverage to include opioid treatment programs, noting opioid addiction is a significant national problem. One commenter stated that individuals with opioid use disorder should not be provided any form of treatment as this represented a waste of government funds. One national organization commented that there are actually approximately 1400 OTPs in existence. Also, several commenters requested that TRICARE clarify capacity requirements for OTPs and include the right to request a waiver to this requirement. One commenter queried how and if quality tracking of the newly authorized providers will be performed and by which department.
3. Provisions of the Final Rule. The final rule is consistent with the proposed rule and the only substantive change made regarding provisions for the treatment of opioid use disorder was removal of an explicit capacity requirement for OTPs contained in § 199.6(b)(xix)(A)(
1. Provisions of the Proposed Rule. By previous regulation, reimbursement for office-based SUD outpatient treatment provided by TRICARE authorized individual mental health providers, as specified in 32 CFR 199.6, was not permitted. Such outpatient SUD treatment services were only authorized when provided by a TRICARE approved institutional provider (
This rule covers services of TRICARE-authorized individual mental health providers, practicing within the scope of their licensure or certification, who offer medically or psychologically necessary SUD treatment services (including outpatient and family therapy) outside of a SUDRF, to include MAT and treatment of opioid use disorder by a TRICARE authorized physician delivering OBOT on an outpatient basis.
2. Analysis of Major Public Comments. Again, national organizations and many commenters expressed strong support for the authorization of new services for SUD care outside of SUDRF settings, citing the need for additional treatment options consistent with the full range of the continuum of care and appropriate access to evidence-based care. Eight commenters requested additional SUD individual professional provider types be recognized by TRICARE as authorized to provide services. One commenter also noted that she was unable to provide services as she does not hold citizenship but suggested volunteers be allowed to provide services to beneficiaries.
TRICARE appreciates the contributions of peer counselors, and other non-medical individuals who desire to provide SUD and mental health services to beneficiaries as well as the skills and professional experience of the various substance use disorder and mental health providers in the field. We appreciate these comments but consider them beyond the scope of this rule as we did not propose any changes to the existing regulatory requirements for individual professional providers of care. TRICARE maintains a robust selection of TRICARE eligible providers by relying on currently recognized provider types. Qualified mental health providers are: Psychiatrists or other physicians; clinical psychologists, certified psychiatric nurse specialists, certified clinical social workers, certified marriage and family therapists, TRICARE certified mental health counselors, pastoral counselors under a physician's supervision, and supervised mental health counselors under a physician's supervision. However, we will review all recommendations provided and consider them in the development of future policy. Additionally, the acceptance of volunteer services is beyond the scope of our proposed rule which addresses the cost-sharing of medically necessary services and supplies required in the diagnosis and treatment of an injury, illness or disease when rendered by a TRICARE authorized provider.
3. Provisions of the Final Rule. The final rule is consistent with the proposed rule, and no substantive changes were made to provisions regarding TRICARE coverage of outpatient SUD treatment by individual professional providers.
1. Provisions of the Proposed Rule. This rule simplifies the regulation to account for existing industry-wide accepted accreditation standards for TRICARE institutional providers of mental health care, including RTCs, freestanding PHPs, and freestanding SUDRFs. Requirements for TRICARE certification beyond industry-accepted accreditation, while once considered necessary to ensure quality and safety, eventually proved to be unnecessarily restrictive and inconsistent with current institutional provider standards and organization. Specifically, the final rule streamlines procedures and requirements for SUDRFs, RTCs, PHPs, IOPs and OTPs to qualify as TRICARE
Furthermore, given that there are now a growing number of accrediting bodies established for institutional providers of mental health care and industry standards that are widely accepted, the final rule eliminates by name references to specific accrediting bodies (
2. Analysis of Major Public Comments. Multiple national organizations and individuals noted strong support for changes in accreditation requirements as part of the streamlining of the process for TRICARE approval of institutional providers. Many of these comments sought to advocate for approval of the Commission on Accreditation of Rehabilitation Facilities as a TRICARE-approved accrediting organization. Also, a number of commenters sought to advocate for the Council on Accreditation, and several others advocated for Outdoor Behavioral Healthcare Accreditation, to be recognized as approved accrediting organizations. One commenter noted the positive impact this will have on community based providers, including enhancing local economies. Another commenter requested that the Department open TRICARE networks to any willing and able provider with appropriate credentials, indicating that paneling need not be made any more complicated. One commenter specifically discussed the circumstances under which there were no network providers within one hour of place of residence to provide care. One commenter requested the Department clearly address coverage for eating disorder programs. Another commenter expressed concern that DoD should not propose new regulations that would make it difficult for providers to participate in TRICARE.
Concurrently, one national organization expressed concern that streamlining of accreditation requirements would negatively affect the quality of care received by beneficiaries, warned about the failure of accreditation agencies to ensure quality outcomes, and encouraged the Department to prioritize not only access but quality. That organization also suggested that TRICARE ensure public transparency and accountability by publishing inspection results of mental health facilities. The commenter also suggested that facilities with recent serious incidents should be subject to frequent reviews and increased reporting requirements around patient safety and quality measures. It was also suggested that TRICARE enforce current staffing standards for RTCs according to acuity and needs of patients, not only census. One organization questioned the Department's intent to rely primarily on national accreditation for authorization of RTCs and erroneously stated that the Department requires on-site inspection before a participation agreement is signed. They requested additional specific information and clarification concerning what degree TRICARE would continue to impose an additional layer of standards and processes and questioned how this would be implemented. Another commenter acknowledged TRICARE's right to conduct on-site surveys but indicated their hope was that on-site surveys would be done only in extraordinary circumstances and that the commitment to reliance on national accreditation would be sufficient in virtually every case. Finally, some commenters strongly objected to the requirement that participating institutional providers agree to permit “full access to patients” including interviewing patients during on-site quality assurance or accounting audits be granted.
We strongly believe that relying primarily on accreditation by a national accrediting body will not create an additional layer of standards and processes, nor will it reduce the overall quality of care beneficiaries receive. Over two decades ago, in the Final Rule: “Civilian Health and Medical Program of the Uniformed Services (CHAMPUS): Mental Health Services,” as published in 60 FR 12419, March 7, 1995, standards were developed to address identified problems of quality of care, fraud, and abuse in RTCs, SUDRFs, and PHPs at the time. There are now a number of industry-accepted accrediting bodies with mental health facility standards that meet or exceed the current TRICARE-established standards. Streamlining procedures to qualify as a TRICARE authorized institutional provider will not only increase access to approved care, but also decrease the overall cost to both the Department and institutional providers of certifying duplicative and now unnecessary quality standards first implemented by the 1995 Final Rule. With respect to eating disorders in particular, treatment services rendered in TRICARE-authorized free-standing or hospital facilities are covered as they are for other mental health and SUD conditions. We believe this final rule will expand treatment options for the treatment of eating disorders with the inclusion of IOPs as well as the streamlining of requirements for institutional providers to become TRICARE authorized providers.
We also appreciate the public comments we received regarding quality of care and the need for ongoing oversight. TRICARE remains committed to provision of high quality mental health and SUD services and will continue to ensure high levels of quality care while expanding access. While the
This commenter also recommended that the Department delete the first sentence in § 199.6(b)(4)(vii)(C)(
3. Provisions of the Final Rule. The final rule is consistent with the proposed rule, and no substantive changes were made to provisions regarding streamlined requirements for institutional mental health and SUD providers to become TRICARE authorized providers.
1. Provisions of the Proposed Rule. Under current regulatory provisions [32 CFR 199.14(a)(2)(ix)(C)], the maximum per diem payment amount for a full-day partial hospitalization program (minimum of six hours) is 40 percent of the average per diem amount per case established under the TRICARE mental health per diem reimbursement system for both high and low volume psychiatric hospitals and units.
Likewise, PHPs less than six hours (with a minimum of three hours) were paid a per diem rate at 75 percent of the rate for a full-day program. In analysis of the reimbursement methodology to be used for reimbursement of IOPs, it became apparent that the step-down in intensity, frequency and duration of treatment designated as half-day PHPs, were in fact, intensive outpatient services provided within a PHP authorized setting. While there is some variability in the intensity, frequency and duration of treatment under both programs (that is, less than six hours per day with a minimum of three hours for half-day PHPs; and two to five times per week, two to five hours per day for IOPs), it appears that both the services rendered and the professional provider categories responsible for providing the services are quite similar. As a result of this observation/analysis, the IOP designation will be used in lieu of half-day PHP for treatment of less than six hours per day—with a minimum of two hours per day—rendered in a PHP authorized setting. While the minimum hours have been reduced from three to two hours per day for coverage/reimbursement, they are still within the acceptable range for IOP services typically provided in a PHP. Since intensive outpatient services can be provided in either a PHP or newly authorized IOP setting, and IOP services are essentially the same as half- day PHP services, it is only logical that IOP per diems be set at 75 percent of the full-day PHP per diem. This would be the case regardless of whether the IOP services were provided in a PHP or IOP.
2. Analysis of Major Public Comments. Two public commenters indicated that while the stated rationale for reimbursement of newly recognized mental health and SUD IOPs and OTPs seems reasonable, TRICARE must continue to reevaluate reimbursement over time in order to achieve the goal of increasing access to care. The same commenters also indicated that the all-inclusive per-diem payment rates appear to provider a predictable payment methodology, which makes it more possible for organizations to commit to providing services to TRICARE beneficiaries. Another commenter indicated they would support reasonable reimbursement rates if they at least meet or exceed the Medicare level of reimbursement for comparable interventions and patient service days, opining that reasonable reimbursement rates will encourage institutional providers to offer these services if they can do so without operating at a deficit. We appreciate these comments and agree. Further, as discussed at greater length in the proposed rule, by law, TRICARE reimbursement shall be determined, to the extent practicable, in accordance with the same rules as apply to payments to providers of services of the same type under Medicare. When Medicare has no established reimbursement methodology (
3. Provisions of the Final Rule. The final rule is consistent with the proposed rule, and no substantive changes were made to provisions regarding such IOP reimbursement.
1. Provisions of the Proposed Rule. As defined in this rule, OTPs are outpatient settings for opioid treatment that use a therapeutic maintenance drug for a drug addiction when medically or psychologically necessary and appropriate for the medical care of a beneficiary undergoing supervised treatment for a SUD. The program includes an initial assessment, along with integrated psychosocial and medical treatment and support services. Since OTPs are individually tailored programs of medication therapy, separate reimbursement methodologies are established based on the particular medication being administered for treatment of the SUD. By far the most common medication used in OTPs is methadone. Methadone care in OTPs includes initial medical intake/assessment, urinalysis and drug dispensing and screening as part of the bundled rate, as well as ongoing counseling services. Based on a preliminary review of industry billing practices, the weekly bundled per diem for administration of methadone will include a daily drug cost of $3, along with a $15 per day cost for integrated psychosocial and medical support services. The daily projected per diem costs ($18/day) will be converted to a weekly per diem rate of $126 ($18/day × 7 days) and billed once a week to TRICARE using the Healthcare Common Procedure Coding System (HCPCS) code H0020, “Alcohol and/or drug services; methadone administration and/or service.” The bundled per diem rate is how Medicaid and other third-party payers typically reimburse for methadone treatment in OTPs. The methadone rate for OTPs will be updated annually by the Medicare update factor used for other mental health care services rendered (
While the other two medications (buprenorphine and naltrexone) are more likely to be prescribed and administered in an OBOT setting, reimbursement methodologies for OTPs are being established for both medications to allow OTPs the full range of medications currently available for treatment of SUDs. Since the reimbursement of buprenorphine and naltrexone administered in OTPs are not conducive to the bundled per diem methodology due to variations in dosage and frequency of the drug and the non-drug services (
Naltrexone, unlike methadone and buprenorphine, is not an agonist or partial agonist, but an inhibitor designed to block the brain's opiate receptors, diminishing the urges and cravings for alcohol, heroin, and prescription painkillers such as oxycodone. Due to the extreme cost of injectable naltrexone and the fact that it is only administered once a month, the drug, its administration fee, and ongoing counseling will be paid separately on a fee-for-service basis. OTPs will bill TRICARE using HCPCS code H0047 for counseling and other services. Prevailing rates will be established for drug related services (
2. Analysis of Major Public Comments. A number of commenters indicated that they believed the rates proposed for OTPs' services are near market rates and are acceptable. One commenter advised the Department of Defense to evaluate existing state Medicaid reimbursement models for the use of buprenorphine in OTPs, the most recent being through the New York State Office of Alcoholism and Substance Abuse services. The commenter felt that such references would provide additional guidance to the Department in establishing appropriate buprenorphine only rates for TRICARE beneficiaries.
One commenter felt that the proposed revisions assumed that patients being treated with buprenorphine in OTPs, once stabilized, would only visit OTPs twice a week. The commenter encouraged the Department to consider an induction rate for patients being treated with buprenorphine prior to stabilization requiring more than two visits per week-in some cases requiring daily visits to OTPs to achieve stabilization. Another commenter supported the rationale for a bundled weekly rate, but expressed concern with the projected weekly per diem price of $126, especially for New York State providers, would not be financially sustainable.
This final rule does not set a limit of two visits per week for medication assisted treatment, and in fact, all existing quantitative limitations (regarding number of authorized visits, etc.) have been removed from the regulation. A separate induction rate is not required since buprenorphine treatment programs are reimbursed on a fee-for-services basis;
We appreciate the commenter's support for the bundled weekly rate for
3. Provisions of the Final Rule. The final rule is consistent with the proposed rule, and no substantive changes were made to provisions regarding opioid treatment program reimbursement and cost-sharing.
1. Provisions of the Proposed Rule. Under current regulatory provisions [32 CFR 199.4(f)(3)(ii)(B) and 32 CFR 199.14(a)(2)(iv)(C)(
2. Analysis of Major Public Comments. No public comments were received relating to this section of the rule.
3. Provisions of the Final Rule. The final rule is consistent with the proposed rule, and no substantive changes were made to provisions regarding removal of the
1. Provisions of the Proposed Rule. There are a number of additional proposed revisions that are more technical and administrative in nature that we would like to highlight here to ensure the public is made aware of these changes and their purpose. Within 32 CFR 199.2, the definition of “adequate medical documentation, mental health records” is revised to eliminate specific reference to Joint Commission standards and instead reference “standards of an accrediting organization approved by the Director” consistent with the changes in accreditation requirements as part of the streamlining of TRICARE approval of institutional providers. The definition of “mental disorder” has been revised to include SUD. The definition of “Director” has been revised to incorporate the Director of the Defense Health Agency, consistent with DoD's current organizational structure. Additionally, throughout the revisions, the term “Director” has been substituted for all other terms such as “Director, CHAMPUS” and “Director, TRICARE Management Activity.” A definition of “qualified mental health provider” has been added for easy reference (as it was previously discussed in 32 CFR 199.4 but not specifically defined); and, the definition of “Consultation” has been amended to include qualified mental health providers. Additionally, the elimination of quantitative limitations has also necessitated a number of revisions to other sections of the regulation that referenced these limits, including 32 CFR 199.4(e)(2), 32 CFR 199.7(e)(2) and 32 CFR 199.15(a)(6). Also, 32 CFR 199.14(a)(2)(iv)(C)(
2. Analysis of Major Public Comments. One commenter recommended that the definition of Case Management be revised to include the following phrase “including mental health and substance use disorder needs” and not just mental health needs. We have no objections to this proposed change and have amended the definition accordingly. Another commenter noted that the current definition of “mental disorder” in § 199.2 should be updated to reference the current version of the Diagnostic and Statistical Manual (DSM) to avoid confusion and correlate the definition with current practice definitions. We would note that the proposed rule removed the referenced definition of “mental disorder”, and replaced it with a definition of “mental disorder, to include substance use disorder.” We would also note that the newly proposed definition simply references the current edition of the DSM so as to avoid the need to update the regulatory definition every time the DSM is updated.
3. Provisions of the Final Rule. The final rule is consistent with the proposed rule, with the addition of the above recommended change to the definition of case management.
In addition to the four major areas of the proposed rule in which we received comments, we received a number of general comments that either do not apply to the major provision categories of the final rule outlined above or apply
While not specifically addressed in this final rule, the Department appreciates the comment regarding exploration of the use of behavioral health integration programs and generally supports these concepts.
Overall, the final rule is consistent with the proposed rule. Several important changes are noted, in that we have amended the final rule to: Remove the definition of “Case Manager” from § 199.2; remove the parenthetical reference to utilization and quality review of mental health services in § 199.4(a)(11) and remove and reserve § 199.4(a)(12) regarding utilization and quality review specifically for inpatient mental health and partial hospitalization; ensure medically necessary treatment coverage for dependents under age thirteen for IOP and PHP care; clarify in § 199.4(b)(9)(vi) that while family therapy is a required component of PHP services, an exception may be made when the Clinical Director, or designee, determines that family therapy is clinically contraindicated for a particular patient; and, remove the 30 percent capacity and full operational status for a period of at least 6 months requirements for TRICARE authorization of OTPs, IOPs, RTCs, PHPs, and SUDRFs.
Executive Orders 13563 and 12866 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, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Subsequently, the Department completed an Independent Government Cost Estimate and the results are referenced in C. Cost and Benefits. This rule has been designated “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, this final rule has been reviewed by the Office of Management and Budget (OMB).
Under the Congressional Review Act, a major rule may not take effect until at least 60 days after submission to Congress of a report regarding the rule. A major rule is one that would have an annual effect on the economy of $100 million or more or have certain other impacts. This final rule is not a major rule under the Congressional Review Act.
The Regulatory Flexibility Act requires that each Federal agency analyze options for regulatory relief of small businesses if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. This final rule is not an economically significant regulatory action, and it will not have a significant impact on a substantial number of small entities. Therefore, this final rule is not subject to the requirements of the RFA.
Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any one year of $100 million in 1995 dollars, updated annually for inflation. That threshold level is currently approximately $140 million. This rule will not mandate any requirements for state, local, or tribal governments or the private sector.
This rulemaking does not contain a “collection of information” requirement, and will not impose additional information collection requirements on the public under Public Law 96–511, “Paperwork Reduction Act” (44 U.S.C. chapter 35).
This final rule has been examined for its impact under E.O. 13132, and it does not contain policies that have federalism implications that would have substantial direct effects on the States, on the relationship between the national Government and the States, or on the distribution of powers and responsibilities among the various levels of Government. Therefore, consultation with State and local officials is not required.
Claims, Dental health, Health care, Health insurance, Individuals with disabilities, Mental health, Mental health parity, Military personnel, Substance use disorder treatment.
For the reasons stated in the preamble, the Department of Defense amends 32 CFR part 199 as set forth below:
5 U.S.C. 301; 10 U.S.C. chapter 55.
The revisions and additions read as follows:
(b) * * *
Staff consultations required by rules and regulations of the medical staff of a hospital or other institutional provider do not qualify as consultation.
The revisions and additions read as follows:
(a) * * *
(1)(i)
(11) Quality and Utilization Review Peer Review Organization program. All benefits under the CHAMPUS program are subject to review under the CHAMPUS Quality and Utilization Review Peer Review Organization program pursuant to Sec 199.15.
(14
(b) * * *
(1) * * *
(vi)
(B)
(2) * * *
(xix)
(xx)
(3) * * *
(xvi)
(xvii)
(7)
(8)
(ii)
(A) The patient has been diagnosed with a substance use disorder.
(B) The patient is experiencing withdrawal symptoms or potential symptoms severe enough to require inpatient care and physician management, or who have less severe symptoms that require 24-hour inpatient monitoring or the patient's addiction-related symptoms, or concomitant physical and emotional/behavioral problems reflect persistent dysfunction in several major life areas.
(iii)
(A)
(B)
(C)
(D)
(iv)
(v)
(vi)
(9)
(ii)
(A) The patient is suffering significant impairment from a mental disorder (as defined in § 199.2) which interferes with age appropriate functioning or the patient is in need of rehabilitative services for the management of withdrawal symptoms from alcohol, sedative-hypnotics, opioids, or stimulants that require medically-monitored ambulatory detoxification, with direct access to medical services and clinically intensive programming of rehabilitative care based on individual treatment plans.
(B) The patient is unable to maintain himself or herself in the community, with appropriate support, at a sufficient level of functioning to permit an adequate course of therapy exclusively on an outpatient basis, to include outpatient treatment program, outpatient office visits, or intensive outpatient services (but is able, with appropriate support, to maintain a basic level of functioning to permit partial hospitalization services and presents no substantial imminent risk of harm to self or others). These patients require medical support; however, they do not require a 24-hour medical environment.
(C) The patient is in need of crisis stabilization, acute symptom reduction, treatment of partially stabilized mental health disorders, or services as a transition from an inpatient program.
(D) The admission into the partial hospitalization program is based on the development of an individualized diagnosis and treatment plan expected to be effective for that patient and permit treatment at a less intensive level.
(iii)
(A)
(B)
(C)
(iv)
(v)
(vi)
(vii)
(viii)
(10)
(ii)
(A) The patient is suffering significant impairment from a mental disorder, to include a substance use disorder (as defined in § 199.2), which interferes with age appropriate functioning. Patients receiving a higher intensity of treatment may be experiencing moderate to severe instability, exacerbation of severe/persistent disorder, or dangerousness with some risk of confinement. Patients receiving a lower intensity of treatment may be experiencing mild instability with limited dangerousness and low risk for confinement.
(B) The patient is unable to maintain himself or herself in the community, with appropriate support, at a sufficient level of functioning to permit an adequate course of therapy exclusively in an outpatient treatment program or an outpatient office basis (but is able, with appropriate support, to maintain a basic level of functioning to permit a level of intensive outpatient treatment and presents no substantial imminent risk of harm to self or others).
(C) The patient is in need of stabilization, symptom reduction, and prevention of relapse for chronic mental illness. The goal of maintenance of his or her functioning within the community cannot be met by outpatient office visits, but requires active treatment in a stable, staff-supported environment;
(D) The admission into the intensive outpatient program is based on the development of an individualized diagnosis and treatment plan expected to be effective for that patient and permit treatment at a less intensive level.
(iii)
(A)
(B)
(iv)
(v)
(vi)
(11)
(ii) Criteria for determining medical or psychological necessity of an opioid treatment program are set forth in 42 CFR part 8.
(iii)
(A)
(B)
(iv)
(c) * * *
(3) * * *
(ix)
(A)
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(B)
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(C)
(D)
(e) * * *
(8) * * *
(ii) * * *
(A) For purposes of CHAMPUS, dental congenital anomalies such as absent tooth buds or malocclusion specifically are excluded.
(D) Any procedures related to sex gender changes, except as provided in paragraph (g)(29) of this section, are excluded.
(iv) * * *
(Q)) Penile implant procedure for psychological impotency or as related to sex gender changes, as prohibited by section 1079 of title 10, United States Code.
(R) Insertion of prosthetic testicles as related to sex gender changes, as prohibited by section 1079 of title 10, United States Code.
(11)
(13) * * *
(i) * * *
(B)
(f) * * *
(2) * * *
(ii)
(3) * * *
(ii)
(g) * * *
(1)
(29)
(73)
(b) * * *
(4) * * *
(iv) * * *
(B) In order for the services of a psychiatric hospital to be covered, the hospital shall comply with the provisions outlined in paragraph (b)(4)(i) of this section. All psychiatric hospitals shall be accredited under an accrediting organization approved by the Director, in order for their services to be cost-shared under CHAMPUS. In the case of those psychiatric hospitals that are not accredited because they have not been in operation a sufficient period of time to be eligible to request an accreditation survey, the Director, or a designee, may grant temporary approval if the hospital is certified and participating under Title XVIII of the Social Security Act (Medicare, Part A). This temporary approval expires 12 months from the date on which the psychiatric hospital first becomes eligible to request an accreditation survey by an accrediting organization approved by the Director.
(D) Although psychiatric hospitals are accredited under an accrediting organization approved by Director, their medical records must be maintained in accordance with accrediting organization's current standards manual, along with the requirements set forth in § 199.7(b)(3). The hospital is responsible for assuring that patient services and all treatment are accurately documented and completed in a timely manner.
(vii)
(A)
(
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(
(
(
(
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(
(B) Participation agreement requirements. In addition to other requirements set forth in this paragraph (b)(4)(vii), for the services of an RTC to be authorized, the RTC shall have entered into a Participation Agreement with OCHAMPUS. The period of a participation agreement shall be specified in the agreement, and will generally be for not more than five years. In addition to review of a facility's application and supporting documentation, an on-site inspection by OCHAMPUS authorized personnel may be required prior to signing a Participation Agreement. Retroactive approval is not given. In addition, the Participation Agreement shall include provisions that the RTC shall, at a minimum:
(
(
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(
(
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(C)
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(xii)
(A)
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(B)
(
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(
(
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(C)
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(
(xiv)
(A)
(
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(B)
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(C) Other requirements applicable to substance use disorder rehabilitation facilities.
(
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(xviii)
(A)
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(B)
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(C) Other requirements applicable to Intensive Outpatient Programs (IOP). (
(
(
(xix)
(A)
(
(
(
(B) Participation agreement requirements. In addition to other requirements set forth in this paragraph (b)(4)(xix), in order for the services of OTPs to be authorized, OTPs shall have entered into a Participation Agreement with TRICARE. A single consolidated participation agreement is acceptable for all units of a TRICARE authorized facility. The period of a Participation Agreement shall be specified in the agreement, and will generally be for not more than five years. In addition to
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(C)
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(a) * * *
(2) * * *
(iv) * * *
(C) * * *
(
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(ix)
(1)
(2)
(3)
(
(ii)
(iii)
(B
(d) * * *
(2) * * *
(ii) The per visit fee provided in paragraph (d)(2)(i) of this section shall also apply to partial hospitalization services, intensive outpatient treatment, and opioid treatment program services. The per visit fee shall be applied on a per day basis on days services are received, with the exception of opioid treatment program services reimbursed in accordance with § 199.14(a)(2)(ix)(A)(
(e) * * *
(2)
(3)