Vol. 85 Friday, No. 187 September 25, 2020 Pages 60341–60682

Vol. 85 Friday, No. 187 September 25, 2020

Pages 60341–60682

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 85, No. 187

Friday, September 25, 2020

Agriculture Department Commodity Futures Trading Commission See Forest Service RULES NOTICES Prohibitions and Restrictions on Proprietary Trading and Agency Information Collection Activities; Proposals, Certain Interests in, and Relationships With, Hedge Submissions, and Approvals, 60416–60417 Funds and Private Equity Funds; Correction, 60355– 60356 Air Force Department NOTICES NOTICES Agency Information Collection Activities; Proposals, Environmental Impact Statements; Availability, etc.: Submissions, and Approvals, 60444–60445 Ground Based Strategic Deterrent Deployment and Minuteman III Decommissioning and Disposal, Comptroller of the Currency 60446–60447 RULES Prohibitions and Restrictions on Proprietary Trading and Alcohol and Tobacco Tax and Trade Bureau Certain Interests in, and Relationships With, Hedge RULES Funds and Private Equity Funds; Correction, 60355– Establishment of the Candy Mountain Viticultural Area and 60356 Modification of the Yakima Valley Viticultural Area, 60358–60362 Defense Department See Air Force Department Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES Education Department Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Agency Information Collection Activities; Proposals, Notification of Change of Mailing or Premise Address, Submissions, and Approvals, 60447–60448 60490–60491 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Census Bureau CARES Act, Recipient’s Funding Certification and Agreement (Institutional Aid), 60448 NOTICES Certification and Agreement for the ESSER Fund Agency Information Collection Activities; Proposals, Application, 60449 Submissions, and Approvals: Recipient’s Funding Certification and Agreement CARES Longitudinal Employer-Household Dynamics, 60418– Act, 60447 60419 Energy Department Centers for Medicare & Medicaid Services See Federal Energy Regulatory Commission NOTICES See National Nuclear Security Administration Agency Information Collection Activities; Proposals, PROPOSED RULES Submissions, and Approvals, 60469 Energy Conservation Program: Medicare Program: Energy Conservation Standards for Computer Room Air Approval of Application by the Community Health Conditioners and Air-Cooled, Three-Phase, Small Accreditation Partner for Initial CMS-Approval of Its Commercial Package Air Conditioning and Heating Home Infusion Therapy Accreditation Program, Equipment With a Cooling Capacity of Less Than 60469–60471 65,000 Btu/h, 60642–60677 NOTICES Coast Guard Agency Information Collection Activities; Proposals, RULES Submissions, and Approvals, 60450–60451 Safety Zones, Security Zones, and Special Local Agency Information Collection Activities; Proposals, Regulations: Submissions, and Approvals: 2020 Quarterly Listings, 60362–60363 Coordination of Federal Authorizations for Electric Transmission Facilities, 60449–60450 Commerce Department Application to Export Electric Energy: See Census Bureau Vitol, Inc., 60450 See Industry and Security Bureau See International Trade Administration Environmental Protection Agency See National Oceanic and Atmospheric Administration RULES NOTICES Amendment to an Exemption from the Requirement of a Agency Information Collection Activities; Proposals, Tolerance: Submissions, and Approvals: Aspergillus flavus NRRL 21882, 60368–60370 Small Business Innovation Research Program Application Exemption from the Requirement of a Tolerance: Cover Sheet, 60419–60420 Trichoderma asperellum, strain T34, 60366–60368

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Ocean Disposal: Request under Blanket Authorization: Designation of an Ocean Dredged Material Disposal Site Northwest Pipeline LLC, 60454–60455 for the Southern Maine, New Hampshire, and Northern Massachusetts Coastal Region, 60370–60383 Federal Reserve System Pesticide Tolerances: RULES Saflufenacil, 60363–60365 Prohibitions and Restrictions on Proprietary Trading and PROPOSED RULES Certain Interests in, and Relationships With, Hedge Air Quality State Implementation Plans; Approvals and Funds and Private Equity Funds; Correction, 60355– Promulgations: 60356 Texas; Clean Data Determination for the 2010 1-Hour NOTICES Primary Sulfur Dioxide National Ambient Air Formations of, Acquisitions by, and Mergers of Bank Quality Standard; Anderson and Freestone Counties Holding Companies, 60468–60469 and Titus County Nonattainment Areas, 60407–60413 Wisconsin; Volatile Organic Compounds Reasonably Food and Drug Administration Available Control Technology Requirements for NOTICES Lithographic Printing Facilities, 60413–60415 Guidance: NOTICES The Accreditation Scheme for Conformity Assessment Application for Emergency Exemption: Pilot Program, 60471–60474 Ortho-Phthalaldehyde, 60458–60459 Proposal To Withdraw Approval of Five Abbreviated New Certain New Chemicals: Drug Applications: Receipt and Status Information for August 2020, 60459– Lavipharm Laboratories, Inc., et al., 60474–60476 60464 Environmental Impact Statements; Availability, etc., 60458 Foreign Assets Control Office Final Toxic Substances Control Act Risk Evaluation: NOTICES Cyclic Aliphatic Bromide Cluster, 60456–60458 Blocking or Unblocking of Persons and Properties, 60518– Meetings: 60520 Children’s Health Protection Advisory Committee, 60456 Forest Service Pesticide Registration Review: NOTICES Draft Human Health and/or Ecological Risk Assessments Agency Information Collection Activities; Proposals, for Chlorpyrifos, 60455 Submissions, and Approvals: Federal Excess Personal Property and Firefighter Property Export-Import Bank Program Administration, 60417–60418 NOTICES Meetings; Sunshine Act, 60464 General Services Administration RULES Federal Aviation Administration Clarifying the Process For Meeting Federal Space Needs, RULES 60385 Airworthiness Directives: Federal Management Regulation: Bell Helicopter Textron Canada Limited Helicopters, Art in Architecture, 60383–60385 60356–60358 Health and Human Services Department Federal Communications Commission See Centers for Medicare & Medicaid Services NOTICES See Food and Drug Administration Agency Information Collection Activities; Proposals, See National Institutes of Health Submissions, and Approvals, 60464–60466 NOTICES Meetings: Federal Deposit Insurance Corporation Secretary’s Advisory Committee on Human Research RULES Protections, 60476 Prohibitions and Restrictions on Proprietary Trading and Certain Interests in, and Relationships With, Hedge Homeland Security Department Funds and Private Equity Funds; Correction, 60355– See Coast Guard 60356 See U.S. Customs and Border Protection PROPOSED RULES PROPOSED RULES Policy Regarding Minority Depository Institutions, 60402– Establishing a Fixed Time Period of Admission and an 60407 Extension of Stay Procedure for Nonimmigrant Removal of Transferred Office of Thrift Supervision Academic Students, Exchange Visitors, and Regulations Regarding Nondiscrimination Representatives of Foreign Information Media, 60526– Requirements, 60389–60402 60598 NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals, 60466–60468 Submissions, and Approvals: SAFECOM Membership Questionnaire, 60483–60484 Federal Energy Regulatory Commission NOTICES Industry and Security Bureau Combined Filings, 60452–60454 NOTICES Initial Market-Based Rate Filings Including Requests for Reopening of Comment Period: Blanket Section 204 Authorizations: National Security Investigation of Imports of Vanadium, Altamont Winds, LLC, 60452 60420–60421

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Interior Department National Institutes of Health See Land Management Bureau NOTICES See National Park Service Meetings: Eunice Kennedy Shriver National Institute of Child Internal Revenue Service Health and Human Development, 60477 National Center for Complementary and Integrative RULES Limitation on Deduction for Dividends Received from Health, 60477 National Institute of Diabetes and Digestive and Kidney Certain Foreign Corporations and Amounts Eligible for Diseases, 60478–60479 Section 954 Look-Through Exception, 60358 NOTICES National Institute of General Medical Sciences, 60478 Agency Information Collection Activities; Proposals, National Institute on Aging, 60477–60478 Submissions, and Approvals, 60521 National Nuclear Security Administration Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Agency Information Collection Activities; Proposals, Generic Clearance for the Collection of Qualitative Submissions, and Approvals, 60451–60452 Feedback on Agency Service Delivery, 60521–60522 National Oceanic and Atmospheric Administration International Trade Administration RULES NOTICES Fisheries of the Caribbean, Gulf of Mexico, and South Amended Dates for the Security Mission for Economic Atlantic: Prosperity in Central America; Reef Fish Fishery of the Gulf of Mexico; 2020 Red Correction, 60422 Snapper Private Angling Component Accountability Antidumping or Countervailing Duty Investigations, Orders, Measure in Federal Waters off Louisiana, 60385– or Reviews: 60386 Certain Steel Nails from the United Arab Emirates, Revised Reporting Requirements Due to Catastrophic 60422–60424 Conditions: Polyester Staple Fiber from the Republic of Korea, Federal Seafood Dealers and Individual Fishing Quota 60421–60422 Dealers in Portions of Alabama and Florida, 60386– 60388 NOTICES International Trade Commission Takes of Marine Mammals Incidental to Specified NOTICES Activities: Investigations; Determinations, Modifications, and Rulings, Marine Site Characterization Surveys off of etc.: Massachusetts, Rhode Island, Connecticut, New York Certain Botulinum Toxin Products, Processes for and New Jersey, 60424–60444 Manufacturing or Relating to Same and Certain Products Containing Same, 60489–60490 National Park Service NOTICES Justice Department Agency Information Collection Activities; Proposals, See Alcohol, Tobacco, Firearms, and Explosives Bureau Submissions, and Approvals: NOTICES Archeology Permit Applications and Reports, 60487 Agency Information Collection Activities; Proposals, Procedures for State, Tribal, and Local Government Submissions, and Approvals: Historic Preservation Programs, 60488 Electronic Submission Form for Requests for Corrective Action, Whistleblower Protection for Federal Bureau National Science Foundation of Investigation Employees, 60492 NOTICES Final Disposition Report, 60492–60493 Agency Information Collection Activities; Proposals, Proposed Consent Decree: Submissions, and Approvals: Resource Conservation and Recovery and CERCLA, 2021 National Survey of College Graduates, 60494–60495 60491–60492 Nuclear Regulatory Commission NOTICES Labor Department Knowledge and Abilities Catalog for Nuclear Power Plant See Wage and Hour Division Operators: Pressurized Water Reactors; Boiling Water Reactors, Land Management Bureau 60495 NOTICES Meetings: Plats of Survey: Advisory Committee on Reactor Safeguards, 60495–60496 Nevada, 60484–60485 Postal Regulatory Commission Realty Action: Recreation and Public Purposes Act Classification and NOTICES New Postal Products, 60496–60497 Conveyance, Wyoming, 60485–60486 Postal Service National Aeronautics and Space Administration NOTICES NOTICES International Product Change: Centennial Challenges Watts on the Moon Challenge Phase Competitive Multi-Service Commercial Contracts 1, 1, 60493–60494 60497

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Presidential Documents Meetings: PROCLAMATIONS Actions Taken; September 18, 2020, 60517–60518 Special Observances: Projects Approved for Consumptive Uses of Water, 60516– Death of Ruth Bader Ginsburg (Proc. 10081), 60345– 60517 60346 National Farm Safety and Health Week (Proc. 10079), Transportation Department 60341–60342 See Federal Aviation Administration National Gang Violence Prevention Week (Proc. 10080), 60343–60344 Treasury Department National Small Business Week (Proc. 10082), 60679– See Alcohol and Tobacco Tax and Trade Bureau 60682 See Comptroller of the Currency ADMINISTRATIVE ORDERS See Foreign Assets Control Office Global Fragility Act of 2019; Delegation of Functions and See Internal Revenue Service Authorities (Memorandum of September 4, 2020), 60349 U S International Development Finance Corporation International Atomic Energy Agency, Agreement With U.S. NOTICES for the Application of Safeguards; Delegation of Agency Information Collection Activities; Proposals, Authority To Submit to Congress Notifications and Submissions, and Approvals, 60445–60446 Explanations Specified in the Resolution of Advice and Consent to Ratification (Memorandum of September 2, U.S. Customs and Border Protection 2020), 60347 Narcotics and Drugs: NOTICES Major Drug Transit or Major Illicit Drug Producing Modification of Test Program Regarding Electronic Foreign Countries for Fiscal Year 2021 (Presidential Trade Zone Admission Applications, 60479–60483 Determination No. 2020–11 of September 16, 2020), 60351–60353 Veterans Affairs Department NOTICES Securities and Exchange Commission Agency Information Collection Activities; Proposals, RULES Submissions, and Approvals: Prohibitions and Restrictions on Proprietary Trading and Application for Veterans Pension and Income, Asset, and Certain Interests in, and Relationships With, Hedge Employment Statement, 60522 Funds and Private Equity Funds; Correction, 60355– VR and E Longitudinal Study Survey, 60522–60523 60356 NOTICES Wage and Hour Division Agency Information Collection Activities; Proposals, PROPOSED RULES Submissions, and Approvals, 60508 Independent Contractor Status under the Fair Labor Agency Information Collection Activities; Proposals, Standards Act, 60600–60639 Submissions, and Approvals: Extension; Investor Form, 60503–60504 Extension; Rule 17g–1 and Form NRSRO, 60507–60508 Separate Parts In This Issue Meetings; Sunshine Act, 60504 Self-Regulatory Organizations; Proposed Rule Changes: Part II Cboe Exchange, Inc., 60504–60507 MIAX Emerald, LLC, 60498–60503 Homeland Security Department, 60526–60598 Small Business Administration Part III NOTICES Labor Department, Wage and Hour Division, 60600–60639 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 60508–60509 Part IV Energy Department, 60642–60677 Social Security Administration NOTICES Part V Agency Information Collection Activities; Proposals, Presidential Documents, 60679–60682 Submissions, and Approvals, 60509–60514 Surface Transportation Board Reader Aids NOTICES Abandonment Exemption: Consult the Reader Aids section at the end of this issue for Wisconsin Central Ltd.; Kaukauna, Outagamie County, phone numbers, online resources, finding aids, and notice WI, 60514–60515 of recently enacted public laws. Release of Waybill Data, 60515 To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/ Susquehanna River Basin Commission accounts/USGPOOFR/subscriber/new, enter your e-mail NOTICES address, then follow the instructions to join, leave, or Grandfathering Registration Notice, 60515–60516 manage your subscription.

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CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

3 CFR Proclamations: 10079...... 60341 10080...... 60343 10081...... 60345 10082...... 60681 Administrative Orders: Memorandums: Memorandum of September 2, 2020 ...... 60347 Memorandum of September 4, 2020 ...... 60349 Presidential Determinations: No. 2020-11 of September 16, 2020 ...... 60351 8 CFR Proposed Rules: 214...... 60526 248...... 60526 274a...... 60526 10 CFR Proposed Rules: 431...... 60642 12 CFR 44...... 60355 248...... 60355 351...... 60355 Proposed Rules: Ch. III ...... 60402 338...... 60389 390...... 60389 14 CFR 39...... 60356 17 CFR 75...... 60355 255...... 60355 26 CFR 1...... 60358 27 CFR 9...... 60358 29 CFR Proposed Rules: 780...... 60620 788...... 60620 795...... 60620 33 CFR 100...... 60362 165...... 60362 40 CFR 180 (3 documents) ...... 60363, 60366, 60368 228...... 60370 Proposed Rules: 52 (2 documents) ...... 60407, 60413 41 CFR 102–77...... 60383 102–83...... 60385 50 CFR 622 (2 documents) ...... 60385, 60386

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Federal Register Presidential Documents Vol. 85, No. 187

Friday, September 25, 2020

Title 3— Proclamation 10079 of September 18, 2020

The President National Farm Safety and Health Week, 2020

By the President of the United States of America

A Proclamation Since our Nation’s founding, agriculture has played an integral role in the American way of life. America’s farmers and agricultural workers are critical to our economy, and concern for their physical and mental safety must remain a top national priority. Together, we must continue to ensure our farmers, ranchers, and foresters have the ability to work safely and effectively as they provide food, fiber, and fuel for our country. During National Farm Safety and Health Week, we raise awareness of safety and health issues on farms, ranches, and in rural communities, and we commit to improving the well-being of those who live and work in rural settings for generations to come. The theme of National Farm Safety and Health Week this year, ‘‘Every Farmer Counts,’’ reminds us that every American must prioritize the safety and health of those who provide us with essential goods. The fall harvest is one of the busiest and most dangerous seasons of the year for agricultural workers. In preparation, and to propel continued innovation in farm productivity and safety, my Administration is supporting 21st-century artificial intelligence and greater precision in agricultural applications. Additionally, we have made significant investments in rural hospitals, rural broadband, and access to telemedicine. My Administration has also prioritized the expansion of prevention, treatment, and recovery programs for the misuse of opioids in rural America. This week, we rededicate ourselves to these efforts to maximize the safety and health of agricultural producers through best practices, innovative technologies, and production methods that reduce risk and create safer, more productive work environments. Addressing farm safety and health concerns requires more than just protecting agricultural workers from routine farm injuries. Our efforts also include addressing disease outbreaks and health crises, such as the coronavirus pandemic. This past spring, I instructed our Federal agencies to publish coronavirus safety guidelines addressing the specific needs of agricultural workers and food processing workers, all of which work hard to ensure America’s critical food supply remains strong. To aid producers affected by the pandemic, my Administration is providing $34 billion to America’s farmers through a variety of programs, including $30 billion in direct payments through the Coronavirus Food Assistance Program and the innovative $4 billion Farmers to Families Food Box Program, which supports American food producers and communities in need. This National Farm Safety and Health Week, we also commend our first- class medical professionals and brave first responders serving in rural communities throughout the country. When our agricultural workers experience illness, injury, or health crises, our rural emergency medical responders are their heroes. With the support of these committed Americans, and our continued support for programs enhancing farm safety, we will ensure every farmer—and every American life in rural and remote communities—counts. NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim September 20 through

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September 26, 2020, as National Farm Safety and Health Week. Please join me in promoting safe and healthy practices on our farms and ranches as producers enter the harvest season across the United States. I also urge all Americans to express their appreciation and gratitude to our farmers, ranchers, and foresters for their important contributions and tireless service to our Nation. The United States was built on the foundation of agriculture, and agriculture was built on the foundation of family farmers and their enduring values. IN WITNESS WHEREOF, I have hereunto set my hand this eighteenth day of September, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty- fifth.

[FR Doc. 2020–21378 Filed 9–24–20; 8:45 am] Billing code 3295–F0–P

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Proclamation 10080 of September 18, 2020

National Gang Violence Prevention Week, 2020

By the President of the United States of America

A Proclamation During National Gang Violence Prevention Week, we reaffirm our unwavering commitment to ensuring gang members are removed from our streets and prosecuted for their crimes, so all Americans can live and thrive in a safe and peaceful environment. Our Nation’s law enforcement officials are our first line of defense against gang violence, and we continue to express our eternal gratitude for their selfless devotion to upholding the rule of law and keeping us safe. Street gangs pose grave threats to the safety of communities and the well- being of children, teenagers, and families. Gangs aim to perpetuate the trafficking and smuggling of humans, weapons, and drugs. They destroy public and private property, corrupt America’s youth, and ruin businesses. To break the pernicious cycle of gang violence and crime, my Administration has enacted comprehensive solutions focused on prevention, intervention, and suppression. In July, we launched Operation LeGend—a sustained and coordinated law enforcement surge in communities across the Nation. Oper- ation LeGend is named in honor of 4-year-old LeGend Taliferro, who was shot and killed while he peacefully slept early in the morning of June 29 in Kansas City, Missouri. This unfathomable tragedy is one of many examples of the scourge gangs pose to our youth and to our communities. The eponymous operation spans every Federal law enforcement agency and is being executed in conjunction with State and local officials. Our national effort to fight violent crime will protect our Nation’s children and bring violent criminals to justice. Every child in America should enjoy a youth without any risk of falling victim to violence, drugs, or other harmful criminal acts that can destroy their future. And every parent should see their children grow into the people that God intended for them to become. It is the responsibility of all public leaders to do everything in our power to make this possible. As President, my highest obligation is to protect our Nation’s citizens, which is why we are relentlessly working to restore law and order throughout our country. In the past year, the Department of Justice has prosecuted thousands of violent gang members, including hundreds of leaders, members, and associates of transnational criminal organizations such as MS–13 and the 18th Street Gang. The spread of these vicious groups, and the human suffering they bring, is accomplished through a sophisticated and well-organized campaign of violence meant to intimidate neighborhoods and boost illegal money- making activities. In response, my Administration has taken strong actions to secure our borders, shut down smuggling networks, and expedite the removal of illegal immigrants associated with these transnational criminal networks. Additionally, the Attorney General’s Joint Task Force Vulcan has taken steps to disrupt, dismantle, and ultimately destroy MS–13, including strategically targeting the highest ranking leaders and bringing terrorism charges against the organization. Through these initiatives, and working with our foreign law enforcement partners in Operation Regional Shield, we have reduced the ability of transnational criminal organizations to commit

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murders and other violent crimes, as well as hindered their funding by stopping crimes such as robbery, extortion, drug and gun smuggling, and despicable acts of human trafficking. Under my Administration, the Department of Justice has revitalized the Project Safe Neighborhoods program, which provides crucial support to local law enforcement agencies across the country to combat gang violence and prevent violent crime. This community-based initiative targets the most violent criminals in the most dangerous areas of our country and has successfully delivered justice by getting them off the streets and behind bars. None of these significant strides would be possible without the dedicated law enforcement officials of our great Nation. In light of the growing, radical movement attacking the police, I take this opportunity to once again reempha- size my unending support for our Nation’s heroes in blue. We are forever grateful for the incredible men and women of law enforcement who risk their lives every single day to combat crime and mayhem. As a Nation, we must band together in the fight against criminal gangs that threaten our democracy and terrorize our children, families, and communities. National Gang Violence Prevention Week is a time to reflect on the honorable service of our heroes in law enforcement and dedicate ourselves to doing all that we can to prevent criminal gangs from infiltrating our communities with violence and crime. We will not rest until we have removed the scourge of gangs and transnational criminal organizations from our country. NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim the week of September 20 through September 26, 2020, as ‘‘National Gang Violence Prevention Week.’’ I call upon the people of the United States to observe this week with appropriate programs, ceremonies, and activities. IN WITNESS WHEREOF, I have hereunto set my hand this eighteenth day of September, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty- fifth.

[FR Doc. 2020–21381 Filed 9–24–20; 8:45 am] Billing code 3295–F0–P

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Proclamation 10081 of September 18, 2020

Death of Ruth Bader Ginsburg

By the President of the United States of America

A Proclamation Today, our Nation mourns the loss of a trailblazer, not only in the field of law, but in the history of our country. Ruth Bader Ginsburg served more than 27 years as an Associate Justice of the Supreme Court of the United States. She was a loving wife to her late husband Martin, and a caring mother to her two children Jane and James. Ruth Bader Ginsburg was an inspiration to all Americans. Having lost her older sister and mother before graduating high school, she entered law school as both a wife and a mother, and one of the few women in her class. After graduating from law school in 1959, she worked tirelessly for more than 34 years as a litigator and jurist and, in 1993, she became just the second woman to sit on the Supreme Court of the United States. Renowned for her powerful dissents at the Supreme Court, Justice Ginsburg epitomized powerful yet respectful argument; that you can disagree with someone without being disagreeable to them. Justice Ginsburg’s work helped bring about greater equality for women, secure rights for the disabled, and will continue to influence our Nation for generations to come. In addition to her quick mind, she brought flair to the bench with her stylish jabots and her warm friendships among colleagues, even those with whom she often disagreed, most notably with the late Justice Antonin Scalia. A fighter to the end, Justice Ginsburg defeated cancer and the odds numerous times—all while continuing to serve on the Court. Her commitment to the law and her fearlessness in the face of death inspired countless ‘‘RBG’’ fans, and she continues to serve as a role model to countless women lawyers. Her legacy and contribution to American history will never be forgotten. As a mark of respect for Ruth Bader Ginsburg, Associate Justice of the United States, I hereby order, by the authority vested in me by the Constitu- tion and laws of the United States of America, including section 7 of title 4, United States Code, that the flag of the United States shall be flown at half-staff at the White House and on all public buildings and grounds, at all military posts and naval stations, and on all naval vessels of the Federal Government in the District of Columbia and throughout the United States and its Territories and possessions until sunset, on the day of interment. I also direct that the flag shall be flown at half-staff for the same period at all United States embassies, legations, consular offices, and other facilities abroad, including all military facilities and naval vessels and stations.

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IN WITNESS WHEREOF, I have hereunto set my hand this eighteenth day of September, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty- fifth.

[FR Doc. 2020–21385 Filed 9–24–20; 8:45 am] Billing code 3295–F0–P

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Memorandum of September 2, 2020

Delegation of Authority To Submit to the Congress the Notifi- cations and Explanations Specified in the Resolution of Ad- vice and Consent to Ratification of the Agreement Between the United States of America and the International Atomic Energy Agency for the Application of Safeguards in the United States of America

Memorandum for the Secretary of State

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code, I hereby delegate to the Secretary of State the authority to provide to the Congress the notifications and explanations specified in section 1 of the July 2, 1980, Senate’s Resolution of Advice and Consent to Ratification of the Agreement between the United States of America and the International Atomic Energy Agency for the Application of Safeguards in the United States of America, with attached Protocol, signed at Vienna on November 18, 1977. You are authorized and directed to publish this memorandum in the Federal Register.

THE WHITE HOUSE, Washington, September 2, 2020

[FR Doc. 2020–21388 Filed 9–24–20; 8:45 am] Billing code 4710–10–P

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Memorandum of September 4, 2020

Delegation of Certain Functions and Authorities Under the Global Fragility Act of 2019

Memorandum for the Secretary of State[,] the Secretary of the Treasury[,] the Secretary of Defense[,] the Secretary of Energy[,] the Secretary of Commerce[,] the Director of the Office of Management and Budget[,] the Director of National Intelligence[, and] the Administrator of the United States Agency for International Development

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code, I hereby delegate to the Secretary of State, in consultation with the Secretary of the Treasury, the Secretary of Defense, the Secretary of Energy, the Secretary of Commerce, the Director of National Intelligence, the Administrator of the United States Agency for International Development, and the Director of the Office of Management and Budget, the functions and authorities vested in the President by sections 504(a) and (c) of the Global Fragility Act of 2019 (Public Law 116–94). The delegation in this memorandum shall apply to any provisions of any future public laws that are the same or substantially the same as those provisions referenced in this memorandum. The Secretary of State is authorized and directed to publish this memorandum in the Federal Register.

THE WHITE HOUSE, Washington, September 4, 2020

[FR Doc. 2020–21389 Filed 9–24–20; 8:45 am] Billing code 4710–10–P

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Presidential Determination No. 2020–11 of September 16, 2020

Presidential Determination on Major Drug Transit or Major Illicit Drug Producing Countries for Fiscal Year 2021

Memorandum for the Secretary of State

By the authority vested in me as President by the Constitution and the laws of the United States, including section 706(1) of the Foreign Relations Authorization Act, Fiscal Year 2003 (Public Law 107–228) (FRAA), I hereby identify the following countries as major drug transit or major illicit drug producing countries: Afghanistan, The Bahamas, Belize, Bolivia, Burma, Co- lombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, India, Jamaica, Laos, Mexico, Nicaragua, Pakistan, Panama, Peru, and Venezuela. A country’s presence on the foregoing list is not necessarily a reflection of its government’s counternarcotics efforts or level of cooperation with the United States. Consistent with the statutory definition of a major drug transit or major illicit drug producing country set forth in section 481(e)(2) and (5) of the Foreign Assistance Act of 1961, as amended (Public Law 87–195) (FAA), the reason countries are placed on the list is the combination of geographic, commercial, and economic factors that allow drugs to transit or be produced, even if a government has engaged in robust and diligent narcotics control measures. Illicit drugs inflict enormous harm on the health and safety of the American people and threaten the national security of the United States. While my Administration has achieved steady progress in stemming the tide of our country’s drug epidemic, transnational criminal organizations continually challenge our success by violating our borders and flooding our homeland with these deadly substances. The United States is taking the fight to these criminal organizations and their enablers on an unprecedented scale. This April, I initiated the most significant counternarcotic operations in decades targeting the illicit drug trade in the Caribbean and Eastern Pacific by deploying U.S. military assets to U.S. Southern Command in cooperation with 22 international allies. These operations led to the seizure of more than 80 metric tons of cocaine and other dangerous drugs, depriving transnational criminal organizations of more than $1.8 billion in profits and putting drug kingpins on notice that they are squarely in the crosshairs of the United States. The most complicit kingpin in this Hemisphere is the Venezuelan dictator, Nicolas Maduro. This March, a U.S. court indicted Maduro for narcoterrorism and conspiracy to smuggle cocaine into the United States. In response, the U.S. Department of State announced a $15 million reward for information leading to his arrest or conviction. He joined a multitude of other regime cronies who are either under U.S. indictment or were sanctioned for drug crimes by the Department of the Treasury. The United States will continue to support the Venezuelan people, Interim President Juan Guaido, and the democratically elected National Assembly, and will work together with the legitimate Interim Government of Venezuela to stop drug trafficking and root out the criminal elements that have exploited that country. Maduro’s illegitimate narco-regime should face justice for its crimes.

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While bringing criminals like Maduro to justice remains an urgent priority, the United States also needs other governments in the Western Hemisphere to assume greater responsibility for reducing illegal drug supplies. In Colombia, President Ivan Duque and his government remain strong partners of the United States, and Colombian police and military forces have shown great bravery and commitment by targeting high-level drug traffickers, interdicting drug shipments, and manually eradicating coca. Nevertheless, coca cultivation and cocaine production remain at unacceptably high levels. To reach our shared 5-year goal to reduce coca cultivation and cocaine production by half by the end of 2023, Colombia must move forward with resuming aerial eradication, which remains an irreplaceable tool in the government’s arsenal alongside manual eradication and alternative economic development. It is also of great concern that coca cultivation and cocaine production remain near historical highs in Peru, another longstanding U.S. ally. Peru is a valued law enforcement partner of the United States and has demonstrated continuing commitment to fighting all aspects of the drug trade. I call on the Peruvian government to resume eradication operations in the country’s high yield coca producing regions, including the Valley of the Apurimac, Ene, and Mantaro Rivers. Since the resignation of former President Evo Morales in November 2019, U.S.-Bolivian cooperation against drug trafficking networks has increased under Bolivia’s transitional government. The transitional government made important strides in drug interdiction and resumed processing extradition requests of drug traffickers by the United States. Nevertheless, coca cultivation continues to exceed legal limits under Bolivia’s own domestic laws for medicinal and traditional use, and the Bolivian state has taken insufficient measures to safeguard the country’s licit coca markets from criminal exploitation. If the Bolivian government, including its Legislative Assembly, takes sufficient steps in the year ahead to remedy these shortcomings and continues the progress made over the past 10 months under the transitional government, I will consider removing Bolivia from next year’s list of countries that have failed demonstrably to uphold their drug control responsibilities. Last year, I warned that I would consider determining Mexico had failed demonstrably to uphold its international drug control commitments if it did not intensify its efforts to increase poppy eradication, interdict illicit drugs before they cross the border into the United States, increase its prosecutions of drug traffickers and seize their assets, and develop a comprehensive drug control strategy. This year, Mexico successfully passed asset forfeiture reforms, increased extraditions of dangerous drug traffickers to the United States, made substantial progress in completing its first poppy yield study in 17 years, and produced a counterdrug strategy. While these are signs of progress, more must be done. Mexico remains the source of nearly all heroin and methamphetamine seized in the United States, and a transit route for most of the cocaine available in our country. Moreover, Mexican cartels take advantage of uneven precursor chemical controls in Mexico to manufacture deadly drugs, such as fentanyl, inside Mexico and smuggle them into the United States. Mexican drug interdictions remain far too low in the face of these critical drug threats. These cartels present a clear threat to Mexico and the Mexican government’s ability to exert effective control over parts of its country. Mexico must clearly demonstrate its commitment to dismantling the cartels and their criminal enterprises and do more to protect the lives of Mexican and American citizens threatened by these groups. Mexico needs to continue to extradite key criminal actors, step up comprehensive investigations and drug and asset seizures, and implement a robust data-based poppy eradication program tied to sustainable alternative development. The Mexican government should acknowledge the alarming trend of fentanyl production inside its territory. It must prioritize law enforcement action targeting cartel production and trafficking of fentanyl—the leading substance involved in drug

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overdose deaths in the United States—and strengthen efforts targeting fentanyl precursor chemicals overwhelmingly trafficked from China, as well as fentanyl smuggling and production. More must also be done to target the cartels’ increasing production of methamphetamine. The United States remains ready to deepen its partnership with Mexico to address these shared challenges and welcomes the opportunity to develop joint drug control goals with Mexico and bilateral investigations built on transparent and open sharing of investigative information and evidence leading to successful prosecutions. Many Mexican military and law enforcement professionals, in cooperation with their U.S. counterparts, are bravely confronting the transnational criminal organizations that threaten both of our countries. Unless the Mexican government demonstrates substantial progress in the coming year backed by verifiable data, Mexico will be at serious risk of being found to have failed demonstrably to uphold its international drug control commitments. Pursuant to section 706(2)(A) of the FRAA, I hereby designate Bolivia and the illegitimate regime of Nicolas Maduro in Venezuela as having failed demonstrably during the previous 12 months to adhere to their obligations under international counternarcotics agreements and to take the measures required by section 489(a)(1) of the FAA. Included with this determination are justifications for the designations of Bolivia and the Maduro regime, as required by section 706(2)(B) of the FRAA. I have also determined, in accordance with provisions of section 706(3)(A) of the FRAA, that United States programs that support the legitimate interim government in Venezuela and the Bolivian government are vital to the national interests of the United States. You are authorized and directed to submit this designation, with the Bolivia and Venezuela memoranda of justification, under section 706 of the FRAA, to the Congress, and to publish it in the Federal Register.

THE WHITE HOUSE, Washington, September 16, 2020

[FR Doc. 2020–21390 Filed 9–24–20; 8:45 am] Billing code 4710–10–P

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Rules and Regulations Federal Register Vol. 85, No. 187

Friday, September 25, 2020

This section of the FEDERAL REGISTER SUMMARY: The OCC, Board, FDIC, SEC, amendments).1 Two of the amendatory contains regulatory documents having general and CFTC (together, the agencies) are instructions of the 2020 amendments applicability and legal effect, most of which issuing this correction to make technical did not accurately reflect changes to the are keyed to and codified in the Code of corrections to the Federal Register rule agencies’ rules as described in the Federal Regulations, which is published under adopting amendments to the regulations Supplementary Information section of 50 titles pursuant to 44 U.S.C. 1510. implementing section 13 of the Bank the 2020 amendments. This correction The Code of Federal Regulations is sold by Holding Company Act published on corrects the agencies’ Federal Register the Superintendent of Documents. July 31, 2020. notice consistent with the Supplementary Information section of DATES: Effective October 1, 2020. the 2020 amendments. Specifically, this DEPARTMENT OF TREASURY FOR FURTHER INFORMATION CONTACT: correction corrects an instruction stating OCC: Tabitha Edgens, Counsel; Mark that the agencies were revising Office of the Comptroller of the O’Horo, Senior Attorney, Chief paragraph (d)(1) of section __.20 of the Currency Counsel’s Office, (202) 649–5490; for 2020 amendments when the agencies persons who are deaf or hearing intended to revise the introductory text 12 CFR Part 44 impaired, TTY, (202) 649–5597, Office to paragraph (d)(1). This correction also [Docket No. OCC–2020–0002] of the Comptroller of the Currency, 400 corrects instructions concerning 17 CFR 7th Street SW, Washington, DC 20219. 255.10(c)(11) and 75.10(c)(11) to retain RIN 1557–AE67 Board: Sarah Podrygula, Attorney, the introductory text for those paragraphs. The agencies note that the FEDERAL RESERVE SYSTEM (202) 912–4658, or Kirin Walsh, Attorney, (202) 452–3058, Legal effective date for the 2020 amendments is unchanged and continues to be 12 CFR Part 248 Division, Board of Governors of the Federal Reserve System, 20th and C October 1, 2020. [Docket No. R–1694] Streets NW, Washington, DC 20551. For Correction users of Telecommunication Device for RIN 7100–AF70 the Deaf (TDD), (202) 263–4869. In the Federal Register of July 31, 2020, FR Rule Doc. 2020–15525, FDIC: Michael B. Phillips, Counsel, FEDERAL DEPOSIT INSURANCE beginning on page 46422, is corrected as (202) 898–3581, or Annmarie H. Boyd, CORPORATION follows: Counsel, (202) 898–3714, Legal 12 CFR Part 351 Division, Federal Deposit Insurance Title 12 Corporation, 550 17th Street NW, RIN 3064–AF17 Washington, DC 20429. § 44.20 [Corrected] ■ 1. On page 46502, in the third column, COMMODITY FUTURES TRADING CFTC: Cantrell Dumas, Special in 12 CFR 44.20, in amendment 7b., add COMMISSION Counsel, (202) 418–5043, cdumas@ cftc.gov, Division of Swap Dealer and the words ‘‘introductory text’’ after the words ‘‘paragraph (d)(1)’’. 17 CFR Part 75 Intermediary Oversight; Mark Fajfar, Assistant General Counsel, (202) 418– § 248.20 [Corrected] RIN 3038–AE93 6636, [email protected], Office of the ■ General Counsel; Commodity Futures 2. On page 46509, in the second SECURITIES AND EXCHANGE Trading Commission, Three Lafayette column, in 12 CFR 248.20, in COMMISSION Centre, 1155 21st Street NW, amendment 14b., add the words Washington, DC 20581. ‘‘introductory text’’ after the words 17 CFR Part 255 ‘‘paragraph (d)(1)’’. SEC: William Miller, Senior Counsel, [Release no. BHCA–9A; File no. S7–02–20] or Jennifer Songer, Branch Chief at (202) § 351.20 [Corrected] 551–6787 or [email protected], RIN 3235–AM70 ■ 3. On page 46516, in the first column, Investment Adviser Regulation Office, in 12 CFR 351.20, in amendment 21b., Prohibitions and Restrictions on Division of Investment Management, add the words ‘‘introductory text’’ after Proprietary Trading and Certain U.S. Securities and Exchange the words ‘‘paragraph (d)(1)’’. Interests in, and Relationships With, Commission, 100 F Street NE, Hedge Funds and Private Equity Washington, DC 20549. Title 17 Funds; Correction You may also contact any of the § 75.10 [Corrected] individuals for these agencies named in AGENCY: Office of the Comptroller of the the final rule published on July 31, ■ 4. On page 46517, third column, in 17 Currency, Treasury (OCC); Board of 2020, at 85 FR 46422. CFR 75.10, remove ‘‘(11) * * *’’ and Governors of the Federal Reserve add in its place ‘‘(11) SBICs and public SUPPLEMENTARY INFORMATION: The System (Board); Federal Deposit welfare investment funds. An issuer:’’ agencies are issuing this correction to Insurance Corporation (FDIC); Securities make technical corrections to the final § 75.20 [Corrected] and Exchange Commission (SEC); and rule adopting amendments to the Commodity Futures Trading ■ 5. On page 46522, in the second regulations implementing section 13 of Commission (CFTC). column, in 17 CFR 75.20, in amendment the Bank Holding Company Act ACTION: Notification of correction. published on July 31, 2020 (the 2020 1 85 FR 46422 (July 31, 2020).

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28b., add the words ‘‘introductory text’’ effectiveness of the grease in the is any roughness in the flight control after the words ‘‘paragraph (d)(1)’’. bearings. The actions of this AD are system, the NPRM proposed to require intended to address an unsafe condition replacing the six pivot bearings in the § 255.10 [Corrected] on these products. collective/lateral bellcrank assembly ■ 6. On page 46524, second column, in DATES: This AD is effective October 30, and the longitudinal bellcrank 17 CFR 255.10, remove ‘‘(11) * * *’’ 2020. assembly. If there is any binding in any and add in its place ‘‘(11) SBICs and ADDRESSES: For service information arm end bearing or on the longitudinal public welfare investment funds. An identified in this final rule, contact Bell bellcrank assembly, the NPRM proposed issuer:’’ Helicopter Textron Canada Limited, to require replacing each arm end bearing before further flight. § 255.20 [Corrected] 12,800 Rue de l’Avenir, Mirabel, Quebec J7J1R4; telephone 450–437–2862 or Transport Canada, which is the ■ 7. On page 46529, in the first column, 800–363–8023; fax 450–433–0272; or at aviation authority for Canada, has issued Canadian AD CF–2016–11R2, in 17 CFR 255.20, in amendment 35b., https://www.bellcustomer.com. You dated October 18, 2017, to correct an add the words ‘‘introductory text’’ after may view the referenced service unsafe condition for BHTC Model 429 the words ‘‘paragraph (d)(1)’’. information at the FAA, Office of the helicopters equipped with a bellcrank Regional Counsel, Southwest Region, Jonathan V. Gould, assembly P/N 429–001–523–101, 429– 10101 Hillwood Pkwy., Room 6N–321, Senior Deputy Comptroller and Chief 001–523–103, 429–001–532–101 or Fort Worth, TX 76177. Counsel, Office of the Comptroller of the 429–001–532–103. Transport Canada Currency. Examining the AD Docket advises that in-service reports show that Board of Governors of the Federal Reserve bearings in the roof-mounted flight System. You may examine the AD docket on the internet at https:// control bellcranks are adversely affected Ann E. Misback, www.regulations.gov by searching for by precipitation. Pooling can occur at Secretary of the Board. and locating Docket No. FAA–2018– the forward portion of the roof, Federal Deposit Insurance Corporation. 0334; or in person at Docket Operations providing a source of contamination for Dated at Washington, DC, on or about between 9 a.m. and 5 p.m., Monday bearings in the roof-mounted flight September 18, 2020. through Friday, except Federal holidays. controls. Precipitation may reduce the James P. Sheesley, The AD docket contains this AD, the effectiveness of the grease in the bearings, allowing corrosion to occur. Acting Assistant Executive Secretary. Transport Canada AD, any comments This can result in intermittent Commodity Futures Trading Commission. received, and other information. The street address for Docket Operations is restrictions, such as binding and Dated: September 21, 2020. U.S. Department of Transportation, roughness in the flight controls. Robert Sidman, Docket Operations, M–30, West Transport Canada also advises that an Deputy Secretary of the Commission. Building Ground Floor, Room W12–140, undetected corroded bearing could lead By the Securities and Exchange 1200 New Jersey Avenue SE, to restrictions in the collective, Commission. Washington, DC 20590. directional, or pitch control systems, resulting in difficulty controlling the Vanessa A. Countryman, FOR FURTHER INFORMATION CONTACT: helicopter. Secretary. David Hatfield, Aviation Safety Transport Canada consequently [FR Doc. 2020–21100 Filed 9–24–20; 8:45 am] Engineer, Safety Management Section, requires within 12 months after the BILLING CODE P Rotorcraft Standards Branch, FAA, helicopter was manufactured and 10101 Hillwood Pkwy., Fort Worth, TX thereafter at intervals not to exceed 6 76177; telephone 817–222–5110; email months, inspecting the flight controls DEPARTMENT OF TRANSPORTATION [email protected]. and replacing any discrepant bearings. If SUPPLEMENTARY INFORMATION: the helicopter’s age exceeds 12 months, Federal Aviation Administration Discussion Transport Canada requires the 12-month inspection within 30 days. Transport 14 CFR Part 39 The FAA issued a notice of proposed Canada also requires, within 30 days, rulemaking (NPRM) to amend 14 CFR [Docket No. FAA–2018–0334; Product performing a functional check and part 39 by adding an AD that would replacement, if applicable, of the Identifier 2017–SW–133–AD; Amendment apply to BHTC Model 429 helicopters 39–21262; AD 2020–20–06] bearings if the most recent functional with a bellcrank assembly part number check of the helicopter was performed RIN 2120–AA64 (P/N) 429–001–523–101, 429–001–523– with the alternate procedure of using a 103, 429–001–532–101 or 429–001– Airworthiness Directives; Bell hydraulic test stand or if the inspection 532–103 installed. The NPRM published method is unknown. Helicopter Textron Canada Limited in the Federal Register on March 20, Helicopters 2020 (85 FR 16019). The NPRM Comments AGENCY: Federal Aviation proposed to require, at specified After the NPRM was published, the Administration (FAA), DOT. intervals, disconnecting the forward FAA received comments from two ACTION: Final rule. ends of the collective control tube, commenters. However, the comments longitudinal stability and control addressed neither the proposed actions SUMMARY: The FAA is adopting a new augmentation system (SCAS) actuator, nor the determination of the cost to the airworthiness directive (AD) for Bell and lateral SCAS actuator, and stowing public. Therefore, the FAA has made no Helicopter Textron Canada Limited the collective control tube and each changes based on those comments. (BHTC) Model 429 helicopters. This AD SCAS actuator to prevent binding; and requires repetitive inspections of certain then inspecting for any roughness in the FAA’s Determination cyclic and collective assembly bearings. flight control system and any binding in These helicopters have been approved This AD was prompted by reports that any arm end bearing and on the by the aviation authority of Canada and precipitation can lead to reduced longitudinal bellcrank assembly. If there are approved for operation in the United

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States. Pursuant to the FAA’s bilateral Authority for This Rulemaking 2020–20–06 Bell Helicopter Textron Canada: Amendment 39–21262; Docket agreement with Canada, Transport Title 49 of the United States Code Canada, its technical representative, has No. FAA–2018–0334; Product Identifier specifies the FAA’s authority to issue 2017–SW–133–AD. notified the FAA of the unsafe condition rules on aviation safety. Subtitle I, described in the Transport Canada AD. section 106, describes the authority of (a) Applicability The FAA is issuing this AD after the FAA Administrator. Subtitle VII: This AD applies to Bell Helicopter Textron evaluating all of the information Aviation Programs, describes in more Canada Limited Model 429 helicopters with provided by Transport Canada and a bellcrank assembly part number (P/N) 429– detail the scope of the Agency’s 001–523–101, 429–001–523–103, 429–001– determining the unsafe condition exists authority. and is likely to exist or develop on other 532–101, or 429–001–532–103 installed, The FAA is issuing this rulemaking certificated in any category. products of the same type design and under the authority described in that air safety and the public interest Subtitle VII, Part A, Subpart III, Section (b) Unsafe Condition require adopting the AD requirements as 44701: General requirements. Under This AD defines the unsafe condition as proposed. that section, Congress charges the FAA precipitation in the forward portion of the with promoting safe flight of civil roof structure that can lead to pooling at the Interim Action bellcrank assembly and corrosion of the aircraft in air commerce by prescribing bearings. This condition could result in The FAA considers this AD to be an regulations for practices, methods, and interim action. If final action is later restrictions in the collective, directional or procedures the Administrator finds pitch control systems, and subsequent loss of identified, the FAA might consider necessary for safety in air commerce. helicopter control. further rulemaking then. This regulation is within the scope of (c) Effective Date Differences Between This AD and the that authority because it addresses an unsafe condition that is likely to exist or This AD becomes effective October 30, Transport Canada AD 2020. develop on helicopters identified in this Transport Canada provides (d) Compliance requirements if the most recent rulemaking action. You are responsible for performing each functional procedure was performed Regulatory Findings action required by this AD within the using a hydraulic test stand as an This AD will not have federalism specified compliance time unless it has alternate procedure. This AD provides implications under Executive Order already been accomplished prior to that time. no such alternate procedure. 13132. This AD will not have a (e) Required Actions Related Service Information substantial direct effect on the States, on Within 12 months after the helicopter was the relationship between the national The FAA reviewed Bell Helicopter manufactured or 30 days after the effective government and the States, or on the Alert Service Bulletin 429–15–21, date of this AD, whichever occurs later, and distribution of power and thereafter at intervals not to exceed 6 months: Revision B, dated May 11, 2017 (ASB), responsibilities among the various (1) Disconnect the forward ends of the which specifies moving the cyclic stick levels of government. collective control tube, longitudinal stability fore, aft, and laterally, and the collective For the reasons discussed above, I and control augmentation system (SCAS) stick up and down from stop to stop to certify that this AD: actuator, and lateral SCAS actuator. Stow the detect deteriorated pivot bearings. The (1) Is not a ‘‘significant regulatory collective control tube and each SCAS ASB also specifies inspecting to actuator to prevent binding. action’’ under Executive Order 12866, (2) Slowly move the cyclic stick fore/aft determine whether the bearings in the (2) Will not affect intrastate aviation collective, lateral, and longitudinal arm and laterally, and the collective stick up/ in Alaska, and down from stop to stop to determine if there assemblies rotate freely. If discrepant (3) Will not have a significant is any roughness. If there is any roughness in arm bearings are found, the ASB economic impact, positive or negative, the flight control system, before further flight, specifies contacting BHTC Product on a substantial number of small entities replace all six pivot bearings, P/N MS27646– Support Engineering to report the under the criteria of the Regulatory 41, in the collective lateral bellcrank findings and replacing the discrepant Flexibility Act. assembly and the longitudinal bellcrank parts with serviceable parts. assembly. List of Subjects in 14 CFR Part 39 (3) Inspect the collective arm assembly P/ Costs of Compliance N 429–001–525–101, the lateral arm Air transportation, Aircraft, Aviation assembly P/N 429–001–527–101, and the The FAA estimates that this AD safety, Incorporation by reference, longitudinal arm assembly P/N 429–001– affects 64 helicopters of U.S. Registry. Safety. 530–101, by rotating each bearing and Labor rates are estimated at $85 per ensuring each bearing rotates freely. If there work-hour. Based on these numbers, the Adoption of the Amendment is any binding in any arm end bearing or on FAA estimates that operators may incur Accordingly, under the authority the longitudinal bellcrank assembly, before the following costs in order to comply delegated to me by the Administrator, further flight, replace each arm end bearing. with this AD. the FAA amends 14 CFR part 39 as (f) Special Flight Permits Inspecting the cyclic and the follows: Special flight permits are prohibited. collective for roughness takes about 3 work-hours for an estimated cost of PART 39—AIRWORTHINESS (g) Alternative Methods of Compliance $255 per helicopter, and $16,320 for the DIRECTIVES (AMOCs) U.S. fleet, per inspection cycle. (1) The Manager, Rotorcraft Standards Replacing six pivot bearings takes ■ 1. The authority citation for part 39 Branch, FAA, may approve AMOCs for this about 3 work-hours and parts cost about continues to read as follows: AD. Send your proposal to: David Hatfield, Aviation Safety Engineer, Safety Management $624 for an estimated cost of $879 per Authority: 49 U.S.C. 106(g), 40113, 44701. Section, Rotorcraft Standards Branch, FAA, helicopter. § 39.13 [Amended] 10101 Hillwood Pkwy., Fort Worth, TX Replacing three arm end bearings 76177; telephone 817–222–5110; email 9- takes about 3 work-hours and parts cost ■ 2. The FAA amends § 39.13 by adding [email protected]. about $135 for an estimated cost of $390 the following new airworthiness (2) For operations conducted under a 14 per helicopter. directive (AD): CFR part 119 operating certificate or under

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14 CFR part 91, subpart K, the FAA suggests 2. On page 53074, in the second acres in order to avoid a partial overlap that you notify your principal inspector, or column, in the second full paragraph, in with the newly established Candy lacking a principal inspector, the manager of the 15th line ‘‘$1 ×’’ should read ‘‘$1x’’. Mountain viticultural area. Both the the local flight standards district office or 3. On page 53074, in the second certificate holding district office, before existing Yakima Valley viticultural area column, in the second full paragraph, in and the newly established Candy operating any aircraft complying with this × AD through an AMOC. the 17th line ‘‘$99 ’’ should read Mountain viticultural area are located ‘‘$99x’’. entirely within the existing Columbia (h) Additional Information 4. (a) On page 53075, in the third Valley viticultural area. TTB designates (1) Bell Helicopter Alert Service Bulletin column, in the first full paragraph, in viticultural areas to allow vintners to 429–15–21, Revision B, dated May 11, 2017, the 11th line ‘‘$100 ×’’ should read better describe the origin of their wines which is not incorporated by reference, ‘‘$100x’’. and to allow consumers to better contains additional information about the (b) On the same page, in the same subject of this AD. For service information identify wines they may purchase. column, in the same paragraph, in the identified in this AD, contact Bell Helicopter × DATES: This final rule is effective Textron Canada Limited, 12,800 Rue de 13th line ‘‘$100 ’’ should read October 26, 2020. l’Avenir, Mirabel, Quebec J7J1R4; telephone ‘‘$100x’’. 450–437–2862 or 800–363–8023; fax 450– (c) On the same page, in the same FOR FURTHER INFORMATION CONTACT: 433–0272; or at https:// column, in the same paragraph, in the Karen A. Thornton, Regulations and www.bellcustomer.com. You may view the 15th line ‘‘$100 ×’’ should read Rulings Division, Alcohol and Tobacco referenced service information at the FAA, ‘‘$100x’’. Tax and Trade Bureau, 1310 G Street Office of the Regional Counsel, Southwest (d) On the same page, in the same NW, Box 12, Washington, DC 20005; Region, 10101 Hillwood Pkwy., Room 6N– column, in the same paragraph, in the phone 202–453–1039, ext. 175. 321, Fort Worth, TX 76177. × (2) The subject of this AD is addressed in 20th line ‘‘$100 ’’ should read SUPPLEMENTARY INFORMATION: ‘‘$100x’’. Transport Canada Civil Aviation (Transport Background on Viticultural Areas Canada) AD No. CF–2016–11R2, dated (e) On the same page, in the same October 18, 2017. You may view the column, in the same paragraph, in the TTB Authority Transport Canada AD on the internet at 27th line ‘‘$100 ×’’ should read https://www.regulations.gov in Docket No. ‘‘$100x’’. Section 105(e) of the Federal Alcohol FAA–2018–0334. (f) On the same page, in the same Administration Act (FAA Act), 27 (i) Subject column, in the same paragraph, in the U.S.C. 205(e), authorizes the Secretary 37th line ‘‘$100 ×’’ should read of the Treasury to prescribe regulations Joint Aircraft Service Component (JASC) for the labeling of wine, distilled spirits, Code: 2700, Flight Control System. ‘‘$100x’’. and malt beverages. The FAA Act Issued on September 21, 2020. § 1.245A–5 [Corrected] provides that these regulations should, Lance T. Gant, 5. On page 53086, in § 1.245A–5, in among other things, prohibit consumer Director, Compliance & Airworthiness the third column, in the second full deception and the use of misleading Division, Aircraft Certification Service. paragraph, in the 19th line the heading statements on labels and ensure that [FR Doc. 2020–21127 Filed 9–24–20; 8:45 am] ‘‘(B) Special rules regarding carryover labels provide the consumer with BILLING CODE 4910–13–P foreign target stock.’’ should start a new adequate information as to the identity paragraph. and quality of the product. The Alcohol [FR Doc. C1–2020–18543 Filed 9–24–20; 8:45 am] and Tobacco Tax and Trade Bureau DEPARTMENT OF THE TREASURY (TTB) administers the FAA Act BILLING CODE 1301–00–D pursuant to section 1111(d) of the Internal Revenue Service Homeland Security Act of 2002, DEPARTMENT OF THE TREASURY codified at 6 U.S.C. 531(d). The 26 CFR Part 1 Secretary has delegated the functions [TD 9909] Alcohol and Tobacco Tax and Trade and duties in the administration and Bureau enforcement of these provisions to the RIN 1545–BP35 TTB Administrator through Treasury Limitation on Deduction for Dividends 27 CFR Part 9 Order 120–01, dated December 10, 2013 (superseding Treasury Order 120–01, Received From Certain Foreign [Docket No. TTB–2019–0006; T.D. TTB–163; Corporations and Amounts Eligible for Ref: Notice No. 184] dated January 24, 2003). Section 954 Look-Through Exception Part 4 of the TTB regulations (27 CFR RIN 1513–AC42 part 4) authorizes TTB to establish Correction definitive viticultural areas and regulate Establishment of the Candy Mountain the use of their names as appellations of In rule document 2020–18543 Viticultural Area and Modification of origin on wine labels and in wine beginning on page 53068 in the issue of the Yakima Valley Viticultural Area Thursday, August 27, 2020, make the advertisements. Part 9 of the TTB following corrections: AGENCY: Alcohol and Tobacco Tax and regulations (27 CFR part 9) sets forth 1. (a) On page 53074, in the second Trade Bureau, Treasury. standards for the preparation and column, in the second full paragraph, in ACTION: Final rule; Treasury decision. submission to TTB of petitions for the the ninth line ‘‘$100 ×’’ should read establishment or modification of ‘‘$100x’’. SUMMARY: The Alcohol and Tobacco Tax American viticultural areas (AVAs) and (b) On the same page, in the same and Trade Bureau (TTB) establishes the lists the approved AVAs. approximately 815-acre ‘‘Candy column, in the same paragraph, in the Definition 13th line ‘‘$100 ×’’ should read Mountain’’ viticultural area in Benton ‘‘$100x’’. County, Washington. TTB is also Section 4.25(e)(1)(i) of the TTB (c) On the same page, in the same expanding the boundary of the existing regulations (27 CFR 4.25(e)(1)(i)) defines column, in the same paragraph, in the 1,093-square mile Yakima Valley a viticultural area for American wine as 21st line ‘‘$100 ×’’ should read ‘‘$100x’’. viticultural area by approximately 72 a delimited grape-growing region having

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distinguishing features, as described in The proposed Candy Mountain AVA soils also do not have a large water part 9 of the regulations, and a name lies entirely within the established holding capacity, meaning that vineyard and a delineated boundary, as Columbia Valley AVA (27 CFR 9.74) owners must monitor soil moisture established in part 9 of the regulations. and partially within the established carefully to ensure the vines have These designations allow vintners and Yakima Valley AVA (27 CFR 9.69). To adequate access to water. Finally, the consumers to attribute a given quality, avoid the partial overlap, the petition thin soils allow roots to come into reputation, or other characteristic of a also proposed expanding the Yakima contact with the underlying basalt wine made from grapes grown in an area Valley AVA by approximately 72 acres bedrock, which is comprised of to the wine’s geographic origin. The so that the entire proposed Candy calcium-rich feldspars and other establishment of AVAs allows vintners Mountain AVA would be within the minerals that are rich in iron and to describe more accurately the origin of established AVA. Dr. Pogue submitted magnesium, such as pyroxene and their wines to consumers and helps the petition on behalf of the following olivine. The petition states that these consumers to identify wines they may industry members with wine businesses minerals and nutrients are only present purchase. Establishment of an AVA is within the proposed AVA: Ramer in the bedrock, so vines planted in the neither an approval nor an endorsement Holtan, who is developing a commercial surrounding regions where the soil is by TTB of the wine produced in that wine grape vineyard on Candy thicker do not have the same access to area. Mountain; Premiere Columbia Partners these elements as vines planted within LLC, owners of Candy Mountain the proposed AVA. Requirements Vineyard; and Paul and Vickie Kitzke, Topography also distinguishes the Section 4.25(e)(2) of the TTB owners of Kitzke Cellars. proposed Candy Mountain AVA from regulations (27 CFR 4.25(e)(2)) outlines Within the 815-acre proposed AVA, the surrounding regions. The proposed the procedure for proposing an AVA there are currently two producing Candy Mountain AVA is located on the and provides that any interested party commercial vineyards, Candy Mountain southwest-facing slope of Candy may petition TTB to establish a grape- Vineyard and Kitzke Cellars, which Mountain. Within the proposed AVA, growing region as an AVA. Section 9.12 cover a total of approximately 54 acres. elevations range from 640 feet to 1,320 of the TTB regulations (27 CFR 9.12) Additionally, Mr. Holtan has secured feet, and slope angles are gentle to prescribes standards for petitions for the long-term leases from the Washington moderate and range from 2 to 20 establishment or modification of AVAs. Department of Natural Resources to degrees. Gentle slope angles facilitate Petitions to establish an AVA must plant 200 additional acres of vineyards mechanized vineyard maintenance and include the following: within the proposed AVA. A copy of the harvest. A south-facing slope aspect • Evidence that the area within the lease was included in the petition as increases the amount per unit area of proposed AVA boundary is nationally evidence of Mr. Holtan’s intent to grow solar radiation that reaches the surface or locally known by the AVA name wine grapes. Currently, Kitzke Cellars is and promotes photosynthesis in the specified in the petition; the only winery within the proposed grape vines, as well as grape • An explanation of the basis for AVA, although the petition notes that development and maturation. defining the boundary of the proposed other wineries in Washington produce By contrast, the valley floor AVA; wines from grapes grown within the surrounding both the entire Candy • A narrative description of the proposed AVA. According to the Mountain and the proposed Candy features of the proposed AVA affecting petition, the distinguishing features of Mountain AVA is essentially flat, with viticulture, such as climate, geology, the proposed Candy Mountain AVA are slope angles of less than 2 degrees, and soils, physical features, and elevation, its soils and topography. is susceptible to cold air pooling and the that make the proposed AVA distinctive The soils of the proposed Candy associated frosts and freezes. and distinguish it from adjacent areas Mountain AVA are developed from Additionally, much of the land outside the proposed AVA boundary; wind-deposited silt (loess) and fine sand immediately surrounding the proposed • The appropriate United States overlying sediment. The sediment is a AVA is a valley floor with elevations Geological Survey (USGS) map(s) mixture of gravel and sand that was below 640 feet. The exception is the showing the location of the proposed derived directly from surging ice-age northeastern side of Candy Mountain, AVA, with the boundary of the flood waters and also includes silt and which has similar elevations to the proposed AVA clearly drawn thereon; fine sand that settled out of suspension proposed Candy Mountain AVA but was • If the proposed AVA is to be when the flood waters pooled behind excluded from the proposed AVA due to established within, or overlapping, an downstream topographic restrictions. northeasterly slope aspect and steep existing AVA, an explanation that both The loess and sediment, in turn, both slope angles of up to 60 degrees. overlay basalt bedrock. The thickness of identifies the attributes of the proposed Proposed Modification of the Yakima the flood-water sediment within the AVA that are consistent with the Valley AVA existing AVA and explains how the proposed Candy Mountain AVA proposed AVA is sufficiently distinct gradually decreases as one moves up the As previously noted, the petition to from the existing AVA and therefore mountain, and the sediment is not establish the proposed Candy Mountain appropriate for separate recognition; found within the upper 70 feet of the AVA also requested an expansion of the and proposed AVA. By contrast, the regions established 1,093-square mile Yakima • A detailed narrative description of to the north, south, and west of the Valley AVA. The proposed Candy the proposed AVA boundary based on mountain and the proposed Candy Mountain AVA is located in the USGS map markings. Mountain AVA are at lower elevations northeastern portion of the Yakima and, therefore, have thicker Valley AVA. Most of the proposed Candy Mountain Petition accumulations of flood sediments in Candy Mountain AVA would, if TTB received a petition from Dr. their soils. established, be located within the Kevin R. Pogue, a professor of geology According to the petition, the soils of current boundary of the Yakima Valley at Whitman College, proposing the the proposed AVA have an effect on AVA. However, unless the boundary of establishment of the ‘‘Candy Mountain’’ viticulture. The soils are fairly loose, the Yakima Valley AVA is modified, a AVA in Benton County, Washington. which allows for root expansion. The small portion of the proposed Candy

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Mountain AVA would be outside the boundary, and other required characteristics with both established Yakima Valley AVA. The proposed information submitted in support of the AVAs. For example, the proposed AVA modification of the Yakima Valley AVA petition. In addition, given the proposed is located within the Yakima River boundary would increase the size of the Candy Mountain AVA’s location within drainage basin, which is a characteristic established AVA by 72 acres and would the Yakima Valley and Columbia Valley of the Yakima Valley AVA. The result in the entire proposed Candy AVAs, TTB solicited comments on Warden-Shano Association and the Mountain AVA being within the Yakima whether the evidence submitted in the Scootenay-Starbuck Association soils Valley AVA. petition regarding the distinguishing are found within both the proposed The petition states that the vineyards features of the proposed AVA AVA and the Yakima Valley AVA. within the proposed expansion area are sufficiently differentiates it from the two Elevations within the proposed AVA are within the proposed Candy Mountain established AVAs. TTB also requested under 2,000 feet, which is a general AVA but lie approximately 600 feet comments on whether the geographic characteristic of the Columbia Valley outside of the current boundary of the features of the proposed AVA are so AVA. However, the Candy Mountain Yakima Valley AVA. The vineyards did distinguishable from the two established AVA is located on an isolated mountain, not exist at the time the Yakima Valley AVAs that the proposed AVA should no whereas the majority of the Yakima AVA was established. However, the longer be part of the established AVAs. Valley and Columbia Valley AVAs are petition states that the proposed The comment period closed October 18, described as broad, flat valleys. expansion area is associated with both 2019. Additionally, the proposed AVA has the feature known as the Yakima Valley In response to Notice No. 184, TTB steeper slope angles than much of the and the Yakima Valley AVA. For received a total of two comments. One land within the Columbia Valley and example, the proposed expansion area is of the comments was from a winery Yakima Valley AVAs. part of the larger Yakima River drainage owner who sources grapes from both the basin, which is a characteristic of the proposed Candy Mountain AVA and the Boundary Description Yakima Valley AVA. Additionally, the adjacent Red Mountain AVA (27 CFR See the narrative description of the petition states that the owners of Kitzke 9.167). The commenter supports the boundary of the Candy Mountain AVA Cellars, who manage the seven acres of proposed Candy Mountain AVA and the Yakima Valley AVA boundary vineyards within the proposed because ‘‘there do appear to be modification in the regulatory text expansion area, have aligned themselves differences due to a sense of place published at the end of this final rule. with the Yakima Valley AVA through between those two adjacent (proposed) their membership in Wine Yakima AVAs.’’ The second comment was from Maps Valley, which is the Yakima Valley the petitioner, Dr. Kevin Pogue. In his The petitioners provided the required AVA’s marketing organization. comment, Dr. Pogue pointed out that the maps, and they are listed below in the The petition asserts that the proposed proposed rule incorrectly identified the regulatory text. The Candy Mountain expansion area has similar soils, size of the Yakima Valley AVA as 1,093 AVA boundary and the modified elevation, slope angles, and slope aspect acres instead of 1,093 square miles. TTB as the remainder of the proposed Candy notes that it has corrected the Yakima Valley AVA boundary may also Mountain AVA, which is within the description of the size of the Yakima be viewed on the AVA Map Explorer on Yakima Valley AVA. The petition also Valley AVA in this final rule document. the TTB website, at https://www.ttb.gov/ describes the general similarities that Neither of the comments mentioned the wine/ava-map-explorer. the entire proposed Candy Mountain proposed expansion of the established Impact on Current Wine Labels AVA shares with the established Yakima Valley AVA or the inclusion of Yakima Valley AVA, such as similar soil the proposed Candy Mountain AVA Part 4 of the TTB regulations prohibits series and geology. within the established Yakima Valley or any label reference on a wine that Columbia Valley AVAs. indicates or implies an origin other than Notice of Proposed Rulemaking and the wine’s true place of origin. For a Comments Received TTB Determination wine to be labeled with an AVA name TTB published Notice No. 184 in the After careful review of the petition or with a brand name that includes an Federal Register on August 19, 2019 (84 and the comments received in response AVA name, at least 85 percent of the FR 42863), proposing to establish the to Notice No. 184, TTB finds that the wine must be derived from grapes Candy Mountain AVA and expand the evidence provided by the petitioner grown within the area represented by Yakima Valley AVA. In the notice, TTB supports the establishment of the Candy that name, and the wine must meet the summarized the evidence from the Mountain AVA and the modification of other conditions listed in § 4.25(e)(3) of petition regarding the name, boundary, the Yakima Valley AVA boundary. the TTB regulations (27 CFR 4.25(e)(3)). and distinguishing features for the Accordingly, under the authority of the If the wine is not eligible for labeling proposed AVA and the proposed AVA FAA Act, section 1111(d) of the with an AVA name and that name expansion area. The notice also Homeland Security Act of 2002, and appears in the brand name, then the compared the distinguishing features of parts 4 and 9 of the TTB regulations, label is not in compliance and the the proposed AVA and the proposed TTB establishes the ‘‘Candy Mountain’’ bottler must change the brand name and expansion area to the surrounding areas. AVA in Benton County, Washington, obtain approval of a new label. For a detailed description of the and modifies the boundary of the Similarly, if the AVA name appears in evidence relating to the name, Yakima Valley AVA effective 30 days another reference on the label in a boundary, and distinguishing features of from the publication date of this misleading manner, the bottler would the proposed AVA and boundary document. have to obtain approval of a new label. modification, and for a detailed TTB has also determined that the Different rules apply if a wine has a comparison of the distinguishing Candy Mountain AVA will remain part brand name containing an AVA name features of the proposed AVA to the of both the established Columbia Valley that was used as a brand name on a surrounding areas, see Notice No. 184. AVA and the Yakima Valley AVA. As label approved before July 7, 1986. See In Notice No. 184, TTB solicited discussed in Notice No. 184, the Candy § 4.39(i)(2) of the TTB regulations (27 comments on the accuracy of the name, Mountain AVA shares some broad CFR 4.39(i)(2)) for details.

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With the establishment of the Candy List of Subjects in 27 CFR Part 9 (10) Proceed southeast in a straight Mountain AVA, its name, ‘‘Candy Wine. line, crossing onto the Walla Walla map, Mountain,’’ will be recognized as a to the top of Badger Mountain; name of viticultural significance under The Regulatory Amendment * * * * * § 4.39(i)(3) of the TTB regulations (27 For the reasons discussed in the ■ 3. Add § 9.272 to read as follows: CFR 4.39(i)(3)). The text of the preamble, TTB amends title 27, chapter regulations clarifies this point. I, part 9, Code of Federal Regulations, as § 9.272 Candy Mountain. Consequently, wine bottlers using the follows: name ‘‘Candy Mountain’’ in a brand (a) Name. The name of the viticultural name, including a trademark, or in PART 9—AMERICAN VITICULTURAL area described in this section is ‘‘Candy another label reference as to the origin AREAS Mountain’’. For purposes of part 4 of of the wine, will have to ensure that the this chapter, ‘‘Candy Mountain’’ is a product is eligible to use the AVA name ■ 1. The authority citation for part 9 term of viticultural significance. as an appellation of origin. continues to read as follows: (b) Approved maps. The three United The establishment of the Candy Authority: 27 U.S.C. 205. States Geological Survey (USGS) Mountain AVA will not affect the 1:24,000 scale topographic maps used to existing Columbia Valley or Yakima Subpart C—Approved American determine the boundary of the Candy Valley AVAs, and any bottlers using Viticultural Areas Mountain viticultural area are titled: ‘‘Columbia Valley’’ or ‘‘Yakima Valley’’ ■ 2. Amend § 9.69 by revising (1) Badger Mountain, Washington, as an appellation of origin or in a brand paragraphs (b) and (c)(4), redesignating 2013; name for wines made from grapes grown paragraphs (c)(5) through (c)(10) as within the Columbia Valley or Yakima (2) Benton City, Washington, 2013; paragraphs (c)(11) through (16), and Valley AVAs will not be affected by the and adding new paragraphs (c)(5) through establishment of this new AVA. The (3) Richland, Washington, 2014. (c)(10) to read as follows: establishment of the Candy Mountain (c) Boundary. The Candy Mountain AVA will allow vintners to use ‘‘Candy § 9.69 Yakima Valley. viticultural area is located in Benton Mountain,’’ ‘‘Yakima Valley,’’ and * * * * * County in Washington. The boundary of ‘‘Columbia Valley’’ as appellations of (b) Approved maps. The United States the Candy Mountain viticultural area is origin for wines made primarily from Geological Survey (USGS) maps used to as described below: grapes grown within the Candy determine the boundary of the Yakima (1) The beginning point is on the Mountain AVA if the wines meet the Valley viticultural area are titled: Badger Mountain map at the eligibility requirements for these (1) Walla Walla, Washington southernmost point of an unnamed road appellations. (1:250,000 scale), 1953; limited revision known locally as Arena Road. From the The modification of the Yakima 1963; beginning point, proceed northwest in a Valley AVA boundary will allow (2) Yakima, Washington (1:250,000 straight line for approximately 1.85 vintners to use ‘‘Yakima Valley,’’ scale), 1958; revised 1971; miles, crossing onto the Benton City ‘‘Columbia Valley,’’ and ‘‘Candy (3) Benton City, WA (1:24,000 scale), map, to the intersection with East Mountain’’ as appellations of origin for 2013; Kennedy Road NE; then wines made primarily from grapes (4) Badger Mountain, Washington grown within the expansion area if the (1:24,000 scale), 2013; and (2) Proceed westerly along East wines meet the eligibility requirements (5) Richland, Washington (1:24,000 Kennedy Road NE for approximately for these appellations. scale), 2014. 2,500 feet to the intersection with an intermittent creek approximately 0.8 Regulatory Flexibility Act * * * * * mile south of Lost Lake; then (c) * * * TTB certifies that this regulation will (4) Then southeast, crossing onto the (3) Proceed southeasterly along the not have a significant economic impact Benton City map, to the top of Red easternmost fork of the intermittent on a substantial number of small Mountain; creek to the intersection with Interstate entities. The regulation imposes no new (5) Then southeast to a point on East 82; then reporting, recordkeeping, or other Kennedy Road approximately 2,500 feet (4) Proceed southeast along Interstate administrative requirement. Any benefit east of an intermittent stream flowing 82 for 2.25 miles, crossing over the derived from the use of an AVA name north into Lost Lake; Richland map and onto the Badger would be the result of a proprietor’s (6) Then southeast across the top of Mountain map, and continuing along efforts and consumer acceptance of Candy Mountain, crossing onto the the ramp onto Interstate 182 to a point wines from that area. Therefore, no Badger Mountain map, and continuing due south of the intersection of Dallas regulatory flexibility analysis is to the intersection with the Road and an unnamed road known required. southernmost point of an unnamed road locally as East 260 Private Road NE; Executive Order 12866 known locally as Arena Road; then then (7) Proceed north for 0.45 mile along (5) Proceed north in a straight line for It has been determined that this final Arena Road, crossing onto the Richland 0.5 mile, crossing onto the Richland rule is not a significant regulatory action map, to the intersection with the 670- map, to the intersection of Dallas Road as defined by Executive Order 12866 of foot elevation contour; then and the 670-foot elevation contour; then September 30, 1993. Therefore, no (8) Proceed generally east for 0.4 mile regulatory assessment is required. along the elevation contour to the (6) Proceed west along the 670-foot intersection with Dallas Road; then elevation contour for 0.4 mile to the Drafting Information (9) Proceed south in a straight line for intersection with Arena Road; then Karen A. Thornton of the Regulations 0.5 mile, crossing onto the Badger (7) Proceed southerly along Arena and Rulings Division drafted this final Mountain map, to the intersection with Road for approximately 0.45 miles, rule. Interstate 182; then returning to the beginning point.

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Signed: April 14, 2020. 2020, unless otherwise indicated, and Mariners, press releases, and other Mary G. Ryan, were terminated before they could be means. Moreover, actual notification is Acting Administrator. published in the Federal Register. provided by Coast Guard patrol vessels Approved: August 12, 2020. ADDRESSES: Temporary rules listed in enforcing the restrictions imposed by Timothy E. Skud, this document may be viewed online, the rule. Because Federal Register Deputy Assistant Secretary, Tax, Trade, and under their respective docket numbers, publication was not possible before the Tariff Policy. using the Federal eRulemaking Portal at end of the effective period, mariners [FR Doc. 2020–18741 Filed 9–24–20; 8:45 am] http://www.regulations.gov. were personally notified of the contents BILLING CODE 4810–31–P FOR FURTHER INFORMATION CONTACT: For of these safety zones, security zones, questions on this document contact special local regulations, regulated Yeoman First Class Glenn Grayer, Office navigation areas or drawbridge DEPARTMENT OF HOMELAND of Regulations and Administrative Law, operation regulations by Coast Guard SECURITY telephone (202) 372–3862. officials on-scene prior to any SUPPLEMENTARY INFORMATION: Coast enforcement action. However, the Coast Coast Guard Guard District Commanders and Guard, by law, must publish in the Captains of the Port (COTP) must be Federal Register notice of substantive 33 CFR Parts 100 and 165 immediately responsive to the safety rules adopted. To meet this obligation and security needs within their [Docket Number USCG–2020–0318] without imposing undue expense on the jurisdiction; therefore, District public, the Coast Guard periodically 2020 Quarterly Listings; Safety Zones, Commanders and COTPs have been publishes a list of these temporary Security Zones, and Special Local delegated the authority to issue certain safety zones, security zones, special Regulations local regulations. Safety zones may be local regulations, regulated navigation established for safety or environmental areas and drawbridge operation AGENCY: Coast Guard, DHS. purposes. A safety zone may be regulations. Permanent rules are not ACTION: Notification of expired stationary and described by fixed limits included in this list because they are temporary rules issued. or it may be described as a zone around published in their entirety in the a vessel in motion. Security zones limit Federal Register. Temporary rules are SUMMARY: This document provides access to prevent injury or damage to notification of substantive rules issued also published in their entirety if vessels, ports, or waterfront facilities. sufficient time is available to do so by the Coast Guard that were made Special local regulations are issued to temporarily effective but expired before before they are placed in effect or enhance the safety of participants and terminated. they could be published in the Federal spectators at regattas and other marine Register. This document lists temporary events. The following unpublished rules were safety zones, security zones, and special Timely publication of these rules in placed in effect temporarily during the local regulations, all of limited duration the Federal Register may be precluded period between July 2019 and March and for which timely publication in the when a rule responds to an emergency, 2020 unless otherwise indicated. To Federal Register was not possible. or when an event occurs without view copies of these rules, visit DATES: This document lists temporary sufficient advance notice. The affected www.regulations.gov and search by the Coast Guard rules that became effective, public is, however, often informed of docket number indicated in the primarily between July 2019 and March these rules through Local Notices to following table.

Docket No. Type Location Effective date

USCG–2019–0623 ...... Safety Zone ...... Port Buffalo Zone ...... 7/7/2019 USCG–2019–0547 ...... Safety Zone ...... Cleveland, OH ...... 7/12/2019 USCG–2019–0539 ...... Safety Zone ...... Port Buffalo Zone ...... 7/12/2019 USCG–2019–0611 ...... Safety Zone ...... Clayton, NY ...... 7/20/2019 USCG–2019–0396 ...... Safety Zone ...... Cleveland, OH ...... 7/21/2019 USCG–2019–0583 ...... Safety Zone ...... Pacific Grove, CA ...... 7/27/2019 USCG–2019–0473 ...... Safety Zone ...... Kendall, NY ...... 8/3/2019 USCG–2019–0601 ...... Safety Zone ...... North Tonawanda, NY ...... 8/3/2019 USCG–2019–0680 ...... Safety Zone ...... Erie, PA ...... 8/27/2019 USCG–2019–0713 ...... Safety Zone ...... Port Buffalo Zone ...... 9/1/2019 USCG–2019–0723 ...... Safety Zone ...... Sodus Point, NY ...... 9/2/2019 USCG–2019–0731 ...... Safety Zone ...... Westfield, NY ...... 9/3/2019 USCG–2019–0708 ...... Safety Zone ...... Conneaut, OH ...... 9/7/2019 USCG–2019–0668 ...... Safety Zone ...... Conneaut, OH ...... 9/7/2019 USCG–2019–0711 ...... Safety Zone ...... Lake Erie, Vermilion, OH ...... 9/14/2019 USCG–2019–0766 ...... Safety Zone ...... Bratenahl, OH ...... 9/17/2019 USCG–2019–0779 ...... Safety Zone ...... Verona, NY ...... 9/17/2019 USCG–2019–0791 ...... Safety Zone ...... Presque Isle Bay, Erie, PA ...... 10/1/2019 USCG–2019–0805 ...... Safety Zone ...... Cuyahoga River ...... 10/5/2019 USCG–2019–0969 ...... Safety Zone ...... Alameda, CA ...... 1/5/2020 USCG–2020–0002 ...... Safety Zone ...... Ft Lauderdale, FL ...... 1/6/2020 USCG–2020–0016 ...... Security Zones (Part 165) ...... Toledo, OH ...... 1/9/2020 USCG–2020–0018 ...... Safety Zone ...... Menominee, MI ...... 1/18/2020 USCG–2020–0026 ...... Security Zones (Part 165) ...... New Orleans, LA ...... 1/18/2020 USCG–2020–0059 ...... Safety Zone ...... Port New York Zone ...... 1/23/2020 USCG–2020–0020 ...... Special Local Regulations ...... Tampa, FL ...... 1/25/2020 USCG–2020–0083 ...... Security Zones (Part 165) ...... Wildwood, NJ ...... 1/28/2020 USCG–2020–0070 ...... Safety Zone ...... Chicago, IL ...... 1/28/2020

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Docket No. Type Location Effective date

USCG–2020–0077 ...... Safety Zone ...... Naval Station Everett, WA ...... 1/30/2020 USCG–2020–0079 ...... Safety Zone ...... Smithland, KY ...... 1/30/2020 USCG–2020–0072 ...... Safety Zone ...... Hamilton Township, NJ ...... 2/1/2020 USCG–2020–0131 ...... Security Zones (Part 165) ...... Norfolk, VA ...... 2/19/2020 USCG–2020–0104 ...... Safety Zone ...... New Orleans, LA ...... 2/19/2020 USCG–2020–0164 ...... Safety Zone ...... Shackleford Banks, NC ...... 3/6/2020 USCG–2020–0193 ...... Safety Zone ...... Key West, FL ...... 3/19/2020 USCG–2020–0200 ...... Safety Zone ...... Green Bay, WI ...... 3/24/2020

Dated: September 17, 2020. closed to visitors with limited provided in 40 CFR part 178. To ensure M.T. Cunningham, exceptions. The staff continues to proper receipt by EPA, you must Chief, Office of Regulations and provide remote customer service via identify docket ID number EPA–HQ– Administrative Law, United States Coast email, phone, and webform. For the OPP–2019–0388 in the subject line on Guard. latest status information on EPA/DC the first page of your submission. All [FR Doc. 2020–20945 Filed 9–24–20; 8:45 am] services and docket access, visit https:// objections and requests for a hearing BILLING CODE 9110–04–P www.epa.gov/dockets. must be in writing and must be received FOR FURTHER INFORMATION CONTACT: by the Hearing Clerk on or before Marietta Echeverria, Registration November 24, 2020. Addresses for mail ENVIRONMENTAL PROTECTION Division (7505P), Office of Pesticide and hand delivery of objections and AGENCY Programs, Environmental Protection hearing requests are provided in 40 CFR Agency, 1200 Pennsylvania Ave. NW, 178.25(b). 40 CFR Part 180 Washington, DC 20460–0001; main In addition to filing an objection or hearing request with the Hearing Clerk [EPA–HQ–OPP–2019–0388; FRL–10013–77] telephone number: (703) 305–7090; email address: [email protected]. as described in 40 CFR part 178, please Saflufenacil; Pesticide Tolerances SUPPLEMENTARY INFORMATION: submit a copy of the filing (excluding any Confidential Business Information AGENCY: Environmental Protection I. General Information (CBI)) for inclusion in the public docket. Agency (EPA). A. Does this action apply to me? Information not marked confidential ACTION: Final rule. You may be potentially affected by pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior SUMMARY: This regulation establishes this action if you are an agricultural producer, food manufacturer, or notice. Submit the non-CBI copy of your tolerances for residues of saflufenacil in objection or hearing request, identified or on the caneberry subgroup 13–07A, pesticide manufacturer. The following list of North American Industrial by docket ID number EPA–HQ–OPP– fig, chia seed and chia straw. 2019–0388, by one of the following Interregional Research Project Number 4 Classification System (NAICS) codes is not intended to be exhaustive, but rather methods: (IR–4) requested these tolerances under • Federal eRulemaking Portal: http:// provides a guide to help readers the Federal Food, Drug, and Cosmetic www.regulations.gov. Follow the online determine whether this document Act (FFDCA). instructions for submitting comments. applies to them. Potentially affected DATES: This regulation is effective Do not submit electronically any September 25, 2020. Objections and entities may include: • information you consider to be CBI or requests for hearings must be received Crop production (NAICS code 111). • Animal production (NAICS code other information whose disclosure is on or before November 24, 2020, and restricted by statute. must be filed in accordance with the 112). • • Food manufacturing (NAICS code Mail: OPP Docket, Environmental instructions provided in 40 CFR part 311). Protection Agency Docket Center (EPA/ 178 (see also Unit I.C. of the • Pesticide manufacturing (NAICS DC), (28221T), 1200 Pennsylvania Ave. SUPPLEMENTARY INFORMATION). code 32532). NW, Washington, DC 20460–0001. ADDRESSES: The docket for this action, • Hand Delivery: To make special identified by docket identification (ID) B. How can I get electronic access to arrangements for hand delivery or number EPA–HQ–OPP–2019–0388, is other related information? delivery of boxed information, please available at http://www.regulations.gov You may access a frequently updated follow the instructions at http:// or at the Office of Pesticide Programs electronic version of EPA’s tolerance www.epa.gov/dockets/contacts.html. Regulatory Public Docket (OPP Docket) regulations at 40 CFR part 180 through Additional instructions on in the Environmental Protection Agency the Government Publishing Office’s e- commenting or visiting the docket, Docket Center (EPA/DC), West William CFR site at http://www.ecfr.gov/cgi-bin/ along with more information about Jefferson Clinton Bldg., Rm. 3334, 1301 text-idx?&c=ecfr&tpl=/ecfrbrowse/ dockets generally, is available at http:// Constitution Ave. NW, Washington, DC Title40/40tab_02.tpl. www.epa.gov/dockets. 20460–0001. The Public Reading Room II. Summary of Petitioned-For is open from 8:30 a.m. to 4:30 p.m., C. How can I file an objection or hearing Tolerance Monday through Friday, excluding legal request? holidays. The telephone number for the Under FFDCA section 408(g), 21 In the Federal Register of August 2, Public Reading Room is (202) 566–1744, U.S.C. 346a, any person may file an 2019 (84 FR 37818) (FRL–9996–78), and the telephone number for the OPP objection to any aspect of this regulation EPA issued a document pursuant to Docket is (703) 305–5805. and may also request a hearing on those FFDCA section 408(d)(3), 21 U.S.C. Due to the public health concerns objections. You must file your objection 346a(d)(3), announcing the filing of a related to COVID–19, the EPA Docket or request a hearing on this regulation pesticide petition (PP 9E8763) by IR–4, Center (EPA/DC) and Reading Room is in accordance with the instructions IR–4 Project Headquarters, Rutgers, The

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State University of New Jersey, 500 of saflufenacil in or on pomegranate IV. Other Considerations College Road East, Suite 201 W, based on the Agency’s conclusion that A. Analytical Enforcement Methodology Princeton, NJ 08540. The petition aggregate exposure to saflufenacil is safe requested the establishment of for the general population, including Adequate enforcement methodology tolerances in 40 CFR 180.613(a) for infants and children. See (80 FR 73663) (liquid chromatography/mass residues of the herbicide saflufenacil, (FRL–9936–71). EPA is incorporating spectroscopy/mass spectroscopy (LC/ including its metabolites and the following portions of that document MS/MS) Method D0603/02 is available degradates, in or on the following raw by reference here, as they have not to enforce the tolerance expression. The agricultural commodities: Caneberry changed in the Agency’s current method may be requested from: Chief, subgroup 13–07A at 0.03 parts per assessment of saflufenacil tolerances: Analytical Chemistry Branch, million (ppm), Chia, seed at 1 ppm, The toxicological profile and points of Environmental Science Center, 701 Chia, straw at 15 ppm, Fig at 0.03 ppm, departure, the conclusions about Mapes Rd., Ft. Meade, MD 20755–5350; and Fig, dried at 0.05 ppm. That cumulative risk, and the Agency’s telephone number: (410) 305–2905; document referenced a summary of the determination regarding the children’s email address: residuemethods@ petition prepared by BASF, the safety factor. EPA’s dietary (food and epa.gov. registrant, which is available in the drinking water) exposure assessments docket, http://www.regulations.gov. No have been updated to include the B. International Residue Limits comments were received in response to additional exposure from the new uses In making its tolerance decisions, EPA the notice of filing. of saflufenacil on the caneberry seeks to harmonize U.S. tolerances with Based upon review of the data subgroup, fig, and chia. international standards whenever supporting the petition, EPA is The assessment used the same possible, consistent with U.S. food establishing tolerances that vary from assumptions concerning percent crop safety standards and agricultural what was requested. The reasons for treated and tolerance-level residues and practices. EPA considers the these changes are explained in Unit the same estimated drinking water international maximum residue limits IV.C. concentrations as the November 25, (MRLs) established by the Codex III. Aggregate Risk Assessment and 2015 final rule. Alimentarius Commission (Codex), as Determination of Safety Acute dietary risks are below the required by FFDCA section 408(b)(4). Section 408(b)(2)(A)(i) of FFDCA Agency’s level of concern of 100% of The Codex Alimentarius is a joint allows EPA to establish a tolerance (the the acute population adjusted dose United Nations Food and Agriculture legal limit for a pesticide chemical (aPAD): They are less than 1% of the Organization/World Health residue in or on a food) only if EPA aPAD for all infants less than 1 year old, Organization food standards program, determines that the tolerance is ‘‘safe.’’ the population subgroup with the and it is recognized as an international Section 408(b)(2)(A)(ii) of FFDCA highest exposure estimate. Chronic food safety standards-setting defines ‘‘safe’’ to mean that ‘‘there is a dietary risks are below the Agency’s organization in trade agreements to reasonable certainty that no harm will level of concern of 100% of the chronic which the United States is a party. EPA result from aggregate exposure to the population adjusted dose (cPAD): They may establish a tolerance that is pesticide chemical residue, including are 20% of the cPAD for all infants less different from a Codex MRL; however, all anticipated dietary exposures and all than 1 year old, the population FFDCA section 408(b)(4) requires that other exposures for which there is subgroup with the highest exposure EPA explain the reasons for departing reliable information.’’ This includes estimate. There is no short- or from the Codex level. No Codex MRLs exposure through drinking water and in intermediate-term exposure expected have been established for saflufenacil on residential settings but does not include since there are no residential uses. fig, chia and caneberry. Therefore, the acute and chronic occupational exposure. Section C. Revisions to Petitioned-For aggregate risks consist only of the 408(b)(2)(C) of FFDCA requires EPA to Tolerances give special consideration to exposure dietary risks from food and water and, of infants and children to the pesticide as stated above, are below the Agency’s The tolerance levels being established chemical residue in establishing a level of concern. by EPA for the caneberry subgroup 13– tolerance and to ‘‘ensure that there is a Therefore, based on the risk 07A and fig differ from those proposed reasonable certainty that no harm will assessments and information described by the petitioner due to differences in result to infants and children from above, EPA concludes there is a calculating the combined limits of aggregate exposure to the pesticide reasonable certainty that no harm will quantitation (LOQs) for residues of chemical residue. . . .’’ result to the general population, or to saflufenacil and its metabolites. The Consistent with FFDCA section infants and children, from aggregate combined LOQs of 0.035 ppm were 408(b)(2)(D), and the factors specified in exposure to saflufenacil residues. More rounded to 0.04 ppm by EPA versus FFDCA section 408(b)(2)(D), EPA has detailed information about the Agency’s 0.03 ppm by the petitioner. For chia, reviewed the available scientific data analysis can be found at http:// EPA is translating from the currently and other relevant information in www.regulations.gov in the document established tolerances for residues on support of this action. EPA has titled ‘‘Saflufenacil. Human Health Risk wheat commodities rather than barley sufficient data to assess the hazards of Assessment in Support of Tolerances for commodities, resulting in tolerance and to make a determination on Residues in/on Pomegranate’’ dated levels of 0.6 ppm for Chia, seed and 6 aggregate exposure for saflufenacil November 5, 2015 in docket ID EPA– ppm for Chia, straw. Quantifiable including exposure resulting from the HQ–OPP–2014–0640 and the document residues were found in dried figs; tolerances established by this action. titled ‘‘Saflufenacil. Human Health Draft however, when residues are adjusted for EPA’s assessment of exposures and risks Risk Assessment for a Petition to the degree of exaggeration, the residue associated with saflufenacil follows. Establish Tolerances for Residues in/on value is below the recommended fresh On November 25, 2015, EPA Caneberry Subgroup 13–07A, Fig, and fig tolerance level (0.04 ppm). A published in the Federal Register a final Chia’’ dated August 7, 2020 in docket ID separate tolerance for residues on dried rule establishing tolerances for residues number EPA–HQ–OPP–2019–0388. fig is therefore not required.

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V. Conclusion under FFDCA section 408(d), such as VII. Congressional Review Act Therefore, tolerances are established the tolerances and modifications in this Pursuant to the Congressional Review for residues of saflufenacil in or on the final rule, do not require the issuance of Act (5 U.S.C. 801 et seq.), EPA will caneberry subgroup 13–07A at 0.04 a proposed rule, the requirements of the submit a report containing this rule and ppm; chia, seed at 0.6 ppm; chia, straw Regulatory Flexibility Act (RFA) (5 other required information to the U.S. at 6 ppm; and fig at 0.04 ppm. U.S.C. 601 et seq.), do not apply. Senate, the U.S. House of Representatives, and the Comptroller VI. Statutory and Executive Order This action directly regulates growers, General of the United States prior to Reviews food processors, food handlers, and food retailers, not States or Tribes, nor does publication of the rule in the Federal This action establishes tolerances this action alter the relationships or Register. This action is not a ‘‘major under FFDCA section 408(d) in distribution of power and rule’’ as defined by 5 U.S.C. 804(2). response to a petition submitted to the responsibilities established by Congress List of Subjects in 40 CFR Part 180 Agency. The Office of Management and in the preemption provisions of FFDCA Budget (OMB) has exempted these types section 408(n)(4). As such, the Agency Environmental protection, of actions from review under Executive Administrative practice and procedure, has determined that this action will not Order 12866, entitled ‘‘Regulatory Agricultural commodities, Pesticides have a substantial direct effect on States Planning and Review’’ (58 FR 51735, and pests, Reporting and recordkeeping or Tribal Governments, on the October 4, 1993). Because this action requirements. relationship between the National has been exempted from review under Dated: August 25, 2020. Executive Order 12866, this action is Government and the States or Tribal Marietta Echeverria, not subject to Executive Order 13211, Governments, or on the distribution of entitled ‘‘Actions Concerning power and responsibilities among the Acting Director, Registration Division, Office of Pesticide Programs. Regulations That Significantly Affect various levels of government or between Energy Supply, Distribution, or Use’’ (66 the Federal Government and Indian Therefore, for the reasons stated in the FR 28355, May 22, 2001) or Executive Tribes. Thus, the Agency has preamble, EPA is amending 40 CFR Order 13045, entitled ‘‘Protection of determined that Executive Order 13132, chapter I as follows: Children from Environmental Health entitled ‘‘Federalism’’ (64 FR 43255, Risks and Safety Risks’’ (62 FR 19885, August 10, 1999) and Executive Order PART 180—TOLERANCES AND April 23, 1997), nor is it considered a 13175, entitled ‘‘Consultation and EXEMPTIONS FOR PESTICIDE regulatory action under Executive Order Coordination with Indian Tribal CHEMICAL RESIDUES IN FOOD 13771, entitled ‘‘Reducing Regulations Governments’’ (65 FR 67249, November ■ 1. The authority citation for part 180 and Controlling Regulatory Costs’’ (82 9, 2000) do not apply to this action. In continues to read as follows: FR 9339, February 3, 2017). This action addition, this action does not impose does not contain any information any enforceable duty or contain any Authority: 21 U.S.C. 321(q), 346a and 371. collections subject to OMB approval unfunded mandate as described under ■ 2. In § 180.649 amend paragraph (a)(1) under the Paperwork Reduction Act Title II of the Unfunded Mandates by designating the table and adding, (PRA) (44 U.S.C. 3501 et seq.), nor does Reform Act (UMRA) (2 U.S.C. 1501 et alphabetical order, in newly designated it require any special considerations seq.). Table 1 to paragraph (a)(1) the entries under Executive Order 12898, entitled ‘‘Caneberry subgroup 13–07A’’; ‘‘Chia, This action does not involve any ‘‘Federal Actions to Address seed’’; ‘‘Chia, straw’’; and ‘‘Fig’’ to read technical standards that would require Environmental Justice in Minority as follows: Populations and Low-Income Agency consideration of voluntary Populations’’ (59 FR 7629, February 16, consensus standards pursuant to section § 180.649 Saflufenacil; tolerances for 1994). 12(d) of the National Technology residues. Since tolerances and exemptions that Transfer and Advancement Act (a) * * * are established on the basis of a petition (NTTAA) (15 U.S.C. 272 note). (1) * * *

TABLE 1 TO PARAGRAPH (a)(1)

Parts per Commodity million

******* Caneberry subgroup 13–07A ...... 0.04 Chia, seed ...... 0.6 Chia, straw ...... 6

******* Fig ...... 0.04

*******

* * * * * [FR Doc. 2020–19762 Filed 9–24–20; 8:45 am] BILLING CODE 6560–50–P

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ENVIRONMENTAL PROTECTION Pollution Prevention Division (7511P), pursuant to 40 CFR part 2 may be AGENCY Office of Pesticide Programs, disclosed publicly by EPA without prior Environmental Protection Agency, 1200 notice. Submit the non-CBI copy of your 40 CFR Part 180 Pennsylvania Ave. NW, Washington, DC objection or hearing request, identified [EPA–HQ–OPP–2019–0324; FRL–10013–33] 20460–0001; main telephone number: by docket ID number EPA–HQ–OPP– (703) 305–7090; email address: 2019–0324, by one of the following Trichoderma asperellum, Strain T34; [email protected]. methods: Exemption From the Requirement of a SUPPLEMENTARY INFORMATION : • Federal eRulemaking Portal: http:// Tolerance I. General Information www.regulations.gov. Follow the online AGENCY: instructions for submitting comments. Environmental Protection A. Does this action apply to me? Agency (EPA). Do not submit electronically any ACTION: Final rule. You may be potentially affected by information you consider to be CBI or this action if you are an agricultural other information whose disclosure is SUMMARY: This regulation establishes an producer, food manufacturer, or restricted by statute. exemption from the requirement of a pesticide manufacturer. The following • Mail: OPP Docket, Environmental tolerance for residues of Trichoderma list of North American Industrial Protection Agency Docket Center (EPA/ asperellum, strain T34 in or on all food Classification System (NAICS) codes is commodities when used in accordance not intended to be exhaustive, but rather DC), (28221T), 1200 Pennsylvania Ave. with label directions and good provides a guide to help readers NW, Washington, DC 20460–0001. agricultural practices. Biocontrol determine whether this document • Hand Delivery: To make special Technologies S.L. submitted a petition applies to them. Potentially affected arrangements for hand delivery or to EPA under the Federal Food, Drug, entities may include: delivery of boxed information, please and Cosmetic Act (FFDCA), requesting • Crop production (NAICS code 111). follow the instructions at http:// • an exemption from the requirement of a Animal production (NAICS code www.epa.gov/dockets/contacts.html. tolerance. This regulation eliminates the 112). Additional instructions on commenting • need to establish a maximum Food manufacturing (NAICS code or visiting the docket, along with more permissible level for residues of 311). • information about dockets generally, is Trichoderma asperellum, strain T34 Pesticide manufacturing (NAICS available at http://www.epa.gov/ code 32532). under FFDCA when used in accordance dockets. with this exemption. B. How can I get electronic access to II. Background DATES: This regulation is effective other related information? September 25, 2020. Objections and You may access a frequently updated In the Federal Register of August 2, requests for hearings must be received electronic version of 40 CFR part 180 2019 (84 FR 37818) (FRL–9996–78), on or before November 24, 2020, and through the Government Publishing EPA issued a document pursuant to must be filed in accordance with the Office’s e-CFR site at http:// FFDCA section 408(d)(3), 21 U.S.C. instructions provided in 40 CFR part www.ecfr.gov/cgi-bin/text-idx?& 178 (see also Unit I.C. of the 346a(d)(3), announcing the filing of a c=ecfr&tpl=/ecfrbrowse/Title40/40tab_ SUPPLEMENTARY INFORMATION). pesticide tolerance petition (PP 9F8735) 02.tpl. by Biocontrol Technologies, S.L. Avgda. ADDRESSES: The docket for this action, Madrid, 215–217, entreso`l A 08014 identified by docket identification (ID) C. How can I file an objection or hearing Barcelona, Spain (c/o Wagner number EPA–HQ–OPP–2019–0324, is request? available at http://www.regulations.gov Regulatory Associates, Inc., P.O. Box Under FFDCA section 408(g), 21 640, Hockessin, DE 19707). The petition or at the Office of Pesticide Programs U.S.C. 346a(g), any person may file an requested that 40 CFR part 180 be Regulatory Public Docket (OPP Docket) objection to any aspect of this regulation amended by establishing an exemption in the Environmental Protection Agency and may also request a hearing on those from the requirement of a tolerance for Docket Center (EPA/DC), West William objections. You must file your objection Jefferson Clinton Bldg., Rm. 3334, 1301 or request a hearing on this regulation residues of Trichoderma asperellum, Constitution Ave. NW, Washington, DC in accordance with the instructions strain T34 in or on all food 20460–0001. The Public Reading Room provided in 40 CFR part 178. To ensure commodities. That document referenced is open from 8:30 a.m. to 4:30 p.m., proper receipt by EPA, you must a summary of the petition prepared by Monday through Friday, excluding legal identify docket ID number EPA–HQ– the petitioner Biocontrol Technologies, holidays. The telephone number for the OPP–2019–0324 in the subject line on S.L., which is available in the docket via Public Reading Room is (202) 566–1744, the first page of your submission. All http://www.regulations.gov. There were and the telephone number for the OPP objections and requests for a hearing no comments received in response to Docket is (703) 305–5805. must be in writing, and must be the notice of filing. Due to the public health concerns received by the Hearing Clerk on or III. Final Rule related to COVID–19, the EPA Docket before November 24, 2020. Addresses Center (EPA/DC) and Reading Room is for mail and hand delivery of objections A. EPA’s Safety Determination closed to visitors with limited and hearing requests are provided in 40 exceptions. The staff continues to CFR 178.25(b). Section 408(c)(2)(A)(i) of FFDCA provide remote customer service via In addition to filing an objection or allows EPA to establish an exemption email, phone, and webform. For the hearing request with the Hearing Clerk from the requirement for a tolerance (the latest status information on EPA/DC as described in 40 CFR part 178, please legal limit for a pesticide chemical services and docket access, visit https:// submit a copy of the filing (excluding residue in or on a food) only if EPA www.epa.gov/dockets. any Confidential Business Information determines that the exemption is ‘‘safe.’’ FOR FURTHER INFORMATION CONTACT: (CBI)) for inclusion in the public docket. Section 408(c)(2)(A)(ii) of FFDCA Anne Overstreet, Biopesticides and Information not marked confidential defines ‘‘safe’’ to mean that ‘‘there is a

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reasonable certainty that no harm will relating to culture filtrates and killed Children from Environmental Health result from aggregate exposure to the cultures. The studies demonstrated no Risks and Safety Risks’’ (62 FR 19885, pesticide chemical residue, including toxicity to the test animals when April 23, 1997), nor is it considered a all anticipated dietary exposures and all injected with either Trichoderma regulatory action under Executive Order other exposures for which there is asperellum, strain T34 spores or culture 13771, entitled ‘‘Reducing Regulations reliable information.’’ This includes filtrate. Furthermore, acute oral, dermal, and Controlling Regulatory Costs’’ (82 exposure through drinking water and in and inhalation toxicity studies and FR 9339, February 3, 2017). This action residential settings but does not include acute eye and primary dermal irritation does not contain any information occupational exposure. Pursuant to studies conducted with a mixture collections subject to OMB approval FFDCA section 408(c)(2)(B), in making a containing Trichoderma asperellum, under the Paperwork Reduction Act safety determination to establish an strain T34 demonstrated no toxic or (PRA), 44 U.S.C. 3501 et seq., nor does exemption from the requirement of a irritant effects. Although there may be it require any special considerations tolerance, EPA must take into account dietary and non-occupational exposure under Executive Order 12898, entitled the factors set forth in FFDCA section to residues of Trichoderma asperellum, ‘‘Federal Actions to Address 408(b)(2)(C), which require EPA to give strain T34 when it is used on food Environmental Justice in Minority special consideration to exposure of commodities, there is not a concern due Populations and Low-Income infants and children to the pesticide to the lack of potential for adverse Populations’’ (59 FR 7629, February 16, chemical residue in establishing a effects. EPA also determined that 1994). tolerance exemption and to ‘‘ensure that retention of the Food Quality Protection Since tolerances and exemptions that there is a reasonable certainty that no Act safety factor was not necessary as are established on the basis of a petition harm will result to infants and children part of the qualitative assessment under FFDCA section 408(d), such as from aggregate exposure to the pesticide conducted for Trichoderma asperellum, the tolerance exemption in this action, chemical residue. . . .’’ Additionally, strain T34. do not require the issuance of a FFDCA section 408(b)(2)(D) requires Based upon its evaluation, EPA proposed rule, the requirements of the that EPA consider ‘‘available concludes that there is a reasonable Regulatory Flexibility Act (RFA) (5 information concerning the cumulative certainty that no harm will result to the U.S.C. 601 et seq.) do not apply. effects of [a particular pesticide’s] U.S. population, including infants and This action directly regulates growers, residues and other substances that have children, from aggregate exposure to food processors, food handlers, and food a common mechanism of toxicity.’’ residues of Trichoderma asperellum, retailers, not States or Tribes. As a EPA evaluated the available toxicity strain T34. Therefore, an exemption result, this action does not alter the and exposure data on Trichoderma from the requirement of a tolerance is relationships or distribution of power asperellum, strain T34 and considered established for residues of Trichoderma and responsibilities established by its validity, completeness, and asperellum, strain T34 in or on all food Congress in the preemption provisions reliability, as well as the relationship of commodities when used in accordance of FFDCA section 408(n)(4). As such, this information to human risk. A full with label directions and good EPA has determined that this action will explanation of the data upon which EPA agricultural practices. not have a substantial direct effect on relied and its risk assessment based on States or Tribal Governments, on the B. Analytical Enforcement Methodology that data can be found within the relationship between the National document entitled ‘‘Federal Food, Drug, An analytical method for enforcement Government and the States or Tribal and Cosmetic Act (FFDCA) Safety purposes is not required because EPA Governments, or on the distribution of Determination for Trichoderma has determined that reasonably power and responsibilities among the asperellum, strain T34.’’ This document, foreseeable exposure to residues of various levels of government or between as well as other relevant information, is Trichoderma asperellum, strain T34 the Federal Government and Indian available in the docket for this action as from use of the pesticide will be safe, Tribes. Thus, EPA has determined that described under ADDRESSES. due to lack of toxicity, pathogenicity, Executive Order 13132, entitled The available data demonstrated that, and infectivity. Under those ‘‘Federalism’’ (64 FR 43255, August 10, with regard to humans, Trichoderma circumstances, it is unnecessary to have 1999), and Executive Order 13175, asperellum, strain T34 is not toxic, an analytical method to monitor for entitled ‘‘Consultation and Coordination pathogenic, or infective via any residues. with Indian Tribal Governments’’ (65 FR reasonably foreseeable route of IV. Statutory and Executive Order 67249, November 9, 2000), do not apply exposure. The submitted acute oral Reviews to this action. In addition, this action toxicity/pathogenicity and acute does not impose any enforceable duty or pulmonary toxicity/pathogenicity This action establishes a tolerance contain any unfunded mandate as studies demonstrated no signs of exemption under FFDCA section 408(d) described under Title II of the Unfunded toxicity, infectivity, or pathogenicity. in response to a petition submitted to Mandates Reform Act (UMRA) (2 U.S.C. Although the first submitted acute EPA. The Office of Management and 1501 et seq.). injection toxicity/pathogenicity study Budget (OMB) has exempted these types This action does not involve any caused mortality to the test animals, the of actions from review under Executive technical standards that would require mortality was attributed to high spore Order 12866, entitled ‘‘Regulatory EPA’s consideration of voluntary concentration, not due to toxin Planning and Review’’ (58 FR 51735, consensus standards pursuant to section production, as demonstrated by data October 4, 1993). Because this action 12(d) of the National Technology and information required by EPA to has been exempted from review under Transfer and Advancement Act address the mortality. A second Executive Order 12866, this action is (NTTAA) (15 U.S.C. 272 note). injection toxicity/pathogenicity study not subject to Executive Order 13211, was performed at a lower dose and only entitled ‘‘Actions Concerning V. Congressional Review Act two of the 24 test animals died. Regulations That Significantly Affect Pursuant to the Congressional Review Additional acute injection toxicity/ Energy Supply, Distribution, or Use’’ (66 Act (5 U.S.C. 801 et seq.), EPA will pathogenicity studies were required as a FR 28355, May 22, 2001), or Executive submit a report containing this rule and term of registration to address a concern Order 13045, entitled ‘‘Protection of other required information to the U.S.

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Senate, the U.S. House of the Federal Food, Drug, and Cosmetic • Crop production (NAICS code 111). Representatives, and the Comptroller Act (FFDCA), requesting that EPA • Animal production (NAICS code General of the United States prior to amend the existing tolerance exemption 112). publication of the rule in the Federal for Aspergillus flavus NRRL 21882. This • Register. This action is not a ‘‘major regulation eliminates the need to Food manufacturing (NAICS code rule’’ as defined by 5 U.S.C. 804(2). establish a maximum permissible level 311). for residues of Aspergillus flavus NRRL • Pesticide manufacturing (NAICS List of Subjects in 40 CFR Part 180 21882 on these crops. code 32532). Environmental protection, DATES: This regulation is effective B. How can I get electronic access to Administrative practice and procedure, September 25, 2020. Objections and other related information? Agricultural commodities, Pesticides requests for hearings must be received and pests, Reporting and recordkeeping on or before November 24, 2020 and You may access a frequently updated requirements. must be filed in accordance with the electronic version of 40 CFR part 180 Dated: September 2, 2020. instructions provided in 40 CFR part through the Government Publishing Edward Messina, 178 (see also Unit I.C. of the Office’s e-CFR site at https:// Acting Director, Office of Pesticide Programs. SUPPLEMENTARY INFORMATION). www.ecfr.gov/cgi-bin/text- Therefore, for the reasons stated in the ADDRESSES: The docket for this action, idx?&c=ecfr&tpl=/ecfrbrowse/Title40/ preamble, EPA is amending 40 CFR identified by docket identification (ID) 40tab_02.tpl. chapter I as follows: number EPA–HQ–OPP–2019–0692, is available at https://www.regulations.gov C. How can I file an objection or hearing PART 180—TOLERANCES AND or at the Office of Pesticide Programs request? EXEMPTIONS FOR PESTICIDE Regulatory Public Docket (OPP Docket) CHEMICAL RESIDUES IN FOOD in the EPA Docket Center (EPA/DC), Under FFDCA section 408(g), 21 West William Jefferson Clinton Bldg., U.S.C. 346a(g), any person may file an ■ 1. The authority citation for part 180 Rm. 3334, 1301 Constitution Ave. NW, objection to any aspect of this regulation continues to read as follows: Washington, DC 20460–0001. The and may also request a hearing on those Authority: 21 U.S.C. 321(q), 346a and 371. Public Reading Room is open from 8:30 objections. You must file your objection a.m. to 4:30 p.m., Monday through or request a hearing on this regulation ■ 2. Add § 180.1379 to subpart D to read Friday, excluding legal holidays. The in accordance with the instructions as follows: telephone number for the Public provided in 40 CFR part 178. To ensure § 180.1379 Trichoderma asperellum, strain Reading Room is (202) 566–1744, and proper receipt by EPA, you must T34; exemption from the requirement of a the telephone number for the OPP identify docket ID number EPA–HQ– tolerance. Docket is (703) 305–5805. OPP–2019–0692 in the subject line on An exemption from the requirement Due to the public health concerns the first page of your submission. All of a tolerance is established for residues related to COVID–19, the EPA Docket objections and requests for a hearing of Trichoderma asperellum, strain T34 Center (EPA/DC) and Reading Room is must be in writing and must be received in or on all food commodities when closed to visitors with limited by the Hearing Clerk on or before used in accordance with label directions exceptions. The staff continues to November 24, 2020. Addresses for mail and good agricultural practices. provide remote customer service via and hand delivery of objections and [FR Doc. 2020–20653 Filed 9–24–20; 8:45 am] email, phone, and webform. For the hearing requests are provided in 40 CFR latest status information on EPA/DC BILLING CODE 6560–50–P 178.25(b). services and docket access, visit https:// In addition to filing an objection or www.epa.gov/dockets. hearing request with the Hearing Clerk ENVIRONMENTAL PROTECTION FOR FURTHER INFORMATION CONTACT: as described in 40 CFR part 178, please AGENCY Anne Overstreet, Biopesticides and submit a copy of the filing (excluding Pollution Prevention Division (7511P), 40 CFR Part 180 any Confidential Business Information Office of Pesticide Programs, (CBI)) for inclusion in the public docket. Environmental Protection Agency, 1200 [EPA–HQ–OPP–2019–0692; FRL–10014–38] Information not marked confidential Pennsylvania Ave. NW, Washington, DC pursuant to 40 CFR part 2 may be Aspergillus flavus NRRL 21882; 20460–0001; main telephone number: disclosed publicly by EPA without prior Amendment to an Exemption From the (703) 305–7090; email address: notice. Submit the non-CBI copy of your Requirement of a Tolerance [email protected]. objection or hearing request, identified SUPPLEMENTARY INFORMATION: AGENCY: Environmental Protection by docket ID number EPA–HQ–OPP– Agency (EPA). I. General Information 2019–0692, by one of the following methods: ACTION: Final rule. A. Does this action apply to me? • Federal eRulemaking Portal: SUMMARY: This regulation amends the You may be potentially affected by https://www.regulations.gov. Follow the existing tolerance exemptions for this action if you are an agricultural online instructions for submitting residues of Aspergillus flavus NRRL producer, food manufacturer, or comments. Do not submit electronically 21882 in or on corn and peanut pesticide manufacturer. The following any information you consider to be CBI commodities by clarifying that the list of North American Industrial exemption covers all food and feed Classification System (NAICS) codes is or other information whose disclosure is commodities of these crops and by not intended to be exhaustive, but rather restricted by statute. establishing an exemption for all food provides a guide to help readers • Mail: OPP Docket, Environmental and feed commodities of almond and determine whether this document Protection Agency Docket Center (EPA/ pistachio. Syngenta Crop Protection, applies to them. Potentially affected DC), (28221T), 1200 Pennsylvania Ave. LLC submitted a petition to EPA under entities may include: NW, Washington, DC 20460–0001.

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• Hand Delivery: To make special reliable information.’’ This includes corn, pop; corn, sweet; peanut; and arrangements for hand delivery or exposure through drinking water and in pistachio when used in accordance with delivery of boxed information, please residential settings but does not include label directions and good agricultural follow the instructions at https:// occupational exposure. Pursuant to practices. FFDCA section 408(c)(2)(B), in www.epa.gov/dockets/where-send- V. Statutory and Executive Order establishing or maintaining in effect an comments-epa-dockets. Reviews Additional instructions on exemption from the requirement of a commenting or visiting the docket, tolerance, EPA must take into account This action modifies and establishes along with more information about the factors set forth in FFDCA section tolerance exemptions under FFDCA dockets generally, is available at https:// 408(b)(2)(C), which require EPA to give section 408(d) in response to a petition www.epa.gov/dockets/about-epa- special consideration to exposure of submitted to EPA. The Office of dockets. infants and children to the pesticide Management and Budget (OMB) has chemical residue in establishing a exempted these types of actions from II. Background tolerance or tolerance exemption and to review under Executive Order 12866, In the Federal Register of February ‘‘ensure that there is a reasonable entitled ‘‘Regulatory Planning and 10, 2020 (85 FR 7499) (FRL–10004–54), certainty that no harm will result to Review’’ (58 FR 51735, October 4, 1993). EPA issued a document pursuant to infants and children from aggregate Because this action has been exempted FFDCA section 408(d)(3), 21 U.S.C. exposure to the pesticide chemical from review under Executive Order 346a(d)(3), announcing the filing of a residue. . . .’’ Additionally, FFDCA 12866, this action is not subject to pesticide tolerance exemption petition section 408(b)(2)(D) requires that EPA Executive Order 13211, entitled (PP 9F8780) by Syngenta Crop consider ‘‘available information ‘‘Actions Concerning Regulations That Protection, LLC, 410 South Swing Rd., concerning the cumulative effects of [a Significantly Affect Energy Supply, Greensboro, NC 27409. The petition particular pesticide’s] . . . residues and Distribution, or Use’’ (66 FR 28355, May requested that 40 CFR 180.1254 be other substances that have a common 22, 2001), or Executive Order 13045, amended by establishing an exemption mechanism of toxicity.’’ entitled ‘‘Protection of Children from from the requirement of a tolerance for EPA evaluated the available Environmental Health Risks and Safety residues of the fungicide Aspergillus toxicological and exposure data on Risks’’ (62 FR 19885, April 23, 1997), flavus NRRL 21882 in or on almond and Aspergillus flavus NRRL 21882 and nor is it considered a regulatory action pistachio. That document referenced a considered their validity, completeness, under Executive Order 13771, entitled summary of the petition prepared by the and reliability, as well as the ‘‘Reducing Regulations and Controlling petitioner Syngenta Crop Protection, relationship of this information to Regulatory Costs’’ (82 FR 9339, February LLC and is available in the docket via human risk. A full explanation of the 3, 2017). This action does not contain https://www.regulations.gov. No data upon which EPA relied can be any information collections subject to comments were received on the notice found in the preamble to the 2004 OMB approval under the Paperwork of filing. tolerance exemption in the Federal Reduction Act, 44 U.S.C. 3501 et seq., Since the time the original notice of Register of June 30, 2004 (69 FR 39341) nor does it require any special filing was published, the petitioner (FRL–7364–2) and in its risk assessment considerations under Executive Order provided a revised petition requesting a entitled ‘‘Federal Food, Drug, and 12898, entitled ‘‘Federal Actions to revision to the existing tolerance Cosmetic Act (FFDCA) Safety Address Environmental Justice in exemption to include all food and feed Determination for Aspergillus flavus Minority Populations and Low-Income commodities of almond; corn, field; NRRL 21882’’ (Safety Determination Populations’’ (59 FR 7629, February 16, corn, pop; corn, sweet; peanut; and Document). The Safety Determination 1994). Since tolerances and exemptions that pistachio. In order to give the public an Document, as well as other relevant are modified on the basis of a petition opportunity to comment on this new information, is available in the docket under FFDCA section 408(d), such as information, EPA published its receipt for this action as described under the tolerance exemption in this action, of this revised petition in the Federal ADDRESSES. Based upon its evaluation in do not require the issuance of a Register of June 1, 2020 (85 FR 33059) the Safety Determination Document, proposed rule, the requirements of the (FRL–10009–29) and placed a revised EPA concludes that there is a reasonable Regulatory Flexibility Act (5 U.S.C. 601 petition from Syngenta Crop Protection, certainty that no harm will result to the et seq.) do not apply. LLC into the docket. No comments were U.S. population, including infants and children, from aggregate exposure to This action directly regulates growers, received in response to the republished food processors, food handlers, and food notice of filing. residues of Aspergillus flavus NRRL 21882. retailers, not States or Tribes. As a III. Final Rule result, this action does not alter the B. Analytical Enforcement Methodology relationships or distribution of power A. EPA’s safety determination An analytical method is not required and responsibilities established by Section 408(c)(2)(A)(i) of FFDCA for Aspergillus flavus NRRL 21882 Congress in the preemption provisions allows EPA to establish an exemption because EPA is amending an exemption of FFDCA section 408(n)(4). As such, from the requirement of a tolerance (the from the requirement of a tolerance EPA determined that this action will not legal limit for a pesticide chemical without any numerical limitation. have a substantial direct effect on States residue in or on a food) only if EPA or Tribal governments, on the determines that the exemption is ‘‘safe.’’ IV. Conclusion relationship between the National Section 408(c)(2)(A)(ii) of FFDCA Therefore, the existing tolerance Government and the States or Tribal defines ‘‘safe’’ to mean that ‘‘there is a exemption for Aspergillus flavus NRRL governments, or on the distribution of reasonable certainty that no harm will 21882 is amended by establishing an power and responsibilities among the result from aggregate exposure to the exemption from the requirement of various levels of government or between pesticide chemical residue, including tolerance for residues of Aspergillus the Federal Government and Indian all anticipated dietary exposures and all flavus NRRL 21882 in or on all food and Tribes. Thus, EPA determined that other exposures for which there is feed commodities of almond; corn, field; Executive Order 13132, entitled

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‘‘Federalism’’ (64 FR 43255, August 10, label directions and good agricultural Southern Maine, New Hampshire, and 1999), and Executive Order 13175, practices. Northern Massachusetts Coastal Region. entitled ‘‘Consultation and Coordination [FR Doc. 2020–21107 Filed 9–24–20; 8:45 am] FOR FURTHER INFORMATION CONTACT: Ms. with Indian Tribal Governments’’ (65 FR BILLING CODE 6560–50–P Regina Lyons, U.S. Environmental 67249, November 9, 2000), do not apply Protection Agency, Region 1, 5 Post to this action. In addition, this action Office Square, Suite 100, Mail Code: 06– does not impose any enforceable duty or ENVIRONMENTAL PROTECTION 1, Boston, MA 02109–3912, telephone: contain any unfunded mandate as AGENCY (617) 918–1557; fax: (617) 918–0557; described under Title II of the Unfunded email address: [email protected]. Mandates Reform Act (2 U.S.C. 1501 et 40 CFR Part 228 SUPPLEMENTARY INFORMATION: seq.). [EPA–R01–OW–2019–0521; FRL–10014–99– Organization of this document. The This action does not involve any Region 1] following outline is provided to aid in technical standards that would require locating information in this preamble. EPA’s consideration of voluntary Ocean Disposal; Designation of an I. Final Action consensus standards pursuant to section Ocean Dredged Material Disposal Site II. Background 12(d) of the National Technology for the Southern Maine, New III. Purpose and Need Transfer and Advancement Act (15 Hampshire, and Northern IV. Disposal Site Description U.S.C. 272 note). Massachusetts Coastal Region V. Potentially Affected Entities VI. Summary of Public Comments and EPA’s VI. Congressional Review Act AGENCY: Environmental Protection Response Agency (EPA). VII. Compliance With Statutory and Pursuant to the Congressional Review Regulatory Authorities ACTION: Final rule. Act (5 U.S.C. 801 et seq.), EPA will A. Marine Protection, Research, and Sanctuaries Act submit a report containing this rule and SUMMARY: With the publication of this other required information to the U.S. B. National Environmental Policy Act Final Rule, the Environmental C. Coastal Zone Management Act Senate, the U.S. House of Protection Agency (EPA) is designating D. Endangered Species Act Representatives, and the Comptroller one ocean dredged material disposal site E. Magnuson-Stevens Fishery Conservation General of the United States prior to (ODMDS), the Isles of Shoals North and Management Act publication of the rule in the Federal Disposal Site (IOSN), located in the Gulf VIII. Supporting Documents Register. This action is not a ‘‘major of Maine off the coast of southern Maine IX. Statutory and Executive Order Reviews rule’’ as defined by 5 U.S.C. 804(2). and New Hampshire, pursuant to the I. Final Action Marine Protection, Research, and List of Subjects in 40 CFR Part 180 EPA is publishing this Final Rule to Sanctuaries Act (MPRSA). This action is designate the IOSN for the purpose of necessary to serve the long-term need Environmental protection, providing an ocean disposal option for for an ODMDS for the possible future Administrative practice and procedure, possible use in managing dredged disposal of suitable dredged material Agricultural commodities, Pesticides material from harbors and navigation from harbors and navigation channels in and pests, Reporting and recordkeeping channels in the southern Maine, New southern Maine, New Hampshire, and requirements. Hampshire, and northern Massachusetts northern Massachusetts. The basis for Dated: September 17, 2020. coastal region. The site designation is this action is described herein and in effective for an indefinite period of time. Jean Overstreet, the Final Environmental Assessment Without designation of this ODMDS, Acting Director, Biopesticides and Pollution (FEA). The FEA identifies designation of there will not be an ocean disposal site Prevention Division, Office of Pesticide the IOSN as the preferred alternative available to serve this region after Programs. from the range of options considered. December 31, 2021, when the current The Site Management and Monitoring Therefore, for the reasons stated in the Congressionally-authorized term of use Plan (SMMP) is provided as Appendix preamble, EPA is amending 40 CFR for the Cape Arundel Disposal Site G of the FEA. chapter I as follows: (CADS) expires. Use of the IOSN is DATES: The Final rule is effective on subject to any restrictions and PART 180—TOLERANCES AND October 26, 2020. procedures included in the site EXEMPTIONS FOR PESTICIDE ADDRESSES: EPA has established a designation and the approved SMMP. CHEMICAL RESIDUES IN FOOD docket for this action under Docket These restrictions are based on a Identification No. EPA–R01–OW–2019– thorough evaluation of the site pursuant ■ 1. The authority citation for part 180 0521, through the Federal eRulemaking to the Ocean Dumping Regulations, continues to read as follows: Portal: https://www.regulations.gov. potential disposal activity expected at Authority: 21 U.S.C. 321(q), 346a and 371. Docket: Publicly available docket the site, and consideration of public materials are available either review and comment. Additional ■ 2. Revise § 180.1254 to read as electronically at regulations.gov or on restrictions may be placed on any follows: the EPA Region 1 Ocean Dumping web permit or authorization to use the site. page at https://www.epa.gov/ocean- The site designation process has been § 180.1254 Aspergillus flavus NRRL 21882; dumping/isles-shoals-north-disposal- conducted pursuant to the requirements exemption from the requirement of a site. They are also available in hard of the MPRSA, Coastal Zone tolerance. copy during normal business hours at Management Act (CZMA), and other Residues of Aspergillus flavus NRRL the EPA Region 1 Library, 5 Post Office applicable federal and state statutes and 21882 are exempt from the requirement Square, Boston, MA 02109. regulations. Compliance with these of a tolerance in or on all food and feed The supporting document for this site requirements is described in detail in commodities of almond; corn, field; designation is the Final Environmental Section VII (‘‘Compliance with Statutory corn, pop; corn, sweet; peanut; and Assessment for Designation of an Ocean and Regulatory Requirements’’). The pistachio when used in accordance with Dredged Material Disposal Site for the basis for this federal action is further

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described in the FEA that identifies EPA more than two consecutive five-year (SMMP) for each designated ODMDS. 33 designation of the IOSN as the preferred terms. Id. In the absence of an EPA- U.S.C. 1412(c)(3). As described above, alternative. The FEA also is being designated site off the coast of southern EPA has developed a SMMP for the released in conjunction with the Maine, New Hampshire, or Northern IOSN, which is included as Appendix G publication of this Final Rule. After full Massachusetts, the USACE previously of the FEA. A draft of this SMMP was consideration of public comments and selected an alternative site in this area: available for public comment. EPA is extensive interagency coordination, EPA The Cape Arundel Disposal Site authorized to terminate or limit the use determined that the designation of IOSN (CADS). USACE New England District of these sites to further disposal activity will not have significant environmental website, https:// if their use causes unacceptable adverse impacts. Therefore, EPA is issuing a www.nae.usace.army.mil/Missions/ impacts. 40 CFR 228.11. Any such Finding of No Significant Impact Disposal-Area-Monitoring-System- future terminations or limitations ‘‘will (FONSI) with the FEA. The FONSI DAMOS/Disposal-Sites/Cape-Arundel/. be made through promulgation of an documents why the agency has However, this alternative site will no amendment to the disposal site concluded that no significant longer be available after December 31, designation set forth in . . . [40 CFR environmental impacts are expected to 2021, when its Congressionally- Part] 228. . . .’’ Id. result from the action. authorized term of use expires. See III. Purpose and Need Public Law 115–270, Section 1312. II. Background Designation of an ODMDS by EPA Periodic dredging of harbors and On September 18, 2019, EPA does not by itself authorize the disposal channels and, therefore, dredged published in the Federal Register (84 at that site of dredged material from any material management, are essential for FR 49075) a proposed rule (the dredging project. Designation of the ensuring safe navigation and facilitating Proposed Rule) to designate the IOSN as IOSN would only make that ocean site marine commerce. This is because the an ODMDS off the coast of southern available for disposal of dredged natural processes of erosion and Maine and New Hampshire. In the same material from specific projects after they siltation result in sediment Federal Register document, EPA have been permitted or authorized by accumulation in federal navigation announced the availability for public the USACE pursuant to the MPRSA. channels, harbors, port facilities, comment of a Draft Environmental Such permit or authorization will only marinas, and other important areas of Assessment (DEA) and draft FONSI that be provided if the applicable MPRSA our water bodies. Unsafe navigational provided a more detailed explanation of regulations are satisfied, which means conditions not only threaten public the various studies, interagency that no other environmentally safety, but also pose an environmental coordination, and public participation preferable, practicable alternative for threat from an increased risk of spills that supported the proposed action. The managing that dredged material exists, from vessels involved in accidents. DEA included the draft SMMP as and that evaluation of the dredged Economic considerations also Appendix G. These documents were material indicates that it is suitable for contribute to the need for dredging (and available for public comment for 30 ocean disposal under the MPRSA. See the environmentally sound management days. 40 CFR 227.1(b), 227.2 and 227.3; 40 of dredged material). There are many The MPRSA directs EPA to designate CFR part 227, Subparts B and C. important navigation-dependent ‘‘sites . . . for [permitted] dumping that The Congressionally-defined purpose businesses and industries in the will mitigate adverse impact on the of the MPRSA is to ‘‘regulate the southern Maine, New Hampshire, and environment to the greatest extent dumping of all types of materials into northern Massachusetts coastal region, practicable.’’ 33 U.S.C. 1412(c). On ocean waters and to prevent or strictly including shipping (especially the October 1, 1986, the Administrator limit the dumping into ocean waters of transportation of petroleum fuels and delegated the authority to designate any material which would adversely bulk materials), recreational boating- ODMDS to the Regional Administrator affect human health, welfare, or related businesses, marine of the Region in which the sites are amenities, or the marine environment, transportation, commercial and located. The preferred alternative site, ecological systems, or economic recreational fishing, interstate ferry IOSN, is located within the area potentialities.’’ 33 U.S.C. 1301. operations, and U.S. Navy and U.S. assigned to EPA Region 1. 40 CFR Therefore, ‘‘no person shall transport Coast Guard facilities. These businesses 1.7(b)(1). Therefore, this designation is from the United States . . . any material and industries contribute substantially occurring pursuant to the EPA Region 1 for the purpose of dumping it into ocean to the region’s economic output, the Administrator’s delegated authority. waters,’’ except as authorized by permit gross state product of the bordering EPA designates ODMDS by and subject to EPA regulations. 33 states, and tax revenue. Continued regulation. 40 CFR 228.4(e)(1), 228.15. U.S.C. 1411. EPA sets forth regulations access to harbors, berths, and mooring There are currently no EPA-designated implementing the MPRSA at 40 CFR areas is vital to ensuring the continued dredged material disposal sites off the parts 220–229 (Ocean Dumping economic health of these industries, and coast of southern Maine, New Regulations). The relevant regulations to preserving the ability of the region to Hampshire, or northern Massachusetts. are discussed in greater detail below, in import fuels, bulk supplies, and other See CFR 228.15. Section 103(b) of the the Compliance with Statutory and commodities at competitive prices and MPRSA, 33 U.S.C. 1413(b), provides Regulatory Authorities section. to preserve ocean access for the that any ocean disposal of dredged Under the Ocean Dumping commercial fishing fleet. In addition, material should occur at EPA- Regulations, EPA is responsible for the preserving navigation channels, designated sites to the maximum extent management of all ocean disposal sites marinas, harbors, berthing areas, and feasible. In cases where use of an EPA- designated under the MPRSA. See 40 other marine resources, improves the designated ocean disposal site is not CFR 228.3(b). To help prevent the quality of life for residents and visitors feasible, the MPRSA authorizes the U.S. occurrence of unacceptable adverse to the southern Maine, New Hampshire, Army Corps of Engineers (USACE) to impacts to public health or the and northern Massachusetts region by ‘‘select,’’ with concurrence from EPA, environment, the MPRSA requires EPA, facilitating recreational boating and an ‘‘alternative site.’’ 33 U.S.C. 1413(b). in conjunction with USACE, to develop associated activities, such as fishing and An alternative site may not be used for a site management and monitoring plan sightseeing.

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The purpose of this action is to describes the factors that should be or any other sites should be designated designate an ocean disposal site that considered in delineating the ZSF and for long-term use. will provide a long-term dredged recommends locating open-water IV. Disposal Site Description material disposal option for dredged disposal sites within an economically material from harbors and navigation and operationally feasible radius from The IOSN is located in the Gulf of channels in southern Maine, New areas where dredging occurs. EPA, Maine, approximately 10.8 nmi east of Hampshire, and northern Office of Marine and Estuarine Portsmouth, New Hampshire, 9.55 nmi Massachusetts. This is necessary to Protection, Ocean Dumping Site southeast of Kittery, Maine, and 6.04 ensure the viability of dredging projects Designation Delegation Handbook for nmi northeast of Eastern Island, the needed to maintain international Dredged Material (1986). This manual closest of the Isles of Shoals. As commerce and navigation through also directs EPA to consider described in Section 4 of the SMMP, the authorized federal navigation projects navigational restrictions, political or site is delineated as an 8,530 ft diameter and to ensure safe vessel passage for other jurisdictional boundaries, the circle on the seafloor with its center public and private entities. distance to the edge of the continental located at 70° 26.995′ W and 43° 1.142′ Other factors that EPA considered in shelf, the feasibility of surveillance and N. Water depths at the IOSN range from determining the need for an ODMDS to monitoring, and operation and 295 ft on the western edge of the site to serve this region include: (1) Projected transportation costs. The ZSF described 328 ft on the eastern edge as the seafloor dredging needs for the area were in Section 4 of the FEA includes the gradually slopes from west to east. The calculated to be approximately 1.5 coastal waters of the southern Maine, surficial sediments at the site are million cubic yards (mcy) of material New Hampshire, and northern predominately soft, fine-grained silts over the next 20 years, which Massachusetts region between Cape and clays. The seafloor within the site significantly exceeds the capacity of Porpoise, Maine, and Cape Ann, is generally a smooth, soft-textured available practicable alternatives to Massachusetts. These boundaries were surface with topographic highs present ocean disposal; (2) the states of Maine chosen because the center point outside the western, northern, and and New Hampshire have expressed between them is roughly equidistant to southeastern, boundaries of the site. concern that available, practicable the PDS to the north off Cape Elizabeth, dredged material disposal capacity is Maine, and the MBDS to the south off Three reference areas (REF–A, REF–B, insufficient to meet projected long-term Boston Harbor, Massachusetts. Factors and REF–C), to be used for site dredging needs and asked EPA to involved in defining the ZSF include monitoring purposes, are defined as 820 designate a new site; (3) the historically dredge cycle time, weather, and ft radius circles located at 70° 25.165′ used (from 1964–1970, according to distance from harbors and navigation W, 42° 59.282′ N; 70° 28.039′ W, 43° USACE records) former Isles of Shoals channels that require dredging. Adding 0.257′ N; and 70° 27.895′ W, 43° 2.280′ Disposal Site (IOSH) was examined for a site roughly central to this area of the N, respectively. The reference areas potential designation, however, this coast would result in a maximum haul were selected based on a review of former site is located in an area that distance of about 21 miles from any existing data and confirmed through a contains a diversity of habitats that are harbor to either the PDS, MBDS, or the baseline survey to represent areas of the not compatible with the ocean disposal new centrally located site. seafloor with similar bathymetric of dredged material; (4) the existing EPA does not consider the PDS and characteristics as the IOSN (see SMMP, CADS is a USACE short-term selected MBDS to be viable options for the p. 12). site under MPRSA section 103(b) that is southern Maine, New Hampshire, and scheduled to close on December 31, northern Massachusetts region given V. Potentially Affected Entities 2021; EPA considered designating an their distance from the ZSF, which Because the IOSN is offshore and in expanded CADS, but studies revealed would significantly increase the deep water, as described in the previous that suitable areas with the capacity for transport distance for, and duration of, section, it is not expected to affect near- an ODMDS are limited in and around ocean disposal for dredging projects shore entities. Persons potentially CADS; and (6) the closest EPA- from that region. This, in turn, would affected by this action include those designated ODMDSs to the southern greatly increase the cost of such projects who seek or might seek permits or Maine, New Hampshire, and northern and would likely render many dredging approval to dispose of dredged material projects too expensive to conduct, thus Massachusetts region are the Portland into ocean waters pursuant to the Dredged Material Disposal Site (PDS) threatening safe navigation and MPRSA, 33 U.S.C. 1401 to 1445. This and the Massachusetts Bay Disposal Site interfering with marine commerce and Final Rule is expected to be primarily of (MBDS), which are about 85.5 nautical recreation. Furthermore, the greater relevance to: (a) Persons, including miles (nmi) apart and would result in transport distance would also be organizations and government bodies, 30–40 nmi haul distances for several environmentally detrimental because it seeking MPRSA permits from the dredging centers in the region, would entail greater energy use, USACE to authorize the transport of rendering some dredging projects increased air emissions, dredging dredged material for disposal into the infeasible. projects of increased duration (with ocean waters off the coast of southern As one of the first steps in the site their own, separate, impacts), and Maine, New Hampshire, and northern designation process, EPA, in increased risk of spills or disposal Massachusetts; and (b) to the USACE coordination with other federal and outside of the designated site (‘‘short state agencies, delineated a Zone of dumps’’) (FEA, Section 7.0). itself for its own dredged material Siting Feasibility (ZSF). The ZSF is the Because the CADS is nearing capacity projects involving ocean disposal. geographic area from which reasonable and its authorized use is expiring on Potentially affected entities and and practicable ODMDS alternatives December 31, 2021, EPA’s ocean categories of entities that may seek to should be selected for evaluation. EPA’s disposal site designation studies were use the IOSN and would be subject to 1986 site designation guidance manual designed to determine whether this site the Final Rule include:

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Category examples of potentially affected entities

Federal government USACE (Civil Works Projects), U.S. Navy, U.S. Coast Guard, and other federal agencies. State, local, and tribal governments Governments owning and/or responsible for ports, harbors, and/or berths, government agencies requiring ocean disposal of dredged material associated with public works projects. Industry and general public Port authorities, shipyards and marine repair facilities, marinas and boatyards, and berth owners.

This table is not intended to be • Concerns about possible impacts to and (3) adding a new site management comprehensive, but rather provides a herring and cod spawning areas (three protocol. guide for readers regarding the types of commenters) As described above, several entities that could potentially be • Request for an economic analysis and commenters, including DOI and the affected by the Final Rule. EPA notes concerns about the economic impact SML, noted that the roseate tern, a that nothing in this Final Rule alters the to the fishing industry (three federally-listed endangered species, was jurisdiction or authority of EPA, the commenters) not included in the description of USACE, or the types of person regulated • Requesting notification of haul routes endangered species that may use the under the MPRSA. for input and notification of timing of area in which the IOSN is located in the dredging to the fishing industry (five DEA, and that therefore its potential VI. Summary of Public Comments and commenters) presence was not considered in EPA’s Response • Requesting notification of haul routes assessing the impact of designating the On September 18, 2019, EPA and timing of dredging to the Isle of IOSN. EPA has since consulted with the published a Proposed Rule in the Shoals communities (one commenter) USFWS on the roseate tern, in addition Federal Register (84 FR 49075) to notify • Requesting consultation with the Isle to other endangered and threatened the public of EPA’s proposal to of Shoals communities about the site species potentially using the area and designate the IOSN as an ODMDS and designation (one commenter) has added information about the roseate announcing the availability of the DEA • Concerns about impacts to the tern and its potential use of this area to supporting the proposal for a 30-day University of New Hampshire Isle of the FEA. As discussed in the ESA public comment period under Docket ID Shoals Marine Lab’s reverse osmosis subsection of the Compliance with EPA–R01–OW–2019–0521. On October system (one commenter) Statutory and Regulatory Authorities 9, 2019, EPA and the USACE held a • Concern about general environmental section of this Final Rule, the USFWS public meeting in Kittery, Maine, to assessment and potential impacts (one concurred with EPA’s determination present the Proposed Rule and DEA, commenter) that the designation of the IOSN would and to receive public comments. That • Request for more in-depth description not likely adversely impact any of the public meeting and another post- of site selection process (one endangered and threatened species that comment period public meeting are commenter) may use the area of the IOSN. further described in the National • Concern over oil spills and request for A couple of commenters, including Environmental Policy Act (NEPA) an oil spill contingency plan for the SML, stated that the presence of subsection of the Compliance with vessels transiting to the site (two whales, and particularly North Atlantic Statutory and Regulatory Authorities commenters) right whales, in the vicinity of the IOSN section of this Final Rule. The comment • Request for additional information was not adequately characterized in the period ended on October 18, 2019. about sediment travel and water DEA, and that therefore the impact of EPA received fifteen comments on the column impacts (two commenters) designating the IOSN on these species Proposed Rule and DEA from the • Request for considerations of the was not adequately considered in the Department of Interior (DOI); the states general health of the seafloor (one DEA or Proposed Rule. EPA has since consulted with NMFS on right whales of Maine and Massachusetts; the commenter) and other endangered and threatened University of New Hampshire Shoals • Request for the site to be moved species potentially using the area and Marine Laboratory (SML); further offshore (two commenter) has included additional information and representatives of the fishing industry, • Concern about vessel transit to and analysis about the right whale and its including fin fish and lobster; from the site (two commenters) potential use of this area in the FEA. As environmental groups; and private • Request for a monitoring plan (one discussed in the ESA subsection of the citizens. EPA received comments both commenters) Compliance with Statutory and in support of, and in disagreement or EPA has prepared a Response to Regulatory Authorities section of this raising concerns with, its proposed Comments document with individual Final Rule, NMFS concurred with EPA’s action, with some offering suggested responses to each group of similar determination that the designation of improvements. There was some overlap comments which, along with copies of the IOSN would not likely adversely among the comments received. The each of the public comments, have been impact any of the endangered and most significant comments received by included as Appendix J and Appendix threatened species that may use the area EPA are summarized below: I, respectively, of the FEA, which is of the IOSN. • Support of designating IOSN (nine available on the website identified in One commenter noted that the commenters) the ADDRESSES section of this notice. description of the location of the • Concerns about possible roseate tern In addition to preparing a Response to proposed IOSN in the Proposed Rule impacts (three commenters) Comments document, EPA has and DEA did not reflect its proximity to • Concerns about possible impacts to addressed some of the public comments the Isles of Shoals communities, lobsters (four commenters) by (1) adding some new information mentioning only its distance from • Concerns about possible impacts to about, and enhancing some of the Portsmouth, NH. They also noted that whales, particularly the North descriptions of, marine resources in the the concerns of these communities Atlantic right whale, and their habitat vicinity of the IOSN; (2) enhancing the should be considered in the decision- (two commenters) description of the location of the IOSN; making process. EPA has now revised

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the description of the IOSN in the Final sites. See generally 40 CFR part 228. The publication in the Federal Register and Rule and FEA to include its distance regulations enumerate general and on the EPA Region 1 web page. 84 FR from Portsmouth, NH, Kittery, ME, and specific criteria for site selection, 49075 (Oct. 18, 2019); https:// Eastern Island, the closest of the Isles of described in greater detail below. 40 www.epa.gov/ocean-dumping/isles- Shoals. EPA and the USACE also held CFR 228.5, 228.6. shoals-north-disposal-site. EPA has now a public meeting after the public EPA promulgates final disposal site prepared a thorough final comment period on December 5, 2019, designations at 40 CFR 228.15. To environmental evaluation of the in Portsmouth, NH, specifically targeted finalize a site designation, EPA must recommended alternative site to be to Isles of Shoals businesses and develop a site management plan which designated, other alternatives sites, and residents, to present general information includes specific details laid out by other courses of action (including the about dredging and dredged material statute. 33 U.S.C. 1412 (c)(4). Post- ‘‘no action’’ option of not designating disposal, and answer clarifying designation, EPA must, with USACE, open-water disposal sites). This questions. manage and monitor disposal sites. See evaluation is presented in the FEA (and A number of commenters, including 40 CFR 228.3, 228.9. related documents) and summarized in two state fisheries agencies and the EPA’s compliance with each of these this Final Rule. As described in the Massachusetts Lobstermen’s statutory and regulatory requirements in FEA, EPA has made a Finding of No Association, requested notification to designating IOSN is described in greater Significant Impact (FONSI); thus, no the fishing industry of scheduled detail below. environmental impact statement is dredging and dredged material haul 1. Procedural Requirements required for this site designation. routes to avoid conflicts. EPA has included a new Special Management Site designations for dredged material 2. Disposal Site Selection Criteria Practice (SMP) in the SMMP that are to ‘‘be made based on environmental EPA regulations under the MPRSA includes timeframes for notifications, studies of each site, regions adjacent to identify four general criteria and 11 submissions of brief descriptions of the site, and on historical knowledge of specific criteria for evaluating locations operations and maps of haul routes, and the impact of dredged material disposal for the potential designation of dredged procedures for the notice of any changes on areas similar to such sites in material disposal sites. 40 CFR 228.5, to the haul route. physical, chemical, and biological 228.6. The evaluation of the IOSN with characteristics.’’ 40 CFR 228.4. respect to the four general and 11 VII. Compliance With Statutory and Additionally, ‘‘the results of a disposal specific criteria is discussed in detail in Regulatory Authorities site evaluation and/or designation study the Section 4 of the FEA and supporting In designating the IOSN for the ocean . . . will be presented in support of the documents and is summarized below. disposal of suitable dredged material site designation promulgation as an from harbors and navigation channels in environmental assessment of the impact General Criteria (40 CFR 228.5) southern Maine, New Hampshire, and of the use of the site for disposal, and As described in greater detail in the northern Massachusetts, EPA has will be used in preparation of FEA, and summarized below, EPA has complied with the requirements of the environmental impact statement [‘‘EIS’’] determined that the IOSN satisfies the MPRSA, CZMA, the Endangered for each site where such a statement is four general criteria specified in 40 CFR Species Act (ESA), the Magnuson- required by EPA policy.’’ 40 CFR 228.6. 228.5. Stevens Fishery Conservation and EPA policy does not, however, require i. Sites should be selected to minimize Management Act (MSFCMA), the the preparation of an EIS for all MPRSA interference with other activities in the National Historic Preservation Act site designations. As described above, marine environment and regions of (NHPA), and all other applicable legal EPA’s site designation decisions are heavy commercial or recreational requirements, as further described exempt from the requirements of NEPA, navigation, particularly avoiding areas below. While it has been determined but pursuant to EPA’s Voluntary NEPA of existing fisheries or shellfisheries (40 that EPA disposal site designation Policy, the Agency nevertheless CFR 228.5(a)). evaluations conducted under the prepares NEPA analyses to support site EPA’s evaluation determined that use MPRSA are ‘‘functionally equivalent’’ to designation decisions. See 63 FR 58045, of the IOSN would cause minimal NEPA reviews and are not subject to 58046 (Oct. 29, 1988). EPA’s Voluntary interference with the activities NEPA analysis requirements as a matter NEPA Policy does not mandate EISs for identified in the criterion. EPA and the of law, EPA voluntarily uses NEPA all site designations and rather leaves it USACE used information from a variety procedures when evaluating the to the EPA office in question to decide of sources to determine what activities potential designation of ocean dumping on a case-by-case basis what level of might be interfered with by the disposal sites. Those procedures also are NEPA analysis—and EIS or an EA/ of dredged material at the IOSN. EPA described below. 63 FR 58045, 58046 FONSI—is appropriate. See id. (‘‘EPA considered recreational activities, (Oct. 29, 1988). believes that decisions on preparing commercial fishing areas, cultural or EISs for proposed ocean disposal sites historically significant areas, A. Marine Protection, Research, and should be made on a case-by-case commercial and recreational navigation, Sanctuaries Act basis.’’) and existing scientific research The MPRSA authorizes EPA to EPA has complied with all procedural activities. EPA and the USACE used designate sites for permitted ocean requirements related to the publication Geographic Information System data to disposal of dredged material ‘‘that will of this Final Rule and associated FEA. overlay the locations of various uses and mitigate adverse impact on the EPA, with appropriate consultation with natural resources of the marine environment to the greatest extent neighboring states and other agencies, environment on the disposal site practicable.’’ 33 U.S.C. 1412(c). EPA completed an environmental assessment location and surrounding areas regulations prescribe procedures for the of the impact of designating the IOSN. (including their bathymetry). Analysis designation of these sites. 40 CFR Furthermore, the DEA, including the of these data indicated that use of the 228.4(e). EPA regulations also prescribe draft SMMP, and Proposed Rule were site would have minimal potential for substantive guidelines for EPA’s made available for public comment on interfering with other ongoing uses of selection and management of disposal September 18, 2019, through the marine environment in and around

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the IOSN, including lobster harvesting EPA has determined, based on the haul distance to an off-shelf disposal or fishing activities. While the site is information presented in the FEA, that site is therefore much greater than the located in an area where periodic the IOSN alternative is sufficiently average operational limit of the southern fishing activity occurs and is within the limited in size to allow for the Maine, New Hampshire, and northern vast Gulf of Maine spawning areas for identification and control of any Massachusetts projects, making an off- cod and herring, it is not considered a immediate adverse impacts, and to shelf site infeasible for all projects. unique fishing ground or highly permit the implementation of effective Additionally, the cost for evaluation and significant fishery harvest area. Finally, monitoring and surveillance to prevent monitoring and the uncertainty of the the site is not located in shipping lanes adverse long-range impacts. The IOSN environmental effects of off-shelf or any other region of heavy commercial covers approximately 2.4 nmi2 of placement makes that option or recreational navigation. Furthermore, seafloor, which is approximately impracticable and undesirable. the site is located in an area where any 0.006% of the seafloor surface area of Environmental concerns include other vessels could easily navigate the Gulf of Maine. The long history of increased risk of encountering around any disposal vessels at or near dredged material disposal site endangered species during transit, the site, and the significant water depths monitoring in New England, and increased fuel consumption and air at the site mean that material disposed specifically at active and historically emissions, substantially extending the there will not interfere with navigation used dredged material disposal sites duration of dredging projects (with their by extending up too high into the water elsewhere in the Gulf of Maine, own, separate, impacts), and greater column. provides ample evidence that potential for accidents in transit that ii. Sites should be situated such that surveillance and monitoring programs could lead to dredged material being temporary perturbations to water quality are effective at determining physical, dumped in unintended areas. or other environmental conditions chemical, and biological impacts at sites USACE dredging and disposal records during initial mixing caused by disposal of a similar size to the alternative sites do not show evidence of dredged operations would be reduced to normal considered in this case. material ever having been placed at the ambient levels or to undetectable The IOSN is identified by specific area that encompasses the IOSN. The contaminant concentrations or effects coordinates spelled out in the Disposal only sites within the ZSF that have been before reaching any beach, shoreline, Site Description section of this Final used historically are the former IOSH marine sanctuary, or known Rule and the FEA, and the use of which, according to USACE records, geographically limited fishery or precision navigation equipment in both was used from 1964 to 1970, and the shellfishery (40 CFR 228.5(b)). dredged material disposal operations CADS, a USACE-selected MPRSA and monitoring efforts will enable section 103 site located off Cape EPA’s analysis concludes that the accurate disposal operations and Arundel, Maine. However, neither the IOSN satisfies this criterion. First, the contribute to effective management and IOSH nor the CADS would meet the site will be used only for the disposal monitoring of the sites. Detailed plans projected disposal needs because both of dredged material determined to be for the management and monitoring of are limited in their capacity to accept suitable for ocean disposal by the IOSN are described in the SMMP new material and both have seafloor application of the MPRSA’s ocean (Appendix G of the FEA). Finally, as areas that are incompatible with dumping criteria. See generally 33 discussed herein and in the FEA, EPA dredged material disposal due to the U.S.C. 1413; 40 CFR part 227. These has tailored the size of the IOSN based diversity of habitat and sediment types. criteria include provisions related to on site characteristics, such as bottom water quality and account for initial sediment type and bottom features, so Specific Criteria (40 CFR 228.6) mixing. See 40 CFR 227.4, 227.5(d), that the area and boundaries of the sites As described in greater detail in 227.6(b) and (c), 227.13(c), 227.27, and are optimized for environmentally Section 4 of the FEA, and summarized 227.29. Data evaluated during sound dredged material disposal below, EPA has determined that the development of the FEA show that any operations. IOSN satisfies the eleven specific temporary perturbations in water iv. EPA will, wherever feasible, criteria set out in 40 CFR 228.6. quality or other environmental designate ocean dumping sites beyond i. Geographical Position, Depth of conditions at the site during initial the edge of the continental shelf and Water, Bottom Topography and mixing from disposal operations will be other such sites that have been Distance From Coast (40 CFR limited to the immediate area of the site historically used (40 CFR 228.5(e)). 228.6(a)(1)). and will neither cause any significant EPA has determined that designation Based on analyses in the FEA, EPA environmental degradation at the site of the IOSN is consistent with this has concluded that the geographic nor reach any beach, shoreline, marine criterion. EPA evaluated sites beyond position (i.e., location), water depth, sanctuary, or other important natural the edge of the continental shelf and bottom topography (i.e., bathymetry), resource area. Second, the site is a historical disposal sites in the Gulf of and distance from coastlines of the significant distance from any beach, Maine as part of the alternative analysis IOSN will facilitate containment of shoreline, marine sanctuary, or known conducted for the FEA. Potential dredged material within site boundaries geographically limited fishery or disposal areas located off the and reduce the likelihood of material shellfishery. continental shelf would be infeasible being transported away from the site to iii. The size of disposal sites should be due to their very substantial distance adjacent seafloor areas. As described in limited in order to localize for offshore, which would render them the preceding Disposal Site Description identification and control any impracticable for dredging projects from section and in the above discussion of immediate adverse impacts, and to the area under evaluation (i.e., ZSF). compliance with general criteria (iii) permit the implementation of effective The nearest point on the continental and (iv) (40 CFR 228.5(c) and (d)), the monitoring and surveillance to prevent shelf/slope boundary to Portsmouth IOSN is located far enough from shore adverse long-range impacts. Size, Harbor is more than 230 miles south, and in deep enough water to avoid configuration, and location are to be about 96 miles southeast of Nantucket. adverse impacts to the coastline. determined as part of the disposal site The distance to the slope due east is The IOSN is a depositional area (i.e., evaluation (40 CFR 228.5(d)). even greater at about 270 miles. The an area characterized by low current

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velocities so that it will tend to retain administer regulatory requirements disposed at disposal sites designated or materials placed there). Therefore, designed to prevent these types of selected under the MPRSA. See 40 CFR dredged material disposed at the site is impacts from occurring. See, e.g., 40 227.6. Therefore, EPA does not expected to stay in the site and not CFR part 227. anticipate significant effects on marine cause adverse effects to adjacent Dredged material disposal will have organisms from the disposal of suitable seafloor areas. The closest points of land some localized impacts to fish, shellfish, dredged material at the IOSN. to the IOSN are the Isles of Shoals, with and benthic organisms, such as clams EPA recognizes that dredged material Eastern Island and Appledore Islands and worms, that are present at an ocean disposal causes some short-term, being approximately 6.04 nmi and 6.79 disposal site (or in the water column localized adverse effects to marine nmi respectively to the southwest of the directly above the site) during a disposal organisms in the immediate vicinity of IOSN. IOSN also is approximately 9.55 event. The sediment plume may entrain each disposal event. But because many mni southeast of Sisters Point in Kittery, and smother some fish in the water organisms are likely to recover after any Maine and approximately 10.8 nmi west column, and may bury some fish, potential burial events, because dredged of Portsmouth, New Hampshire. The shellfish, and other marine organisms material disposal would be limited to site is located in waters ranging from on the seafloor. It also may result in a suitable material, and because tugs and 295 to 328 feet deep. As discussed in short-term loss of forage habitat in the barges transporting dredged material the FEA, the IOSN is of a sufficient immediate disposal area, but take significant measures to avoid depth to allow the disposal of the recolonization of disposal mounds in collisions with marine mammals, EPA amount of material that is projected over the IOSN by benthic infauna is expected concludes that designating the IOSN the 20-year planning horizon without within one to three years after disposal, will not cause unacceptable or exceeding any depth threshold for safe based on extensive monitoring at other unreasonable adverse impacts to navigation over the site. As a result, any disposal sites in New England. As breeding, spawning, nursery, feeding, or impacts from dredged material disposal discussed in the FEA (Section 7.5.2), passage areas of living resources in will be short-term and localized and, over time, disposal mounds recover and adult or juvenile phases. assuming compliance with other develop abundant and diverse biological iii. Location in Relation to Beaches regulatory requirements described communities that are healthy and able and Other Amenity Areas (40 CFR elsewhere in this document, will not to support species typically found in the 228.6(a)(3)). contribute to any significant long-term ambient surroundings. Some organisms EPA’s analysis concludes that the adverse impacts in and around the may burrow deeply into sediments, IOSN satisfies this criterion. The IOSN IOSN. often up to 20 inches, and are more is located approximately 10.8 nmi east ii. Location in Relation to Breeding, likely to survive a burial event. of Portsmouth, New Hampshire, 9.55 Spawning, Nursery, Feeding, or Passage Regarding the potential for tug and nmi southeast of Kittery, Maine and Areas of Living Resources in Adult or barge impacts to endangered species, 6.04 nmi northeast of Eastern Island, the Juvenile Phases (40 CFR 228.6(a)(2)). EPA complied with the ESA by closest of the Isles of Shoals. The EPA considered the IOSN in relation consulting with the National Oceanic shoreward edge of the site is to breeding, spawning, nursery, feeding, and Atmospheric Administration’s approximately 9 nmi from the nearest and passage areas for adult and juvenile (NOAA) National Marine Fisheries beaches in Rye, New Hampshire, and is phases (i.e., life stages) of living Service (NMFS) and the U.S. Fish and located in waters ranging in depth from resources in the Gulf of Maine. From Wildlife Service (USFWS) on EPA’s 295 to 328 feet. The IOSN is far enough this analysis, EPA concluded that, while determinations that designation of the away from beaches, parks, wildlife disposal of suitable dredged material at IOSN would not likely adversely affect refuges, and other areas of special the IOSN would cause some short-term, federally-listed species under their concern to prevent adverse impacts to localized effects, overall, it would not respective jurisdictions or any habitat these amenities. Based on information cause adverse effects to the habitat designated as critical for such species. presented in Section 6.3 of the FEA, and functions and living resources specified EPA also coordinated with NMFS under past monitoring of disposal at other in the above criterion. As previously the MSFCMA on potential impacts to ODMDS in New England, this distance noted, the IOSN covers approximately essential fish habitat (EFH). Further is beyond any expected movement of 2.4 nmi2 of seafloor, which is details on these consultations are dredged material due to tidal motion or approximately 0.006% of the seafloor provided in the FEA and the sections currents. As noted above, any temporary surface area of the Gulf of Maine. below describing compliance with the perturbations in water quality or other Generally, there are three primary ESA and MSFCMA. environmental conditions at the site ways that the transportation and To further reduce potential during initial mixing from disposal disposal of dredged material could environmental impacts associated with operations will be limited to the potentially adversely affect marine dredged material disposal, the dredged immediate area of the site and will not resources. First, disposal can cause material from each proposed dredging reach any beaches, parks, wildlife physical impacts by injuring or burying project will be subjected to the MPRSA refuges, or other areas of special less-mobile fish, shellfish, and benthic sediment testing requirements set forth concern. organisms, as well as the eggs and larvae at 40 CFR part 227 to determine its Thus, EPA does not anticipate that the of these less-mobile species. Second, tug suitability for ocean disposal. Suitability use of the IOSN would cause any and barge traffic transporting the for ocean disposal is determined by adverse impacts to beaches or other dredged material to a disposal site could testing the proposed dredged material amenity areas. possibly collide or otherwise interfere for toxicity and bioaccumulation to iv. Types and Quantities of Wastes with marine mammals and reptiles. assess the potential risk to the marine Proposed To Be Disposed of, and Third, contaminants in the dredged environment and human health. If it is Proposed Methods of Release, Including material could potentially determined that the sediment is Methods of Packing the Waste, if Any bioaccumulate through the food chain. unsuitable for ocean disposal—that is, (40 CFR228.6(a)(4)). However, EPA, the USACE, and other that it may unreasonably degrade the Only suitable dredged material that federal and state agencies that regulate marine environment or endanger human meets the Ocean Dumping Criteria in 40 dredging and dredged material disposal health via the food chain—it cannot be CFR 220–228 and receives a permit or

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is otherwise authorized for dumping by the type of monitoring most commonly Culture, Areas of Special Scientific the USACE, with which EPA concurs, conducted at dredged material disposal Importance and Other Legitimate Uses will be disposed in the IOSN. sites, including side-scan sonar, of the Ocean (40 CFR 228.6(a)(8)). Dredged material dumped at the site sediment profile imaging, and sediment In evaluating whether disposal is anticipated to be transported to the grab sampling. activity at the site could interfere with IOSN by either government or private vi. Dispersal, Horizontal Transport shipping, fishing, recreation, mineral contractor hopper dredges or scows and Vertical Mixing Characteristics of extraction, desalination, fish or shellfish with capacities ranging from 800 to the Area, Including Prevailing Current culture, areas of scientific importance, 6,000 cubic yards (cy). Direction and Velocity, if Any (40 CFR and other legitimate uses of the ocean, The volume of sediment to be dredged 228.6(a)(6)). EPA considered both the effects of from federal navigation projects and The IOSN site meets this criterion. disposing dredged material within the non-federal marinas and boatyards in The IOSN is located in open ocean with IOSN, and any effects from vessel traffic the southern Maine, New Hampshire, water depths ranging from associated with transporting the and northern Massachusetts region approximately 295 to 328 feet. Water dredged material to the disposal site. varies greatly from year to year circulation in the vicinity of the IOSN From this evaluation, EPA concluded depending upon need and funding. is strongly influenced by the there would be no unacceptable or However, as previously discussed, and counterclockwise flow, or gyre, unreasonable adverse effects on the based on the dredging history of this normally occurring in the Gulf of Maine. considerations noted in this criterion. region, maintaining and improving The circulation of the Gulf consists of Some of the factors listed in this these navigational features is projected two circular gyres, one criterion have already been discussed to generate approximately 1.5 million cy counterclockwise within the interior of above due to the overlap of this criterion of dredged material over the next 20 the Gulf, and the second, clockwise over with aspects of certain other criteria. years. Some of the sediments will be Georges Bank. Maine coastal waters are Nevertheless, EPA will address each beneficially used, like sand that can be included as the western portion of the point below. used for beach nourishment, and some counterclockwise gyre within the Gulf. EPA does not anticipate conflicts with will be unsuitable for ocean disposal Current patterns in the vicinity of the commercial navigation at the IOSN. The and need to be disposed of through IOSN are typified by coastal-parallel, Portsmouth Pilots and the USACE alternative means, but the remainder of non-tidal southerly drift currents discussed the IOSN disposal site the material that is suitable for ocean generated by the overall circulation of location and its anticipated use with disposal can be disposed of in the IOSN. the Gulf of Maine. respect to navigation transit impacts (as Most of the dredged material that would The fine-grained sediments that discussed in more detail in Section 4.4.1 be disposed of in the IOSN would dominate the area of the IOSN indicate of the FEA). Vessels transiting to and originate from the dredging of that the site is in a depositional area. from Portsmouth Harbor from the south navigation channels and harbors in the Consequently, any material dispose of at and southeast follow a route inshore of region and would consist primarily of the IOSN would likely remain within the Isles of Shoals, which will avoid the fine-grained marine sediments that have the site and not be significantly affected area of the IOSN. Vessels approaching been transported into these areas by or transported away from the site by or departing to and from the east and tidal currents, riverine deposition, and currents. northeast (toward Maine and Canada) upland erosion. The fine-grained vii. Existence and Effects of Current do cross the general area of the IOSN material undergoes rigorous testing to and Previous Discharges and Dumping disposal site. The pilots stated that confirm that it is suitable for unconfined in the Area (Including Cumulative conflicts between dredged material ocean placement. The IOSN has been Effects) (40 CFR 228.6(a)(7)). disposal operations and shipping for sized to accommodate the quantity of USACE dredging and disposal records large and small projects can be avoided, material expected to be placed there and site monitoring do not show any however, by adequate notice to mariners over the 20-year planning horizon. For evidence of dredged material having of disposal activities and frequent all these reasons, no significant adverse been disposed of within the current site marine communication between the impacts are expected to be associated boundaries of the IOSN. Dredged disposal tugs and the Portsmouth Pilots. with the types and quantities of dredged material from the southern Maine, New Given the open-water conditions around material that may be disposed at the Hampshire, and northern Massachusetts the IOSN and the relative infrequency of IOSN. coastal region was historically disposed dredged material disposal operations, v. Feasibility of Surveillance and of at either the CADS or the former, EPA concludes that any conflicts with Monitoring (40 CFR 228.6(a)(5)). historically used IOSH, which was used vessels traveling in the vicinity of the Monitoring for baseline conditions from 1964 to 1970. IOSN should be easily managed in a has already been conducted at the IOSN In general, results from decades of safe, efficient manner. and adjacent areas by the USACE monitoring of current and historically EPA also carefully evaluated the Disposal Area Monitoring System used ODMDS in the New England potential effects of designating the IOSN (DAMOS), and it is anticipated that region indicate that the disposal of on commercial and recreational fishing monitoring and other surveillance dredged material found suitable for for both finfish and shellfish (including activities will continue to be feasible at ocean disposal does not significantly lobster) and concluded that there would the IOSN in the future. Monitoring of alter the long-term functions and values be no unreasonable or unacceptable EPA-designated ocean disposal sites is of seafloor bottom as potential habitat adverse effects. As discussed above in conducted according to the approved for biological communities or contribute relation to other site evaluation criteria, SMMP. The current approved SMMP for to long-term changes in water quality or disposal of dredged material will only the IOSN is included as Appendix G of water circulation at the disposal sites. have short-term, incidental, and the FEA. EPA must schedule the SMMP EPA expects this to also be the case for insignificant effects on organisms in the for review and revision at least every ten the IOSN. IOSN and no appreciable effects beyond years. 33 U.S.C. 1412. As a depositional viii. Interference with Shipping, the site. Because dredged material site that will retain the dredged material Fishing, Recreation, Mineral Extraction, disposal at other ODMDS in New placed there, the IOSN is conducive to Desalination, Fish and Shellfish England has not been found to have

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significant adverse effects on fishing, commencement of dredging and to ecological conditions at the site. EPA the similar projected levels of future disposal activities at the IOSN. An SMP and the USACE have prepared an disposal activities at the IOSN are not in this regard has been incorporated into SMMP for the IOSN to guide future expected to have any significant adverse the SMMP. The SMP includes management and monitoring of the site. effects. timeframes for notifications, x. Potentiality for the Development or The four main reasons that EPA submissions of brief descriptions of Recruitment of Nuisance Species in the concluded that no unacceptable adverse operations and maps of haul routes, and Disposal Sites (40 CFR 228.6(a)(10)). effects would occur from disposal of procedures for the notice of any changes Monitoring at disposal sites elsewhere dredged material at the proposed site to the haul route. The USACE will in the Gulf of Maine over the past 35 are discussed below. First, EPA has include these conditions in individual years has shown no recruitment of concluded that any contaminants in permits or authorizations on a project- nuisance (invasive, non-native) species material permitted for ocean disposal— by-project basis. and no such adverse effects are expected having satisfied the dredged material There currently are no mineral to occur at the IOSN in the future. EPA criteria in the regulations that restrict extraction activities or desalinization and the USACE will continue to any toxicity and bioaccumulation—will facilities in the Gulf of Maine region monitor EPA-designated sites in the not cause any significant adverse effects with which disposal activity could Gulf of Maine under their respective to fish, shellfish, or other aquatic potentially interfere. No finfish SMMPs, which include a ‘‘management organisms. Because the IOSN is a aquaculture currently takes place in the focus’’ on ‘‘changes in composition and depositional site, dredged material southeastern Gulf of Maine. Finally, the numbers of pelagic, demersal, or benthic disposed within the site is expected to IOSN is not in an area of special biota at or near the disposal sites’’ remain there. scientific importance. Accordingly, (SMMP, Appendix G of the FEA). Second, the IOSN does not encompass disposing of dredged material at the In addition, source materials from any especially important, sensitive, or IOSN will not interfere with any of the projects in southern Maine, New limited habitat for the Gulf of Maine’s activities described in this criterion or Hampshire, and northern Massachusetts fish and shellfish. While the site is other legitimate uses of this part of the to be dredged and transported to the within the greater Gulf of Maine cod Gulf of Maine. disposal site historically have been and herring spawning habitat, as In addition, the designation of the classified as marine silts and clays, previously stated, the IOSN only covers IOSN site has been determined by the which are similar to the sediments approximately 2.4 nmi2 of seafloor, EPA to be consistent with the Maine, found at the IOSN site. As previously which is approximately 0.006% of the New Hampshire, and Massachusetts discussed, any material proposed for total seafloor surface area of the Gulf of coastal zone management programs, as ocean disposal at the IOSN site would Maine. Numerous studies and data discussed in the CZMA section below be subject to an evaluation of sediment reviewed by EPA and the USACE (see also Appendix H of the FEA). The quality. Therefore, it is highly unlikely indicate that there is low potential for Maine, New Hampshire and that any nuisance species could be any future incremental risk from the Massachusetts coastal zone management established at the proposed disposal site ocean disposal of dredged sediments at programs have concurred with EPA’s since habitat (i.e., sediment type) or the IOSN in either the long- or short- determinations. contaminant levels are unlikely to term. ix. The Existing Water Quality and change over the long-term use of the Third, while EPA found that a small Ecology of the Sites as Determined by site. number of demersal fish (e.g., winter Available Data or by Trend Assessment xi. Existence at or in Close Proximity flounder), shellfish (e.g., clams and or Baseline Surveys (40 CFR to the Sites of Any Significant Natural lobsters), benthic organisms (e.g., 228.6(a)(9)). or Cultural Feature of Historical worms), and zooplankton and EPA’s analysis of existing water Importance (40 CFR 228.6(a)(11)). phytoplankton could be lost due to the quality and ecological conditions at the There are no natural features of physical effects of disposal (e.g., burial site, which was based on available data, historical importance within the of organisms on the seafloor by dredged trend assessments, and baseline surveys, boundaries of the IOSN, and the cultural material and entrainment of plankton in indicates that use of the IOSN will cause resources that would have the greatest the water column by dredged material no unacceptable or unreasonable potential for being impacted in this area upon its release from a disposal barge), adverse environmental effects. would be shipwrecks. As discussed in EPA also determined that these minor, Considerations related to water quality Section 6.7 of the FEA, side-scan sonar temporary adverse effects would be and various ecological factors (e.g., of the IOSN was conducted and no neither unreasonable nor unacceptable. sediment quality, benthic organisms, potential shipwrecks or other cultural This determination was based on EPA’s fish and shellfish) have already been feature were noted within its conclusion that the numbers of discussed above in relation to other site boundaries. The cultural resource organisms potentially affected represent selection criteria and are discussed in literature search conducted for the only a minuscule percentage of those in detail in the FEA and supporting proposed IOSN area did not identify any the Gulf of Maine, and findings from documents. In considering this shipwrecks in the vicinity. While past monitoring in the region criterion, EPA considered existing water undiscovered shipwrecks could occur in consistently show the rapid recovery of quality and sediment quality data the area, it is unlikely based on the the benthic community in dredged collected in the Gulf of Maine, results of the side-scan survey of the material disposal sites. including from the USACE’s Disposal area. As discussed in the NHPA section Fourth, EPA has determined that Area Monitoring System (DAMOS), as below, EPA consulted with the state vessel traffic associated with dredged well as water quality data from EPA’s historic preservation offices (SHPO) for material disposal will not have any coastal nutrient criteria and trend Maine and New Hampshire and they unreasonable or unacceptable adverse monitoring efforts. As discussed herein, confirmed these findings. Based on this effects on fishing. The USACE has EPA has determined that disposal of information, it is unlikely that any agreed to notify state fisheries suitable dredged material at the IOSN significant cultural resources will be management agencies within a should not cause any significant adverse affected from the designation and use of prescribed timeframe before the environmental effects to water quality or the disposal site.

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In addition, Jeffery’s Ledge, located to approach that is used for all ODMDS in a Finding of No Significant Impact, the east of the IOSN, is an important New England that assesses whether described below. feeding ground for humpback whales disposal activities are occurring in and North Atlantic right whales in the compliance with permit and site 1. Final Environmental Assessment and summer and fall months and serves as restrictions; supports evaluation of Finding of No Significant Impact a prime recreational whale watching short- and long-term fate of material The FEA evaluates whether an area. No impacts to this area are based on MPRSA site impact evaluation ODMDS should be designated to serve expected based on disposal of suitable criteria; and supports assessment of the southern Maine, New Hampshire, dredged material at the IOSN. However, potential significant adverse and southern Maine coastal region. The procedures outlined in the SMMP will environmental impacts from dredged FEA describes the purpose and need for be followed to ensure whales are material disposal at the site. protected. any such designation, and evaluates B. National Environmental Policy Act several alternatives to this action, 3. Disposal Site Management and including the option of ‘‘no action’’ (i.e., NEPA requires the public analysis of Monitoring (40 CFR 228.3, 228.7, 228.8 no designation). Based on this and 228.9) the potential environmental effects of proposed federal agency actions and evaluation, EPA concludes that In accordance with Section 102(c)(3) reasonable alternative courses of action designation of the IOSN under the of the MPRSA, EPA, in conjunction to ensure that these effects, and the MPRSA is the preferred alternative. EPA with the USACE, has developed a site differences in effects among the also is issuing a FONSI with the FEA management and monitoring plan for different alternatives, are understood. that presents the reasons why the the IOSN (the ‘‘SMMP’’) which includes See generally 42 U.S.C. 4321 et seq. The agency projects that no significant a baseline assessment of conditions at goal of this analysis is to ensure high environmental impacts will occur from the site, a monitoring program for the quality, informed, and transparent implementation of the action. site, special management conditions decision-making, to facilitate avoiding As stated in the Purpose and Need necessary to protect the environment, or minimizing any adverse effects of section, the purpose of this designation consideration of the quantity and proposed actions, and to help restore is to provide a long-term, ODMDS as a quality of material to be disposed at the and enhance environmental quality. See potential option for the future disposal site, consideration of the long-term plan generally 40 CFR 6.100(a), 1500.1(c) and of suitable dredged material. The action for the site (including closure), and a 1500.2(d)–(f). NEPA requires schedule for review and revision of the is necessary because periodic dredging coordination with other federal and plan. 33 U.S.C. 1412(c). EPA Region 1 and dredged material disposal is state agencies and public involvement is responsible for managing the IOSN unavoidably necessary to maintain safe throughout the decision-making pursuant to this plan and works with navigation and marine commerce in process. See 40 CFR 6.400(a), 1503, the USACE New England Division to do ports and harbors in the southern 1501.7, and 1506.6. so. See 40 CFR 228.3. Maine, New Hampshire, and northern The monitoring program ‘‘may EPA disposal site designation Massachusetts coastal region. As include baseline or trend assessment evaluations conducted under the previously noted, dredging in southern surveys by EPA’’ or other entities. 40 MPRSA have been determined to be Maine, New Hampshire, and northern CFR 228.9. It may also incorporate ‘‘data ‘‘functionally equivalent’’ to NEPA Massachusetts is projected to generate collected from the use of automatic reviews, so that they are not subject to approximately 1.5 mcy of dredged sampling buoys, satellites or in situ NEPA analysis requirements as a matter material over the next 20 years. of law. Nevertheless, as a matter of platforms, and from experimental EPA evaluated potential alternatives programs.’’ Id. Further, ‘‘EPA will policy, EPA voluntarily uses NEPA procedures when evaluating the to ocean disposal in the southern Maine, require the full participation of New Hampshire, and northern permittees, and encourage the full potential designation of ocean dumping sites. 63 FR 58045, 58046 (October 29, Massachusetts coastal region but participation of other Federal and State determined that none were sufficient to and local agencies in the development 1998) (‘‘EPA voluntarily will follow meet the projected regional dredging and implementation of disposal site NEPA procedures in ocean disposal site needs. In accordance with EPA monitoring programs.’’ Id. EPA may designations under MPRSA and these regulations, use of alternatives to ocean limit the ‘‘times or rates’’ of dumping procedures provide for consultation disposal will be required for dredged ‘‘so that the limits for the site as with the states’’ and EPA ‘‘believes that specified in the site designation are not decisions on preparing EISs for material management when they exceeded.’’ 40 CFR 228.8. See also 33 proposed ocean disposal sites should be provide a practicable, environmentally U.S.C. 1412(c)(1) and (2). made on a case-by-case basis.’’) preferable option for the dredged In accordance with these statutory Furthermore, EPA has clarified that material from any particular disposal and regulatory requirements, EPA and ‘‘[t]he voluntary preparation of [NEPA] project. 40 CFR 227.16. When no such the USACE have developed an SMMP documents in no way legally subjects practicable alternatives exist, however, for the IOSN that includes provisions the Agency to NEPA’s requirements.’’ EPA’s designation of the IOSN will that will be included in USACE permit Id. provide an ocean disposal site as a and authorizations to ensure site Consistent with its voluntary NEPA potential management option for management practices are protective of policy, EPA has undertaken a NEPA dredged material regulated under the the marine environment and public analysis to support its decision-making MPRSA that has been tested and health. The SMMP, available at process for the designation of the IOSN. determined to be environmentally Appendix G to the FEA, describes In this case, EPA decided to prepare an suitable for ocean disposal. Sediments disposal site management practices that Environmental Assessment, which is found to be unsuitable for ocean are generally applicable to all EPA- done for proposed actions when the disposal will not be authorized for designated ODMDS, as well as site- significance of the environmental placement at a disposal site designated specific Special Management Practices. impact is not clearly established. Upon by EPA under the MPRSA and will have It describes the tiered monitoring completion of the FEA, EPA also made to be managed in other ways.

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2. Alternatives Analysis EPA and the USACE also held a 2019, and May 2020. Lastly, it has public meeting after the public consistently been an agenda item at the EPA analyzed alternatives for the comment period on December 5, 2019, Maine, New Hampshire and management of dredged material from in Portsmouth, New Hampshire, to Massachusetts state dredging team navigation channels and harbors in the present general information about meetings since 2016. EPA provided the southern Maine, New Hampshire, and dredging and dredged material disposal Proposed Rule and DEA for formal northern Massachusetts coastal region. and answer clarifying questions, but comment by cooperating agencies and This analysis evaluated several different again did not substantively respond to EPA has since been in regular contact potential alternatives, including ocean specific comments about the IOSN. EPA with representatives of these agencies disposal sites in the ZSF (described in did not receive any new comments on throughout the development of the Final the Purpose and Need section), upland the Proposed Rule and DEA at this Rule and FEA. disposal, beneficial uses, and the no- meeting. Appendix I of the FEA 5. Tribal Consultation action alternative. From this analysis, includes the public comments EPA EPA determined that at least one ocean received on the DEA and Proposed Rule. On July 5, 2019, EPA sent letters to all disposal site, the IOSN, was necessary Appendix J of the FEA provides a federally-recognized tribes in Maine to provide sufficient capacity to meet summary of those comments and EPA’s offering to consult with them on the the long-term dredged material disposal responses to those comments. EPA also proposed designation of the IOSN. The needs of the region in the event that, as has summarized the more significant Houlton Band of Maliseet Indians expected, practicable alternatives to comments in Section VI of the preamble responded with a request for ocean disposal are not available for all to this Final Rule. government-to-government the material. consultation, which occurred via 4. Interagency Coordination EPA’s initial screening of alternatives, teleconference on August 13, 2019. EPA which involved input from other federal EPA coordinated with a wide range of also presented the project on an EPA and state agencies, led to the federal and state agencies throughout Regional Tribal Operations Committee determination that the ocean disposal the development of the Final Rule and teleconference, which includes New sites were the most environmentally FEA. EPA worked closely with the England Tribal environmental directors, sound, cost-effective, and operationally USACE because of its knowledge on August 14, 2019. Comments feasible options for the full quantity of concerning the region’s dredging needs, provided during the consultation and its technical expertise in monitoring RTOC teleconference were incorporated dredged material expected to be found dredged material disposal sites and in the Proposed Rule and DEA prior to suitable for ocean disposal over the 20- assessing the environmental effects of their release for public comment on year planning horizon. Regardless of dredging and dredged material disposal, September 18, 2020. this conclusion, in practice, each and its history in the permitting of individual dredging project will be C. Coastal Zone Management Act dredging and dredged material disposal analyzed on a case-specific basis and in the Gulf of Maine and elsewhere. To The CZMA, 16 U.S.C. 1451, et seq., ocean disposal of dredged material at a take advantage of additional expertise authorizes states to establish coastal designated site would only be permitted held by other entities, and to promote zone management programs to develop or authorized when there is a need for strong inter-agency communications, and enforce policies to protect their such disposal (i.e., there are no EPA also consulted and/or coordinated coastal resources and promote uses of practicable, environmentally preferable with the USFWS; the NOAA NMFS; the those resources that are desired by the alternatives). See 40 CFR 227.2(a)(1), New Hampshire Department of state. These coastal zone management 227.16(b). Environmental Services (NH DES); the programs must be approved by the 3. Public Involvement New Hampshire Department of Fish and NOAA Office of Coastal Resources Game; the Maine Department of Management, which is responsible for EPA released the DEA, titled ‘‘Draft Environmental Protection; the Maine administering the CZMA. Federal Environmental Assessment and Department of Marine Resources (ME agencies must provide relevant states Evaluation Study for Designation of an DMR); the Maine Geological Service; the with a determination that each federal Ocean Dredged Material Disposal Site to Massachusetts Division of Marine agency activity, whether taking place serve the Southern Maine, New Fisheries; and the Massachusetts Office within or outside the coastal zone, that Hampshire, and Northern Massachusetts of Coastal Zone Management (MCZM). affects any land or water use or natural Region,’’ on September 18, 2019, for a EPA communicated with the resource of the state’s coastal zone, will 30-day public comment period. 84 FR cooperating federal and state agencies be carried out in a manner consistent to 49075 (Sep. 18, 2019). EPA held one throughout the site designation process the maximum extent practicable with public meeting during the public to keep them apprised of progress on the the enforceable policies of the state’s comment period on October 9, at 6 p.m. project and to solicit input. EPA approved coastal zone management in Kittery, Maine, at which EPA and the conducted two IOSN interagency program. 16 U.S.C. 1456. EPA’s USACE made a presentation on the meetings, in May 2016 and December compliance with the CZMA is described Proposed Rule and DEA and received 2018, to solicit data sources and below. public comments. EPA also received concerns, to review progress, and to Based on the evaluations presented in subsequent written comments both in receive feedback on the proposed the FEA and supporting documents, and support of and expressing concerns action. The proposed action also was a review of the federally approved New about EPA’s proposed action as discussed with federal and state Hampshire, Maine, and Massachusetts described in the DEA and Proposed agencies at New England Regional coastal zone programs and policies, EPA Rule. Many commenters also asked Dredging Team meetings in February determined that designation of the IOSN questions or offered suggestions. EPA 2019, June 2019, September 2019, for ocean dredged material disposal made clarifying statements during the February 2020, and June 2020, and at under the MPRSA is fully consistent or public meeting but did not substantively Federal Mid-Level Managers meetings consistent to the maximum extent respond to public comments at that (EPA, USACE, NOAA, and USFWS) in practicable with the enforceable policies time. June 2018, December 2018, November of the coastal zone management

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programs of New Hampshire, Maine, dredging projects themselves will have negligible portion of the roseate tern’s and Massachusetts. EPA provided a to satisfy federal and state permitting foraging habitat in the vicinity of Seavey written determination to that effect to requirements, including CZMA review, Island; (2) disposal events would the NH DES Coastal Program, the ME and preventing such dredging projects happen infrequently and the likelihood DMR Coastal Program, and MCZM could harm public use of the coastal of disposal operations coinciding with within the statutory and regulatory zone for vessel navigation and berthing. roseate tern presence is discountable; mandated timeframes. All three state Moreover, as discussed in the record for and (3) EPA’s designation of IOSN does coastal zone management programs this decision, vessels taking dredged not authorize any specific disposal concurred with EPA’s determination material to the IOSN should be able to events and such specific disposal that the designation of the IOSN is safely navigate to the site. Indeed, events, and their associated effects, consistent with the states’ enforceable without the IOSN, vessels would still would be addressed through permitting program policies (Appendix H of the have to haul dredged material to other by the USACE (Appendix H of FEA). sites, or dredging projects would be FEA). E. Magnuson-Stevens Fishery cancelled, which would, itself, result in In EPA’s view, there are several broad Conservation and Management Act reasons why designation of the IOSN is reduced navigational safety and the risk The MSFCMA, 16 U.S.C. 1801 et seq., consistent with the applicable, of accidents. requires the designation of essential fish enforceable policies of the states’ coastal D. Endangered Species Act habitat (EFH) for federally managed zone programs. First, the designation is Under section 7(a)(2) of the ESA, 16 species of fish and shellfish. The goal of not expected to cause any significant U.S.C. 1536(a)(2), federal agencies are these provisions is to ensure that EFH adverse impacts to the marine required to ensure that their actions are is not adversely impacted by fishing or environment, coastal resources, or uses ‘‘not likely to jeopardize the continued other human activities, including of the coastal zone. Indeed, EPA expects existence of any endangered species or dredged material disposal, and to the designation to benefit uses involving result in the destruction or adverse further the enhancement of these navigation and berthing of vessels by modification of habitat of such species, habitats, thereby protecting both facilitating needed dredging, and to which is determined to be critical.’’ ecosystem health and the fisheries benefit the environment by Depending on the species involved, a industries. Pursuant to section 305(b)(2) concentrating any ocean disposal of federal agency is required to consult of the MSFCMA, federal agencies are dredged material at a single, with NMFS and/or USFWS if the required to consult with NMFS environmentally appropriate site agency’s action ‘‘may affect’’ an regarding any action they authorize, designated by EPA and subject to the endangered or threatened species or its fund, or undertake that may adversely previously described SMMP. Second, critical habitat. 50 CFR 402.14(a). Thus, affect EFH. An adverse effect has been designation of the site does not actually the ESA requires consultation with defined by the Act as, ‘‘[a]ny impact authorize the disposal of any dredged NMFS and/or USFWS to address which reduces the quality and/or material at the site, because any potential impacts to threatened and quantity of EFH [and] may include proposal to dispose dredged material endangered species that may occur at direct (e.g., contamination or physical from a particular project at a designated the dredged material disposal site from disruption), indirect (e.g., loss of prey, site will be subject to a case-specific dredged material disposal there. reduction in species’ fecundity), site- evaluation, including CZMA review, To comply with the ESA, EPA specific or habitat-wide impacts, and be allowed only if: (a) The material coordinated and consulted with NMFS including individual, cumulative, or satisfies the requirements of the and USFWS (Appendix H of the FEA). synergistic consequences of actions.’’ 50 MPRSA, Ocean Dumping Regulations, EPA determined that the designation of CFR 600.810(a). and other legal requirements, such as the IOSN is not likely to result in EPA has consulted with NMFS to those under the CZMA; and (b) no adverse impacts to threatened or ensure compliance with the EFH practicable alternative method of endangered species, species of concern, provisions of the MSFCMA and has management with less adverse or designated critical habitat. In prepared an essential fish habitat environmental impact can be identified. addition, the USACE will, as assessment in compliance with the Act. Third, the designated disposal site will appropriate, consult with the NMFS and NMFS concurred with EPA’s be managed and monitored pursuant to USFWS for individual permitted assessment, determined that adverse an SMMP and if adverse impacts are projects and federal navigation projects effects to federally-managed species and identified, use of the site will be to further ensure that they will satisfy EFH will be minimal and therefore had modified to reduce or eliminate those the ESA. no conservation recommendations to impacts. Such modification could Based on its knowledge, expertise and provide (Appendix H of the FEA). further restrict, or even terminate, use of EPA’s effects analysis, NMFS concurred the site, if appropriate. See 40 CFR with EPA’s determination that the site F. National Historic Preservation Act 228.3, 228.11. In addition, the IOSN is designation is not likely to adversely The NHPA, 54 U.S.C. 300101 et seq located outside the coastal zone of all affect any NMFS ESA-listed species or (formerly 16 U.S.C. 470 to 470a–2), three states, so disposal of dredged designated critical habitat and therefore requires federal agencies to take into material at the site will not directly no further consultation pursuant to account the effect of their actions on affect the coastal zone of any of the Section 7 of the ESA is required. districts, sites, buildings, structures, or three states. That said, designation of USFWS also concurred with EPA’s objects, included in, or eligible for the IOSN could indirectly affect the determination that the designation of inclusion in, the National Register of states’ coastal zones because it could IOSN is not likely to adversely affect Historical Places. EPA submitted a facilitate dredging projects within these USFWS ESA-listed species, specifically consultation letter to the New coastal zones and result in vessel trips the roseate tern. Its concurrence was Hampshire and Maine State Historic through these coastal zones to take based on that fact that: (1) Disposal Preservation Offices (SHPO) on July 27, dredged material out to the site. effects from turbidity, sedimentation 2020. Both the Maine and New Nevertheless, these indirect impacts and changes in water quality will be of Hampshire SHPOs provided a letter of should not be problematic because short duration and limited to a concurrence with EPA’s determination

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that no historic properties (architectural material for many small marina and boat 10. Executive Order 12898: Federal or archaeological) will be affected by yard operators in the region. Actions To Address Environmental this site designation (Appendix H of Justice in Minority Populations and FEA). 4. Unfunded Mandates Reform Act Low-Income Populations (UMRA) VIII. Supporting Documents The EPA believes the human health or This action does not contain any environmental risk addressed by this 1. EPA Region 1/USACE NAE. 2020. Final unfunded mandate as described in Environmental Assessment and action will not have a Evaluation Study for Designation of an UMRA, 2 U.S.C. 1531–1538, and does disproportionately high and adverse Ocean Dredged Material Disposal Site not significantly or uniquely affect small human health or environmental effects for the Southern Maine, New Hampshire, governments. The action imposes no on minority, low-income, or indigenous and Northern Massachusetts Coastal enforceable duty on any state, local, or populations. Region. U.S. Environmental Protection tribal governments or the private sector. Agency, Region 1, Boston, MA and U.S. 11. Executive Order 13158: Marine Army Corps of Engineers, New England 5. Executive Order 13132: Federalism Protected Areas District, Concord, MA. September 2020. This action does not have federalism Executive Order 13158 (65 FR 34909, 2. EPA Region 1/USACE NAE. 2004. Regional May 31, 2000) requires EPA to Implementation Manual for the implications. It will not have substantial Evaluation of Dredged Material Proposed direct effects on the states, on the ‘‘expeditiously propose new science- for Disposal in New England Waters. relationship between the federal based regulations, as necessary, to U.S. Environmental Protection Agency, government and the states, or on the ensure appropriate levels of protection Region 1, Boston, MA, and U.S. Army distribution of power and for the marine environment.’’ EPA may Corps of Engineers, New England responsibilities among the various take action to enhance or expand District, Concord, MA. April 2004. protection of existing marine protected levels of government. 3. EPA/USACE. 1991. Evaluation of Dredged areas and to establish or recommend, as Material Proposed for Ocean Disposal- 6. Executive Order 13175: Consultation appropriate, new marine protected Testing Manual. U.S. Environmental areas. The purpose of the Executive Protection Agency, Washington, DC, and and Coordination With Indian Tribal U.S. Army Corps of Engineers, Governments Order is to protect the significant Washington, DC. EPA–503/8–91/001. natural and cultural resources within February 1991. This action does not have tribal the marine environment, which means, 4. EPA/USACE. 1984. General Approach to implications as specified in Executive ‘‘those areas of coastal and ocean Designation Studies for Ocean Dredged Order 13175 because it will not have waters, the Great Lakes and their Material Disposal Sites. U.S. substantial direct effects on Indian connecting waters, and submerged lands Environmental Protection Agency and tribes, on the relationship between the thereunder, over which the United U.S. Army Corps of Engineers, federal government and Indian Tribes, States exercises jurisdiction, consistent Washington, DC. 1984. or the distribution of power and with international law.’’ 5. EPA. 1986. Ocean Dumping Site responsibilities between the federal Designation Delegation Handbook for The EPA expects that this action will Dredged Material. U.S. Environmental government and Indian Tribes. As have no significant adverse impacts on Protection Agency, Office of Marine and described in the Tribal Consultation the ocean and coastal waters off Estuarine Protection, Washington, DC. subsection of the Compliance with southern Maine, New Hampshire, and Sept. 30, 1986. Statutory and Regulatory Authorities northern Massachusetts or the section, EPA consulted with the organisms that inhabit them. IX. Statutory and Executive Order potentially affected Indian tribes in Reviews making this determination. 12. Executive Order 13840: Regarding the Ocean Policy To Advance the 1. Executive Order 12866: Regulatory 7. Executive Order 13045: Protection of Economic, Security, and Environmental Planning and Review and Executive Interests of the United States Order 13563: Improving Regulation and Children From Environmental Health Regulatory Review Risks and Safety Risks The policies in section 2 of Executive This action is not a significant This action is not subject to Executive Order 13840 (83 FR 29341, June 19, regulatory action, as defined in the Order 13045 because it is not 2019) include, among others, the Executive Order, and was therefore not economically significant as defined in following: ‘‘It shall be the policy of the submitted to the Office of Management Executive Order 12866, and because the United States to: (a) Coordinate the and Budget (OMB) for review. environmental health or safety risks activities of executive departments and addressed by this action do not present agencies (agencies) regarding ocean- 2. Paperwork Reduction Act (PRA) a disproportionate risk to children. related matters to ensure effective This action does not impose an management of ocean, coastal, and Great information collection burden under the 8. Executive Order 13211: Actions Lakes waters and to provide economic, PRA because it would not require Concerning Regulations That security, and environmental benefits for persons to obtain, maintain, retain, Significantly Affect Energy Supply, present and future generations; [. . . report, or publicly disclose information Distribution or Use and] (d) facilitate the economic growth to or for a federal agency. of coastal communities and promote This action is not subject to Executive ocean industries, which employ 3. Regulatory Flexibility Act (RFA) Order 13211, because it is not a millions of Americans, advance ocean This action will not have a significant significant regulatory action under science and technology, feed the economic impact on a substantial Executive Order 12866. American people, transport American number of small entities under the 9. National Technology Transfer and goods, expand recreational Regulatory Flexibility Act (RFA). Advancement Act (NTTAA) opportunities, and enhance America’s Rather, this action would provide a cost- energy security. . . .’’ EPA, in effective, environmentally acceptable This rulemaking does not involve developing this Final Rule, coordinated alternative for the disposal of dredged technical standards. extensively with other federal and state

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agencies, and potentially affected PART 228—CRITERIA FOR THE Chris Coneeney, Director, Real Property stakeholders, to ensure effective MANAGEMENT OF DISPOSAL SITES Policy Division, Office of Government- management of dredging and dredged FOR OCEAN DUMPING wide Policy, at 202–208–2956 or material by providing a cost-effective, [email protected]. For environmentally acceptable alternative ■ 1. The authority citation for part 228 information pertaining to status or for the disposal of such material. The continues to read as follows: publication schedules, contact the availability of such an ocean disposal Authority: 33 U.S.C. 1412 and 1418. Regulatory Secretariat Division at 202– site supports the economic growth of 501–4755 or [email protected]. ■ coastal communities and ocean 2. Amend § 228.15 by adding Please cite FMR Case 2020–102–1. paragraph (b)(7) to read as follows: industries, which will be able to SUPPLEMENTARY INFORMATION: maintain safe and efficient navigation § 228.15 Dumping sites designated on a through the ports and channels in a final basis. I. Background cost-effective manner. * * * * * GSA is issuing a final rule to amend 13. Executive Order 13771: Reducing (b) * * * part 102–77 pursuant to Executive Regulation and Controlling Regulatory (7) Isles of Shoals North Dredged Order (E.O.) 13934: ‘‘Building and Costs Material Disposal Site (IOSN). Rebuilding Monuments to American (i) Location: A 8,530-foot (2,600- Heroes’’ (available at https:// This action is not a ‘‘significant meter) diameter circle on the seafloor www.federalregister.gov/documents/ regulatory action’’ under the terms of with its center located at 70° 26.995′ W 2020/07/08/2020-14872/building-and- Executive Order 12866 (58 FR 51735, and 43° 1.142′ N. rebuilding-monuments-to-american- October 3, 1993) and is, therefore, not (ii) Size: 1,312 acres (57,150,000 heroes), issued July 3, 2020, by subject to review under Executive Order square feet). President Donald Trump. Subsection 13771. See OMB, ‘‘Guidance (iii) Depth: Ranges from 295 to 328 4(d) of E.O. 13934 requires GSA, in Implementing Executive Order 13771, feet (90 to 100 m). consultation with the Interagency Task Titled ‘‘Reducing Regulation and (iv) Primary use: Dredged material Force for Building and Rebuilding Controlling Regulatory Costs’’ (M–17– disposal. Monuments to American Heroes (Task 21) (April 5, 2017), p. 3 (‘‘An ‘E.O. (v) Period of use: Continuing use. Force), to revise its Art in Architecture 13771 Regulatory Action’ is: (i) A (vi) Restrictions: Disposal shall be program regulations ‘‘to prioritize the significant regulatory action as defined limited to dredged material that meets commission of works of art that portray in section 3(f) of E.O. 12866 that has the requirements of the MPRSA and its historically significant Americans or been finalized and that imposes total implementing regulations at 40 CFR events of American historical costs greater than zero. . . .’’). parts 220 through 228. significance or illustrate the ideals upon 14. Congressional Review Act [FR Doc. 2020–21006 Filed 9–24–20; 8:45 am] which our Nation was founded. Priority should be given to public-facing BILLING CODE 6560–50–P The Congressional Review Act, 5 monuments to former Presidents of the U.S.C. 801 et seq., as added by the Small United States and to individuals and Business Regulatory Enforcement events relating to the discovery of GENERAL SERVICES Fairness Act of 1996, generally provides America, the founding of the United ADMINISTRATION that before a rule may take effect, the States, and the abolition of slavery. agency promulgating the rule must 41 CFR Part 102–77 Such works of art should be designed to submit a rule report, which includes a be appreciated by the general public and copy of the rule, to each House of the [FMR Case 2020–102–1; Docket No. GSA– by those who use and interact with Congress and to the Comptroller General FMR–2020–0015; Sequence No. 1] Federal buildings.’’ of the United States. EPA will submit a RIN 3090–AK30 Subsection 4(c) of the order also report containing this rule and other directed GSA, to the extent appropriate required information to the U.S. Senate, Federal Management Regulation and consistent with applicable law, to the U.S. House of Representatives, and (FMR); Art In Architecture prioritize projects that will result in the the Comptroller General of the United installation of a publicly accessible AGENCY: Office of Government-wide States prior to publication of the rule in statue of historically significant Policy (OGP), General Services the Federal Register. A ‘‘major rule’’ Americans in communities where a Administration (GSA). cannot take effect until 60 days after it statue depicting a historically is published in the Federal Register. ACTION: Final rule. significant American was removed or This action is not a major rule as SUMMARY: GSA is issuing a final rule destroyed in 2020. defined by 5 U.S.C. 804(2). This rule amending the Federal Management Furthermore, subsection 4(e) of the will be effective 30 days after date of Regulation (FMR) to update the Art in order requires that, ‘‘When a statue or publication. Architecture program provisions. This work of art commissioned pursuant to List of Subjects in 40 CFR Part 228 final rule provides clarification to the this section is meant to depict a policies that support the efforts to historically significant American, the Environmental protection, Water collect, manage, fund, and commission statue or work of art shall be a lifelike pollution control. fine art in Federal buildings, and fulfills or realistic representation of that person, Dated: September 18, 2020. the requirements in the Executive Order not an abstract or modernist Dennis Deziel, issued July 3, 2020, titled ‘‘Building and representation.’’ Regional Administrator, EPA Region 1. Rebuilding Monuments to American II. Discussion of Final Rule Heroes.’’ For the reasons stated in the This final rule corrects the title of part preamble, title 40, Chapter I, of the Code DATES: Effective: September 25, 2020. 102–77 to ‘‘Art in Architecture’’. GSA of Federal Regulations is amended as set FOR FURTHER INFORMATION CONTACT: For has not used the hyphens for more than forth below. clarification of content, contact Mr. 15 years, including in publications,

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online and in correspondence. The harmonizing rules, and of promoting 102–77.23 Who is considered a historically change reflects this usage. flexibility. This is not a significant significant American under this part? Section 102–77.21 is added to meet regulatory action and, therefore, was not 102–77.25 Do Federal agencies have the requirement in subsection 4(d) of subject to review under subsection 6(b) responsibilities to provide national visibility for Art in Architecture? E.O. 13934 that GSA revise its Art in of E.O. 12866, Regulatory Planning and Architecture program regulations ‘‘to Review, dated September 30, 1993. This Authority: 40 U.S.C. 121 and 3306; E.O. prioritize the commission of works of rule is not a major rule under 5 U.S.C. 13934. art that portray historically significant 804. Americans or events of American Subpart A—General Provisions IV. Executive Order 13771 historical significance or illustrate the § 102–77.5 What is the scope of this part? ideals upon which our Nation was This final rule is not subject to the The real property policies contained founded. Priority should be given to requirements of E.O. 13771 (82 FR 9339, in this part apply to Federal agencies, public-facing monuments to former February 3, 2017) because this rule is including GSA’s Public Buildings Presidents of the United States and to not a significant regulatory action under Service, operating under, or subject to, individuals and events relating to the E.O. 12866. the authorities of the Administrator of discovery of America, the founding of the United States, and the abolition of V. Regulatory Flexibility Act General Services. slavery. Such works of art should be This final rule will not have a § 102–77.10 What basic Art in Architecture designed to be appreciated by the significant economic impact on a policy governs Federal agencies? general public and by those who use substantial number of small entities Federal agencies must incorporate and interact with Federal buildings.’’ within the meaning of the Regulatory fine arts as an integral part of the total Section 102–77.21 also meets the Flexibility Act, 5 U.S.C. 601 et seq. This building concept when designing new requirement in subsection 4(b) of E.O. final rule is also exempt from the Federal buildings and when making 13934 that GSA, to the extent Administrative Procedure Act pursuant substantial repairs and alterations to appropriate and consistent with to 5 U.S.C. 553(a)(2) because it applies existing Federal buildings, as applicable law, shall give priority to the to agency management or personnel or appropriate. The selected fine arts, commissioning of statues or monuments to public property, loans, grants, including painting, sculpture and involving the commissioning of publicly benefits, or contracts. artistic work in other media, must accessible statues of the Founding VI. Paperwork Reduction Act reflect the national cultural heritage and Fathers, former Presidents of the United emphasize the work of living American States, leading abolitionists, and This final rule does not contain any artists. individuals involved in the discovery of information collection requirements that America. require the approval of the Office of Subpart B—Art in Architecture Section 102–77.21 also incorporates Management and Budget under the the requirement of subsection 4(c) of Paperwork Reduction Act (44 U.S.C. § 102–77.15 Who funds the Art in Architecture efforts? E.O. 13934 that GSA ‘‘to the extent chapter 35). appropriate and consistent with To the extent not prohibited by law, applicable law, prioritize projects that List of Subjects in 41 CFR Part 102–77 Federal agencies must fund the Art in will result in the installation of a statue’’ Federal buildings and facilities; Architecture efforts by allocating a of a historically significant American Government property management; portion of the estimated cost of ‘‘in a community where a statue Rates and fares. constructing or purchasing new Federal depicting a historically significant buildings or of completing major repairs American was removed or destroyed’’ in Emily W. Murphy, and alterations of existing buildings. 2020. Administrator of General Services. Funding for qualifying projects, Section 102–77.22 is added to meet For the reasons set forth in the including new construction, building the requirement in subsection 4(e) of Preamble, GSA revises 41 CFR part 102– purchases, other building acquisitions, E.O. 13934 that, ‘‘When a statue or work 77 to read as follows: or prospectus-level repair and alteration of art commissioned pursuant to this projects, must be in a range determined section is meant to depict a historically PART 102–77—ART IN by the Administrator of General significant American, the statue or work ARCHITECTURE Services. of art shall be a lifelike or realistic Subpart A—General Provisions representation of that person, not an § 102–77.20 With whom should Federal abstract or modernist representation.’’ Sec. agencies collaborate when commissioning Section 102–77.23 is added to 102–77.5 What is the scope of this part? and selecting art for Federal buildings? 102–77.10 What basic Art in Architecture To the maximum extent practicable, incorporate the E.O. 13934 definition of policy governs Federal agencies? a historically significant American. Federal agencies should seek the Subpart B—Art in Architecture support and involvement of local III. Executive Orders 12866 and 13563 102–77.15 Who funds the Art in citizens in selecting appropriate E.O.s 12866 and 13563 direct agencies Architecture efforts? artwork. Subject to sections 102–77.21 to assess all costs and benefits of 102–77.20 With whom should Federal through 102–77.23 of this part, Federal available regulatory alternatives and, if agencies collaborate when agencies should collaborate with the regulation is necessary, to select commissioning and selecting art for artist and community to produce works regulatory approaches that maximize Federal buildings? of art that reflect the cultural, net benefits (including potential 102–77.21 Is priority given to certain types intellectual and historic interests and of works of art when commissioning and economic, environmental, public health selecting art for Federal buildings? values of a community. In addition, and and safety effects, distributive impacts, 102–77.22 Are there certain style subject to sections 102–77.21 through and equity). E.O. 13563 emphasizes the requirements for statues or works of art 102–77.23, Federal agencies should importance of quantifying both costs that are commissioned to portray work collaboratively with the architect and benefits, of reducing costs, of historically significant Americans? of the building and art professionals

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when commissioning and selecting art 102–77.25 Do Federal agencies have several terms and addresses for Federal buildings. responsibilities to provide national visibility consultation with local officials. This for Art in Architecture? bulletin can be viewed at www.gsa.gov/ § 102–77.21 Is priority given to certain Yes. Federal agencies should provide reference/gsa-bulletins. types of works of art when commissioning Art in Architecture that receives and selecting art for Federal buildings? appropriate national and local visibility Jessica Salmoiraghi, to facilitate participation by a large and Associate Administrator, Office of (a) When commissioning works of art, Government-wide Policy. priority must be given to those works diverse group of artists representing a [FR Doc. 2020–20846 Filed 9–24–20; 8:45 am] that portray historically significant wide variety of types of artwork. BILLING CODE P Americans or events of American [FR Doc. 2020–20453 Filed 9–24–20; 8:45 am] historical significance, or illustrate the BILLING CODE 6820–14–P ideals upon which our Nation was DEPARTMENT OF COMMERCE founded. Particular priority should be given to public-facing statues of or GENERAL SERVICES ADMINISTRATION National Oceanic and Atmospheric monuments to former Presidents of the Administration United States and to individuals and 41 CFR Part 102–83 events relating to the discovery of 50 CFR Part 622 America, the founding of the United [Notice–MA–202012; Docket No. 2020–0002; [Docket No. 200124–0029] States and the abolition of slavery or Sequence No. 33] RTID 0648–XA497 others who contributed positively to Clarifying the Process for Meeting America’s history. Federal Space Needs. Fisheries of the Caribbean, Gulf of (b) To the extent appropriate and Mexico, and South Atlantic; Reef Fish AGENCY: Office of Government-wide consistent with applicable law, GSA Fishery of the Gulf of Mexico; 2020 shall prioritize projects that will result Policy (OGP), General Services Administration (GSA). Red Snapper Private Angling in the installation of a statue in a Component Accountability Measure in community where a statue depicting a ACTION: Availability of GSA Bulletin Federal Waters Off Louisiana historically significant American was FMR B–52, Clarifying the Process For removed or destroyed in 2020. All Meeting Federal Space Needs. AGENCY: National Marine Fisheries works of art commissioned under the Service (NMFS), National Oceanic and SUMMARY: This Federal Management Atmospheric Administration (NOAA), Art in Architecture program should be Regulation (FMR) bulletin clarifies Commerce. designed to be appreciated by the certain terms and concepts, Location of general public and by those who use ACTION: Temporary rule, accountability Space, to reflect current laws, executive measure. and interact with Federal buildings. orders and Office of Management and Budget bulletins and management SUMMARY: § 102–77.22 Are there certain style Through this temporary rule, requirements for statues or works of art procedure memoranda, thereby bringing NMFS implements accountability that are commissioned to portray federal location policy into compliance measures (AMs) for the red snapper historically significant Americans? with those governing authorities, until recreational sector private angling such time as a new regulation is issued. component in the Gulf of Mexico (Gulf) Yes. When a commissioned statue or DATES: Applicability Date: September off Louisiana for the 2020 fishing year. work of art is meant to depict a 25, 2020. Based on information provided by the historically significant American, the FOR FURTHER INFORMATION CONTACT: For Louisiana Department of Wildlife and statue or work of art must be a lifelike clarification of content, contact Mr. Fisheries (LDWF), NMFS has or realistic representation of that person, Chris Coneeney, Director, Real Property determined that the 2019 Louisiana not an abstract or modernist Policy Division, GSA, at 202–208–2956, regional management area private representation. or email [email protected]. angling component annual catch limit Please cite Notice of FMR Bulletin B–52. (ACL) for Gulf red snapper was 102–77.23 Who is considered a historically exceeded. Therefore, NMFS reduces the SUPPLEMENTARY INFORMATION: significant American under this part? 2020 private angling component ACL of Background: Federal agencies must Gulf red snapper for the Louisiana As used in this part, the term give great weight to FMR part 102–83 regional management area. This ‘‘historically significant American’’ when developing procedures for reduction will remain in effect through means an individual who was, or defining delineated areas and evaluating the remainder of the current fishing year became, an American citizen and was a locations for Federal facilities, as these on December 31, 2020, and is necessary public figure who made substantive provisions synthesize numerous laws to protect the Gulf red snapper resource. contributions to America’s public life or and executive orders. This part, otherwise had a substantive effect on however, has not undergone revision for DATES: This temporary rule is effective America’s history. The phrase also well over a decade. The clarifications from 12:01 a.m., local time, on includes public figures such as listed in the bulletin bring part 102–83 September 25, 2020, until 12:01 a.m., Christopher Columbus, Junipero Serra, into alignment with current terminology local time, on January 1, 2021. and the Marquis de La Fayette, who and concepts, and aim to provide FOR FURTHER INFORMATION CONTACT: lived prior to or during the American consistency when applying the existing Kelli O’Donnell, NMFS Southeast Revolution and were not American regulations across Federal agencies and Regional Office, telephone: 727–824– citizens, but who made substantive operational regions in advance of 5305, email: [email protected]. historical contributions to the discovery, issuing new regulations. The bulletin SUPPLEMENTARY INFORMATION: The Gulf development, or independence of the also offers guidance on incorporating reef fish fishery, which includes red future United States. Executive Order 13946 into decisions snapper, is managed under the Fishery regarding Federal property clarifies Management Plan for the Reef Fish

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Resources of the Gulf of Mexico (FMP). this temporary rule reduces the This action is based on the best The FMP was prepared by the Gulf of Louisiana regional management area scientific information available. The Mexico Fishery Management Council private angling component ACL for Gulf Assistant Administrator for NOAA (Council) and is implemented by NMFS red snapper by the ACL overage amount Fisheries (AA) finds that the need to under the authority of the Magnuson- of 31,901 lb (14,470 kg) and resulting in implement this action to reduce the Stevens Fishery Conservation and a revised private angling ACL for private angling component ACL for the Management Act (Magnuson-Stevens Louisiana of 784,332 lb (355,767 kg). Louisiana regional management area Act) through regulations at 50 CFR part On August 24, 2020, NMFS published constitutes good cause to waive the 622. All red snapper weights discussed a notice in the Federal Register requirements to provide prior notice in this temporary rule are in round reducing the 2020 recreational ACL and and opportunity for public comment on weight. private angling ACL for Gulf red this temporary rule pursuant to the In 2015, Amendment 40 to the FMP snapper as a result of a private angling authority set forth in 5 U.S.C. 553(b)(B), established two components within the ACL overage in 2019 for the Texas because such procedures are recreational sector fishing for red regional management area (85 FR unnecessary and contrary to the public snapper: The private angling 52055). This resulted in an adjusted interest. Such procedures are component, and the Federal charter 2020 recreational ACL for Gulf red unnecessary because the rule vessel and headboat (for-hire) snapper of 7,288,474 lb (3,305,996 kg) implementing the post-season ACL component (80 FR 22422, April 22, and an adjusted 2020 recreational adjustment authority has already been 2015). In 2020, NMFS implemented private angling component ACL of subject to notice and comment, and all Amendments 50 A–F to the FMP, which 4,158,474 lb (1,886,252 kg). Consistent that remains is to notify the public of delegated authority to the Gulf states with the reduction in the Louisiana the ACL overage adjustment. Such (Louisiana, Mississippi, Alabama, regional management area private procedures are contrary to the public Florida, and Texas) to establish specific angling component ACL, NMFS further interest because a failure to implement management measures for the harvest of reduces the 2020 total recreational ACL the ACL overage adjustment red snapper in Federal waters of the to 7,256,573 lb (3,291,526 kg) and the immediately may result in continued Gulf by the private angling component total private angling component ACL to confusion among the public and Gulf of the recreational sector (85 FR 6819, 4,126,573 lb (1,871,782 kg). The state officials about what ACL is in February 6, 2020). These amendments recreational private angling component effect for Louisiana for the 2020 fishing allocate a portion of the private angling ACLs for other Gulf state regional year. ACL to each state, and each state is management areas (Texas, Mississippi, For the aforementioned reasons, the required to constrain landings to its Alabama, and Florida) for 2020 are AA also finds good cause to waive the allocation as part of state management. unaffected by this action. The reduction 30-day delay in the effectiveness of the As described at 50 CFR 622.39(a)(2)(i), in the 2020 red snapper private angling action under 5 U.S.C. 553(d)(3). the Gulf red snapper recreational sector component ACL for the Louisiana quota (ACL) is 7.399 million lb (3.356 regional management area is effective at Authority: 16 U.S.C. 1801 et seq. million kg) and the recreational private 12:01 a.m., local time, on [insert date of Dated: September 22, 2020. angling component quota (ACL) is 4.269 publication with the Office of the Jennifer M. Wallace, million lb (1.936 million kg). Also, as Federal Register], and will remain in Acting Director, Office of Sustainable described at 50 CFR 622.23(a)(1)(ii)(C), effect through the end of the fishing year Fisheries, National Marine Fisheries Service. the Louisiana regional management area on January 1, 2021. [FR Doc. 2020–21246 Filed 9–24–20; 8:45 am] private angling component ACL is The LDWF is responsible for ensuring BILLING CODE 3510–22–P 816,233 lb (370,237 kg). Regulations at that 2020 private angling component 50 CFR 622.23(b) require that if a state’s landings in the Louisiana regional red snapper private angling component management area do not exceed the DEPARTMENT OF COMMERCE landings exceed the applicable state’s adjusted 2020 Louisiana ACL. NMFS component ACL, then in the following understands that after the LDWF National Oceanic and Atmospheric fishing year, that state’s private angling identified that an ACL overage had Administration ACL will be reduced by the amount of occurred in 2019, it adjusted the 2020 that ACL overage in the prior fishing Louisiana red snapper private angling 50 CFR Part 622 year. season to account for the reduction in For the 2019 fishing year, the [Docket Nos. 090206140–91081–03 and the Louisiana ACL as required by the 120405260–4258–02; RTID 0648–XA503] Louisiana recreational red snapper regulations at 50 CFR 622.23(b) and private component (private vessel and implemented through this temporary Revised Reporting Requirements Due state charter vessels) was managed rule. to Catastrophic Conditions for Federal under an exempted fishing permit with Classification Seafood Dealers and Individual Fishing a state ACL of 816,439 lb (370,331 kg). Quota Dealers in Portions of Alabama Amendment 50F provided that any NMFS issues this action pursuant to and Florida overage of the 2019 Louisiana ACL section 305(d) of the Magnuson-Stevens would be applied to Louisiana’s portion Act. This action is required under 50 AGENCY: National Marine Fisheries of the 2020 private angling ACL. NMFS CFR 622.23(b) which was issued Service (NMFS), National Oceanic and has determined that landings of red pursuant to section 304(b) of the Atmospheric Administration (NOAA), snapper off Louisiana for the private Magnuson-Stevens Act, and is exempt Commerce. angling component, which includes from review under Executive Order ACTION: Temporary rule; determination landings for state charter vessels, in 12866. of catastrophic conditions. 2019 were 848,340 lb (384,801 kg); These measures are exempt from the which is 31,901 lb (14,470 kg) greater procedures of the Regulatory Flexibility SUMMARY: In accordance with the than 2019 Louisiana allocation of the Act because the temporary rule is issued regulations implementing the individual private angling component ACL. without opportunity for prior notice and fishing quota (IFQ) and Federal dealer Accordingly, for the 2020 fishing year, comment. reporting programs specific to the

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commercial reef fish fishery in the Gulf IFQ program, e.g., landing transactions, system. There will be no mechanism for of Mexico (Gulf) and the coastal online. However, these regulations also transfers of IFQ shares or allocation migratory pelagic (CMP) fisheries in the specify that during catastrophic under the paper-based system in effect Gulf, the Regional Administrator (RA), conditions, as determined by the RA, during catastrophic conditions. Southeast Region, NMFS has the RA may waive or modify the Assistance in complying with the determined that Hurricane Sally has reporting time requirements for dealers requirements of the paper-based system caused catastrophic conditions in the and authorize IFQ participants to use will be available via the Catch Share Gulf for certain Alabama and Florida paper-based forms to complete Support line, 1–866–425–7627 Monday counties. This temporary rule authorizes administrative functions for the through Friday, between 8 a.m. and 4:30 any dealer in the affected area described duration of the catastrophic conditions. p.m., Eastern Time. in this temporary rule who does not The RA must determine that have access to electronic reporting to catastrophic conditions exist, specify Classification delay reporting of trip tickets to NMFS the duration of the catastrophic NMFS issues this action pursuant to and authorizes IFQ dealers within the conditions, and specify which section 305(d) of the Magnuson-Stevens affected area to use paper-based forms, participants or geographic areas are Act. This action is consistent with the if necessary, for basic required deemed affected. regulations in 50 CFR 622.5(c)(iii), administrative functions, e.g., landing Hurricane Sally made landfall in the 622.21(a)(3)(iii), and 622.22(a)(3)(iii) transactions. This temporary rule is U.S. near Gulf Shores, Alabama, in the which were issued pursuant to section intended to facilitate continuation of Gulf as a Category 2 hurricane on 304(b) of the Magnuson-Stevens Act, IFQ and dealer reporting operations September 16, 2020. Strong winds and and are exempt from review under during the period of catastrophic flooding from this hurricane impacted Executive Order 12866. conditions. communities throughout coastal These measures are exempt from the DATES: The RA is authorizing Federal Alabama and parts of the Florida procedures of the Regulatory Flexibility dealers and IFQ dealers in the affected Panhandle, resulting in power outages Act because this temporary rule is area to use revised reporting methods and damage to homes, businesses, and issued without opportunity for prior from September 23, 2020, through infrastructure. As a result, the RA has notice and comment. determined that catastrophic conditions October 31, 2020. Pursuant to 5 U.S.C. 553(b)(B), there exist in the Gulf for the Alabama FOR FURTHER INFORMATION CONTACT: is good cause to waive the requirements counties of Mobile and Baldwin; and Britni LaVine (727) 551–5766. the Florida counties of Escambia, Santa to provide prior notice and opportunity SUPPLEMENTARY INFORMATION: The reef Rosa, Okaloosa, Walton, Bay, Gulf, for public comment on this temporary fish fishery of the Gulf is managed Franklin, Wakulla, Leon, Jefferson, and rule. Such procedures are unnecessary under the Fishery Management Plan Taylor. because the final rules implementing (FMP) for Reef Fish Resources of the Through this temporary rule, the RA the Gulf IFQ programs and the Gulf and Gulf of Mexico (Reef Fish FMP), is authorizing Federal dealers in these Atlantic Federal dealer reporting have prepared by the Gulf of Mexico Fishery affected areas to delay reporting of trip already been subject to notice and Management Council (Gulf Council). tickets to NOAA Fisheries and IFQ public comment. These rules authorize The CMP fishery is managed under the dealers in this affected area to use the RA to determine when catastrophic FMP for CMP Resources in the Gulf of paper-based forms, from September 23, conditions exist, and which participants Mexico and Atlantic Region, prepared 2020, through October 31, 2020. NMFS or geographic areas are deemed affected by the Gulf Council and South Atlantic will provide additional notification to by catastrophic conditions. The final Fishery Management Council. Both affected dealers via NOAA Weather rules also authorize the RA to provide FMPs are implemented through Radio, Fishery Bulletins, and other timely notice to affected participants via regulations at 50 CFR part 622 under the appropriate means. NOAA Fisheries publication of notification in the authority of the Magnuson-Stevens will continue to monitor and re-evaluate Federal Register, NOAA Weather Radio, Fishery Conservation and Management the areas and duration of the Fishery Bulletins, and other appropriate Act (Magnuson-Stevens Act). catastrophic conditions, as necessary. means. All that remains is to notify the The Generic Dealer Amendment Dealers may delay electronic public that catastrophic conditions exist established Federal dealer reporting reporting of trip tickets to NMFS during and that paper forms may be utilized by requirements for federally permitted catastrophic conditions. Dealers are to IFQ dealers in the affected area and that dealers in the Gulf and South Atlantic report all landings to NMFS as soon as Federal dealers may submit delayed (79 FR 19490; April 9, 2014). possible. Assistance for Federal dealers reports. Additionally, delaying this Amendment 26 to the Reef Fish FMP in the affected area is available from the temporary rule to provide prior notice established an IFQ program for the Fisheries Monitoring Branch at 1–305– and opportunity for public comment commercial red snapper component of 361–4581. NMFS previously provided would be contrary to the public interest the Gulf reef fish fishery (71 FR 67447; IFQ dealers with the necessary paper because affected dealers continue to November 22, 2006). Amendment 29 to forms and instructions for submission in receive these species in the affected area the Reef Fish FMP established an IFQ the event of catastrophic conditions. and need a means of completing their program for the commercial grouper and Paper forms are also available from the landing transactions. With the power tilefish components of the Gulf reef fish RA upon request. The electronic outages and damage to infrastructure fishery (74 FR 44732; August 31, 2009). systems for submitting information to that have occurred in the affected area Regulations implementing these IFQ NMFS will continue to be available to due to Hurricane Sally, numerous programs (50 CFR 622.21 and 622.22) all dealers, and dealers in the affected businesses are unable to complete and the dealer reporting requirements area are encouraged to continue using landings transactions and dealer reports (50 CFR 622.5(c)) require that Federal these systems, if accessible. electronically. In order to continue with dealers and IFQ participants have access The administrative program functions their businesses, IFQ dealers need to be to a computer and internet and that they available to IFQ dealers in the area aware they can still complete landing conduct administrative functions affected by catastrophic conditions will transactions and dealer reports using the associated with dealer reporting and the be limited under the paper-based paper forms.

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For the aforementioned reasons, the Authority: 16 U.S.C. 1801 et seq. Dated: September 22, 2020. AA also finds good cause to waive the Jennifer M. Wallace, 30-day delay in the effectiveness of this Acting Director, Office of Sustainable action under 5 U.S.C. 553(d)(3). Fisheries, National Marine Fisheries Service. [FR Doc. 2020–21230 Filed 9–23–20; 4:15 pm] BILLING CODE 3510–22–P

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Proposed Rules Federal Register Vol. 85, No. 187

Friday, September 25, 2020

This section of the FEDERAL REGISTER State savings associations to reflect the [email protected], Division of Depositor contains notices to the public of the proposed scope of the FDIC’s current supervisory and Consumer Protection. issuance of rules and regulations. The responsibilities as the appropriate SUPPLEMENTARY INFORMATION: purpose of these notices is to give interested Federal banking agency for those persons an opportunity to participate in the institutions. The FDIC also proposes to rule making prior to the adoption of the final I. Background rules. define ‘‘FDIC-supervised institution’’ and ‘‘State savings association.’’ If the The Dodd-Frank Act proposal is adopted in final form, Title III of the Dodd-Frank Act 1 FEDERAL DEPOSIT INSURANCE insured State nonmember banks and provided for a substantial reorganization CORPORATION State savings associations will be of the regulation of State and Federal subject to the same anti-discrimination savings associations and their holding 12 CFR Parts 338 and 390 requirements. Upon removal of part 390, companies. Beginning July 21, 2011, the subpart G, nondiscrimination RIN 3064–AF35 transfer date established by section 311 regulations related to lending applicable of the Dodd-Frank Act,2 the powers, Transferred OTS Regulations for all insured depository institutions duties, and functions formerly Regarding Nondiscrimination for which the FDIC has been designated performed by the OTS were divided Requirements the appropriate Federal banking agency among the FDIC, as to State savings will be found at part 338 and related associations, the Office of the AGENCY: Federal Deposit Insurance nondiscrimination federal regulations Comptroller of the Currency (OCC), as to Corporation (FDIC). listed above, as applicable. Federal savings associations, and the ACTION: Proposed rule. DATES: Comments must be received on Board of Governors of the Federal or before October 26, 2020. Reserve System (FRB), as to savings and SUMMARY: In this notice of proposed ADDRESSES: You may submit comments, loan holding companies. Section 316(b) rulemaking, the Federal Deposit identified by RIN 3064–AF35, by any of of the Dodd-Frank Act 3 provides the Insurance Corporation (FDIC) proposes the following methods: manner of treatment for all orders, to rescind and remove from the Code of • Federal eRulemaking Portal: http:// resolutions, determinations, regulations, Federal Regulations rules entitled www.regulations.gov. Follow the and advisory materials that had been ‘‘Nondiscrimination Requirements’’ instructions for submitting comments in issued, made, prescribed, or allowed to (part 390, subpart G), and to amend the portal. become effective by the OTS. Section • FDIC regulation part 338 to make it Agency Website: https:// 316(b) states that if the materials were applicable to State savings associations. www.fdic.gov/regulations/laws/federal/. in effect on the day before the transfer Part 390, subpart G was included in the Follow the instructions for submitting date, they continue to be in effect and regulations that were transferred to the comments on the website. • are enforceable by or against the FDIC from the Office of Thrift Email: [email protected]. Include appropriate successor agency until they Supervision (OTS) on July 21, 2011, in RIN 3064–AF35 in the subject line of are modified, terminated, set aside, or connection with the implementation of the message. • superseded in accordance with applicable provisions of Title III of the Mail: Robert E. Feldman, Executive applicable law by such successor Dodd-Frank Wall Street Reform and Secretary, Attention: Comments, Federal agency, by any court of competent Consumer Protection Act (Dodd-Frank Deposit Insurance Corporation, 550 17th jurisdiction, or by operation of law. Act). The FDIC’s part 338 is entitled Street NW, Washington, DC 20429. ‘‘Fair Housing’’ and applies to insured • Hand Delivery/Courier: Comments Section 316(c) of the Dodd-Frank 4 State nonmember banks. Several may be hand-delivered to the guard Act further directed the FDIC and the provisions for State savings associations station at the rear of the 550 17th Street OCC to consult with one another and to in part 390, subpart G have NW building (located on F Street) on publish a list of the continued OTS substantively similar provisions in part business days between 7:00 a.m. and regulations which would be enforced by 338. The remaining provisions in part 5:00 p.m. the FDIC and the OCC, respectively. On 390, subpart G without a direct Instructions: All submissions for this June 14, 2011, the FDIC’s Board of counterpart are largely duplicative of rulemaking must include the agency Directors approved a ‘‘List of OTS federal laws (Equal Credit Opportunity name and RIN 3064–AF35. Comments Regulations to be Enforced by the OCC Act (ECOA), Fair Housing Act (FHA), received will be posted without change and the FDIC Pursuant to the Dodd- Equal Employment Opportunity Act to https://www.fdic.gov/regulations/ Frank Wall Street Reform and Consumer (EEOA) and other laws concerning laws/federal/, including any personal Protection Act.’’ This list was published nondiscrimination in lending, information provided. by the FDIC and the OCC as a Joint employment, and services) and FOR FURTHER INFORMATION CONTACT: Notice in the Federal Register on July 5 implementing regulations. After careful Navid Choudhury, Counsel, Legal 6, 2011. review of part 390, subpart G, the FDIC Division, (202) 898–6526, nchoudhury@ proposes to rescind and remove in its fdic.gov; Jamie Goodson, Senior Policy 1 Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111–203, 124 Stat. 1376 entirety part 390, subpart G to Analyst, (202) 898–6685, jagoodson@ (2010). streamline the FDIC’s rules and fdic.gov; Ernestine Ward, Policy 2 Codified at 12 U.S.C. 5411. eliminate unnecessary, inconsistent, Analyst, (202) 898–3812, erward@ 3 Codified at 12 U.S.C. 5414(b). and duplicative regulations and to fdic.gov; and Evelyn Manley, Fair 4 Codified at 12 U.S.C. 5414(c). modify the scope of part 338 to include Lending Specialist, (202) 898–3775, 5 76 FR 39247 (July 6, 2011).

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Although section 312(b)(2)(B)(i)(II) of remove part 390, subpart G, because, as monitoring system for fair lending the Dodd-Frank Act 6 granted the OCC discussed below, it is duplicative, enforcement and analysis.’’ 11 rulemaking authority relating to both unnecessary, and burdensome to require In 1993, following the President’s State and Federal savings associations, State savings associations to comply order for federal agencies to review all nothing in the Dodd-Frank Act affected with additional requirements to which Federal regulations and policies to the FDIC’s existing authority to issue insured State nonmember banks are not eliminate over-burdensome regulations regulations under the Federal Deposit subject. The FDIC also proposes to that discourage economic growth,12 the Insurance Act (FDI Act) and other laws makes technical conforming edits to OTS (as successor to the FHLBB) 13 as the ‘‘appropriate Federal banking part 338 to encompass State savings updated part 528 to eliminate certain agency’’ or under similar statutory associations and update the regulation. definitions that were deemed terminology. Section 312(c) of the Dodd- unnecessary and amended § 528.6, FDIC’s Existing 12 CFR Part 338 and Frank Act amended the definition of regarding compliance with Home Former OTS Part 528 (Transferred to ‘‘appropriate Federal banking agency’’ Mortgage Disclosure Act (HMDA) loan/ FDIC Part 390, Subpart G) contained in section 3(q) of the FDI Act 7 application registers (LARs). to add State savings associations to the The Fair Housing Act of 1968 Commenters favored elimination of the list of entities for which the FDIC is prohibits discrimination concerning the nondiscrimination disclosure designated as the ‘‘appropriate Federal sale, rental and financing of housing requirements of § 528.6, arguing it was banking agency.’’ As a result, when the based on race, religion, national origin duplicative of the requirements set forth FDIC acts as the designated or sex. Section 808 of the FHA directed in 12 CFR part 203, which made HMDA ‘‘appropriate Federal banking agency’’ all executive departments and agencies requirements applicable to savings (or under similar terminology) for State to administer their programs relating to associations. In its proposed rule, the savings associations, as it does here, the housing and urban development OTS stated that its own ‘‘loan FDIC is authorized to issue, modify and (including any Federal agency having application register’’ was ‘‘more rescind regulations involving such regulatory or supervisory authority over comprehensive than required by associations, insured State nonmember financial institutions, e.g., the OTS’ Regulation C’’ and that ‘‘the additional banks, and insured branches of foreign predecessor, the Federal Home Loan register information is useful to banks. Bank Board (FHLBB)) in a manner to examiners’’ but also stated that the As noted, on June 14, 2011, operating further the purposes of the FHA. additional information was available to pursuant to this authority, the FDIC’s Effective May 1, 1972, the FHLBB examiners through other means.14 In its Board of Directors reissued and amended Chapter V, subchapter B of final rule, the OTS agreed that part redesignated certain transferred OTS Title 12, by issuing a new section part 528.6 was substantially duplicative of regulations. These transferred OTS 528 which prohibited ‘‘discrimination HMDA part 203 but disagreed that the regulations were published as new FDIC by member institutions in their lending OTS’ requirement to report ‘‘reason for regulations in the Federal Register on and employment practices and in their denial’’ is unnecessary. At the time, August 5, 2011.8 When it republished advertising and requiring that such reporting the reason for denial was the transferred OTS regulations as new institutions display an Equal Housing optional under Regulation C.15 The OTS FDIC regulations, the FDIC specifically Lender Poster.’’ 9 argued that ‘‘[t]he ‘reason for denial’ noted that its staff would evaluate the Following this initial issuance of part provides us with useful information that transferred OTS regulations and might assists the examination process. We later recommend incorporating them 528 in 1972, in 1978 the FHLBB believe that retaining the regulatory into other FDIC regulations, amending finalized major amendments to the requirement assures that this important them, or rescinding them, as regulation to update and strengthen its data field is completed by all OTS- appropriate. nondiscrimination in lending regulated filers, including any majority- One of the OTS rules transferred to regulations to reflect provisions of the owned savings association service the FDIC requires State savings FHA, ECOA, and the Community corporations or affiliates.’’ 16 associations to not discriminate with Reinvestment Act (CRA) and to As a result, respect to lending, employment, and ‘‘strengthen the Bank Board’s ability to the OTS continued to require that other services provided. The OTS rule, enforce member institutions’ savings associations and other OTS formerly found at 12 CFR part 528 (part compliance with these and other regulated filers required to keep HMDA 528), was transferred to the FDIC with Federal laws which prohibit LARs pursuant to part 203 to report the only technical changes and is now discriminatory lending practices.’’ 10 ‘‘reason for denial’’ for all loan denials. found in the FDIC’s rules at part 390, Specifically, these amendments to the Part 528 was among the regulations subpart G, entitled ‘‘Nondiscrimination FHLBB’s fair lending regulation: ‘‘(1) that were transferred to the FDIC from Requirements.’’ Although few [p]rohibit member institutions from the OTS on July 21, 2011, pursuant to provisions of part 390, subpart G have automatically refusing to lend because of the age or location of a dwelling; (2) 11 43 FR 22332 (May 25, 1978). a direct counterpart within the FDIC’s 12 In 1996, the Department of Housing and Urban regulations, the provisions are largely prohibit loan decisions based on Development (HUD), in accordance with the duplicative of regulations implementing discriminatory appraisals; (3) emphasize President’s initiative on regulatory reinvention and federal laws (ECOA, FHA, EEOA, and that there is a right to file a written loan reform which requires deletion of nonbinding application; (4) require member guidance or explanations, entirely eliminated other laws concerning HUD’s part 109 (Advertising Guidelines), which nondiscrimination in lending, institutions to have written loan provided a variety of nonbinding suggestions and employment, and services) underwriting standards which are examples of advertising practices that would violate implemented by other agencies. After available to the public upon request; (5) the FHA. 61 FR 14378 (April 1, 1996). careful review of part 390, subpart G, revise the Equal Housing Lender poster 13 The updates followed the passage of the which member institutions display in Financial Institutions Reform, Recovery, and the FDIC proposes to rescind and Enforcement Act of 1989. Public Law 101–73, 103 their lobbies; and (6) establish a new Stat. 183 (1989). 6 Codified at 12 U.S.C. 5412(b)(2)(B)(i)(II). 14 57 FR 40352 (Sept. 3, 1992). 7 12 U.S.C. 1813(q). 9 37 FR 8436 (Apr. 3 1972). 15 See 12 CFR 203.4(c) (1993). 8 76 FR 47652 (Aug. 5, 2011). 10 43 FR 22332 (May 25, 1978). 16 58 FR 4309 (Jan. 14, 1993).

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the Dodd-Frank Act as noted above. exemption, unless otherwise required 390, subpart G do not have direct FDIC OTS’ part 528 was adopted as FDIC’s by their regulator. Reason for denial is counterparts, they are substantially part 390 subpart G and was not one such data point. Rescinding and duplicative of nondiscrimination integrated with the FDIC’s rules removing former OTS’s § 390.147 would provisions found in other federal laws contained in part 338, entitled ‘‘Fair promote regulatory consistency among (e.g., ECOA, FHA, EEOA, and other laws Housing.’’ Both in 2011 when OTS part insured State nonmember banks and concerning nondiscrimination in 528 was transferred and today, the State savings associations and enable lending, employment, and services) and FDIC’s part 338, a regulation whose State savings associations to take implementing regulations of the CFPB provisions are substantially similar to advantage of the partial exemption, if or Department of Labor.21 Additionally, some provisions in the OTS’ former part eligible. the interagency Policy Statement on 528: (1) Prohibits insured State In addition, FDIC requirements Discrimination in Lending applies to nonmember banks from engaging in related to nondiscrimination in State savings associations.22 The discriminatory advertising with regard advertising and displaying a fair applicable prohibitions on housing poster (§§ 338.3 and 338.4) are to residential real estate-related discrimination addressed by these other counterparts to substantially similar transactions; and (2) requires laws, regulations, and policy statements former OTS requirements (§§ 390.145 recordkeeping of certain home loan apply to State savings associations application data for compliance with and 390.146). However, the FDIC’s part regardless of specific references in the the ECOA and HMDA with respect to 338 and the former OTS’ part 390, FDIC’s regulation. insured State nonmember banks for subpart G differ with respect to where which the FDIC has been designated the they require fair housing posters to be In addition, to the extent that any appropriate Federal banking agency.17 displayed and the presence of such provision of part 390, subpart G These provisions have direct nonbinding recommendations about can be interpreted as applying in a case counterparts in part 390, subpart G. displaying Spanish-language posters in where ECOA, FHA, EEOA and other Specifically, the FDIC’s fair housing certain offices. With respect to poster laws and regulations concerning recordkeeping provisions (see §§ 338.7 location, FDIC’s § 338.4 requires posting nondiscrimination in lending, and 338.8) are a counterpart to the either the FDIC’s Equal Housing Lender employment or services would not former OTS requirement to file a HMDA poster or the U.S. Department of apply, the FDIC’s authority to amend LAR (§ 390.147). The FDIC rules require Housing and Urban Development’s these former OTS provisions is not supervised institutions to request and Equal Housing Opportunity poster at ‘‘a certain.23 The OTS had authority under retain any monitoring information central location within the bank where the Home Owners’ Loan Act (HOLA) to required by HMDA and its deposits are received or where such adopt regulations that give primary implementing Regulation C when loans are made in a manner clearly consideration of the best practices of receiving an application for credit for visible to the general public entering the thrift institutions in the United States the purchase or refinancing of a area,’’ whereas § 390.146 requires and appears to have used such authority dwelling to be occupied as a principal posting at each of a State savings in adopting and maintaining their residence. Prior to the passage of the association’s offices. The FDIC has not nondiscrimination requirements.24 final HMDA rule in 2015 by the Bureau identified a reason for State savings However, such HOLA authority does of Consumer Financial Protection associations to post an Equal Housing not extend to the FDIC. Moreover, the (CFPB),18 reporting of reason for denial Opportunity notice at locations where FDIC has not identified cases where the was optional for insured State insured State nonmember banks are not OTS applied the nondiscrimination nonmember banks, as mentioned earlier. required to post. Therefore, the FDIC requirements of its part 528 to address However, reporting of reason for denial proposes to rescind and remove acts or practices that were not became mandatory following the 2015 § 390.146. As discussed below, the FDIC prohibited by ECOA, FHA, or EEOA. HMDA rule for covered institutions. also proposes to amend § 338.4 to apply The FDIC also has not found cases FDIC-supervised institutions, under part to State savings associations, in addition where a fair lending review of a State 338, are already subject to the HMDA to insured State nonmember banks and savings association identified acts or reporting requirement to provide a to update the address provided for the practices that were deemed appropriate reason for denial as a result of the FDIC’s Consumer Response Center to address under part 390 subpart G but change in 2015. Therefore, the FDIC has (CRC). not found any reasonable basis to add With respect to the presence of non- not under ECOA or the FHA. For these such a specific provision into its part binding guidance, § 390.146 reasons, the FDIC finds §§ 390.142 338, and the FDIC proposes to rescind recommends, but does not require, that through 390.144 and 390.148 to be and remove the former OTS rule as State savings associations ‘‘post a unnecessary and duplicative, as a result duplicative and unnecessary. Moreover, Spanish language version of the [Equal of the overlapping provisions in ECOA, in 2018, the HMDA rule was further Housing Lender] poster in offices FHA, or EEOA, and proposes to rescind amended by the Economic Growth, serving areas with a substantial §§ 390.142 through 390.144 and 390.148 Regulatory Relief, and Consumer Spanish-speaking population.’’ The in their entirety rather than revise them Protection Act (EGRRCPA),19 which FDIC’s part 338 does not contain provided that insured depository guidance about posting supplemental 21 FDIC part 352 addresses nondiscrimination on institutions and insured credit unions foreign-language posters. The FDIC does the basis of disability to provide equal access to need not report certain data points for programs and activities conducted by the FDIC. not propose to add this nonbinding 22 59 FR 18267 (April 15, 1994). transactions that qualify for a partial recommendation to the existing Equal 23 See, e.g., OTS, Advance Notice of Proposed Housing Lending poster requirements in Rulemaking, Unfair or Deceptive Acts and 17 12 CFR part 338. § 338.4.20 Practices, 72 FR 43570, 43573 (Aug. 6, 2007) 18 80 FR 66127 (Oct. 28, 2015). Although several former OTS (stating that OTS’ Nondiscrimination Rule, then 12 19 Public Law 117–154 (2018). In recent CFPB CFR part 528, ‘‘extends beyond the federal fair rulemakings and other issuances, the requirement nondiscrimination rules codified in part lending laws by prohibiting discrimination not to report Reason for Denial in § 390.147 is stated to covered by those laws’’ and providing examples of be independent of the partial exemption from 20 https://www.fdic.gov/news/news/press/2018/ such broader applicability). reporting that data field under HMDA. pr18059a.pdf. 24 See id.

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to address acts or practices not regulations will be enforceable by the regulations and to the regulations that addressed by ECOA, FHA, or EEOA. FDIC until they are modified, implement ECOA and HMDA are The FDIC has determined that several terminated, set aside, or superseded in unnecessary. Therefore, the FDIC provisions of part 390 subpart G have no accordance with applicable law. After proposes to rescind § 390.141. counterparts in either the FDIC’s reviewing the Nondiscrimination regulations or other nondiscrimination C. Section 390.142—Nondiscrimination Requirements rule currently found in in Lending and Other Services federal regulations. For these part 390, subpart G, the FDIC, as the provisions, the FDIC has not identified appropriate Federal banking agency for Section 390.142 prohibits a reasonable basis for retaining these State savings associations, proposes to discrimination on a prohibited basis by requirements for State savings rescind and remove part 390, subpart G State savings associations in lending associations, given that they do not in its entirety. Further, in part 338, the and other services. The prohibited bases apply to insured State nonmember FDIC proposes to (1) revise § 338.1 to specified are location and age of a banks, and therefore proposes to rescind reflect that the advertising provisions of dwelling and race, color, religion, sex, the following provisions, which— subpart A apply to State savings handicap, familial status, marital status, 1. Require each State savings associations and their subsidiaries, to or age of an applicant or a joint 32 association to have clearly written, conform to and reflect the scope of applicant, among other parties. In nondiscriminatory loan underwriting FDIC’s current supervisory general, § 390.142(a) prohibits denying a standards, available to the public upon responsibilities as the appropriate loan or other service, discriminating in request, at each of its offices. Require Federal banking agency for State savings the purchase of loans or securities, or each association to review its standards, associations; (2) in § 338.2, add a discriminating in fixing the amount, and business practices that implement defined term ‘‘FDIC-supervised interest rate, duration, application them, at least annually to ensure equal institution,’’ defined to mean ‘‘either a procedures, collection or enforcement 25 opportunity in lending. bank [defined in § 338.2(a) to mean ‘‘an procedures, or other terms or conditions 2. Require each State savings insured State nonmember bank as of such loan or service, on a prohibited association notify each ‘‘inquirer’’ of a defined in section 3 of the Federal basis. Section 390.142(b) provides that right to obtain a copy of its loan Deposit Insurance Act’’] or a State ‘‘[a] State savings association shall underwriting standards.26 savings association’’; (3) add a new consider without prejudice the 3. Provide supplementary guidelines combined income of joint applicants for to aid savings associations in subsection to define ‘‘State savings association’’ as having ‘‘the same a loan or other service.’’ Section developing and implementing 390.142(c) prohibits a State savings meaning as in section 3(b)(3) of the nondiscriminatory lending policies and association from discriminating against Federal Deposit Insurance Act’’; 31 (4) provide that each State savings an applicant for a loan or other service make conforming technical edits association ‘‘should reexamine its on any prohibited basis, as defined in throughout, including replacing the underwriting standards at least annually Regulation B or HUD’s FHA regulation term ‘‘FDIC-supervised institution’’ or in order to ensure equal opportunity.’’ 27 in 24 CFR part 100. 4. Treat the age or location of a ‘‘institution’’ in place of ‘‘bank’’ There is significant overlap between dwelling as a per se prohibited basis for throughout the rule where necessary the requirements of § 390.142 and of the discrimination.28 and revising references to the FRB’s part requirements of ECOA and Regulation B 5. Provide certain guidelines relating 202 and part 203 throughout part 338 to and the FHA and HUD’s FHA to nondiscrimination in marketing refer to the CFPB’s part 1002 and part regulations (the general federal fair practices.29 1003, respectively; and (5) amend lending laws). For example, under In summary, after careful review of § 338.4 to update the text required for ECOA, it is ‘‘unlawful for any creditor part 390, subpart G (formerly part 528), the Equal Housing Lender poster to the to discriminate against any applicant, and the former OTS’s stated rationale correct address for the FDIC Consumer with respect to any aspect of a credit for the rule, the FDIC, as the appropriate Response Center. transaction’’ on a prohibited basis.33 Federal banking agency for State savings Part 390, Subpart G Similarly, the FHA provides that it is associations, proposes to rescind and ‘‘unlawful for any person or other entity remove part 390, subpart G in its A. Section 390.140—Definitions whose business includes engaging in entirety. Rescinding part 390, subpart G Section 390.140 defines the terms residential real estate-related also will serve to streamline the FDIC’s ‘‘application,’’ ‘‘dwelling,’’ and ‘‘State transactions to discriminate against any rules and eliminate unnecessary, savings association.’’ In light of the person in making available such a inconsistent, and duplicative proposal to rescind subpart G of part transaction, or in the terms or regulations. If the proposal is adopted in 390 in its entirety, these definitions conditions of such a transaction’’ final form, all insured State nonmember need not be retained. Therefore, the because of a prohibited basis.34 banks and State savings associations FDIC proposes to rescind § 390.140. Moreover, the following are prohibited will be subject to the same anti- bases under both subpart G of part 390 discrimination requirements. B. Section 390.141—Supplementary and the general federal fair lending Guidelines II. The Proposal laws: Race, color, religion, national Section 390.141 cross-references a origin, and sex.35 Regarding the functions of the former policy statement transferred from OTS OTS that were transferred to the FDIC, regulations to § 390.151, HUD’s fair 32 The other parties specified in § 390.147(a) are section 316(b)(3) of the Dodd-Frank housing regulations at 24 CFR part 100 a person associated with respect to a loan or service Act 30 provides that the former OTS or the purpose thereof, present or prospective et seq., and Regulation B and Regulation owners, lessees, tenants, or occupants of the C. The cross-reference to the policy dwelling(s), or present or prospective owners, 25 12 CFR 390.143(b). statement would be obsolete if § 390.151 lessees, tenant, or occupants of other dwellings in 26 12 CFR 390.144(b). the vicinity of the dwelling(s). 27 is rescinded as proposed. Moreover, the 12 CFR 390.150(a). 33 See 15 U.S.C. 1691(a). 28 12 CFR 390.142 through 390.144. cross-references to HUD’s fair housing 34 See 42 U.S.C. 3605(a). 29 12 CFR 390.150(d). 35 Prohibited bases for discrimination under 30 12 U.S.C. 5414(b)(3). 31 12 U.S.C. 1813(b)(3). ECOA but not the FHA are age (of an applicant),

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However, there are differences As mentioned, § 390.142(c) prohibits such requirements apply to insured between § 390.142 and the general a State savings association from State nonmember banks. The provision federal fair lending laws. For example, discriminating against an applicant for a is not required by ECOA or the FHA, under § 390.142(a), prohibited bases for loan or other service on any prohibited and the authority of the FDIC to amend discrimination explicitly include the basis, as defined in Regulation B or former OTS requirements that were location and age of a dwelling, whereas HUD’s FHA regulation in 24 CFR part adopted pursuant to HOLA authority is prohibited bases for discrimination 100. The FDIC believes that § 390.142(c) unclear. For these reasons, the FDIC under ECOA, FHA, and their is duplicative of the general federal fair proposes to rescind § 390.143(b). implementing regulations do not lending laws and therefore proposes to E. Section 390.144—Nondiscrimination include such factors. rescind the provision. As discussed earlier, to the extent that in Applications a provision of § 390.142 can be D. Section 390.143—Nondiscriminatory Section 390.144(a) prohibits interpreted as applying in a case where Appraisal and Underwriting discouraging or refusing to allow, ECOA, FHA, EEOA and other laws and Section 390.143(a) prohibits using or receive, or consider any applicant, regulations concerning relying upon a dwelling appraisal that a request or inquiry about a loan or other nondiscrimination in lending, State savings association knows or service on a prohibited basis. Section employment or services would not reasonably should know is 390.144(b) requires a State savings apply, the FDIC’s authority to amend ‘‘discriminatory on the basis of the age association to ‘‘inform each inquirer of these former OTS provisions is not or location of the dwelling’’ or is his or her right to file a written loan certain. Because the general federal fair ‘‘discriminatory per se or in effect’’ application, and to receive a copy of the lending laws address substantially the under the FHA or ECOA. The general association’s underwriting standards.’’ same acts and practices as are addressed federal fair lending laws prohibit Section 390.144(a) is substantially by § 390.142(a) and it is uncertain appraisal-related discrimination on a similar to, and duplicative of, whether the FDIC could amend prohibited basis.37 Although the prohibitions under the general federal § 390.142(a) in connection with acts or location of a dwelling is not a per se fair lending laws.39 To the extent that practices not explicitly prohibited by prohibited basis for discrimination § 390.144(a) relies on HOLA authority to the general federal fair lending laws, under those statutes, ECOA prohibits prohibit discrimination with respect to FDIC proposes to rescind § 390.142(a). discrimination because of the race, a service, or with respect to the age or Similarly, § 390.142(b) addresses acts color, religion, national origin, etc. of the location of a dwelling, in cases and practices addressed by the general residents in the neighborhood where the where the general federal fair lending federal fair lending laws but differs in property offered as collateral.38 To the laws would not apply, the FDIC’s ways that make FDIC’s authority to extent that § 390.143(a) prohibits authority to amend the provision is amend § 390.142(b) uncertain. As considering the age of a dwelling in a unclear. Therefore, the FDIC proposes to mentioned, § 390.142(b) provides that way that would not be prohibited under rescind § 390.144(a). ‘‘[a] State savings association shall the general federal fair lending laws, the As discussed earlier, the FDIC consider without prejudice the authority of the FDIC to amend the proposes to rescind the requirement in combined income of joint applicants for provision is unclear. § 390.143(b) for a State savings a loan or other service.’’ By contrast, As stated, § 390.143(a) also prohibits association to provide a copy of its Regulation B’s provisions establishing using or relying upon a dwelling underwriting standards upon request. standards for consideration of an appraisal that is discriminatory per se or Further, the FDIC believes that the applicant’s income in § 1002.6(b)(5) in effect under the FHA or ECOA. The requirement to post an Equal Housing does not require creditors to consider FDIC believes that prohibition is Lender poster, discussed below in the combined income of joint duplicative of prohibitions under the connection with 12 CFR 338.4, serves a applicants, and Comment 6(b)(5)–3.ii general fair lending laws and therefore substantially similar purpose as the states that creditors need not consider is unnecessary. For these reasons, the requirement to ‘‘inform each inquirer of income at all. In contrast with FDIC proposes to rescind § 390.143(a). his or her right to file a written loan § 390.142(b), 12 CFR 1002.6(b)(5) in Section 390.143(b) requires each State application’’ in 12 CFR 390.144(b). For Regulation B prohibits treating joint savings association to have clearly the foregoing reasons, the FDIC applicants differently based on the written, nondiscriminatory loan proposes to rescind § 390.144(b). existence, absence or likelihood of a underwriting standards available to the F. Section 390.145—Nondiscriminatory marital relationship. The FDIC believes public upon request at each of its Advertising that the prohibition in § 1002.6(b)(5) offices. In addition, § 390.143(b) addresses substantially the same issue requires each association to review its Section 390.145 prohibits directly or that § 390.142(b) addresses and the standards, and business practices that indirectly engaging in any form of latter is duplicative and arguably less implement them, at least annually to advertising that implies or suggests a clear. Therefore, the FDIC proposes to ensure equal opportunity in lending. No policy of discrimination or exclusion in rescind § 390.142(b).36 violation of ECOA, the FHA, or subpart also prohibits treating joint applicants differently G of part 390. The provision also marital status, and good faith exercise of a right based on the existence, absence, or likelihood of a provides that advertisements for any under the Consumer Credit Protection Act (or any marital relationship. loan for purchasing, constructing, state law upon which the CFPB has granted an 37 Regulation B prohibits discrimination ‘‘against exception). Prohibited bases for discrimination an applicant on a prohibited basis regarding any improving, repairing, or maintaining a under the FHA but not ECOA are handicap and aspect of a credit transaction.’’ 12 CFR 1002.4(a). dwelling or any loan secured by a familial status. Compare 15 U.S.C. 1691(a) with 42 Under HUD’s FHA regulations, it is unlawful to use dwelling must include the Equal U.S.C. 3604, 3605(a). ‘‘an appraisal of residential real property in Housing Lender symbol. 36 Section 1002.6(b)(5) prohibits discounting, or connection with the sale, rental, or financing of any The requirement in § 390.145 to excluding from consideration, the income of an dwelling where the person knows or reasonably applicant or his or her spouse because of a should know that the appraisal improperly takes include the Equal Housing Lender prohibited basis or because the income is derived into consideration’’ a prohibited basis. 24 CFR from part-time employment or is an annuity, 100.135(d)(1). 39 See, e.g., 15 U.S.C. 1691(a); 12 CFR 1002.4; 24 pension, or other retirement benefit. The provision 38 See 12 CFR 1002.2(z) and Comment 2(z)–1. CFR 100.120.

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symbol in dwelling-related advertising Regulation C now requires a covered compensating or providing training is substantially similar to the financial institution to report ‘‘[t]he because of the same prohibited bases as requirement in § 338.4(a) that an principal reason or reasons the financial under § 390.148(a).42 Similarly, the insured State nonmember bank institution denied the application, if EEOA prohibits employers from prominently indicate in advertisements applicable.’’ 40 The FDIC believes that segregating or classifying employees for dwelling-related loans ‘‘that the bank § 390.147 is duplicative now that that would adversely affect their status makes such loans without regard to reporting reason for denial is required as an employee on a prohibited basis.43 race, color, religion, national origin, sex, rather than optional under Regulation C. The EEOA also makes it unlawful for an handicap, or familial status.’’ Section Furthermore, pursuant to the EGRRCPA, employer to retaliate against an 338.4(a)(1) permits, but does not Regulation C provides a partial employee for opposing a practice made require, an insured State nonmember exemption from reporting reason for unlawful under a subchapter of the bank to comply ‘‘by including in the denial and certain other data points for EEOA.44 The EEOA makes it generally advertisement a copy of the logotype financial institutions that meet specified unlawful for an employer to with the Equal Housing Lender legend conditions. Banks eligible for the partial discriminate in advertisements for contained in the Equal Housing Lender exemption need not report reason for employment.45 The FDIC believes that poster prescribed in § 338.4(b) of the denial, but State savings associations §§ 390.148(a) through (d) are duplicative FDIC’s regulations or a copy of the supervised by the FDIC must report of the prohibitions under the EEOA and logotype with the Equal Housing reason for denial pursuant to therefore are unnecessary. For these Opportunity legend contained in the § 390.147.41 The FDIC has not identified reasons, the FDIC proposes to rescind Equal Housing Opportunity poster grounds for State savings associations these provisions. prescribed in’’ § 110.25(a) of HUD’s that are eligible for the partial Section 390.148(e) cross-references FHA regulation. Because § 390.145 is exemption under HMDA to be treated the EEOA. The cross-reference to the substantially similar to § 338.4, FDIC differently from similarly situated statute would be obsolete if § 390.148 is proposes to rescind § 390.145 and, as banks. For the foregoing reasons, the rescinded as proposed. Section discussed below, amend § 338.4 to cover FDIC proposes to rescind § 390.147. 390.148(f) cross-references multiple State savings associations in addition to employment laws, including the EEOA. insured State nonmember banks. I. Section 390.148—Nondiscrimination The FDIC believes such cross-references in Employment are unnecessary and therefore proposes G. Section 390.146—Equal Housing to rescind §§ 390.148(e) and (f). Lender Poster Section 390.148 prohibits discrimination on a prohibited basis by J. Section 390.149—Complaints Section 390.146(a) requires each State State savings associations in savings association to post and maintain employment. The specified prohibited Section 390.149 provides that at least one Equal Housing Lender bases are race, color, religion, sex, and complaints about discrimination in poster prominently in the lobby of each national origin. Section 390.148(a) lending by a State savings association of its offices, requires the use of prohibits discrimination in the hiring, ‘‘shall be referred’’ to the Secretary of specified text, establishes a minimum firing, promoting, compensating, or HUD for processing under the FHA and poster size, and requires that the text be training of an individual or similar the Director of the Division of Depositor legible. Also, § 390.146(a) states that discriminatory treatment during and Consumer Protection at the FDIC for ‘‘[i]t is recommended that savings employment or with regard to training. processing under FDIC regulations. In associations post a Spanish language Section 390.148(b) prohibits segregation addition, § 390.149 provides that complaints about discrimination in version of the poster in offices serving or classification of employees in a way employment by a State savings areas with a substantial Spanish- that would adversely affect their status association ‘‘shall be referred’’ to the speaking population.’’ Section as an employee on a prohibited basis. EEOC (with a copy to the FDIC) if they 390.146(b) sets forth the required poster Section 390.148(c) prohibits State relate to employment. Similar, although text and the Equal Housing Lender savings associations from retaliating more detailed, discrimination complaint logotype. against an employee for opposing an processing provisions can be found in The requirements of § 390.146 are unlawful employment practice. Section other federal laws, and their substantially similar to the requirements 390.148(d) prohibits discrimination by implementing regulations.46 Moreover, applicable to insured State nonmember State savings associations in banks under § 338.4. As discussed later, as a matter of practice, consistent with advertisements for employment. Section the 1991 Memorandum of although the FDIC’s Equal Housing 390.148(e) states the regulation does not Lender poster provisions do not include Understanding Between the U.S. apply in any case in which certain Department of Housing and Urban the Spanish-language recommendation exemptions and exceptions under the included in § 390.146, the FDIC makes Development and the Federal Financial EEOA apply. Section 390.148(f) states Institutions Examination Council a Spanish-language poster available to that any violation of specified laws or the institutions it supervises. For these (FFIEC) Member Agencies, the FDIC has regulations, such as the EEOA and the long had procedures for referring reasons, the FDIC proposes to rescind Age Discrimination in Employment Act, § 390.146 and, as discussed below, complaints to HUD regarding lending shall be deemed a violation of this discrimination by financial institutions. amend § 338.4 to also apply to State regulation. savings associations. These procedures apply to complaints There is significant overlap between involving lending by State savings H. Section 390.147—Loan Application the requirements of § 390.148(a) through associations. Therefore, the FDIC Register (d) and the EEOA. Under the EEOA, it is unlawful for an employer to Section 390.147 requires that State 42 See 42 U.S.C. 2000e–2(a)(1) and (d). discriminate in hiring, firing, 43 savings associations and other lenders See 42 U.S.C. 2000e–2(a)(2). required to file HMDA LARs with the 44 See 42 U.S.C. 2000e–3(a). 40 See § 1003.4(a)(16). 45 FDIC to enter the reason for denial with See 42 U.S.C. 3605(a). 41 Financial institutions regulated by the OCC are 46 See 24 CFR part 103 ((Fair Housing—Complaint respect to all loan denials. As discussed required to report reasons for denial on their HMDA Processing) (FHA)) and 29 CFR part 1601 earlier in Section I, Background, LARs pursuant to 12 CFR 27.3(a)(1)(i) and 128.6. ((Procedural Regulations) (EEOA)).

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believes the provisions in § 390.149 bearing or childrearing.50 Therefore, the Federal Deposit Insurance Act, 12 regarding routing complaints about FDIC proposes to rescind this section as U.S.C. 1813(b)(3)’’. Also, the FDIC discrimination in lending are duplicative or unnecessary. proposes to make conforming technical duplicative and unnecessary. edits to other subsections in § 338.2 to Part 338—Fair Housing However, there appears to be no reflect the re-ordering of definitions. equivalent requirement to the The FDIC’s part 338, Fair Housing, provisions in § 390.149 regarding applies to insured State nonmember C. Section 338.3—Nondiscriminatory referring complaints to EEOC regarding banks and addresses discrimination in Advertising employment discrimination by FDIC- advertising and recordkeeping Section 338.3 provides certain supervised institutions. The FDIC requirements under ECOA and HMDA. requirements with respect to dwelling- believes it would be burdensome and The FDIC proposes to make technical related advertisements to reflect the unnecessary to require State savings amendments to part 338 to reflect the bank’s nondiscrimination lending associations to comply with this applicability of its provisions to State practice and prohibits such additional requirement to which savings associations, as discussed advertisements from including ‘‘words, insured State nonmember banks are not below. symbols, models, or other forms of communication which express, imply, subject. For the foregoing reasons, the A. Section 338.1—Purpose FDIC proposes to rescind § 390.149 in or suggest a discriminatory preference its entirety. Section 338.1 states that its purposes or policy of exclusion in violation of the are to prohibit insured State nonmember provisions of the FHA or ECOA. To K. Section 390.150—Guidelines Relating banks from engaging in discriminatory reflect that § 338.3 applies to all to Nondiscrimination in Lending advertising with regard to residential institutions for which the FDIC is the Section 390.150 ‘‘provides real estate-related transactions and appropriate Federal banking agency, the supplementary guidelines to aid savings require them to publicly display either FDIC proposes to amend § 338.3 to associations in developing and the Equal Housing Lender poster set change references to ‘‘bank’’ to refer to implementing nondiscriminatory forth in § 338.4(b) of the FDIC’s ‘‘FDIC-supervised institution.’’ lending policies.’’ In general, § 390.150 regulations or the Equal Housing states actions that State savings Opportunity poster prescribed in 24 D. Section 338.4—Fair Housing Poster associations ‘‘should’’ take or actions CFR part 110 in HUD’s regulations. To Section 338.4(a) requires insured that ‘‘can’’ or ‘‘may’’ constitute illegal reflect that § 338.1 applies to all State nonmember banks engaged in discrimination.47 The requirements in institutions for which the FDIC is the extending dwelling-related loans to the guidelines generally have analogous appropriate Federal banking agency, the conspicuously display either an Equal requirements in the general federal fair FDIC proposes to amend § 338.1 to Housing Lender poster or an Equal lending laws; for example, with respect change references to ‘‘insured State Housing Opportunity poster ‘‘in a to discrimination on the basis of marital nonmember banks’’ to refer to ‘‘FDIC- central location within the bank where status,48 discounting or excluding supervised institutions.’’ deposits are received or where such loans are made in a manner clearly spousal income or supplementary B. Section 338.2—Definitions 49 visible to the general public entering the income, and inquiring about child Applicable to Subpart A of This Part area, where the poster is displayed.’’ 47 See, e.g., § 390.150(a) (stating that ‘‘[e]ach State Section 338.2 defines terms used in This requirement is substantially similar savings association should reexamine its subpart A of part 338, including the to the requirement in § 390.146 for State underwriting standards at least annually in order to term ‘‘bank’’ defined in § 338.2(a) to savings associations to display an Equal ensure equal opportunity’’); § 390.150(c)(2) (stating mean ‘‘an insured state nonmember that ‘‘[r]equiring fluency in the English language as Housing Lender poster, which the FDIC a prerequisite for obtaining a loan may be a bank as defined in section 3 of the herein proposes to rescind and remove. discriminatory practice based on national origin’’); Federal Deposit Insurance Act.’’ The To reflect that § 338.4(a) applies to all § 390.150(c)(6) (stating that ‘‘[r]efusing to lend, or FDIC proposes to add to § 338.2(c) a institutions for which the FDIC is the offering less favorable terms (such as interest rate, new defined term ‘‘FDIC-supervised down payment, or maturity) to applicants because appropriate Federal banking agency, the of the income level in an area can discriminate institution’’ meaning a bank or a State FDIC proposes to amend § 338.4(a) to against minority group persons’’). savings association and to add change references to ‘‘insured State 48 Compare § 390.150(c)(1) (‘‘Loan underwriting § 338.2(f), a new defined term ‘‘State nonmember banks’’ to refer to ‘‘FDIC- decisions must be based on an applicant’s credit savings association’’ having ‘‘the same supervised institutions.’’ history and present and reasonably foreseeable Section 338.4(b) sets forth the economic prospects, rather than on the basis of meaning as in section (3)(b)(3) of the assumptions regarding comparative differences in required text of the FDIC’s Equal creditworthiness between married and unmarried overtime income of the primary wage-earner may Housing Lender poster, including the individuals, or between men and women.’’) with 12 result in discrimination because they do not take former mailing address of the FDIC’s CFR 1002.6(b)(8) (stating that, except as otherwise account of variations in employment patterns CRC, formatted as a Portable Document permitted or required by law, a creditor must among individuals and families.’’) with evaluate married and unmarried applicants by the § 1002.6(b)(5) (prohibiting discounting or excluding Format (PDF) image. Since the CRC same standards and must not treat applicants income of an applicant or an applicant’s spouse mailing address changed in 2011, the differently based on the existence, absence, or because of a prohibited basis or because the income FDIC has made available to FDIC- likelihood of a marital relationship between the is derived from part-time employment or is an supervised institutions an Equal parties) and 12 CFR 1002.7(a) (stating that a creditor annuity, pension, or other retirement benefit). must not refuse to grant an individual account to 50 Compare § 390.150(c)(3) (‘‘Information relating Housing Lender poster with the correct a creditworthy applicant on the basis of sex, marital to child-bearing intentions of a couple or an address of the CRC, both in English and status, or any other prohibited basis). individual may not be requested.’’) with in Spanish.51 Because the CRC mailing 49 Compare § 390.150(c)(3) (stating that, when § 1002.6(b)(3) (stating that a creditor must not make address may change in the future, the spouses apply jointly for a loan, discounting assumptions or use aggregate statistics about the spousal income violates the FHA and that the likelihood ‘‘that any category of persons will bear FDIC proposes to amend § 338.4(b) to determination whether a spouse’s income qualifies or rear children or will, for that reason, receive for credit purposes should depend upon a diminished or interrupted income in the future’’) 51 The poster is available to both insured State reasonable evaluation of his or her past, present, and § 1002.5(d)(3) (providing that a creditor must nonmember banks and State savings associations. and reasonably foreseeable economic not ‘‘inquire about birth control practices, Moreover, the current CRC mailing address is circumstances) and § 390.150(c)(4) (‘‘Lending intentions regarding the bearing or rearing of correctly stated in FDIC regulations applicable to standards which consider as effective only the non- children, or capability to bear children’’). State savings associations. 12 CFR 390.146.

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reflect that the mailing address stated on F. Section 338.6—Definitions designated as 12 CFR part 1003 and is the Equal Housing Lender poster should Applicable to This Subpart B implemented by the CFPB. be the address for the Consumer Section 338.6 defines terms used in I. Section 338.9—Mortgage Lending of a Response Center stated on the FDIC’s subpart B of part 338, including the Controlled Entity website at www.fdic.gov.52 Furthermore, term ‘‘bank’’ defined in § 338.6(a) to Section 338.9 establishes the FDIC proposes to set forth the mean ‘‘an insured State nonmember requirements that apply if a bank refers required text of the Equal Housing bank as defined in section 3 of the applicants to a ‘‘controlled entity,’’ as Lender poster in § 338.4(b) as a text Federal Deposit Insurance Act.’’ The defined in § 338.6, and purchases any statement rather than as a PDF image. FDIC proposes to add as § 338.2(c) a home purchase loans or home To assist FDIC-supervised new defined term ‘‘FDIC-supervised improvement loans (as defined in institutions, the FDIC expects to institution’’ meaning a bank or a State Regulation C) that are originated by the continue to provide them with access to savings association and to add as controlled entity, as a condition to a poster stating the required text, § 338.6(d) a new defined term ‘‘State transacting any business with the including the accurate CRC mailing savings association’’ having ‘‘the same controlled entity.54 In such cases, address. If this rule is finalized as meaning as in section (3)(b)(3) of the § 338.9 provides that the bank must proposed, no change to posters would Federal Deposit Insurance Act, 12 require the controlled entity to enter be required of FDIC-supervised U.S.C. 1813(b)(3).’’ institutions that use an Equal Housing into a written agreement with the bank Lender poster obtained from the FDIC G. Section 338.7—Recordkeeping that states that the controlled entity since the CRC mailing address was Requirements must comply with the requirements of updated in 2011. The FDIC believes that Section 338.7 requires banks that §§ 338.3, 338.4 and 338.7 and, if the few insured State nonmember banks receive an application for credit controlled entity is subject to Regulation make their own Equal Housing Lender primarily for the purchase or C, § 338.8. Further, the written poster based on the text of § 338.4(b). refinancing of a dwelling occupied or to agreement must provide that the Nonetheless, to facilitate the transition be occupied by the applicant as a controlled entity must open its books to the updated poster, the FDIC principal residence where the extension and records to FDIC examination and proposes to provide a transition period of credit will be secured by the dwelling comply with all FDIC instructions and of one year for FDIC-supervised to request and retain the monitoring orders with respect to its home loan institutions to change their posters to information required by Regulation B.53 practices. Because this notice of proposed reflect the current CRC mailing address, To reflect that § 338.7 applies to all rulemaking is intended to rescind and if needed. That is, the effective date of institutions for which the FDIC is the appropriate Federal banking agency, the remove former OTS regulations that are § 338.4(b), as amended, would be the duplicative of regulations under ECOA, date that is one year after a final rule FDIC proposes to amend § 338.7 to change references to ‘‘bank’’ to refer to FHA, or EEOA, the FDIC does not amending the provision is published in propose in this rulemaking to impose the Federal Register. ‘‘FDIC-supervised institution.’’ The FDIC also proposes to make technical substantive requirements regarding the E. Section 338.5—Purpose amendments to § 338.7 to reflect that business transactions between a State savings association and any entity it Section 338.5 states that its purpose is Regulation B has been re-designated as controls. That is, the FDIC does not to notify insured State nonmember 12 CFR part 1002 and is implemented propose to replace the term ‘‘bank’’ with banks of their duty both to collect and by the CFPB. the term ‘‘FDIC-supervised institution’’ retain certain information about a home H. Section 338.8—Compilation of Loan in § 338.9. However, the FDIC proposes loan applicant’s personal characteristics Data in Register Format to make technical amendments to in accordance with Regulation B and to § 338.9 to reflect that Regulation C has maintain, update and report a register of Section 338.8 requires banks and other lenders required to file a HMDA been re-designated as 12 CFR part 1003 home loan applications in accordance and is implemented by the CFPB. with Regulation C. To reflect that LAR with the FDIC to maintain, update § 338.5 applies to all institutions for and report such LAR in accordance with III. Expected Effects Regulation C. To reflect that § 338.8 which the FDIC is the appropriate As of March 31, 2020, the FDIC- applies to all institutions for which the Federal banking agency, the FDIC supervised 3,309 depository proposes to amend § 338.5 to change FDIC is the appropriate Federal banking institutions,55 of which 35 are State references to ‘‘insured State nonmember agency, the FDIC proposes to amend savings associations.56 banks’’ to refer to ‘‘FDIC-supervised § 338.8 to change references to ‘‘bank’’ If the proposed rule were adopted by institutions.’’ The FDIC also proposes to to refer to ‘‘FDIC-supervised the FDIC, §§ 390.140 and 390.141 would make technical amendments to § 338.5 institution.’’ Additionally, to reflect be rescinded. As discussed previously, to reflect that Regulation B and amendments made to Regulation C these sections include definitions and Regulation C have been re-designated as regarding the responsibilities of a cross-references to other parts of section 12 CFR part 1002 and 12 CFR part 1003, financial institution with respect to 390, so their rescission has no respectively, and are implemented by HMDA LAR data, the FDIC proposes to independent significance for the CFPB. amend § 338.8 require banks and other institutions or applicants, but rather is lenders required to file a HMDA LAR 52 Currently, the mailing address for the with the FDIC to collect, record, and 54 Pursuant to § 338.9, ‘‘controlled entity’’ means Consumer Response Center (1100 Walnut St., Box report such LAR in accordance with ‘‘a corporation, partnership, association, or other #11 Kansas City, MO 64106) is provided at https:// Regulation C. The FDIC also proposes to business entity with respect to which a bank www.fdic.gov/consumers/assistance/ make technical amendments to § 338.8 possesses, directly or indirectly, the power to direct filecomplaint.html. Since May 31, 2012, Regulation or cause the direction of management and policies, B has required the use of that address in adverse to reflect that Regulation C has been re- whether through the ownership of voting securities, action notices, as applicable. See Board of by contract, or otherwise.’’ Governors of the Federal Reserve System, Final 53 This requirement relates to the collection of 55 FDIC-supervised institutions are set forth in 12 Rule, Equal Credit Opportunity, 76 FR 31451 (Jun. information for monitoring purposes required by 12 U.S.C. 1813(q)(2). 1, 2011). CFR 1002.13. 56 FDIC Call Report data, March 31, 2020.

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a technical amendment associated with substantive effect on FDIC-supervised FDIC-supervised institutions or the proposal to rescind subpart G of part institutions or applicants. applicants. 390 in its entirety. As discussed previously, if the As previously discussed, the As previously discussed, if the proposed rule were adopted by the proposed rule would rescind § 390.149 proposed rule were adopted by the FDIC, § 390.145 would be rescinded. if it were adopted. The FDIC has FDIC, § 390.142 would be rescinded. Section 390.145 is substantially similar procedures for referring complaints to This section has substantial overlap to § 338.4 and the proposed rule would HUD regarding lending discrimination with the requirements of ECOA and amend § 338.4 to cover State savings by financial institutions and these Regulation B and the FHA and HUD’s associations in addition to insured State procedures apply to complaints FHA regulations. Additionally, although nonmember banks. Therefore, the FDIC involving lending by State savings some aspects of § 390.142 have no believes that this aspect of the proposed associations. However, there appears to counterpart in existing regulations for rule is unlikely to have any substantive be no equivalent requirement to the insured State nonmember banks, as effect on FDIC-supervised institutions or provisions in § 390.149 regarding indicated earlier, the FDIC’s authority to applicants. referring complaints to EEOC regarding amend those elements is uncertain. As discussed previously, if the employment discrimination by FDIC- Therefore, the FDIC believes that these proposed rule were adopted by the supervised institutions. This aspect of aspects of the proposed rule are unlikely FDIC, § 390.146 would be rescinded. the proposed rule would thus create to significantly affect FDIC-supervised The requirements of § 390.146 are parity between insured State institutions or applicants. substantially similar to the requirements nonmember banks and State savings applicable to insured State nonmember associations with respect to complaints If the proposed rule were adopted, the banks under § 338.4. Section 338.4, about discriminatory lending. Given FDIC would rescind § 390.143. As however, unlike § 390.146, does not that FDIC-supervised institutions are discussed previously, aspects of include a ‘‘recommendation’’ that a still subject to applicable elements of § 390.143 are either duplicative of Spanish-language version of the Equal the EEOA and FDIC regulations and prohibitions under the general fair Housing Lender poster be posted in procedures, the FDIC does not believe lending laws or the authority of the offices serving areas with a substantial that this aspect of the proposed rule is FDIC to amend them is uncertain. With Spanish-speaking population. The FDIC likely to have a substantive effect on regard to § 390.143(b), the proposed rule does, however, make a Spanish- covered institutions or their employees. would reduce compliance requirements language poster available to the As previously discussed, the associated with maintaining and institutions it supervises. Given the proposed rule would rescind § 390.150 distributing relevant paperwork. The substantive similarity of much of if adopted. This section contains FDIC believes that this is likely to pose § 390.146 to § 338.4, the FDIC believes guidelines intended to serve as a a relatively small benefit to the 35 that rescinding it is unlikely to have resource for State savings associations institutions to which it applies. Further, substantial effects on covered when developing and implementing the FDIC believes that it is unlikely that institutions or applicants. nondiscriminatory lending policies. the rescission of the requirement to If the proposed rule were adopted, the State savings associations, like other establish, maintain, and distribute upon FDIC would rescind § 390.147. As FDIC-supervised banks, remain subject request nondiscriminatory loan previously discussed, the FDIC believes to federal fair lending laws and underwriting standards for these 35 that § 390.147 is duplicative now that regulations and the FDIC does not State savings associations would lead to reporting reason for denial is required believe removal of these guidelines will an increase in discriminatory lending rather than optional under Regulation C. have any meaningful effect on these behavior because these institutions are Further, since Regulation C provides a institutions or their applicants. still subject to the general fair lending partial exemption from reporting reason Finally, the proposed rule, if adopted, laws. Therefore, the FDIC does not for denial and certain other data points would make some technical changes to believe that this aspect of the proposed for financial institutions that meet FDIC’s part 338 in order to make it rule, if adopted, is likely to have specified conditions, but no such applicable to State savings associations substantive effects on FDIC-supervised exemption exists for State savings and provide for Equal Housing Lender institutions or applicants. associations, the proposed rule would posters to state the accurate CRC As discussed previously, if the establish parity with respect to the mailing address. As previously proposed rule were adopted by the reporting requirements for HMDA LARs discussed, these proposed changes are FDIC, § 390.144 would be rescinded. for State savings associations and other unlikely to have significant effects on Section 390.144(a) is substantially FDIC-supervised institutions. The FDIC State savings associations because they similar to, and duplicative of, believes that this aspect of the proposed are already subject to substantively prohibitions under the general federal rule is unlikely to significantly affect similar regulations. fair lending laws.57 Additionally, the FDIC-supervised institutions or Rescinding part 390, subpart G also authority of the FDIC to amend it is applicants. will serve to streamline the FDIC’s rules unclear. The FDIC also believes that the As previously discussed, the and eliminate unnecessary, requirement to post an Equal Housing proposed rule would rescind § 390.148 inconsistent, and duplicative Lender poster, discussed above in if it were adopted. The FDIC believes regulations. If the proposal is adopted in connection with § 338.4, serves a that there is significant overlap between its final form, insured State nonmember substantially similar purpose as the the requirements of § 390.148(a) through banks and State savings associations requirement to ‘‘inform each inquirer of (d) and various aspects of the EEOA. will be subject to the same anti- his or her right to file a written loan Further, § 390.148(e) and (f) references discrimination requirements. application’’ in § 390.144(b). Therefore, multiple employment laws, including the FDIC believes that the rescission of the EEOA, which if the rest of § 390.148 V. Alternatives § 390.144 is unlikely to have any were rescinded as proposed, would be Several alternatives to the proposed unnecessary. Therefore, the FDIC rulemaking were available to the FDIC. 57 See, e.g., 15 U.S.C. 1691(a); 12 CFR 1002.4; 24 believes that this aspect of the proposed The FDIC could have retained the CFR 100.120. rule is unlikely to substantively affect current regulations in part 390, subpart

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G, but chose not to do so since most of valid Office of Management and Budget million in total assets.60 Generally, the the requirements in subpart G are (OMB) control number. FDIC considers a significant effect to be duplicative of or substantively similar to The Proposed Rule would rescind and a quantified effect in excess of 5 percent existing requirements under federal law remove from FDIC regulations part 390, of total annual salaries and benefits per or under the FDIC’s current fair housing subpart G because it is duplicative and institution, or 2.5 percent of total requirements in part 338. As previously unnecessary. This rule was transferred noninterest expenses. The FDIC believes discussed, the FDIC also could have with only nominal changes to the FDIC that effects in excess of these thresholds retained certain requirements in subpart from the OTS when the OTS was typically represent significant effects for G that the OTS issued pursuant to the abolished by title III of the Dodd-Frank FDIC-supervised institutions. For the HOLA, but chose not to do so because Act. Although few provisions of part reasons described below and under the FDIC’s legal authority to amend 390, subpart G have a direct counterpart section 605(b) of the RFA, the FDIC requirements that the OTS issued within the FDIC’s existing certifies that this proposed rule will not pursuant to HOLA is not clear. nondiscrimination requirements for have a significant economic impact on In the instances where the regulations insured State nonmember banks in part a substantial number of small entities. in part 390, subpart G were more 338, it is largely duplicative of federal As of March 31, 2020, the FDIC- stringent than similar requirements for laws (ECOA, FHA, EEOA, and other supervised 3,309 depository 61 insured State nonmember banks, the laws concerning nondiscrimination in institutions, of which 2,548 were lending, employment, and services) and considered small entities for the FDIC could have applied those 62 requirements to insured State implementing regulations of the CFPB purposes of RFA. There are 33 State or the Department of Labor. Where savings associations that are small nonmember banks. However, the FDIC 63 chose not to adopt this alternative provisions of part 390, subpart G had no entities for the purposes of RFA. If the because it believes the fair lending laws such counterparts, the FDIC concluded proposed rule were adopted by the and regulations that already apply to no reasonable basis exists for applying FDIC, §§ 390.140 and 390.141 would be these requirements to State savings insured State nonmember banks provide rescinded. As discussed previously, associations but not to insured State an appropriate and sufficient framework these sections include definitions and nonmember banks or that the to prohibit discrimination. cross-references to other parts of § 390, requirements are inconsistent with so their rescission has no independent The FDIC believes that this proposed current agency policy. significance for institutions or rule, which would remove and rescind In addition, the proposed rule would: borrowers, but rather is a technical part 390, subpart G, and make the (1) Amend part 338 to include State amendment associated with the FDIC’s existing nondiscrimination savings associations and their proposal to rescind subpart G of part regulations applicable to State savings subsidiaries within its scope; (2) define 390 in its entirety. associations, is less burdensome to State the new terms ‘‘FDIC-supervised As previously discussed, if the savings associations and the public than institution’’ and ‘‘State savings proposed rule were adopted by the FDIC the alternatives discussed above since it association;’’ and (3) make conforming § 390.142 would be rescinded. This would promote consistency among the technical edits throughout to update the section has substantial overlap with the regulatory requirements for all FDIC- regulation. These revisions would requirements of ECOA and Regulation B supervised institutions and improve the clarify that State savings associations, as and the FHA and HUD’s FHA public’s understanding and ease of well as insured State nonmember banks, regulations. Additionally, although reference. Additionally, the FDIC are subject to part 338 with the some aspects of § 390.142 have no believes that the proposed rule does not exception of § 338.9. counterpart in existing regulations for materially change the Therefore, the Proposed Rule does not State nonmember banks, as indicated nondiscrimination requirements to revise any existing, or create any new earlier the FDIC is uncertain if it has the which insured State nonmember banks information collection pursuant to the authority to amend those elements. and State savings associations are PRA. Consequently, no submission will Therefore, the FDIC believes that these required to adhere, relative to the be made to the OMB for review. aspects of the proposed rule are unlikely alternatives discussed. B. The Regulatory Flexibility Act to significantly affect small FDIC- IV. Request for Comments supervised institutions or borrowers. The Regulatory Flexibility Act (RFA) If the proposed rule were adopted, the The FDIC invites comments on all generally requires that, in connection FDIC would rescind § 390.143. As aspects of this proposed rulemaking, with a proposed rulemaking, an agency discussed previously, aspects of 390.143 and specifically requests comments on prepare and make available for public are either duplicative of prohibitions the following: comment an initial regulatory flexibility What impacts, positive or negative, analysis describing the impact of the 60 The SBA defines a small banking organization can you foresee in the FDIC’s proposal proposed rule on small entities.59 as having $600 million or less in assets, where an to rescind and remove part 390, subpart However, a regulatory flexibility organization’s ‘‘assets are determined by averaging analysis is not required if the agency the assets reported on its four quarterly financial G? statements for the preceding year.’’ See 13 CFR certifies that the proposed rule will not 121.201 (as amended by 84 FR 34261, effective V. Regulatory Analysis and Procedure have a significant economic impact on August 19, 2019). In its determination, the ‘‘SBA A. The Paperwork Reduction Act a substantial number of small entities. counts the receipts, employees, or other measure of The Small Business Administration size of the concern whose size is at issue and all of its domestic and foreign affiliates.’’ See 13 CFR In accordance with the requirements (SBA) has defined ‘‘small entities’’ to 121.103. Following these regulations, the FDIC uses of the Paperwork Reduction Act of 1995 include banking organizations with total a covered entity’s affiliated and acquired assets, (PRA),58 the FDIC may not conduct or assets of less than or equal to $600 averaged over the preceding four quarters, to sponsor, and the respondent is not million that are independently owned determine whether the covered entity is ‘‘small’’ for required to respond to, an information the purposes of RFA. and operated or owned by a holding 61 FDIC-supervised institutions are set forth in 12 collection unless it displays a currently company with less than or equal to $600 U.S.C. 1813(q)(2). 62 FDIC Call Report data, March 31, 2020. 58 44 U.S.C. 3501–3521. 59 5 U.S.C. 601 et seq. 63 Id.

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under the general fair lending laws or Spanish-speaking population. As procedures, the FDIC does not believe the authority of the FDIC to amend them indicated earlier, the FDIC is taking the that this aspect of the proposed rule is is uncertain. With regard to approach of not including non-binding likely to have a substantive effect on § 390.143(b), the proposed rule would recommendations in the proposed rule. covered institutions or their employees. reduce compliance requirements The FDIC does, however, make a As previously discussed, the associated with maintaining and Spanish-language poster available to the proposed rule would rescind § 390.150 distributing relevant paperwork. The institutions it supervises. Given the if adopted. This section contains FDIC believes that this is likely to pose substantive similarity of much of guidelines intended to serve as a a relatively small benefit to the 33 small §§ 390.146 to 338.4, the FDIC believes resource for State savings associations institutions to which it applies. Further, that rescinding it is unlikely to have when developing and implementing the FDIC believes that it is unlikely that substantial effects on small covered nondiscriminatory lending policies. the rescission of the requirement to institutions or borrowers. Small State savings associations, like establish, maintain, and distribute upon If the proposed rule were adopted, the other FDIC-supervised banks, remain request nondiscriminatory loan FDIC would rescind § 390.147. As subject to federal fair lending laws and underwriting standards for these 33 previously discussed, the FDIC believes regulations and the FDIC does not small State savings associations would that § 390.147 is duplicative now that believe removal of these guidelines will lead to an increase in discriminatory reporting reason for denial is required have any meaningful effect on these lending behavior because these rather than optional under Regulation C. institutions or their borrowers. institutions are still subject to the Further, since Regulation C provides a Finally, the proposed rule if adopted general fair lending laws. Therefore, the partial exemption from reporting reason would make some technical changes to FDIC does not believe that this aspect of for denial and certain other data points FDIC’s part 338 in order to make it the proposed rule, if adopted, is likely for financial institutions that meet applicable to State savings associations to have substantive effects on small specified conditions, but no such and provide for Equal Housing Lender FDIC-supervised institutions or exemption exists for State savings posters to state the accurate CRC borrowers. associations, the proposed rule would mailing address. As previously As discussed previously, if the establish parity with respect to the discussed, these proposed changes are proposed rule were adopted by the FDIC reporting requirements for HMDA LARs unlikely to pose significant effects for § 390.144 would be rescinded. Section for State savings associations and other small State savings associations because 390.144(a) is substantially similar to, FDIC-supervised institutions. The FDIC they are already subject to substantively and duplicative of, prohibitions under believes that this aspect of the proposed similar regulations. the general federal fair lending laws.64 rule is unlikely to substantively affect Rescinding part 390, subpart G also Additionally, the authority of the FDIC small FDIC-supervised institutions or will serve to streamline the FDIC’s rules to amend them is uncertain. The FDIC borrowers. and eliminate unnecessary, also believes that the requirement to As previously discussed, the inconsistent, and duplicative post an Equal Housing Lender poster, proposed rule would rescind § 390.148 regulations. If the proposal is adopted in discussed above in connection with 12 if it were adopted. The FDIC believes its final form, all small insured State CFR 338.4, serves a substantially similar that there is significant overlap between nonmember banks and State savings purpose as the requirement to ‘‘inform the requirements of § 390.148(a) through associations—will be subject to the each inquirer of his or her right to file (d) and various aspect of the EEOA. same anti-discrimination requirements. a written loan application’’ in 12 CFR Further, § 390.148(e) and (f) references The FDIC does not have data with 390.144(b). Therefore, the FDIC believes multiple employment laws, including which to estimate the costs that State that the rescission of § 390.144 is the EEOA, which if the rest of § 390.148 savings associations currently incur to unlikely to have any substantive effect were rescinded as proposed, would be comply with subpart G or how those on small FDIC-supervised institutions or unnecessary. Therefore, the FDIC costs will change if this proposal were borrowers. believes that this aspect of the proposed adopted in its current form. However, As discussed previously, if the rule is unlikely to substantively affect since this proposal would only affect 33 proposed rule were adopted by the FDIC small FDIC-supervised institutions or small entities, and since the differences § 390.145 would be rescinded. Section borrowers. between subpart G and existing 390.145 is substantially similar to As previously discussed, the regulation and law are modest, the FDIC § 338.4 and the proposed rule would proposed rule would rescind § 390.149 certifies that this proposal would not amend § 338.4 to cover State savings if it were adopted. The FDIC has have a significant economic effect on a associations in addition to insured State procedures for referring complaints to substantial number of small entities. nonmember banks. Therefore, the FDIC HUD regarding lending discrimination The FDIC invites comments on all believes that this aspect of the proposed by financial institutions and these aspects of the supporting information rule is unlikely to have any substantive procedures apply to complaints provided in this section, and in effect on small FDIC-supervised involving lending by State savings particular, whether the proposed rule institutions or borrowers. associations. However, there appears to would have any significant effects on As discussed previously, if the be no equivalent requirement to the small entities that the FDIC has not proposed rule were adopted by the provisions in § 390.149 regarding identified. FDIC, § 390.146 would be rescinded. referring complaints to EEOC regarding The requirements of § 390.146 are employment discrimination by FDIC- C. Plain Language substantially similar to the requirements supervised institutions. This aspect of Section 722 of the Gramm-Leach- applicable to insured State nonmember the proposed rule would thus create Bliley Act 65 requires each Federal banks under § 338.4. However, § 338.4, parity between State nonmember banks banking agency to use plain language in unlike § 390.146, does not include a and State savings associations with all of its proposed and final rules ‘‘recommendation’’ that a Spanish- respect to discriminatory complaints. published after January 1, 2000. The language version of the Equal Housing Given that FDIC-supervised institutions FDIC has sought to present the Proposed Lender poster be posted in offices are still subject to applicable elements serving areas with a substantial of the EEOA and FDIC regulations and 65 12 U.S.C. 4809.

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Rule in a simple and straightforward Federal banking agency must consider, The authority citation for part 338 is manner. The FDIC invites comments on consistent with principles of safety and revised to read as follows: whether the Proposed Rule is clearly soundness and the public interest, any Authority: 12 U.S.C. 1817, 1818, 1819, stated and effectively organized, and administrative burdens that such 1820(b), 2801 et seq.; 15 U.S.C. 1691 et seq.; how the FDIC might make it easier to regulations would place on depository 42 U.S.C. 3605, 3608; 12 CFR parts 1002, understand. For example: institutions, including small depository 1003; 24 CFR part 110. • Has the FDIC organized the material institutions, and customers of to suit your needs? If not, how could it depository institutions, as well as the Subpart A—Advertising present the rule more clearly? benefits of such regulations. In addition, § 338.1 Purpose. • Have we clearly stated the section 302(b) of RCDRIA requires new requirements of the rule? If not, how regulations and amendments to The purpose of this subpart A is to could the rule be more clearly stated? regulations that impose additional prohibit FDIC-supervised institutions • Does the rule contain technical reporting, disclosures, or other new from engaging in discriminatory jargon that is not clear? If so, which requirements on IDIs generally to take advertising with regard to residential language requires clarification? effect on the first day of a calendar real estate-related transactions. This • Would a different format (grouping quarter that begins on or after the date subpart A also requires FDIC-supervised and order of sections, use of headings, on which the regulations are published institutions to publicly display either paragraphing) make the regulation in final form.69 The FDIC invites the Equal Housing Lender poster set easier to understand? If so, what comments that further will inform its forth in § 338.4(b) of the FDIC’s changes would make the regulation consideration of RCDRIA. regulations or the Equal Housing easier to understand? Opportunity poster prescribed by part • What else could we do to make the List of Subjects 110 of the regulations of the United regulation easier to understand? 12 CFR Part 338 States Department of Housing and Urban Development (24 CFR part 110). D. The Economic Growth and Aged, Banks, Banking, Civil rights, This subpart A enforces section 805 of Regulatory Paperwork Reduction Act Credit, Fair housing, Individuals with title VIII of the Civil Rights Act of 1968, Under section 2222 of the Economic disabilities, Marital status 42 U.S.C. 3601–3619 (Fair Housing Act), Growth and Regulatory Paperwork discrimination, Mortgages, Religious as amended by the Fair Housing Reduction Act of 1996 (EGRPRA), the discrimination, Reporting and Amendments Act of 1988. FDIC is required to review all of its recordkeeping requirements, Savings regulations, at least once every 10 years, associations, Sex discrimination, Signs § 338.2 Definitions applicable to subpart A of this part. in order to identify any outdated or and symbols. For purposes of subpart A of this part: otherwise unnecessary regulations 12 CFR Part 390 imposed on insured institutions.66 The (a) Bank means an insured state FDIC, along with the other Federal Administrative practice and nonmember bank as defined in section banking agencies, submitted a Joint procedure, Advertising, Aged, Civil 3 of the Federal Deposit Insurance Act. Report to Congress on March 21, 2017 rights, Conflict of interests, Credit, (b) Dwelling means any building, (EGRPRA Report) discussing how the Crime, Equal employment opportunity, structure, or portion thereof which is review was conducted, what has been Fair housing, Government employees, occupied as, or designed or intended for done to date to address regulatory Individuals with disabilities, occupancy as, a residence by one or burden, and further measures the FDIC Nondiscrimination requirements, more families, and any vacant land will take to address issues that were Reporting and recordkeeping which is offered for sale or lease for the identified.67 As noted in the EGRPRA requirements, Savings associations. construction or location thereon of any such building, structure, or portion Report, the FDIC is continuing to Authority and Issuance streamline and clarify its regulations thereof. For the reasons stated in the through the OTS rule integration (c) FDIC-supervised institution means preamble, the FDIC proposes to amend process. By removing outdated or either a bank or a State savings 12 CFR parts 338 and 390 as follows: unnecessary regulations, such as part association. ■ 390, subpart G, this Proposed Rule 1. Revise part 338 to read as follows: (d) Handicap means, with respect to a person: complements other actions that the PART 338—FAIR HOUSING FDIC has taken, separately and with the (1) A physical or mental impairment other Federal banking agencies, to Subpart A—Advertising which substantially limits one or more further the EGRPRA mandate. of such person’s major life activities; Sec. (2) A record of having such an E. Riegle Community Development and § 338.1 Purpose. impairment; or Regulatory Improvement Act of 1994 § 338.2 Definitions applicable to subpart A of this part. (3) Being regarded as having such an Pursuant to section 302(a) of the § 338.3 Nondiscriminatory advertising. impairment, but such term does not Riegle Community Development and § 338.4 Fair housing poster. include current, illegal use of or addiction to a controlled substance (as Regulatory Improvement Act Subpart B—Recordkeeping (RCDRIA),68 in determining the effective defined in section 102 of the Controlled § 338.5 Purpose. Substances Act (21 U.S.C. 802)). date and administrative compliance § 338.6 Definitions applicable to this requirements for new regulations that (e) Familial status means one or more subpart B. individuals (who have not attained the impose additional reporting, disclosure, § 338.7 Recordkeeping requirements. or other requirements on insured § 338.8 Compilation of loan data in register age of 18 years) being domiciled with: depository institutions (IDIs), each format. (1) A parent or another person having § 338.9 Mortgage lending of a controlled legal custody of such individual or 66 Public Law 104–208, 110 Stat. 3009 (1996). entity. individuals; or 67 82 FR 15900 (March 31, 2017). (2) The designee of such parent or 68 12 U.S.C. 4802(a). 69 Id. other person having such custody, with

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the written permission of such parent or improving, repairing, or maintaining a Federal Deposit Insurance other person. dwelling or any loan secured by a Corporation, Consumer Response The protections afforded against dwelling shall conspicuously display Center, [Insert address for the Consumer discrimination on the basis of familial either the Equal Housing Lender poster Response Center stated on the FDIC’s status shall apply to any person who is set forth in paragraph (b) of this section website at www.fdic.gov] pregnant or is in the process of securing or the Equal Housing Opportunity (c) The Equal Housing Lender Poster legal custody of any individual who has poster prescribed by § 110.25(a) of the specified in this section was adopted not attained the age of 18 years. United States Department of Housing under § 110.25(b) of the United States (f) State savings association has the and Urban Development’s regulations Department of Housing and Urban same meaning as in section (3)(b)(3) of (24 CFR 110.25(a)), in a central location Development’s rules and regulations as the Federal Deposit Insurance Act, 12 within the FDIC-supervised institution an authorized substitution for the poster U.S.C. 1813(b)(3). where deposits are received or where required in § 110.25(a) of those rules such loans are made, in a manner and regulations. § 338.3 Nondiscriminatory advertising. clearly visible to the general public (a) Any FDIC-supervised institution entering the area, where the poster is Subpart B—Recordkeeping which directly or through third parties displayed. § 338.5 Purpose. engages in any form of advertising of (b) The Equal Housing Lender Poster The purpose of this subpart B is two- any loan for the purpose of purchasing, shall be at least 11 by 14 inches in size constructing, improving, repairing, or fold. First, this subpart B notifies all and have the following text: FDIC-supervised institutions of their maintaining a dwelling or any loan We Do Business in Accordance with secured by a dwelling shall prominently duty to collect and retain certain Federal Fair Lending Laws. information about a home loan indicate in such advertisement, in a UNDER THE FEDERAL FAIR manner appropriate to the advertising applicant’s personal characteristics in HOUSING ACT, IT IS ILLEGAL, ON accordance with Regulation B of the medium and format utilized, that the THE BASIS OF RACE, COLOR, FDIC-supervised institutions makes Bureau of Consumer Financial NATIONAL ORIGIN, RELIGION, SEX, Protection (12 CFR part 1002) in order such loans without regard to race, color, HANDICAP, OR FAMILIAL STATUS religion, national origin, sex, handicap, to monitor an institution’s compliance (HAVING CHILDREN UNDER THE AGE with the Equal Credit Opportunity Act or familial status. OF 18) TO: (1) With respect to written and visual • of 1974 (15 U.S.C. 1691 et seq.). Second, Deny a loan for the purpose of this subpart B notifies certain FDIC- advertisements, this requirement may be purchasing, constructing, improving, satisfied by including in the supervised institutions of their duty to repairing or maintaining a dwelling or maintain, update and report a register of advertisement a copy of the logotype to deny any loan secured by a dwelling; with the Equal Housing Lender legend home loan applications in accordance or with Regulation C of the Bureau of contained in the Equal Housing Lender • Discriminate in fixing the amount, Consumer Financial Protection (12 CFR poster prescribed in § 338.4(b) of the interest rate, duration, application part 1003), which implements the Home FDIC’s regulations or a copy of the procedures, or other terms or conditions Mortgage Disclosure Act (12 U.S.C. 2801 logotype with the Equal Housing of such a loan or in appraising property. et seq.). Opportunity legend contained in the IF YOU BELIEVE YOU HAVE BEEN Equal Housing Opportunity poster DISCRIMINATED AGAINST, YOU § 338.6 Definitions applicable to this prescribed in § 110.25(a) of the United SHOULD SEND A COMPLAINT TO: subpart B. States Department of Housing and Assistant Secretary for Fair Housing For purposes of this subpart B— Urban Development’s regulations (24 and Equal Opportunity, Department of (a) Bank means an insured State CFR 110.25(a)). Housing and Urban Development, nonmember bank as defined in section (2) With respect to oral Washington, DC 20410. 3 of the Federal Deposit Insurance Act. advertisements, this requirement may be For processing under the Federal Fair (b) Controlled entity means a satisfied by a statement, in the spoken Housing Act corporation, partnership, association, or text of the advertisement, that the FDIC- AND TO: other business entity with respect to supervised institution is an ‘‘Equal Federal Deposit Insurance which a bank possesses, directly or Housing Lender’’ or an ‘‘Equal Corporation, Consumer Response indirectly, the power to direct or cause Opportunity Lender.’’ Center, [Insert address for the Consumer the direction of management and (3) When an oral advertisement is Response Center stated on the FDIC’s policies, whether through the used in conjunction with a written or website at www.fdic.gov] ownership of voting securities, by visual advertisement, the use of either of For processing under the FDIC contract, or otherwise. the methods specified in paragraphs Regulations. (c) FDIC-supervised institution means (a)(1) and (2) of this section will satisfy UNDER THE EQUAL CREDIT either a bank or a State savings the requirements of this paragraph (a). OPPORTUNITY ACT, IT IS ILLEGAL association. (b) No advertisement shall contain TO DISCRIMINATE IN ANY CREDIT (d) State savings association has the any words, symbols, models or other TRANSACTION: same meaning as in section 3(b)(3) of forms of communication which express, • On the basis of race, color, national the Federal Deposit Insurance Act, 12 imply, or suggest a discriminatory origin, religion, sex, marital status, or U.S.C. 1813(b)(3). preference or policy of exclusion in age; violation of the provisions of the Fair • Because income is from public § 338.7 Recordkeeping requirements. Housing Act or the Equal Credit assistance; or All FDIC-supervised institutions that Opportunity Act. • Because a right has been exercised receive an application for credit under the Consumer Credit Protection primarily for the purchase or § 338.4 Fair housing poster. Act. refinancing of a dwelling occupied or to (a) Each FDIC-supervised institution IF YOU BELIEVE YOU HAVE BEEN be occupied by the applicant as a engaged in extending loans for the DISCRIMINATED AGAINST, YOU principal residence where the extension purpose of purchasing, constructing, SHOULD SEND A COMPLAINT TO: of credit will be secured by the dwelling

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shall request and retain the monitoring Dated at Washington, DC, on August 21, posted without change to https:// information required by Regulation B of 2020. www.fdic.gov/regulations/laws/federal/, the Bureau of Consumer Financial James P. Sheesley, including any personal information Protection (12 CFR part 1002). Acting Assistant Executive Secretary. provided. [FR Doc. 2020–18813 Filed 9–24–20; 8:45 am] § 338.8 Compilation of loan data in register FOR FURTHER INFORMATION CONTACT: format. BILLING CODE 6714–01–P Misty Mobley, Senior Review Examiner, FDIC-supervised institutions and Division of Risk Management and other lenders required to file a Home Supervision, (202) 898–3771, FEDERAL DEPOSIT INSURANCE [email protected]; Lauren Whitaker, Mortgage Disclosure Act loan CORPORATION application register (LAR) with the Senior Attorney, Legal Division, (202) Federal Deposit Insurance Corporation 12 CFR Chapter III 898–3872, [email protected]; or shall collect, record and report such Gregory Feder, Counsel, Legal Division, RIN 3064–ZA19 LAR in accordance with Regulation C of (202) 898–8724, [email protected], Federal Deposit Insurance Corporation, the Bureau of Consumer Financial Statement of Policy Regarding Minority Protection (12 CFR part 1003). 550 17th Street NW, Washington, DC Depository Institutions 20429. For the hearing impaired only, § 338.9 Mortgage lending of a controlled AGENCY: Federal Deposit Insurance TDD users may contact (202) 925–4618. entity. Corporation (FDIC). SUPPLEMENTARY INFORMATION: Any bank which refers any applicants ACTION: Proposed revisions to statement Table of Contents to a controlled entity and which of policy; request for comment. purchases any covered loan as defined I. Background in Regulation C of the Bureau of SUMMARY: The FDIC is proposing to II. Revisions to the Proposed Statement of Consumer Financial Protection (12 CFR revise its Statement of Policy Regarding Policy part 1003) originated by the controlled Minority Depository Institutions. III. Proposed Statement of Policy Regarding entity, as a condition to transacting any Minority Depository Institutions Section 308 of the Financial Institutions IV. Administrative Matters business with the controlled entity, Reform, Recovery and Enforcement Act shall require the controlled entity to of 1989 established several goals related I. Background enter into a written agreement with the to encouraging, assisting, and preserving Section 308 of the Financial bank. The written agreement shall minority depository institutions. The Institutions Reform, Recovery, and provide that the entity shall: FDIC has long recognized the unique Enforcement Act of 1989 (FIRREA) 1 (a) Comply with the requirements of role and importance of minority established several goals related to §§ 338.3, 338.4, and 338.7, and, if depository institutions and has minority depository institutions (MDIs): otherwise subject to Regulation C of the historically taken steps to preserve and (1) Preserving the number of MDIs; (2) Bureau of Consumer Financial encourage minority-owned and preserving the minority character in Protection (12 CFR part 1003), § 338.8; minority-led financial institutions. The cases of merger or acquisition; (3) (b) Open its books and records to revised Statement of Policy updates, providing technical assistance to examination by the Federal Deposit strengthens, and clarifies the agency’s prevent insolvency of institutions not Insurance Corporation; and policies and procedures related to now insolvent; (4) promoting and (c) Comply with all instructions and minority depository institutions. encouraging creation of new MDIs; and orders issued by the Federal Deposit DATES: Written comments must be (5) providing for training, technical Insurance Corporation with respect to received on or before November 24, assistance, and education programs. its home loan practices. 2020. On April 3, 1990, the Board of Directors of the Federal Deposit PART 390—REGULATIONS ADDRESSES: Interested parties are encouraged to submit written Insurance Corporation (FDIC Board and TRANSFERRED FROM THE OFFICE OF FDIC, respectively) adopted the Policy THRIFT SUPERVISION comments. Commenters are encouraged to use the title ‘‘Statement of Policy Statement on Encouragement and ■ 2. The authority citation for part 390 Regarding Minority Depository Preservation of Minority Ownership of is revised to read as follows: Institutions’’ to facilitate the Financial Institutions (1990 Policy organization and distribution of Statement). The framework for the 1990 Authority: 12 U.S.C. 1819. Policy Statement resulted from key Subpart F also issued under 5 U.S.C. 552; comments. You may submit comments, 559; 12 U.S.C. 2901 et seq. identified by RIN 3064–ZA19, by any of provisions contained in Section 308 of Subpart O also issued under 12 U.S.C. the following methods: FIRREA. The 1990 Policy Statement 1828. • Agency Website: https:// provided information to the public and Subpart Q also issued under 12 U.S.C. www.fdic.gov/regulations/laws/federal/. minority banking industry regarding the 1462; 1462a; 1463; 1464. Follow the instructions for submitting agency’s efforts in achieving the goals of Subpart W also issued under 12 U.S.C. comments on the FDIC’s website. Section 308. 1462a; 1463; 1464; 15 U.S.C. 78c; 78l; 78m; • During the 1990s, many MDIs 78n; 78p; 78w. Email: [email protected]. Include RIN 3064–ZA19 in the subject line of continued to underperform industry Subpart Y also issued under 12 U.S.C. averages for profitability and experience 1831o. the message. • Mail: Robert E. Feldman, Executive failure rates that were significantly Subpart G—[Removed and Reserved] Secretary, Attention: Comments/Legal higher than those of the industry ESS, Federal Deposit Insurance overall. In order to discuss the ■ 3. Remove and reserve subpart G, Corporation, 550 17th Street NW, challenges that MDIs faced, and identify consisting of §§ 390.140 through Washington, DC 20429. 390.150. 1 Public Law 101–73, title III, § 308, Aug. 9, 1989, Instructions: Comments submitted 103 Stat. 353, as amended by Public Law 111–203, Federal Deposit Insurance Corporation. must include ‘‘FDIC’’ and ‘‘RIN 3064– title III, § 367(4), July 21, 2010, 124 Stat. 1556, By order of the Board of Directors. ZA19.’’ Comments received will be codified at 12 U.S.C. 1463 note.

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best practices and possible ways the serves as a source of feedback with intended to present additional regulatory agencies could promote and regard to the FDIC’s efforts to fulfill its regulatory burden. Further, the preserve MDIs, the FDIC and other statutory goals to preserve and promote proposed Statement of Policy states that banking regulatory agencies—with MDIs; provides a platform for MDIs to examination teams will not view assistance from several minority bank promote collaboration, partnerships, requests for, or acceptance of, technical trade associations—invited officers from and best practices; and identifies ways assistance negatively when evaluating 156 MDIs to participate in a ‘‘Bankers to highlight the work of MDIs in their institution performance or assigning and Supervisors Regulatory Forum’’ communities. ratings. held in March of 2001. Approximately The FDIC published, also in 2019, an FDIC outreach. The proposed 70 bankers attended. MDI research study, which explores Statement of Policy was updated to The FDIC also formed an changes in MDIs, their role in the provide additional outreach Interdivisional Working Group to financial services industry, and their opportunities, including with the consider measures to modernize the impact on the communities they serve.3 Chairman’s office and the National policies and procedures related to MDIs. The study period covered 2001 to 2018 Director for Minority and Community The working group incorporated many and looked at the demographics, Development Banking. suggestions from the March 2001 forum structural change, geography, financial MDI Subcommittee. The proposed into a revised Policy Statement performance, and social impact of MDIs. Statement of Policy describes the newly Regarding Minority Depository Additionally, to discuss the established FDIC MDI Subcommittee of Institutions, issued by the FDIC, after challenges that MDIs face, provide the CBAC, which serves as source of notice and comment, in April of 2002 information on best practices, and feedback on FDIC strategies to fulfill (2002 Policy Statement).2 The FDIC collaborate on possible ways the statutory goals to preserve and promote issued the 2002 Policy Statement to regulatory agencies can promote and MDIs. The MDI Subcommittee may also provide additional information preserve MDIs, in June of 2019, the make recommendations or offer ideas to regarding the FDIC’s initiatives related FDIC hosted the Interagency MDI and the CBAC for consideration and to Section 308. The 2002 Policy Community Development Financial presentation to the FDIC. The MDI Statement provided a more structured Institution (CDFI) Bank Conference, Subcommittee provides a platform for framework that set forth initiatives of Focus on the Future: Prospering in a MDIs to promote collaboration, the FDIC to promote the preservation of, Changing Industry, in collaboration partnerships, and best practices. The as well as to provide technical with the Office of the Comptroller of MDI Subcommittee also identifies ways assistance, training, and educational Currency and the Board of Governors of to highlight the work of MDIs in their programs for, MDIs by working with the Federal Reserve System. More than communities. those institutions, their trade 80 MDI and CDFI bankers, representing 1. The FDIC requests comment on associations, and the other federal 61 banks, attended the two-day other methods to identify and provide financial regulatory agencies. conference.4 engagement opportunities that would be Over the years, the FDIC has All of these various efforts by the beneficial to MDIs. continued to modify and enhance its FDIC to enhance its MDI Program have Definitions. The proposed Statement MDI Program to better carry out the informed the proposed revisions to the of Policy adds definitions for terms used FDIC’s efforts to meet the goals in Statement of Policy. The FDIC has in the MDI Program: Technical Section 308 of FIRREA. The revisions in received suggestions from bankers at assistance, training and education, and the proposed Statement of Policy are outreach and trade association meetings outreach. Technical assistance is intended, in part, to strengthen and as well as feedback from the June 2019 defined as individual assistance that a improve the various aspects of the MDI conference. The MDI Subcommittee has regulator will provide to a MDI in Program and how each component of also provided feedback to the CBAC for response to an institution’s request for the MDI Program is carried out by consideration and recommendation to assistance in addressing specific areas of various responsible entities that are part the FDIC. Many of these suggestions and concern. The proposed Statement of of the MDI Program. The proposed feedback have been incorporated into Policy also notes that technical revisions to the 2002 Policy Statement the revised Statement of Policy. The assistance is a tool to provide on-going reflected in the proposed Statement of following section summarizes the support to institutions in an effort to Policy describe the FDIC’s enduring and significant changes from the 2002 Policy facilitate timely implementation of strengthened commitment to, and Statement. recommendations, full understanding of engagement with, MDIs in furtherance regulatory requirements, and in some of its goal of preserving and promoting II. Revisions to the Policy Statement instances, the viability of the institution. MDIs. The FDIC is proposing to revise its Training and education programs In 2019, the FDIC established a new MDI Policy Statement in the following consist of instruction designed to impart MDI Subcommittee of the Advisory areas: proficiency or skills related to a Committee on Community Banking Technical assistance and other particular job, process, or regulatory (CBAC). The MDI Subcommittee held its engagement. The proposed Statement of policy. This training and education can inaugural meeting in December 2019. Policy clarifies that technical assistance be provided in person, through There are nine executives serving as is not a supervisory activity and is not webinars or conference calls, or in a members of the MDI Subcommittee, conference setting. Outreach consists of representing African American, Native 3 See FDIC MDI research study, published June FDIC representatives meeting with American, Hispanic American, and 2019, Minority Depository Institutions: Structure, financial institutions with a primary Performance, and Social Impact, https:// Asian American MDIs across the www.fdic.gov/regulations/resources/minority/2019- focus of building relationships and open country. The MDI Subcommittee mdi-study/full.pdf. communication and providing provides recommendations regarding 4 See Chairman Jelena McWilliams Keynote information and resources. Outreach is the FDIC’s MDI Program to the CBAC for Remarks, MDI and Community Development generally offered by the FDIC and can Financial Institution bank conference, Focus on the consideration. The MDI Subcommittee Future: Prospering in a Changing Industry, https:// include meetings between financial www.youtube.com/watch?v=o0H6Ko00qTk& institution management and senior FDIC 2 67 FR 18618 (Apr. 16, 2002). feature=youtu.be. management.

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2. The FDIC invites comment on the III. Proposed Statement of Policy minority and the community that the definitions assigned to technical Regarding Minority Depository institution serves is predominantly assistance, training and education, and Institutions minority. outreach. The text of the proposed Statement of Identification of Minority Depository Reporting. The proposed Statement of Policy follows: Institutions Policy updates the reporting The FDIC has long recognized the To ensure that all minority depository requirements of the FDIC’s MDI importance of minority depository institutions are able to participate in the Program, including the Annual Report institutions in the financial system and MDI Program, the FDIC will maintain a to Congress on the Preservation and their unique role in promoting the list of Federally insured minority Promotion of Minority Depository economic viability of minority and depository institutions. Institutions that Institutions pursuant to Section 367 of under-served communities. The FDIC are not already identified as minority the Dodd-Frank Wall Street Reform and historically has implemented programs depository institutions can request to be Consumer Protection Act of 2010 and to preserve and promote these financial designated as such by certifying that Section 308 of FIRREA. The Section 367 institutions. This Statement of Policy they meet the above definition. For requirements were enacted since the describes the framework the FDIC has institutions supervised directly by the Statement of Policy was last updated in put into place and the initiatives the FDIC, examiners will review the 2002. FDIC will undertake to fulfill its appropriateness of their inclusion on statutory goals with respect to minority 3. The FDIC invites the public to the list during the examination process. depository institutions (MDI Program). In addition, case managers in regional comment on the types of information offices will note changes to the list that would be helpful and beneficial to Statutory Framework while processing deposit insurance include in annual reports or the MDI In August 1989, Congress enacted the applications, merger applications, Program website regarding the MDI Financial Institutions Reform, Recovery, change of control notices, or failures of Program. and Enforcement Act of 1989 (FIRREA). minority depository institutions. The Measurement of effectiveness. The Section 308 of FIRREA established the FDIC will work closely with the other proposed Statement of Policy also following goals: Federal banking regulators to ensure • establishes new requirements to Preserve the number of minority that institutions not directly supervised measure the effectiveness of the MDI depository institutions; by the FDIC are accurately captured on • Program. The National Director and the Preserve the minority character in the list. In addition, the FDIC will regional office staff will routinely solicit cases of merger or acquisition; periodically provide the list to relevant • feedback from MDIs to assess the Provide technical assistance to trade associations and seek input effectiveness of the FDIC’s technical prevent insolvency of institutions not regarding the accuracy of the list. now insolvent; Inclusion in the FDIC’s MDI Program is assistance, training and education, and • outreach efforts and the MDI Program in Promote and encourage creation of voluntary. Any minority depository general. The FDIC will track instances of new minority depository institutions; institution not wishing to participate in and the MDI Program will be removed from technical assistance, training and • education, and outreach and solicit Provide for training, technical the official list upon request. assistance, and educational programs. feedback on the effectiveness of these Organizational Structure activities by administering periodic Definitions The FDIC has designated a national surveys and holding discussions with Section 308 of FIRREA defines director for the FDIC’s MDI Program in bank management. ‘‘minority depository institution’’ as any the Washington Office and a regional 4. The FDIC invites the public to Federally insured depository institution coordinator in each Regional Office. The comment on other methods to identify where 51 percent or more of the voting national director will consult with and provide technical assistance, stock is owned by one or more ‘‘socially officials from the following FDIC outreach, and training and education and economically disadvantaged Divisions to ensure appropriate resources that would be beneficial to individuals.’’ ‘‘Minority,’’ as defined by personnel are involved and resources MDIs. Section 308 of FIRREA, means any are made available with regard to MDI Examinations. The proposed ‘‘Black American, Native American, Program initiatives: Division of Risk Statement of Policy adds a description Hispanic American, or Asian Management Supervision, Division of of how the FDIC applies rating systems American.’’ Therefore, for the purposes Depositor and Consumer Protection, at examinations of MDIs. Specifically, of this Statement of Policy, ‘‘minority Division of Resolutions and the proposed Statement of Policy depository institution’’ is defined as any Receiverships, Division of Insurance describes how the Uniform Financial Federally insured depository institution and Research, Legal Division, and the where 51 percent or more of the voting Rating System (UFIRS) and the Uniform Office of Minority and Women stock is owned by minority individuals. Interagency Consumer Compliance Inclusion. The national director will This includes institutions collectively Rating System (UICCR) are designed to also consult with other organizations owned by a group of minority reflect an assessment of the individual within the FDIC as appropriate. individuals, such as a Native American As the primary Federal regulator for institution, including its size and Tribe. Ownership must be by U.S. State nonmember banks and State sophistication, the nature and citizens or permanent legal U.S. savings associations, the FDIC will focus complexity of its business activities, and residents to be counted in determining its efforts on minority depository its risk profile rather than a comparison minority ownership. In addition to the institutions with those charters. to peer institutions institutions that meet the ownership However, the national director will meet 5. The FDIC invites comment on test, for the purposes of this Statement periodically with the other Federal whether this approach to incorporate of Policy, institutions will be considered banking regulators to discuss each specific considerations when examining minority depository institutions if a agency’s outreach efforts, to share ideas, MDIs is clear and understandable. majority of the Board of Directors is and to identify opportunities where the

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agencies can work together to assist recommendations, risk management examination teams will not view minority depository institutions. procedures, and compliance requests for, or acceptance of, technical Representatives of other divisions and management procedures. In providing assistance negatively when evaluating offices may participate in these technical assistance, FDIC staff will not institution performance or assigning meetings. actually perform tasks expected of an ratings. institution’s management or employees. Engagement With Minority Depository Outreach For example, FDIC staff may explain Institutions Call Report instructions as they relate to Outreach, as defined by the FDIC’s The FDIC’s MDI Program will provide specific accounts, but will not assist in MDI Program, consists of FDIC for continual engagement with minority preparing an institution’s Call Report. representatives meeting with financial depository institutions through ongoing FDIC staff may provide information on institutions with a primary focus of interaction with the Washington, community reinvestment opportunities, building relationships and open Regional, and Field Office staff. This but will not recommend a specific communication and providing interaction includes providing technical transaction. information and resources. Outreach is assistance to share information and An institution can contact its field generally offered by the FDIC and can expertise on supervisory topics, office representatives, case manager, or include meetings between financial outreach initiatives to provide review examiner to request technical institution management and senior FDIC opportunities for open dialogue with assistance. In addition, the regional management. senior FDIC staff, and training coordinators and the institution’s The FDIC maintains an MDI initiatives to offer opportunities to gain assigned case manager and review Subcommittee of its Advisory additional knowledge about specific examiner are knowledgeable about Committee on Community Banking regulatory requirements. minority bank issues and are available (CBAC) comprised of executives of Further, trade associations affiliated to answer questions or to direct minority depository institutions. The with minority depository institutions inquiries to the appropriate FDIC office MDI Subcommittee serves as a source of serve as a significant resource in or staff member with expertise on the feedback on FDIC strategies to fulfill identifying specific interests or concerns subject for response. Case managers can statutory goals to preserve and promote for those institutions. The national explain the application process and the minority depository institutions. The director will regularly contact minority type of analysis and information MDI Subcommittee may also make depository institution trade associations required for different applications. Field recommendations or offer ideas to the to seek feedback on the FDIC’s efforts office representatives also serve as a CBAC for consideration and under the MDI Program, discuss significant resource to minority presentation to the FDIC. The MDI possible training initiatives, and explore depository institutions by readily Subcommittee provides a platform for options for promoting and preserving answering examination related minority depository institutions to minority depository institutions. The questions and explaining regulatory promote collaboration, partnerships, national director and the regional requirements. Other staff members and best practices. The Subcommittee coordinators also will solicit within the FDIC with expertise in will also identify ways to highlight the information from trade associations and various regulatory topics will also be work of minority depository institutions other organizations about groups that available to share knowledge to assist in their communities. may be interested in establishing new minority depository institutions in Executives and staff in the FDIC’s minority depository institutions. FDIC complying with regulations or regional offices will communicate representatives will be available to implementing supervisory regularly with each minority depository address such groups to discuss the recommendations. institution to outline the FDIC’s efforts application process, the requirements of During examinations, the FDIC to promote and preserve minority becoming FDIC insured, and the various expects examiners to fully explain depository institutions; will offer programs supporting minority supervisory recommendations and offer annually to have a member of regional depository institutions. The regional to help management understand management meet with the institution’s coordinators will contact all new satisfactory methods to address such board of directors to discuss issues of minority state nonmember banks and recommendations. At the conclusion of interest, including through roundtable state savings associations identified each examination of a minority discussions and training sessions; and through insurance applications, merger depository institution directly will seek input regarding any training or applications, or change in control supervised by the FDIC, the FDIC will other technical assistance the institution notices to familiarize the institutions be available to return to the institution may desire. with the resources available through the to provide technical assistance by The FDIC will explore opportunities MDI Program. reviewing areas of concern or topics of to facilitate collaboration and partnering interest to the institution. The purpose initiatives among minority depository Technical Assistance of return visits is to assist management institutions or between minority Technical assistance, as defined by in understanding and implementing depository institutions and non- the FDIC’s MDI Program, is individual examination recommendations, not to minority depository institutions. The assistance that a regulator will provide identify new problems. FDIC recognizes that by facilitating to a minority depository institution in Technical assistance is a tool to these collaborative relationships, response to an institution’s request for provide on-going support to institutions institutions can have opportunities to assistance in understanding supervisory in an effort to ensure timely better meet the needs of their topics or findings. At any time, the FDIC implementation of recommendations, communities. will share information and expertise full understanding of regulatory with bank management on various requirements, and in some instances, Training and Educational Programs topics including, but not limited to, the viability of the institution. Technical Training and educational programs, as understanding bank regulations, FDIC assistance is not a supervisory activity defined by the FDIC’s MDI program, policies, examination procedures, and is not intended to present consist of instruction designed to impart accounting practices, supervisory additional regulatory burden. Further, proficiency or skills related to a

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particular job, process, or regulatory institution’s financial condition and risk provide for adequate capital, the quality policy. The FDIC will work with other management practices. and sources of earnings, and the banking regulatory agencies and trade Under the UFIRS and UICCR, each adequacy of budgeting systems. associations representing minority financial institution is assigned a Examiners are instructed to consider depository institutions to periodically composite rating based on an evaluation all relevant factors when assigning a assess the need for, and provide for, of specific components, which are also component rating. The rating systems training and educational opportunities. rated. For UFIRS, these component are designed to reflect an assessment of The FDIC will partner with other ratings reflect an institution’s capital the individual institution, including its Federal banking agencies and trade adequacy, asset quality, management size and sophistication, the nature and associations to offer training programs. capabilities, earnings sufficiency, complexity of its business activities, and This training and education can be liquidity position, and sensitivity to risk profile. market risk (commonly referred to as the provided in person, through webinars or Failing Institutions conference calls, or in a conference CAMELS ratings). Likewise, the UICCR setting. is organized under broad components The FDIC will attempt to preserve the that assess the institution’s board and minority character of failing institutions Reporting management oversight, compliance during the resolution process. In the The regional coordinators will report program, and violations of law and event of a potential failure of a minority regional office activities related to the consumer harm. The uniform rating depository institution, the Division of MDI Program to the national director systems and evaluation and rating Resolutions and Receiverships will quarterly. The national director will criteria are specific to the examination contact all minority depository develop a comprehensive report on all types performed. Further, the institutions nationwide that qualify to MDI Program activities and submit the assignment of the rating is based solely bid on failing institutions. The Division report quarterly to the Chairman. The on the subject institution’s individual of Resolutions and Receiverships will FDIC’s efforts to preserve and promote performance under the specific solicit qualified minority depository minority depository institutions will components. institutions’ interest in the failing also be highlighted in the FDIC’s Management practices, particularly as institution, discuss the bidding process, Annual Report and the Annual Report they relate to risk management, vary and offer to provide technical assistance to Congress on the Preservation and considerably among financial regarding completion of the bid forms. Promotion of Minority Depository institutions depending on size and In addition, the Division of Resolutions Institutions pursuant to Section 367 of sophistication, the nature and and Receiverships, with assistance from the Dodd-Frank Wall Street Reform and complexity of business activities, and the Office of Minority and Women Consumer Protection Act of 2010 and risk profile. Each institution must Inclusion, will maintain a list of Section 308 of FIRREA. properly manage risks and have minority individuals and nonbank appropriate policies, processes, or Measuring Program Effectiveness entities that have expressed an interest practices in place that management in acquiring failing minority depository The national director and the regional follows and uses. Activities undertaken institutions and have been pre-approved office staff will routinely solicit in a less complex institution engaging in by the Division of Risk Management feedback from minority depository less sophisticated risk-taking activities Supervision and the chartering institutions to assess the effectiveness of may only need basic management and authority for access to the FDIC’s virtual the FDIC’s technical assistance, control systems compared to the data room for online due diligence. outreach, and training/education efforts detailed and formalized systems and and the MDI Program in general. The controls used for the broader and more Internet Site FDIC will track instances of technical complex range of activities undertaken The FDIC will maintain a website to assistance, outreach, and training and at a larger and more complex promote the MDI Program. Among other education and solicit feedback on the institution. things, the website will describe the effectiveness of these activities by Peer comparison data are not tools and resources available under the administering periodic surveys and included in the rating systems. The program. The website will include the holding discussions with bank principal reason is to avoid over name, phone number, and email address management. reliance on statistical comparisons to of the national director, each regional justify the component rating being Examinations coordinator, and additional staff. The assigned. This is very important when website will also contain links to the list All insured institutions must be evaluating minority depository of minority depository institutions, operated in a safe and sound manner, in institutions due to their unique pertinent trade associations, and other accordance with FDIC’s regulations. characteristics. For example, many Federal agency programs. The FDIC will Likewise, all examinations must be minority depository institutions were also explore the feasibility and conducted within the parameters of established to serve an otherwise under- usefulness of posting other items to the FDIC exam policies and should served market. High profitability may page, such as statistical information and consistently measure the risk an not be as essential to the organizers and comparative data for minority institution poses to the FDIC’s deposit shareholders of the institution. Instead, depository institutions. Visitors will insurance fund. Notwithstanding, and community development, improving have the opportunity to provide consistent with the Uniform Financial consumer services, and promoting feedback regarding the FDIC’s program Institutions Rating System (UFIRS) and banking services to the unbanked or and the usefulness of the website. the Uniform Interagency Consumer under-banked segment of its community Compliance Rating System (UICCR), may drive many of the organization’s IV. Administrative Law Matters examiners are expected to recognize the decisions. The UFIRS allows for The Paperwork Reduction Act of 1995 distinctive characteristics and consideration of the characteristics by (PRA) 5 states that no agency may differences in core objectives of each considering not only the level of an conduct or sponsor, nor is the financial institution and to consider institution’s earnings, but also the trend those unique factors when evaluating an and stability of earnings, the ability to 5 44 U.S.C. 3501, et seq.

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respondent required to respond to, an supported by monitoring data from Table of Contents information collection unless it displays within or near to the nonattainment I. What action is the EPA proposing? a currently valid Office of Management areas, emissions data and an evaluation II. What is the background of this action? and Budget (OMB) control number. of previous modeling. A. Nonattainment Designation The proposed Statement of Policy B. Clean Data Policy DATES: Comments must be received on Regarding Minority Depository C. How does a nonattainment area achieve or before October 26, 2020. Institutions does not create any new or ‘‘clean data’’ for the 2010 1-hour primary revise any existing information ADDRESSES: Submit your comments, SO2 NAAQS? collections pursuant to the PRA. Rather, identified by Docket ID No. EPA–R06– D. What information did Texas provide that demonstrates that the area attained any reporting, recordkeeping, or OAR–2020–0434, to https:// the NAAQS? disclosure activities mentioned in the www.regulations.gov. Follow the online i. Primary Source Shutdowns proposed Statement of Policy Regarding instructions for submitting comments. ii. Monitoring Data Minority Depository Institutions are Once submitted, comments cannot be E. What is the EPA’s rationale for usual and customary and should occur edited or removed from Regulations.gov. proposing this action? in the normal course of business as The EPA may publish any comment III. What is the EPA’s analysis? defined in the PRA.6 Consequently, no received to its public docket. Do not A. Modeling Data and Supplemental 2016– submit electronically any information 2019 Emissions Information Evaluation submissions will be made to the OMB B. Ambient Air Quality Monitoring Data for review. you consider to be Confidential Evaluation 6. The agencies request comment on Business Information (CBI) or other C. EPA’s Proposed Clean Data its conclusion that this aspect of the information whose disclosure is Determination proposed Statement of Policy Regarding restricted by statute. Multimedia IV. What would be the effects of this action, Minority Depository Institutions does submissions (audio, video, etc.) must be if promulgated? not create any new or revise any existing accompanied by a written comment. V. Statutory and Executive Order Reviews information collections. The written comment is considered I. What action is the EPA proposing? Federal Deposit Insurance Corporation. the official comment and should The EPA is proposing to determine By order of the Board of Directors. include discussion of all points you that portions of Anderson and Freestone Dated at Washington, DC, on August 21, wish to make. The EPA will generally Counties and Titus County (hereby 2020. not consider comments or comment referred to as ‘‘the nonattainment James P. Sheesley, contents located outside of the primary areas’’), in Texas, have attained the 2010 submission (i.e., on the web, cloud, or 1 Acting Assistant Executive Secretary. 1-hour primary SO2 NAAQS. This other file sharing system). For proposed determination of attainment is [FR Doc. 2020–18816 Filed 9–24–20; 8:45 am] additional submission methods, please BILLING CODE 6714–01–P in response to a June 30, 2020 request contact Robert Imhoff, (214) 665–7262, from the state 2 that the EPA consider [email protected]. For, the full information—including quality assured EPA public comment policy, and certified ambient air monitoring ENVIRONMENTAL PROTECTION information about CBI or multimedia data 3 from the 2017–2019 monitoring AGENCY submissions, and general guidance on period and the permanent and making effective comments, please visit 40 CFR Part 52 enforceable shutdown of the primary https://www.epa.gov/dockets/ sources of SO2 emissions in these areas, [EPA–R06–OAR–2020–0434; FRL–10014– commenting-epa-dockets. Big Brown Power Plant (Big Brown) and 56–Region 6] Docket: The index to the docket for Monticello Steam Electric Station (Monticello), that were the key Approval of Texas Air Quality Plans; this action is available electronically at contributors to the violations of the Clean Data Determination for the 2010 www.regulations.gov. While all standard—which both support our 1-Hour Primary Sulfur Dioxide National documents in the docket are listed in proposed finding that the nonattainment Ambient Air Quality Standard; the index, some information may not be areas have attained the 2010 1-hour Anderson and Freestone Counties and publicly available due to docket file size primary SO NAAQS. The primary basis Titus County Nonattainment Areas restrictions or content (e.g., CBI). 2 for the state’s request is that the primary FOR FURTHER INFORMATION CONTACT: AGENCY: Environmental Protection sources of SO2 emissions in these Robert Imhoff, EPA Region 6 Office, SO2 nonattainment areas have permanently Agency (EPA). and Regional Haze Branch, (214) 665– ACTION: Proposed rule. shut down. These sources were located 7262, or by email at Imhoff.Robert@ in rural areas with few other sources. epa.gov. Out of an abundance of caution SUMMARY: The Environmental Protection EPA has reviewed the Texas for members of the public and our staff, Agency (EPA) is proposing to determine Commission on Environmental Quality the EPA Region 6 office will be closed that the Anderson and Freestone to the public to reduce the risk of Counties and the Titus County 1 In accordance with Appendix T to 40 CFR part transmitting COVID–19. We encourage nonattainment areas, in Texas, have 50, the 1-hour primary SO2 NAAQS is met at an the public to submit comments via ambient air quality monitoring site when the valid attained the 2010 1-hour primary Sulfur https://www.regulations.gov, as there 1-hour primary standard design value is less than Dioxide (SO ) National Ambient Air or equal to 75 parts per billion (ppb). 40 CFR 2 will be a delay in processing mail and Quality Standard (NAAQS) per the 50.17(b). no courier or hand deliveries will be 2 EPA’s Clean Data Policy. The primary June 30, 2020 Letter from Toby Baker, Executive accepted. Please call or email the Director of TCEQ to Ken McQueen, Regional sources of SO emissions in these 2 contact listed above if you need Administrator of EPA Region 6, subject: ‘‘Sulfur counties have permanently shut down Dioxide Clean Data Determination Request for alternative access to material indexed and as a result air quality in these areas Portions of Freestone, Anderson, and Titus but not provided in the docket. is now meeting the NAAQS for SO . Counties in Texas’’ included in the docket for this 2 action. SUPPLEMENTARY INFORMATION: This proposed determination is 3 Monitoring data must be reported, quality Throughout this document ‘‘we,’’ ‘‘us,’’ assured, and certified in accordance with the 6 5 CFR 1320.3(b)(2). and ‘‘our’’ refer to the EPA. requirements set forth in 40 CFR part 58.

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(TCEQ) submission, available into a March 2, 2015, Consent Decree 4 and stated its position that ambient air monitoring data and past modeling to which required the EPA to complete the monitoring data were the appropriate base our proposed finding that air remaining area designations by three information for use in attainment and quality in these nonattainment areas is specific deadlines known as Rounds 2, nonattainment designations. now meeting the NAAQS for SO2. The 3, and 4 according to the court-ordered On June 30, 2016, the EPA signed the EPA has made the monitoring data, schedule. To meet the Round 2 court- final action designating 61 additional permit information submitted by the ordered deadline for the SO2 areas for Round 2 (81 FR 45039, July 12, state, and additional information designations, the court order required 2016). On November 29, 2016, EPA developed by EPA to support this the EPA to designate areas containing supplemented its Round 2 designations proposed action available in the docket sources meeting certain criteria no later by signing a supplemental final action to this rulemaking through than July 2, 2016.5 that included nonattainment www.regulations.gov (please contact the For SO2 NAAQS designations, air designations for portions of Freestone person identified in the FOR FURTHER agencies have the flexibility to and Anderson Counties and Titus INFORMATION CONTACT section of this characterize air quality using either County (‘‘Round 2 Supplement’’) (81 FR preamble for more information). appropriately sited ambient air quality 89870, December 13, 2016). This action monitors or using modeling of actual or established an attainment date five years II. What is the background of this allowable source emissions. The EPA after the effective date for the areas action? issued the non-binding draft Monitoring designated as nonattainment for the A. Nonattainment Designation Technical Assistance Document (TAD) 2010 SO2 NAAQS (i.e., by January 12, and Modeling TAD 6 recommending 2022). The state is required to submit a On June 22, 2010 (75 FR 35520), the how air agencies should conduct such State Implementation Plan (SIP) for the EPA published a health-based 1-hour monitoring or modeling. The 1-hour nonattainment areas to the EPA that primary SO2 NAAQS at 75 parts per primary SO2 standard is violated at an meets the requirements of CAA sections billion (ppb). Following promulgation of ambient air quality monitoring site (or 110 and 172(c), and 191–192 within 18 a new or revised NAAQS, section 107(d) in the case of dispersion modeling, at an months following the January 12, 2017 of the Clean Air Act (CAA) requires the ambient air quality receptor location) effective date of designation (i.e., by July EPA to designate any area that does not when the 3-year average of the annual 12, 2018). The State of Texas has not yet meet (or that contributes to ambient air 99th percentile of the daily maximum 1- submitted the Nonattainment Area Plan quality in a nearby area that does not hour average concentrations exceeds 75 for the 2010 1-Hour Sulfur Dioxide meet) the NAAQS as nonattainment. ppb, as determined in accordance with National Ambient Air Quality Standard The process for designating areas appendix T of 40 CFR part 50. To for these areas. Therefore, on August 10, following promulgation of a new or determine model-based violations, the 2020, EPA published a Finding of revised NAAQS is contained in CAA EPA believes that dispersion modeling Failure to Submit (FFS) for Texas for section 107(d) (42 U.S.C. 7407(d)). After is the appropriate tool, as discussed in these two nonattainment areas and one promulgation of a new or revised the Modeling TAD. The TAD provides additional area. As a consequence of the NAAQS, each governor or tribal leader recommendations on how an air agency FFS, Texas must submit a complete SIP has an opportunity to recommend air might appropriately and sufficiently for each area addressing the outstanding quality designations, including the model ambient air in proximity to an SIP requirements by February 10, 2022 appropriate boundaries for SO2 emission source to establish air (18 months from the effective date of the nonattainment areas, to the EPA (42 quality data for comparison to the 2010 finding) or be subject to mandatory U.S.C. 7407(d)(1)(A)). The EPA primary SO2 NAAQS for the purposes of sanctions under the Clean Air Act. considers these recommendations when designations. Additionally, Texas must submit and fulfilling its duty to promulgate the In September 2015, Texas submitted obtain EPA approval of its SIP by formal area designations and boundaries updated recommendations for areas of August 10, 2022 or EPA must for the new or revised NAAQS. By no the state where there were no monitors, promulgate a Federal Implementation later than 120 days prior to including the above counties.7 Texas Plan addressing any outstanding SIP promulgating designations, the EPA is recommended ‘‘unclassifiable/ requirements. As discussed in more required to notify states, territories, and attainment’’ designations for those areas detail below, if this proposed Clean Data tribes, as appropriate, of any intended Determination is finalized, certain modifications to an area designation or 4 Mar. 02, 2015 Consent Decree; Sierra Club and nonattainment area SIP requirements for Natural Resources Defense Council v. EPA, Case boundary recommendation that the EPA these two nonattainment areas are No. 3:13–cv–3953–SI (N.D. Cal.). suspended as long as air quality deems necessary (42 U.S.C. 5 Areas with three years of monitoring data continues to meet the standard. 7407(d)(1)(B)). showing violations of the NAAQS and areas containing stationary sources that had not been For the SO2 designations in the two After invoking a 1-year extension of announced for retirement and that according to the Texas areas addressed in this action, the the deadlines to designate areas, as EPA’s Air Markets Database emitted in 2012 either EPA considered the data available at the provided for in section 107(d)(1)(B) of (i) more than 16,000 tons of SO2 or (ii) more than time of designations, including 2,600 tons of SO with an annual average emission the Act, the EPA published an initial 2 modeling submitted by Vistra Energy rate of 0.45 pounds of SO2 per one million British round of SO2 designations for certain thermal units (lbs SO2/mmBTU) or higher. Mar. 02, and the Sierra Club in March 2016. EPA areas of the country on August 5, 2013 2015 Consent Decree; Sierra Club and Natural found that the technical analysis (referred to as ‘‘Round 1’’) (78 FR Resources Defense Council, et al. v. EPA, Case No. provided by the Sierra Club 47191). Following the Round 1 3:13–cv–03953–SI (N.D. Cal.). demonstrated that in the Freestone and designations, several groups filed 6 Technical Assistance Documents for Implementing the 2010 Sulfur Dioxide Standard, Anderson Counties area, Big Brown lawsuits against the EPA alleging the August 2016 and February 2016, https:// Steam Electric Station (‘‘Big Brown’’) agency had failed to perform a www.epa.gov/so2-pollution/technical-assistance- and in the Titus County area, Monticello nondiscretionary duty under the CAA to documents-implementing-2010-sulfur-dioxide- Steam Electric Station (‘‘Monticello’’) designate all portions of the country by standard. 7 https://www.regulations.gov/ plants were the primary sources of SO2 the June 2, 2013, statutory deadline. As contentStreamer?documentId=EPA-HQ-OAR-2014- emissions and the key contributors to a result of the lawsuits, the EPA entered 0464-0080&contentType=pdf. the modeled 2010 SO2 NAAQS

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violations. A nonattainment area requirements of the CAA that are C. How does a nonattainment area encompasses the area shown to be in specifically designed to help an area achieve ‘‘clean data’’ for the 2010 1- violation of the standard and the achieve attainment, such as attainment hour primary SO2 NAAQS? principal source or sources that demonstrations and implementation of Generally, the EPA relies on ambient contributes to the violation. The reasonably available control measures air quality monitoring data alone in analysis of the maximum impacts (including reasonably available control order to make determinations of around Big Brown and around technology), reasonable further progress attainment for areas designated Monticello showed that Big Brown and (RFP) demonstrations, and contingency nonattainment for a particular NAAQS. Monticello were responsible for almost measures, to be suspended as long as air However, given the Agency’s historical 100% of the impacts on the maximum quality continues to meet the standard approach toward SO2, the source- modeled concentrations in each area, because requirements designed to specific nature of SO2 emissions, and and therefore only these sources were achieve or plan for attainment are no the localized effect of those emissions included within the boundaries of the the EPA has emphasized the use of nonattainment areas. A complete longer necessary when an area is additional sources of air quality description of the State already meeting the standard. The information to determine attainment of recommendations and data considered nonattainment new source review and the SO NAAQS. In the preamble to the in proposing and finalizing those emissions inventory requirements are 2 2010 1-hour primary SO NAAQS designations are included in the Texas not suspended under a Clean Data 2 rulemaking, the EPA stated that it did Intended TSD 8 and Texas Final TSD 9 Determination and must still be not expect to rely solely on monitored from Round 2 that are also included in addressed for the nonattainment areas. air quality data in all areas when the docket to this proposed rulemaking. In the memorandum of April 23, determining if an area has attained the B. Clean Data Policy 2014, from Steve Page, Director, EPA 2010 1-hour primary SO2 NAAQS (75 Office of Air Quality Planning and The EPA issued its ‘‘Clean Data’’ FR 35551). Standards to the EPA Air Division The 2014 SO2 Nonattainment Area policy memoranda for SO2 and other NAAQS describing reduced attainment Directors ‘‘Guidance for 1-hr SO2 Guidance states that in order for a planning requirements for Nonattainment Area SIP Submissions’’ nonattainment area that was designated nonattainment areas that attain the (2014 SO2 Nonattainment Area based on modeling data to be NAAQS but have not yet been Guidance), the EPA explained its determined as attaining the NAAQS, redesignated as attainment.10 11 When intention to extend the Clean Data additional dispersion modeling may be EPA considers a clean data Policy to 1-hour SO2 nonattainment required. The SO2 Modeling TAD states determination for a designated SO2 areas that show attainment of the SO2 that for the purposes of modeling to NAAQS nonattainment area, the EPA standard. As noted therein, the legal characterize air quality for use in SO2 determines whether an area has attained bases set forth in the various guidance designations the EPA recommends the NAAQS based on air quality documents and regulations establishing using a minimum of the most recent monitoring data (when available) and the Clean Data Policy for other three years of actual emissions data and air quality dispersion modeling pollutants are equally pertinent to all concurrent meteorological data to allow information for the affected area as NAAQS.13 This proposed determination the modeling to simulate what a monitor would observe. Additionally, necessary. is also consistent with prior actions of the SO Modeling TAD indicates that it Additionally, the EPA has issued the EPA applying the Clean Data Policy 2 is acceptable to use allowable emission national rulemakings that have codified to other nonattainment areas under the this policy for ozone and fine 14 rates instead of actual emission rates. 12 2010 SO2 NAAQS. particulate matter (PM2.5) NAAQS. Although past actual emissions could Under our Clean Data policy, the EPA A clean data determination is not a have been higher than those under the has consistently interpreted the redesignation to attainment. For the most recent allowable rate, the SO2 EPA to redesignate a nonattainment area Modeling TAD reflects the EPA’s belief 8 https://www.epa.gov/sites/production/files/ to attainment, the area must satisfy all that it is reasonable to account for any 2016-03/documents/tx-epa-tsd-r2.pdf. of the statutory criteria for redesignation lower allowable limits currently in 9 https://www.epa.gov/sites/production/files/ place when determining if an area is 201611/documents/texas_4_deferred_luminant_ to attainment which, in addition to tsd_final_docket.pdf. determining the area is in attainment, attaining the NAAQS. In addition, the 10 Memorandum of December 14, 2004, from include a demonstration that the SO2 Modeling TAD indicates that, Steve Page, Director, EPA Office of Air Quality improvement in the area’s air quality is where an allowable emissions limit has Planning and Standards to the EPA Air Division been lowered during the relevant three- Directors, ‘‘Clean Data Policy for the Fine Particle due to permanent and enforceable National Ambient Air Quality Standards.’’ This emission reductions; have a fully year period (such as through the document is available at: http://www.epa.gov/ approved SIP that meets all of the implementation of emissions controls), pmdesignations/guidance.htm. applicable requirements under CAA the air agency may rely on the new limit 11 The memorandum of April 23, 2014, from section 110 and CAA part D; and have in demonstrating that the modeled limit Steve Page, Director, EPA Office of Air Quality assures attainment. The EPA believes Planning and Standards to the EPA Air Division a fully approved maintenance plan.15 Directors ‘‘Guidance for 1-hr SO2 Nonattainment this kind of analysis is appropriate for Area SIP Submissions’’ provides guidance for the both designations and clean data application of the clean data policy to the 2010 1- determinations, both of which use the hour primary SO2 NAAQS. This document is 13 See court cases upholding the legal basis for the analysis to determine whether the area available at https://www.epa.gov/sites/production/ EPA’s Clean Data Determination Policy, NRDC v. _ is currently meeting the NAAQS. files/2016-06/documents/20140423guidance EPA, 571 F.3d at 1258–61 (D.C. Cir. 2009); Sierra _ nonattainment sip.pdf . Club v. EPA, 99 F.3d 551 (10th Cir. 1996); Latino For areas designated based on air 12 See, e.g., 81 FR 58010, 81 FR 58127–58129 Issues Forum v. EPA, 315 Fed. App. 651, 652 (9th quality modeling alone and where the (August 24, 2016) (promulgating 40 CFR 51.1015); Cir. 2009). source determined to be the primary 80 FR 12264, 80 FR 12296 (promulgating 51.1118). 14 See also 70 FR 1612, 70 FR 71664–46 (November For example, see 82 FR 13227 (March 10, 2016) cause of the violation has been 29, 2005); 72 FR 20585, 72 FR 20603–20605 (April and 81 FR 28718 (May 10, 2016). permanently shut down, a more 25, 2007). 15 Clean Air Act Section 107(d)(3)(E). streamlined analysis may be

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appropriate. In this case, the relevant Energy.16 The remaining permits among other information, to inform allowable emissions limit has been (17891, 18744, 56447, 106862, and their proposed siting of the new lowered to zero. The EPA believes that 112207) are material handling permits monitors.19 The EPA approved the two 20 the permanent cessation of SO2 maintained while closure activities are monitoring sites. emissions from primary sources may be completed, such as coal piles, silos, and conveyors. Freestone/Anderson Counties Monitor sufficient to determine that the area is Data attaining the NAAQS, if available Regarding the Titus County area, monitoring, emissions and modeling Vistra Energy permanently retired the Texas sited and began operating a data for the area also support the finding Monticello coal-fired steam electric monitor in the area of the Big Brown of attainment. As discussed elsewhere generating Units 1, 2, and 3 on power plant (within the Freestone/ in this document, the Anderson and December 31, 2017. Vistra Energy filed Anderson Counties nonattainment area) Freestone Counties and the Titus to void the Monticello Title V permit, on October 30, 2017. Though the Big County nonattainment areas in Texas FOP 64, on May 23, 2018 and it was Brown power plant shut down in voided by TCEQ on August 3, 2018. A were designated based on available February 2018, Texas continues to letter was submitted by Vistra Energy to modeling data that characterized the operate the monitor. EPA requires three TCEQ to void individual NSR permits area around the Big Brown and calendar years of complete, quality (2401, 26740, 45432, 54808, 56384, assured, certified monitoring data to Monticello facilities using 2013–2015 71238, 85294, 95215, 104897, 105738, emissions; these facilities have since determine a design value, the measure 146220, 83645, and 83640) on February of an area’s air quality defined been permanently shut down. 9, 2018. On February 14, 2018, TCEQ statistically by the form of the standard. D. What information did Texas provide cancelled all new source review For the 2010 one-hour SO2 standard, the that demonstrates that the area attained authorizations for Monticello Units 1, 2, design value is the three-year average of the NAAQS? and 3 and certain other facilities, as the 4th-high annual daily maximum 1- requested by Vistra Energy.17 18 The hour average concentrations, TCEQ provided information related to remaining permits (146278, 2399, representing the 99th percentile of primary sources of SO2, primary source 140265, 137864, 56387, 54408, and annual daily maximum hourly average shutdowns, and recent monitoring data. 104210) are material handling permits concentrations. A three-year period is As noted by Texas, the Vistra Energy maintained while closure activities are used to smooth out variability in Power Plants Big Brown and Monticello completed, such as coal piles, silos, and concentrations from year to year due to were the only significant SO2 emission conveyors. changes in source emission rates or to sources in the nonattainment areas. ii. Monitoring Data meteorological effects on dispersion. Texas also noted the resulting decrease Texas stated that the monitor has a Texas provided recent monitoring of ambient SO2 concentrations after the preliminary design value of 41 ppb shutdowns. data from the Fairfield FM 2570 Ward based on the 99th percentile Ranch monitor, located approximately concentrations for 2017–2019, i. Primary Source Shutdowns three miles southwest of the Big Brown compared to the standard of 75 ppb. We plant, and from the Cookville FM 4855 As discussed above, for the SO2 note that while this calculated design monitor, located approximately 12 miles value is invalid due to insufficient designations in the two Texas areas to the east of the Monticello plant and addressed in this action, the EPA relied information for 2017, the data can be source-oriented to the still-operational used as part of a weight of evidence on modeling that demonstrated that the Welsh power plant. The air quality data Big Brown and Monticello plants were analysis to support a determination of from these two monitors demonstrate a clean data. See the section below for the key contributors to the modeled decrease in ambient SO2 concentrations 2010 SO NAAQS violations. Thus, the EPA’s analysis of the available monitor 2 (which Texas stated in their request is data. key factor in our proposed a result of the shutdowns of the Big determination that the two areas are Brown and Monticello plants) Titus County Monitor Data attaining the 2010 SO2 standard is the supporting EPA’s proposed For the Titus County nonattainment retirement of the two Vistra Energy determination that these areas will area, Texas did not install a monitor facilities. continue to attain the SO2 NAAQS. planned near the Monticello power Regarding the Anderson and In its 2017 annual monitoring plant once the retirement of the facility Freestone Counties area, Vistra Energy network plan, Texas proposed SO2 was announced for 2017. However, the permanently retired the Big Brown coal- monitoring sites in the Freestone/ TCEQ provided monitoring data from fired steam electric generating Units 1 Anderson Counties and Titus County the Welsh monitor, (the Cookville FM and 2 on February 12, 2018. Vistra areas to assess air quality in the new 4855 monitor) also located in Titus Energy filed to void the Big Brown Title SO2 nonattainment areas involving county, approximately 16 km to the east V permit, FOP 065, on May 24, 2018 Vistra Energy sources. Texas referred to of the nonattainment area surrounding and it was voided by TCEQ on August the 2016 Sierra Club modeling analysis, the Monticello Power Plant. Unlike the 29, 2018. A letter was submitted by Big Brown Monitor, the Welsh Monitor 16 See docket item number EPA–HQ–OAR–2014– Vistra Energy to TCEQ to void Big 0464–0455 for a list of Big Brown’s voided NSR has 3 years of complete, certified Brown’s individual NSR permits (17891, permits. Big Brown’s voided operating permit is monitoring data from the period of 18744, 45420, 53205, 54810, 56445, also located in Docket EPA–HQ–OAR–2014–0464. 56447, 83646, 83647, 85296, 94619, 17 For Monticello, see docket item number EPA– 19 2017 ANP, available in the docket for the action HQ–OAR–2014–0464–0456 for a list of voided NSR and at: https://www.tceq.texas.gov/assets/public/ 95214, 96276, 99047, 99050, 106862, permits, and docket item number EPA–HQ–OAR– compliance/monops/air/annual_review/historical/ 108990, 112207, and 148918). On March 2014–0464–0457 for the voided operating permit. 2017-AMNP.pdf. 29, 2018, TCEQ cancelled all new 18 Any remaining NSR or material handling 20 EPA’s approval of 2017 ANP, available in the source review authorizations for Big permits for Big Brown and Monticello will only be docket for the action and at: https:// Brown Units 1 and 2 and certain other maintained while the facilities complete closure www.tceq.texas.gov/assets/public/compliance/ activities related to coal piles, silos, conveyors, and monops/air/annual_review/historical/ facilities, as requested by Vistra other shutdown tasks. EPA2017AMNP.pdf.

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2017–2019, as it began operating in concentration, and thus, it was The only emissions explicitly January 2017. The Welsh monitor was appropriate for these sources to be the modeled were those from Big Brown sited by Texas to characterize the SO2 only sources explicitly modeled. EPA’s and Monticello. The contributions from concentrations from the Welsh Power boundaries for the nonattainment area all other sources were represented in the Plant. encompassed the area shown to be in model by an estimate of the background The monitor at Welsh began reporting violation of the standard and the only concentration. This is a technique in data to the EPA’s Air Quality System sources within the boundaries of the modeling to address smaller or more (AQS) on January 1, 2017. The 2017– nonattainment areas were the principal distant source contributions by 2019 design value for the most recent sources that contributed to the violation examining monitoring data thought to three years of complete, quality assured, in each area, i.e., Big Brown and be representative. These contributions and certified ambient air monitoring Monticello. were estimated to be small, 2 ppb for data is 28 ppb, 37% of the standard. We have evaluated this modeling to both areas. Review of 2017 National This represents an upper limit for the determine if there is any possibility the Emission Inventory data shows one estimated design value for the Titus area would still be in nonattainment additional SO2 emission source, County nonattainment area since the after the plant shutdowns. EPA also Freestone Energy Center, within the Welsh monitor includes the impacts reviewed 2016–2019 emissions data Freestone/Anderson nonattainment area from the nearby Welsh Power Plant. from the Clean Air Markets Database with total annual SO2 emissions of only Concentrations in the nonattainment (CAMD) and compared those emissions 11.7 tons. There are no other SO2 area, further from the Welsh plant, to the assumptions made in the 2013– emission sources in the Titus County would be expected to be lower since 2015 modeling demonstration. As nonattainment area.21 there are no other large sources nearby. shown in Table 1, beginning in the The overall modeled concentrations at See the section below for EPA’s analysis second quarter of 2018 both plants’ a receptor were computed by Equation of the Welsh Monitor data as an emissions are omitted in CAMD, 1. indicator of air quality in the Titus indicating no SO2 emissions due to the Equation 1. Equation representing the nonattainment area. facility shutdowns. Overall, during the determination of total modeled total modeled period 2013–2015 Big Brown concentration at a receptor location. E. What is the EPA’s rationale for emitted 169,791 tons and Monticello proposing this action? Total Concentration = Concentration emitted 63,230 tons of SO2. In the most from Vistra Energy Source + The EPA is proposing to issue a clean recent three-year period, 2017–2019, Concentration from All Other data determination for the Anderson they emitted 54,291 and 29,410 tons Sources (background estimate 2 1 and Freestone Counties and the Titus respectively, less than ⁄2 the average ppb) County nonattainment areas based on emission rates modeled. More Because the Sierra Club sufficiently the shutdown of the sources in the importantly, both facilities no longer considered all significant sources of SO2 nonattainment areas, and as supported emit any SO2. emissions for inclusion in the modeling by monitoring data from within or near demonstration, and these sources now to the nonattainment areas and an TABLE 1—QUARTERLY EMISSIONS have zero emissions, we do not believe evaluation of previous modeling. A FROM BIG BROWN AND MONTICELLO that new modeling is required to detailed analysis of the monitoring data FOR 2013–2019 determine attainment of the standard. is presented below. In addition, we Based on Equation 1, because the consider below available modeling data Big Brown Monticello emissions from the Vistra Energy and more recent emission inventory Quarter SO2 SO2 emissions emissions Sources are zero and their modeled data for the areas as further support for (tons) (tons) concentrations would also be zero, the our proposed determination, consistent total concentration within the with our Clean Data Policy, that the 2013 Q1 ...... 16,179 2,131 nonattainment area would be modeled nonattainment areas are attaining the 2013 Q2 ...... 14,603 7,358 2013 Q3 ...... 16,817 12,130 as equal to the contribution from all 2010 SO2 NAAQS. 2013 Q4 ...... 14,895 2,778 other sources, or background. The III. What is the EPA’s analysis? 2014 Q1 ...... 12,792 5,607 modeled design value, in the absence of 2014 Q2 ...... 13,119 3,683 emissions from the Vistra Energy A. Modeling Data and Supplemental 2014 Q3 ...... 19,477 11,147 sources, if remodeled would then be 2016–2019 Emissions Information 2014 Q4 ...... 12,072 2 equal to the concentrations from all Evaluation 2015 Q1 ...... 12,430 0 2015 Q2 ...... 11,677 4,205 other sources as represented by the In 2016, Sierra Club and Vistra Energy 2015 Q3 ...... 12,994 8,760 background concentration of 2 ppb. submitted modeling data for the then 2015 Q4 ...... 12,737 5,430 B. Ambient Air Quality Monitoring Data most recent three years (2013–2015). 2016 Q1 ...... 9,632 2,622 This modeling provided the basis for the 2016 Q2 ...... 7,369 3,853 Evaluation two nonattainment designations as 2016 Q3 ...... 14,556 11,191 According to the 2014 SO2 discussed earlier. 2016 Q4 ...... 10,913 7,293 Nonattainment Area Guidance, to In the 2016 designation action, EPA 2017 Q1 ...... 9,904 3,463 support a clean data determination found that the Sierra Club’s modeled 2017 Q2 ...... 10,244 8,558 based on monitoring data alone, the 2017 Q3 ...... 13,203 8,358 source inventory was created in 2017 Q4 ...... 14,282 9,030 state needs to demonstrate that the area accordance with the 2014 SO2 2018 Q1 ...... 6,659 0 is meeting the standard based on three Nonattainment Area Guidance and the 2018 Q2 ...... 0 0 consecutive calendar years of complete 2016 SO2 Modeling TAD. Our analysis 2018 Q3 ...... 0 0 and quality-assured air quality of the maximum impacts around Big 2018 Q4 ...... 0 0 monitoring data (consistent with 40 CFR Brown and around Monticello found 2019 Q1 ...... 0 0 part 58 requirements). Neither that Big Brown and Monticello were 2019 Q2 ...... 0 0 nonattainment area contains a monitor 2019 Q3 ...... 0 0 responsible for almost 100% of the 2019 Q4 ...... 0 0 with three complete years of monitoring impacts on the maximum ambient data, but we believe that the available

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monitoring data from the Big Brown and days were measured during 2018; standard, and supports the EPA’s Welsh monitors do provide during this period the 99th percentile proposed determination that corroborating evidence that the source concentration (the 3rd high value) was concentrations in the Titus County shutdowns have resulted in attainment. 14 ppb, 19% of the standard. The 99th nonattainment area would also be in To further support our proposed percentile concentration for 2019 (the attainment. The shutdown of Monticello determination, the EPA performed a 4th high value) is 5.8 ppb, 8% of the also reduced concentrations at the detailed analysis of the SO2 standard. Preliminary monitoring data Welsh monitor when winds blew from concentrations monitored before and for the first quarter of 2020 gives a 99th the direction of Monticello (231°–321°). after the shutdowns. percentile (the first-high value) of 7.6 In 2017, prior to the shutdown, the Data from the Big Brown monitor ppb. The extremely low 99th percentile maximum concentration from the demonstrates a marked improvement in concentrations post-shutdown indicate direction of Monticello was 112.7 ppb. air quality in the nonattainment area that the monitored 99th percentile After the shutdown the maximum due to the permanent retirement of the concentrations in the Freestone and concentrations from that direction in source as shown in Table 2. During the Anderson County nonattainment area 2018 and 2019 were 6.8 ppb and 6 ppb initial 107-day period from the start of are now, and will continue to be, well respectively. monitoring on October 31, 2017 to the below the NAAQS. Based on our analysis, the monitoring shutdown of Big Brown on February 14, As discussed previously, the Welsh data from the Big Brown and Welsh 2018, the 99th percentile concentration Monitor provides a conservative DRR Monitors, before and after the (the 1st high value for this shorter-than- estimate of possible concentrations in major source shutdowns, support our one-year period) was 77.5 ppb, slightly the Titus nonattainment area. Its design proposed determination that both areas above the standard. Post-shutdown, 321 value is 28.0 ppb, in attainment of the are now in attainment.

TABLE 2—99TH PERCENTILE 1-HOUR AVERAGE IN PARTS PER BILLION (PPB) AT THE WELSH AND BIG BROWN MONITORS [2017–2019]

Monitor Site name 2017 2018 2019 Average

48–449–1078 ...... Welsh ...... 33.4 20.2 30.5 1 28 48–161–1084 ...... Big Brown ...... 2 77.5 39.4 5.8 3 21.6 1 The 3-year average of the yearly 4th high of the complete and certified data from the Welsh monitor represents the design value for the monitor. 2 Includes only data beginning 10/30/2017. 3 Average is weighted by number of days included for each year.

C. EPA’s Proposed Clean Data occur, the basis for the suspension of modeling analysis; this proposed action, Determination the specific SIP requirements would no if finalized, would not constitute a The EPA acknowledges the longer exist, and the state would redesignation to attainment under permanent shut down of the Vistra thereafter have to address the pertinent section 107(d)(3) of the CAA. The Energy Big Brown and Monticello requirements. If finalized, a designation status of the nonattainment power plants and recognizes the determination of attainment would not areas will remain nonattainment for the corresponding relationship between the shield the area from other required 2010 1-hour primary SO2 NAAQS until decrease in concentrations of SO2 in the actions, such as provisions to address such time as the state submits nonattainment areas and the cessation pollution transport, which could require approvable redesignation requests and of emissions from the Vistra Power emission reductions at sources or other maintenance plans, and the EPA takes Plants. We have examined available types of emission activities contributing final rulemaking action to determine monitoring and modeling data and significantly to nonattainment in other that such submissions meet the CAA propose to find that air quality in the areas or states, or interfering with requirements for redesignation to nonattainment areas are now attaining maintenance in those areas. The EPA attainment. has the authority to require emissions the 1-hour SO2 standard. V. Statutory and Executive Order reductions as necessary and appropriate Reviews IV. What would be the effects of this to deal with transported air pollution action, if promulgated? situations. See CAA sections This action proposes to make a If this proposed determination is 110(a)(2)(D), 110(a)(2)(A), and 126. determination based on air quality made final, the requirements for the If, after considering any comments monitoring data and modeling and state to submit an attainment received on this proposal, the EPA would, if finalized, result in the demonstration, a reasonable further finalizes a clean data determination for suspension of certain Federal progress plan, contingency measures, these areas, the state would still be requirements and would not impose any and other planning SIP revisions related subject to nonattainment area additional requirements. For that to attainment of the 2010 1-hour requirements, including nonattainment reason, this proposed action: primary SO2 NAAQS such as reasonably new source review and emission • Is not a significant regulatory action available control measures and inventory requirements, until the area is subject to review by the Office of reasonably available control technology redesignated to attainment. Management and Budget under would be suspended until such time, if This proposed clean data Executive Orders 12866 (58 FR 51735, any, that the EPA subsequently determination is limited to a October 4, 1993) and 13563 (76 FR 3821, determines, after notice-and-comment determination that the areas are January 21, 2011); rulemaking in the Federal Register, that attaining the 2010 1-hour primary SO2 • Is not an Executive Order 13771 (82 either area has violated the 2010 1-hour NAAQS as evidenced by the state’s FR 9339, February 2, 2017) regulatory primary SO2 NAAQS. If this were to monitoring data and the Sierra Club’s action because this action is not

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significant under Executive Order ENVIRONMENTAL PROTECTION FOR FURTHER INFORMATION CONTACT: 12866. AGENCY Kathleen Mullen, Environmental • Does not impose an information Engineer, Attainment Planning and 40 CFR Part 52 collection burden under the provisions Maintenance Section, Air Programs of the Paperwork Reduction Act (44 Branch (AR–18J), Environmental [EPA–R05–OAR–2019–0700; FRL–10013– Protection Agency, Region 5, 77 West U.S.C. 3501 et seq.); 26–Region 5] Jackson Boulevard, Chicago, Illinois • Is certified as not having a Air Plan Approval; Wisconsin; VOC 60604, (312) 353–3490, significant economic impact on a RACT Requirements for Lithographic [email protected]. The EPA substantial number of small entities Printing Facilities Region 5 office is open from 8:30 a.m. under the Regulatory Flexibility Act (5 to 4:30 p.m., Monday through Friday, U.S.C. 601 et seq.); AGENCY: Environmental Protection excluding Federal holidays and facility • Does not contain any unfunded Agency (EPA). closures due to COVID 19. mandate or significantly or uniquely ACTION: Proposed rule. SUPPLEMENTARY INFORMATION: affect small governments, as described Throughout this document whenever in the Unfunded Mandates Reform Act SUMMARY: The Environmental Protection ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean of 1995 (Pub. L. 104–4); Agency (EPA) is proposing to approve a EPA. State Implementation Plan (SIP) • Does not have Federalism revision submitted by the Wisconsin I. What is EPA proposing? implications as specified in Executive Department of Natural Resources EPA is proposing to approve revisions Order 13132 (64 FR 43255, August 10, (WDNR or Wisconsin) on December 13, to the Wisconsin Administrative Code 1999); 2019. Wisconsin requests that EPA Chapter NR 422, into the Wisconsin SIP. • Is not an economically significant approve rules related to control of These revisions amend the control of regulatory action based on health or volatile organic compound (VOC) VOC emissions from offset lithographic safety risks subject to Executive Order emissions from offset lithographic printing operations. 13045 (62 FR 19885, April 23, 1997); printing operations into the Wisconsin’s II. What is the background for these SIP. These revisions include • Is not a significant regulatory action actions? amendments to the Wisconsin subject to Executive Order 13211 (66 FR Administrative Code (WAC), Chapter There are two state rules (NR 422.142 28355, May 22, 2001); NR 422. and NR 422.143, Wis. Adm. Code) • regulating VOC emissions from Is not subject to requirements of DATES: Comments must be received on lithographic printing operations in Section 12(d) of the National or before October 26, 2020. Technology Transfer and Advancement Wisconsin. ADDRESSES: Act of 1995 (15 U.S.C. 272 note) because Submit your comments, Section NR 422.142, Wis. Adm. Code identified by Docket ID No. EPA–R05– application of those requirements would (Lithographic printing—Part 1) contains OAR–2019–0700 at http:// be inconsistent with the CAA; and requirements that were established as www.regulations.gov, or via email to • RACT requirements for the 1979 1-hour Does not provide the EPA with the [email protected]. For ozone National Ambient Air Quality discretionary authority to address, as comments submitted at Regulations.gov, Standard (NAAQS) for nine counties in appropriate, disproportionate human follow the online instructions for southeast Wisconsin (Kenosha, health or environmental effects, using submitting comments. Once submitted, Kewaunee, Manitowoc, Milwaukee, practicable and legally permissible comments cannot be edited or removed Ozaukee, Racine, Sheboygan, methods, under Executive Order 12898 from Regulations.gov. For either manner Washington, and Waukesha Counties), (59 FR 7629, February 16, 1994). of submission, EPA may publish any and became effective on July 1, 1995. In addition, this proposed action does comment received to its public docket. Section NR 422.143, Wis. Adm. Code not apply on any Indian reservation Do not submit electronically any (Lithographic printing—Part 2) was land or in any other area where the EPA information you consider to be established as RACT requirements for or an Indian tribe has demonstrated that Confidential Business Information (CBI) the 1997 8-hour ozone NAAQS for a tribe has jurisdiction. In those areas of or other information whose disclosure is seven counties located in southeast Indian country, the rule does not have restricted by statute. Multimedia Wisconsin (Kenosha, Milwaukee, tribal implications and will not impose submissions (audio, video, etc.) must be Ozaukee, Racine, Sheboygan, substantial direct costs on tribal accompanied by a written comment. Washington, and Waukesha), and governments or preempt tribal law as The written comment is considered the became effective on August 1, 2009. The specified by Executive Order 13175 (65 official comment and should include requirements in Part 2 are based on the FR 67249, November 9, 2000). discussion of all points you wish to limits established in the latest Control make. EPA will generally not consider Techniques Guidelines (CTG) for Offset List of Subjects in 40 CFR Part 52 comments or comment contents located Lithographic Printing and Letterpress outside of the primary submission (i.e., Printing, published by EPA in 2006. NR Environmental protection, Air on the web, cloud, or other file sharing 422.142 and NR 422.143 were pollution control, Incorporation by system). For additional submission previously approved into Wisconsin’s reference, Sulfur dioxide, Attainment methods, please contact the person SIP on August 7, 2012 (77 FR 46961). determination. identified in the FOR FURTHER The two-part organizational structure Authority: 42 U.S.C. 7401 et seq. INFORMATION CONTACT section. For the of these rules creates potential Dated: September 17, 2020. full EPA public comment policy, confusion in the application of the information about CBI or multimedia rules. Revisions to these rules (NR Kenley McQueen, submissions, and general guidance on 422.142 and NR 422.143, Wis. Adm. Regional Administrator, Region 6. making effective comments, please visit Code) will clarify and streamline the [FR Doc. 2020–20958 Filed 9–24–20; 8:45 am] http://www2.epa.gov/dockets/ VOC RACT requirements for BILLING CODE 6560–50–P commenting-epa-dockets. lithographic printing facilities. The

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revised Wisconsin Administrative Code NR 422.142—Lithographic Printing— than 100 tons per year from lithographic Chapter NR 422 became effective July 1, Part 1 printing facilities. The tested control 2019. This rule has been amended to narrow efficiencies for these existing lithographic printing sources exceed III. What is EPA’s analysis of its applicability to cover only existing 98%, and control efficiency does not go Wisconsin’s SIP revision? facilities located in Kewaunee and Manitowoc counties. Specifically, seven down as the control device ages. EPA has reviewed Wisconsin’s counties (Kenosha, Milwaukee, Therefore, it was determined that initial revised VOC rules for lithographic Ozaukee, Racine, Sheboygan, stack testing, periodic monitoring and printing facilities, which include: Washington, and Waukesha) from the recording of control device operating Adding new definitions in NR 422.02, list of the affected facilities under NR temperature, and maintenance of the Wis. Adm. Code., changing the rule 422.142 were removed, because they are control device are sufficient to applicability of NR 422.142 and covered under the requirements of NR demonstrate compliance with the 422.143, Wis. Adm. Code, replacing the 422.143, which is more stringent and control efficiency requirements for the term ‘‘blanket or roller wash’’ with consistent with the latest CTG control devices installed with the ‘‘cleaning solution’’ in NR 422.142 and published in 2006. This revision is lithographic printing presses, and the 422.143, Wis. Adm. Code, revising the approvable because it is consistent with periodic stack testing requirement for VOC emission limits for blanket or the subject CTG. small sources could be removed. These roller wash, clarifying the associated revisions are approvable since they monitoring and recordkeeping NR 422.142 and NR 422.143 clarify the rule requirements regarding requirements, eliminating the periodic The printing industry refers to stack test testing for small lithographic stack testing requirements for small ‘‘blanket or roller wash’’ as the solvents printing sources and do not compromise sources, and including the calculation used for blanket wash and roller wash the effectiveness of the rule. methods for composite partial vapor only. ‘‘Cleaning solution’’ refers to all NR 422.142(5)(b)1 and 422.143(7)(b)1 pressure calculations in NR 422.143. the printing press-related cleaning The proposed revisions are consistent activities. In order to clarify how the For the lithographic printing sources with the latest CTG published by EPA term is used by the printing industry, with allowable VOC emissions that are in 2006, clarify the existing state rule these rules have been revised to replace greater than 100 tons per year, the requirements for lithographic printing the term ‘‘blanket or roller wash’’ with periodic testing requirement (every 24 operations in the southeastern part of ‘‘cleaning solution.’’ These revisions are months) will remain in the rule. The Wisconsin, and streamline the approvable since they are consistent testing exception scenarios specified in implementation of these state rules. A with the terms used in EPA’s 2006 CTG. NR 439.075(4), Wis. Adm. Code, still brief discussion of these revisions apply to these larger sources that could follows. NR 422.142(2)(c) and 422.143(3)(c) reduce the frequency of periodic testing NR 422—Control of Organic Compound The VOC content limits for the for these sources. The language in NR Emissions From Surface Coating, cleaning solutions have been revised to 422.142(5)(b)1. and 422.143(7)(b)1., Wis. Printing, and Asphalt Surfacing be less than 70% by weight. This change Adm. Code, was revised to clarify that Operations is approvable since it is consistent with the testing exceptions in NR 439.075(4), the VOC content limits in the 2006 CTG. Wis. Adm. Code, apply to larger NR 422.02(7c)—Definition sources. These revisions are approvable A new definition to ‘‘Automatic NR 422.142(2)(c) since they clarify the rule requirements blanket and roller wash’’ has been The formula used to calculate the regarding stack testing for large added to Wisconsin’s lithographic VOC vapor pressure limits for the lithographic printing sources. cleaning solutions was revised from printing regulations. This definition is NR 422.143(7)(d) and NR 422.142(5)(d) approvable because it is a necessary ‘‘vapor pressure for each VOC update to the definition section and component’’ to ‘‘VOC composite partial Section NR 422.143(7)(d) was added accurately describes that ‘‘Automatic vapor pressure.’’ This revision is to include the equation used to calculate blanket and roller wash’’ refers to all the approvable since it is consistent with composite partial vapor pressure for printing press-related cleaning activities VOC vapor pressure limits used in NR cleaning solutions. This revision consistent with the CTG. 422.143 and the latest 2006 CTG. clarifies how affected sources are to demonstrate compliance with the NR 422.02(14m)—Definition NR 422.142(3), NR 422.142(4), NR applicable limitations. Section NR A new definition to ‘‘Cleaning 422.143(5), and NR 422.143(6) 422.142(5)(d) was revised to incorporate solution’’ has been added to The monitoring and recordkeeping this calculation method. These revisions Wisconsin’s lithographic printing requirements were revised to clarify the are approvable since they clarify the regulations. This definition is temperature monitoring and rule requirements regarding composite approvable because it is a necessary maintenance requirements for control partial vapor pressure calculations for update to the definition section and devices. These revisions are approvable lithographic printing operations. accurately describes cleaning solutions since they clarify the rule requirements NR 422.143—Lithographic Printing— consistent with the CTG. regarding monitoring and record Part 2 keeping for lithographic printing NR 422.02(45e)—Definition operations. The applicable areas in this section A new definition to ‘‘Janitorial were revised to cover new and modified supplies’’ has been added to NR 422.142(5)(b)2 and 422.143(7)(b)2 lithographic printing facilities in Wisconsin’s lithographic printing The stack test requirements for small Kewaunee and Manitowoc Counties. regulation. This definition is approvable sources were revised to remove periodic New control devices in these counties because it is a necessary update to the stack testing that requires retesting the must meet the higher control efficiency definition section and accurately control device every 48 months. These requirements for add-on control devices describes janitorial supplies consistent revisions apply only to sources with specified in this section. Revisions in with the CTG. allowable VOC emissions that are less this section are approvable because they

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are consistent with the most recent CTG CAA and applicable Federal regulations. safety risks subject to Executive Order and clarify the existing state rule 42 U.S.C. 7410(k); 40 CFR 52.02(a). 13045 (62 FR 19885, April 23, 1997); requirements for lithographic printing Thus, in reviewing SIP submissions, • Is not a significant regulatory action operations. EPA’s role is to approve state choices, subject to Executive Order 13211 (66 FR provided that they meet the criteria of IV. What action is EPA taking? 28355, May 22, 2001); the CAA. Accordingly, this action • Is not subject to requirements of EPA is proposing to approve the merely approves state law as meeting Section 12(d) of the National Wisconsin SIP revisions to its rules Federal requirements and does not Technology Transfer and Advancement relating to the control of VOC emissions impose additional requirements beyond Act of 1995 (15 U.S.C. 272 note) because from offset lithographic printing those imposed by state law. For that application of those requirements would operations (WI Admin Code NR 422.02, reason, this action: be inconsistent with the CAA; and 422.142, 422.143) submitted on • Is not a significant regulatory action • Does not provide EPA with the December 13, 2019. EPA is soliciting subject to review by the Office of public comment on the issues discussed discretionary authority to address, as Management and Budget under appropriate, disproportionate human in this document. These comments will Executive Orders 12866 (58 FR 51735, be considered before taking final action. health or environmental effects, using October 4, 1993) and 13563 (76 FR 3821, practicable and legally permissible V. Incorporation by Reference January 21, 2011); methods, under Executive Order 12898 • In this proposed rule, EPA is Is not an Executive Order 13771 (82 (59 FR 7629, February 16, 1994). proposing to include in a final EPA rule FR 9339, February 2, 2017) regulatory In addition, the SIP is not approved regulatory text that includes action because SIP approvals are to apply on any Indian reservation land exempted under Executive Order 12866; incorporation by reference. In • or in any other area where EPA or an accordance with requirements of 1 CFR Does not impose an information Indian tribe has demonstrated that a 51.5, EPA is proposing to incorporate by collection burden under the provisions tribe has jurisdiction. In those areas of reference Wisconsin Administrative of the Paperwork Reduction Act (44 Indian country, the proposed rule does U.S.C. 3501 et seq.); Code provisions NR 422.02, NR 422.142, • not have tribal implications and will not and NR 422.143, published in the Is certified as not having a impose substantial direct costs on tribal Wisconsin Register June 2019 No. 762b significant economic impact on a governments or preempt tribal law as and became effective July 1, 2019. EPA substantial number of small entities specified by Executive Order 13175 (65 has made, and will continue to make, under the Regulatory Flexibility Act (5 FR 67249, November 9, 2000). these documents generally available U.S.C. 601 et seq.); • through www.regulations.gov and at the Does not contain any unfunded List of Subjects in 40 CFR Part 52 EPA Region 5 Office (please contact the mandate or significantly or uniquely Environmental protection, Air person identified in the FOR FURTHER affect small governments, as described pollution control, Incorporation by INFORMATION CONTACT section of this in the Unfunded Mandates Reform Act reference, Intergovernmental relations, preamble for more information). of 1995 (Pub. L. 104–4); Ozone, Volatile organic compounds. • Does not have federalism VI. Statutory and Executive Order implications as specified in Executive Dated: September 10, 2020. Reviews Order 13132 (64 FR 43255, August 10, Cheryl Newton, Under the CAA, the Administrator is 1999); Deputy Regional Administrator, Region 5. required to approve a SIP submission • Is not an economically significant [FR Doc. 2020–20517 Filed 9–24–20; 8:45 am] that complies with the provisions of the regulatory action based on health or BILLING CODE 6560–50–P

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Notices Federal Register Vol. 85, No. 187

Friday, September 25, 2020

This section of the FEDERAL REGISTER displays a currently valid OMB control functions of the agency, including contains documents other than rules or number. whether the information will have proposed rules that are applicable to the practical utility; the accuracy of the Foreign Agricultural Service public. Notices of hearings and investigations, agency’s estimate of burden including committee meetings, agency decisions and Title: Dairy Tariff-Rate Import Quota the validity of the methodology and rulings, delegations of authority, filing of Licensing Program. assumptions used; ways to enhance the petitions and applications and agency OMB Control Number: 0551–0001. statements of organization and functions are quality, utility and clarity of the Summary of Collection: The Dairy information to be collected; and ways to examples of documents appearing in this Tariff-Rate Import Quota regulation (the section. minimize the burden of the collection of Regulation) (7 CFR part 6.20–6.37) information on those who are to which governs the administration of the respond, including through the use of DEPARTMENT OF AGRICULTURE import licensing system applicable to appropriate automated, electronic, most dairy products subject to tariff-rate mechanical, or other technological Submission for OMB Review; quotas (TRQs). The importation of most collection techniques or other forms of Comment Request cheese made from cow’s milk and information technology. certain non-cheese dairy articles (butter, Comments regarding this information September 21, 2020. dried milks, and butter substitutes) are collection received by October 26, 2020 The Department of Agriculture has subject to TRQs and must be will be considered. Written comments submitted the following information accompanied by an import license and recommendations for the proposed collection requirement(s) to OMB for issued by the Department to enter at the information collection should be review and clearance under the lower tariff. Importers without licenses submitted within 30 days of the Paperwork Reduction Act of 1995, may enter these dairy articles but are publication of this notice on the Public Law 104–13. Comments are required to pay the higher tariff. The following website www.reginfo.gov/ requested regarding; whether the Foreign Agricultural Service (FAS) will public/do/PRAMain. Find this collection of information is necessary collect information using several forms. particular information collection by for the proper performance of the Need and Use of the Information: FAS selecting ‘‘Currently under 30-day functions of the agency, including will use the collected information in the Review—Open for Public Comments’’ or whether the information will have administration of the tariff-rate import by using the search function practical utility; the accuracy of the quota licensing system for certain dairy An agency may not conduct or agency’s estimate of burden including products and the issuance of licenses in sponsor a collection of information the validity of the methodology and accordance with the Regulation. If the unless the collection of information assumptions used; ways to enhance the information were collected less displays a currently valid OMB control quality, utility and clarity of the frequently, FSA would be unable to number and the agency informs information to be collected; and ways to issue licenses on an annual basis in potential persons who are to respond to minimize the burden of the collection of compliance with the Import Regulation. the collection of information that such information on those who are to Description of Respondents: Business persons are not required to respond to respond, including through the use of or other-for-profit. the collection of information unless it appropriate automated, electronic, Number of Respondents: 700. displays a currently valid OMB control mechanical, or other technological Frequency of Responses: Record number. collection techniques or other forms of keeping, Reporting: Annually. information technology. Total Burden Hours: 479. Food Safety and Inspection Service Comments regarding this information Ruth Brown, Title: In-Home Food Safety Behaviors collection received by October 26, 2020 and Consumer Education: Web Survey. will be considered. Written comments Departmental Information Collection OMB Control Number: 0583–0178. Clearance Officer. and recommendations for the proposed Summary of Collection: The U.S. information collection should be [FR Doc. 2020–21149 Filed 9–24–20; 8:45 am] Department of Agriculture’s (USDA) submitted within 30 days of the BILLING CODE 3410–10–P Food Safety and Inspection Service publication of this notice on the (FSIS) has been delegated the authority following website www.reginfo.gov/ to exercise the functions of the Secretary DEPARTMENT OF AGRICULTURE public/do/PRAMain. Find this of Agriculture (7 CFR 2.18, 2.53) as particular information collection by Submission for OMB Review; specified in the Federal Meat Inspection selecting ‘‘Currently under 30-day Comment Request Act and the Poultry Products Inspection Review—Open for Public Comments’’ or Act (21 U.S.C. 453, et seq., 601 et. seq.) by using the search function. September 22, 2020. FSIS protects the public by verifying An agency may not conduct or The Department of Agriculture has that meat, poultry, and processed egg sponsor a collection of information submitted the following information products are wholesome; not unless the collection of information collection requirement(s) to OMB for adulterated; and properly marked, displays a currently valid OMB control review and clearance under the labeled, and packaged. USDA FSIS’ number and the agency informs Paperwork Reduction Act of 1995, Office of Public Affairs and Consumer potential persons who are to respond to Public Law 104–13. Comments are Education (OPACE) ensures that all the collection of information that such requested regarding whether the segments of the farm-to-table chain persons are not required to respond to collection of information is necessary receive valuable food safety the collection of information unless it for the proper performance of the information. The consumer education

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programs developed by OPACE’s inform The public may inspect comments system facilitates reporting by state the public on how to safely handle, received at USDA Forest Service, agencies to the Forest Service on the prepare, and store meat, poultry, and Washington Office during normal status and location of the property. State processed egg products to minimize business hours. Visitors are encouraged agencies use the electronic database incidence or foodborne illness. FSIS to call ahead to 202–205–0995 to (Federal Excess Property Management will contact web-based surveys of facilitate entry to the building. Information System or FEPMIS) to consumers. FOR FURTHER INFORMATION CONTACT: submit information regarding the Need and Use of the Information: Clint Cross, Fire and Aviation property make, model, serial number, Finding from the web surveys will Management by phone at 202–205– acquisition value, location, and provide information on how FSIS 0995. acquisition date when an item is communication programs and materials Individuals who use acquired or no longer needed. Forest affect consumer understanding of telecommunication devices for the deaf Service property management recommended safe food handling (TDD) may call the Federal Relay technicians will collect the information practices and insight into how to Service (FRS) at 1–800–877–8339 from FEPMIS and enter it into the effectively inform consumers of between 8 a.m. and 8 p.m., Eastern National Finance Center database recommended practices. The results of Standard Time, Monday through Friday. (CPAIS–PP), as required by Federal this exploratory research will be used to SUPPLEMENTARY INFORMATION: Property Management Regulations. enhance communication programs and Title: Federal Excess Personal Forest Service property management materials to improve consumers’ food Property (FEPP) and Firefighter Property officers will analyze the data collected safety behaviors and help prevent (FFP) Program Administration. to ensure that the property foodborne illness. OMB Number: 0596–0223. accountability is accurate, and no Description of Respondents: Type of Request: Extension without misuse of property is occurring. Individuals or households. Revision. The authority to loan surplus supplies Number of Respondents: 9,092. Abstract: Federal Excess Personal to state agencies comes from the Federal Frequency of Responses: Reporting: Property (FEPP) and Firefighter Property Property and Administration Services One time. (FFP) Program Cooperative Agreements Act of 1949, 40 U.S.C. and grants the Total Burden Hours: 1,956. are available to State forestry agencies. authority for the FEPP program. Authority to donate excess supplies Ruth Brown, The program administration provides participating State agencies with comes from 10 U.S.C., Subtitle A, Part Departmental Information Collection IV, Chapter 153, 2576b which grants the Clearance Officer. surplus Department of Defense and other Federal agencies equipment and authority for the FFP program. [FR Doc. 2020–21223 Filed 9–24–20; 8:45 am] supplies to be used in firefighting and Estimate of Annual Burden: 1 hour BILLING CODE 3410–DM–P emergency services. The FEPP program and 2 minutes. loans property to the State who in turn Type of Respondents: State Foresters and State Agency FEPP property DEPARTMENT OF AGRICULTURE sub-loans the equipment and supplies to fire departments. The FFP program managers. Forest Service transfers ownership of many types of Estimated Annual Number of property to either the State agency or Respondents: 65. Information Collection; Federal Excess the individual fire department. Estimated Annual Number of Personal Property and Firefighter A cooperative agreement collects Responses per Respondent: 302. Property Program Administration information from the participating State Estimated Total Annual Burden on agencies and outlines the requirements Respondents: 570 hours. AGENCY: Forest Service, USDA. and rules for the cooperation. Each State Comment is Invited: ACTION: Notice; request for comment. forestry agency shall provide an Comment is invited on: (1) Whether Accountable Officer who will be this collection of information is SUMMARY: In accordance with the responsible for the integrity of the necessary for the stated purposes and Paperwork Reduction Act of 1995, the program within their respective State. the proper performance of the functions Forest Service is seeking comments For this reason, FEPP and FFP collects of the Agency, including whether the from all interested individuals and the state forestry agency contact information will have practical or organizations on the revised information information, the information of the scientific utility; (2) the accuracy of the collection, Federal Excess Personal Accountable Officer, and the Agency’s estimate of the burden of the Property (FEPP) and Firefighter Property requirements of participation in the collection of information, including the (FFP) Program Administration. FEPP and FFP programs. validity of the methodology and DATES: Comments must be received in A cooperative agreement is prepared assumptions used; (3) ways to enhance writing on or before November 24, 2020 by each State forestry agency that the quality, utility, and clarity of the to be assured of consideration. desires to participate in one, or both information to be collected; and (4) Comments received after that date will programs. Participating State agencies ways to minimize the burden of the be considered to the extent practicable. must submit separate agreements if they collection of information on ADDRESSES: Comments concerning this desire to be participants in both respondents, including the use of notice should be addressed to: USDA, programs. Agreements will be processed automated, electronic, mechanical, or Forest Service, Attention Clint Cross, and maintained at the United States other technological collection USDA Forest Service, Washington Department of Agriculture, Forest techniques or other forms of information Office Fire and Aviation Management Service, Fire and Aviation Management, technology. (FAM), 1400 Independence Avenue Landscapes and Partnerships Assistant All comments received in response to Southwest, Mailstop 1107, Washington, Director area and in each Forest Service this notice, including names and DC 20250. Comments may also be Regional Office. addresses when provided, will be a submitted via email to: clint.cross@ Since the FEPP property belongs to matter of public record. Comments will usda.gov. the Forest Service, the agency inventory be summarized and included in the

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submission request toward Office of Microsoft Word, Excel, or Adobe PDF the following by-groups for all quarters Management and Budget approval. file formats. for which data are available for each partner state: Jaelith Hall-Rivera, FOR FURTHER INFORMATION CONTACT: Æ Associate Deputy Chief, State & Private Requests for additional information or County, metropolitan, and Forestry. specific questions related to collection workforce development area. activities should be directed to Keith [FR Doc. 2020–21219 Filed 9–24–20; 8:45 am] Æ Age, sex, race, and ethnicity Bailey, Assistant Center Chief, (301) BILLING CODE 3411–15–P categories. 763–2923, [email protected]. Æ SUPPLEMENTARY INFORMATION: Business characteristics (i.e., detailed industry ownership type, firm DEPARTMENT OF COMMERCE I. Abstract age, firm size). • Census Bureau A 21st century statistical system must LEHD Origin Destination provide information about the dynamic Employment Statistics (LODES)— Agency Information Collection economy quickly, using data assets LODES data provide detailed spatial Activities; Submission to the Office of efficiently while minimizing the burden distributions of workers’ employment Management and Budget (OMB) for of collecting and providing data and and residential locations and the Review and Approval; Comment fully preserving confidentiality. The relation between the two at the Census Request; Longitudinal Employer- Census Bureau’s Longitudinal Block level. LODES also provides Household Dynamics (LEHD) Employer-Household Dynamics (LEHD) characteristic detail on age, earnings, data infrastructure has demonstrated the industry distributions, and other AGENCY: Census Bureau, Commerce. power and usefulness of linking worker/business characteristics. ACTION: Notice of information collection, multiple business and employee data • Job-to-Job Flows (J2J)—Job-to-Job request for comment. sets with state-of-the-art confidentiality Flows (J2J) is a set of statistics on job protections to build a longitudinal SUMMARY: The Department of mobility in the United States national frame of jobs. constructed by the LEHD program. J2J Commerce, in accordance with the LEHD supports the Department of Paperwork Reduction Act of 1995 include statistics on: (1) The job-to-job Commerce plan to improve American transition rate, (2) hires and separations (PRA), invites the general public and competitiveness and measures of other Federal agencies to comment on to and from employment, (3) earnings innovation. It provides federal, state, changes due to job change, and (4) proposed, and continuing information and local policymakers and planners, collections, which helps us assess the characteristics of origin and destination businesses, private sector decision jobs for job-to-job transitions. These impact of our information collection makers, and Congress with requirements and minimize the public’s statistics are available at the national, comprehensive and timely national, state, and metropolitan area levels and reporting burden. The purpose of this state, and local information on the notice is to allow for 60 days of public by worker and firm characteristics. dynamic nature of employers and • comment on the proposed extension of employees. Post-Secondary Employment the Longitudinal Employer-Household LEHD significantly reduces the Outcomes (PSEO)—Post-Secondary Dynamics data collection, prior to the overall effort for the generation of its Employment Outcomes (PSEO) is an submission of the information collection quarterly data product by: experimental set of statistics on the request (ICR) to OMB for approval. • Leveraging existing federal earnings and employment outcomes of DATES: To ensure consideration, administrative and state data. graduates of select post-secondary comments regarding this proposed • Avoiding costs required to expand institutions in the United States, and is information collection must be received existing surveys to collect the constructed using data from LEHD. on or before November 24, 2020. information directly. Earnings Outcomes reports earnings by ADDRESSES: Interested persons are • Reducing respondent burden by institution, degree field, degree level invited to submit written comments by limiting the number of required and graduation cohort for 1, 5 and 10 mail to [email protected]. Please resources to just the owners of the years after graduation. Employment reference OMB Control Number 0607– required data. Flows tabulations provide the 1001 in the subject line of your LEHD is a result of the Local destination industry and geography of comments. You may also submit Employment Dynamics (LED) employment for graduates of an comments, identified by Docket Number Partnership. The LED Partnership is a institution by degree level, degree field, USBC–2020–0006, to the Federal e- partnership between the US Census and graduation cohort, for one, five, and Rulemaking Portal: http:// Bureau and the Labor Market 10 years after graduation. A limited www.regulations.gov. All comments Information (LMI) agencies from 50 number of institutions are available as received are part of the public record. states, the District of Columbia, and the part of the pilot release, but future No comments will be posted to http:// territories of Puerto Rico, Guam and the updates will include additional post- www.regulations.gov for public viewing U.S. Virgin Islands. This partnership secondary institutions. until after the comment period has supports the development, promotion, These data products highlight state closed. Comments will generally be and distribution of the following public- and local labor market dynamics that posted without change. All Personally use data products: cannot be learned from other statistical Identifiable Information (for example, • Quarterly Workforce Indicators sources and are therefore used in many name and address) voluntarily (QWI)—LEHD’s flagship data product is different arenas. For example, the QWI submitted by the commenter may be the Quarterly Workforce Indicators can be used as local-labor-market publicly accessible. Do not submit (QWI) which provides 32 statistical controls in regression analysis; to Confidential Business Information or indicators on employment, job creation identify long-term trends; to provide otherwise sensitive or protected and destruction, accessions (hires and local context in performance information. You may submit recalls), and separations (e.g., exits and evaluations; and for a host of other attachments to electronic comments in layoffs). These statistics are released for applications.

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II. Method of Collection hardware needed to report, or SUMMARY: The Department of The collection of data occurs in expenditures for accounting or records Commerce, in accordance with the accordance with the rules established by maintenance services required Paperwork Reduction Act of 1995 interagency agreements with the specifically by the collection.) (PRA), invites the general public and participating state partners or data Respondent’s Obligation: Voluntary. other Federal agencies to comment on Legal Authority: The authority to sharing agreements that have been proposed, and continuing information develop LEHD is 13 U.S.C. Section 6. Of established within the Census Bureau. collections, which helps us assess the course, confidentiality is assured by 13 For state partners, their data is impact of our information collection U.S.C. Section 9. submitted directly to the Census secure requirements and minimize the public’s servers where Personally Identifiable IV. Request for Comments reporting burden. The purpose of this notice is to allow for 60 days of public Information (PII) goes through a process We are soliciting public comments to to replace it with Protected comment preceding submission of the permit the Department/Bureau to: (a) collection to OMB. Identification Keys (PIK). This PVS Evaluate whether the proposed (Person Identification Validation DATES: To ensure consideration, information collection is necessary for comments regarding this proposed System) process also applies to all other the proper functions of the Department, administrative data that are used in the information collection must be received including whether the information will on or before November 24, 2020. LEHD infrastructure. For all other have practical utility; (b) Evaluate the ADDRESSES: Interested persons are required administration data, they are accuracy of our estimate of the time and invited to submit written comments by transferred or referenced by the LEHD cost burden for this proposed collection, mail to Maureen O’Reilly, Management production system. Data collection and including the validity of the Analyst, NIST at PRAcomments@ processing also includes activities such methodology and assumptions used; (c) doc.gov. Please reference OMB Control as validation of data quality. Evaluate ways to enhance the quality, Number 0693–0072 in the subject line of LEHD’s data products are not utility, and clarity of the information to your comments. Do not submit generated by a traditional survey. be collected; and (d) Minimize the Confidential Business Information or Rather, all input data required is reporting burden on those who are to otherwise sensitive or protected collected electronically as follows: respond, including the use of automated • information. State Unemployment Insurance (UI) collection techniques or other forms of and Quarterly Census of Employment information technology. FOR FURTHER INFORMATION CONTACT: and Wages (QCEW) are provided via Comments that you submit in Requests for additional information or encrypted File Transfer Protocol (FTP) response to this notice are a matter of specific questions related to collection through which each state LMI agency public record. We will include or activities should be directed to Mary sends these data directly to the Census summarize each comment in our request Clague, NIST SBIR Program Office, 301– Bureau. This transfer of data is governed to OMB to approve this ICR. Before 975–4188, [email protected]. by Memorandum of Understandings including your address, phone number, SUPPLEMENTARY INFORMATION: (MOUs) with each state partner. • email address, or other personal I. Abstract Federal and Census Administrative identifying information in your data are acquired from other directorates comment, you should be aware that The SBIR program was originally or divisions within the Census Bureau your entire comment—including your established in 1982 by the Small with which an internal agreement has personal identifying information—may Business Innovation Development Act been established for the use of the data. (Pub. L. 97–219), codified at 15 U.S.C. • be made publicly available at any time. Public Use data sets are acquired While you may ask us in your comment 638. It was then expanded and extended from publicly available websites or to withhold your personal identifying by the Small Business Research and public File Transfer Protocol (FTP) information from public review, we Development (R&D) Enhancement Act servers. cannot guarantee that we will be able to of 1992 (Pub. L. 102–564) and received III. Data do so. subsequent reauthorization and extensions that include Public Law 112– OMB Control Number: 0607–1001. Sheleen Dumas, 81, extending SBIR through September Form Number(s): None. Department PRA Clearance Officer, Office of 30, 2022. The US Small Business Type of Review: Regular submission, the Chief Information Officer, Commerce Administration (SBA) serves as the Request for an Extension, without Department. coordinating agency for the SBIR Change, of a Currently Approved [FR Doc. 2020–21233 Filed 9–24–20; 8:45 am] program. It directs the agency Collection. BILLING CODE 3510–07–P implementation of SBIR, reviews Affected Public: State government, progress, and reports annually to specifically labor market information Congress on its operation. bureaus and unemployment insurance DEPARTMENT OF COMMERCE The NIST SBIR Cover Sheet is the first administrators. page of each application that responds Agency Information Collection Estimated Number of Respondents: to the annual NIST SBIR Federal Activities; Submission to the Office of As defined in Table III–1. Funding Opportunity (FFO). The Management and Budget (OMB) for Estimated Time per Response: No information collected in the Cover Sheet Review and Approval; Comment more than 8 hours required to identify provides identifying information and Request; Small Business Innovation and send/post required data sets. demographic data for use in NIST’s Research (SBIR) Program Application Estimated Total Annual Burden annual report to the SBA on the Cover Sheet Hours: 1728 hours. program. Estimated Total Annual Cost to AGENCY: National Institute of Standards II. Method of Collection Public: $0. (This is not the cost of and Technology (NIST), Commerce. respondents’ time, but the indirect costs The information will be collected as ACTION: Notice of information collection, respondents may incur for such things part of the application process and will request for comment. as purchases of specialized software or be submitted through grants.gov.

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III. Data DEPARTMENT OF COMMERCE www.regulations.gov, please consult the resources provided on the website by OMB Control Number: 0693–0072. Bureau of Industry and Security clicking on ‘‘How to Use This Site.’’) Form Number(s): None. Reopening of Comment Period for Application for investigation: The Type of Review: Revision and Section 232 National Security public versions of the application for a extension of a current information Investigation of Imports of Vanadium section 232 investigation, the later- collection. submitted supplemental information, AGENCY: Bureau of Industry and and the exhibits, are available online at Affected Public: Business or other for- Security, Office of Technology http://www.regulations.gov under the profit organizations. Evaluation, U.S. Department of docket number BIS–2020–0002. Estimated Number of Respondents: Commerce. FOR FURTHER INFORMATION CONTACT: 100. ACTION: Notice on reopening of Industrial Studies Division, Bureau of Estimated Time Per Response: 30 comment period for previously Industry and Security, U.S. Department minutes. published notice of request for public of Commerce, (202) 482–5481, comments. Estimated Total Annual Burden [email protected]. Unless Hours: 50 hours. SUMMARY: On June 3, 2020, the Bureau otherwise protected by law, any of Industry and Security (BIS) published information received from the public Estimated Total Annual Cost to during the course of this investigation Public: $0. the Notice of Request for Public Comments on Section 232 National may be made publicly available. For Respondent’s Obligation: Mandatory. Security Investigation of Imports of more information about the section 232 Legal Authority: Vanadium. The June 3 notice specified program, including the regulations and that the Secretary of Commerce initiated the text of previous investigations, IV. Request for Comments an investigation to determine the effects please see www.bis.doc.gov/232. We are soliciting public comments to on the national security of imports of SUPPLEMENTARY INFORMATION: vanadium. This investigation was permit the Department/Bureau to: (a) Background Evaluate whether the proposed initiated under section 232 of the Trade information collection is necessary for Expansion Act of 1962, as amended. On June 3, 2020, (85 FR 34179), the the proper functions of the Department, The June 3 notice invited interested Bureau of Industry and Security (BIS) including whether the information will parties to submit written comments, published the Notice of Request for data, analyses, or other information have practical utility; (b) Evaluate the Public Comments on Section 232 pertinent to the investigation to the accuracy of our estimate of the time and National Security Investigation of Department of Commerce’s Bureau of Imports of Vanadium. The June 3 notice cost burden for this proposed collection, Industry and Security. The deadline for including the validity of the specified that on May 28, 2020, the written comments was July 20, 2020, Secretary of Commerce had initiated an methodology and assumptions used; (c) and the rebuttal comment deadline was investigation to determine the effects on Evaluate ways to enhance the quality, August 17, 2020. Today’s notice reopens the national security of imports of utility, and clarity of the information to the public comment period with a vanadium. This investigation was be collected; and (d) Minimize the deadline of October 9, 2020. BIS has initiated under section 232 of the Trade reporting burden on those who are to posted the initial application for a Expansion Act of 1962, as amended (19 respond, including the use of automated section 232 investigation into imports of U.S.C. 1862). (See the June 3 notice for collection techniques or other forms of vanadium, titled ‘‘Petition for Relief additional details on the investigation information technology. Under Section 232,’’ (dated November and the request for public comments.) 19, 2019) and supplemental information Comments that you submit in Reopening of Public Comment Period response to this notice are a matter of (dated April 2, 2020), as submitted by public record. We will include or the applicant, on http:// The June 3 notice included a summarize each comment in our request www.regulations.gov in the interests of comment period deadline of July 20, to OMB to approve this ICR. Before transparency and to allow additional 2020 and a rebuttal comment period including your address, phone number, public comment. Public versions of the deadline of August 17, 2020. The exhibits are available online (see the email address, or other personal Department of Commerce has ADDRESSES section). identifying information in your determined that it is warranted to DATES: comment, you should be aware that The due date for filing comments reopen the comment period for fourteen is October 9, 2020. your entire comment—including your days. While comments may be personal identifying information—may ADDRESSES: Submissions: All written submitted at any time, today’s notice be made publicly available at any time. comments on the notice must be specifies that comments must be addressed to Section 232 Vanadium received by October 9, 2020 to be While you may ask us in your comment Investigation and filed through the considered in the drafting of the final to withhold your personal identifying Federal eRulemaking Portal: http:// report. Today’s notice reopens the information from public review, we www.regulations.gov. To submit comment period for fourteen days to cannot guarantee that we will be able to comments via http:// allow for additional time for the public do so. www.regulations.gov, enter docket to submit comments on the Sheleen Dumas, number BIS–2020–0002 on the home investigation of imports of vanadium Department PRA Clearance Officer, Office of page and click ‘‘search.’’ The site will pursuant to BIS posting the November the Chief Information Officer, Commerce provide a search results page listing all 19, 2019 application for an investigation Department. documents associated with this docket. by U.S. Vanadium LLC and AMG [FR Doc. 2020–21179 Filed 9–24–20; 8:45 am] Find a reference to this notice and click Vanadium LLC and the April 2, 2020 on the link entitled ‘‘Comment Now!’’ supplemental information on http:// BILLING CODE 3510–13–P (For further information on using http:// www.regulations.gov.

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Posting of Application for Section 232 (POR) May 1, 2019, through April 30, administrative review, in whole or in Investigation 2020, based on the timely withdrawal of part, if a party that requested a review BIS has posted the application for an the requests for review. withdraws the request within 90 days of investigation into imports of vanadium DATES: Applicable May 1, 2020. the publication date of the notice of under section 232, titled ‘‘Petition for FOR FURTHER INFORMATION CONTACT: initiation of the requested review. The Relief Under Section 232’’, which was Jason Willoughby, AD/CVD Operations, petitioners and Huvis withdrew their submitted by U.S. Vanadium LLC and Office I, Enforcement and Compliance, requests within 90 days of the AMG Vanadium LLC on November 19, International Trade Administration, publication date of the notice of 2019, on http://www.regulations.gov. U.S. Department of Commerce, 1401 initiation. No other parties requested an BIS has also posted the supplemental Constitution Avenue NW, Washington, administrative review of the order. information to the application, titled DC 20230; telephone: 202–482–5509. Therefore, in accordance with 19 CFR ‘‘Supplement to Section 232 Petition’’, SUPPLEMENTARY INFORMATION: 351.213(d)(1), we are rescinding the which was submitted by U.S. Vanadium administrative review of the AD order LLC and AMG Vanadium LLC on April Background on polyester staple fiber from Korea 2, 2020, on http://www.regulations.gov. On May 1, 2020, Commerce published covering May 1, 2019, through April 30, BIS has posted this application for an a notice of opportunity to request an 2020, in its entirety. investigation and supplemental administrative review of the AD order Assessment information in the interests of on polyester staple fiber from Korea for transparency and is allowing for the POR of May 1, 2019, through April Commerce intends to instruct U.S. additional public comments related to 30, 2020.1 On May 29, 2019, Commerce Customs and Border Protection (CBP) to the application and supplemental received timely-filed requests from DAK assess antidumping duties on all information. The public versions of the Americas LLC and Auriga Polymers, appropriate entries of polyester staple exhibits are available online, except for Inc. (the petitioners) 2 for administrative fiber from Korea during the POR at rates those exhibits, which are noted with the reviews of Huvis Corporation (Huvis) equal to the cash deposit of estimated bracketed text [CBI] (see the ADDRESSES and Toray Chemical Korea, Inc. (Toray) antidumping duties required at the time section), containing confidential and from Huvis 3 for administrative of entry, or withdrawal from warehouse, business information, which were not review of itself, in accordance with for consumption in accordance with 19 susceptible to public summarization. section 751(a) of the Tariff Act of 1930, CFR 351.212(c)(1)(i). Commerce intends BIS has confirmed with U.S. as amended (the Act), and 19 CFR to issue appropriate assessment Vanadium LLC and AMG Vanadium 351.213(b). Commerce received no other instructions to CBP 15 days after the LLC that all confidential information, requests for administrative review. date of publication of this notice in the including business proprietary On July 10, 2020, pursuant to these Federal Register. information, has been properly redacted requests, and in accordance with 19 Notification to Importers (as indicated by the presence of CFR 351.221(c)(1)(i), Commerce This notice serves as a final reminder bracketing) from the public versions of initiated an administrative review of the to importers of their responsibility the application and supplemental AD order on polyester staple fiber from under 19 CFR 351.402(f)(2) to file a information posted on http:// Korea.4 On July 20, 2020, the petitioners certificate regarding the reimbursement www.regulations.gov. Where text has withdrew their request for an of antidumping duties prior to been omitted from what has been posted administrative review of Toray.5 On liquidation of the relevant entries the presence of confidential information August 3, 2020, the petitioners during this review period. Failure to is indicated by bracketing, with the withdrew their request for an comply with this requirement could confidential text omitted. administrative review of Huvis.6 On result in Commerce’s presumption that August 3, 2020, Huvis withdrew its Matthew S. Borman, reimbursement of antidumping duties request for an administrative review of occurred and the subsequent assessment Deputy Assistant Secretary for Export itself.7 Administration. of doubled antidumping duties. Rescission of Review [FR Doc. 2020–21243 Filed 9–24–20; 8:45 am] Administrative Protective Orders BILLING CODE 3510–33–P Pursuant to 19 CFR 351.213(d)(1), This notice also serves as a reminder Commerce will rescind an to all parties subject to administrative DEPARTMENT OF COMMERCE 1 See Antidumping or Countervailing Duty Order, protective order (APO) of their Finding, or Suspended Investigation; Opportunity responsibility concerning the International Trade Administration to Request Administrative Review, 85 FR 25394 disposition of proprietary information (May 1, 2020). [A–580–839] disclosed under APO in accordance 2 See Petitioners’ Letter, ‘‘Polyester Staple Fiber— with 19 CFR 351.305, which continues Review Request,’’ dated May 29, 2020. Polyester Staple Fiber From the 3 See Huvis’s Letter, ‘‘Certain Polyester Staple to govern business proprietary Republic of Korea; Rescission of fiber from Korea; Request for Administrative information. Timely written notification Antidumping Duty Administrative Review for 2019–2020 Period,’’ dated June 1, 2020. of the return/destruction of APO Review; 2019–2020 4 See Initiation of Antidumping and materials or conversion to judicial Countervailing Duty Administrative Reviews, 85 FR protective order is hereby requested. 41540 (July 10, 2020). AGENCY: Enforcement and Compliance, Failure to comply with the regulations International Trade Administration, 5 See Petitioners’ Letter, ‘‘Polyester Staple Fiber from Korea—Withdrawal of Review Request for and terms of an APO is a violation Department of Commerce. Toray Chemical Korea,’’ dated July 20, 2020. which is subject to sanction. SUMMARY: The Department of Commerce 6 See Petitioners’ Letter, ‘‘Polyester Staple Fiber (Commerce) is rescinding the from Korea—Withdrawal of Review Request for Notification to Interested Parties administrative review of the Huvis Corporation,’’ dated August 3, 2020. This notice is issued and published in 7 See Huvis’s Letter, ‘‘Certain Polyester Staple antidumping duty (AD) order on Fiber from Korea; Withdrawal of Request for accordance with sections 751(a)(1) and polyester staple fiber from the Republic Administrative Review for 2019–2020 Period,’’ 777(i)(1) of the Act, and 19 CFR of Korea (Korea) for the period of review dated August 2, 2019. 351.213(d)(4).

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Dated: September 18, 2020. Arrive in San Salvador, El Salvador International Trade Administration, James Maeder, Ice breaker reception for companies U.S. Department of Commerce, 1401 Deputy Assistant Secretary for Antidumping and core team members Constitution Avenue NW, Washington, and Countervailing Duty Operations. Monday, March 8 DC 20230; telephone: (202) 482–2312. [FR Doc. 2020–21194 Filed 9–24–20; 8:45 am] Regional SCO will kick off Regional SUPPLEMENTARY INFORMATION: BILLING CODE 3510–DS–P Security Strategies for Economic Prosperity conference to which the Background mission participants will attend and On July 2, 2020, Commerce published DEPARTMENT OF COMMERCE learn about regional priorities, the Preliminary Results of the policy and regulatory changes, and administrative review of the International Trade Administration projects throughout the region. antidumping duty order on steel nails Reception in the evening at the Chief from the UAE.1 The administrative Security Mission for Economic of Mission’s residence for review covers one producer/exporter of Prosperity in Central America; companies, government officials, the subject merchandise, MEM. We gave Correction and local private sector guests. interested parties an opportunity to Tuesday, March 9 AGENCY: Department of Commerce. comment on the Preliminary Results. One-on-one business matchmaking We received no comments. Hence, these ACTION: Notice; correction. appointments in El Salvador final results are unchanged from the Wednesday, March 10 2 SUMMARY: The United States Department Preliminary Results. Arrival in Guatemala or Honduras for of Commerce, International Trade matchmaking and other networking Scope of the Order Administration, published a document Friday, March 12 The merchandise covered by this in the Federal Register of April 10, End of Mission order includes certain steel nails having 2020, concerning the Security Mission a shaft length up to 12 inches. Certain for Economic Prosperity in El Salvador, * Note: The final schedule of steel nails include, but are not limited Guatemala, and Honduras, scheduled meetings, events, and site visits will depend on the availability of host to, nails made of round wire and nails from October 25–30, 2020. The that are cut. Certain steel nails may be document contained an incorrect government and business officials, specific goals of mission participants, of one piece construction or constructed deadline for submitting applications of two or more pieces. Certain steel nails and incorrect dates for the event. flight availability and ground transportation options. may be produced from any type of steel, FOR FURTHER INFORMATION CONTACT: and have a variety of finishes, heads, Dated: September 18, 2020. April Redmon, U.S. Commercial shanks, point types, shaft lengths and Service, U.S. Department of Commerce, Gemal Brangman, shaft diameters. Finishes include, but Tel: 703–235–0103, Email: Senior Advisor, Trade Missions, ITA Events are not limited to, coating in vinyl, zinc [email protected]. Management Task Force. (galvanized, whether by electroplating SUPPLEMENTARY INFORMATION: [FR Doc. 2020–21239 Filed 9–24–20; 8:45 am] or hot-dipping one or more times), BILLING CODE 3510–DR–P phosphate cement, and paint. Head Correction styles include, but are not limited to, In the Federal Register of April 10, flat, projection, cupped, oval, brad, 2020, in FR Doc. 2020–07544, on page DEPARTMENT OF COMMERCE headless, double, countersunk, and 20243, in the third column, correct the International Trade Administration sinker. Shank styles include, but are not ‘‘Background’’ caption to read: limited to, smooth, barbed, screw Due to recent developments in the [A–520–804] threaded, ring shank and fluted shank region, it has been determined that to styles. Screw-threaded nails subject to allow for optimal execution of Certain Steel Nails From the United this order are driven using direct force recruitment and event scheduling for Arab Emirates: Final Results of and not by turning the fastener using a the mission, the dates of the mission are Antidumping Duty Administrative tool that engages with the head. Point modified from October 25–30, 2020 to Review; 2018–2019 styles include, but are not limited to, March 7–12, 2021. As a result of the AGENCY: Enforcement and Compliance, diamond, blunt, needle, chisel and no shift of the event dates the date of the International Trade Administration, point. Certain steel nails may be sold in application deadline is also revised Department of Commerce. bulk, or they may be collated into strips from August 14, 2020 to January 8, 2021 or coils using materials such as plastic, SUMMARY: On July 2, 2020, the (and after that date if space remains and paper, or wire. Department of Commerce (Commerce) scheduling constraints permit). Certain steel nails subject to this order published the preliminary results of the Interested U.S. companies and trade are currently classified under the administrative review of the associations/organizations that have not Harmonized Tariff Schedule of the antidumping duty order on certain steel already applied are encouraged to do so. United States (HTSUS) subheadings nails (steel nails) from the United Arab The U.S. Department of Commerce will 7317.00.55, 7317.00.65, and 7317.00.75. review applications and make selection Emirates (UAE). The period of review (POR) is May 1, 2018 through April 30, decisions on a rolling basis in 1 See Certain Steel Nails from the United Arab accordance with the original Notice 2019. For the final results of this review, Emirates: Preliminary Results of Antidumping Duty we continue to find that Middle East Administrative Review; 2018–2019, 85 FR 39884 published at 85 FR 12259 (March 2, (July 2, 2020) (Preliminary Results), and 2020). The applicants selected will be Manufacturing Steel LLC (MEM) made sales of subject merchandise at less than accompanying Preliminary Decision Memorandum notified as soon as possible. The (PDM). normal value during the POR. proposed schedule is updated as 2 On July 21, 2020, Commerce tolled all deadlines follows *: DATES: Applicable September 25, 2020. in administrative reviews by 60 days. The deadline FOR FURTHER INFORMATION CONTACT: for the final results of this review is now December Proposed Timetable 29, 2020. See Memorandum, ‘‘Tolling of Deadlines Matthew Renkey, AD/CVD Operations, for Antidumping and Countervailing Duty Sunday, March 7 Office V, Enforcement and Compliance, Administrative Reviews,’’ dated July 21, 2020.

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Excluded from the scope of this order purposes, the written description of the review for all shipments of steel nails are steel nails specifically enumerated scope of this order is dispositive. from the UAE entered, or withdrawn and identified in ASTM Standard F Final Results of the Administrative from warehouse, for consumption on or 1667 (2011 revision) as Type I, Style 20 Review after the date of publication as provided nails, whether collated or in bulk, and by section 751(a)(2) of the Act of these whether or not galvanized. As a result of this administrative final results: (1) The cash deposit rate Also excluded from the scope of this review, we determine that the following for MEM will be 27.28 percent, the weighted-average dumping margin order are the following products: weighted-average dumping margin • exists for the POR: Non-collated (i.e., hand-drive or established in the final results of this bulk), two-piece steel nails having administrative review; (2) for plastic or steel washers (caps) already Weighted- merchandise exported by companies not assembled to the nail, having a bright or average Producer/exporter dumping covered in this review but covered in a galvanized finish, a ring, fluted or spiral margin prior segment of this proceeding, the shank, an actual length of 0.500″ to 8″ (percent) cash deposit rate will continue to be the inclusive; an actual shank diameter of 0.1015″ to 0.166″, inclusive; and an Middle East Manufacturing company-specific rate published for the actual washer or cap diameter of 0.900″ Steel LLC ...... 27.28 most recently-completed segment of this to 1.10″, inclusive; proceeding; (3) if the exporter is not a • non-collated (i.e., hand-drive or Assessment firm covered in this review, a prior bulk), steel nails having a bright or Pursuant to section 751(a)(2)(C) of the review, or the original investigation, but galvanized finish, a smooth, barbed or Tariff Act of 1930, as amended (the Act) the producer is, then the cash deposit ringed shank, an actual length of 0.500″ and 19 CFR 351.212(b), Commerce has rate will be the rate established for the to 4″, inclusive; an actual shank determined, and U.S. Customs and most recently completed segment of this diameter of 0.1015″ to 0.166″, inclusive; Border Protection (CBP) shall assess, proceeding for the producer of the and an actual head diameter of 0.3375″ antidumping duties on all appropriate subject merchandise; and (4) the cash to 0.50″, inclusive; entries of subject merchandise in deposit rate for all other producers or • wire collated steel nails, in coils, accordance with the final results of this exporters will continue to be 4.30 having a galvanized finish, a smooth, review. For MEM, because its weighted- percent, the all-others rate established barbed or ringed shank, an actual length average dumping margin is not zero or in the investigation, adjusted for the of 0.500″ to 1.75″, inclusive; an actual de minimis (i.e., less than 0.5 percent), export-subsidy rate in the companion shank diameter of 0.116″ to 0.166″, Commerce has calculated importer- countervailing duty investigation. These inclusive; and an actual head diameter specific antidumping duty assessment cash deposit requirements, when ″ ″ of 0.3375 to 0.500 , inclusive; rates. We calculated importer- (or imposed, shall remain in effect until • non-collated (i.e., hand-drive or customer-) specific ad valorem further notice. bulk), steel nails having a convex head antidumping duty assessment rates by (commonly known as an umbrella dividing the total amount of dumping Notification to Importers head), a smooth or spiral shank, a calculated for the importer’s examined galvanized finish, an actual length of sales by the total entered value of the This notice serves as a final reminder 1.75″ to 3″, inclusive; an actual shank same sales for that importer, in to importers of their responsibility diameter of 0.131″ to 0.152″, inclusive; accordance with 19 CFR 351.212(b)(1). under 19 CFR 351.402(f)(2) to file a and an actual head diameter of 0.450″ to However, for the reasons described in certificate regarding the reimbursement 0.813″, inclusive; our preliminary results, we intend to of antidumping duties prior to • corrugated nails. A corrugated nail issue assessment instructions to CBP on liquidation of the relevant entries is made of a small strip of corrugated a per-unit basis.3 during this POR. Failure to comply with steel with sharp points on one side; For entries of subject merchandise this requirement could result in • thumb tacks, which are currently during the POR produced by MEM for Commerce’s presumption that classified under HTSUS 7317.00.10.00; which it did not know its merchandise reimbursement of antidumping duties • fasteners suitable for use in powder- was destined for the United States, we occurred and the subsequent assessment actuated hand tools, not threaded and will instruct CBP to liquidate of double antidumping duties. threaded, which are currently classified unreviewed entries at the all-others rate Notification Regarding Administrative under HTSUS 7317.00.20 and if there is no rate for the intermediate 7317.00.30; company involved in the transaction. Protective Orders • certain steel nails that are equal to We intend to issue assessment This notice also serves as a reminder or less than 0.0720 inches in shank instructions to CBP 15 days after the diameter, round or rectangular in cross to parties subject to administrative date of publication of the final results of protective order (APO) of their section, between 0.375 inches and 2.5 review. inches in length, and that are collated responsibility concerning the return or with adhesive or polyester film tape Cash Deposit Requirements destruction of proprietary information backed with a heat seal adhesive; and The following cash deposit disclosed under APO in accordance • fasteners having a case hardness requirements for estimated antidumping with 19 CFR 351.305(a)(3), which greater than or equal to 50 HRC, a duties will be effective upon publication continues to govern business carbon content greater than or equal to of the notice of final results of this proprietary information in this segment 0.5 percent, a round head, a secondary of the proceeding. Timely written reduced-diameter raised head section, a 3 See Preliminary Results PDM at 11; see also notification of the return or destruction centered shank, and a smooth Memorandum, ‘‘Antidumping Duty Administrative of APO materials, or conversion to symmetrical point, suitable for use in Review of Certain Steel Nails from the United Arab judicial protective order, is hereby Emirates: Preliminary Results Analysis requested. Failure to comply with the gas-actuated hand tools. Memorandum for Middle East Manufacturing Steel While the HTSUS subheadings are LLC,’’ dated June 25, 2020 at 4–5, unchanged in regulations and terms of an APO is a provided for convenience and customs these final results. violation subject to sanction.

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Notification to Interested Parties FOR FURTHER INFORMATION CONTACT: Rob take marine mammals incidental to Commerce is issuing and publishing Pauline, Office of Protected Resources, marine site characterization surveys in these results in accordance with NMFS, (301) 427–8401. Electronic the Atlantic Ocean in the area of the sections 751(a)(1) and 777(i) of the Act copies of the application and supporting Commercial Leases of Submerged Lands and 19 CFR 351.221(b)(5). documents, as well as a list of the for Renewable Energy Development on references cited in this document, may the Outer Continental Shelf (OCS–A Dated: September 21, 2020. be obtained online at: https:// 0520 and OCS–A 0512) and along Jeffrey I. Kessler, www.fisheries.noaa.gov/permit/ potential submarine cable routes to a Assistant Secretary for Enforcement and incidental-take-authorizations-under- landfall location in Massachusetts, Compliance. marine-mammal-protection-act. In case Rhode Island, Connecticut, New York or [FR Doc. 2020–21195 Filed 9–24–20; 8:45 am] of problems accessing these documents, New Jersey. A revised application was BILLING CODE 3510–DS–P please call the contact listed above. received on March 31, 2020. NMFS SUPPLEMENTARY INFORMATION: deemed that request to be adequate and complete. On May 22, 2020 Equinor DEPARTMENT OF COMMERCE Background notified NMFS of a revision to their The MMPA prohibits the ‘‘take’’ of planned activities and submitted a National Oceanic and Atmospheric marine mammals, with certain revised IHA application reflecting the Administration exceptions. sections 101(a)(5)(A) and (D) change. Equinor’s request is for the take [RTID 0648–XA396] of the MMPA (16 U.S.C. 1361 et seq.) of 17 marine mammal stocks by Level B direct the Secretary of Commerce (as harassment only. Neither Equinor nor Takes of Marine Mammals Incidental to delegated to NMFS) to allow, upon NMFS expects serious injury or Specified Activities; Taking Marine request, the incidental, but not mortality to result from this activity and Mammals Incidental to Marine Site intentional, taking of small numbers of the activity is expected to last no more Characterization Surveys Off of marine mammals by U.S. citizens who than one year, therefore, an IHA is Massachusetts, Rhode Island, engage in a specified activity (other than appropriate. Connecticut, New York and New commercial fishing) within a specified Description of Activity Jersey geographical region if certain findings are made and either regulations are Equinor plans to conduct marine site AGENCY: National Marine Fisheries issued or, if the taking is limited to characterization surveys, including Service (NMFS), National Oceanic and harassment, a notice of a proposed high-resolution geophysical (HRG) and Atmospheric Administration (NOAA), incidental take authorization may be geotechnical surveys, in the area of Commerce. provided to the public for review. Commercial Leases of Submerged Lands ACTION: Notice; issuance of an incidental Authorization for incidental takings for Renewable Energy Development on harassment authorization. shall be granted if NMFS finds that the the Outer Continental Shelf OCS–A taking will have a negligible impact on 0520 and OCS–A 0512 (Lease Areas) SUMMARY: In accordance with the the species or stock(s) and will not have and along potential submarine cable regulations implementing the Marine an unmitigable adverse impact on the routes offshore Massachusetts, Rhode Mammal Protection Act (MMPA) as availability of the species or stock(s) for Island, Connecticut, New York and New amended, notification is hereby given taking for subsistence uses (where Jersey. that NMFS has issued an incidental relevant). Further, NMFS must prescribe The purpose of the planned surveys is harassment authorization (IHA) to the permissible methods of taking and to support the preliminary site Equinor Wind, LLC (Equinor) to other ‘‘means of effecting the least characterization, siting, and engineering incidentally harass, by Level B practicable adverse impact’’ on the design of offshore wind project facilities harassment only, marine mammals affected species or stocks and their and submarine cables within the Lease during site characterization surveys off habitat, paying particular attention to Areas and in export cable route areas the coast in the Atlantic Ocean in the rookeries, mating grounds, and areas of (ECRAs). As many as two survey vessels area of the Commercial Leases of similar significance, and on the may operate concurrently as part of the Submerged Lands for Renewable Energy availability of the species or stocks for planned surveys. Underwater sound Development on the Outer Continental taking for certain subsistence uses resulting from Equinor’s planned Shelf (OCS–A 0520 and OCS–A 0512) (referred to in shorthand as surveys has the potential to result in the and along potential submarine cable ‘‘mitigation’’); and requirements incidental take of marine mammals in routes to a landfall location in pertaining to the mitigation, monitoring the form of behavioral harassment. Massachusetts, Rhode Island, and reporting of the takings are set forth. The HRG survey activities planned by Connecticut, New York or New Jersey. Equinor are described in detail in the DATES: This authorization is effective for Summary of Request notice of proposed IHA (85 FR 37848; one year from September 20, 2020 to On January 30, 2020, NMFS received June 24, 2020). The HRG equipment September 19, 2021. a request from Equinor for an IHA to planned for use is shown in Table 1. TABLE 1—SUMMARY OF VESSEL-BASED HRG SURVEY EQUIPMENT PLANNED FOR USE BY EQUINOR WITH THE POTENTIAL TO RESULT IN THE TAKE OF MARINE MAMMALS

Operating SL rms SL pk (dB re 1 Pulse duration Repetition rate Beam width HRG equipment type Equipment (dB re 1 μ frequency μPa m) Pa m) (milli-second) (Hz) (degrees)

Medium Sub-bottom Geo-Source 400 Tip 0.25 to 3.25 ...... 203 213 2 4 Omni-directional. Profiler 2. Sparker Source (800 J). 1 Sound source characteristics from manufacturer specifications.

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2 SLs as reported for the ELC820 sparker in Crocker and Fratantonio (2016) which represents the most applicable proxy to the Geo-Source 800–J sparker expected for use during Equinor’s planned surveys.

As described above, a detailed proposed notice and another recently exposure level thresholds. The description of the planned HRG surveys proposed IHA. In the recently proposed Commission recommended that NMFS is provided in the Federal Register IHA (85 FR 36537; June 17, 2020) the specify the input parameters and notice for the proposed IHA (85 FR applicant (Dominion Energy) used a thresholds used to validate Level A 37848; June 24, 2020). Since that time, source level of 200 dB re 1 mPa root- harassment zones provided by the no changes have been made to the mean-square (rms) and 210 dB re 1 mPa action proponent using NMFS’s user planned HRG survey activities. peak based on manufacturers data. spreadsheet. Therefore, a detailed description is not Equinor and NMFS proposed to use a Response: NMFS has provided User provided here. Please refer to that source level of 203 dB re 1 mPa rms and Spreadsheet inputs for the GeoMarine Federal Register notice for the 213 dB re 1 mPa peak for this IHA based Dual 400 sparker 800J as shown in Table description of the specified activity. on source levels for the ELC820 sparker 4. Inputs were not provided for the Mitigation, monitoring, and reporting as listed in Crocker and Fratantonio USBL since impacts to such devices are measures are described in detail later in (2016). considered to be de minimis based on this document (please see Mitigation Response: NMFS encourages small zone sizes. This information and Monitoring and Reporting below). applicants to use data from Crocker and requested by the commenter is Fratantonio (2016), as we believe it to be contained in Equinor’s application. Comments and Responses the best available data regarding source Comment 4: The Commission A notice of NMFS’s proposal to issue levels. If information for specific recommended that NMFS use its revised an IHA to Equinor was published in the equipment is not available in that user spreadsheet, in-beam source levels, Federal Register on June 24, 2020 (85 document, the applicant should use the actual beamwidth, and the FR 37848). That notice described, in manufacturer data. In this instance, maximum water depth in the Survey detail, Equinor’s activity, the marine Equinor felt that the manufacturer’s data Area to estimate the Level B harassment mammal species that may be affected by did not accurately reflect how the zones for all future proposed the activity, and the anticipated effects device was going to be utilized and, authorizations involving HRG sources. on marine mammals. During the 30-day therefore, an appropriate proxy source Response: NMFS concurs with the public comment period, NMFS received from Crocker and Fratantonio (2016) Commission’s recommendation. NMFS’ comment letters from the Marine was used. Note that the specifications interim guidance for determining Level Mammal Commission (Commission) used by Equinor results in a Level B B harassment zones from HRG sources and a group of environmental non- harassment isopleth (141 m) that is includes all of the parameters listed governmental organizations (ENGOs). more conservative than is found in the above. We recommend that applicants The letter was submitted jointly by the proposed IHA for Dominion (100 m). No employ these tools, as we believe they Natural Resources Defense Council, revisions to Equinor’s final IHA are are generally the best methodologies National Wildlife Federation, required. While NMFS appreciates the that are currently available. Conservation Law Foundation, Mass Commission’s call for consistency in the Comment 5: The Commission Audubon, Wildlife Conservation application of available data across recommended that NMFS consult with Society, NY4WHALES, Defenders of applicants, it would not be appropriate its acoustic experts to determine how to Wildlife, Surfrider Foundation, to assume that all surveys will use a estimate Level A harassment zones Connecticut Audubon Society, WDC particular source in the same way and, accurately, what Level A harassment Whale and Dolphin Conservation, therefore, it may be appropriate (as is zones are actually expected, and International Marine Mammal Project of the case here) to use different data whether it is necessary to estimate Level Earth Island Institute, Inland Ocean sources or values to address these A harassment zones for HRG surveys in Coalition, Gotham Whale, International differences. general. Fund for Animal Welfare, Marine Comment 3: The Commission Response: NMFS concurs with the Mammal Alliance Nantucket, Oceanic observed that neither Equinor nor Commission’s recommendation and Preservation Society, and Sanctuary NMFS specified in a separate table in works with our acoustic experts to Education Advisory Specialists. NMFS the proposed IHA what input evaluate the appropriate methods for has posted the comments online at: parameters and thresholds were used to determining the potential for Level A www.fisheries.noaa.gov/national/ estimate the Level A harassment zones, harassment from HRG surveys. marine-mammal-protection/incidental- which is inconsistent with other Comment 6: To ensure that in-situ take-authorizations-other-energy- recently proposed authorizations that data are collected and analyzed activities-renewable. A summary of the used NMFS’s user spreadsheet. The appropriately, the Commission public comments received from the Commission noted that Equinor, and in recommended that NMFS and (Bureau Commission and ENGOs as well as turn NMFS, underestimated the Level A of Ocean Energy Management (BOEM) NMFS’ responses to those comments are harassment zones. According to the expedite efforts to develop and finalize below. Please see the comment letters, Commission, the Level A harassment methodological and signal processing available online, for full details of the zones should have been based on the standards for HRG sources. comments and rationale. information provided in Table 2, an Response: NMFS concurs with the Comment 1: The Commission average vessel speed of 4 knots (85 FR Commission that methodological and recommended that NMFS use consistent 37848; June 24, 2020), and the signal processing standards for HRG source levels for the same equipment impulsive thresholds and would have sources is warranted and is working on that operates under the same parameters resulted in a Level A harassment zone developing such standards. However, amongst the various action proponents. of 1.2 m rather than <1 m for low the effort is resource-dependent and The Commission noted that NMFS used frequency (LF) cetaceans and 8.4 m NMFS cannot ensure such standards inconsistent source levels for the rather than <1 m for high frequency will be developed within the GeoMarine Dual 400 sparker 800J in the (HF) cetaceans for the cumulative sound Commission’s preferred time frame.

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Comment 7: The Commission However, NMFS has evaluated whether operating on the open water to suddenly recommended that Level B harassment taking needs to be authorized for those stop operating is practicable, and it is takes should be discounted for Equinor, sources that are not considered de unclear what mitigation benefit would consistent with the approach NMFS has minimis, including sparkers and result from such a requirement in taken for Dominion and considering that boomers, factoring into consideration relation to vessel strike. The the revised Level B harassment zone is the effectiveness of mitigation and Commission does not suggest what the same size or smaller than the shut- monitoring measures, and we have measures other than those prescribed in down zones. For the same reason, the determined that implementation of this IHA would potentially prove more Commission also recommended that mitigation and monitoring measures effective in reducing the risk of strike. NMFS follow a consistent approach cannot ensure that all take can be Therefore, we have not included this across authorizations regarding the avoided during all HRG survey activities requirement in the authorization. NMFS discounting of takes by Level B under all circumstances at this time. If retains authority to modify the IHA and harassment. and when we are able to reach such a cease all activities immediately based Response: NMFS generally concurs conclusion, we will re-evaluate our on a vessel strike and will exercise that with the Commission’s position determination that incidental take authority if warranted. regarding discounting Level B authorization is warranted for these Comment 12: The Commission harassment takes for species in which activities. considers the renewal process to be the shut-down zones are equal to or Comment 11: The Commission inconsistent with the statutory greater than the Level B harassment recommended that NMFS require requirements under section 101(a)(5)(D) zones. We agree that this tenet applies Equinor to report as soon as possible of the MMPA and recommend that during daylight. However, during night and cease project activities immediately NMFS refrain from issuing renewals for operations it is possible that some in the event of an unauthorized injury any authorization. unseen number of marine mammals or mortality of a marine mammal, Response: In prior responses to could enter into the Level B harassment including from a vessel strike, until comments about IHA Renewals (e.g., 84 zone. Additionally, since shutdown is NMFS’s Office of Protected Resources FR 52464; October 02, 2019), NMFS has waived for certain dolphin genera, take and the New England/Mid-Atlantic explained how the Renewal process, as of these species could occur during both Regional Stranding Coordinator implemented, is consistent with the day and night operations. Note that in determine whether additional measures statutory requirements contained in Equinor’s case the Level B harassment are necessary to minimize the potential section 101(a)(5)(D) of the MMPA and, zone (141 m) was not revised for reasons for additional unauthorized takes. therefore, we plan to continue to issue stated in response to Comment 1 and is Response: NMFS has imposed a suite qualifying Renewals when the larger than the shutdown zone (100 m). of measures in this IHA to reduce the requirements outlined on our website Therefore, discount of takes by Level B risk of vessel strikes and does not are met. Thus, NMFS agrees with the harassment by Equinor and Dominion anticipate, and has not authorized, any Commission’s recommendation that we are not directly comparable. takes associated with vessel strikes. should not issue a Renewal for any Comment 9: The Commission Further, in the event of a ship strike authorization unless it is consistent recommended that NMFS evaluate the Equinor is required both to collect and with the procedural requirements impacts of sound sources consistently report an extensive suite of information specified in section 101(a)(5)(D)(iii) of across all applications and provide that NMFS has identified in order to the MMPA. notice in its guidance to applicants and evaluate the ship strike, and to notify Additionally, regarding the to the public regarding those sources OPR and the New England/Mid-Atlantic recommendation to use abbreviated that it has determined to be de minimis. Regional Stranding Coordinator as soon notices, we agree that they are a useful Response: NMFS concurs with the as feasible. At that point, as the tool by which to increase efficiency in Commission’s recommendation and is Commission suggests, NMFS would conjunction with the use of Renewals, currently working together with BOEM work with the applicant to determine but we disagree that their use alone to develop a tool to assist applicants and whether there are additional mitigation would equally fulfill NMFS’ goal to NMFS in more quickly and efficiently measures or modifications that could maximize efficiency and provide identifying activities and mitigation further reduce the likelihood of vessel regulatory certainty for applicants, with approaches that are unlikely to result in strike for the activities. However, given no reduction in protections for marine take of marine mammals. the existing requirements and the very mammals. The Renewal process, with Comment 10: The Commission low likelihood of a vessel strike its narrowly described qualifying recommended that NMFS consider occurring, the protective value of actions, specific issuance criteria, and whether, in situations involving HRG ceasing operations while NMFS and additional 15-day comment period, surveys, incidental harassment Equinor discuss potential additional allows for NMFS to broadly commit to authorizations are necessary given the mitigations in order to avoid a second a 60-day processing time. This small size of the Level B harassment highly unlikely event during that commitment, which would not be zones, the various required shutdown limited period is unclear. possible in the absence of this narrow requirements, and BOEM’s lease- NMFS does not expect that the definition and the 15-day additional stipulated requirements. The proposed activities, including HRG comment period, provides both a Commission recommended that NMFS surveys, cable-lay activities and offshore meaningfully shortened processing time should evaluate whether take needs to pile driving activities, have the potential and regulatory certainty for planning be authorized for those sources that are to result in injury or mortality to marine purposes. Increasing the comment not considered de minimis, including mammals and therefore does not agree period for Renewals to 30 days would sparkers, and for which implementation that a blanket requirement for project increase processing time by 25% and is of the various mitigation measures activities to cease would be warranted. unnecessary, given the legal sufficiency should be sufficient to avoid Level B While injury or mortality to marine of the process as it stands, as described harassment takes. mammals is possible due to vessel above, and no additional protections for Response: NMFS concurs with the strike, NMFS does not agree that a marine mammals that would result. Commission’s recommendation. requirement for a vessel that is NMFS uses abbreviated notices when

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proposed actions do not qualify for While there will be additional for six months each year in an area with Renewals, but still allow for reliance documents submitted with a Renewal active offshore wind energy projects upon previous documentation and request, for a qualifying Renewal these under development is simply not analyses. These abbreviated notice will be limited to documentation that practicable. We also determined that projects, which deviate from the narrow NMFS will make available and use to seasonal restrictions are not warranted qualifications of a Renewal, require verify that the activities are identical to since impacts to North Atlantic right some additional time for the analyst to those in the initial IHA, are nearly whales from HRG surveys would be appropriately review the small changes identical such that the changes would limited to behavioral harassment (i.e., from the initial IHA and further have either no effect on impacts to Level B harassment) in the form of necessitate the 30-day public review marine mammals or decrease those temporary avoidance of the area. Such required for a new IHA. NMFS has impacts, or are a subset of activities responses that are considered to be of evaluated the use of both the Renewal already analyzed and authorized but not low severity and with no lasting and abbreviated notice processes, as completed under the initial IHA. NMFS biological consequences (e.g., Ellison et well as the associated workload for will also confirm, among other things, al., 2012). each, and determined that using both of that the activities will occur in the same NMFS has required applicants to these processes provides maximum location; involve the same species and observe seasonal restrictions when such efficiency for the agency and applicants, stocks; provide for continuation of the actions are both warranted and regulatory certainty, and appropriate same mitigation, monitoring, and practicable. NMFS issued an IHA to protections for marine mammals reporting requirements; and that no new Vineyard Winds (85 FR 26940; May 6, consistent with the statutory standards. information has been received that 2020) for marine site characterization Using the abbreviated notice process, would alter the prior analysis. The surveys off the southern New England however, is unnecessary and Renewal request will also contain a coast. NMFS reviewed the best available unwarranted for projects that meet the preliminary monitoring report, but that North Atlantic right whale abundance narrow qualifications for a Renewal is to verify that effects from the data for the planned survey area IHA. activities do not indicate impacts of a (Roberts et al. 2017; Kraus et al. 2016) As previously noted, we have found scale or nature not previously analyzed. and determined that North Atlantic that the Renewal process is consistent The additional 15-day public comment right whale abundance is significantly with the statutory requirements of the period provides the public an higher in the period starting in late MMPA and, further, promotes NMFS’ opportunity to review these few winter and extending to late spring in goals of improving conservation of documents, provide any additional specific sections of the survey area. marine mammals and increasing pertinent information and comment on Based on this information NMFS defined seasonal restriction areas that efficiency in the MMPA compliance whether they think the criteria for a Vineyard Wind must follow when process. Therefore, we intend to Renewal have been met. Between the conducting HRG surveys. Survey continue implementing the Renewal initial 30-day comment period on these activities may only occur in the Cape process. same activities and the additional 15 days, the total comment period for a Cod Bay SMA and off of the Race Point Comment 13. The NGOs objected to Renewal is 45 days. SMA during the months of August and NMFS’ process to consider extending Comment 14: The ENGOs September to ensure sufficient buffer any one-year IHA with a truncated 15- recommended NMFS establish seasonal between the SMA restrictions (January day comment period as contrary to the restrictions on site assessment and to May 15) and known seasonal MMPA. characterization activities in the Project occurrence of North Atlantic right Response: NMFS’ IHA Renewal Area with the potential to injure or whales north and northeast of Cape Cod process meets all statutory harass the North Atlantic right whale (fall, winter, and spring). requirements. All IHAs issued, whether between November 1, 2020 and April Vineyard Wind planned to operate up an initial IHA or a Renewal IHA, are 30, 2021. This recommendation is in to nine survey vessels concurrently but valid for a period of not more than one addition to the existing seasonal they must limit to three the number of year. And the public has at least 30 days restrictions detailed in the Proposed survey vessels that will operate to comment on all proposed IHAs, with IHA (i.e., Off Race Point Seasonal concurrently from March through June a cumulative total of 45 days for IHA Management Area (‘‘SMA’’) and Cape within the lease areas (OCS–A 0501 and Renewals. As noted above, the Request Cod Bay SMA from January through 0487) and OECC areas north of the lease for Public Comments section made clear May and in the Great South Channel areas up to, but not including, coastal that the agency was seeking comment SMA from April through July 3). and bay waters. An additional seasonal on both the initial proposed IHA and Response: NMFS appreciates the restriction area was defined south of the potential issuance of a Renewal for value of seasonal restrictions under Nantucket and is effect from December this project. Because any Renewal (as certain circumstances. As part of the to February in the area. The seasonal explained in the Request for Public 2008 NOAA Ship Strike Rule (73 FR restrictions described above will help to Comments section) is limited to another 60173; October 10, 2008) NMFS has reduce both the number and intensity of year of identical or nearly identical designated SMAs along the eastern North Atlantic right whale takes. NMFS activities in the same location (as seaboard based on known North was concerned that operating more than described in the Description of Proposed Atlantic right whale movement, three vessels concurrently within a Activity section) or the same activities distribution, and aggregation patterns. relatively small area could negatively that were not completed within the one- Additionally, temporary dynamic impact North Atlantic right whales. year period of the initial IHA, reviewers management areas (DMAs) are Given the elevated concentrations of have the information needed to established whenever an aggregation of North Atlantic right whales in the effectively comment on both the three or more whales are sighted within delineated areas, NMFS determined that immediate proposed IHA and a possible 2–3 miles of each other outside of active seasonal restrictions were warranted. one-year Renewal, should the IHA SMAs. Note that SELC proposes to NMFS also worked with Vineyard Wind holder choose to request one in the prohibit all HRG activities across an to ensure that the measures were coming months. expansive area. Halting all HRG surveys practicable.

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Comment 15: The ENGOs implement. In consideration of potential potentially have reduced impacts). recommended that NMFS should effectiveness of the recommended Additionally, localization and range require developers to operate sub- measure and its practicability for the detection can be challenging under bottom profilers at power settings that applicant, NMFS has determined that certain scenarios. For example, achieve the lowest practicable source restricting survey operations to daylight odontocetes are fast moving and often level for the objective. hours when visibility is unimpeded is travel in large or dispersed groups Response: Equinor has selected the not warranted or practicable in this which makes localization difficult. In equipment necessary to achieve their case. addition, the ability of PAM to detect objectives. We have evaluated the Comment 17: The ENGOs baleen whale vocalizations is further effects expected as a result of use of this recommended that developers should be limited due to being deployed from the equipment, made the necessary required to monitor an exclusion zone stern of a vessel, which puts the PAM findings, and imposed mitigation (EZ) for the North Atlantic right whale hydrophones in proximity to propeller requirements sufficient to achieve the of 1,000 m and 500 m for other noise and low frequency engine noise least practicable adverse impact on the endangered and protected large whale which can mask the low frequency affected species and stocks of marine species. sounds emitted by baleen whales, mammals. It is not within NMFS’ Response: Regarding the including North Atlantic right whales. purview to make judgments regarding recommendation for 500-m EZ for We also note that the effects to North what constitutes the ‘‘lowest practicable endangered and protected marine Atlantic right whales, and all marine source level’’ for an operator’s survey mammals and 1,000-m EZ specifically mammals, from the types of surveys objectives. for North Atlantic right whales, NMFS authorized in this IHA are expected to Comment 16: The ENGOs has determined that the 500-m EZ, as be limited to low level behavioral recommended that surveys should not required in the IHA, is sufficiently harassment even in the absence of be done at night or during times of poor protective. We note that the 500-m EZ mitigation; no injury is expected or visibility to maximize the probability for North Atlantic right whales exceeds authorized. that the North Atlantic right whale and the modeled distance to the largest Additionally, since Equinor’s PSOs other endangered and protected large Level B harassment isopleth distance will be on duty only during daylight whale species are detected and (141 m) by a factor of more than three. operations night vision equipment is not confirmed clear of the exclusion zone. Thus, we are not requiring shutdown if required. This is standard practice Response: We acknowledge the a North Atlantic right whale is sighted during HRG surveys and is discussed in limitations inherent in detection of beyond 500-m or other marine mammal greater detail below. marine mammals at night. However, no is observed beyond 100 m. injury is expected to result even in the Comment 18: The ENGO’s Comment 19: The ENGOs absence of mitigation, given the very recommended that monitoring should recommended that four PSOs should be small estimated Level A harassment consist of a combination of visual required to implement a two-on/two-off zones. Any potential impacts to marine monitoring by PSOs and passive shift schedule so no single PSO is responsible for monitoring more than mammals authorized for take would be acoustic monitoring at all times that ° limited to short-term behavioral survey work is underway. 180 . responses. Restricting surveys in the Response: There are several reasons Response: NMFS does not agree with manner suggested by the commenters why we do not agree that use of PAM the commenters that a minimum of four may reduce marine mammal exposures is warranted for 24-hour HRG surveys. PSOs should be required, following a by some degree in the short term, but While NMFS agrees that PAM can be an two-on/two-off rotation, to meet the would not result in any significant important tool for augmenting detection MMPA requirement that mitigation reduction in either intensity or duration capabilities in certain circumstances, its must effect the least practicable adverse of noise exposure. Vessels would also utility in further reducing impact for impact upon the affected species or potentially be on the water for an Equinor’s proposed HRG survey stocks and their habitat. NMFS typically extended time introducing noise into activities is limited. First, for this requires that a single PSO must be the marine environment. The activity, the area expected to be stationed at the highest vantage point restrictions recommended by the ensonified above the Level B and engaged in general 360-degree ENGOs could result in the surveys harassment threshold is relatively small scanning during daylight hours. The spending increased time on the water, (a maximum of 141 m as described in monitoring reports submitted to NMFS which may result in greater overall the Estimated Take section)—this have demonstrated that PSOs active exposure to sound for marine mammals reflects the fact that, to start with, the only during daylight operations are able and increase the risk of a vessel strike; source level is comparatively low and to detect marine mammals and thus the commenters have not the intensity of any resulting impacts implement appropriate mitigation demonstrated that such a requirement would be lower level and, further, it measures. would result in a net benefit. means that inasmuch as PAM will only Comment 20: The ENGOs suggested Additionally, restricting the applicant to detect a portion of any animals exposed that it should be NMFS’ top priority to daylight operations would have the within a zone, the overall probability of consider any initial data from state potential to result in lengthy shutdowns PAM detecting an animal in the monitoring efforts, passive acoustic of the survey equipment, which could harassment zone is low—together these monitoring data, opportunistic marine result in the applicant failing to collect factors support the limited value of mammal sightings data, satellite the data they have determined is PAM for use in reducing take with telemetry, and other data sources, necessary and, subsequently, the need smaller zones. PAM is only capable of because the models used by NMFS do to conduct additional surveys the detecting animals that are actively not adequately capture increased use of following year. This would result in vocalizing, while many marine mammal the survey areas by North Atlantic right significantly increased costs incurred by species vocalize infrequently or during whales. Further, these commenters state the applicant. Thus, the restriction certain activities, which means that only that the density models NMFS uses suggested by the commenters would not a subset of the animals within the range result in an underestimate of take, and be practicable for the applicant to of the PAM would be detected (and do not fully reflect the abundance,

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distribution, and density of marine regulations (54 FR 40338; September 29, monitoring because it was presumed to mammals for the U.S. East Coast. 1989) states in response to comments be ineffective. However, as night vision Response: NMFS will review any that the impacts from other past and technology continues to improve it may recommended data sources and will ongoing anthropogenic activities are to be considered effective at some point. If continue to use the best available be incorporated into the negligible an applicant voluntarily proposes to information. We welcome future input impact analysis via their impacts on the employ PSOs at night, we include the from interested parties on data sources baseline. Accordingly, NMFS here has measure as part of the IHA. Similarly, if that may be of use in analyzing the factored into its negligible impact pre-clearance and ramp-up operations potential presence and movement analysis the impacts of other past and are to be monitored at night, then PSOs patterns of marine mammals, including ongoing anthropogenic activities via should be provided with night vision North Atlantic right whales, in New their impacts on the baseline (e.g., as equipment. England waters. NMFS will review any reflected in the density/distribution and Comment 25: The ENGOs recommended data sources and will status of the species, population size recommended that NMFS develop, and continue to use the best available and growth rate, and other relevant subsequently require, a robust and information. NMFS used the best stressors). effective real-time monitoring and scientific information available at the Comment 23: The ENGOs mitigation system for North Atlantic time the analyses for the proposed IHA recommended that NMFS make right whales and other endangered and were conducted—in this case the available information regarding source protected species (e.g., fin whales, sei marine mammal density models levels and the reflection of sound from whales, humpback whales). developed by the Duke Marine Surveyor Remotely Operated Vehicle Response: NMFS is generally Geospatial Ecology Lab (MGEL) (Roberts (SROVs) to allow a full evaluation of the supportive of this concept. A network of et al. 2016, 2017, 2018)—to inform our effectiveness of SROVs in entirely near real-time baleen whale monitoring determinations in the proposed IHA. avoiding harassment of marine devices are active or have been tested in The ENGOs are correct in their mammals. portions of New England and Canadian statement that North Atlantic right Response: SROVs contain the same waters. These systems employ various whale distribution has shifted in recent types of HRG equipment that are digital acoustic monitoring instruments years. In fact, a new North Atlantic right commonly found on full-size survey which have been placed on autonomous whale density model was recently vessels. Therefore, the source levels and platforms including slocum gliders, released by Roberts et al (2020). The directionality of specific equipment wave gliders, profiling floats and model shows approximately double the located on SROVs should be the same moored buoys. Systems that have density of North Atlantic right whales in as when it is operating from a survey proven to be successful will likely see the activity area as was considered in vessel. The operating parameters and increased use as operational tools for the proposed IHA. We have adjusted the specifications associated with HRG many whale monitoring and mitigation take estimates accordingly in the final equipment is generally available from applications. IHA. device manufacturers or can be found in NOAA Fisheries recently published Comment 21: The ENGOs advised studies that quantified characteristics of ‘‘Technical Memorandum NMFS to develop a dataset that sounds radiated by commercial marine NMFS-OPR-64: North Atlantic Right accurately reflects marine mammal geophysical survey systems (e.g., Whale Monitoring and Surveillance: presence for future IHAs. Crocker and Fratantonio 2016). As the Report and Recommendations of the Response: NMFS has relied on the ENGOs noted, SROV sound sources are National Marine Fisheries Service’s best available science in issuing this generally downward facing and located Expert Working Group’’ which is IHA, but we generally agree with the at a depth of no more than 6 m above available at: https:// ENGOs and welcome the opportunity to the seabed while actively surveying. www.fisheries.noaa.gov/resource/ participate in fora where implications of Given the beam direction and shallow document/north-atlantic-right-whale- such data and development of a dataset operational depths, it is highly unlikely monitoring-and-surveillance-report-and- would be discussed. a marine mammal would swim directly recommendations. This report Comment 22: The ENGOs under an SROV and be exposed to summarizes a workshop NOAA recommended that NMFS should sound at levels that could result in Fisheries convened to address objectives carefully analyze the cumulative injury or behavioral modification. related to monitoring North Atlantic impacts on the North Atlantic right Comment 24: The ENGOs noted that right whales and presents the Expert whale and other protected species from Equinor committed to a number of Working Group’s recommendations for a the proposed survey activities and other mitigation measures in the IHA comprehensive monitoring strategy to survey activities contemplated in other application (e.g., passive acoustic guide future analyses and data lease areas. monitoring, infrared equipment) that are collection. Among the numerous Response: The MMPA grants not required by the Proposed IHA. The recommendations found in the report, exceptions to its broad take prohibition ENGOs recommended that NMFS the Expert Working Group encouraged for a ‘‘specified activity.’’ 16 U.S.C. incorporate these measures into the the widespread deployment of auto- 1371(a)(5)(A)(i). Cumulative impacts Final IHA. buoys to provide near real-time (also referred to as cumulative effects) is Response: NMFS does not necessarily detections of NARW calls that visual a term that appears in the context of the include mitigation measures in IHAs survey teams can then respond to for National Environmental Policy Act that are mandated by other regulatory collection of identification photographs (NEPA) and the Endangered Species Act entities or which an applicant plans to or biological samples. Equinor must (ESA), but it is defined differently in voluntarily employ. We generally do not consult NMFS’ North Atlantic right those contexts. Neither the MMPA nor require mitigation measures that we do whale reporting systems for the NMFS’ codified implementing not believe are effective or practicable. presence of North Atlantic right whales regulations address consideration of We explained why we believe PAM is throughout survey operations for the other unrelated activities and their not warranted in response to another establishment of a Dynamic impacts on populations. However, the comment. As far as visual monitoring at Management Area (DMA) and is preamble for NMFS’ implementing night, we have not required night immediately report a sighting of a North

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Atlantic right whale to the NMFS North context). What this means is that, comply with dynamic management area Atlantic Right Whale Sighting Advisory conceptually, the function recognizes restrictions (DMAs), if any DMAs are System. that some animals exposed to levels established near the Project Area. Comment 26: The ENGOs asserted below the threshold will in fact react in Furthermore, we have established a 500- that the agency’s assumptions regarding ways that are appropriately considered m shutdown zone for North Atlantic mitigation effectiveness are unfounded take, while others that are exposed to right whales which is three times as and cannot be used to justify any levels above the threshold will not. Use large as the greatest Level B harassment reduction in the number of takes of the 160-dB threshold allows for a isopleth calculated for the specified authorized as was done for North simplistic quantitative estimate of take, activities for this IHA (141 m). Atlantic right whales. The reasons cited while we can qualitatively address the Additionally, similar mitigation and include: (i) the agency’s reliance on a variation in responses across different monitoring measures have previously 160 dB threshold for behavioral received levels in our discussion and been required in numerous HRG survey harassment that is not supported by the analysis. IHAs and have been successfully best available scientific information; (ii) As behavioral responses to sound implemented. the agency relies on the assumption that depend on the context in which an Comment 27: The ENGOs marine mammals will take measures to animal receives the sound, including recommended that HRG surveys should avoid the sound even though studies the animal’s behavioral mode when it commence, with ramp-up, during have not found avoidance behavior to be hears sounds, prior experience, daylight hours only, to maximize the generalizable among species and additional biological factors, and other probability that North Atlantic right contexts and even though avoidance contextual factors, defining sound levels whales detected and confirmed clear of may itself constitute take under the that disrupt behavioral patterns is the exclusion zone. MMPA; and (iii) the mitigation and extremely difficult. Even experts have Response: We acknowledge the monitoring protocols prescribed by the not previously been able to suggest limitations inherent in detection of agency are inadequate at protecting specific new criteria due to these marine mammals at night. However, no marine mammals and do not comply difficulties (e.g., Southall et al. 2007; injury is expected to result even in the with the MMPA. Gomez et al., 2016). absence of mitigation, given the very Response: The three comments (ii) The ENGOS disagreed with small estimated Level A harassment provided by the ENGOs are addressed NMFS’ assumption that marine zones. Any potential impacts to marine individually below. mammals move away from sound mammals authorized for take would be (i) NMFS acknowledges that the 160- sources. The ENGOS claimed that limited to short-term behavioral dB rms step-function approach is studies have not found avoidance responses. Restricting surveys in the simplistic, and that an approach behavior to be generalizable among manner suggested by the commenters reflecting a more complex probabilistic species and contexts, and even though may reduce marine mammal exposures function may more effectively represent avoidance may itself constitute take by some degree in the short term, but the known variation in responses at under the MMPA. Importantly, the would not result in any significant different levels due to differences in the commenters mistakenly seem to believe reduction in either intensity or duration receivers, the context of the exposure, that the NMFS’ does not consider of noise exposure. Vessels would also and other factors. The commenters avoidance as a take, and that the potentially be on the water for an suggested that our use of the 160-dB concept of avoidance is used as a extended time introducing noise into threshold implies that we do not mechanism to reduce overall take—this the marine environment. The recognize the science indicating that is not the case. Avoidance of loud restrictions recommended by the animals may react in ways constituting sounds is a well-documented behavioral commenters could result in the surveys behavioral harassment when exposed to response, and NMFS often accordingly spending increased time on the water, lower received levels. However, we do accounts for this avoidance by reducing which may result in greater overall recognize the potential for Level B the number of injurious exposures, exposure to sound for marine mammals harassment at exposures to received which would occur in very close and increase the risk of a vessel strike; levels below 160 dB rms, in addition to proximity to the source and necessitate thus the commenters have not the potential that animals exposed to a longer duration of exposure. However, demonstrated that such a requirement received levels above 160 dB rms will when Level A harassment takes are would result in a net benefit. not respond in ways constituting reduced in this manner, they are Furthermore, restricting the applicant to behavioral harassment (e.g., Malme et changed to Level B harassment takes, in ramp-up only during daylight hours al., 1983, 1984, 1985, 1988; McCauley et recognition of the fact that this would have the potential to result in al., 1998, 2000a, 2000b; Barkaszi et al., avoidance or other behavioral responses lengthy shutdowns of the survey 2012; Stone, 2015a; Gailey et al., 2016; occurring as a result of these exposures equipment, which could result in the Barkaszi and Kelly, 2018). These are still take, NMFS does not reduce the applicant failing to collect the data they comments appear to evidence a overall amount of take as a result of have determined is necessary and, misconception regarding the concept of avoidance. subsequently, the need to conduct the 160-dB threshold. While it is correct (iii) The ENGOs questioned the additional surveys the following year. that in practice it works as a step- effectiveness of the mitigation and This would result in significantly function, i.e., animals exposed to monitoring measures proposed to be increased costs incurred by the received levels above the threshold are authorized. They specifically applicant. Thus, the restriction considered to be ‘‘taken’’ and those recommended that seasonal restrictions suggested by the commenters would not exposed to levels below the threshold should be established and consideration be practicable for the applicant to are not, it is in fact intended as a sort should be given to species for which an implement. In consideration of potential of mid-point of likely behavioral unusual mortality event (UME) has been effectiveness of the recommended responses (which are extremely declared. Note that NMFS is requiring measure and its practicability for the complex depending on many factors Equinor to comply with restrictions applicant, NMFS has determined that including species, noise source, associated with identified seasonal restricting survey start-ups to daylight individual experience, and behavioral management areas (SMA) and they must hours when visibility is unimpeded is

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not warranted or practicable in this Changes From the Proposed IHA to Table 2 lists all species or stocks for case. Final IHA which take is expected and authorized Comment 28: The ENGOs for this action, and summarizes recommended that all project vessels NMFS has included User Spreadsheet information related to the population or operating within or transiting to/from inputs in Table 4 that were used to stock, including regulatory status under the Project Area, regardless of size, determine Level A harassment the MMPA and ESA and potential observe a mandatory 10 knot speed isopleths. Table 5 was revised to biological removal (PBR), where known. restriction during the entire survey illustrate Level A harassment isopleths For taxonomy, we follow Committee on period. based on inputs from Table 4. NMFS Taxonomy (2020). PBR is defined by the Response: NMFS does not concur has added language to the Mitigation MMPA as the maximum number of with these measures. NMFS has section exempting harbor and gray seals animals, not including natural analyzed the potential for ship strike from shutdown if they approach the mortalities, that may be removed from a resulting from Equinor’s activity and survey vessel or towed survey marine mammal stock while allowing has determined that the mitigation equipment. This language is identical to that stock to reach or maintain its measures specific to ship strike that found in another recent HRG IHA optimum sustainable population (as avoidance are sufficient to avoid the issued in July, 2020 to Mayflower Wind potential for ship strike. These include: described in NMFS’s SARs). While no Energy, LLC. (85 FR 45578; July 29, mortality is anticipated or authorized A requirement that all vessel operators 2020). The Federal Register notice here, PBR and annual serious injury and comply with 10 knot (18.5 km/hour) or announcing our issuance of the IHA to mortality from anthropogenic sources less speed restrictions in any Mayflower Wind Energy, LLC outlines are included here as gross indicators of established DMA or SMA; a requirement the basis for these exceptions. NMFS the status of the species and other that all vessel operators reduce vessel increased the authorized number of threats. speed to 10 knots (18.5 km/hour) or less takes of North Atlantic right whale by when any large whale, any mother/calf Level B harassment based on a new Marine mammal abundance estimates pairs, pods, or large assemblages of non- density model that was released after presented in this document represent delphinoid cetaceans are observed the publication of the proposed IHA in the total number of individuals that within 100 m of an underway vessel; a the Federal Register. make up a given stock or the total requirement that all survey vessels number estimated within a particular maintain a separation distance of 500-m Description of Marine Mammals in the study or survey area. NMFS’s stock or greater from any sighted North Area of Specified Activities abundance estimates for most species Atlantic right whale; a requirement that, represent the total estimate of if underway, vessels must steer a course Sections 3 and 4 of the application summarize available information individuals within the geographic area, away from any sighted North Atlantic if known, that comprises that stock. For right whale at 10 knots or less until the regarding status and trends, distribution and habitat preferences, and behavior some species, this geographic area may 500-m minimum separation distance extend beyond U.S. waters. All managed has been established; and a requirement and life history, of the potentially stocks in this region are assessed in that, if a North Atlantic right whale is affected species. Additional information NMFS’s U.S. Atlantic SARs. All values sighted in a vessel’s path, or within 500 regarding population trends and threats presented in Table 2 are the most recent m of an underway vessel, the underway may be found in NMFS’s Stock vessel must reduce speed and shift the Assessment Reports (SARs; https:// available at the time of publication and engine to neutral. We have determined www.fisheries.noaa.gov/national/ are available in the 2019 Atlantic and that the ship strike avoidance measures marine-mammal-protection/marine- Gulf of Mexico Marine Mammal Stock are sufficient to ensure the least mammal-stock-assessments) and more Assessments (Hayes et al., 2020), practicable adverse impact on species or general information about these species available online at: stocks and their habitat. Furthermore, (e.g., physical and behavioral www.fisheries.noaa.gov/national/ no documented vessel strikes have descriptions) may be found on NMFS’s marine-mammal-protection/marine- occurred for any HRG surveys which website. (https:// mammal-stock-assessment-reports- were issued IHAs from NMFS. www.fisheries.noaa.gov/find-species). region. TABLE 2—MARINE MAMMALS KNOWN TO OCCUR IN THE SURVEY AREA THAT MAY BE AFFECTED BY EQUINOR’S PLANNED ACTIVITY

MMPA Common name and ESA Stock abundance Predicted Annual Occurrence in Stock status; (CV, N , most recent abundance PBR 4 (scientific name) min M/SI 4 project area strategic abundance survey) 2 (CV) 3 (Y/N) 1

Toothed whales (Odontoceti)

Sperm whale (Physeter North Atlantic ...... E; Y 4,349 (0.28; 3,451; n/a) ...... 5,353 (0.12) 6.9 0.0 Rare. macrocephalus). Atlantic white-sided dolphin W North Atlantic ...... -; N 93,233 (0.71; 54,443; n/a) .. 37,180 (0.07) 544 26 Common. (Lagenorhynchus acutus). Atlantic spotted dolphin W North Atlantic ...... -; N 39,921 (0.27; 32,032; 2012) 55,436 (0.32) 320 0 Common. (Stenella frontalis). Common dolphin (Delphinus W North Atlantic ...... -; N 172,825 (0.21; 145,216; 86,098 (0.12) 1,452 419 Common. delphis). 2011). Bottlenose dolphin (Tursiops W North Atlantic, Offshore .. -; N 62,851 (0.23; 51,914; 2011) 97,476 (0.06) 5 519 28 Common offshore. truncatus). W North Atlantic, Northern -; N 6,639 (0.41; 4,759; 2015) ... 48 6.1–13.2 Common near- Coastal Migratory. shore. Long-finned pilot whale W North Atlantic ...... -; N 39,215 (0.3; 30,627; n/a) .... 18,977 (0.11) 5 306 21 Rare. (Globicephala melas).

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TABLE 2—MARINE MAMMALS KNOWN TO OCCUR IN THE SURVEY AREA THAT MAY BE AFFECTED BY EQUINOR’S PLANNED ACTIVITY—Continued

MMPA Stock abundance Predicted Common name and ESA Annual Occurrence in Stock status; (CV, N , most recent abundance PBR 4 (scientific name) min M/SI 4 project area strategic abundance survey) 2 (CV) 3 (Y/N) 1

Risso’s dolphin (Grampus W North Atlantic ...... -; N 35,493 (0.19; 30,289; 2011) 7,732 (0.09) 303 54.3 Rare. griseus). Harbor porpoise (Phocoena Gulf of Maine/Bay of Fundy -; N 95,543 (0.31; 74,034; 2011) 45,089 (0.12) * 851 217 Common. phocoena).

Baleen whales (Mysticeti)

Fin whale (Balaenoptera W North Atlantic ...... E; Y 7,418 (0.25; 6,025; n/a) ...... 4,633 (0.08) 12 2.35 Year round in con- physalus). tinental shelf and slope waters. Sei whale (Balaenoptera bo- Nova Scotia ...... E; Y 6,292 (1.015; 3,098; n/a) .... 717 (0.30) * 6.2 1.0 Year round in con- realis). tinental shelf and slope waters. Minke whale (Balaenoptera Canadian East Coast ...... -; N 24,202 (0.3; 18,902; n/a) .... 2,112 (0.05) * 8.0 7.0 Year round in con- acutorostrata). tinental shelf and slope waters. Humpback whale Gulf of Maine ...... -; N 1,396 (0; 1,380; n/a) ...... 1,637 (0.07) * 22 12.15 Common year (Megaptera novaeangliae). round. North Atlantic right whale W North Atlantic ...... E; Y 428 (0; 418; n/a) ...... 535 (0.45) * 0.8 6.85 Occur seasonally. (Eubalaena glacialis).

Earless seals (Phocidae)

Gray seal 6 (Halichoerus W North Atlantic ...... -; N 27,131 (0.19; 23,158; n/a) .. n/a 1,389 5,410 Common. grypus). Harbor seal (Phoca vitulina) W North Atlantic ...... -; N 75,834 (0.15; 66,884; 2012) n/a 2,006 350 Common. Harp seal 7 (Pagophilus W North Atlantic ...... -; N Unknown (n/a; n/a; n/a) ...... n/a unk. 232,422 Rare. groenlandicus). 1 ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR (see footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 Stock abundance as reported in NMFS marine mammal stock assessment reports (SAR) except where otherwise noted. SARs available online at: www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks, abundance estimates are actual counts of animals and there is no associated CV. The most recent abundance survey that is reflected in the abundance estimate is presented; there may be more recent surveys that have not yet been incorporated into the estimate. All values presented here are from the 2019 Atlantic SARs (Hayes et al., 2019). 3 This information represents species- or guild-specific abundance predicted by recent habitat-based cetacean density models (Roberts et al., 2016, 2017, 2018). These models provide the best available scientific information regarding predicted density patterns of cetaceans in the U.S. Atlantic Ocean, and we provide the corresponding abundance predictions as a point of reference. Total abundance estimates were produced by computing the mean density of all pixels in the modeled area and multiplying by its area. For those species marked with an asterisk, the available information supported development of either two or four seasonal models; each model has an associated abundance prediction. Here, we report the maximum predicted abundance. 4 Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP). Annual M/SI, found in NMFS’ SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, subsistence hunting, ship strike). Annual M/SI values often cannot be determined precisely and is in some cases presented as a minimum value. All M/SI values are as presented in the 2019 SARs (Hayes et al., 2020). 5 Abundance estimates are in some cases reported for a guild or group of species when those species are difficult to differentiate at sea. Similarly, the habitat- based cetacean density models produced by Roberts et al. (2016, 2017, 2018) are based in part on available observational data which, in some cases, is limited to genus or guild in terms of taxonomic definition. Roberts et al. (2016, 2017, 2018) produced density models to genus level for Globicephala spp. and produced a density model for bottlenose dolphins that does not differentiate between offshore and coastal stocks. 6 NMFS stock abundance estimate applies to U.S. population only, actual stock abundance is approximately 505,000. 7 Stock abundance estimate is not available in NMFS SARs and predicted abundance estimate is not provided in Roberts et al. (2016, 2017, 2018).

A detailed description of the species www.fisheries.noaa.gov/find-species) for determination and is not repeated here; for which take has been authorized, generalized species accounts. please refer to the notice of proposed IHA (85 FR 37848; June 24, 2020). including brief introductions to the Potential Effects of Specified Activities relevant stocks as well as available on Marine Mammals and Their Habitat Estimated Take information regarding population trends and threats, and information regarding The effects of underwater noise from This section provides an estimate of local occurrence, were provided in the Equinor’s survey activities have the the number of incidental takes Federal Register notice for the proposed potential to result in take of marine authorized through this IHA, which will IHA (85 FR 37848; June 24, 2020); since mammals by harassment in the vicinity inform both NMFS’ consideration of that time, we are not aware of any of the survey area. The Federal Register ‘‘small numbers’’ and the negligible changes in the status of these species notice for the proposed IHA (85 FR impact determination. and stocks; therefore, detailed 37848; June 24, 2020) included a Harassment is the only type of take descriptions are not provided here. discussion of the effects of expected to result from these activities. anthropogenic noise on marine Except with respect to certain activities Please refer to that Federal Register mammals and their habitat. That not pertinent here, section 3(18) of the notice for these descriptions. Please also information and analysis is incorporated MMPA defines ‘‘harassment’’ as any act refer to NMFS’ website (https:// by reference into this final IHA of pursuit, torment, or annoyance,

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which (i) has the potential to injure a prediction of takes, additional B harassment when exposed to marine mammal or marine mammal information that can qualitatively underwater anthropogenic noise above stock in the wild (Level A harassment); inform take estimates is also sometimes received levels of 120 dB re 1 mPa (rms) or (ii) has the potential to disturb a available (e.g., previous monitoring for continuous (e.g., vibratory pile- marine mammal or marine mammal results or average group size). Below, we driving, drilling) and above 160 dB re 1 stock in the wild by causing disruption describe the factors considered here in mPa (rms) for non-explosive impulsive of behavioral patterns, including, but more detail and present the authorized (e.g., seismic airguns) or intermittent not limited to, migration, breathing, take estimate. (e.g., scientific sonar) sources. Equinor’s nursing, breeding, feeding, or sheltering Acoustic Thresholds planned activity includes the use of (Level B harassment). intermittent sources (geophysical survey Authorized takes would be by Level B NMFS recommends the use of equipment) and therefore use of the 160 harassment only in the form of acoustic thresholds that identify the dB re 1 mPa (rms) threshold is disruption of behavioral patterns for received level of underwater sound applicable. individual marine mammals resulting above which exposed marine mammals Level A harassment for non-explosive from exposure to HRG sources. Based on would be reasonably expected to be sources—NMFS’ Technical Guidance the nature of the activity and the behaviorally harassed (equated to Level for Assessing the Effects of anticipated effectiveness of the B harassment) or to incur PTS of some Anthropogenic Sound on Marine mitigation measures (i.e., exclusion degree (equated to Level A harassment). Mammal Hearing (Version 2.0) zones and shutdown measures), Level B Harassment for non-explosive (Technical Guidance, 2018) identifies discussed in detail below in the sources—Though significantly driven by dual criteria to assess auditory injury Mitigation section, Level A harassment received level, the onset of behavioral (Level A harassment) to five different is neither anticipated nor authorized. disturbance from anthropogenic noise As described previously, no injury or exposure is also informed to varying marine mammal groups (based on mortality is anticipated or authorized degrees by other factors related to the hearing sensitivity) as a result of for this activity. Below we describe how source (e.g., frequency, predictability, exposure to noise from two different the take is estimated. duty cycle), the environment (e.g., types of sources (impulsive or non- Generally speaking, we estimate take bathymetry), and the receiving animals impulsive). The components of by considering: (1) Acoustic thresholds (hearing, motivation, experience, Equinor’s planned activity that may above which NMFS believes the best demography, behavioral context) and result in the take of marine mammals available science indicates marine can be difficult to predict (Southall et include the use of impulsive and non- mammals will be behaviorally harassed al., 2007, Ellison et al., 2012). Based on impulsive intermittent sources. or incur some degree of permanent what the available science indicates and These thresholds are provided in hearing impairment; (2) the area or the practical need to use a threshold Table 3 below. The references, analysis, volume of water that will be ensonified based on a factor that is both predictable and methodology used in the above these levels in a day; (3) the and measurable for most activities, development of the thresholds are density or occurrence of marine NMFS uses a generalized acoustic described in NMFS 2018 Technical mammals within these ensonified areas; threshold based on received level to Guidance, which may be accessed at and, (4) and the number of days of estimate the onset of behavioral https://www.fisheries.noaa.gov/ activities. We note that while these harassment. NMFS predicts that marine national/marine-mammal-protection/ basic factors can contribute to a basic mammals are likely to be behaviorally marine-mammal-acoustic-technical- calculation to provide an initial harassed in a manner we consider Level guidance.

TABLE 3—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT

PTS onset acoustic thresholds * Hearing group (received level) Impulsive Non-impulsive

Low-Frequency (LF) Cetaceans ...... Cell 1: Lpk,flat: 219 dB; LE,LF,24h: 183 dB ...... Cell 2: LE,LF,24h: 199 dB. Mid-Frequency (MF) Cetaceans ...... Cell 3: Lpk,flat: 230 dB; LE,MF,24h: 185 dB ...... Cell 4: LE,MF,24h: 198 dB. High-Frequency (HF) Cetaceans ...... Cell 5: Lpk,flat: 202 dB; LE,HF,24h: 155 dB ...... Cell 6: LE,HF,24h: 173 dB. Phocid Pinnipeds (PW) (Underwater) ...... Cell 7: Lpk,flat: 218 dB; LE,PW,24h: 185 dB ...... Cell 8: LE,PW,24h: 201 dB. Otariid Pinnipeds (OW) (Underwater) ...... Cell 9: Lpk,flat: 232 dB; LE,OW,24h: 203 dB ...... Cell 10: LE,OW,24h: 219 dB. * Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be considered. 2 Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa s. In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript ‘‘flat’’ is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be exceeded.

Ensonified Area ensonified above the acoustic the isopleth corresponding to the thresholds, which include source levels threshold for Level B harassment was Here, we describe operational and and transmission loss coefficient. calculated for all HRG equipment with environmental parameters of the activity The planned survey would entail the the potential to result in harassment of that will feed into identifying the area use of HRG equipment. The distance to

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marine mammals. NMFS has developed certainty regarding the portion of time a formula to approximate the absorption an interim methodology for determining shorter duration will be used, in which coefficient (neglecting temperature, the rms sound pressure level (SPLrms) at case the result can be calculated/parsed salinity, and pH) is provided by the 160-dB isopleth for the purposes of appropriately. Richardson et al. (1995): estimating take by Level B harassment In order to account for the greater (3) a ≈ 0.036ƒ1.5 (dB/km) resulting from exposure to HRG survey absorption of higher frequency sources, Where ƒ is frequency in kHz. When a equipment (NMFS, 2019). This we recommend applying 20 log(r) with range of frequencies, is being used, the methodology incorporates frequency an absorption term a·r/1000 to calculate lower bound of the range should be and some directionality to refine transmission loss (TL), as described in used for this calculation, unless there is estimated ensonified zones and is Eq.s (2) and (3) below: certainty regarding the portion of time a described below: (2) TL = 20 log10(r) + a · r/1000 (dB) higher frequency will be used, in which If only peak source sound pressure Where r is the distance in meters, and case the result can be calculated/parsed level (SPL ) is given, the SPL can be pk rms a is absorption coefficient in dB/km. appropriately. roughly approximated by: While the calculation of absorption Further, if the beamwidth is less than (1) SPLrms = SPLpk + 10 log10 t coefficient varies with frequency, 180° and the angle of beam axis in Where t is the pulse duration in second. temperature, salinity, and pH, the respect to sea surface is known, the If the pulse duration varies, the longest largest factor driving the absorption horizontal impact distance R should be duration should be used, unless there is coefficient is frequency. A simple calculated using

The interim methodology described mammals, and the sound levels Predicted distances to Level A above was used to estimate isopleth associated with those HRG equipment harassment isopleths, which vary based distances to the Level B harassment types. on marine mammal functional hearing threshold for the planned HRG survey. Results of modeling using the groups (Table 5), were also calculated, NMFS considers the data provided by methodology described above indicated though it is important to note that Crocker and Fratantonio (2016) to that, of the HRG survey equipment NMFS does not believe that occurrence represent the best available information planned for use by Equinor that has the of Level A harassment is a realistic on source levels associated with HRG potential to result in harassment of outcome of use of these sources. The equipment and therefore recommends marine mammals, sound produced by updated acoustic thresholds for that source levels provided by Crocker the GeoSource 800 J sparker would impulsive sounds (such as are produced and Fratantonio (2016) be incorporated propagate furthest to the Level B by sparkers) contained in the Technical in the method described above to harassment threshold (Table 4); Guidance (NMFS, 2018) were presented estimate isopleth distances to the Level therefore, for the purposes of the as dual metric acoustic thresholds using B harassment threshold. In cases when exposure analysis, it was assumed the both cumulative sound exposure level the source level for a specific type of GeoSource 800 J would be active during (SELcum) and peak sound pressure level HRG equipment is not provided in the entirety of the survey. Thus, the metrics. As dual metrics, NMFS Crocker and Fratantonio (2016), NMFS distance to the isopleth corresponding considers onset of PTS (Level A recommends that either the source to the threshold for Level B harassment harassment) to have occurred when levels provided by the manufacturer be for the GeoSource 800 J (estimated at either one of the two metrics is used, or, in instances where source 141 m; Table 5) was used as the basis exceeded (i.e., the metric resulting in levels provided by the manufacturer are of the take calculation for all marine the largest isopleth). The SELcum metric unavailable or unreliable, a proxy from mammals. We note that this is a considers both level and duration of Crocker and Fratantonio (2016) be used conservative assumption as there may exposure, as well as auditory weighting instead. Table 1 shows the HRG be times during the planned surveys functions by marine mammal hearing equipment types that may be used when the GeoSource 800 J is not group. Inputs to the User Spreadsheet during the planned vessel-based surveys operated (Table 5). are shown in Table 4. that may result in take of marine

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TABLE 4—USER SPREADSHEET INPUTS

HRG system Medium sub-bottom profiler

HRG Equipment ...... Geo-Source 400 Tip Sparker Source (800 J). User Spreadsheet Tab ...... F. Mobile Source: impulsive, Intermittent. Source Level ...... 203 RMS/213 PK. Weighting Factor Adjustment (kHz) ...... 3.25. Source Velocity (m/sec) ...... 2.06. Pulse Duration (seconds) ...... 0.002. 1/repetition rate∧ (seconds ...... 0.25. Propagation (xLogR) ...... 20.

TABLE 5—MODELED RADIAL DISTANCES FROM HRG SURVEY EQUIPMENT TO ISOPLETHS CORRESPONDING TO LEVEL A HARASSMENT AND LEVEL B HARASSMENT THRESHOLDS

Radial distance to level A Radial distance to harassment threshold level B (m) harassment Sound source threshold Low frequency Mid frequency High frequency Phocid pinnipeds (m) cetaceans cetaceans cetaceans (underwater) (peak SPL/SELcum) (peak SPL/SELcum) (peak SPL/SELcum) (peak SPL/SELcum) All marine mammals

Geo-Source 400 Tip Spark- er (800 J) ...... ¥/1.2 ¥/0 ¥/8.4 ¥/<1 141

Modeled distances to isopleths and 16 dynamic oceanographic and potential survey months. For each of the corresponding to the Level A biological covariates, and controls for survey areas (i.e., ECRA–1, ECRA–2, harassment thresholds are very small the influence of sea state, group size, ECRA–3 and ECRA–4), the densities of (<8.4 m) for all marine mammal species availability bias, and perception bias on each species as reported by the Duke and stocks that may be impacted by the the probability of making a sighting. University MGEL (Roberts et al. (2016, planned activities (Table 5). Based on These density models were originally 2017, 2018)) were averaged by season; the very small Level A harassment developed for all cetacean taxa in the thus, a density was calculated for each zones for all marine mammal species U.S. Atlantic (Roberts et al., 2016). In species for spring, summer, fall and and stocks that may be impacted by the subsequent years, certain models have winter. To be conservative, the greatest planned activities, the potential for any been updated on the basis of additional seasonal density calculated for each marine mammals to be taken by Level data as well as certain methodological species be carried forward in the A harassment is considered so low as to improvements. The updated models exposure analysis. Estimated seasonal be discountable. As NMFS has incorporate additional sighting data, densities (animals per km2) of all determined that the likelihood of take in including sightings from the NOAA marine mammal species that may be the form of Level A harassment of any Atlantic Marine Assessment Program for taken by the surveys, for all seasons and marine mammals as a result of the Protected Species (AMAPPS) surveys all survey areas, are shown in Tables 6– planned surveys is so low as to be from 2010–2014 (NEFSC & SEFSC, 2, 6–3, 6–4, 6–5 and 6–6 of the IHA discountable, we therefore do not 2011, 2012, 2014a, 2014b, 2015, 2016), application. The maximum seasonal propose to authorize the take by Level and include updated density data for density values used to estimate marine A harassment of any marine mammals. North Atlantic right whales, including mammal exposure numbers are shown Marine Mammal Occurrence in Cape Cod Bay (Roberts et al., 2018). in Table 6 below. Note that Duke Our evaluation of the changes leads to In this section we provide the University MGEL density models do not a conclusion that these represent the information about the presence, density, differentiate by bottlenose dolphin best scientific evidence available. More or group dynamics of marine mammals stocks and instead provide estimates at information is available online at that will inform the take calculations. the species level (Roberts et al. (2016, seamap.env.duke.edu/models/Duke-EC- The habitat-based density models 2017, 2018)); the Western North Atlantic GOM-2015/. Marine mammal density produced by the Duke University northern migratory coastal stock and the estimates in the project area (animals/ Marine Geospatial Ecology Laboratory Western North Atlantic offshore stock of km2) were obtained using these model (MGEL) (Roberts et al., 2016, 2017, bottlenose dolphins may occur in the 2018) represent the best available results (Roberts et al., 2016, 2017, 2018). planned survey areas (Hayes et al. information regarding marine mammal For the exposure analysis, density 2018). Similarly, the Duke University densities in the planned survey area. data from the Duke University MGEL MGEL produced density models for all The density data presented by the Duke (Roberts et al. (2016, 2017, 2018)) were seals and did not differentiate by seal University MGEL incorporates aerial mapped using a geographic information species (Roberts et al. (2018)); harbor, and shipboard line-transect survey data system (GIS). The density coverages that gray and harp seals may occur in the from NMFS and other organizations and included any portion of the planned planned survey areas (Hayes et al. incorporates data from 8 physiographic project area were selected for all 2018).

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TABLE 6—SEASONAL MARINE MAMMAL DENSITIES (NUMBER OF ANIMALS PER 100 km2) IN ALL SURVEY AREAS USED IN EXPOSURE ESTIMATES

Species ECRA–1 ECRA–2 ECRA–3 ECRA–4

North Atlantic right whale 1 ...... 0.006803 0.008907 0.0000913 0.007247667 Humpback whale ...... 0.0054269 0.00147951 0.0003133 0.0007076 Fin whale ...... 0.0048318 0.00392609 0.000154 0.0029756 Sei whale ...... 0.0003972 0.00028884 0.00002179 0.000146 Minke whale ...... 0.0044061 0.0020292 0.00006959 0.0015375 Sperm Whale ...... 0.0001033 0.00029419 0.00004323 0.0003508 Pilot whales ...... 0.0014728 0.00011263 0.00002895 0.0058357 Bottlenose dolphins ...... 0.0847306 0.02955662 0.0684936 0.0527685 Common dolphin ...... 0.0224355 0.2121851 0.0043119 0.1539656 Atlantic white-sided dolphin ...... 0.057509 0.05269613 0.0015548 0.0305044 Atlantic spotted dolphin ...... 0.00005057 0.00212995 0.00008059 0.0020008 Risso’s dolphin ...... 0.00007374 0.00294218 0.00000215 0.000818 Harbor porpoise ...... 0.05438 0.07252193 0.1348293 0.0671625 Seals (all species) ...... 0.3330293 0.0717368 0.0506316 0.0539549 Note: All density values, with the exeption North Atlantic right whales, were derived from Roberts et al. (2016, 2017, 2018). Densities shown represent the maximum seasonal density values calculated, except pilot whales for which seasonal densities were not available. 1 Densities for North Atlantic right whales derived from Roberts et al. 2020, which was published after the Notice of Proposed IHA had published in the Federal Register.

Take Calculation and Estimation when the GeoSource 800 J is not based surveys between 2003 and 2018. Here we describe how the information operated; if this were the case, the Equinor revised the North Atlantic right provided above is brought together to ensonified area would be much smaller, whale take calculations contained in the produce a quantitative take estimate. based on the modeled Level B application and published in the Notice In order to estimate the number of harassment threshold associated with of Proposed IHA in response to the new marine mammals predicted to be the USBL. Roberts et al. 2020 model data. Equinor exposed to sound levels that would The number of marine mammals revised the estimated duration of survey result in harassment, radial distances to expected to be incidentally taken per days in each export cable route area predicted isopleths corresponding to day is then calculated by estimating the (ECRA) resulting in a total of 113 survey harassment thresholds are calculated, as number of each species predicted to days reduced from 218 days. Since described above. Those distances are occur within the daily ensonified area Equinor is working under an existing 2 then used to calculate the area(s) around (animals/km ), incorporating the LoC allowing daylight only operations, the HRG survey equipment predicted to estimated marine mammal densities as they have been able to reduce the be ensonified to sound levels that described above. Estimated numbers of remaining number of anticipated survey exceed harassment thresholds. The area each species taken per day are then days. Additionally, Equinor used an estimated to be ensonified to relevant multiplied by the total number of survey overly conservative assumption of the thresholds in a single day is then days. The product is then rounded, to daily survey trackline distance in their calculated, based on areas predicted to generate an estimate of the total number application, which NMFS then used in be ensonified around the HRG survey of instances of harassment expected for the proposed IHA, and which now equipment and the estimated trackline each species over the duration of the appropriately has been reduced from distance traveled per day by the survey survey. A summary of this method is 177.6 km/day to 110 km/day. Although vessel. illustrated in the following formula: likely still conservative it is more Equinor estimates that planned Estimated Take = D × ZOI × # of days aligned with trackline distances surveys will achieve a maximum daily Where: presented in other recent HRG survey track line distance of 177.6 km (110.3 D = average species density (per km2) and IHAs. Takes by Level B harassment of mi) per day during planned HRG ZOI = maximum daily ensonified area to North Atlantic right whales were surveys. We note that this is a relevant thresholds. calculated based on the modeling conservative estimate as it accounts for In this case, the methodology approach described above and are the vessel traveling at approximately 4 described above was used to estimate shown in Table 7. In the Notice of knots and accounts for non-active marine mammal exposures separately in Proposed IHA, Equinor determined that survey periods (i.e., it assumes HRG the four ECRAs. Thus, exposures were take of the species could be avoided due equipment would be active 24 hours per calculated separately for each of the four to mitigation and therefore did not day during all survey days when in fact individual ECRAs based on estimated request take authorization for the North there are likely to be periods when the survey duration in each ECRA and using Atlantic right whale. However, given the equipment is not active). Based on the the maximum seasonal density size of modeled Level B harassment maximum estimated distance to the estimates for each respective ECRA zone, the duration of the planned Level B harassment threshold of 141 m (Table 7). surveys, and the fact that surveys will (Table 5) and the maximum estimated Note that after the Notice of Proposed occur 24 hours per day, NMFS is not daily track line distance of 177.6 km IHA was published (June 24, 2020; 85 confident that all takes of North Atlantic (110.3 mi), an area of 50.08 km2 would FR 36537) a new North Atlantic right right whales could be avoided due to be ensonified to the Level B harassment whale density model became available mitigation, and we therefore proposed threshold per day during Equinor’s to the public (Roberts et al. 2020) which to authorize 50 percent of the total planned surveys. As stated above, this is NMFS considers to be the best available number of exposures above the Level B a conservative assumption as there may information. The model integrated data harassment threshold that were be times during the planned surveys from a number of aerial and vessel- modeled. We expect the required

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mitigation measures, including a 500-m whales may not be detected within the Atlantic right whale takes by Level B exclusion zone for North Atlantic right Level B harassment zone during periods harassment based on a total of 28 whales (which exceeds the Level B of diminished visibility, particularly at calculated takes. No take by Level A harassment zone by over 350-m), will be night. For the reasons listed above, we harassment was proposed or has been effective in reducing the potential for are confident that the mitigation will authorized. takes by Level B harassment, but there avoid at least 50% of the take. is still a risk that North Atlantic right Therefore, we have authorized 14 North

TABLE 7— REVISED NORTH ATLANTIC RIGHT WHALE TAKE ESTIMATE BASED ON ROBERTS ET AL. 2020

Maximum seasonal density Estimated exposure or ECRA Total days km/day ZOI [d] (km2) (indiv/km2) take = D × ZOI × (d) [D]

1 ...... 5 110 31.12 0.006803 1 2 ...... 65 110 31.12 0.008907333 18 3 ...... 3 110 31.12 0.0000913 0 4 ...... 40 110 31.12 0.007247667 9

Total ...... 28

Exposure estimates for the four survey were combined for a total estimated areas as shown in Table 6 and Table 7 number of exposures (Table 8). TABLE 8—NUMBERS OF POTENTIAL INCIDENTAL TAKE OF MARINE MAMMALS AUTHORIZED AND AUTHORIZED TAKES AS A PERCENTAGE OF POPULATION

Estimated Estimated Estimated Estimated Total takes by level takes by level takes by level takes by level Total takes authorized Species B B B B by level B instances of harassment harassment harassment harassment harassment take as a ECRA–1 ECRA–2 ECRA–3 ECRA–4 authorized percentage of population 1

North Atlantic right whale ...... 1 18 0 9 2 14 3.1 Humpback whale ...... 3 5 1 4 13 0.8 Fin whale ...... 3 14 0 19 36 0.8 Sei whale ...... 1 1 0 1 3 0.4 Minke whale ...... 3 7 0 10 20 0.9 Sperm Whale ...... 0 1 0 2 3 0.1 Long-finned Pilot Whale ...... 1 1 0 37 39 0.2 Bottlenose dolphin 3 ...... 48 104 39 331 522 7.9 Common dolphin ...... 13 747 2 966 1,728 2.0 Atlantic white-sided dolphin ...... 33 185 1 191 410 1.1 Atlantic spotted dolphin ...... 0 8 0 13 21 0.0 Risso’s dolphin ...... 0 10 0 5 15 0.2 Harbor porpoise ...... 31 255 76 421 783 1.7 Seals 4 ...... 188 253 29 338 808 1.1 1 Calculations of percentage of stock taken are based on the best available abundance estimate as shown in Table 2. In most cases the best available abundance estimate is provided by Roberts et al. (2016, 2017, 2018), when available, to maintain consistency with density estimates derived from Roberts et al. (2016, 2017, 2018). For North Atlantic right whales the best available abundance estimate is derived from the North Atlantic Right Whale Consortium 2019 Annual Report Card (Pettis et al., 2019). For bottlenose dolphins and seals, Roberts et al. (2016, 2017, 2018) provides only a single abundance estimate and does not provide abundance estimates at the stock or species level (respectively), so abundance estimates used to estimate percentage of stock taken for bottlenose dolphins, gray, harbor and harp seals are derived from NMFS SARs (Hayes et al., 2019). 2 New Roberts et al. (2020) density estimates shows 28 North Atlantic right whale Level B harassment expsoures in the activity area as was considered in the proposed IHA. We have confidence in the effectiveness of mitigation and its ability to minimize right whale exposure and, therefore, in the Proposed IHA, we project that the mitigation will avoid at least 50% of the take. Therefore we are authorizing 14 North Atlantic Right Whale Takes by Level B harassment. 3 Either the Western North Atlantic coastal migratory stock or the Western North Atlantic offshore stock may be taken. Total authorized instances of take as a percentage of population shown for Western North Atlantic coastal migratory stock (based on all 522 authorized takes accruing to that stock). The total authorized instances of take as a percentage of population for the Western North Atlantic offshore stock is 0.8 (based on all 522 authorized takes accruing to that stock). 4 Harbor, gray or harp seals may be taken. Total authorized instances of take as a percentage of population shown for harbor seals (based on all 808 authorized takes accruing to that species). The total authorized instances of take as a percentage of population for gray seals and harp seals is 0.2 and 0.0, respectively (based on all 808 authorized takes accruing to each species).

As described above, the Duke are not well described but likely and harp seals, based on an assumption University MGEL produced density overlap, and based on the few species that the modeled takes could accrue to models that did not differentiate by seal identifications that were available, the any of the respective species. We species. The underlying data in the Duke University MGEL did not attempt instead propose to authorize 808 total Duke University MGEL seal models to classify the ambiguous ‘‘unidentified takes of seals by Level B harassment. came almost entirely from AMAPPS seal’’ sightings by species (Roberts et al., Based on the occurrence of harbor, gray aerial surveys which were unable to 2018) and instead produced models for and harp seals in the survey areas, we differentiate by seal species, with the seals as a guild. The take calculation expect the authorized takes would majority of seal sightings reported as methodology described above resulted accrue roughly equally to gray and ‘‘unidentified seal’’ (Roberts et al., in an estimate of 808 total seal takes. harbor seals, with only a handful of 2018). Given the fact that the in-water Based on this estimate, Equinor takes of harp seals at most. habitats of harbor seals and gray seals requested 808 takes each of harbor, gray

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The density models produced by the least practicable adverse impact on must be based upon the radial distance Duke University MGEL also did not species or stocks and their habitat, as from the active equipment (rather than differentiate by bottlenose dolphin well as subsistence uses where being based on distance from the vessel stocks (Roberts et al. (2016, 2017, 2018). applicable, we carefully consider two itself). The Western North Atlantic northern primary factors: Visual Monitoring migratory coastal stock and the Western (1) The manner in which, and the North Atlantic offshore stock occur in degree to which, the successful A minimum of one NMFS-approved the planned survey areas. The northern implementation of the measure(s) is PSO must be on duty and conducting migratory coastal stock occurs in coastal expected to reduce impacts to marine visual observations at all times during waters from the shoreline to mammals, marine mammal species or daylight hours (i.e., from 30 minutes approximately the 20-m isobath while stocks, and their habitat. This considers prior to sunrise through 30 minutes the offshore stock occurs at depths of the nature of the potential adverse following sunset). Visual monitoring 20-m and greater (Hayes et al. 2019). impact being mitigated (likelihood, must begin no less than 30 minutes The take calculation methodology scope, range). It further considers the prior to ramp-up of HRG equipment and described above resulted in an estimate likelihood that the measure will be must continue until 30 minutes after use of 522 total bottlenose dolphin takes. effective if implemented (probability of of the acoustic source ceases or until 30 Depths across the planned survey areas accomplishing the mitigating result if minutes past sunset. PSOs must range from very shallow waters near implemented as proposed), the establish and monitor the applicable landfall locations to approximately 75- likelihood of effective implementation EZs, Buffer Zone and Monitoring Zone m in offshore survey locations. As (probability implemented as proposed), as described above. Visual PSOs must ° planned surveys would occur in areas and; coordinate to ensure 360 visual where either the northern migratory (2) The practicability of the measures coverage around the vessel from the coastal stock or the offshore stock may for applicant implementation, which most appropriate observation posts, and occur, we expect the authorized takes may consider such things as cost, must conduct visual observations using would accrue roughly equally to both impact on operations, and, in the case binoculars and the naked eye while free stocks. of a military readiness activity, from distractions and in a consistent, Equinor requested 39 total takes of personnel safety, practicality of systematic, and diligent manner. PSOs pilot whales (either long-finned or implementation, and impact on the must estimate distances to observed short-finned). However, the range of effectiveness of the military readiness marine mammals. It is the responsibility short-finned pilot whales does not activity. of the Lead PSO on duty to extend north of Delaware (Hayes et al., communicate the presence of marine 2019) and therefore short-finned pilot Mitigation Measures mammals as well as to communicate whales are not expected to occur in the NMFS proposes the following action(s) that are necessary to ensure planned survey areas. As such, we mitigation measures be implemented mitigation and monitoring requirements propose to authorize takes of long- during Equinor’s planned marine site are implemented as appropriate. finned pilot whales only. characterization surveys. Position data must be recorded using As described above, NMFS has hand-held or vessel global positioning determined that the likelihood of take of Marine Mammal Exclusion Zones, system (GPS) units for each confirmed any marine mammals in the form of Buffer Zone and Monitoring Zone marine mammal sighting. Marine mammal EZs would be Level A harassment occurring as a result Pre-Clearance of the Exclusion Zones of the planned surveys is so low as to established around the HRG survey be discountable; therefore, we do not equipment and monitored by PSOs Prior to initiating HRG survey propose to authorize take of any marine during HRG surveys as follows: activities, Equinor must implement a mammals by Level A harassment. • A 500-m EZ is required for North 30-minute pre-clearance period. During Atlantic right whales; and pre-clearance monitoring (i.e., before Mitigation • A 100-m EZ is required for all other ramp-up of HRG equipment begins), the In order to issue an IHA under section marine mammal species. Buffer Zone must also act as an 101(a)(5)(D) of the MMPA, NMFS must If a marine mammal is detected extension of the 100-m EZ in that set forth the permissible methods of approaching or entering the EZs during observations of marine mammals within taking pursuant to the activity, and the planned survey, the vessel operator the 200-m Buffer Zone must also other means of effecting the least must adhere to the shutdown preclude HRG operations from practicable impact on the species or procedures described below. In addition beginning. During this period, PSOs stock and its habitat, paying particular to the EZs described above, PSOs must must ensure that no marine mammals attention to rookeries, mating grounds, visually monitor a 200 m Buffer Zone. are observed within 200-m of the survey and areas of similar significance, and on During use of acoustic sources with the equipment (500-m in the case of North the availability of the species or stock potential to result in marine mammal Atlantic right whales). HRG equipment for taking for certain subsistence uses. harassment (i.e., anytime the acoustic must not start up until this 200-m zone NMFS regulations require applicants for source is active, including ramp-up), (or, 500-m zone in the case of North incidental take authorizations to include occurrences of marine mammals within Atlantic right whales) is clear of marine information about the availability and the Buffer Zone (but outside the EZs) mammals for at least 30 minutes. The feasibility (economic and technological) must be communicated to the vessel vessel operator must notify a designated of equipment, methods, and manner of operator to prepare for potential PSO of the planned start of HRG survey conducting the activity or other means shutdown of the acoustic source. The equipment as agreed upon with the lead of effecting the least practicable adverse Buffer Zone is not applicable when the PSO; the notification time should not be impact upon the affected species or EZ is greater than 100 meters. PSOs less than 30 minutes prior to the stocks and their habitat (50 CFR must also be required to observe a 500- planned initiation of HRG equipment 216.104(a)(11)). m Monitoring Zone and record the order to allow the PSOs time to monitor In evaluating how mitigation may or presence of all marine mammals within the EZs and Buffer Zone for the 30 may not be appropriate to ensure the this zone. The zones described above minutes of pre-clearance. A PSO

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conducting pre-clearance observations applicable EZ. The vessel operator must B harassment isopleth while the sparker must be notified again immediately establish and maintain clear lines of is operating (141 m), shutdown must prior to initiating active HRG sources. communication directly between PSOs occur. If a marine mammal were observed on duty and crew controlling the HRG Seasonal Restrictions within the relevant EZs or Buffer Zone source(s) to ensure that shutdown during the pre-clearance period, commands are conveyed swiftly while To minimize the potential for impacts initiation of HRG survey equipment allowing PSOs to maintain watch. to North Atlantic right whales, vessel- must not begin until the animal(s) has Subsequent restart of the HRG based HRG survey activities would be been observed exiting the respective EZ equipment must only occur after the prohibited in the Off Race Point SMA or Buffer Zone, or, until an additional marine mammal has either been and Cape Cod Bay SMA from January time period has elapsed with no further observed exiting the relevant EZ, or, through May and in the Great South sighting (i.e., minimum 15 minutes for until an additional time period has Channel SMA from April through July. small odontocetes and seals, and 30 elapsed with no further sighting of the Vessel Strike Avoidance minutes for all other species). The pre- animal within the relevant EZ (i.e., 15 • clearance requirement must include minutes for small odontocetes, pilot Vessel strike avoidance measures small delphinoids that approach the whales and seals, and 30 minutes for would include, but would not be vessel (e.g., bow ride). PSOs must also large whales). limited to, the following: Vessel continue to monitor the zone for 30 Upon implementation of shutdown, operators and crews must maintain a minutes after survey equipment is shut the HRG source may be reactivated after vigilant watch for all protected species down or survey activity has concluded. the marine mammal that triggered the and slow down, stop their vessel, or These requirements must be in effect shutdown has been observed exiting the alter course, as appropriate and only when the GeoSource 800 J sparker applicable EZ (i.e., the animal is not regardless of vessel size, to avoid is being operated. required to fully exit the Buffer Zone striking any protected species. A visual where applicable), or, following a observer aboard the vessel must monitor Ramp-Up of Survey Equipment clearance period of 15 minutes for small a vessel strike avoidance zone around When technically feasible, a ramp-up odontocetes and seals and 30 minutes the vessel (distances stated below). procedure must be used for geophysical for all other species with no further Visual observers monitoring the vessel survey equipment capable of adjusting observation of the marine mammal(s) strike avoidance zone may be third- energy levels at the start or re-start of within the relevant EZ. If the HRG party observers (i.e., PSOs) or crew survey activities. The ramp-up equipment shuts down for brief periods members, but crew members procedure must be used at the beginning (i.e., less than 30 minutes) for reasons responsible for these duties must be of HRG survey activities in order to other than mitigation (e.g., mechanical provided sufficient training to (1) provide additional protection to marine or electronic failure) the equipment may distinguish protected species from other mammals near the survey area by be re-activated as soon as is practicable phenomena and (2) broadly to identify allowing them to detect the presence of at full operational level, without 30 a marine mammal as a North Atlantic the survey and vacate the area prior to minutes of pre-clearance, only if PSOs right whale, other whale (defined in this the commencement of survey have maintained constant visual context as sperm whales or baleen equipment operation at full power. observation during the shutdown and whales other than North Atlantic right Ramp-up of the survey equipment must no visual detections of marine mammals whales), or other marine mammal. not begin until the relevant EZs and occurred within the applicable EZs and • All survey vessels, regardless of Buffer Zone has been cleared by the Buffer Zone during that time. For a size, must observe a 10-knot speed PSOs, as described above. HRG shutdown of 30 minutes or longer, or if restriction in specific areas designated equipment must be initiated at their visual observation was not continued by NMFS for the protection of North lowest power output and must be diligently during the pause, pre- Atlantic right whales from vessel incrementally increased to full power. If clearance observation is required, as strikes: Any Dynamic Management any marine mammals are detected described above. Areas (DMAs) when in effect, and the within the EZs or Buffer Zone prior to The shutdown requirement is waived Off Race Point SMA (in effect from or during ramp-up, the HRG equipment for certain genera of small delphinids January 1 through May 15), Cape Cod must be shut down (as described (i.e., Delphinus, Lagenorhynchus, Bay SMA (in effect from March 1 below). Stenella, and Tursiops) and pinnipeds through April 30), Great South Channel (gray and harbor seals) under certain SMA (in effect from April 1 through July Shutdown Procedures circumstances. If a delphinid(s) from 31), Block Island Sound SMA (in effect The shutdown procedures described these genera or seal(s) is visually from November 1 through April 30); and below are only in effect when the detected approaching the vessel (i.e., to New York/New Jersey SMA (in effect GeoSource 800 J sparker is being bow ride) or towed survey equipment, from November 1 through April 30). See operated. If an HRG source is active and shutdown is not required. If there is www.fisheries.noaa.gov/national/ a marine mammal is observed within or uncertainty regarding identification of a endangered-species-conservation/ entering a relevant EZ (as described marine mammal species (i.e., whether reducing-ship-strikes-north-atlantic- above) an immediate shutdown of the the observed marine mammal(s) belongs right-whales for specific detail regarding HRG survey equipment is required. to one of the delphinid genera for which these areas. When shutdown is called for by a PSO, shutdown is waived), PSOs must use • Vessel speeds must also be reduced the acoustic source must be best professional judgment in making to 10 knots or less when mother/calf immediately deactivated and any the decision to call for a shutdown. pairs, pods, or large assemblages of dispute resolved only following If a species for which authorization cetaceans are observed near a vessel. deactivation. Any PSO on duty must has not been granted, or, a species for • All vessels must maintain a have the authority to delay the start of which authorization has been granted minimum separation distance of 500 m survey operations or to call for but the authorized number of takes have from North Atlantic right whales. If a shutdown of the acoustic source if a been met, approaches or is observed whale is observed but cannot be marine mammal is detected within the within the area encompassing the Level confirmed as a species other than a

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North Atlantic right whale, the vessel required to contact NMFS within 24 Atlantic right whale foraging. Thus, the operator must assume that it is a North hours of the establishment of the DMA survey is not expected to appreciably Atlantic right whale and take to determine whether alteration or reduce foraging habitat nor to negatively appropriate action. restriction of survey activities was impact North Atlantic right whales • All vessels must maintain a warranted within the DMA to minimize foraging. minimum separation distance of 100 m impacts to North Atlantic right whales. Based on our evaluation of the from sperm whales and all other baleen Also as described above, portions of applicant’s proposed measures, as well whales. the planned survey areas overlap as other measures considered by NMFS, • All vessels must, to the maximum spatially with designated critical habitat NMFS has determined that the required extent practicable, attempt to maintain a for North Atlantic right whales, which mitigation measures provide the means minimum separation distance of 50 m was established due to the area’s effecting the least practicable impact on from all other protected species, with an significance for North Atlantic right the affected species or stocks and their understanding that at times this may not whale foraging (81 FR 4837, January 27, habitat, paying particular attention to be possible (e.g., for animals that 2016). To minimize potential impacts to rookeries, mating grounds, and areas of approach the vessel). North Atlantic right whales during the similar significance. • When protected species are sighted seasons when they occur in high Monitoring and Reporting while a vessel is underway, the vessel numbers in the Gulf of Maine/Georges must take action as necessary to avoid Bank critical habitat, vessel-based HRG In order to issue an IHA for an violating the relevant separation survey activities are prohibited in the activity, section 101(a)(5)(D) of the distance (e.g., attempt to remain parallel Off Race Point SMA and Cape Cod Bay MMPA states that NMFS must set forth to the animal’s course, avoid excessive SMA from January through May and in requirements pertaining to the speed or abrupt changes in direction the Great South Channel SMA from monitoring and reporting of such taking. until the animal has left the area). If April through July. The MMPA implementing regulations at protected species are sighted within the The required mitigation measures are 50 CFR 216.104 (a)(13) indicate that relevant separation distance, the vessel designed to avoid the already low requests for authorizations must include must reduce speed and shift the engine potential for injury in addition to some the suggested means of accomplishing to neutral, not engaging the engines instances of Level B harassment, and to the necessary monitoring and reporting until animals are clear of the area. This minimize the potential for vessel strikes. that will result in increased knowledge does not apply to any vessel towing gear Further, we believe the required of the species and of the level of taking or any vessel that is navigationally mitigation measures are practicable for or impacts on populations of marine constrained. the applicant to implement. mammals that are expected to be These requirements do not apply in There are no known marine mammal present in the planned action area. any case where compliance would rookeries or mating or calving grounds Effective reporting is critical both to create an imminent and serious threat to in the survey area that would otherwise compliance as well as ensuring that the a person or vessel or to the extent that potentially warrant increased mitigation most value is obtained from the required a vessel is restricted in its ability to measures for marine mammals or their monitoring. maneuver and, because of the habitat (or both). The planned survey Monitoring and reporting restriction, cannot comply. areas will overlap spatially with an area requirements prescribed by NMFS that has been identified as a biologically Seasonal Operating Requirements should contribute to improved important area for migration for North understanding of one or more of the As described above, the planned Atlantic right whales. However, while following: survey area partially overlaps with a the potential survey areas across the • Occurrence of marine mammal portion of five North Atlantic right ECRAs are relatively large, the actual species or stocks in the area in which whale SMAs: Off Race Point SMA (in areas that will ultimately be surveyed take is anticipated (e.g., presence, effect from January 1 through May 15); are relatively small compared to the abundance, distribution, density). Cape Cod Bay SMA (in effect from substantially larger spatial extent of the • Nature, scope, or context of likely March 1 through April 30); Great South North Atlantic right whale migratory marine mammal exposure to potential Channel SMA (in effect from April 1 area. We have required mitigation stressors/impacts (individual or through July 31); Block Island Sound measures, including seasonal cumulative, acute or chronic), through SMA (in effect from November 1 restrictions and vessel speed restrictions better understanding of: (1) Action or through April 30); and New York/New as described above, to minimize environment (e.g., source Jersey SMA (in effect from November 1 potential impacts to North Atlantic right characterization, propagation, ambient through April 30). All Equinor survey whale migration. Thus, the survey is not noise); (2) affected species (e.g., life vessels, regardless of length, are expected to appreciably reduce history, dive patterns); (3) co-occurrence required to adhere to vessel speed migratory habitat nor to negatively of marine mammal species with the restrictions (<10 knots) when operating impact the migration of North Atlantic action; or (4) biological or behavioral within the SMAs during times when the right whales. As described above, some context of exposure (e.g., age, calving or SMAs are in effect. In addition, between portions of the planned survey areas feeding areas). watch shifts, members of the monitoring will overlap spatially with areas that are • Individual marine mammal team must consult NMFS’s North recognized as important for North responses (behavioral or physiological) Atlantic right whale reporting systems Atlantic right whale foraging, including to acoustic stressors (acute, chronic, or for the presence of North Atlantic right portions of areas that have been cumulative), other stressors, or whales throughout survey operations. designated as critical habitat due to the cumulative impacts from multiple Members of the monitoring team must significance of the area for North stressors. also monitor the NMFS North Atlantic Atlantic right whale foraging. We have • How anticipated responses to right whale reporting systems for the required mitigation measures, including stressors impact either: (1) Long-term establishment of DMA. If NMFS should seasonal restrictions and vessel speed fitness and survival of individual establish a DMA in the survey area restrictions as described above, to marine mammals; or (2) populations, while surveys are underway, Equinor is minimize potential impacts to North species, or stocks.

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• Effects on marine mammal habitat marine mammals. Position data must be Regional Stranding Coordinator (978– (e.g., marine mammal prey species, recorded using hand-held or vessel GPS 282–8478) as soon as feasible. The acoustic habitat, or other important units for each sighting. Observations report must include the following physical components of marine must take place from the highest information: mammal habitat). available vantage point on the survey • Time, date, and location (latitude/ • Mitigation and monitoring vessel. General 360-degree scanning longitude) of the first discovery (and effectiveness. must occur during the monitoring updated location information if known Monitoring Measures periods, and target scanning by the PSO and applicable); must occur when alerted of a marine • As described above, visual monitoring Species identification (if known) or mammal presence. description of the animal(s) involved; must be performed by qualified and During good conditions (e.g., daylight • Condition of the animal(s) NMFS-approved PSOs. Equinor must hours; Beaufort sea state (BSS) 3 or less), (including carcass condition if the use independent, dedicated, trained to the maximum extent practicable, PSOs, meaning that the PSOs must be animal is dead); PSOs must conduct observations when • employed by a third-party observer the acoustic source is not operating for Observed behaviors of the provider (with limited exceptions made comparison of sighting rates and animal(s), if alive; only for inshore vessels), must have no behavior with and without use of the • If available, photographs or video tasks other than to conduct acoustic source and between acquisition footage of the animal(s); and observational effort, collect data, and periods. Any observations of marine • General circumstances under which communicate with and instruct relevant mammals by crew members aboard any the animal was discovered. vessel crew with regard to the presence vessel associated with the survey must In the event of a vessel strike of a of marine mammals and mitigation be relayed to the PSO team. marine mammal by any vessel involved requirements (including brief alerts Data on all PSO observations must be in the activities covered by the regarding maritime hazards), and must recorded based on standard PSO authorization, the Equinor must report have successfully completed an collection requirements. This include the incident to NOAA Fisheries OPR approved PSO training course dates, times, and locations of survey (301–427–8401) and to the NOAA appropriate for their designated task. operations; dates and times of Fisheries New England/Mid-Atlantic Equinor must provide resumes of all observations, location and weather; Regional Stranding Coordinator (978– proposed PSOs (including alternates) to details of marine mammal sightings 282–8478) as soon as feasible. The NMFS for review and approval prior to (e.g., species, numbers, behavior); and report must include the following the start of survey operations. details of any observed marine mammal information: During survey operations (e.g., any take that occurs (e.g., noted behavioral • Time, date, and location (latitude/ day on which use of an HRG source is disturbances). planned to occur), a minimum of one longitude) of the incident; • PSO must be on duty and conducting Reporting Measures Species identification (if known) or visual observations at all times on all Within 90 days after completion of description of the animal(s) involved; active survey vessels during daylight survey activities, a final technical report • Vessel’s speed during and leading hours (i.e., from 30 minutes prior to will be provided to NMFS that fully up to the incident; sunrise through 30 minutes following documents the methods and monitoring • Vessel’s course/heading and what sunset). Visual monitoring must begin protocols, summarizes the data recorded operations were being conducted (if no less than 30 minutes prior to during monitoring, summarizes the applicable); initiation of HRG survey equipment and number of marine mammals estimated • Status of all sound sources in use; must continue until one hour after use to have been taken during survey • Description of avoidance measures/ of the acoustic source ceases or until 30 activities (by species, when known), requirements that were in place at the minutes past sunset. PSOs must (i.e., observations of marine mammals time of the strike and what additional coordinate to ensure 360 degree visual within the Level B harassment zone measures were taken, if any, to avoid coverage around the vessel from the must be reported as potential takes by strike; most appropriate observation posts, and Level B harassment) summarizes the • Environmental conditions (e.g., must conduct visual observations using mitigation actions taken during surveys wind speed and direction, Beaufort sea binoculars and the naked eye while free (including what type of mitigation and state, cloud cover, visibility) from distractions and in a consistent, the species and number of animals that immediately preceding the strike; systematic, and diligent manner. PSOs prompted the mitigation action, when • Estimated size and length of animal may be on watch for a maximum of four known), and provides an interpretation that was struck; consecutive hours followed by a break of the results and effectiveness of all • of at least two hours between watches mitigation and monitoring. Any Description of the behavior of the and may conduct a maximum of 12 recommendations made by NMFS must marine mammal immediately preceding hours of observation per 24-hour period. be addressed in the final report prior to and following the strike; • In cases where multiple vessels are acceptance by NMFS. If available, description of the surveying concurrently, any In addition to the final technical presence and behavior of any other observations of marine mammals must report, Equinor will provide the reports marine mammals immediately be communicated to PSOs on all survey described below as necessary during preceding the strike; vessels. survey activities. In the event that • Estimated fate of the animal (e.g., PSOs must be equipped with personnel involved in the survey dead, injured but alive, injured and binoculars and have the ability to activities covered by the authorization moving, blood or tissue observed in the estimate distances to observed marine discover an injured or dead marine water, status unknown, disappeared); mammals. Reticulated binoculars will mammal, Equinor must report the and be available to PSOs for use as incident to the NOAA Fisheries OPR • To the extent practicable, appropriate based on conditions and (301–427–8401), and to the NOAA photographs or video footage of the visibility to support the monitoring of Fisheries New England/Mid-Atlantic animal(s).

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Negligible Impact Analysis and effects and vessel strike are not expected mammals within the planned survey Determination to occur. Additionally and as discussed area. As described above, the planned NMFS has defined negligible impact previously, given the nature of activity survey areas overlap spatially with a as an impact resulting from the and sounds sources used and especially biologically important migratory area for specified activity that cannot be in consideration of the required North Atlantic right whales (effective reasonably expected to, and is not mitigation, Level A harassment is March-April and November-December) reasonably likely to, adversely affect the neither anticipated nor authorized. We that extends from Massachusetts to species or stock through effects on expect that all potential takes would be Florida (LaBrecque, et al., 2015). Off the annual rates of recruitment or survival in the form of short-term Level B coasts of Massachusetts, Rhode Island, (50 CFR 216.103). A negligible impact behavioral harassment in the form of Connecticut, New York and New Jersey, finding is based on the lack of likely temporary avoidance of the area, this biologically important migratory adverse effects on annual rates of reactions that are considered to be of area extends from the coast to beyond low severity and with no lasting recruitment or survival (i.e., population- the shelf break. Due to the fact that that biological consequences (e.g., Southall level effects). An estimate of the number the planned survey is temporary and the et al., 2007). spatial extent of sound produced by the of takes alone is not enough information Effects on individuals that are taken on which to base an impact survey would be very small relative to by Level B harassment, on the basis of the spatial extent of the available determination. In addition to reports in the literature as well as considering estimates of the number of migratory habitat in the area, and due to monitoring from other similar activities, required mitigation measures including marine mammals that might be ‘‘taken’’ will likely be limited to reactions such through harassment, NMFS considers seasonal restrictions, North Atlantic as increased swimming speeds, right whale migration is not expected to other factors, such as the likely nature increased surfacing time, or decreased of any responses (e.g., intensity, be impacted by the planned survey. As foraging (if such activity were described above, some portions of the duration), the context of any responses occurring). Most likely, individuals will (e.g., critical reproductive time or planned survey areas overlap spatially simply move away from the sound with areas that are recognized as location, migration), as well as effects source and temporarily avoid the area on habitat, and the likely effectiveness important for North Atlantic right whale where the survey is occurring. We foraging, including portions of areas that of the mitigation. We also assess the expect that any avoidance of the survey number, intensity, and context of have been designated as ESA critical area by marine mammals would be habitat due to the significance of the estimated takes by evaluating this temporary in nature and that any marine information relative to population area for North Atlantic right whale mammals that avoid the survey area feeding. Due to the fact that that the status. Consistent with the 1989 during the survey activities would not preamble for NMFS’s implementing planned survey is temporary and the be permanently displaced. Even spatial extent of sound produced by the regulations (54 FR 40338; September 29, repeated Level B harassment of some 1989), the impacts from other past and survey would very small relative to the small subset of an overall stock is spatial extent of the available foraging ongoing anthropogenic activities are unlikely to result in any significant incorporated into this analysis via their habitat in the area, as well as required realized decrease in viability for the mitigation measures including seasonal impacts on the environmental baseline affected individuals, and thus would (e.g., as reflected in the regulatory status restrictions in areas and seasons when not result in any adverse impact to the North Atlantic right whale foraging is of the species, population size and stock as a whole. Instances of more predicted to occur, North Atlantic right growth rate where known, ongoing severe behavioral harassment are whale foraging is not expected to be sources of human-caused mortality, or expected to be minimized by required impacted by the planned surveys. ambient noise levels). mitigation and monitoring measures. To avoid repetition, our analysis In addition to being temporary and As described above, North Atlantic applies to all the species listed in Table short in overall duration, the acoustic right, humpback, and minke whales, 7, given that NMFS expects the footprint of the planned survey is small and gray, harbor and harp seals are anticipated effects of the planned survey relative to the overall distribution of the experiencing ongoing UMEs. For North to be similar in nature. To be animals in the area and their use of the Atlantic right whales, as described conservative, our analyses assume that a area. Feeding behavior is not likely to be above, no injury as a result of the total of 808 exposures above the Level significantly impacted. Prey species are planned project is expected or B harassment threshold could accrue to mobile and are broadly distributed authorization, and Level B harassment all of the potentially impacted seal throughout the project area; therefore, takes of North Atlantic right whales are species (i.e., harbor, gray and harp marine mammals that may be expected to be in the form of avoidance seals), and that a total of 522 exposures temporarily displaced during survey of the immediate area of the planned above the Level B harassment threshold activities are expected to be able to survey. In addition, the number of takes could accrue to both bottlenose dolphin resume foraging once they have moved authorized above the Level B stocks that may be present (i.e., the away from areas with disturbing levels harassment threshold are relatively low Western North Atlantic offshore stock of underwater noise. Because of the (i.e., 8), and the take numbers and the Western North Atlantic temporary nature of the disturbance and authorized do not account for the northern coastal migratory stock). the availability of similar habitat and required mitigation measures, which NMFS does not anticipate that serious resources in the surrounding area, the would require shutdown of all survey injury or mortality would occur as a impacts to marine mammals and the equipment upon observation of a North result of Equinor’s planned survey, even food sources that they utilize are not Atlantic right whale prior to their in the absence of mitigation, thus the expected to cause significant or long- entering the zone that would be authorization does not authorize any term consequences for individual ensonified above the Level B serious injury or mortality. As discussed marine mammals or their populations. harassment threshold. As no injury or in the Potential Effects of Specified There are no rookeries, mating or mortality is expected or authorized, and Activities on Marine Mammals and their calving grounds known to be Level B harassment of North Atlantic Habitat section, non-auditory physical biologically important to marine right whales will be reduced to the level

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of least practicable adverse impact estimate is 6.9 million and the and their habitat, and taking into through use of required mitigation population appears to be stable (Hayes consideration the implementation of the measures, the authorized takes of North et al., 2019). required monitoring and mitigation Atlantic right whales would not The required mitigation measures are measures, NMFS finds that the total exacerbate or compound the ongoing expected to reduce the number and/or marine mammal take from the planned UME in any way. severity of takes by (1) giving animals activity will have a negligible impact on Similarly, no injury or mortality is the opportunity to move away from the all affected marine mammal species or expected or authorized for any of the sound source before HRG survey stocks. equipment reaches full energy; (2) other species with UMEs, Level B Small Numbers harassment will be reduced to the level preventing animals from being exposed As noted above, only small numbers of least practicable adverse impact to sound levels that may otherwise of incidental take may be authorized through use of required mitigation result in injury or more severe under sections 101(a)(5)(A) and (D) of measures, and the authorized takes behavioral responses. Additional vessel the MMPA for specified activities other would not exacerbate or compound the strike avoidance requirements will than military readiness activities. The ongoing UMEs. For minke whales, further mitigate potential impacts to MMPA does not define small numbers although the ongoing UME is under marine mammals during vessel transit and so, in practice, where estimated investigation (as occurs for all UMEs), to and within the survey area. NMFS concludes that exposures to numbers are available, NMFS compares this event does not provide cause for the number of individuals taken to the concern regarding population level marine mammal species and stocks due to Equinor’s planned survey would most appropriate estimation of impacts, as the likely population abundance of the relevant species or abundance is greater than 20,000 whales result in only short-term (temporary and short in duration) effects to individuals stock in our determination of whether and annual M/SI does not exceed the an authorization is limited to small calculated PBR value for minke whales. exposed. Marine mammals may temporarily avoid the immediate area, numbers of marine mammals. When the With regard to humpback whales, the predicted number of individuals to be UME does not yet provide cause for but are not expected to permanently abandon the area. Major shifts in habitat taken is fewer than one third of the concern regarding population-level species or stock abundance, the take is impacts. Despite the UME, the relevant use, distribution, or foraging success are not expected. NMFS does not anticipate considered to be of small numbers. population of humpback whales (the Additionally, other qualitative factors West Indies breeding population, or the authorized take estimates to impact annual rates of recruitment or survival. may be considered in the analysis, such DPS) remains healthy. The West Indies as the temporal or spatial scale of the DPS, which consists of the whales In summary and as described above, the following factors primarily support activities. whose breeding range includes the We propose to authorize incidental Atlantic margin of the Antilles from our determination that the impacts resulting from this activity are not take of 17 marine mammal stocks. The Cuba to northern Venezuela, and whose total amount of taking authorized is less feeding range primarily includes the expected to adversely affect the species or stock through effects on annual rates than one third for all stocks (Table 7), Gulf of Maine, eastern Canada, and which we find are small numbers of western Greenland is not listed under of recruitment or survival: • No mortality, serious injury, or marine mammals relative to the the ESA. The status review identified Level A harassment is anticipated or estimated overall population harmful algal blooms, vessel collisions, authorized; abundances for those stocks. To be and fishing gear entanglements as • The anticipated impacts of the conservative, our small numbers relevant threats for this DPS, but noted planned activity on marine mammals analysis assumes a total of 808 that all other threats are considered would primarily be in the form of exposures above the Level B harassment likely to have no or minor impact on temporary behavioral changes due to threshold could accrue to any of the population size or the growth rate of avoidance of the area around the survey potentially impacted seal species (i.e., this DPS (Bettridge et al., 2015). As vessel; harbor, gray or harp seals) and a total of described in Bettridge et al. (2015), the • The availability of alternate areas of 522 exposures above the Level B West Indies DPS has a substantial similar habitat value (for foraging and harassment threshold could accrue to population size (i.e., approximately migration) for marine mammals that both bottlenose dolphin stocks that may 10,000; Stevick et al., 2003; Smith et al., may temporarily vacate the survey areas be present (i.e., the Western North 1999; Bettridge et al., 2015), and during the planned surveys to avoid Atlantic offshore stock and the Western appears to be experiencing consistent exposure to sounds from the activity; North Atlantic northern coastal growth. With regard to gray, harbor and • The planned project area does not migratory stock). Based on the analysis harp seals, although the ongoing UME is contain known areas of significance for contained herein of the planned activity under investigation, the UME does not mating or calving; (including the proposed mitigation and yet provide cause for concern regarding • Effects on species that serve as prey monitoring measures) and the population-level impacts to any of these species for marine mammals from the anticipated take of marine mammals, stocks. For harbor seals, the population planned survey would be minor and NMFS finds that small numbers of abundance is over 75,000 and annual temporary and would not be expected to marine mammals will be taken relative M/SI (345) is well below PBR (2,006) reduce the availability of prey or to to the population size of all affected (Hayes et al., 2019). For gray seals, the affect marine mammal feeding; species or stocks. population abundance in the United • The required mitigation measures, States is over 27,000, with an estimated including visual monitoring, exclusion Unmitigable Adverse Impact Analysis abundance including seals in Canada of zones, and shutdown measures, are and Determination approximately 505,000, and abundance expected to minimize potential impacts There are no relevant subsistence uses is likely increasing in the U.S. Atlantic to marine mammals. of the affected marine mammal stocks or EEZ as well as in Canada (Hayes et al., Based on the analysis contained species implicated by this action. 2019). For harp seals, while PBR is herein of the likely effects of the Therefore, NMFS has determined that unknown, the minimum population specified activity on marine mammals the total taking of affected species or

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stocks would not have an unmitigable Submerged Lands for Renewable Energy comments.cftc.gov/FederalRegister/ adverse impact on the availability of Development on the Outer Continental PublicInfo.aspx. such species or stocks for taking for Shelf (OCS–A 0520 and OCS–A 0512) Or by either of the following methods: subsistence purposes. and along potential submarine cable • Mail: Christopher Kirkpatrick, routes to a landfall locations. Secretary of the Commission, Endangered Species Act Dated: September 21, 2020. Commodity Futures Trading Section 7(a)(2) of the Endangered Commission, Three Lafayette Centre, Donna S. Wieting, Species Act of 1973 (ESA: 16 U.S.C. 1155 21st Street NW, Washington, DC 1531 et seq.) requires that each Federal Director, Office of Protected Resources, 20581. agency insure that any action it National Marine Fisheries Service. • Hand Delivery/Courier: Same as authorizes, funds, or carries out is not [FR Doc. 2020–21137 Filed 9–24–20; 8:45 am] Mail above. likely to jeopardize the continued BILLING CODE 3510–22–P All comments must be submitted in existence of any endangered or English, or if not, accompanied by an threatened species or result in the English translation. Comments destruction or adverse modification of submitted to the Commission should designated critical habitat. To ensure COMMODITY FUTURES TRADING include only information that you wish ESA compliance for the issuance of COMMISSION to make available publicly. If you wish IHAs, NMFS consults internally Agency Information Collection the Commission to consider information whenever we propose to authorize take Activities Under OMB Review that you believe is exempt from for endangered or threatened species, in disclosure under the Freedom of this case with the Greater Atlantic AGENCY: Commodity Futures Trading Information Act, a petition for Regional Field Office (GARFO). Commission. confidential treatment of the exempt We requested initiation of ACTION: Notice. information may be submitted according consultation under section 7 of the ESA to the procedures established in § 145.9 with NMFS GARFO for the issuance of SUMMARY: In compliance with the of the Commission’s regulations.1 The this IHA. On July 30, 2020, NMFS Paperwork Reduction Act of 1995 Commission reserves the right, but shall GARFO determined our issuance of the (PRA), this notice announces that the have no obligation, to review, pre- IHA to Equinor was not likely to Information Collection Request (ICR) screen, filter, redact, refuse or remove adversely affect the North Atlantic right, abstracted below has been forwarded to any or all of your submission from fin, sei, and sperm whale or the critical the Office of Information and Regulatory https://www.cftc.gov that it may deem to habitat of any ESA-listed species or Affairs (OIRA), of the Office of be inappropriate for publication, such as result in take under the ESA. Management and Budget (OMB), for obscene language. All submissions that National Environmental Policy Act review and comment. The ICR describes have been redacted or removed that the nature of the information collection contain comments on the merits of the To comply with the National and its expected costs and burden. ICR will be retained in the public Environmental Policy Act of 1969 DATES: Comments must be submitted on comment file and will be considered as (NEPA; 42 U.S.C. 4321 et seq.) and or before October 26, 2020. required under the Administrative NOAA Administrative Order (NAO) Procedure Act and other applicable 216–6A, NMFS must review our ADDRESSES: Written comments and recommendations for the proposed laws, and may be accessible under the planned action (i.e., the issuance of an Freedom of Information Act. IHA) with respect to potential impacts information collection should be FOR FURTHER INFORMATION CONTACT: on the human environment. submitted within 30 days of this This action is consistent with notice’s publication to OIRA, at https:// Mark Bretscher, Special Counsel, categories of activities identified in www.reginfo.gov/public/do/PRAMain. Division of Swap Dealers and Categorical Exclusion B4 (incidental Please find this particular information Intermediary Oversight, Commodity harassment authorizations with no collection by selecting ‘‘Currently under Futures Trading Commission, (312) anticipated serious injury or mortality) 30-day Review—Open for Public 596–0529; email: [email protected], of the Companion Manual for NOAA Comments’’ or by using the website’s and refer to OMB Control No. 3038– Administrative Order 216–6A, which do search function. Comments can be 0091. not individually or cumulatively have entered electronically by clicking on the SUPPLEMENTARY INFORMATION: the potential for significant impacts on ‘‘comment’’ button next to the Title: Disclosure and Retention of the quality of the human environment information collection on the ‘‘OIRA Certain Information Relating to Cleared and for which we have not identified Information Collections Under Review’’ Swaps Customer Collateral (OMB any extraordinary circumstances that page, or the ‘‘View ICR—Agency Control No. 3038–0091). This is a would preclude this categorical Submission’’ page. A copy of the request for extension and revision of a exclusion. Accordingly, NMFS has supporting statement for the collection currently approved information determined that the issuance of the IHA of information discussed herein may be collection. qualifies to be categorically excluded obtained by visiting https:// Abstract: Section 724(a) of the Dodd- from further NEPA review. www.reginfo.gov/public/do/PRAMain. Frank Wall Street Reform and Consumer In addition to the submission of Protection Act, Public Law 111–023, Authorization comments to https://Reginfo.gov as 124 stat. 1376, amended the Commodity NMFS has issued an IHA to Equinor indicated above, a copy of all comments Exchange Act (‘‘CEA’’), 7 U.S.C. 1 et for the potential harassment of small submitted to OIRA may also be seq., to add, as section 4d(f) thereof, numbers of 17 marine mammal stocks submitted to the Commodity Futures provisions concerning the protection of incidental to the conducting marine site Trading Commission (the collateral provided by a Cleared Swaps characterization surveys off the coast of ‘‘Commission’’ or ‘‘CFTC’’) by clicking Customer to margin, guaranty, or secure Massachusetts, Rhode Island, on the ‘‘Submit Comment’’ box next to a swap cleared by or through a Connecticut, New York or New Jersey in the descriptive entry for OMB Control the area of the Commercial Leases of No. 3038–0091, at https:// 1 17 CFR 145.9.

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derivatives clearing organization amount of collateral required for each Authority: 44 U.S.C. 3501 et seq. (‘‘DCO’’). Broadly speaking, in cleared Cleared Swaps Customer and the sum of Dated: September 22, 2020. swaps transactions customers provide these amounts. As with section 22.11, Robert Sidman, collateral to futures commission the purpose of this collection of Deputy Secretary of the Commission. merchants (‘‘FCMs’’) through whom information is to facilitate risk they clear their transactions. FCMs, in management by DCOs and in the event [FR Doc. 2020–21224 Filed 9–24–20; 8:45 am] turn, may provide customer collateral to of default by the FCM, to enable DCOs BILLING CODE 6351–01–P DCOs, through which FCMs clear to perform their duty, pursuant to transactions for their customers. 17 CFR section 22.15, to treat the collateral part 22 is intended to implement CEA attributed to each customer of the FCM INTERNATIONAL DEVELOPMENT section 4d(f). Several of the sections of on an individual basis. FINANCE CORPORATION Part 22 require collections of Section 22.16 requires that each FCM [DFC–016] information. who has Cleared Swaps Customers Section 22.2(g) requires each FCM disclose to each of such customers the Submission for OMB Review with Cleared Swaps Customer Accounts governing provisions, as established by AGENCY: U.S. International Development to compute daily the amount of Cleared DCO rules or customer agreements Finance Corporation (DFC). Swaps Customer Collateral on deposit between collecting and depositing in Cleared Swaps Customer Accounts, FCMs, relating to use of customer ACTION: Notice of Information the amount of such collateral required collateral, transfer, neutralization of the Collection; Emergency Clearance. to be on deposit in such accounts and risks, or liquidation of cleared swaps in SUMMARY: The U.S. International the amount of the FCM’s residual the event of a default by a Depositing Development Finance Corporation financial interest in such accounts. The FCM relating to a Cleared Swaps (DFC) is submitting a request to the purpose of this collection of information Customer Account. The purpose of this Office of Management and Budget is to help ensure that FCMs’ Cleared collection of information is to ensure Swaps Customer Accounts are in (OMB) for emergency review and that Cleared Swaps Customers are clearance of a new information compliance at all times with statutory informed of the procedures to which and regulatory requirements for such collection request under the Paperwork accounts containing their swaps Reduction Act of 1995. accounts. collateral may be subject in the event of DATES: DFC intends to begin use of this Section 22.5(a) requires an FCM or a default by their FCM. collection immediately. DCO to obtain, from each depository Section 22.17 requires that each FCM with which it deposits cleared swaps produce a written notice of the reasons ADDRESSES: Requests for copies of the customer funds, a letter acknowledging and the details concerning withdrawals subject information collection may be that such funds belong to the Cleared sent by any of the following methods: from a Cleared Swaps Customers • Swaps Customers of the FCM, and not Account not for the benefit of Cleared Mail: Joanna Reynolds, Agency the FCM itself or any other person. The Swap Customers if such withdrawal Submitting Officer, U.S. International purpose of this collection of information will exceed 25% of the FCMs residual Development Finance Corporation, 1100 is to confirm that the depository interest in such account. New York Avenue NW, Washington, DC understands its responsibilities with 20527. An agency may not conduct or • respect to protection of cleared swaps sponsor, and a person is not required to Email: [email protected] Instructions: All submissions received customer funds. respond to, a collection of information must include the agency name and Section 22.11 requires each FCM that unless it displays a currently valid OMB agency form number or OMB form intermediates cleared swaps for control number. On July 17, 2020, the number for this information collection. customers on or subject to the rules of Commission published in the Federal Electronic submissions must include the a DCO, whether directly as a clearing Register notice of the proposed agency form number in the subject line member or indirectly through a extension of this information collection Collecting FCM, to provide the DCO to ensure proper routing. Please note and provided 60 days for public with information sufficient to identify that all written comments received in comment on the proposed extension, 85 each customer of the FCM whose swaps response to this notice will be FR 43547 (‘‘60-Day Notice’’) The are cleared by the FCM. Section 22.11 considered public records. Commission did not receive any also requires the FCM, at least once comments on the 60-Day Notice. FOR FURTHER INFORMATION CONTACT: daily, to provide the DCO with Burden Statement: The Commission Agency Submitting Officer: Joanna information sufficient to identify each is revising its estimate of the burden for Reynolds, (202) 357–3979. customer’s portfolio of rights and this collection for 78 respondents (63 SUPPLEMENTARY INFORMATION: In obligations arising out of cleared swaps FCMs and 15 DCOs). The respondent accordance with the Paperwork intermediated by the FCM. The purpose burden for this collection is estimated to Reduction Act (PRA), the U.S. of this collection of information is to be as follows: International Development Finance facilitate risk management by DCOs in Estimated Number of Respondents: Corporation (DFC) is seeking emergency the event of default by the FCM, to 78. clearance from OMB on a new enable DCOs to perform their duty, Estimated Average Burden Hours per information collection titled DFC–016, pursuant to section 22.15, to treat the Respondent: 331. DFC-Serbia—Kosovo Screening Tool. collateral attributed to each customer of Estimated Total Annual Burden Summary Form Under Review the FCM on an individual basis. Hours: 25,890. Section 22.12 requires that each DCO Frequency of Collection: Section Title of Collection: DFC-Serbia— and FCM, on a daily basis, calculate, 22.2(g)—Daily. Kosovo Screening Tool based on information received pursuant Section 22.5(a)—Once. Type of Review: New information to section 22.11 and on information Section 22.11—Daily. collection. generated and used in the ordinary Section 22.12—Daily. Agency Form Number: DFC–016. course of business by the DCO or FCM, Section 22.16—Once. OMB Form Number: Not assigned, and record certain information about the Section 22.17—On occasion. new information collection.

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Frequency: Once per user per project. • Draft EIS and Notice of Availability (Ops-1); Malmstrom AFB, MT (Ops-2); Affected Public: Business or other for- (NOA) Publication, Spring 2022 and Minot AFB, ND (Ops-3). The profit; not-for-profit institutions; • Draft EIS Public Comment Period and additional maintenance, training, individuals. Hearing, Spring 2022 storage, testing, support, Total Estimated Number of Annual • Final EIS and NOA Publication, decommissioning, and disposal actions Number of Respondents: 100. Spring 2023 would occur at Hill AFB, UT; the Utah Estimated Time Per Respondent: 1.5 • Final ROD signature, Spring 2023 Test and Training Range (UTTR), UT; hours. Given the complexity and the scope of Camp Guernsey, WY; and Camp Navajo, Total Estimated Number of Annual this proposal, the Air Force anticipates AZ. Burden Hours: 150 hours. the environmental analysis to extend The EIS may consider alternatives Abstract: The DFC Serbia-Kosovo past two years for completion and has that include deploying the GBSD system Investment Portal will be the principal received senior agency official approval. in phases. The Proposed Action would document used by DFC to screen the ADDRESSES: For GBSD deployment EIS not include generating or disposing of viability of potential of projects for DFC inquiries or requests for printed or nuclear material, and the number of financing as part of the implementation digital copies of the scoping materials, ground based nuclear missiles would of the Serbia-Kosovo Economic please contact Capt Christina Camp, remain unchanged. Deployment of the Normalization Agreement. phone: (318) 456–6519, or request GBSD system would begin in the mid- materials by email: 2020s, extending the capabilities of the Nichole Skoyles, [email protected]. ground-based leg of the U.S. nuclear Administrative Counsel, Office of the General The public and interested parties can triad through at least 2075. Counsel. submit their comments through the The EIS will analyze facility [FR Doc. 2020–21157 Filed 9–24–20; 8:45 am] project website at www.gbsdeis.com; or construction, modification, and BILLING CODE 3210–02–P mail comments to AFCEC/CZN, Attn: operations at and around Francis E. GBSD Project EIS, 2261 Hughes Avenue, Warren AFB and Camp Guernsey, Suite 155, JBSA Lackland TX 78236– Malmstrom AFB, Minot AFB, Hill AFB DEPARTMENT OF DEFENSE 9853; FedEx and UPS deliveries to and UTTR, and Camp Navajo. During the transition from Minuteman III to AFCEC/CZN, Attn: GBSD Project EIS; GBSD, the two weapon systems would Department of the Air Force 3515 S General McMullen, San Antonio, be partially operated and maintained TX 78226–9853. Notice of Intent To Prepare an concurrently for several years; therefore, Environmental Impact Statement for SUPPLEMENTARY INFORMATION: The the EIS also will analyze the the Ground Based Strategic Deterrent purpose of the proposed action is to overlapping actions and resulting Deployment and Minuteman III replace all ground based Minuteman III impacts of conducting aspects of the Decommissioning and Disposal weapons systems within the continental programs in parallel. The EIS will also United States with the GBSD system. analyze the No Action Alternative AGENCY: Department of the Air Force, The proposed action is needed to meet which will also be fully considered. It Department of Defense. national security requirements and to serves as the baseline against which to ACTION: Notice of intent. comply with the John S. McCain compare the Proposed Action. Under National Defense Authorization Act for the No Action Alternative, the Air Force SUMMARY: The United States Air Force Fiscal Year 2019 (Pub. L. 115–232 would continue to maintain and operate (Air Force) is issuing this Notice of § 1663, 132 Stat. 2153), which directs the Minuteman III weapon system in its Intent (NOI) to advise the public of its the Air Force to develop and implement current configuration and the GBSD intent to prepare an Environmental a strategy ‘‘to accelerate the system would not be deployed. Impact Statement (EIS) to evaluate development, procurement, and fielding Expected environmental impacts are potential impacts on the human and of the ground-based strategic deterrent assumed to result from ground natural environments of deploying the program.’’ The scope of the deployment disturbing activities associated with Ground Based Strategic Deterrent activities would include replacing all construction of the GBSD system. It is (GBSD) intercontinental ballistic missile ground based Minuteman III ICBMs in anticipated that these environmental (ICBM) system and decommissioning the United States, including motors, impacts, will be mitigated to the extent and disposing of the Minuteman III interstages, and missile guidance sets, practical or avoided where possible. ICBM system. The Air Force invites with the GBSD weapon system, a Further, the Air Force will pursue all public participation in the scoping technologically advanced ICBM system. required Federal and State permits, process to determine the scope and All launch facilities, communication licenses, and other authorizations significant issues to be analyzed in systems, infrastructure, and during the course of this EIS process, depth in the EIS and eliminate issues technologies would be modernized and including but not limited to which are not significant. replaced as necessary to support the consultations under the National DATES: A public scoping period of 45- GBSD system. Historic Preservation Act of 1966 (54 days will take place starting from the The Secretary of the Air Force U.S.C. 300101 et seq.) and the date of this NOI publication in the announced that the GBSD deployment Endangered Species Act of 1973 (16 Federal Register. Comments will be will take place at three sequenced U.S.C. 1531 et seq.), as well as permits accepted at any time during the Operational Locations 1–3 (‘‘Ops 1–3’’), under the Resource Conservation and environmental impact analysis process; with the scope of each Ops location Recovery Act (42 U.S.C. 6901 et seq). however, to ensure the Air Force has occurring both on-base and in the The scoping process allows and sufficient time to consider public associated missile fields. The Ops invites early and meaningful scoping comments during preparation of locations are the alternatives being participation by the public and is used the Draft EIS, please submit comments consider in the EIS. Each location is the to define the full range of issues and within the 45-days scoping period. preferred alternative for its respective concerns to be evaluated in the EIS. As Major milestone dates for the GBSD EIS sequenced order, and includes Francis such, the Air Force is soliciting scoping are as follows: E. Warren Air Force Base (AFB) WY comments and/or identification of

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potential alternatives, information, and SUPPLEMENTARY INFORMATION: The under a student’s cost of attendance analysis relevant to the proposed action Department of Education (ED), in such as food, housing, course materials, from interested local, state, and federal accordance with the Paperwork technology, health care, and child care). agencies and organizations; Native Reduction Act of 1995 (PRA) (44 U.S.C. Dated: September 22, 2020. 3506(c)(2)(A)), provides the general American Tribes; and members of the Kate Mullan, public. Concurrently, public scoping public and Federal agencies with an opportunity to comment on proposed, PRA Coordinator, Strategic Collections and notices will be announced locally Clearance, Governance and Strategy Division, within the proposed actions region of revised, and continuing collections of Office of Chief Data Officer, Office of influence. Due to public health concerns information. This helps the Department Planning, Evaluation and Policy related to COVID–19, the Air Force will assess the impact of its information Development. not hold face-to-face public scoping collection requirements and minimize [FR Doc. 2020–21187 Filed 9–24–20; 8:45 am] the public’s reporting burden. It also meetings. Public scoping will be BILLING CODE 4000–01–P accomplished remotely via the project helps the public understand the website that includes materials on the Department’s information collection project website at www.gbsdeis.com. requirements and provide the requested DEPARTMENT OF EDUCATION The website provides posters, slides, data in the desired format. ED is other meeting materials, and a soliciting comments on the proposed [Docket No.: ED–2020–SCC–0082] information collection request (ICR) that capability to provide public scoping Agency Information Collection is described below. The Department of comments. To make alternative Activities; Submission to the Office of Education is especially interested in arrangements to receive printed or Management and Budget for Review public comment addressing the digital copies of the scoping materials, and Approval; Comment Request please contact Capt Christina Camp at following issues: (1) Is this collection (318) 456–6519, or by email: necessary to the proper functions of the AGENCY: Office of Postsecondary [email protected]. Department; (2) will this information be Education, Department of Education processed and used in a timely manner; (ED). Adriane Paris, (3) is the estimate of burden accurate; ACTION: Notice. Acting Air Force Federal Register Liaison (4) how might the Department enhance Officer. the quality, utility, and clarity of the SUMMARY: In accordance with the [FR Doc. 2020–21220 Filed 9–24–20; 8:45 am] information to be collected; and (5) how Paperwork Reduction Act of 1995, ED is BILLING CODE 5001–10–P might the Department minimize the proposing an extension without change burden of this collection on the of a currently approved collection. respondents, including through the use DATES: Interested persons are invited to DEPARTMENT OF EDUCATION of information technology. Please note submit comments on or before October that written comments received in [Docket No. ED–2020–SCC–0072] 26, 2020. response to this notice will be ADDRESSES: Written comments and Agency Information Collection considered public records. recommendations for proposed Activities; Submission to the Office of Title of Collection: Recipient’s information collection requests should Management and Budget for Review Funding Certification and Agreement be sent within 30 days of publication of and Approval; Comment Request; CARES Act. this notice to www.reginfo.gov/public/ Recipient’s Funding Certification and OMB Control Number: 1801–0005. do/PRAMain. Find this particular Type of Review: An extension without Agreement CARES Act information collection request by change of a currently approved selecting ‘‘Department of Education’’ AGENCY: Office of General Counsel, collection. under ‘‘Currently Under Review,’’ then Respondents/Affected Public: Private Department of Education (ED). check ‘‘Only Show ICR for Public Sector; State, Local, and Tribal ACTION: Notice. Comment’’ checkbox. Governments. FOR FURTHER INFORMATION CONTACT: For SUMMARY: In accordance with the Total Estimated Number of Annual specific questions related to collection Paperwork Reduction Act of 1995, ED is Responses: 34,230. activities, please contact Gaby Watts, proposing an extension without change Total Estimated Number of Annual 202–453–7195. of a currently approved collection. Burden Hours: 17,115. Abstract: The Department of SUPPLEMENTARY INFORMATION: The DATES: Interested persons are invited to Education (the Department) is Department of Education (ED), in submit comments on or before October requesting clearance to allow for accordance with the Paperwork 26, 2020. immediate outreach to institutions of Reduction Act of 1995 (PRA) (44 U.S.C. ADDRESSES: Written comments and higher educations (IHEs) to meet the 3506(c)(2)(A)), provides the general recommendations for proposed requirements of the CARES Act. Section public and Federal agencies with an information collection requests should 18004(a)(1) of the CARES Act, Public opportunity to comment on proposed, be sent within 30 days of publication of Law 116–136 (March 27, 2020), revised, and continuing collections of this notice to www.reginfo.gov/public/ authorizes the Secretary of Education information. This helps the Department do/PRAMain. Find this particular (‘‘Secretary’’) to allocate formula grant assess the impact of its information information collection request by funds to participating institutions of collection requirements and minimize selecting ‘‘Department of Education’’ higher educations (IHEs). Section the public’s reporting burden. It also under ‘‘Currently Under Review,’’ then 18004(c) of the CARES Act requires the helps the public understand the check ‘‘Only Show ICR for Public IHEs to use no less than fifty percent of Department’s information collection Comment’’ checkbox. the funds received to provide requirements and provide the requested FOR FURTHER INFORMATION CONTACT: For emergency financial aid grants to data in the desired format. ED is specific questions related to collection students for expenses related to the soliciting comments on the proposed activities, please contact Jack Cox, 202– disruption of campus operations due to information collection request (ICR) that 453–6314. coronavirus (including eligible expenses is described below. The Department of

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Education is especially interested in Dated: September 22, 2020. Education is especially interested in public comment addressing the Kate Mullan, public comment addressing the following issues: (1) Is this collection PRA Coordinator, Strategic Collections and following issues: (1) Is this collection necessary to the proper functions of the Clearance Governance and Strategy Division, necessary to the proper functions of the Department; (2) will this information be Office of Chief Data Officer, Office of Department; (2) will this information be processed and used in a timely manner; Planning, Evaluation and Policy processed and used in a timely manner; Development. (3) is the estimate of burden accurate; (3) is the estimate of burden accurate; (4) how might the Department enhance [FR Doc. 2020–21215 Filed 9–24–20; 8:45 am] (4) how might the Department enhance the quality, utility, and clarity of the BILLING CODE 4000–01–P the quality, utility, and clarity of the information to be collected; and (5) how information to be collected; and (5) how might the Department minimize the might the Department minimize the DEPARTMENT OF EDUCATION burden of this collection on the burden of this collection on the respondents, including through the use respondents, including through the use [Docket No.: ED–2020–SCC–0073] of information technology. Please note of information technology. Please note Agency Information Collection that written comments received in that written comments received in Activities; Submission to the Office of response to this notice will be response to this notice will be Management and Budget for Review considered public records. considered public records. and Approval; Comment Request; Title of Collection: CARES Act, Title of Collection: CARES Act, CARES Act, Recipient’s Funding Recipient’s Funding Certification and Recipient’s Funding Certification and Certification and Agreement Agreement (Institutional Aid). Agreement (SIP, MSI, FIPSE). (Institutional Aid) OMB Control Number: 1840–0842. OMB Control Number: 1840–0843. Type of Review: An extension without AGENCY: Office of Postsecondary change of a currently approved Type of Review: An extension without Education, Department of Education collection. change of a currently approved (ED). Respondents/Affected Public: Private collection. ACTION: Notice. Sector; State, Local, and Tribal Governments. Respondents/Affected Public: Private SUMMARY: In accordance with the Total Estimated Number of Annual Sector; State, Local, and Tribal Paperwork Reduction Act of 1995, ED is Responses: 5,705. Governments. proposing an extension without change Total Estimated Number of Annual of a currently approved collection. Total Estimated Number of Annual Burden Hours: 2,853. Responses: 2,620. DATES: Interested persons are invited to Abstract: Section 18004(a)(1) of the Total Estimated Number of Annual submit comments on or before October CARES Act, Public Law 116–136 (March Burden Hours: 2,620. 26, 2020. 27, 2020), authorizes the Secretary of Abstract: Section 18004(a)(2) of the ADDRESSES: Written comments and Education to allocate formula grant CARES Act, Public Law 116–136 (March recommendations for proposed funds to participating institutions of information collection requests should 27, 2020), authorizes the Secretary to higher educations (IHEs). Section be sent within 30 days of publication of make awards under parts A and B of 18004(c) of the CARES Act allows the this notice to www.reginfo.gov/public/ IHEs to use up to one-half of the total title III, parts A and B of title V, and do/PRAMain. Find this particular funds received to cover any costs subpart 4 of part A of title VII of the information collection request by associated with the significant changes Higher Education Act of 1965, as selecting ‘‘Department of Education’’ to the delivery of instruction due to the amended (‘‘HEA’’), to address needs under ‘‘Currently Under Review,’’ then coronavirus (with specific exceptions). directly related to the coronavirus. check ‘‘Only Show ICR for Public This information collection request These awards are in addition to awards Comment’’ checkbox. includes the certification and agreement made in Section 18004(a)(1) of the FOR FURTHER INFORMATION CONTACT: For that must be submitted by an IHE in CARES Act. Section 18004(a)(3) of the specific questions related to collection order to request institutional aid funds CARES Act, Pub. authorizes the activities, please contact Gaby Watts, allocated under the CARES Act. Secretary to allocate funds for part B of 202–453–7195. This information collection request Title VII of the HEA, for institutions of SUPPLEMENTARY INFORMATION: The was previously approved as an higher education (IHEs) that the Department of Education (ED), in emergency clearance in order to comply Secretary determines have the greatest accordance with the Paperwork with the requirements of the CARES Act unmet needs related to coronavirus. Reduction Act of 1995 (PRA) (44 U.S.C. and expedite the release of funds to This information collection request 3506(c)(2)(A)), provides the general IHEs and students with pressing (ICR) includes the certifications, and in public and Federal agencies with an financial needs due to the pandemic. some cases additional data, that IHEs opportunity to comment on proposed, The Department of Education is now must submit to request funds allocated revised, and continuing collections of requesting an extension of that emergency clearance under normal under Sections 18004(a)(2) and information. This helps the Department clearance procedures. 18004(a)(3) of the CARES Act. This ICR assess the impact of its information was previously approved as an collection requirements and minimize Dated: September 22, 2020. emergency clearance in order to comply the public’s reporting burden. It also Kate Mullan, with the requirements of the CARES Act helps the public understand the PRA Coordinator, Strategic Collections and and expedite the release of funds to Department’s information collection Clearance Governance and Strategy Division, IHEs and students with pressing requirements and provide the requested Office of Chief Data Officer, Office of data in the desired format. ED is Planning, Evaluation and Policy financial needs due to the pandemic. soliciting comments on the proposed Development. information collection request (ICR) that [FR Doc. 2020–21212 Filed 9–24–20; 8:45 am] is described below. The Department of BILLING CODE 4000–01–P

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DEPARTMENT OF EDUCATION respondents, including through the use difficulty in submitting comments of information technology. Please note within that period, contact the person [Docket No.: ED–2020–SCC–0077] that written comments received in listed in ADDRESSES as soon as possible. Agency Information Collection response to this notice will be ADDRESSES: Comments may be sent to Activities; Submission to the Office of considered public records. Christopher A. Lawrence, Transmission Management and Budget for Review Title of Collection: Certification and Permitting and Technical Assistance, and approval; Comment Request; Agreement for the ESSER Fund Office of Electricity, U.S. Department of Certification and Agreement for the Application. Energy, Washington, DC, ESSER Fund Application OMB Control Number: 1810–0743. [email protected]. Type of Review: A revision of a FOR FURTHER INFORMATION CONTACT: AGENCY: Office of Elementary and currently approved collection. Requests for additional information or Secondary Education, Department of Respondents/Affected Public: State, copies of the information collection Education (ED). Local, and Tribal Governments. instrument and instructions should be Total Estimated Number of Annual ACTION: Notice directed to Christopher A. Lawrence, at Responses: 1,952. [email protected] or SUMMARY: In accordance with the Total Estimated Number of Annual 202–586–5260. Paperwork Reduction Act of 1995, ED is Burden Hours: 76,653. SUPPLEMENTARY INFORMATION: proposing a revision of a currently Abstract: Under the Elementary and This approved collection. Secondary School Emergency Relief information collection request contains: (1) OMB No.: 1910–5185; (2) DATES: Fund (ESSER Fund), the Department Interested persons are invited to Information Collection Request Title: submit comments on or before October awards grants to State educational agencies (SEAs) for the purpose of Coordination of Federal Authorizations 26, 2020. for Electric Transmission Facilities; (3) ADDRESSES: Written comments and providing local educational agencies (LEAs), including charter schools that Type of Request: Extension; (4) Purpose: recommendations for proposed To meet requirements found in Section information collection requests should are LEAs, with emergency relief funds to address the impact that Novel 216(h)(4)(c) of the Federal Power Act be sent within 30 days of publication of directing DOE to establish a pre- this notice to www.reginfo.gov/public/ Coronavirus Disease 2019 (COVID–19) has had, and continues to have, on application process for qualifying do/PRAMain. Find this particular electric transmission projects requiring information collection request by elementary and secondary schools across the nation. LEAs must provide multiple Federal authorizations. Section selecting ‘‘Department of Education’’ 216(h)(3) also allows an applicant to under ‘‘Currently under Review,’’ then equitable services to students and teachers in non-public schools as seek assistance for non-qualifying check ‘‘Only Show ICR for Public projects. Data supplied will be used to Comment’’ checkbox. required under the Coronavirus Aid, Relief, and Economic Security Act support an Initiation Request necessary FOR FURTHER INFORMATION CONTACT: For (CARES Act). to begin DOE’s coordination assistance specific questions related to collection and must include, based on best activities, please contact Christopher Dated: September 22, 2020 available information, a Summary of Tate, 202–453–6047. Kate Mullan, Qualifying Project, Affected SUPPLEMENTARY INFORMATION: The PRA Coordinator, Strategic Collections and Environmental Resources and Impacts Department of Education (ED), in Clearance, Governance and Strategy Division, Summary, associated Maps, Geospatial accordance with the Paperwork Office of Chief Data Officer, Office of Information, and Studies (provided in Planning, Evaluation and Policy Reduction Act of 1995 (PRA) (44 U.S.C. Development. electronic format), and a Summary of 3506(c)(2)(A)), provides the general Early Identification of Project Issues. public and Federal agencies with an [FR Doc. 2020–21205 Filed 9–24–20; 8:45 am] Comments are invited on: (a) Whether opportunity to comment on proposed, BILLING CODE 4000–01–P the proposed collection of information revised, and continuing collections of is necessary for the proper performance information. This helps the Department of the functions of the agency, including assess the impact of its information DEPARTMENT OF ENERGY whether the information shall have collection requirements and minimize practical utility; (b) the accuracy of the Proposed Agency Information the public’s reporting burden. It also agency’s estimate of the burden of the Collection Regarding Coordination of helps the public understand the proposed collection of information, Federal Authorizations for Electric Department’s information collection including the validity of the Transmission Facilities requirements and provide the requested methodology and assumptions used; (c) data in the desired format. ED is AGENCY: Office of Electricity, ways to enhance the quality, utility, and soliciting comments on the proposed Department of Energy. clarity of the information to be information collection request (ICR) that ACTION: Notice and request for collected; and (d) ways to minimize the is described below. The Department of comments. burden of the collection of information Education is especially interested in on respondents, including through the public comment addressing the SUMMARY: The Department of Energy use of automated collection techniques following issues: (1) Is this collection (DOE) invites public comment on a or other forms of information necessary to the proper functions of the proposed extension of a collection of technology. This data will also be used Department; (2) will this information be information that DOE is developing for to conduct audits and for enforcement processed and used in a timely manner; submission to the Office of Management purposes. There has been no collection (3) is the estimate of burden accurate; and Budget (OMB) pursuant to the under this authority since its inception. (4) how might the Department enhance Paperwork Reduction Act of 1995. (5) Annual Estimated Number of the quality, utility, and clarity of the DATES: Comments regarding this Respondents: 5, as this collection is information to be collected; and (5) how proposed information collection addressed to portion of the electric might the Department minimize the extension must be received on or before utility industry; (6) Annual Estimated burden of this collection on the November 24, 2020. If you anticipate Number of Burden Hours: 55 minutes

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per response; (7) Annual Estimated the Federal Power Act (16 U.S.C. electric energy to Canada should be Reporting and Recordkeeping Cost 824a(e)). clearly marked with OE Docket No. EA– Burden: $5,075.84. On August 25, 2020, Vitol filed an 370–B. Additional copies are to be Statutory Authority: Federal Power application with DOE (Application or provided directly to Robert Viola, 2925 Act, Sections 216(h)(3) and 216(h)(4)(c). App.) to transmit electric energy from Richmond Avenue, 11th Floor, Houston, the United States to Canada for a term Signing Authority TX 77098; [email protected]; Daniel E. of five years. Vitol states that it ‘‘is a Frank, 700 Sixth St. NW, Suite 700, This document of the Department of Delaware corporation with its principal Washington, DC 20001; danielfrank@ Energy was signed on September 18, place of business in Houston, Texas’’ eversheds-sutherland.com; Martha M. 2020, by Bruce J. Walker, Assistant and that it ‘‘is a wholly-owned, direct Hopkins, 700 Sixth St. NW, Suite 700, Secretary, Office of Electricity, pursuant subsidiary of Vitol US Holding Co.’’ Washington, DC 20001; martyhopkins@ to delegated authority from the App. at 2. Vitol adds that it ‘‘does not eversheds-sutherland.com. Secretary of Energy. That document own any electric generation or A final decision will be made on the with the original signature and date is transmission facilities, nor does it hold Application after the environmental maintained by DOE. For administrative a franchise or service territory for the impacts have been evaluated pursuant purposes only, and in compliance with transmission, distribution, or sale of to DOE’s National Environmental Policy requirements of the Office of the Federal electric power.’’ Id. at 4. Act Implementing Procedures (10 CFR Register, the undersigned DOE Federal Vitol further states that it ‘‘has part 1021) and after DOE determines Register Liaison Officer has been purchased, or will purchase, the power that the proposed action will not have authorized to sign and submit the that may be exported to Canada from an adverse impact on the sufficiency of document in electronic format for wholesale generators, electric utilities, supply or reliability of the U.S. electric publication, as an official document of and federal power marketing agencies.’’ power supply system. the Department of Energy. This App. at 4. Vitol contends that any power Copies of the Application will be administrative process in no way alters it purchases for export would be made available, upon request, by the legal effect of this document upon ‘‘surplus to the needs of the selling accessing the program website at http:// publication in the Federal Register. entities’’ and that ‘‘the proposed exports energy.gov/node/11845, or by emailing will not impair or tend to impede the Signed in Washington, DC, on September Matthew Aronoff at matthew.aronoff@ 22, 2020. sufficiency of electric power supplies in hq.doe.gov. the United States or the regional Treena V. Garrett, coordination of electric utility planning Signed in Washington, DC, on September 21, 2020. Federal Register Liaison Officer, U.S. or operations.’’ Id. at 5. Department of Energy. Vitol also ‘‘agrees to abide by the Christopher Lawrence, [FR Doc. 2020–21170 Filed 9–24–20; 8:45 am] export limits . . . of any [approved] Management and Program Analyst, BILLING CODE 6450–01–P transmission facilities over which Vitol Transmission Permitting and Technical exports electric power to Canada,’’ and Assistance, Office of Electricity. states that ‘‘[t]he controls that are [FR Doc. 2020–21192 Filed 9–24–20; 8:45 am] DEPARTMENT OF ENERGY inherent in any transaction that BILLING CODE 6450–01–P [OE Docket No. EA–370–B] complies with all [reliability] requirements and the export limits Application to Export Electric Energy; imposed by the Department on the DEPARTMENT OF ENERGY Vitol Inc. international transmission facilities are Agency Information Collection AGENCY: Office of Electricity, sufficient to ensure that exports by Vitol Extension Department of Energy. would not impede or tend to impede the coordinated use of transmission AGENCY: U.S. Department of Energy. ACTION: Notice of application. facilities’’ under the Federal Power Act. ACTION: Notice and request for OMB SUMMARY: Vitol Inc. (Applicant or Vitol) App. at 6. review and comment. has applied for authorization to transmit The existing international SUMMARY: electric energy from the United States to transmission facilities to be utilized by The Department of Energy Canada pursuant to the Federal Power the Applicant have previously been (DOE) invites public comment on a Act. authorized by Presidential permits proposed collection of information that issued pursuant to Executive Order DOE is developing for submission to the DATES: Comments, protests, or motions 10485, as amended, and are appropriate Office of Management and Budget to intervene must be submitted on or for open access transmission by third (OMB) pursuant to the Paperwork before October 26, 2020. parties. Reduction Act of 1995. The information ADDRESSES: Comments, protests, Procedural Matters: Any person collection requests a three-year motions to intervene, or requests for desiring to be heard in this proceeding extension of its Semi-Annual Davis- more information should be addressed should file a comment or protest to the Bacon Enforcement Report. All Federal by electronic mail to Application at the address provided agencies administering programs subject [email protected], or by above. Protests should be filed in to Davis-Bacon wage provisions are facsimile to (202) 586–8008. accordance with Rule 211 of the Federal required by to submit a report of all new SUPPLEMENTARY INFORMATION: The Energy Regulatory Commission’s (FERC) covered contracts/projects and all Department of Energy (DOE) regulates Rules of Practice and Procedure (18 CFR compliance and enforcement activities exports of electricity from the United 385.211). Any person desiring to every six months to the Department of States to a foreign country, pursuant to become a party to this proceeding Labor (DOL). In order for DOE to sections 301(b) and 402(f) of the should file a motion to intervene at the comply with this reporting requirement, Department of Energy Organization Act above address in accordance with FERC it must collect contract and enforcement (42 U.S.C. 7151(b) and 42 U.S.C. Rule 214 (18 CFR 385.214). information from the Recovery Act 7172(f)). Such exports require Comments and other filings funded Loan Borrowers, Loan Guarantee authorization under section 202(e) of concerning Vitol’s application to export Borrowers, DOE direct contractors, and

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other prime contractors that administer Counsel for Transactions, Technology Foreign Affairs Specialist, Office of DOE programs subject to Davis-Bacon and Contractor Human Resources, Nonproliferation and Arms Control, requirements. DOE will require that pursuant to delegated authority from the National Nuclear Security such entities complete and submit a Secretary of Energy. That document Administration, U.S. Department of Semi-Annual Enforcement Report every with the original signature and date is Energy, 1000 Independence Ave. SW, six months, by the 21st of April and the maintained by DOE. For administrative Washington, DC 20585, jessica.norles@ 21st of October each year. purposes only, and in compliance with nnsa.doe.gov, (202) 586–2271. DATES: Comments regarding this requirements of the Office of the Federal SUPPLEMENTARY INFORMATION: DOE collection must be received on or before Register, the undersigned DOE Federal published in the Federal Register a November 24, 2020. If you anticipate Register Liaison Officer has been Notice of Availability for the American difficulty in submitting comments authorized to sign and submit the Assured Fuel Supply (AAFS). 76 FR within that period, contact the person document in electronic format for 51357 (Aug. 18, 2011), and an listed below as soon as possible. publication, as an official document of application to standardize the the Department of Energy. This ADDRESSES: Written comments should information that must be provided in a administrative process in no way alters be sent to: request to access the material in the the legal effect of this document upon AAFS. 78 FR 72071 (Dec. 2, 2013). DOE DOE Desk Officer, Office of Information publication in the Federal Register. and Regulatory Affairs, Office of previously submitted an information Management and Budget, New Signed in Washington, DC, on September collection extension request to the OMB 22, 2020. Executive Office Building, Room for an extension under the Paperwork 10102, 735 17th Street, NW, Treena V. Garrett, Reduction Act of 1995 in 2017. 82 FR Washington, DC 20503 Federal Register Liaison Officer, U.S. 17650 (April 12, 2017). Department of Energy. Comments are invited on: (a) Whether And to: [FR Doc. 2020–21171 Filed 9–24–20; 8:45 am] the extended collection of information John M. Sullivan, GC–63, U.S. BILLING CODE 6450–01–P is necessary for the proper performance Department of Energy, 1000 of the functions of the agency, including Independence Avenue SW, whether the information shall have Washington, DC 20585, Or by fax at DEPARTMENT OF ENERGY practical utility; (b) the accuracy of the (202) 586–0971; or by email to agency’s estimate of the burden of the [email protected]. National Nuclear Security proposed collection of information, FOR FURTHER INFORMATION CONTACT: Administration including the validity of the Requests for additional information or Agency Information Collection methodology and assumptions used; (c) copies of the information collection Extension ways to enhance the quality, utility, and instrument and instructions should be clarity of the information to be directed to: AGENCY: National Nuclear Security collected; and (d) ways to minimize the John M. Sullivan, Attorney-Advisor Administration, Department of Energy. burden of the collection of information (Labor), GC–63, U.S. Department of ACTION: Notice and request for on respondents, including through the Energy, 1000 Independence Avenue comments. use of automated collection techniques SW, Washington, DC 20585, or by fax or other forms of information at (202) 586–0971 or by email to SUMMARY: Pursuant to the Paperwork technology. [email protected]. Reduction Act of 1995, the Department This information collection request of Energy (DOE) intends to extend for SUPPLEMENTARY INFORMATION: This contains: (1) OMB No.: 1910–5173; (2) three years, an information collection information collection request contains: Information Collection Request Title: request with the Office of Management (1) OMB No.: 1910–5165; (2) The American Assured Fuel Supply and Budget (OMB). Information Collection Request Title: Program; (3) Type of Review: Extension; Davis-Bacon Semi-Annual Enforcement DATES: Comments regarding this (4) Purpose: DOE created the AAFS, a Report; (3) Type of Request: Renewal; proposed information collection must reserve of low enriched uranium (LEU) (4) Purpose: This information collection be received on or before November 24, to serve as a backup fuel supply for ensures Departmental compliance with 2020. If you anticipate difficulty in foreign recipients to be supplied 29 CFR 5.7(b). The respondents are submitting comments within that through U.S. persons, or for domestic Department of Energy M&O, Facilities period, contact the person listed below recipients, in the event of fuel supply Management Contractors, and recipients as soon as possible. disruption. This effort supports the of financial assistance whose work is ADDRESSES: Written comments to Jessica United States Government’s nuclear subject to the Davis-Bacon Act and Norles, Foreign Affairs Specialist, by nonproliferation objectives by Davis-Bacon Related Acts; (5) Annual mail at Office of Nonproliferation and supporting civilian nuclear energy Estimated Number of Respondents: 75; Arms Control, National Nuclear development while minimizing (6) Annual Estimated Number of Total Security Administration, U.S. proliferation risks. This collection of Responses: 150; (7) Annual Estimated Department of Energy, 1000 information in the event of supply Number of Burden Hours: 2 per Independence Ave. SW, Washington, disruption is necessary for DOE to respondent annually, for a total of 300 DC 20585, or by fax at (202) 586–1348 identify if applicants meet basic per year; (8) Annual Estimated or by email at jessica.norles@ requirements to access the AAFS and Reporting and Recordkeeping Cost nnsa.doe.gov. Due to potential delays in implement this important Burden: $103.00 per respondent. DOE’s receipt and processing of mail nonproliferation initiative; (5) Annual Statutory Authority: 29 CFR 5.7(b). sent through the U.S. Postal Service, Estimated Number of Respondents: 10; DOE encourages responders to submit (6) Annual Estimated Number of Total Signing Authority comments electronically to ensure Responses: 10; (7) Annual Estimated This document of the Department of timely receipt. Number of Burden Hours: 8 per Energy was signed on September 21, FOR FURTHER INFORMATION CONTACT: For respondent for a total of 80 per year; (8) 2020, by John T. Lucas, Deputy General other questions, contact Jessica Norles, Annual Estimated Reporting and

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Recordkeeping Cost Burden: $960.13 authorization, under 18 CFR part 34, of Applicants: Portland Natural Gas per respondent for a total of $9,601.28 future issuances of securities and Transmission System. per year. assumptions of liability, is October 12, Description: § 4(d) Rate Filing: PXP 2020. Signing Authority Phase III Agreement Filing to be The Commission encourages effective 11/1/2020. This document of the Department of electronic submission of protests and Filed Date: 9/18/20. Energy was signed on September 22, interventions in lieu of paper, using the Accession Number: 20200918–5020. 2020, by Brent K. Park, Deputy FERC Online links at http:// Administrator for Defense Nuclear www.ferc.gov. To facilitate electronic Comments Due: 5 p.m. ET 9/30/20. Nonproliferation, National Nuclear service, persons with internet access Docket Numbers: RP20–1198–000. Security Administration, pursuant to who will eFile a document and/or be Applicants: Northwest Pipeline LLC. delegated authority from the Secretary listed as a contact for an intervenor Description: § 4(d) Rate Filing: 2020 of Energy. That document with the must create and validate an Housekeeping Filing to be effective 10/ original signature and date is eRegistration account using the 3/2020. maintained by DOE. For administrative eRegistration link. Select the eFiling purposes only, and in compliance with link to log on and submit the Filed Date: 9/18/20. requirements of the Office of the Federal intervention or protests. Accession Number: 20200918–5039. Register, the undersigned DOE Federal Comments Due: 5 p.m. ET 9/30/20. Register Liaison Officer has been Persons unable to file electronically authorized to sign and submit the may mail similar pleadings to the Docket Numbers: RP20–1199–000. Federal Energy Regulatory Commission, document in electronic format for Applicants: ANR Storage Company. 888 First Street NE, Washington, DC publication, as an official document of Description: § 4(d) Rate Filing: the Department of Energy. This 20426. Hand delivered submissions in docketed proceedings should be Creditworthiness to be effective 10/18/ administrative process in no way alters 2020. the legal effect of this document upon delivered to Health and Human publication in the Federal Register. Services, 12225 Wilkins Avenue, Filed Date: 9/18/20. Rockville, Maryland 20852. Accession Number: 20200918–5054. Signed in Washington, DC, on September 22, 2020. In addition to publishing the full text Comments Due: 5 p.m. ET 9/30/20. of this document in the Federal Treena V. Garrett, Docket Numbers: RP20–1200–000. Register, the Commission provides all Federal Register Liaison Officer, U.S. Applicants: Gulf South Pipeline Department of Energy. interested persons an opportunity to view and/or print the contents of this Company, LLC. [FR Doc. 2020–21222 Filed 9–24–20; 8:45 am] document via the internet through the Description: Compliance filing BILLING CODE 6450–01–P Commission’s Home Page (http:// Compliance Filing in Docket No. CP17– ferc.gov) using the eLibrary link. Enter 476–002 to be effective 9/18/2020. DEPARTMENT OF ENERGY the docket number excluding the last Filed Date: 9/18/20. three digits in the docket number field Accession Number: 20200918–5064. to access the document. At this time, the Federal Energy Regulatory Comments Due: 5 p.m. ET 9/30/20. Commission Commission has suspended access to the Commission’s Public Reference The filings are accessible in the [Docket No. ER20–2926–000] Room, due to the proclamation Commission’s eLibrary system (https:// declaring a National Emergency elibrary.ferc.gov/idmws/search/ Altamont Winds, LLC; Supplemental concerning the Novel Coronavirus fercgensearch.asp) by querying the Notice that Initial Market-Based Rate Disease (COVID–19), issued by the docket number. Filing Includes Request for Blanket President on March 13, 2020. For Section 204 Authorization Any person desiring to intervene or assistance, contact the Federal Energy protest in any of the above proceedings This is a supplemental notice in the Regulatory Commission at must file in accordance with Rules 211 above-referenced Altamont Winds, [email protected] or call and 214 of the Commission’s LLC’s application for market-based rate toll-free, (886) 208–3676 or TYY, (202) Regulations (18 CFR 385.211 and authority, with an accompanying rate 502–8659. 385.214) on or before 5:00 p.m. Eastern tariff, noting that such application Dated: September 21, 2020. time on the specified date(s). Protests includes a request for blanket Kimberly D. Bose, may be considered, but intervention is authorization, under 18 CFR part 34, of Secretary. necessary to become a party to the future issuances of securities and proceeding. assumptions of liability. [FR Doc. 2020–21202 Filed 9–24–20; 8:45 am] BILLING CODE 6717–01–P eFiling is encouraged. More detailed Any person desiring to intervene or to information relating to filing protest should file with the Federal requirements, interventions, protests, Energy Regulatory Commission, 888 DEPARTMENT OF ENERGY service, and qualifying facilities filings First Street NE, Washington, DC 20426, can be found at: http://www.ferc.gov/ in accordance with Rules 211 and 214 Federal Energy Regulatory docs-filing/efiling/filing-req.pdf. For of the Commission’s Rules of Practice Commission other information, call (866) 208–3676 and Procedure (18 CFR 385.211 and (toll free). For TTY, call (202) 502–8659. 385.214). Anyone filing a motion to Combined Notice of Filings intervene or protest must serve a copy Dated: September 21, 2020. of that document on the Applicant. Take notice that the Commission has Kimberly D. Bose, Notice is hereby given that the received the following Natural Gas Secretary. deadline for filing protests with regard Pipeline Rate and Refund Report filings: [FR Doc. 2020–21200 Filed 9–24–20; 8:45 am] to the applicant’s request for blanket Docket Numbers: RP20–1197–000. BILLING CODE 6717–01–P

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DEPARTMENT OF ENERGY Applicants: Water Strider Solar, LLC. 5756; Queue Nos. AC1–109/AC1–111 to Description: Report Filing: Water be effective 8/24/2020. Federal Energy Regulatory Strider Solar MBR Informational Filed Date: 9/21/20. Commission Supplement to be effective N/A. Accession Number: 20200921–5031. Filed Date: 9/16/20. Comments Due: 5 p.m. ET 10/13/20. Combined Notice of Filings #1 Accession Number: 20200916–5074. Docket Numbers: ER20–2929–000. Take notice that the Commission Comments Due: 5 p.m. ET 10/7/20. Applicants: Tri-State Generation and received the following electric corporate Docket Numbers: ER20–2922–000. Transmission Association. filings: Applicants: California Independent Description: Tariff Cancellation: Docket Numbers: EC20–103–000. System Operator Corporation. Notice of Cancellation of Rate Schedule Applicants: New Athens Generating Description: § 205(d) Rate Filing: FERC No. 206 to be effective 9/22/2020. Company, LLC, Millennium Power 2020–09–18 Settlement Rules Amdt— Filed Date: 9/21/20. Partners, L.P. Post-Day-Ahead Exceptional Dispatch Accession Number: 20200921–5041. Description: Application for Schedules to be effective 11/18/2020. Comments Due: 5 p.m. ET 10/13/20. Authorization Under Section 203 of the Filed Date: 9/18/20. Docket Numbers: ER20–2930–000. Federal Power Act, et al. of New Athens Accession Number: 20200918–5135. Applicants: Southern California Generating Company, LLC. Comments Due: 5 p.m. ET 10/9/20. Edison Company. Filed Date: 9/18/20. Docket Numbers: ER20–2923–000. Description: § 205(d) Rate Filing: Accession Number: 20200918–5171. Applicants: Duke Energy Florida, Letter Agreement 326FW 8ME LLC Comments Due: 5 p.m. ET 10/9/20. LLC. Arida Solar Farm SA No. 253 to be Take notice that the Commission Description: § 205(d) Rate Filing: DEF- effective 9/22/2020. received the following exempt Southern Companies Concurrence Filed Date: 9/21/20. wholesale generator filings: Filing to be effective 8/4/2020. Accession Number: 20200921–5075. Docket Numbers: EG20–246–000. Filed Date: 9/18/20. Comments Due: 5 p.m. ET 10/13/20. Applicants: Altamont Winds LLC. Accession Number: 20200918–5137. Docket Numbers: ER20–2931–000. Description: Self-Certification of Comments Due: 5 p.m. ET 10/9/20. Applicants: PPL Electric Utilities Exempt Wholesale Generator Status of Docket Numbers: ER20–2924–000. Corporation, PJM Interconnection, Altamont Winds LLC. Applicants: Idaho Power Company. L.L.C. Filed Date: 9/18/20. Description: § 205(d) Rate Filing: Description: § 205(d) Rate Filing: PPL Accession Number: 20200918–5153. Revised SA 324 and 342 to be effective submits ECSA No. 5770 to be effective Comments Due: 5 p.m. ET 10/9/20. 7/1/2021. 9/22/2020. Take notice that the Commission Filed Date: 9/18/20. Filed Date: 9/21/20. received the following electric rate Accession Number: 20200918–5139. Accession Number: 20200921–5086. filings: Comments Due: 5 p.m. ET 10/9/20. Comments Due: 5 p.m. ET 10/13/20. Docket Numbers: ER15–2187–001. Docket Numbers: ER20–2925–000. Docket Numbers: ER20–2932–000. Applicants: Chief Conemaugh Power, Applicants: PJM Interconnection, Applicants: Big Sky North, LLC. LLC. L.L.C. Description: § 205(d) Rate Filing: First Description: Compliance filing: Description: Tariff Cancellation: Amended and Restated Master Informational Filing Pursuant to Notice of Cancellation of ISA, SA No. Interconnection Services Agreement to Schedule 2 of the PJM OATT & Request 4758; Queue No. AA2–177 to be be effective 9/22/2020. for Waiver to be effective N/A. effective 10/12/2017. Filed Date: 9/21/20. Filed Date: 9/21/20. Filed Date: 9/18/20. Accession Number: 20200921–5087. Accession Number: 20200921–5148. Accession Number: 20200918–5141. Comments Due: 5 p.m. ET 10/13/20. Comments Due: 5 p.m. ET 10/13/20. Comments Due: 5 p.m. ET 10/9/20. Docket Numbers: ER20–2933–000. Docket Numbers: ER15–2188–001. Docket Numbers: ER20–2926–000. Applicants: PJM Interconnection, Applicants: Chief Keystone Power, Applicants: Altamont Winds LLC. L.L.C. LLC. Description: Baseline eTariff Filing: Description: Tariff Cancellation: Description: Compliance filing: Altamont Winds LLC MBR Tariff to be Notice of Cancellation of ISA, SA No. Informational Filing Pursuant to effective 11/1/2020. 4762; Queue No. AC1–018 to be Schedule 2 of the PJM OATT & Request Filed Date: 9/18/20. effective 11/16/2020. for Waiver to be effective N/A. Accession Number: 20200918–5143. Filed Date: 9/21/20. Filed Date: 9/21/20. Comments Due: 5 p.m. ET 10/9/20. Accession Number: 20200921–5088. Accession Number: 20200921–5161. Docket Numbers: ER20–2927–000. Comments Due: 5 p.m. ET 10/13/20. Comments Due: 5 p.m. ET 10/13/20. Applicants: The Connecticut Light Docket Numbers: ER20–2934–000. Docket Numbers: ER20–2158–001. and Power Company. Applicants: PPL Electric Utilities Applicants: Midcontinent Description: § 205(d) Rate Filing: Corporation, PJM Interconnection, Independent System Operator, Inc., Preliminary Engineering and Design L.L.C. Ameren Illinois Company. Agreement with The University of Description: § 205(d) Rate Filing: PPL Description: Tariff Amendment: Connecticut to be effective 9/21/2020. submits ECSA No. 5771 to be effective 2020–09–21_SA 3527 Deficiency Filed Date: 9/21/20. 9/22/2020. Response Ameren Illinois-Hoopeston Accession Number: 20200921–5030. Filed Date: 9/21/20. Wind (H094) FSA to be effective 8/25/ Comments Due: 5 p.m. ET 10/13/20. Accession Number: 20200921–5091. 2020. Docket Numbers: ER20–2928–000. Comments Due: 5 p.m. ET 10/13/20. Filed Date: 9/21/20. Applicants: PJM Interconnection, Docket Numbers: ER20–2935–000. Accession Number: 20200921–5134. L.L.C. Applicants: Summer Solar LLC. Comments Due: 5 p.m. ET 10/13/20. Description: § 205(d) Rate Filing: Description: § 205(d) Rate Filing: Docket Numbers: ER20–2671–000. Original ISA, Service Agreement No. Fourth Amended and Restated Shared

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Facilities Agreement to be effective 9/ intervention is necessary to become a President on March 13, 2020. For 22/2020. party to the proceeding. assistance, contact FERC at Filed Date: 9/21/20. eFiling is encouraged. More detailed [email protected] or call Accession Number: 20200921–5108. information relating to filing toll-free, (886) 208–3676 or TYY, (202) Comments Due: 5 p.m. ET 10/13/20. requirements, interventions, protests, 502–8659. Docket Numbers: ER20–2936–000. service, and qualifying facilities filings Any questions regarding this prior Applicants: Alabama Power can be found at: http://www.ferc.gov/ notice request should be directed to Liz Company. docs-filing/efiling/filing-req.pdf. For Hughes, Regulatory Analyst, Northwest Description: § 205(d) Rate Filing: other information, call (866) 208–3676 Pipeline LLC, P.O. Box 1396, Houston, Amended and Restated GA Solar 5 (toll free). For TTY, call (202) 502–8659. Texas 77251 or email liz.hughes@ (Hickory Solar) LGIA Filing to be williams.com. Dated: September 21, 2020. Any person or the Commission’s staff effective 9/4/2020. Kimberly D. Bose, may, within 60 days after the issuance Filed Date: 9/21/20. Secretary. of the instant notice by the Commission, Accession Number: 20200921–5129. [FR Doc. 2020–21204 Filed 9–24–20; 8:45 am] file pursuant to Rule 214 of the Comments Due: 5 p.m. ET 10/13/20. BILLING CODE 6717–01–P Commission’s Procedural Rules (18 CFR Docket Numbers: ER20–2937–000. 385.214) a motion to intervene or notice Applicants: PJM Interconnection, of intervention. Any person filing to L.L.C. DEPARTMENT OF ENERGY intervene, or the Commission’s staff Description: § 205(d) Rate Filing: may, pursuant to section 157.205 of the Amendment to WMPA, Service Federal Energy Regulatory Commission’s Regulations under the Agreement No. 4760; Queue No. AC1– Commission NGA (18 CFR 157.205) file a protest to 147 re: CAAA to be effective 7/24/2017. [Docket No. CP20–521–000] the request. If no protest is filed within Filed Date: 9/21/20. the time allowed therefore, the proposed Accession Number: 20200921–5140. Notice of Request Under Blanket activity shall be deemed to be Comments Due: 5 p.m. ET 10/13/20. Authorization; Northwest Pipeline LLC authorized effective the day after the Docket Numbers: ER20–2938–000. time allowed for protest. If a protest is Applicants: PJM Interconnection, Take notice that on September 10, filed and not withdrawn within 30 days L.L.C. 2020, Northwest Pipeline LLC after the time allowed for filing a Description: § 205(d) Rate Filing: (Northwest), 2800 Post Oak Blvd., protest, the instant request shall be Amendment to AD2–180 IISA No. 5627 Houston, Texas 77056, filed in the treated as an application for to be effective 3/17/2020. above referenced docket, a prior notice authorization pursuant to section 7 of Filed Date: 9/21/20. request pursuant to sections 157.205 the NGA. Accession Number: 20200921–5143. and 157.208 of the Commission’s Pursuant to section 157.9 of the Comments Due: 5 p.m. ET 10/13/20. regulations under the Natural Gas Act Commission’s rules, 18 CFR 157.9, and its blanket certificate issued in within 90 days of this Notice the Docket Numbers: ER20–2939–000. Docket No. CP82–433–000 for Applicants: Chief Conemaugh Power, Commission staff will either: Complete authorization to increase the maximum its environmental assessment (EA) and LLC. allowable operating pressure (MAOP) of Description: Compliance filing: place it into the Commission’s public the Othello Lateral on Northwest’s record (eLibrary) for this proceeding; or Informational Filing Pursuant to system located in Adams County, Schedule 2 of the PJM OATT and eTariff issue a Notice of Schedule for Washington. Specifically, this project Environmental Review. If a Notice of Baseline to be effective 9/22/2020. will increase the MAOP of the Othello Filed Date: 9/21/20. Schedule for Environmental Review is Lateral from 765 psig to 811 psig to have issued, it will indicate, among other Accession Number: 20200921–5156. a consistent MAOP with the Othello Comments Due: 5 p.m. ET 10/13/20. milestones, the anticipated date for the Loop. Northwest avers that there will be Commission staff’s issuance of the EA Docket Numbers: ER20–2940–000. no increase, reduction, or termination in for this proposal. The filing of the EA Applicants: Chief Keystone Power, firm service to any existing customers, in the Commission’s public record for LLC. all as more fully set forth in the this proceeding or the issuance of a Description: Compliance filing: application which is on file with the Notice of Schedule for Environmental Informational Filing Pursuant to Commission and open to public Review will serve to notify federal and Schedule 2 of the PJM OATT and eTariff inspection. state agencies of the timing for the Baseline to be effective 9/22/2020. In addition to publishing the full text completion of all necessary reviews, and Filed Date: 9/21/20. of this document in the Federal the subsequent need to complete all Accession Number: 20200921–5162. Register, the Commission provides all federal authorizations within 90 days of Comments Due: 5 p.m. ET 10/13/20. interested persons an opportunity to the date of issuance of the Commission The filings are accessible in the view and/or print the contents of this staff’s EA. Commission’s eLibrary system (https:// document via the internet through the Persons who wish to comment only elibrary.ferc.gov/idmws/search/ Commission’s Home Page (http:// on the environmental review of this fercgensearch.asp) by querying the ferc.gov) using the eLibrary link. Enter project should submit an original and docket number. the docket number excluding the last two copies of their comments to the Any person desiring to intervene or three digits in the docket number field Secretary of the Commission. protest in any of the above proceedings to access the document. At this time, the Environmental commenters will be must file in accordance with Rules 211 Commission has suspended access to placed on the Commission’s and 214 of the Commission’s the Commission’s Public Reference environmental mailing list and will be Regulations (18 CFR 385.211 and Room, due to the proclamation notified of any meetings associated with 385.214) on or before 5:00 p.m. Eastern declaring a National Emergency the Commission’s environmental review time on the specified comment date. concerning the Novel Coronavirus process. Environmental commenters Protests may be considered, but Disease (COVID–19), issued by the will not be required to serve copies of

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filed documents on all other parties. For pesticide specific information the Table in Unit IV. Through this However, the non-party commenters contact: The contact information for the program, EPA is ensuring that each will not receive copies of all documents pesticide of interest identified in the pesticide’s registration is based on filed by other parties or issued by the Table in Unit IV. current scientific and other knowledge, Commission and will not have the right For general questions on the including its effects on human health to seek court review of the registration review program, contact: and the environment. Commission’s final order. Melanie Biscoe, Pesticide Re-Evaluation III. Authority The Commission strongly encourages Division (7508P), Office of Pesticide electronic filings of comments, protests Programs, Environmental Protection EPA is conducting its registration and interventions in lieu of paper using Agency, 1200 Pennsylvania Ave. NW, review of the chemicals listed in the the eFile link at http://www.ferc.gov. Washington, DC 20460–0001; telephone Table in Unit IV pursuant to section 3(g) Persons unable to file electronically may number: (703) 305–7106; email address: of the Federal Insecticide, Fungicide, mail similar pleadings to the Federal [email protected]. and Rodenticide Act (FIFRA) and the Energy Regulatory Commission, 888 SUPPLEMENTARY INFORMATION: Procedural Regulations for Registration First Street NE, Washington, DC 20426. Review at 40 CFR part 155, subpart C. Hand delivered submissions in I. General Information Section 3(g) of FIFRA provides, among docketed proceedings should be Does this action apply to me? other things, that the registrations of delivered to Health and Human pesticides are to be reviewed every 15 Services, 12225 Wilkins Avenue, This action is directed to the public years. Under FIFRA, a pesticide product Rockville, Maryland 20852. in general, and may be of interest to a may be registered or remain registered Dated: September 21, 2020. wide range of stakeholders including environmental, human health, farm only if it meets the statutory standard Kimberly D. Bose, worker, and agricultural advocates; the for registration given in FIFRA section Secretary. chemical industry; pesticide users; and 3(c)(5) (7 U.S.C. 136a(c)(5)). When used [FR Doc. 2020–21201 Filed 9–24–20; 8:45 am] members of the public interested in the in accordance with widespread and BILLING CODE 6717–01–P sale, distribution, or use of pesticides. commonly recognized practice, the Since others also may be interested, the pesticide product must perform its Agency has not attempted to describe all intended function without unreasonable ENVIRONMENTAL PROTECTION the specific entities that may be affected adverse effects on the environment, that AGENCY by this action. If you have any questions is, without any unreasonable risk to regarding the applicability of this action man or the environment, or a human [EPA–HQ–OPP–2017–0720; FRL–10015–05] to a particular entity, consult the contact dietary risk from residues that result identified in the Table in Unit IV. from the use of a pesticide in or on food Pesticide Registration Review; Draft that is inconsistent with the safety Human Health and/or Ecological Risk II. Background standard of section 408 of the Federal Assessments for Chlorpyrifos; Notice Food, Drug, and Cosmetic Act (FFDCA). of Availability Registration review is EPA’s periodic review of pesticide registrations to IV. What action is the Agency taking? AGENCY: Environmental Protection ensure that each pesticide continues to Agency (EPA). satisfy the statutory standard for Pursuant to 40 CFR 155.53, EPA has ACTION: Notice. registration, that is, the pesticide can evaluated available data and conducted perform its intended function without new human health and ecological risk SUMMARY: This notice announces the unreasonable adverse effects on human assessments for chlorpyrifos. This availability of EPA’s revised draft health or the environment. As part of notice announces the availability of human health risk assessment and the registration review process, the EPA’s revised human health risk ecological risk assessment for the Agency has completed comprehensive assessment and ecological risk registration review of chlorpyrifos. draft human health and ecological risk assessment for the pesticides shown in FOR FURTHER INFORMATION CONTACT: assessments for chlorpyrifos as listed in the following table.

TABLE—DRAFT RISK ASSESSMENTS BEING MADE AVAILABLE FOR PUBLIC COMMENT

Registration review case name and No. Docket ID No. Contact information

Chlorpyrifos ...... EPA–HQ–OPP–2008–0850 ...... [email protected]. (703) 347–0206.

EPA will provide an opportunity for may then issue a revised risk Authority: 7 U.S.C. 136 et seq. interested parties to provide comments assessment, explain any changes to the Dated: September 16, 2020. and input concerning the Agency’s draft draft risk assessment, and respond to Mary Reaves, human health and/or ecological risk comments. Acting Director, Pesticide Re-Evaluation assessments for the pesticides listed in As provided in 40 CFR 155.58, the Division, Office of Pesticide Programs. the Table in Unit IV concurrently with registration review docket for each the issuance of Proposed Interim pesticide case will remain publicly [FR Doc. 2020–21196 Filed 9–24–20; 8:45 am] Decision. The Agency will consider all accessible through the duration of the BILLING CODE 6560–50–P comments received during the public registration review process; that is, until comment period and make changes, as all actions required in the final decision appropriate, to a draft human health on the registration review case have and/or ecological risk assessment. EPA been completed.

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ENVIRONMENTAL PROTECTION SUMMARY: The Environmental Protection telephone number: (202) 564–1169; AGENCY Agency (EPA) is announcing the email address: [email protected]. availability of the final Toxic For general information contact: The [FRL–10015–06–OA] Substances Control Act (TSCA) risk TSCA-Hotline, ABVI-Goodwill, 422 Notice of Meeting of the EPA evaluation of Cyclic Aliphatic Bromide South Clinton Ave., Rochester, NY Children’s Health Protection Advisory Cluster (HBCD). The purpose of 14620; telephone number: (202) 554– Committee (CHPAC) conducting risk evaluations under 1404; email address: TSCA-Hotline@ TSCA is to determine whether a epa.gov. AGENCY: Environmental Protection chemical substance presents an SUPPLEMENTARY INFORMATION: Agency (EPA). unreasonable risk of injury to health or ACTION: Notice. the environment under the conditions of I. General Information use, including an unreasonable risk to a A. Does this action apply to me? SUMMARY: Pursuant to the provisions of relevant potentially exposed or the Federal Advisory Committee Act, susceptible subpopulation, without This action is directed to the public notice is hereby given that the next consideration of costs or other nonrisk in general. This action may be of meeting of the Children’s Health factors. EPA has determined that interest to persons who are or may be Protection Advisory Committee specific conditions of use of HBCD interested in risk evaluations of (CHPAC) will be held virtually October present an unreasonable risk of injury to chemical substances under TSCA, 15 22, 2020. The CHPAC advises the health or the environment. For those U.S.C. 2601 et seq. Since other entities Environmental Protection Agency (EPA) conditions of use for which EPA has may also be interested in this final risk on science, regulations and other issues found an unreasonable risk, EPA must evaluation, the EPA has not attempted relating to children’s environmental take regulatory action to address that to describe all the specific entities that health. unreasonable risk through risk may be affected by this action. DATES: October 22, 2020 from 2 p.m. to management measures enumerated in B. What is EPA’s authority for taking 5 p.m. TSCA. EPA has also determined that this action? ADDRESSES: The meeting will take place specific conditions of use do not present TSCA section 6, 15 U.S.C. 2605, virtually. If you want to listen to the unreasonable risk of injury to health or requires EPA to conduct risk meeting or provide comments, please the environment. For those conditions evaluations to ‘‘determine whether a email [email protected] for further of use for which EPA has found no chemical substance presents an details. unreasonable risk to health or the unreasonable risk of injury to health or environment, the Agency’s FOR FURTHER INFORMATION CONTACT: Nica the environment, without consideration determination is a final Agency action Louie, Office of Children’s Health of costs or other nonrisk factors, and is issued via order in the risk Protection, U.S. EPA, MC 1107T, 1200 including an unreasonable risk to a evaluation. Pennsylvania Avenue NW, Washington, potentially exposed or susceptible DC 20460, (202) 564–7633 or ADDRESSES: The docket for this action, subpopulation identified as relevant to [email protected]. identified by docket identification (ID) the risk evaluation by the SUPPLEMENTARY INFORMATION: The number EPA–HQ–OPPT–2019–0237, is Administrator, under the conditions of meetings of the CHPAC are open to the available online at http:// use.’’ 15 U.S.C. 2605(b)(4)(A). TSCA public. An agenda will be posted to www.regulations.gov or in-person at the sections 6(b)(4)(A) through (H) https://www.epa.gov/children/ Office of Pollution Prevention and enumerate the deadlines and minimum childrens-health-protection-advisory- Toxics Docket (OPPT Docket), requirements applicable to this process, committee-chpac. Environmental Protection Agency including provisions that provide Access and Accommodations: For Docket Center (EPA/DC), West William instruction on chemical substances that information on access or services for Jefferson Clinton Bldg., Rm. 3334, 1301 must undergo evaluation, the minimum individuals with disabilities, please Constitution Ave. NW, Washington, DC. components of a TSCA risk evaluation, contact Nica Louie at 202–564–7633 or The Public Reading Room is open from and the timelines for public comment [email protected]. 8:30 a.m. to 4:30 p.m., Monday through and completion of the risk evaluation. Friday, excluding legal holidays. The Dated: September 16, 2019. TSCA also requires that EPA operate in telephone number for the Public a manner that is consistent with the best Nica Mostaghim, Reading Room is (202) 566–1744, and available science, make decisions based Environmental Health Scientist. the telephone number for the OPPT on the weight of the scientific evidence [FR Doc. 2020–21143 Filed 9–24–20; 8:45 am] Docket is (202) 566–0280. and consider reasonably available BILLING CODE 6560–50–P Due to the public health concerns information. 15 U.S.C. 2625(h), (i), and related to COVID–19, the EPA Docket (k). TSCA section 6(i) directs that a Center (EPA/DC) and Public Reading determination of ‘‘no unreasonable risk’’ ENVIRONMENTAL PROTECTION Room is closed to visitors with limited shall be issued by order and considered AGENCY exceptions. The EPA/DC staff continue to be a final Agency action, while a [EPA–HQ–OPPT–2019–0237; FRL–10014– to provide remote customer service via determination of ‘‘unreasonable risk’’ is 87] email, phone, and webform. For the not considered to be a final Agency latest status information on EPA/DC action. 15 U.S.C. 2605(i). Cyclic Aliphatic Bromide Cluster services and docket access, visit https:// The statute identifies the minimum (HBCD); Final Toxic Substances www.epa.gov/dockets. components for all chemical substance Control Act (TSCA) Risk Evaluation; FOR FURTHER INFORMATION CONTACT: For risk evaluations. For each risk Notice of Availability technical information contact: Dr. Stan evaluation, EPA must publish a AGENCY: Environmental Protection Barone, Office of Pollution Prevention document that outlines the scope of the Agency (EPA). and Toxics (7403M), Environmental risk evaluation to be conducted, which Protection Agency, 1200 Pennsylvania includes the hazards, exposures, ACTION: Notice. Ave. NW, Washington, DC 20460–0001; conditions of use, and the potentially

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exposed or susceptible subpopulations substance identified in Unit II. In this substance presents an unreasonable risk that EPA expects to consider. 15 U.S.C. risk evaluation EPA has made of injury to health or the environment 2605(b)(4)(D). The statute further unreasonable risk determinations on under the conditions of use, including provides that each risk evaluation must some of the conditions of use within the an unreasonable risk to a relevant also: (1) Integrate and assess available scope of the risk evaluation for this potentially exposed or susceptible information on hazards and exposures chemical. For those conditions of use subpopulation. As part of this process, for the conditions of use of the chemical for which EPA has found an EPA must evaluate both hazard and substance, including information that is unreasonable risk of injury to health or exposure, not consider costs or other relevant to specific risks of injury to the environment, EPA must take nonrisk factors, use reasonably available health or the environment and regulatory action to address those risks information and approaches in a information on relevant potentially through risk management measures manner that is consistent with the exposed or susceptible subpopulations; enumerated in 15 U.S.C. 2605(a). requirements in TSCA for the use of the (2) describe whether aggregate or EPA also is announcing the best available science, and ensure sentinel exposures were considered and availability of the information required decisions are based on the weight of the basis for that consideration; (3) take to be provided publicly with each risk scientific evidence. into account, where relevant, the likely evaluation, which is available online at The specific risk evaluation process duration, intensity, frequency, and http://www.regulations.gov in the that EPA has established by rule to number of exposures under the dockets identified. 40 CFR 702.51. implement the statutory process is set conditions of use; and (4) describe the Specifically, EPA has provided: out in 40 CFR part 702 and summarized weight of the scientific evidence for the • The scope document and problem on EPA’s website at http:// identified hazards and exposures. 15 formulation (in Docket ID No. EPA–HQ– www.epa.gov/assessing-and-managing- U.S.C. 2605(b)(4)(F)(i)–(ii) and (iv)–(v). OPPT–2016–0735); chemicals-under-tsca/risk-evaluations- Each risk evaluation must not consider • Draft risk evaluation, and final risk existing-chemicals-under-tsca. As costs or other nonrisk factors. 15 U.S.C. evaluation (in Docket ID No. EPA–HQ– explained in the preamble to EPA’s final 2605(b)(4)(F)(iii). OPPT–2019–0237); rule on procedures for risk evaluation The statute requires that the risk • All notices, determinations, (82 FR 33726, July 20, 2017) (FRL– evaluation process be completed within findings, consent agreements, and 9964–38), the specific regulatory a specified timeframe and provide an orders (in Docket ID No. EPA–HQ– process set out in 40 CFR part 702, opportunity for public comment on a OPPT–2019–0237); subpart B is being followed for the first draft risk evaluation prior to publishing • Any information required to be ten chemical substances undergoing risk a final risk evaluation. 15 U.S.C. provided to the Agency under 15 U.S.C. evaluation to the maximum extent 2605(b)(4). 2603 (in Docket ID No. EPA–HQ–OPPT– practicable. Subsection 5.4.1 of the final risk 2016–0735 and Docket ID No. EPA–HQ– Prior to the publication of this final evaluation for HBCD constitutes the OPPT–2019–0237); risk evaluation, a draft risk evaluation order required under TSCA section • A nontechnical summary of the risk was subject to peer review and public 6(i)(1), and the ‘‘no unreasonable risk’’ evaluation (in Docket ID No. EPA–HQ– comment. EPA reviewed the report from determinations in that subsection are OPPT–2019–0237); the peer review committee and public considered to be a final Agency action • A list of the studies, with the results comments and has amended the risk effective on the date of issuance of the of the studies, considered in carrying evaluation in response to these order. In conducting risk evaluations, out each risk evaluation (Risk comments as appropriate. The public ‘‘EPA will determine whether the Evaluation for Cyclic Aliphatic Bromide comments, peer review report, and chemical substance presents an Cluster (HBCD Cluster) in Docket ID No. EPA’s response to comments is in unreasonable risk of injury to health or EPA–HQ–OPPT–2019–0237); Docket ID No. EPA–HQ–OPPT–2019– the environment under each condition • The final peer review report, 0237. Prior to the publication of the of use within the scope of the risk including the response to peer review draft risk evaluation, EPA made evaluation. . .’’ 40 CFR 702.47. Under and public comments received during available the scope and problem EPA’s implementing regulations, ‘‘[a] peer review (in Docket ID No. EPA–HQ– formulation, and solicited public input determination by EPA that the chemical OPPT–2019–0237); and on uses and exposure. EPA’s documents substance, under one or more of the • Response to public comments and the public comments are in Docket conditions of use within the scope of received on the draft scope and the draft ID No. EPA–HQ–OPPT–2016–0735. the risk evaluation, does not present an risk evaluation (in Docket ID No. EPA– Additionally, information about the unreasonable risk of injury to health or HQ–OPPT–2019–0237). scope, problem formulation, and draft the environment will be issued by order risk evaluation phases of the TSCA risk and considered to be a final Agency II. TSCA Risk Evaluation evaluation for this chemical is at https:// action, effective on the date of issuance A. What is EPA’s risk evaluation process www.epa.gov/assessing-and-managing- of the order.’’ 40 CFR 702.49(d). For for existing chemicals under TSCA? chemicals-under-tsca/risk-evaluation- purposes of TSCA section 19(a)(1)(A), cyclic-aliphatic-bromide-cluster-hbcd. the date of issuance of the section 6(i)(1) The risk evaluation process is the B. What is Cyclic Aliphatic Bromide order for HBCD shall be at 1:00 p.m. second step in EPA’s existing chemical Cluster (HBCD Cluster)? Eastern time (standard or daylight, as review process under TSCA, following appropriate) on the date that is two prioritization and before risk The cyclic aliphatic bromide cluster weeks after the date when this notice is management. As this chemical is one of chemicals, including published in the Federal Register, the first ten chemical substances hexabromocyclododecane (HBCD), are which is in accordance with 40 CFR undergoing risk evaluation, the flame retardants. Other uses include use 23.5. chemical substance was not required to as a component of solder and use in go through prioritization (81 FR 91927, automobile replacement parts. EPA has C. What action is EPA taking? December 19, 2016) (FRL–9956–47). The not identified reasonably available EPA is announcing the availability of purpose of conducting risk evaluations information to suggest that HBCD is the risk evaluation of the chemical is to determine whether a chemical currently domestically manufactured in

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any quantity. Companies have the EIS No. 20200193, Final, BR, CA, ADDRESSES: Submit your comments, ability to import the chemical in low Truckee Canal Extraordinary identified by docket identification (ID) volumes below the CDR reporting Maintenance, Review Period Ends: number EPA–HQ–OPP–2020–0390, by threshold. 10/26/2020, Contact: Laurie Nicholas one of the following methods: • Authority: 15 U.S.C. 2601 et seq. 775–884–8360. Federal eRulemaking Portal: http:// EIS No. 20200194, Final, NNSA, SC, www.regulations.gov. Follow the online Andrew Wheeler, Plutonium Pit Production at the instructions for submitting comments. Administrator. Savannah River Site in South Do not submit electronically any [FR Doc. 2020–21133 Filed 9–24–20; 8:45 am] Carolina, Review Period Ends: 10/26/ information you consider to be BILLING CODE 6560–50–P 2020, Contact: Ms. Jennifer Nelson Confidential Business Information (CBI) 803–557–6372. or other information whose disclosure is Amended Notice restricted by statute. ENVIRONMENTAL PROTECTION • Mail: OPP Docket, Environmental AGENCY EIS No. 20200168, Draft, FAA, CA, Bob Protection Agency Docket Center (EPA/ Hope Hollywood Burbank Airport [ER–FRL–9053–1] DC), (28221T), 1200 Pennsylvania Ave. Replacement Passenger Terminal NW, Washington, DC 20460–0001. Environmental Impact Statements; Project, Comment Period Ends: 10/27/ • Hand Delivery: To make special Notice of Availability 2020, Contact: Edvige B. Mbakoup arrangements for hand delivery or 424–405–7283. Revision to FR Notice delivery of boxed information, please Responsible Agency: Office of Federal Published 8/21/2020; Extending the follow the instructions at http:// Activities, General Information 202– Comment Period from 10/5/2020 to www.epa.gov/dockets/contacts.html. 564–5632 or https://www.epa.gov/nepa. 10/27/2020. Due to the public health concerns Weekly receipt of Environmental Impact EIS No. 20200182, Final, USFS, AZ, related to COVID–19, the EPA Docket Statements (EIS) WITHDRAWN—Fossil Creek Wild Center (EPA/DC) and Reading Room is Filed September 14, 2020 10 a.m. EST and Scenic River Comprehensive closed to visitors with limited Through September 21, 2020 10 a.m. River Management Plan, Contact: exceptions. The staff continues to EST Mike Dechter 928–527–3416. Revision provide remote customer service via Pursuant to 40 CFR 1506.9. to FR Notice Published 09/18/2020; email, phone, and webform. For the Notice: Section 309(a) of the Clean Air Officially Withdrawn per request of latest status information on EPA/DC Act requires that EPA make public its the submitting agency. services and docket access, visit https:// comments on EISs issued by other Dated: September 21, 2020. www.epa.gov/dockets. Federal agencies. EPA’s comment letters Cindy S. Barger, FOR FURTHER INFORMATION CONTACT: on EISs are available at: https:// Director, NEPA Compliance Division, Office Marietta Echeverria, Registration cdxnodengn.epa.gov/cdx-enepa-public/ of Federal Activities. Division (7505P), Office of Pesticide action/eis/search. [FR Doc. 2020–21174 Filed 9–24–20; 8:45 am] Programs, Environmental Protection EIS No. 20200188, Draft Supplement, BILLING CODE 6560–50–P Agency, 1200 Pennsylvania Ave. NW, USFS, WV, Mountain Valley Pipeline Washington, DC 20460–0001; main and Equitrans Expansion Project Draft telephone number: (703) 305–7090; Supplemental Environmental Impact ENVIRONMENTAL PROTECTION email address: [email protected]. Statement, Comment Period Ends: 11/ AGENCY SUPPLEMENTARY INFORMATION: In 09/2020, Contact: Ken Arney 888– accordance with the regulations at 40 603–0261. [EPA–HQ–OPP–2020–0390; FRL–10014–21] CFR 166.24(a)(1), EPA is soliciting EIS No. 20200189, Draft, USAF, GA, Ortho-Phthalaldehyde; Receipt of Moody Air Force Base Comprehensive public comment before making the Application for Emergency Exemption, decision whether to grant the Airspace Initiative, Comment Period Solicitation of Public Comment Ends: 11/24/2020, Contact: Lorence exemption. Busker 229–257–2396. AGENCY: Environmental Protection I. General Information EIS No. 20200190, Draft, USAF, TX, B– Agency (EPA). A. Does this action apply to me? 21 Main Operating Base (MOB 1) ACTION: Notice. Beddown at Dyess AFB, Texas or You may be potentially affected by Ellsworth AFB South Dakota, SUMMARY: EPA has received a specific this action if you are a pesticide Comment Period Ends: 11/09/2020, exemption request from the National manufacturer (North American Contact: Julianne Turko 210–925– Aeronautics and Space Administration Industrial Classification System 3777. (NASA) to use the pesticide ortho- (NAICS) (Code 32532) or involved with EIS No. 20200191, Final, USFS, AK, phthalaldehyde (OPA, CAS No. 643–79– the International Space Station. This Rulemaking for Alaska Roadless 8) to treat the coolant fluid of the listing is not intended to be exhaustive, Areas, Review Period Ends: 10/26/ internal active thermal control system of but rather provides a guide to help 2020, Contact: Ken Tu 303–275–5156. the International Space Station to readers determine whether this EIS No. 20200192, Final Supplement, control aerobic/microaerophilic bacteria document applies to them. Other types FDOT, FHWA, FL, Tampa Interstate in the aqueous coolant. The applicant of entities not listed could also be Study, Contact: Luis D. Lopez Rivera proposes the use of a new chemical affected. 407–867–6420. Pursuant to U.S.C. which has not been registered by EPA. 139(n)(2), FHWA has issued a single Therefore, in accordance with the Code B. What should I consider as I prepare document that consists of a final of Federal Regulations (CFR), EPA is my comments for EPA? supplemental environmental impact soliciting public comment before 1. Submitting CBI. Do not submit this statement and record of decision. making the decision whether to grant information to EPA through Therefore, the 30-day wait/review the exemption. www.regulations.gov or email. Clearly period under NEPA does not apply to DATES: Comments must be received on mark the part or all of the information this action. or before October 13, 2020. that you claim to be CBI. For CBI

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information in a disk or CD–ROM that and biofilm-residing micro-organisms; a ENVIRONMENTAL PROTECTION you mail to EPA, mark the outside of the negligible impact on system-wetted AGENCY disk or CD–ROM as CBI and then materials of construction; and a [EPA–HQ–OPPT–2020–0077; FRL–10014– identify electronically within the disk or negligible reactivity with existing 64] CD–ROM the specific information that coolant additives. The ISS would not is claimed as CBI. In addition to one have an adequate long-term solution for Certain New Chemicals; Receipt and complete version of the comment that controlling the micro-organisms in the Status Information for August 2020 includes information claimed as CBI, a IATCS coolant without the use of OPA. copy of the comment that does not AGENCY: Environmental Protection The OPA is incorporated into a porous Agency (EPA). contain the information claimed as CBI resin material contained in a stainless- must be submitted for inclusion in the ACTION: Notice. steel canister. The canister containing public docket. Information so marked SUMMARY: will not be disclosed except in the OPA-incorporated resin is inserted EPA is required under the accordance with procedures set forth in into a coolant system loop, using Toxic Substances Control Act (TSCA), 40 CFR part 2. flexible hose and quick disconnects, and as amended by the Frank R. Lautenberg 2. Tips for preparing your comments. is placed in-line for 8 hours to deliver Chemical Safety for the 21st Century When preparing and submitting your the OPA into the fluid. As the coolant Act, to make information publicly comments, see the commenting tips at fluid flows through the canister, the available and to publish information in http://www.epa.gov/dockets/ OPA elutes from the resin material into the Federal Register pertaining to comments.html. the coolant fluid. The total volume of submissions under TSCA Section 5, 3. Environmental justice. EPA seeks to the circulatory loops of the IATCS is including notice of receipt of a Premanufacture notice (PMN), achieve environmental justice, the fair 829 liters. The maximum concentration Significant New Use Notice (SNUN) or treatment and meaningful involvement would be 500 milligrams (mg) of OPA of any group, including minority and/or Microbial Commercial Activity Notice per liter of coolant fluid. A total of (MCAN), including an amended notice low-income populations, in the 414,500 mg of OPA would be needed for development, implementation, and or test information; an exemption the entire system. The OPA is application (Biotech exemption); an enforcement of environmental laws, incorporated into the resin at 210 mg regulations, and policies. To help application for a test marketing OPA per cm3 resin, resulting in a address potential environmental justice exemption (TME), both pending and/or potential total use of 1,974 cm3 of the issues, the Agency seeks information on concluded; a notice of commencement any groups or segments of the OPA-containing resin. The level of OPA (NOC) of manufacture (including population who, as a result of their in the coolant is monitored periodically, import) for new chemical substances; location, cultural practices, or other and because OPA degrades over time, and a periodic status report on new factors, may have atypical or the concentration decreases to a level chemical substances that are currently disproportionately high and adverse that is no longer effective in about 1 to under EPA review or have recently human health impacts or environmental 2 years. At this point, replenishment concluded review. This document effects from exposure to the pesticide(s) with new OPA-containing canisters is covers the period from 08/01/2020 to discussed in this document, compared required. EPA has authorized similar 08/31/2020. to the general population. emergency exemptions for this use since DATES: Comments identified by the 2011. With the decision to extend the specific case number provided in this II. What action is the agency taking? mission of the ISS to 2024, the need for document must be received on or before Under section 18 of the Federal this use is expected to continue for the October 26, 2020. Insecticide, Fungicide, and Rodenticide duration. ADDRESSES: Submit your comments, Act (FIFRA) (7 U.S.C. 136p), at the identified by docket identification (ID) discretion of the EPA Administrator, a This notice does not constitute a decision by EPA on the application number EPA–HQ–OPPT–2020–0077, Federal or State agency may be and the specific case number for the itself. The regulations governing FIFRA exempted from any provision of FIFRA chemical substance related to your section 18 require publication of a if the EPA Administrator determines comment, by one of the following that emergency conditions exist which notice of receipt of an application for a methods: require the exemption. NASA has specific exemption proposing the use of • Federal eRulemaking Portal: http:// requested the EPA Administrator to a new chemical (i.e, an active www.regulations.gov. Follow the online issue a specific exemption for the use of ingredient), which has not been instructions for submitting comments. ortho-phthalaldehyde (OPA) in the registered by EPA. The notice provides Do not submit electronically any coolant of the internal active thermal an opportunity for public comment on information you consider to be control system (IATCS) of the the application. Confidential Business Information (CBI) International Space Station (ISS) to The Agency will review and consider or other information whose disclosure is control aerobic/microaerophilic bacteria all comments received during the restricted by statute. in the aqueous coolant. Information in • comment period in determining Mail: Document Control Office accordance with 40 CFR part 166 was whether to issue the specific exemption (7407M), Office of Pollution Prevention submitted as part of this request. and Toxics (OPPT), Environmental requested by NASA. As part of this request, the applicant Protection Agency, 1200 Pennsylvania stated that it has considered the Authority: 7 U.S.C. 136 et seq. Ave. NW, Washington, DC 20460–0001. • registered biocide alternatives and has Dated: September 11, 2020. Hand Delivery: To make special concluded that OPA is the most arrangements for hand delivery or Marietta Echeverria, effective biocide which meets the delivery of boxed information, please requisite criteria including: The need for Acting Director, Registration Division, Office follow the instructions at http:// safe, non-intrusive implementation and of Pesticide Programs. www.epa.gov/dockets/contacts.html. operation in a functioning system; the [FR Doc. 2020–21185 Filed 9–24–20; 8:45 am] Due to the public health concerns ability to control existing planktonic BILLING CODE 6560–50–P related to COVID–19, the EPA Docket

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Center (EPA/DC) and Reading Room is chemical substance.’’ (See TSCA section you claim to be CBI. For CBI closed to visitors with limited 3(11).) For more information about the information in a disk or CD–ROM that exceptions. The staff continues to TSCA Inventory please go to: https:// you mail to EPA, mark the outside of the provide remote customer service via www.epa.gov/tsca-inventory. disk or CD–ROM as CBI and then email, phone, and webform. For the Any person who intends to identify electronically within the disk or latest status information on EPA/DC manufacture (including import) a new CD–ROM the specific information that services and docket access, visit https:// chemical substance for a non-exempt is claimed as CBI. In addition to one www.epa.gov/dockets. commercial purpose, or to manufacture complete version of the comment that FOR FURTHER INFORMATION CONTACT: For or process a chemical substance in a includes information claimed as CBI, a technical information contact: Jim non-exempt manner for a use that EPA copy of the comment that does not Rahai, Information Management has determined is a significant new use, contain the information claimed as CBI Division (7407M), Office of Pollution is required by TSCA section 5 to must be submitted for inclusion in the Prevention and Toxics, Environmental provide EPA with a PMN, MCAN or public docket. Information so marked Protection Agency, 1200 Pennsylvania SNUN, as appropriate, before initiating will not be disclosed except in Ave. NW, Washington, DC 20460–0001; the activity. EPA will review the notice, accordance with procedures set forth in telephone number: (202) 564–8593; make a risk determination on the 40 CFR part 2. email address: [email protected]. chemical substance or significant new 2. Tips for preparing your comments. For general information contact: The use, and take appropriate action as When preparing and submitting your TSCA-Hotline, ABVI-Goodwill, 422 described in TSCA section 5(a)(3). comments, see the commenting tips at South Clinton Ave., Rochester, NY TSCA section 5(h)(1) authorizes EPA http://www.epa.gov/dockets/ 14620; telephone number: (202) 554– to allow persons, upon application and comments.html. 1404; email address: TSCA-Hotline@ under appropriate restrictions, to II. Status Reports epa.gov. manufacture or process a new chemical In the past, EPA has published SUPPLEMENTARY INFORMATION: substance, or a chemical substance subject to a significant new use rule individual notices reflecting the status I. Executive Summary (SNUR) issued under TSCA section of TSCA section 5 filings received, pending or concluded. In 1995, the A. What action is the Agency taking? 5(a)(2), for ‘‘test marketing’’ purposes, upon a showing that the manufacture, Agency modified its approach and This document provides the receipt processing, distribution in commerce, streamlined the information published and status reports for the period from use, and disposal of the chemical will in the Federal Register after providing 08/01/2020 to 08/31/2020. The Agency not present an unreasonable risk of notice of such changes to the public and is providing notice of receipt of PMNs, injury to health or the environment. an opportunity to comment (See the SNUNs and MCANs (including This is referred to as a test marketing Federal Register of May 12, 1995, (60 amended notices and test information); exemption, or TME. For more FR 25798) (FRL–4942–7). Since the an exemption application under 40 CFR information about the requirements passage of the Lautenberg amendments part 725 (Biotech exemption); TMEs, applicable to a new chemical go to: to TSCA in 2016, public interest in both pending and/or concluded; NOCs http://www.epa.gov/oppt/newchems. information on the status of section 5 to manufacture a new chemical Under TSCA sections 5 and 8 and cases under EPA review and, in substance; and a periodic status report EPA regulations, EPA is required to particular, the final determination of on new chemical substances that are publish in the Federal Register certain such cases, has increased. In an effort to currently under EPA review or have information, including notice of receipt be responsive to the regulated recently concluded review. of a PMN/SNUN/MCAN (including community, the users of this EPA is also providing information on amended notices and test information); information, and the general public, to its website about cases reviewed under an exemption application under 40 CFR comply with the requirements of TSCA, the amended TSCA, including the part 725 (biotech exemption); an to conserve EPA resources and to section 5 PMN/SNUN/MCAN and application for a TME, both pending streamline the process and make it more exemption notices received, the date of and concluded; NOCs to manufacture a timely, EPA is providing information on receipt, the final EPA determination on new chemical substance; and a periodic its website about cases reviewed under the notice, and the effective date of status report on the new chemical the amended TSCA, including the EPA’s determination for PMN/SNUN/ substances that are currently under EPA section 5 PMN/SNUN/MCAN and MCAN notices on its website at: https:// review or have recently concluded exemption notices received, the date of www.epa.gov/reviewing-new-chemicals- review. receipt, the final EPA determination on under-toxic-substances-control-act-tsca/ the notice, and the effective date of status-pre-manufacture-notices. This C. Does this action apply to me? EPA’s determination for PMN/SNUN/ information is updated on a weekly This action provides information that MCAN notices on its website at: https:// basis. is directed to the public in general. www.epa.gov/reviewing-new-chemicals- under-toxic-substances-control-act-tsca/ B. What is the Agency’s authority for D. Does this action have any status-pre-manufacture-notices. This taking this action? incremental economic impacts or information is updated on a weekly Under TSCA, 15 U.S.C. 2601 et seq., paperwork burdens? basis. a chemical substance may be either an No. ‘‘existing’’ chemical substance or a III. Receipt Reports ‘‘new’’ chemical substance. Any E. What should I consider as I prepare For the PMN/SNUN/MCANs that chemical substance that is not on EPA’s my comments for EPA? have passed an initial screening by EPA TSCA Inventory of Chemical Substances 1. Submitting confidential business during this period, Table I provides the (TSCA Inventory) is classified as a ‘‘new information (CBI). Do not submit this following information (to the extent that chemical substance,’’ while a chemical information to EPA through such information is not subject to a CBI substance that is listed on the TSCA regulations.gov or email. Clearly mark claim) on the notices screened by EPA Inventory is classified as an ‘‘existing the part or all of the information that during this period: The EPA case

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number assigned to the notice that in the table is the specific information 1234A). The version column designates indicates whether the submission is an provided by the submitter, and (G) submissions in sequence as ‘‘1’’, ‘‘2’’, initial submission, or an amendment, a indicates that this information in the ‘‘3’’, etc. Note that in some cases, an notation of which version was received, table is generic information because the initial submission is not numbered as the date the notice was received by EPA, specific information provided by the version 1; this is because earlier the submitting manufacturer (i.e., submitter was claimed as CBI. version(s) were rejected as incomplete domestic producer or importer), the Submissions which are initial or invalid submissions. Note also that potential uses identified by the submissions will not have a letter future versions of the following tables manufacturer in the notice, and the following the case number. Submissions may adjust slightly as the Agency works chemical substance identity. which are amendments to previous to automate population of the data in As used in each of the tables in this submissions will have a case number the tables. unit, (S) indicates that the information followed by the letter ‘‘A’’ (e.g., P–18– TABLE I—PMN/SNUN/MCANS APPROVED * FROM 08/01/2020 TO 08/31/2020

Received Case No. Version date Manufacturer Use Chemical substance

P–16–0345A ...... 6 08/09/2020 CBI ...... (G) Processing aid ...... (G) Acrylamide, polymer with methacrylic acid derivatives. P–16–0420A ...... 3 07/31/2020 CBI ...... (S) The notified substance will be used as (G) Dimethyl cyclohexenyl propanol. a fragrance ingredient, being blended (mixed) with other fragrance ingredients to make fragrance oils that will be sold to industrial and commercial customers for their incorporation into soaps, deter- gents, cleaners and other similar household and consumer products. P–17–0115A ...... 5 08/25/2020 CBI ...... (S) An adhesion promoter for coating for- (G) Aminoalkyl alkoxysilane. mulations. P–17–0281A ...... 7 08/05/2020 CBI ...... (G) Water reducible resin ...... (G) Polysiloxane-polyester polyol carboxylate. P–18–0065A ...... 2 08/17/2020 Evonik Corporation ...... (S) Absorption agent and lab reagent ...... (S) 1,3-Propanediamine, N1,N1-dimethyl-N3- (2,2,6,6-tetramethyl-4-piperidinyl)-. P–18–0202A ...... 7 08/06/2020 Hexion, Inc ...... (G) Rubber additive and Tackifier addi- (G) Trialkyl alkanal, polymer with phenol. tives. P–18–0203A ...... 7 08/06/2020 Hexion, Inc ...... (G) Rubber additive and Tackifier addi- (G) Trialkyl alkanal, polymer with alkylalkanal tives. and phenol. P–18–0204A ...... 7 08/06/2020 Hexion, Inc ...... (G) Rubber additive and Tackifier additive (G) Alkyl alkanal, polymer with phenol. P–18–0205A ...... 7 08/06/2020 Hexion, Inc ...... (G) Tackifier additive ...... (G) Alkyl alkanal, polymer with formaldehyde and phenol. P–18–0206A ...... 7 08/06/2020 Hexion, Inc ...... (G) Rubber additive and Tackifier additive (G) Alkanal, polymer with phenol. P–18–0241A ...... 5 07/31/2020 CBI ...... (G) Additive for automotive coating ...... (G) 2-Propenoic acid, 2-methyl-, methyl ester, polymer with ethenylbenzene, ethyl 2- propenoate, 2-oxiranylmethyl 2-methyl-2- propenoate and 1,2-propanediol mono(2- methyl-2-propenoate), reaction products with diethanolamine, polymers with substituted- alkyl acrylate, formates (salts). P–18–0244A ...... 5 07/31/2020 CBI ...... (G) Additive for automotive coating ...... (G) 2-Propenoic acid, 2-methyl, methyl ester, polymer with ethenylbenzene, ethyl 2- propenoate, 2-oxiranylmethyl 2-methyl-2- propenoate and 1,2-propanediol mono(2- methyl-2-propenoate), reaction products with diethanolamine, polymers with substituted- alkyl methacrylate, formates (salts). P–18–0245A ...... 5 07/31/2020 CBI ...... (G) Additive for automotive coating ...... (G) 2-Propenoic acid, 2-methyl-, methyl ester, polymer with ethenylbenzene, ethyl 2- propenoate, 2-oxiranylmethyl 2-methyl-2- propenoate, and 1,2-propanediol mono(2- methyl-2-propenoate), reaction products with diethanolamine, polymers with alkylene glycol monoacrylate, formates (salts). P–18–0256A ...... 6 08/18/2020 CBI ...... (G) Chemical intermediate ...... (S) Undecanol, branched. P–18–0273A ...... 6 08/14/2020 CBI ...... (G) Used in polymer manufacturing ...... (S) 1,4-Cyclohexanedicarboxylic acid, 1,4-bis(2- ethylhexyl) ester. P–18–0351A ...... 3 08/19/2020 CBI ...... (G) UV curable inks ...... (G) Acrylic acid, tricyclo alkyl ester. P–18–0355A ...... 4 08/03/2020 CBI...... (G) Paint...... (G) Alkanediol, Substituted alkyl, polymer with carbomonocyle, alkanedioate substituted carbomonocycle, ester with substituted alkanoate. P–18–0359A ...... 4 08/18/2020 CBI ...... (G) Molded or extruded items ...... (G) Methoxy Vinyl Ether- Vinylidene Fluoride polymer. P–18–0396A ...... 5 08/17/2020 CBI...... (G) Paint...... (G) Alkenoic acid, alkyl, polymer with carbomonocyle alkyl propenoate and substituted alkyl alkenoate, ester with substituted alkyl alkanoate, tert-butyl substituted peroxoate-initiated. P–18–0398A ...... 6 07/31/2020 EVONIK Corporation ...... (S) Intermediate ...... (G) Polyalkylpolyalkylenepolyamine. P–18–0399A ...... 8 08/14/2020 CBI ...... (G) (c) open, non-dispersive use additive (G) Rosin adduct ester, polymer with polyols, for industrial use only. compd. with ethanolamine.

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TABLE I—PMN/SNUN/MCANS APPROVED * FROM 08/01/2020 TO 08/31/2020—Continued

Received Case No. Version date Manufacturer Use Chemical substance

P–18–0407A ...... 4 08/14/2020 CBI ...... (S) Polyurethane catalyst ...... (S) 1,2-Ethanediamine, N,N-dimethyl-N-(1- methylethyl)-N-[2-[methyl(1- methylethyl)amino]ethyl]-. P–19–0084A ...... 4 07/30/2020 CBI ...... (S) Flame retardant ...... (S) Diphosphoric acid, compd. with 1,3,5-tri- azine-2,4,6-triamine (1:2). P–19–0141A ...... 7 08/24/2020 CBI ...... (S) For use in metal treatment coatings (S) Phosphoric Acid, manganese(2+) salt (2:3). for lubrication and corrosion protection.. P–19–0147A ...... 5 08/17/2020 CRODA, INC...... (G) cleaning additive ...... (G) alkoxylated butyl alkyl ester. P–20–0010A ...... 9 08/26/2020 CBI ...... (G) Polymerization auxiliary ...... (G) Carboxylic acid, reaction products with metal hydroxide, inorganic dioxide and metal. P–20–0025A ...... 4 08/05/2020 Biosynthetic Technologies (S) Motor oil lubricant, formulation #1 (S) Octadecanoic acid, 12-(acetoxy)-, 2- (prepared at a processor which is con- ethylhexyl ester. trolled by others) and Motor oil lubricant, formulation #2 (prepared at a processor which is controlled by others). P–20–0046A ...... 4 08/19/2020 CBI...... (G) Catalyst...... (G) Reaction products of alkyl-terminated alkylalumuminoxanes and {[(pentaalkylphenyl-(pentaalkylphenyl)amino) alkyl]alkanediaminato}bis(aralkyl) transition metal coordination compound. P–20–0048A ...... 4 08/20/2020 CBI...... (G) Catalyst...... (G) Reaction products of alkyl-terminated alkylaluminoxanes and dihalogeno- (alkylcyclopentadieny- l)(tetraalkylcyclopentadienyl)transition metal coordination compound. P–20–0049A ...... 4 08/20/2020 CBI...... (G) Catalyst...... (G) Reaction products of alkyl-aluminoxanes and bis- (alkylcyclodialkylene)dihalogenozirconium. P–20–0076A ...... 3 08/06/2020 CYTEC Industries, Inc ..... (G) Mining chemical ...... (S) Glycine, reaction products with sodium O- iso-Pr carbonodithioate, sodium salts. P–20–0097A ...... 3 08/24/2020 Nelson Brothers, LLC ...... (S) The PMN substance will be used as (G) Butanedioic acid, monopolyisobutylene an emulsifier for applications in explo- derivs., mixed dihydroxyalkyl and sives. hydroxyalkoxyalkyl diesters. P–20–0100A ...... 3 08/19/2020 Evonik Corporation ...... (S) Manual Dish Detergent, Hard Surface (S) Glycolipids, rhamnose-contg., Cleaner, and Laundry Detergent. Pseudomanas putida-fermented, from D-glu- cose, potassium salts. P–20–0105A ...... 2 07/30/2020 Sound Agriculture Com- (S) Maltol lactone is a compound that pro- (S) 4H-Pyran-4-one, 3-[(2,5-dihydro-4-methyl-5- pany. motes microbial activity in the soil, re- oxo-2-furanyl)oxy]-2-methyl-. sulting in increased availability of phos- phorus for crops. This substance will be used on commercial farming operations. P–20–0109 ...... 2 08/05/2020 Huntsman Corporation ..... (S) Exhaust dyeing of cotton and cotton (G) Acetamide, N-[3-[alkyl(carbomonocyclic) blends. substituted]carbomonocycle]-, coupled with diazotized 2- substituted-3-halo-5- nitrobenzonitrile. P–20–0133A ...... 5 08/03/2020 Huntsman International, (G) component of foam ...... (G) Fatty acid oil polymer with aliphatic polyols LLC. and aromatic diacid. P–20–0133A ...... 6 08/05/2020 Huntsman International, (G) component of foam ...... (G) Fatty acid oil polymer with aliphatic polyols LLC. and aromatic diacid. P–20–0134A ...... 5 08/03/2020 Huntsman International, (G) component of foam ...... (G) Aromatic acid, polymer with aliphatic diol LLC. and aromatic diacid. P–20–0134A ...... 6 08/05/2020 Huntsman International, (G) component of foam ...... (G) Aromatic acid, polymer with aliphatic diol LLC. and aromatic diacid. P–20–0135A ...... 5 08/03/2020 Huntsman International, (G) component in foam insulation ...... (G) Fatty acid polymer with polyols, aliphatic al- LLC. cohol and aromatic diacid. P–20–0135A ...... 6 08/05/2020 Huntsman International, (G) component in foam insulation ...... (G) Fatty acid polymer with polyols, aliphatic al- LLC. cohol and aromatic diacid. P–20–0143A ...... 2 08/05/2020 CBI ...... (S) Binder for Thermoplastic Coatings, (S) Cyclohexanemethanamine, 5-amino-1,3,3- and Binder or Ink/Adhesive. trimethyl-, polymer with a-hydro-w- hydroxypoly(oxy-1,4-butanediyl), 5- isocyanato-1-(isocyanatomethyl)-1,3,3- trimethylcyclohexane and 1,1- methylenebis[4-isocyanatobenzene]. P–20–0146 ...... 1 07/30/2020 CBI ...... (G) Insulating material for electrical parts (G) Alkanoic acid, alkyl, carbopolycyclic alkyl ester P–20–0152...... 2 08/03/2020 SHIN–ETSU MICROSI .... (G) Contained use for microlithography for (G) Sulfonium, triphenyl-, salt with 2,2-dihalo-2- electronic device manufacturing. sulfoethyl-2-oxo substituted -heterotricycloalkane-heteropolycyclo- carboxylate (1:1) P–20–0153...... 2 08/04/2020 CBI ...... (G) lubricant additive—dispersant ...... (G) Polyamines, reaction products with succinic anhydride polyalkenyl derivs., borates. P–20–0154 ...... 2 08/04/2020 CBI ...... (G) lubricant additive—dispersant ...... (G) Polyamines, reaction products with succinic anhydride polyalkenyl derivs., borates. P–20–0155 ...... 4 08/13/2020 SHIN–ETSU MICROSI .... (G) Contained use for microlithography for (G) Sulfonium, triphenyl-, salt with 5-alkyl- 2- electronic device manufacturing. alkyl- 4-(2,4,6-substituted tri-carbomonocycle, hetero-acid)benzenesulfonate (1:1). P–20–0155A ...... 5 08/20/2020 SHIN–ETSU MICROSI .... (G) Contained use for microlithography for (G) Sulfonium, triphenyl-, salt with 5-alkyl- 2- electronic device manufacturing. alkyl- 4-(2,4,6-substituted tri-carbomonocycle, hetero-acid)benzenesulfonate (1:1).

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TABLE I—PMN/SNUN/MCANS APPROVED * FROM 08/01/2020 TO 08/31/2020—Continued

Received Case No. Version date Manufacturer Use Chemical substance

P–20–0156 ...... 1 08/03/2020 CBI ...... (G) Photolithography ...... (G) Substituted, triaryl-, tricycloalkane alkyl disubstituted. P–20–0157 ...... 1 08/05/2020 CBI ...... (G) The notified substance will be used as (G) bis(cycloalkyl-alkyl)ether. a fragrance ingredient. P–20–0158 ...... 1 08/06/2020 AkzoNobel ...... (S) External coating for food and bev- (G) Carbomonocyclic diacid, polymer with 2,2- erage cans. dimethyl-1,3-propanediol, alkanetriol, hexanedioic acid and 1,3- isobenzofurandione, compd. with 2- (dimethylamino)ethanol. P–20–0159 ...... 2 08/11/2020 SHIN–ETSU MICROSI .... (G) Contained use for microlithography for (G) Phenoxathiinium, 10-phenyl, 5-alkyl-2-alkyl- electronic device manufacturing. 4-(2,4,6-substituted tri-carbomonocycle, hetero-acid)benzenesulfonate (1:1). P–20–0159A ...... 3 08/20/2020 SHIN–ETSU MICROSI .... (G) Contained use for microlithography for (G) Phenoxathiinium, 10-phenyl, 5-alkyl-2-alkyl- electronic device manufacturing. 4-(2,4,6-substituted tri-carbomonocycle, hetero-acid)benzenesulfonate (1:1). P–20–0160 ...... 2 08/11/2020 Designer Molecules, Inc. (G) Dielectric film forming material for use (S) Amines, C–36-alkylenedi-, polymers with in microelectronic assembly applications. bicyclo[2.2.1]heptanedimethanamine, [5,5′- biisobenzofuran]-1,1′,3,3′-tetrone and 3a,4,4a,7a, 8,8a-hexahydro-4, 8-etheno- 1H,3H-benzo[1,2-c:4, 5-c′]difuran-1,3,5, 7- tetrone, maleated. P–20–0161 ...... 1 08/18/2020 Sirrus, Inc ...... (S) Film former or crosslinker additive (S) Propanedioic acid, 2-methylene-, 1,3-diethyl used in coatings and adhesives, and ester, polymer with 1,4-butanediol. Crosslinker additive used in waterborne emulsions. P–20–0163 ...... 1 08/21/2020 Innovative Chemical (G) Contained chemical processing ...... (S) Butanedioic acid, 2-methylene-, 4-octadecyl Technologies, Inc. ester. P–20–0164 ...... 1 08/21/2020 Innovative Chemical (G) Contained chemical processing ...... (S) Butanedioic acid, 2-methylene-, 4-docosyl Technologies, Inc. ester. P–20–0165 ...... 1 08/21/2020 Innovative Chemical (G) Contained chemical processing ...... (S) Butanedioic acid, 2-methylene-, 4–C16–18- Technologies, Inc. alkyl esters. * The term ‘Approved’ indicates that a submission has passed a quick initial screen ensuring all required information and documents have been provided with the submission prior to the start of the 90 day review period, and in no way reflects the final status of a complete submission review.

In Table II of this unit, EPA provides to the NOC including whether the type of amendment (e.g., amendment to the following information (to the extent submission was an initial or amended generic name, specific name, technical that such information is not claimed as submission, the date the NOC was contact information, etc.) and chemical CBI) on the NOCs that have passed an received by EPA, the date of substance identity. initial screening by EPA during this commencement provided by the period: The EPA case number assigned submitter in the NOC, a notation of the

TABLE II—NOCS APPROVED * FROM 08/01/2020 TO 08/31/2020

If amendment, Case No. Received date Commencement type of Chemical substance date amendment

P–12–0299 ...... 08/19/2020 06/18/2020 N (S) Propanedioic acid, 2-methylene-, 1,3-diethyl ester. P–16–0232 ...... 08/10/2020 08/07/2020 N (G) Zinc, bis[2-(hydroxyl-kO)benzoato-kO]-,(T–4)-, ar, ar’-bis(alkyl) derivs. P–16–0419 ...... 08/04/2020 07/07/2020 N (G) N-alkyl-dialkylpiperidine. P–16–0423 ...... 08/04/2020 07/14/2020 N (G) Tetraalkylpiperidinium halide. P–17–0086 ...... 08/10/2020 07/31/2020 N (S) Cyclohexane, 1,4-bis(ethoxymethyl)-, trans-. P–17–0086 ...... 08/10/2020 07/31/2020 N (S) Cyclohexane, 1,4-bis(ethoxymethyl)-, cis-. P–17–0086 ...... 08/10/2020 07/31/2020 N (S) Cyclohexane, 1,4-bis(ethoxymethyl)-. P–17–0206 ...... 07/30/2020 07/30/2020 N (G) Imino alkane amine phosphate. P–18–0031 ...... 07/31/2020 07/22/2020 N (S) 1, 3-benzenedicarboxylic acid, polymer with 1,3-butanediol, 2,2- dimethyl-1,3-propanediol and 2-ethyl-2-(hydroxymethyl)-1,3- propanediol. P–18–0151 ...... 08/26/2020 04/01/2018 N (S) Formaldehyde, reaction product with 1,3-benzenedimethanamine and p-tert-butylphenol. P–18–0199 ...... 08/10/2020 07/21/2020 N (G) Rare earth oxide. P–18–0263 ...... 08/04/2020 07/28/2020 N (G) Mixed alkyl esters-, polymer with n1-(2-aminoethyl)- l,2- ethanediamine, aziridine, n-acetyl derivs., acetates (salts),. P–18–0381 ...... 07/30/2020 07/29/2020 N (S) Indium manganese yttrium oxide. P–19–0153 ...... 08/06/2020 08/06/2020 N (G) Dibromoalkyl ether tetrabromobisphenol a. P–19–0174 ...... 08/12/2020 08/10/2020 N (S) Octadecanoic acid, (alkylphosphinyl), polyol ester. P–20–0057 ...... 08/24/2020 08/11/2020 N (G) Arene, trimethoxysilyl-, hydrolyzed. P–20–0086 ...... 08/21/2020 07/31/2020 N (G) 2-oxepanone, homopolymer, ester with hydroxyalkyl trioxo heteromonocyclic (3:1). * The term ‘Approved’ indicates that a submission has passed a quick initial screen ensuring all required information and documents have been provided with the submission.

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In Table III of this unit, EPA provides been received during this time period: type of test information submitted, and the following information (to the extent The EPA case number assigned to the chemical substance identity. such information is not subject to a CBI test information; the date the test claim) on the test information that has information was received by EPA, the

TABLE III—TEST INFORMATION RECEIVED FROM 08/01/2020 TO 08/31/2020

Case No. Received date Type of test information Chemical substance

L–20–0140 ... 08/11/2020 Particle Size Distribution Report, Dust Explosivity Test (G) Arylfurandione, [bis(trihaloalkyl)alkylidene]bis-, polymer with alkanediamine. P–16–0463 .. 08/27/2020 Metals Analysis Report ...... (G) Silane-treated aluminosilicate. P–16–0543 .. 08/24/2020 Exposure Monitoring Report ...... (G) Halogenophosphoric acid metal salt. P–19–0098 .. 08/27/2020 Ready Biodegradability Modified Sturm Test (OECD (G) Phosphoric acid, polymer with (hydroxyalkyl)- Test Guideline 301). alkanediol and alkanediol. P–20–0066 .. 08/07/2020 Toxicity Study by Oral Administration to Han Wistar (G) 2-propenoic acid, 2-hydroxyethyl ester, reaction Rats for 4 Weeks Followed by a 2 Week Recovery products with dialkyl hydrogen heterosubstituted Period. phosphate and dimethyl phosphonate.

If you are interested in information President for External Engagement 202– The FCC may not conduct or sponsor that is not included in these tables, you 565–3216. a collection of information unless it may contact EPA’s technical displays a currently valid Office of Joyce B. Stone, information contact or general Management and Budget (OMB) control information contact as described under Assistant Corporate Secretary. number. No person shall be subject to FOR FURTHER INFORMATION CONTACT to [FR Doc. 2020–21182 Filed 9–23–20; 11:15 am] any penalty for failing to comply with access additional non-CBI information BILLING CODE 6690–01–P a collection of information subject to the that may be available. PRA that does not display a valid OMB Authority: 15 U.S.C. 2601 et seq. control number. FEDERAL COMMUNICATIONS DATES: Written PRA comments should Dated: September 16, 2020. COMMISSION be submitted on or before November 24, Pamela Myrick, 2020. If you anticipate that you will be Director, Information Management Division, [OMB 3060–1250; FRS 17095] submitting comments, but find it Office of Pollution Prevention and Toxics. difficult to do so within the period of [FR Doc. 2020–21198 Filed 9–24–20; 8:45 am] Information Collection Being Reviewed time allowed by this notice, you should BILLING CODE 6560–50–P by the Federal Communications advise the contact listed below as soon Commission as possible. AGENCY: Federal Communications ADDRESSES: Direct all PRA comments to EXPORT-IMPORT BANK Commission. Nicole Ongele, FCC, via email PRA@ ACTION: Notice and request for fcc.gov and to [email protected]. Sunshine Act Meetings comments. FOR FURTHER INFORMATION CONTACT: For additional information about the Notice of Open Meeting of the SUMMARY: As part of its continuing effort information collection, contact Nicole Advisory Committee of the Export- to reduce paperwork burdens, and as Ongele, (202) 418–2991. Import Bank of the United States required by the Paperwork Reduction SUPPLEMENTARY INFORMATION: (EXIM). Act of 1995 (PRA), the Federal OMB Control Number: 3060–1250. TIME AND DATE: Tuesday, September 29, Communications Commission (FCC or Title: Sections 15.37(k), 74.851(k), and 2020 from 1:00–4:00 p.m. EDT. Commission) invites the general public 74.851(l), Consumer Disclosure and PLACE: The meeting will be held via and other Federal agencies to take this Labeling. teleconference and audio-only webinar. opportunity to comment on the Form No.: N/A. following information collections. STATUS: Public Participation: The Type of Review: Revision of a Comments are requested concerning: currently approved collection. meeting will be open to public Whether the proposed collection of participation and time will be allotted Respondents: Individuals or information is necessary for the proper households, Business or other for-profit, for questions or comments submitted performance of the functions of the online. Members of the public may also and Not-for-profit institutions. Commission, including whether the Number of Respondents and file written statements before or after the information shall have practical utility; Responses: 100 respondents; 2,250 meeting to [email protected]. the accuracy of the Commission’s responses. Interested parties may register for the burden estimate; ways to enhance the Estimated Time per Response: 0.25 meeting at https:// quality, utility, and clarity of the hours. register.gotowebinar.com/register/ information collected; ways to minimize Frequency of Response: Third party 4591529081381306894. the burden of the collection of disclosure requirement (disclosure and MATTERS TO BE CONSIDERED: Discussion information on the respondents, labeling requirement). of EXIM policies and programs to including the use of automated Obligation to Respond: Required to provide competitive financing to collection techniques or other forms of obtain or retain benefits. Statutory expand United States exports. information technology; and ways to authority for this collection of CONTACT PERSON FOR MORE INFORMATION: further reduce the information information is contained in 47 U.S.C. For further information, contact Brittany collection burden on small business 151, 154(i), 154(j), 301, 302a, 303(f), J. Walker, Deputy to the Senior Vice concerns with fewer than 25 employees. 303(g), and 303(r).

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Total Annual Burden: 625 hours. collection burden for small business collection of information is necessary Total Annual Cost: $62,500. concerns with fewer than 25 for the proper performance of the Privacy Act Impact Assessment: employees.’’ functions of the Commission, including While this collection of information The Commission may not conduct or whether the information shall have collection may impact individuals and sponsor a collection of information practical utility; (b) the accuracy of the households, it does not involve the unless it displays a currently valid Commission’s burden estimates; (c) collection of personally identifiable Office of Management and Budget ways to enhance the quality, utility, and information and therefore does not (OMB) control number. No person shall clarity of the information collected; and implicate the Privacy Act. be subject to any penalty for failing to (d) ways to minimize the burden of the Nature and Extent of Confidentiality: comply with a collection of information collection of information on the No information is requested that would subject to the PRA that does not display respondents, including the use of require assurance of confidentiality. a valid OMB control number. automated collection techniques or Needs and Uses: The Commission DATES: Written comments and other forms of information technology. will submit this information collection recommendations for the proposed Pursuant to the Small Business as a revision to the Office of information collection should be Paperwork Relief Act of 2002, Public Management and Budget (OMB) after submitted on or before October 26, Law 107–198, see 44 U.S.C. 3506(c)(4), this 60-day comment period to obtain 2020. the FCC seeks specific comment on how the full three-year clearance from them. ADDRESSES: Comments should be sent to it might ‘‘further reduce the information The labeling requirement is www.reginfo.gov/public/do/PRAMain. collection burden for small business applicable to persons who manufacture, Find this particular information concerns with fewer than 25 sell, lease, or offer for sale or lease, collection by selecting ‘‘Currently under employees.’’ wireless microphone or video assist 30-day Review—Open for Public OMB Control Number: 3060–1202. devices to the extent that these devices Comments’’ or by using the search Title: Improving 9–1–1 Reliability; are capable of operating on the specific function. Your comment must be Reliability and Continuity of frequencies associated with the 600 submitted into www.reginfo.gov per the Communications Networks, Including MHz service band (617–652 MHz/663– above instructions for it to be Broadband Technologies. 698 MHz). This revision recognizes that considered. In addition to submitting in Form Number: Not Applicable a requirement for consumer disclosure www.reginfo.gov also send a copy of (annual on-line certification). at the point of sale or lease that was your comment on the proposed Type of Review: Extension of a previously part of this information information collection to Nicole Ongele, currently approved collection. collection no longer affects any party FCC, via email to [email protected] and to Respondents: Business or other for- since wireless microphone users must [email protected]. Include in the profit; not-for-profit institutions. Number of Respondents and have ceased any wireless microphone comments the OMB control number as Responses: 200 respondents; 200 operations in the 600 MHz service band shown in the SUPPLEMENTARY responses. no later than July 13, 2020. INFORMATION below. Estimated Time per Response: 834 Federal Communications Commission. FOR FURTHER INFORMATION CONTACT: For hours (average). Varies by respondent. Marlene Dortch, additional information or copies of the Total Annual Burden: 166,350 hours. Secretary, Office of the Secretary. information collection, contact Nicole Frequency of Response: Annual [FR Doc. 2020–21177 Filed 9–24–20; 8:45 am] Ongele at (202) 418–2991. To view a reporting requirement and copy of this information collection BILLING CODE 6712–01–P recordkeeping requirement. request (ICR) submitted to OMB: (1) Go Obligation to Respond: Mandatory. to the web page http://www.reginfo.gov/ The statutory authority for this FEDERAL COMMUNICATIONS public/do/PRAMain, (2) look for the collection of information is contained in COMMISSION section of the web page called sections 1, 4(i), 4(j), 4(o), 201(b), 214(d), ‘‘Currently Under Review,’’ (3) click on 218, 251(e)(3), 301, 303(b), 303(g), [OMB 3060–1202; FRS 17096] the downward-pointing arrow in the 303(r), 307, 309(a), 316, 332, 403, 615a– ‘‘Select Agency’’ box below the Information Collection Being 1, and 615c of the Communications Act ‘‘Currently Under Review’’ heading, (4) of 1934, as amended, 47 U.S.C. 151, Submitted for Review and Approval to select ‘‘Federal Communications Office of Management and Budget 154(i)–(j) & (o), 201(b), 214(d), 218, Commission’’ from the list of agencies 251(e)(3),301, 303(b), 303(g), 303(r), 307, AGENCY: Federal Communications presented in the ‘‘Select Agency’’ box, 309(a), 316, 332, 403, 615a–1, and 615c. Commission. (5) click the ‘‘Submit’’ button to the Total Annual Cost: No Cost. ACTION: Notice and request for right of the ‘‘Select Agency’’ box, (6) Privacy Act Impact Assessment: No comments. when the list of FCC ICRs currently impact(s). under review appears, look for the Title Nature and Extent of Confidentiality: SUMMARY: As part of its continuing effort of this ICR and then click on the ICR The Commission does not consider the to reduce paperwork burdens, as Reference Number. A copy of the FCC fact of filing a certification to be required by the Paperwork Reduction submission to OMB will be displayed. confidential or the responses provided Act (PRA) of 1995, the Federal SUPPLEMENTARY INFORMATION: As part of on the face of the certification. The Communications Commission (FCC or its continuing effort to reduce Commission will treat as presumptively the Commission) invites the general paperwork burdens, as required by the confidential and exempt from routine public and other Federal Agencies to Paperwork Reduction Act (PRA) of 1995 public disclosure under the federal take this opportunity to comment on the (44 U.S.C. 3501–3520), the FCC invited Freedom of Information Act: (1) following information collection. the general public and other Federal Descriptions and documentation of Pursuant to the Small Business Agencies to take this opportunity to alternative measures to mitigate the Paperwork Relief Act of 2002, the FCC comment on the following information risks of nonconformance with seeks specific comment on how it might collection. Comments are requested certification standards; (2) information ‘‘further reduce the information concerning: (a) Whether the proposed detailing specific corrective actions

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taken; and (3) supplemental information those measures were not reasonably renew these information collections. No requested by the Commission or Bureau sufficient to mitigate the associated risks comments were received. The FDIC with respect to a certification. of failure in these key areas. The hereby gives notice of its plan to submit Needs and Uses: This is a renewal of Commission delegated authority to the to OMB a request to approve the an information collection necessary to Bureau to review certification renewal of these information ensure that all Americans have access to information and follow up with service collections, and again invites comment reliable and resilient 911 providers as appropriate to address on the renewal. communications, particularly in times deficiencies revealed by the certification DATES: Comments must be submitted on of emergency, by requiring certain 911 process. or before October 26, 2020. service providers to certify The purpose of the collection of this ADDRESSES: Interested parties are implementation of key best practices or information is to verify that covered 911 invited to submit written comments to reasonable alternative measures. The service providers are taking reasonable the FDIC by any of the following information will be collected in the measures such that their networks methods: form of an electronically-filed, annual comply with accepted best practices, • https://www.FDIC.gov/regulations/ certification from each covered 911 and that, in the event they are not able laws/federal. service provider, as defined in the to certify adherence to specific best • Email: [email protected]. Include Commission’s 2013 Report and Order, practices, that they are taking reasonable the name and number of the collection in which the provider will indicate alternative measures. The Commission in the subject line of the message. whether it has implemented certain adopted these rules in light of • Mail: Manny Cabeza, Regulatory industry-backed best practices. widespread 911 outages during the June Counsel, MB–3128, Federal Deposit Providers that are able to respond in the 2012 derecho storm in the Midwest and Insurance Corporation, 550 17th Street affirmative to all elements of the Mid-Atlantic states, which revealed that NW, Washington, DC 20429. certification will be deemed to satisfy multiple service providers did not take • Hand Delivery: Comments may be the ‘‘reasonable measures’’ requirement adequate precautions to maintain hand-delivered to the guard station at in Section 9.19(b) of the Commission’s reliable service. the rear of the 17th Street NW building rules. If a provider does not certify in Federal Communications Commission. the affirmative with respect to one or (located on F Street), on business days Marlene Dortch, more elements of the certification, it between 7:00 a.m. and 5:00 p.m. must provide a brief explanation of Secretary, Office of the Secretary. Written comments and what alternative measures it has taken, [FR Doc. 2020–21176 Filed 9–24–20; 8:45 am] recommendations for the proposed in light of the provider’s particular facts BILLING CODE 6712–01–P information collection should be sent and circumstances, to ensure reliable within 30 days of publication of this 911 service with respect to that notice to www.reginfo.gov/public/do/ element(s). Similarly, a service provider FEDERAL DEPOSIT INSURANCE PRAMain. Find this particular may also respond by demonstrating that CORPORATION information collection by selecting a particular certification element is not ‘‘Currently under 30-day Review—Open applicable to its networks and must [OMB No. 3064–0092; and 0198] for Public Comments’’ or by using the search function. include a brief explanation of why the Agency Information Collection element(s) does not apply. FOR FURTHER INFORMATION CONTACT: Activities: Submission for OMB Manny Cabeza, Regulatory Counsel, The information will be collected by Review; Comment Request the Public Safety and Homeland 202–898–3767, [email protected], MB– Security Bureau, FCC, for review and AGENCY: Federal Deposit Insurance 3128, Federal Deposit Insurance analysis, to verify that covered 911 Corporation (FDIC). Corporation, 550 17th Street NW, Washington, DC 20429. service providers are taking reasonable ACTION: Agency Information Collection measures to maintain reliable 911 Activities: Submission for OMB Review; SUPPLEMENTARY INFORMATION: service. In certain cases, based on the comment request. information included in the Proposal To Renew the Following Currently Approved Collections of certifications and subsequent SUMMARY: The FDIC, as part of its coordination with the provider, the obligations under the Paperwork Information Commission may require remedial Reduction Act of 1995, invites the 1. Title: Community Reinvestment action to correct vulnerabilities in a general public and other Federal Act. service provider’s 911 network if it agencies to take this opportunity to OMB Number: 3064–0092. determines that (a) the service provider comment on the renewal of the existing Form Number: None. has not, in fact, adhered to the best information collections described Affected Public: Insured state practices incorporated in the FCC’s below. The FDIC published notices in nonmember banks and state savings rules, or (b) in the case of providers the Federal Register requesting associations. employing alternative measures, that comment for 60 days on a proposal to Burden Estimate: SUMMARY OF ANNUAL BURDEN

Total Estimated Average estimated Source and type of burden Description number of estimated time annual respondents per response burden (hours)

345.25(b) Reporting ...... Request for designation as a wholesale or limited pur- 1 4 4 pose bank—Banks requesting this designation shall file a request in writing with the FDIC at least 3 months prior to the proposed effective date of the designation.

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SUMMARY OF ANNUAL BURDEN—Continued

Total Estimated Average estimated Source and type of burden Description number of estimated time annual respondents per response burden (hours)

345.27 Reporting ...... Strategic plan—Applies to banks electing to submit 10 400 4,000 strategic plans to the FDIC for approval. 345.42(b)(1) Reporting ...... Small business/small farm loan data—Large banks 277 8 2,216 shall and Small banks may report annually in machine readable form the aggregate number and amount of certain loans. 345.42(b)(2) Reporting ...... Community development loan data—Large banks shall 277 13 3,601 and Small banks may report annually, in machine readable form, the aggregate number and aggregate amount of community development loans originated or purchased. 345.42(b)(3) Reporting ...... Home mortgage loans—Large banks, if subject to re- 357 253 90,321 porting under part 203 (Home Mortgage Disclosure (HMDA)), shall, and Small banks may report the location of each home mortgage loan application, origi- nation, or purchase outside the MSA in which the bank has a home/branch office. 345.42(d) Reporting ...... Data on affiliate lending—Banks that elect to have the 311 38 11,818 FDIC consider loans by an affiliate, for purposes of the lending or community development test or an approved strategic plan, shall collect, maintain and report the data that the bank would have collected, maintained, and reported pursuant to § 345.42(a), (b), and (c) had the loans been originated or purchased by the bank. For home mortgage loans, the bank shall also be prepared to identify the home mortgage loans reported under HMDA. 345.42(e) Reporting ...... Data on lending by a consortium or a third party— 103 17 1,751 Banks that elect to have the FDIC consider community development loans by a consortium or a third party, for purposes of the lending or community development tests or an approved strategic plan, shall report for those loans the data that the bank would have reported under § 345.42(b)(2) had the loans been originated or purchased by the bank. 345.42(g) Reporting ...... Assessment area data—Large banks shall and Small 380 2 760 banks may collect and report to the FDIC a list for each assessment area showing the geographies within the area.

Total Reporting ...... 114,471

345.42(a) Recordkeeping ...... Small business/small farm loan register—Large banks 380 219 83,220 shall and Small banks may collect and maintain certain data in machine-readable form. 345.42(c) Recordkeeping ...... Optional consumer loan data—All banks may collect 10 26 3,260 and maintain in machine readable form certain data for consumer loans originated or purchased by a bank for consideration under the lending test. 345.42(c)(2) Recordkeeping ...... Other loan data –All banks optionally may provide 103 25 2,575 other information concerning their lending performance, including additional loan distribution data.

Total Recordkeeping ...... 89,055

345.41(a) ...... Content and availability of public file—All banks shall 3,309 10 33,090 345.43(a); (a)(1); (a)(2); (a)(3); (a)(4); (a)(5); (a)(6); maintain a public file that contains certain required (a)(7); (b)(1); (b)(2); (b)(3); (b)(4); (b)(5); (c); (d) Dis- information. closure.

Total Disclosure ...... 33,090

Total Estimated Annual Burden ...... 236,616

General Description of Collection: The account in evaluating applications for 2. Title: Generic Information Community Reinvestment Act mergers, branches, and certain other Collection for Qualitative Research. regulation requires the FDIC to assess corporate activities. OMB Number: 3064–0198. the record of banks and thrifts in There is no change in the method or Affected Public: General public helping meet the credit needs of their substance of the collection. The overall including FDIC insured depository entire communities, including low- and decrease in burden hours is a result of institutions. moderate-income neighborhoods, the decrease in the estimated number of Burden Estimate: consistent with safe and sound respondents. operations; and to take this record into

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SUMMARY OF ANNUAL BURDEN

Estimated Information collection Estimated Estimated time per Estimated description Type of burden Obligation to respond number of frequency response annual burden respondents of responses (minutes) (hours)

Occasional Qualitative Surveys Reporting ...... Voluntary ...... 500 20 60 10,000

Total Estimated Annual Burden: reliable database. Rather, the surveys are Dated at Washington, DC, on September 10,000 hours. expected to yield anecdotal information 21, 2020. General Description of Collection: The about the particular experiences and James P. Sheesley, FDIC is requesting renewal of this opinions of members of the public, Assistant Executive Secretary. approved collection to use occasional primarily staff at respondent banks or [FR Doc. 2020–21136 Filed 9–24–20; 8:45 am] qualitative surveys to gather information bank customers. The collection is non- BILLING CODE 6714–01–P from the public to inform qualitative controversial and does not raise issues research. While the subject and nature of concern to other Federal agencies; of the surveys to be deployed under this with the exception of information FEDERAL RESERVE SYSTEM information collection are yet to be needed to provide remuneration for determined, based on prior experience it participants of focus groups and Formations of, Acquisitions by, and is expected that the number or Mergers of Bank Holding Companies respondents will range from a few to, at cognitive laboratory studies, personally times, several thousands, but, in identifiable information (PII) is The companies listed in this notice general, these surveys are expected to collected only to the extent necessary have applied to the Board for approval, involve an average of 500 respondents. and is not retained. pursuant to the Bank Holding Company Likewise, the time to respond to the Participation in this information Act of 1956 (12 U.S.C. 1841 et seq.) surveys can range from a few minutes to collection will be voluntary and (BHC Act), Regulation Y (12 CFR part several hours, but, it is expected that the conducted in-person, by phone, or using 225), and all other applicable statutes average time to respond to a survey is other methods, such as virtual and regulations to become a bank approximately one hour. These surveys technology. The types of collections that holding company and/or to acquire the are completely voluntary in nature. this generic clearance covers include, assets or the ownership of, control of, or the power to vote shares of a bank or FDIC estimates that approximately 20 but are not limited to: small discussion bank holding company and all of the such surveys will be conducted in any groups; focus groups of consumers, given year. banks and nonbanking companies financial industry professionals, or Currently, the FDIC has a variety of owned by the bank holding company, methods to collect quantitative other stakeholders; cognitive laboratory including the companies listed below. information from consumers and studies, such as those used to refine The public portions of the institutions (e.g., Call Reports, FDIC questions or assess usability of a applications listed below, as well as National Survey of Unbanked and website; qualitative customer other related filings required by the Underbanked Households, etc.). satisfaction surveys (e.g., post- Board, if any, are available for Qualitative data would provide transaction surveys; opt-out web immediate inspection at the Federal complementary information on insights, surveys); and in-person observation Reserve Bank(s) indicated below and at opinions, and perceptions that will testing (e.g., website or software the offices of the Board of Governors. inform how the FDIC approaches its usability tests). This information may also be obtained mission to safeguard financial stability on an expedited basis, upon request, by Request for Comment of the banking system and promote contacting the appropriate Federal consumer protection and economic Comments are invited on: (a) Whether Reserve Bank and from the Board’s inclusion. This clearance would allow the collection of information is Freedom of Information Office at the FDIC to engage with consumers and necessary for the proper performance of https://www.federalreserve.gov/foia/ other relevant stakeholders through the FDIC’s functions, including whether request.htm. Interested persons may qualitative research methods such as the information has practical utility; (b) express their views in writing on the focus groups, in-depth interviews, the accuracy of the estimates of the standards enumerated in the BHC Act cognitive testing, and/or qualitative (12 U.S.C. 1842(c)). burden of the information collection, virtual methods. Comments regarding each of these including the validity of the The purpose of the surveys is, in applications must be received at the general terms, to obtain anecdotal methodology and assumptions used; (c) Reserve Bank(s) indicated or the offices information about regulatory burden, ways to enhance the quality, utility, and of the Board of Governors, Ann E. problems or successes in the bank clarity of the information to be Misback, Secretary of the Board, 20th supervisory process (including both collected; and (d) ways to minimize the Street and Constitution Avenue NW, safety-and-soundness and consumer- burden of the collection of information Washington, DC 20551–0001, not later related exams), the perceived need for on respondents, including through the than October 26, 2020. regulatory or statutory change, and use of automated collection techniques A. Federal Reserve Bank of similar concerns. The information in or other forms of information Minneapolis (Chris P. Wangen, these surveys is anecdotal in nature, technology. All comments will become Assistant Vice President), 90 Hennepin that is, samples are not necessarily a matter of public record. Avenue, Minneapolis, Minnesota random, the results are not necessarily Federal Deposit Insurance Corporation. 55480–0291: representative of a larger class of 1. Bank Forward Employee Stock potential respondents, and the goal is Ownership Plan and Trust, Fargo, North not to produce a statistically valid and Dakota; to acquire additional voting

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shares of Security State Bank Holding DATES: Comments on the collection(s) of Pharmacists must make a reasonable Company, Fargo, North Dakota, and information must be received by the effort to obtain, record, and maintain thereby indirectly acquire additional OMB desk officer by October 26, 2020. Medicaid patient profiles. These profiles voting shares of Bank Forward, ADDRESSES: Written comments and must reflect at least the patient’s name, Hannaford, North Dakota. recommendations for the proposed address, telephone number, date of B. Federal Reserve Bank of Kansas information collection should be sent birth/age, gender, history, e.g., allergies, City (Dennis Denney, Assistant Vice within 30 days of publication of this drug reactions, list of medications, and President) 1 Memorial Drive, Kansas notice to www.reginfo.gov/public/do/ pharmacist’s comments relevant to the City, Missouri 64198–0001: PRAMain. Find this particular individual’s drug therapy. 1. Bern Bancshares, Inc., Bern, information collection by selecting The States must conduct RetroDUR Kansas; to acquire up to 7 percent of the ‘‘Currently under 30-day Review—Open which provides for the ongoing periodic voting shares of UBT Bancshares, Inc., for Public Comments’’ or by using the examination of claims data and other and thereby indirectly acquire voting search function. records in order to identify patterns of shares of United Bank & Trust, both of To obtain copies of a supporting fraud, abuse, inappropriate or medically Marysville, Kansas. statement and any related forms for the unnecessary care. Patterns or trends of Board of Governors of the Federal Reserve proposed collection(s) summarized in drug therapy problems are identified System, September 22, 2020. this notice, you may make your request and reviewed to determine the need for Yao-Chin Chao, using one of following: intervention activity with pharmacists Assistant Secretary of the Board. 1. Access CMS’ website address at and/or physicians. States may conduct website address at https://www.cms.gov/ interventions via telephone, [FR Doc. 2020–21213 Filed 9–24–20; 8:45 am] Regulations-and-Guidance/Legislation/ correspondence, or face-to-face contact. BILLING CODE P PaperworkReductionActof1995/PRA- Annual reports are submitted to CMS Listing.html. for the purposes of monitoring 2. Call the Reports Clearance Office at compliance and evaluating the progress DEPARTMENT OF HEALTH AND (410) 786–1326. of States’ DUR programs. The HUMAN SERVICES FOR FURTHER INFORMATION CONTACT: information submitted by States is William Parham at (410) 786–4669. reviewed and results are compiled by Centers for Medicare & Medicaid SUPPLEMENTARY INFORMATION: Under the CMS in a format intended to provide Services Paperwork Reduction Act of 1995 (PRA) information, comparisons, and trends (44 U.S.C. 3501–3520), federal agencies related to States’ experiences with DUR. [Document Identifier: CMS–R–153] must obtain approval from the Office of States benefit from the information and may enhance their programs each year Agency Information Collection Management and Budget (OMB) for each collection of information they conduct based on State reported innovative Activities: Submission for OMB practices that are compiled by CMS Review; Comment Request or sponsor. The term ‘‘collection of information’’ is defined in 44 U.S.C. from the DUR annual reports. Form AGENCY: Centers for Medicare & 3502(3) and 5 CFR 1320.3(c) and Number: CMS–R–153 (OMB control Medicaid Services, Health and Human includes agency requests or number: 0938–0659); Frequency: Yearly, Services (HHS). requirements that members of the public quarterly, and occasionally; Affected Public: State, Local, or Tribal ACTION: Notice. submit reports, keep records, or provide information to a third party. Section Governments; Number of Respondents: SUMMARY: The Centers for Medicare & 3506(c)(2)(A) of the PRA (44 U.S.C. 51; Total Annual Responses: 663; Total Medicaid Services (CMS) is announcing 3506(c)(2)(A)) requires federal agencies Annual Hours: 41,004. (For policy an opportunity for the public to to publish a 30-day notice in the questions regarding this collection comment on CMS’ intention to collect Federal Register concerning each contact Mike Forman at 410–786–2666.) information from the public. Under the proposed collection of information, Dated: September 22, 2020. Paperwork Reduction Act of 1995 including each proposed extension or William N. Parham, III, (PRA), federal agencies are required to reinstatement of an existing collection Director, Paperwork Reduction Staff, Office publish notice in the Federal Register of information, before submitting the of Strategic Operations and Regulatory concerning each proposed collection of collection to OMB for approval. To Affairs. information, including each proposed comply with this requirement, CMS is [FR Doc. 2020–21181 Filed 9–24–20; 8:45 am] extension or reinstatement of an existing publishing this notice that summarizes BILLING CODE 4120–01–P collection of information, and to allow the following proposed collection(s) of a second opportunity for public information for public comment: comment on the notice. Interested 1. Type of Information Collection DEPARTMENT OF HEALTH AND persons are invited to send comments Request: Revision of a currently HUMAN SERVICES regarding the burden estimate or any approved collection; Title of other aspect of this collection of Information Collection: Medicaid Drug Centers for Medicare & Medicaid information, including the necessity and Use Review (DUR) Program; Use: States Services utility of the proposed information must provide for a review of drug collection for the proper performance of therapy before each prescription is filled [CMS–3393–FN] the agency’s functions, the accuracy of or delivered to a Medicaid patient. This Medicare Program; Approval of the estimated burden, ways to enhance review includes screening for potential Application by the Community Health the quality, utility, and clarity of the drug therapy problems due to Accreditation Partner for Initial CMS- information to be collected, and the use therapeutic duplication, drug-disease Approval of Its Home Infusion Therapy of automated collection techniques or contraindications, drug-drug Accreditation Program other forms of information technology to interactions, incorrect drug dosage or minimize the information collection duration of drug treatment, drug-allergy AGENCY: Centers for Medicare and burden. interactions, and clinical abuse/misuse. Medicaid Services, HHS.

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ACTION: Final notice. located in a rural area (as defined in III. Provisions of the Proposed Notice section 1886(d)(2)(D) of the Act). In the April 27, 2020 Federal Register SUMMARY: This final notice announces • our decision to approve the Community Whether the organization has (85 FR 23364), we published a proposed Health Accreditation Partner (CHAP) for established reasonable fees to be notice announcing the Community initial recognition as a national charged to suppliers applying for Health Accreditation Partner’s (CHAP’s) accrediting organization for home accreditation. request for initial approval of its Medicare HIT accreditation program. In infusion therapy suppliers that wish to • Such other factors as the Secretary that proposed notice, we detailed our participate in the Medicare program. A determines appropriate. evaluation criteria. Under section home infusion therapy supplier that Section 1834(u)(5)(B) of the Act 1834(u)(5) the Act and in our participates must meet the Medicare requires the Secretary to designate AOs regulations at § 488.1010, we conducted conditions for coverage. to accredit HIT suppliers furnishing HIT a review of CHAP’s Medicare HIT DATES: The approval announced in this not later than January 1, 2021. Section accreditation application in accordance final notice is effective September 25, 1861(iii)(3)(D) of the Act defines with the criteria specified by our 2020 through September 25, 2024. ‘‘qualified home infusion therapy regulations, which included, but are not FOR FURTHER INFORMATION CONTACT: suppliers’’ as being accredited by a limited to the following: Christina Mister-Ward, (410) 786– CMS-approved AO. • An administrative review of 2441. In the March 1, 2019 Federal Register, CHAP’s: (1) Corporate policies; (2) Shannon Freeland, (410) 786–4348. we published a solicitation notice financial and human resources available Lillian Williams, (410) 786–8636. entitled, ‘‘Medicare Program; to accomplish the proposed surveys; (3) SUPPLEMENTARY INFORMATION: Solicitation of Independent Accrediting procedures for training, monitoring, and Organizations To Participate in the evaluation of its home infusion therapy I. Background Home Infusion Therapy Supplier surveyors; (4) ability to investigate and Home Infusion therapy (HIT) is a Accreditation Program’’ (84 FR 7057). respond appropriately to complaints treatment option for Medicare This notice informed national AOs that against accredited home infusion beneficiaries with a wide range of acute accredit HIT suppliers of an opportunity therapies; and (5) survey review and and chronic conditions. Section 5012 of to submit applications to participate in decision-making process for the 21st Century Cures Act (Pub. L. 114– the HIT supplier accreditation program. accreditation. • 255, enacted on December 13, 2016) Complete applications will be The ability for CHAP to conduct added sections 1861(iii) and 1834(u) to considered for the January 1, 2021 timely review of accreditation the Social Security Act (the Act), applications. designation deadline if received by • establishing a new Medicare benefit for February 1, 2020. The ability of CHAP to take into HIT services. Section 1861(iii)(1) of the account the capacities of suppliers Regulations for the approval and located in a rural area. Act defines HIT as professional services, oversight of AOs for HIT organizations • including nursing services; training and The comparison of CHAP’s are located at 42 CFR part 488, subpart Medicare HIT accreditation program education not otherwise covered under L. The requirements for HIT suppliers the Durable Medical Equipment (DME) standards to our current Medicare home are located at 42 CFR part 486, subpart infusion therapy conditions for coverage benefit; remote monitoring; and other I. monitoring services. Home infusion (CfCs). • CHAP’s survey process to therapy must be furnished by a qualified II. Approval of Accreditation determine the following: HIT supplier and furnished in the Organizations ++ The composition of the survey individual’s home. The individual must: team, surveyor qualifications, and • Be under the care of an applicable Section 1834(u)(5) of the Act and the CHAP’s ability to provide continuing provider (that is, physician, nurse regulations at § 488.1010 require that our findings concerning review and surveyor training. practitioner, or physician assistant); and ++ CHAP’s processes, including • Have a plan of care established and approval of a national AO’s requirements consider, among other periodic resurvey and the ability to periodically reviewed by a physician in investigate and respond appropriately to coordination with the furnishing of factors, the applying AO’s requirements for accreditation; survey procedures; complaints against accredited home home infusion drugs under Part B, that infusion therapies. prescribes the type, amount, and resources for conducting required surveys; capacity to furnish information ++ Evaluate CHAP’s procedures for duration of infusion therapy services monitoring home infusion therapies it that are to be furnished. for use in enforcement activities; monitoring procedures for provider has found to be out of compliance with Section 1861(iii)(3)(D)(i)(III) of the Act CHAP’s program requirements. requires that a qualified HIT supplier be entities found not in compliance with the conditions or requirements; and ++ Assess CHAP’s ability to report accredited by an accrediting deficiencies to the surveyed home organization (AO) designated by the ability to provide CMS with the necessary data. infusion therapy and respond to the Secretary in accordance with section home infusion therapy’s plan of 1834(u)(5) of the Act. Section Section 488.1020(a) requires that we correction in a timely manner. 1834(u)(5)(A) of the Act identifies publish, after receipt of an ++ Establish CHAP’s ability to factors for designating AOs and in organization’s complete application, a provide CMS with electronic data and reviewing and modifying the list of notice identifying the national reports necessary for effective validation designated AOs. These statutory factors accrediting body making the request, and assessment of the organization’s are as follows: describing the nature of the request, and survey process. • The ability of the organization to providing at least a 30-day public ++ Determine the adequacy of CHAP’s conduct timely reviews of accreditation comment period. In accordance with staff and other resources. applications. § 488.1010(d), we have 210 days from ++ Confirm CHAP’s ability to provide • The ability of the organization take the receipt of a complete application to adequate funding for performing into account the capacities of suppliers approve or deny the application. required surveys.

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++ Confirm CHAP’s policies with V. Collection of Information (ASCA) Pilot Program: Guidance for respect to surveys being unannounced. Requirements Industry, Accreditation Bodies, Testing ++ Review CHAP’s policies and This document does not impose Laboratories, and FDA Staff.’’ These procedures to avoid conflicts of interest, information collection and guidances describe the goals, scope, including the appearance of conflicts of requirements, that is, reporting, procedures, and framework for the interest, involving individuals who recordkeeping or third party disclosure voluntary ASCA Pilot program, and conduct surveys or participate in requirements. Consequently, there is no provide information about two groups of accreditation decisions. need for review by the Office of consensus standards within the scope of ++ Obtain CHAP’s agreement to the pilot program. provide CMS with a copy of the most Management and Budget under the authority of the Paperwork Reduction DATES: The announcement of these current accreditation survey together guidances is published in the Federal with any other information related to Act of 1995 (44 U.S.C. Chapter 35). Register on September 25, 2020. the survey as we may require, including The Administrator of the Centers for corrective action plans. Medicare & Medicaid Services (CMS), ADDRESSES: You may submit either The April 27, 2020 proposed notice Seema Verma, having reviewed and electronic or written comments on also solicited public comments approved this document, authorizes Agency guidances at any time as regarding whether CHAP’s requirements Lynette Wilson, who is the Federal follows: Register Liaison, to electronically sign met or exceeded the Medicare CfCs for Electronic Submissions home infusion therapy. No comments this document for purposes of were received in response to our publication in the Federal Register. Submit electronic comments in the proposed notice. following way: Dated: September 21, 2020. • Lynette Wilson, Federal eRulemaking Portal: IV. Provisions of the Final Notice https://www.regulations.gov. Follow the Federal Register Liaison, Centers for Medicare A. Differences Between CHAP’s & Medicaid. instructions for submitting comments. Standards and Requirements for Comments submitted electronically, [FR Doc. 2020–21147 Filed 9–24–20; 8:45 am] including attachments, to https:// Accreditation and Medicare Conditions BILLING CODE 4120–01–P and Survey Requirements www.regulations.gov will be posted to the docket unchanged. Because your We compared CHAP’s HIT comment will be made public, you are accreditation requirements and survey DEPARTMENT OF HEALTH AND solely responsible for ensuring that your process with the Medicare CfCs of part HUMAN SERVICES comment does not include any 486, subpart I and the survey and confidential information that you or a certification process requirements of Food and Drug Administration third party may not wish to be posted, part 488, subpart L. Our review and [Docket No. FDA–2019–D–3805] such as medical information, your or evaluation of CHAP’s HIT application, anyone else’s Social Security number, or which was conducted as described in The Accreditation Scheme for confidential business information, such section III. of this final notice, yielded Conformity Assessment Pilot Program; as a manufacturing process. Please note the following areas where, as of the date Guidances for Industry, Accreditation that if you include your name, contact of this notice, CHAP has completed Bodies, Testing Laboratories, and information, or other information that revising its standards and certification Food and Drug Administration Staff; identifies you in the body of your processes in order to meet the condition Availability at: comments, that information will be • AGENCY: Food and Drug Administration, posted on https://www.regulations.gov. Section 486.520(b), to address the • requirement of the plan of care must be HHS. If you want to submit a comment established by a physician prescribing ACTION: Notice of availability. with confidential information that you the type, amount and duration for home do not wish to be made available to the infusion therapy. SUMMARY: The Food and Drug public, submit the comment as a • Section 486.525(a), to include the Administration (FDA or Agency) is written/paper submission and in the required language ‘‘plan of care’’. announcing the availability of three manner detailed (see ‘‘Written/Paper • Section 488.1010(a)(6)(iv), to revise final guidance documents for the Submissions’’ and ‘‘Instructions’’). CHAP’s procedures for survey reviews. Accreditation Scheme for Conformity Assessment Pilot Program—specifically, Written/Paper Submissions B. Term of Approval ‘‘The Accreditation Scheme for Submit written/paper submissions as As authorized under § 488.1040(a), we Conformity Assessment (ASCA) Pilot follows: reserve the right to conduct onsite Program; Guidance for Industry, • Mail/Hand Delivery/Courier (for observations of accrediting organization Accreditation Bodies, Testing written/paper submissions): Dockets operations at any time as part of the Laboratories, and FDA Staff’’; ‘‘Basic Management Staff (HFA–305), Food and ongoing review and continuing Safety and Essential Performance of Drug Administration, 5630 Fishers oversight of an accrediting Medical Electrical Equipment, Medical Lane, Rm. 1061, Rockville, MD 20852. organization’s performance. Based on Electrical Systems, and Laboratory • For written/paper comments the review and observations described Medical Equipment—Standards Specific submitted to the Dockets Management in section III. of this final notice, we Information for the Accreditation Staff, FDA will post your comment, as have determined that CHAP’s Scheme for Conformity Assessment well as any attachments, except for requirements for HIT meet or exceed our (ASCA) Pilot Program: Guidance for information submitted, marked and requirements. Therefore, we approve Industry, Accreditation Bodies, Testing identified, as confidential, if submitted CHAP as a national accreditation Laboratories, and FDA Staff’’; and as detailed in ‘‘Instructions.’’ organization for HITs that request ‘‘Biocompatibility Testing of Medical Instructions: All submissions received participation in the Medicare program, Devices—Standards Specific must include the Docket No. FDA– effective September 25, 2020 through Information for the Accreditation 2019–D–3805 for ‘‘The Accreditation September 25, 2024. Scheme for Conformity Assessment Scheme for Conformity Assessment

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(ASCA) Pilot Program; Guidances for ‘‘Search’’ box and follow the prompts section 205). The new paragraph 514(d) Industry, Accreditation Bodies, Testing and/or go to the Dockets Management requires FDA to establish a pilot Laboratories, and FDA Staff’’; ‘‘Basic Staff, 5630 Fishers Lane, Rm. 1061, program under which testing Safety and Essential Performance of Rockville, MD 20852, 240–402–7500. laboratories may be accredited by Medical Electrical Equipment, Medical You may submit comments on any accreditation bodies meeting criteria Electrical Systems, and Laboratory guidance at any time (see 21 CFR specified by FDA to assess the Medical Equipment—Standards Specific 10.115(g)(5)). conformance of a device within certain Information for the Accreditation Electronic copies of these three FDA-recognized standards. Scheme for Conformity Assessment guidance documents are available for Determinations by testing laboratories (ASCA) Pilot Program: Guidance for download from the internet. See the so accredited that a device conforms Industry, Accreditation Bodies, Testing SUPPLEMENTARY INFORMATION section for with an eligible standard included as Laboratories, and FDA Staff’’; and information on electronic access to the part of the pilot program shall be ‘‘Biocompatibility Testing of Medical guidances. Submit written requests for accepted by FDA for the purposes of Devices—Standards Specific single hard copies of the guidance demonstrating such conformity unless Information for the Accreditation documents entitled ‘‘The Accreditation FDA finds that a particular such Scheme for Conformity Assessment Scheme for Conformity Assessment determination shall not be so accepted. (ASCA) Pilot Program: Guidance for (ASCA) Pilot Program; Guidance for The statute provides that FDA may Industry, Accreditation Bodies, Testing Industry, Accreditation Bodies, Testing review determinations by accredited Laboratories, and FDA Staff.’’ Received Laboratories, and FDA Staff’’; ‘‘Basic testing laboratories, including by comments will be placed in the docket Safety and Essential Performance of conducting periodic audits of such and, except for those submitted as Medical Electrical Equipment, Medical determinations or processes of ‘‘Confidential Submissions,’’ publicly Electrical Systems, and Laboratory accreditation bodies or testing viewable at https://www.regulations.gov Medical Equipment—Standards Specific laboratories. Following such a review, or at the Dockets Management Staff Information for the Accreditation or if FDA becomes aware of information between 9 a.m. and 4 p.m., Monday Scheme for Conformity Assessment materially bearing on safety or through Friday, 240–402–7500. (ASCA) Pilot Program: Guidance for effectiveness of a device assessed by an • Confidential Submissions—To Industry, Accreditation Bodies, Testing accredited testing laboratory, FDA may submit a comment with confidential Laboratories, and FDA Staff’’; or, take additional measures as determined information that you do not wish to be ‘‘Biocompatibility Testing of Medical appropriate, including suspension or made publicly available, submit your Devices—Standards Specific withdrawal of accreditation of a testing comments only as a written/paper Information for the Accreditation laboratory or a request for additional submission. You should submit two Scheme for Conformity Assessment information regarding a specific device. copies total. One copy will include the (ASCA) Pilot Program: Guidance for Under the ASCA Pilot’s conformity information you claim to be confidential Industry, Accreditation Bodies, Testing assessment scheme, ASCA-recognized with a heading or cover note that states Laboratories, and FDA Staff’’ to the accreditation bodies accredit testing ‘‘THIS DOCUMENT CONTAINS Office of Policy, Center for Devices and laboratories using ASCA program CONFIDENTIAL INFORMATION.’’ The Radiological Health, Food and Drug specifications associated with each Agency will review this copy, including Administration, 10903 New Hampshire eligible standard and ISO/IEC the claimed confidential information, in Ave., Bldg. 66, Rm. 5431, Silver Spring, 17025:2017: General requirements for its consideration of comments. The MD 20993–0002 or the Center for the competence of testing and second copy, which will have the Biologics Evaluation and Research, calibration laboratories. ASCA- claimed confidential information Office of Communication, Outreach, and accredited testing laboratories may redacted/blacked out, will be available Development, 10903 New Hampshire conduct testing to provide data used to for public viewing and posted on Ave., Bldg. 71, Rm. 3128, Silver Spring, determine conformance of a device with at least one of the standards eligible for https://www.regulations.gov. Submit MD 20903. Send one self-addressed inclusion in the ASCA Pilot. When an both copies to the Dockets Management adhesive label to assist that office in ASCA-accredited testing laboratory Staff. If you do not wish your name and processing your request. contact information to be made publicly conducts testing under the ASCA Pilot, FOR FURTHER INFORMATION CONTACT: available, you can provide this Erin it provides to the device manufacturer information on the cover sheet and not Cutts, Center for Devices and all information listed in the ASCA in the body of your comments and you Radiological Health, Food and Drug program specifications, which includes must identify this information as Administration, 10903 New Hampshire an ASCA summary test report. A device ‘‘confidential.’’ Any information marked Ave., Bldg. 66, Rm. 5554, Silver Spring, manufacturer that uses an ASCA- as ‘‘confidential’’ will not be disclosed MD 20993–0002, 301–796–6307; or accredited testing laboratory to perform except in accordance with 21 CFR 10.20 Stephen Ripley, Center for Biologics testing in accordance with the and other applicable disclosure law. For Evaluation and Research, Food and provisions of the ASCA Pilot can then more information about FDA’s posting Drug Administration, 10903 New include a declaration of conformity with of comments to public dockets, see 80 Hampshire Ave., Bldg. 71, Rm. 7301, any necessary supplemental FR 56469, September 18, 2015, or access Silver Spring, MD 20993, 240–402– documentation (e.g., ASCA summary the information at: https:// 7911. test report) as part of a premarket www.govinfo.gov/content/pkg/FR-2015- SUPPLEMENTARY INFORMATION: submission to FDA. 09-18/pdf/2015-23389.pdf. FDA held a public workshop entitled Docket: For access to the docket to I. Background ‘‘Accreditation Scheme for Conformity read background documents or the The FDA Reauthorization Act of 2017 Assessment of Medical Devices to Food electronic and written/paper comments (FDARA) amended section 514 of the and Drug Administration—Recognized received, go to https:// FD&C Act (21 U.S.C. 360d) by adding a Standards’’ on May 22–23, 2018, to www.regulations.gov and insert the new paragraph (d) with the title ‘‘Pilot obtain input and recommendations from docket number, found in brackets in the Accreditation Scheme for Conformity stakeholders about the ASCA Pilot, heading of this document, into the Assessment’’ (see Pub. L. 115–52, including its goals and scope as well as

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a suitable framework and procedures to (ASCA) Pilot Program: Guidance for Assessment (ASCA) Pilot Program: facilitate implementation. Industry, Accreditation Bodies, Testing Guidance for Industry, Accreditation FDA considered comments received Laboratories, and FDA Staff’’ provides Bodies, Testing Laboratories, and FDA on the draft guidance ‘‘The information specific to the biological Staff;’’ or ‘‘Biocompatibility Testing of Accreditation Scheme for Conformity evaluation of medical device standards Medical Devices—Standards Specific Assessment (ASCA) Pilot Program’’ that and test methods in the ASCA Pilot, Information for the Accreditation appeared in the Federal Register of including which standards and test Scheme for Conformity Assessment September 23, 2019 (https:// methods are eligible for inclusion in the (ASCA) Pilot Program: Guidance for www.govinfo.gov/content/pkg/FR-2019- program, ASCA program specifications Industry, Accreditation Bodies, Testing 09-23/pdf/2019-20543.pdf). FDA revised for those standards and test methods, Laboratories, and FDA Staff’’ may send the guidance as appropriate in response and recommended premarket an email request to CDRH-Guidance@ to the comments. In particular, FDA submission contents specific to those fda.hhs.gov to receive an electronic added clarifications and details standards and test methods when copy of the document. Please use the regarding the ASCA Pilot and its testing is conducted by an ASCA- following document numbers to identify implementation, including changing accredited testing laboratory. the guidance you are requesting. terminology to describe whether a These guidances are being issued testing laboratory or accreditation body consistent with FDA’s good guidance • Document number 17037 for ‘‘The is participating in the program; practices regulation (21 CFR 10.115). Accreditation Scheme for Conformity providing additional information on These guidances represents the current Assessment (ASCA) Pilot Program; how and when FDA will conduct audits thinking of FDA on the ‘‘Accreditation Guidance for Industry, Accreditation under the ASCA Pilot; and clarifying Scheme for Conformity Assessment Bodies, Testing Laboratories, and FDA who is responsible for developing test (ASCA) Pilot Program’’; ‘‘Basic Safety Staff’’. methods and completing the ASCA and Essential Performance of Medical • Document number 20011 for ‘‘Basic summary test report. In addition, FDA Electrical Equipment, Medical Electrical Safety and Essential Performance of added several appendices, including an Systems, and Laboratory Medical example declaration of conformity for Equipment—Standards Specific Medical Electrical Equipment, Medical each set of standards in the program, as Information for the Accreditation Electrical Systems, and Laboratory well as additional example ASCA Scheme for Conformity Assessment Medical Equipment—Standards Specific summary test reports for (ASCA) Pilot Program’’; and Information for the Accreditation biocompatibility testing of medical ‘‘Biocompatibility Testing of Medical Scheme for Conformity Assessment devices. For ease of reading and Devices—Standards Specific (ASCA) Pilot Program: Guidance for organizational purposes, FDA separated Information for the Accreditation Industry, Accreditation Bodies, Testing the document, issued in draft, into three Scheme for Conformity Assessment Laboratories, and FDA Staff’’. separate guidance documents for final (ASCA) Pilot Program.’’ They do not • Document number 20012 for publication. establish any rights for any person and ‘‘Biocompatibility Testing of Medical • ‘‘The Accreditation Scheme for is not binding on FDA or the public. Devices—Standards Specific Conformity Assessment (ASCA) Pilot You can use an alternative approach if Information for the Accreditation Program; Guidance for Industry, it satisfies the requirements of the Scheme for Conformity Assessment Accreditation Bodies, Testing applicable statutes and regulations. (ASCA) Pilot Program: Guidance for Laboratories, and FDA Staff’’ describes Industry, Accreditation Bodies, Testing how the ASCA Pilot was designed and II. Electronic Access Laboratories, and FDA Staff’’. how accreditation bodies, testing Persons interested in obtaining a copy laboratories, device manufacturers, and of these guidances may do so by III. Paperwork Reduction Act of 1995 FDA staff participate in the program. downloading an electronic copy from • ‘‘Basic Safety and Essential the internet. A search capability for all In the Federal Register of September Performance of Medical Electrical Center for Devices and Radiological 5, 2019 (84 FR 46737), FDA requested Equipment, Medical Electrical Systems, Health guidance documents is available public comment on the collections of and Laboratory Medical Equipment— at https://www.fda.gov/MedicalDevices/ information associated with the ASCA Standards Specific Information for the DeviceRegulationandGuidance/ Pilot. The information collection and Accreditation Scheme for Conformity GuidanceDocuments/default.htm. These our burden estimate is substantially the Assessment (ASCA) Pilot Program: guidance documents are also available same, and is meant to encompass, the Guidance for Industry, Accreditation at https://www.regulations.gov or information collections proposed in the Bodies, Testing Laboratories, and FDA https://www.fda.gov/vaccines-blood- guidances (OMB control number 0910– Staff’’ provides information specific to biologics/guidance-compliance- 0889). the basic safety and essential regulatory-information-biologics/ performance standards in the ASCA biologics-guidances. Persons unable to These guidances refer to previously Pilot, including which standards are download an electronic copy of ‘‘The approved collections of information. eligible for inclusion in the program, Accreditation Scheme for Conformity These collections of information are ASCA program specifications for those Assessment (ASCA) Pilot Program; subject to review by the Office of standards, and recommended premarket Guidance for Industry, Accreditation Management and Budget (OMB) under submission contents specific to those Bodies, Testing Laboratories, and FDA the Paperwork Reduction Act of 1995 standards when testing is conducted by Staff;’’ ‘‘Basic Safety and Essential (44 U.S.C. 3501–3521). The collections an ASCA-accredited testing laboratory. Performance of Medical Electrical of information in the following FDA • ‘‘Biocompatibility Testing of Equipment, Medical Electrical Systems, regulations and guidance have been Medical Devices—Standards Specific and Laboratory Medical Equipment— approved by OMB as listed in the Information for the Accreditation Standards Specific Information for the following table: Scheme for Conformity Assessment Accreditation Scheme for Conformity

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OMB Control 21 CFR part or guidance Topic No.

807, subpart E ...... Premarket notification ...... 0910–0120 814, subparts A through E ...... Premarket approval ...... 0910–0231 814, subpart H ...... Humanitarian Device Exemption ...... 0910–0332 812 ...... Investigational Device Exemption ...... 0910–0078 820 ...... Quality System Regulation ...... 0910–0073 803 ...... Medical Device Reporting ...... 0910–0437 ‘‘De Novo Classification Process (Evaluation of Automatic De Novo classification process ...... 0910–0844 Class III Designation)’’. ‘‘Requests for Feedback and Meetings for Medical Device Q-submissions ...... 0910–0756 Submissions: The Q-Submission Program’’. 58 ...... Good Laboratory Practices ...... 0910–0119 312 ...... Investigational New Drug Application ...... 0910–0014 601 ...... Biologics License Application ...... 0910–0338

Dated: September 22, 2020. • Federal eRulemaking Portal: analyses. One copy will include the Lauren K. Roth, https://www.regulations.gov. Follow the information you claim to be confidential Associate Commissioner for Policy. instructions for submitting comments to with a heading or cover note that states [FR Doc. 2020–21234 Filed 9–24–20; 8:45 am] submit your request for a hearing. ‘‘THIS DOCUMENT CONTAINS BILLING CODE 4164–01–P Comments submitted electronically to CONFIDENTIAL INFORMATION.’’ The https://www.regulations.gov, including Agency will review this copy, including any attachments to the request for a the claimed confidential information, in DEPARTMENT OF HEALTH AND hearing, will be posted to the docket its consideration of any decisions on HUMAN SERVICES unchanged. this matter. The second copy, which Written/Paper Submissions will have the claimed confidential Food and Drug Administration information redacted/blacked out, will Submit written/paper submissions as be available for public viewing and [Docket No. FDA–2020–N–1816] follows: • posted on https://www.regulations.gov Mail/Hand delivery/Courier (for or available at the Dockets Management Lavipharm Laboratories, Inc., et al.; written/paper submissions): Dockets Staff between 9 a.m. and 4 p.m., Proposal To Withdraw Approval of Five Management Staff (HFA–305), Food and Monday through Friday, 240–402–7500. Abbreviated New Drug Applications; Drug Administration, 5630 Fishers Submit both copies to the Dockets Opportunity for a Hearing Lane, Rm. 1061, Rockville, MD 20852. Management Staff. Any information • Because your request for a hearing marked as ‘‘confidential’’ will not be AGENCY: Food and Drug Administration, will be made public, you are solely disclosed except in accordance with HHS. responsible for ensuring that your § 10.20 (21 CFR 10.20) and other ACTION: Notice. request does not include any applicable disclosure law. confidential information that you or a SUMMARY: The Food and Drug third party may not wish to be posted, Comments Submitted by Other Administration’s (FDA or Agency) such as medical information, your or Interested Parties: For all comments Center for Drug Evaluation and Research anyone else’s Social Security number, or submitted by other interested parties, (CDER) is proposing to withdraw confidential business information, such submit comments as follows: approval of five abbreviated new drug as a manufacturing process. The request applications (ANDAs) and is Electronic Submissions for a hearing must include the Docket announcing an opportunity for the No. FDA–2020–N–1816 ‘‘Lavipharm Submit electronic comments in the ANDA holders to request a hearing on Laboratories, Inc., et al.; Proposal To following way: this proposal. The basis for the proposal Withdraw Approval of Five Abbreviated • Federal eRulemaking Portal: is that the ANDA holders have New Drug Applications; Opportunity for https://www.regulations.gov. Follow the repeatedly failed to file required annual a Hearing.’’ The request for a hearing instructions for submitting comments. reports for those ANDAs and have failed will be placed in the docket and Comments submitted electronically, to satisfy the requirement to have an publicly viewable at https:// including attachments, to https:// approved risk evaluation and mitigation www.regulations.gov or at the Dockets www.regulations.gov will be posted to strategy (REMS). Management Staff between 9 a.m. and 4 the docket unchanged. Because your DATES: The ANDA holders may submit p.m., Monday through Friday, 240–402– comment will be made public, you are a request for a hearing by October 26, 7500. solely responsible for ensuring that your 2020. Submit all data, information, and The ANDA holders may submit all comment does not include any analyses upon which the request for a data and analyses upon which the confidential information that you or a hearing relies November 24, 2020. request for a hearing relies in the same third party may not wish to be posted, Submit electronic or written comments manner as the request for a hearing such as medical information, your or by November 24, 2020. except as follows: anyone else’s Social Security number, or ADDRESSES: The request for a hearing • Confidential Submissions—To confidential business information, such may be submitted by the ANDA holders submit any data analyses with as a manufacturing process. Please note by either of the following methods: confidential information that you do not that if you include your name, contact wish to be made publicly available, information, or other information that Electronic Submissions submit your data and analyses only as identifies you in the body of your Submit electronic comments in the a written/paper submission. You should comments, that information will be following way: submit two copies total of all data and posted on https://www.regulations.gov.

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• If you want to submit a comment made publicly available, submit your and/or go to the Dockets Management with confidential information that you comments only as a written/paper Staff, 5630 Fishers Lane, Rm. 1061, do not wish to be made available to the submission. You should submit two Rockville, MD 20852, 240–402–7500. public, submit the comment as a copies total. One copy will include the FOR FURTHER INFORMATION CONTACT: written/paper submission and in the information you claim to be confidential Kimberly Lehrfeld, Center for Drug manner detailed (see ‘‘Written/Paper with a heading or cover note that states Evaluation and Research, Food and Submissions’’ and ‘‘Instructions’’). ‘‘THIS DOCUMENT CONTAINS Drug Administration, 10903 New CONFIDENTIAL INFORMATION.’’ The Written/Paper Submissions Hampshire Ave., Bldg. 51, Rm. 6226, Agency will review this copy, including Silver Spring, MD 20993–0002, 301– Submit written/paper submissions as the claimed confidential information, in 796–3137. follows: its consideration of comments. The • Mail/Hand delivery/Courier (for second copy, which will have the SUPPLEMENTARY INFORMATION: The written/paper submissions): Dockets claimed confidential information holder of an approved ANDA to market Management Staff (HFA–305), Food and redacted/blacked out, will be available a new drug for human use is required Drug Administration, 5630 Fishers for public viewing and posted on to submit annual reports to FDA Lane, Rm. 1061, Rockville, MD 20852. https://www.regulations.gov. Submit concerning its approved ANDA under • For written/paper comments both copies to the Dockets Management §§ 314.81 and 314.98 (21 CFR 314.81 submitted to the Dockets Management Staff. If you do not wish your name and and 314.98). The holders of the Staff, FDA will post your comment, as contact information to be made publicly approved ANDAs listed in table 1 have well as any attachments, except for available, you can provide this repeatedly failed to submit the required information submitted, marked and information on the cover sheet and not annual reports and have not responded identified, as confidential, if submitted in the body of your comments and you to the Agency’s request for submission as detailed in ‘‘Instructions.’’ must identify this information as of the reports. Instructions: All submissions received ‘‘confidential.’’ Any information marked Additionally, in accordance with must include the Docket No. FDA– as ‘‘confidential’’ will not be disclosed section 505–1 of the Federal Food, Drug, 2020–N–1816 for ‘‘Lavipharm except in accordance with § 10.20 and and Cosmetic Act (FD&C Act) (21 U.S.C. Laboratories, Inc., et al.; Proposal To other applicable disclosure law. For 355–1), the Agency determined that a Withdraw Approval of Five Abbreviated more information about FDA’s posting REMS is necessary for all the applicable New Drug Applications; Opportunity for of comments to public dockets, see 80 listed drugs that the ANDAs in table 1 a Hearing.’’ Received comments, those FR 56469, September 18, 2015, or access reference to ensure the benefits of the filed in a timely manner (see the information at: https:// listed drugs outweigh the risks. In ADDRESSES), will be placed in the docket www.govinfo.gov/content/pkg/FR-2015- accordance with section 505–1(i) of the and, except for those submitted as 09-18/pdf/2015-23389.pdf. FD&C Act, an ANDA is required to have ‘‘Confidential Submissions,’’ publicly Docket: For access to the docket to a REMS if the applicable listed drug has viewable at https://www.regulations.gov read background documents or the an approved REMS. We notified the or at the Dockets Management Staff electronic and written/paper comments holders of approved ANDAs in table 1 between 9 a.m. and 4 p.m., Monday received, go to https:// of the REMS requirement on September through Friday, 240–402–7500. www.regulations.gov and insert the 28, 2017. The holders of the approved • Confidential Submissions—To docket number, found in brackets in the ANDAs listed in table 1 have failed to submit a comment with confidential heading of this document, into the receive approval of a REMS for their information that you do not wish to be ‘‘Search’’ box and follow the prompts products.

TABLE 1—APPROVED ANDAS FOR WHICH REQUIRED REPORTS HAVE NOT BEEN SUBMITTED AND A REMS HAS NOT BEEN APPROVED

Application No. Drug Applicant

ANDA 077051 ...... Fentanyl transdermal system film, extended-release, 25 Lavipharm Laboratories, Inc., 69 Princeton-Hightstown micrograms (mcg)/hour (hr), 50 mcg/hr, 75 mcg/hr, Rd., East Windsor, NJ 08520. and 100 mcg/hr. ANDA 085217 ...... Acetaminophen and Codeine Phosphate Tablet, 325 Everylife, 2021 15th Avenue West, Seattle, WA 98119. milligrams (mg)/30 mg. ANDA 085638 ...... Acetaminophen, Aspirin, and Codeine Phosphate Cap- Scherer Laboratories, Inc., 2301 Ohio Dr., Suite 234, sule, 150 mg/180 mg/60 mg. Plano, TX 75093. ANDA 085639 ...... Acetaminophen, Aspirin, and Codeine Phosphate Cap- Do. sule, 150 mg/180 mg/30 mg. ANDA 085640 ...... Acetaminophen, Aspirin, and Codeine Phosphate Cap- Do. sule, 150 mg/180 mg/15 mg.

Therefore, notice is given to the the ANDA holders have failed to submit and (b)(1) and 21 CFR 314.200, the holders of the approved ANDAs listed reports required under §§ 314.81 and ANDA holders are hereby provided an in table 1 and to all other interested 314.98 and section 505(k) of the FD&C opportunity for a hearing to show why persons that the Director of CDER Act, and have failed to receive approval the approval of the ANDAs identified proposes to issue an order, under of a REMS for their products in above should not be withdrawn and an section 505(e)(2) of the FD&C Act (21 accordance with section 505–1 of the opportunity to raise, for administrative U.S.C. 355(e)(2)), withdrawing approval FD&C Act. determination, all issues relating to the of the ANDAs and all amendments and In accordance with section 505(e) of legal status of the drug products covered supplements thereto on the grounds that the FD&C Act and 21 CFR 314.150(a) by these ANDAs.

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An ANDA holder who decides to seek Dated: September 16, 2020. The Subpart A Subcommittee (SAS) a hearing must file the following: (1) a Patrizia Cavazzoni, was established by SACHRP in October written notice of participation and Acting Director, Center for Drug Evaluation 2006 and is charged with developing request for a hearing (see DATES and and Research. recommendations for consideration by ADDRESSES) and (2) the data, [FR Doc. 2020–21186 Filed 9–24–20; 8:45 am] SACHRP regarding the application of information, and analyses relied on to BILLING CODE 4164–01–P subpart A of 45 CFR part 46 in the demonstrate that there is a genuine and current research environment. substantial issue of fact that requires a The Subcommittee on Harmonization DEPARTMENT OF HEALTH AND hearing (see DATES and ADDRESSES). Any (SOH) was established by SACHRP at its HUMAN SERVICES other interested person may also submit July 2009 meeting and charged with comments on this notice. The Meeting of the Secretary’s Advisory identifying and prioritizing areas in procedures and requirements governing which regulations and/or guidelines for this notice of opportunity for a hearing, Committee on Human Research Protections human subjects research adopted by notice of participation and request for a various agencies or offices within HHS hearing, the information and analyses to AGENCY: Office of the Secretary, Office would benefit from harmonization, justify a hearing, other comments, and of the Assistant Secretary for Health, consistency, clarity, simplification and/ a grant or denial of a hearing are Department of Health and Human or coordination. contained in § 314.200 (21 CFR 314.200) Services. and in 21 CFR part 12. The SACHRP meeting will open to the ACTION: Notice. public at 11:00 a.m., on Tuesday, The failure of an ANDA holder to file October 20, 2020, followed by opening SUMMARY: Pursuant to the Federal a timely written notice of participation remarks from Dr. Jerry Menikoff, and request for a hearing, as required by Advisory Committee Act, notice is hereby given that the Secretary’s Director of OHRP and Dr. Stephen § 314.200, constitutes an election by that Rosenfeld, SACHRP Chair. The meeting ANDA holder not to avail itself of the Advisory Committee on Human Research Protections (SACHRP) will will begin with presentation of opportunity for a hearing concerning recommendations on the interpretation CDER’s proposal to withdraw approval hold a meeting that will be open to the public. Information about SACHRP, the of the public health surveillance of the ANDAs and constitutes a waiver exclusion, 45 CFR 46.102(l)(2) and of any contentions concerning the legal full meeting agenda, and instructions for linking to public access will be posted 46.102(k). This will be followed by a status of the drug products. FDA will on the SACHRP website at http:// panel review of ethical considerations then withdraw approval of the ANDAs, www.dhhs.gov/ohrp/sachrp-committee/ regarding ‘‘justice’’ within 45 CFR 46, and the drug products may not meetings/index.html. and how this concept may affect the thereafter be lawfully marketed or DATES: The meeting will be held on actions of IRBs. The following day delivered for introduction into interstate continues with a discussion of commerce. Any new drug product Tuesday, October 20th, 2020, from 11:00 a.m. until 4:30 p.m., and Wednesday, recommendations on risks to bystanders introduced or delivered for introduction posed by the research setting. Other into interstate commerce without an October 21, 2020, from 11:00 a.m. until 4:30 p.m. (times are tentative and topics may be added; for the full and approved ANDA is subject to regulatory updated meeting agenda, see http:// action at any time. subject to change). The confirmed times and agenda will be posted at on the www.dhhs.gov/ohrp/sachrp-committee/ A request for a hearing may not rest SACHRP website when this information meetings/index.html. upon mere allegations or denials but becomes available. The public will have an opportunity must present specific facts showing that ADDRESSES: This meeting will be held to comment to the SACHRP during the there is a genuine and substantial issue via webcast. Members of the public may meeting’s public comment session or by of fact that requires a hearing also attend the meeting via webcast. submitting written public comment. (§ 314.200(g)). If a request for a hearing Instructions for attending via webcast Persons who wish to provide public is not complete or is not supported, the will be posted one week prior to the comment should review instructions at Commissioner of Food and Drugs will meeting at https://www.hhs.gov/ohrp/ https://www.hhs.gov/ohrp/sachrp- enter summary judgment against the sachrp-committee/meetings/index.html. committee/meetings/index.html and person who requests the hearing, FOR FURTHER INFORMATION CONTACT: Julia respond by midnight Wednesday, making findings and conclusions, and October 14, 2020, ET. Individuals denying a hearing (§ 314.200(g)(1)). Gorey, J.D., Executive Director, SACHRP; U.S. Department of Health submitting written statements as public All submissions under this notice of and Human Services, 1101 Wootton comment should submit their comments opportunity for a hearing must be filed Parkway, Suite 200, Rockville, to SACHRP at [email protected]. Verbal in two copies. Except for data and Maryland 20852; telephone: 240–453– comments will be limited to three information prohibited from public 8141; fax: 240–453–6909; email address: minutes each. disclosure under 21 U.S.C. 331(j) or 18 [email protected]. Time will be allotted for public U.S.C. 1905, the submissions may be SUPPLEMENTARY INFORMATION: Under the comment on both days. Note that public seen at the Dockets Management Staff authority of 42 U.S.C. 217a, Section 222 comment must be relevant to topics (see ADDRESSES) between 9 a.m. and 4 of the Public Health Service Act, as currently being addressed by the p.m., Monday through Friday, and will amended, SACHRP was established to SACHRP. be posted to the docket at https:// provide expert advice and Dated: September 18, 2020. www.regulations.gov. recommendations to the Secretary of This notice is issued under section Health and Human Services, through Julia G. Gorey, 505(e)(2) of the FD&C Act and under the Assistant Secretary for Health, on Executive Director, SACHRP, Office for authority delegated to the Director of issues and topics pertaining to or Human Research Protections. CDER by the Commissioner of Food and associated with the protection of human [FR Doc. 2020–21232 Filed 9–24–20; 8:45 am] Drugs. research subjects. BILLING CODE 4150–28–P

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DEPARTMENT OF HEALTH AND 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Date: October 13, 2020. HUMAN SERVICES as amended. The grant applications and Time: 9:00 a.m. to 5:00 p.m. the discussions could disclose Agenda: To review and evaluate grant National Institutes of Health confidential trade secrets or commercial applications. Place: National Institute of Child Health property such as patentable material, and Human Development, 6710B Rockledge National Center For Complementary & and personal information concerning Integrative Health; Notice of Closed Drive, Bethesda, MD 20892 (Video Assisted individuals associated with the grant Meeting). Meeting. applications, the disclosure of which Contact Person: Derek J. Mclean, Ph.D., Pursuant to section 10(d) of the would constitute a clearly unwarranted Scientific Review Officer, Scientific Review Federal Advisory Committee Act, as invasion of personal privacy. Branch, Eunice Kennedy Shriver National Institute of Child Health and Human amended, notice is hereby given of the Name of Committee: National Center for Development, NIH, 6710B Rockledge Drive, following meeting. Complementary and Integrative Health Rm. 2125B, Bethesda, MD 20892–7002, (301) The meeting will be closed to the Special Emphasis Panel; Exploratory Clinical 443–5082, [email protected]. Trials of Mind and Body Interventions (MB). public in accordance with the (Catalogue of Federal Domestic Assistance Date: October 27–28, 2020. provisions set forth in sections Program Nos. 93.865, Research for Mothers Time: 11:00 a.m. to 5:00 p.m. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., and Children, National Institutes of Health, Agenda: To review and evaluate grant HHS) as amended. The grant applications and applications. the discussions could disclose Place: NCCIH, Dem II, 6707 Democracy Dated: September 21, 2020. confidential trade secrets or commercial Blvd., Bethesda, MD 20892 (Virtual Meeting). Ronald J. Livingston, Jr., property such as patentable material, Contact Person: Pamela Jeter, Ph.D., Program Analyst, Office of Federal Advisory and personal information concerning Scientific Review Officer, Office of Scientific Committee Policy. individuals associated with the grant Review, Division of Extramural Activities, [FR Doc. 2020–21163 Filed 9–24–20; 8:45 am] applications, the disclosure of which NCCIH, NIH, 6707 Democracy Boulevard, would constitute a clearly unwarranted Suite 401, Bethesda, MD 20892—547, 301– BILLING CODE 4140–01–P invasion of personal privacy. 435–2591, [email protected]. (Catalogue of Federal Domestic Assistance Name of Committee: National Center for Program Nos. 93.213, Research and Training DEPARTMENT OF HEALTH AND Complementary and Integrative Health in Complementary and Alternative Medicine, HUMAN SERVICE Special Emphasis Panel; Center of Excellence National Institutes of Health, HHS) for Research on Complementary and National Institutes of Health Integrative Health (P01) (CERCIH). Dated: September 22, 2020. Date: October 30, 2020. Ronald J. Livingston, Jr., National Institute on Aging; Notice of Time: 1:00 p.m. to 5:00 p.m. Program Analyst, Office of Federal Advisory Closed Meetings Agenda: To review and evaluate grant Committee Policy. applications. Pursuant to section 10(d) of the [FR Doc. 2020–21241 Filed 9–24–20; 8:45 am] Place: NCCIH, Dem II, 6707 Democracy Federal Advisory Committee Act, as Blvd., Bethesda, MD 20892 (Virtual Meeting). BILLING CODE 4140–01–P amended, notice is hereby given of the Contact Person: Jessica Marie McKlveen, following meetings. Ph.D., Scientific Review Officer, Office of DEPARTMENT OF HEALTH AND The meetings will be closed to the Scientifc Review, Division of Extramural public in accordance with the Activities, NCCIH, NIH, 6707 Democracy HUMAN SERVICES Boulevard, Suite 401, Bethesda, MD 20892– provisions set forth in sections –547 [email protected]. National Institutes of Health 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., (Catalogue of Federal Domestic Assistance as amended. The grant applications and Program Nos. 93.213, Research and Training Eunice Kennedy Shriver National the discussions could disclose in Complementary and Alternative Medicine, Institute of Child Health & Human confidential trade secrets or commercial National Institutes of Health, HHS) Development; Notice of Closed property such as patentable material, Dated: September 22, 2020. Meeting and personal information concerning individuals associated with the grant Ronald J. Livingston, Jr., Pursuant to section 10(d) of the applications, the disclosure of which Program Analyst, Office of Federal Advisory Federal Advisory Committee Act, as would constitute a clearly unwarranted Committee Policy. amended, notice is hereby given of the invasion of personal privacy. [FR Doc. 2020–21240 Filed 9–24–20; 8:45 am] following meeting. Name of Committee: National Institute on BILLING CODE 4140–01–P The meeting will be closed to the public in accordance with the Aging Special Emphasis Panel; Research Education Resources. provisions set forth in sections DEPARTMENT OF HEALTH AND Date: October 14, 2020. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Time: 1:00 p.m. to 3:30 p.m. HUMAN SERVICES as amended. The grant applications Agenda: To review and evaluate grant and/or contract proposals and the applications. National Institutes of Health discussions could disclose confidential Place: National Institute on Aging, trade secrets or commercial property Gateway Building, 7201 Wisconsin Avenue, National Center for Complementary & such as patentable material, and Bethesda, MD 20892 (Video Meeting). Integrative Health; Notice of Closed personal information concerning Contact Person: Kimberly Firth, Ph.D., Meeting individuals associated with the grant Scientific Review Officer, Scientific Review Branch, National Institute on Aging, National Pursuant to section 10(d) of the applications, the disclosure of which Institutes of Health, Gateway Building, 7201 Federal Advisory Committee Act, as would constitute a clearly unwarranted Wisconsin Avenue, Suite 2W200, Bethesda, amended, notice is hereby given of the invasion of personal privacy. MD 20892, (301) 402–7702, firthkm@ following meeting. Name of Committee: National Institute of mail.nih.gov. The meeting will be closed to the Child Health and Human Development Initial Name of Committee: National Institute on public in accordance with the Review Group Reproduction, Andrology, and Aging Special Emphasis Panel; AD provisions set forth in sections Gynecology Subcommittee. Translational Training Programs.

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Date: October 22, 2020. Responsible Conduct of Biomedical Data Review, National Institute of General Medical Time: 12:00 p.m. to 4:30 p.m. Science Research applications. Sciences, National Institutes of Health, Agenda: To review and evaluate grant Date: November 12, 2020. Natcher Building, Room 3AN18J, Bethesda, applications. Time: 9:00 a.m. to 5:30 p.m. MD 20892, (301) 594–2773, laffanjo@ Place: National Institute on Aging, Agenda: To review and evaluate grant mail.nih.gov. Gateway Building, 7201 Wisconsin Avenue, applications. Name of Committee: National Institute of Bethesda, MD 20892 (Video Meeting). Place: National Institutes of Health, General Medical Sciences Special Emphasis Contact Person: Kimberly Firth, Ph.D., Natcher Building, 45 Center Drive, Bethesda, Panel; Review of NIGMS COBRE 111 and Scientific Review Officer, Scientific Review MD 20892 (Video Meeting). INBRE applications. Branch, National Institute on Aging, National Contact Person: Rebecca H. Johnson, Ph.D., Date: November 13, 2020. Institutes of Health, Gateway Building, 7201 Scientific Review, Officer Office of Scientific Time: 1:00 p.m. to 5:30 p.m. Review, National Institute of General Medical Wisconsin Avenue, Suite 2W200, Bethesda, Agenda: To review and evaluate grant Sciences, National Institutes of Health, MD 20892, (301) 402–7702, firthkm@ applications. Natcher Building, Room 3AN18C, 45 Center mail.nih.gov. Place: National Institutes of Health, Drive, Bethesda, MD 20892, (301) 594–2771, (Catalogue of Federal Domestic Assistance Natcher Building, 45 Center Drive, Bethesda, [email protected]. Program Nos. 93.866, Aging Research, MD 20892 (Video Meeting). National Institutes of Health, HHS) (Catalogue of Federal Domestic Assistance Contact Person: Saraswathy Seetharam, Program Nos. 93.375, Minority Biomedical Dated: September 22, 2020. Ph.D., Scientific Review Officer, Office Research Support; 93.821, Cell Biology and Scientific Review, National Institute of Miguelina Perez, Biophysics Research; 93.859, Pharmacology, General Medical Sciences, National Institutes Program Analyst, Office of Federal Advisory Physiology, and Biological Chemistry Health, 45 Center Drive, Room 3AN12C, Research; 93.862, Genetics and Committee Policy. Bethesda, MD 20892, (301) 594–2763, Developmental Biology Research; 93.88, [FR Doc. 2020–21237 Filed 9–24–20; 8:45 am] [email protected]. Minority Access to Research Careers; 93.96, BILLING CODE 4140–01–P Special Minority Initiatives; 93.859, Name of Committee: National Institute of Biomedical Research and Research Training, General Medical Sciences Special Emphasis National Institutes of Health, HHS) Panel; Review of NIGMS National and DEPARTMENT OF HEALTH AND Regional Resource (R24) Applications. HUMAN SERVICES Dated: September 22, 2020. Date: November 16, 2020. Miguelina Perez, Time: 9:00 a.m. to 5:00 p.m. National Institutes of Health Program Analyst, Office of Federal Advisory Agenda: To review and evaluate grant Committee Policy. applications. National Institute of General Medical [FR Doc. 2020–21235 Filed 9–24–20; 8:45 am] Place: National Institutes of Health, Natcher Building, 45 Center Drive, Bethesda, Sciences Notice of Closed Meetings BILLING CODE 4140–01–P MD 20892 (Video Meeting). Pursuant to section 10(d) of the Contact Person: Manas Chattopadhyay, Federal Advisory Committee Act, as DEPARTMENT OF HEALTH AND Ph.D., Scientific Review Officer, Office of Scientific Review, National Institute of amended, notice is hereby given of the HUMAN SERVICES following meetings. General Medical Sciences, National Institutes of Health, Building 45, Room 3AN12N, 45 The meetings will be closed to the National Institutes of Health public in accordance with the Center Drive, Bethesda, md 20892, (301) 827– 5320, [email protected]. provisions set forth in sections National Institute of General Medical 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Sciences; Notice of Closed Meetings (Catalogue of Federal Domestic Assistance as amended. The grant applications and Program Nos. 93.375, Minority Biomedical Pursuant to section 10(d) of the Research Support; 93.821, Cell Biology and the discussions could disclose Biophysics Research; 93.859, Pharmacology, confidential trade secrets or commercial Federal Advisory Committee Act, as amended, notice is hereby given of the Physiology, and Biological Chemistry property such as patentable material, Research; 93.862, Genetics and and personal information concerning following meetings. The meetings will be closed to the Developmental Biology Research; 93.88, individuals associated with the grant Minority Access to Research Careers; 93.96, public in accordance with the applications, the disclosure of which Special Minority Initiatives; 93.859, provisions set forth in sections would constitute a clearly unwarranted Biomedical Research and Research Training, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., invasion of personal privacy. National Institutes of Health, HHS) as amended. The grant applications and Dated: September 22, 2020. Name of Committee: National Institute of the discussions could disclose General Medical Sciences Special Emphasis confidential trade secrets or commercial Miguelina Perez, Panel; Review of NIGMS SCORE property such as patentable material, Program Analyst, Office of Federal Advisory applications. and personal information concerning Committee Policy. Date: November 5, 2020. [FR Doc. 2020–21236 Filed 9–24–20; 8:45 am] Time: 8:00 a.m. to 5:00 p.m. individuals associated with the grant Agenda: To review and evaluate grant applications, the disclosure of which BILLING CODE 4140–01–P applications. would constitute a clearly unwarranted Place: National Institutes of Health, invasion of personal privacy. Natcher Building, 45 Center Drive, Bethesda, DEPARTMENT OF HEALTH AND Name of Committee: National Institute of HUMAN SERVICES MD 20892 (Video Meeting). General Medical Sciences Special Emphasis Contact Person: Nina Sidorova, Ph.D., Panel; Review of NIGMS SCORE National Institutes of Health Scientific Review Officer, Office of Scientific Applications. Review, National Institutes of General Date: October 29–30, 2020. National Institute of Diabetes and Medical Sciences, National Institutes of Time: 9:30 a.m. to 6:00 p.m. Health, 45 Center Drive, Room 3AN18, Agenda: To review and evaluate grant Digestive and Kidney Diseases; Notice Bethesda, MD 20814, (301) 402–2783 applications. of Closed Meeting [email protected]. Place: National Institutes of Health, Name of Committee: National Institute of Natcher Building, 45 Center Drive, Bethesda, Pursuant to section 10(d) of the General Medical Sciences Special Emphasis MD 20892 (Video Meeting). Federal Advisory Committee Act, as Panel; Review of R25 Training Modules to Contact Person: John J. Laffan, Ph.D., amended, notice is hereby given of the Enhance the Rigor, Reproducibility and Scientific Review Officer, Office of Scientific following meeting.

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The meeting will be closed to the for submitting electronic Foreign Trade U.S. Customs and Border Protection public in accordance with the Zone (FTZ) admission applications. (CBP). ACE is an automated and provisions set forth in sections Specifically, this notice announces that electronic system for commercial trade 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., the zone identification number is being processing, which is intended to as amended. The grant applications and expanded from seven to nine digits and streamline business processes, facilitate the discussions could disclose that test participants will now have the growth in trade, ensure cargo security, confidential trade secrets or commercial ability to submit ‘‘replace’’ requests to and foster participation in global property such as patentable material, modify parts of an admission while commerce, while ensuring compliance and personal information concerning retaining the original filing date, submit with U.S. laws and regulations and individuals associated with the grant post-admission correction requests, and reducing costs for CBP and all of its applications, the disclosure of which cancel permit to transfer transactions. communities of interest. The ability to would constitute a clearly unwarranted Further, for ease of reference, this notice meet these objectives depends on invasion of personal privacy. also reproduces the current test successfully modernizing CBP’s Reviewers Orientation: http:// requirements in full. business functions and the information grants.nih.gov/grants/peer/reviewer_ DATES: As of September 26, 2020, the technology that supports those guidelines.htm modifications to the test announced in functions. Videos for Reviewers: https:// this notice, with the exception of the CBP’s modernization efforts are www.youtube.com/user/nihgrants expanded nine-digit zone identification accomplished through phased releases of ACE component functionality number, will become operational. The Name of Committee: National Institute of designed to replace specific legacy ACS Diabetes and Digestive and Kidney Diseases expanded zone identification number functions and add new functionality. Initial Review Group Digestive Diseases and will be implemented as of January 25, Section 101.9(b) of title 19 of the Code Nutrition C Subcommittee DDK–C 2021. This test will continue until of Federal Regulations (19 CFR 101.9(b)) Subcommittee. concluded by way of announcement in provides for the testing of NCAP Date: October 21–23, 2020. the Federal Register. Time: 5:00 p.m. to 11:00 a.m. components. See T.D. 95–21, 60 FR Agenda: To review and evaluate grant ADDRESSES: Comments concerning this 14211 (March 16, 1995). applications. notice and any aspect of this test may Place: National Institutes of Health, Two be submitted at any time during the test B. Electronic Foreign Trade Zone (FTZ) Democracy Plaza, Room 7017, 6707 via email to Cargo & Conveyance Admission Application Test Democracy Boulevard, Bethesda, MD 20892 Security, Office of Field Operations, On August 19, 2005, CBP published a (Video Meeting). U.S. Customs and Border Protection, at notice in the Federal Register (70 FR Contact Person: Maria E. Davila-Bloom, Ph.D., Scientific Review Officer, Review [email protected], with a 48774) announcing an NCAP test Branch, Division of Extramural Activities, subject line identifier reading concerning the electronic submission of NIDDK, National Institutes of Health, Room ‘‘Comment on Electronic FTZ FTZ admission data. The test notice 7017, 6707 Democracy Boulevard, Bethesda, Admission Application FRN.’’ provided that participants would MD 20892–5452, (301) 594–7637, NIH FOR FURTHER INFORMATION CONTACT: For electronically submit data contained in iPhone: (301) 795–5944, davila-bloomm@ operational questions, contact Lydia the ‘‘Application for Foreign-Trade extra.niddk.nih.gov. Jackson, Cargo & Conveyance Security, Zone Admission and/or Status (Catalogue of Federal Domestic Assistance Office of Field Operations, U.S. Customs Designation’’ (CBP Form 214; the Program Nos. 93.847, Diabetes, electronic version of the form is referred Endocrinology and Metabolic Research; and Border Protection, at 202–344–3055 or [email protected]. For to as e214). The notice described the test 93.848, Digestive Diseases and Nutrition program in detail, identified the Research; 93.849, Kidney Diseases, Urology technical questions, contact Arnold and Hematology Research, National Institutes Buratty, Cargo Systems Program regulatory provisions suspended for the of Health, HHS) Directorate, Office of Information and test, and set forth the test Technology, U.S. Customs and Border commencement date as no earlier than Dated: September 22, 2020. September 30, 2005, with a test period Miguelina Perez, Protection, at 571–468–5309 or [email protected]. of approximately 6 months. The test Program Analyst, Office of Federal Advisory notice also set forth the prototype SUPPLEMENTARY INFORMATION: Committee Policy. procedures and listed the required data [FR Doc. 2020–21238 Filed 9–24–20; 8:45 am] I. Background elements that must be provided to CBP BILLING CODE 4140–01–P when filing an electronic FTZ A. National Customs Automation admission application. Participants Program Test were required to participate in an DEPARTMENT OF HOMELAND The National Customs Automation evaluation of this test to take place at SECURITY Program (NCAP) was established by the end of the 6-month period. Subtitle B of Title VI—Customs Due to low participation in the test Customs and Border Protection Modernization in the North American program and insufficient data collected, Free Trade Agreement (NAFTA) CBP announced that the test would be Modification of Test Program Implementation Act (Customs run again, in the Federal Register (72 Regarding Electronic Foreign Trade Modernization Act) (Pub. L. 103–182, FR 14128) on March 26, 2007. The Zone Admission Applications 107 Stat. 2057, 2170, December 8, 1993) newly announced test program was AGENCY: U.S. Customs and Border (19 U.S.C. 1411). Through NCAP, the intended to encourage greater Protection, Department of Homeland thrust of customs modernization was on participation by the trade and thereby Security. trade compliance and the development provide more meaningful data to CBP to ACTION: General notice. of the Automated Commercial assess the feasibility of implementing Environment (ACE), the planned the test program on a permanent basis. SUMMARY: This document announces successor to the Automated Commercial CBP made certain clarifications modifications to U.S. Customs and System (ACS), as the electronic data regarding required data elements and Border Protection’s (CBP’s) test program interchange (EDI) system authorized by announced that ACE would be the only

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CBP-approved EDI for the test, in a As noted in the DATES section above, the code indicating whether the request was Federal Register notice published on transition to the expanded Zone ID approved or denied. August 16, 2017 (82 FR 38923). Initially, number will be completed 120 days C. Submission of Post-Admission in that notice, CBP provided an effective from the date of publication of this Correction Requests date of September 17, 2017. However, notice. the effective date was later shifted to CBP will coordinate internally prior Changes to an admission that has December 9, 2017. See 82 FR 43395 to and throughout the 120-day period been fully accepted into the zone (via a (Sept. 15, 2017). The test remains in following publication of this notice to process known as concurrence) are not progress and will continue until transition to the expanded nine-digit permitted in the Electronic FTZ test. concluded by way of announcement in system by aiding the local port offices The process of replacing an entire the Federal Register. with issuing the expanded Zone ID admission creates a cumbersome numbers to the FTZ operators. The FTZ process that affects other transactions II. New Test Modifications for operators are responsible for ensuring associated with the bills of lading on the Electronic Foreign Trade Zone the type 04 FTZ bond associated with initial admission, which could lead to Admission Applications each FTZ site profile in ACE is up to delays in cargo movement. Therefore, This notice announces changes to the date and active. As needed, CBP Client CBP has added the ability to request a test program for submitting the Representatives will assist software post-admission correction to the electronic FTZ admission applications vendors and trade filers as the primary Electronic FTZ test that will allow for (hereinafter Electronic FTZ test). The point of contact during this time. At the modification after the admission has zone identification number is being conclusion of the 120-day transition been concurred and fully accepted into expanded from seven to nine digits and period, all existing Zone ID numbers the zone operator’s inventory and test participants will now have the will have been replaced with system- recordkeeping system. The post- ability to submit ‘‘replace’’ requests to generated expanded Zone ID numbers admission correction process described modify parts of an admission while and all Zone ID numbers issued in the here does not affect the bond liability retaining the original filing date, submit future will consist of nine digits. that would otherwise exist absent the correction. post-admission correction requests, and B. Replace Requests To Modify a cancel a permit to transfer transaction. To request a modification for an Previously Submitted Admission While admission that has been fully accepted The changes are discussed separately Retaining the Original Date of Filing below, and further information is into the zone, which will be considered contained in the ACE Foreign Trade Currently, for modifications to FTZ by CBP on a transactional basis, filers Zone (e214) chapter of the CBP and admission data, an admission must first must submit one of the mandatory Trade Automated Interface be deleted and then a complete reason codes and must also submit a Requirements (CATAIR), available at: replacement of the admission must be contact name and contact phone https://www.cbp.gov/trade/ace/catair. filed. This process causes a break in number. Filers not participating in the test will custody by generating a new admission Reason codes for post-admission continue to submit FTZ admission date. Retaining the original admission correction requests can be found in the applications on CBP Form 214 date is necessary to ensure that CATAIR and are as follows: 01 Clerical (Application for Foreign-Trade Zone privileged foreign status duty rates are error; 02 Admission replaced by CBP Admission and/or Status Designation). correctly applied, and that is critical to Form 7512 (Replacement in-bond For ease of reference, the complete test maintain the integrity of the FTZ number required; must be authorized by requirements (including the new operator’s foreign status inventory. CBP); 03 Merchandise cleared under modifications) are provided further at Without maintaining the original another admission (Replacement the end of this notice. admission date, inventory could be admission number already on file subject to higher duty rates that become required); 04 Admission replaced by a A. Expansion of the Zone Identification effective subsequent to the original formal entry (Replacement entry Number admission date. Accordingly, in order to number already on file required); 05 CBP assigns unique identifiers for all ensure the integrity of the zone Merchandise cleared under informal FTZ site locations. The length of the inventory, CBP has added new entry (Replacement entry number alpha-numeric zone identification functionality to the Electronic FTZ test already on file required); 06 number (Zone ID number) will be to allow for ‘‘replace’’ requests to Merchandise seized; 07 Merchandise expanded from seven to nine digits to modify an admission while retaining the destroyed; 08 Non-arrival; 09 Shipment accommodate additional Subzones and original admission date. refused by importer/zone operator; 10 sets of General Purpose (GP) Zone To make a ‘‘replace’’ request for a Shipment not authorized for import Acreage, as well as additional FTZ site modification, filers of the e214 must (refused by PGA); and 11 System error. locations associated with a Subzone or submit one of the mandatory reason Moreover, there is a 15-day time limit a set of GP Zone Acreage. The expanded codes and provide a contact name and from the date of arrival in the port in nine-digit Zone ID number will consist contact phone number. Reason codes for which to request a post-admission of the following, in the listed order: modifications can be found in the correction; for any correction requests CATAIR and are as follows: 01 Change/ • 3 numeric digits representing the FTZ outside of the 15-day time limit, please Add Conveyance(s); 02 Delete designation; contact your local port. Upon CBP • 3 alpha-numeric characters Conveyance(s); 03 Change/Add Bill of review, the filer will receive a message representing, as appropriate, either: Lading(s); 04 Delete Bill of Lading(s); 05 with a disposition code indicating —the Subzone designation; or, Change/Add HTSUS Line(s); 06 Delete whether the post-admission correction —the GP Zone Acreage designation; HTSUS Line(s); 07 Change Admitted request was approved or denied. Quantity; and 08 Other. CBP will and D. Cancellation of Permit To Transfer • 3 alpha-numeric characters consider replace requests for (PTT) Transactions representing, as appropriate, either: modifications on a transactional basis —the Subzone Site designation; or, and, upon CBP review, the filer will Currently, PTT transactions are not —the GP Site designation. receive a message with a disposition permitted to be cancelled. A PTT is a

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permit to transfer cargo from one an FTZ by electronically transmitting merchandise transferred from another bonded location in a CBP Port of Entry the CBP Form 214 data elements to CBP. zone, and domestic status merchandise; to another bonded location within the The data transmission may cover a agree to, or refuse to, accept custodial same CBP Port of Entry. In the case of single shipment of merchandise or be a responsibility for an admission the e214 processes, the bonded consolidated transmission that covers submitted by an entity other than itself movement is only to an FTZ site, which multiple shipments to a single zone. as the Operator; report arrival of is represented by its CBP-assigned CBP must receive the CBP Form 214 merchandise to the FTZ; assume Facilities Information and Resources before the merchandise can be custodial responsibility for the Management Systems (FIRMS) code. authorized for admission into the FTZ. admission authorized merchandise; This limitation makes it difficult to An exception to this requirement exists submit a request on behalf of the facilitate instances where the diversions for test participants who are authorized applicant for a change of zone status on of cargo to other designated locations is to use the FTZ direct delivery specific merchandise; and submit required for purposes such as procedures, as discussed below. request for post-admission correction. inspections or to effectuate a withhold 2. Prior Notice Reporting Requirements release order. In order to alleviate this 5. Transmittal of Statistical Data to the issue, CBP has added new functionality Test participants, including those Bureau of Census to the Electronic FTZ test that will allow approved to participate under direct After the FTZ Operator has concurred for PTT Cancel transactions by the filer delivery procedures, must comply with the admission CBP will transmit or by CBP. the prior notice reporting requirements statistical data to the Bureau of the For each electronic PTT, filers receive stipulated in the Public Health Security Census through an automated link. a response with a CBP-generated PTT and Bioterrorism Preparedness and unique identifier (PID). This PID is Response Act of 2002 (‘‘the Bioterrorism D. Required Data Elements required to request the cancellation of Act’’), Public Law 107–188. Title III of Participants in the test must provide the associated PTT. Upon CBP review, the Bioterrorism Act contains provisions CBP with the following data elements, the filer will receive a message with a relating to providing the Department of which consist of the previously required disposition code indicating whether the Health and Human Services with prior data elements and the newly announced PTT Cancel transaction request was notice regarding certain information data elements: approved or denied, as there can be about foods that are imported or offered • A code representing the action to be errors encountered during processing. for import into the United States. taken (e.g., add, delete, replace). • The line item number. 3. Direct Delivery Procedures III. Complete Requirements for Test • The Zone ID number. This zone Program Regarding Electronic Foreign As a general rule, a test participant identification number is comprised of Trade Zone Admission Applications who is also authorized to use the direct the FTZ number designation, any The Electronic FTZ test has been delivery procedures prescribed in 19 Subzone or General Purpose Zone running continuously since March 26, CFR 146.39 to admit merchandise into designation and a physical FTZ Site 2007. CBP will inform the public of an FTZ may transmit the required data designation. Currently Zone IDs are CBP’s decision to conclude the test to CBP on an electronic CBP Form 214 seven characters in length. The program by way of announcement in the no later than the close of business on transaction will now accommodate the Federal Register. For ease of reference, the business day following receipt of the expanded nine-character CBP-assigned the complete test requirements merchandise into the FTZ inventory Zone ID when its use becomes (including the new modifications) are control and recordkeeping system. With mandatory. provided below. regard to the applicability of direct • The port code where the FTZ is A. Regulatory Provisions Suspended delivery procedures in the context of the located as shown in Schedule D, test program, two exceptions to the Harmonized Tariff Schedule of the Subpart C to part 146 of the CFR above rule are noted. First, as stated United States (HTSUS). prescribes the conditions applicable to above, direct delivery participants are • An indicator specifying whether the admission of merchandise into a foreign subject to any applicable prior notice merchandise is being admitted into the trade zone. To the extent that certain reporting requirements set forth in the FTZ under direct delivery procedures. provisions within subpart C to part 146 Bioterrorism Act. Second, in the • The Automated Broker Interface may be incompatible with the terms of absence of a CBP Form 7512, or its (ABI) filer code. this test program, the affected regulatory electronic equivalent, authorizing an in- • The ABI routing code and optional provisions will be suspended for the bond movement, a test participant may office extension for one additional ABI duration of the test. electronically transmit a permit to participant who will receive a copy of B. Participant Eligibility transfer request for the intra-port the electronic CBP Form 214 and bonded movement of the merchandise subsequent electronic notifications. Eligible participants in the Electronic to the FTZ site. • The Importer of Record Number FTZ Admissions Application test applicant. program include: FTZ operators; FTZ 4. FTZ Operators as Test Participants • An indicator specifying the Admission Applicants; Agents of FTZ Under the test program, an FTZ admission type. Operators; and Agents of FTZ operator will be able to transmit the • The mode of transportation code. Admission Applicants. Participation in following transactions via the Valid codes are listed in Appendix B of the test is voluntary and there are no Automated Broker Interface (ABI): the Customs and Trade Automated application procedures. Submit a permit to transfer request for Interface Requirements (CATAIR), Pub # C. Prototype Procedures merchandise coming to its FTZ Site; 0875–0419. submit requests to cancel a specific • The name of the conveyance (if not 1. Submission of Electronic CBP Form existing permit to transfer request; a vessel, the name of the transportation 214 and Related Data submit application for admission on company). Test participants must request behalf of the applicant for imported • The vessel voyage, truck or rail trip, permission to admit merchandise into zone status merchandise, zone status or aircraft flight number.

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• The country of export. against each HTSUS subheading or rough diamonds into an FTZ and • The export date. For merchandise group of subheadings. exportation out of an FTZ if demanded arriving in the United States by vessel: • A detailed description of the by a CBP official pursuant to 31 CFR The month, day and year on which the merchandise at the line item level. 592.404 and 592.301. vessel departed the last port of the • The Manufacturer Identification • For replace requests to modify a country of exportation. For merchandise (MID) number (as required for type 01 previously submitted admission while exported by air: The month, day and entries). retaining the original filing date, filers year on which the aircraft departed the • The applicable HTSUS number(s). must include the reason code and the • last airport of the country of The statistical reporting quantity of contact name and contact phone exportation. For merchandise exported the merchandise for each HTSUS number. by truck or rail: The month, day and number. • To submit post-admission year in which the carrier crossed the • The quota category (if applicable). • correction requests after an admission border of the country of exportation. The gross weight in kilograms of the has been concurred (fully accepted into • The import date. For merchandise merchandise. Supply separate gross a zone), filers must include the reason arriving in the United States by vessel: weight information for each HTSUS code and the contact name and contact The month, day and year on which the subheading. phone number. • The separate value and aggregate vessel transporting the merchandise • For requests to cancel a permit to charges: For each HTSUS, enter the from the foreign country arrived within transfer (PTT) transaction, filers must purchase price (in U.S. dollars) or, if the the limits of the U.S. port at which the include a permit to transfer transaction merchandise was not acquired by merchandise was unladen. For unique identifier (PID). purchase, the equivalent of such price. merchandise arriving in the United • The Importer of Record Number of Also, report the aggregate cost (in U.S. States other than by vessel: The month, the Zone Operator. dollars) of freight, insurance, and all day and year in which the merchandise • The Facilities Information and other costs, charges and expenses arrived within U.S. customs territory. Resources Management Systems • incurred in bringing the merchandise The zone admission number (which (FIRMS) code identifying the FTZ Site from alongside the carrier at the foreign is made up of the Zone ID (described location where the merchandise is to be port of exportation in the country of above in more detail), the two-digit admitted. calendar year (of the current year), and exportation in addition to unlading the Test participants are responsible for the control number (the unique merchandise at the first U.S. port of the accuracy and completeness of all admission designation assigned by the entry. data transmitted under the prototype. Applicant or Operator). • The indicator designating a special • The U.S. port of unlading (the port program and country affecting duty E. Processing of Electronic FTZ at which the merchandise was unladen). payments (if applicable). Admission Applications Valid codes are listed in Schedule D, • If applicable, a qualifier code and Upon approval of an electronic FTZ HTSUS. reference identifier associated with the • The foreign port of lading. shipment. Valid qualifiers are listed in admission application, CBP will • The bill of lading or airway bill the CATAIR. transmit electronic notice to the test number. • The Harbor Maintenance Fee (if filer authorizing admission of the • The house bill number. applicable). merchandise into the FTZ. As noted • The Standard Carrier Alpha Code • The zone status designation of the above, this approval process does not (SCAC) identifier of the importing merchandise. apply to merchandise admitted to an carrier. • The container number if a permit to FTZ under direct delivery procedures. • The immediate transportation (IT) transfer is requested. Upon approval of an electronic number assigned to in-bond shipments • Concurrence data relating to the request for a permit to transfer, CBP will and the date the CBP Form 7512 was admission application. electronically transmit approval/denial prepared. • The Importer of Record number of to transfer the merchandise into the FTZ • The number of packages. An the bonded carrier nominated for a electronically to the test filer, and to the indication of the quantity and unit of permit to transfer request to move carrier of the merchandise. CBP will measure (cartons, cases, bundles, etc.) in merchandise to an FTZ site. also provide electronic notice to these the shipment as stated in the Customs • The Facilities Information and parties as to whether the merchandise is Automated Manifest Interface Resources Management Systems subject to CBP examination. In addition, Requirements (CAMIR). For (FIRMS) code identifying the location test program participants and carriers containerized merchandise, an where the merchandise (moving on a will be able to receive electronic indication of the number of packages permit to transfer transaction) is being notification concerning the status of an within the container(s) and the delivered. admission request. container number(s). For bulk • An indicator if the merchandise is A test participant whose FTZ shipments, show ‘‘1 Bulk.’’ subject to Bioterrorism Act of 2002 admission application is rejected by • Country of origin code, provided in requirements. CBP will be provided with an Annex B, ISO code, HTSUS, which • Under 19 CFR 12.145 and opportunity to correct the reported represents the country of origin in 360.101(c), the steel import license error. A complete re-transmission of the which the product was manufactured, number needs to be provided on CBP entire admission application is required mined, or grown. Labor work or material Form 214 at the time of filing under 19 by CBP. added to an article in another country CFR part 146, in the case of F. Misconduct Under the Test must affect a substantial transformation merchandise admitted into an FTZ. in order for such other country to • The unique identifying number of A test participant may be subject to become the actual ‘‘country of origin.’’ Kimberley Process Certificate (if civil and criminal penalties, If the merchandise is from more than applicable). The Kimberley Process administrative sanctions, liquidated one country of origin, the country of Certificate must be presented in damages, and/or suspension from this origin will be indicated separately connection with an importation of test for any of the following:

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• Failure to abide by the terms and Dated: September 21, 2020. personal information or proprietary conditions of this test, and any William A. Ferrara, information. If you send an email applicable laws and regulations. Executive Assistant Commissioner, Office of comment, your email address will be • Failure to exercise reasonable care Field Operations. automatically captured and included as in the execution of participant [FR Doc. 2020–21151 Filed 9–24–20; 8:45 am] part of the comment that is placed in the obligations. BILLING CODE 9111–14–P public docket and made available on the • Misuse of the automated CBP Form internet. Please note that responses to 214 (i.e., engaging in unauthorized this public comment request containing disclosure or any activity which DEPARTMENT OF HOMELAND any routine notice about the interferes with the successful evaluation SECURITY confidentiality of the communication will be treated as public comments that of the new technology). [Docket No. CISA–2020–0010] The Director, Cargo Security and may be made available to the public Control Division, will administer SAFECOM Membership Questionnaire notwithstanding the inclusion of the suspensions for misconduct. A written routine notice. notice proposing suspension will be AGENCY: Cybersecurity and FOR FURTHER INFORMATION CONTACT: For provided to the participant. Such notice Infrastructure Security Agency (CISA), specific questions related to collection will apprise the participant of the Department of Homeland Security activities, please contact Ralph Barnett alleged facts or conduct warranting (DHS). III at SAFECOMGovernance@ suspension and will inform the ACTION: 60-Day Notice and request for hq.dhs.gov. participant of the date that the comments; New collection (Request for SUPPLEMENTARY INFORMATION: On suspension will begin. Any decision a new OMB Control Number, 1670– November 16, 2018, Congress passed proposing suspension of a participant NEW. Public Law 115–278, to amend the may be appealed in writing to the Homeland Security Act of 2002 (6 Executive Assistant Commissioner, SUMMARY: DHS CISA Emergency Communications Division (ECD) will U.S.C. 101 et seq.), enacted and Office of Field Operations, 1300 authorized the Cybersecurity and Pennsylvania Ave. NW, Washington, DC submit the following Information Collection Request (ICR) to the Office of Infrastructure Security Agency (CISA) of 20229, within 15 calendar days of the the Department of Homeland Security notification date. An appeal must Management and Budget (OMB) for review and clearance in accordance (DHS). Statue 4173 § (f)(3) under title address the alleged facts or conduct XVIII mandated CISA to construct the charges contained in the notice and with the Paperwork Reduction Act of 1995. Emergency Communications Division as state how compliance has been or will one of three components. Furthermore, be achieved. In cases of non-payment, DATES: Comments are encouraged and Statue 4173 § (f)(3) calls for the late payment, willful misconduct or will be accepted until November 24, Emergency Communications Division to where public health interests or safety 2020. be headed by the Assistant Director. are concerned, the suspension may be ADDRESSES: You may submit comments, Statue 4175 § (c)(1)(2) (6 U.S.C. 571 effective immediately. The same appeal identified by docket number CISA– note.) re-designated the Office of procedures apply in cases of immediate 2020–0010, by one of the following Emergency Communications to become suspension. methods: the Emergency Communications G. Test Evaluation Criteria • Federal eRulemaking Portal: http:// Division, headed by the Assistant www.regulations.gov. Please follow the Director. In accordance with Statue To ensure adequate feedback, instructions for submitting comments. 4179 § 1801 (6 U.S.C. 571)(b) title XVIII, participants are required to participate • Email: SAFECOMGovernance@ the Assistant Director for the Emergency in an evaluation of this test. CBP also hq.dhs.gov. Please include docket Communications Division is required to invites all interested parties to comment number CISA–2020–0010 in the subject report to the Director of CISA. Section on the design, conduct and line of the message. 2202 (6 U.S.C. 652)(b)(1) specifies for implementation of the test at any time • Mail: Written comments and the head of CISA to be re-designated as during the test period. CBP will publish questions about this Information the Director, who is required to report the final results in the Federal Register Collection Request should be forwarded to the Secretary of the Department of and the Customs Bulletin as required by to DHS/CISA/ECD, ATTN: 1670–NEW, Homeland Security. section 101.9(b) of Title 19 of the CFR. 245 Murray Lane SW, Mailstop 0613, CISA enhances public safety The following evaluation methods Washington, DC 20598–0613. interoperable communications at all and criteria have been suggested: • Faxed: CISA ECD—ATTN: Robert levels of government to help partners 1. Baseline measurements to be Rhoads c/o Ralph Barnett III at (703) across the country develop their established through data analysis; 705–6130. emergency communications 2. Questionnaires from both trade Instructions: All submissions received capabilities. Working with stakeholders participants and CBP addressing must include the words ‘‘Department of across the country, CISA conducts such issues as: Homeland Security’’ and the docket extensive, nationwide outreach to • Workload impact (workload shifts/ number for this action. Comments support and promote the ability of volume, cycle times, etc.) received will be posted without emergency response providers and • Cost savings alteration at http://www.regulations.gov, relevant government officials to • Policy and procedure including any personal information continue to communicate in the event of accommodation provided. a natural disaster, act of terrorism, or • Trade compliance impact Comments submitted in response to other man-made disaster. Public Law • Problem resolution this notice may be made available to the 109–296, Title VI, § 671(b), Title XVIII, • System efficiency public through relevant websites. For § 1801(c)(2) mandates DHS through • Operational efficiency this reason, please do not include in CISA to administrate and manage • Other issues identified by the your comments information of a SAFECOM, a state, local, tribal, and participant group confidential nature, such as sensitive territorial stakeholder-driven public

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safety communications program. In an safety associations represented in 4. Minimize the burden of the effort to resolve major communications SAFECOM. Association Representatives collection of information on those who issues identified during the September serving in SAFECOM are asked to are to respond, including through the 11, 2001, terrorist attacks, SAFECOM provide the name of their Association, use of appropriate automated, was created as a Presidential E- approximate Association size, electronic, mechanical, or other Government Initiative to improve Association contact, and addition technological collection techniques or interoperability, allowing emergency Association point-of-contact (POC) other forms of information technology, responders to communicate more information. At-large members are e.g., permitting electronic submissions effectively before, during, and after instructed to skip to the next section. of responses. emergencies and disasters. Public Safety Service section will focus Title of Collection: SAFECOM Through collaboration with on questions related to each Member’s Membership Questionnaire. emergency responders and elected public safety and first responder career. OMB Control Number: 1670–NEW. officials across all levels of government, Members are asked to designate their Frequency: Annually. SAFECOM works to improve emergency current public safety status (i.e., active, Affected Public: State, Local, Tribal, response providers’ inter-jurisdictional retired, other), to identify their public and Territorial Governments. and interdisciplinary emergency safety discipline(s), to provide level of Number of Annualized Respondents: communications interoperability across government for current employment 50. Estimated Time per Respondent: 0.25 local, regional, tribal, State, territorial, (e.g., state, local, tribal, territorial, international borders, and with Federal hours. federal), to provide years of service, to Total Annualized Burden Hours: 12.5 government entities. SAFECOM works list current agency and agency’s contact with existing Federal communications hours. information, to provide a brief Total Annualized Respondent programs and key emergency response description on their current role and stakeholders to address the need to Opportunity Cost: $0. responsibilities, to select the population Total Annualized Respondent Out-of- develop better technologies and range that best describes the population processes for the coordination of Pocket: $0. of your current organization’s Total Annualized Government Cost: existing communications systems and jurisdiction serviced, to indicate the $984.96. future networks. number of public safety personnel The SAFECOM Membership employed at your current organization, Richard S. Libby, Questionnaire is an internal SAFECOM to indicate the number of responses Deputy Chief Information Officer, Department document disseminated only to active your current organization responds to of Homeland Security, Cybersecurity and SAFECOM Members. SAFECOM uses each year, and if current position entails Infrastructure Security Agency. the Questionnaire to identify collaborating with Tribal Nations. The [FR Doc. 2020–21188 Filed 9–24–20; 8:45 am] membership gaps, obtain updated Volunteer Experience section asks BILLING CODE 9110–9P–P information on SAFECOM’s Members to provide details on their membership body (e.g., public safety volunteer experience. The Public Safety communications experience, accolades, Experience section asks Members to DEPARTMENT OF THE INTERIOR acquired skills/certifications, etc.), identify the public safety events he/she update SAFECOM marketing materials, responded to throughout their career, Bureau of Land Management and to assist SAFECOM when and to identify the communications [LLNV952000 L12100000.PH0000.241A; MO responding General Accounting Office technology he/she has used. The #4500148094 TAS: 18X] (GAO) inquiries. Education section focuses on the The DHS/CISA/ECD will disseminate Filing of Plats of Survey; Nevada the SAFECOM Membership education (e.g., which is an optional Questionnaire to active SAFECOM question), proficiencies, and AGENCY: Bureau of Land Management, Members as a fillable PDF document. professional certifications. External Interior. SAFECOM intends to use the Conference Attendance section focuses ACTION: Notice. Questionnaire to examine its on Member’s experience at public safety Membership body, identify membership conferences as well as their interest in SUMMARY: The purpose of this notice is gaps obtain updated information on representing SAFECOM in the future at to inform the public and interested State SAFECOM’s membership body (e.g., a conference. The final section focuses and local government officials of the public safety communications on Members public safety usage. filing of Plats of Survey in Nevada. experience, accolades, acquired skills/ This is a NEW collection of DATES: Filing is applicable at 10:00 a.m. certifications, etc.), update SAFECOM information. on the dates indicated below. marketing materials, and to assist OMB is particularly interested in FOR FURTHER INFORMATION CONTACT: SAFECOM when responding General comments that: Michael O. Harmening, Chief Cadastral Accounting Office (GAO) inquiries. 1. Evaluate whether the proposed Surveyor for Nevada, Bureau of Land The Questionnaire will encompass collection of information is necessary Management, Nevada State Office, 1340 eight interdependent sections of for the proper performance of the Financial Blvd., Reno, NV 89502–7147, questions. The SAFECOM Internal functions of the agency, including phone: 775–861–6490. Persons who use Membership section requests each whether the information will have a telecommunications device for the Member to provide their name, state of practical utility; deaf (TDD) may call the Federal residence, and the number of hours per 2. Evaluate the accuracy of the Information Relay Service (FIRS) at 1– month he/she contributes SAFECOM agency’s estimate of the burden of the 800–877–8339 to contact the above led initiatives (e.g., conference calls and proposed collection of information, individual during normal business deliverable development). SAFECOM including the validity of the hours. The FIRS is available 24 hours a consists of public safety association methodology and assumptions used; day, 7 days a week, to leave a message representatives and at-large members. 3. Enhance the quality, utility, and or question with the above individual. The Association Representative clarity of the information to be You will receive a reply during normal Information section pertains to public collected; and business hours.

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SUPPLEMENTARY INFORMATION: the south boundary and a portion of the subdivision-of-section lines of section 1. The Plat of Survey of the following subdivisional lines, and a metes-and- 32, and the further subdivision of described lands was officially filed at bounds survey of the easterly right-of- section 32, Township 18 South, Range the Bureau of Land Management (BLM) way line of U.S. Highway No. 95, 60 East, Mount Diablo Meridian, Nevada State Office, Reno, Nevada, on through section 31, Township 17 South, Nevada, under Group No. 994, was September 15, 2020. Range 59 East, Mount Diablo Meridian, accepted September 15, 2020. This The plat, in one sheet, representing Nevada, under Group No. 945, was survey was executed to meet certain the dependent resurvey of a portion of accepted August 10, 2020. This survey administrative needs of the Bureau of the east boundary, a portion of the was executed to meet certain Land Management. subdivisional lines and a portion of administrative needs of the Bureau of The surveys, listed above, are now the Homestead Entry Survey No. 68, and the Land Management and the National basic record for describing the lands for subdivision of sections 13 and 24, and Park Service. all authorized purposes. These records a metes-and-bounds survey of a portion 5. The Plat of Survey of the following have been placed in the open files in the of the easterly right-of-way line of described lands will be officially filed at BLM Nevada State Office and are Nevada State Route No. 225, Township the Bureau of Land Management (BLM) available to the public as a matter of 45 North, Range 53 East, Mount Diablo Nevada State Office, Reno, Nevada, on information. Meridian, Nevada, under Group No. the first business day after thirty (30) Authority: 43 U.S.C. Chapter 3. 982, was accepted September 10, 2020. days from the publication of this notice. This survey was executed to meet The plat, in twelve (12) sheets, Dated: September 17, 2020. certain administrative needs of the representing the dependent resurvey of Michael O. Harmening, Bureau of Land Management, the United a portion of the west boundary and a Chief Cadastral Surveyor for Nevada. States Forest Service, and the Bureau of portion of the subdivisional lines, and [FR Doc. 2020–21140 Filed 9–24–20; 8:45 am] Indian Affairs. the subdivision of certain sections, a BILLING CODE 4310–HC–P 2. The Plat of Survey of the following metes-and-bounds survey of the easterly described lands was officially filed at right-of-way line of U.S. Highway No. the Bureau of Land Management (BLM) 95, through sections 6 and 7, and a DEPARTMENT OF THE INTERIOR Nevada State Office, Reno, Nevada, on portion of section 8, and a metes-and- September 17, 2020. bounds survey of the Red Rock Canyon Bureau of Land Management The plat, in one sheet, representing National Conservation Area boundary [LLWY921000.L144000000.ET0000.20X, the dependent resurvey of portions of through a portion of section 7 and WYW–188618] the subdivision-of-section lines of through sections 8, 16, 17, and 21, section 7 and a portion of the metes- Township 18 South, Range 59 East, Notice of Realty Action: Recreation and-bounds survey in section 7, and the Mount Diablo Meridian, Nevada, under and Public Purposes (R&PP) Act further subdivision of section 7, and Group No. 945, was accepted August 10, Classification and Conveyance, metes-and-bounds surveys in section 7, 2020. This survey was executed to meet Wyoming Township 15 South, Range 66 East, certain administrative needs of the AGENCY: Bureau of Land Management, Mount Diablo Meridian, Nevada, under Bureau of Land Management and the Interior. Group No. 977, was accepted September National Park Service. 15, 2020. This survey was executed to 6. The Plat of Survey of the following ACTION: Notice of realty action. meet certain administrative needs of the described lands will be officially filed at SUMMARY: The Bureau of Land Bureau of Land Management. the Bureau of Land Management (BLM) Management (BLM) has examined and 3. The Plat of Survey of the following Nevada State Office, Reno, Nevada, on found suitable for classification to described lands will be officially filed at the first business day after thirty (30) convey 227.5 acres of public land to the Bureau of Land Management (BLM) days from the publication of this notice. Park County under the provisions of the Nevada State Office, Reno, Nevada, on The plat, in two sheets, representing Recreation and Public Purposes (R&PP) the first business day after thirty (30) the dependent resurvey of a portion of Act, as amended. As a political days from the publication of this notice. Homestead Entry Survey No. 167, and subdivision of the State of Wyoming, The plat, in three sheets, representing the survey of a portion of the south Park County is a qualified applicant the dependent resurvey of portions of boundary and a portion of the under the R&PP Act. Park County has the south and east boundaries and a subdivisional lines, and the subdivision not applied for more than 6,400-acres portion of the subdivisional lines, and a of sections 18 and 19, Township 45 for recreation uses in a year, nor for metes-and-bounds survey of the easterly North, Range 54 East, Mount Diablo more than 640 acres for each of the right-of-way line of U.S. Highway No. Meridian, Nevada, under Group No. programs involving public resources 95, through sections 23, 25, 26, and 36, 984, was accepted September 10, 2020. other than recreation, as required by the Township 17 South, Range 58 East, This survey was executed to meet R&PP Act. Mount Diablo Meridian, Nevada, under certain administrative needs of the DATES: Submit written comments Group No. 945, was accepted August 10, Bureau of Land Management, the United regarding this proposed classification 2020. This survey was executed to meet States Forest Service, and the Bureau of and conveyance on or before November certain administrative needs of the Indian Affairs. 9, 2020. The BLM will not consider Bureau of Land Management and the 7. The Plat of Survey of the following comments received by telephone or National Park Service. described lands will be officially filed at 4. The Plat of Survey of the following the Bureau of Land Management (BLM) email. described lands will be officially filed at Nevada State Office, Reno, Nevada, on ADDRESSES: Mail written comments to the Bureau of Land Management (BLM) the first business day after thirty (30) the Field Manager, BLM Cody Field Nevada State Office, Reno, Nevada, on days from the publication of this notice. Office, 1002 Blackburn Street, Cody, the first business day after thirty (30) The plat, in one sheet, representing Wyoming, 82414. Comments may be days from the publication of this notice. the dependent resurvey of a portion of mailed or hand delivered to the Cody The plat, in one sheet, representing the south boundary, a portion of the Field Office. Information including, but the dependent resurvey of a portion of subdivisional lines and portions of the not limited to, a proposed development

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and management plan and action will be published in the purpose(s) specified in the application documentation relating to compliance newspaper of local circulation once and approved plan of development, the with applicable environmental and each week for three consecutive weeks. patentee shall pay the BLM the fair cultural resource laws is available for The regulations at 43 CFR 2741 market value, as determined by the review during business hours, 8:00 a.m. addressing requirements and procedures authorized officer, of the transferred to 4:30 p.m. Mountain Standard Time, for conveyances under the R&PP Act do portion as of the date of transfer, Monday through Friday, except during not require a public meeting. including the value of any Federal holidays, at the BLM Cody Field Upon publication of this notice in the improvements thereon. Office at the address above. Federal Register, the lands will be 7. No portion of the land shall under FOR FURTHER INFORMATION CONTACT: Cara segregated from all other forms of any circumstances revert to the United Blank, Realty Specialist, by telephone at appropriation under the public land States if any such portion has been used 307–578–5912. Persons who use a laws, including locations under the for a shooting range or any other telecommunications device for the deaf mining laws, except for lease or purpose which may result in the may call the Federal Relay Service (FRS) conveyance under the R&PP Act and disposal, placement or release of any at 1–800–877–8339 to leave a message leasing under the mineral leasing laws. hazardous substance. or question for the above individual. The conveyance documents, when The FRS is available 24 hours a day, 7 issued, will require the lands to be Classification Comments: Interested days a week. You will receive a reply conveyed to remain subject to valid persons may submit comments during normal business hours. existing rights. The conveyance involving the suitability of the land for development and use as a shooting SUPPLEMENTARY INFORMATION: Park documents will contain the terms, range. Comments on the classification County has submitted a statement in conditions and reservations listed are restricted to whether the land is compliance with the regulations at 43 below, as well as any additional terms physically suited for the proposal, CFR 2741.4(b). Park County proposes to or conditions required by law, including whether the use will maximize the use the land for operating and any required by 43 CFR 2741.5. The future use or uses of the land, whether maintaining an expansion of an existing conveyance will reserve to the United the use is consistent with local planning public shooting range facility. States: and zoning, or if the use is consistent Park County has filed an application 1. Rights-of-way thereon for ditches with state and Federal programs. for patent of the following described and canals constructed by the authority lands. The lands examined and of the United States Act of August 30, Application Comments: Interested identified as suitable for conveyance 1890 (26 Stat. 391; 43 U.S.C. 945). persons may submit comments under the R&PP Act are described as: 2. Provisions of the R&PP Act and to regarding the specific use proposed in all applicable regulations of the the application and plan of Sixth Meridian, Wyoming Secretary of the Interior. development and management, and T. 53 N., R. 102 W., 3. All mineral deposits, including whether the BLM followed proper Sec. 14, SW1⁄4SW1⁄4NW1⁄4SE1⁄4, 1 1 1 1 1 1 saleable sand and gravel, in the land so administrative procedures in reaching NW ⁄4SW ⁄4SE ⁄4, SW ⁄4SW ⁄4SE ⁄4, and patented, shall be reserved to the United the decision to convey under the R&PP W1⁄2SE1⁄4SW1⁄4SE1⁄4; States, together with the right to Act. Sec. 23, SW1⁄4NW1⁄4NE1⁄4NE1⁄4, 1 1 1 1 1 prospect for, mine and remove such SW ⁄4NE ⁄4NE ⁄4, NW ⁄4NE ⁄4, Any adverse comments will be NE1⁄4SW1⁄4NE1⁄4, NW1⁄4SW1⁄4NE1⁄4, deposits from the same under applicable reviewed by the BLM Wyoming State SW1⁄4SW1⁄4NE1⁄4, NW1⁄4SE1⁄4SW1⁄4NE1⁄4, law and such regulations as the Director or other authorized official of NW1⁄4NW1⁄4SE1⁄4NE1⁄4, NE1⁄4SW1⁄4, Secretary of the Interior may prescribe, 1 1 1 1 1 the Department of the Interior, who may NW ⁄4SW ⁄4, NE ⁄4SW ⁄4SW ⁄4, including all necessary access and exit sustain, vacate, or modify this realty NE1⁄4SE1⁄4SW1⁄4, NW1⁄4SE1⁄4SW1⁄4, and rights. action. In the absence of any adverse NW1⁄4NW1⁄4NW1⁄4SE1⁄4. 4. Except as provided in provision 7 comments, the classification will The area described contains 227.5 below, title shall revert to the United become effective on November 24, 2020. acres. States upon a finding, after notice and The lands will not be offered for These lands are currently withdrawn opportunity for a hearing, that, without conveyance until after the classification for use by the Bureau of Reclamation. the approval of the Secretary of the becomes effective. Consent to convey these lands was Interior or his delegate, the patentee or received from the Bureau of its approved successor attempts to Before including your address, phone Reclamation on April 10, 2019. The transfer title to or control over the lands number, email address or other personal lands are not needed for any Federal to another, the lands have been devoted identifying information in any purposes. to a use other than that for which the comment, be aware that your entire Conveyance of the lands for lands were conveyed, the lands have not comment, including your personal recreational or public purposes use is in been used for the purpose for which the identifying information, may be made conformance with the BLM Cody Field lands were conveyed for a 5-year period, publicly available at any time. While Office Resource Management Plan dated or the patentee has failed to follow the you can ask us in your comment to September 2015 and is in the public approved development plan or withhold your personal identifying interest. The BLM conducted a Phase I management plan. information from public review, we environmental site assessment in July 5. An appropriate indemnification cannot guarantee that we will be able to 2019. No evidence of recognized clause protecting the United States from do so. environmental conditions was claims arising out of the patentee’s use, Authority: 43 CFR 2741.5. identified on the parcel. occupancy, or occupation on the leased/ All interested parties will receive a patented lands. Duane Spencer, copy of this notice once it is published 6. If, at any time, the patentee Acting State Director, Wyoming. in the Federal Register. A notice with transfers to another party ownership of [FR Doc. 2020–21145 Filed 9–24–20; 8:45 am] information about this proposed realty any portion of the land not used for the BILLING CODE 4310–22–P

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DEPARTMENT OF THE INTERIOR helps the public understand our parklands must first obtain a permit information collection requirements and before the project may begin. To apply National Park Service provide the requested data in the for a permit, applicants submit Form desired format. DI–1926 ‘‘Application for Permit for [NPS–WASO–CR–NPS0028678; PPWOCRADI0, PCU00RP14.R50000 (200); We are especially interested in public Archeological Investigations.’’ OMB Control Number 1024–0037] comment addressing the following: Applicants are required to submit the (1) Is Whether or not the collection of following information: information is necessary for the proper Agency Information Collection • Statement of Work performance of the functions of the Activities; Archeology Permit • Applications and Reports NPS, including whether or not the Statement of Applicant’s Capabilities information will have practical utility; • Statement of Applicant’s Past AGENCY: National Park Service, Interior. (2) The accuracy of our estimate of the Performance ACTION: Notice of Information burden for this collection of • Curriculum vitae for Principal Collection; request for comment. information, including the validity of Investigator(s) and Project Director(s) the methodology and assumptions used; • Written consent by State or tribal SUMMARY: In accordance with the (3) Ways to enhance the quality, authorities to undertake the activity Paperwork Reduction Act of 1995, we, utility, and clarity of the information to the National Park Service (NPS) are be collected; and on State or tribal lands that are proposing to renew an information (4) How might the NPS minimize the managed by the NPS, if required by collection. burden of this collection on the the State or tribe respondents, including through the use • Curation Authorization DATES: Interested persons are invited to of appropriate automated, electronic, • submit comments on or before Detailed Schedule of All Project mechanical, or other technological November 24, 2020. Activities collection techniques or other forms of ADDRESSES: Send your comments on information technology, e.g., permitting Persons receiving a permit must also this information collection request (ICR) electronic submission of response. submit (1) Preliminary Reports (2) by mail to Phadrea Ponds, NPS Comments that you submit in Annual Reports (3) Final Reports. Information Collection Clearance response to this notice are a matter of Title of Collection: Archeology Permit Officer,1201 Oakridge Drive Fort public record. We will include or Applications and Reports Collins, CO 80525; or by email at summarize each comment in our request OMB Control Number: 1024–0037. [email protected]. Please to OMB to approve this ICR. Before Form Number: Form DI–1926. reference Office of Management and including your address, phone number, Budget (OMB) Control Number 1024– email address, or other personal Type of Review: Extension of a 0037 in the subject line of your identifying information in your currently approved collection. comments. comment, you should be aware that Respondents/Affected Public: FOR FURTHER INFORMATION CONTACT: To your entire comment—including your Individuals or organizations wishing to request additional information about personal identifying information—may excavate or remove archeological this ICR, contact Karen Mudar, be made publicly available at any time. resources from public or Indian lands. Archeologist, Washington Support While you can ask us in your comment Total Estimated Number of Annual Office Archeology Program by email at to withhold your personal identifying Respondents: 100. [email protected]; or by telephone information from public review, we cannot guarantee that we will be able to Total Estimated Number of Annual at 202–354–2103. Please reference OMB Responses: 100. Control Number 1024–0037 in the do so. Abstract: Section 4 of the Estimated Completion Time per subject line of your comment. Response: Varies from 1 hour to 2.5 Individuals who are hearing or speech Archeological Resources Protection Act (ARPA) of 1979 (16 U.S.C 470cc), and hours, depending on activity. impaired may call the Federal Relay Section 3 of the Antiquities Act (AA) of Service at 1–800–877–8339 for TTY Total Estimated Number of Annual 1906 (54 U.S.C. 320302), authorize any assistance. Burden Hours: 176. individual or institution to apply to Respondent’s Obligation: Required to SUPPLEMENTARY INFORMATION: In Federal land managing agencies to obtain or retain a benefit. accordance with the Paperwork scientifically excavate or remove Reduction Act of 1995, (PRA, 44 U.S.C. archeological resources from public or Frequency of Collection: On occasion. 3501 et seq.) and 5 CFR 1320.8(d)(1), all Indian lands. A permit is required for Total Estimated Annual Nonhour information collections require approval any archeological investigation by non- Burden Cost: None. under the PRA. We may not conduct or NPS personnel occurring on parklands, An agency may not conduct or sponsor and you are not required to regardless of whether or not these sponsor and a person is not required to respond to a collection of information investigations are linked to regulatory respond to a collection of information unless it displays a currently valid OMB compliance. Archeological unless it displays a currently valid OMB control number. investigations that require permits control number. As part of our continuing effort to include excavation, shovel-testing, The authority for this action is the reduce paperwork and respondent coring, pedestrian survey (with and Paperwork Reduction Act of 1995 (44 burdens, we invite the public and other without removal of artifacts), U.S.C. 3501 et seq.). Federal agencies to comment on new, underwater archeology, proposed, revised, and continuing photogrammetry, and rock art Phadrea Ponds, collections of information. This helps us documentation. Individuals, academic Information Collection Clearance Officer, assess the impact of our information and scientific institutions, museums, National Park Service. collection requirements and minimize and businesses that propose to conduct [FR Doc. 2020–21206 Filed 9–24–20; 8:45 am] the public’s reporting burden. It also archeological field investigations on BILLING CODE 4312–52–P

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DEPARTMENT OF THE INTERIOR We are especially interested in public recipients to support the broad cultural comment addressing the following: resource mandates of the National National Park Service (1) Whether or not the collection of Historic Preservation Act and for other information is necessary for the proper purposes. [NPS–WASO–CR–NPS0030550; PPWOCRADI0, PCU00RP14.R50000 (200); performance of the functions of the The information from this collection OMB Control Number 1024–0038] agency, including whether or not the is required to evaluate whether or not information will have practical utility; State, Tribal, and local governments Agency Information Collection (2) The accuracy of our estimate of the meet minimum standards and Activities; Procedures for State, Tribal, burden for this collection of requirements for participation in the and Local Government Historic information, including the validity of National Historic Preservation Program; Preservation Programs the methodology and assumptions used; and to meet program specific (3) Ways to enhance the quality, AGENCY: National Park Service, Interior. requirements as well as government- utility, and clarity of the information to wide requirements for Federal grant ACTION: Notice of information collection; be collected; and programs. request for comment. (4) How might the agency minimize the burden of the collection of The NPS uses the information SUMMARY: In accordance with the information on those who are to collected to ensure compliance with the Paperwork Reduction Act of 1995, we, respond, including through the use of National Historic Preservation Act, as the National Park Service (NPS) are appropriate automated, electronic, well as government-wide grant proposing to renew an information mechanical, or other technological requirements issued and implemented collection. collection techniques or other forms of through 43 CFR part 12 and 2 CFR 200. DATES: Interested persons are invited to information technology, e.g., permitting Title of Collection: Procedures for submit comments on or before electronic submission of response. State, Tribal, and Local Government November 24, 2020. Comments that you submit in Historic Preservation Programs; 36 CFR ADDRESSES: Send your comments on response to this notice are a matter of 61. this information collection request (ICR) public record. We will include or OMB Control Number: 1024–0038. summarize each comment in our request by mail to Phadrea Ponds, NPS Form Number: None. Information Collection Clearance to OMB to approve this ICR. Before Type of Review: Extension of a Officer, National Park Service, 1201 including your address, phone number, currently approved collection. Oakridge Drive Fort Collins, CO 80525; email address, or other personal or by email to [email protected]. identifying information in your Respondents/Affected Public: State, Please reference OMB Control Number comment, you should be aware that Tribal, local governments, and grant 1024–0038 in the subject line of your your entire comment—including your applicants or recipients who wish to comments. personal identifying information—may participate formally in the National be made publicly available at any time. Historic Preservation Program and/or FOR FURTHER INFORMATION CONTACT: To While you can ask us in your comment who wish to apply for Historic request additional information about to withhold your personal identifying Preservation Fund grant assistance. this ICR, contact Seth Tinkham, Grants information from public review, we Management Specialist, State, Tribal, Total Estimated Number of Annual cannot guarantee that we will be able to Respondents: 2,229. Local, Plans & Grants Division or by do so. Total Estimated Number of Annual email at [email protected]; or by telephone Abstract: This collection is authorized at 202–354–2020. Individuals who are by Section 101(b) of the National Responses: 43,108. hearing or speech impaired may call the Historic Preservation Act, as amended, Estimated Completion Time per Federal Relay Service at 1–800–877– (54 U.S.C. 302301), which specifies the Response: Varies from .25 hours to 166 8339 for TTY assistance. role of States, Tribes, and local hours depending on activity. SUPPLEMENTARY INFORMATION: In governments in the NHPP Program. This Total Estimated Number of Annual accordance with the Paperwork information collection has an impact on Burden Hours: 40,761. Reduction Act of 1995 (PRA, 44 U.S.C. State, Tribal, and local governments that Respondent’s Obligation: Required to 3501 et seq.) and 5 CFR 1320.8(d)(1), all wish to participate formally with the obtain or retain a benefit. information collections require approval National Park Service in the National under the PRA. We may not conduct or Historic Preservation Partnership Frequency of Collection: On occasion, sponsor and you are not required to (NHPP). Information is also requested to depending on the grant program. respond to a collection of information meet grant management and monitoring Total Estimated Annual Nonhour unless it displays a currently valid OMB of responsibilities for States, Tribes, Burden Cost: None. control number. local government, and other eligible An agency may not conduct or As part of our continuing effort to grant recipients under 54 U.S.C. 300101 sponsor and a person is not required to reduce paperwork and respondent et seq. and 2 CFR 200. respond to a collection of information burdens, we invite the public and other Each year Congress directs the NPS to unless it displays a currently valid OMB Federal agencies to comment on new, use part of the annual appropriation control number. proposed, revised, and continuing from the Historic Preservation Fund The authority for this action is the collections of information. This helps us (HPF) for the State grant program and Paperwork Reduction Act of 1995 (44 assess the impact of our information the Tribal grant programs to assist States U.S.C. 3501 et seq.). collection requirements and minimize and Tribes in carrying out their the public’s reporting burden. It also statutory role in the National Historic Phadrea Ponds, helps the public understand our Preservation Program. Through Information Collection Clearance Officer, information collection requirements and competitive grant programs, Congress National Park Service. provide the requested data in the also directs NPS to provide financial [FR Doc. 2020–21208 Filed 9–24–20; 8:45 am] desired format. assistance to a variety of eligible grant BILLING CODE 4312–52–P

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INTERNATIONAL TRADE processes for manufacturing or relating In connection with its review, the COMMISSION to same and certain products containing Commission requests that the parties same by reason of misappropriation of brief their positions with reference to [Investigation No. 337–TA–1145] trade secrets, the threat or effect of the applicable law and the evidentiary Certain Botulinum Toxin Products, which is to destroy or substantially record regarding the following Processes for Manufacturing or injure a domestic industry in the United questions: Relating to Same and Certain Products States. See id. The notice of 1. Describe the differences between Containing Same Commission investigation names as respondents the Medytox strain and other Hall A- Decision To Review in Part a Final Daewoong Pharmaceuticals Co., Ltd. hyper strains and explain the relevance Initial Determination Finding a (‘‘Daewoong’’) of Seoul, South Korea of those differences to Complainants’ Violation of Section 337; Schedule for and Evolus, Inc. (‘‘Evolus’’) of Irvine, trade secrets misappropriation claim. Filing Written Submissions California (collectively, ‘‘Respondents’’). 2. Discuss the availability in the See id. The Office of Unfair Import marketplace of Hall A-hyper strains AGENCY: U.S. International Trade Investigations (‘‘OUII’’) is also a party to since Dr. Hall’s discovery in the 1920s Commission. the investigation. See id. and the U.S. Army’s development in the ACTION: Notice. On July 6, 2020, the ALJ issued the 1940s (i.e., not just during the 2009– FID finding a violation of section 337 2010 timeframe and thereafter). SUMMARY: Notice is hereby given that based on the importation into the 3. For the alleged domestic industry the U.S. International Trade United States, the sale for importation, costs regarding activities related to Commission has determined to review or the sale within the United States after regulatory approvals and compliance in part a final initial determination importation of certain botulinum (including costs for activities such as (‘‘FID’’) of the presiding administrative neurotoxin products by reason of the relevant research and development or law judge (‘‘ALJ’’) finding a violation of misappropriation of trade secrets, the testing): (A) Which of those regulatory section 337 of the Tariff Act of 1930, as threat or effect of which is to destroy or activities are of a nature that can only amended. The Commission also substantially injure an industry in the be performed in the United States (for requests written submissions, under the United States. See FID at 273. either legal or practical reasons), and schedule set forth below, on remedy, the The FID also includes a recommended which could have been carried out in public interest, and bonding. determination (‘‘RD’’) recommending another country; and (B) does the record FOR FURTHER INFORMATION CONTACT: that, if a violation is found, the permit allocation of costs between those Houda Morad, Office of the General Commission issue: (1) A limited two categories? Counsel, U.S. International Trade exclusion order barring entry of certain 4. What is the federal legal standard Commission, 500 E Street SW, botulinum toxin products that are for determining what constitutes a Washington, DC 20436, telephone (202) imported, sold for importation, and/or misappropriation of trade secrets 708–4716. Copies of non-confidential sold after importation by respondents sufficient to establish an ‘‘unfair method documents filed in connection with this Daewoong and Evolus; and (2) a cease of competition’’ under Section 337? investigation may be viewed on the and desist order against Evolus. The RD 5. Is injury to the complainant an Commission’s electronic docket (EDIS) also recommends that the Commission element of a federal trade secret at https://edis.usitc.gov. For help impose a bond based on price misappropriation cause of action that is accessing EDIS, please email differential during the period of necessary to establish an ‘‘unfair [email protected]. General Presidential review. method of competition’’ under Section information concerning the Commission On July 20, 2020, Respondents filed a 337(a)(1)(A) (distinct from the ‘‘threat or may also be obtained by accessing its petition for Commission review of the effect’’ requirements of Section internet server at https://www.usitc.gov. FID. On July 28, 2020, Complainants 337(a)(1)(A)(i)–(iii))? The public record for this investigation and OUII filed responses to 6. Please explain whether, consistent may be viewed on the Commission’s Respondents’ petition. On September with the federal common law, the injury electronic docket (EDIS) at https:// 18, 2020, Respondents filed a motion for requirement discussed in the FID (see edis.usitc.gov. Hearing-impaired leave to file a notice of new factual FID at 45 (‘‘(4) that the respondent has persons are advised that information on development. The Commission has used or disclosed the trade secret this matter can be obtained by determined to accept Respondents’ causing injury to the complainant.’’) contacting the Commission’s TDD filing. (emphasis added)) refers to injury terminal on (202) 205–1810. The Commission has determined to within the meaning of section SUPPLEMENTARY INFORMATION: On March review the FID in part. Specifically, the 337(a)(1)(A)(i)–(iii) (i.e., ‘‘threat or 6, 2019, the Commission instituted this Commission has determined to review effect’’ subsections) and not a separate investigation under section 337 of the the FID’s findings with respect to ‘‘injury’’ requirement for establishing Tariff Act of 1930, as amended, 19 subject matter jurisdiction, standing, trade secret misappropriation. U.S.C. 1337 (‘‘section 337’’), based on a trade secret existence and In seeking briefing on these issues, the complaint filed by Medytox Inc. of misappropriation, and domestic Commission has not determined to Seoul, South Korea; Allergan plc of industry, including the existence of excuse any party’s noncompliance with Dublin, Ireland; and Allergan, Inc. of such domestic industry as well as any Commission rules and the ALJ’s Irvine, California (collectively, actual or threatened injury thereto. The procedural requirements, including ‘‘Complainants’’). See 84 FR 8112–13 Commission has determined not to requirements to present issues in (Mar. 6, 2019). The complaint, as review the remainder of the FID. The submissions to the ALJ and in petitions supplemented, alleges a violation of Commission has also determined to for Commission review. The section 337 based upon the importation allow Complainants to respond to Commission may, for example, decline into the United States, the sale for Respondents’ notice of new factual to disturb certain findings in the FID importation, and the sale within the development in their written upon finding that issue was not United States after importation of submissions to the Commission presented in a timely manner to the ALJ certain botulinum toxin products, pursuant to the present notice. or to the Commission.

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In addition, in connection with the parties are encouraged to file written programs, personnel, and operations of final disposition of this investigation, submissions on the issues of remedy, the Commission including under 5 the Commission may (1) issue an order the public interest, and bonding. Such U.S.C. Appendix 3; or (ii) by U.S. that could result in the exclusion of the submissions should also address the government employees and contract subject articles from entry into the recommended determination by the ALJ personnel,1 solely for cybersecurity United States, and/or (2) issue one or on remedy and bonding. Complainants purposes. All non-confidential written more cease and desist orders that could and the Commission Investigative submissions will be available for public result in the respondent(s) being Attorney are also requested to submit inspection at the Office of the Secretary required to cease and desist from proposed remedial orders for the and on EDIS. engaging in unfair acts in the Commission’s consideration. The Commission’s vote on this importation and sale of such articles. Complainants are further requested to determination took place on September Accordingly, the Commission is provide the HTSUS numbers under 21, 2020. interested in receiving written which the accused products are The authority for the Commission’s submissions that address the form of imported, and to supply the names of determination is contained in section remedy, if any, that should be ordered. known importers of the products at 337 of the Tariff Act of 1930, as If a party seeks exclusion of an article issue in this investigation. amended (19 U.S.C. 1337), and in part from entry into the United States for Written submissions and proposed 210 of the Commission’s Rules of purposes other than entry for remedial orders must be filed no later Practice and Procedure (19 CFR part consumption, the party should so than close of business on October 9, 210). indicate and provide information 2020. Reply submissions must be filed By order of the Commission. no later than the close of business on establishing that activities involving Issued: September 21, 2020. other types of entry either are adversely October 16, 2020. Initial written affecting it or likely to do so. For submissions may not exceed 60 pages in Lisa Barton, background, see Certain Devices for length, exclusive of any exhibits, while Secretary to the Commission. Connecting Computers via Telephone reply submissions may not exceed 30 [FR Doc. 2020–21158 Filed 9–24–20; 8:45 am] Lines, Inv. No. 337–TA–360, USITC pages in length, exclusive of any BILLING CODE 7020–02–P Pub. No. 2843 (Dec. 1994) (Comm’n exhibits. No further submissions on any Op.). of these issues will be permitted unless If the Commission contemplates some otherwise ordered by the Commission. DEPARTMENT OF JUSTICE form of remedy, it must consider the Persons filing written submissions [OMB Number 1140–0080] effects of that remedy upon the public must file the original document interest. The factors the Commission electronically on or before the deadlines Agency Information Collection will consider include the effect that an stated above. The Commission’s paper Activities; Proposed eCollection exclusion order and/or cease and desist filing requirements in 19 CFR 210.4(f) eComments Requested; Extension orders would have on (1) the public are currently waived. 85 FR 15798 Without Change of a Currently health and welfare, (2) competitive (March 19, 2020). Submissions should Approved Collection; Notification of conditions in the U.S. economy, (3) U.S. refer to the investigation number (‘‘Inv. Change of Mailing or Premise Address production of articles that are like or No. 337–TA–1145’’) in a prominent directly competitive with those that are place on the cover page and/or the first AGENCY: Bureau of Alcohol, Tobacco, subject to investigation, and (4) U.S. page. (See Handbook for Electronic Firearms and Explosives, Department of consumers. The Commission is Filing Procedures, https:// Justice. therefore interested in receiving written www.usitc.gov/documents/handbook_ ACTION: 60-Day notice. submissions that address the on_filing_procedures.pdf). Persons with aforementioned public interest factors questions regarding filing should SUMMARY: The Department of Justice in the context of this investigation. contact the Secretary (202–205–2000). (DOJ), Bureau of Alcohol, Tobacco, If the Commission orders some form Any person desiring to submit a Firearms and Explosives (ATF), will of remedy, the U.S. Trade document to the Commission in submit the following information Representative, as delegated by the confidence must request confidential collection request to the Office of President, has 60 days to approve, treatment. All such requests should be Management and Budget (OMB) for disapprove, or take no action on the directed to the Secretary to the review and approval in accordance with Commission’s determination. See Commission and must include a full the Paperwork Reduction Act of 1995. Presidential Memorandum of July 21, statement of the reasons why the The proposed information collection 2005, 70 FR 43251 (July 26, 2005). Commission should grant such (IC) is also being published to obtain During this period, the subject articles treatment. See 19 CFR 201.6. Documents comments from the public and affected would be entitled to enter the United for which confidential treatment by the agencies. States under bond, in an amount Commission is properly sought will be DATES: Comments are encouraged and determined by the Commission and treated accordingly. All information, will be accepted for 60 days until prescribed by the Secretary of the including confidential business November 24, 2020. Treasury. The Commission is therefore information and documents for which FOR FURTHER INFORMATION CONTACT: If interested in receiving submissions confidential treatment is properly you have additional comments, concerning the amount of the bond that sought, submitted to the Commission for regarding the estimated public burden should be imposed if a remedy is purposes of this Investigation may be or associated response time, ordered. disclosed to and used: (i) By the suggestions, or need a copy of the Written Submissions: The parties to Commission, its employees and Offices, proposed information collection the investigation are requested to file and contract personnel (a) for instrument with instructions, or written submissions on the questions developing or maintaining the records additional information, please contact: identified in this notice. Parties to the of this or a related proceeding, or (b) in investigation, interested government internal investigations, audits, reviews, 1 All contract personnel will sign appropriate agencies, and any other interested and evaluations relating to the nondisclosure agreements.

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Shawn Stevens, Federal Explosives explosive materials are being stored, for Mississippi Department of Licensing Center, either by mail at 244 purposes of inspection. The collected Environmental Quality, the Needy Road, Martinsburg, WV 25405, information will also be used to notify Commonwealth of Pennsylvania by email at [email protected], or permittee/licensees about any changes Department of Environmental by telephone at 304–616–4400. in regulation or law that may affect their Protection, the South Carolina SUPPLEMENTARY INFORMATION: Written business activities. Department of Health & Environmental comments and suggestions from the 5. An estimate of the total number of Control, the Tennessee Department of public and affected agencies concerning respondents and the amount of time Environment and Conservation, and the the proposed collection of information estimated for an average respondent to Texas Commission on Environmental are encouraged. Your comments should respond: An estimated 1,000 Quality, Westchester Fire Insurance address one or more of the following respondents will utilize this information Company, the Environmental Trustee, four points: collection annually, and it will take the Consenting Creditors, the each respondent approximately 10 Transferred Entities, the Europe/ROW – Evaluate whether the proposed minutes to complete their responses. Purchaser, and the Trustees, each of collection of information is necessary 6. An estimate of the total public which are defined in the Settlement for the proper performance of the burden (in hours) associated with the Agreement. functions of the agency, including collection: The estimated annual public The Settlement Agreement relates to whether the information will have burden associated with this collection is the Debtors’ Non-Performing Properties practical utility; 170 hours, which is equal to 1,000 (# of and will be incorporated into Debtors’ – Evaluate the accuracy of the agency’s respondents) * 0.17 (10 minutes). proposed Chapter 11 Plan. The estimate of the burden of the If additional information is required Settlement Agreement contains proposed collection of information, contact: Melody Braswell, Department covenants not to sue and reservations including the validity of the Clearance Officer, United States under the Resource Conservation and methodology and assumptions used; Department of Justice, Justice Recovery Act, 42 U.S.C. 6901 et seq., the – Evaluate whether and if so how the Management Division, Policy and Comprehensive Environmental quality, utility, and clarity of the Planning Staff, Two Constitution Response, Compensation, and Liability information to be collected can be Square, 145 N Street NE, 3E.405A, Act, 42 U.S.C. 9601 et seq., certain other enhanced; and Washington, DC 20530. actions, and under similar state laws. – Minimize the burden of the collection Dated: September 22, 2020. The Settlement Agreement requires, of information on those who are to among other provisions, the Debtors to Melody Braswell, respond, including through the use of transfer certain properties to an appropriate automated, electronic, Department Clearance Officer for PRA, U.S. environmental response trust or trusts Department of Justice. mechanical, or other technological which will be created pursuant to the collection techniques or other forms [FR Doc. 2020–21216 Filed 9–24–20; 8:45 am] agreement; certain secured creditors to of information technology, e.g., BILLING CODE 4410–14–P make, or cause to be made, up to permitting electronic submission of $10,000,000 in payments to the responses. DEPARTMENT OF JUSTICE environmental response trusts; and Overview of This Information Westchester Fire Insurance Company to Collection Notice of Lodging of Proposed pay the full penal sum of certain surety Consent Decree under the Resource bonds it issued of up to approximately 1. Type of Information Collection Conservation and Recovery Act and $34.7 million for environmental (check justification or form 83): Comprehensive Environmental liabilities for certain of the Non- Extension without change of a currently Response, Compensation and Liability Performing Properties. approved collection. Act The publication of this notice opens 2. The Title of the Form/Collection: a period for public comment on the Notification of Change of Mailing or On September 22, 2020, the Settlement Agreement. Comments Premise Address. Department of Justice lodged a proposed should be addressed to the Section 3. The agency form number, if any, Consent Decree and Settlement Chief, Environmental Enforcement and the applicable component of the Agreement Regarding the Non- Section, and should refer to In re Exide Department sponsoring the collection: Performing Properties (‘‘Settlement Holdings, Inc., et al., Case No. 20– Form number (if applicable): None. Agreement’’) with the United States 11157(CSS), D.J. Ref. No. 90–11–2– Component: Bureau of Alcohol, Bankruptcy Court for the District of 07802/8. All comments must be Tobacco, Firearms and Explosives, U.S. Delaware in the matter entitled In re submitted so as to be received by no Department of Justice. Exide Holdings, Inc., et al., Case No. 20– later than October 6, 2020. Comments 4. Affected public who will be asked 11157(CSS). may be submitted either by email or by or required to respond, as well as a brief The United States, on behalf of the mail: abstract: Environmental Protection Agency, Primary: Business or other for-profit. lodged this Settlement Agreement with To submit Send them to: Other (if applicable): Individuals or Exide Holdings, Inc. and its Debtor comments: households. Affiliates (collectively the ‘‘Debtors’’), Abstract: Per 27 CFR 555.54, licensees the Florida Department of By e-mail ...... pubcomment-ees.enrd@ usdoj.gov. and permittees whose mailing address Environmental Protection, the Georgia By mail ...... Section Chief, U.S. DOJ— will change, must notify the Chief, Environmental Protection Division of ENRD—EES, P.O. Box Federal Explosives Licensing Center, at the Department of Natural Resources, 7611, Washington, DC least 10 days before the change. ATF the Illinois Environmental Protection 20044–7611. personnel will use this information Agency, the State of Indiana on Behalf collection to identify the correct of Indiana Department of Environmental Under section 7003(d) of RCRA, a location of both explosives licensees/ Management, the Louisiana Department commenter may request an opportunity permittees, and the address where their of Environmental Quality, the for a public meeting in the affected area.

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During the public comment period, ‘‘Currently under 30-day Review—Open Square, 145 N Street NE, 3E.405A, the Settlement Agreement may be for Public Comments’’ or by using the Washington, DC 20530. examined and downloaded at this search function. Dated: September 22, 2020. Justice Department website: https:// SUPPLEMENTARY INFORMATION: Written Melody Braswell, www.justice.gov/enrd/consent-decrees. comments and/or suggestions regarding Department Clearance Officer for PRA, U.S. We will provide a paper copy of the the item(s) contained in this notice, Department of Justice. Settlement Agreement upon written especially regarding the estimated [FR Doc. 2020–21253 Filed 9–24–20; 8:45 am] request and payment of reproduction public burden and associated response BILLING CODE 4410–PB–P costs. Please mail your request and time, should address one or more of the payment to: following four points: Consent Decree Library, U.S. DOJ— (1) Evaluate whether the proposed DEPARTMENT OF JUSTICE ENRD, P.O. Box 7611, Washington, DC collection of information is necessary 20044–7611. for the proper performance of the [OMB Number 1110–0051] Please enclose a check or money order functions of the agency, including for $80.50 (25 cents per page whether the information will have Agency Information Collection reproduction cost) payable to the United practical utility; Activities; Proposed eCollection States Treasury. For a paper copy (2) Evaluate the accuracy of the eComments Requested; Revision of a without the exhibits and signature agency’s estimate of the burden of the currently approved collection; Final pages, the cost is $21.00. proposed collection of information; Disposition Report (R–84), with (3) Enhance the quality, utility, and supplemental questions R–84(a), R– Susan M. Akers, clarity of the information to be 84(b), R–84(c), R–84(d), R–84(e), R– Assistant Section Chief, Environmental collected; and 84(f), R–84(g), R–84(h), R–84(i), and R– Enforcement Section, Environment and (4) Minimize the burden of the 84(j) Natural Resources Division. collection of information on those who [FR Doc. 2020–21256 Filed 9–24–20; 8:45 am] are to respond, including through the AGENCY: Federal Bureau of BILLING CODE 4410–15–P use of appropriate automated, Investigation, Department of Justice. electronic, mechanical, or other ACTION: 60-day notice. technological collection techniques or DEPARTMENT OF JUSTICE other forms of information technology, SUMMARY: Department of Justice (DOJ), [OMB Number 1105–0103] e.g., permitting electronic submission of Federal Bureau of Investigation, responses. Criminal Justice Information Services Agency Information Collection Division will be submitting the Activities; Proposed eCollection Overview of This Information following information collection request eComments Requested Submission for Collection to the Office of Management and Budget Review: Electronic Submission Form (1) Type of information collection: (OMB) for review and approval in for Requests for Corrective Action, Extension. accordance with the Paperwork Whistleblower Protection for Federal (2) Title of Form/Collection: Request Reduction Act of 1995. Bureau of Investigation Employees for Corrective Action Form DATES: Comments are encouraged and (3) The agency form number, if any/ will be accepted for 60 days until AGENCY: Office of Attorney Recruitment the applicable component of the November 24, 2020. and Management, Department of Justice. department sponsoring the collection: FOR FURTHER INFORMATION CONTACT: If ACTION: 30-Day notice. No form number/Office of Attorney you have additional comments Recruitment and Management, Justice SUMMARY: The Department of Justice especially on the estimated public (DOJ), Justice Management Division, Management Division, U.S. Department burden or associated response time, Office of Attorney Recruitment and of Justice. suggestions, or need a copy of the (4) Affected Public who will be asked Management (OARM), will be proposed information collection or required to respond, as well as a brief submitting this information collection instrument with instructions or abstract: Individuals. The application request to the Office of Management and additional information, please contact form is submitted voluntarily by Budget (OMB) for review and approval Gerry Lynn Brovey, Supervisory individuals who are current or former in accordance with the Paperwork Information Liaison Specialist, FBI, employees of, or applicants for Reduction Act of 1995. The information CJIS, Resources Management Section, employment with, the FBI who allege collection is a Request for Corrective Administrative Unit, Module C–2, 1000 reprisal for their whistleblowing Action Form, available on OARM’s Custer Hollow Road, Clarksburg, West activities. Virginia, 26306 (telephone: 304–625– public website, for current and former (5) An estimate of the total number of 5093) or email [email protected]. employees of, or applicants for respondents and the amount of time employment with, the Federal Bureau of estimated to respond/reply: An average SUPPLEMENTARY INFORMATION: Written Investigation (FBI) who wish to file a of 15 respondents per year, and an comments and suggestions from the claim of whistleblower reprisal. average of three hours to complete the public and affected agencies concerning DATES: Comments are encouraged and form. the proposed collection of information will be accepted for 30 days until (6) An estimate of the total public are encouraged. Your comments should October 26, 2020. burden (in hours) associated with the address one or more of the following ADDRESSES: Written comments and collection: About 45 hours. four points: recommendations for the proposed If additional information is required —Evaluate whether the proposed information collection should be sent contact: Melody Braswell, Department collection of information is necessary within 30 days of publication of this Clearance Officer, United States for the proper performance of the notice to www.reginfo.gov/public/do/ Department of Justice, Justice functions of the Bureau of Justice PRAMain. Find this particular Management Division, Policy and Statistics, including whether the information collection by selecting Planning Staff, Two Constitution information will have practical utility;

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—Evaluate the accuracy of the agency’s Dated: September 22, 2020. For general information on the NASA estimate of the burden of the Melody Braswell, Centennial Challenges Program please proposed collection o information, Department Clearance Officer for PRA, U.S. visit: http://www.nasa.gov/challenges. including the validity of the Department of Justice. General questions and comments methodology and assumptions used; [FR Doc. 2020–21225 Filed 9–24–20; 8:45 am] regarding the program should be —Evaluate whether and if so how the BILLING CODE 4410–02–P addressed to Monsi Roman, Centennial quality, utility, and clarity of the Challenges Program, NASA Marshall information to be collected can be Space Flight Center, Huntsville, AL enhanced; and NATIONAL AERONAUTICS AND 35812 at 256–544–4071. Email address: —Minimize the burden of the collection SPACE ADMINISTRATION hq-stmd-centennialchallenges@ mail.nasa.gov. of information on those who are to [Notice: (20–076)] respond, including through the use of SUPPLEMENTARY INFORMATION: appropriate automated, electronic, Centennial Challenges Watts on the Summary mechanical, or other technological Moon Challenge Phase 1 collection techniques or other forms In the first phase of competition, of information technology, e.g., AGENCY: National Aeronautics and teams will develop concept proposals permitting electronic submission of Space Administration (NASA). for technologies to address one or more responses. ACTION: Notice of Centennial Challenges ‘‘mission activities’’ in a hypothetical Watts on the Moon Challenge Phase 1. mission scenario based on anticipated Overview of This Information mission operations and environmental Collection SUMMARY: The Watts on the Moon Challenge is open and teams that wish features of human and robotic 1. Type of Information Collection: to compete may now register. exploration of the lunar surface. The Revision of a currently approved Centennial Challenges is a program of Mission Scenario and the three collection. prize competitions to stimulate associated Mission Activities are based 2. The Title of the Form/Collection: innovation in technologies of interest on anticipated mission operations and Final Disposition Report. and value to NASA and the nation. The environmental features of human and 3. The agency form number, if any, Watts on the Moon Challenge is a prize robotic exploration of the lunar surface. and the applicable component of the competition with up to a $5,000,000 The characteristics of the Mission Department sponsoring the collection: USD total prize purse to incentivize Scenario are purposefully intended to Agency form number: R–84, with advances in lunar power distribution, incentivize a wide variety of innovative supplemental questions R–84(a), R– energy storage, and/or power technology solutions to the overall 84(b), R–84(c), R–84(d), R–84(e), R– management. At this time, NASA is challenge of high capacity, adaptable, 84(f), R–84(g), R–84(h), R–84(i), and R– opening Phase 1 of the competition, and reliable lunar power distribution 84(j). which has a $500,000 USD prize purse. and management systems that will be Sponsoring component: Department In this phase of competition, teams will critical to the well-being and of Justice, Federal Bureau of develop concept proposals for productivity of human crew and Investigation, Criminal Justice technologies to address one or more fledgling lunar surface industries. Information Services Division. ‘‘mission activities’’ in a hypothetical The three Mission Activities present different combinations of power or 4. Affected public who will be asked mission scenario based on anticipated energy capacity, distance between or required to respond, as well as a brief mission operations and environmental energy sources and the site of activity abstract: Individuals or households. features of human and robotic operations, mobility features, system Primary: City, county, state, federal and exploration of the lunar surface. NASA mass limitations, and operational duty tribal law enforcement agencies. This is funding the prize purse and cycles that must be accommodated by collection is needed to report administration of the challenge teams. The activities each specify completion of an arrest event. competition. distinct operational consumption of Acceptable data is stored as part of the DATES: Phase 1 registration opens electrical and/or thermal energy but are Next Generation Identification (NGI) September 25, 2020 and will remain open to solutions that involve system of the FBI. open until March 25, 2021. No further conversion between one and the other. 5. An estimate of the total number of requests for registration will be accepted The activities are intended to be respondents and the amount of time after this date. essentially independent of the nature of Other important dates: estimated for an average respondent to the energy source employed, but respond: It is estimated that 75,605 September 25, 2020—Phase 1 competitive solutions will involve respondents will complete each form registration opens identifying and incorporating March 25, 2021—Deadline for within approximately 5 minutes. assumptions about an energy source registration 6. An estimate of the total public into their concept. burden (in hours) associated with the May 20, 2021—Phase 1 winners collection: There are an estimated announced I. Prize Amounts 81,074.75 total annual hours associated ADDRESSES: The Watts on the Moon The Watts on the Moon Challenge with this collection. Challenge Phase 1 will be conducted total prize purse is up to $5,000,000 If additional information is required virtually. The Challenge competitors USD (five million dollars) to be awarded contact: Melody Braswell, Department will develop and submit their concept across two (2) phases of competition. Clearance Officer, United States proposals from their own location. Prize purse for Phase 1 will total up Department of Justice, Justice FOR FURTHER INFORMATION CONTACT: To to $500,000. Up to three (3) winning Management Division, Policy and register for or get additional information teams, as determined by the Judging Planning Staff, Two Constitution regarding the Watts on the Moon Panel, will be awarded $100,000 each. Square, 145 N Street NE, 3E.405A, Challenge, please visit: www.nasa.gov/ Up to four (4) runner-up teams will Washington, DC 20530. wattson. receive up to $50,000 each.

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The Prize Purse for Phase 2, should for Public Comments’’ or by using the statistical quality standards and, as there be promising submissions in search function. such, the NSCG data will be afforded Phase 1 that demonstrate a viable FOR FURTHER INFORMATION CONTACT: protection under the applicable Census approach, will be worth up to Suzanne H. Plimpton, Reports Clearance Bureau confidentiality statutes. $4,500,000. Officer, National Science Foundation, Use of the Information: NSF uses the information from the NSCG to prepare II. Eligibility 2415 Eisenhower Avenue, Alexandria, VA 22314, or send email to splimpto@ congressionally mandated reports such Eligibility To Participate and Win Prize nsf.gov. Individuals who use a as Women, Minorities and Persons with Money telecommunications device for the deaf Disabilities in Science and Engineering and Science and Engineering Indicators. To be eligible to win a prize: (TDD) may call the Federal Information A public release file of collected data, • Individuals must be U.S. citizens or Relay Service (FIRS) at 1–800–877– designed to protect respondent permanent residents of the United 8339, which is accessible 24 hours a confidentiality, will be made available States and be 18 years of age or older. day, 7 days a week, 365 days a year • Organizations must be an entity (including federal holidays). to researchers on the internet. Expected Respondents: A statistical incorporated in and maintaining a Copies of the submission may be sample of approximately 169,000 primary place of business in the United obtained by calling 703–292–7556. persons will be contacted in 2021. This States. SUPPLEMENTARY INFORMATION: NSF may 169,000 sample is a 5,000 case increase • Teams must be comprised of not conduct or sponsor a collection of over the sample size listed in the first otherwise eligible individuals or information unless the collection of notice for public comment in the organizations and led by an otherwise information displays a currently valid Federal Register at 85 FR 23537. The eligible individual or organization. OMB control number and the agency larger sample size enables the inclusion The eligibility requirements can be informs potential persons who are to of a non-production bridge panel as part found on the official challenge site: respond to the collection of information of the 2021 NSCG to quantify the www.nasa.gov/wattson. that such persons are not required to potential impact of question wording III. Rules respond to the collection of infor Title modifications on key survey estimates. of Collection: Graduate Research NSF estimates the 2021 NSCG response The complete rules for the Watts on Fellowship Program. the Moon Challenge, can be found at: rate to be 65 to 75 percent. OMB Control Number: 3145–0141. Estimate of Burden: The amount of https://www.herox.com/ Summary of Collection: The National time to complete the questionnaire may WattsOnTheMoon/Guidelines. Survey of College Graduates (NSCG) has vary depending on an individual’s Cheryl Parker, been conducted biennially since the circumstances; however, on average it NASA Federal Register Liaison Officer. 1970s. The 2021 NSCG sample will be will take approximately 25 minutes to selected from the 2019 American [FR Doc. 2020–21138 Filed 9–24–20; 8:45 am] complete the survey. NSF estimates that Community Survey (ACS) and the 2019 BILLING CODE 7510–13–P the average annual burden for the 2021 NSCG, providing coverage of the college NSCG over the course of the three-year graduate population residing in the OMB clearance period will be no more United States. The purpose of this NATIONAL SCIENCE FOUNDATION than 17,604 hours [(169,000 sample repeated cross-sectional survey is to persons × 75% response × 25 minutes)/ Agency Information Collection collect data that will be used to provide 3 years]. Activities: Comment Request; 2021 national estimates on the science and Comments: As required by 5 CFR National Survey of College Graduates engineering workforce and changes in 1320.8(d), comments on the information their employment, education, and collection activities as part of this study AGENCY: National Science Foundation. demographic characteristics. were solicited through the publication ACTION: Submission for OMB Review; The National Science Foundation Act of a 60-Day Notice in the Federal Comment Request. of 1950, as subsequently amended, Register on 28 April 2020, at 85 FR includes a statutory charge to ‘‘. . . 23537. We received two comments. The SUMMARY: The National Science provide a central clearinghouse for the nature of each comment and our Foundation (NSF) has submitted the collection, interpretation, and analysis responses are summarized below. following information collection of data on scientific and engineering Comment: On 28 April 2020, Dr. requirement to OMB for review and resources, and to provide a source of Andrew Reamer of George Washington clearance under the Paperwork information for policy formulation by University sent an email to NSF on Reduction Act of 1995. This is the other agencies of the Federal behalf of the American Economic second notice for public comment; the Government.’’ The NSCG is designed to Association’s Committee on Economic first was published in the Federal comply with these mandates by Statistics. He requested the draft Register, and two comments were providing information on the supply information collection request (ICR) received. NSF is forwarding the and utilization of the nation’s scientists materials for the 2021 NSCG and asked proposed submission to the Office of and engineers. whether any changes were proposed for Management and Budget (OMB) for The U.S. Census Bureau, as in the the 2021 NSCG compared to the 2019 clearance simultaneously with the past, will conduct the NSCG for NSF. NSCG. publication of this second notice. The survey data collection will begin in Response: NSF responded to Dr. DATES: Written comments and February 2021 using web and mail Reamer on 7 May 2020, explaining that recommendations for the proposed questionnaires. Nonrespondents to the the 2021 NSCG ICR materials were in information collection should be sent web or mail questionnaire will be the process of being prepared and that within 30 days of publication of this followed up by computer-assisted there were no substantive changes notice to www.reginfo.gov/public/do/ telephone interviewing. The planned. He was directed to the 2019 PRAmain. Find this particular individual’s response to the survey is NSCG questionnaires on the NSF information collection by selecting voluntary. The survey will be conducted website, which would be updated to ‘‘Currently under 30-day Review—Open in conformance with Census Bureau reflect the survey year. After NSF

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decided to consider revisions to NSCG NUCLEAR REGULATORY FOR FURTHER INFORMATION CONTACT: questionnaire items to gauge the effects COMMISSION Brian Tindell, Office of Nuclear Reactor of the coronavirus pandemic on Regulation, U.S. Nuclear Regulatory workforce issues, a follow-up email was [NRC–2017–0068] Commission, Washington DC 20555– sent to Dr. Reamer on 8 July 2020, 0001; telephone: 301–415–2026, email: informing him that revised items were Knowledge and Abilities Catalog for [email protected]. being developed for testing and any Nuclear Power Plant Operators: SUPPLEMENTARY INFORMATION: The NRC proposed revisions would be included Pressurized Water Reactors; published a notice of the availability of in the ICR submitted to OMB. Knowledge and Abilities Catalog for the drafts of NUREG–1122 and NUREG– Nuclear Power Plant Operators: Comment: On 28 June 2020, Dr. Jon 1123 in the Federal Register on April Boiling Water Reactors Freeman of New York University sent 14, 2017 (82 FR 18018) for a 30-day public comment period. The public an email to NSF on behalf of the AGENCY: Nuclear Regulatory comment period closed on May 15, American Association for the Commission. 2017. The NRC received eight public Advancement of Science (AAAS) and ACTION: NUREG; issuance. comments on the drafts of NUREG–1122 the American Educational Research and NUREG–1123 and the comments SUMMARY: The U.S. Nuclear Regulatory Association (AERA). He requested that can be found on Regulations.gov under Commission (NRC) is issuing NUREG– measures of sexual orientation and Docket ID NRC–2017–0068. 1122, Revision 3, ‘‘Knowledge and gender identity (SOGI) be included in NUREG–1122, Rev. 3 and NUREG– the 2021 NSCG and other future surveys Abilities Catalog for Nuclear Power Plant Operators: Pressurized Water 1123, Rev. 3 provide the basis for the of the National Center for Science and development of content-valid Engineering Statistics (NCSES). Reactors,’’ and NUREG–1123, Revision 3, ‘‘Knowledge and Abilities Catalog for examinations used for the licensing of Response: NSF responded to Dr. Nuclear Power Plant Operators: Boiling operators at nuclear power plants under Freeman on 21 September 2020, Water Reactors.’’ the NRC’s regulations contained in title informing him that NCSES intends to 10 of the Code of Federal Regulations DATES: NUREG–1122, Revision 3 and pursue research into the feasibility of (10 CFR) part 55, ‘‘Operators’ Licenses.’’ NUREG–1223, Revision 3 take effect on The examinations developed using collecting consistent and reliable SOGI September 25, 2020. data from individuals. However, due to NUREG–1122 and NUREG–1123, along ADDRESSES: Please refer to Docket ID time and resource constraints, no SOGI with NUREG–1021, ‘‘Operator Licensing NRC–2017–0068 when contacting the measures would be ready for inclusion Examination Standards for Power NRC about the availability of in the 2021 NSCG. Reactors,’’ will sample the topics listed information regarding this document. in 10 CFR part 55. Comments: Comments are invited on You may obtain publicly-available Dated: September 22, 2020. (a) whether the proposed collection of information related to this document information is necessary for the proper using any of the following methods: For the Nuclear Regulatory Commission. performance of the functions of the • Federal Rulemaking Website: Go to Christian B. Cowdrey, Agency, including whether the https://www.regulations.gov and search Chief, Operator Licensing and Human Factors information shall have practical utility; for Docket ID NRC–2017–0068. Address Branch, Division of Reactor Oversight, Office of Nuclear Reactor Regulation. (b) the accuracy of the Agency’s questions about Docket IDs in estimate of the burden of the proposed Regulations.gov to Jennifer Borges; [FR Doc. 2020–21197 Filed 9–24–20; 8:45 am] collection of information; (c) ways to telephone: 301–287–9127; email: BILLING CODE 7590–01–P enhance the quality, utility, and clarity [email protected]. For technical questions, contact the individual listed of the information on respondents, NUCLEAR REGULATORY in the FOR FURTHER INFORMATION including through the use of automated COMMISSION CONTACT section of this document. collection techniques or other forms of • information technology; and (d) ways to NRC’s Agencywide Documents 679th Meeting of the Advisory minimize the burden of the collection of Access and Management System Committee on Reactor Safeguards information on those who are to (ADAMS): You may obtain publicly- (ACRS) available documents online in the respond, including through the use of ADAMS Public Documents collection at In accordance with the purposes of appropriate automated, electronic, https://www.nrc.gov/reading-rm/ Sections 29 and 182b of the Atomic mechanical, or other technological adams.html. To begin the search, select Energy Act (42 U.S.C. 2039, 2232b), the collection techniques or other forms of ‘‘Begin Web-based ADAMS Search.’’ For Advisory Committee on Reactor information technology. problems with ADAMS, please contact Safeguards (ACRS) will hold meetings Dated: September 21, 2020. the NRC’s Public Document Room on October 8–10, 2020. As part of the Suzanne H. Plimpton, reference staff at 1–800–397–4209, 301– coordinated government response to Reports Clearance Officer, National Science 415–4737, or by email to pdr.resource@ combat the COVID–19 public health Foundation. nrc.gov. NUREG–1122, Revision 3, emergency, the Committee will conduct ‘‘Knowledge and Abilities Catalog for [FR Doc. 2020–21156 Filed 9–24–20; 8:45 am] virtual meetings. The public will be able Nuclear Power Plant Operators: to participate in any open sessions via BILLING CODE 7555–01–P Pressurized Water Reactors,’’ is 1–866–822–3032, pass code 8272423#. available in ADAMS under Accession Thursday, October 8, 2020 No. ML20260H083 and NUREG–1123, Revision 3, ‘‘Knowledge and Abilities 9:30 a.m.–9:35 a.m.: Opening Catalog for Nuclear Power Plant Remarks by the ACRS Chairman Operators: Boiling Water Reactors,’’ is (Open)—The ACRS Chairman will make available in ADAMS under Accession opening remarks regarding the conduct No. ML20260H086. of the meeting.

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9:35 a.m.–11:15 a.m.: Framatome or Expertise (Open)—The Committee permitted only during the open portions Topical Report ANP–10323P, Revision will have presentations and discussion of the meeting. 1, ‘‘GALILEO Fuel Rod Thermal with the NRC staff regarding the subject ACRS meeting agendas, meeting Mechanical Methodology for topic. transcripts, and letter reports are Pressurized Water Reactors’’ (Open/ 2:30 p.m.–6:00 p.m.: Preparation of available through the NRC Public Closed)—The Committee will have ACRS Reports (Open/Closed)—The Document Room (PDR) at pdr.resource@ presentations and discussion with Committee will continue its discussion nrc.gov, or by calling the PDR at 1–800– representatives from Framatome and of proposed ACRS reports. [Note: 397–4209, or from the Publicly NRC staff regarding the subject topic. Pursuant to 5 U.S.C 552b(c)(4), a portion Available Records System component of [Note: Pursuant to 5 U.S.C 552b(c)(4), a of this session may be closed in order NRC’s Agencywide Documents Access portion of this session may be closed in to discuss and protect information and Management System (ADAMS) order to discuss and protect information designated as proprietary.] which is accessible from the NRC designated as proprietary.] Saturday, October 10, 2020 website at https://www.nrc.gov/reading- 11:30 a.m.–1:00 p.m.: NuScale rm/adams.html or https://www.nrc.gov/ Topical Report, ‘‘Improvements in 9:30 a.m.—2:00 p.m.: Preparation of reading-rm/doc-collections/#ACRS/. Frequency Domain Soil-Structure-Fluid ACRS Reports (Open/Closed)—The Video teleconferencing service is Interaction Analysis,’’ TR–0118–58005 Committee will continue its discussion available for observing open sessions of (Open/Closed)—The Committee will of proposed ACRS reports. [Note: ACRS meetings. Those wishing to use have presentations and discussion with Pursuant to 5 U.S.C 552b(c)(4), a portion this service should contact Thomas NuScale and the NRC staff regarding the of this session may be closed in order Dashiell, ACRS Audio Visual subject topic. [Note: Pursuant to 5 U.S.C to discuss and protect information Technician (301–415–7907), between 552b(c)(4), a portion of this session may designated as proprietary.] [Note: 7:30 a.m. and 3:45 p.m. (Eastern Time), be closed in order to discuss and protect Pursuant to 5 U.S.C. 552b(c)(2) and (6), at least 10 days before the meeting to information designated as proprietary.] portions of this meeting may be closed ensure the availability of this service. 2:00 p.m.–3:30 p.m.: Kairos Reactor to discuss organizational and personnel Individuals or organizations requesting Topical Report, ‘‘KP–FHR Risk-Informed matters that relate solely to internal this service will be responsible for Performance-Based Licensing Basis personnel rules and practices of the telephone line charges and for providing Development Methodology’’ (Open)— ACRS, and information the release of the equipment and facilities that they The Committee will have presentations which would constitute a clearly use to establish the video and discussion with Kairos and the NRC unwarranted invasion of personal teleconferencing link. The availability of staff regarding the subject topic. privacy.] video teleconferencing services is not Procedures for the conduct of and 3:45 p.m.–5:15 p.m.: Preparation of guaranteed. ACRS Reports (Open/Closed)—The participation in ACRS meetings were Note: This notice is late due to the Committee will continue its discussion published in the Federal Register on COVID–19 public health emergency and of proposed ACRS reports. [Note: June 13, 2019 (84 FR 27662). In current health precautions which Pursuant to 5 U.S.C 552b(c)(4), a portion accordance with those procedures, oral required the Committee to prepare for of this session may be closed in order or written views may be presented by the meeting to be held remotely. to discuss and protect information members of the public, including designated as proprietary.] representatives of the nuclear industry. Dated: September 22, 2020. Persons desiring to make oral statements Russell E. Chazell, Friday, October 9, 2020 should notify Quynh Nguyen, Cognizant Federal Advisory Committee Management 9:30 a.m.–11:30 a.m.: Future ACRS ACRS Staff and the Designated Federal Officer, Office of the Secretary. Activities/Report of the Planning and Official (Telephone: 301–415–5844, [FR Doc. 2020–21231 Filed 9–24–20; 8:45 am] Procedures Subcommittee and Email: [email protected]), 5 days BILLING CODE 7590–01–P Reconciliation of ACRS Comments and before the meeting, if possible, so that Recommendations/Preparation of appropriate arrangements can be made Reports (Open/Closed)—The Committee to allow necessary time during the POSTAL REGULATORY COMMISSION will hear discussion of the meeting for such statements. In view of [Docket Nos. MC2020–252 and CP2020–282; recommendations of the Planning and the possibility that the schedule for Order No. 5690] Procedures Subcommittee regarding ACRS meetings may be adjusted by the items proposed for consideration by the Chairman as necessary to facilitate the New Postal Products Full Committee during future ACRS conduct of the meeting, persons meetings, and/or proceed to preparation planning to attend should check with AGENCY: Postal Regulatory Commission. of reports as determined by the the Cognizant ACRS staff if such ACTION: Notice. Chairman. [Note: Pursuant to 5 U.S.C. rescheduling would result in major SUMMARY: The Commission is 552b(c)(2) and (6), a portion of this inconvenience. acknowledging a recent Postal Service meeting may be closed to discuss An electronic copy of each filing concerning the addition of a new organizational and personnel matters presentation should be emailed to the product, International Competitive that relate solely to internal personnel Cognizant ACRS Staff at least one day Multi-Service Commercial Contracts 1, rules and practices of the ACRS, and before meeting. to the competitive product list within information the release of which would In accordance with Subsection 10(d) the Mail Classification Schedule (MCS). constitute a clearly unwarranted of Public Law 92–463 and 5 U.S.C. This document informs the public of the invasion of personal privacy.] [Note: 552b(c), certain portions of this meeting filing, invites public comment, and Pursuant to 5 U.S.C 552b(c)(4), a portion may be closed, as specifically noted takes other administrative steps. of this session may be closed in order above. Use of still, motion picture, and to discuss and protect information television cameras during the meeting DATES: Comments are due: October 5, designated as proprietary.] may be limited to selected portions of 2020. 11:30 a.m.–1:30 p.m.: Information the meeting as determined by the ADDRESSES: Submit comments Session on the External Hazards Center Chairman. Electronic recordings will be electronically via the Commission’s

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Filing Online system at http:// from the enhanced predictability and 3. Comments are due no later than www.prc.gov. Those who cannot submit increased speed to market’’ resulting October 5, 2020. comments electronically should contact from the proposed streamlined review 4. The Secretary shall arrange for the person identified in the FOR FURTHER process. Id. at 23. publication of this order in the Federal INFORMATION CONTACT section by II. Contents of Filing Register. telephone for advice on filing By the Commission. alternatives. To support its Request, the Postal Service filed a redacted version of Erica A. Barker, FOR FURTHER INFORMATION CONTACT: Governors’ Decision No. 19–1,3 Secretary. David A. Trissell, General Counsel, at proposed revisions to the MCS, a [FR Doc. 2020–21172 Filed 9–24–20; 8:45 am] 202–789–6820. document that sets forth the current BILLING CODE 7710–FW–P SUPPLEMENTARY INFORMATION: procedures for filing an outbound Table of Contents international NSA and the proposed process for filing these agreements I. Introduction within the International Competitive POSTAL SERVICE II. Contents of Filing Multi-Service Commercial Contracts 1 III. Commission Action product, an unsigned template for the International Product Change— IV. Ordering Paragraphs certified statement that would be International Competitive Multi-Service I. Introduction included in filings of outbound Commercial Contracts 1: Postal ServiceTM On September 18, 2020, the Postal international NSAs within the International Competitive Multi-Service Service filed a request to add a new ACTION: Notice. product, International Competitive Commercial Contracts 1 product, and a statement of supporting justification. Multi-Service Commercial Contracts 1, SUMMARY: The Postal Service gives to the competitive product list within Notice at 5–6; see id. Attachments 2–6. Additionally, the Postal Service filed an notice of filing a request with the Postal the Mail Classification Schedule (MCS), Regulatory Commission to add pursuant to 39 U.S.C. 3642 and 39 CFR unredacted copy of Governors’ Decision No. 19–1 under seal and an application International Competitive Multi-Service 3040.130–135.1 As part of the Request, Commercial Contracts 1 to the list of the Postal Service proposes a revised for non-public treatment of materials filed under seal. Notice n.12; id. Negotiated Service Agreements in the filing process for adding outbound Attachment 1. Competitive Product List in the Mail international negotiated service Classification Schedule. agreement (NSA) contracts to the III. Commission Action DATES: Date of notice: September 25, competitive product list. Request at 1. The Commission establishes Docket 2020. Under this process, the Postal Service Nos. MC2020–252 and CP2020–282 for proposes to file almost all future consideration of matters raised by the FOR FURTHER INFORMATION CONTACT: customized outbound international Notice and appoints Katalin K. Christopher C. Meyerson, (202) 268– NSAs within the International Clendenin to serve as Public 7820. Competitive Multi-Service Commercial Representative in this docket. SUPPLEMENTARY INFORMATION: The Contracts 1 product. Id. at 4. These The Commission invites comments on United States Postal Service® hereby contracts would be approved without whether the Postal Service’s filing is gives notice that, pursuant to 39 U.S.C. any further action from the Commission, consistent with 39 U.S.C. 3642 and 39 3642, on September 18, 2020, it filed unless the Commission determines that CFR 3040.130–135. Comments are due with the Postal Regulatory Commission further review is necessary. Id. at 13. As no later than October 5, 2020. The a Request of the United States Postal a result, the Postal Service contends that public portions of the filing can be Service to Add International the administrative burden associated accessed via the Commission’s website Competitive Multi-Service Commercial with these agreements would be (http://www.prc.gov). Non-public 2 Contracts 1 to the Competitive Products lessened. The Postal Service suggests portions of the Postal Service’s List. The request proposes the creation that the review process could be request(s) can be accessed through of the International Competitive Multi- conducted in five business days and compliance with the requirements of 39 Service Commercial Contracts 1 then, through progressive experience, CFR 3011. product, along with the establishment of eventually in three business days. Id. at IV. Ordering Paragraphs filing conventions and practices to 15. eliminate unnecessary and repetitive It is ordered: The Postal Service asserts that the workload, which would expedite the Commission is capable of achieving this 1. The Commission establishes Docket Nos. MC2020–252 and CP2020–282 for processing of customized outbound objective. Id. The Postal Service also international negotiated service claims that its customers ‘‘would benefit consideration of the matters raised by the Postal Service’s Request. agreements. If the request is favorably reviewed, the United States Postal 1 Request of the United States Postal Service to 2. Pursuant to 39 U.S.C. 505, Katalin ® Add International Competitive Multi-Service K. Clendenin is appointed to serve as an Service would file almost all Commercial Contracts 1 to the Competitive officer of the Commission to represent customized outbound international Products List and Application for Non-Public the interests of the general public in this negotiated service agreements under the Treatment of Materials Filed Under Seal, September CP docket number assigned to the 18, 2020 (Request). proceeding (Public Representative). 2 Specifically, the Postal Service would no longer request. Documents are available at file the applicable decision from its Board of 3 Decision of the Governors of the United States www.prc.gov, Docket Nos. MC2020–252 Governors, revisions to the MCS, statements of Postal Service on the Establishment of Prices and and CP2020–282. supporting justification, or applications for non- Classifications for Domestic Competitive public treatment. Id. at 8. The Commission would Agreements, Outbound International Competitive Joshua J. Hofer, not issue initial scheduling notices and final orders Agreements, Inbound International Competitive Attorney, Federal Compliance. for each agreement. Id. at 15. Additionally, routine Agreements, and Other Non-Published Competitive Public Representative comments could be Rates (Governors’ Decision No. 19–1), February 7, [FR Doc. 2020–21173 Filed 9–24–20; 8:45 am] eliminated as well. Id. 2019. BILLING CODE 7710–12–P

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SECURITIES AND EXCHANGE below) rebates in Tier 4 for options total monthly volume executed by the COMMISSION transactions in Penny classes and non- Member in all options classes on MIAX Penny classes (as defined below) for Emerald in the relevant Origins and/or [Release No. 34–89927; File No. SR– 3 EMERALD–2020–07] executed Priority Customers orders applicable liquidity, not including when the contra is an Affiliated 4 Market Excluded Contracts,6 (as the numerator) Self-Regulatory Organizations; MIAX Maker.5 expressed as a percentage of (divided Emerald, LLC; Notice of Filing and The proposed change is scheduled to by) Customer Total Consolidated Immediate Effectiveness of a Proposed become operative September 8, 2020. Volume (‘‘CTCV’’) (as the denominator). Rule Change To Amend Its Fee Background CTCV means Customer Total Schedule Consolidated Volume calculated as the The Exchange currently assesses total national volume cleared at The September 21, 2020. transaction rebates and fees to all Options Clearing Corporation (‘‘OCC’’) Pursuant to Section 19(b)(1) of the market participants which are based in the Customer range in those classes Securities Exchange Act of 1934 upon a threshold tier structure (‘‘Tier’’) listed on MIAX Emerald for the month (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 that is applicable to transaction fees. for which fees apply, excluding volume notice is hereby given that on Tiers are determined on a monthly basis cleared at the OCC in the Customer September 8, 2020, MIAX Emerald, LLC and are based on three alternative range executed during the period of (‘‘MIAX Emerald’’ or ‘‘Exchange’’) filed calculation methods, as defined in time in which the Exchange experiences with the Securities and Exchange Section 1)a)ii) of the Fee Schedule. The an ‘‘Exchange System Disruption’’ 7 Commission (‘‘Commission’’) a calculation method that results in the (solely in the option classes of the proposed rule change as described in highest Tier achieved by the Member affected Matching Engine).8 In addition, Items I, II, and III below, which Items shall apply to all Origin types by the the per contract transaction rebates and have been prepared by the Exchange. Member. The monthly volume fees shall be applied retroactively to all The Commission is publishing this thresholds for each method, associated eligible volume once the Tier has been notice to solicit comments on the with each Tier, are calculated as the reached by the Member. Members that proposed rule change from interested place resting liquidity, i.e., orders on the 3 persons. ‘‘Priority Customer’’ means a person or entity MIAX Emerald System, will be assessed that (i) is not a broker or dealer in securities, and I. Self-Regulatory Organization’s (ii) does not place more than 390 orders in listed the specified ‘‘maker’’ rebate or fee Statement of the Terms of Substance of options per day on average during a calendar month (each a ‘‘Maker’’) and Members that the Proposed Rule Change for its own beneficial account(s). See Exchange Rule execute against resting liquidity will be 100, including Interpretation and Policy .01. assessed the specified ‘‘taker’’ fee or The Exchange is filing a proposal to 4 ‘‘Affiliate’’ means (i) an affiliate of a Member of rebate (each a ‘‘Taker’’).9 Members are amend the MIAX Emerald Fee Schedule at least 75% common ownership between the firms as reflected on each firm’s Form BD, Schedule A, also assessed lower transaction fees and (the ‘‘Fee Schedule’’). or (ii) the Appointed Market Maker of an Appointed The text of the proposed rule change smaller rebates for order executions in EEM (or, conversely, the Appointed EEM of an standard option classes in the Penny Appointed Market Maker). An ‘‘Appointed Market is available on the Exchange’s website at 10 http://www.miaxoptions.com/rule- Maker’’ is a MIAX Emerald Market Maker (who Interval Program (‘‘Penny classes’’) filings/emerald, at MIAX’s principal does not otherwise have a corporate affiliation than for order executions in standard based upon common ownership with an EEM) that option classes which are not in the office, and at the Commission’s Public has been appointed by an EEM and an ‘‘Appointed EEM’’ is an EEM (who does not otherwise have a Reference Room. 6 corporate affiliation based upon common ‘‘Excluded Contracts’’ means any contracts II. Self-Regulatory Organization’s ownership with a MIAX Emerald Market Maker) routed to an away market for execution. See the Statement of the Purpose of, and that has been appointed by a MIAX Emerald Market Definitions Section of the Fee Schedule. 7 Statutory Basis for, the Proposed Rule Maker, pursuant to the following process. A MIAX The term ‘‘Exchange System Disruption’’ means Emerald Market Maker appoints an EEM and an an outage of a Matching Engine or collective Change EEM appoints a MIAX Emerald Market Maker, for Matching Engines for a period of two consecutive In its filing with the Commission, the the purposes of the Fee Schedule, by each hour or more, during trading hours. See the Definitions Section of the Fee Schedule. Exchange included statements completing and sending an executed Volume Aggregation Request Form by email to 8 A ‘‘Matching Engine’’ is a part of the MIAX concerning the purpose of and basis for [email protected] no later than 2 Emerald electronic system that processes options the proposed rule change and discussed business days prior to the first business day of the orders and trades on a symbol-by-symbol basis. any comments it received on the month in which the designation is to become Some Matching Engines will process option classes proposed rule change. The text of these effective. Transmittal of a validly completed and with multiple root symbols, and other Matching executed form to the Exchange along with the Engines may be dedicated to one single option root statements may be examined at the Exchange’s acknowledgement of the effective symbol (for example, options on SPY may be places specified in Item IV below. The designation to each of the Market Maker and EEM processed by one single Matching Engine that is Exchange has prepared summaries, set will be viewed as acceptance of the appointment. dedicated only to SPY). A particular root symbol forth in sections A, B, and C below, of The Exchange will only recognize one designation may only be assigned to a single designated per Member. A Member may make a designation Matching Engine. A particular root symbol may not the most significant aspects of such not more than once every 12 months (from the date be assigned to multiple Matching Engines. See the statements. of its most recent designation), which designation Definitions Section of the Fee Schedule. shall remain in effect unless or until the Exchange 9 For a Priority Customer complex order taking A. Self-Regulatory Organization’s receives written notice submitted 2 business days liquidity in both a Penny class and non-Penny class Statement of the Purpose of, and prior to the first business day of the month from against Origins other than Priority Customer, the Statutory Basis for, the Proposed Rule either Member indicating that the appointment has Priority Customer order will receive a rebate based Change been terminated. Designations will become on the Tier achieved. operative on the first business day of the effective 10 See Securities Exchange Act Release No. 88993 1. Purpose month and may not be terminated prior to the end (June 2, 2020), 85 FR 35145 (June 8, 2020) (SR– of the month. Execution data and reports will be EMERALD–2020–05) (Notice of Filing and The Exchange proposes to amend provided to both parties. See the Definitions Immediate Effectiveness of a Proposed Rule Change Section 1)a)i) of the Fee Schedule to Section of the Fee Schedule. To Amend Exchange Rule 510, Minimum Price lower the Simple Maker (as defined 5 ‘‘Market Maker’’ refers to ‘‘Lead Market Maker’’ Variations and Minimum Trading Increments, To (‘‘LMM’’), ‘‘Primary Lead Market Maker’’ (‘‘PLMM’’) Conform the Rule to Section 3.1 of the Plan for the and ‘‘Registered Market Maker’’ (‘‘RMM’’), Purpose of Developing and Implementing 1 15 U.S.C. 78s(b)(1). collectively. See the Definitions Section of the Fee Procedures Designed To Facilitate the Listing and 2 17 CFR 240.19b–4. Schedule and Exchange Rule 100. Trading of Standardized Options).

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Penny Interval Program (‘‘non-Penny assessed a higher transaction fees and assessed according to the following classes’’), for which Members will be larger rebates. tables: Currently, transaction rebates and fees for Penny and non-Penny classes are

MEMBERS AND THEIR AFFILIATES IN PENNY CLASSES SIMPLE/COMPLEX/PRIME/CPRIME

Simple Complex # PRIME/cPRIME ◊ Maker Maker Origin Tier (contra (contra Maker Taker ∧ origins priority Taker Agency Contra Responder ex priority customer customer) origin)

Market Maker...... 1 ($0.35) $0.50 $0.10 $0.47 $0.50 $0.05 $0.05 $0.05 2 (0.35) 0.50 0.10 0.47 0.50 0.05 0.05 0.05 3 (0.35) 0.50 0.10 0.47 0.50 0.05 0.05 0.05 4 (0.45) 0.50 0.10 0.47 0.50 0.05 0.05 0.05 Non-MIAX Emerald Market Maker ...... 1 (0.25) 0.50 0.20 0.50 0.50 0.05 0.05 0.05 2 (0.25) .50 0.20 0.50 0.50 0.05 0.05 0.05 3 (0.25) 0.50 0.20 0.50 0.50 0.05 0.05 0.05 4 (0.25) 0.50 0.20 0.50 0.50 0.05 0.05 0.05 Firm Proprietary/Broker-Dealer.. 1 (0.25) 0.50 0.20 0.50 0.50 0.05 0.05 0.05 2 (0.25) 0.50 0.20 0.50 0.50 0.05 0.05 0.05 3 (0.25) 0.50 0.20 0.50 0.50 0.05 0.05 0.05 4 (0.25) 0.50 0.20 0.50 0.50 0.05 0.05 0.05 Non-Priority Customer...... 1 (0.25) 0.50 0.20 0.50 0.50 0.05 0.05 0.05 2 (0.25) 0.50 0.20 0.50 0.50 0.05 0.05 0.05 3 (0.25) 0.50 0.20 0.50 0.50 0.05 0.05 0.05 4 (0.25) 0.50 0.20 0.50 0.50 0.05 0.05 0.05 Priority Customer * ...... 1 S (0.43) 0.50 (0.25) (0.25) (0.25) 0.00 0.05 0.05 2 S (0.43) 0.50 (0.40) (0.40) (0.40) 0.00 0.05 0.05 3 S (0.43) 0.50 (0.45) (0.45) (0.45) 0.00 0.05 0.05 4 (0.53) 0.50 (0.50) (0.50) (0.50) 0.00 0.05 0.05

MEMBERS AND THEIR AFFILIATES IN NON-PENNY CLASSES SIMPLE/COMPLEX/PRIME/CPRIME

Simple Complex # PRIME/cPRIME ◊ Maker Maker Origin Tier (contra (contra Maker Taker ∧ origins priority Taker ∼ Agency Contra Responder ex priority customer customer) origin)

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# For orders in a Complex Auction, Priority Customer Complex Orders will receive the Complex Taker rebate based on the tier achieved when contra to an Origin that is not a Priority Customer. Origins that are not a Priority Customer will be charged the applicable Maker fee depending on the contra, based on the tier achieved. ◊ For PRIME and cPRIME, the per contract rebate or fee for the preexisting contra-side interest that trades with the Agency side will be waived. PRIME/cPRIME Responder side interest that trades with unrelated Agency side interest trades as Taker will be subject to Simple or Complex rates, as applicable. S Simple Maker rebate in SPY, QQQ and IWM is ($0.45) for Priority Customer Origin in Tiers 1, 2 and 3. Notes Accompanying Tables Above During the Opening Rotation and the ABBO uncrossing, the per contract rebate or fee will be waived for all Origins.

Proposed Changes ‘‘S’’ 11 immediately following the table the current Simple Maker rebates for The Exchange now proposes to lower of rebates and fees in Section 1)a)i of the Priority Customer orders in options in the Simple Maker rebates in Tier 4 for Fee Schedule. In particular, the Penny and non-Penny classes in Tier 4 options transactions in Penny classes Exchange proposes to adopt new symbol of ($0.53) and ($1.05), respectively. and non-Penny classes for executed ‘‘b,’’ for the Penny classes table and the The purpose of adjusting the specified Priority Customers orders when the following explanatory sentences: ‘‘This Simple Maker rebates is for business contra is an Affiliated Market Maker. Maker rebate is for executed Priority and competitive reasons. In order to Specifically, the Exchange proposes to Customer Simple Orders when the attract order flow, the Exchange initially lower the Simple Maker rebate for contra is not an Affiliated Market set its Maker rebates and Taker fees so executed Priority Customer orders in Maker. When the contra is an Affiliated that they were meaningfully higher/ Market Maker, this Maker rebate for options in Penny classes in Tier 4 from lower than other options exchanges that executed Priority Customer Simple ($0.53) to ($0.49) when the contra is an operate comparable maker/taker pricing Orders will be ($0.49).’’ The Exchange Affiliated Market Maker. The Exchange models.12 The Exchange now believes also proposes to adopt new symbol ‘‘■,’’ also proposes to lower the Simple that it is appropriate to further adjust for the non-Penny classes table and the Maker rebate for executed Priority these specified Maker rebates so that Customer orders in options in non- following explanatory sentences: ‘‘This Maker rebate is for executed Priority they are more in line with other Penny classes in Tier 4 from ($1.05) to exchanges, but will still remain highly ($0.95) when the contra is an Affiliated Customer Simple Orders when the competitive such that they should Market Maker. contra is not an Affiliated Market In order to differentiate between the Maker. When the contra is an Affiliated enable the Exchange to continue to proposed lower Tier 4 Simple Maker Market Maker, this Maker rebate for attract order flow and maintain market 13 rebate in Penny and non-Penny classes executed Priority Customer Simple share. when the contra is an Affiliated Market Orders will be ($0.95).’’ Accordingly, With the proposed changes, Section Maker, the Exchange proposes to insert the Exchange proposes to insert the new 1)a)i) of the Fee Schedule will be as two new symbols after the symbol symbols ‘‘b’’ and ‘‘■’’ as footnotes for follows:

MEMBERS AND THEIR AFFILIATES IN PENNY CLASSES SIMPLE/COMPLEX/PRIME/CPRIME

Simple Complex # PRIME/cPRIME ◊ Maker Maker Origin Tier (contra (contra Maker Taker ∧ origins priority Taker Agency Contra Responder ex priority customer customer) origin)

4 (0.25) 0.50 0.20 0.50 0.50 0.05 0.05 0.05 Priority Customer * ...... 1 S (0.43) 0.50 (0.25) (0.25) (0.25) 0.00 0.05 0.05 2 S (0.43) 0.50 (0.40) (0.40) (0.40) 0.00 0.05 0.05 3 S (0.43) 0.50 (0.45) (0.45) (0.45) 0.00 0.05 0.05 4 b (0.53) 0.50 (0.50) (0.50) (0.50) 0.00 0.05 0.05

11 See Fee Schedule, Section 1)a)i. 12 See Securities Exchange Act Release No. 85393 13 See Cboe BZX Options Exchange Fee Schedule, (March 21, 2019), 84 FR 11599 (March 27, 2019) under ‘‘Transaction Fees.’’ (SR–EMERALD–2019–15).

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MEMBERS AND THEIR AFFILIATES IN NON-PENNY CLASSES SIMPLE/COMPLEX/PRIME/CPRIME

Simple Complex # PRIME/cPRIME ◊ Maker Maker Origin Tier (contra (contra Maker Taker ∧ origins priority Taker ∼ Agency Contra Responder ex priority customer customer) origin)

Market Maker...... 1 ($0.45) $1.05 $0.20 $0.86 $0.88 $0.05 $0.05 $0.05 2 (0.45) 1.05 0.20 0.86 0.88 0.05 0.05 0.05 3 (0.45) 1.05 0.20 0.86 0.86 0.05 0.05 0.05 4 (0.75) 1.05 0.20 0.86 0.86 0.05 0.05 0.05 Non-MIAX Emerald Market Maker ...... 1 (0.25) 1.05 0.20 0.88 0.88 0.05 0.05 0.05 2 (0.25) 1.05 0.20 0.88 0.88 0.05 0.05 0.05 3 (0.25) 1.05 0.20 0.88 0.88 0.05 0.05 0.05 4 (0.25) 1.05 0.20 0.88 0.88 0.05 0.05 0.05 Firm Proprietary/Broker-Dealer.. 1 (0.25) 1.05 0.20 0.88 0.88 0.05 0.05 0.05 2 (0.25) 1.05 0.20 0.88 0.88 0.05 0.05 0.05 3 (0.25) 1.05 0.20 0.88 0.88 0.05 0.05 0.05 4 (0.25) 1.05 0.20 0.88 0.88 0.05 0.05 0.05 Non-Priority Customer...... 1 (0.25) 1.05 0.20 0.88 0.88 0.05 0.05 0.05 2 (0.25) 1.05 0.20 0.88 0.88 0.05 0.05 0.05 3 (0.25) 1.05 0.20 0.88 0.88 0.05 0.05 0.05 4 (0.25) 1.05 0.20 0.88 0.88 0.05 0.05 0.05 Priority Customer* ...... 1 (0.85) 0.85 (0.40) (0.40) (0.40) 0.00 0.05 0.05 2 (0.85) 0.85 (0.60) (0.60) (0.60) 0.00 0.05 0.05 3 (0.85) 0.85 (0.70) (0.70) (0.75) 0.00 0.05 0.05 4 ■ (1.05) 0.85 (0.87) (0.87) (0.85) 0.00 0.05 0.05 ∧ Contra to Priority Customer Simple Orders, Origins ex Priority Customer Simple Orders will be charged $0.50 and Priority Customer Simple Orders will be charged $0.50 in Penny classes, and Origins ex Priority Customer Simple Orders will be charged $1.10 and Priority Customer Simple Orders will be charged $0.85 in Non-Penny classes. * Priority Customer Complex Orders contra to Priority Customer Complex Orders are neither charged nor rebated. Priority Customer Complex Orders that leg into the Simple book are neither charged nor rebated. ∼ A $0.05 Complex surcharge for Origins ex Priority Customer for Complex Orders that take liquidity from the Complex Order Book in Non- Penny classes. # For orders in a Complex Auction, Priority Customer Complex Orders will receive the Complex Taker rebate based on the tier achieved when contra to an Origin that is not a Priority Customer. Origins that are not a Priority Customer will be charged the applicable Maker fee depending on the contra, based on the tier achieved. ◊ For PRIME and cPRIME, the per contract rebate or fee for the preexisting contra-side interest that trades with the Agency side will be waived. PRIME/cPRIME Responder side interest that trades with unrelated Agency side interest trades as Taker will be subject to Simple or Complex rates, as applicable. S Simple Maker rebate in SPY, QQQ and IWM is ($0.45) for Priority Customer Origin in Tiers 1, 2 and 3. b This Maker rebate is for executed Priority Customer Simple Orders when contra is not an Affiliated Market Maker. When the contra is an Af- filiated Market Maker, this Maker rebate for executed Priority Customer Simple Orders will be ($0.49). ■ This Maker rebate is for executed Priority Customer Simple Orders when the contra is not an Affiliated Market Maker. When the contra is an Affiliated Market Maker, this Maker rebate for executed Priority Customer Simple Orders will be ($0.95). Notes Accompanying Tables Above During the Opening Rotation and the ABBO uncrossing, the per contract rebate or fee will be waived for all Origins.

The Commission has repeatedly than approximately 16% market and/or shift order flow, in response to expressed its preference for competition share.15 Therefore, no exchange transaction fee changes. For example, on over regulatory intervention in possesses significant pricing power. February 28, 2019, the Exchange’s determining prices, products, and More specifically, for the month of affiliate, MIAX PEARL, LLC (‘‘MIAX services in the securities markets. In August, the Exchange had a market PEARL’’) filed with the Commission a Regulation NMS, the Commission share of approximately 3.24% of proposal to increase Taker fees in highlighted the importance of market executed volume of multiply-listed certain Tiers for options transactions in forces in determining prices and SRO equity options.16 certain Penny classes for Priority revenues and, also, recognized that The Exchange believes that the ever- Customers and decrease Maker rebates current regulation of the market system shifting market share among the in certain Tiers for options transactions ‘‘has been remarkably successful in exchanges from month to month in Penny classes for Priority Customers promoting market competition in its demonstrates that market participants (which fee was to be effective March 1, broader forms that are most important to can discontinue or reduce use of certain 2019).17 MIAX PEARL experienced a investors and listed companies.’’ 14 categories of products and services, decrease in total market share for the month of March 2019, after the proposal There are currently 16 registered terminate an existing membership or went into effect. Accordingly, the options exchanges competing for order determine to not become a new member, Exchange believes that the MIAX flow. Based on publicly-available PEARL March 1, 2019 fee change, to information, and excluding index-based 15 The Options Clearing Corporation (‘‘OCC’’) publishes options and futures volume in a variety increase certain transaction fees and options, no single exchange has more of formats, including daily and monthly volume by exchange, available here: https://www.theocc.com/ 17 See Securities Exchange Act Release No. 85304 14 See Securities Exchange Act Release No. 51808 market-data/volume/default.jsp. (March 13, 2019), 84 FR 10144 (March 19, 2019) (June 9, 2005), 70 FR 37496 (June 29, 2005). 16 See id. (SR–PEARL–2019–07).

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decrease certain transaction rebates, mechanisms of a free and open market products, in response to transaction may have contributed to the decrease in and a national market system and, in and/or non-transaction fee changes. For MIAX PEARL’s market share and, as general, to protect investors and the example, on February 28, 2019, the such, the Exchange believes competitive public interest. Exchange’s affiliate, MIAX PEARL, filed forces constrain the Exchange’s, and The Exchange believes its proposal to with the Commission a proposal to other options exchanges, ability to set decrease its Simple Maker rebates in increase Taker fees in certain Tiers for transaction fees and market participants Tier 4 for options transactions in Penny options transactions in certain Penny can shift order flow based on fee and non-Penny classes for Priority classes for Priority Customers and changes instituted by the exchanges. Customers orders when trading contra decrease Maker rebates in certain Tiers The Exchange also notes that at least to an Affiliated Market Maker provides for options transactions in Penny classes one other competing exchange similarly for the equitable allocation of reasonable for Priority Customers (which fee was to provides for different pricing dependent dues and fees and is not unfairly be effective March 1, 2019).26 MIAX upon whether the executing buyer and discriminatory for the following PEARL experienced a decrease in total seller are the same market participant or reasons. The Exchange operates in a market share for the month of March have some form of common highly competitive market. The 2019, after the proposal went into effect. ownership.18 Commission has repeatedly expressed Accordingly, the Exchange believes that its preference for competition over the MIAX PEARL March 1, 2019 fee 2. Statutory Basis regulatory intervention in determining change, to increase certain transaction The Exchange believes that its prices, products, and services in the fees and decrease certain transaction proposal to amend its Fee Schedule is securities markets. In Regulation NMS, rebates, may have contributed to the consistent with Section 6(b) of the Act 19 the Commission highlighted the decrease in MIAX PEARL’s market share in general, and furthers the objectives of importance of market forces in and, as such, the Exchange believes Section 6(b)(4) of the Act,20 in that it is determining prices and SRO revenues competitive forces constrain the an equitable allocation of reasonable and, also, recognized that current Exchange’s, and other options dues, fees and other charges among regulation of the market system ‘‘has exchanges, ability to set transaction fees Exchange members and issuers and been remarkably successful in and market participants can shift order other persons using its facilities, and promoting market competition in its flow based on fee changes instituted by 6(b)(5) of the Act,21 in that it is designed broader forms that are most important to the exchanges. to prevent fraudulent and manipulative investors and listed companies.’’ 22 The Exchange believes its proposal to acts and practices, to promote just and There are currently 16 registered decrease the Simple Maker rebates in equitable principles of trade, to foster options exchanges competing for order Tier 4 for options transactions in Penny cooperation and coordination with flow. Based on publicly-available and non-Penny classes for Priority persons engaged in facilitating information, and excluding index-based Customers is reasonable, equitable and transactions in securities, to remove options, no single exchange has more not unfairly discriminatory because all impediments to and perfect the than approximately 16% of the market similarly situated market participants in share of executed volume of multiply- the same Origin type are subject to the 18 See Nasdaq Options Pricing Schedule, Options listed equity and ETF options trades same tiered Maker rebates and Taker 7, Section 2(1), note 2 (Participants that add 1.30% based on the reported trade volumes for fees and access to the Exchange is of Customer, Professional, Firm, Broker-Dealer or 23 offered on terms that are not unfairly Non-NOM Market Maker liquidity in Penny Pilot the month of August. Therefore, no Options and/or Non-Penny Pilot Options of total exchange possesses significant pricing discriminatory. The Exchange believes industry customer equity and ETF option ADV power in the execution of multiply- it is equitable and not unfairly contracts per day in a month will be subject to the listed equity and ETF options order discriminatory to reduce the Simple following pricing applicable to executions: A $0.48 Maker rebates to Priority Customer per contract Penny Pilot Options Fee for Removing flow. More specifically, for the month of Liquidity when the Participant is (i) both the buyer August, the Exchange had a market orders in Penny and non-Penny classes and the seller or (ii) the Participant removes share of approximately 3.24% of for competitive and business reasons liquidity from another Participant under Common executed volume of multiply-listed because the Exchange initially set its Ownership. Participants that add 1.50% of 24 Simple Maker rebates for such orders Customer, Professional, Firm, Broker-Dealer or Non- equity options. The Exchange cannot NOM Market Maker liquidity in Penny Pilot predict with certainty the number of higher than certain other options Options and/or Non-Penny Pilot Options of total market participants that would qualify exchanges that operate comparable 27 industry customer equity and ETF option ADV for the lower Simple Maker rebates as maker/taker pricing models. The contracts per day in a month and meet or exceed 25 Exchange now believes that it is the cap for The Nasdaq Stock Market Opening Cross Members may continually shift during the month will be subject to the following among the different Tiers from month to appropriate to further decrease the pricing applicable to executions less than 10,000 month. specified Simple Maker rebates so that contracts: A $0.32 per contract Penny Pilot Options The Exchange believes that the ever- they are more in line with other Fee for Removing Liquidity when the Participant is exchanges, and will still remain highly (i) both the buyer and seller or (ii) the Participant shifting market shares among the removes liquidity from another Participant under exchanges from month to month competitive such that they should Common Ownership. Participants that add 1.75% demonstrates that market participants enable the Exchange to continue to of Customer, Professional, Firm, Broker-Dealer or can shift order flow, or discontinue or attract order flow and maintain market Non-NOM Market Maker liquidity in Penny Pilot reduce use of certain categories of share.28 Options and/or Non-Penny Pilot Options of total Furthermore, the proposed decrease industry customer equity and ETF option ADV contracts per day in a month will be subject to the 22 See Securities Exchange Act Release No. 51808 to the Simple Maker rebates for Priority following pricing applicable to executions less than (June 9, 2005), 70 FR 37496 (June 29, 2005). Customers promotes just and equitable 10,000 contracts: A $0.32 per contract Penny Pilot 23 See supra note 15. principles of trade, fosters cooperation Options Fee for Removing Liquidity when the 24 See id. and coordination with persons engaged Participant is (i) both the buyer and seller or (ii) the 25 ‘‘Member’’ means an individual or organization in facilitating transactions in securities, Participant removes liquidity from another approved to exercise the trading rights associated Participant under Common Ownership.). with a Trading Permit. Members are deemed 19 15 U.S.C. 78f(b). ‘‘members’’ under the Exchange Act. See the 26 See supra note 17. 20 15 U.S.C. 78f(b)(4). Definitions Section of the Fee Schedule and 27 See supra note 12. 21 15 U.S.C. 78f(b)(1) and (b)(5). Exchange Rule 100. 28 See supra note 13.

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and protects investors and the public C. Self-Regulatory Organization’s proposed rule change between the interest, because even with the decrease, Statement on Comments on the Commission and any person, other than the Exchange’s proposed Simple Maker Proposed Rule Change Received From those that may be withheld from the rebates for such orders still remain Members, Participants, or Others public in accordance with the highly competitive with certain other Written comments were neither provisions of 5 U.S.C. 552, will be options exchanges offering comparable solicited nor received. available for website viewing and pricing models, and should enable the printing in the Commission’s Public Exchange to continue to attract order III. Date of Effectiveness of the Reference Room, 100 F Street NE, Proposed Rule Change and Timing for flow and maintain market share.29 The Washington, DC 20549, on official Commission Action Exchange believes that the amount of business days between the hours of such fees, as proposed to be decreased, The foregoing rule change has become 10:00 a.m. and 3:00 p.m. Copies of the will continue to encourage those market effective pursuant to Section filing also will be available for 30 participants to send orders to the 19(b)(3)(A)(ii) of the Act, and Rule inspection and copying at the principal 31 Exchange. 19b–4(f)(2) thereunder. At any time office of the Exchange. All comments within 60 days of the filing of the received will be posted without change. B. Self-Regulatory Organization’s proposed rule change, the Commission Persons submitting comments are Statement on Burden on Competition summarily may temporarily suspend cautioned that we do not redact or edit such rule change if it appears to the personal identifying information from The Exchange does not believe that Commission that such action is comment submissions. You should the proposed rule changes will impose necessary or appropriate in the public submit only information that you wish any burden on competition not interest, for the protection of investors, to make available publicly. All necessary or appropriate in furtherance or otherwise in furtherance of the submissions should refer to File of the purposes of the Act. The purposes of the Act. If the Commission Number SR–EMERALD–2020–07 and Exchange believes that the proposed takes such action, the Commission shall should be submitted on or before changes in the specified Simple Maker institute proceedings to determine October 16, 2020. rebates for the applicable market whether the proposed rule should be For the Commission, by the Division of participants should continue to approved or disapproved. Trading and Markets, pursuant to delegated encourage the provision of liquidity that IV. Solicitation of Comments authority.32 enhances the quality of the Exchange’s J. Matthew DeLesDernier, Interested persons are invited to market and increases the number of Assistant Secretary. trading opportunities on the Exchange submit written data, views, and arguments concerning the foregoing, [FR Doc. 2020–21141 Filed 9–24–20; 8:45 am] for all participants who will be able to BILLING CODE 8011–01–P compete for such opportunities. The including whether the proposed rule change is consistent with the Act. proposed rule changes should enable Comments may be submitted by any of the Exchange to continue to attract and the following methods: SECURITIES AND EXCHANGE compete for order flow with other COMMISSION exchanges. However, this competition Electronic Comments [SEC File No. 270–485, OMB Control No. does not create an undue burden on • Use the Commission’s internet 3235–0547] competition but rather offers all market comment form (http://www.sec.gov/ participants the opportunity to receive rules/sro.shtml); or Submission for OMB Review; the benefit of competitive pricing. • Send an email to rule-comments@ Comment Request The proposed decreases for certain sec.gov. Please include File Number SR– EMERALD–2020–07 on the subject line. Extension: Simple Maker rebates are intended to ‘‘Investor Form’’ keep the Exchange’s fees highly Paper Comments competitive with those of other Notice is hereby given that, pursuant • Send paper comments in triplicate exchanges, and to encourage liquidity to the Paperwork Reduction Act of 1995 to Secretary, Securities and Exchange and should enable the Exchange to (44 U.S.C. 3501 et seq.), the Securities Commission, 100 F Street NE, and Exchange Commission continue to attract and compete for Washington, DC 20549–1090. (‘‘Commission’’) has submitted to the order flow with other exchanges. The All submissions should refer to File Office of Management and Budget Exchange notes that it operates in a Number SR–EMERALD–2020–07. This (‘‘OMB’’) a request to approve the highly competitive market in which file number should be included on the collection of information discussed market participants can readily favor subject line if email is used. To help the below. competing venues if they deem fee Commission process and review your Each year the Commission receives levels at a particular venue to be comments more efficiently, please use several thousand contacts from excessive. In such an environment, the only one method. The Commission will investors who have complaints or Exchange must continually adjust its post all comments on the Commission’s questions on a wide range of rebates and fees to remain competitive internet website (http://www.sec.gov/ investment-related issues. To make it with other exchanges and to attract rules/sro.shtml). Copies of the easier for the public to contact the order flow. The Exchange believes that submission, all subsequent agency electronically, the Commission’s the proposed rule changes reflect this amendments, all written statements Office of Investor Education and competitive environment because they with respect to the proposed rule Advocacy (‘‘OIEA’’) created an modify the Exchange’s fees in a manner change that are filed with the electronic form (the Investor Form) that that encourages market participants to Commission, and all written provides drop down options to choose continue to provide liquidity and to communications relating to the from in order to categorize the investor’s send order flow to the Exchange. complaint or question, and may also 30 15 U.S.C. 78s(b)(3)(A)(ii). 29 See id. 31 17 CFR 240.19b–4(f)(2). 32 17 CFR 200.30–3(a)(12).

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provide the investor with automated ‘‘Currently under 30-day Review—Open Resolution of litigation claims; and information about their issue. The for Public Comments’’ or by using the Other matters relating to enforcement Investor Form asks investors to provide search function. Written comments and proceedings. information concerning, among other recommendations for the proposed At times, changes in Commission things, their names, how they can be information collection should be sent priorities require alterations in the reached, the names of the individuals or within 30 days of publication of this scheduling of meeting agenda items that entities involved, the nature of their notice to (i) and (ii) David Bottom, examination, litigation, or regulatory can provide, and what, if any, actions Director/Chief Information Officer, matters. they have taken. Use of the Investor Securities and Exchange Commission, c/ CONTACT PERSON FOR MORE INFORMATION: Form is voluntary. Absent the forms, the o Cynthia Roscoe, 100 F Street NE, For further information; please contact public still has several ways to contact Washington, DC 20549, or by sending an Vanessa A. Countryman from the Office the agency, including telephone, email to: [email protected]. of the Secretary at (202) 551–5400. facsimile, letters, and email. Investors Upon Written Request Copies can access the Investor Form through Available From: Securities and Dated: September 22, 2020. the consolidated Investor Complaint Exchange Commission, Office of Vanessa A. Countryman, and Question web page. Investor Education and Advocacy, Secretary. The dual purpose of the Investor Washington, DC 20549–0213. [FR Doc. 2020–21296 Filed 9–23–20; 11:15 am] Form is to make it easier for the public Dated: September 22, 2020. BILLING CODE 8011–01–P to contact the agency with complaints, questions, tips, or other feedback and to J. Matthew DeLesDernier, streamline the workflow of Commission Assistant Secretary. SECURITIES AND EXCHANGE staff that record, process, and respond to [FR Doc. 2020–21242 Filed 9–24–20; 8:45 am] COMMISSION investor contacts. Investors who submit BILLING CODE 8011–01–P complaints, ask questions, or provide [Release No. 34–89931; File No. SR–CBOE– tips do so voluntarily. Although the 2020–055] Investor Form provides a structured SECURITIES AND EXCHANGE format for incoming investor COMMISSION Self-Regulatory Organizations; Cboe correspondence, the Commission does Exchange, Inc.; Notice of Filing of not require that investors use any Sunshine Act Meetings Amendment No. 2 and Order Instituting Proceedings To Determine Whether To particular form or format when TIME AND DATE: 3:15 p.m. on Tuesday, Approve or Disapprove a Proposed contacting the agency. Investors who September 29, 2020. choose not to use the Investor Form will Rule Change, as Modified by PLACE: receive the same level of service as The meeting will be held via Amendment No. 2, To Amend Rule 5.24 those who do. remote means and/or at the OIEA receives approximately 20,000 Commission’s headquarters, 100 F September 21, 2020. Street NE, Washington, DC 20549. contacts each year through the Investor I. Introduction Form. Investors who choose not to use STATUS: This meeting will be closed to On June 12, 2020, Cboe Exchange, Inc. the Investor Form receive the same level the public. (the ‘‘Exchange’’ or ‘‘CBOE’’) filed with of service as those who do. The MATTERS TO BE CONSIDERED: the Securities and Exchange Commission uses the information that Commissioners, Counsel to the investors supply on the Investor Form to Commissioners, the Secretary to the Commission (‘‘Commission’’), pursuant review and process the contact (which Commission, and recording secretaries to Section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’),1 and may, in turn, involve responding to will attend the closed meeting. Certain 2 questions, processing complaints, or, as staff members who have an interest in Rule 19b–4 thereunder, a proposed rule appropriate, initiating enforcement the matters also may be present. change to adopt Rule 5.24(e)(3) to make investigations), to maintain a record of In the event that the time, date, or available an audio and video contacts, to track the volume of investor location of this meeting changes, an communication program to serve as a complaints, and to analyze trends. announcement of the change, along with ‘‘virtual trading floor’’ in one or more The staff of the Commission estimates the new time, date, and/or place of the option classes during regular trading that the total reporting burden for using meeting will be posted on the hours. The proposed rule change was the Investor Form is 5,000 hours. The published for comment in the Federal Commission’s website at https:// 3 calculation of this estimate depends on www.sec.gov. Register on June 29, 2020. On July 23, the number of investors who use the The General Counsel of the 2020, the Exchange filed Amendment 4 forms each year and the estimated time Commission, or his designee, has No. 1 to the proposed rule change. On it takes to complete the forms: 20,000 certified that, in his opinion, one or August 10, 2020, the Commission respondents × 15 minutes = 5,000 more of the exemptions set forth in 5 designated a longer period for burden hours. U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) Commission action on the proposed rule Members of the public should be and (10) and 17 CFR 200.402(a)(3), aware that an agency may not conduct (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and 1 15 U.S.C. 78s(b)(1). or sponsor, and a person is not required (a)(10), permit consideration of the 2 17 CFR 240.19b–4. 3 to respond to, a collection of See Securities Exchange Act Release No. 89131 scheduled matters at the closed meeting. (June 29, 2020), 85 FR 38951 (‘‘Notice’’). information unless a currently valid The subject matter of the closed 4 In Amendment No. 1, the Exchange revised the OMB control number is displayed. meeting will consist of the following proposal to: (i) Clarify that if the virtual trading The public may view background topic: floor is available in a class, the temporary rules in documentation for this information Institution and settlement of CBOE Rule 5.24(e)(1) will not apply to that class and (ii) permit clerks to access the virtual trading collection at the following website: injunctive actions; floor. Amendment No. 1 is available at: https:// . Find this particular Institution and settlement of www.sec.gov/comments/sr-cboe-2020-055/ information collection by selecting administrative proceedings; srcboe2020055-7470763-221281.pdf.

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change, until September 27, 2020.5 On applicable portions) in Chapter 5, trading floor (as described below) that August 21, 2020, the Exchange filed Section G,11 and that all non-trading enters the virtual trading pit would be Amendment No. 2 to the proposed rule rules of the Exchange would continue to visible to all other TPHs in that virtual change, which replaced and superseded apply.12 trading pit.18 Additionally, all TPHs in the proposed rule change, as modified On March 16, 2020, the Exchange a virtual trading pit may speak to each by Amendment No. 1.6 The Commission suspended open outcry trading to help other through the proposed has received one comment letter on the prevent the spread of COVID–19.13 The communication program.19 The proposal.7 The Commission is Exchange operated in an all-electronic Exchange states that this would provide publishing this notice and order to configuration until it reopened its the same communication capabilities solicit comments on the proposed rule trading floor on June 15, 2020, at which TPHs generally have on the physical change, as modified by Amendment No. time the Exchange returned to operating trading floor so that they may conduct 2, from interested persons and to as a hybrid exchange with electronic open outcry trading on the virtual institute proceedings pursuant to and open outcry trading.14 However, trading floor in the same manner as they Section 19(b)(2)(B) of the Act 8 to given the uncertainty related to the do on the physical trading floor.20 determine whether to approve or ongoing pandemic, which includes the Proposed Rule 5.24(e)(3) states that all disapprove the proposed rule change, as possibility of the Exchange having to rules related to open outcry trading, modified by Amendment No. 2. close its trading floor again, and given including those in Chapter 5, Section the possibility that the Exchange’s 21 II. Description of the Proposed Rule G, would apply to open outcry trading trading floor may be inoperable for other on the virtual trading floor in the same Change, as Modified by Amendment reasons in the future, the Exchange No. 2 manner as they apply to open outcry proposes to adopt Rule 5.24(e)(3) to trading on the physical trading floor, The Exchange proposes to amend permit it to make available an audio and except as the context otherwise requires Rule 5.24 regarding the Exchange’s video communication program to serve and as set forth in proposed business continuity and disaster as a ‘‘virtual trading floor’’ in one or subparagraph (e)(3). Proposed recovery plans. Specifically, Rule more option classes 15 if the physical subparagraph (e)(3)(A) lists certain 5.24(e) provides that if the Exchange trading floor is inoperable.16 terms in the rules related to open outcry trading floor becomes inoperable, the In the program, the Exchange would trading on the physical trading floor that Exchange will continue to operate in a create ‘‘virtual trading pits,’’ in each of would be deemed to refer to screen-based only environment using a which the Exchange would determine corresponding terms related to open floorless configuration of the system which options class(es) would be outcry trading on the virtual trading 17 that is operational while the trading available for trading. In a virtual floor. Specifically: floor facility is inoperable. The trading pit, each Trading Permit Holder • References in the rules to the Exchange would operate using that (‘‘TPH’’) authorized to access the virtual ‘‘floor,’’ ‘‘trading floor,’’ and ‘‘Exchange configuration only until the Exchange’s floor’’ (and any other terms with the trading floor facility became 11 Chapter 5, Section G of the Exchange’s same meaning) would be deemed to operational.9 Open outcry trading rulebook sets forth the rules and procedures for manual order handling and open outcry trading on refer to the ‘‘virtual trading floor.’’ would currently not be available in the the Exchange. • References in the rules to ‘‘pit,’’ event the trading floor becomes 12 The Exchange recently adopted several rule ‘‘trading station,’’ and ‘‘trading post’’ 10 inoperable. In the event that the changes that would apply during a time in which (and any other terms with the same the trading floor in inoperable, which are effective trading floor becomes inoperable, meaning) would be deemed to refer to trading will be conducted pursuant to until September 30, 2020. See, e.g., Securities Exchange Act Release Nos. 88386 (March 13, 2020), a ‘‘virtual trading pit.’’ all applicable system rules, except that 85 FR 15823 (March 19, 2020) (SR–CBOE–2020– • References in the rules to ‘‘physical open outcry rules would not be in force, 019); 88447 (March 20, 2020) (SR–CBOE–2020– presence’’ (any other terms with the including but not limited to the rules (or 023); 88490 (March 26, 2020), 85 FR 18318 (April 1, 2020) (SR–CBOE–2020–026); 88530 (March 31, same meaning) in a pit or on the trading 2020), 85 FR 19182 (April 6, 2020) (SR–CBOE– floor would be deemed to refer to 5 See Securities Exchange Act Release No. 89514 2020–031); 88886 (May 15, 2020), 85 FR 31008 ‘‘presence’’ in a virtual trading pit or on (August 10, 2020), 85 FR 49696 (August 14, 2020). (May 21, 2020) (SR–CBOE–2020–047); 89307 (July 6 the virtual trading floor, respectively. In Amendment No. 2, the Exchange revised the 14, 2020), 85 FR 43938 (July 20, 2020) (SR–CBOE– • proposal to: (i) Eliminate access to the virtual 2020–066); and 89789 (September 8, 2020), 85 FR The terms ‘‘in-crowd market trading floor when the physical trading floor is 56658 (September 14, 2020) (SR–CBOE–2020–081). participant’’ and ‘‘ICMP’’ mean a operating in a modified state; (ii) provide additional 13 See supra note 6, at 5. Market-Maker, a Designated Primary description of several aspects of the proposal, 14 See id. including access to the virtual trading floor, Market-Maker (‘‘DPM’’) or Lead Market- 15 Similar to open outcry trading on the physical recordkeeping of all chats in the virtual trading Maker (‘‘LMM’’) with an allocation in a trading floor, open outcry trading on the virtual floor, regulatory surveillance of the virtual trading trading floor would be available only during class, or a Floor Broker or PAR Official floor; and (iii) make technical and conforming Regular Trading Hours. See proposed CBOE Rule representing an order in a virtual pit on changes. Amendment No. 2 is available on the 5.24(e)(3). Commission’s website at: https://www.sec.gov/ the virtual trading floor. 16 • comments/sr-cboe-2020-055/srcboe2020055- The Exchange states that, while the recent References to an ‘‘on-floor DPM’’ or amendments to Rule 5.24(e)(1) allowed all- 7741240-223109.pdf. ‘‘on-floor LMM’’ would be deemed to 7 electronic trading to occur more similarly to open See letter to Secretary, Commission, from Kevin outcry trading, an all-electronic trading refer to a DPM or LMM, respectively, in Kennedy, Senior Vice President, North American environment cannot fully replicate open outcry a virtual pit for its allocated class(es). Markets, Nasdaq, dated July 10, 2020, available at trading. See supra note 6, at 5. For example, the https://www.sec.gov/comments/sr-cboe-2020-055/ In addition, proposed Rule 5.24(e) Exchange states that there are certain features of states that the temporary rules set forth srcboe2020055-7409704-219196.pdf (‘‘Nasdaq open outcry trading that have been difficult to Letter’’). The Nasdaq Letter expressed support for replicate in an electronic trading environment, in Rule 5.24(e)(1) would not be CBOE’s proposal, but raised questions about particularly the human interaction that permits applicable to trading in classes in which whether options classes should be able to trade in persons to negotiate pricing and to facilitate the Exchange makes a virtual trading both virtual and floor-based trading environments executions of larger orders and high-risk and and whether the virtual trading floor raises liquidity complicated strategies. See id. at 6. 18 and access concerns. 17 The Exchange states that this is similar to the See id. at 7. 8 15 U.S.C. 78s(b)(2)(B). Exchange’s authority with respect to open outcry 19 See id. 9 See CBOE Rule 5.24(e). trading on the physical trading floor. See id. at 6, 20 See id. 10 See id. n.6. 21 See supra note 11.

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floor available when the physical with the manner of operation on the Division may access the virtual trading trading floor is inoperable. As noted physical trading floor.27 floor if it deems necessary and above, the temporary rules in Rule Proposed Rule 5.24(e)(3)(C) states that appropriate, including records of any 5.24(e)(1) are intended to make TPHs may use any equipment (e.g., any chats from the virtual trading floor, if electronic trading more similar to open hardware or software related to a phone, that functionality is used.35 outcry trading when open outcry trading system, or other device, including an is not available by replicating certain instant messaging system, email system, III. Proceedings To Determine Whether features of open outcry trading in an or similar device) to access the virtual To Approve or Disapprove SR–CBOE– electronic environment. However, the trading floor and do not need to register 2020–055, as Modified by Amendment virtual trading floor would permit open devices they use while on the virtual No. 2, and Grounds for Disapproval outcry trading to continue in a separate trading floor.28 TPHs must use Under Consideration environment if the physical trading Exchange-provided equipment to access The Commission is instituting floor becomes inoperable. Therefore, PAR workstations while transacting on proceedings pursuant to Section trading opportunities that are generally the virtual trading floor.29 The proposed 19(b)(2)(B) of the Act 36 to determine only available in open outcry trading rule change does not require TPHs to whether the proposed rule change, as would continue to be available on the register devices they use while on the modified by Amendment No. 2, should virtual trading floor, making the virtual trading floor.30 The Exchange be approved or disapproved. Institution temporary rules in Rule 5.24(e)(1) states that the requirements in Rule of such proceedings is appropriate at unnecessary when the virtual trading 5.81(a) would otherwise apply in the this time in view of the legal and policy floor is available. same manner to the virtual trading floor issues raised by the proposal and the The Exchange represents that access as it does to the physical trading floor comment received thereon. Institution to the virtual trading floor would be (to the extent the context requires).31 of proceedings does not indicate that the substantially similar to access to the Proposed Rule 5.24(e)(3)(d) provides Commission has reached any physical trading floor.22 Proposed Rule that the Exchange may determine to conclusions with respect to any of the 5.24(e)(3)(B) states that admission to the require any Market-Maker or Floor issues involved. virtual trading floor is limited to TPHs, Broker in a virtual trading pit that wants Pursuant to Section 19(b)(2)(B) of the clerks,23 Exchange employees, and any to trade against an order represented for Act,37 the Commission is providing other persons the Exchange authorizes execution to express its bid or offer in notice of the grounds for disapproval 24 admission to the virtual trading floor. a chat available in the virtual trading under consideration. The Commission is 32 The Exchange would provide access to pit. instituting proceedings to allow for the virtual trading floor to TPHs the The Exchange represents that TPHs additional analysis of the proposal’s Exchange has approved to perform a participating on the virtual trading floor consistency with the Act, including trading floor function (including Floor would be subject to the same regulatory Sections 6(b)(5) and 6(b)(8) thereof,38 25 Brokers and Market-Makers). Each requirements on the virtual trading floor and the rules and regulations authorized individual will receive one as they are on the physical trading floor, thereunder. log-in to the virtual trading floor and including those set forth in Chapters 8 The Commission is instituting may be present in only one virtual and 9.33 The Exchange states that its 26 proceedings to further consider the trading pit at one time. The Exchange Regulatory Division would be able to proposal and the issues raised by the will not require a minimum number of utilize preexisting floor surveillances to commenter on the proposal as it Market-Makers to be present for the surveil for the activity occurring on the 34 determines whether the proposed virtual trading floor, which is consistent virtual trading floor. Furthermore, the virtual trading floor is consistent with Exchange states that the Regulatory the Act and the rules and regulations 22 See Notice, supra note 6, at 9. The Exchange thereunder. states that, currently, admission to the physical 27 See Notice, supra note 6, at 10. trading floor is limited to TPHs, Exchange 28 See Notice, supra note 6, at 11. Specifically, the Commission is employees, clerks employed by TPHs and registered 29 providing notice of the following with the Exchange, service personnel, Exchange The Exchange represents that the PAR will be visitors that receive authorized admission to the used and work in the same manner for the virtual trading floor pursuant to Exchange policy, and any trading floor as it is on the physical trading floor. 35 See id. at 14–15. other persons that the Exchange authorizes See Notice, supra note 6, at 11, n.16. 36 15 U.S.C. 78s(b)(2)(B). Section 19(b)(2) of the admission to the trading floor. See id. The proposed 30 See id. at 11–12. Act also provides that proceedings to determine rule change excludes service personnel and visitors 31 The Exchange states that this would include whether to disapprove a proposed rule change must from accessing the virtual trading floor. See id. at requirements related to audit trail and record be concluded within 180 days of the date of 10. retention, prohibition on using any device for the publication of notice of the filing of the proposed 23 TPHs and clerks would not be required to purpose of recording activities in the virtual trading rule change. See id. The time for conclusion of the display badges on the virtual trading floor. See pit or maintaining an open line of continuous proceedings may be extended for up to 60 days if proposed CBOE Rule 5.24(e)(3)(B). The virtual communication whereby a non-associated person the Commission finds good cause for such trading floor program would identify the TPH not located in the trading crowd may continuously extension and publishes its reasons for so finding. organization of each participant in a virtual trading monitor the activities in the trading crowd, and the See id. pit. See Notice, supra note 6, at 11, n.16. prohibition on using devices to disseminate quotes 37 Id. 24 The Exchange states that it does not anticipate or last sale reports. See id. at 12. 38 15 U.S.C. 78f(b)(5) and 15 U.S.C. 78f(b)(8), granting any other individuals with access to the 32 The Exchange states that it will announce with respectively. Section 6(b)(5) of the Act requires that virtual trading floor outside of TPHs and Exchange sufficient advance notice to all TPHs any the rules of a national securities exchange be personnel; however, the Exchange believes the determination to require bids and offers to be designed, among other things, to promote just and flexibility to permit Exchange personnel to access expressed in a chat within the communication equitable principles of trade, to remove the virtual trading floor is appropriate, such as to program pursuant to Rule 1.5 (such as by Exchange impediments to and perfect the mechanism of a free permit access to make updates to the notice or regulatory circular). See id. at 12, n.19. and open market and a national market system and, communication program. See id. at 10, n.14. The Exchange also represents that, regardless of in general, to protect investors and the public 25 See proposed CBOE Rule 5.24(e)(3)(B). This whether it requires the chat function to be used, the interest, and not be designed to permit unfair includes TPHs (and individuals that represent TPH Exchange will maintain records of all chats in the discrimination between customers, issuers, brokers, organizations) that are currently authorized to virtual trading floor in accordance with its self- or dealers. Section 6(b)(8) of the Act requires that perform trading floor functions, as well as any TPHs regulatory organization record retention obligations. the rules of a national securities exchange not that receive such authorization in the future. See See id. at 13. impose any burden on competition that is not Notice, supra note 6, at 10. 33 See id. at 13. necessary or appropriate in furtherance of the 26 See proposed CBOE Rule 5.24(e)(3)(B). 34 See id. purposes of the Act.

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grounds for possible disapproval under they may have with the proposal. In Commission process and review your consideration: particular, the Commission invites the comments more efficiently, please use • Whether the Exchange has written views of interested persons only one method. The Commission will demonstrated how its proposal is concerning whether the proposed rule post all comments on the Commission’s consistent with Section 6(b)(5) of the change, as modified by Amendment No. internet website (http://www.sec.gov/ Act,39 which requires the rules of CBOE 2, is inconsistent with Section 6(b)(5) 45 rules/sro.shtml). Copies of the to not be ‘‘designed to permit unfair or any other provision of the Act, or the submission, all subsequent discrimination between customers, rules and regulation thereunder. amendments, all written statements issuers, brokers, or dealers.’’ Although there do not appear to be any with respect to the proposed rule • Whether the Exchange has issues relevant to approval or change that are filed with the demonstrated how its proposal is disapproval that would be facilitated by Commission, and all written consistent with Section 6(b)(8) of the an oral presentation of views, data, and communications relating to the Act,40 which requires that the rules of arguments, the Commission will proposed rule change between the CBOE not impose any burden on consider, pursuant to Rule 19b–4 under Commission and any person, other than competition that is not necessary or the Act, any request for an opportunity those that may be withheld from the appropriate in furtherance of the to make an oral presentation.46 public in accordance with the purposes of the Act. Interested persons are invited to provisions of 5 U.S.C. 552, will be Under the Commission’s Rules of submit written data, views, and available for website viewing and Practice, the ‘‘burden to demonstrate arguments regarding whether the printing in the Commission’s Public that a proposed rule change is rule proposed rule change, as modified by Reference Room, 100 F Street NE, change is consistent with the [Act] and Amendment No. 2, should be approved Washington, DC 20549 on official the rules and regulations issued or disapproved by October 16, 2020. business days between the hours of thereunder . . . is on the [SRO] that Any person who wishes to file a rebuttal 10:00 a.m. and 3:00 p.m. Copies of the proposed the rule change.’’ 41 The to any other person’s submission must filing also will be available for description of a proposed rule change, file that rebuttal by October 30, 2020. inspection and copying at the principal its purpose and operation, its effect, and The Commission asks that office of the Exchange. All comments a legal analysis of its consistency with commenters address the sufficiency and received will be posted without change. applicable requirements must all be merit of the Exchange’s statements in Persons submitting comments are sufficiently detailed and specific to support of the proposed rule change, in cautioned that we do not redact or edit support an affirmative Commission addition to any other comments they personal identifying information from finding,42 and any failure of an SRO to may wish to submit about the proposed comment submissions. You should provide this information may result in rule change. In particular, the submit only information that you wish the Commission not having a sufficient Commission seeks comment on the to make available publicly. All basis to make an affirmative finding that statements of the Exchange contained in submissions should refer to File a proposed rule change is consistent Amendment No. 2,47 and any other Number SR–CBOE–2020–055 and with the Act and the applicable rules issues raised by the proposed rule should be submitted by October 16, and regulations.43 Moreover, change. 2020. Rebuttal comments should be ‘‘unquestioning reliance’’ on an SRO’s Comments may be submitted by any submitted by October 30, 2020. representations in a proposed rule of the following methods: For the Commission, by the Division of change would not be sufficient to justify Trading and Markets, pursuant to delegated Electronic Comments authority.48 Commission approval of a proposed rule • change.44 Use the Commission’s internet J. Matthew DeLesDernier, For the reasons discussed above, the comment form (http://www.sec.gov/ Assistant Secretary. Commission believes it is appropriate to rules/sro.shtml); or [FR Doc. 2020–21142 Filed 9–24–20; 8:45 am] • Send an email to rule-comments@ institute proceedings pursuant to BILLING CODE 8011–01–P Section 19(b)(2)(B) of the Act to allow sec.gov. Please include File Number SR– for additional consideration of the CBOE–2020–055 on the subject line. issues raised by the proposal as it Paper Comments SECURITIES AND EXCHANGE COMMISSION determines whether the proposal should • Send paper comments in triplicate be approved or disapproved. to Secretary, Securities and Exchange [OMB Control No. 3235–0625; SEC File No. IV. Procedure: Request for Written Commission, 100 F Street NE, 270–563] Comments Washington, DC 20549–1090. Submission for OMB Review; The Commission requests that All submissions should refer to File Comment Request; Rule 17g–1 and interested persons provide written Number SR–CBOE–2020–055. This file Form NRSRO 30 Day Notice 2020; submissions of their views, data, and number should be included on the Extension arguments with respect to the concerns subject line if email is used. To help the identified above, as well as any others Notice is hereby given that pursuant 45 15 U.S.C. 78f(b)(5). to the Paperwork Reduction Act of 1995 46 Section 19(b)(2) of the Act, as amended by the 39 15 U.S.C. 78f(b)(5). (44 U.S.C. 3501 et seq.), the Securities Securities Act Amendments of 1975, Public Law 40 and Exchange Commission 15 U.S.C. 78f(b)(8). 94–29 (June 4, 1975), grants the Commission 41 Rule 700(b)(3), Commission Rules of Practice, flexibility to determine what type of proceeding— (‘‘Commission’’) has submitted to the 17 CFR 201.700(b)(3). either oral or notice and opportunity for written Office of Management and Budget 42 See id. comments—is appropriate for consideration of a (‘‘OMB’’) a request for approval of 43 See id. particular proposal by a self-regulatory extension of the previously approved 44 See Susquehanna Int’l Group, LLP v. Securities organization. See Securities Act Amendments of collection of information provided for in and Exchange Commission, 866 F.3d 442, 446–47 1975, Senate Comm. on Banking, Housing & Urban (DC Cir. 2017) (rejecting the Commission’s reliance Affairs, S. Rep. No. 75, 94th Cong., 1st Sess. 30 Rule 17g–1, Form NRSRO and on an SRO’s own determinations without sufficient (1975). evidence of the basis for such determinations). 47 See Amendment No. 2, supra note 6. 48 17 CFR 200.30–3(a)(57) and (58).

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Instructions to Form NRSRO under the SECURITIES AND EXCHANGE within 30 days of publication of this Securities Exchange Act of 1934 (15 COMMISSION notice to (i) and (ii) David Bottom, [OMB Control No. 3235–0628, SEC File No. Director/Chief Information Officer, Rule 17g–1, Form NRSRO and the 270–564] Instructions to Form NRSRO contain Securities and Exchange Commission, c/ o Cynthia Roscoe, 100 F Street NE, certain recordkeeping and disclosure Rule 17g–2 30 Day Notice 2020— Washington, DC 20549, or by sending an requirements for NRSROs. Currently, Submission for OMB Review; _ Comment Request email to: PRA [email protected]. there are 9 credit rating agencies Upon Written Request, Copies registered as NRSROs with the Extension: Available From: Securities and Commission. Based on staff experience, Rule 17g–2 Exchange Commission, Office of FOIA the Commission estimates that the Services, 100 F Street NE, Washington, revised ongoing annual burden for Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 DC 20549–2736. respondents to comply with Rule 17g– (44 U.S.C. 3501 et seq.), the Securities Dated: September 22, 2020. 1 and Form NRSRO remains at 275 and Exchange Commission J. Matthew DeLesDenier, hours, but with a decrease in industry (‘‘Commission’’) has submitted to the Assistant Secretary. total hours to 2,475 hours, reflecting the Office of Management and Budget decrease in registered entities. In [FR Doc. 2020–21252 Filed 9–24–20; 8:45 am] (‘‘OMB’’) a request for approval of BILLING CODE 8011–01–P addition, the Commission estimates an extension of the previously approved industry-wide annual external cost to collection of information provided for in NRSROs of $3,600 to comply with the Rule 17g–2 (17 CFR 240.17g–2) under SMALL BUSINESS ADMINISTRATION requirements. the Securities Exchange Act of 1934 (15 An agency may not conduct or U.S.C. 78a et seq.) (‘‘Exchange Act’’). Data Collection Available for Public sponsor a collection of information Rule 17g–2, ‘‘Records to be made and Comments unless it displays a currently valid OMB retained by nationally recognized control number. No person shall be statistical rating organizations,’’ ACTION: 60-Day notice and request for subject to any penalty for failing to implements the Commission’s comments. recordkeeping rulemaking authority comply with a collection of information SUMMARY: The Small Business under Section 17(a) of the Exchange subject to the PRA that does not display Administration (SBA) plans to seek Act.1 The rule requires a Nationally a valid OMB control number. approval, from the Office of Recognized Statistical Rating Management and Budget (OMB) to The public may view background Organization (‘‘NRSRO’’) to make and conduct the data collection activities documentation for this information retain certain records relating to its described below. The Paperwork collection at the following website: business and to retain certain other Reduction Act requires federal agencies www.reginfo.gov. Find this particular business records, if such records are to publish a notice in the Federal information collection by selecting made. The rule also prescribes the time Register concerning each proposed ‘‘Currently under 30-day Review—Open periods and manner in which all these collection of information to OMB, and for Public Comments’’ or by using the records must be retained. There are 9 to allow 60 days for the public to search function. Written comments and credit rating agencies registered with the comment in response to the notice. This recommendations for the proposed Commission as NRSROs under section notice complies with such requirements 15E of the Exchange Act, which have information collection should be sent and announces the SBA’s proposal to already established the record keeping within 30 days of publication of this conduct a survey of small businesses policies and procedures required by notice to (i) www.reginfo.gov/public/do/ and lenders who participated in the Rule 17g–2. Based on staff experience, PRAMain and (ii) David Bottom, SBA’s Microloan program. Director/Chief Information Officer, NRSROs are estimated to spend a total industry-wide burden of 2,151 annual DATES: Submit comments on or before Securities and Exchange Commission, c/ November 20, 2020. o Cynthia Roscoe, 100 F Street NE, hours to make and retain the ADDRESSES: Send all comments to Shay Washington, DC 20549, or by sending an appropriate records. _ An agency may not conduct or Meinzer, Lead Program Evaluator, Office email to: PRA [email protected]. Upon of Program Performance, Analysis, and Written Request, Copies Available sponsor a collection of information unless it displays a currently valid OMB Evaluation, Small Business From: Securities and Exchange control number. No person shall be Administration, 409 3rd Street, 5th Commission, Office of FOIA Services, subject to any penalty for failing to Floor, Washington, DC 20416. 100 F Street NE, Washington, DC comply with a collection of information FOR FURTHER INFORMATION CONTACT: 20549–2736. subject to the PRA that does not display Shay Meinzer, Lead Program Evaluator, Dated: September 22, 2020. a valid OMB control number. Office of Program Performance, J. Matthew DeLesDenier, The public may view background Analysis, and Evaluation, Small Business Administration, Assistant Secretary. documentation for this information collection at the following website: [email protected], 202–539–1429, [FR Doc. 2020–21245 Filed 9–24–20; 8:45 am] . Find this particular or Curtis B. Rich, Management Analyst, BILLING CODE 8011–01–P information collection by selecting 202–205–7030, [email protected]. ‘‘Currently under 30-day Review—Open SUPPLEMENTARY INFORMATION: This is a for Public Comments’’ or by using the request for the collection of new search function. Written comments and information. recommendations for the proposed The purpose of the Microloan information collection should be sent Program is to assist women, low income, veteran, and minority 1 See 17 CFR 240.17g–1 and 17 CFR 249b.300. 1 15 U.S.C 78q. entrepreneurs, and other small

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businesses in need of small amounts of Frequency of Response: Once per SOCIAL SECURITY ADMINISTRATION financial assistance. Under the request. [Docket No: SSA–2020–0051] Microloan Program, the SBA makes Estimated Annual Responses: 865. direct loans to intermediaries (lenders) Estimated Average Minutes per Agency Information Collection that, in turn, use the proceeds to make Response: 20. Activities: Comment Request microloans (i.e., loans of $50,000 or Estimated Annual Hour Burden: 288. less) and to provide training and The Social Security Administration technical assistance to eligible Borrower Telephone Interview (SSA) publishes a list of information borrowers in their SBA approved Description of Respondents: collection packages requiring clearance geographic service areas. By offering Microloan program borrowers who by the Office of Management and financing and assistance to these received microloans 2010–2019. Budget (OMB) in compliance with businesses, the Microloan Program aims Estimated Number of Respondents: Public Law 104–13, the Paperwork to support job creation and retention for 24. Reduction Act of 1995, effective October small businesses by providing access to Frequency of Response: Once per 1, 1995. This notice includes revisions financial capital unavailable through request. of OMB-approved information conventional channels. Estimated Annual Responses: 24. collections. The SBA is conducting an evaluation Estimated Average Minutes per SSA is soliciting comments on the to examine how the Microloan Program Response: 20. accuracy of the agency’s burden activities of lending and technical Estimated Annual Hour Burden: 8. estimate; the need for the information; assistance improve revenue, job its practical utility; ways to enhance its creation, and survival for businesses Lender Web Survey quality, utility, and clarity; and ways to that participate in the program. The Description of Respondents: minimize burden on respondents, evaluation also seeks to describe the Microloan program lenders who including the use of automated population of borrowers, their business participated in the program 2010–2019. collection techniques or other forms of characteristics and their experiences Estimated Number of Respondents: information technology. Mail, email, or with the program. The lender 150. fax your comments and characteristics, and the training and Frequency of Response: Once per recommendations on the information technical assistance provided to request. collection(s) to the OMB Desk Officer borrowers will also be described. The Estimated Annual Responses: 150. and SSA Reports Clearance Officer at results of the evaluation will be used to Estimated Average Minutes per the following addresses or fax numbers. develop recommendations to improve Response: 15. (OMB), Office of Management and the program. The recommendations will Estimated Annual Hour Burden: 38. Budget, Attn: Desk Officer for SSA, focus on improving access to financing, Fax: 202–395–6974, Email address: improving technical assistance and Lender Telephone Interview [email protected]. training, and improving other factors Description of Respondents: (SSA), Social Security Administration, that promote small business growth. Microloan program lenders who OLCA, Attn: Reports Clearance The SBA proposes the use of four data participated in the program 2010–2019. Director, 3100 West High Rise, 6401 collection instruments: (1) Borrower Estimated Number of Respondents: Security Blvd., Baltimore, MD 21235, Web survey, (2) borrower semi- 24. Fax: 410–966–2830, Email address: structured telephone interview, (3) Frequency of Response: Once per [email protected]. lender web survey, (4) lender semi- request. Or you may submit your comments structured telephone interview. The Estimated Annual Responses: 24. online through www.regulations.gov, borrower survey will cover the topics of Estimated Average Minutes per referencing Docket ID Number [SSA– (1) training and technical assistance Response: 20. 2020–0051]. received; (2) program satisfaction and Estimated Annual Hour Burden: 8. SSA submitted the information ratings of the program’s contribution to Solicitation of Public Comments: The collections below to OMB for clearance. the business growth; (3) how the SBA requests comments on (a) whether Your comments regarding these Microloan program experiences the collection of information is information collections would be most compare with other programs; and (4) necessary for the agency to properly useful if OMB and SSA receive them 30 suggestions for the program perform its functions; (b) whether the days from the date of this publication. improvements. The interviews with burden estimates are accurate; (c) To be sure we consider your comments, lenders will discuss (1) frequency and whether there are ways to minimize the we must receive them no later than purpose of contacts with borrowers; (2) burden, including through the use of October 26, 2020. Individuals can obtain the most and the least effective types of automated techniques or other forms of copies of these OMB clearance packages training and technical assistance; (3) information technology; and (d) whether by writing to OR.Reports.Clearance@ how the Microloan program experiences there are ways to enhance the quality, ssa.gov. compare with other programs; and (4) utility, and clarity of the information 1. Government Pension suggestions for the program collected. Comments submitted in Questionnaire—20 CFR 404.408a— improvements. response to this notice will be 0960–0160. The basic Social Security Summary of Proposed Information summarized and/or included in the benefits application (OMB No. 0960– Collection request for OMB approval of this 0618) contains a lead question asking if information collection; they also will the applicants are qualified (or will Borrower Web Survey become a matter of public record. qualify) to receive a government Description of Respondents: pension. If the respondent is qualified, Microloan program borrowers who Curtis Rich, or will qualify, to receive a government received microloans 2010–2019. Management Analyst. pension, the applicant completes Form Estimated Number of Respondents: [FR Doc. 2020–21132 Filed 9–24–20; 8:45 am] SSA–3885 either on paper or through a 865. BILLING CODE 8026–03–P personal interview with an SSA claims

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specialist. If the applicants are not Form SSA–3885 to report information respond using this questionnaire, SSA entitled to receive a government about their government pensions before offsets their entire benefit amount. The pension at the time they apply for Social the pensions begin. SSA uses the respondents are applicants or recipients Security benefits, SSA requires them to information to: (1) determine whether of spousal benefits who are eligible for provide the government pension the Government Pension Offset or already receiving a Government information as beneficiaries when they provision applies; (2) identify pension. become eligible to receive their exceptions as stated in 20 CFR 404.408a; Type of Request: Revision of an OMB- pensions. Regardless of the timing, at and (3) determine the benefit reduction some point the applicants or amount and effective date. If the approved information collection. beneficiaries must complete and sign applicants and beneficiaries do not

Average Average Estimated total theoretical Average Total annual Modality of Number of Frequency of burden per annual burden hourly cost wait time in opportunity cost completion respondents response response (hours) amount field office (dollars) *** (minutes) (dollars) * (minutes) **

SSA–3885 ...... 6,495 1 13 1,407 *$25.72 **24 ***$103,009 * We based this figure on average U.S. worker’s hourly wages, as reported by Bureau of Labor Statistics data (https://www.bls.gov/oes/current/ oes_nat.htm). ** We based this figure on the average FY 2020 wait times for field offices, based on SSA’s current management information data. *** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rather, these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to respondents to complete the application.

2. RS/DI Quality Review Case regarding problem areas in the Telephone Contact). To help the Analysis: Sampled Number Holder; Retirement Survivors Insurance (RSI) beneficiary prepare for the interview, Auxiliaries/Survivors; Parent; and and Disability Insurance (DI) programs. we include three forms with each Stewardship Annual Earnings Test— We also use the information to measure notice: (1) SSA–85 (Information Needed 0960–0189. Section 205(a) of the Social the accuracy rate for newly adjudicated to Review Your Social Security Claim) Security Act (Act) authorizes the RSI or DI cases. SSA uses Form SSA– lists the information the beneficiary Commissioner of SSA to conduct the 4659 to evaluate the effectiveness of the needs to gather for the interview; (2) quality review process, which entails annual earnings test, and to use the SSA–2935 (Authorization to the Social collecting information related to the results in developing ongoing Security Administration to Obtain accuracy of payments made under the improvements in the process. About Personal Information) verifies the Old-Age, Survivors, and Disability 25% of respondents have in-person beneficiary’s correct payment amount, if Insurance Program (OASDI). Sections reviews and receive one of the following 228(a)(3), 1614(a)(1)(B), and 1836(2) of appointment letters: (1) SSA–L8550–U3 necessary; and (3) SSA–8552 (Interview the Act require a determination of the (Appointment Letter—Sample Confirmation) confirms or reschedules citizenship or alien status of the Individual); (2) SSA–L8551–U3 the interview if necessary. The beneficiary; this is only one item that (Appointment Letter—Sample Family); respondents are a statistically valid we might question as part of the Annual or (3) the SSA–L8552–U3 (Appointment sample of all OASDI beneficiaries in Quality review. SSA uses Forms SSA– Letter—Rep Payee). About 75% of current pay status or their representative 2930, SSA–2931, and SSA–2935 to respondents receive a notice for a payees. establish a national payment accuracy telephone review using the SSA–L8553– Type of Request: Revision of an OMB- rate for all cases in payment status, and U3 (Beneficiary Telephone Contact) or approved information collection. to serve as a source of information the SSA–L8554–U3 (Rep Payee

Average Average Estimated total theoretical Average wait Total annual Modality of Number of Frequency of burden per annual burden hourly cost time in field opportunity completion respondents response response (hours) amount office cost (minutes) (dollars) * (minutes) ** (dollars) ***

SSA–2930 ...... 1,500 1 30 750 *18.23 **24 ***24,611 SSA–2931 ...... 850 1 30 425 *18.23 **24 ***13,946 SSA–4659 ...... 325 1 10 54 *18.23 **24 ***3,354 SSA–L8550–U3 ...... 385 1 5 32 *18.23 **24 ***3,390 SSA–L8551–U3 ...... 95 1 5 8 *18.23 **24 ***839 SSA–L8552–U3 ...... 35 1 5 3 *18.23 **24 ***310 SSA–L8553–U3 ...... 4,970 1 5 414 *18.23 **24 ***43,788 SSA–L8554–U3 ...... 705 1 5 59 *18.23 **24 ***6,217 SSA–8552 ...... 2,350 1 5 196 *18.23 **24 ***20,709 SSA–85 ...... 3,850 1 5 321 *18.23 **24 ***33,926 SSA–2935 ...... 2,350 1 5 196 *18.23 **24 ***20,709 SSA–8510 (also saved under OMB No. 0960–0707) .... 800 1 5 67 * 18.23 ** 24 *** 7,055

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Totals ...... 18,215 ...... 2,525 ...... *** 178,854 * We based this figure on averaging both the average DI payments based on SSA’s current FY 2020 data (https://www.ssa.gov/legislation/ 2020Fact%20Sheet.pdf), and the average U.S. worker’s hourly wages, as reported by Bureau of Labor Statistics data (https://www.bls.gov/oes/ current/oes_nat.htm). ** We based this figure on the average FY 2020 wait times for field offices, based on SSA’s current management information data. *** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rather, these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to respondents to complete the application.

3. Application for Benefits under a Agreements) between the United States States. The respondents are individuals U.S. International Social Security and foreign countries. SSA collects applying for Old Age Survivors and Agreement—20 CFR 404.1925—0960– information using Form SSA–2490–BK Disability Insurance (OASDI) benefits 0448. Section 233(a) of the Social to determine entitlement to Social from the United States, or from a Security Act (Act) authorizes the Security benefits from the United States, Totalization Agreement country. President to enter into international or from a country that enters into a Type of Request: Revision of an OMB- Social Security agreements (Totalization Totalization Agreement with the United approved information collection.

SSA–2490–BK (MCS) ...... 16,195 1 30 8,098 *10.73 **24 ***156,401 SSA–2490–BK (Paper) ...... 2,120 1 30 1,060 *10.73 **24 ***20,473

Totals ...... 18,315 ...... 9,158 ...... *** 176,874 * We based this figure on average DI payments based on SSA’s current FY 2020 data (https://www.ssa.gov/legislation/ 2020Fact%20Sheet.pdf). ** We based this figure on the average FY 2020 wait times for field offices, based on SSA’s current management information data. *** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rather, these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to respondents to complete the application.

4. Employee Identification credit the earnings to the correct employers involved in erroneous wage Statement—20 CFR 404.702—0960– individual and SSN. We send SSA–4156 reporting for an employee. 0473. When two or more individuals to the employer to: (1) Identify the Type of Request: Revision of an OMB- report earnings under the same Social employees involved; (2) resolve the approved information collection. Security Number (SSN), SSA collects discrepancy; and (3) credit the earnings information on Form SSA–4156 to to the correct SSN. The respondents are

SSA–4156 ...... 3,600 1 10 600 *25.72 **24 ***52,469 * We based this figure on average U.S. worker’s hourly wages, as reported by Bureau of Labor Statistics data (https://www.bls.gov/oes/current/ oes_nat.htm). ** We based this figure on the average FY 2020 wait times for field offices, based on SSA’s current management information data. *** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rather, these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to respondents to complete the application.

5. SSI Notice of Interim Assistance needs while an SSI claim was pending agency for funds paid in advance prior Reimbursement (IAR)—0960–0546. or SSI payments were suspended or to SSA’s determination on the Section 1631(g) of the Act authorizes terminated. The State or local agency individual’s claim. The authorization SSA to reimburse an IAR agency from needs an IAR agreement with SSA to represents the individual’s intent to file an individual’s retroactive participate in the IAR program. The for SSI, if they did not file an Supplemental Security Income (SSI) individual receiving the IAR payment application before SSA received the payment for assistance the IAR agency signs an authorization form with an IAR authorization. Agencies who wish to gave the individual for meeting basic agency to allow SSA to repay the IAR enter into an IAR agreement with SSA

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need to meet the following (f) inform SSA of any deceased regarding payment amounts and appeal requirements: claimants who participate in the IAR rights. • Reporting Requirements—each IAR program; • Periodic Review of Agency agency agrees to: (g) review and sign an agreement with Accounting Process (k–m) – each IAR (a) notify SSA of receipt of an SSA. agency makes the IAR accounting authorization for initial claims or cases records of paid cases available for SSA • the agency is appealing; Recordkeeping Requirements (h & review and verification. SSA conducts (b) submit a copy of that authorization i)—each IAR agency agrees to retain all reviews either onsite or through the either through a manual or electronic notices, agreements, authorizations, and mail of the authorization forms, notices process; accounting forms for the period defined to the claimant, and accounting forms. (c) inform SSA of the amount of in the IAR agreement so SSA may verify Upon completion of the review, SSA reimbursement; transactions covered under the provides a written report of findings to (d) submit a written request for agreement. the IAR agency director. dispute resolution on a determination; • Third Party Disclosure The respondents are State IAR (e) notify SSA of interim assistance Requirements (j): Each participating IAR officers. paid (using the SSA–8125 or the SSA– agency agrees to send written notices Type of Request: Revision of an OMB- L8125–F6); from the IAR agency to the recipient approved information 123 collection.

Average Number of Average Estimated total theoretical Total annual Modality of respondents Frequency of Number of burden per annual burden hourly cost opportunity completion (States) response responses response (hours) amount cost (minutes) (dollars) * (dollars) **

(a) State notification of receipt of authorization (Elec- tronic Process)..... 11 6,973 76,703 1 1,278 * 19.58 ** 25,023 (b) State submission of copy of authorization (Manual Process) ...... 27 1,894 51,138 3 2,557 *19.58 **50,066 (c) State submission of amount of IA paid to recipients (using eIAR) ...... 38 1,346 51,148 8 6,820 * 19.58 ** 133,536 (d) State request for determination—dispute resolution ...... (1) 1 2 30 1 *19.58 **20 (e) State computation of reimbursement due form SSA using paper Form SSA-L8125–F6 ..... 38 1 38 30 4 *19.58 **78 (f) State notification to SSA of deceased claimant... 20 2 40 15 10 *19.58 **196 (g) State reviewing/ signing of IAR Agreement ...... 38 1 38 2 12 456 *19.58 **8,928 1 Average of about 2 States per year. 2 Hours.

(h) Maintenance of authorization forms 38 3,364 3 127,832 3 6,392 *21.09 **134,807 (i) Maintenance of accounting forms and notices ...... 38 1,346 51,148 3 2,557 * 21.09 ** 53,927 3 Includes both denied and approved SSI claims.

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(j) Written notice from State to recipient regarding amount of payment 38 2668 101,384 7 11,828 * 19.58 ** 231,592

(k) Retrieve and consolidate authorization and accounting forms...... 12 1 12 3 36 *21.09 **759 (l) Participate in periodic review ...... 12 1 12 16 192 * 21.09 ** 4,049 (m) Correct administrative and accounting discrepancies ...... 6 1 6 4 24 *21.09 **506

Total ...... 38 ...... 408,353 ...... 32,155 ...... ** 643,487 * We based this figure on average Social and Human Services Assistants (https://www.bls.gov/oes/current/oes211093.htm), and Information and Records Clerks (https://www.bls.gov/oes/current/oes434199.htm). ** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rather, these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to respondents to complete the application.

6. Appeal of Determination for Help individuals who are eligible for the Medicare Part D subsidy. The with Medicare Prescription Drug Plan program and who meet eligibility respondents are Medicare beneficiaries, Costs—0960–0695. Public Law 108–173, criteria for help with premium, or proper applicants acting on behalf of the Medicare Prescription Drug, deductible, and co-payment costs. SSA a Medicare beneficiary, who do not Improvement and Modernization Act of uses Form SSA–1021, Appeal of agree with the outcome of an SSA 2003 (MMA), established the Medicare Determination for Help With Medicare subsidy eligibility determination, and Part D program for voluntary Prescription Drug Plan Costs, to obtain are filing an appeal. prescription drug coverage for certain information from individuals who low-income individuals. The MMA appeal SSA’s decisions regarding Type of Request: Revision of an OMB- stipulates the provision of subsidies for eligibility or continuing eligibility for a approved information collection.

Average Average Estimated total theoretical Average Total annual Modality of Number of Frequency of burden per annual burden hourly cost wait time in opportunity completion respondents response response (hours) amount field office cost (minutes) (dollars) * (minutes) ** (dollars) ***

SSA–1021 (Paper version) ...... 2,872 1 10 479 *$46.28 0 ***$22,168 SSA–1021 (Intranet version: MAPS) .... 9,691 1 10 1,615 * 46.28 ** 24 *** 254,123

Totals ...... 12,563 ...... 2,094 ...... *** 276,291 * We based this figure on average U.S. worker’s hourly wages (https://www.bls.gov/oes/current/oes_nat.htm); State and local government worker’s salaries (https://www.bls.gov/oes/current/naics4_999300.htm); and attorney representative payee wages (https://www.bls.gov/oes/current/ oes231011.htm), as reported by Bureau of Labor Statistics data. ** We based this figure on the average FY 2020 wait times for field offices, based on SSA’s current management information data.

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*** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rather, these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to respondents to complete the application.

7. Request for Medical Treatment in authorized through a physician. Form SSA medical officer to determine an SSA Employee Health Facility: SSA–5072 is the employee’s personal whether the nurses can administer Patient Self-Administered or Staff physician’s order form. The information treatment safely and appropriately in Administered Care—0960–0772. SSA we collect on Form SSA–5072 gives the the SSA EHCs. Respondents are operates onsite Employee Health Clinics EHC nurses the guidance they need to physicians of SSA employees who need (EHC) in eight different States. These perform certain medical procedures and to have medical treatment in an SSA clinics provide health care for all SSA to administer prescription medications EHC. employees including treatments of such as allergy immunotherapy. In Type of Request: Revision of an OMB- personal medical conditions when addition, the information allows the approved information collection.

Average Number of Average Estimated total theoretical Total annual Modality of respondents Frequency of Number of burden per annual burden hourly cost opportunity completion (states) response responses response hours (hours) amount cost (minutes) (dollars) * (dollars) **

SSA–5072 ...... Annually ...... 25 1 25 5 2 *$96.85 **$194 SSA–5072 ...... Bi-Annually ...... 75 2 150 5 13 *96.85 **1,259

Totals ...... 100 ...... 15 ...... ** 1,453 * We based this figure on average physician’s hourly salary, as reported by Bureau of Labor Statistics data (https://www.bls.gov/oes/current/ oes291216.htm). ** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rather, these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to respondents to complete the application.

8. Medicare Income-Related Monthly The Internal Revenue Service transmits IRMAA. The respondents are Medicare Adjustment Amount—Life-Changing income tax return data to SSA for SSA Part B and prescription drug coverage Event Form—0960–0784. Federally- to determine the IRMAA. SSA uses the Retirement Insurance recipients and mandated reductions in the Federal Form SSA–44 to determine if a recipient enrollees with modified adjusted gross Medicare Part B and prescription drug qualifies for a reduction in the IRMAA. income over a high-income threshold coverage subsidies result in selected If affected Medicare recipients believe who experience one of eight significant Medicare recipients paying higher SSA should use more recent tax data life-changing events. premiums with income above a specific because of a life-changing event that threshold. The amount of the premium significantly reduces their income, they Type of Request: Revision of an OMB- subsidy reduction is an income-related can report these changes to SSA and ask approved information collection. monthly adjustment amount (IRMAA). for a new initial determination of their

Average Average Estimated total theoretical Average Total annual Modality of Number of Frequency of burden per annual burden hourly cost wait time in opportunity completion respondents esponse response (hours) amount field office cost (minutes) (dollars) * (minutes) ** (dollars) ***

Personal Interview (SSA field office) .. 178,840 1 30 89,420 * $25.72 ** 24 *** $4,139,788 SSA–44 ...... 76,645 1 45 57,484 *25.72 0 ***1,478,488

Totals ...... 255,485 ...... 146,904 ...... *** 5,618,276 * We based this figure on average U.S. worker’s hourly wages, as reported by Bureau of Labor Statistics data (https://www.bls.gov/oes/current/ oes_nat.htm). ** We based this figure on the average FY 2020 wait times for field offices, based on SSA’s current management information data. *** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rather, these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to respondents to complete the application.

Dated: September 22, 2020. SURFACE TRANSPORTATION BOARD under 49 CFR part 1152 subpart F— Naomi Sipple, Exempt Abandonments to abandon an [Docket No. AB 303 (Sub-No. 56X)] Reports Clearance Officer, Social Security approximately 0.30-mile rail line Administration. Wisconsin Central Ltd.—Abandonment between milepost 114.0 and milepost [FR Doc. 2020–21180 Filed 9–24–20; 8:45 am] Exemption—in Kaukauna, Outagamie 113.7, at Kaukauna, Outagamie County, BILLING CODE 4191–02–P County, Wis. Wisconsin Central Ltd. (WCL) has filed a verified notice of exemption

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Wis. (the Line).1 The Line traverses U.S. 1152.27(c)(2),3 and interim trail use/rail SURFACE TRANSPORTATION BOARD Postal Service Zip Code 54130. banking requests under 49 CFR 1152.29 WCL has certified that: (1) It has must be filed by October 5, 2020.4 Release of Waybill Data handled no local traffic over the Line for Petitions to reopen or requests for The Surface Transportation Board has at least two years; (2) there will be no public use conditions under 49 CFR received a request from N.C. State effect on overhead traffic (of which none 1152.28 must be filed by October 15, University (WB20–46—9/9/20) for exists); (3) no formal complaint filed by 2020, with the Surface Transportation permission to use select data from the a user of rail service (or by a state or Board, 395 E Street SW, Washington, DC Board’s 1990–2018 Unmasked Carload local government entity acting on behalf 20423–0001. Waybill Samples. A copy of this request of such user) regarding WCL’s cessation A copy of any petition filed with the may be obtained from the Board’s of service over the Line is either Board should be sent to WCL’s website under docket no. WB20–46. pending with the Surface representative, Thomas J. Healey, The waybill sample contains Transportation Board (Board) or with Fletcher & Sippel LLC, 29 North Wacker confidential railroad and shipper data; any U.S. District Court or has been Drive, Suite 800, Chicago, IL 60606. therefore, if any parties object to these decided in favor of complainant within If the verified notice contains false or requests, they should file their the past two years; and (4) the misleading information, the exemption objections with the Director of the requirements at 49 CFR 1105.7 and is void ab initio. Board’s Office of Economics within 14 1105.8 (notice of environmental and WCL has filed a combined calendar days of the date of this notice. historic report), 49 CFR 1105.12 environmental and historic report that The rules for release of waybill data are (newspaper publication), and 49 CFR addresses the potential effects, if any, of codified at 49 CFR 1244.9. 1152.50(d)(1) (notice to governmental the abandonment on the environment agencies) have been met. Contact: Alexander Dusenberry, (202) and historic resources. OEA will issue a 245–0319. Any employee of WCL adversely Draft Environmental Assessment (Draft affected by the abandonment shall be EA) by September 29, 2020. The Draft Aretha Laws-Byrum, protected under Oregon Short Line EA will be available to interested Clearance Clerk. Railroad—Abandonment Portion persons on the Board’s website, by Goshen Branch Between Firth & [FR Doc. 2020–21161 Filed 9–24–20; 8:45 am] writing to OEA, or by calling OEA at BILLING CODE 4915–01–P Ammon, in Bingham & Bonneville (202) 245–0305. Assistance for the Counties, Idaho, 360 I.C.C. 91 (1979). To hearing impaired is available through address whether this condition the Federal Relay Service at (800) 877– adequately protects affected employees, SUSQUEHANNA RIVER BASIN 8339. Comments on environmental and COMMISSION a petition for partial revocation under historic preservation matters must be 49 U.S.C. 10502(d) must be filed. filed within 15 days after the Draft EA Pursuant to 49 CFR 1152.50(d)(3), an Grandfathering (GF) Registration becomes available to the public. exemption will be effective 30 days after Notice publication of the notice in the Federal Environmental, historic preservation, public use, or interim trail use/rail AGENCY: Susquehanna River Basin Register. However, simultaneous with Commission. the notice, WCL filed a request to banking conditions will be imposed, ACTION: Notice. expedite the effective date. The Board where appropriate, in a subsequent decision. will establish the effective date of the SUMMARY: This notice lists exemption in a separate decision Pursuant to the provisions of 49 CFR 1152.29(e)(2), WCL shall file a notice of Grandfathering Registration for projects addressing WCL’s request. by the Susquehanna River Basin Petitions to stay that do not involve consummation with the Board to signify that it has exercised the authority Commission during the period set forth environmental issues,2 formal in DATES. expressions of intent to file an offer of granted and fully abandoned the Line. If DATES: August 1–31, 2020. financial assistance (OFA) under 49 CFR consummation has not been effected by WCL’s filing of a notice of ADDRESSES: Susquehanna River Basin 1 WCL states that the Line was part of a longer consummation by September 25, 2021, Commission, 4423 North Front Street, rail line between milepost 114.0 and milepost 112.9 and there are no legal or regulatory Harrisburg, PA 17110–1788. for which WCL obtained abandonment authority in barriers to consummation, the authority FOR FURTHER INFORMATION CONTACT: 2013. See Wis. Cent. Ltd.—Aban. Exemption—in to abandon will automatically expire. Kaukauna, Outagamie Cnty., Wis., AB 303 (Sub No. Jason E. Oyler, General Counsel and 40X) (Mar. 20, 2013). According to WCL, it sold the Board decisions and notices are Secretary to the Commission, telephone: segment of the longer rail line between milepost available at www.stb.gov. (717) 238–0423, ext. 1312; fax: (717) 113.7 and milepost 112.9 to the City of Kaukauna Decided: September 22, 2020. 238–2436; email: [email protected]. (City) through the Wisconsin Department of Transportation pursuant to a notice of interim trail By the Board, Allison C. Davis, Director, Regular mail inquiries May be sent to use or abandonment under the National Trails Office of Proceedings. the above address. System Act (Trails Act), and the abandonment Eden Besera, SUPPLEMENTARY INFORMATION: This authority for the Line (which was not included in the sale) subsequently lapsed. WCL states that, Clearance Clerk. notice lists GF Registration for projects, because the City now seeks to acquire the Line [FR Doc. 2020–21217 Filed 9–24–20; 8:45 am] described below, pursuant to 18 CFR pursuant to the Trails Act to connect existing trail BILLING CODE 4915–01–P 806, Subpart E for the time period systems, WCL once again seeks an abandonment specified above: exemption. 2 The Board will grant a stay if an informed 3 Persons interested in submitting an OFA must Grandfathering Registration Under 18 decision on environmental issues (whether raised first file a formal expression of intent to file an CFR Part 806, Subpart E by a party or by the Board’s Office of Environmental offer, indicating the type of financial assistance they Analysis (OEA) in its independent investigation) wish to provide (i.e., subsidy or purchase) and 1. Borough of Everett Area Municipal cannot be made before the exemption’s effective demonstrating that they are preliminarily Authority—Public Water Supply date. See Exemption of Out-of-Serv. Rail Lines, 5 financially responsible. See 49 CFR 1152.27(c)(2)(i). I.C.C.2d 377 (1989). Given the request for an 4 Filing fees for OFAs and trail use requests can System, GF Certificate No. GF– expedited effective date, any request for a stay be found at 49 CFR 1002.2(f)(25) and (27), 202008107, Everett Borough and West should be filed as soon as possible. respectively. Providence Township, Bedford County,

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Pa.; Tatesville Tunnels, Well 1, and of Up to 7.5000 mgd; Approval Date: Consumptive Use of Up to 4.0000 mgd; Well 2; Issue Date: August 12, 2020. August 3, 2020. Approval Date: August 19, 2020. 2. Carlisle Country Club, GF 2. XTO Energy, Inc.; Pad ID: Tome 15. Chief Oil & Gas, LLC.; Pad ID: Certificate No. GF–202008108, 8522H; ABR–20100556.R2; Moreland Bedford; ABR–201008139.R2; Elkland Middlesex Township, Cumberland Township, Lycoming County, Pa.; Township, Sullivan County, Pa.; County, Pa.; Letort Spring Run and Consumptive Use of Up to 4.0000 mgd; Consumptive Use of Up to 7.5000 mgd; consumptive use; Issue Date: August 12, Approval Date: August 4, 2020. Approval Date: August 21, 2020. 2020. 3. XTO Energy, Inc.; Pad ID: Moser 16. Chief Oil & Gas, LLC.; Pad ID: 3. Kerry, Inc.—Kerry Bio-Science, GF 8521H; ABR–20100641.R2; Franklin Hottenstein; ABR–201008148.R2; Forks Certificate No. GF–202008109, Town of Township, Lycoming County, Pa.; Township, Sullivan County, Pa.; Norwich, Chenango County, N.Y.; Well Consumptive Use of Up to 4.0000 mgd; Consumptive Use of Up to 7.5000 mgd; 1, Well 2, and consumptive use; Issue Approval Date: August 4, 2020. Approval Date: August 26, 2020. Date: August 19, 2020. 4. BKV Operating, LLC; Pad ID: 17. Chief Oil & Gas, LLC.; Pad ID: 4. Town of Owego—Water District #4, Sickler 5H; ABR–20100679.R2; Benspond; ABR–201008146.R2; Elkland GF Certificate No. GF–202008110, Town Washington Township, Wyoming Township, Sullivan County, Pa.; of Owego, Tioga County, N.Y.; Well 1, County, Pa.; Consumptive Use of Up to Consumptive Use of Up to 7.5000 mgd; Well 2, and Well 3; Issue Date: August 5.0000 mgd; Approval Date: August 6, Approval Date: August 26, 2020. 27, 2020. 2020. 18. Chesapeake Appalachia, L.L.C.; Pad ID: Fremar; ABR–201008147.R2; Authority: Pub. L. 91–575, 84 Stat. 1509 et 5. Chesapeake Appalachia, L.L.C.; Pad seq., 18 CFR parts 806 and 808. ID: Lattimer; ABR–201008038.R2; Fox Township, Sullivan County, Pa.; Litchfield Township, Bradford County, Consumptive Use of Up to 7.5000 mgd; Dated: September 22, 2020. Pa.; Consumptive Use of Up to 7.50000 Approval Date: August 26, 2020. Jason E. Oyler, mgd; Approval Date: August 6, 2020. 19. Chesapeake Appalachia, L.L.C.; General Counsel and Secretary to the 6. Inflection Energy (PA), LLC.; Pad Pad ID: Roundtop; ABR–201008067.R2; Commission. ID: Strouse Well Pad; ABR– Colley Township, Sullivan County, Pa.; [FR Doc. 2020–21191 Filed 9–24–20; 8:45 am] 201505002.R1; Hepburn Township, Consumptive Use of Up to 7.5000 mgd; BILLING CODE 7040–01–P Lycoming County, Pa.; Consumptive Approval Date: August 26, 2020. Use of Up to 4.0000 mgd; Approval 20. Repsol Oil & Gas USA, LLC; Pad Date: August 6, 2020. ID: ROY (03 046) B; ABR–20100629.R2; SUSQUEHANNA RIVER BASIN 7. XTO Energy, Inc.; Pad ID: Brown Wells Township, Bradford County, Pa.; COMMISSION 8519H; ABR–20100604.R2; Moreland Consumptive Use of Up to 6.0000 mgd; Township, Lycoming County, Pa.; Approval Date: August 26, 2020. Projects Approved for Consumptive Consumptive Use of Up to 4.0000 mgd; 21. Repsol Oil & Gas USA, LLC; Pad Uses of Water Approval Date: August 6, 2020. ID: LYON (01 078) S; ABR– AGENCY: Susquehanna River Basin 8. Chesapeake Appalachia, L.L.C.; Pad 20100696.R2; Troy Township, Bradford Commission. ID: Dave; ABR–201008107.R2; Albany County, Pa.; Consumptive Use of Up to Township, Bradford County, Pa.; 6.0000 mgd; Approval Date: August 26, ACTION: Notice. Consumptive Use of Up to 7.5000 mgd; 2020. SUMMARY: This notice lists the projects Approval Date: August 18, 2020. 22. Tilden Marcellus, LLC; Pad ID: approved by rule by the Susquehanna 9. Tilden Marcellus, LLC; Pad ID: Pierson 810; ABR–20100633.R2; Gaines River Basin Commission during the Simonetti 817 (rev); ABR–20100545.R2; Township, Tioga County, Pa.; period set forth in ‘‘DATES.’’ Gaines Township, Tioga County, Pa.; Consumptive Use of Up to 4.9900 mgd; DATES: August 1–31, 2020. Consumptive Use of Up to 4.9900 mgd; Approval Date: August 26, 2020. Approval Date: August 18, 2020. 23. Range Resources—Appalachia, ADDRESSES: Susquehanna River Basin 10. Tilden Marcellus, LLC; Pad ID: LLC; Pad ID: Shohocken Hunt Club Unit Commission, 4423 North Front Street, Coon Hollow 904; ABR–20100560.R2; #1H—#6H; ABR–20100646.R2; Harrisburg, PA 17110–1788. West Branch Township, Potter County, Cummings Township, Lycoming FOR FURTHER INFORMATION CONTACT: Pa.; Consumptive Use of Up to 4.9900 County, Pa.; Consumptive Use of Up to Jason E. Oyler, General Counsel and mgd; Approval Date: August 18, 2020. 2.0000 mgd; Approval Date: August 26, Secretary to the Commission, telephone: 11. Range Resources—Appalachia, 2020. (717) 238–0423, ext. 1312; fax: (717) LLC; Pad ID: Harman, Lewis Unit #1H; 24. Repsol Oil & Gas USA, LLC; Pad 238–2436; email: [email protected]. ABR–20100554.R2; Moreland ID: ROY (03 040) B; ABR–20100650.R2; Regular mail inquiries May be sent to Township, Lycoming County, Pa.; Wells Township, Bradford County, Pa.; the above address. Consumptive Use of Up to 0.1000 mgd; Consumptive Use of Up to 6.0000 mgd; SUPPLEMENTARY INFORMATION: This Approval Date: August 18, 2020. Approval Date: August 28, 2020. notice lists the projects, described 12. ARD Operating, LLC; Pad ID: COP 25. Repsol Oil & Gas USA, LLC; Pad below, receiving approval for the Tr 728 Pad A; ABR–20100631.R2; ID: SCHUCKER (03 006) A; ABR– consumptive use of water pursuant to Watson Township, Lycoming County, 20100654.R2; Columbia Township, the Commission’s approval by rule Pa.; Consumptive Use of Up to 4.0000 Bradford County, Pa.; Consumptive Use process set forth in 18 CFR 806.22 mgd; Approval Date: August 18, 2020. of Up to 6.0000 mgd; Approval Date: (f)(13) and 18 CFR 806.22 (f) for the time 13. ARD Operating, LLC; Pad ID: August 28, 2020. period specified above: David C Duncan Pad A; ABR– 26. Repsol Oil & Gas USA, LLC; Pad 20100635.R2; Cascade Township, ID: FEUSNER (03 053) J; ABR– Water Source Approval—Issued Under Lycoming County, Pa.; Consumptive 201006100.R2; Columbia Township, 18 CFR 806.22(f) Use of Up to 4.0000 mgd; Approval Bradford County, Pa.; Consumptive Use 1. Chesapeake Appalachia, L.L.C.; Pad Date: August 18, 2020. of Up to 6.0000 mgd; Approval Date: ID: Slumber Valley; ABR– 14. ARD Operating, LLC; Pad ID: COP August 28, 2020. 201008015.R2; Meshoppen Township, Tr 289 C; ABR–20100636.R2; McHenry 27. ARD Operating, LLC.; Pad ID: Wyoming County, Pa.; Consumptive Use Township, Lycoming County, Pa.; Larry’s Creek F&G Pad D; ABR–

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20100684.R2; Cummings Township, 6-month renewal deadline; and (11) use mitigation method (Docket No. Lycoming County, Pa.; Consumptive election of officers for FY2021. 20000204). Use of Up to 4.0000 mgd; Approval 11. Project Sponsor and Facility: Project Applications Approved Date: August 28, 2020. Montgomery Water Authority, Clinton 28. EXCO Resources (PA), LLC; Pad 1. Project Sponsor and Facility: Township, Lycoming County, Pa. ID: Confer (Pad 32); ABR–20100699.R2; Bloomfield Borough Water Authority, Application for renewal of groundwater Burnside Township, Centre County, Pa.; Centre Township, Perry County, Pa. withdrawal of up to 0.267 mgd (30-day Consumptive Use of Up to 3.0000 mgd; Application for renewal of groundwater average) from Well 1 (Docket No. Approval Date: August 28, 2020. withdrawal of up to 0.056 mgd (30-day 19881102). Authority: Pub. L. 91–575, 84 Stat. 1509 average) from Well 1 (Docket No. 12. Project Sponsor: Pixelle Specialty et seq., 18 CFR parts 806, 807, and 808. 19901103). Solutions LLC. Project Facility: Spring 2. Project Sponsor: Byler Golf Grove Mill (Codorus Creek and Dated: September 22, 2020. Management, Inc. Project Facility: Iron Unnamed Tributary to Codorus Creek), Jason E. Oyler, Valley Golf Club, Cornwall Borough, Spring Grove Borough, Jackson General Counsel and Secretary to the Lebanon County, Pa. Modification to Township, and North Codorus Commission. change consumptive use mitigation Township, York County, Pa. [FR Doc. 2020–21189 Filed 9–24–20; 8:45 am] method (Docket No. 19981206). Applications for existing surface water BILLING CODE 7040–01–P 3. Project Sponsor and Facility: Cabot withdrawals (peak day) of up to 19.800 Oil & Gas Corporation, Eaton Township, mgd (New Filter Plant Intake), 6.000 Wyoming County, Pa. Application for mgd (Old Filter Plant Intake), and 0.750 SUSQUEHANNA RIVER BASIN renewal of groundwater withdrawal of mgd (Kessler Pond Intake); consumptive COMMISSION up to 0.864 mgd (30-day average) from use of up to 3.650 mgd (peak day); and Actions Taken at September 18, 2020, the Hatchery Wellfield (Wells 1, 2, and existing groundwater withdrawals (30- Meeting 3) (Docket No. 20160610). day average) of up to 0.039 mgd (Well 4. Project Sponsor and Facility: Cabot 1) and 0.021 mgd (Well 2). Proposed AGENCY: Susquehanna River Basin Oil & Gas Corporation (Susquehanna action to include combining all existing Commission River), Great Bend Township, and new approvals into a single ACTION: Notice. Susquehanna County, Pa. Application approval document with a single for renewal of surface water withdrawal approval term. SUMMARY: As part of its regular business of up to 2.000 mgd (peak day) (Docket 13. Project Sponsor and Facility: meeting held on September 18, 2020, No. 20160902). Repsol Oil & Gas USA, LLC from Harrisburg, Pennsylvania, the 5. Project Sponsor and Facility: (Susquehanna River), Sheshequin Commission approved the applications Chesapeake Appalachia, L.L.C. Township, Bradford County, Pa. of certain water resources projects, and (Susquehanna River), Wilmot Application for renewal of surface water took additional actions, as set forth in Township, Bradford County, Pa. withdrawal of up to 1.500 mgd (peak the Supplementary Information below. Application for surface water day) (Docket No. 20160908). DATES: September 18, 2020. withdrawal of up to 3.000 mgd (peak 14. Project Sponsor and Facility: day). ADDRESSES: Susquehanna River Basin S.T.L. Resources, LLC (West Branch 6. Project Sponsor and Facility: Commission, 4423 N. Front Street, Susquehanna River), Grugan Township, Chesapeake Appalachia, L.L.C. Harrisburg, PA 17110–1788. Clinton County, Pa. Application for (Susquehanna River), Windham surface water withdrawal of up to 3.450 FOR FURTHER INFORMATION CONTACT: Township, Wyoming County, Pa. mgd (peak day). Jason E. Oyler, General Counsel and Application for surface water 15. Project Sponsor and Facility: Secretary, telephone: (717) 238–0423, withdrawal of up to 3.000 mgd (peak Shippensburg Borough Authority, ext. 1312, fax: (717) 238–2436; email: day). Southampton Township, Cumberland [email protected]. Regular mail inquiries 7. Project Sponsor and Facility: County, Pa. Application for renewal of may be sent to the above address. See Chesapeake Appalachia, L.L.C. groundwater withdrawal of up to 1.280 also Commission website at (Wyalusing Creek), Wyalusing mgd (30-day average) from Well 1 www.srbc.net. Township, Bradford County, Pa. (Docket No. 19900713). SUPPLEMENTARY INFORMATION: In Application for surface water Commission Initiated Project Approval addition to the actions taken on projects withdrawal of up to 3.000 mgd (peak Modifications identified in the summary above and the day). listings below, the following items were 8. Project Sponsor and Facility: Green 16. Project Sponsor and Facility: The also presented or acted upon at the Leaf Water LLC (Lycoming Creek), Municipal Authority of the Borough of business meeting: (1) tabled action on a Lewis Township, Lycoming County, Pa. Berlin, Allegheny Township, Somerset general permit; (2) rescission of Policy Application for renewal of surface water County, Pa. Conforming the No. 98–03; (3) ratification of grants and withdrawal of up to 0.900 mgd (peak grandfathering amount with the agreements; (4) modifications to the day) (Docket No. 20160601). forthcoming determination for a Commission expense budget for fiscal 9. Project Sponsor and Facility: Lake groundwater withdrawal up to 0.030 year 2021; (5) adoption of the proposed Meade Municipal Authority, Reading mgd (30-day average) from Well 6 expense budget for fiscal year 2022; (6) Township, Adams County, Pa. (Docket No. 19980702). adoption of resolution regarding Application for groundwater 17. Project Sponsor and Facility: Iron member allocation; (7) adoption of an withdrawal of up to 0.252 mgd (30-day Masters Country Club, Bloomfield updated Water Resources Program; (8) average) from Well 3. Township, Bedford County, Pa. adoption of amendments to the 10. Project Sponsor and Facility: Conforming the grandfathering amount Comprehensive Plan; (9) approval of Meadia Heights Golf Club LLC, West with the forthcoming determination for two emergency certificate extensions; Lampeter Township, Lancaster County, groundwater withdrawals up to 0.051 (10) approval of a request for waiver of Pa. Modification to change consumptive mgd (30-day average) from Well 10 and

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up to 0.061 mgd (30-day average) from Evaluation, tel.: 202–622–2490; or the DEPARTMENT OF THE TREASURY Well 14 (Docket No. 20020813). Assistant Director for Licensing, tel.: 18. Project Sponsor and Facility: 202–622–2480. Office of Foreign Assets Control Sinking Valley Country Club, Tyrone SUPPLEMENTARY INFORMATION: Township, Blair County, Pa. Notice of OFAC Sanctions Actions Conforming the grandfathering amount Electronic Availability AGENCY: Office of Foreign Assets with the forthcoming determination for Control, Treasury. The SDN List and additional groundwater withdrawals up to 0.081 ACTION: Notice. mgd (30-day average) from the 14th information concerning OFAC sanctions Fairway Well and up to 0.099 mgd (30- programs are available on OFAC’s SUMMARY: The U.S. Department of the day average) from the 8th Tee Well website (www.treas.gov/ofac). Treasury’s Office of Foreign Assets (Docket No. 20020811). Notice of OFAC Actions Control (OFAC) is publishing the names of one or more persons that have been Project Application Tabled The Secretary of State, in consultation placed on OFAC’s Specially Designated 19. Project Sponsor: Togg Mountain, with the Secretary of the Treasury and Nationals and Blocked Persons List LLC. Project Facility: Toggenburg heads of other relevant agencies, has (SDN List) based on OFAC’s Mountain Winter Sports Center (West selected certain sanctions to be imposed determination that one or more Branch Tioughnioga Creek), Town of upon the persons listed below, pursuant applicable legal criteria were satisfied. Fabius, Onondaga County, N.Y. to which the property and interests in All property and interests in property Modification to increase consumptive property subject to U.S. jurisdiction of subject to U.S. jurisdiction of these use (peak day) by an additional 0.505 the persons listed below are blocked. persons are blocked, and U.S. persons mgd, for a total consumptive use of up The Secretary of State’s determination is are generally prohibited from engaging to 0.990 mgd, and increase surface water effective September 21, 2020. in transactions with them. withdrawal (peak day) by an additional DATES: SUPPLEMENTARY INFORMATION Individuals See 2.300 mgd, for a total surface water section for date sanctions become withdrawal of up to 4.500 mgd (Docket 1. GHADIRIAN, Hamid Reza, Iran; DOB 23 effective. No. 20180911). Sep 1978; POB Aran o Bigdol, Iran; FOR FURTHER INFORMATION CONTACT: nationality Iran; Additional Sanctions Authority: Pub.L. 91–575, 84 Stat. 1509 et OFAC: Associate Director for Global seq., 18 CFR parts 806, 807, and 808. Information—Subject to Secondary Sanctions; Gender Male; National ID No. Targeting, tel.: 202–622–2420; Assistant Jason E. Oyler, 6199152344 (Iran) (individual) [NPWMD] Director for Sanctions Compliance & General Counsel and Secretary to the [IFSR]. Evaluation, tel.: 202–622–2490; or the Commission. Designated pursuant to section 1(a)(ii) of Assistant Director for Licensing, tel.: [FR Doc. 2020–21190 Filed 9–24–20; 8:45 am] Executive Order 13382 of June 28, 2005, 70 202–622–2480. BILLING CODE 7040–01–P FR 38567, 3 CFR, 2006 Comp., p. 170 (E.O. SUPPLEMENTARY INFORMATION: 13382) for having engaged, or attempted to engage, in activities or transactions that have Electronic Availability materially contributed to, or pose a risk of DEPARTMENT OF THE TREASURY The SDN List and additional materially contributing to, the proliferation of information concerning OFAC sanctions weapons of mass destruction or their means Office of Foreign Assets Control programs are available on OFAC’s of delivery (including missiles capable of website (www.treas.gov/ofac). delivering such weapons), including any Notice of OFAC Sanctions Actions efforts to manufacture, acquire, possess, Notice of OFAC Actions AGENCY: Office of Foreign Assets develop, transport, transfer or use such items, On September 3, 2020, OFAC Control, Treasury. by an person or foreign county of proliferation concern. determined that the property and ACTION: Notice. 2. SHIVA’I, Ahmad Asghari (a.k.a. interests in property subject to U.S. SHIVAEI, Ahmed Asghari), Iran; DOB 03 Mar jurisdiction of the following person are SUMMARY: The U.S. Department of the 1973; POB Tehran, Iran; nationality Iran; blocked under the relevant sanctions Treasury’s Office of Foreign Assets Additional Sanctions Information—Subject authorities listed below. Control (OFAC) is publishing the names to Secondary Sanctions; Gender Male; Entities of one or more persons that have been National ID No. 55690718 (Iran) (individual) placed on OFAC’s Specially Designated [NPWMD] [IFSR]. 1. ZAGROS PETROCHEMICAL (a.k.a. Nationals and Blocked Persons List Designated pursuant to section 1(a)(ii) of ‘‘ZPC’’), North Sheikh Bahaie Avenue Sheida (SDN List) based on the determination E.O. 13382 for having engaged, or attempted Alley, Khoddami Street, Vanak Square, by the Secretary of State, in consultation to engage, in activities or transactions that Tehran, Iran; Additional Sanctions with the heads of relevant agencies, that have materially contributed to, or pose a risk Information—Subject to Secondary one or more applicable legal criteria of materially contributing to, the proliferation Sanctions; Chamber of Commerce Number were satisfied. All property and of weapons of mass destruction or their 2869 (Iran); Registration Number 148344 interests in property subject to U.S. means of delivery (including missiles capable (Iran) [IRAN–EO13846] (Linked To: TRILIANCE PETROCHEMICAL CO. LTD.). jurisdiction of these persons are of delivering such weapons), including any efforts to manufacture, acquire, possess, Designated pursuant to section 1(a)(iii)(B) blocked, and U.S. persons are generally of Executive Order 13846 of August 6, 2018, prohibited from engaging in transactions develop, transport, transfer or use such items, by an person or foreign county of 83 FR 38939, 3 CFR, 2019 Comp., p. 854 with them. proliferation concern. (E.O. 13846), for, on or after November 5, DATES: See SUPPLEMENTARY INFORMATION 2018, having materially assisted, sponsored, section for applicable date(s). Dated: September 21, 2020. or provided financial, material, or Andrea M. Gacki, technological support for, or goods or FOR FURTHER INFORMATION CONTACT: services to or in support of, TRILIANCE Director, Office of Foreign Assets Control. OFAC: Associate Director for Global PETROCHEMICAL CO. LTD. Targeting, tel.: 202–622–2420; Assistant [FR Doc. 2020–21153 Filed 9–24–20; 8:45 am] 2. TRIO ENERGY DMCC, Jumeirah Lake Director for Sanctions Compliance & BILLING CODE 4810–AL–P Towers Unit 2903, SABA 1 Tower, Plot JLT–

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PH1–E3A, Dubai, United Arab Emirates; DEPARTMENT OF THE TREASURY National ID No. 0059243228 (Iran) License DMCC564257 (United Arab Emirates) (individual) [NPWMD] [IFSR] (Linked To: [IRAN–EO13846] (Linked To: TRILIANCE Office of Foreign Assets Control AEROSPACE INDUSTRIES PETROCHEMICAL CO. LTD.). ORGANIZATION). Designated pursuant to section 1(a)(iii)(B) Notice of OFAC Sanctions Actions Designated pursuant to section 1(a)(iv) of E.O. 13382 for acting or purporting to act for of E.O. 13846, for, on or after November 5, AGENCY: Office of Foreign Assets or on behalf of, directly or indirectly, 2018, having materially assisted, sponsored, Control, Treasury. AEROSPACE INDUSTRIES or provided financial, material, or ACTION: Notice. ORGANIZATION, a person whose property technological support for, or goods or and interests in property are blocked services to or in support of, TRILIANCE SUMMARY: The Department of the pursuant to E.O. 13382. PETROCHEMICAL CO. LTD. Treasury’s Office of Foreign Assets 2. FERDOWS, Behzad Daniel, Dubai, 3. JINGHO TECHNOLOGY CO. LIMITED, Control (OFAC) is publishing the names United Arab Emirates; DOB 14 Mar 1969; Hong Kong; Business Registration Number POB Tehran, Iran; nationality Iran; alt. of one or more persons that have been nationality Germany; Additional Sanctions 2088397 (Hong Kong) [IRAN–EO13846] placed on OFAC’s Specially Designated (Linked To: TRILIANCE PETROCHEMICAL Information—Subject to Secondary Nationals and Blocked Persons List Sanctions; Gender Male; Passport CO. LTD.). based on OFAC’s determination that one C4KNRMNCF (Germany) expires 18 Mar Designated pursuant to section 1(a)(iii)(B) or more applicable legal criteria were 2018; National ID No. 0037251910 (Iran) of E.O. 13846, for, on or after November 5, satisfied. All property and interests in (individual) [NPWMD] [IFSR] (Linked To: 2018, having materially assisted, sponsored, property subject to U.S. jurisdiction of MAMMUT INDUSTRIAL GROUP P.J.S). or provided financial, material, or these persons are blocked, and U.S. Designated pursuant to section 1(a)(iv) of technological support for, or goods or E.O. 13382 for acting or purporting to act for persons are generally prohibited from services to or in support of, TRILIANCE or on behalf of, directly or indirectly, engaging in transactions with them. PETROCHEMICAL CO. LTD. MAMMUT INDUSTRIAL GROUP P.J.S, a 4. DYNAPEX ENERGY LIMITED (f.k.a. DATES: See SUPPLEMENTARY INFORMATION person whose property and interests in SINGH DAILY CULTURE PRESS LIMITED; section for applicable date(s). property are blocked pursuant to E.O. 13382. 3. FERDOWS, Mehrzad Manuel, Iran; DOB f.k.a. SINGH SCIENCE AND TECHNOLOGY FOR FURTHER INFORMATION CONTACT: 23 Jul 1970; POB Tehran, Iran; nationality DEVELOPMENT CO., LIMITED), Flat/Rm OFAC: Associate Director for Global Iran; alt. nationality Germany; Additional 1105 11/F, Hua Qin International Building, Targeting, tel.: 202–622–2420; Assistant Sanctions Information—Subject to Secondary 340 Queen’s Road Central, Hong Kong; Director for Sanctions Compliance & Sanctions; Gender Male; Passport C4JRGPJ7H Business Registration Number 2066820 Evaluation, tel.: 202–622–2490; (Germany) expires 11 Mar 2019; alt. Passport (Hong Kong) [IRAN–EO13846] (Linked To: Assistant Director for Licensing, tel.: J32379304 (Iran); National ID No. TRILIANCE PETROCHEMICAL CO. LTD.). 202–622–2480; or Assistant Director for 0055124240 (Iran) (individual) [NPWMD] Designated pursuant to section 1(a)(iii)(B) Regulatory Affairs, tel.: 202–622–4855. [IFSR] (Linked To: MAMMUT INDUSTRIAL of E.O. 13846, for, on or after November 5, SUPPLEMENTARY INFORMATION: GROUP P.J.S). 2018, having materially assisted, sponsored, Designated pursuant to section 1(a)(iv) of or provided financial, material, or Electronic Availability E.O. 13382 for acting or purporting to act for technological support for, or goods or The Specially Designated Nationals or on behalf of, directly or indirectly, MAMMUT INDUSTRIAL GROUP P.J.S, a services to or in support of, TRILIANCE and Blocked Persons List and additional person whose property and interests in PETROCHEMICAL CO. LTD. information concerning OFAC sanctions property are blocked pursuant to E.O. 13382. 5. PETROTECH FZE, Office Number E, 16f programs are available on OFAC’s 4. GHANNADI MARAGHEH, Mohammad 35, LOB P2 E, Hamriyah Free Zone, Sharjah, website (https://www.treasury.gov/ofac). (a.k.a. GHANNADI, Mohammad; a.k.a. United Arab Emirates [IRAN–EO13846] GHANNADI–MARAGHEH, Mohammad; (Linked To: TRILIANCE PETROCHEMICAL Notice of OFAC Actions a.k.a. QANNADI, Mohammad), Tehran, Iran; CO. LTD.). On September 21, 2020, OFAC DOB 13 Oct 1952; POB Maragheh, Iran; Designated pursuant to section 1(a)(iii)(B) determined that determined that the nationality Iran; Additional Sanctions of E.O. 13846, for, on or after November 5, property and interests in property Information—Subject to Secondary 2018, having materially assisted, sponsored, subject to U.S. jurisdiction of the Sanctions; Gender Male (individual) or provided financial, material, or [NPWMD] [IFSR] (Linked To: ATOMIC following person are blocked under the ENERGY ORGANIZATION OF IRAN). technological support for, or goods or relevant sanctions authorities listed Designated pursuant to section 1(a)(iv) of services to or in support of, TRILIANCE below. E.O. 13382 for acting or purporting to act for PETROCHEMICAL CO. LTD. Individuals or on behalf of, directly or indirectly, 6. DINRIN LIMITED, Hong Kong; Business ATOMIC ENERGY ORGANIZATION OF Registration Number 2849056 (Hong Kong) 1. DEZFULIAN, Mohammed Reza (a.k.a. IRAN, a person whose property and interests [IRAN–EO13846] (Linked To: ZAGROS DEZFULIAN, Mohammad Reza), Iran; POB in property are blocked pursuant to E.O. PETROCHEMICAL). Tehran, Iran; nationality Iran; Additional 13382. Designated pursuant to section 1(a)(iii)(B) Sanctions Information—Subject to Secondary 5. GHOLAMI, Mohammad, Iran; DOB 26 of E.O. 13846, for, on or after November 5, Sanctions; Gender Male; National ID No. Dec 1973; POB Bojnord, Iran; nationality 2018, having materially assisted, sponsored, 0061496766 (Iran) (individual) [NPWMD] Iran; Additional Sanctions Information— or provided financial, material, or [IFSR] (Linked To: MAMMUT DIESEL). Subject to Secondary Sanctions; Gender Designated pursuant to section 1(a)(iv) of Male; National ID No. 5249398618 (Iran) technological support for, or goods or Executive Order 13382 of June 28, 2005, 70 (individual) [NPWMD] [IFSR] (Linked To: services to or in support of, ZAGROS FR 38567, 3 CFR, 2006 Comp., p. 170 (E.O. SHAHID HEMMAT INDUSTRIAL GROUP). PETROCHEMICAL. 13382) for acting or purporting to act for or Designated pursuant to section 1(a)(iv) of Dated: September 3, 2020. on behalf of, directly or indirectly, E.O. 13382 for acting or purporting to act for MAMMUT DIESEL, a person whose property or on behalf of, directly or indirectly, Andrea M. Gacki, and interests in property are blocked SHAHID HEMMAT INDUSTRIAL GROUP, a Director, Office of Foreign Assets Control. pursuant to E.O. 13382. person whose property and interests in [FR Doc. 2020–19892 Filed 9–24–20; 8:45 am] ESMA’ILPUR, Asghar, Iran; DOB 07 Mar property are blocked pursuant to E.O. 13382. BILLING CODE 4810–AL–P 1973; POB Tehran, Iran; citizen Iran; 6. KAMALVANDI, Behrouz, Iran; DOB Additional Sanctions Information—Subject 1955; alt. DOB 1956; POB Tehran, Iran; to Secondary Sanctions; Gender Male; nationality Iran; Additional Sanctions

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Information—Subject to Secondary MAMMUT INDUSTRIAL GROUP P.J.S, a ACTION: Notice. Sanctions; Gender Male (individual) person whose property and interests in [NPWMD] [IFSR] (Linked To: ATOMIC property are blocked pursuant to E.O. 13382. SUMMARY: The Treasury Department’s ENERGY ORGANIZATION OF IRAN). 11. MAMMUT INDUSTRIAL GROUP P.J.S Designated pursuant to section 1(a)(iv) of (a.k.a. MAMMUT INDUSTRIAL GROUP; Office of Foreign Assets Control (OFAC) E.O. 13382 for acting or purporting to act for a.k.a. MAMMUT TEHRAN INDUSTRIAL is updating the identifying information or on behalf of, directly or indirectly, GROUP; a.k.a. ‘‘MAMMUT INDUSTRIES’’), on its list of Specially Designated ATOMIC ENERGY ORGANIZATION OF Khaled Eslamboli Street, Seventh Street No. Nationals and Blocked Persons (SDN IRAN, a person whose property and interests 7, Tehran 15875–7974, Iran; No. 65 Lofti List) for two persons whose property in property are blocked pursuant to E.O. Street, Tehran, Iran; Vozara Str, 7th Str No. and interests in property are blocked 13382. 7, Tehran, Iran; website pursuant to Executive Order 13382. 7. KARIMI SABET, Javad (a.k.a. KARIMI– www.mammutco.com; Additional Sanctions SABET, Javad), Iran; DOB 01 Jan 1973; POB Information—Subject to Secondary DATES: See SUPPLEMENTARY INFORMATION Iran; nationality Iran; Additional Sanctions Sanctions; Registration Number 3167 (Iran) section for applicable date(s). Information—Subject to Secondary [NPWMD] [IFSR] (Linked To: SHAHID Sanctions; Gender Male (individual) HEMMAT INDUSTRIAL GROUP). FOR FURTHER INFORMATION CONTACT: [NPWMD] [IFSR] (Linked To: ATOMIC Designated pursuant to section 1(a)(iv) of OFAC: Associate Director for Global ENERGY ORGANIZATION OF IRAN). E.O. 13382 for having provided, or attempted Targeting, tel.: 202–622–2420; Assistant Designated pursuant to section 1(a)(iv) of to provide, financial, material, technological Director for Sanctions Compliance & E.O. 13382 for acting or purporting to act for or other support for, or goods or services in or on behalf of, directly or indirectly, Evaluation, tel.: 202–622–2490; support of, SHAHID HEMMAT INDUSTRIAL Assistant Director for Licensing, tel.: ATOMIC ENERGY ORGANIZATION OF GROUP, a person whose property and IRAN, a person whose property and interests interests in property are blocked pursuant to 202–622–2480; or Assistant Director for in property are blocked pursuant to E.O. E.O. 13382. Regulatory Affairs, tel.: 202–622–4855. 13382. 12. MESBAH ENERGY COMPANY (a.k.a. SUPPLEMENTARY INFORMATION: 8. RAHIMIAN, Pezhman (a.k.a. MESBAH ENERGY; a.k.a. MESBAH ENERGY RAHIMIAN, Pejman), Iran; POB Esfahan, CO.), Science & Technology Park, Shahid Electronic Availability Esfahan Province, Iran; nationality Iran; Ghoddousi Blvd., Arak, Iran; Tehran, Iran; Additional Sanctions Information—Subject website www.isotope.ir; Additional Sanctions The SDN List and additional to Secondary Sanctions; Gender Male; Information—Subject to Secondary Sanctions information concerning OFAC sanctions National ID No. 1285917855 (Iran) [IRAN] [NPWMD] [IFSR] (Linked To: (individual) [NPWMD] [IFSR] (Linked To: programs are available on OFAC’s ATOMIC ENERGY ORGANIZATION OF website (https://www.treasury.gov/ofac). ATOMIC ENERGY ORGANIZATION OF IRAN). IRAN). Designated pursuant to section 1(a)(iv) of Notice of OFAC Action(s) Designated pursuant to section 1(a)(iv) of E.O. 13382 for being owned or controlled by E.O. 13382 for acting or purporting to act for ATOMIC ENERGY ORGANIZATION OF On September 21, 2020, OFAC or on behalf of, directly or indirectly, IRAN, a person whose property and interests ATOMIC ENERGY ORGANIZATION OF published the following revised in property are blocked pursuant to E.O. information for the following persons on IRAN, a person whose property and interests 13382. in property are blocked pursuant to E.O. 13. NUCLEAR SCIENCE AND OFAC’s SDN List whose property and 13382. TECHNOLOGY RESEARCH INSTITUTE interests in property are blocked Entities (a.k.a. NUCLEAR SCIENCE AND pursuant to Executive Order 13382, TECHNOLOGY RESEARCH CENTER; a.k.a. ‘‘Blocking Property of Weapons of Mass 9. ADVANCED TECHNOLOGIES NUCLEAR SCIENCES AND TECHNOLOGIES Destruction Proliferators and Their COMPANY OF IRAN (f.k.a. GHANI SAZI RESEARCH INSTITUTE; a.k.a. RESEARCH Supporters’’: ENRICHMENT; a.k.a. IRAN ADVANCED INSTITUTE OF NUCLEAR SCIENCE AND TECHNOLOGIES COMPANY; f.k.a. IRAN TECHNOLOGY; a.k.a. ‘‘NSTRI’’), North Individual URANIUM ENRICHMENT COMPANY; f.k.a. Kargar Street, Tehran, Iran; North Kargar NOOSHIN, Seyed Mirahmad (a.k.a. IRANIAN ENRICHMENT COMPANY; a.k.a. Ave., Tehran, Iran; website https:// ‘‘ADVANCED TECHNOLOGIES’’; a.k.a. nstri.aeoi.org.ir/; alt. Website https://nstri.ir/ NOOSHIN, Seid Mir Ahmad; a.k.a. NUSHIN, ‘‘ADVANCED TECHNOLOGIES COMPANY’’; ; Additional Sanctions Information—Subject Sayyed Mir Ahmad), Iran; DOB 11 Jan 1966; a.k.a. ‘‘ADVANCED TECHNOLOGIES to Secondary Sanctions [IRAN] [NPWMD] Additional Sanctions Information—Subject HOLDING COMPANY’’; a.k.a. ‘‘IATC’’), [IFSR] (Linked To: ATOMIC ENERGY to Secondary Sanctions; Gender Male; Tehran, Iran; Additional Sanctions ORGANIZATION OF IRAN). Passport G9311208 (Iran); Director, Information—Subject to Secondary Designated pursuant to section 1(a)(iv) of Aerospace Industries Organization Sanctions; National ID No. 10103378982 E.O. 13382 for being owned or controlled by (individual) [NPWMD] [IFSR] (Linked To: (Iran); Registration Number 299780 (Iran) ATOMIC ENERGY ORGANIZATION OF SHAHID HEMMAT INDUSTRIAL GROUP). [IRAN] [NPWMD] [IFSR] (Linked To: IRAN, a person whose property and interests ATOMIC ENERGY ORGANIZATION OF in property are blocked pursuant to E.O. Entity IRAN). 13382. Designated pursuant to section 1(a)(iv) of SHAHID MOVAHED INDUSTRIES (a.k.a. E.O. 13382 for being owned or controlled by Dated: September 21, 2020. SHAHID HAJ ALI MOVAHED RESEARCH ATOMIC ENERGY ORGANIZATION OF Andrea M. Gacki, CENTER; a.k.a. SHAHID MOVAHED IRAN, a person whose property and interests Director, Office of Foreign Assets Control. INDUSTRY; a.k.a. SHIG DEPARTMENT in property are blocked pursuant to E.O. 7500), c/o SHIG, Damavand Tehran Highway, 13382. [FR Doc. 2020–21155 Filed 9–24–20; 8:45 am] P.O. Box 16595–159, Tehran, Iran; 10. MAMMUT DIESEL (a.k.a. MAMMUT BILLING CODE 4810–AL–P Additional Sanctions Information—Subject DIESEL COMPANY), No. 158, 14th km, to Secondary Sanctions [NPWMD] [IFSR] Makhsoos Road, Tehran 37515–335, Iran; (Linked To: SHAHID HEMMAT website www.mammutdiesel.com; Additional DEPARTMENT OF THE TREASURY INDUSTRIAL GROUP). Sanctions Information—Subject to Secondary Sanctions; National ID No. 10103952900 Office of Foreign Assets Control Dated: September 21, 2020. (Iran); Registration Number 1910 (Iran) Andrea M. Gacki, [NPWMD] [IFSR] (Linked To: MAMMUT Notice of OFAC Sanctions Action Director, Office of Foreign Assets Control. INDUSTRIAL GROUP P.J.S). Designated pursuant to section 1(a)(iv) of AGENCY: Office of Foreign Assets [FR Doc. 2020–21154 Filed 9–24–20; 8:45 am] E.O. 13382 for being owned or controlled by Control, Treasury. BILLING CODE 4810–AL–P

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DEPARTMENT OF THE TREASURY An agency may not conduct or collection of qualitative feedback on sponsor, and a person is not required to agency service delivery. Internal Revenue Service respond to, a collection of information DATES: Written comments should be unless the collection of information received on or before November 24, Proposed Collection; Comment displays a valid OMB control number. 2020 to be assured of consideration. Request for Form 8851 Books or records relating to a ADDRESSES: Direct all written comments AGENCY: Internal Revenue Service (IRS), collection of information must be to Kinna Brewington, Internal Revenue Treasury. retained as long as their contents may Service, Room 6526, 1111 Constitution ACTION: Notice and request for become material in the administration Avenue NW, Washington, DC 20224. comments. of any internal revenue law. Generally, FOR FURTHER INFORMATION CONTACT: tax returns and tax return information Requests for additional information or SUMMARY: The Department of the are confidential, as required by 26 copies of the form should be directed to Treasury, as part of its continuing effort U.S.C. 6103. Kerry Dennis, at (202) 317–5751 or to reduce paperwork and respondent Request for Comments: Comments Internal Revenue Service, Room 6526, burden, invites the general public and submitted in response to this notice will 1111 Constitution Avenue NW, other Federal agencies to take this be summarized and/or included in the Washington DC 20224, or through the opportunity to comment on information request for OMB approval. All internet, at [email protected]. collections, as required by the comments will become a matter of SUPPLEMENTARY INFORMATION: Paperwork Reduction Act of 1995. The public record. Comments are invited on: Title: Generic Clearance for the IRS is soliciting comments concerning (a) Whether the collection of Collection of Qualitative Feedback on Form 8851, Summary of Archer MSAs. information is necessary for the proper Agency Service Delivery. DATES: Written comments should be performance of the functions of the OMB Number: 1545–2208. received on or before November 24, agency, including whether the Abstract: Executive Order 12862 2020 to be assured of consideration. information shall have practical utility; directs Federal agencies to provide ADDRESSES: Direct all written comments (b) the accuracy of the agency’s estimate service to the public that matches or to Paul Adams, Internal Revenue of the burden of the collection of exceeds the best service available in the Service, room 6526, 1111 Constitution information; (c) ways to enhance the private sector. In order to work Avenue NW, Washington, DC 20224. quality, utility, and clarity of the continuously to ensure that our FOR FURTHER INFORMATION CONTACT: information to be collected; (d) ways to programs are effective and meet our Requests for additional information or minimize the burden of the collection of customers’ needs, The Internal Revenue copies of the form and instructions information on respondents, including Service (hereafter ‘‘the Agency’’) seeks should be directed to Sara Covington, through the use of automated collection to obtain OMB approval of a generic (737)800–6149 or at Internal Revenue techniques or other forms of information clearance to collect qualitative feedback Service, Room 66526, 1111 Constitution technology; and (e) estimates of capital on our service delivery. By qualitative Avenue NW, Washington, DC 20224, or or start-up costs and costs of operation, feedback we mean information that through the internet, at maintenance, and purchase of services provides useful insights on perceptions [email protected]. to provide information. and opinions but are not statistical SUPPLEMENTARY INFORMATION: Approved: September 17, 2020. surveys that yield quantitative results Title: Summary of Archer MSAs. Sara L Covington, that can be generalized to the OMB Number: 1545–1743. IRS Tax Analyst. population of study. Form Number: 8851. [FR Doc. 2020–21169 Filed 9–24–20; 8:45 am] Current Actions: The IRS will be Abstract: Internal Revenue Code conducting different opinion surveys, BILLING CODE 4830–01–P section 220(j)(4) requires trustees, who focus group sessions, think-aloud establish medical savings accounts, to interviews, and usability studies report the following: (a) Number of DEPARTMENT OF THE TREASURY regarding cognitive research medical savings accounts established surrounding forms submission or IRS before July 1 of the taxable year Internal Revenue Service system/product development. (beginning January 1, 2001), (b) name Type of Review: Extension of a and taxpayer identification number of Proposed Collection; Comment currently approved collection. each account holder and, (c) number of Request for Generic Clearance for the Affected Public: Individuals and accounts which are accounts of Collection of Qualitative Feedback on businesses or other for-profit previously uninsured individuals. Form Agency Service Delivery organizations. 8851 is used for this purpose. Estimated Number of Respondents: Current Actions: There are no changes AGENCY: Internal Revenue Service (IRS), 150,000. being made to the form at this time. Treasury. Estimated Time Per Response: 6 Type of Review: Extension of a ACTION: Notice and request for minutes. currently approved collection. comments. Estimated Total Annual Burden Affected Public: Business or other for- Hours: 15,000. profit organizations. SUMMARY: The Internal Revenue Service, The following paragraph applies to all Estimated Number of Respondents: as part of its continuing effort to reduce the collections of information covered 400,000. paperwork and respondent burden, by this notice. Estimated Time per Respondent: 3 invites the general public and other An agency may not conduct or hours, 51 minutes. Federal agencies to take this sponsor, and a person is not required to Estimated Total Annual Burden opportunity to comment on continuing respond to, a collection of information Hours: 1,540,000. information collections, as required by unless the collection of information The following paragraph applies to all the Paperwork Reduction Act of 1995. displays a valid OMB control number. of the collections of information covered The IRS is soliciting comments Books or records relating to a collection by this notice: concerning generic clearance for the of information must be retained if their

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contents may become material in the PRAMain. Find this particular DEPARTMENT OF VETERANS administration of any internal revenue information collection by selecting AFFAIRS law. Generally, tax returns and tax ‘‘Currently under 30-day Review—Open [OMB Control No. 2900–0786] return information are confidential, as for Public Comments’’ or by using the required by 26 U.S.C. 6103. search function. Refer to ‘‘OMB Control Agency Information Collection Activity Request for Comments: Comments No. 2900–0002’’. Under OMB Review: VR&E submitted in response to this notice will FOR FURTHER INFORMATION CONTACT: Longitudinal Study Survey be summarized and/or included in the Danny S. Green, Enterprise Records AGENCY: request for OMB approval. All Service (005R1B), Department of Veterans Benefits comments will become a matter of Veterans Affairs, 811 Vermont Avenue Administration, Department of Veterans public record. Comments are invited on: NW, Washington, DC 20420, (202) 421– Affairs. (a) Whether the collection of 1354 or email [email protected]. ACTION: Notice. information is necessary for the proper Please refer to ‘‘OMB Control No. 2900– SUMMARY: In compliance with the performance of the functions of the 0002’’ in any correspondence. agency, including whether the Paperwork Reduction Act (PRA) of SUPPLEMENTARY INFORMATION: information shall have practical utility; 1995, this notice announces that the (b) the accuracy of the agency’s estimate Authority: 38 U.S.C. 1502, 38 U.S.C. Veteran’s Benefits Information, of the burden of the collection of 1503 & 38 U.S.C. 5101(a). Department of Veterans Affairs, will information; (c) ways to enhance the Title: Application for Veterans submit the collection of information quality, utility, and clarity of the Pension (VA Form 21P–527EZ) and abstracted below to the Office of information to be collected; (d) ways to Income, Asset, and Employment Management and Budget (OMB) for minimize the burden of the collection of Statement (VA Form 21P–527). review and comment. The PRA information on respondents, including OMB Control Number: 2900–0002. submission describes the nature of the information collection and its expected through the use of automated collection Type of Review: Revision of a cost and burden and it includes the techniques or other forms of information currently approved collection. actual data collection instrument. technology; and (e) estimates of capital Abstract: VA Form 21P–527EZ, is the or start-up costs and costs of operation, prescribed form for claiming Veterans DATES: Written comments and maintenance, and purchase of services Pension under the Fully Developed recommendations for the proposed to provide information. Claim program. VA Form 21P–527 is information collection should be sent used to gather the necessary information within 30 days of publication of this Approved: September 21, 2020. to determine a veteran’s eligibility for notice to www.reginfo.gov/public/do/ Chakinna B. Clemons, Veterans Pension. Without this PRAMain. Find this particular Supervisory Tax Analyst. information, VA will not be able to information collection by selecting [FR Doc. 2020–21168 Filed 9–24–20; 8:45 am] determine a Veteran’s eligibility to the ‘‘Currently under 30-day Review—Open BILLING CODE 4830–01–P benefit. A Veteran may also use this for Public Comments’’ or by using the form to file a new Veterans Pension search function. Refer to ‘‘OMB Control claim after VA has discontinued a No. 2900–0786. DEPARTMENT OF VETERANS previous pension award and the Veteran FOR FURTHER INFORMATION CONTACT: AFFAIRS is requesting his or her benefits be Danny S. Green, (202) 421–1354 or email [email protected]. Please [OMB Control No. 2900–0002] reinstated. Without this information, VA will not be able to determine a Veteran’s refer to ‘‘OMB Control No. 2900–0786’’ Agency Information Collection Activity eligibility to the benefit. in any correspondence. Under OMB Review: Application for An agency may not conduct or SUPPLEMENTARY INFORMATION: Veterans Pension and Income, Asset, sponsor, and a person is not required to Authority: Public Law 112–56, and Employment Statement respond to a collection of information Section 221–225. unless it displays a currently valid OMB Title: Department of Veterans Affairs AGENCY: Veterans Benefits control number. The Federal Register (VA) VR&E Longitudinal Study Survey. Administration, Department of Veterans Notice with a 60-day comment period OMB Control Number: 2900–0786. Affairs. soliciting comments on this collection Type of Review: Extension of a ACTION: Notice. of information was published at 85 FR currently approved collection. 114 on June 14, 2020, pages 35996 and Abstract: As required by Public Law SUMMARY: In compliance with the 35997. 110–389 Section 334, VBA will Paperwork Reduction Act (PRA) of Affected Public: Individuals or continue to collect survey data on 1995, this notice announces that the Households. individuals who began participating in Veterans Benefits Administration, the VR&E program during fiscal years Department of Veterans Affairs, will Estimated Annual Burden: 56,250 hours. 2010, 2012, and 2014. VA will conduct submit the collection of information a study of this data to determine the Estimated Average Burden per abstracted below to the Office of long-term positive outcomes of Respondent: 33.75 minutes. Management and Budget (OMB) for individuals participating in VBA’s Frequency of Response: One time. review and comment. The PRA VR&E program. The purpose of this Estimated Number of Respondents: submission describes the nature of the study is to monitor the effectiveness of 100,000. information collection and its expected VR&E program, so that we can find ways cost and burden and it includes the By direction of the Secretary. to improve the program and increase the actual data collection instrument. Danny S. Green, support VA provide to Veterans daily. DATES: Written comments and VA PRA Clearance Officer, Office of Quality, The data collected in this study is recommendations for the proposed Performance and Risk (OQPR), Department integral to VA submitting a information collection should be sent of Veterans Affairs. congressionally-mandated annual report within 30 days of publication of this [FR Doc. 2020–21134 Filed 9–24–20; 8:45 am] on the long-term outcomes of Veterans notice to www.reginfo.gov/public/do/ BILLING CODE 8320–01–P who participate in the VR&E program.

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An agency may not conduct or Affected Public: Individuals. By direction of the Secretary. sponsor, and a person is not required to Estimated Annual Burden: 2,695 Danny S. Green, respond to a collection of information hours. VA Clearance Officer, Office of Quality, unless it displays a currently valid OMB Estimated Average Burden per Performance and Risk, Department of control number. The Federal Register Veterans Affairs. Respondent: 20 minutes. Notice with a 60-day comment period [FR Doc. 2020–21218 Filed 9–24–20; 8:45 am] Frequency of Response: Annual. soliciting comments on this collection BILLING CODE 8320–01–P of information was published at 85 FR Estimated Number of Respondents: 143, on July 24, 2020, page 44957. 8,084.

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Part II

Department of Homeland Security

8 CFR Parts 214, 248, et al. Establishing a Fixed Time Period of Admission and an Extension of Stay Procedure for Nonimmigrant Academic Students, Exchange Visitors, and Representatives of Foreign Information Media; Proposed Rule

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DEPARTMENT OF HOMELAND proposes to amend its regulations by Management and Budget, 725 17th SECURITY changing the admission period of F, J, Street NW, Washington, DC 20503; and I aliens from duration of status to Attention: Desk Officer, U.S. 8 CFR Parts 214, 248, and 274a.12 an admission for a fixed time period. Immigration and Customs Enforcement, [DHS Docket No. ICEB–2019–0006] Admitting individuals in the F, J, and I DHS. categories for a fixed period of time will For additional instructions on sending RIN 1653–AA78 require all F, J, and I nonimmigrants comments, see the ‘‘Public who wish to remain in the United States Participation’’ heading of the Establishing a Fixed Time Period of beyond their specifically authorized SUPPLEMENTARY INFORMATION section of Admission and an Extension of Stay admission period to apply for an this document. Procedure for Nonimmigrant Academic extension of stay directly with USCIS or FOR FURTHER INFORMATION CONTACT: Students, Exchange Visitors, and to depart the country and apply for Sharon Hageman, Acting Regulatory Representatives of Foreign Information admission with CBP at a port of entry Unit Chief, Office of Policy and Media (POE). This change would provide the Planning, U.S. Immigration and AGENCY: U.S. Immigration and Customs Department with additional protections Customs Enforcement, Department of Enforcement, Department of Homeland and mechanisms to exercise the Homeland Security, 500 12th Street SW, Security. oversight necessary to vigorously Washington, DC 20536. Telephone 202– enforce our nation’s immigration laws, 732–6960 (not a toll-free number). ACTION: Notice of proposed rulemaking. protect the integrity of these SUPPLEMENTARY INFORMATION: This SUMMARY: In fiscal year 2018, the nonimmigrant programs, and promptly supplementary information section is Department of Homeland Security (DHS detect national security concerns. organized as follows: DATES: Written comments and related or the Department) admitted over 2 Table of Contents million foreign nationals into the United material must be submitted on or before States in the F academic student, J October 26, 2020. I. Public Participation A. Submitting Comments exchange visitor, and I representatives ADDRESSES: You must submit comments of foreign information media B. Viewing Comments and Documents on the proposed rule identified by DHS C. Privacy Act nonimmigrant categories. This is a Docket No. ICEB–2019–0006, only II. Executive Summary testament to the United States’ through the following method: A. Purpose of the Regulatory Action exceptional academic institutions, • Federal eRulemaking Portal B. Summary of the Proposed Regulatory cutting-edge technology, and (preferred): http://www.regulations.gov. Revisions environment that promotes the Follow the website instructions to C. Legal Authorities exchange of ideas, research, and mutual submit comments. D. Costs and Benefits enrichment. Currently, aliens in the F, III. Background Comments submitted in a manner A. Regulatory History of Duration of Status J, and I categories are admitted into the other than the one listed above, B. Risks to the Integrity of the F, J, and I United States for the period of time that including emails or letters sent to DHS Nonimmigrant Classifications they are complying with the terms and or U.S. Immigration and Customs IV. Discussion of the Proposed Rule conditions of their nonimmigrant Enforcement (ICE) officials, will not be A. General Period of Admission for F and category (‘‘duration of status’’), rather considered comments on the proposed J Nonimmigrants than an admission for a fixed time rule and may not receive a response B. Automatic Extension of Visa Validity at period. This duration of status from DHS. Please note that DHS and ICE Port of Entry C. Extension of Stay (EOS) framework generally lacks cannot accept any comments that are D. Transition Period predetermined points in time for U.S. hand delivered or couriered. In E. Requirements for Admission, Extension, Citizenship and Immigration Services addition, due to COVID–19, ICE cannot and Maintenance of Status of F (USCIS) or U.S. Customs and Border accept mailed comments whether paper Nonimmigrants Protection (CBP) immigration officers to or contained on any form of digital F. Requirements for Admission, Extension, directly evaluate whether F, J, and I media storage devices, such as CDs/ and Maintenance of Status of I nonimmigrants are maintaining their DVDs and USB drives. Nonimmigrants status and poses a challenge to the G. Requirements for Admission, Extension, Collection of information. You must and Maintenance of Status of J Exchange Department’s ability to effectively submit comments on the collection of Visitors monitor and oversee these categories of information discussed in this notice of H. Change of Status nonimmigrants. Specifically, because proposed rulemaking to either DHS’s I. Classes of Aliens Authorized To Accept nonimmigrants admitted in the F, J, and docket or the Office of Management and Employment I classifications generally do not Budget’s (OMB) Office of Information V. Statutory and Regulatory Requirements currently begin to accrue unlawful and Regulatory Affairs (OIRA). OIRA A. Executive Orders 12866, 13563, and presence until the day after there is a will have access to and view the 13771: Regulatory Review formal finding of a status violation by B. Regulatory Flexibility Act comments submitted in the docket. C. Small Business Regulatory Enforcement USCIS or an immigration judge, they are OIRA submissions can also be sent Fairness Act of 1996 often are able to avoid accrual of using any of the following alternative D. Congressional Review Act unlawful presence for purposes of methods: E. Unfunded Mandates Reform Act of 1995 statutory inadmissibility grounds of • Email (alternative): dhsdeskofficer@ F. Paperwork Reduction Act unlawful presence, in part, because they omb.eop.gov (include the docket G. Executive Order 13132: Federalism do not file applications or petitions, number and ‘‘Attention: Desk Officer for H. Executive Order 12988: Civil Justice such as extension of stay, that would U.S. Immigration and Customs Reform result in a formal finding. The I. Executive Order 13211: Actions Enforcement, DHS’’ in the subject line Concerning Regulations That Department accordingly is concerned of the email). Significantly Affect Energy Supply, about the integrity of the programs and • Fax: 202–395–6566. Distribution, or Use a potential for increased risk to national • Mail: Office of Information and J. National Environmental Policy Act security. To address these issues, DHS Regulatory Affairs, Office of (NEPA)

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K. Executive Order 13175: Consultation personal information that you provide the United States also encourages by and Coordination With Indian Tribal in any voluntary public comment allowing foreign news and media Governments submission you make to DHS. DHS may members the same unimpeded access L. Executive Order 12630: Governmental withhold information provided in and opportunity to share in the Actions and Interference With constitutional freedoms of the press as Constitutionally Protected Property comments from public viewing that it Rights determines is offensive. For additional domestic news and media members. M. Executive Order 13045: Protection of information, please read the ‘‘Privacy These benefits have attracted hundreds Children From Environmental Health and Security Notice,’’ via the link in the of thousands of foreign nationals to the Risks and Safety Risks footer of http://www.regulations.gov. United States in the F academic N. National Technology Transfer and DHS will consider all properly student,1 J exchange visitor,2 and I Advancement Act submitted comments and materials representatives of foreign information O. Family Assessment received during the comment period media 3 categories. DHS values the P. Signature and may change this rule based on your benefits these nonimmigrants, in turn, I. Public Participation comments. bring to the United States. Unlike aliens in most nonimmigrant DHS encourages all interested parties B. Viewing Comments and Documents categories who are admitted until a to participate in this rulemaking by Docket: To view comments, as well as specific departure date, F, J, and I submitting written data, views, documents mentioned in this preamble nonimmigrants are admitted into the comments and arguments on all aspects as being available in the docket, go to United States for an unspecified period of this proposed rule. DHS also invites http://www.regulations.gov and insert of time to engage in activities authorized comments that relate to the economic, ‘‘ICEB–2019–0006’’ in the ‘‘Search’’ box. under their respective nonimmigrant environmental, or federalism effects that Click on the ‘‘Open Docket Folder,’’ and classifications. This unspecified period might result from this proposed rule. you can click on ‘‘View Comment’’ or of time is referred to as ‘‘duration of Under the guidelines of the Office of the ‘‘View All’’ under the ‘‘Comments’’ status’’ (D/S). D/S for F academic Federal Register, all properly submitted section of the page. Individuals without students is generally the time during comments will be posted to http:// internet access can make alternate which a student is pursuing a full www.regulations.gov as part of the arrangements for viewing comments and course of study at an educational public record and will include any documents related to this rulemaking by institution approved by DHS, or personal information you have contacting ICE through the FOR FURTHER engaging in authorized practical training provided. See the ADDRESSES section for INFORMATION CONTACT section above. following completion of studies, plus information on how to submit You may also sign up for email alerts on authorized time to depart the country.4 comments. the online docket to be notified when D/S for J exchange visitors is the time A. Submitting Comments comments are posted or a final rule is during which an exchange visitor is published. participating in an authorized program, You must submit your comments in plus authorized time to depart the English or provide an English C. Privacy Act country.5 D/S for I representatives of translation. The most helpful comments As stated in the Submitting foreign information media is the will reference a specific portion of the 6 Comments section above, please be duration of his or her employment. For proposed rule, explain the reason for aware that anyone can search the dependents of principal F, J, or I any recommended change, and include electronic form of comments received in nonimmigrants, D/S generally tracks the data, information, or authority any of our dockets by the name of the principal’s period of admission so long supporting the recommended change. If individual submitting the comment (or as the dependents are also complying you submit comments, please include signing the comment, if submitted on with the requirements for their the docket number for this rulemaking 7 behalf of an association, business, labor particular classifications. Since D/S (ICEB–2019–0006), indicate the specific 8 union, etc.). You may wish to consider was first introduced, the number of F, section of this document to which each limiting the amount of personal comment applies, and provide a reason 1 information that you provide in any INA 101(a)(15)(F), 8 U.S.C. 1101(a)(15)(F). for each suggestion or recommendation. 2 INA 101(a)(15)(J), 8 U.S.C. 1101(a)(15)(J). voluntary public comment submission You may submit your comments and 3 INA 101(a)(15)(I), 8 U.S.C. 1101(a)(15)(I). you make to DHS. The Department may 4 materials online. Due to COVID–19- Statutory and regulatory requirements restrict withhold information from public the duration of study for an alien who is admitted related restrictions, ICE has temporarily viewing that it determines is offensive. in F–1 status to attend a public high school to an suspended its ability to receive public For additional information, please read aggregate of 12 months of study at any public high comments by mail. school(s). See Immigration and Nationality Act the Privacy and Security Notice posted Instructions: To submit your (INA) section 214(m), 8 U.S.C. 1184(m); see also 8 on http://www.regulations.gov. CFR 214.2(f)(5)(i). comments online, go to http:// 5 See 8 CFR 214.2(j)(1)(ii) (explaining the initial www.regulations.gov, and insert ‘‘ICEB– II. Executive Summary admission period) and (j)(1)(iv) (explaining that 2019–0006’’ in the ‘‘Search’’ box. Click extensions of stay can be obtained with a new Form on the ‘‘Comment Now!’’ box and input A. Purpose of the Regulatory Action DS–2019). See also 22 CFR 62.43 (permitting responsible officers to extend J nonimmigrant’s your comment in the text box provided. Studying and participating in program beyond the original DS–2019 end date Click the ‘‘Continue’’ box, and, if you exchange visitor and academic programs according to length permitted for the specific are satisfied with your comment, follow in the United States offers foreign program category). the prompts to submit it. nationals access to world-renowned 6 8 CFR 214.2(i). DHS will post them to the Federal faculty, cutting edge resources, state-of- 7 See 8 CFR 214.2(f)(3), (f)(5)(vi)(D) (discussing F– 2 period of authorized admission); 214.2(j)(1)(ii), eRulemaking Portal at http:// the art courses, and individualized (j)(1)(iv) (discussing J–2 authorized period of www.regulations.gov and will include instructional programs. Similarly, the admission); INA 101(a)(15)(I), 8 U.S.C. any personal information you provide. United States fosters an environment 1101(a)(15)(I); 22 CFR 41.52(c); USCIS Policy Therefore, submitting this information that promotes the exchange of ideas and Manual, 2 USCIS–PM K.2 (Apr. 7, 2020). 8 In 1985, when D/S was introduced for I and J makes it public. You may wish to encourages open discussions when nonimmigrants, there were 16,753 admissions in I consider limiting the amount of there are differences of opinions, which Continued

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J, and I nonimmigrants admitted each without a specified end date, these provide additional protections and year into the United States has nonimmigrants are not required to have oversight of these nonimmigrant significantly increased. In 2019 alone, direct interaction with DHS, except for categories, and would allow DHS to there were over a million admissions in a few limited instances, such as when better evaluate whether these F status, a dramatic rise from the applying for employment authorization nonimmigrants are maintaining status 263,938 admissions in F status when the for optional practical training or for while temporarily in the United States. legacy Immigration and Naturalization reinstatement if they have failed to DHS does not believe such a Service (INS) shifted to D/S admission maintain status. Admission for D/S, in requirement would place an undue in 1978.9 Similar growth in the J general, does not afford immigration burden on F, J, and I nonimmigrants. population has also occurred over the officers enough predetermined Rather, providing F, J, and I past decades. In 2018, there were opportunities to directly verify that nonimmigrants a fixed time period of 611,373 admissions in J status, up over aliens granted such nonimmigrant authorized stay that would require them 300 percent from the 141,213 J statuses are engaging only in those to apply to extend their stay, change admissions into the United States in activities their respective classifications their nonimmigrant status, or otherwise 1985.10 Finally, there were 44,140 authorize while they are in the United obtain authorization to remain in the admissions for foreign media States. In turn, this has undermined United States (e.g., by filing an representatives in the United States in DHS’s ability to effectively enforce application for adjustment of status) at 2018, over 160 percent growth from the compliance with the statutory the end of this specific admission 16,753 admissions into the U.S. in inadmissibility grounds related to period is consistent with requirements 1985.11 DHS appreciates the academic unlawful presence and has created applicable to most other nonimmigrant benefits, cultural value, and economic incentives for fraud and abuse. classifications. contributions these foreign nationals Given these concerns, DHS believes These changes would ensure that the make to academic institutions and local that the admission of F, J, and I Department has an effective mechanism communities throughout the United nonimmigrants for D/S is no longer to periodically and directly assess States.12 appropriate. With this notice of whether these nonimmigrants are However, the significant increase in proposed rulemaking (NPRM), DHS complying with the conditions of their the volume of F academic students, J proposes to replace the D/S framework classifications and U.S. immigration exchange visitors, and I foreign for F, J, and I nonimmigrants with an laws, and to obtain timely and accurate information media representatives poses admission period with a specific date information about the activities they a challenge to the Department’s ability upon which an authorized stay ends. have engaged in and plan to engage in to monitor and oversee these categories Nonimmigrants who would like to stay during their temporary stay in the of nonimmigrants while they are in the in the United States beyond their fixed United States. If immigration officers United States. During the length of their date of admission would need to apply discover a nonimmigrant in one of these stay for D/S, a period of admission directly with DHS for an extension of categories has overstayed or otherwise stay.13 DHS anticipates that many F, J, violated his or her status, the proposed status, 141,213 admissions in J status, and 251,234 and I nonimmigrants would be able to changes may result in the alien admissions in F–1 status. See 1997 Statistical complete their activities within their beginning to accrue unlawful presence Yearbook of the Immigration and Naturalization period of admission. However, those for purposes of unlawful presence- Service at https://www.dhs.gov/sites/default/files/ related statutory grounds of publications/Yearbook_Immigration_Statistics_ who could not generally would be able 1997.pdf (last visited Jan. 7, 2020). to request an extension to their period inadmissibility under the Immigration 9 In fiscal year (FY) 2019, there were 1,122,403 of admission from an immigration and Nationality Act (INA). DHS believes admissions in F–1 status. See DHS Office of officer. In addition, as proposed, certain this greater oversight would deter F, J, Immigration Statistics (OIS) Legal Immigration and categories of aliens would be eligible for or I nonimmigrants from engaging in Adjustment of Status Report Data Tables (FY 2019), fraud and abuse and strengthen the available at https://www.dhs.gov/immigration- shorter periods of admission based on statistics/readingroom/special/LIASR (last visited national security, fraud, or overstay integrity of these nonimmigrant Aug. 27, 2020). In fiscal year 2016, there were concerns but like all aliens with fixed classifications. approximately 1.11 million F and J nonimmigrants The Department believes that the admission periods, would have a residing in the United States. See DHSOIS provisions of each new regulatory Population Estimates, Nonimmigrants Residing in specific date upon which they would be the United States: Fiscal Year 2016 (Mar. 2018), required to depart the United States or States); (e)(19) (periods of admission for most E available at https://www.dhs.gov/sites/default/files/ would need to apply to DHS to have publications/Nonimmigrant_ nonimmigrants); (g)(1) (period of admission for the Population%20Estimates_2016_0.pdf (last visited their continued eligibility for F, J, or I G–5 nonimmigrant classification); (h)(5)(viii) (9)(iii) Jan. 22, 2020). That same year, 48,405 aliens were status reviewed by immigration officers. and (13) (various periods of admission and admitted into the United States in I status. See DHS maximum periods of stay for the H–1B, H–2A, H– DHS believes that this process would 2B, and H–3 nonimmigrant classification); (k)(8) OIS 2018 Yearbook of Immigration Studies (Nov. help to mitigate risks posed by foreign 13, 2019) available at https://www.dhs.gov/ (period of admission for the K–3 and K–4 immigration-statistics/yearbook/2018 (last visited adversaries who seek to exploit these nonimmigrant classification); (l)(11)–(12) (periods Jan. 29, 2020). programs. of admission and maximum periods of stay for the 10 L nonimmigrant classification); (m)(5), (10) (period See DHS OIS Annual Flow Report, Annual Replacing admissions for D/S with of stay for the M nonimmigrant classification); Flow Report, U.S. Nonimmigrant Admissions: 2018 admissions for a fixed period of (n)(3) (period of admission for certain parents and (Oct. 2019) available at https://www.dhs.gov/sites/ children eligible for admission as special default/files/publications/immigration-statistics/ authorized stay is consistent with most _ _ other nonimmigrant categories,14 would immigrants under section 101(a)(27)(I)); (o)(6)(iii) yearbook/2018/nonimmigrant admissions and (10) (period of admission for the O 2018.pdf (last visited Jan. 22, 2020). nonimmigrant classification); (p)(8)(iii) and (12) 11 Id. 13 See generally 8 CFR 214.1(c) (setting forth the (period of admission for the P nonimmigrant 12 NAFSA: Association of International general extension of stay (EOS) requirements classification); (q)(2) (period of admission for the Q Educator’s latest analysis finds that international applicable to most other nonimmigrants). nonimmigrant classification); (r)(6) (period of students studying at U.S. colleges and universities 14 For example, see 8 CFR 214.2(a)(1) (setting admission for the R nonimmigrant classification); contributed $41 billion and supported 458,290 jobs forth a period of admission for the A–3 (s)(1)(ii) (period of admission for the NATO–7 to the U.S. economy during the 2018–2019 nonimmigrant classification); (b)(1) (period of nonimmigrant classification); (t)(5)(ii) (period of academic year. See https://www.nafsa.org/policy- admission for aliens admitted under the B admission for the S nonimmigrant classification); and-advocacy/policy-resources/nafsa-international- nonimmigrant classification); (c)(3) (period of and (w)(13) and (16) (period of admission for the student-economic-value-tool-v2. admission for aliens in transit through the United CW–1 nonimmigrant classification).

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amendment function sensibly Æ Decreasing from 60 to 30 days the applications for employment independent of other provisions. allowed period for F aliens to prepare to authorization based on either an However, to protect the Department’s depart from the United States after internship with an international goals for proposing this rule, DHS completion of a course of study or organization, curricular practical proposes to add regulatory text stating authorized period of post-completion training (CPT), pre-completion Optional that the provisions be severable so that, practical training; Practical Training (OPT), or post- if necessary, the regulations may Æ Proposing to lengthen the completion OPT are pending to engage continue to function even if a provision automatic EOS for individuals covered in such employment until their is rendered inoperable. by the authorized status and applications are approved; employment authorization provided by Æ Replacing D/S for I nonimmigrants B. Summary of the Proposed Regulatory 8 CFR 214.2(f)(5)(vi) (the H–1B cap gap with admission for a fixed time period Revisions provisions); until they complete the activities or DHS proposes the following major Æ Initiating a routine biometrics assignments consistent with the I changes: collection in conjunction with an EOS classification, not to exceed 240 days, • Amend 8 CFR 214.1, Requirements application for F, J, and I with an EOS available for I for admission, extension, and nonimmigrants; nonimmigrants who can meet specified Æ maintenance of status, by: Limiting language training students EOS requirements; Æ Striking all references to D/S for F, to an aggregate 24-month period of stay, Æ Codifying the definition of a foreign J, and I nonimmigrants; including breaks and an annual media organization for I nonimmigrant Æ Describing requirements for F and J vacation; status, consistent with long-standing Æ nonimmigrants seeking admission; Providing that a delay in USCIS and Department of State (DOS) Æ Updating the cross reference and completing one’s program by the practice; clarifying the standards for admission in program end date on Form I–20, due to Æ Updating the evidence an alien the automatic extension visa validity a pattern of behavior demonstrating a must submit to demonstrate eligibility provisions that cover F and J student is repeatedly unable or for the I nonimmigrant category; nonimmigrants applying at a port-of- unwilling to complete his or her course Æ Clarifying that I and J–1 entry after an absence not exceeding 30 of study, such as failing grades, in nonimmigrants, who are employment days solely in a contiguous territory or addition to academic probation or authorized with a specific employer adjacent islands; suspension, is an unacceptable reason incident to status, continue to be Æ Outlining the process for extension for program extensions for F authorized for such employment for up of stay (EOS) applications for F, J, and nonimmigrants; to 240 days under the existing Æ I nonimmigrants; Providing that F nonimmigrants regulatory provision at 8 CFR Æ Specifying the effect of departure who have timely filed an EOS 274a.12(b)(20), if their status expires while an F or J nonimmigrant’s application and whose EOS application while their timely filed EOS application application for an EOS in F or J is still pending after their admission is pending, whereas J–2 spouses, who nonimmigrant status and/or period indicated on Form I–94 has must apply for employment employment authorization (and an expired will receive an automatic authorization as evidenced by an EAD, associated employment authorization extension of their F nonimmigrant do not have the benefit of continued document (EAD)) is pending; status and, as applicable, of their on- work authorization once the EAD Æ Providing procedures specific to campus employment authorization, off- expires; the transition from D/S to admission for campus employment authorization due Æ Striking all references to ‘‘duration a fixed time period of authorized stay to severe economic hardship, or Science of status’’ and/or ‘‘duration of for F, J, and I nonimmigrants; and Technology Engineering and employment’’ for the F, J, and I Æ Replacing references to specific Mathematics Optional Practical nonimmigrant categories; and form names and numbers with general Training (STEM OPT) employment Æ Including a severability clause. In language, to account for future changes authorization, as well as evidence of the event that any provision is not to form names and numbers. employment authorization, for up to 180 implemented for whatever reason, DHS • Amend 8 CFR 214.2, Special days or until the relevant application is proposes that the remaining provisions requirements for admission, extension, adjudicated, whichever is earlier; be implemented in accordance with the Æ maintenance, and change of status, by: Allowing F nonimmigrants whose stated purposes of this rule. Æ Setting the authorized admission timely filed EOS applications remain • Amend 8 CFR 248.1, Eligibility, by: and extension periods for F and J pending after their admission period has Æ Establishing requirements to nonimmigrants (with limited expired to receive an auto-extension of determine the period of stay for F or J exceptions) up to the program length, their current authorization for on- nonimmigrants whose change of status not to exceed a 2- or 4-year period; campus and off-campus employment application was approved before the Æ Listing the circumstances, based on severe economic hardship Final Rule’s effective date and who including factors that relate to national resulting from emergent circumstances depart the United States, then seek security and program integrity concerns, under 8 CFR 214.2(f)(5)(v). The length of readmission after the Final Rule’s when the period of admission for F and the auto-extension of employment effective date; and J nonimmigrants may be limited to a authorization would be up to 180 days Æ Codifying the long-standing policy maximum of 2 years; or the end date of the Federal Register under which DHS deems abandoned an Æ Outlining procedures and notice (FRN) announcing the application to change to another requirements for F–1 nonimmigrants suspension of certain regulatory nonimmigrant status, including F or J who change educational levels while in requirements related to employment, status, if the alien who timely filed the F–1 status; whichever is earlier; application departs the United States Æ Providing limits on the number of Æ Prohibiting F nonimmigrants whose while the application is pending. times that F–1 nonimmigrants can admission period, as indicated on their • Amend 8 CFR 274a.12, Classes of change educational levels while in F–1 Form I–94, has expired while their aliens authorized to accept employment, status; timely filed EOS applications and by:

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Æ Striking references to ‘‘duration of classification for, among others, bona directs the Secretary to review the status,’’ to Form I–539, Application to fide students qualified to pursue a full compliance with recordkeeping and Extend/Change a Nonimmigrant Status, course of study who wish to enter the reporting requirements under 8 U.S.C. and to Form I–765, Application for United States temporarily and solely for 1101(a)(15)(F) and 1372 of all schools Employment Authorization; the purpose of pursuing a full course of approved for attendance by F students Æ Updating the employment study at an academic or language within two years of enactment, and authorization provisions to incorporate training school certified by ICE, Student every two years thereafter. the proposed revisions in 8 CFR 214.2. and Exchange Visitor Program (SEVP), D. Costs and Benefits as well as for the spouse and minor C. Legal Authorities children of such aliens. See also INA Currently, aliens in the F (academic The Secretary of Homeland Security’s 214(m), 8 U.S.C. 1184(m) (limiting the student), J (exchange visitor), and I (the Secretary) authority to propose the admission of nonimmigrants for certain (representatives of foreign information regulatory amendments in this rule can aliens who intend to study at public media) categories are admitted to the be found in various provisions of the elementary and secondary schools). United States under the duration of immigration laws and the changes in Section 101(a)(15)(I) of the INA, 8 status framework. However, admitting a this rule are proposed pursuant to these U.S.C. 1101(a)(15)(I), established, upon nonimmigrant for duration of status statutory authorities. a basis of reciprocity, the I creates a challenge to the Department’s Section 102 of the Homeland Security nonimmigrant classification for bona ability to efficiently monitor and Act of 2002 (HSA) (Pub. L. 107–296, 116 fide representatives of foreign oversee these nonimmigrants, because Stat. 2135), 6 U.S.C. 112, and section information media (such as press, radio, they may remain in the United States for 103(a)(1) and (3) of the Immigration and film, print) seeking to enter the United indefinite periods of time without being Nationality Act (INA), 8 U.S.C. 1103 States to engage in such vocation, as required to have immigration officers (a)(1), (3), charge the Secretary with the well as for the spouses and children of periodically assess whether they are administration and enforcement of the such aliens. complying with the terms and immigration and naturalization laws of Section 101(a)(15)(J) of the INA, 8 conditions of their status. Nor are the United States. Section 214(a) of the U.S.C. 1101(a)(15)(J), established the J immigration officers required to make INA, 8 U.S.C. 1184(a), gives the nonimmigrant classification for aliens periodic assessments of whether these Secretary the authority to prescribe, by who wish to come to the United States nonimmigrants present national security regulation, the time and conditions of temporarily to participate in exchange concerns. Under the D/S framework, admission of any alien as a visitor programs designated by the DOS, these nonimmigrants are required to nonimmigrant, including F, J, and I as well as for the spouses and minor have direct interaction with DHS nonimmigrant aliens. See also 6 U.S.C. children of such aliens. officials only if they file certain 271(a)(3), (b) (describing certain USCIS Within DHS, ICE’s SEVP is authorized applications, such as when applying for functions and authorities, including to administer the program to collect employment authorization for optional USCIS’ authority to establish national information related to nonimmigrant practical training or for reinstatement if immigration services policies and students and exchange visitors under they have failed to maintain status, or if priorities and adjudicate benefits various statutory authorities. Section they are the subject of an enforcement applications) and 6 U.S.C. 252(a)(4) 641 of The Illegal Immigration Reform action. To address these vulnerabilities, (describing ICE’s authority to collect and Immigrant Responsibility Act of DHS proposes to replace D/S with an information relating to foreign students 1996, Public Law 104–208, 110 Stat. admission for a fixed time period. and exchange visitor program 3009–546, 3009–704 (Sep. 30, 1996) Admitting individuals in the F, J, and I participants and to use such information (codified as amended at 8 U.S.C. 1372) categories for a fixed period of time to carry out its enforcement functions). (IIRIRA), authorizes the creation of a would require all F, J, and I Section 248 of the INA, 8 U.S.C. 1258, program to collect current and ongoing nonimmigrants who wish to remain in permits DHS to allow certain information provided by schools and the United States beyond their specific nonimmigrants to change their status exchange visitor programs regarding F authorized admission period to apply from one nonimmigrant status to and J nonimmigrants during the course for authorization to extend their stay another nonimmigrant status, with of their stays in the United States, using with USCIS if in the United States or if certain exceptions, as long as they electronic reporting technology where abroad then to apply for admission at a continue to maintain their current practicable. Consistent with this POE with CBP, thus requiring periodic nonimmigrant status and are not statutory authority, DHS manages these assessments by DHS in order to remain inadmissible under section programs pursuant to Homeland in the United States for a longer period. 212(a)(9)(B)(i) of the Act, 8 U.S.C. Security Presidential Directive-2 This change would impose incremental 1182(a)(9)(B)(i). Like extensions of stay, (HSPD–2), Combating Terrorism costs on F, J, and I nonimmigrants, but change of status adjudications are Through Immigration Policies (Oct. 29, would in turn protect the integrity of the discretionary determinations.15 Also, 2001), as amended, http://www.gpo.gov/ F, J and I programs by having section 274A of the INA, 8 U.S.C. 1324a, fdsys/pkg/CPRT-110HPRT39618/pdf/ immigration officers evaluate and assess governs the employment of aliens who CPRT-110HPRT39618.pdf), and section the appropriate length of stay for these are authorized to be employed in the 502 of the Enhanced Border Security nonimmigrants. United States by statute or in the and Visa Entry Reform Act of 2002, The period of analysis for the rule discretion of the Secretary. Public Law 107–173, 116 Stat. 543, 563 covers 10 years and assumes the Finally, the INA establishes who may (May 14, 2002) (EBSVERA). HSPD–2 proposed rule would go into effect in be admitted as F, J, or I aliens. requires the Secretary of Homeland 2020. Therefore, the analysis period Specifically, section 101(a)(15)(F) of the Security to conduct periodic, ongoing goes from 2020 through 2029. This INA, 8 U.S.C. 1101(a)(15)(F)(i), reviews of institutions certified to analysis estimates the annualized value established the F nonimmigrant accept F nonimmigrants, and to include of future costs using two discount rates: checks for compliance with 3 percent and 7 percent. In Circular A– 15 See INA 248(a), 8 U.S.C. 1258(a); 8 CFR recordkeeping and reporting 4, OMB recommends that a 3 percent 248.1(a). requirements. Section 502 of EBSVERA discount rate be used when a regulation

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affects private consumption, and a 7 students.20 The new rule became 1 students must request an EOS or percent discount rate be used in effective on January 1, 1979.21 reinstatement.29 evaluating a regulation that will mainly Subsequently, the regulations In 1991, the regulations were further displace or alter the use of capital in the addressing the admission periods for revised to implement Section 221(a) of private sector. The discount rate nonimmigrant students were amended the Immigration Act of 1990 (IMMACT accounts for how costs that occur sooner four more times between January 23, 90), Public Law 101–649, 104 Stat. 4978, are more valuable. The NPRM would 1981, and October 29, 1991.22 On which established a three-year off- have an annualized cost ranging from January 23, 1981, the former INS issued campus program for F–1 students.30 In $229.9 million to $237.8 million (with a rule eliminating D/S for F–1 the 1991 Final Rule, legacy INS also 3 and 7 percent discount rates, nonimmigrants and limiting their clarified and simplified the procedures respectively). admission to a fixed period of for F–1 students seeking EOS and admission, i.e., the time necessary to employment authorization. This III. Background complete the course of study, with the included giving DSOs authority to grant opportunity for an EOS on a case-by- a program extension (and therefore an A. Regulatory History of Duration of case basis.23 Legacy INS explained this EOS) for in-status students with a Status was necessary because admitting compelling academic or medical reason i. F Classification nonimmigrants students for D/S for failing to complete their educational resulted in questionable control over program by the program end date on Section 101(a)(15)(F)(i) of the INA, 8 foreign students and contributed to their Form I–20.31 The rule required U.S.C. 1101(a)(15)(F)(i), permits aliens problems in record keeping.24 DSOs to notify legacy INS of the who are bona fide students to On April 5, 1983, legacy INS extension.32 In the rulemaking, legacy temporarily be admitted to the United reinstituted D/S, while addressing areas INS specifically agreed to allow DSOs to States solely for the purpose for of concern identified after the 1978 issue program extensions, explaining pursuing a full course of study at an implementation of D/S for that ‘‘with the DSOs screening out established college, university, nonimmigrant students.25 The ineligible students, the Service is seminary, conservatory, academic high amendments implemented new satisfied that the purposes of the EOS school, elementary school, or other notification procedures for transfers can be effectively met through the academic language training program. between schools and new record- notification procedure.’’ 33 Pursuant to Principal applicants are categorized as keeping and reporting requirements for the 1991 Final Rule, DHS has relied on F–1 nonimmigrant aliens and their Designated School Officials (DSO).26 DSOs to report student status violators, spouses and minor children may These amendments also limited D/S to issue program extensions, and transfer accompany or follow to join them as F– the period when a student was enrolled students between programs and schools. 2 dependents.16 in one educational level and required ii. J Classification nonimmigrant students to apply for an From 1973 to 1979, F students were EOS and, if applicable, a school transfer The J nonimmigrant classification was admitted for 1-year and could be to pursue another educational program created in 1961 by the Mutual granted an EOS in increments of up to at the same level of educational Educational and Cultural Exchange Act 1-year if they established that they were attainment.27 of 1961, also known as the Fulbright- maintaining status.17 However, on July On April 22, 1987, legacy INS refined Hays Act of 1961, Public Law 87–256, 26, 1978, given the large number of the April 5, 1983, regulatory package, 75 Stat. 527 (22 U.S.C. 2451, et seq.), to nonimmigrant students in the United again amending regulations regarding increase mutual understanding between States at the time and the need to F–1 students.28 Additional regulations the people of the United States and the continually process their EOS explained which medical and academic people of other countries by means of applications, legacy INS proposed reasons allowed F–1 students to drop educational and cultural exchanges. It amending the regulations to permit F– below a full-time course of study and authorizes foreign nationals to 1 aliens to be admitted for the duration remain in status and clarified when F– participate in a variety of exchange of their status as students.18 Legacy INS visitor programs in the United States. explained the changes would facilitate 20 See 43 FR 54618 (Nov. 22, 1978) (The period The Exchange Visitor Program the admission of nonimmigrant of admission of a nonimmigrant student shall be for regulations cover the following program the duration of Status in the United States as a categories: Professors and research students, provide dollar and manpower student if the information on his/her form 1–20 scholars, short-term scholars, trainees savings to the Government, and permit indicates that he/she will remain in the United and interns, college and university more efficient use of resources.19 On States as a student for more than 1 year. If the information on form 1–20 indicates the student will students, teachers, secondary school November 22, 1978, the final rule was remain in the United States for 1 year or less, he/ students, specialists, alien physicians, published amending the regulations at 8 she shall be admitted for the time necessary to complete his/her period of study). CFR 214 to allow INS to admit F–1 29 Id. 21 Id. aliens for the duration of their status as 30 See 56 FR 55608 (Oct. 29, 1991). 22 See 46 FR 7267 (Jan. 23, 1981), 48 FR 14575 31 Form I–20, Certificate of Eligibility for (Apr. 5, 1983); 52 FR 13223 (Apr. 22, 1987); 56 FR Nonimmigrant Student Status, is the document 55608 (Oct. 29, 1991). used by DHS that provides supporting information 23 See 46 FR 7267 (Jan. 23, 1981). for the issuance of a student visa. Applicants 24 Id. (including dependents) must have a Form I–20 to 25 See 48 FR 14575 (Apr. 5, 1983). apply for a student visa, to enter the United States, 16 INA 101(a)(15)(F)(i)–(ii), 8 U.S.C. 26 A Designated School Official (DSO) means a and to apply for an employment authorization 1101(a)(15)(F)(i)–(ii); 8 CFR 214.2(f)(3). regularly employed member of the school document to engage in optional practical training. administration whose office is located at the school See SEVP’s web page, Form I–20, ‘‘Certificate of 17 See 38 FR 35425 (Dec. 28, 1973) (The period and whose compensation does not come from Eligibility for Nonimmigrant Student Status’’ at of admission of a non-immigrant student shall not commissions for recruitment of foreign students. https://studyinthestates.dhs.gov/student- exceed one-year.) See 8 CFR 214.3(l). forms?form=Forms_I-20 (last visited Jan. 29, 2020). 18 See 43 FR 32306 (Jul. 26, 1978). 27 See 48 FR 14575, 84 (Apr. 5, 1983). 32 See 56 FR 55608 (Oct. 29, 1991). 19 See 43 FR 32306, 32306–07 (Jul. 26, 1978). 28 See 52 FR 13223 (Apr. 22, 1987). 33 Id.

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international visitors, government Extensions of J exchange visitor regulations to allow nonimmigrant visitors, camp counselors, au pairs, and programs are governed by DOS foreign information media summer work travel.34 regulations.39 If there is authority to representatives to be admitted for the Prior to 1985, J exchange visitors were extend a program, the exchange visitor duration of their employment.44 This granted an initial admission for the program sponsor’s Responsible Officer change from a set time period of period of their program up to one year.35 (RO),40 similar to the DSO in the F–1 admission to admission for duration of In 1985, the regulations were amended student context, is authorized to extend employment for I nonimmigrants was to allow J exchange visitors to be a J exchange visitor’s program by issuing implemented as part of a continuing admitted for the duration of their a duly executed Form DS–2019.41 effort to reduce reporting requirements program plus 30 days.36 This change Requests for extensions beyond the for the public, as well as the paperwork from being admitted for a fixed period maximum program duration provided in burden associated with processing to D/S was implemented as part of a the regulations must be approved by extension requests on the agency.45 continuing effort to reduce reporting DOS, which adjudicates these Through its administration of the requirements for the public as well as extensions. USCIS does not adjudicate regulations authorizing I nonimmigrants the paperwork burden associated with these program extensions. admission for duration of employment, processing extension requests on the DHS currently admits all I iii. I Classification agency.37 nonimmigrants for D/S with the A prospective exchange visitor must Section 101(a)(15)(I) of the INA exception of those presenting a passport be sponsored by a DOS-designated defines the I classification as, upon a issued by the People’s Republic of program sponsor to be admitted to the basis of reciprocity, an alien who is a China.46 United States in the J nonimmigrant bona fide representative of foreign press, category and participate in an exchange radio, film, or other foreign information B. Risks to the Integrity of the F, J, and visitor program. The DOS designated media who seeks to enter the United I Nonimmigrant Classifications sponsor will issue a prospective J States solely to engage in such vocation, i. General Risks and the spouse and children of such a exchange visitor a Form DS–2019, DHS welcomes F academic students, representative, if accompanying or Certificate of Eligibility for Exchange J exchange visitors, and I representatives following to join him. Nonimmigrant Visitor (J–1) Status. The DS–2019 of foreign information media, but it also foreign information media permits a prospective exchange visitor acknowledges that the sheer size of the representatives are currently admitted to apply for a J–1 nonimmigrant visa at population complicates its oversight for the duration of their employment. a U.S. embassy or consulate abroad or and vetting functions. Since legacy INS They are not permitted to change their seek admission as a J–1 nonimmigrant at introduced D/S in 1979, the number of information medium or employer until a port of entry. A J–1 exchange visitor F nonimmigrant students admitted into is admitted into the United States for D/ they obtain permission from USCIS.42 From 1973 to 1985, aliens admitted to the United States has more than S, which is the length of his or her quadrupled. Similarly, since D/S was exchange visitor program.38 the United States in I nonimmigrant status were admitted for a period of 1 introduced for J and I nonimmigrants in 43 1985, the number of exchange visitors 34 year with the possibility of extensions. See INA 101(a)(15)(J), 8 U.S.C. 1101(a)(15)(J), admitted into the United States has and 22 CFR 62.20–62.32. In 1985, legacy INS amended the 35 See 8 CFR 214.2(j)(1)(ii) (1985). more than quadrupled while the 36 See 50 FR 42006 (Oct. 17, 1985). no corrections to the record can be made until that number of representatives of foreign 37 Id. time. In addition, in the event a visa is needed for information media has more than 38 Form DS–2019, Certificate of Eligibility for a dependent spouse or child, the system will not doubled.47 Exchange Visitor (J–1) Status, is the document permit a new Form DS–2019 to be created until The Department uses the Student and required to support an application for an exchange after the primary’s SEVIS record is validated. See Exchange Visitor Information System visitor visa (J–1). It is a 2-page document that can 9 FAM 402.5–6(D)(1) (U) The Basic Form available only be produced through the Student and at https://fam.state.gov/fam/09FAM/ (SEVIS), a web-based system, to _ _ _ Exchange Visitor Information System (SEVIS). 09FAM040205.html#M402 5 6 D (last visited Jan. maintain information regarding: SEVP- SEVIS is the DHS database developed to collect 29, 2020). While applicants must still present a certified schools; F–1 students studying information on F, M, and J nonimmigrants (see 8 paper Form DS–2019 to DOS in order to qualify for in the United States (and their F–2 U.S.C. 1372 and 6 U.S.C. 252(a)(4)). The potential a visa, the SEVIS record is the definitive record of exchange visitor’s signature on page one of the form student or exchange visitor status and visa 44 is required. Page 2 of the current Form DS–2019 eligibility. See 9 FAM 402.5–4(B) (U), Student and See 8 CFR 214.2(i); 50 FR 42006 (Oct. 17, 1985). consists of instructions and certification language Exchange Visitor Information System (SEVIS) 45 Id. relating to participation. No blank Forms DS–2019 Record is Definitive Record, available at https:// 46 85 FR 27645 (May 11, 2020). Note that the exist. Each Form DS–2019 is printed with a unique fam.state.gov/FAM/09FAM/09FAM040205.html requirements in the May 11, 2020 Final Rule do not identifier known as a ‘‘SEVIS ID number’’ in the top (last visited Jan. 29, 2020). apply to Hong Kong Special Administrative Region right-hand corner, which consists of an ‘‘alpha’’ 39 See 22 CFR part 62. These programs vary in (SAR) or Macau SAR passport holders. This character (N) and 10 numerical characters (e.g., length. For example, professors and research proposed rule updates the requirements to remove N0002123457). The Department of State’s Office of scholars are generally authorized to participate in the exception for Hong Kong passport holders, who Private Sector Exchange Designation in the Bureau the Exchange Visitor Program for the length of time will be admitted in the same manner as those of Education and Cultural Affairs (ECA/EC/D) necessary to complete the program, provided such presenting a passport issued by the People’s designates U.S. organizations to conduct exchange time does not exceed five years. See 22 CFR Republic of China. visitor programs. These organizations are known as 62.20(i)(1). And alien physicians, are generally 47 As noted above, in fiscal year (FY) 2016, there program sponsors. When designated, the limited to seven years. See 22 CFR 62.27(e)(2). were approximately 1.11 million F and J organization is authorized access to SEVIS and is 40 A Responsible Officer (RO) is an employee or nonimmigrants residing in the United States. See then able to produce Form DS–2019 from SEVIS. officer of a sponsor who has been nominated by the DHS Office of Immigration Statistics (OIS) The program sponsor signs the completed Forms sponsor, and approved by the Department of State, Population Estimates, Nonimmigrants Residing in DS–2019 in blue ink and transmits them to the to carry out the duties outlined in 22 CFR 62.11. the United States: Fiscal Year 2016 (March 2018), potential exchange visitor and his or her spouse and 41 See 22 CFR 62.43. A RO must be a citizen of [USCIS: see edits] available at https://www.dhs.gov/ minor children. J visa applicants must present a the United States or a lawful permanent resident of sites/default/files/publications/Nonimmigrant_ signed Form DS–2019 at the time of their visa the United States. See 22 CFR 62.2. Population%20Estimates_2016_0.pdf (last visited interview. Once the visa is issued, however, the 42 See 8 CFR 214.2(i). Jan. 22, 2020). In 2018, 48,405 aliens were admitted SEVIS record cannot be updated until the 43 See 38 FR 35425 (Dec. 28, 1973). See also 50 into the United States in I status. See DHS OIS 2018 participant’s program is validated (‘‘Active’’ in FR 42006 (Oct. 17, 1985), stating that prior to the Yearbook of Immigration Studies (Nov. 13, 2019) SEVIS). The sponsor is required to update the publication of this rule, I nonimmigrants were available at https://www.dhs.gov/immigration- SEVIS record upon the exchange visitor’s entry and admitted for one year. statistics/yearbook/2018 (last visited Jan. 29, 2020).

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dependents); M–1 students enrolled in institutions and local communities, the program extensions to students who did vocational programs in the United Department is aware that the F–1 not have compelling medical or States (and their M–2 dependents); program is subject to fraud, exploitation, academic reasons for failing to complete DOS-designated Exchange Visitor and abuse. Since 2008, multiple school their program by its end date,52 and Program sponsors; and J–1 Exchange owners and others have been criminally some DSOs permitted students who Visitor Program participants (and their prosecuted for ‘‘pay-to-stay’’ fraud, in failed to maintain status to transfer to J–2 spouses and dependents). which school officials, in return for cash another school rather than apply for Employees of educational institutions payments, falsely report that F–1 reinstatement.53 Beyond cases publicly and program sponsors, specifically students who do not attend school are identified by DHS and the Department DSOs and ROs, play a large role in maintaining their student status.49 In of Justice (DOJ), DHS is concerned about SEVIS. They are responsible for some cases, convicted school owners cases where DSOs were not aware of monitoring students and exchange operated multiple schools and status violations by students. visitors, accurately entering information transferred students among them to Apart from concerns about DSOs and about the students’ and exchange conceal the fraud.50 DHS is also school owners involved in fraudulent visitors’ activities into SEVIS, and concerned that DSOs at these schools schemes, DHS also has concerns about properly determining whether the were complicit in these abuses; some the actions of the aliens themselves. student or exchange visitor’s SEVIS DSOs intentionally recorded a student’s Some aliens have used the F record should remain in active status or status inaccurately,51 some issued classification to reside in the United change to reflect a change in States for decades by continuously circumstances.48 Under this framework, 49 DOJ Press Release, ‘‘Operator of English enrolling in or transferring between language schools charged in massive student visa an academic student or exchange visitor fraud scheme,’’ April 9, 2008, available at https:// schools, a practice facilitated by the D/ generally maintains lawful status by www.justice.gov/archive/usao/cac/Pressroom/ S framework.54 DHS has identified complying with the conditions of the pr2008/038.html (last visited Jan. 27, 2020); DOJ aliens who have been in the United program, as certified by the DSO or RO. Press Release, ‘‘Owner/Operator and employee of States in F–1 status since the 1990s and Miami-based school sentenced for immigration- However, a program extension and an related fraud,’’ Aug. 30, 2010, available at https:// early 2000s, some of whom are in active extension of an alien’s nonimmigrant www.justice.gov/archive/usao/fls/PressReleases/ F–1 status today. To extend their stay, stay are different. The Department 2010/100830-02.html (last visited Jan. 27, 2020); believes it is appropriate for the DSO to ICE Press Release, ‘‘Pastor sentenced to 1 year for English language school sentenced for immigration visa fraud, ordered to forfeit building housing recommend an extension of an fraud,’’ May 7, 2014, see https://www.ice.gov/news/ former religious school,’’ June 13, 2011, available at releases/owner-georgia-english-language-school- academic program and an RO to https://www.ice.gov/news/releases/pastor- sentenced-immigration-fraud; ICE Press Release, ‘‘3 recommend an extension of an exchange sentenced-1-year-visa-fraud-ordered-forfeit- senior executives of for-profit schools plead guilty visitor program; however, an EOS building-housing-former-religious (last visited Jan. to student visa, financial aid fraud,’’ Apr. 30, 2015, 27, 2020); DOJ Press Release, ‘‘School Official involves an adjudication of whether an see https://www.ice.gov/news/releases/3-senior- Admits Visa Fraud,’’ Mar. 12, 2012, available at executives-profit-schools-plead-guilty-student-visa- alien is legally eligible to extend his or https://www.justice.gov/archive/usao/pae/News/ _ financial-aid-fraud; ICE Press Release ‘‘Owner of her stay in the United States in a given 2012/Mar/tkhir release.htm (last visited Jan. 27, schools that illegally allowed foreign nationals to 2020); ICE Press Release, ‘‘Owner of Georgia English remain in US as ‘students’ sentenced to 15 months immigration status and has been language school sentenced for immigration fraud,’’ complying with the terms and in federal prison,’’ Apr. 19, 2018, see https:// May 7, 2014, available at https://www.ice.gov/news/ www.ice.gov/news/releases/owner-schools-illegally- conditions of his or her admission. The releases/owner-georgia-english-language-school- allowed-foreign-nationals-remain-us-students- sentenced-immigration-fraud (last visited Jan. 27, Department believes that the sentenced-15. 2020); ICE Press Release, ‘‘3 senior executives of 52 determinations of program extension for-profit schools plead guilty to student visa, For example, DHS identified a nonimmigrant and extension of stay should be financial aid fraud,’’ (last visited Jan. 27, 2020); who has been an F–1 student at a dance school Apr. 30, 2015, available at https://www.ice.gov/ since 1991 and who has been issued 16 program separated, with the DSO’s and RO’s extensions since 2003, when the use of SEVIS was recommendation being one factor an news/releases/3-senior-executives-profit-schools- plead-guilty-student-visa-financial-aid-fraud (Jan. first mandated. Although the reported normal immigration officer reviews while 27, 2020); ICE Press Release ‘‘Owner of schools that length of the program is 5 years, the school has adjudicating an application for EOS. illegally allowed foreign nationals to remain in US issued multiple program extensions by claiming as ‘students’ sentenced to 15 months in federal that ‘‘[t]he student needs more time’’ despite 28 Changing to a fixed period of admission years of enrollment. In another concerning would give immigration officers a prison,’’ Apr. 19, 2018, available at https:// www.ice.gov/news/releases/owner-schools-illegally- extension of an academic program, an F–1 student mechanism to make this evaluation at allowed-foreign-nationals-remain-us-students- was enrolled at an accredited language training reasonably frequent intervals. sentenced-15 (last visited Jan. 27, 2020). school from 2007 to 2020, requiring 15 program 50 ICE Press Release, ‘‘3 senior executives of for- extensions. Another student who was enrolled at Additionally, DHS expects this the same school from 2009 to 2020 and has been change would deter and prevent fraud, profit schools plead guilty to student visa, financial aid fraud,’’ April 30, 2015, available at https:// an F–1 student since 2005, was granted 14 program as a requirement to check-in directly www.ice.gov/news/releases/3-senior-executives- extensions. The school, which has had its SEVP- with an immigration officer inherently profit-schools-plead-guilty-student-visa-financial- certification withdrawn, issued multiple program aid-fraud (last visited Jan. 27, 2020). extensions for each student with the justification of is likely to deter some bad actors from ‘‘[e]xtended studies.’’ F–1 students in doctoral exploiting perceived vulnerabilities in 51 DOJ Press Release, ‘‘Operator of English language schools charged in massive student visa programs have taken over 20 years to complete their the F and J nonimmigrant categories. fraud scheme,’’ April 9, 2008, see https:// programs. F–1 students at community colleges have The same benefits of direct evaluation, www.justice.gov/archive/usao/cac/Pressroom/ been enrolled in associate degree programs for pr2008/038.html; DOJ Press Release, ‘‘Owner/ periods in excess of 5 years—some for as long as better recordkeeping, and fraud a decade. prevention also would apply to the I Operator and employee of Miami-based school sentenced for immigration-related fraud,’’ Aug. 30, 53 ICE Press Release, ‘‘3 senior executives of for- population. 2010, see https://www.justice.gov/archive/usao/fls/ profit schools plead guilty to student visa, financial PressReleases/2010/100830-02.html; ICE Press aid fraud,’’ April 30, 2015, see https://www.ice.gov/ ii. Risks to the F Classification Release, ‘‘Pastor sentenced to 1 year for visa fraud, news/releases/3-senior-executives-profit-schools- While the F program provides ordered to forfeit building housing former religious plead-guilty-student-visa-financial-aid-fraud. school,’’ June 13, 2011, see https://www.ice.gov/ 54 Monitoring F–1 students on post-completion enormous benefits to academic news/releases/pastor-sentenced-1-year-visa-fraud- OPT can be even more complicated because the ordered-forfeit-building-housing-former-religious; students are no longer attending classes. See GAO, 48 8 CFR 214.3(g)(1), (g)(2) (detailing a DSO’s DOJ Press Release, ‘‘School Official Admits Visa Student and Exchange Visitor Program, DHS Needs reporting requirements); 214.4(a)(2) (stating that Fraud,’’ Mar. 12, 2012, see https://www.justice.gov/ to Assess Risks and Strengthen Oversight of Foreign failure to comply with reporting requirements may archive/usao/pae/News/2012/Mar/tkhir_ Students with Employment Authorization, GAO– result in loss of SEVP certification). release.htm; ICE Press Release, ‘‘Owner of Georgia 14–356 (Washington, DC, Feb. 27, 2014).

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these aliens enrolled in consecutive risks to SEVP related to managing nonimmigrant’s specific program, not to educational programs, transferred to school recertification and program exceed a 2- or 4-year period. It would new schools, or repeatedly requested training. The report included establish a mechanism for immigration DSOs to extend their program end dates. vulnerabilities associated with officers to assess these nonimmigrants at This practice is not limited to any one involving school owners and DSOs in defined periods (such as when applying particular type of school; students at overseeing the maintenance of status of for an extension of stay in the United community or junior colleges, F–1 students.57 In the report, GAO States beyond a 2- or 4-year admission universities, and language training identified fraud vulnerabilities on the period) and determine whether they are schools have maintained F–1 status for part of both students and schools. complying with the conditions of their lengthy periods. While these instances Examples include students claiming to classification. Immigration officers of extended stay may not always result maintain status when they are not, such receive background checks, clearances, in technical violations of the law, DHS as failing to attend class or working and training before DHS authorizes is concerned that such stays violate the without appropriate authorization, or them to implement the nation’s spirit of the law, given that student school owners not requiring enrolled immigration laws, which includes as status is meant to be temporary and for students to attend classes or creating part of adjudicating the application, the primary purpose of studying, not as fraudulent documentation for students whether nonimmigrants meet the a way to remain in the United States who are ineligible for the academic requirements to extend their stay, indefinitely. program. GAO recommended that ICE whether a student has violated his or The use of the F classification to develop a fraud risk profile and use data her nonimmigrant status without the remain in the United States for decades analytics to identify potential fraud DSO’s awareness or whether DSOs are raises doubts that the alien’s intention indicators in schools petitioning for engaging in fraud by not requiring was to stay in the United States certification, develop and implement students to attend classes or by temporarily, as required by the INA.55 It fraud training for DSOs, and strengthen falsifying documents. Immigration also raises concerns as to whether those background checks for DSOs. ICE is officers are further trained to assess aliens are bona fide nonimmigrant making a concerted effort to comply applications for fraud indicators, and students who are maintaining valid with GAO’s recommendations, and has conduct reviews and vetting that may lawful status by complying with the implemented controls to address the assist in the detection of fraud or abuse. terms of their admission, which include fraud risks identified in the GAO report This would allow DHS to identify and solely pursuing a full course of study through stricter scrutiny during the hold accountable aliens who violate and progressing to completing a course SEVP school certification, recertification their F–1 status and their educational of study. Likewise, it raises concerns as and compliance process.58 institutions. Under the current D/S to whether these aliens have the DHS believes it can mitigate these framework, DHS might not detect an financial resources to cover tuition and fraud risks in part through, as this rule individual F–1 status violation for an living expenses without engaging in proposes, setting the authorized extended period if the student stays unauthorized employment. admission and extension periods for F enrolled in a school, does not seek Further, while some school owners nonimmigrants as the length of the F readmission to the United States, and and school executives have faced legal does not apply for additional consequences for their violation of the 57 In a 2019 report, GAO was asked to review immigration benefits. If DHS makes law, nonimmigrants admitted for D/S potential vulnerabilities to fraud in the Student and periodic assessments to verify that F–1 generally do not accrue unlawful Exchange Visitor Program. GAO examined, among students are maintaining their student presence for purposes of the 3- and 10- other things, the extent to which ICE (1) implemented controls to address fraud risks in the status, DHS could better detect and year bars described in INA 212(a)(9)(B) school certification and recertification processes mitigate against these violations as well and (C), 8 U.S.C. 1182(a)(9)(B) and (C) and (2) implemented fraud risk controls related to as violations by their school.59 The unless an immigration officer finds they DSO training. See DHS Can Take Additional Steps proposed rule creates opportunities for have violated their status in the context to Manage Fraud Risks Related to School Recertification and Program Oversight, GAO–19– this scrutiny if these nonimmigrants of adjudicating an immigration benefit 297: Published: Mar 18, 2019 available at https:// wish to remain beyond their fixed request, or an immigration judge orders www.gao.gov/assets/700/697630.pdf; Overstay period of admission. This may also have them excluded, deported, or removed.56 Enforcement: Additional Mechanisms for the effect of deterring actors who would Because F–1 nonimmigrant students are Collecting, Assessing, and Sharing Data Could Strengthen DHS’s Efforts but Would Have Costs, otherwise seek to come to the United admitted for D/S, they generally do not GAO–11–411: Published Apr. 15, 2011. Available at States and engage in some of the file applications or petitions, such as https://www.gao.gov/assets/320/317762.pdf; and behaviors discussed above, believing extension of stay, with USCIS, and Student and Exchange Visitor Program: DHS Needs they would be able to do so undetected therefore, immigration officers do not to Assess Risks and Strengthen Oversight for long periods of time. DHS believes Functions, GAO–12–572: Published June 18, 2012 generally have an opportunity to available at https://www.gao.gov/assets/600/ this is a more appropriate way to determine whether they are engaging in 591668.pdf. maintain the integrity of the U.S. F–1 nonimmigrant activities in the 58 Since publishing its 2019 report, GAO has immigration system. Additionally, the United States and maintaining their F– updated its website to include comments to the Department believes that the proposed 1 nonimmigrant status. Recommendations for Executive Action included therein. The comments indicate that ICE is in the changes would allow immigration The U.S. Government Accountability process of addressing GAO’s concerns and has officers to directly verify, among other Office (GAO) has reported on DHS’s taken steps to implement the report’s things, that students applying for an concerns about DSOs and nonimmigrant recommendations, including making a public EOS: Have the funds needed to live and students. In 2019, GAO and ICE announcement regarding changing the timeline for study in the United States without published a report identifying fraud the recertification notification process for schools. See U.S. Government Accountability Office, Student and Exchange Visitor Program: DHS Can 59 For example, SEVP may withdraw a school’s 55 See INA section 101(a)(15)(F)(i), 8 U.S.C. Take Additional Steps to Manage Fraud Risks certification or deny a school’s recertification if a 1101(a)(15)(F)(i). Related to School Recertification and Program DSO issues a false statement, including wrongful 56 See USCIS Interoffice Memorandum, Oversight, RECOMMENDATIONS, GAO.gov, certification of a statement by signature, in ‘‘Consolidation of Guidance Concerning Unlawful https://www.gao.gov/products/GAO-19- connection with a student’s school transfer or Presence for Purposes of Sections 212(a)(9)(B)(i) 297?mobile_opt_out=1#summary_recommend (last application for employment or practical training. and 212(a)(9)(C)(i)(I) of the Act’’ (May 6, 2009). visited April 7, 2020). See 8 CFR 214.4(a)(2)(v).

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engaging in unauthorized work; are D/S for F–1 students with admission for are multiple examples of these ongoing maintaining a residence abroad to a fixed time period would help mitigate national security threats. For example, which they intend to return; have these national security risks by ensuring in September 2019, a stark illustration pursued and are pursuing a full course an immigration official directly and of state-sponsored efforts to illegally of study; and are completing their periodically vets applicants for obtain U.S. technology emerged when studies within the 4 year generally extensions of stay and, in so doing, the FBI charged Chinese government applicable timeframe relating to their confirms they are engaged only in official Liu Zhongsan with conspiracy to post-secondary education programs in activities consistent with their student fraudulently procure U.S. research the United States or are able to provide status. F–1 nonimmigrants applying for scholar visas for Chinese officials whose a permissible explanation for taking a EOS will also be required to establish actual purpose was to recruit U.S. longer period of time to complete the they are admissible, and failure to do so scientists for high technology program. will result in denial of the EOS. development programs within China.64 Finally, the D/S framework, because it Admissibility grounds are complex and Additionally, in December 2019, a 29- reduces opportunities for direct vetting are properly assessed by a trained DHS year-old graduate student in J–1 status of foreign academic students by officer. Such an assessment is not participating in an exchange visitor immigration officers, creates currently made when F–1 program at Harvard University was opportunities for foreign adversaries to nonimmigrants apply for an extension stopped at Boston Logan International exploit the F–1 program and undermine of their program with their institution.61 Airport. Federal agents determined he U.S. national security. An open Significantly, under the proposed was a ‘‘high risk for possibly exporting education environment in the United changes to the period of admission of F undeclared biological material’’ after States offers enormous benefits, but it nonimmigrants and the applicable EOS finding 21 vials of brown liquid also places research universities and the process, DHS would collect biometrics wrapped in a plastic bag inside a sock nation at risk for economic, academic, and other information (such as evidence in his checked luggage; typed and or military espionage by foreign of financial resources to cover expenses handwritten notes indicated ‘‘that [the students. Foreign adversaries are using and evidence of criminal activity) from exchange visitor] . . . was knowingly progressively sophisticated and F nonimmigrant students more gathering and collecting intellectual resourceful methods to exploit the U.S. frequently, thereby enhancing the property . . . possibly on behalf of the educational environment, including Government’s oversight and monitoring Chinese government.’’ 65 Recently, in well-documented cases of espionage of these aliens. June 2020, a Chinese national who through the student program.60 entered the United States on a J–1 visa Detecting and deterring emerging threats iii. Risks to the J Classification to conduct research at the University of to U.S. national security posed by DHS believes that the national California, San Francisco (UCSF) was adversaries exploiting the F–1 program security risks posed by D/S admissions arrested at Los Angeles International requires additional oversight. DHS for individuals admitted under the J Airport while attempting to return to believes that replacing admissions for classification are similar to those posed China, and charged with visa fraud. According to court documents, he by the F classification.62 According to a 60 In Dec. 2019, Weiyn Huang, the owner of allegedly is an officer with the People’s December 2018 report by a panel of Findream and Sinocontech pleaded guilty to Republic of China’s (PRC) People’s conspiracy to commit visa fraud in the U.S. District experts commissioned by the National Liberation Army and provided Court in Chicago. In return for payments, Findream Institutes of Health (NIH) to study fraudulent information about his listed aliens as OPT workers, providing them with foreign influence on federally-funded what appeared to be legal status. The FBI has military service in his visa application. scientific research, ‘‘Small numbers of charged one of those aliens with spying. See https:// He allegedly was instructed by his media.nbcbayarea.com/2019/09/KellyHuang scientists have committed serious military lab supervisor to bring back to CriminalComplaint.pdf. This vulnerability violations of NIH’s policies and systems presented in the nonimmigrant student category has China information about the lab at by not disclosing foreign support been highlighted by the FBI. In a 2018 hearing UCSF.66 (grants), laboratories, or funded faculty before the Senate Intelligence Committee, the FBI Exchange visitor program categories Director testified about the threat from China positions in other countries.’’ 63 There noting, ‘‘that the use of nontraditional collectors, include college and university students, especially in the academic setting, whether it’s which share similarities with the F–1 61 In addition, DSOs may not be aware of a professors, scientists, students, we see in almost student’s failure to maintain status, including nonimmigrant classification. Students every field office that the FBI has around the engaging in criminal activity, nor do they have the enrolled in such programs are pursuing country. It’s not just in major cities. It’s in small authority or ability to acquire such information. ones as well. It’s across basically every discipline. post-secondary studies alongside F–1 Admitting F–1s for a fixed period of admission I think the level of naivete´ on the part of the nonimmigrants. J–1 college and academic sector about this creates its own issues. would provide trained immigration officers with They’re exploiting the very open research and the opportunity to vet these individuals. 62 students and post-doctoral fellows, as well as development environment that we have, which we In its 2019 Report to Congress, the U.S.-China foreign employees. all revere, but they’re taking advantage of it. So, one Economic and Security Review Commission, the 64 of the things we’re trying to do is view the China Commission described the U.S. Government’s U.S. Department of Justice, Chinese threat as not just a whole of government threat, but efforts to curb China’s extensive influence and Government Employee Charged in Manhattan a whole of society threat on their end. I think it’s espionage activities in academic and commercial Federal Court with Participating in Conspiracy to going to take a whole of society response by us. So, settings. The Commission noted that these efforts Fraudulently Obtain U.S. Visas, Sept. 16, 2019. it’s not just the intelligence community, but it’s took the form of visa restrictions for Chinese 65 See https://www.bostonherald.com/2019/12/ raising awareness within our academic sector, nationals, greater scrutiny of federal funding 30/peoples-republic-of-china-may-be-behind-theft- within our private sector, as part of the defense.’’ awarded to universities, legal action against those of-bio-samples-by-harvard-sponsored-chinese- See Senate Select Committee on Intelligence suspected of theft or espionage, and new legislation. student-feds-say/. See also https:// Hearing (Feb. 13, 2018), transcript available at See U.S.-China Economic And Security Review www.thedailybeast.com/china-might-be-behind- https://www.intelligence.senate.gov/hearings/open- Commission, 2019 Annual Report to Congress (Nov. harvard-student-zaosong-zhengs-theft-of-cancer- hearing-worldwide-threats-0#. See also Foreign 2019) available at https://www.uscc.gov/annual- research-feds-claim. Threats to Taxpayer—Funded Research: Oversight report/2019-annual-report. 66 U.S. Department of Justice, Officer of China’s Opportunities and Policy Solutions: Hearing before 63 U.S. National Institutes of Health Advisory People’s Liberation Army Arrested At Los Angeles the Senate Finance Committee (2019) (Statement of Committee to the Director (ACD), ACD Working International Airport, June 11, 2020, https:// Louis A. Rodi III). DSOs are not trained immigration Group for Foreign Influences on Research Integrity, www.justice.gov/usao-ndca/pr/officer-china-s- officers nor are they in a position to make such Dec. 2018, discussing measures to address concerns people-s-liberation-army-arrested-los-angeles- determinations. about foreign influences related to graduate international-airport, (last accessed June 20, 2020).

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university students in a degree program the period of admission of J exchange past that date generally must apply for may be authorized to participate in the visitors and the applicable EOS process, an EOS with USCIS. exchange visitor program so long as they DHS would more frequently collect However, as described above, certain meet the requirements for duration of biometrics and other information from J nonimmigrant categories, including F participation, including pursuing a full exchange visitors, enhancing the academic students, J exchange visitors, course of study, echoing the full course Government’s oversight and monitoring and I representatives of foreign of study requirements for F–1 of these aliens. information media, and their nonimmigrants. Their programs may dependents, may be admitted into the also be extended by the ROs, subject to iv. Risks to the I Classification United States for D/S instead of a period regulation and/or approval by DOS, of time with a specific departure date. Admitting I nonimmigrants for without an application to DHS. These DHS is proposing changes to the duration of status affords them different similarities give rise to the same admission provisions for these treatment from most other concerns related to F–1s about national particular nonimmigrant classifications, nonimmigrants, who are admitted for a security, as described above, and about including replacing admissions for specified period of time. The fraud and abuse by J–1s and their ROs. ‘‘duration of status’’ with a fixed By requiring the same fixed period of Department believes admitting aliens admission period. This would enable admission for F–1s and J–1s, J–1 college temporarily in the United States for a immigration officers to independently and university students in exchange fixed period would strengthen vetting and directly verify the continued visitor programs would be unable to and information collection and help eligibility of foreign visitors in F, J, or circumvent the intent of this proposed immigration officers ensure that the I I nonimmigrant status. It would also rule, which is to protect the integrity of nonimmigrants are, and will be, engaged require aliens who fall under certain these programs and provide additional in activities that are permissible under criteria to apply more frequently for protections and mechanisms for INA 101(a)(15)(I). In addition, this additional admission periods. rulemaking proposes to require oversight. Because J exchange visitors A. General Period of Admission for F are also tracked in SEVIS, DHS believes individuals who wish to remain in I and J Nonimmigrants it would be more effective for an nonimmigrant status beyond the end As a foundational matter, DHS immigration officer to periodically date for their authorized stay to apply proposes to add a new paragraph confirm that an alien has properly for an EOS with USCIS, at which point explaining the period of admission for maintained status, rather than relying immigration officers can review their nonimmigrants described in section on the checks of an RO that the J–1 is activities in the United States. It also 101(a)(15)(F) and (J) who are seeking pursuing the activities permitted by the clarifies what DHS would require these individuals to present as evidence admission after [effective date of the exchange visitor program. As noted final rule]. In formulating this proposed supporting their EOS request.69 above, DHS believes it is more rule, DHS considered and addressed appropriate for immigration officers, IV. Discussion of the Proposed Rule various circumstances that might apply with their background checks, when F and J nonimmigrants apply for clearances, and training from the U.S. All persons arriving at a port-of-entry admission at a POE. government, to adjudicate maintenance to the United States must be inspected of nonimmigrant status and whether an by a CBP officer and must apply for i. Application for Admission in F or J alien is eligible for an additional admission into the United States with Nonimmigrant Status admission period. Switching from D/S CBP.70 In the case of an alien, a CBP Aliens applying for an admission in to a fixed period of admission would officer determines whether an alien is either F or J status who, under this permit immigration officers the eligible for admission and, if they are, proposal, would be eligible to be opportunity to determine whether an issues the Form I–94, Arrival/Departure admitted for the length of time indicated alien is eligible for an additional period Record with the nonimmigrant category by the program end date noted in their of time. If an officer finds a violation of and period of admission.71 For the vast Form I–20 or DS–2019, not to exceed 4 status while adjudicating the alien’s majority of aliens, their Form I–94 years, unless they are subject to a 2-year request, the consequences could be includes a specific date through which admission proposed in 8 CFR immediate. Applicants for EOS must their status is valid; they must depart 214.2(f)(20) or (j)(6), plus a period of 30 also establish that they are admissible, the United States on or before that date. days following their program end date, and failure to do so will result in denial An alien who wishes to lawfully remain to prepare for departure or to otherwise of the EOS.67 Admissibility grounds are in the United States in the same status seek to obtain lawful authorization to complex and are properly assessed by a remain in the United States. See trained DHS officer. Such an assessment proposed 8 CFR 214.1(a)(4)(i)(A) and 69 These proposed changes, including additional is not currently made when J exchange evidence relating to foreign media organizations (ii)(A). visitors apply for an extension of their and activities the alien intends to engage in while ii. Application for Admission in the program with their RO.68 Thus, in I status, would also apply to a nonimmigrant in Same Status Following Departure From admitting J exchange visitors for a fixed the United States who requests to change his/her nonimmigrant status to that of an I nonimmigrant. the United States time period, instead of for D/S, would 70 8 CFR 235. a. Aliens With Pending Extension of give DHS more frequent opportunities to 71 The Form I–94 is used by the U.S. Government directly vet these foreign visitors and to track arrivals and departures of nonimmigrants. Stay Applications at Time of ensure they are bona fide exchange Originally the form was designed in two parts—one Application for Admission Whose visitors. Under the proposed changes to for the Government and one for the nonimmigrant. Previous Period of Authorized Stay Has The second part would be stapled into the Expired nonimmigrant’s passport and then removed upon 67 See 8 CFR 214.1(a)(3). departure. The form is now maintained Aliens who departed the United 68 ROs may not be aware of a student’s failure to electronically and can be accessed by States and are applying for admission maintain status, including engaging in criminal nonimmigrants by downloading it from the CBP activity. Admitting J–1s for a fixed period of website. See I–94 website, U.S. Customs and Border before their timely filed EOS application admission would provide trained DHS officers with Protection, https://i94.cbp.dhs.gov/I94/#/recent- has been adjudicated, but after their the opportunity to vet these individuals. search (last visited Dec. 9, 2019). previously authorized period of stay has

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expired, could be eligible to be admitted abandoned and USCIS will grant a new because his or her EAD expires before for the length of time required to reach period of stay upon subsequent the alien’s fixed date of admission as the program end date noted in their adjudication of the EOS. See proposed noted on their I–94, the alien generally most recent Form I–20 or DS–2019, not 8 CFR 214.1(a)(4)(i)(B) and (a)(4)(ii)(B). will be considered to be in the United to exceed 4 years, unless they are States in a period of authorized stay c. Aliens Applying for Admission subject to the 2-year admission from the date of the expiration noted on Without a Pending Application of proposed in 8 CFR 214.2(f)(20) or (j)(6), their EAD until the fixed date of Extension of Stay plus a period of 30 days to prepare for admission as noted on their I–94. departure or to otherwise seek to obtain Aliens who departed the United When applying for admission at a lawful authorization to remain in the States and are applying for admission in POE while their application for United States, similar to an initial F or J status would be eligible to be employment authorization is pending, period of admission. See proposed 8 admitted up to the length of their they should have a notice issued by CFR 214.1(a)(4)(i)(A) and (ii)(A). USCIS program listed on the Form I–20 or USCIS indicating receipt of the would consider the alien’s EOS Form DS–2019, not to exceed a period employment authorization application application abandoned because the of 4 years, plus an additional 30 days at necessary for post-completion or STEM alien’s new fixed date of admission the end of the program, as specified in OPT (currently Form I–797). based on the most recent I–20 or DS– 8 CFR 214.2(f)(5) and (j)(1)(ii)(A), Finally, under this proposal, aliens 2019 had already been determined by respectively, if the alien seeks applying for admission pursuant to the CBP upon the most recent admission to admission with a Form I–20 or DS–2019 provisions relating to automatic the United States, and thus the pending for a program end date beyond their extension of visa validity could be EOS application is extraneous. See previously authorized period of admitted for the unexpired period of proposed 8 CFR 214.1(c)(6). admission, or for a period up to the stay authorized prior to their departure. unexpired period of stay authorized See proposed 8 CFR 214.1(b)(1). b. Aliens With Pending Extension of prior to departure. See proposed 8 CFR All of these cases assume, consistent Stay Applications at Time of 214.1(a)(4)(i)(A) and (a)(4)(ii)(A). with this proposed rule, that the Application for Admission Whose admission period any F or J Previous Period of Authorized Stay Has d. Aliens Applying for Admission After nonimmigrant previously admitted for Not Expired EOS is Granted D/S would be transitioned to a fixed Aliens who departed the United For aliens who departed the United date of admission. To provide adequate States and are applying for admission States after timely filing an EOS notice to aliens previously admitted for before their timely filed EOS application application and are applying for D/S regarding the date when their has been adjudicated, but before their admission in F or J status after their EOS admission period ends pursuant to the previously authorized period of stay has application is granted, DHS proposes proposed transition, DHS proposes that expired, could be eligible to be admitted that CBP could admit them for a period an alien’s period of admission would either for: of time not to exceed the time expire on the program end date on the i. The length of time as indicated by authorized by their approved EOS, plus alien’s Form I–20 or DS–2019 that is the program end date noted in their a period of 30 days to prepare for valid on the final rule’s effective date, most recent Form I–20 or DS–2019, not departure or to otherwise seek to obtain not to exceed a period of 4 years from to exceed 4 years, unless they are lawful authorization to remain in the the final rule’s effective date, plus an subject to the 2-year admission United States. See proposed 8 CFR additional period of 60 days for F proposed in 8 CFR 214.2(f)(20) or (j)(6), 214.1(a)(4)(i)(C) and (a)(4)(ii)(C). nonimmigrants and 30 days for J plus a period of 30 days to prepare for e. Aliens Applying for Admission To nonimmigrants. See proposed 8 CFR departure or to otherwise seek to obtain Engage in Post-Completion or STEM 214.2(f)(5) and (j)(1). DHS believes that lawful authorization to remain in the OPT this proposal would provide adequate United States, similar to an initial notice because all students and F nonimmigrants who departed the period of admission. If the alien is exchange visitors in F or J U.S. and are applying for admission to admitted for the program length (not to nonimmigrant status who want to engage in post-completion or STEM exceed 2 or 4 years, as applicable), extend their program currently need to OPT. See proposed 8 CFR USCIS would consider the alien’s EOS apply for permission with their DSO or 214.1(a)(4)(i)(D). These aliens may, application abandoned because the RO. At that time, the DSO or RO could generally, be admitted either up to the alien’s new fixed date of admission explain that they are approving a end date of the approved employment based on the most recent I–20 or DS– program extension, but the authorization or up to the DSO’s 2019 had already been determined by nonimmigrant must apply for an EOS recommended employment end date for CBP upon the most recent admission to directly with DHS and such EOS must post-completion or STEM OPT specified the United States, and thus the pending be granted to remain lawfully in the on their Form I–20, whichever is later, EOS application is extraneous; or United States. Under current policy, F ii. The period of time remaining on plus a 30-day period to prepare for and J nonimmigrants do not accrue their previously authorized period of departure or to otherwise seek to obtain unlawful presence until the day after admission. As proposed, CBP could lawful authorization to remain in the USCIS formally finds a nonimmigrant admit the alien for a period of time not United States. In instances where the status violation while adjudicating a to exceed the unexpired period of stay EAD has not been approved and the request for another immigration benefit that was authorized before the alien’s alien is admitted based on the DSO’s or on the day after an immigration judge departure, plus a period of 30 days to recommended employment end date on orders the alien excluded, deported, or prepare for departure or to otherwise the Form I–20, USCIS’s subsequent removed (whether or not the decision is seek to obtain lawful authorization to approval of the alien’s EAD may result appealed), whichever comes first.72 In remain in the United States. In this in less time for the EAD than the time scenario, in accordance with proposed 8 for which the alien was admitted. 72 See ‘‘Consolidation of Guidance Concerning CFR 214.1(c)(6), an alien’s EOS Therefore, in the limited circumstance Unlawful Presence for Purposes of Sections application is not considered where the alien ceases employment Continued

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reliance on this policy, some F and J percentage of students are engaged in in points with nonimmigrants than a 4- nonimmigrants admitted for D/S may programs which may last longer than 4 year maximum period of admission not have taken the appropriate steps to years, DHS considered that the would. However, DHS was concerned it maintain status, otherwise change proposed framework would would unduly burden many F and J status, or depart the United States. This accommodate many students, creating a nonimmigrants. As discussed above, 4 proposed rule is concerned with less burdensome process. years best accounts for the normal providing adequate notice to allow F The proposed 4-year period of progress for most programs. Even and J nonimmigrants who are admission would not apply to all F and considering those F or J nonimmigrants maintaining status to transition to a new J nonimmigrants. DHS believes a shorter who are admitted into the U.S. after date-certain admission. admission period, up to 2 years, would having already completed a portion of Although some F and J be appropriate for a subset of the F and their program outside of the U.S., nonimmigrants may have program end J population due to heightened concerns instituting a 3-year maximum period of dates longer than 4 years, DHS believes related to fraud, abuse, and national stay would have required each that using the program end date on the security, as discussed below. See nonimmigrant pursuing a 4 year Form I–20 or DS–2019, up to 4 years proposed 8 CFR 214.2(f)(20) and (j)(6). program to extend, while 4 years allows from the effective date of the final rule, For this subset of the F and J additional time to complete a 4-year as the fixed date of admission best population, DHS believes that a 2-year degree. This alternative also would aligns with the normal progress these maximum period of admission would be place greater administrative burdens on nonimmigrants should be making. This appropriate. This would give the USCIS and CBP compared to the alignment is based on the general Department an opportunity to verify proposed 4-year maximum period of structure of post-secondary education in that they are complying with the terms admission. USCIS would have to the United States. According to the and conditions of their status more adjudicate EOS applications more Department of Education (ED), students frequently and thereby better address frequently, and CBP’s workload would can normally earn a bachelor’s degree in any national security concerns. Using increase as individuals would travel to 4 years.73 The total number of F–1 this risk-based approach, which focuses request admission at the POE, with a 3- students pursuing a bachelor’s degree in on certain factors predetermined by year maximum period of stay than a 4- 2018 was 522,155, constituting almost DHS and presented by some aliens, DHS year one. Therefore, DHS believes an 40 percent of the 2018 nonimmigrant anticipates that most F and J admission for the program end date, not student population. The total number of nonimmigrants would not need to file to exceed 4 years (except for limited F–1 students pursuing a master’s degree, an EOS application at some point exceptions that would limit admissions generally 2-year programs, in 2018 was during their stay, and DHS consequently to 2 years) is the best option. DHS 498,625, representing almost 38 percent could allocate its resources more welcomes comments on this proposal. of the nonimmigrant student efficiently. population. Taken together, this Before arriving at the 2- and 4-year B. Automatic Extension of Visa Validity population represents almost 80 percent admission periods, DHS considered at Port of Entry of the nonimmigrant students in the various options. DHS considered a DHS proposes to change the United States. Therefore, DHS believes standard 1-year admission for all F and admission language in the provision that a 4-year period of admission would J nonimmigrants. This option would relating to extension of visa validity not pose an undue burden on them, treat all nonimmigrants with F and J from ‘‘shall’’ to ‘‘may’’ clarifying that because many F and J nonimmigrants status equally and would likely allow CBP always maintains the discretion to would complete their studies within a for easier implementation by CBP at the determine whether to admit an alien 4-year period, and not have to request POEs. Nevertheless, it could result in and for the period of admission. This additional time from DHS.74 The significant costs to nonimmigrants and change removes any ambiguity about smaller proportion of students not the Department. There are more than 1 whether CBP has an absolute duty to pursuing a bachelor’s or master’s degree million F students enrolled in programs admit an alien to clarify that CBP has are enrolled in different programs, of study that last longer than 1 year.76 the discretion to admit an alien for a which may last more or less than 4 With a 1-year admission period, certain period of time. See proposed 8 years.75 As a significantly smaller students and exchange visitors CFR 214.1(b)(1). participating in programs of greater DHS proposes technical revisions to 212(a)(9)(b)(i) and 212(a)(9)(c)(i)(I) of the Act’’, May duration would need to apply for the visa revalidation provisions that 6, 2009, available at https://www.uscis.gov/sites/ additional time. This would be a allow certain F, J, and M nonimmigrants default/files/USCIS/Laws/Memoranda/Static_Files_ to apply for readmission if eligible for _ _ significant cost to students and Memoranda/2009/revision redesign AFM.PDF (last admission as an F, J, or M nonimmigrant accessed June 20, 2020). The policy reflected by this exchange visitors, and DHS is memorandum currently applies to F, J, and I particularly mindful of those who and if they are applying for readmission nonimmigrants in relation to duration of status but comply with the terms and conditions after an absence from the United States will change accordingly when duration of status no of their admission and participate in not exceeding thirty days solely in longer applies to them.) ICE does not make findings contiguous territory or adjacent islands. of status violations that result in the accrual of programs, such as undergraduate unlawful presence. programs, that typically require several See 8 CFR 214.1(b). Such technical 73 See the Mobile Digest of Education Statistics, years to complete. revisions include updating language to 2017, ‘‘The Structure of American Education,’’ Another alternative DHS considered clarify that ‘‘visa revalidation’’ refers to available at https://nces.ed.gov/programs/digest/ was to admit all F and J nonimmigrants automatic extension of visa validity at _ _ _ _ mobile/The Structure of American to their program end date, not to exceed Education.aspx (last visited Feb. 4, 2020). the port of entry. These provisions 74 See the Student and Exchange Visitor Program 3 years. This option would give the apply when, for example, a (SEVP), ‘‘2018 SEVIS by the Numbers Report’’ Department more frequent direct check- nonimmigrant finds himself or herself available at https://www.ice.gov/doclib/sevis/pdf/ applying for reentry after going to sevisByTheNumbers2018.pdf (last visited Feb. 4, 76 See the Student and Exchange Visitor Program Mexico on spring break without 2020). (SEVP), ‘‘2018 SEVIS by the Numbers Report’’ realizing that his or her visa had 75 Other programs include Associate’s degrees, available at https://www.ice.gov/doclib/sevis/pdf/ language training programs, and Ph.D.s., among sevisByTheNumbers2018.pdf (last visited Feb. 4, expired. Instead of having to get a new others. Id. 2020). visa, CBP can readmit the nonimmigrant

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whose visa validity is automatically date of admission. See proposed 8 CFR leaves the United States,78 DHS extended by operation of Department of 214.1(c)(2). recognizes the potential for conflict if a State regulations. See 22 CFR 41.112(d). Like the technical updates to strike nonimmigrant receives authorization DHS does not believe it is necessary to the specific form name from 8 CFR from both CBP and USCIS for what make a nonimmigrant get a new visa 214.1(c)(2), DHS is proposing to strike amounts to the same request (a specific under these circumstances. the references to forms ‘‘I–129’’ and ‘‘I– period of time to pursue authorized DHS proposes minor technical 539’’ in 8 CFR 214.1(c)(5), replacing activities). updates to account for inaccurate or no those specific form numbers with the Where an alien in F, J, or I status longer applicable terms and cites: First, aforementioned general language. See timely files an application for EOS, DHS proposes to strike the reference to proposed 8 CFR 214.1(c)(5). The leaves the United States before USCIS INA 101(a)(15)(Q)(ii) and reserve it, as substance of that provision, including approves that EOS application, and applies for admission to continue his or that program no longer exists and is no the language that does not allow an 77 her activities for the balance of the longer in the INA. See proposed 8 CFR alien to appeal an EOS denial would previously authorized admission period, 214.1(b)(1)–(3). Second, DHS proposes remain the same. to update the cross reference to 22 CFR, USCIS would not consider the EOS from 22 CFR 41.125(f) to 22 CFR Additionally, DHS proposes to strike application abandoned. See proposed 8 41.112(d), which is the current ‘‘other than as provided in 214.2(f)(7)’’ CFR 214.1(c)(6)(i). In such provision describing automatic from 8 CFR 214.1(c)(3)(v) to make it circumstances, the pending EOS would extension of visa validity at ports of clear students must apply for an EOS. remain relevant and ultimately entry. Third, DHS proposes to strike the This requirement would not apply to determine the alien’s fixed date of reference to ‘‘duration of status’’ in 8 other nonimmigrants admitted for D/S, admission. CFR 214.1(b)(1). such as A–1 or A–2 representatives of However, where the alien leaves the foreign governments and their United States and applies for admission C. Extension of Stay (EOS) immediate family members; they would while his or her EOS application is This proposed rule would not create remain ineligible to file an EOS. pending and is admitted with a Form I– a new form for an EOS application; As part of the EOS application, USCIS 20 or DS–2019 for a program end date however, USCIS is in the process of requires biometric collection and will beyond their previously authorized transitioning from paper-based to require such collection from F, J, and I period of admission, the pending EOS is electronic form processing and some nonimmigrants under the proposed rule. deemed abandoned, and the admit until form names and numbers may change. USCIS has the general authority to date provided by CBP on the alien’s While DHS plans to update existing require and collect biometrics (such as Form I–94 governs. See proposed 8 CFR forms allowing F, J, and I fingerprints, photograph, and or a 214.1(c)(6)(ii). This is because, in these nonimmigrants to apply for an EOS with digital signature) from applicants, cases, CBP’s grant of a new period of USCIS, DHS believes it would be more petitioners, sponsors, beneficiaries, or authorized stay would supersede the efficient to replace references to specific other individuals residing in the United pending EOS application seeking a form names and numbers throughout States for any immigration and period of authorized stay, rendering it the current regulations with generally naturalization benefit. See 8 CFR superfluous. applicable language, specifically, 103.16, and 103.2(b)(9). Biometric The Department considered a policy ‘‘extension request in the manner and collection helps USCIS confirm an whereby an F, J, or I nonimmigrant on the form prescribed by USCIS, individual’s identity and conduct would automatically abandon an EOS together with the required fees and all background and security checks. application upon departing the United initial evidence specified in the Further, USCIS may also require any States. However, the Department believes such a strict requirement would applicable provisions of 8 CFR 214.2, applicant, petitioner, sponsor, not be practical, because people cannot and in the form instructions, including beneficiary or individual filing a benefit any biometrics required by 8 CFR always predict when they will have to request, or any group or class of such 103.16.’’ travel. persons submitting requests to appear Using general language in the Regarding applications for for an interview. See 8 CFR 103.2(b)(9). regulatory text instead of referring to employment authorization for F–1s and USCIS may require such an interview as specific form names and numbers helps J–2s, CBP does not adjudicate part of USCIS’ screening and both the Department and stakeholders. applications for employment adjudication process that helps confirm It allows for technical changes without authorization. USCIS would continue an individual’s identity, elicit requiring an entirely new rulemaking to processing any such applications, information to assess the eligibility for update form names. Stakeholders would notwithstanding a departure, and, if the an immigration benefit, and screen for receive notice and specific guidance on application is approved, USCIS will not any national security or fraud concerns. USCIS’ website and in the appropriate issue an EAD with a validity date that form instructions, as they already do for Finally, DHS considered how to exceeds the fixed date of admission various other benefits. Therefore, DHS address the admission of F, J, and I provided to the alien at the POE. For proposes to use this language in 8 CFR nonimmigrants who timely filed an EOS example, an F–1 student wishing to 214.1(c)(2) and to strike the current and any corresponding applications for engage in post-completion or a STEM phrase exempting F and J employment authorization but left the OPT extension would need to file both nonimmigrants from the requirement to United States before receiving a an EOS application and an application file an EOS, as they would be required decision from USCIS. DHS anticipates for employment authorization. Where to file an EOS if they wish to remain in this scenario would apply mostly to F– the alien had departed the United States the United States beyond their specified 1 students applying for post-completion before his or her application are OPT and STEM OPT extensions. 77 See Irish Peace Process Cultural and Training While USCIS generally does not 78 See Memo, Cook, Acting Asst. Comm. Program Act of 1998, Public Law 105–319, 112 Stat. consider an application for EOS Programs, HQ 70/6.2.9 (June 18, 2001), reprinted in 3013 (Oct. 30, 1998), as amended by Public Law 70 No. 46 Interpreter Releases 1604, 1626 (Dec. 6, 108–449, 114 Stat. 1526 (Dec. 10, 2004). abandoned when the nonimmigrant 1993).

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adjudicated, USCIS would not consider provided for in proposed 8 CFR burdensome on F and J nonimmigrants. the employment authorization 214.1(a)(4). Aliens whose admission Many would be able to complete their application abandoned. period is converted from D/S to a fixed programs per the terms of their initial In all events, when an F–1 or a J–2 period who would like to seek admission (D/S) using the original nonimmigrant travels while the additional time to complete their program end date as an expiration of employment authorization or EOS studies, including those requesting post- their authorized period of stay. DHS application is pending, he or she is still completion OPT or STEM OPT would grant such periods, which expected to respond to any Request for extensions or starting a new course of include an additional 60 days for Fs and Evidence (RFE) and to timely submit the study or exchange visitor program, 30 days for Js as provided in their requested documents. Because USCIS would need to file an EOS application previous admission, automatically only sends RFEs to U.S. addresses, with USCIS for an admission period up without an application or fee. With this aliens traveling outside the United to the new program end date listed on option, DHS believes that the majority States while applications are pending the Form I–20 or DS–2019, or successor of F and J nonimmigrants will be shifted are advised to make necessary form, reflecting such an extension or to a fixed period of admission of 4 years arrangements to determine whether they transfer, up to a maximum of 4-years, or or less, except for some F–1 students have received an RFE relating to their 2 years, as appropriate. See proposed 8 and J–1 exchange visitors. For example, application and to timely respond to CFR 214.1(m)(1) and 8 CFR 214.2(f)(20). J–1 research scholars and alien any RFE.79 Failure to do so could result Regarding pending applications for physicians who have program end dates in USCIS denying an employment employment authorization during the for up to 5 or 7 years respectively, authorization or EOS application for transition period, aliens in F status who would need to apply for an EOS before abandonment. are subject to the transition and who are the 4-year maximum period of stay seeking post-completion OPT and expires, i.e., the date that falls four years D. Transition Period STEM–OPT employment authorization after the rule becomes effective. i. F and J Nonimmigrants would be authorized to remain in the Another benefit of this option is that DHS proposes to generally allow all F United States while the application is it would enable DHS to transition F and pending with USCIS if: (1) They are in J nonimmigrants to an admission for a and J nonimmigrants present in the the United States on the effective date fixed time period without unduly United States on [the Final Rule’s of the final rule with admission for D/ burdening them, USCIS or CBP. This effective date], who are validly S; (2) they properly filed an application option would ensure that no F and J maintaining that status and who were for employment authorization; and (3) nonimmigrants remain in the United admitted for D/S, to remain in the their application is pending on the final States indefinitely by requiring all F and United States in F or J status, without rule’s effective date. Unless otherwise J nonimmigrants admitted for D/S who filing an EOS request, up to the program advised by USCIS, they would not have wish to extend their stay beyond their end date reflected on their Form I–20 or to file for an EOS or re-file an program end date or the four year DS–2019 that is valid on the Final application for employment maximum, whichever is applicable, to Rule’s effective date, not to exceed 4 authorization. See proposed 8 CFR either file an EOS request or depart the years from the effective date of the Final 214.1(m)(2). If the application for United States and apply for admission Rule, plus an additional 60 days for F employment authorization is approved, at a POE by their program end date or nonimmigrants and 30 days for J the F–1 will be authorized to remain in the four year maximum period of stay nonimmigrants. An alien who departs the United States in F status until the from the final rule’s effective date, plus the United States and seeks admission expiration date of the employment an additional 60 days for Fs, and 30 after the Final Rule’s effective date authorization document, plus 60 days as days for Js. becomes subject to the fixed date provided in their previous admission. If In proposing these transition framework imposed by this rule. See the employment application is denied, procedures, DHS took into proposed 8 CFR 214.1(m)(1). the F–1 would continue to be consideration the effect of transitioning F and J nonimmigrants who depart authorized to remain in the United to a fixed period of admission will have the United States after the rule’s States until the program end date listed on F and J nonimmigrants originally effective date and before the end date on their Form I–20, plus 60 days as admitted for D/S who chose to reflected on their Form I–20 or DS–2019 provided in their previous admission, as temporarily come to the United States to would be readmitted with a new fixed long as he or she continues to pursue a pursue a program of study or an admission period, like any other newly full course of study and otherwise meets exchange visitor program. DHS believes admitted F or J nonimmigrant, as the requirements for F–1 status. the proposed changes would not Aliens in F–1 status with pending significantly affect the reliance interests 79 See SEVP’s Study in the States web page, employment authorization applications, of these nonimmigrants admitted for D/ ‘‘Traveling as an International Student’’ available at https://studyinthestates.dhs.gov/traveling-as-another than post-completion OPT and S. DHS is not proposing to change the international-student (last visited Jan. 9, 2020). See STEM OPT, also do not need to file for fundamental requirements to qualify for also ICE’s Re-entry for F–1 Non-immigrants an extension or refile an employment these nonimmigrant statuses, rather the Travelling Outside the United States for Five authorization application. As long as proposal is only to change the length of Months or Fewer web page, which notes, ‘‘Can I reenter if my request for OPT is pending? Yes, but these F–1s continue to pursue a full time that an individual may lawfully traveling during this time should be undertaken course of study and otherwise meet the remain in the United States in F or J with caution. USCIS may send you a request for requirements for F–1 status, they status without filing an extension of evidence while you are away, however, so you continue to be authorized to remain in stay. Admitting these categories of would want to make sure you have provided a correct U.S. address both to your DSO and on the the United States until the program end nonimmigrants for a fixed period of application and would be able to send in requested date listed on the Form I–20, plus 60 admission simply confirms that the documents. Also, if USCIS approves your OPT days, regardless of whether the admission is temporary and clearly application, you will be expected to have your EAD employment authorization is approved communicates when that temporary in hand to re-enter the United States. Like a request for further information, USCIS can only send the or denied. admission period ends. Further, as is EAD to your U.S. address,’’ available at https:// DHS believes that this transition the case for the fixed period of www.ice.gov/sevis/travel (last visited Jan. 9, 2020). proposal would not be unreasonably admission policy more generally, a fixed

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date of admission simply places these not align with the expected length of DHS to effectuate the transition of the F nonimmigrants in the same position as stay presents the best way to transition and J population without requiring the most other nonimmigrants who are from D/S to admission for a fixed time expense and workload associated with temporarily in the United States. They period. The proposed transition period large numbers of simultaneous filings, it would still be able to continue to pursue is consistent with the generally would not capture those who have their full course of study or exchange applicable policy and allows for the program end dates beyond 4 years from visitor program; however, if they need normal progress for most programs that the effective date of the proposed rule. additional time in F or J status, the nonimmigrants should be making. Fourth, DHS weighed whether burden would now be upon them to Further, it ensures that these requiring various categories of F or J request authorization directly from DHS nonimmigrants are complying with the nonimmigrants to apply for an EOS and establish eligibility to extend their terms and conditions of their status by within 60 days after the final rule’s period of stay in such status, whereas requiring them to apply to extend their effective date would better address previously they obtained an extension status by the end date on the I–20 or national security and fraud issues rather of lawful status in conjunction with a DS–2019, not to exceed four years. than transitioning all nonimmigrants program extension through a DSO or A second option that DHS considered from D/S to an admission for a fixed RO. was to allow F and J nonimmigrants to time period by using the program end At the same time, this proposed keep their D/S period of admission until date up to a maximum period of four process would provide immigration they depart the United States. The years. To identify the categories that officials an opportunity to directly Department rejected this alternative, would be required to file an EOS soon review and determine whether F and J however, because one of the main after the final rule’s effective date, DHS nonimmigrants who wish to remain in reasons for proposing this rule is to considered adopting the limiting factors the United States beyond their fixed address current abuse tied to the D/S listed at proposed 8 CFR 214.2(f)(20) period of admission are complying with period of authorized admission. and (j)(6) (including certain countries U.S. immigration law and are indeed Adopting this alternative would allow and U.S. national interests, eligible to retain their nonimmigrant aliens currently violating their unaccredited institutions, E-Verify status. If there are F or J nonimmigrants nonimmigrant status to largely avoid the participation, and language training relying on a D/S admission in an consequences of non-compliance with programs). While such an approach attempt to permanently remain in the U.S. immigration laws by simply could prioritize certain aliens for United States, or otherwise circumvent remaining in the United States, as prompt, direct vetting and oversight, their authorized status, this proposed otherwise described in this rule. applying it to hundreds of thousands of process would allow DHS to detect and Third, DHS evaluated an option to nonimmigrants who had been admitted deny an extension of stay request. allow F and J nonimmigrants to retain into the United States under D/S could DHS considered several alternatives their D/S admission up to their program have a significant impact. DHS believes before determining the above proposal end date, with the transfer to a fixed that this approach could result in was the best option. First, DHS admission date implemented through lengthy processing timeframes as the considered whether to impose a any of the following actions of the affected population would be required consistent length for the fixed nonimmigrant: (i) Departure from the to file an EOS at the same time. Given admission for all F and J nonimmigrants United States; (ii) transfer to a different USCIS’ processing times, DHS does not transitioning from a D/S admission, institution or sponsor; (iii) failure to believe there would be significant such as 1 or 3 years from the final rule’s maintain a full course of study; (iv) efficiency to excepting certain F or J effective date. While this proposal approval for reinstatement; 80 (v) having categories from applying for EOS later would provide a standard end date, a DSO or RO extend the program end than other F or J categories. In addition, DHS was concerned about the expense date; (vi) approval for a post-completion this short timeframe to file EOS may be and workload implications of this OPT or a STEM OPT extension; or (viii) burdensome on F, Js, and the option on all stakeholders and DHS. As engaging in any action that requires the institutions and sponsors as they adapt noted, DHS expects most F and J issuance of a new Form I–20 or DS– to a new process, as compared with the nonimmigrants to complete their 2019. However, DHS felt that this proposed transition period within the 4- program of study or exchange visitor alternative may fail to provide adequate year period. program within a 4-year period. A date notice to all affected nonimmigrants In sum, DHS’s proposal is to that does not align with this expectation given the several scenarios under which transition all F and J nonimmigrants to could place a significant burden on the the transfer to a fixed period of a fixed admission date by using the affected F and J nonimmigrants and on admission could occur, and could lead program end date noted on their Form their academic institutions or exchange to some fraud by DSOs intentionally I–20 or DS–2019 (with the exception of visitor programs’ sponsors and providing an unnecessarily long F students engaging in post-completion employers, as applicable. USCIS would program end date on the Form I–20 or a STEM OPT extension who would be especially affected if a significant prior to the final rule’s effective date. use their EAD’s expiration date), not to percentage of these nonimmigrants Although this option is relatively exceed 4 years, plus an additional 60 chose to remain in the United States and similar to the proposed transition days for Fs and 30 days for Js as file for an EOS in order to complete the process, to make the transition easier for provided in their previous admission. balance of their program, study, or work Fs, Js, ROs, and DSOs, triggering events DHS believes this is a natural way to activity. While USCIS could try to were limited to those that result in a transition the majority of these anticipate the volume, the sheer number change to the program end date, as well nonimmigrants to a fixed admission of simultaneous nonimmigrants filing as re-entry to the United States. In date without creating any loopholes, for EOS could significantly lengthen addition, while this option would allow such as those that could be created by processing times. Because the proposed allowing Fs and Js to retain their option is less burdensome on F and J 80 See 8 CFR 214.2(f)(16), allowing an F–1 duration of status, potentially nonimmigrants and on DHS, DHS does student, under certain circumstances, to apply for permitting those who are abusing their reinstatement with USCIS after receiving not believe that ending D/S for all F and recommendation from the DSO, following a failure status to continue to do so without the J nonimmigrants at timeframes that do to maintain status. oversight and vetting conducted through

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EOS. It would also provide all affected E. Requirements for Admission, a lifetime aggregate of 24 months of nonimmigrants adequate notice of the Extension, and Maintenance of Status of language study, which would include events that would trigger the transition F Nonimmigrants breaks and an annual vacation. See to a fixed admission date to a fixed DHS is proposing various changes proposed 8 CFR 214.2(f)(5)(i)(B). DHS is admission date and their under the regulations that provide the proposing this limitation as a way to responsibilities resulting from such framework for admission, extension, prevent abuse of the F–1 program. change. and maintenance of status for F Public Law 111–306, enacted on December 14, 2010, and effective since nonimmigrants. These changes would ii. I Nonimmigrants 2011, requires language training schools eliminate D/S, require students to file an enrolling F–1 students to be accredited EOS if requesting to remain in the Turning to I nonimmigrants, DHS by an accrediting agency recognized by United States beyond the period of their proposes an automatic extension of the the Secretary of Education. DHS admission, and clarify terms to ensure length of time it takes the alien to consistently sees students enrolled in that the activities an F nonimmigrant complete his or her activity, for a period language training schools for very has engaged in are consistent with those of up to 240 days. See proposed 8 CFR lengthy periods of time, including of a bona fide student. 214.1(m)(3). DHS based this proposed instances of enrollment for over a timeframe on the period of stay i. Admission for a Fixed Time Period decade, either by extending a program at authorized in 8 CFR 274a.12(b)(20), one school or transferring between As a preliminary matter, DHS is 83 which generally provides an automatic proposing to strike the current language schools. DHS has also found students enrolling in lengthy periods of extension of employment authorization regulation that allows F nonimmigrants language training despite previously of 240 days to continue employment to be admitted for D/S. DHS would enrolling in or completing with the same employer, including for replace it with a provision allowing F undergraduate and graduate programs I nonimmigrants who have timely filed nonimmigrants to be granted status for requiring English language a Form I–539, Application to Extend/ the length of their program, not to proficiency.84 Unlike degree programs Change Nonimmigrant Status, see 8 CFR exceed 4 years and subject to eligibility that typically have prescribed course 214.2(i), which currently is required limitations, as well as national security completion requirements, there are no when an I nonimmigrant changes and fraud concerns. nationally-recognized, standard information mediums.81 DHS believes Second, DHS proposes to retain in the completion requirements for language regulations the statutory limitation that that adopting an already established training programs and students are able restricts public high school students to timeframe, to which I nonimmigrants to enroll in language training programs are already accustomed, is reasonable. I an aggregate of 12 months of study at for lengthy periods of time. The lengthy nonimmigrants who seek to remain in any public high school(s). See 8 CFR enrollment in a language program, the United States longer than the 214.2(f)(5)(i). However, this proposed including enrollment in language automatic extension period provided rule moves this provision to a new courses for long periods subsequent to would be required to file an extension section and further clarifies that the 12- completion of a program of study that of stay request with USCIS.82 In month aggregate period includes any requires proficiency in English, raises addition to I nonimmigrants being school breaks and annual vacations. See concerns about whether the F–1s meet familiar with the timeframe under 8 proposed 8 CFR 214.2(f)(5)(i)(D). the statutory definition of a bona fide CFR 274a.12(b)(20), DHS anticipates Current requirements, including paying student with the intent of entering the the full cost of education, would also that this provision would reduce any U.S. for temporary study.85 Therefore, remain in place. gaps in employment due to USCIS’ DHS proposes a 24-month aggregate Third, F–1 students who are applying processing timeframes between the I limit for F–1 students to participate in to attend an approved private a language training program, as it would nonimmigrant’s application for elementary or middle school or private extension and USCIS approval of the provide a reasonable period of time for academic high school would continue to students to attain proficiency while application. It would also facilitate an I be covered by the provisions of nonimmigrant’s ability to complete his mitigating the Department’s concerns paragraph (f)(6)(i)(E). These provisions about the integrity of the program. This or her assignment while temporarily in require the DSO to certify a minimum the United States on behalf of a foreign timeframe generally comports with the number of class hours per week length of language training classes media organization, in that it would prescribed by the school for normal offered by schools that are accredited by give ample time to any I nonimmigrant progress toward graduation. See 8 CFR ED-recognized agencies.86 DHS seeks to either complete that assignment or 214.2(f)(6)(i)(E). However, like all other ask for an extension, as needed. F–1 students, they would be subject to 83 For example, at one accredited English Finally, the transition procedures the 4-year or 2-year maximum period of language training school, five students have been would not apply to F, J, or I aliens who admission and they would need to enrolled in language training since 2010; eight since apply for an extension of stay with DHS 2011; three since 2012; two since 2013; two since are outside the United States when the 2014; and two since 2015. if staying beyond this period. See final rule takes effect, or to any aliens 84 For example, one student has been enrolled in present in the United States in violation proposed 8 CFR 214.2(f)(7)(vi). English language training programs at four different Fourth, DHS is proposing to exempt schools since 2015 despite being an F–1 student of their status. See proposed 8 CFR border commuter students from the since at least 2002. She was enrolled in an English 214.1(m)(1)–(m)(3). language training program from 2002–2004 and general length of admission provisions. subsequently enrolled in an associate’s program See proposed 8 CFR 214.2(f)(5)(i)(C). that required English language proficiency from 81 See Instructions for Application to Extend/ The regulations at 8 CFR 214.2(f)(18) 2004–2008. Her Form I–20 noted that she had the Change Nonimmigrant Status, available at https:// required English language proficiency for that www.uscis.gov/i-539 (last visited April 13, 2020). would continue to govern these border commuter students, including that DHS program. 82 Typically, fewer than 50,000 aliens enter the 85 See INA (101)(a)(15)(F). U.S. in I classification annually. See 2017 Yearbook to admit them for a fixed time period. 86 Courses listed by language training schools of Immigration Statistics, Published by the DHS Fifth, F–1 students in a language accredited by the Accrediting Council For Office of Immigration Statistics, July 2019, page 63. training program would be restricted to Continuing Education & Training reflect that most

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comments on whether 24 months is DHS Entry/Exit Overstay report.87 The on the extent of unlawful presence sufficient for a language training DHS Entry/Exit Overstay report accrual, an alien may become program. compiles overstay rates for different inadmissible upon departing the United Sixth, DHS proposes a maximum classifications. It provides overstay rates States and will be ineligible for benefits admission period of up to 2 years for per country for F, M, and J for which admissibility is required, such certain students. See proposed 8 CFR nonimmigrants together, rather than a as adjustment of status to that of a 214.2(f)(5)(i)(A) and (f)(20). This period separate overstay rate by classification, lawful permanent resident. See INA is based on factors that DHS identified per country. Given the overlap between 212(a)(9)(B), (C), 8 U.S.C. 1189(a)(9)(B), as involving national security and the F and J classifications, utilizing the (C); INA 245(a), 8 U.S.C. 1255(a). public safety concerns, with the goal of data for both exchange visitors and Placing restrictions on citizens of encouraging compliance with students to establish overstay rates is countries with high overstay rates immigration laws. They are: useful in that it may deter aliens who incentivizes timely departure. The aggregate effect of the policy may help • Aliens who were born in or are may attempt to seek admission in one reduce a country’s overstay rate on the citizens of countries on the State status rather than the other in order to DHS Entry/Exit report below 10 percent, Sponsor of Terrorism List. The State obtain a lengthier period of admission. in which case nationals of the country Sponsor of Terrorism List are countries, A key goal of shifting aliens in F status would become eligible for a longer as determined by the Secretary of State, from D/S to an admission for a fixed period of admission under the F to have repeatedly provided support for time period is to provide pre-defined nonimmigrant classification. acts of international terrorism pursuant time periods for immigration officers to evaluate whether a nonimmigrant has Finally, the ‘‘greater than 10%’’ to three laws: Section 6(j) of the Export student and exchange visitor overstay Administration Act, section 40 of the maintained his or her status. If an immigration officer finds that an alien rate threshold aligns with the Arms Export Control Act, and section percentage described by the 620A of the Foreign Assistance Act. violated his or her status prior to or during the course of an EOS Administration as a ‘high’ overstay rate Designation as a ‘‘State Sponsor of for the purpose of enabling DHS and Terrorism’’ under these authorities also adjudication and denies the EOS request, the alien generally would begin DOS to ‘‘immediately begin taking all implicates other sanctions laws that appropriate actions that are within the penalize persons and countries engaging accruing unlawful presence the day 88 scope of their respective authorities to in certain trade with state sponsors. after issuance of the denial. The Department finds it appropriate to apply reduce overstay rates for all classes of There are currently four countries 89 additional oversight to nonimmigrants nonimmigrant visas.’’ The ‘‘greater designated as a state sponsor of than 10%’’ overstay rate threshold is terrorism under these authorities: The from countries with consistently high student and exchange visitor overstay more than double the general overstay Democratic People’s Republic of Korea rate for nonimmigrant student and (North Korea), Iran, Sudan, and Syria. rates, by requiring these aliens to more frequently request extensions of stay. exchange visitors as noted in the 2018 Under this proposal, DHS anticipates 90 Because there is an increased risk of DHS Entry/Exit Overstay report, admitting those who were born in or are meaning that countries with such citizens of those countries for a overstay by nonimmigrants from these countries as reflected by the DHS Entry/ overstay rates are well outside the norm. maximum period of up to 2 years. The DHS believes that it is appropriate to Department believes it is appropriate to Exit Overstay reports, DHS would be able to identify such violations sooner. require more frequent check-ins on apply additional scrutiny on those born citizens of those countries to ensure that Further, DHS believes this more in these countries and citizens of these they are in compliance with the terms frequent oversight could deter aliens countries who are temporarily studying and conditions of their admission. in the United States to ensure that these from engaging in activities that would To ensure affected stakeholders have aliens do not pose risks to the national violate their status, as the consequences notice of which countries have an security of the United States. For easier of doing so would arise more quickly. overstay rate exceeding that threshold, reference and to ensure affected A primary aim of this proposed rule DHS proposes to issue FRNs listing stakeholders have advanced notice of is to institute policies that would countries with overstay rates triggering the countries on the State Sponsors of encourage aliens to maintain lawful the 2-year admission period. The first Terrorism List prior to choosing a status and reduce instances in which F, such FRN would also list countries that country and institution to study in, DHS J, and I nonimmigrants unlawfully have been designated as State Sponsors proposes to publish a Federal Register remain in the United States after their of Terrorism, and provide a link where notice (FRN) with the DOS list. If DOS program or practical training ends. makes changes to the list, DHS proposes Under this proposed rule, aliens who 89 See Presidential Memorandum on Combating to publish an FRN with the updated list. remain in the United States beyond a High Nonimmigrant Overstay Rates (April 22, 2019) Any future FRN will also announce the fixed time period generally would begin available at https://www.whitehouse.gov/ accruing unlawful presence. Depending presidential-actions/presidential-memorandum- date that the new maximum 2-year combating-high-nonimmigrant-overstay-rates/(last period of admission would apply. visited April 13, 2020). The Presidential • 87 The overstay report for 2019 can be found at Memorandum identified countries with a total Aliens who are citizens of countries https://www.dhs.gov/sites/default/files/ overstay rate greater than 10 percent in the with a student and exchange visitor publications/20_0513_fy19-entry-and-exit-overstay- combined B–1 and B–2 nonimmigrant visa category total overstay rate of greater than 10 report.pdf. See Table 4, Column 6. as appropriate for additional engagement by the percent according to the most recent 88 See USCIS Policy Memo, Consolidation of DOS, which ‘‘should identify conditions Guidance Concerning Unlawful Presence for contributing to high overstay rates among nationals Purposes of Sections 212(a)(9)(b)(i) and of those countries . . .’’ Intensive English Programs can be completed 212(a)(9)(c)(i)(I) of the Act, May 6, 2009, available 90 According to the FY 2018 DHS Entry/Exit within 24 months, website available at https:// at https://www.uscis.gov/sites/default/files/USCIS/ Overstay Report, for nonimmigrants who entered on accet.org/ (last visited Feb. 7, 2020). For example, Laws/Memoranda/Static_Files_Memoranda/2009/ a student or exchange visitor visa (F, M, or J visa) ELS Language Center’s longest English as a Second revision_redesign_AFM.PDF (last accessed June 20, there were 1,840,482 students and exchange visitors Language (ESL) program is 1440 hours. Attending 2020). This policy currently applies to F, J, and I scheduled to complete their program in the United 18 clock hours per week, the minimum for a full nonimmigrants in relation to duration of status but States, of which 3.73 percent (68,593) stayed course of study, for that period of time would result will change accordingly when duration of status no beyond the authorized window for departure at the in 18.4 months. longer applies to them). end of their program.

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stakeholders could access information Accreditation may be institutional, the United States, the women were put about schools that have been accredited meaning it applies to the school as a to work in bars operated by associates by an ED-recognized accrediting whole and covers any educational of the school’s owner, with no agency.91 programs the school offers, or expectation that they would ever attend DHS proposes to publish this FRN specialized/programmatic, meaning it classes at the school.99 contemporaneously with the final rule. covers specific programs only.93 ED More recently, in 2018, the owner of Any changes to the list would be made classifies each recognized accrediting four unaccredited schools in and around by a new FRN. agency as institutional or programmatic Los Angeles was sentenced to over 1 • U.S. national interest. Other factors to help schools identify which agencies year in prison for his role in conducting that would be incorporated into a FRN might be appropriate for their needs.94 a ‘‘sophisticated, extensive, and would be a limitation of a student’s DHS believes the independent, third- lucrative’’ immigration document fraud period of stay to a maximum of a 2-year party checks offered through scheme that lasted for at least 5 years.100 period based on factors determined to accreditation minimize the risk of fraud The owner and his co-conspirators be in the U.S. national interest, which and abuse by schools and DSOs. falsified student records and transcripts may include but not be limited to The history of problems encountered for thousands of foreign nationals as circumstances where they may be at unaccredited schools approved for part of a ‘‘pay-to-stay’’ scheme. They national security concerns or risks of the attendance of F–1 students enabled the nonimmigrants to remain in fraud and abuse. For example, the demonstrates the value of promoting the United States illegally, despite Secretary of Homeland Security could attendance at accredited schools. For rarely or ever attending the classes for determine that it is appropriate to limit example, in 2014, the founder of Tri- which they were allegedly enrolled.101 the length of admission of students who Valley University, an unaccredited DHS believes that the accreditation are enrolled in specific courses of study, institution in Pleasanton, California, limitation will curtail the potential for such as nuclear science. DHS believes Susan Xiao-Ping Su, was sentenced to fraudulent use of F–1 student status. It collecting information more often and more than 16 years in prison for her role will provide a direct check-in point applying additional vetting helps in a massive, highly profitable visa with the Department if a nonimmigrant 95 mitigate national security risks. If the fraud scheme that lasted 2 years. To enrolled in an unaccredited school DHS Secretary determines that U.S. execute the fraud, Su submitted wishes to remain in the U.S. beyond 2 national interests warrant limiting fabricated paperwork to DHS to obtain years. While DHS is not imposing an admission to a 2-year maximum period certification to enroll nonimmigrant ED-accreditation requirement on post- in certain circumstances, then it would students. Once certified, Su issued F–1 secondary institutions in order to be publish an FRN to give the public visa-related documents to students on certified by SEVP to accept foreign advance notice of such circumstance. false premises, with no criteria for students, the Department is proposing to • Aliens who are not attending admission or graduation, and no rely on the accreditation process as a institutions accredited by an accrediting requirement that students maintain the means to promote the integrity of the agency recognized by the Secretary of 96 course loads required for F–1 status. immigration system. DHS hopes that Education. The goal of accreditation is While it was operating, the school to ensure that by post-secondary post-secondary institutions enrolling helped approximately 1,500 foreign foreign students thereby would be institution provides an education that nationals enter the country for work or meets acceptable levels of quality. incentivized to pursue accreditation by other purposes by helping them illegally an ED-recognized agency, including Specifically, the accreditation process obtain F–1 visas.97 meeting all requirements, rather than involves the periodic review of Also in 2014, the former head of potentially lose future international institutions and programs to determine College Prep Academy in Duluth, whether they meet established Georgia, another unaccredited students and associated revenue to standards. and are achieving their stated institution, was sentenced to nearly 2 those schools that do. educational objectives. Schools meeting years in prison for overseeing an Because ED only has the authority to the accreditation requirement are immigration fraud scheme that brought recognize post-secondary accreditors, subjected to significant oversight by the women into the country through aliens attending elementary, middle or accrediting body, including recurring illegally obtained F–1 visas.98 Once in high school would not be subject to this assessment of the institutions’ programs limitation and may be eligible for the to ascertain their effectiveness in 93 Id. maximum 4-year period of admission. A helping students attain both academic 94 List of ED’s Database of Accredited link to information about ED-accredited knowledge and professional skills. The Postsecondary Institutions and Programs, https:// agencies would be included in a FRN intervals at which schools must submit ope.ed.gov/dapip/#/agency-list (last visited Feb. 4, that would be published concurrently 2020). with the final rule and updated as to accreditation review vary across 95 See U.S. Department of Justice (DOJ), U.S. accrediting agencies, but review Attorney’s Office Northern District of California needed (including if ED changes the typically occurs at least every 10 years, News Release, ‘‘CEO and President of East Bay web page where it publishes accredited with the accrediting agencies University Sentenced to 198 Months for Fraud agencies). Scheme,’’ (Nov. 3, 2014) available at https:// • E-Verify Participation. USCIS themselves subject to review by ED, to www.justice.gov/usao-ndca/pr/ceo-and-president- determine whether to grant or renew east-bay-university-sentenced-198-months-fraud- administers E-Verify, a web-based recognition, at least every 5 years.92 scheme (last visited Feb. 7, 2020). 96 Id. sentenced-immigration-fraud (last visited Feb. 7, 97 2020). 91 The Department of Education (ED) provides See The Chronicle of Higher Education, ‘‘Little- 99 this information on its Database of Accredited Known Colleges Exploit Visa Loopholes to Make Id. Postsecondary Institutions and Programs web page Millions Off Foreign Students’’ (March 20, 2011) 100 See DOJ News Release, Owner of Schools that at https://ope.ed.gov/dapip/#/home (last visited available at https://www.chronicle.com/article/ Illegally Allowed Foreign Nationals to Remain in Feb. 1, 2020). Little-Known-Colleges-Make/126822 (last visited U.S. as ‘Students’ Sentenced to 15 Months in 92 Report from U.S. Department of Education Feb. 7, 2020). Federal Prison, https://www.justice.gov/usao-cdca/ Office of the Inspector General, U.S. Department of 98 See DOJ News Release, ‘‘English Language pr/owner-schools-illegally-allowed-foreign- Education’s Recognition and Oversight of School Owner Sentenced for Immigration Fraud,’’ nationals-remain-us-students-sentenced-15 (last Accrediting Agencies, ED–OIG/A09R 0003, June 27, (May 7, 2014) available at https://www.justice.gov/ visited April 13, 2020). 2018. usao-ndga/pr/english-language-school-owner- 101 Id.

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system that electronically compares E-Verify could also provide DHS to file an EOS application in the midst information from an employee’s another data point to assess and of his or her 4-year admission period Employment Eligibility Verification independently verify whether an (for example, a student decides to (Form I–9) with records available to educational institution has teachers, request pre-completion OPT and DHS. E-Verify accesses millions of employees, and/or offices proportionate receives a Form I–20 reflecting the new government records available to DHS to the number of students that are program end date), and their EOS and the Social Security Administration. enrolled and in attendance. When application is filed on or after the It is the best means for employers to enrolling in E-Verify, employers student is subject to a 2-year maximum confirm the identity and employment indicate the size of the organization period of stay, that would trigger the eligibility of their new hires. E-Verify which can provide DHS with additional new 2-year maximum period of stay. has over 850,000 enrolled employers information about whether the school Similarly, if a student needs to file an and other participants of all sizes, has necessary personnel as required by EOS or departs and applies for encompassing more than 2.5 million 8 CFR 213.3(a)(3). A school that uses E- readmission, and the student files or hiring sites. It is one of the Federal Verify when they hire such employees applies after he or she is no longer Government’s highest-rated services for is doing as much as it can to ensure they subject to the 2-year limitation, that user satisfaction. Twenty-two states have a stable workforce to operate as a would trigger the 4-year maximum currently have various forms of statutes school. While the school’s certification period of stay. or other legal requirements making requirements would not be assessed DHS invites comments on all these participation in E-Verify a condition of when a student applies for EOS, the fact proposals, and specifically the business licensing or state contracting that a school participates in E-Verify limitations on the language training laws. should give DHS a greater level of schools, the U.S. national interest factor, DHS believes that schools that are assurance that the school is likely to E-Verify, whether additional limitations willing to go above and beyond to comply with all other federal should be added, and whether ensure compliance with immigration requirements and operates in exemptions to the limitations on law in one respect (verifying identity accordance with the certification admission should be possible. standards for which it is responsible. and employment eligibility as required ii. Changes in Educational Levels under section 274A of the INA and When determining how to apply the taking the additional step to confirm 2-year admission limitation, DHS Under current regulations, F–1 considered how to address situations Form I–9 information using E-Verify) students who continue from one when an alien admitted in F status for are more likely to comply with educational level to another are a 4-year period subsequently would immigration law in other respects (SEVP considered to be maintaining status. See become subject to a 2-year period if purposes) by successfully monitoring 8 CFR 214.2(f)(5)(ii). However, DHS has seeking admission. For example, a their F students. DHS therefore proposes observed that some students student may have a 4-year period of that E-Verify participation warrants a 4- continuously enroll in different admission, but in the midst of this year admission period for students of programs at the same degree level, such period, an FRN may be published those schools, subject to other as by pursuing multiple associate, indicating that his or her home country limitations on admission that may master’s, undergraduate, or certificate now has a student and exchange visitor apply. Conversely, there is less programs. Alternatively, some students total overstay rate of greater than 10 change to a lower educational level, confidence in schools that are unwilling percent, as stated in the DHS Entry/Exit to do all they can to ensure they have such as by completing a master’s degree Overstay Report. Notwithstanding such and then changing to an associate’s a legal workforce to support students’ intervening events, aliens will remain academic programs by participating in program. This has enabled some aliens subject to the period of admission to remain in the United States for E-Verify. Accordingly, DHS proposes approved upon his or her application that it would monitor whether students lengthy periods of time in F–1 student for admission, extension of stay, or status, raising concerns about the of such schools maintain status more change of status. Further, changing the frequently by limiting their admission temporary nature of their stay. In 2019, terms of admission at irregular intervals DHS identified nearly 29,000 F–1 period to 2 years. for particular classes of F DHS believes that the E-Verify students who, since SEVIS was nonimmigrants would introduce implemented in 2003, have spent more proposal would incentivize more significant confusion, make their stay than 10 years in student status.102 This schools to enroll in E-Verify. Should unpredictable, and so potentially includes individuals who enrolled in more schools enroll in E-Verify, DHS discourage some students from pursuing programs at the same educational level would be better assured that schools their studies in the United States. as many as 12 times, as well as students were meeting the certification standards Therefore, DHS is proposing to allow who have completed graduate programs at 8 CFR 214.3(a)(3). This provision is such aliens to remain in the United followed by enrolling in undergraduate associated with evaluating whether an States for the remainder of whatever programs, including associate’s degrees. educational institution is a bona fide period of admission is afforded them While there are legitimate cases of school possessing the necessary when they are admitted in, extend their facilities, personnel, and finances. It stay in, or change status to F–1 status. students wishing to gain knowledge at helps ensure that F nonimmigrants are However, if such aliens depart the a lower or the same educational level, choosing educational institutions that United States, the departure and the traditional path of study progresses have demonstrated a willingness to best subsequent application for admission from a lower educational program to a ensure compliance with immigration would trigger a new review and these higher one. The regulations contemplate laws in one respect (i.e., hiring), and aliens would be treated the same as any a model consistent with the vast which DHS believes therefore would be other aliens applying for admission. At majority of bona fide students following more likely to comply with that point they would become subject to 102 DHS compiled this information while requirements pertaining to school applicable terms and conditions of conducting an internal case analysis; however, the certification and enrollment of F admission, including the 2-year Department is withholding this information to nonimmigrants. limitation. Similarly if a student needs prevent the disclosure of PII.

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this upward trajectory. The term ‘‘full or a new degree at the same educational DHS considered a complete ban on course of study’’ as defined in the level more than twice (for a total of changes to a lower or same educational regulations requires that the program three programs), concerns are raised level, supported by the assumption that ‘‘lead to the attainment of a specific regarding whether the F–1 alien is a these F–1 aliens are not reliably educational or professional bona fide student who intends to continuing to make normal progress objective.’’ 103 Frequent or repeated temporarily and solely pursue a full towards the completion of their changes within an educational level or course of study rather than pursuing educational objectives. However, the to a lower level are not consistent with different degrees as a de facto way to Department believes such an option to attainment of such an objective. This permanently stay in the United States. be overbroad—there may be exceptions understanding was reflected in the Aliens in F–1 status seeking to change to the general upward progression in preamble to a 1986 rulemaking to a new program following completion educational levels. For example, a proposing changes to the F regulations, of a program at the same educational student might wish to pursue an MBA which stated: ‘‘The proposed regulation level (up to two additional times after following the completion of his or her . . . places limitations on the length of completion of the initial program) or Ph.D. time a student may remain in any one seeking to change to a lower educational Additionally, DHS proposes to retain level of study. Thus, the Service has level (no more than one additional time the term ‘‘educational’’ with respect to eliminated applications for extension of after completion of the initial program) the change in level as the Department stay for students who are progressing would need to obtain a new Form I–20 believes it more accurately reflects from one educational level to another from their DSO reflecting the new current academic models. Specifically, but has placed a control over students program. If the new program completion ‘‘educational’’ captures programs for who, for an inordinate length of time, date exceeds the authorized period of non-degree students, whereas using a remain in one level of study.’’ 104 admission, the alien would then apply term such as ‘‘degree’’ may not. For DHS thus proposes to limit the for EOS on the form designated by example, currently, an F–1 student number of times a student can change USCIS, with the required fee and in would not qualify for additional post- to another program within an accordance with form instructions, completion OPT if he or she changes to educational level, such as to pursue including any biometrics required by 8 a certificate program, given that the another bachelor’s or master’s degree. CFR 103.16. See proposed 8 CFR certificate program is not a ‘‘higher Specifically, any student who has 214.2(f)(5)(ii)(D). educational level.’’ Similarly, certificate programs for professional advancement completed a program at one educational DHS, of course, determines in all are typically not considered to be a level would be allowed to change to instances on a case-by-case basis ‘‘higher educational level’’ allowing another program at the same whether an alien who has completed his students to qualify for additional post- educational level no more than two or her initial program and seeks to additional times while in F–1 status, for completion OPT. change programs within the same level DHS believes these proposals will a total of three programs for the lifetime or to a lower educational level, has the of the student. See proposed 8 CFR encourage foreign students to pursue a requisite nonimmigrant intent, is a bona general upward progression in degree 214.2(f)(5)(ii)(B). DHS believes this fide student, and has adequate financial would accommodate the legitimate levels, which is expected from a resources to continue their studies, or is qualified bona fide student who is academic activities of bona fide students misusing the F–1 program as a pretext that are not following the typical coming to the United States temporarily to unlawfully extend their stay in the and solely to pursue a course of study. upward progression, such as a desire to United States. pursue a different field of study, or to While this change could dissuade some DHS recognizes that this proposal will foreign nationals from choosing to study pursue more specialized studies in their require updates to SEVIS and other field. In addition, an F–1 student who in the United States, the Department systems. Because the timeframe for believes that this restriction would not has completed a program at one those updates is not fixed and there educational level would be allowed to significantly impact the choice of bona could be technical issues regarding fide students who come to the United change to a lower educational level one implementation, DHS is proposing to time while in F–1 status. See proposed States temporarily to complete a full include a provision whereby the course of study. The F–1 program, with 8 CFR 214.2(f)(5)(ii)(C). These Department may delay or suspend restrictions limiting the number of times its statutory requirement that an alien be implementation, in its discretion, if it a bona fide student who seeks to enter a student can complete additional determines that the change in programs in one educational level or the United States temporarily and solely educational level limitation is for the purpose of pursuing a full course begin a new program at a lower inoperable for any reason. See proposed educational level are lifetime of study, should not be used by aliens 8 CFR 214.2(f)(5)(ii)(E). If DHS delays or wishing to remain in the United States restrictions; they do not reset, for suspends the provisions in this section instance, with a new admission as an F– permanently or indefinitely. These governing the change in degree level, proposals would better ensure that this 1 student. DHS would make an announcement of DHS believes that it is reasonable in statutory intent is fulfilled without the delay or suspension to the academic hindering the options presented to bona most cases for a student to progress to community through SEVP’s various a higher educational level rather than fide students seeking higher educational communication channels, including levels and thus create a balanced continue at the same level or pursue a ICE.gov/SEVP, Study in the States lower level of education. When, after solution to this issue. DHS welcomes (https://studyinthestates.dhs.gov) and comments on this proposal. completion of one program, an F–1 SEVIS Broadcast Message. DHS would wishes to pursue a new program at a also announce the implementation dates iii. Preparation for Departure lower educational level more than once of the change in degree level provision DHS believes that the time allotted for through SEVP’s communication F students to prepare for departure 103 8 CFR 214.2(f)(6)(i). channels (ICE.gov/SEVP, Study in the should be revised. Under current 104 Nonimmigrant Classes, Change of Nonimmigrant Classification, 51 FR 27867 States, and SEVIS Broadcast Message) at regulations, F–1 students are provided (proposed Aug. 4, 1986). least 30 calendar days in advance. Id. 60 days following the completion of

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their studies and any practical training extend, change, or otherwise maintain obtain lawful status. See proposed 8 to prepare for departure from the United lawful status. DHS thinks that 30 days CFR 214.2(f)(5)(iv). States. See 8 CFR 214.2(f)(5)(iv). is an adequate period for F–1 students Finally, DHS proposes to retain the However, this is twice as long as other to prepare for departure and is in line current regulatory language that allows student and exchange visitor with similar categories (the M and J a 15-day period for departure from the categories—J exchange visitors and M departure periods) but welcomes United States if an alien is authorized vocational students are only allowed 30 comments on whether a different period by the DSO to withdraw from classes, days. See 8 CFR 214.2(j)(1)(ii) and for departure would be more but no additional time for departure if (m)(10)(i). appropriate for the F nonimmigrant the alien fails to maintain a full course This 60-day period is also six times classification, including whether there of study without the approval of the longer than certain nonimmigrants who are meaningful distinctions between F DSO or otherwise fails to maintain are authorized to remain in the United nonimmigrant students and both J status. See 8 CFR 214.2(f)(5)(iv). States for years, but are only provided exchange visitors and M vocational Because DSOs generally authorize with a 10-day period to depart the students that should be considered. withdrawal based on compelling United States. For example, DHS DHS also welcomes comments regarding academic or medical circumstances provides a 10-day period following the whether the 30-day departure period when a student proactively requests end of the alien’s admission period as should be reflected in the Form I–94. permission, DHS believes retaining the stated on his or her Form I–94 for See proposed 8 CFR 214.2(f)(5)(v) and 15-day period is appropriate. However, individuals in the E–1, E–2, E–3, H–1B, (f)(10)(ii)(D). aliens who fail to maintain their full L–1, and TN classifications in a 2016 course of study or otherwise rulemaking.105 In the rulemaking Additionally, in the 2016 rulemaking impermissibly violate their status are discussing this 10-day period for establishing a 10-day grace period for required to immediately depart the departure, DHS noted that a grace certain nonimmigrant classifications, United States, as is consistent with period of up to 10 days after the end of DHS chose to remove the phrase ‘‘to other nonimmigrant categories. DHS an authorized validity period provides a prepare for departure from the United considered allowing a short ‘‘grace reasonable amount of time for such States or to seek an extension or change period’’ for departure after an EOS nonimmigrants to depart the United of status based on a subsequent offer of denial, but does not see a compelling States or take other actions to extend, employment’’ from the proposed reason to treat F nonimmigrants who change, or otherwise maintain lawful regulatory text relating to the purpose of have received a denial more favorably status.106 It is thus unclear to DHS why the grace period, with the justification than other nonimmigrant categories. As F students would need a significantly that it was unnecessarily limiting and in other nonimmigrant categories, longer period of time—60 days—to did not fully comport with how the failure to immediately depart under prepare for departure when other existing 10-day grace period may be these circumstances could result in nonimmigrants have less time to used by individuals in the H, O and P 108 accrual of unlawful presence and prepare for departure.107 nonimmigrant [visa] classifications. subject an individual to removal. DHS believes that 30 days for the F DHS clarified that the 10-day grace nonimmigrant population is the period may be granted to these iv. Automatic Extension of Status appropriate balance between a 60-day nonimmigrants at time of admission or 1. Authorized Status and Employment and a 10-day period of departure. DHS upon approval of an extension of stay or Authorization Under 8 CFR believes that the F category, albeit change of status and may be used for 214.2(f)(5)(vi) other permissible non-employment distinct from M or J, shares a core Each year, a number of U.S. similarity in that many aliens in these activities such as seeking to change one’s status to that of a dependent of employers seek to employ F–1 students categories are seeking admission to the and file a Form I–129, Petition for a United States to study at United States another nonimmigrant or vacationing prior to departure.109 DHS notes that Nonimmigrant Worker, with USCIS, educational institutions. Thus, DHS along with a change of status request, to thinks that these categories should have seeking an extension of stay or change of status is an allowable activity for F obtain classification of the F–1 student a standard period of time to prepare for as an H–1B nonimmigrant worker. The departure, or take other actions to aliens during the 30 day departure period following the completion of their H–1B nonimmigrant visa program allows U.S. employers to temporarily 105 See 8 CFR 214.1(l)(1) (providing for 10-day program and believes this same grace periods for certain nonimmigrants). clarification should be incorporated into employ foreign workers in specialty 106 See Retention of EB–1, EB–2, and EB–3 this proposed rulemaking. See proposed occupations, defined by statute as Immigrant Workers and Program Improvements 8 CFR 214.2(f)(5)(iv). occupations that require the theoretical Affecting High-Skilled Nonimmigrant Workers, 81 and practical application of a body of FR 82,398, 82,401 (Nov. 18, 2016). DHS also proposes to clarify that the highly specialized knowledge and a 107 Rulemakings in the mid-1980s mention this proposed period to prepare for 60-day period for departure but did not provide any bachelor’s or higher degree in the explanation as to why this period of time to depart departure or otherwise maintain status specific specialty, or its equivalent. See was given to students. See e.g., Nonimmigrant is 30 days from the Form I–94 (or INA sections 101(a)(15)(H)(i)(b) and Classes; F–1 Students, 52 FR 13,223 (Apr. 22, 1987) successor form) end date or the 214(i); 8 U.S.C. 1101(a)(15)(H)(i)(b) and (referencing the proposed rule, and stating that in expiration date noted on the the ‘‘proposed regulations, duration of status was 1184(i). The H–1B classification, defined to mean the period during which a student Employment Authorization Document however, is subject to annual numerical is pursuing a full course of studies in any (Form I–766 or successor form), as allocations. See INA sections educational program, and any period or periods of applicable, to prepare for departure 214(g)(1)(A) and (g)(5)(C); 8 U.S.C. authorized practical training, plus sixty days,’’ but from the United States, or otherwise 110 not indicating the reason for the 60-day period). 1184(g)(1)(A) and (g)(5)(C). For Nonimmigrant Classes; Change of nonimmigrant Classification, 51 FR 27,867 (Aug. 4, 1986) 108 Retention of EB–1, EB–2, and EB–3 Immigrant 110 Under INA 214(g)(1)(A), 8 U.S.C. (proposing that duration of status would consist of Workers and Program Improvements Affecting 1184(g)(1)(A), 65,000 aliens may be issued H–1B an additional ‘‘sixty days within which to depart High-Skilled Nonimmigrant Workers, 81 FR 82,398, visas or otherwise provided H–1B nonimmigrant from the United States,’’ but silent on the reason for 82402, 82437 (Nov. 18, 2016). status in a fiscal year. This limitation does not the 60-day period of departure). 109 Id at 82437. Continued

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purposes of the H–1B numerical individuals may remain in the United who seek to change status from F–2 allocations, each fiscal year begins on States while the H–1B change of status status to H–1B or H–4 (spouse or child October 1. Petitioners may not file H–1B application is pending.112 of H nonimmigrant) status. See petitions more than six months before To account for this operational issue, proposed 8 CFR 214.2(f)(5)(vi)(D). the date of actual need for the DHS is proposing to revise 8 CFR Dependents may not accept employee.111 Thus, the earliest date an 214.2(f)(5)(vi) to provide an automatic employment as an F–2 nonimmigrant. H–1B cap-subject petition may be filed extension of F–1 status and post- Thus, there is no work that would be for an allocation for a given fiscal year completion OPT, as applicable, until disrupted by a loss of employment is April 1, six months prior to the start April 1 of the fiscal year for which the authorization while the F–2 dependent’s of the applicable fiscal year for which H–1B petition is filed. The F–1 student COS application remains pending with initial H–1B classification is sought. would not need to file a separate EOS USCIS for adjudication. As is the case Many F–1 students complete a program if their fixed date of admission passed under the current regulation, an F–1 of study or post-completion OPT in during the period before April 1, as this nonimmigrant’s automatic extension of mid-spring or early summer. Per current provision would extend the applicant’s status under the cap-gap provision also regulations, after completing their F–1 status automatically if an H–1B applies to his or her F–2 dependents program or post-completion OPT, F–1 petition requesting a change of status is who timely file a change of status students have 60 days (which DHS is timely filed on behalf of the F–1 application to H–4.113 proposing to change to 30 days) to take student. See proposed 8 CFR DHS believes that these changes the steps necessary to maintain legal 214.2(f)(5)(vi)(A). However, if the F–1 would result in more flexibility for both status or depart the United States. See student’s COS is still pending at the end students and the Department and would 8 CFR 214.2(f)(5)(iv). However, because of the cap-gap period, then his or her help to avoid disruption to U.S. the change to H–1B status cannot occur employment authorization would employers who are lawfully employing until October 1, an F–1 student whose terminate on March 31, and the F–1 students while a qualifying H–1B program or post-completion OPT applicant would no longer be petition is pending. However, DHS is expires in mid-spring has two or more employment authorized on this basis as concerned with the impacts of this months following the 60-day period of April 1. If the H–1B petition provision on U.S. workers and students, before the authorized period of H–1B underlying the cap-gap extension is especially if it would result in increased status can commence. To address this denied, then, consistent with existing competition for certain jobs, and invites situation, commonly known as the ‘‘cap- USCIS practice, the F–1 beneficiary of comments from the public on this issue. gap,’’ DHS established regulations that the petition, as well as any F–2 automatically extended F–1 D/S and, if dependents, will receive the standard 2. F–1 Status and Employment applicable, post-completion OPT F–1 grace period (which this rule Authorization While EOS and employment authorization for certain F– proposes to change to 30 days) to depart Employment Authorization 1 nonimmigrants to October 1 for the United States. Applications Are Pending eligible F–1 students. See 8 CFR DHS believes that proposing to DHS proposes to strike ‘‘duration of 214.2(f)(5)(vi). The extension of F–1 D/ change the automatic extension end status’’ from 8 CFR 214.2(f)(5)(vi) and S and OPT employment authorization is date from October 1 to April 1 would clarify that an alien with F–1 status commonly known as the ‘‘cap-gap avoid disruptions in employment whose admission period as indicated on extension.’’ authorization that some F his or her Form I–94 has expired, but DHS proposes to retain the cap-gap nonimmigrants seeking cap gap who has timely filed an EOS provisions automatically granting, for a extensions have been experiencing over application, would be authorized to certain period of time, the extension of the past several years. DHS fully expects continue pursuing a full course of study F–1 students’ stay and grant of USCIS would be able to adjudicate all after the end date of his or her employment authorization for aliens H–1B cap-subject petitions requesting a admission until USCIS adjudicates the who are the beneficiaries of timely filed change of status from F–1 to H–1B by EOS application. See proposed 8 CFR H–1B cap-subject petitions with an that April 1 deadline. In addition to 214.2(f)(5)(vii). This change would employment start date of October 1, and avoiding employment disruptions, the provide ongoing authorization to requesting a change of status. Under lengthier extension of F status and continue studies as long as the student current regulations, the automatic cap- employment authorization for aliens has timely filed his or her EOS and will gap extension is valid only until with pending H–1B petitions until April not penalize students if USCIS is unable October 1 of the fiscal year for which H– 1, up to one year, depending on when to adjudicate an EOS application before 1B status is being requested. See 8 CFR the H–1B petition was filed, accounts a student’s new term or course of study 214.2(f)(5)(vi). With the consistently for USCIS’ competing operational is underway. In such cases, students high volume of H–1B petitions each considerations and would enable the would be able to continue pursuing year, however, USCIS has been unable agency to more appropriately balance their full course of study. to complete adjudication of H–1B cap- workloads across petition types. The shift to a fixed date of admission subject petitions by October 1, resulting DHS is also proposing to clarify that has implications for employment in situations where some individuals the cap-gap provision does not authorization. Currently, DSOs may must stop working on October 1 because authorize employment for dependents authorize certain types of employment the employment authorization provided authorization, including on campus under 8 CFR 214.2(f)(5)(vi) terminates 112 In 2018, USCIS issued a web alert notifying employment and CPT,114 and students on that date, although generally these the public that significant numbers of beneficiaries would lose their employment authorization and generally do not need to be concerned stating that individuals can generally remain in the about a specific expiration date for their apply to aliens who have earned a master’s or United States without accruing unlawful presence student status, and thus their higher degree from a U.S. institution of higher while their application is pending, provided they employment authorization, because they education, as defined in 20 U.S.C. 1001(a), until the do not work without authorization, available at number of aliens who are exempted from such https://www.uscis.gov/news/alerts/f-1-cap-gap- numerical limitation during such year exceeds status-and-work-authorization-extension-only- 113 8 CFR 214.2(f)(5)(vi)(D). 20,000. INA 214(g)(5)(C), 8 U.S.C. 1184(g)(5)(C). valid-through-sept-30-2018 (last visited Jan. 12, 114 See 8 CFR 214.2(f)(10)–(12), 8 CFR 111 See 8 CFR 214.2(h)(2)(i)(I). 2020). 274a.12(b)(6)(iv).

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are admitted for duration of status. This employment authorization.117 generally do not have to be concerned rule would change that framework with Additionally, given that USCIS’ average about their F–1 period of authorized different implications for various types EAD processing time is typically 90–120 stay. However, with the shift to a fixed of employment authorization. days, a 180-day timeframe provides admission period, these aliens would For on-campus employment where no sufficient flexibility in case of have to be cognizant of that date in EAD is needed, DHS proposes to allow unexpected delays.118 A longer auto- order for the EOS to be approved. DHS aliens in F–1 status to continue to be extension period for automatic believes it is appropriate to provide an authorized for on-campus employment extension of employment authorization automatic extension of SSR-based while their EOS applications with is unnecessary. employment so aliens’ ability to benefit USCIS are pending, not to exceed a For F–1 aliens granted off-campus from this long-standing regulatory relief period of 180 days.115 See proposed 8 employment authorization on the basis is not interrupted by USCIS processing CFR 214.2(f)(5)(vii). If the EOS of severe economic hardship resulting times. Consistent with existing practice application is still pending after 180 from emergent circumstances pursuant for certain nonimmigrants who require days have passed, the F–1 student to 8 CFR 214.2(f)(5)(v), DHS is an EAD,119 DHS proposes to would no longer be authorized for proposing an automatic extension of automatically extend SSR authorization employment and would need to stop such employment authorization with a if an F–1 alien has a timely-filed EOS engaging in on-campus employment. different validity period than the pending for up to the end date stated in DHS is proposing a 180-day automatic general 8 CFR 214.2(f)(9)(ii)(C) severe the Federal Register notice announcing extension period in order to minimize economic hardship employment the suspension of certain requirements, disruptions to on-campus employment authorization extension described above or 180 days, whichever is earlier. by teaching assistants, post-graduates while their EOS applications are As evidence of these automatic working on research projects, and other pending. As first promulgated in 1998, extensions of employment positions that are integral to an F–1 the regulations provide necessary authorization, DHS is proposing that the student’s educational program. A 180- flexibility to address unforeseeable F–1 aliens’ Form I–94 (or successor day period would be consistent with the emergencies by allowing DHS, by notice form) or Employment Authorization other automatic extension for F–1 STEM in the Federal Register, to suspend the Document (EAD, Form I–766, or OPT students.116 That timeframe has applicability of some or all of the successor form), for F–1s requiring an been in existence since 2008 and DHS requirements for on- and off-campus EAD, when combined with a notice expects the F–1 population of students employment authorization for specified issued by USCIS indicating receipt of a F–1 students where an emergency timely filed extension of stay and employers to be familiar with it. situation has arisen calling for this application (such as the Form I–797), DHS welcomes comments on whether action. These F–1 students must would be considered unexpired until the 180 day period of automatic continue to attend classes, but are USCIS issues a decision on the EOS extension for employment is an allowed to take a reduced course load. application, not to exceed 180 days. See appropriate time period. By regulation, aliens must take at least proposed 8 CFR 214.2(f)(5)(vii). SSR- Likewise, DHS is proposing an 6 semester or quarter hours of based employment authorization that automatic extension of off-campus instruction at the undergraduate level or has been automatically extended can be employment authorization for up to 3 semester or quarter hours of evidenced by the F–1 alien’s EAD and 180-days during the pendency of the instruction at the graduate level. See 8 receipt notice issued by USCIS (the EOS application, for F–1 aliens who CFR 214.2(f)(5)(v). Failure to take the Form I–797), not to exceed the lesser of have demonstrated severe economic required credits could be considered a 180 days or the end date stated in the hardship pursuant to 8 CFR failure to maintain F–1 status. The Federal Register notice announcing the 214.2(f)(9)(ii)(C). These circumstances special student relief (SSR) regulations suspension of certain requirements. may include loss of financial aid or on- are announced by notice in the Federal DHS believes that continued campus employment without fault on Register and that employment may only employment authorization for aliens the part of the student, substantial be undertaken during the validity wishing to work as an intern for an fluctuations in the value of currency or period of the SSR notice. Currently, any international organization, engage in exchange rate, inordinate increases in extension of SSR-based employment CPT, or in pre- or post-completion OPT tuition and/or living costs, unexpected would have to be granted before the present materially different changes in the financial condition of the expiration of the prior grant of SSR circumstances from those pertaining to student’s source of support, medical employment-based employment aliens who are experiencing emergent bills, or other substantial and authorization, if it is not granted before circumstances, severe economic unexpected expenses. Id. In such cases, the expiration of the prior authorization, hardship, or engaging in on campus DHS believes a 180-day automatic the student must stop working under employment, and that the same extension of employment authorization that SSR-based employment automatic extension policies therefore would help alleviate the severe authorization benefit, until the renewal should not apply to them. economic hardship and avoid a is reauthorized. Because students are First, related to the employment disruption in their employment, currently admitted for D/S, these aliens authorization requests to engage in an especially given the fact that an internship with an international Employment Authorization Document is 117 See 8 CFR 274a.12(c)(3). 8 CFR organization, such requests arise when a required and frequency at which these 214.2(f)(9)(ii)(F)(2) provides that employment student has an opportunity for an students must submit an application for authorization based upon severe economic hardship internship with certain organizations may be granted in one-year intervals up to the expected date of completion of the student’s current and these make up a smaller proportion 115 See 8 CFR 214.2(f)(9)(i) for a description of on- course of study. of employment authorization campus employment. For on-campus employment 118 See Check Case Processing Time, available at applications. These requests are not tied that is based on severe economic hardship resulting https://egov.uscis.gov/processing-times/ (last visited to economic necessity or emergent from emergent circumstances pursuant to 8 CFR June 19, 2020). The Potomac Service Center, which 214.2(f)(5)(v), see later discussion for additional adjudicates all applications for Employment circumstances. Therefore, DHS is not restrictions. Authorization for Optional Practical Training, lists 116 8 CFR 274a.12(b)(6)(iv). processing times from 3.5 to 5.5 months. 119 See 8 CFR 274a.13(d).

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recommending an automatic extension 214.2(f)(10)(ii)(C)(7). DHS also has Therefore, DHS proposes not to use a of employment authorization while oversight into this program through site ‘‘normal progress’’ standard with these aliens have a timely filed EOS visits to employer locations in which respect to seeking an extension of an pending. STEM OPT students are employed. authorized period of stay. In addition to Second, students engaging in CPT or Thus, DHS does not think changes to the requirement that the applicant pre-completion OPT are still enrolled in the automatic extension provision are obtain an I–20 from the DSO school and pursuing a curriculum. DHS needed. recommending extension of the expects that DSOs would not authorize Finally, DHS is proposing some program, the applicant will be required any practical training for a length of technical amendments. In 8 CFR to file an EOS application to request time beyond their fixed date of 214.2(f)(9)(i), the word ‘‘Commissioner’’ additional time to complete their admission on the I–94, so an automatic would be replaced by ‘‘Secretary’’; the current course of study beyond their extension of employment authorization term ‘‘residents’’ following ‘‘United authorized period of admission. See would be inappropriate. DHS proposes States’’ would be replaced by ‘‘workers’’ proposed 8 CFR 214.2(f)(7)(i). to add a sentence at the end of 8 CFR for better accuracy; the term ‘‘Form I–20 Apart from pursuing a new course of 214.2(f)(10)(i) stating that curricular A–B’’ would be replaced by the study, DHS appreciates that the time for practical training may not be granted for currently used form, ‘‘Form I–20’’; and study can legitimately fluctuate given a period exceeding the alien’s fixed date the end of the paragraph would be the changing goals and actions of the of admission as noted on his or her revised to clarify that an alien who has student. For example, a student may Form I–94, and that such alien must not a timely filed application for an EOS experience compelling academic or engage in curricular practical training may engage in on-campus employment medical reasons, or circumstances until USCIS approves his or her timely- for a period not to exceed 180 days, or beyond their control that cause them to filed EOS request. See proposed 8 CFR until USCIS approves his or her need additional time in the United 214.2(f)(10)(i). application, whichever is earlier. See States beyond the predetermined end Third, where a student timely files an proposed 8 CFR 214.2(f)(9)(i). DHS also date of the program in which they were EOS and an application to engage in proposes to strike and reserve 8 CFR initially enrolled. DHS understands post-completion OPT employment, DHS 214.2(f)(10)(i)(A), which refers to a non- these circumstances arise and believes believes the current and longstanding SEVIS process for requesting curricular these scenarios present an appropriate policy of obtaining authorization from practical training authorization. Because situation for the Department to directly USCIS, in the form of an EAD, before an all schools enrolling F students must be evaluate the nonimmigrant’s eligibility alien may work in the United States is SEVP-certified and use SEVIS to for additional time in the United States. appropriate. Applications must be indicate CPT authorization, the However, instead of effectively reviewed and adjudicated to determine provision is outdated. See proposed 8 extending their stay through a DSO’s that students are eligible for OPT. CFR 214.2(f)(10)(i)(A). program extension recommendation in Students engaging in post-completion SEVIS, students would have to obtain v. New Process for EOS Applications OPT often have less contact with their an I–20 from the DSO recommending a schools and DSOs, and this underscores Under current regulations, F–1 program extension and apply to USCIS the importance for DHS to directly students are able to obtain a program for an extension of stay. Immigration examine these applicants, ensuring that extension from a DSO as long as they officers thereby would be able to their contact information is accurate, as are maintaining status and making conduct appropriate background and well as checking that they have not normal progress toward the completion security checks on the applicant at the engaged in any unauthorized activities. of their educational objectives. See 8 time of the extension of stay application DHS does not propose any changes to CFR 214.2(f)(7)(i) and (iii). The problem and directly review the proffered the STEM OPT extension provision at 8 with the ‘‘normal progress’’ standard is evidence to ensure that the alien is CFR 274a.12(b)(6)(iv) under which an that it is undefined, and DHS believes eligible for the requested extension of Employment Authorization Document that retaining it could lead to stay, including through assessing issued for OPT is automatically inconsistent adjudications. Even now, whether the alien remains admissible. extended for a period of up to 180 days the lack of a standard definition for See 8 CFR 214.1(a)(3)(i). while a timely filed application for normal progress leads DSOs to In these circumstances, the employment authorization (Form I–765) inconsistently extend F–1 students’ Department would only extend the stay for STEM OPT extension is pending. program end dates and thus their stay in beyond the prior admission date Students who are eligible for the STEM the United States. Some DSOs use a (typically the program end date for OPT extension have previously applied strict standard, evaluating, for example, which the student was admitted to the for OPT and received an EAD. Their documentation to support a student’s United States as a F–1 nonimmigrant or applications were adjudicated by USCIS claim of a compelling medical illness was granted based on a change of status to determine that they were eligible for that serve as the basis for the student’s or extension of stay) of an otherwise OPT. In addition, the STEM OPT request for extension of the student’s eligible F–1 student requesting program has requirements and current program. However, other DSOs additional time to complete their safeguards for both students and claim that the student is making program if the additional time needed is employers that other practical training ‘‘normal progress’’ whenever a student due to a compelling academic reason, programs do not. For example, the simply needs more time to complete the documented medical illness or medical student’s STEM OPT employer is program. This inconsistency results in condition, or circumstance that was required to be enrolled in E-Verify, and some students being able to remain in beyond the student’s control. As with the terms and conditions of a STEM F–1 status for years simply by having all nonimmigrant extensions of stay, an practical training opportunity, including the DSO update the Form I–20 without alien seeking an extension of stay duties, hours, and compensation, must providing a justification as to how the generally must have continually be commensurate with the terms and student is making ‘‘normal progress’’ maintained status.120 And if a student conditions applicable to the employer’s and what academic or medical similarly situated U.S. workers in the circumstances necessitate the extension 120 Failure to file before the expiration of the area of employment. See 8 CFR of the program. previously accorded status or failure to maintain

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dropped below a full course of study, documented illness or medical academic reason in order for the DSO to that drop must have been properly condition; and (3) exceptional recommend program extension and then authorized. Students seeking extensions circumstances beyond the control of the the student may apply for extension of of stay must primarily be seeking to alien. See proposed 8 CFR stay. While a letter from the student temporarily stay in the United States 214.2(f)(7)(iii).121 The first two factors may be sufficient to meet his or her solely to pursue a full course of study, are based on the current regulatory burden of proof, an immigration officer INA section 101(a)(15)(F)(i), 8 U.S.C. provisions for program extension, 8 CFR will evaluate the individual case and 1101(a)(15)(F)(i), not for other reasons 214.2(f)(7)(iii), from current text (i.e., make the determination if additional separate from, or in addition to, changes of major or research topics, and evidence (such as a letter from a pursuing a full course of study. unexpected research problems). DHS member of the school administration or By way of illustration, a student with proposes to clarify that, in addition to faculty) is needed to adjudicate the case. a fixed date of admission may request academic probation and suspension, a Next, DHS is proposing to clarify that an additional 4 months to complete his pattern of behavior which demonstrates a student can qualify for a program program because he was authorized to a student’s repeated inability or extension and corresponding extension drop below a full course of study for one unwillingness to complete his or her of stay based on a medical reason, but semester due to illness. The student course of study, such as failing classes, it must be a documented illness or would need to request an updated I–20 is not an acceptable reason for an medical condition. To provide an from the DSO recommending a program extension of stay for additional time to objective standard, DHS proposes to extension. In such an instance, an complete a program. See proposed 8 codify standards already included in 8 immigration officer could review the CFR 214.2(f)(7)(iii)(B)(1). Current CFR 214.2(f)(6)(iii)(B), which requires a proffered evidence and ensure that the program extension requirements do not student to provide medical claim is supported by documentation address students who have failed to documentation from a licensed medical from a medical doctor. Conversely, a carry a full course of study due to failed doctor, doctor of osteopathy, or licensed student may request an EOS for classes in an academic term or students clinical psychologist to substantiate the additional time to complete an associate who have a pattern of failing grades illness or medical condition if seeking a program, but fail to submit evidence during their studies. DHS expects bona reduced course load. See proposed 8 they were properly authorized to drop fide students to be committed to their CFR 214.2(f)(7)(iii)(B)(2). As this is below a full course of study. Under the studies, attending classes as required, already a long-standing requirement for proposed regulation, the immigration carrying a full course of study, and DSOs and students in a similar context, officer would have discretion to request making reasonable efforts toward DHS believes that it would be transcripts from the student. If a program completion. Passing a class, or appropriate and easy to implement in student’s transcripts reflect the student not, is something that is within the the program extension and failed multiple classes one semester, an student’s control. Therefore, a student corresponding extension of stay process. immigration officer could determine the who has a pattern of failing grades or Further, requiring applicants to provide student has failed to maintain status due has failed to carry a full course of study documentation of their medical illness to a failure to carry a full course of study due to failing grades would not be or medical condition that caused their as required. In another example, a qualified for an extension of stay. This program delay is a reasonable request, student could submit an EOS request to prohibition would not include students, because they are asking DHS to provide them additional time in the United continue in the same program because such as those university students who, States. he or she was unable to take all the pursuant to DHS regulations, are required classes for his or her major due DHS is also proposing a new factor in permitted to take 12 semester hours of the extension of stay provisions— to over-enrollment at the school. Again, coursework and, therefore, necessarily an officer could request additional circumstances beyond the student’s would not complete their programs control, including a natural disaster, a information, if needed, to determine within 4 years. Absent academic that the student was maintaining a full national health crisis, or the closure of probation or suspension, or negative an institution. See proposed 8 CFR course of study (or, if not, was properly factors such as repeatedly failing authorized to reduce his or her course 214.2(f)(7)(iii)(B)(3). As in the classes, these students would be eligible reinstatement context, DHS believes that load), but due to the school’s high for extension based upon compelling enrollment, the student may validly there might be additional reasons academic reasons. This prohibition beyond compelling academic or require an additional semester to would also not include cases where the complete the degree requirements in documented medical reasons that result student was properly authorized to drop in a student’s inability to meet the order to graduate. below a full course of study due to Therefore, DHS is proposing to program end date listed on the Form I– academic difficulties or medical 20. eliminate a reference to ‘‘normal conditions or has been reinstated to progress’’ with respect to seeking a Therefore, DHS is proposing a third student status based on a reduction in prong that would encompass scenarios program extension, and incorporate a course load that would have been new standard that makes it clear that that are not envisioned in the current within a DSO’s power to authorize. The provisions governing the extension of a acceptable reasons for requesting an student would be expected to provide extension of a stay for additional time program end date, such as those noted evidence demonstrating the compelling above. Some of these examples are to complete a program are: (1) currently in the reinstatement Compelling academic reasons; (2) a 121 DHS does not propose to update the term provisions, 8 CFR 214.2(f)(16)(i)(F), and ‘‘normal progress’’ as defined in 8 CFR such status may be excused at the discretion of 214.2(f)(6)(i)(E) because the Department does not DHS believes that they merit favorable USCIS if the alien demonstrates that at the time of feel it addresses the same concerns as it does at 8 consideration in extension requests. filing: The delay was due to extraordinary CFR 214.2(f)(5). The provision at 8 CFR However, the circumstances circumstances beyond the control of the applicant, 214.2(f)(6)(i)(E) relates to study at an approved surrounding the closure of a school, if and USCIS finds the delay commensurate with the private elementary or middle school or public or circumstances, the alien has not otherwise violated private academic high school. In that context, it is relevant, may be considered in his or her status, and is not subject to deportation. clear that ‘‘normal progress’’ is the completion of determining whether the student 8 CFR 214.1(c)(3)(viii). the academic year (for example, 6th grade). qualifies for an extension of stay. For

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example, if a school closes as a result of the end date noted on the most recent and M nonimmigrant student visas, 22 a criminal conviction of its owners for Form I–20 or successor form, would CFR 41.61(b)(1)(ii), and Department of engaging in student visa fraud by not require the alien to file for a State policy requires an applicant to requiring students to attend, and the reinstatement of F–1 status, because the provide documentary evidence that student is unable to demonstrate that he alien would have failed to maintain sufficient funds are, or will be, available or she was attending classes prior to status and would be ineligible for an to defray all expenses during the entire closure as required to fulfill a full EOS. See proposed 8 CFR period of anticipated study.122 While course of study, the closure of the 214.2(f)(7)(iii)(D). A request for this does not mean that the applicant institution might not qualify the student reinstatement must be filed in the must have cash immediately available to for a program extension. manner and on the form designated by cover the entire period of intended The requirements to timely request an USCIS, with the required fee, including study, which may last several years, the extension of the program end date any biometrics required by 8 CFR applicant must demonstrate enough would remain largely unchanged; 103.16. DHS is also requiring F–2 readily available funds to meet all however, DHS proposes a technical dependents seeking to accompany the expenses for the first year of study.123 change to replace all references to the F–1 principal student to file DHS believes requiring evidence of DSO ‘‘granting’’ an extension of the applications for an EOS or financial resources to cover expenses for program with the term ‘‘recommend’’ an reinstatement, as applicable. These one year of study is reasonable given extension of the program in order for the requirements are consistent with current that F students are familiar with this student to file for EOS because USCIS, provisions. requirement because this is the standard not the DSO, would ‘‘grant’’ the With the transition from D/S to used by the Department of State in the extension of stay. See proposed 8 CFR admission for a fixed time period, F–1 issuance of F nonimmigrant visas. DHS 214.2(f)(7)(iii)(C). For example, a students would need to apply for an also considers that this standard is student may not necessarily be granted EOS directly with USCIS, by submitting appropriate because it establishes an extension of stay by USCIS if an the appropriate form and following the concrete resources for one full academic adjudicator determines the student has requirements outlined in the form year of the program. Further, applicants not actually maintained status or does instructions. USCIS anticipates must demonstrate that, barring not actually have compelling academic accepting the Form I–539, Application unforeseen circumstances, adequate or documented medical reasons for the to Change/Extend Nonimmigrant Status, funds will be available for each delay, despite the DSO’s for this population but would like the subsequent year of study from the same recommendation for program extension. flexibility to use a new form if more source or from one or more other Where the alien requests a efficient or responsive to workload specifically identified and reliable recommendation to extend the program needs. Thus, DHS is proposing to use financial sources. Such evidence for one end date, the DSO could only make a general language to account for a year and subsequent years could recommendation to extend the program possible change in form in the future. If include, but is not limited to: Complete if the alien requested the extension the form ever changes, USCIS would copies of detailed financial account before the program end date noted on provide stakeholder’s advanced notice statements for each account intended to the most recent Form I–20, or successor on its web page and comply with be used to fund the student’s education; form. Id. Additionally, consistent with Paperwork Reduction Act requirements. other immediately available cash assets; changes throughout this NPRM, once Like all other aliens who file a Form receipts and/or a letter from the school the DSO recommends the extension of I–539, F–1 applicants would be required accounts office indicating tuition the program, the alien would need to to submit biometrics and may be payments already made and any timely file for an EOS on the form and required to appear for an interview outstanding account balance; affidavits in the manner designated by USCIS, pursuant to 8 CFR 103.2(b)(9). In of support from a sponsor; proof of with the required fees and in addition, applicants would need to authorized private student loans; 124 accordance with the filing instructions, demonstrate that they are eligible for the and/or other financial documentation. including any biometrics required by 8 nonimmigrant classification sought. F–1 applicants would need to timely CFR 103.16 and a valid, properly Accordingly, applicants must submit file their EOS application—meaning endorsed Form I–20 or successor form, evidence of sufficient funds to cover that USCIS would need to receive the showing the new program end date, id., expenses. A failure to provide such application on or before the date the barring extraordinary circumstances, see evidence would render the applicant authorized admission period expires. 8 CFR 214.1(c)(4). ineligible for the extension of stay. See See proposed 8 CFR 214.2(f)(7)(v). This If seeking an EOS to engage in any proposed 8 CFR 214.2(f)(7)(iv). timeframe would include the 30-day type of practical training, the alien in F– While the sponsoring school is period of preparation for departure 1 status would also need to have a valid required to verify the availability of allowed after the completion of studies Form I–20, properly endorsed for financial support before issuing the or any authorized practical training. practical training, and be eligible to Form I–20, they may not be well-versed However, if the extension application is receive the specific type of practical in foreign documentation submitted by received during the 30-day period of training requested. Finally, as with all applicants and circumstances may preparation for departure provided in immigration benefit requests, an change between issuance of a Form I– proposed 8 CFR 214.2(f)(5)(iv) following 20 and a request for an extension of stay immigration officer would generally not the completion of studies, the alien in Further, it is incumbent upon DHS to grant an EOS where an alien in F–1 F–1 status may continue studying but determine the veracity of the evidence status failed to maintain his or her may not continue or begin engaging in submitted, and officers must ensure that status. Id. practical training or other employment the student has sufficient funds to study Finally, a student’s failure to timely until the extension request is approved request from the DSO a in the United States without resorting to recommendation for extension of the unauthorized employment. The phrase 122 See 9 FAM 402.5–5(G). program end date, which would result ‘‘sufficient funds to cover expenses’’ is 123 Id. in the DSO recommending an extension referred to in Department of State 124 Federal student loans are only available to of the program end date in SEVIS after regulations concerning issuance of F U.S. citizens and permanent residents.

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and, as applicable, an employment United States. As with other reside permanently in the United States. authorization document is issued. See nonimmigrant categories, they would See proposed 8 CFR 214.2(f)(8)(i)(B). proposed 8 CFR 214.2(f)(7)(v). not be given any period of time to In addition to proposing new The length of the extension granted prepare for departure from the United restrictions for the number of programs could be up to the period of time States after the denial, and there may be an F–1 nonimmigrant can complete at needed to complete the program or significant immigration consequences the same or a lower educational level, requested practical training, not to for failing to depart the country DHS proposes to retain some of the exceed 4 years, unless the alien is a immediately. For example, such aliens current school transfer and change of border commuter, enrolled in language generally would begin to accrue educational level conditions. First, as is training, attending a public high school, unlawful presence the day after the the case currently, aliens would need to or the two-year limits on admission at begin classes at the transfer school or issuance of the denial. DHS believes this paragraph (f)(20) apply in which case program within 5 months of transferring standard provides parity across further restrictions apply, as described out of the current school or within 5 nonimmigrant categories and invites the above. By permitting admission only months of the program completion date ‘‘up to’’ the prescribed period, USCIS public to submit comments on this issue on his or her current Form I–20; and and CBP are afforded discretion as to as well as the proposed EOS application second, if the alien is authorized to the ultimate length of time to grant the process. engage in post-completion OPT, he or applicant, and consider factors such as vi. School Transfers and Changes in she must be able to resume classes program length. Additionally, this Educational Levels within 5 months of changing programs proposal would replace the current or transferring out of the school that provision at 8 CFR 214.2(f)(7)(iv), which As discussed above, a significant recommended OPT or the date the OPT references SEVIS and non-SEVIS concern with the current D/S framework authorization ends, whichever is earlier. schools and is outdated. is that it has enabled ‘‘pay-to-stay’’ fraud See proposed 8 CFR 214.2(f)(8)(i)(A) and F–2 dependents seeking to in which school owners falsely report to (B). accompany the F–1 principal student DHS that a student is maintaining status Another indication of a violation of would need to file applications for an in return for cash payments even though F–1 status is failing to pursue a full EOS or reinstatement, as applicable. See the student is not attending or is course of study at the school that the proposed 8 CFR 214.2(f)(7)(vii). otherwise violating his or her status. In alien is authorized to attend. See Dependent F–2 spouses and children some cases, school owners have proposed 8 CFR 214.2(f)(8)(ii). DHS is seeking to accompany the principal F– operated multiple schools and proposing to retain the current 1 student during the additional period transferred students between these provisions, rendering aliens who do not of admission would need to either be schools to conceal this fraud. For pursue a full course of study ineligible included on the primary applicant’s example, in 2018, a defendant was to change programs or transfer schools, request for extension or properly file sentenced by a federal judge in the and is clarifying that failure to pursue their own EOS applications on the form a full course of study includes, but is Central District of California to 15 designated by USCIS. If the dependent not limited to, a student whose pattern months in prison and ordered to forfeit files a separate Form I–539, he or she of behavior demonstrates a repeated more than $450,000 for running such a would need to pay a separate Form I– inability or unwillingness to complete scheme involving three schools that he his or her course of study, such as 539 filing fee. However, if the 125 dependent files a Form I–539A as part owned. Furthermore, as discussed failing grades, resulted in the student of the primary applicant’s EOS request more thoroughly in Section 4.L.ii above, not carrying a full course of study on a Form I–539, only one fee would be the D/S framework has enabled some unless the student was previously required. aliens to become ‘‘professional authorized for a reduced course load. USCIS would need to receive the students’’ who spend years enrolled in Just as delays caused by unacceptable extension applications before the programs at the same educational level patterns of behavior, academic expiration of the previously authorized (for example, multiple associate probation or suspension would not be period of admission, including the 30- programs) or complete programs at one acceptable reasons for program day period following the completion of educational level and enroll in lower extensions and corresponding EOS of a the course of study, as indicated on the educational levels (such as completing a student’s current program, neither F–2 dependent’s Form I–94. To qualify master’s degree then enrolling in an would they be an acceptable reason for for an EOS, the F–2 dependent would associate program). DHS believes the failing to carry a full course load. Such need to demonstrate the qualifying proposed changes previously discussed aliens would have failed to maintain F relationship with the principal F–1 regarding admission for a fixed time status, are ineligible for a change of student who is maintaining status, also period and limitations on program program and school transfers, and be maintaining his or her own status, changes within and between would be required to file for a and not have engaged in any educational levels will help to address reinstatement of status, if eligible. See unauthorized employment. See these concerns and serve to further proposed 8 CFR 214.2(f)(8)(ii). proposed 8 CFR 214.2(f)(7)(vii). strengthen the integrity of the F Finally, DHS proposes some technical Extensions of stay for F–2 dependents nonimmigrant visa category by better updates. First, the Department would would not be able to exceed the ensuring that aliens are in the United strike outdated provisions in 8 CFR authorized admission period of the States primarily to study, rather than to 214.2(f)(8)(ii) to account for the fact that principal F–1 student. Id. all schools must now be SEVP-certified Under proposed 8 CFR 125 DOJ Press Release, Owner of Schools that and to clarify that the transfer provision 214.2(f)(7)(viii), if USCIS denies the Illegally Allowed Foreign Nationals to Remain in applies only to transfers from a SEVIS request for an extension, and the period U.S. as ‘Students’ Sentenced to 15 Months in school to a SEVIS school. See proposed of admission for the student and his or Federal Prison, (Apr. 19, 2018), available at https:// 8 CFR 214.2(f)(8)(iii). Second, DHS www.justice.gov/usao-cdca/pr/owner-schools- her dependents has expired, then the illegally-allowed-foreign-nationals-remain-us- proposes to update the current process student and his or her dependents students-sentenced-15 (last accessed April 11, by which DSOs notify USCIS of certain would need to immediately depart the 2020). events, such as failure to maintain a full

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course load, to reflect the fact that not working prior to this application for program end date from 60 days to 30 SEVIS is used for this purpose and that post-completion OPT. days. See proposed 8 CFR a paper Form I–20 is no longer used for Where the application for EOS and 214.2(f)(11)(i)(B)(2). Likewise, DHS this purpose. See proposed 8 CFR post-completion OPT are granted, the proposes to strike the requirement in 8 214.2(f)(8)(iv). Third, if the new alien would receive an additional 30- CFR 214.2(f)(11)(i)(B)(2) and (C) which program to which the student changes day period [from the program end date require students file their Form I–765 or transfers will not be completed or EAD end date, as applicable to with USCIS within 30 days and 60 days, within the authorized admission period prepare for departure from or otherwise respectively, of the date that the DSO established in paragraphs (f)(5)(i) or maintain status in the United States enters the recommendation into SEVIS. (f)(20) of this section, then, consistent following the expiration of the status DHS believes that such a timeframe for with the other provisions throughout approved to complete post-completion obtaining the DSO recommendation this proposed rule the F–1 student OPT. See proposed 8 CFR 214.2(f)(5)(iv). seems unnecessary given that students would need to apply for EOS in the 2. Proposed Changes to Form Name and would always be required to first get manner and on the form designated by Filing Timeframes their DSO’s recommendation before USCIS, with the required fee and in filing their Form I–765 requesting OPT accordance with form instructions, DHS proposes to remove references in employment authorization and a together with a valid, properly endorsed paragraphs 8 CFR 214.2(f)(11)(i)(A) and regulatory timeframe for submitting the Form I–20 indicating the new program (C) to the Form I–765 currently used by I–765 is already in place. Once they get end date, and would need to provide nonimmigrants to request employment their DSO’s recommendation, they biometrics as authorized by 8 CFR authorization and replace them with would then be eligible to file their Form 103.16. See proposed 8 CFR language used throughout the proposed I–765 within 30 days after their program 214.2(f)(8)(v). rule: ‘‘by filing the form designated by end date or up to 120 days before the USCIS with the required fee and in expiration of their current EAD. vii. OPT Employment Authorization accordance with form instructions.’’ The While USCIS anticipates timely 1. Pending Employment Authorization Department believes that such language processing these cases, there would be Requests gives USCIS the flexibility to change the an increase in volume of EOS form number or name without having to applications following the effective date Currently, 8 CFR 214.2(f)(10)(ii)(D) engage in a full rulemaking. In all cases, of the final rule as those nonimmigrants provides for ‘‘duration of status’’ to DHS would provide applicants with who are required to file EOS begin to do include periods students spend in the advanced notice of which form to use so, and the Department believes that United States on post-completion OPT. and the accompanying instructions. allowing applicants more time to file an As D/S admissions would be replaced Additionally, DHS proposes technical EOS application would stagger the with admission for a fixed time period changes in 8 CFR 214.2(f)(11), such as applications, helping to maintain a throughout this rulemaking, DHS is replacing the term ‘student’ with ‘alien consistent volume. This, in turn, could proposing to clarify that an alien in F– in F–1 status’ and other edits enable USCIS to more efficiently 1 status recommended for post- reorganizing and rewording some manage this OPT-related workload, so completion OPT must apply for paragraphs to improve readability. the agency may be better equipped to employment authorization and an EOS, The other change that DHS proposes adjudicate these requests in a timely and may not engage in post-completion regarding filing applications for OPT- manner and diminish the likelihood of OPT unless such employment based employment authorization is to gaps in employment. Additionally, DHS authorization is granted.126 See proposed provide more time for aliens to submit believes that shortening the filing 8 CFR 214.2(f)(10)(ii)(D). their applications. Currently, the window after the program end date Like several other types of following filing deadlines are in place: would better align with the proposed • employment, a student would need to Pre-completion OPT: Aliens may period to prepare for departure. And, stop working if USCIS does not file the application for employment finally, DHS recommends technical adjudicate the employment authorization up to 90 days before being changes such as replacing ‘‘shall’’ with authorization application before the enrolled for one full academic year, ‘‘will’’ and clarifying edits throughout specific end date for the period of provided that the employment will not proposed 8 CFR 214.2(f)(11) for authorized stay is reached. While DHS begin prior to the completion of the full readability. academic year. 8 CFR recognizes the challenge presented by viii. Temporary Absence From the the transition from a D/S regime to a 214.2(f)(11)(i)(B)(1). • Post-completion OPT: File the United States of F–1 Student Granted fixed time period, the proposition that Employment Authorization employment must cease until the EAD application for employment DHS proposes to strike and reserve 8 grant or renewal is approved is not authorization up to 90 days before CFR 214.2(f)(13), which specifies how unique to this scenario. 8 CFR program end date and no later than 60 an F–1 student who has been granted 274a.13(d) automatically extends EADs days after program end date. 8 CFR employment authorization may apply upon the filing of a renewal request for 214.2(f)(11)(i)(B)(2). • for admission and resume employment, 180 days, after which the alien must STEM OPT: File the application for if readmitted to attend the same school cease employment if the renewal is still employment authorization up to 90 days which granted the employment pending. This policy is thus consistent before the expiration of current EAD authorization, when he or she returns to with the treatment of several other and within 60 days of the DSO’s the U.S. from a temporary absence nonimmigrant categories and DHS does recommendation. 8 CFR abroad. See 8 CFR 214.2(f)(13)(i) . The not believe it would cause significant 214.2(f)(11)(i)(C). DHS proposes to increase the number regulatory provision at 8 CFR disruption to F–1 students as most are of days applicants have to file prior to 214.2(f)(13)(ii) states that an F–1 student the program end date from 90 days to who has an unexpired EAD, issued for 126 The regulations set out the requirement that post-completion practical training, and F–1 nonimmigrants seeking OPT and STEM OPT 120 days and shorten the number of are required to apply for work authorization at 8 days students have to file an application who is otherwise admissible, may return CFR 274a.12(c) and (c)(3). for post-completion OPT after the to the United States to resume

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employment after a period of temporary proposed 8 CFR 214.2(i)(2). Further, to Consistent with DOS guidance and absence. As DHS sets forth admission conform to the statutory intent of the I current USCIS practice, whether content procedures to pursue off campus classification, DHS is proposing to is journalistic information would employment, post-completion training, clarify and codify the DOS and USCIS depend on the nature of the content and STEM OPT in proposed 8 CFR long-standing practice interpreting featured on the new media outlet. For 214.1(a)(4)(i)(D), the reference in 8 CFR ‘‘foreign information media’’ under INA example, a political blogger traveling to 214.2(f)(13) is redundant and could lead 101(a)(15)(I) as ‘‘journalistic the United States to cover an election to confusion. information.’’ This standard is in place could qualify for I status, as election when aliens apply for an I visa abroad coverage would generally be considered ix. Border Commuter Students or seek to change to I nonimmigrant journalistic information. In this DHS proposes to replace status in the United States and aligns example, the applicant would still need ‘‘nonimmigrant student’’ with ‘‘alien with statutory intent, which is to to demonstrate that he or she satisfies with F–1 status’’ consistent with facilitate foreign press and journalism, the other qualifications of an proposed revisions throughout the rather than for entertainment or information media representative, NPRM, and to strike the sentence promotional purposes, such as including that he or she represents an referencing how ‘‘duration of status’’ is performing or appearing on reality organization involved in the regular inapplicable to border commuter television programs. There are other gathering, production, or dissemination students because DHS is proposing to options for those aliens, such as the P of journalistic information that has a eliminate duration of status for all F nonimmigrant classifications.128 home office in another country.131 nonimmigrants. See proposed 8 CFR DOS is the entity that determines Similarly, a professional travel 214.2(f)(18)(iii). whether an alien qualifies for an I visa, blogger traveling to the United States to while USCIS is the entity that obtain and produce materials on F. Requirements for Admission, determines whether an alien who is in national parks in the United States Extension, and Maintenance of Status of the United States in another could also qualify for I classification if I Nonimmigrants nonimmigrant status can change to I all aspects of the definition of an i. Definition of Foreign Media status or whether an I alien who is information media representative are Organization already in the United States and seeks established, including the requirement Changes in technology and in the way to change his or her employer or that the media content generated will be that the public consumes media information medium continues to journalistic information and that he or information have raised novel questions qualify for an I status. USCIS and DOS she represents an organization having as to whether certain individuals fit guidance discuss the distinction an office in a foreign country and that within the statutory and regulatory between journalistic content and is involved in the regular gathering, provisions that are applicable to content that is primarily for production, or dissemination of representatives of foreign information entertainment. DOS considers journalistic information. However, a journalistic information as ‘‘content that media. To address these questions, DHS blogger traveling to the United States to is primarily informational in nature, proposes to define a foreign media report on his or her own activities at a such as the reporting on recent or organization as ‘‘an organization national park may not qualify for I important events, investigative engaged in the regular gathering, status if the applicant does not represent reporting, or producing educational production, or dissemination via print, an organization involved in the regular materials, such as documentaries. It radio, television, internet distribution, gathering, production, or dissemination does not include content that is or other media, of journalistic of journalistic information and the primarily designed to provide information and has a home office in a media content is not primarily entertainment rather than information, foreign country.’’ See proposed 8 CFR journalistic information. Individuals including scripted or contrived who are not professional bloggers, but 214.2(i)(1). This proposal clarifies long- situations, such as most ‘‘reality standing practice that the alien be a maintain a personal blog and will television’’ shows. It also does not produce content on their blog based on representative of a media organization include most personal content, such as with a home office in a foreign country their personal experiences in the United discussions of personal experiences in States, such as providing information by codifying what is considered a the United States or materials aimed at foreign media organization when and reviews of their personal vacation, fan engagement, or works produced for generally would not qualify for I seeking qualification as an I promotional or marketing purposes.’’ 129 nonimmigrant.127 By requiring evidence classification, but may qualify for a B DOS’ definition aligns with current classification, depending on the that shows that the foreign organization USCIS practice where the ‘‘officer that employs or contracts the I circumstances. Likewise, a blogger should consider whether the intended promoting a line of products would not nonimmigrant has a home office in a use is journalistic, informational, or foreign country, and that the office in a qualify for I status. educational, as opposed to These standards facilitate the travel of foreign country continues to operate entertainment. The officer should also representatives of foreign information while the I nonimmigrant is in the consider the foreign distribution of the United States, DHS would help ensure film or video footage in addition to manual/volume-2-part-k-chapter-3 (last visited 4/ that the I nonimmigrant, at the time of other factors, including the timeliness of 13/2020) (stating that ‘‘[i]ncreasingly, because of the application for admission, change of the project relative to the subject growing popularity of documentary-type status, or application for extension of event.’’ 130 biographies and similar nonfiction film stay, is a bona fide representative of productions, the distinction between commercial filmmaking for entertainment and genuine news foreign media organization. See 128 INA section 101(a)(15)(P), 8 U.S.C. gathering is less clear. For example, filmed 1101(a)(15)(P). biographies may be regarded as documentary 127 See generally USCIS Policy Manual, Vol. 2, 129 See DOS guidance for consular officers filmmaking or as news gathering). Part K, Chap. 2. Available at https://www.uscis.gov/ adjudicating I visa applications at 9 FAM 402.11– 131 See 9 FAM 402.11–10, New Media—Blogging policy-manual/volume-2-part-k-chapter-2 (last 3. And Other Electronic Media Platforms, available at visited 6/18/2020); 22 CFR 41.52; 9 FAM 402.11– 130 See USCIS Policy Manual, Vol. 2, Part K, https://fam.state.gov/FAM/09FAM/ 3(a)(1). Chap. 3. Available at https://www.uscis.gov/policy- 09FAM040211.html (last visited Jan. 16, 2020).

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media. These proposed standards codify establishes that he or she is a changes to the filing procedure would and clarify existing U.S. government representative of a qualifying foreign be provided in the form instructions, practice and thus would not media organization that meets the which USCIS would post on its website, significantly alter the current guidance foreign home office requirement, and making it easily accessible to applicants. used by DHS officers adjudicating these describes the remuneration and work to iv. Change in Information Medium or cases or by DOS when determining be performed. In order to maintain the Employer whether an I visa should be issued. home office in another country, a self- Rather, codifying these standards in the employed applicant would need to DHS proposes to retain the regulation would clarify how demonstrate that he or she intends to requirement that aliens in I status may representatives of foreign press, radio, depart the United States within a not change the information medium or film or other journalistic information reasonable time frame consistent with the employer they will be working with media qualify for the I classification. the intended purpose of travel. Like the until they receive permission from DHS does not anticipate that the letter from the employing foreign media USCIS. See proposed 8 CFR 214.2(i)(4). changes proposed in this rule would organization, the attestation from the This is the current requirement and represent a significant departure from alien would help to ensure that the DHS believes it is appropriate to current processing. individual is engaging in qualifying continue ensuring DHS has an activities, not activities primarily opportunity to review the requested ii. Evidence intended for personal fan engagement, changes and ensure the changes would In order to be granted I classification, or promotional or marketing purposes, constitute as qualifying activities under an alien would need to meet his or her which are unrelated to the regular the I program. Aliens would request burden of proof to establish eligibility gathering, production, or dissemination such permission by submitting the form for admission in that nonimmigrant of journalistic information. See designated by USCIS, in accordance category. DHS believes that evidence proposed 8 CFR 214.2(i)(2). with that form’s instructions, and with presented by such individuals to the required fee, including any establish employment as a bona fide iii. Admission Period and EOS biometrics required by 8 CFR 103.16, as representative of foreign press, radio, DHS is proposing an admission appropriate. Aliens currently submit film or other journalistic information period for I nonimmigrants of up to 240 Form I–539, Application to Extend/ media should be provided in a letter days and another period of up to 240 Change Nonimmigrant Status, for this from the employing foreign media days for an extension, based on the purpose. As in other parts of the rule, organization verifying the employment, length of the activity. See proposed 8 the proposed regulation does not the work to be performed, and the CFR 214.2(i)(3) and (5). As I reference specific form names and remuneration involved. This evidence nonimmigrants who file a Form I–539 numbers in the regulatory text to would provide a standard basis for DHS request with USCIS to request a change provide flexibility for the future in the to evaluate whether the applicant in information medium are currently event the form name or number intends to comply with the I category allowed an automatic extension of changes. In all cases, applicants would and only engage in the regular employment authorization with the be provided sufficient notice of the gathering, production or dissemination same employer while a Form I–539 appropriate form on USCIS’ web page via print, radio, television, internet application is pending for a period not and in the form instructions. distribution or other media of to exceed 240 days, 8 CFR v. Proposed Changes to Treatment of I journalistic information and represents, 274a.12(b)(20), DHS believes that it is Nonimmigrants Travelling or Presenting as an employee or under contract, an appropriate to extend such period of a Passport From the Hong Kong Special organization with an office in a foreign time to other I nonimmigrant contexts. Administrative Region (SAR) country. For example, such a letter DHS seeks comments on whether this is would be able to describe the content an appropriate period of time and Earlier this year, DHS published a that the foreign information media whether exceptions for I nonimmigrants final rule (85 FR 27645, May 11, 2020) representative is covering in the United covered by certain international amending the I nonimmigrant provision States, which must be primarily agreements, including Section 11 of the in 8 CFR 214.2(i). The rule amended the journalistic information in nature, such United Nations Headquarters regulations to achieve greater as the reporting on recent or important Agreement, should be added to the final reciprocity in the treatment of certain events, investigative reporting, or rule. foreign nationals admitted to the United producing educational materials, such Aliens applying for an EOS currently States in I nonimmigrant status as bona as documentaries. Foreign media file a Form I–539 with USCIS, with fide representatives of foreign organizations would be able to describe required fee and in accordance with information media who are foreign how the content is primarily designed to form instructions, but DHS is using nationals travelling on a passport issued provide information rather than general terms in the proposed regulatory by the PRC, with the exception of Hong entertainment, such as scripted or text when referencing the EOS Kong Special Administrative Region contrived situations, such as most application. DHS is using general terms, (SAR) and Macau SAR passport holders. ‘‘reality television’’ shows, which do not rather than referencing form names and Under the rule, DHS has begun to admit qualify an individual for admission numbers, in the regulatory text to aliens in I nonimmigrant status or under the I nonimmigrant category.132 provide flexibility for the future—if the otherwise grant I nonimmigrant status to Where an alien is self-employed or form name or number changes, the aliens only for the period necessary to freelancing, the alien must provide an Department would not need to engage in accomplish the authorized purpose of attestation that verifies the employment, rulemaking to make the update. See their stay in the United States, not to proposed 8 CFR 214.2(i)(5). And, as exceed 90 days. The rule also allows 132 For more information about what qualifies as with other applicants who file a Form such visitors to apply for extensions of ‘journalistic information’ see 9 FAM 402.11–3 I–539, under the proposed rule stay. Since the effective date of this Definitions of ‘‘Information Media Representative’’ and ‘‘Journalistic Information’’, available at https:// applicants would be required to submit rulemaking involving I nonimmigrants fam.state.gov/FAM/09FAM/09FAM040211.html biometrics. See proposed 8 CFR from the PRC, the National People’s (last visited Jan. 14, 2020). 214.2(i)(5). Specific guidance and any Congress of China announced in late

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May its intention to unilaterally and nonimmigrants. Under proposed 8 CFR which the alien physician will return at arbitrarily impose national security 214.2(j)(1), J exchange visitors would be the end of additional specialty legislation on Hong Kong.133 able to receive a period of admission not education or training has an exceptional Accordingly, the President, under the to exceed the program end date as stated need for an individual with such authority vested to him by the on the Form DS–2019, up to a period of additional qualification. See 22 CFR Constitution and applicable laws of the 4 years, unless otherwise limited to a 62.27(e). United States, including, among others, shorter period under proposed section 8 • International visitors: The length of section 202 of the United States-Hong CFR 214.2(j)(6). Currently, the time necessary to complete the program, Kong Policy Act of 1992 (22 U.S.C. permissible initial time periods for the not to exceed 1 year. See 22 CFR 5722), has determined that the Special J programs (as opposed to the periods of 62.28(g). Administrative Region of Hong Kong is admission) are as follows, though • Government visitors: The length of no longer sufficiently autonomous to further extensions are possible with time necessary to complete the program, justify differential treatment in relation DOS approval for all categories: not to exceed 18 months. See 22 CFR to the People’s Republic of China under • Professors and research scholars: 62.29(h). relevant U.S. laws, and issued an The length of program, not to exceed 5 • Camp counselors: 4 months. See 22 Executive Order that, among others years. See 22 CFR 62.20(i)(1). CFR 62.30(h)(2). • things, directed agencies to begin the Short-term scholars: The length of • Au pairs: Not more than 1 year. See process of eliminating policy program, not to exceed 6 months. See 22 22 CFR 62.31(c)(1). exemptions that give Hong Kong CFR 62.21(g). • • Summer work travel: Up to 4 differential treatment in relation to PRC. Trainees and interns: General months. See 22 CFR 62.32(c). In light of this Executive Order, DHS is trainees may be granted 18 months; As with the F category, many J proposing to amend its regulations to trainees in the field of agriculture, exchange visitors are admitted to eliminate differential treatment of I hospitality and tourism may be granted participate in programs shorter than 4 aliens who present, or are traveling on, 12 months, and interns may be granted years. Some J exchange visitors, like passports from the Hong Kong SAR, and 12 months. See 22 CFR 62.22(k). • most F nonimmigrants, enter as post- grant these aliens a period of stay College and university students: secondary students. Similar to the F–1 necessary to accomplish the authorized The length of time necessary to Ph.D. student, some J nonimmigrants, purpose of their I status, not to exceed complete the goals and objectives of the like physicians, may need to stay longer 90 days. The rule also proposes to allow training. See 22 CFR 62.23(f)(4). For than a 4-year period to complete their J these I aliens to apply for extensions of undergraduate and pre-doctoral program. However, many categories of J stay, not to exceed 90 days. In addition, training, not to exceed 18 months, and nonimmigrants would be covered by the aliens in I nonimmigrant status for post-doctoral training, not to exceed same 4-year period proposed for F presenting passports issued by the Hong a total of 36 months. 22 CFR 62.23(f)(4). nonimmigrants. As such, it makes sense Kong SAR who are properly Students enrolled in a degree program for DHS to treat these similarly situated maintaining their status on the [FINAL do not have a definite admission period nonimmigrants in a consistent manner RULE EFFECTIVE DATE] with but must comply with duration of by providing them with the same admission for D/S are authorized to participation requirements at 22 CFR proposed, maximum admission period. remain in the United States in I 134 62.23(h). If enrolled in a non-degree See proposed 8 CFR 214.2(j)(1)(ii)(A). nonimmigrant status for a period program, students may be granted up to necessary to complete their activity, not This would help ensure compliance by 24 months. See 62.23(h)(2). providing consistency between the J to exceed [DATE 90 DAYS AFTER • Student intern: Up to 12 months. program and the F program, which have EFFECTIVE DATE OF FINAL RULE]. I See 22 CFR 62.23(h)(3) and (i). programmatic similarities. nonimmigrants who seek to remain in • Teachers: The length of time the United States longer than the necessary to complete the program, not DHS proposes to retain the 30-day automatic extension period provided to exceed 3 years, unless a specific period that J nonimmigrants are would be required to file an extension extension of 1 or 2 years is authorized provided before the report date or start of stay request with USCIS. These by DOS. See 22 CFR 62.24(j). of the approved program listed on the proposed changes are in line with the • Secondary school students: Not DS–2019 and the 30-day period at the current requirements for I more than two academic semesters (or end of the program. As DHS expects nonimmigrants who are traveling on, or quarter equivalency). See 22 CFR these nonimmigrants to use the 30-day have been issued a passport, by the PRC, 62.25(c)(2). period of time after the program ends to which were enacted to achieve greater • Specialists: The length of time prepare for departure, the Department reciprocity between the United States necessary to complete the program, not proposes to revise the language and the PRC. to exceed 1 year. See 22 CFR 62.26(i). currently in 8 CFR 214.2(j)(1)(ii) that • Alien physicians: Limited to 7 reads, ‘‘period of 30 days for the G. Requirements for Admission, years, unless the alien physician has purposes of travel or for the period Extension, and Maintenance of Status of demonstrated to the satisfaction of the designated by the Commissioner. . .,’’ J Exchange Visitors Secretary of State that the country to to instead read ‘‘a period of 30 days at i. Admission Period and Period of Stay the end of the program for the purposes 134 of departure or to otherwise maintain 1. Principal Applicants A student who is in a degree program may be authorized to participate in the Exchange Visitor status.’’ See proposed 8 CFR The proposed revisions to the J Program as long as he or she is either: (i) Studying 214.2(j)(1)(ii)(C). DHS believes that the regulations at 8 CFR closely align with at the post-secondary accredited academic proposed language more accurately institution listed on his or her Form DS–2019 and: the proposed changes for F (A) Pursuing a full course of study as set forth in reflects the purpose of the period at the paragraph (e) of this section, and (B) Maintaining end of the program and accounts for 133 See the President’s Executive Order on Hong satisfactory advancement towards the completion of other ways J exchange visitors may Kong Normalization, July 14, 2020, See https:// the student’s academic program; or (ii) Participating maintain status during this period, such www.whitehouse.gov/presidential-actions/ in an authorized academic training program as presidents-executive-order-hong-kong- permitted in paragraph (f) of this section. 22 CFR as by filing an EOS or change of status normalization/ (last visited July 21, 2020). 62.23(h). application.

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Similar to the limitations proposed in appropriate actions that are within the is also a fast and easy way for sponsors 8 CFR 214.2(f)(20), the factors proposed scope of their respective authorities to and host institutions to demonstrate in section (j)(6) focus on fraud and reduce overstay rates for all classes of their commitment to maintaining a legal national security concerns. The factors nonimmigrant visas,’’ 136 could workforce. DHS identified for limiting initial encourage future compliance by Like the limiting factors for admission admission to a maximum of 2 years are: incentivizing timely departures so that a of F students, any one factor could • Certain countries. Like F country that exceeds the threshold trigger the designation of a maximum 2- nonimmigrants, exchange visitors who might be removed from the list of high year period of stay. And, like F students, were born in or are citizens of countries overstay rates on the DHS Entry/Exit J exchange visitors who depart the listed in the State Sponsor of Terrorism report. The restriction also would United States or for any reason would List. DHS would publish a notice in the permit DHS to have more frequent need to file an EOS application become Federal Register listing the countries scrutiny of individuals from countries subject to all terms and conditions of whose nationals are subject to a 2-year that present more risk, such that the admission, including the 2-year maximum period of stay in J–1 status. agency may sooner ascertain whether an limitation. This would include cases Changes to the list would be made by alien has violated their status. where an exchange visitor is admitted issuance of a new Federal Register • U.S. national interest. DHS for a 4-year period, but in the midst of Notice. As the State Sponsor of proposes to include a factor to limit the their 4-year admission, a new Federal Terrorism List are countries determined maximum period of admission to 2 Register Notice is published, making the by the Secretary of State to have years if it serves the U.S. national exchange visitor subject to the 2-year repeatedly provided support for acts of interest. As in the F program, this admission; even though the alien international terrorism, DHS believes it provision would provide the Secretary generally may remain in the United is appropriate to apply additional of Homeland Security and Secretary of States for the remainder of the 4-year scrutiny to those who were born in State the requisite flexibility to identify period without seeking an extension of these countries or are citizens of these potential risks of fraud and abuse to the stay, if they depart the United States or countries who are temporarily in the United States’ immigration programs for any reason need to file an EOS United States to ensure that these aliens and risks to national security that do not application, then they will be subject to are complying with the terms of their fit precisely within the other named the 2-year maximum period of admission and that they do not pose categories. If the Department determines admission. See proposed 8 CFR risks to the national security of the that certain technical fields pose a 214.2(j)(6)(iii). United States. national security risk, more frequent The ultimate decision as to whether to • Countries with high overstay rates. vetting of the exchange visitors may admit the alien, and the maximum Like F nonimmigrants, exchange visitors serve in the national interest to mitigate period of admission for such alien, would remain with the Secretary of who are citizens of countries with a the threats. If DHS determines that Homeland Security, consistent with the nonimmigrant student and exchange certain circumstances would be in the Secretary’s statutory obligation to visitor total overstay rate greater than 10 U.S. national interest to limit admission administer and enforce the nation’s percent according to the most recent to a 2-year maximum period, then it immigration laws. See, e.g., INA 103(a), DHS Entry/Exit Overstay report.135 The would provide the public advance 235; see also proposed 8 CFR 214.2(j)(6). DHS Entry/Exit Overstay report notice of such circumstance through The first FRN listing the countries compiles overstay rates for different publication of a Federal Register Notice. triggering the 2-year admission period, classifications. It provides overstay rates • E-Verify participation. While this along with other determinations related per country for F, M, and J proposed change would not impose a to this provision,138 would be published nonimmigrants together, rather than a requirement that the program sponsor or separate overstay rate by classification, contemporaneously with the final rule. host institution be enrolled in or be a Subsequent updates would be made as per country. Given the overlap between participant in good standing in E-Verify, the F and J nonimmigrant needed and would provide stakeholders it would encourage those organizations with notice in advance of any change. classifications, utilizing the data for that are not currently enrolled or in both exchange visitors and students to good standing to attain such status 2. Dependents establish overstay rates is useful in that rather than potentially lose future Consistent with the extension of stay it may deter aliens who may attempt to exchange visitors. E-Verify participation eligibility requirements for the J–1 seek admission in one status rather than helps to combat document fraud, found at 8 CFR 214.1(c)(4), DHS the other in order to obtain a lengthier identifies errors in certain Government proposes to codify the policy that period of admission. DHS would records belonging to employees, and extensions for spouses or children who publish a notice in the Federal Register may be used by law enforcement are granted J–2 status based on their listing the countries whose citizens are agencies to aid in the prevention of derivative relationship as a spouse or subject to a 2-year maximum period of identity theft.137 E-Verify participation child of the principal J–1 nonimmigrant stay in J–1 status. Changes to the list may not exceed the period of authorized would be made by issuance of a new 136 See Presidential Memorandum on Combating admission of the principal J–1. The Federal Register Notice. Placing High Nonimmigrant Overstay Rates (April 22, 2019) current regulations state that the initial restrictions on citizens of countries with available at https://www.whitehouse.gov/ presidential-actions/presidential-memorandum- admission of a spouse or child may not high overstay rates, consistent with the combating-high-nonimmigrant-overstay-rates/ (last be for longer than the principal percent described by the Administration visited April 14, 2020). The Presidential exchange visitor.139 That is, the as a ‘high’ overstay rate for the purpose Memorandum identified countries with a total authorized period of initial admission of enabling DHS and DOS to overstay rate greater than 10 percent in the combined B–1 and B–2 nonimmigrant visa category ‘‘immediately begin taking all as appropriate for additional engagement by the privacy/how-does-e-verify-use-my-information (last DOS, which ‘‘should identify conditions visited Apr.14, 2020). 135 The overstay report for 2018 can be found at contributing to high overstay rates among nationals 138 This information is currently available at https://www.dhs.gov/sites/default/files/ of those countries. . .’’ https://ope.ed.gov/dapip/#/home (last visited Jan. publications/19_0417_fy18-entry-and-exit-overstay- 137 E-Verify.gov website, How does E-Verify use 26, 2020). report.pdf, see Table 4, Column 6. my information?, https://www.e-verify.gov/faq/ 139 8 CFR 214.2(j)(1)(ii).

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for J–2 dependents would be subject to do not have to apply to USCIS for in addition to a new application for the same requirements as the J–1 authorization to engage in employment. employment authorization, in the exchange visitor and may not exceed the Upon timely filing of an EOS manner designated by USCIS, with the period of authorized admission of the application, DHS proposes to allow the required fee and in accordance with principal J–1 exchange visitor. See alien to continue engaging in activities form instructions. See proposed 8 CFR proposed 8 CFR 214.2(j)(1)(ii)(B). consistent with the terms and 214.2(j)(1)(v)( ). conditions of the alien’s program, As noted above in the discussion ii. EOS including any employment concerning EOS applications for F The shift from D/S to admission for a authorization, beginning on the day nonimmigrants, DHS considered but fixed time period would mean that J after the admission period expires, for declined to adopt a policy that would nonimmigrants wishing to remain in the up to 240 days. See 8 CFR result in abandonment of the EOS United States beyond their authorized 274a.12(b)(20). Such authorization application upon traveling outside the period of stay would need to file an EOS would be subject to any conditions and United States while the EOS is pending. application with USCIS. Like other limitations of the initial authorization. A J–1 or J–2 alien who travels during the nonimmigrants applying for EOS, they See proposed 8 CFR 214.2(j)(1)(vii). This time the EOS is pending will not be would currently need to file a Form I– policy is consistent with current considered to have abandoned the EOS 539 in accordance with that form’s practice and prevents J–1 exchange application. See proposed 8 CFR instructions, with the required fee, and visitors from being penalized on 214.1(c)(6)(i). including any biometrics or interview as account of USCIS processing times, Finally, DHS proposes minor required by 8 CFR 103.16. See proposed allows the alien to participate in the technical updates. First, DHS proposes 8 CFR 214.2(j)(1)(iv)(A). J–1s seeking a program without interruption, and, as to update outdated terms such as program extension will continue to first applicable, prevents disruption to U.S. ‘‘Commissioner’’ and ‘‘Service’’ in 8 request such an extension through the institutions employing or otherwise CFR 214.2(j)(1)(vi), replacing them with RO, as provided for under current relying on the alien. USCIS. Second, in 8 CFR 214.2(j)(1)(vi) regulations.140 If such a program If the alien’s initial date of admission DHS proposes to strike the reference to extension is recommended by the RO, passes, DHS proposes to consider the duration of status and replace it with the J–1 must apply for an EOS with alien’s Form I–94 unexpired when ‘Extension of J–1 stay and grant of USCIS to remain in the U.S. beyond the combined with a USCIS receipt notice employment authorization for aliens status expiration date on their I–94. indicating receipt of a timely filed EOS who are the beneficiaries of a cap- Dependent J–2 spouses and children application and a valid, properly subject H–1B petition’ which is seeking to accompany the J–1 exchange endorsed Form DS–2019 indicating his consistent to the terminology proposed visitor during the additional period of or her program’s end date. An EOS in 8 CFR 214.2(f)(5)(vi). Third, because admission would either need to be application would be considered timely proposed 8 CFR 214.2(j)(1)(vii) is being included on the primary applicant’s filed if the receipt notice for the revised to describe J nonimmigrants request for extension or file their own application of EOS is on or before the with pending extension of stay EOS applications on the form date the authorized stay expires. The applications and their employment designated by USCIS, and may be extension of an alien’s authorized authorization, it is necessary to revise required to provide biometrics employment would terminate on the and reassign current 8 CFR consistent with 8 CFR 103.16. See date of denial of an individual’s 214.2(j)(1)(vii) and (viii) to proposed 8 proposed 8 CFR 214.2(j)(1)(iv)(D). As application for an EOS. See proposed 8 CFR 214.2(j)(1)(viii) and (ix) with other nonimmigrant categories, the CFR 214.2(j)(1)(iv)(B). DHS believes that respectively. Fourth, DHS proposes period of stay for J–2 dependents cannot such provision would clarify how conforming amendments to the exceed the period of stay authorized for exchange visitors would demonstrate provision which requires exchange the principal J–1 exchange visitor. And, authorization to continue engaging in visitors to report legal changes to their as with other nonimmigrant categories, employment authorized pursuant to name and any changes in their address, if an EOS is denied, the aliens would their program and better facilitate replacing the term ‘Service’ with need to immediately depart the United employer compliance with I–9 ‘USCIS’ and clarifying the number of States once their authorized period of employment verification requirements. days during which changes need to be stay expires. Unlike J–1 exchange visitors, J–2 reported by revising from 10 days to 10 spouses and minor children may only iii. Employment and Pending EOS and ‘calendar’ days for exchange visitors to engage in employment with report changes in their names and Employment Authorization authorization by USCIS. See 8 CFR Applications addresses and from 21 days to 10 214.2(j)(1)(v) as also provided for in business days for the RO to update Like I nonimmigrants, J–1 exchange proposed 8 CFR 214.2(j)(1)(vii)(C). DHS SEVIS, in order to conform with existing visitors are authorized to engage in also proposes to retain the current DOS regulations.142 See proposed 8 CFR 141 employment incident to status. This restriction on the J–2 dependent’s 214.2(j)(1)(ix). This change is proposed means that they are authorized to work income described in 8 CFR because the differing number of days for per the terms of their program, and they 214.2(j)(1)(v)(A); the J–2 nonimmigrant’s ROs to report changes between DHS and income may be used to support the DOS regulations may cause confusion 140 See 22 CFR 62.43, describing J–1 program family’s customary recreational and given that the time frames are both extension procedures. cultural activities and related travel, regarding the requirement for ROs to 141 See 8 U.S.C. 1101(a)(15)(J) (including teaching, among other things, but not to support instructing, lecturing, and consulting among the permissible activities of nonimmigrants in the J the J–1. See proposed 8 CFR 142 22 CFR 62.10(d)(3) clarifies that the J–1 category for participation in programs authorized by 214.2(j)(1)(v)( ). exchange visitor must inform the RO or ARO of the Department of State); 8 CFR 214.2(j)(1)(v) If a J–2 dependent nonimmigrant’s address changes within ‘‘10 calendar days’’ of the (discussing employment authorization for J requested period of employment change, and 22 CFR 62.10(d)(4) states that the exchange visitors); 22 CFR 62.16 (stating that an reporting window for ROs or AROs to update SEVIS exchange visitor program participant may receive authorization exceeds his or her current is ‘‘10 business days’’ from receiving the J–1 compensation ‘‘when employment activities are admission period, the J–2 dependent exchange visitor’s address change notification from part of the exchange visitor’s program’’). would need to file an EOS application, the J–1 exchange visitor.

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update changes in SEVIS, and this abandoned.144 See proposed 8 CFR language to be consistent with proposed change provides for a common 248.1(g). Note, however, if there is an cap-gap provisions at 8 CFR timeframe. In that same provision, DHS underlying petition filed along with the 214.2(f)(5)(vi). proposes to strike the sentence which change of status, that petition may still Fourth, as discussed above, in references non-SEVIS programs, as be approved, but the alien generally proposed 8 CFR 274a.12(b)(10), DHS SEVIS enrollment is now a mandatory would have to obtain the necessary visa proposes to cross-reference proposed requirement. Id. Finally, DHS proposes at a U.S. Embassy or Consulate abroad language in 8 CFR 214.2(i) for I changes to the regulatory provisions to before applying for admission to the nonimmigrants, which clarifies that refer to J nonimmigrants as ‘‘exchange United States in the new nonimmigrant limitations currently in the provision visitors,’’ to promote consistency with classification. (an alien in this status may be employed DOS regulations. Additionally, DHS proposes minor only for the sponsoring foreign news technical edits: Replacing the words ‘‘A agency or bureau) allow for freelance H. Change of Status district director’’ in newly re-designated and self-employment situations where DHS is proposing to add two paragraph (g) with ‘‘USCIS’’; replacing the I nonimmigrant may not have a provisions to 8 CFR part 248, which ‘‘shall’’ in newly re-designated ‘‘sponsoring’’ foreign news agency or governs changes of status. First, DHS is paragraph (g) with ‘‘will’’; and replacing bureau, and instead would need to proposing to clarify that aliens who all instances of ‘‘shall’’ with ‘‘will’’ in show, among other requirements were granted a change to F or J status newly re-designated paragraph (h). indicated in proposed 8 CFR 214.2(i), before the effective date of the final rule, I. Classes of Aliens Authorized To that they are working for a qualifying and are applying for admission as an F foreign media organization. or J after the final rule’s effective date Accept Employment may be admitted up to the program end DHS is proposing the following V. Statutory and Regulatory date as noted on the Form I–20 or DS– updates to regulations pertaining to Requirements 2019 that accompanied the change of employment authorization: First, as DHS developed this proposed rule status application that was approved discussed above, DHS proposes to after considering numerous statutes and prior to the alien’s departure, not to change 8 CFR 274a.12(b)(6)(i) to executive orders related to rulemaking. exceed 4 years, unless they are subject conform with proposed revisions in 8 The below sections summarize our to a 2-year admission proposed in 8 CFR CFR 214.2(f)(9)(i), which as discussed analyses based on a number of these 214.2(f)(20) or (j)(6), plus a period of 30 above, would terminate on-campus statutes or executive orders. days following their program end date, employment as of the alien’s fixed date to prepare for departure or to otherwise of admission as noted on his or her A. Executive Orders 12866, 13563, and seek to obtain lawful authorization to Form I–94. If the alien has timely 13771: Regulatory Review remain in the United States. See applied for an extension of stay, Executive Orders 12866 (‘‘Regulatory proposed 8 CFR 248.1(e). That is, CBP however, pursuant to proposed 8 CFR Planning and Review’’) and 13563 may admit these aliens into the United 214.2(f)(5)(vii), the current on-campus (‘‘Improving Regulation and Regulatory States up to the program end date, on and severe economic hardship Review’’) direct agencies to assess the the Form I–20 or DS–2019 that employment authorization of such an costs and benefits of available regulatory accompanied the approved change of alien may be automatically extended for alternatives and, if regulation is status prior to the alien’s departure, plus up to 180 days, or until adjudicated by necessary, to select regulatory an additional 30 days, thus ensuring USCIS, whichever is earlier, as approaches that maximize net benefits that they do not get more time than described in that section. See proposed (including potential economic, allocated by their program end date, 8 CFR 274a.12(b)(6)(i). In cases where environmental, public health, and safety since these Fs and Js would have employment is authorized pursuant to effects; distributive impacts; and received an admission period for D/S on severe economic hardship resulting equity). Executive Order 13563 the I–94 that accompanied the change of from emergent circumstances under 8 emphasizes the importance of status approval. CFR 214.2(f)(5)(v), the validity period of quantifying both costs and benefits, Second, DHS is proposing to codify the employment authorization is reducing costs, harmonizing rules and long-standing policy that, when an alien provided by notice in the Federal promoting flexibility. Executive Order timely files an application to change to Register and indicated by a Certificate 13771 (‘‘Reducing Regulation and another nonimmigrant status, including of Eligibility for Nonimmigrant (F–1/M– Controlling Regulatory Costs’’) directs F or J status, but departs the United 1) Students, Form I–20 or successor agencies to reduce regulation and States while the application is pending, form, endorsed by the Designated control regulatory costs and provides USCIS will consider the application School Official recommending such an that ‘‘for every one new regulation abandoned.143 Under INA 248, DHS extension. See proposed 8 CFR issued, at least two prior regulations be may authorize a change of status to a 274a.12(b)(6)(i). identified for elimination, and that the nonimmigrant who, among other things, Second, as discussed above, DHS cost of planned regulations be prudently continues to maintain his or her status. proposes to clarify that CPT terminates managed and controlled through a Thus, pursuant to a policy that has been on the alien’s fixed date of admission as budgeting process.’’ in place for decades, the change of noted on their Form I–94. An F–1 alien This rule has been designated a status application of an alien who whose fixed date of admission noted on ‘‘significant regulatory action’’ that is travels outside of the United States their Form I–94 has expired may not economically significant, under section during the pendency of his or her engage in CPT until USCIS approves an 3(f)(1) of Executive Order 12866. request for a change of status is deemed alien’s EOS request. See proposed 8 CFR Accordingly, the rule has been reviewed 274a.12(b)(6)(iii). by the Office of Management and 143 See Letter, Bednarz, Chief, NIV Branch, Third, as discussed above, DHS Budget. Adjudications CO 238–C (Oct. 29, 1993), reprinted proposes to strike the reference to D/S in 70 No. 46 Interpreter Releases 1604, 1626 (Dec. 1. Summary 6, 1993); INS Memorandum, HQ 70/6.2.9, Travel in 8 CFR 274a.12(b)(6)(v) and update the After Filing a Request for a Change of Currently, aliens in the F (academic Nonimmigrant Status, (June 18, 2001). 144 Id. student), J (exchange visitor), and I

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(representatives of foreign information replace duration of status (D/S) with an 2020. Therefore, the analysis period media) categories are admitted to the admission for a fixed time period. goes from 2020 through 2029. This United States under the duration of Admitting individuals in the F, J, and I analysis estimates the annualized value status framework. However, this categories for a fixed period of time of future costs using two discount rates: framework poses a challenge to the would require all F, J, and I aliens who 3 percent and 7 percent. In Circular A– Department’s ability to efficiently wish to remain in the United States 4, OMB recommends that a 3 percent monitor and oversee these beyond their specific authorized discount rate be used when a regulation nonimmigrants, as the duration of status admission period to apply for affects private consumption, and a 7 framework does not require immigration authorization to extend their stay percent discount rate be used in officers to assess whether these directly with USCIS or CBP. This evaluating a regulation that will mainly nonimmigrants are complying with the change would impose incremental costs displace or alter the use of capital in the terms and conditions of their stay, or on F, J, and I aliens, but would in turn private sector. The discount rate whether they present a national security protect the integrity of the F, J and I concern, unless some triggering event programs by having immigration officers accounts for how costs that occur sooner (such as an encounter in an enforcement evaluate and assess the appropriate are more valuable. As shown in Table 1, setting, or a request for a benefit from length of stay for these nonimmigrants. the NPRM would have an annualized USCIS) leads to a review of the The period of analysis for the rule cost ranging from $229.9 million to nonimmigrant’s compliance. To address covers 10 years and assumes the $237.8 million (with 3 and 7 percent these vulnerabilities, DHS proposes to proposed rule would go into effect in discount rates, respectively).

TABLE 1—OMB A–4 ACCOUNTING STATEMENT (2018$)

7 Percent 3 Percent Source citation Category discount rate discount rate (RIA, preamble, etc.)

BENEFITS: Annualized Monetized $millions/year ...... N/A ...... N/A ...... N/A. Annualized Quantified ...... N/A ...... N/A ...... N/A.

Qualitative ...... • Would enhance DHS’s ability to enforce the unlawful Preamble, RIA Section presence provisions of the INA at conclusion of their fixed VI.A.4. period of admission. • Would deter F, J, and I nonimmigrants from engaging in fraud and abuse and strengthen the integrity of these nonimmigrant classifications. • Would provide DHS with additional information to promptly detect national security concerns. • Would increase DHS’ ability to detect those nonimmigrants who are not complying with the terms and conditions of their status. • Would ensure that immigration officers, who are U.S. Government officials, are responsible for reviewing and deciding each F, J or I nonimmigrant’s extension of stay request.

COSTS: Annualized Monetized $millions/year ...... $237.8 ...... $229.9 ...... RIA Section VI.A.4. Annualized quantified ...... N/A ...... N/A ...... N/A.

Qualitative ...... • Burden associated with government requests for addi- RIA Section V.A.4. tional information from or in-person interviews with nonimmigrants. • Potential reduction in enrollment of nonimmigrant students and exchange visitors. • CBP and USCIS costs for proposed rule familiarization and training and additional steps at ports of entry to assess fixed period of time for admission. • Costs associated with EOS requests from F–1 nonimmigrants attending schools that are not enrolled in E- Verify. • Potential burden to schools/program sponsors and DHS to update batch processing systems that facilitate exchange of data between DSOs/ROs and SEVIS. • Potential costs to F–1 students and schools from limitations on changes in education levels. • Potential burden on F–1 English language training (ESL) program students who could no longer pursue an ESL course of study beyond 24 months.

TRANSFERS: Annualized Monetized $millions/year ...... N/A. N/A. Annualized quantified ...... N/A. N/A.

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TABLE 1—OMB A–4 ACCOUNTING STATEMENT (2018$)—Continued

7 Percent 3 Percent Source citation Category discount rate discount rate (RIA, preamble, etc.)

Qualitative ...... Potential reduction in fees collected by SEVP and DOS to RIA V.A.4. cover the cost of the programs due to a potential reduction in international enrollment.

Category Effects Source Citation (RIA, preamble, etc.)

State, Local, and/or Tribal Government ...... Some public schools would incur incremental costs to RIA V.A.4. comply with the proposed rule and a potential decline in international enrollment. Small business ...... Some small businesses would incur incremental costs to Initial Regulatory Flexibility comply with the proposed rule. Analysis. Wages ...... None. N/A. Growth ...... None. N/A.

2. Background and Purpose of the and periodically vets their applications proposed rule, they would generally Proposed Rule for extension of stay and, in doing so, begin to accrue unlawful presence Unlike aliens in most nonimmigrant confirm they are engaged only in following the expiration of their categories who are admitted until a activities consistent with their student authorized period of admission, as specific departure date, F, J, and I or exchange visitor status. Under the noted on the Form I–94, and could nonimmigrants are admitted into the proposed changes, DHS would more potentially become inadmissible based United States for a period of time frequently collect biometrics and other on that accrual of unlawful presence necessary to engage in activities information, enhancing the under section 212(a)(9)(B) and (C), 8 authorized under their respective [visa] Government’s oversight and monitoring U.S.C. 1182(a)(9)(B) and (C), upon classifications. This period of time is of these aliens. departing the United States. Those referred to as ‘‘duration of status’’ (D/S) To address these concerns, the grounds of inadmissibility have and, under the D/S framework, proposed rule would replace the D/S important and far-reaching implications nonimmigrants do not receive a fixed framework for F, J, and I nonimmigrants on an alien’s future eligibility for a period of admission. Since the with a framework that authorizes an nonimmigrant visa, admission to the introduction of D/S, the number of F, J, admission period with a specific date United States, an immigrant visa, or and I nonimmigrants admitted into the upon which an authorized stay ends. adjustment of status to that of a lawful United States has significantly Nonimmigrants who would like to stay permanent resident, and therefore may increased. Admission for D/S, in in the United States beyond their fixed deter F, J, and I nonimmigrants from general, does not give immigration date of admission would need to apply failing to maintain status or engaging in officers enough opportunities to directly directly with DHS for an extension of fraud and abuse and strengthen the verify that aliens granted such stay. As the admission for a fixed time integrity of these nonimmigrant. nonimmigrant status are engaging only period of authorized stay is already in classifications. place for most other nonimmigrant in those activities authorized by their 3. Affected Population respective classifications while they are categories, this change brings F, J and I in the United States. In turn, this has nonimmigrants in line with most other The proposed rule would primarily undermined DHS’s ability to effectively classifications. Providing F, J and I affect F, J, and I nonimmigrants and enforce the statutory inadmissibility nonimmigrants a fixed time period of their dependents by requiring some grounds related to unlawful presence authorized stay would require them to nonimmigrants in these categories to file and has created incentives for fraud and apply to extend their stay, change their an EOS application to extend their stay abuse. nonimmigrant status, or otherwise seek beyond their fixed period of admission. Additionally, the D/S framework to obtain authorization to remain in the F nonimmigrants are individuals creates opportunities for foreign United States (e.g., by filing an enrolled as bona fide students at SEVP- adversaries to exploit these programs application for adjustment of status) certified schools, J nonimmigrants are and undermine U.S. national security, prior to the end of this specific individuals participating in work and in part due to the reduced opportunities admission period similar to most other study-based exchange visitor programs, for direct vetting of foreign academic nonimmigrants. and I nonimmigrants are foreign students by immigration officers. An The proposed rule would ensure an information media representatives. In open education environment in the effective mechanism for the Department the sections below, DHS describes the United States offers enormous benefits, to periodically and directly assess data and methods used to (1) estimate but it also places research universities whether these nonimmigrants are the annual population size for each and the nation at risk for economic, complying with the conditions of their analyzed visa classification, (2) academic, or military espionage by classifications and U.S. immigration characterize these annual populations foreign students and exchange visitors. laws, as well as to obtain timely and with respect to the need to file an EOS DHS believes that replacing admissions accurate information about the activities request, and (3) develop projections for for D/S for F–1 students and J–1 they have engaged in and plan to engage the annual number of EOS requests for exchange visitors with admission for a in during their temporary stay in the the evaluation period from 2020 to fixed time period would help mitigate United States. In addition, as F, J, and 2029. These analytical steps have been these national security risks, by I nonimmigrants would be admitted for implemented using the R Project for ensuring an immigration official directly a fixed period of admission under the Statistical Computing, an open-source

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analytical software platform.145 The from SEVIS and ADIS for fiscal year remove outliers in the data by removing proposed rule’s docket provides the (FY) 2016, FY 2017, and FY 2018 to data entries with an end date beyond SQL code used to query SEVIS and estimate the potentially affected 2050, (2) identify unique records by ADIS and the R code used to implement population. For each year of data, DHS removing duplicate entries, and (3) the logic for this analysis. estimated the total number of retain a single entry for nonimmigrants Estimating the Affected Population nonimmigrants in each category and the with multiple records by keeping either total number of individuals who would the entry linked to a currently active To identify potentially affected have to file an EOS in that year if the entry, or if there were no active entries, nonimmigrants, DHS used data from rule were in effect. Next, DHS used an keeping the entry with the latest end several agencies. Data for F and J average of these 3 years as a best date. In total, DHS reduced the number nonimmigrants were extracted from the estimate of the affected population. Student and Exchange Visitor of entries by approximately 240,000 Information System (SEVIS), including To estimate the total population of records for each fiscal year of data for data on student participation in OPT, nonimmigrants in each year of the the F nonimmigrants and approximately and J exchange visitor program analysis, DHS took steps to remove 4,000 records for each fiscal year of data sponsors. The Student and Exchange incomplete and incorrect data entries for the J nonimmigrants. This data Visitor Program (SEVP) oversees schools from the SEVIS and ADIS data. For F reduction has been largely driven by certified to enroll F and M and J nonimmigrants, DHS first elimination of multiple entries nonimmigrant students and their eliminated records that were missing associated with a unique SEVIS dependents. The Department of State data critical to the analysis such as data identifier, rather than by elimination of (DOS) manages Exchange Visitor entries without start and end dates for incomplete entries.150 the individual’s current program or Programs for nonimmigrant exchange Table 2 shows the estimated total entries that had a program start date that visitors in the J classification, and their number of F, J, and I nonimmigrants for dependents. Both SEVP and DOS use occurred after the program end date as this indicates that the start and end each fiscal year from 2016 to 2018, as SEVIS to track and monitor schools; well as the 3-year average. The F exchange visitor programs; and F, M, dates were entered improperly. In each estimates include F–1 and F–2 and J nonimmigrants while they are fiscal year of data, this resulted in nonimmigrants, J estimates include J–1 temporarily in the United States.146 elimination of approximately 4 percent Data on I nonimmigrants were of unique SEVIS entries for F and J–2 nonimmigrants, and I estimates extracted from the CBP Arrival and nonimmigrants but no appreciable data include both principal I and dependent Departure Information System (ADIS). loss for J nonimmigrants. In order to I nonimmigrants as there are no ADIS consolidates entry, exit, and only select individuals who were multiple categories of I visas. Over the admission status information from DHS enrolled during the year of analysis, 3-year period, there were approximately components, DOS, and the Canada DHS selected entries that had a program 1.7 million F nonimmigrants, 607,000 J Border Services Agency. ADIS contains end date that occurred on or after the nonimmigrants, and 35,000 I biographic information, biometric beginning of the year of analysis,148 and nonimmigrants active per year. Overall, indicators, and encounter data.147 had a program start date that occurred approximately 2.3 million persons DHS used nonimmigrant student and on or before the end of the year of participated annually in the F, J, and I exchange visitor program sponsor data analysis.149 DHS also took steps to (1) nonimmigrant programs combined.

TABLE 2—TOTAL NUMBER OF ACTIVE NONIMMIGRANTS BY CATEGORY AND FISCAL YEAR

Nonimmigrant category FY 2016 FY 2017 FY 2018 Average

F ...... 1,733,416 1,708,012 1,674,818 1,705,415 J ...... 590,992 627,752 603,292 607,345 I ...... 36,675 36,709 32,771 35,385

Total ...... 2,361,083 2,372,473 2,310,881 2,348,145 Estimates derived from SEVIS and ADIS data.

Each year, only a subset of the total criteria vary across the nonimmigrant nonimmigrants are their dependents. F nonimmigrant F, J, and I population categories. nonimmigrants include, but are not would be affected by the proposed rule limited to, individuals enrolled in Estimating EOS Requests for F provisions. DHS applied the criteria language training, bachelor’s degrees, Nonimmigrants contained within the proposed rule to and those engaged in OPT. estimate the subset of nonimmigrants F–1 nonimmigrants are bona fide This rule proposes a fixed period of that would be required to extend their students who seek to enter the United admission of up to 2 or 4 years for F authorized period of admission in each States temporarily and solely for the nonimmigrants, depending on whether year of the analysis in order to continue purpose of pursuing a full course of a nonimmigrant presents heightened the duration of studies observed in the study at an academic or language concerns related to fraud, abuse, and fiscal year 2016–2018 SEVIS data. These training school certified by SEVP. F–2 national security. The proposed rule

145 https://www.r-project.org/about.html. 148 In 2016, this cutoff is 10/01/2015; in 2017, it 1.01 entries per unique SEVIS identifier for J 146 More information on SEVIS can be found at is 10/01/2016; in 2018 it is 10/01/2017. nonimmigrants. https://www.ice.gov/sevis/overview. 149 In 2016, this cutoff is 9/30/2016; in 2017, it 147 More information on ADIS can be found at is 9/30/2017; in 2018 it is 9/30/2018. https://www.dhs.gov/publication/arrival-and- 150 There are approximately 1.15 entries per departure-information-system. unique SEVIS identifier for F nonimmigrants and

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includes the following criteria that recognized by the Secretary of the State Sponsors of Terrorism list or could result in an EOS request: Education; who are citizens of countries with a • Program Length. The • Extended Period of Admission. The student and exchange visitor total nonimmigrant’s program length exceeds nonimmigrant makes a change to his or overstay rate greater than 10 percent 4 years; 151 her program that affects the program according to the most recent DHS Entry/ • Certain Countries. The end date and requires an extension of Exit Overstay report, not in the last year nonimmigrant was born in or is a citizen stay, such as a change from OPT to a of their program, in a year of their of a country on the State Sponsors of STEM OPT extension or a change in program that was a multiple of two (e.g., Terrorism list, or is a citizen of a educational level; and year 2, 4, 6) and whose program country with a student and exchange • E-Verify Enrollment. The duration is greater than 2 years. visitor total overstay rate greater than 10 nonimmigrant’s school is not enrolled 3. Other Factors of U.S. National percent according to the most recent in E-Verify or is not a participant in Interest. Although the proposed rule DHS Entry/Exit Overstay report; 152 good standing in E-Verify as determined does not explicitly list other factors that • Other Factors of U.S. National by USCIS. may serve the U.S. national interest, the Interest. The nonimmigrant is subject to In this analysis, DHS does not present analysis uses enrollment in the nuclear other factors determined to be in the the number of individuals meeting each physics or nuclear engineering courses U.S. national interest, which may limitation criterion, as some individuals as examples of courses that could pose include but not be limited to may meet multiple criteria. The affected a risk to U.S. national security to circumstances where there may be population estimates reflect the overall estimate the potential impacts of this national security concerns or risks of effect of all of the NPRM’s limitations, proposed requirement. The analysis fraud and abuse. These factors may be rather than the marginal effects of each assumes that nonimmigrants would incorporated into a Federal Register limitation. To estimate EOS requests, require an EOS in the year of analysis Notice (FRN) to limit a student’s period DHS analyzed nonimmigrant data to if they were enrolled in these courses of of stay to a 2-year maximum; identify individuals who would be study, not in the last year of their • Accreditation. The nonimmigrant is subject to the limitation criteria in the program, in a year of their program that enrolled at a post-secondary school that year of analysis using the following was a multiple of two (e.g., year 2, 4, 6), is not accredited by an accrediting body steps: and had a program duration of greater 1. Program Length. This analysis than 2 years. 151 DHS acknowledges that recent estimates of assumes that individuals would require 4. Accreditation. Similarly, the median time to bachelor’s degree completion in the an EOS in the year of analysis if they analysis assumes that nonimmigrants United States published by the Department of Education’s National Center for Education Statistics had a program duration longer than 4 would require an EOS if they were (NCES) is 52 months. See U.S. Department of years, were not in the final year of their enrolled at a post-secondary school not Education, National Center for Education Statistics, program, and were in a year of their accredited by an accrediting body Status and Trends in the Education of Racial and program that was a multiple of four recognized by ED, not in the last year of Ethnic Groups 2018, available at https:// nces.ed.gov/programs/raceindicators/indicator_ (e.g., 4, 8, 12). their program, in a year of their program red.asp. NCES statistics on all postsecondary 2. Certain Countries. The rule that was a multiple of two (e.g., year 2, students in the U.S. also show factors positively proposes to limit the fixed time period 4, 6), and had a program duration of associated with completion of bachelor’s degree in of admission of up to 2 years for F greater than 2 years. under four years include financial dependent status nonimmigrants who were born in or are and age of less than 23 years. The prevalence of 5. Extended Period of Admission. U.S. citizens who are studying part-time in the citizens of countries listed on the State DHS identified nonimmigrants within NCES data indicates that the NCES data is not Sponsors of Terrorism List or who are each fiscal year who needed to change representative of the time to completion for citizens of countries with a student and their authorized period of admission in students studying full time, including foreign students. See U.S. Department of Education, exchange visitor total overstay rate the year of analysis. Individuals National Center for Education Statistics, Fast Facts, greater than 10 percent according to the switching from an OPT program to a available at https://nces.ed.gov/fastfacts/ most recent DHS Entry/Exit Overstay Science, Technology, Engineering, or display.asp?id=569. A longitudinal study of report.153 F nonimmigrants subject to Math (STEM) OPT extension program, students beginning their postsecondary studies in 2011–2012 shows 75% of students completing a full this limit would be eligible for an EOS individuals requesting additional time course-load in their freshman year alone finish of up to 2 years. To estimate the number to complete their program of study, and within 4 years. See U.S. Department of Education, of individuals meeting these criteria and individuals changing from one National Center for Education Statistics, Courses needing an EOS in the year of analysis, educational level to another, among Taken, Credits Earned, and Time to Degree: A First Look at the Postsecondary Transcripts of 2011–12 DHS identified individuals who were others, were included. Individuals Beginning Postsecondary Students, available at born in or are citizens of countries on changing majors, transferring schools, https://nces.ed.gov/pubs2020/2020501.pdf. DHS enrolling in pre-completion OPT, or does not assert that all foreign students will 153 A list of State Sponsors of Terror can be found making other changes to their course of complete their course of study on time and has at https://www.state.gov/state-sponsors-of- analyzed and discussed SEVIS data that forms the terrorism/. The overstay report for 2019 can be study that would not affect their basis of our estimated number of bona fide found at https://www.dhs.gov/sites/default/files/ program end date were not considered extension requests resulting from this proposed publications/20_0513_fy19-entry-and-exit-overstay- to require an EOS in the year of analysis rule. report.pdf, see Table 4, Column 6. The overstay if they did not meet any other limiting 152 A list of State Sponsors of Terrorism can be report for 2018 can be found at https:// found at https://www.state.gov/state-sponsors-of- www.dhs.gov/sites/default/files/publications/19_ criteria that would require them to terrorism/. The overstay report for 2018 can be 0417_fy18-entry-and-exit-overstay-report.pdf, see extend. found at https://www.dhs.gov/sites/default/files/ Table 4, Column 6. The 2017 Overstay Report can 6. E-Verify Enrollment. To estimate publications/19_0417_fy18-entry-and-exit-overstay- be found at https://www.dhs.gov/sites/default/files/ the number of students affected by this report.pdf, see Table 4, Column 6. The DHS 2017 publications/18_1009_S1_Entry-Exit-Overstay_ Entry/Exit Overstay Report can be found at https:// Report.pdf, see Table 4, Column 6. The 2016 proposed provision, DHS needed to www.dhs.gov/sites/default/files/publications/18_ Overstay Report can be found at https:// identify nonimmigrants that were 1009_S1_Entry-Exit-Overstay_Report.pdf, see Table www.dhs.gov/sites/default/files/publications/ enrolled at a post-secondary school not 4, Column 6. The DHS 2016 Entry/Exit Overstay Entry%20and%20Exit%20Overstay%20 enrolled in E-Verify or not a participant Report can be found at https://www.dhs.gov/sites/ Report%2C%20Fiscal%20Year%202016.pdf, see default/files/publications/Entry%20and%20 Table 4, Column 6. The analysis uses 87 countries in good standing in E-Verify, not in the Exit%20Overstay%20Report%2C%20Fiscal%20 with overstay rate greater than 10 percent in at least last year of their program, in a year of Year%202016.pdf, see Table 4, Column 6. one of the analysis years (i.e., 2016, 2017, or 2018). their program that was a multiple of two

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(e.g., year 2, 4, 6), and had a program attending institutions that do not data are in 14% of schools that DHS has duration of greater than 2 years. DHS participate in E-Verify. However, DHS been able to match to E-Verify worked with both nonimmigrant data conjectures that this bias is unlikely to enrollment data.156 and employer data, attempting to match be significant. Approximately 20% of DHS calculated the total number of E-Verify enrollment with students’ the educational services industry expected EOS requests from these schools. However, because the datasets establishments already participate in E- criteria for FY 2016, FY 2017, and FY did not have a common, unique key, Verify program.155 These establishments 2018, and used these yearly estimates to DHS was unable to comprehensively employ 80% this industry’s workers calculate the annual average number of merge the student-based data with the nation-wide. Assuming that the number EOS requests for both F–1 and F–2 employer-based data. Therefore, DHS of F–1 nonimmigrants is proportional to nonimmigrants.157 Table 3 shows the did not quantify the marginal effect of the number of employees in the EOS estimates for F nonimmigrants. the E-Verify enrollment provision.154 As educational services establishments, we DHS estimates that approximately a result, the estimated number of expect the share of F–1 nonimmigrants 249,000 F–1 nonimmigrants would extensions shown in Table 3 does not in schools already enrolled in E-Verify request an EOS per year, while include extensions that would have to be substantial. This observation is approximately 31,000 F–2 been filed by nonimmigrants meeting all further corroborated by the fact that nonimmigrants would be required to other 4-year eligibility requirements, but 61% of F–1 nonimmigrants in SEVIS apply for an EOS per year.

TABLE 3—NUMBER OF F NONIMMIGRANTS REQUIRING AN EOS PER YEAR

Nonimmigrant category FY 2016 FY 2017 FY 2018 Average

F–1 ...... 246,613 236,746 263,692 249,017 F–2 ...... 33,314 29,846 30,067 31,076

Total ...... 279,927 266,592 293,759 280,093 Estimates derived from SEVIS data.

Estimating EOS Requests for J Exchange • Program Length. The • E-Verify Enrollment. The Visitor Participants nonimmigrant’s program length exceeds nonimmigrant’s program sponsor is 4 years; either not enrolled in E-Verify or, if J–1 exchange visitor participants are • Certain Countries. The enrolled, is not a participant in good individuals approved to participate in standing in E-Verify as determined by work and study-based exchange visitor nonimmigrant was born in or is a citizen of a country on the State Sponsors of USCIS. programs, and J–2 nonimmigrants are In this analysis, DHS does not present Terrorism list or is a citizen of a country their dependents. For example, J the number of individuals meeting each with a greater than 10 percent total exchange visitor participants include limitation criterion, as some individuals overstay rate for students and exchange individuals enrolled in alien physician may meet multiple criteria. The affected programs, camp counselors, and au visitors according to the most recent 159 population estimates reflect the overall pairs, among others.158 DHS Entry/Exit Overstay report; effect of all of the NPRM’s limitations, The proposed rule would impose a • Other Factors of U.S. National rather than the marginal effects of each fixed period of admission of up to 2 or Interest. The nonimmigrant is subject to limitation. To estimate EOS requests, 4 years on J nonimmigrants, depending other factors determined to be in the DHS analyzed nonimmigrant data to on limitations on the length of U.S. national interest, which may identify who would be subject to the admission. In order to identify the include but not be limited to limitation criteria in the year of potentially affected J nonimmigrants, circumstances where there may be analysis. DHS took the following steps DHS estimated the number of national security concerns or risks of to identify individuals who would be individuals in FY 2016, FY 2017, and fraud and abuse. These factors may be subject to these criteria in the year of FY 2018 meeting the following incorporated into an FRN to limit a analysis: limitation criteria which would require student’s period of stay to a 2-year 1. Program Length. For J an EOS under the NPRM: maximum; nonimmigrants, DHS used the same

154 See Section VI.A.4 for additional discussion of in SEVIS underestimates the true E-Verify 159 A list of State Sponsors of Terrorism can be the impacts associated with the E-Verify provision. participation rate. found at https://www.state.gov/state-sponsors-of- 155 The nation-wide number of establishments 157 These numbers were developed using data terrorism/. The overstay report for 2019 can be and employment in the educational services from SEVIS. The SEVIS database was queried to found at https://www.dhs.gov/sites/default/files/ _ _ industry (NAICS 61) comes from U.S. Census extract data from FY 2016–2018. DHS used R publications/20 0513 fy19-entry-and-exit-overstay- Bureau 2018 County Business Patterns data. The Statistical Software to develop logic allowing DHS report.pdf, see Table 4, Column 6. The overstay to identify individuals meeting the limitations report for 2018 can be found at https:// current E-Verify enrollment by establishment size _ category in the educational services industry comes specified in the proposed rule. DHS provides the www.dhs.gov/sites/default/files/publications/19 SQL code used to query the SEVIS database and the 0417_fy18-entry-and-exit-overstay-report.pdf, see from DHS USCIS E-Verify data at https://www.e- R code used to develop the logic for this analysis Table 4, Column 6. The 2017 Overstay Report can verify.gov/about-e-verify. on the proposed rule’s docket. be found at https://www.dhs.gov/sites/default/files/ 156 DHS used name- and location-based fuzzy 158 J exchange visitor programs include: publications/18_1009_S1_Entry-Exit-Overstay_ matching procedure to establish approximate links Professors and research scholars; short-term Report.pdf, see Table 4, Column 6. The 2016 between 7,689 active schools in SEVIS and 2,264 scholars; trainees and interns; college and Overstay Report can be found at https:// unique schools in E-Verify enrollment data. Only university students; teachers; secondary school www.dhs.gov/sites/default/files/publications/ 1,100 schools have been able to be linked, and students; specialists; alien physicians; international Entry%20and%20Exit%20Overstay%20 cursory review established that the pool of visitors; government visitors; camp counselors; au Report%2C%20Fiscal%20Year%202016.pdf, see unmatched SEVIS schools does include other pairs; and summer work travel. See INA Table 4, Column 6. The analysis uses 87 countries schools that may be matched manually. As such, 101(a)(15)(j), 8 U.S.C. 1101(a)(15)(j) and 22 CFR with overstay rate greater than 10 percent in at least DHS believes that 14% match rate for active schools 62.20–62.32. one of the analysis years (i.e., 2016, 2017, or 2018).

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approach described for F employed by an employer enrolled in E- enrolling in E-Verify would incur nonimmigrants in the Estimating EOS Verify 160 in a year of their program that additional cost burdens when they Requests for F Nonimmigrants section is a multiple of two (e.g., 2, 4, 6), not enroll in and continue to use the E- above to estimate individuals needing to in the final year of their program, and Verify program. Employers would incur file an EOS in the fourth year of their enrolled in a program lasting longer costs related to enrolling in the program, program; than 2 years would be required to file attending trainings, filling out 2. Certain Countries. For J an EOS. In cases where DHS did not associated forms, designating an E- nonimmigrants, DHS used the same have information about an employer’s E- Verify administrator within the approach described for F Verify enrollment, DHS assumed those company, and using E-Verify to confirm nonimmigrants to estimate individuals employers were not enrolled in E-Verify their newly hired employees are eligible needing to file an EOS due to meeting unless the employer was a governmental to work in the United States.163 2-year limitation criteria for their organization. DHS does not have data on country of citizenship or country of which governmental organizations are DHS calculated the total number of birth; enrolled in E-Verify, but assumes that expected EOS requests from these 3. Other Factors of U.S. National governmental agencies will typically be criteria for FY 2016, FY 2017, and FY Interest. For J nonimmigrants, DHS enrolled in E-Verify. In 2018,161 60 2018, and used these yearly estimates to applied the same approach described for percent of non-governmental programs calculate the annual average number of F nonimmigrants, using participation in were not enrolled in E-Verify, 39 EOS requests for both J–1 and J–2 the field of nuclear physics or nuclear percent were enrolled in E-Verify, and nonimmigrants.164 Table 4 shows the engineering as examples of programs 1 percent had no information on E- EOS estimates for J exchange visitors. 162 that could pose a risk to U.S. national Verify enrollment status. In addition, DHS estimates that approximately security, to estimate individuals because of data limitations, DHS could 12,000 J–1 exchange visitors would needing to file an EOS due to meeting not estimate impacts associated with request an EOS per year, while 2-year limitation criteria for factors that participants not in good standing in E- approximately 8,000 J–2 nonimmigrants serve the U.S. national interest; Verify as determined by USCIS. The would be required to apply for an EOS 4. E-Verify Enrollment. DHS proposed rule may encourage employers per year. determined that any individual not to enroll in E-Verify. Employers

TABLE 4—NUMBER OF J EXCHANGE VISITORS REQUIRING AN EOS PER YEAR

Nonimmigrant category FY 2016 FY 2017 FY 2018 Average

J–1 ...... 10,711 10,992 12,993 11,565 J–2 ...... 7,641 7,872 8,784 8,099

Total ...... 18,352 18,864 21,777 19,664

Estimating EOS Requests for I 2018 staying for greater than 240 the initial admission exceeds 240 days. Nonimmigrants days.165 Any individual with a total in- After a very short departure from the country time of greater than 240 days United States, these same individuals I nonimmigrants are bona fide was included in the analysis, as they could have returned to the United representatives of foreign information would be required to get additional time States, and their cumulative total period media (such as press, radio, film, print) from DHS, either by filing an EOS or of stay for both admissions could have seeking to enter the United States to departing the United States and been longer than 240 days. Therefore, engage in such vocation, as well as the applying for admission with CBP. Table more than 1,200 I nonimmigrants may spouses and children of such aliens. See 5 provides estimates for the number of INA 101(a)(15)(I). request an EOS per year, as this number I nonimmigrants that would apply for does not capture the number of I DHS proposes to give I an EOS per year. Using this nonimmigrants requesting additional nonimmigrants an admission period of methodology, DHS estimates that time, only those with a period of stay approximately 1,200 I nonimmigrants up to 240 days, after which an EOS may longer than 240 days. DHS seeks public would request an EOS each year. be available for those who can meet EOS comment on ways to improve the requirements. In order to estimate the These estimates do not include I estimate of the affected I nonimmigrant number of EOS requests that would nonimmigrants with an initial population. likely be filed by I nonimmigrants, DHS admission period shorter than 240 days calculated the number of individuals in because they departed the United States I status in FY 2016, FY 2017, and FY before their total in-country time during

160 Participation data from E-Verify Program 163 For more information on E-Verify, go to nonimmigrants whose duration of status fell into a System of Records, retrieved February 5, 2020. www.e-verify.gov. given range of time. For this analysis, DHS summed 161 DHS used 2018 data because the percentage 164 These numbers were developed using data the number of individuals staying for greater than difference in E-Verify enrollment for non- from SEVIS. The SEVIS database was queried to or equal to 241 days but less than 366 days and governmental programs between years of analysis is extract data from FY 2016–2018. DHS used R those staying for greater than or equal to 366 days minimal. Any variation between years is due to the Statistical Software to develop logic allowing DHS in a given year to estimate the number of EOS number of programs active during each year. to identify individuals meeting the limitations requests that would be filed by I nonimmigrants. 162 The percentages presented represent the specified in the proposed rule. DHS provides the percentage of exchange visitor programs that are SQL code used to query the SEVIS database and the During 2016–2018, approximately 3 percent of I enrolled in E-Verify. One employer may sponsor R code used to develop the logic for this analysis nonimmigrants had an initial admission period multiple programs. Therefore, this number does not on the proposed rule’s docket. longer than 240 days. reflect the percentage of employers that will be 165 DHS used data from ADIS to derive these affected by this rule. estimates. Data were presented as the number I

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TABLE 5—NUMBER OF I FOREIGN INFORMATION MEDIA REPRESENTATIVES REQUIRING AN EOS PER YEAR

Nonimmigrant category FY 2016 FY 2017 FY 2018 Average

I ...... 1,433 1,215 944 1,197 Estimates derived from SEVIS data.

Transition Period time it takes the alien to complete his request when the rule goes into effect. or her activity, for a period of up to 240 Rather, F and J nonimmigrants would be Proposed 8 CFR 214.1(m)(1) would days. See proposed 8 CFR 214.1(m)(3). required to request an additional period establish a transition period for phasing To align with the proposed transition of admission by filing an EOS if they in admissions for a fixed time period. period, DHS adjusted the annual EOS meet the criteria associated with the Specifically, F and J nonimmigrants estimates for F and J nonimmigrants period of admission limitations present in the United States on the final over the 10-year period of analysis. The discussed above or the transition period rule’s effective date who are in D/S may transition period for the I requirements or alternatively they could remain in the United States in F or J nonimmigrants did not require depart the United States and apply for status, without filing an EOS request adjustments to the EOS estimates over readmission with CBP under the new and would be provided an authorized the 10-year period of analysis as I period of admission up to the program nonimmigrants would not receive a rule. In order to estimate the number of end date reflected on their Form I–20 or period of admission over 240 days EOS requests in each year, DHS DS–2019 that is valid on the Final [going forward]. DHS anticipates that segmented the period of analysis into Rule’s effective date, not to exceed 4 the rule would become effective in 2020 three distinct phases: (1) The early years from the effective date of the Final and estimated the number of EOS transition period, (2) the end of Rule, as long as they do not depart the requests in each year from 2020 through transition period, and (3) the full United States. See proposed 8 CFR 2029 (the 10-year period of analysis). implementation period. Figure 1 214.1(m)(1). I nonimmigrants would be F and J nonimmigrants would not describes the F and J nonimmigrants provided an extension of the length of automatically be required to file an EOS affected in each of these phases.

FIGURE 1—ESTIMATED EOS REQUESTS DURING THE TRANSITION PERIOD FOR F AND J NONIMMIGRANTS

EOS request during the ‘‘Early Transition EOS request during the ‘‘End Transition EOS request during the ‘‘Full Implementation Period’’ Period’’ Period’’ 2020–2023 2024 2025–2029

Aliens extending their program end date: EOS Aliens extending their initial date certain: EOS Aliens requiring an EOS after transition period requests resulting from extended program requests resulting from program end dates ends: The annual, ongoing average number end dates using the annual average number ending after 2024 based on the average of EOS requests expected each year. of individuals in 2016–2018 who seek a pro- number of individuals between 2016–2018 gram end date extension. with greater than 4 years left to accomplish their program. Aliens subject to a 2-year limitation: EOS re- Aliens requiring an EOS outside of transition quests resulting from 2-year limited aliens limitations: EOS requests resulting from ex- using the annual average number of individ- tending the program end date and being uals in 2016–2018 who meet the 2-year limi- subject to a 2-year limitation. tation criteria. These individuals are added in 2022–2023.

In the early transition period, DHS expects only F and I nonimmigrants requesting extensions to continue their assumes that, from 2020–2021, only F would be required to file EOS requests same program or degree. Using FY 2016, and J nonimmigrants extending their in this period as the SEVIS data do not FY 2017, and FY 2018 data, DHS program end date beyond the program have records of J nonimmigrants estimates that approximately 259,000 end date noted on their Form I–20 or extending their end date. EOS requests will be filed annually in DS–2019 would be filing an EOS Beginning in 2022, DHS assumes that the years 2022–2023.167 because no other period of stay individuals subject to a 2-year limitation DHS anticipates that there would not limitation would be triggered within the on the period of admission who were be any nonimmigrants currently in the first 2 years of the transition period. admitted after the effective date of the country in F, J, or I status at the time Using FY 2016, FY 2017, and FY 2018 rule would begin filing EOS requests. that the rule becomes effective who data, DHS estimates that approximately Therefore, in 2022 and 2023, there would receive a fixed period of 203,000 EOS requests would be filed would be two types of EOS requests admission that extends past 2024 annually in 2020 and 2021.166 DHS filed: Those from individuals requesting because the transition period has a 4- an EOS due to a 2-year period of 166 DHS developed these estimates by looking at admission, and those from individuals 167 These numbers were developed using data the data cross-sectionally and estimating how many from SEVIS. The SEVIS database was queried to individuals in each year would meet the necessary extract data from FY 2016–2018. DHS used R criteria for each stage of the transition period. DHS Software to develop logic allowing DHS to identify Statistical Software to develop logic allowing DHS provides the R code used to develop the logic for individuals meeting the limitations specified in the to identify individuals meeting the limitations this analysis on the proposed rule’s docket. These proposed rule. DHS provides the SQL code used to specified in the proposed rule. DHS provides the numbers were developed using data from SEVIS. query the SEVIS database and the R code used to SQL code used to query the SEVIS database and the The SEVIS database was queried to extract data develop the logic for this analysis on the proposed R code used to develop the logic for this analysis from FY 2016–2018. DHS used R Statistical rule’s docket. on the proposed rule’s docket.

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year limitation. DHS assumes that this additional time to finish their program. DHS, either by filing an EOS with provision could lead to a spike in EOS DHS added these additional individuals USCIS or by applying for admission requests in 2024, at the end of the to individuals extending their program, with CBP. transition period. To estimate EOS and those meeting the 2-year limitation DHS estimates that between 2025– requests at the end of the transition in 2024. DHS estimates that 2029 approximately 301,000 EOS period, DHS calculated the average approximately 364,000 nonimmigrants applications would be filed with USCIS number of individuals in FY 2016, FY would file an EOS in 2024. annually. Table 6 provides the 2017, and FY 2018 with more than 4 After the end of the transition period, estimated number of EOS requests per years left to complete their program. DHS assumes that all F, J and I year from each nonimmigrant category This number acts as a proxy for the nonimmigrants would have a fixed date for the full 10-year period of analysis, number of individuals who would of admission. During this time, all showing the fluctuations across the receive a fixed period of admission nonimmigrants needing to file an EOS early transition period, the end of the ending in 2024 when the rule goes into for any reason would need to request an transition period, and the full effect but would still need to request additional period of admission from implementation period. TABLE 6—NUMBER OF EOS REQUESTS BY NONIMMIGRANT CATEGORY AND YEAR

Early transition period End of Full implementation period Nonimmigrant category transition 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029

F–1 ...... 180,787 180,787 218,459 218,459 309,379 249,017 249,017 249,017 249,017 249,017 F–2 ...... 21,118 21,118 25,976 25,976 36,087 31,076 31,076 31,076 31,076 31,076 J–1 ...... 7,838 7,838 10,138 11,565 11,565 11,565 11,565 11,565 J–2 ...... 5,790 5,790 7,259 8,099 8,099 8,099 8,099 8,099 I ...... 1,197 1,197 1,197 1,197 1,197 1,197 1,197 1,197 1,197 1,197

Total ...... 203,103 203,103 259,261 259,261 364,060 300,954 300,954 300,954 300,954 300,954 Estimates derived from SEVIS and ADIS data.

4. Costs and Benefits of the Proposed discussed throughout this section as a result of the rule and, as a result, Rule qualitatively. In accordance with the there would be no incremental costs Costs regulatory analysis guidance articulated associated with rule familiarization and in OMB Circular A–4 and consistent adaptation for I foreign information DHS proposes to admit with DHS’s practices in previous media representatives. nonimmigrants seeking entry under the rulemakings, this regulatory analysis F, J, and I nonimmigrant categories for Based on best professional judgment, focuses on the likely consequences of SEVP estimates that DSOs and ROs the period required to complete their the proposed rule (i.e., costs and academic program, foreign information would require 8 hours to complete rule benefits that accrue to affected entities). familiarization training, 16 hours to media employment, or exchange visitor The analysis covers 10 years (2020 program. For F and J nonimmigrants, create and modify training materials, through 2029) to ensure it captures the period of admission would not and 16 hours to adapt to the proposed major costs and benefits that accrue over exceed 4 years, or 2 years for F and J rule through system wide briefings and time. DHS expresses all quantifiable nonimmigrants meeting certain factors. systemic changes. DHS welcomes public impacts in 2018 dollars and uses 7 For I nonimmigrants, the period of comments on these estimates. To percent and 3 percent discounting admission would not exceed 240 days. estimate these costs, DHS multiplied the following OMB Circular A–4. As these nonimmigrants would have a total time requirement (40 hours) by the fixed time period of admission, this DSO and RO Rule Familiarization and loaded wage rate for DSOs and ROs proposal includes provisions that would Adaptation Costs ($28.93 wage rate * a 1.46 loaded wage require nonimmigrants to apply for an rate factor 168) and by the number of EOS directly with USCIS or apply for The proposed rule would impact DSOs and ROs (55,207; 49,089 DSOs + admission with CBP and receive an DSOs and ROs from SEVP-certified 6,118 ROs 169). DHS estimates that DSO admit until date on their Form I–94 if schools and exchange visitor programs seeking to continue their studies, to that run a SEVP or DOS approved 168 Based on the Bureau of Labor Statistics (BLS) participate in any type of post program by requiring time for rule average hourly wage for SOC 21–1012 (Educational, Guidance, School, and Vocational Counselors), completion training related to their familiarization training, modification of available at: https://www.bls.gov/oes/2018/may/ academic course of study, to continue training materials, and institutional oes211012.htm. The benefits-to-wage multiplier is working in their information medium, awareness and response (during the first calculated by the BLS as (Total Employee or to participate in an exchange visitor year only). I foreign information media Compensation per hour)/(Wages and Salaries per hour) = $36.32/$24.91 = 1.458 (1.46 rounded) based program beyond the initial admission representatives would not incur similar on the average national wage for all occupations period granted at entry. costs from the proposed rule as those (wages represent 68.6 percent of total DHS assessed the costs and benefits of incurred by DSOs and ROs because the compensation). See Economic News Release, the proposed rule relative to the existing burden for filing an EOS request falls on Employer Cost for Employee Compensation (March 2019), U.S. Dept. of Labor, BLS, Table 1. Employer baseline, that is, the current practice of the I nonimmigrant, who, DHS assumes costs per hour worked for employee compensation admitting F, J, and I nonimmigrants for that in the baseline familiarize and costs as a percent of total compensation: D/S, as well as monitoring and themselves with the pertinent visa Civilian workers, by major occupational and overseeing these categories of requirements at the time the visa is industry group (March 19, 2019), available at: https://www.bls.gov/news.release/archives/ecec_ nonimmigrants. As summarized in RIA needed, not at the point in time that 03192019.pdf. Section VI.A.1 Table 1, some impacts of Federal regulations change. DHS 169 The number of DSOs and ROs were pulled the proposed requirements are expects this behavior would not change from SEVIS and are current as of September 2019.

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and RO rule familiarization and maintaining their status, are present in complete the I–539A form.172 USCIS’s adaptation would cost $93.3 million the United States when the rule takes Inadmissibility on Public Charge during the first year once the rule takes effect, and were admitted for D/S would Grounds Rule, published August 14, effect ($28.93 × 1.46 loaded wage rate be authorized to remain in the United 2019, increased burden for the paper factor × 40 hours × 55,207 DSOs and States for a period of time up to the version of the Form I–539 to 2.38 hours ROs). program end date noted on their Form due to the collection of additional Extension of Stay Filing Costs I–20 or DS–2019, plus 30 days, not to information related to public exceed a period of 4 years. I benefits.173 84 FR 157 (Aug. 14, 2019). Under the proposed rule, nonimmigrants who are properly In addition to the labor burden of nonimmigrants who would like to maintaining their status and are present completing the Form I–539, DHS extend their stay beyond their fixed in the United States when the rule takes estimates in the Supporting Statement period of admission would need to effect would have their status, and for Form I–539 that 35 percent of F–1, apply for additional time directly with employment authorization incident to J–1, and I applicants may incur DHS. Under the proposed framework, such status, automatically extended for additional expenses for third party nonimmigrants could choose to file an a period necessary to complete their assistance to prepare responses, legal EOS using the appropriate form from activity, not to exceed 240 days after the services, translators, and document USCIS or apply for admission with CBP rule takes effect. Any F academic search and generation. For those at a POE. DHS assumes nonimmigrants students, J exchange visitors, and I applicants who seek additional with existing international travel plans representatives of foreign information assistance, the average cost for these would prefer to request extensions with media who are present when the rule activities is approximately $490. DHS CBP at a POE rather than incurring the assumes that F–2 and J–2 applicants costs of filing an EOS. Because DHS is takes effect would need to apply for an EOS if they require additional time would not incur additional expenses for unable to estimate how many outside assistance and would instead nonimmigrants would prefer to extend required beyond the maximum specified transition time period. work with the F–1 and J–1 applicants to with CBP, DHS’ best assessment of the complete the I–539A form. cost of the proposed rule to the affected EOS applicants would need to file In addition to completing the Form I– population is based on the assumption Form I–539 (F–1, J–1, and I 539/I–539A, all F, J, and I applicants that each extension will require a Form nonimmigrants) or Form I–539A (F–2, J– would be required submit biometrics. I–539 filing. Actual costs to the affected 2 nonimmigrants, and I dependents), The submission of biometrics requires population could be lower for those depending on the nonimmigrant travel to an application support center nonimmigrants able to extend while category, in order to extend their period (ASC) for the biometric services traveling through a POE.170 of stay. DHS assumes that all F–2 appointment,174 with an average round- During the transition, F and J nonimmigrants, J–2 nonimmigrants, and trip travel time of 2.5 hours.175 The nonimmigrants who are properly I dependents would complete the I– Supporting Statement for Form I–539 539A instead of completing a separate estimates that each would spend 1 hour More information on SEVIS can be found at https:// Form I–539 because the I–539A is less and 10 minutes (1.17 hours) at an ASC www.ice.gov/sevis/overview. burdensome to complete and does not 170 DHS is unable to estimate how many to submit biometrics. Summing the ASC require a separate application fee.171 individuals would seek an extension to their period time and travel time yields 3.67 hours However, I nonimmigrant data of stay while traveling through a POE instead of for each applicant to submit biometrics. filing the I–539 or I–539A form. The analysis thus contained the representatives of foreign assumes that all F, J, and I nonimmigrants requiring information media and their F, J, and I nonimmigrants would pay an EOS would file using the I–539 or I–539A form. dependents, without differentiating fees to USCIS to file the Form I–539 and If DHS made the opposite assumption—that all F, complete biometric processing, as J, and I nonimmigrants requiring an EOS would between the two. As a result, this extend while traveling through a POE—the cost analysis overestimates EOS filing costs described in the Supporting Statement estimates would change in the following ways. for I nonimmigrants by assigning the for Form I–539. F–1, J–1, and I First, F, J, and I nonimmigrants would not pay the primary I nonimmigrant costs to both nonimmigrants would pay a $370 fee I–539 or I–539A filing and biometric processing when submitting the Form I–539 (F–2 costs. However, the process of applying for the representatives of foreign readmission at a POE would require 8 minutes of information media and their and J–2 nonimmigrants would not be time for each F, J, or I nonimmigrant requiring an dependents. required to pay a fee when submitting EOS. The time estimate of 8 minutes is based on the time required for completing a paper I–94 form The most recently approved 172 Time estimates are taken from the Supporting (Supporting Statement A for Form I–94, ‘‘Arrival Paperwork Reduction Act (PRA) and Departure Record’’, OMB Control Number Statement A for Form I–539, ‘‘Application to 1651–0111). The cost to F, J, and I nonimmigrants Information Collection Package Extend/Change Nonimmigrant Status’’, found at: Supporting Statement for Form I–539 at https://www.reginfo.gov/public/do/ for applying for readmission at a POE translates to _ a total undiscounted cost of $5.0 million over the the time of this analysis, which provides PRAViewDocument?ref nbr=201907-1615-012. 173 Instructions for Application to Extend/Change 2020–2029 analysis period using the number of the average applicant burden estimates EOS requests presented in Table 6 and the Nonimmigrant Status, available at https:// _ nonimmigrant wage rates described in Table 7. F, for completing and submitting the form, www.uscis.gov/system/files force/files/form/i- J, and I nonimmigrants would also incur costs to states that F–1, J–1, and I 539instr-pc.pdf (last visited Apr. 14, 2020). travel to a POE. Second, CBP officers would also nonimmigrants require 2.0 hours to 174 DHS expects the majority of biometrics spend 8 minutes of time per F, J, or I nonimmigrant complete a paper version of the Form I– appointments to occur in the United States at an applying for readmission at a POE. Using a loaded ASC. However, in certain instances nonimmigrants wage rate of $87.94 (salary and benefit information 539 (70 percent of applicants) or 1.08 may submit biometrics at an overseas USCIS office was provided by CBP Office of Finance to ICE on hours to complete an electronic version or DOS Embassy or consulate. However, because April 9, 2020) and the number of EOS requests (30 percent of applicants), and F–2 and DHS does not currently have data tracking the presented in Table 6, the cost to CBP officers for J–2 nonimmigrants require 0.5 hours to specific number of biometric appointments that completing readmission at a POE for F, J, and I occur overseas, it uses the cost and travel time nonimmigrants requiring an EOS translates to $32.8 estimates for submitting biometrics at an ASC as an million over the 2020–2029 analysis period. DHS 171 Form I–539 instructions ask applicants to list approximate estimate for all populations submitting anticipates that the CBP labor burden required to all family members in Form I–539A. Therefore, it biometrics in support of an EOS request. processes readmissions at a POE can be is reasonable to assume that the co-applicants (F– 175 See DHS Final Rule, Provisional Unlawful incorporated in existing procedures without 2, J–2 nonimmigrants and I dependents) will use Presence Waivers of Inadmissibility for Certain requiring additional staff. Form I–539A. Immediate Relatives, 78 FR 535 (Jan. 3, 2013).

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the I–539A form).176 All F, J, and I the average round-trip distance to an travel to an ASC with the F–1 and J–1 nonimmigrants who file an EOS would ASC is 50 miles.177 Using the 2020 applicants. be required to pay an $85 fee for General Services Administration (GSA) Table 7 provides the unit cost and biometric processing. Lastly, the EOS rate of $0.58 per mile,178 the travel costs references for the costs for completing filing cost estimates account for travel are $29. DHS assumes that F–2 and J– and submitting the Form I–539/I–539A costs to an ASC to submit biometrics. In 2 applicants would not incur these and biometrics for each nonimmigrant past rulemakings, DHS estimated that travel costs since they would likely category.

TABLE 7—APPLICANT UNIT COSTS FOR FILING AN EXTENSION OF STAY WITH USCIS [2018$]

F–1 F–2 J–1 J–2 I

[a] Average applicant burden for paper applications (in hours) 1 ...... 2.38 0.50 2.38 0.50 2.38 [b] Average applicant burden for electronic applications (in hours) 2 ...... 1.08 0.5 1.08 0.5 1.08 [c] Average biometric processing burden (in hours) 3 ...... 3.67 3.67 3.67 3.67 3.67 [d] Total labor burden for paper applications (in hours) [a] + [c]...... 6.05 4.17 6.05 4.17 6.05 [e] Total labor burden for electronic applications (in hours) [b] + [c] ...... 4.75 4.17 4.75 4.17 4.75 [f] Average hourly wage rate ...... 11 $12.05 11 $12.05 12 $36.47 12 36.47 13 $36.81 [g] Filing fee 4 ...... $370 N/A $370 N/A $370 [h] Biometrics fee 4 ...... $85 $85 $85 $85 $85 [i] Travel costs to ASC to submit biometrics 5 ...... $29 N/A $29 N/A $29 [j] Burden costs for paper applications not requiring outside help 6 ([d] * [f]) + [g] + [h] + [i] ...... $557 $135 $705 $237 $707 [k] Burden costs for electronic applications not requiring outside help 7 ([e] * [f]) + [g] + [h] + [i] ...... $541 $135 $657 $237 $659 [l] Additional expenses for outside help with form 8 ...... $490 N/A $490 N/A $490 [m] Burden costs for paper applications requiring outside help 9 [j] + [l] ...... $1,047 N/A $1,195 N/A $1,197 [n] Burden costs for electronic applications requiring outside help 10 [k] + [l] ...... $1,031 N/A $1,147 N/A $1,149 1 Supporting Statement for Form I–539 states that 70 percent of applicants will file by paper. 2 Supporting Statement for Form I–539 states that 30 percent of applicants will file electronically. 3 1.17 hours at an ASC (Supporting Statement for Form I–539) + 2.5 hours of travel time to an ASC (78 FR 535) = 3.67 hours per applicant. 4 Filing and biometrics fees described in the Supporting Statement for Form I–539. 5 [5] 50 miles (78 FR 535) * $0.58/mile (2020 GSA rate) = $29.00. 6 Supporting Statement for Form I–539 states that 65 percent of applicants will not need outside help for completing the form. DHS assumed that all F–2 and J–2 nonimmigrants would not need outside help. Thus, 45.5 percent of F–1, J–1, and I applicants (70% paper applicants * 65% not requiring outside assistance = 45.5%) and 70 percent of F–2 and J–2 applicants would incur these costs. 7 Based on Supporting Statement for Form I–539 values, 19.5 percent of F–1, J–1, and I applicants (30% electronic applicants * 65% not requiring outside assistance = 19.5%) and 30 percent of F–2 and J–2 applicants would incur these costs. 8 Supporting Statement for Form I–539 states that 35 percent of applicants will need outside help for completing the form. DHS assumed that no F–2 or J–2 nonimmigrants would require outside help. 9 Based on Supporting Statement for Form I–539 values, 24.5 percent of F–1, J–1, and I applicants (70% paper applicants * 35% requiring outside assistance = 24.5%) would incur these costs. 10 Based on Supporting Statement for Form I–539 values, 10.5 percent of F–1, J–1, and I applicants (30% electronic applicants * 35% requiring outside assistance = 10.5%) would incur these costs. 11 The average hourly loaded wage rate for F nonimmigrants is based on the ‘‘prevailing’’ minimum wage of $8.25 (used in the analysis for the recent USCIS 30-Day Application for Employment Authorization Removal proposed rule) and accounting for benefits. $12.05 = $8.25 × 1.46 benefits-to-wage multiplier. DHS used the ‘‘prevailing’’ minimum wage to account for the type of service-based labor that students typically fill. As is reported by the Economic Policy Institute (EPI, 2016; https://www.epi.org/publication/when-it-comes-to-the-minimum-wage-we-cannot-just-leave-it- to-the-states-effective-state-minimum-wages-today-and-projected-for-2020/). Many states have their own minimum wage, and, even within states, there are multiple tiers. See U.S. Department of Labor, Wage and Hour Division, State Minimum Wage Laws, available at https://www.dol.gov/ agencies/whd/minimum-wage/state. Although the minimum wage could be considered a lower-end bound on true earnings, the prevailing minimum wage is fully loaded, at $12.05, which is 13.8 percent higher than the federal minimum wage. 84 FR 174 (Sept. 9, 2019). DHS requests public comment on other sources for the effective minimum wage in the United States. 12 The average hourly loaded wage rate for J nonimmigrants is based on the May 2018 BLS wage rate of $24.98 for ‘‘All Occupations’’ (00– 0000)), found at https://www.bls.gov/oes/2018/may/oes_nat.htm, and accounting for benefits. $36.47 = $24.98 × 1.46 benefits-to-wage multiplier. DHS used the ‘‘All Occupations’’ wage rate for J exchange visitors because of the diverse types of occupations that J exchange visitors can hold. 13 The average hourly loaded wage rate for I nonimmigrants is based on the May 2018 BLS wage rate of $25.21 for ‘‘Media and Communica- tion Workers, All Other’’ (27–3099)), found at https://www.bls.gov/oes/2018/may/oes273099.htm, and accounting for benefits. $36.81 = $25.21 × 1.46 benefits-to-wage multiplier.

176 Effective October 2, 2020, DHS raises the I– Requirements, 85 FR 46788 (August 3, 2020). At the 177 See DHS Final Rule, Provisional Unlawful 539 fee to $400 for paper filing, $390 for online time of this analysis, the fees had not been Presence Waivers of Inadmissibility for Certain filing and lowers the Biometrics fee from $85 to finalized, so the fee of $370 and biometric fee of $85 Immediate Relatives, 78 FR 535 (Jan. 3, 2013). $30. See DHS Final Rule, U.S. Citizenship and was used in the analysis. 178 https://www.gsa.gov/travel/plan-book/ Immigration Services Fee Schedule and Changes to transportation-airfare-rates-pov-rates/privately- Certain Other Immigration Benefit Request owned-vehicle-pov-mileage-reimbursement-rates.

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DHS multiplied the expected number would incur burden costs for paper Table 8 presents undiscounted EOS of EOS requests for F, J, and I applications with outside help, and 10.5 filing costs by nonimmigrant category nonimmigrants (Table 6) by the percent would incur burden costs for and year, along with a breakdown of appropriate applicant unit costs (Table electronic applications with outside costs based on filing type (paper or 7) to estimate EOS filing costs. As help. Burden costs for F–2 and J–2 electronic) and the need for outside help shown in Table 7, DHS assumed that nonimmigrants remain constant because to complete the form. EOS filing costs 45.5 percent of F–1, J–1, and I their labor burden does not vary are lowest during the early transition nonimmigrants would incur burden depending on paper versus electronic period (2020–2023) and highest at the costs for paper applications without filing, and DHS assumes that F–2 and J– end of the transition period (2024) outside help, 19.5 percent would incur 2 nonimmigrants would not pay for because of the variation in the estimated burden costs for electronic applications outside assistance with the I–539A number of EOS requests (Table 6). without outside help, 24.5 percent form. TABLE 8—EOS FILING COSTS BY NONIMMIGRANT CATEGORY AND YEAR [Millions 2018$, undiscounted]

Early transition period End of Full implementation period Number of EOS/cost transition 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029

F–1

F–1 EOS Requests...... 180,787 180,787 218,459 218,459 309,379 249,017 249,017 249,017 249,017 249,017 Paper filing cost, no help 1 ...... $45.8 $45.8 $55.4 $55.4 $78.4 $63.1 $63.1 $63.1 $63.1 $63.1 E-filing cost, no help 2 ...... $19.1 $19.1 $23.1 $23.1 $32.7 $26.3 $26.3 $26.3 $26.3 $26.3 Paper filing cost, with help 3 ...... $46.4 $46.4 $56.0 $56.0 $79.4 $63.9 $63.9 $63.9 $63.9 $63.9 E-filing cost, with help 4 ...... $19.6 $19.6 $23.7 $23.7 $33.5 $27.0 $27.0 $27.0 $27.0 $27.0

F–1 Total...... $130.8 $130.8 $158.1 $158.1 $223.9 $180.2 $180.2 $180.2 $180.2 $180.2

F–2

F–2 EOS Requests...... 21,118 21,118 25,976 25,976 36,087 31,256 31,256 31,256 31,256 31,256 Paper filing cost, no help 5 ...... $2.0 $2.0 $2.5 $2.5 $3.4 $3.0 $3.0 $3.0 $3.0 $3.0 E-filing cost, no help 6 ...... $0.9 $0.9 $1.1 $1.1 $1.5 $1.3 $1.3 $1.3 $1.3 $1.3

F–2 Total...... $2.9 $2.9 $3.5 $3.5 $4.9 $4.2 $4.2 $4.2 $4.2 $4.2

J–1

J–1 EOS Requests...... 0 0 7,838 7,838 10,138 11,565 11,565 11,565 11,565 11,565 Paper filing cost, no help 1 ...... $0.0 $0.0 $2.5 $2.5 $3.3 $3.7 $3.7 $3.7 $3.7 $3.7 E-filing cost, no help 2 ...... $0.0 $0.0 $1.0 $1.0 $1.3 $1.5 $1.5 $1.5 $1.5 $1.5 Paper filing cost, with help 3 ...... $0.0 $0.0 $2.3 $2.3 $3.0 $3.4 $3.4 $3.4 $3.4 $3.4 E-filing cost, with help 4 ...... $0.0 $0.0 $0.9 $0.9 $1.2 $1.4 $1.4 $1.4 $1.4 $1.4

J–1 Total...... $0.0 $0.0 $6.8 $6.8 $8.7 $10.0 $10.0 $10.0 $10.0 $10.0

J–2

J–2 EOS Requests...... 0 0 5,790 5,790 7,259 8,099 8,099 8,099 8,099 8,099 Paper filing cost, no help 5 ...... $0.0 $0.0 $1.0 $1.0 $1.2 $1.3 $1.3 $1.3 $1.3 $1.3 E-filing cost, no help 6 ...... $0.0 $0.0 $0.4 $0.4 $0.5 $0.6 $0.6 $0.6 $0.6 $0.6

J–2 Total...... $0.0 $0.0 $1.4 $1.4 $1.7 $1.9 $1.9 $1.9 $1.9 $1.9

I EOS Requests...... 1,197 1,197 1,197 1,197 1,197 1,197 1,197 1,197 1,197 1,197 Paper filing cost, no help 1 ...... $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 E-filing cost, no help 2 ...... $0.2 $0.2 $0.2 $0.2 $0.2 $0.2 $0.2 $0.2 $0.2 $0.2 Paper filing cost, with help 3 ...... $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 E-filing cost, with help 4 ...... $0.1 $0.1 $0.1 $0.1 $0.1 $0.1 $0.1 $0.1 $0.1 $0.1

I Total...... $1.0 $1.0 $1.0 $1.0 $1.0 $1.0 $1.0 $1.0 $1.0 $1.0

Total, All Visas...... $134.7 $134.7 $170.8 $170.8 $240.3 $197.3 $197.3 $197.3 $197.3 $197.3 * Totals may not sum due to rounding to the nearest 100,000. 1 (EOS request estimate) × (unit cost for paper applicants not requiring outside help) × (0.455). 2 (EOS request estimate) × (unit cost for electronic applicants not requiring outside help) × (0.195). 3 (EOS request estimate) × (unit cost for paper applicants requiring outside help) × (0.245). 4 (EOS request estimate) × (unit cost for electronic applicants requiring outside help) × (0.105). 5 (EOS request estimate) × (unit cost for paper applicants not requiring outside help) × (0.7). 6 (EOS request estimate) × (unit cost for electronic applicants requiring outside help) × (0.3).

The total estimated cost for EOS filing undiscounted,179 or $1.6 billion and $1.3 billion at discount rates of 3 and 7 in 2018 dollars would be $1.8 billion percent, respectively. The annualized 179 The undiscounted total differs slightly from cost of extension of stay filing over the the sum of the years provided in Table 8 because 10-year period would be $187.4 million of rounding in the table values.

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and $192.2 million at discount rates of judgment, SEVP estimates that DSOs/ DHS assumed that, on average, the 3- 3 and 7 percent, respectively. ROs would require 3 hours per EOS hour time estimate accounted for time DSO/RO Costs for Processing Program request for reviewing the program required to update SEVIS entries for F– Extension Requests and Updating SEVIS extension requests by the student (1 2 and J–2 dependents. The per-program hour), updating the SEVIS record and extension DSO/RO costs would be SEVIS is a web-based system that tracking program extension requests (1 $126.72 (3 hours × $28.93 × 1.46 loaded DHS and DOS use to maintain hour), and advising the student or wage rate factor). information regarding: SEVP-certified exchange visitor about the extension schools; F–1 and M–1 students studying Table 9 presents undiscounted DSO/ process and the requirements to file an RO costs for processing program in the United States (and their F–2 and EOS with USCIS (1 hour). M–2 dependents); DOS-designated extension requests and updating SEVIS Exchange Visitor Program sponsors; and To estimate DSO/RO costs for throughout the 2020–2029 study period. J–1 Exchange Visitor Program processing program extension requests Similar to EOS filing costs, DSO/RO participants (and their J–2 dependents). and updating SEVIS, DHS multiplied costs for processing program extension Under the proposed rule, DSOs and ROs the estimated number of EOS requests requests and updating SEVIS are lowest would need to process program for F–1 and J–1 nonimmigrants (Table 6) during the early transition period extension requests, update SEVIS by the expected DSO/RO time (2020–2023) and highest at the end of entries, and provide counseling for any requirement per EOS request (3 hours) the transition period (2024) because of students requesting a program and the DSO/RO loaded wage rate the variation in the estimated number of extension. Based on best professional ($28.93 × 1.46 loaded wage rate factor). EOS requests (Table 6). TABLE 9—DSO/RO COSTS FOR PROCESSING PROGRAM EXTENSION REQUESTS BASED ON EOS REQUESTS AND UPDATING SEVIS, BY YEAR [Millions 2018$, undiscounted]

Early transition period End of Full implementation period transition 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029

Number of EOS Requests1 ...... 180,787 180,787 226,297 226,297 260,582 260,582 260,582 260,582 260,582 260,582 Costs 2 ...... $22.91 $22.91 $28.67 $28.67 $33.02 $33.02 $33.02 $33.02 $33.02 $33.02 1 Sum of EOS request estimates for F–1 students and J–1 exchange visitors. 2 (Number of EOS requests) × (3 hours) × (DSO/RO wage rate of $28.93) × (loaded wage rate factor of 1.46).

The total cost estimate for DSO/RO maintenance. Of the 55 additional Requests for Additional Information or program extension requests processing positions, 23 of the positions would be In-Person Interviews and SEVIS updates would be $308.7 temporary one-year positions to develop For a subset of EOS request cases, 180 million undiscounted, or $268.7 SEVIS and 32 of the positions would be USCIS may request additional million and $226.9 million at discount permanent positions to handle the information or conduct an in-person rates of 3 and 7 percent, respectively. ongoing operation and maintenance and interview if the applicant has raised The annualized cost of EOS filings over the additional call center volume. In FY concerns of a risk to national security or the 10-year period would be $31.5 2021- FY 2029, there would be an public safety, possible criminal activity, million and $32.3 million at discount annual cost of $16 million for the 32 or status violation. These requests rates of 3 and 7 percent, respectively. additional Federal employees to handle would result in costs for both USCIS DHS acknowledges that there may be the ongoing operation and maintenance and the nonimmigrant EOS applicant. additional costs to the government to of SEVIS databases and other DHS IT The additional burden on USCIS would upgrade SEVIS and provide additional systems and to account for the depend on the time required to obtain support services to implement the additional call center volume. and review the additional information proposed rule. DHS anticipates there or conduct the in-person interview. DHS may be costs for SEVIS development, The timeline for completion would anticipates that the additional burden supplemental Federal staff to assist in impact the total SEVIS upgrade cost on applicants, on average, would be the development, increased call center estimate. If DHS lengthens the timeline equivalent to the added expense of volume, and operation and maintenance for implementing the provisions of this seeking third party assistance for of SEVIS databases and other DHS IT rule, DHS may be able to use existing completing the Form I–539, or $490. systems. The costs for the SEVIS resources to complete the necessary Because the percentage of upgrade and support services would upgrades. nonimmigrants that USCIS would ask to depend on the timeline for completion In addition to the changes due to this provide additional information or of the initial upgrade. DHS preliminary proposed rule, DHS is updating SEVIS participate in an in-person interview is estimates show that under a 6-month due to other SEVP programmatic goals. uncertain, this analysis does not timeline for upgrades, the costs in FY The cost estimates of $22.5 million in quantify the costs of such requests on either nonimmigrants or USCIS. 2020 would be $22.5 million. This FY 2020 and $16 million in FY 2021– estimate includes costs for 55 additional FY 2029 include costs that are necessary Potential Reduction in Enrollment Federal employees to handle the SEVIS to implement the provisions of this development, additional call center While the intent of the proposed rule proposed rule but may have been volume, and operation and is to enhance national security, the implemented without this proposed elimination of duration of status has the rule. Therefore, these costs are not 180 The undiscounted total differs slightly from potential to reduce the nonimmigrant the sum of the years provided in Table 9 because accounted for in the total cost of this student enrollment and exchange visitor of rounding in the table values. proposed rule. participation. This regulatory impact

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analysis considers these potential stay for additional time to complete university.186 These factors may impacts for each category of their program who cannot establish that outweigh the perceived impacts from nonimmigrant affected by the proposed the reason for requesting an extension is the proposed admission for a fixed rule. due to compelling academic reasons, a period. documented illness or medical F and J Nonimmigrants Affiliated With Other J Exchange Visitors condition, or circumstances beyond the SEVP-Certified Schools student’s control, or have otherwise For other J exchange visitors, such as The proposed rule may adversely failed to maintain status, the possibility government visitors and alien affect U.S. competitiveness in the of an extension being denied and the physicians, DHS does not believe there international market for nonimmigrant student thus not being able to complete would be a significant impact in student enrollment and exchange visitor the degree in the U.S. might affect the participation. Alternatives to U.S.-based participation. Specifically, the proposed student’s choice of country in which to exchange visitor programs (outside of changes could decrease nonimmigrant study. As a result, nonimmigrant academia) may be more difficult to find student enrollments in the United States students and exchange visitors may be in other countries, providing less of an with corresponding increased incentivized to consider other English- incentive for nonimmigrants to choose enrollments in other English-speaking speaking countries for their studies. an alternative. S. countries, notably in Canada, Australia, Nonimmigrant student enrollment I Foreign Information Media and the United Kingdom. Student visas and exchange visitor participation Representatives and resulting nonimmigrant status in contributes to the U.S. economy. The other English-speaking countries are Institute of International Education Similar to J exchange visitors not typically valid for the duration of the estimates that during the 2018 academic affiliated with SEVP-certified schools, student’s course enrollment, so students year, international students alone had DHS does not believe the proposed rule are not generally required to file an EOS an economic impact of $44.7 billion would have a significant impact on I application. For example, Australia’s from tuition and fees, food, clothing, nonimmigrants. Using ADIS data from most common student visa (Subclass travel, textbooks, and other spending.184 2016–2018, DHS found that on average, 500) provides for an admission for a If these students and exchange visitors 97 percent of I nonimmigrants have a length of stay that corresponds to the choose another country over the United period of stay shorter than 240 days, student’s enrollment, which may be States because of this proposed rule, and there are fewer proposed changes to more than 4 years.181 Similarly, a then the reduced demand could result the I category relative to other Canadian study permit is typically valid in a decrease in enrollment, therefore, nonimmigrants, such as F for the length of the study program, plus impacting school programs in terms of nonimmigrants. Therefore, DHS does an extra 90 days to let the student forgone tuition and other fees, jobs in not expect a reduction in admissions of prepare to leave Canada or apply to communities surrounding schools, and I nonimmigrants. extend their stay.182 The admission the U.S. economy. DHS conducted a DHS appreciates the importance of period for a nonimmigrant with a Tier literature search to find research nonimmigrant student enrollment and 4 (General) student visa in the United estimating impacts associated with exchange visitor participation to the Kingdom depends on the length of the actions like the proposed requirements U.S. culture and economy, but course as stated in the student’s and found related research like the acknowledges the potential for the Confirmation of Acceptance for Studies. Institute of International Education’s proposed rule to affect future International students in the UK are Open Doors®, as cited above, and nonimmigrant student enrollment and granted a certain number of additional NAFSA’s Economic Value Tool 185 that exchange visitor participation and months at the end of the course to provide annual estimates of the associated revenue. DHS requests prepare for departure, apply to extend economic contribution of international comment on this potential impact, their stay or change their status, students to the U.S. economy. While including literature, data, and research depending on the original course DHS acknowledges that the rule may estimating nonimmigrant student length.183 In each case, some decrease nonimmigrant student enrollment and exchange visitor nonimmigrant students may consider enrollments, there are many factors that participation impacts and the potential other countries’ visa programs to be less make the United States attractive to effect of the requirements on schools or restrictive relative to the proposed rule, nonimmigrant students and exchange sponsors and the larger economy. as they would not be required to file an visitors beyond the allowable admission Implementation and Operations Costs application to extend their stay and period. For example, Daily, Farewell, Incurred by CBP incur this additional expense. Although and Guarav (2010) found that it affects only those F–1 nonimmigrants international students pursuing a DHS acknowledges there would be who are applying for an extension of business degree in the United States rate implementation and operational costs to opportunities for post-graduation the U.S. Government associated with 181 Australian Government, Department of Home employment, availability of financial assessing aliens at the POE for purposes Affairs: Immigration and Citizenship, Subclass 500 aid, and reputation of the school as the of authorizing an admission period of 2 (Student Visa). Retrieved from: https:// immi.homeaffairs.gov.au/visas/getting-a-visa/visa- most important factors in selecting a or 4 years. CBP officers would need listing/student-500#Overview https:// training on new systems and procedures immi.homeaffairs.gov.au/visas/getting-a-visa/visa- 184 Institute of International Education, 2019 for conducting inspections at the POE. listing/student-500#Overview. Open Doors® Report on International Educational Once the rule is effective, CBP officers 182 Government of Canada, Immigration and Exchange, Retrieved from: https://www.iie.org/Why- would need readily accessible Citizenship, Study Permit: About the Process. IIE/Announcements/2019/11/Number-of- Retrieved from: https://www.canada.ca/en/ International-Students-in-the-United-States-Hits- information on the applicant to assist in immigration-refugees-citizenship/services/study- All-Time-High. canada/study-permit.html https://www.canada.ca/ 185 NAFSA: Association of International 186 Daily, C., Farewell, S., & Guarav, K., (2010). en/immigration-refugees-citizenship/services/study- Educators, Economic Value Statistics, Retrieved Factors Influencing the University Selection of canada/study-permit.html. from: https://www.nafsa.org/policy-and-advocacy/ International Students, Academy of Educational 183 Gov.uk, General Student Visa (Tier 4). policy-resources/nafsa-international-student- Leadership Journal, 14(3), 59–75, Retrieved from: Retrieved from: https://www.gov.uk/tier-4-general- economic-value-tool-v2#main-content (last visited https://www.abacademies.org/articles/ visa. Apr. 14, 2020). aeljvol14no32010.pdf (last visited Apr. 14, 2020).

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(1) assessing the appropriate length of in a timely manner by automating the potential impact of system-wide stay for admission; and (2) making an exchange of data. Rather than updating hardware or software updates. admissibility assessment in cases of re- individual nonimmigrant student and Preparing the SEVIS batch system to admission. DHS may require exchange visitor information manually accept novel categories of information modification to the Primary Processing through SEVIS, batch processing allows from schools and program sponsors System to deliver this information to schools and program sponsors to pool could require new database CBP officers. DHS continues to explore together and automatically process management procedures. DHS the necessary upgrades to systems and updates at the same time. The intended acknowledges that accepting the procedures that would allow CBP benefit of using batch processing is to updated XML files sent from DSOs has officers to perform their duties in streamline the SEVIS updating process. the potential to impact the functionality accordance with this proposed rule. Instead of updating individual record of its internal system. The SEVIS batch Therefore, this analysis does not information one-by-one through the system may require system updates to quantify the costs associated with SEVIS Portal, DSOs can update multiple maintain proper operations and system training CBP officers or the operational records at once, automatically. execution during the exchange between costs associated with new systems and DSOs are required to submit changes the user-system (the DSO’s system) and procedures. or updates to the nonimmigrant student the SEVIS batch system. Because of the uncertainty of the scope and scale of the E-Verify and exchange visitor information to the SEVIS database system. When using system upgrades needed as a result of DHS is proposing a 2-year limitation batch processing to submit information this proposed rule, DHS has not on F nonimmigrants accepted to and to SEVIS, DSOs are required to comply monetized the cost of these potential, attending schools not enrolled in E- with the proper documentation by future information technology Verify, or if enrolled, not a participant submitting their updates as Extensible investments. in good standing in E-Verify as Markup Language (‘‘XML’’) documents. English Language Training determined by USCIS. DHS also is Using the XML format allows the SEVIS DHS is proposing a limitation of an proposing a 2-year limitation on J batch system to recognize the new or aggregate 24-month period of stay, nonimmigrants participating in an updated student data automatically. The including breaks and an annual exchange visitor program whose changes are stored in the SEVIS batch vacation, for language training students. sponsor is not enrolled in E-Verify, or if system and an updated report is Unlike degree programs, there are no enrolled, not a participant in good returned to the school for record nationally-recognized, standard standing in E-Verify as determined by keeping and verification. Schools can completion requirements for language USCIS. The proposed rule would develop their own software or use third- training programs, allowing students to require these nonimmigrants to file an party software suppliers to organize, exploit the current system and stay for EOS request every 2 years to extend update, and store their student data an excessive period of time. The their stay. according to the SEVIS XML proposed 24-month period of stay The EOS estimates and quantitative requirements.188 cost impacts incorporate E-Verify would allow students a reasonable If finalized, the rule could lead to enrollment for J exchange visitor period of time to attain proficiency in system upgrades by schools and program sponsors. This was done by the English language while mitigating program sponsors that currently use matching the employer identification the Department’s concerns of fraud with batch processing to interface with number for J exchange visitor program the program. DHS estimates that an SEVIS. DHS acknowledges that there are sponsors with the employer average of 136,000 students participate many factors that affect the magnitude identification number for employers in English language training programs of system upgrade costs incurred by enrolled in E-Verify. However, DHS was annually.189 This analysis does not schools. For example, there may be one- not able to control for E-Verify estimate a cost for this proposed time software development costs to enrollment for schools attended by F provision as students enrolled in implement an updated system capable nonimmigrants because the student data English language training would not be of storing and converting a higher did not contain the employer able to extend their fixed period of stay volume of nonimmigrant student and identification number for schools beyond two years and would therefore exchange visitor records. There also attended by F nonimmigrants. DHS not incur the costs associated with may be differences in the burden of the attempted to manually identify schools applying for an extension to their period proposed rule according to the size of enrolled in E-Verify using fields such as of admission. However, it is possible the nonimmigrant student and exchange school name and employer name, but language training programs would visitor population at the school, the was unsuccessful. For this reason, DHS experience reduced enrollment due to willingness of the school to maintain did not quantify the impact of the E- the proposed rule. Additionally, some up-to-date system-wide software and Verify provision on F nonimmigrants in schools may choose to change their hardware, and other factors. DHS this analysis.187 curriculum to be covered in a 2-year requests comment on this potential time period, representing an additional Batch Processing impact, including the potential effect of burden on language training program Batch processing is a data-based the requirements on schools or sponsors providers. However, DHS expects this to transaction between a school and the and any data associated with the affect relatively few programs. For all SEVIS information database maintained impact, such as the typical expenses for years of analysis, the majority of English by DHS. Batch processing is intended to third-party software licenses or the help DSOs and ROs update and report 189 This estimate was developed using data from their nonimmigrant student and 188 Immigration and Customs Enforcement SEVIS SEVIS. The SEVIS database was queried to extract document, Application Program Interface data from FY 2016–2018. DHS used R Statistical exchange visitor information to SEVIS Document for the Student and Exchange Visitor Software to develop logic allowing DHS to identify Information System Batch Interface Release 6.35, p. individuals enrolled in language training programs. 187 See the section titled, ‘‘Estimating EOS 1–5 (July 31, 2017), Retrieved from: https:// DHS provides the SQL code used to query the Requests for F Nonimmigrants’’ for a discussion www.ice.gov/doclib/sevis/pdf/batch_api_6.35_ SEVIS database and the R code used to develop the regarding the E-Verify data limitations. 073117_main.pdf. logic for this analysis on the proposed rule’s docket.

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language training students were training programs by program duration resulting from the proposed limitations enrolled in programs shorter than two for FY 2016–2018. DHS seeks public on language training. years. Table 10 shows the percentage of comment on potential reduced students enrolled in English language enrollment, and associated impacts,

TABLE 10—PERCENT OF STUDENTS ENROLLED IN ENGLISH LANGUAGE TRAINING PROGRAMS BY LENGTH OF PROGRAM

FY 2016 FY 2017 FY 2018

Percent of English Language Training Students with a Program Duration Less Than or Equal to 1 Year ...... 58.4 58.9 58.0 Percent of English Language Training Students with a Program Duration Greater Than 1 year and Less Than or Equal to 2 years ...... 27.7 25.8 26.3 Percent of English Language Training Students with a Program Duration Greater Than 2 Years ...... 13.8 15.3 15.7 Estimates derived from SEVIS data.

Limitations on Changes in Educational nonimmigrant student program changes applications and applications for Levels between educational levels due to the employment authorization based on DHS is proposing a limitation on the lack of reliable transfer data. DHS seeks either an internship with an number of program changes at the same public comment on this potential international organization, CPT, pre- or lower educational levels that students impact. completion OPT, or post-completion OPT are approved. would be permitted to further Pending EOS Applications for F strengthen the integrity of the F visa Nonimmigrants DHS acknowledges that these category. Specifically, DHS proposes to requirements would affect a cohort of F The proposed rule also would restrict the number of program changes nonimmigrants. The total impact would establish certain adjustments for F between educational levels after depend on the number of F nonimmigrants with pending EOS completion of their first program by nonimmigrants with a timely filed EOS applications. Specifically, F limiting F–1 students to two additional application and whose EOS application nonimmigrants with a timely filed EOS changes in programs at the same level is still pending after their admission application and whose EOS application and one additional transfer to a lower period indicated on Form I–94 has is still pending after their admission level. See proposed 8 CFR expired. DHS does not have data to period indicated on Form I–94 has 214.2(f)(8)(ii)(B). This limitation may estimate this sub-population. DHS expired would: cause minor nonimmigrant enrollment believes that the incremental impact • Receive an automatic extension of reductions at schools, especially where from these proposed requirements their F nonimmigrant status and, as F–1 nonimmigrants have changed would not have a material impact on the between programs to remain in the applicable, of their on-campus employment authorization, off-campus results of this analysis, but requests United States for lengthy periods, and public comment on these impacts. may also reduce options to change employment authorization due to severe programs available to nonimmigrant economic hardship, or STEM OPT Total Cost Estimates students, including those who are employment authorization, as well as properly maintaining their status. evidence of employment authorization, Table 12 summarizes the impacts of Limiting the number of changes for up to 180 days or until the the proposed rule. Total monetized between education levels could applicable applications are approved, costs of the proposed rule include DSO potentially result in a corresponding whichever is earlier; and RO rule familiarization and reduction in tuition revenue for the • receive an automatic extension of adaptation costs, EOS filing costs, and universities and a reduction in their current authorization for on- DSO/RO program extension request extension of stay filing fees for the campus and off-campus employment processing and SEVIS update costs. The Federal government from students that based on severe economic hardship 10-year discounted costs of the are otherwise in compliance with their resulting from emergent circumstances proposed rule in 2018 dollars would status, fulfilling their academic under 8 CFR 214.2(f)(5)(v), for up to 180 range from $1.7 billion to $2.0 billion requirements, but are interested in days or the end date of the Federal (with 7 and 3 percent discount rates, additional programs beyond the Register notice (FRN) announcing the respectively). The annualized costs of proposed limitation. Based on an suspension of certain requirements, the proposed rule would range from analysis of three fiscal years of SEVIS whichever is earlier; $229.9 million to $237.7 million (with data between FY 2016 and FY 2018, • be prohibited from engaging in 3 and 7 percent discount rates, DHS is unable to quantify the impact on employment until their EOS respectively).

TABLE 12—COSTS OF THE PROPOSED RULE [2018$ millions]

DSO/RO Fiscal year DSO/RO rule EOS filing EOS Total costs familiarization processing

2020 ...... $93.3 $134.7 $22.9 $250.9 2021 ...... 0.0 134.7 22.9 157.6 2022 ...... 0.0 170.8 28.7 199.4 2023 ...... 0.0 170.8 28.7 199.4

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TABLE 12—COSTS OF THE PROPOSED RULE—Continued [2018$ millions]

DSO/RO Fiscal year DSO/RO rule EOS filing EOS Total costs familiarization processing

2024 ...... 0.0 240.3 40.5 280.7 2025 ...... 0.0 197.3 33.0 230.3 2026 ...... 0.0 197.3 33.0 230.3 2027 ...... 0.0 197.3 33.0 230.3 2028 ...... 0.0 197.3 33.0 230.3 2029 ...... 0.0 197.3 33.0 230.3

Undiscounted Total ...... 93.3 1,837.7 308.7 2,239.6 Total with 3% discounting ...... 93.3 1,599.0 268.7 1,961.0 Total with 7% discounting ...... 93.3 1,349.6 226.9 1,669.8 Annualized, 3% discount rate, 10 years ...... 10.9 187.4 31.5 229.9 Annualized, 7% discount rate, 10 years ...... 13.3 192.2 32.3 237.8

Transfers with the requirements of their status, or individuals. Without this oversight, if they present a national security there is no data on prevalence of fraud Should there be a reduction in the concern. Requiring nonimmigrant and abuse by F, J, and I nonimmigrants number of nonimmigrant students and academic students, exchange visitors, and only limited data on these exchange visitors applying for visas or and representatives of foreign individuals’ impact on national for F or J status in the United States, information media to request an security. then there would be an impact on the additional period of admission directly amount of fees collected by SEVP and with the Department would improve 5. Alternatives DOS from nonimmigrant students and consistency of admissions between Before arriving at a fixed admission exchange visitors through visa nonimmigrant categories, enable period of up to either 2 or 4-years, DHS applications and SEVIS fees. These fees stronger oversight by immigration considered various options, including are used to cover the operational costs officers who would review the no action, a 1- and 3-year fixed associated with processing the nonimmigrant’s request and assess admission period alternative, and a applications and adjudications. whether the nonimmigrant had been standard 1-year fixed admission period Nonetheless, DHS anticipates that any complying with the terms and for all F and J nonimmigrants. impacts resulting from potential conditions of his or her status, enhance No Action Alternative decreased nonimmigrant student DHS’s ability to effectively enforce the enrollment and exchange visitor statutory inadmissibility grounds DHS first considered a ‘‘no action’’ participation would be outweighed by related to unlawful presence, and deter alternative, under which F, J, and I the national security benefits aliens and entities from engaging in nonimmigrants would continue being anticipated as a result of the proposed fraud and abuse within these admitted for D/S. DHS determined that requirements. nonimmigrant programs. Accordingly, this alternative would not address the Benefits these proposed changes would provide lack of pre-determined points for the Department with additional immigration officers to directly evaluate Among the unquantified benefits of protections and mechanisms to exercise whether F, J and I nonimmigrants are the proposed rule is the opportunity for the oversight necessary to vigorously maintaining their status, currently DHS to have additional opportunities to enforce our nation’s immigration laws, lacking because of the D/S framework. evaluate whether F, J, and I protect the integrity of these categories, Additionally, DSOs and ROs would nonimmigrants are complying with their and promptly detect national security continue extending the program and status requirements. Currently, the D/S concerns. therefore the nonimmigrant status of F framework does not require immigration DHS believes this proposed rule could and J aliens, instead of having officers to assess whether these result in reduced fraud, abuse, and immigration officers, who are nonimmigrants are complying with the national security risks for these government officials, make this terms and conditions of their stay, or nonimmigrant programs, but whether assessment. As a result, there would whether they present a national security the rule will in fact result in a reduction continue to be challenges to the concern, unless some triggering event will be borne out when the final rule is Department’s ability to effectively (such as an encounter in an enforcement implemented. Compared to the current monitor and oversee these categories of setting, or a request for a benefit from D/S framework in which a nonimmigrants. With this option, the USCIS) leads to a review of the nonimmigrant’s substantive compliance Department would continue to be nonimmigrant’s compliance. By might never be reviewed by DHS, DHS concerned about the integrity of the implementing fixed periods of believes that the rule would be likely to programs and the potential for increased admission for these nonimmigrants, result in more prompt detection of risk to national security. they will be required to submit an national security concerns or abuse by application for EOS or travel and apply F, J and I nonimmigrants and could Alternative 1: 1- and 3-Year Fixed for admission, which they are not serve as a deterrent to those who would Admission Period currently required to do, in order to stay otherwise plan to engage in fraud or An alternative that DHS considered beyond their period of admission. This otherwise abuse these nonimmigrant was to admit F and J nonimmigrants to gives DHS additional opportunities to classifications. The rule proposes their program end date, not to exceed 3 evaluate whether they are complying additional oversight of these years, or 1 year for nonimmigrants

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meeting certain conditions. While such receive 193,000 fewer EOS requests on stay alternative. Therefore, DHS believes an option would provide the average each year. DHS believes that a an admission for the program end date, Department with more frequent direct 4-year period best aligns with the not to exceed 4 years (except for limited check in points with these normal progress for most programs, and exceptions that would limit admissions nonimmigrants than provided by a 4- a 3-year maximum period of stay would to 2 years) is the best option and year maximum period of admission, or require almost every nonimmigrant welcomes comments on this proposal. 2 years for nonimmigrants meeting enrolled in a 4-year program to apply for DHS calculated the costs for this certain conditions, DHS was concerned an EOS. A 3-year maximum also would alternative. DSO and RO rule it would be unduly burdensome on result in greater administrative burdens familiarization and adaptation costs many F and J nonimmigrants. Under the on USCIS and CBP compared to the would remain the same under this alternative, DHS estimates that, on proposed 4-year maximum period of alternative ($93.3 million during the average, 494,000 nonimmigrants would admission. USCIS would have to first year after the rule takes effect). To file an EOS each year. By comparison, adjudicate extension of stay calculate EOS filing costs, DHS DHS estimates that under the proposed applications with more frequency if a 3- multiplied the expected number of rule, on average, 301,000 year maximum period of stay is chosen extension of stay requests under the 3- nonimmigrants would file an EOS each over a 4-year period. Similarly, CBP year and 1-year fixed admission period year. By selecting the 2- and 4- year would have to process applications for alternative for F, I, and J nonimmigrants option in the proposed rule over the 1- admission at POEs more frequently (Table 13) by the appropriate applicant and 3-year alternative, DHS expects to under the 3-year maximum period of unit costs (Table 7). TABLE 13—NUMBER OF EOS REQUESTS UNDER ALTERNATIVE #1 BY NONIMMIGRANT CATEGORY AND YEAR

Early transition period End of Full implementation period Nonimmigrant category transition 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029

F–1 ...... 180,787 298,835 298,835 537,228 381,596 381,596 381,596 381,596 381,596 381,596 F–2 ...... 21,118 35,376 35,376 56,917 44,094 44,094 44,094 44,094 44,094 44,094 J–1 ...... 0 40,776 40,776 50,418 45,526 45,526 45,526 45,526 45,526 45,526 J–2 ...... 0 18,896 18,896 25,004 21,978 21,978 21,978 21,978 21,978 21,978 I ...... 1,197 1,197 1,197 1,197 1,197 1,197 1,197 1,197 1,197 1,197

Total ...... 203,102 395,080 395,080 670,764 494,391 494,391 494,391 494,391 494,391 494,391

Table 14 presents undiscounted EOS filing type (paper or electronic) and the the transition period (2023) because of filing costs under the 3-year and 1-year use or nonuse of outside help to the variation in the estimated number of fixed admission period alternative by complete the form. EOS filing costs are EOS requests (Table 13). nonimmigrant category and year, along lowest during the early transition period with a breakdown of costs based on (2020–2022) and highest at the end of TABLE 14—EOS FILING COSTS UNDER ALTERNATIVE #1, BY NONIMMIGRANT CATEGORY AND YEAR [Millions 2018$, undiscounted]

Early transition period End of Full implementation period Number of EOS/cost transition 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029

F–1

F–1 EOS Requests...... 180,787 298,835 298,835 537,228 381,596 381,596 381,596 381,596 381,596 381,596 Paper filing cost, no help 1 ...... $45.8 $75.7 $75.7 $136.1 $96.7 $96.7 $96.7 $96.7 $96.7 $96.7 E-filing cost, no help 2 ...... $19.1 $31.5 $31.5 $56.7 $40.3 $40.3 $40.3 $40.3 $40.3 $40.3 Paper filing cost, with help 3 ...... $46.4 $76.6 $76.6 $137.8 $97.9 $97.9 $97.9 $97.9 $97.9 $97.9 E-filing cost, with help 4 ...... $19.6 $32.4 $32.4 $58.2 $41.3 $41.3 $41.3 $41.3 $41.3 $41.3

F–1 Total...... $130.8 $216.3 $216.3 $388.8 $276.2 $276.2 $276.2 $276.2 $276.2 $276.2

F–2

F–2 EOS Requests...... 21,118 35,376 35,376 56,917 44,094 44,094 44,094 44,094 44,094 44,094 Paper filing cost, no help 5 ...... $2.0 $3.3 $3.3 $5.4 $4.2 $4.2 $4.2 $4.2 $4.2 $4.2 E-filing cost, no help 6 ...... $0.9 $1.4 $1.4 $2.3 $1.8 $1.8 $1.8 $1.8 $1.8 $1.8

F–2 Total...... $2.9 $4.8 $4.8 $7.7 $6.0 $6.0 $6.0 $6.0 $6.0 $6.0

J–1

J–1 EOS Requests...... 0 40,776 40,776 50,418 45,526 45,526 45,526 45,526 45,526 45,526 Paper filing cost, no help 1 ...... $0.0 $13.1 $13.1 $16.2 $14.6 $14.6 $14.6 $14.6 $14.6 $14.6 E-filing cost, no help 2 ...... $0.0 $5.2 $5.2 $6.5 $5.8 $5.8 $5.8 $5.8 $5.8 $5.8 Paper filing cost, with help 3 ...... $0.0 $11.9 $11.9 $14.8 $13.3 $13.3 $13.3 $13.3 $13.3 $13.3 E-filing cost, with help 4 ...... $0.0 $4.9 $4.9 $6.1 $5.5 $5.5 $5.5 $5.5 $5.5 $5.5

J–1 Total...... $0.0 $35.1 $35.1 $43.5 $39.2 $39.2 $39.2 $39.2 $39.2 $39.2

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TABLE 14—EOS FILING COSTS UNDER ALTERNATIVE #1, BY NONIMMIGRANT CATEGORY AND YEAR—Continued [Millions 2018$, undiscounted]

Early transition period End of Full implementation period Number of EOS/cost transition 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029

J–2

J–2 EOS Requests...... 0 18,896 18,896 25,004 21,978 21,978 21,978 21,978 21,978 21,978 Paper filing cost, no help 5 ...... $0.0 $3.1 $3.1 $4.1 $3.6 $3.6 $3.6 $3.6 $3.6 $3.6 E-filing cost, no help 6 ...... $0.0 $1.3 $1.3 $1.8 $1.6 $1.6 $1.6 $1.6 $1.6 $1.6

J–2 Total...... $0.0 $4.5 $4.5 $5.9 $5.2 $5.2 $5.2 $5.2 $5.2 $5.2

I Total...... $1.0 $1.0 $1.0 $1.0 $1.0 $1.0 $1.0 $1.0 $1.0 $1.0

Total, All Nonimmigrant Cat- egories ...... $134.7 $261.7 $261.7 $446.9 $327.6 $327.6 $327.6 $327.6 $327.6 $327.6 * Totals may not sum due to rounding. 1 (EOS request estimate) × (unit cost for paper applicants not requiring outside help) × (0.455). 2 (EOS request estimate) × (unit cost for electronic applicants not requiring outside help) × (0.195). 3 (EOS request estimate) × (unit cost for paper applicants requiring outside help) × (0.245). 4 (EOS request estimate) × (unit cost for electronic applicants requiring outside help) × (0.105). 5 (EOS request estimate) × (unit cost for paper applicants not requiring outside help) × (0.7). 6 (EOS request estimate) × (unit cost for electronic applicants requiring outside help) × (0.3).

The total costs for EOS request filing 1-year fixed period of admission the 2020–2029 study period under the under the 3-year and 1-year fixed period alternative, DHS multiplied the 3-year and 1-year fixed admission of admission alternative would be $3.1 expected number of F–1 and J–1 EOS period alternative. Similar to EOS filing billion undiscounted,190 or $2.7 billion requests under the 3-year and 1-year costs, DSO/RO costs to process program and $2.2 billion at discount rates of 3 fixed admission period alternative extension requests and update SEVIS and 7 percent, respectively. The (Table 13) by the expected DSO and RO are lowest during the early transition annualized cost of EOS request filing time requirement per EOS request (3 period (2020–2022) and highest at the over the 10-year period would be $312.8 hours) and the DSO and RO loaded × end of the transition period (2023) million and $320.0 million at discount wage rate ($28.93 1.46 loaded wage because of the variation in the estimated rates of 3 and 7 percent, respectively. rate factor). number of EOS requests (Table 13). To estimate costs for DSOs and ROs Table 15 presents undiscounted DSO/ to process program extension requests RO costs to process program extension and update SEVIS under the 3-year and requests and update SEVIS throughout TABLE 15—DSO/RO COSTS FOR PROCESSING PROGRAM EXTENSION REQUESTS BASED ON EOS REQUESTS AND UPDATING SEVIS UNDER ALTERNATIVE #1, BY YEAR [Millions 2018$, undiscounted]

Early transition period End of Full implementation period transition 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029

Number of Extension Requests 1 ...... 180,787 339,611 339,611 587,646 427,122 427,122 427,122 427,122 427,122 427,122 Costs 2 ...... $22.91 $43.03 $43.03 $74.46 $54.12 $54.12 $54.12 $54.12 $54.12 $54.12 1 Sum of extension request estimates for F–1 students and J–1 exchange visitors. 2 (Number of extension requests) × (3 hours) × (DSO/RO wage rate of $28.93) × (loaded wage rate factor of 1.46).

The total cost estimate for DSOs and The annualized cost of DSOs and ROs familiarization and adaptation costs, ROs to process program extension to update SEVIS over the 10-year period EOS filing costs, and DSO/RO costs for requests and update SEVIS under the 3- would be $51.8 million and $53.0 processing program extension requests year and 1-year fixed period of million at discount rates of 3 and 7 and updating SEVIS. The 10-year admission alternative would be $508.2 percent, respectively. discounted total costs of the 3-year and million undiscounted,191 or $441.7 Total monetized costs of the 3-year 1-year fixed period of admission million and $372.1 million at discount and 1-year fixed period of admission alternative would be $3.2 billion with a rates of 3 and 7 percent, respectively. alternative include DSO and RO rule 3 percent discount rate and $2.7 billion

190 The undiscounted total differs slightly from 191 The undiscounted total differs slightly from the sum of the years provided in Table 14 because the sum of the years provided in Table 15 because of rounding in the table values. of rounding in the table values.

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with a 7 percent discount rate. The aliens apply for a visa and admission to Department has observed that abuse is annualized total costs of the 3-year and the U.S. as an F or J nonimmigrant, as not limited to one particular type of 1-year fixed period of admission well as to track and monitor their status. school or program. By fixing a date alternative would range from $375.5 While this information is likely to be certain period of admission, all of these million to $386.2 million (with 3 and 7 helpful in identifying aliens who should nonimmigrants are on notice as to the percent discount rates, respectively). be subjected to further review, in some date their period of stay expires, and the The qualitative benefits of the 3-year cases the information may not be Department will be in a position to and 1-year fixed period of admission sufficient for determining whether these provide greater oversight to help deter F alternative are same as the benefits of nonimmigrants are engaging in and J nonimmigrants from engaging in the 4-year and 2-year fixed period of fraudulent behavior or otherwise have fraud and abuse, including staying admission alternative described in fallen out of status. The data received beyond that fixed date. All those who Section V.A.4. when applying for an EOS provides overstay would begin to accrue additional information not contained in unlawful presence, generally the day Other Alternatives SEVIS that helps the Department after their period of stay expires, when DHS also considered a standard 1- effectively monitor and oversee F and J admitted for a fixed period of year fixed admission period for all F nonimmigrants. Further, an EOS admission. Lastly, the Department and J nonimmigrants. This option provides a direct interaction with an believes that a fixed period of admission would treat all F and J nonimmigrants immigration officer. As a potential for these populations may deter fraud, equally and would likely allow for remedy, the Department considered allow for earlier detection of national easier implementation by USCIS and whether the SEVIS data could be used security concerns, and help reduce CBP by reducing the complexity of to classify a subset of nonimmigrants as overstays which outweighs reducing the implementation and enforcement. higher risk of being a national security number of EOS requests that may be Nevertheless, it could result in threat or committing fraud. The required. significant costs to nonimmigrants and identified subset would then be the Department. There are more than 1 required to complete an EOS as Comparison Table of Alternatives million F students who are enrolled in described in the proposal. Depending on Table 16 compares the quantitative programs of study that last longer than how the Department targeted higher risk costs and qualitative benefits of the 1 year. With a 1-year admission period, aliens, a smaller number of EOS’s would various alternatives. The ‘‘no action’’ DHS expects that all of them would be need to be completed as compared to alternative has zero costs but does not required to apply for additional time. the current proposal, thus lowering the address how the D/S framework This would be a significant cost to burden on nonimmigrants, program challenges the Department’s ability to students and exchange visitors, sponsors, and the Department. The effectively implement the statutory especially those who comply with the Department rejected this alternative in inadmissibility grounds of unlawful terms and conditions of their admission favor of moving all F and J presence, undermines the integrity of and those attending undergraduate nonimmigrants to a fixed period these programs, and presents a risk to programs that typically require 4 years admission because SEVIS does not national security. The alternative with a to complete. Further, such a restrictive readily lend itself to this purpose, as it 3-year maximum period of admission admission period could have is used to gather information regarding (or 1-year for nonimmigrants meeting unintended consequences. For example, technical compliance, and the data certain conditions) would provide the if USCIS’s EOS processing time is cannot replace the information that can Department with more frequent direct significantly lengthened due to a 1-year be developed in the course of an check in points on the nonimmigrants admission period, cases presenting adjudication, in which USCIS has the than a 4-year maximum period of national security or fraud concerns opportunity to ask questions via a admission, but DHS determined that the would not necessarily be prioritized, request for evidence and, if necessary, expense and workload implications of thereby allowing a mala fide student or conduct an interview. The Department this option would be too burdensome on exchange visitor to remain in the United also rejected this alternative due to the all stakeholders. DHS thus selected the States until USCIS adjudicated his or operational burden and challenges that proposed rule, which would impose her petition. would exist if some F and J lower costs while providing the DHS also considered whether the nonimmigrants were admitted for D/S, Department with an effective Department could utilize data from but others for a fixed period of mechanism to exercise the oversight SEVIS to identify potentially admission. In addition, by requiring all necessary to vigorously enforce our problematic F and J nonimmigrants and of the F and J nonimmigrants to be nation’s immigration laws, protect the require only this targeted subset of F admitted for a fixed period, this allows integrity of these categories, and and J nonimmigrants to complete an for the opportunity for improved promptly detect national security EOS. SEVIS information is used when detection of fraud or abuse, as the concerns.

TABLE 16—SUMMARY OF ALTERNATIVES

10-Year discounted totals (in $2018 million) Annualized Alternative costs Total costs Qualitative benefits

3-Percent Discount

No action ...... $0.00 $0.00 N/A. Proposed Rule (4-year max admis- 229.9 1,961.0 Evaluations at pre-determined intervals provide oversight necessary to sion). enforce immigration laws; protect the integrity of F, J, and I nonimmigrant categories; and promptly detect national security concerns.

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TABLE 16—SUMMARY OF ALTERNATIVES—Continued

10-Year discounted totals (in $2018 million) Annualized Alternative costs Total costs Qualitative benefits

Alternative 1 (3-year max admis- 375.5 3,203.5 More frequent evaluations of nonimmigrants (at least one check-in for sion). every F, J, and I nonimmigrant).

7-Percent Discount

No action ...... $0.00 $0.00 N/A. Proposed Rule (4-year max admis- 237.8 1,669.8 Evaluations at pre-determined intervals provide oversight necessary to sion). enforce immigration laws; protect the integrity of F, J, and I nonimmigrant categories; and promptly detect national security concerns. Alternative 1 (3-year max admis- 386.2 2,712.7 More frequent evaluations of nonimmigrants (at least one check-in for sion). every F, J, and I nonimmigrant).

B. Regulatory Flexibility Act 2. A Succinct Statement of the authorities, including USCIS’ authority Objectives of, and Legal Basis for, the to establish national immigration The Regulatory Flexibility Act of 1980 Proposed Rule services policies and priorities and (RFA), 5 U.S.C. 601–612, as amended, The objective of the proposed rule is adjudicate applications) and 6 U.S.C. requires federal agencies to consider the to establish requirements that would 252(a)(4) (describing ICE’s authority to potential impact of regulations on small help: (1) Ensure that the Department has collect information relating to foreign entities during rulemaking. The term an effective mechanism to periodically students and program participants and ‘‘small entities’’ comprises small and directly assess whether these to use such information to carry out its business, not-for-profit organizations nonimmigrants are complying with the enforcement functions). Section that are independently owned and conditions of their classifications and 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), operated and are not dominant in their U.S. immigration laws; and (2), obtain and Title IV of the Homeland Security fields, and governmental jurisdictions timely and accurate information about Act of 2002, Public Law 107–296, the with populations of less than 50,000. the activities they engage in during their Secretary of Homeland Security has the DHS requests information and data from temporary stay in the United States. If authority to prescribe, by regulation, the the public that would assist in better immigration officers discover a time and conditions of admission of all understanding the impact of this nonimmigrant in one of these categories nonimmigrants. proposed rule on small entities. DHS has overstayed or otherwise violated his 3. A Description of and, Where Feasible, also seeks input from the public on or her status, the proposed changes an Estimate of the Number of Small alternatives that will accomplish the would ensure the Department is better Entities to Which the Proposed Rule same objectives and minimize the able to carry out the unlawful presence Will Apply proposed rule’s economic impact on provisions of the Immigration and small entities. An initial regulatory Nationality Act (INA). DHS believes this The small entities to which the proposed rule would apply include all flexibility analysis (IRFA) follows. greater oversight would deter F, J, or I nonimmigrants from engaging in fraud small SEVP-certified schools and J 1. A Description of the Reasons Why the and abuse and strengthen the integrity exchange visitor program sponsors. Action by the Agency Is Being of these nonimmigrant classifications. Employers of I foreign information Considered The legal basis for this proposed rule media representatives would incur is grounded in the Secretary of negligible costs from the proposed rule DHS proposes to amend its Homeland Security’s broad authority to because the burden for filing an EOS regulations to eliminate the practice of administer and enforce the nation’s request falls on the I nonimmigrant, not admitting F academic students, I immigration laws. Under Section 102 of the employer. Employers of I foreign representatives of foreign information the Homeland Security Act of 2002 information media representatives are media, and J exchange visitors for the (HSA) (Pub. L. 107–296, 116 Stat. 2135), thus excluded from the small business period of time that they are complying 6 U.S.C. 112 and section 103(a)(1) and impact analysis. SEVP-Certified with the conditions of their (3) of the INA, 8 U.S.C. 1103 (a)(1),(3), Institutions Certified to Enroll nonimmigrant category (‘‘duration of charge the Secretary with the Nonimmigrant Students status’’) and replace it with a fixed administration and enforcement of the As of 2018, there were a total of 6,754 period of admission. The proposed rule immigration and naturalization laws of SEVP-certified institutions (schools) would enable DHS to more effectively the United States. Section 402(4) of the authorized to enroll F nonimmigrant HSA, 6 U.S.C. 202(4), expressly combat fraud and abuse, more students that would be subject to the authorizes the Secretary, consistent with accurately account for the accrual of proposed rule because they are 6 U.S.C. 236 (the DOS’s statutory unlawful presence grounds of authorized to enroll F–1 nonimmigrants authority concerning visa issuance and for a length of time greater than 1 year. inadmissibility, and better protect our refusal), to establish and administer nation’s immigration system. DHS’s Of these schools, 1,346 are public, 655 rules governing the granting of visas or are for-profit, 4,183 are private objectives and legal authority for this other forms of permission to enter the proposed rule are further discussed nonprofit, and 570 are private without United States to individuals who are not a for-profit/nonprofit specification.192 throughout this NPRM. U.S. citizens or lawful permanent residents. See also 6 U.S.C. 271(a)(3), (b) 192 The number and type of schools were (describing certain USCIS functions and extracted from SEVIS, retrieved on September 5,

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DHS estimated the percentage of private schools without a for-profit/ percent of all for-profit schools public schools that are small entities nonprofit designation are small entities. authorized to enroll F nonimmigrants using a random sample of the 1,346 DHS requests comments from the public fall below the SBA size standard of a SEVP-certified public schools. DHS regarding these assumptions. small business according to their does not keep data on the size of the To determine which of the remaining industry. As a result, DHS estimates that jurisdiction where each SEVP-certified 655 private for-profit schools are 439 of the 655 for-profit schools fall school is located and, therefore, needed considered a small entity, DHS sampled below the SBA size standard of a small to do additional research to determine 243 for-profit schools.197 DHS business according and are considered which schools are small. Due to the referenced the Small Business small entities (67% × 655 = 438.85, large number of SEVP-certified public Administration (SBA) size standards rounded to 439). Table 17 shows a schools and the level of effort associated represented by business average annual breakdown of the number of small for- with additional data collection, DHS receipts. Receipts are generally defined profit SEVP-certified schools by assessed the jurisdiction size for a as a firm’s total income or gross income. industry. sample of 299 public schools selected SBA’s Table of Small Business Size DHS estimated each private school’s randomly from the 1,346 SEVP-certified Standards provides business size annual receipts by multiplying the public schools. 193 Of these sampled standards for all sections of the North approximate annual cost of room, board, schools, none were affiliated with a American Industry Classification and tuition by the average annual governmental jurisdiction with a System (NAICS) for industries.198 DHS number of total students based on data population of less than 50,000 because matched information provided by the provided by the schools to SEVP. DHS most schools had a statewide schools in SEVIS regarding what acknowledges that this method of jurisdiction. Of the 299 sampled public programs of study it is engaged in with estimating receipts may be an schools, DHS found that none of the an appropriate six-digit NAICS industry incomplete account of a school’s public schools were small entities description. NAICS is the standard income, which may also include because they are in a governmental classification used to categorize contributions from private individuals jurisdiction with a population greater business establishments for the purpose or other endowments. Because these than 50,000.194 Therefore, DHS of collecting, analyzing, and publishing data reflect a snapshot of all SEVP- estimates that all 1,346 public schools statistical data related to the U.S. certified schools authorized to enroll F are not small entities.195 economy. students in 2018, DHS acknowledges DHS conservatively assumes that all DHS found that the revenue of 163 of there may be changes in the school’s 4,183 private nonprofit schools are the 243 sampled for-profit schools fell enrollment numbers and that a school’s small entities because they are not below the SBA size standard of a small estimated revenue may differ from dominant in their field. 196 DHS also business according to their industry. actual revenue, which could include assumes that all 570 schools that are Therefore, DHS estimates that 67 income generated from other sources.

TABLE 17—FOR-PROFIT SEVP-CERTIFIED SCHOOLS BY INDUSTRY

Number of Total SEVP- School industry Size standard NAICS codes Number of non-small certified Percent small small schools schools schools schools

Elementary and Secondary Schools ...... $12M 611110 44 19 63 70 Junior Colleges ...... 22M 611210 1 2 3 33 Colleges, Universities and Professional Schools ...... 30M 611310 46 24 70 66 Flight Training ...... 30M 611512 1 1 2 50 Other Technical and Trade Schools ...... 17M 611519 4 3 7 57 Fine Arts Schools ...... 8M 611610 2 2 4 50 Language Schools ...... 12M 611630 64 29 93 69 All Other Miscellaneous Schools and In- struction ...... 12M 611699 1 0 1 100

Total ...... 163 80 243 67 1 U.S. Small Business Administration, Tables of Small Business Size Standards Matched to NAICS Codes.

2019. More information on SEVIS can be found at 195 DHS is aware that this conclusion differs from independently owned and operated and is not https://www.ice.gov/sevis/overview. that of the findings in the 2019 SEVP Fee Rule dominant in its field. 193 In determining the sample size, DHS assumed FRFA (See 84 FR 23930 (May 29, 2019)). For the 197 In determining the sample size, DHS assumed a 95 percent confidence level (z-score of 1.96); 5 SEVP Fee Rule FRFA and the D/S NPRM IRFA, a 95 percent confidence level (z-score of 1.96); 5 percent margin of error (e=0.05); and a 50 percent DHS used census data to search for the jurisdiction percent margin of error (e=0.05); and a 50 percent population proportion of small schools (p=0.5). where the school was located. In the D/S NPRM population proportion of small schools (p=0.5). DHS used the equation S = ((z∧ 2*p(1 – p))/e∧2) / IRFA, high schools were excluded from this search DHS used the equation S = ((z∧ 2*p(1 – p))/e∧2) / as they would not be subject to the rule limitations. (1+((z∧2 * p(1 – p))/(Ne∧2))), where S is sample (1+((z∧2 * p(1 – p))/(Ne∧2))), where S is sample Most public colleges and universities are run at the size, N is population size, and all other variables size, N is population size, and all other variables state level, and all states have a population greater are as described in this footnote. The equation used than 50,000. In the SEVP Fee Rule FRFA, public are as described in this footnote. The equation used to calculate the sample size can be found in Daniel elementary, secondary, and high schools are to calculate the sample size can be found in Daniel WW (1999). Biostatistics: A Foundation for combined with public universities. There are WW (1999). Biostatistics: A Foundation for Analysis in the Health Sciences. 7th edition. New necessarily more public elementary, secondary, and Analysis in the Health Sciences. 7th edition. New York: John Wiley & Sons. high schools than there are public universities. York: John Wiley & Sons. 194 Section 601(5) of the Regulatory Flexibility Therefore, DHS expects to see differences between 198 U.S. Small Business Administration, Tables of Act defines small governmental jurisdictions as the two rules. Small Business Size Standards Matched to NAICS governments of cities, counties, towns, townships, 196 Section 601(4) of the Regulatory Flexibility Codes (Aug. 19, 2019), available at https:// villages, school districts, or special districts with a Act defines the term ‘‘small organization’’ to mean www.sba.gov/document/support—table-size- population of less than 50,000. any not-for-profit enterprise which is standards.

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2 Number of schools derived from SEVIS data.

Table 18 shows a summary by school nonimmigrants and estimated small small entity, or approximately 77 type of the number of SEVP certified entities. DHS estimates that 5,192 percent of the 6,754 schools included in schools authorized to enroll F schools meet the SBA definition of a this analysis.

TABLE 18—SEVP-CERTIFIED SCHOOLS AUTHORIZED TO ENROLL F NONIMMIGRANTS BY SCHOOL TYPE

Total number Percent small Percent small Description of schools schools schools

Public schools ...... 1,346 0 0 Private, nonprofit schools ...... 4,183 4,183 100 Private, unspecified schools ...... 570 570 100 For profit schools ...... 655 439 67

Total Number of SEVP-Certified Schools ...... 6,754 5,192 77

J Exchange Visitor Program Sponsors sponsor J exchange visitor programs for for-profit institutions. These sponsors a length of time greater than 1 year. Of issue DS–2019s according to certain As of 2018, there were a total of 1,171 these sponsors, 54 are government designation codes that map to specific J exchange visitor program sponsors that entities, 891 are schools, 23 are programs. Table 19 shows the type for would be subject to the proposed rule hospitals and related institutions, 141 each J exchange visitor program because they are authorized by DOS to are nonprofit institutions, and 62 are designation code.

TABLE 19—DESCRIPTIONS OF J EXCHANGE VISITOR PROGRAM SPONSOR TYPES BY DESIGNATION CODE

Designation code Program type

G–1 ...... Programs sponsored by the Department of State. G–2 ...... Programs sponsored by the Agency for International Development (USAID). G–3 ...... Other U.S. Federal agencies. G–4 ...... International agencies or organizations in which the U.S. Government participates. G–5 ...... Other national, State, or local government agencies. G–7 ...... Federally funded national research and development center or a U.S. Federal laboratory. P–1 ...... Educational institutions, e.g., schools, colleges, universities, seminaries, libraries, museums, and institutions devoted to scientific and technological research. P–2 ...... Hospitals and related institutions. P–3 ...... Nonprofit organizations, associations, foundations, and institutions (academic institutions conducting training programs can be classified as a P–3, as long as they are considered nonprofit). P–4 ...... For-profit organizations (business and industrial concerns).

Government Entities sponsoring both F and J nonimmigrants, hospitals are small entities because they DHS determined that all 54 357 (50 percent) of the schools are are not dominant in their fields. Only government entities (G–1, G–2, G–3, G– public schools and 357 (50 percent) are one hospital and related institution, a 4, G–5, and G–7 program sponsors) are private, nonprofit schools. DHS assumes health maintenance organization large entities because 30 are federal that the remaining 178 (20 percent) of medical health center with six-digit government entities and 24 are state or schools sponsoring only J exchange NAICS code 621491, sponsoring J local government entities. Of the 24 visitors are also 50 percent public and exchange visitor programs is a for-profit state or local government entities, all 50 percent private, nonprofit schools. institution that exceeded the threshold represented jurisdictions with DHS thus estimates that there would be of $32.5 million annually in receipts for populations greater than 50,000. 446 public schools and 446 private, being a large entity. nonprofit schools (50 percent each of Therefore, DHS classified all 54 Nonprofit Organizations government entities as large entities. the 891 J-sponsor schools). Since all affected public schools have been found DHS conservatively assumes that all Educational Institutions to be large entities and all affected 141 nonprofits sponsoring J exchange DHS identified 891 schools that are J private, nonprofit schools are assumed visitor programs are small entities exchange visitor program sponsors. To to be small entities, DHS estimates that because they are not dominant in their identify which J exchange visitor 446 of the 891 J-sponsor schools are field. DHS requests comments on these program sponsors were small entities, small entities. assumptions. DHS compared the 891 schools Hospitals and Related Institutions For-Profit Organizations sponsoring J exchange visitor programs to the schools authorized to enroll F DHS identified 23 hospitals and DHS identified a total of 62 nonimmigrants. Of the 891 schools related institutions sponsoring J potentially affected for-profit sponsoring J exchange visitor programs, exchange visitor programs. Of these 23 organizations sponsoring J exchange 713 (80 percent) also enrolled F hospitals, 22 are nonprofit. DHS visitor programs. In order to determine nonimmigrants. Of the 713 schools assumes that all 22 private nonprofit which of these for-profit entities may be

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affected by the proposed rule, DHS visitor participants with a potential stay Total J Exchange Visitor Program identified sponsors eligible to sponsor J of greater than one year. Of these 61 Sponsors exchange visitor programs for longer organizations, DHS identified 32 than one year, as those would be the potentially affected small entities. To Overall, DHS identified 1,171 unique only sponsors potentially affected by the identify these small entities, DHS entities sponsoring J exchange visitor rule. Sponsors for exchange visitors referenced the SBA size standards programs. Of these 1,171 entities, DHS enrolled in short-term scholar, intern, represented by business average annual identified 642 small entities that may be specialist, secondary school student, receipts. Receipts are generally defined affected by the proposed rule. Table 20 college and university student, summer as a firm’s total income or gross income. shows a summary by sponsor type of the work travel, camp counselor, and au SBA’s Table of Small Business Size number of J exchange visitor program pair programs would not be affected by Standards is matched to the NAICS for sponsors and estimated small entities. the proposed rule as the programs they industries.199 DHS matched information DHS requests comments on these offer are too short to be affected. Using provided by the sponsors in SEVIS with assumptions, particularly with regard to these guidelines, DHS identified 61 an appropriate NAICS industry J exchange visitor program nonprofit organizations sponsoring J exchange description. sponsors.

TABLE 20—J EXCHANGE VISITOR PROGRAM SPONSORS BY TYPE AND SMALL ENTITY STATUS

Number of Description Total number affected small of sponsors entities

U.S. Department of State ...... 1 0 U.S. Agency for International Development (USAID) ...... 1 0 Other U.S. Federal agencies ...... 26 0 International agencies or organizations 1 ...... 1 0 Other national, state, or local government agencies ...... 24 0 National research and development center or laboratory 2 ...... 1 0 Educational institutions 3 ...... 891 447 Hospitals and related institutions ...... 23 22 Nonprofit organizations, associations, etc.4 ...... 141 141 For-profit organizations 5 ...... 62 32

Total ...... 1,171 642 1 International agencies or organizations in which the U.S. Government participates. 2 Federally funded national research and development center or a U.S. Federal laboratory. 3 Educational institutions, e.g., schools, colleges, universities, seminaries, libraries, museums, and institutions devoted to scientific and technological research. 4 Nonprofit organizations, associations, foundations, and institutions (academic institutions conducting training programs can be included here, as long as they are considered nonprofit). 5 For-profit organizations (business and industrial concerns).

4. A Description of the Projected hour), and advise the F–1/J–1 employment authorizations. Therefore, Reporting, Recordkeeping, and Other nonimmigrant about the extension the potential impacts of these Compliance Requirements of the process and the requirements to file an requirements on small entities is not Proposed Rule, Including an Estimate of EOS with USCIS (1 hour annually). DHS quantitatively evaluated in this IRFA. the Classes of Small Entities That Will estimates the annual impact to small Be Subject to the Requirement and the SEVP-certified schools and J exchange SEVP-Certified Schools Authorized to Types of Professional Skills Necessary visitor program sponsors based on the Enroll F Nonimmigrants for Preparation of the Report or Record cost of compliance as represented as a As shown in Table18, DHS estimates percentage of their annual revenue. This The proposed rule would increase that 5,192 SEVP-certified schools that analysis examines the impact that the costs for SEVP-certified schools and J are authorized to enroll F proposed rule would have on small exchange visitor program sponsors nonimmigrants meet the SBA definition because DSOs and ROs would have to SEVP-certified schools and J exchange of a small entity, including 4,183 spend approximately 40 hours for rule visitor program sponsors. private, nonprofit schools; 570 private familiarization and adaptation (in the The IRFA evaluates the impacts that schools without a for-profit/nonprofit first year only; 8 hours to complete rule have been quantitatively estimated in designation; and 439 for-profit schools. familiarization training, 16 hours to the regulatory impact analysis. As DHS determined a SEVP-certified create and modify training materials, discussed in the regulatory impact school’s annual revenue by multiplying and 16 hours to adapt to the proposed analysis, there are other proposed rule the average cost per F student by rule through system wide briefings and requirements that could impact small average annual enrollment. DHS systemic changes) and approximately 3 SEVP-certified schools and J exchange acknowledges that this method to hours per F–1/J–1 program extension visitor program sponsors. The regulatory estimate revenue may be an incomplete request to review the Form I–539 impact analysis qualitatively discusses account of a SEVP-certified school’s completed by the F–1/J–1 nonimmigrant proposed requirements affecting English revenue, which may also include (1 hour), update the SEVIS record and language training programs; changes in contributions from private individuals track program extension requests (1 educational levels; and extensions to or other endowments.

199 U.S. Small Business Administration, Tables of Codes (Aug. 19, 2019), available at https:// SBA%20Table%20of%20Size%20Standards_ Small Business Size Standards Matched to NAICS www.sba.gov/sites/default/files/2019-08/ Effective%20Aug%2019%2C%202019_Rev.pdf.

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DHS examined all 5,192 small SEVP- certified schools by dividing the rule 96.4 percent, would experience an certified schools authorized to enroll F familiarization and adaptation costs for impact less than or equal to 1 percent nonimmigrants to estimate the impact of three DSOs ($5,069) by each school’s of their estimated annual revenue as a estimated DSO rule familiarization and estimated annual revenue. For the result of the rule familiarization and adaptation costs in the first year of the private, for-profit schools, DHS assessed adaptation costs. DHS estimates 118 rule. For this analysis, DHS assumed impacts of the rule familiarization and small schools (2.3 percent) would that each small SEVP-certified school adaptation costs on the sample of for- realize an impact between 1 percent and has three DSOs that will incur rule profit schools and applied the 2 percent of their estimated annual 200 familiarization and adaptation costs. percentage of schools falling within revenue, 29 small schools (0.6 percent) For each DSO, rule familiarization will each impact category to the full universe would realize an impact between 2 cost $1,690 (40 hours × $28.93 × 1.46 of small for-profit schools. percent and 3 percent, and 38 small loaded wage rate factor). in the first year Table 21 shows the number of small schools (0.7 percent) would realize an after the rule takes effect. 201 DHS schools within the range of impact to calculated the impact of rule each school’s estimated annual revenue. impact greater than or equal to 3 familiarization and adaptation on SEVP- Of the 5,192 small schools, 5,007, or percent.

TABLE 21—IMPACT OF RULE FAMILIARIZATION AND ADAPTATION COSTS FOR SEVP-CERTIFIED SCHOOLS CERTIFIED TO ENROLL F NONIMMIGRANT STUDENTS 1

Rule familiarization and adaptation costs as a percent of annual Type of school revenue Total <1% 1%–2% 2%–3% ≥3%

Private, nonprofit schools ...... 4,048 81 21 33 4,183 Private, unspecified schools ...... 541 21 3 5 570 For-profit schools 2 ...... 418 16 5 0 439

Total Small Schools ...... 5,007 118 29 38 5,192 % of Small Schools ...... 96.4% 2.3% 0.6% 0.7% 100.0% 1 Values based on the assumption that small entities will have three DSOs that will incur rule familiarization and adaption costs. 2 DHS assessed impacts of the rule familiarization and adaptation costs on the subsample of for-profit schools and applied the percentage of schools falling within each impact category to the full universe of small for-profit schools.

DHS also examined all 5,192 small requests for each school. The DSO cost impact less than or equal to 1 percent SEVP-certified schools to estimate the per EOS request is $127 (3 hours × of their estimated annual revenue. DHS impact of annual DSO costs for $28.93 × 1.46 loaded wage rate estimates 108 small schools (2.1 processing program extension requests factor).202 DHS calculates the impact by percent) would realize an impact and updating SEVIS. For this analysis, dividing the processing costs for 37 EOS between 1 percent and 2 percent of their DHS estimated the number of program requests ($4,670) by each school’s estimated annual revenue, 27 small extension requests that each school is estimated annual revenue. For the for- schools (0.5 percent) would realize an expected to process by dividing the profit schools, DHS assessed impacts of impact between 2 percent and 3 percent, estimated annual number of F–1 EOS costs on the sample of for-profit and 32 small schools (0.6 percent) nonimmigrant EOS requests from the schools and applied the percentage of would realize an impact greater than or full implementation period (249,017; schools falling within each impact equal to 3 percent. Table 22 shows the see Table 6) by the total number of category to the full universe of small for- number of small schools within the SEVP-certified schools, small and large profit schools. (6,754). This methodology produced an Of the 5,192 small schools, 5,025, or range of impact to each school’s estimated average of 37 annual EOS 96.8 percent, would experience an estimated annual revenue.

TABLE 22—IMPACT OF EOS COSTS FOR SEVP-CERTIFIED SCHOOLS 1

EOS costs as a percent of annual revenue Type of school Total <1% 1%–2% 2%–3% ≥ 3%

Private, nonprofit schools ...... 4,062 75 17 29 4,183 Private, unspecified schools ...... 545 17 5 3 570 Por-profit schools 2 ...... 418 16 5 0 439

Total Small Schools ...... 5,025 108 27 32 5,192 % Small Schools ...... 96.8% 2.1% 0.5% 0.6% 100.0% 1 Values based on the assumption that each small entity will process 37 EOS requests annually. 2 DHS assessed impacts of the EOS costs on the subsample of for-profit schools and applied the percentage of schools falling within each impact category to the full universe of small for-profit schools.

200 DHS estimated costs assuming that each small welcomes public comment on the average number 202 See Section V.A of the NPRM for a detailed SEVP-certified school has one, three, and five of DSOs at small SEVP-certified schools. discussion of DSO and RO Rule Familiarization and DSOs. DHS presented the estimates for three DSOs 201 See Section V.A of the NPRM for a detailed Adaptation Costs. as a midpoint value. The actual number of DSOs discussion of DSO and RO Rule Familiarization and may vary by small SEVP-certified school. DHS Adaptation Costs.

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DHS recognizes that the 37 annual 23, approximately 72 percent of the enrolled on average, implying that the EOS requests assumption for each small schools identified as having EOS analysis may be overestimating the SEVP-certified school may overestimate processing cost impacts greater than or number of schools with impacts greater the costs for schools with low average equal to 3 percent of annual school than 3 percent.203 annual enrollment. As shown in Table revenue have 37 or fewer students

TABLE 23—SMALL ENTITY SEVP-CERTIFIED SCHOOLS CERTIFIED TO ENROLL F NONIMMIGRANTS WITH EOS IMPACTS GREATER THAN OR EQUAL TO 3 PERCENT OF SCHOOL EARNINGS AND ENROLLMENT OF 37 OR FEWER STUDENTS 1

Number of schools Percent of schools ≥ with enrollment at Number of schools with impacts 3% Type of school or under 37 stu- ≥ and enrollment at dents and impacts with impacts 3% or under 37 ≥3% students

Private, nonprofit schools ...... 20 29 69.0% Private, unspecified schools ...... 3 3 100.0% For profit schools 2 ...... 0 0 ......

Total Small Schools ...... 23 32 71.9% 1 Impact percentage based on the assumption that each small entity will process 37 EOS requests annually. 2 DHS assessed impacts of the EOS costs on the subsample of for-profit schools and applied the percentage of schools falling within each impact category to the full universe of small for-profit schools.

J Exchange Visitor Program Sponsors see Table 6) by the total number of J proposed rule will not exceed 3 percent exchange visitor program sponsors, or 2 percent, respectively, of sponsor As shown in Table 20, 642 J exchange small and large (1,171). This earnings. DHS anticipates that the visitor program sponsors meet the SBA methodology produced an estimated majority of small J sponsors will have definition of a small entity. Because average of 10 annual EOS requests for earnings that exceed these thresholds. reliable financial information is not each J sponsor. DHS recognizes that DHS requests comments on the available for all J sponsors, DHS did not small entities will likely process fewer availability of earnings data for J assess impacts of the proposed rule for EOS requests than the average but does exchange visitor program sponsors in each small J exchange visitor program not have more detailed data on the EOS order to refine this analysis. sponsor. Instead, DHS determined the requests by entity. DHS also recognizes minimum earnings required for potential non-quantifiable risks of The impact of the costs for processing proposed rule costs to equal 1 percent, reduced enrollment in J exchange visitor program extension requests and 2 percent, and 3 percent of J sponsor programs that can lead to revenue updating SEVIS (10 EOS requests; revenue. For this analysis, DHS reductions. $1,251) will not exceed 1 percent of assumed that each small J exchange Table 24 provides the minimum sponsor earnings if earnings are at least visitor program sponsor will have three annual earnings required for proposed $125,144. If J exchange visitor program ROs that will incur rule familiarization rule costs to equal 1 percent, 2 percent, sponsor earnings are at least $41,715 or and adaptation costs in the first year.204 and 3 percent of J exchange visitor $62,572, the EOS request processing To assess the annual impacts of costs for program visitor sponsor revenue. The costs of the proposed rule will not processing program extension requests impact of the RO rule familiarization exceed 3 percent or 2 percent, and updating SEVIS, DHS estimated the and adaptation costs of the proposed respectively, of sponsor earnings. DHS number of program extension requests rule ($5,069) will not exceed 1 percent anticipates that the majority of small J that each J exchange visitor program of sponsor earnings if earnings are at sponsors will have earnings that exceed sponsor is expected to process by least $506,854. If J exchange visitor these thresholds. DHS requests dividing the estimated annual number program sponsors earnings are at least comments on the availability of earnings of J–1 nonimmigrant EOS requests from $168,951 or $253,427, the rule data for J exchange visitor program the full implementation period (11,565; familiarization and adaption costs of the sponsors in order to refine this analysis.

TABLE 24—MINIMUM J EXCHANGE VISITOR PROGRAM SPONSOR EARNINGS FOR PROPOSED RULE COSTS TO EQUAL 1 PERCENT, 2 PERCENT, OR 3 PERCENT OF SPONSOR REVENUE (2018$)

Percent of annual revenue Minimum annual earnings 1% 2% 3%

Rule Familiarization and Adaptation Costs (first year only) 1 ...... $506,854 $253,427 $168,951 EOS Costs (annual) 2 ...... 125,144 62,572 41,715 1 Values based on the assumption that small entities will have 3 ROs that will incur rule familiarization/adaptation costs. 2 Values based on the assumption that each small entity will process 10 EOS requests annually.

203 Schools with 37 or fewer students include 204 DHS estimated costs assuming that each small may vary by small J exchange visitor program religious institutions, Montessori schools, schools J exchange visitor program sponsor has one, three, sponsor. DHS welcomes public comment on the for students with disabilities, specialty graduate and five ROs. DHS presented the estimates for three average number of ROs at small J exchange visitor schools, and boarding schools. ROs as a midpoint value. The actual number of ROs program sponsors.

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5. An Identification, to the Extent on USCIS and CBP compared to the C. Small Business Regulatory Practicable, of All Relevant Federal proposed 4-year maximum period of Enforcement Fairness Act of 1996 Rules That May Duplicate, Overlap, or admission. Specifically, USCIS would Under section 213(a) of the Small Conflict With the Proposed Rule have to adjudicate extension of stay Business Regulatory Enforcement Department of State Exchange Visitor applications with more frequency if a 3- Fairness Act of 1996, Public Law 104– Program regulations would need to be year maximum period of stay is chosen 121, we want to assist small entities in updated to inform the sponsor over a 4-year one. Similarly, CBP would understanding this proposed rule so that community of this new EOS procedure. have to process applications for they can better evaluate its effects on The regulations at 22 CFR part 62.43 admission at POEs more frequently them and participate in the rulemaking. describe the procedures for J–1 program under the 3-year maximum period of If the proposed rule would affect your extensions. These regulations may need stay alternative. Therefore, DHS believes small business, organization, or to be updated to reference the changes an admission for the program end date, governmental jurisdiction and you have made in this proposed rule, whereby a not to exceed 4 years (except for limited questions concerning its provisions or J–1 must file for an extension of stay exceptions that would limit admissions options for compliance, please consult with USCIS in order to remain in the to 2 years) is the best option and ICE using the contact information United States beyond the status welcomes comments on this proposal. provided in the FOR FURTHER INFORMATION CONTACT section above. expiration date on their I–94, or depart DHS also considered a standard 1- the United States and seek admission as year fixed admission period for all F D. Congressional Review Act a J–1 nonimmigrant at a port of entry, and J nonimmigrants. This option in addition to securing a program This proposed rule is a major rule as would treat all nonimmigrants with F extension from the Responsible Officer defined by 5 U.S.C. 804, also known as and J status equally and would likely or from the Department of State, as the ‘‘Congressional Review Act,’’ as required by the current regulations.’’ allow for easier implementation by CBP enacted in section 251 of the Small at the POEs. Nevertheless, it could Business Regulatory Enforcement 6. A Description of Any Significant result in significant costs to Fairness Act of 1996, Public Law 104– Alternatives to the Proposed Rule nonimmigrants and the Department. 121, 110 Stat. 847, 868 et seq. Which Accomplish the Stated There are more than 1 million F Accordingly, this rule, if enacted as a Objectives of Applicable Statutes and students who are enrolled in programs final rule, would be effective at least 60 Minimize Any Significant Economic of study that last longer than 1 year. days after the date on which Congress Impact of the Proposed Rule on Small With a 1-year admission period, DHS receives a report submitted by DHS Entities expects that all of them would be under the Congressional Review Act, or DHS first considered a ‘‘no action’’ required to apply for additional time. 60 days after the final rule’s publication, alternative, under which DHS would This could be a significant cost to whichever is later. continue admitting nonimmigrants with students and exchange visitors, E. Unfunded Mandates Reform Act F, I, and J status without an end date for especially those who comply with the The Unfunded Mandates Reform Act their authorized periods of stay. DHS terms and conditions of their admission of 1995 (2 U.S.C. 1531–1538) requires determined that this alternative would and those attending undergraduate federal agencies to assess the effects of not adequately provide immigration programs that typically require 4 years their discretionary regulatory actions. In officers with an opportunity to evaluate to complete. Further, such a short particular, the Act addresses actions an alien’s maintenance of status at pre- admission period could have that may result in the expenditure by a determined points, nor would it enable unintended consequences. If USCIS’s State, local, or tribal government, in the immigration officers an opportunity to EOS processing time is significantly aggregate, or by the private sector of assess whether an alien is accruing lengthened due to a 1-year admission $100,000,000 (adjusted for inflation) or unlawful presence, and the ‘no action’ period, cases presenting national more in any year. Though this proposed alternative would do nothing to address security or fraud concerns would not rule would not result in such an the fraud and abuse currently present in necessarily be prioritized, thereby expenditure, DHS does discuss the these categories. allowing a mala fide student or effects of this rule elsewhere in this Another alternative DHS considered exchange visitor to remain in the United preamble. was to admit F and J nonimmigrants to States until USCIS adjudicated his or F. Paperwork Reduction Act—Collection their program end date, not to exceed 3 her petition. years (or 1 year for nonimmigrants of Information DHS requests comment on the meeting certain conditions). While such Under the Paperwork Reduction Act impacts on small entities. Members of an option would provide the of 1995, Public Law 104–13, 109 Stat. the public should submit a comment, as Department with more frequent direct 163 (1995) (PRA), all Departments are described in this proposed rule under evaluations of nonimmigrants than a 4- required to submit to OMB, for review year maximum period of admission (or Public Participation, if they think that and approval, any reporting or 2-year maximum for nonimmigrants their business, organization, or recordkeeping requirements inherent in meeting certain conditions), DHS was governmental jurisdiction qualifies as a a rule. DHS, USCIS and ICE are revising concerned it would be unduly small entity and that this proposed rule one information collection and burdensome on many F and J would have a significant economic proposing non-substantive edits to one nonimmigrants. DHS believes that a impact on it. It would be helpful if information collection in association period of admission for up to 4 years commenters provide DHS with as much with this rulemaking action: best aligns with the normal progress for information as possible as to why this most programs. A 3-year maximum proposed rule would create an impact I–539 and I–539A period of stay would require almost on small businesses. Commenters DHS, USCIS and ICE invite the every nonimmigrant enrolled in a 4-year should also describe any recommended general public and other federal program to apply for an EOS and would alternative measures that would agencies to comment on the impact to result in greater administrative burdens mitigate the impact on small businesses. the proposed collection of information.

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In accordance with the PRA, the response is 2.38 hours; the estimated H. Executive Order 12988: Civil Justice information collection notice is total number of respondents for the Reform published in the Federal Register to information collection Form I–539 (e- This proposed rule meets applicable obtain comments regarding the file) is 136,466 and the estimated hour standards set forth in sections 3(a) and proposed edits to the information burden per response is 1.083 hours; the 3(b)(2) of Executive Order 12988, Civil collection instrument. estimated total number of respondents Justice Reform, to eliminate drafting Comments are encouraged and will be for the information collection errors and ambiguity, minimize accepted for 60 days from the Supplement A is 83,712 and the litigation, provide a clear legal standard publication date of the proposed rule. estimated hour burden per response is for affected conduct, and promote All submissions received must include .50 hours; the estimated total number of simplification and burden reduction. the OMB Control Number 1615–0003 in respondents for biometrics processing is the body of the letter and the agency 538,599 and the estimated hour burden I. Executive Order 13211: Actions name. To avoid duplicate submissions, per response is 1.17 hours. Concerning Regulations That please use only one of the methods (6) An estimate of the total public Significantly Affect Energy Supply, under the ADDRESSES and Public burden (in hours) associated with the Distribution, or Use Participation section of this rule to collection: The total estimated annual DHS has analyzed this proposed rule submit comments. Comments on this hour burden associated with this under Executive Order 13211, Actions information collection should address collection of information in hours is Concerning Regulations That one or more of the following four points: 1,577,242. Significantly Affect Energy Supply, (1) Evaluate whether the collection of (7) An estimate of the total public Distribution, or Use. DHS has information is necessary for the proper burden (in cost) associated with the determined that it is not a ‘‘significant performance of the functions of the collection: The estimated total annual energy action’’ under that order because agency, including whether the cost burden associated with this it is a ‘‘significant regulatory action’’ information will have practical utility; collection of information is under Executive Order 12866 but is not (2) Evaluate the accuracy of the $105,461,002. likely to have a significant adverse effect agency’s estimate of the burden of the on the supply, distribution, or use of collection of information, including the USCIS Form I–765 and I–756 WS energy. validity of the methodology and Under the Paperwork Reduction Act assumptions used; of 1995, 44 U.S.C. 3501–12, DHS must J. National Environmental Policy Act (3) Enhance the quality, utility, and submit to OMB, for review and (NEPA) clarity of the information to be approval, any reporting requirements DHS Management Directive (MD) collected; and inherent in a rule unless they are 023–01 Rev. 01 and Instruction Manual (4) Minimize the burden of the exempt. Although this rule does not (IM) 023–01–001–01 Rev. 01 establish collection of information on those who impose any new reporting or the policy and procedures that DHS and are to respond, including through the recordkeeping requirements under the its Components use to implement the use of appropriate automated, PRA for this information collection, this requirements of the National electronic, mechanical, or other rule will require non-substantive edits Environmental Policy Act of 1969 technological collection techniques or to USCIS Form I–765, Application for (NEPA), 42 U.S.C. 4321–4375, and the other forms of information technology, Employment Authorization. Council on Environmental Quality e.g., permitting electronic submission of Accordingly, USCIS has submitted a (CEQ) regulations for implementing responses. Paperwork Reduction Act Change NEPA, 40 CFR parts 1500 through 1508. Overview of Information Collection Worksheet, Form OMB 83–C, and The CEQ regulations enable federal (1) Type of Information Collection: amended information collection agencies to establish categories of Revision of a Currently Approved instruments to OMB for review and actions that do not individually or Collection. approval in accordance with the PRA. cumulatively have a significant effect on the human environment and, therefore, (2) Title of the Form/Collection: G. Executive Order 13132: Federalism Application to Extend/Change do not require an Environmental Nonimmigrant Status. This proposed rule would not have Assessment or Environmental Impact (3) Agency form number, if any, and substantial direct effects on the States, Statement. 40 CFR 1508.4. DHS’s the applicable component of the DHS on the relationship between the Categorical Exclusions are listed in IM sponsoring the collection: I–539 and I– National Government and the States, or 023–01–001–01 Rev. 01, Appendix A, 539A; USCIS. on the distribution of power and Table 1. (4) Affected public who will be asked responsibilities among the various For an action to be categorically or required to respond, as well as a brief levels of government. DHS does not excluded, the action must satisfy each of abstract: Primary: Individuals or expect that this proposed rule would the following three conditions: households. This form will be used for impose substantial direct compliance 1. The entire action clearly fits within nonimmigrants to apply for an costs on State and local governments, or one or more of the Categorical extension of stay, for a change to preempt State law even though schools, Exclusions; another nonimmigrant classification, or colleges, and universities may choose to 2. The action is not a piece of a larger for obtaining V nonimmigrant enroll in E-Verify to permit their action; and classification. students a longer initial period of 3. No extraordinary circumstances (5) An estimate of the total number of admission. Therefore, in accordance exist that create the potential for a respondents and the amount of time with section 6 of Executive Order significant environmental effect. IM estimated for an average respondent to 13132, it is determined that this rule 023–01–001–01 Rev. 01 sec. V(B)(2)(a)– respond: The estimated total number of does not have sufficient federalism (c). respondents for the information implications to warrant the preparation If the proposed action does not clearly collection Form I–539 (paper) is 318,421 of a federalism summary impact meet all three conditions, DHS or the and the estimated hour burden per statement. Component prepares an Environmental

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Assessment or Environmental Impact L. Executive Order 12630: Governmental delegating the authority to electronically Statement, according to CEQ Actions and Interference With sign this document to Chad R. Mizelle, requirements and MD 023–01 Rev. 01 Constitutionally Protected Property who is the Senior Official Performing and IM 023–01–001–01 Rev. 01. Rights the Duties of the General Counsel for DHS, for purposes of publication in the DHS proposes to amend its This proposed rule would not cause a Federal Register. regulations to eliminate the practice of taking of private property or otherwise admitting F–1 nonimmigrant students, I have taking implications under List of Subjects Executive Order 12630, Governmental nonimmigrant representatives of 8 CFR Part 214 information media, and J–1 exchange Actions and Interference with visitors (and F–2/J–2 family members) Constitutionally Protected Property Administrative practice and Rights. for D/S. The proposed rule would procedure, Aliens, Cultural exchange provide for nonimmigrants seeking M. Executive Order 13045: Protection of programs, Employment, Foreign entry under F, I, or J visas to be Children From Environmental Health officials, Health professions, Reporting and recordkeeping requirements, admitted for the period required to Risks and Safety Risks Students. complete their academic program, Executive Order 13045 requires foreign information media employment, agencies to consider the impacts of 8 CFR Part 248 or exchange visitor program, not to environmental health risk or safety risk Administrative practice and exceed the periods of time defined in that may disproportionately affect procedure, Aliens, Reporting and this proposed rule. The proposed rule children. DHS has reviewed this recordkeeping requirements. would also require nonimmigrants proposed rule and determined that this seeking to continue their studies, rule is not an economically significant 8 CFR Part 274a foreign information media employment, rule and would not create an Administrative practice and or exchange visitor program beyond the environmental risk to health or risk to procedure, Aliens, Employment, admission period granted at entry to safety that might disproportionately Penalties, Reporting and recordkeeping apply for extension. DHS has analyzed affect children. Therefore, DHS has not requirements. prepared a statement under this this proposed rule under MD 023–01 Regulatory Amendments Rev. 01 and IM 023–01–001–01 Rev. 01. executive order. Accordingly, DHS proposes to amend DHS has determined that this proposed N. National Technology Transfer and parts 214, 248, and 274a of chapter I, Advancement Act rulemaking action is one of a category subchapter B, of title 8 of the Code of of actions that do not individually or The National Technology Transfer Federal Regulations as follows: cumulatively have a significant effect on and Advancement Act of 1995 (15 the human environment. This proposed U.S.C. 272 note) directs agencies to use PART 214—NONIMMIGRANT CLASSES rule completely fits within the voluntary consensus standards in their Categorical Exclusion found in IM 023– regulatory activities unless the agency ■ 1. The authority citation for part 214 01–001–01 Rev. 01, Appendix A, Table provides Congress, through the Office of continues to read as follows: 1, number A3(d): ‘‘Promulgation of Management and Budget, with an Authority: 6 U.S.C. 202, 236; 8 U.S.C. rules. that interpret or amend an explanation of why using these 1101, 1102, 1103, 1182, 1184, 1186a, 1187, existing regulation without changing its standards would be inconsistent with 1221, 1281, 1282, 1301–1305, 1356, and environmental effect.’’ This proposed applicable law or otherwise 1372; section 643, Pub. L. 104–208, 110 Stat. 3009–708; Pub. L. 106–386, 114 Stat. 1477– rule is not part of a larger action. This impracticable. Voluntary consensus standards are technical standards (e.g., 1480; section 141 of the Compacts of Free proposed rule presents no extraordinary Association with the Federated States of circumstances creating the potential for specifications of materials, performance, Micronesia and the Republic of the Marshall significant environmental effects. design, or operation; test methods; Islands, and with the Government of Palau, Therefore, this proposed rule is sampling procedures; and related 48 U.S.C. 1901 note, and 1931 note, categorically excluded from further management systems practices) that are respectively; 48 U.S.C. 1806; 8 CFR part 2; developed or adopted by voluntary Pub. L. 115–218. NEPA review. consensus standards bodies. This ■ DHS seeks any comments or 2. Section 214.1 is amended by: proposed rule does not use technical ■ a. Adding paragraph (a)(4); information that may lead to the standards. Therefore, we did not ■ b. Revising paragraphs (b) discovery of any significant consider the use of voluntary consensus introductory text, (b)(1) introductory environmental effects from this standards. text, (b)(2) introductory text, and (b)(3) proposed rule. O. Family Assessment introductory text; ■ K. Executive Order 13175: Indian Tribal c. Removing paragraph (b)(4); DHS has determined that this ■ d. Revising paragraphs (c)(2), (c)(3)(v), Governments proposed action will not affect family and (c)(5); and well-being within the meaning of This proposed rule does not have ■ e. Adding paragraphs (c)(6) and (m). section 654 of the Treasury and General tribal implications under Executive The additions and revisions read as Government Appropriations Act, follows: Order 13175, Consultation and enacted as part of the Omnibus Coordination with Indian Tribal Consolidated and Emergency § 214.1 Requirements for admission, Governments, because it would not have Supplemental Appropriations Act of extension, and maintenance of status. a substantial direct effect on one or 1999 (Pub. L. 105–277, 112 Stat. 2681). (a) * * * more Indian tribes, on the relationship (4) Requirements for admission of between the Federal Government and P. Signature aliens under section 101(a)(15)(F) and Indian tribes, or on the distribution of The Acting Secretary of Homeland (J). Aliens applying for admission as F power and responsibilities between the Security, Chad F. Wolf, having reviewed or J nonimmigrants after [EFFECTIVE Federal Government and Indian tribes. and approved this document, is DATE OF FINAL RULE] will be

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inspected and may be admitted into the 274a.12(b)(6)(iv), plus a 30-day period (3) Section 101(a)(15)(M). The United States, if in possession of a valid as provided in 8 CFR 214.2(f)(5)(iv). inspecting immigration officer may Form I–20 or Form DS–2019, or (ii) Aliens applying for admission as readmit for the unexpired period of stay successor form, and otherwise eligible, J nonimmigrants. (A) Aliens seeking authorized prior to the alien’s departure, and subject to the following: admission to the United States, any nonimmigrant alien whose (i) Aliens applying for admission as F including those seeking admission with nonimmigrant visa validity is nonimmigrants. (A) Aliens seeking a properly filed, pending application for considered automatically extended admission to the United States, an extension of stay as a J nonimmigrant pursuant to 22 CFR 41.112(d) and who including those seeking admission with after a previously authorized period of is applying for admission under section a properly filed, pending application for admission as a J nonimmigrant expired, 101(a)(15)(M) of the Act, if the alien: an extension of stay as an F may be admitted for the period specified * * * * * nonimmigrant after a previously in 8 CFR 214.2(j)(1); (c) * * * authorized period of admission as an F (B) Aliens seeking admission to the United States as a J nonimmigrant with (2) Filing for an extension of stay. Any nonimmigrant expired, may be admitted other nonimmigrant who seeks to for the period specified in 8 CFR a properly filed pending extension of stay as a J nonimmigrant may, if they extend his or her stay beyond the 214.2(f)(5); currently authorized period of (B) Aliens seeking admission to the have time remaining on the period of stay authorized prior to departure, be admission, must apply for an extension United States as an F nonimmigrant of stay by filing an extension request in with a properly filed pending admitted for a period up to the unexpired period of stay authorized the manner and on the form prescribed application for extension of stay as an by USCIS, together with the required F nonimmigrant may, if they have time prior to the alien’s departure, plus an additional 30 days as provided in 8 CFR fees and all initial evidence specified in remaining on the period of stay the applicable provisions of 8 CFR authorized prior to departure, be 214.2(j)(1)(ii)(C), subject to the requirements in paragraph (c)(6) of this 214.2, and in the form instructions, admitted for a period up to the including the submission of any unexpired period of stay authorized section, provided that if the alien seeks admission with a Form DS–2019 for a biometrics required by 8 CFR 103.16. prior to the alien’s departure, plus an More than one person may be included additional 30 days as provided in 8 CFR program end date beyond his or her previously authorized period of in an application if the co-applicants are 214.2(f)(5)(iv), subject to the all members of a single-family group requirements in paragraph (c)(6) of this admission, the alien may be admitted for the period specified in 8 CFR and either all hold the same section, or if the alien seeks admission nonimmigrant status or one holds a with a Form I–20 for a program end date 214.2(j)(1), subject to the requirements in paragraph (c)(6) of this section; nonimmigrant status and the other co- beyond their previously authorized applicants are his or her spouse and/or period of admission, the alien may be (C) Aliens seeking admission to the United States as a J nonimmigrant with children who hold derivative admitted for the period specified in 8 nonimmigrant status based on his or her CFR 214.2(f)(5), subject to the an approved extension of stay in J nonimmigrant status may be admitted status. Extensions granted to members requirements in paragraph (c)(6) of this of a family group must be for the same section; up to the expiration of the approved extension of stay, plus an additional 30 period of time. The shortest period (C) Aliens seeking admission to the granted to any member of the family United States as an F nonimmigrant days as provided in 8 CFR 214.2(j)(1)(ii)(C). will be granted to all members of the with an approved extension of stay for family. In order to be eligible for an F nonimmigrant status may be admitted (b) Readmission of nonimmigrants under section 101(a)(15) (F), (J), or (M) extension of stay, nonimmigrant aliens until the expiration of the approved in K–3/K–4 status must do so in extension of stay, plus an additional 30 whose visa validity is considered automatically extended] to complete accordance with 8 CFR 214.2(k)(10). days, as provided in 8 CFR (3) * * * 214.2(f)(5)(iv); unexpired periods of previous (v) Any nonimmigrant admitted for (D) Post-completion Optional admission or extension of stay— duration of status. Practical Training (OPT) and Science (1) Section 101(a)(15)(F). The Technology Engineering and inspecting immigration officer may * * * * * Mathematics OPT extension (STEM readmit up to the unexpired period of (5) Decisions for extension of stay OPT extension). Aliens seeking stay authorized prior to the alien’s applications. Where an applicant or admission to the United States as an F departure, any nonimmigrant alien petitioner demonstrates eligibility for a nonimmigrant to pursue post- whose nonimmigrant visa validity is requested extension, it may be granted completion OPT or a STEM OPT considered automatically extended at USCIS’s discretion. The denial of an extension may be admitted until the end pursuant to 22 CFR 41.112(d) and who application for extension of stay may date of the approved employment is applying for admission under section not be appealed. authorization for post-completion OPT 101(a)(15)(F) of the Act, if the alien: (6) Abandonment of extension of stay or STEM OPT, or if the Application for * * * * * and pending employment authorization Employment Authorization, Form I–765 (2) Section 101(a)(15)(J). The applications for F, I, and J or successor form for post-completion or inspecting immigration officer may nonimmigrant aliens. (i) If an alien in F, STEM OPT is still pending with USCIS, readmit up to the unexpired period of I, or J nonimmigrant status timely files as evidenced by a notice issued by stay authorized prior to the alien’s an application for an extension of stay, USCIS indicating receipt of such departure, any nonimmigrant alien USCIS will not consider the application application, until the Designated School whose nonimmigrant visa validity is abandoned if the alien departs the Official’s recommended employment considered automatically extended United States while the application is end date for post-completion or STEM pursuant to 22 CFR 41.112(d) and who pending, provided that when the alien OPT specified on the Form I–20, subject is applying for admission under section seeks admission, the previously to the requirements in paragraphs (c)(6) 101(a)(15)(J) of the Act, if the alien: authorized period of admission has not of this section and 8 CFR * * * * * expired and the alien seeks admission

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for the balance of the previously (i) If the F–1’s application for post- ■ b. Adding paragraph (f)(5)(vii); authorized admission period. completion OPT or STEM–OPT ■ c. Revising the paragraph (f)(7) subject (ii) An application for extension of employment authorization is approved, heading and paragraphs (f)(7)(i), (iii), stay in F, I, or J nonimmigrant status is the F–1 will be authorized to remain in and (iv); abandoned if an alien departs the the United States in F status until the ■ d. Adding paragraphs (f)(7)(v) through United States while the application is expiration date of the employment (viii); pending and seeks admission with a authorization document, plus 60-days. If ■ e. Revising paragraph (f)(8); ■ Form I–20 or DS–2019 for a program the employment authorization f. Revising paragraphs (f)(9)(i), application is denied, the F–1 would (f)(10)(i), (f)(10)(ii)(D), and (f)(11)(i); end date beyond their previously ■ authorized period of admission. USCIS continue to be authorized to remain in g. Removing and reserving paragraph the United States until the program end (f)(13); will not consider as abandoned any ■ date listed on their Form I–20, plus 60 h. Revising paragraph (f)(18)(iii); corresponding applications for ■ i. Adding paragraphs (f)(20) and (21); employment authorization. days, as long as he or she continues to ■ j. Revising paragraph (i), the * * * * * pursue a full course of study and paragraph (j) subject heading, and (m) Transition period from duration otherwise meets the requirements for F– paragraphs (j)(1)(ii), (iv), (v), (vi), (vii), of status to a fixed admission date—(1) 1 status. and (viii); and Transition from D/S admission to a (ii) Aliens in F–1 status with pending ■ k. Adding paragraphs (j)(1)(ix) and fixed admission period for aliens employment authorization applications, (j)(6) and (7). other than post-completion OPT and properly maintaining F and J status on The revisions and additions read as STEM–OPT, who continue to pursue a [EFFECTIVE DATE OF FINAL RULE]. follows: full course of study and otherwise meet Aliens with F or J status who are the requirements for F–1 status, § 214.2 Special requirements for properly maintaining their status on continue to be authorized to remain in admission, extension, and maintenance of [EFFECTIVE DATE OF FINAL RULE] the United States until the program end status. with admission for duration of status are date listed on the Form I–20, plus 60 * * * * * authorized to remain in the United days, regardless of whether the (f) * * * States in F or J nonimmigrant status employment authorization application (5) Authorized admission periods—(i) until the later date of either the is approved or denied. General. If eligible for admission as expiration date on an Employment (3) Transition from D/S admission to described in paragraph (f)(1)(i) of this Authorization Document (Form I–766, a fixed admission period for aliens with section, aliens seeking F–1 status may or successor form), or the program end I status present in the U.S. on be granted such nonimmigrant status for date noted on their Form I–20 or Form [EFFECTIVE DATE OF FINAL RULE]. up to the length of their program DS–2019, as applicable, not to exceed a Except for those aliens described in 8 (including any period of authorized period of 4 years from [EFFECTIVE CFR 214.2(i)(3)(ii), aliens in I practical training time following the DATE OF FINAL RULE], plus the nonimmigrant status who are properly completion of studies to engage in post- departure period of 60 days for F maintaining their status on [EFFECTIVE completion optional practical training nonimmigrants and 30 days for J DATE OF FINAL RULE] with admission (OPT) and Science Technology nonimmigrants. Any authorized for duration of status are authorized to Engineering and Mathematics Optional employment or training continues until remain in the United States in I Practical Training (STEM OPT) the program end date on such F or J nonimmigrant status for a period extensions) listed on the Form I–20, not nonimmigrant’s Form I–20 or DS–2019, necessary to complete their activity, not to exceed a period of 4 years, plus a as applicable and as endorsed by the to exceed [DATE 240 DAYS AFTER period up to 30 days before the DSO or RO for employment or training, EFFECTIVE DATE OF FINAL RULE] indicated report date or program start or expiration date on Employment with the exception of aliens in I date listed on Form I–20 and an Authorization Document (Form I–766, nonimmigrant status presenting additional 30 days at the end of the or successor form). Aliens who need passports issued by the Hong Kong program, as provided in paragraph additional time to complete their Special Administrative Region, who are (f)(5)(iv) of this section, subject to the current course of study, including authorized to remain in the United following exceptions: requests for post-completion OPT or States in I nonimmigrant status for a (A) Aliens subject to the limitations STEM OPT, or exchange visitor period necessary to complete their described in paragraph (f)(20) of this program, or would like to start a new activity, not to exceed [DATE 90 DAYS section may be admitted for the course of study or exchange visitor AFTER EFFECTIVE DATE OF FINAL applicable period under that paragraph. program must apply for an extension of RULE]. Aliens who need additional time (B) Aliens whose course of study is in stay with USCIS in accordance with to complete their employment must a language training program are paragraph (c)(2) of this section for an apply for an extension of stay with restricted to an aggregate total of 24 admission period to a fixed date. USCIS in accordance with paragraph months of language study, including (2) Pending employment (c)(2) of this section for an admission any school breaks and annual vacations. authorization applications with USCIS period to a fixed date. (C) Aliens who are granted F–1 status on [EFFECTIVE DATE OF FINAL RULE] (4) Severability. The provisions in 8 as border commuter students under the filed by aliens with F–1 status. F–1 CFR 214.1(m) are intended to be provisions in paragraph (f)(18) of this aliens described in paragraph (m)(1) of independent severable parts. In the section may be admitted for the this section who have timely and event that any provision in this applicable period described under that properly filed applications for paragraph is not implemented, DHS paragraph. employment authorization pending with intends that the remaining provisions be (D) Aliens who are granted F–1 status USCIS on [EFFECTIVE DATE OF FINAL implemented as an independent rule. to attend a public high school are RULE] do not have to file for an ■ 3. Section § 214.2 is amended by: restricted to an aggregate of no more extension or re-file such applications for ■ a. Revising the paragraph (f)(5) subject than 12 months to complete their course employment authorization, unless heading and paragraphs (f)(5)(i), (ii), of study, including any school breaks otherwise requested by USCIS. (iv), and (vi); and annual vacations.

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(E) Aliens with pending employment fee and in accordance with the form year for which the H–1B status is authorization applications who are instructions, including any biometrics requested, where such petition: admitted based on the DSO’s required by 8 CFR 103.16. (1) Has been timely filed; recommended employment end date for (E) DHS may delay or suspend the (2) Requests a change of status; and (3) Requests an H–1B employment post-completion OPT or STEM OPT implementation of paragraphs start date of October 1 of the fiscal year specified on their Form I–20, with a (f)(5)(ii)(A) through (C) of this section, for which the H–1B status is requested. notice issued by USCIS indicating in its discretion, if it determines that receipt of the Application for (B) The automatic extension of the implementation is infeasible for any alien’s F–1 nonimmigrant status and Employment Authorization, Form I–765 reason. If DHS delays or suspends any or successor form for post-completion or employment authorization under provisions in paragraphs (f)(5)(ii)(A) paragraph (f)(5)(vi)(A) of this section STEM OPT, who cease employment through (C) governing the change in pursuant to an employment will automatically terminate upon the degree level, DHS will make an rejection, denial, revocation, or authorization document (EAD) that announcement of the delay or expires before the alien’s fixed date of withdrawal of the H–1B petition filed suspension on SEVP’s website at on such alien’s behalf; upon the admission as noted on their I–94, will https://www.studyinthestates.dhs.gov be considered to be in the United States withdrawal or denial of the request for (or successor uniform resource locator). change of nonimmigrant status, even if in a period of authorized stay from the DHS thereafter will announce the date of the expiration noted on their the H–1B petition filed on the alien’s implementation dates of change in behalf is approved for consular EAD until the fixed date of admission as degree level provision on the SEVP noted on their I–94. processing; or, if USCIS approves the H– website at https:// (F) The authorized period of stay for 1B petition and associated change of www.studyinthestates.dhs.gov (or F–2 dependents may not exceed the status request, and the change of status authorized period of stay of the successor uniform resource locator), at will take effect prior to April 1 of the principal F–1 alien. least 30 calendar days in advance. fiscal year for which H–1B status was (ii) Change of educational levels while * * * * * requested, upon the date that the change in F–1 status. (A) An alien in F–1 status (iv) Period of preparation for of status takes effect. who has completed a program in the departure or to otherwise maintain (C) In order to obtain the automatic United States at one educational level status. An alien in F–1 status who has extension of stay and employment and begins a new program at the next completed a course of study or any authorization under this paragraph, the highest educational level is considered authorized practical training following alien, consistent with 8 CFR 248, must to be maintaining F–1 status if completion of studies will be allowed a not have violated the terms or otherwise complying with requirements 30-day period from the Form I–94 (or conditions of his or her F–1 status. (D) The automatic extension of F–1 under this paragraph (f). successor form) end date or the status under this paragraph (f)(5)(vi) (B) An alien in F–1 status who has expiration date noted on the also applies to an F–2 dependent spouse completed a program in the United Employment Authorization Document and child(ren) who timely files a change States at one educational level and (Form I–766 or successor form), as of status application from an F–2 to an begins a new program at the same applicable, to prepare for departure H–4 nonimmigrant. The automatic educational level, up to, but not more from the United States, or to otherwise extension for these dependents ends than two additional times, is considered maintain status, including timely filing upon termination of the F–1 to be maintaining F–1 status if an extension of stay application in nonimmigrant’s automatic extension. otherwise complying with requirements accordance with paragraph (f)(7) of this The timely filing of such change of under this paragraph (f). This two-time section and § 214.1 or timely filing a status application does not authorize limit on beginning additional programs change of status application in employment for the F–2 dependents. after completion of a program in the accordance with 8 CFR 248.1(a). An (vii) F status and employment United States at the same educational alien authorized by the DSO to authorization while extension of stay level is a lifetime limit and does not withdraw from classes will be allowed and employment authorization reset with a new admission as an F–1. a 15-day period from the date of the (C) An alien in F–1 status who has applications are pending. An F alien withdrawal to depart the United States. completed a program in the United whose status as indicated on the An alien admitted in F–1 status who States at one educational level and Arrival-Departure Record (Form I–94 or fails to maintain a full course of study begins a new program at a lower successor form) has expired will be without the approval of the DSO or educational level is considered to be considered to be in a period of otherwise fails to maintain status is not maintaining F–1 status only in the first authorized stay if he or she has timely eligible for any additional period of time instance of such a change, and if the filed an extension of stay application for departure. alien is otherwise complying with the pursuant to paragraph (f)(7) of this requirements under this paragraph (f). * * * * * section until USCIS issues a decision on The one-time limit on changing to a (vi) Extension of F–1 stay and grant of the extension of stay application. lower educational level following employment authorization for aliens Subject to paragraphs (f)(9)(i) and (ii) of completion of a program at a higher who are the beneficiaries of an H–1B this section and 8 CFR 274a.12(b)(6)(i) level is a lifetime restriction and does petition. (A) The lawful nonimmigrant and 8 CFR 274a.12(c)(3)(iii), any F–1 not reset with a new admission as an F– status and any employment alien’s current on-campus and severe 1. authorization granted under 8 CFR economic hardship employment (D) When seeking a change in 274a.12(c)(3)(i)(B) or (C) of an alien in authorization is automatically extended educational levels, aliens in F–1 status F–1 status who is the beneficiary of an during the pendency of the extension of referenced in paragraphs (f)(5)(ii)(A) H–1B petition, subject to section stay application, but such automatic through (C) of this section must, if 214(g)(1)(A) of the Act, as well as those extension may not exceed 180 days seeking an extension of stay, apply for eligible for exemption under section beginning from the end date of his or an extension of stay on the form 214(g)(5)(C) of the Act, will be extended her period of admission as indicated on designated by USCIS, with the required automatically until April 1 of the fiscal the alien’s Arrival-Departure Record

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(Form I–94 or successor form). However, who has maintained his or her F–1 the applicant must timely file for an severe economic hardship employment status, but who is unable to meet the extension of stay on the form and in the authorization resulting from emergent program end date on the Form I–20. manner designated by USCIS, with the circumstances under paragraph (f)(5)(v) Such aliens may be eligible for an required fees and in accordance with of this section is automatically extended extension if the DSO issues a new Form the filing instructions, including any for up to 180 days or until the end date I–20, indicating that the alien: biometrics required by 8 CFR 103.16 stated in the Federal Register notice (1) Has continually maintained lawful and a valid, properly endorsed Form I– announcing the suspension of certain status; 20 or successor form, showing the new requirements, whichever is earlier. If an (2) Is currently pursuing a full course program end date. If seeking an F–1 alien files an extension of stay of study; and extension of stay to engage in any type application during the 30-day period (3) Maintains documentation that the of practical training, the alien in F–1 provided in paragraph (f)(5)(iv) of this request is based on one of the reasons status also must have a valid, properly section, he or she does not receive an described in paragraph (f)(7)(iii)(B) of endorsed Form I–20 and be eligible to automatic extension of employment this section; receive the specific type of practical authorization, including on-campus and (B) Required evidence. In such cases training requested. The alien in F–1 severe economic hardship, and must where the alien fails to meet the status must be maintaining his or her wait for approval of the extension of program end date on the Form I–20, he status and must not have engaged in any or she must establish to the satisfaction stay application (and employment unauthorized employment. of USCIS that the delays in completing authorization application, if required) (D) Late requests of extension of the program within the time noted on before engaging in employment. For current program end date. If the DSO the previous Form I–20, or successor purposes of employment eligibility enters an extension of the program end form, are caused by: date in SEVIS after the end date noted verification (Form I–9) under 8 CFR (1) Compelling academic reasons, 274a.2(b)(1)(v), for on-campus on the most recent Form I–20 or such as inability to take the required successor form, the alien must file a employment and severe economic classes in his or her major due to over- hardship employment authorization request for reinstatement of F–1 status enrollment, changes of major or research in the manner and on the form resulting from emergent circumstances topics, or unexpected research under paragraph (f)(5)(v) of this section, designated by USCIS, with the required problems. Unexpected research fee, including any biometrics required the alien’s Form I–94 (or successor problems are those caused by an form) or Employment Authorization by 8 CFR 103.16. F–2 dependents unexpected change in faculty advisor, seeking to accompany the F–1 principal Document (Form I–766, or successor need to refine investigatory topic based form) based on severe economic student must file applications for an on initial research, research funding extension of stay or reinstatement, as hardship, when combined with a notice delays, and similar issues. Delays issued by USCIS indicating receipt of a applicable. including, but not limited to those (iv) Form. To request an extension of timely filed extension of stay caused by academic probation or stay, applicants must file an extension application, is considered unexpired for suspension, or where a student whose of stay application on the form and in 180 days or until USCIS issues a pattern of behavior demonstrates a the manner designated by USCIS, decision on the extension of stay repeated inability or unwillingness to including submitting the updated, application, or for severe economic complete his or her course of study, properly endorsed Form I–20 or hardship employment based on such as failing classes, are not successor form, submitting evidence of emergent circumstances, the end date acceptable reasons for extensions of a sufficient funds to cover expenses, stated in the Federal Register notice current program and corresponding appearing for any biometrics collection announcing suspension of certain extension of stay; required by 8 CFR 103.16, and remitting requirements, whichever is less. (2) A documented illness or medical the appropriate fee. * * * * * condition. A documented illness or (v) Timely filing. An extension of stay (7) Extension of stay applications—(i) medical condition is a compelling application is considered timely filed if General. A program end date as medical reason, such as a serious injury, the receipt date, pursuant to 8 CFR indicated on Form I–20, or successor that is supported by medical 103.2(a)(7), is on or before the date the form, standing alone, does not allow documentation from a licensed medical authorized period of admission expires, aliens with F status to remain in the doctor, doctor of osteopathy, or licensed which includes the 30-day period United States in lawful status. Aliens in clinical psychologist; or provided in paragraph (f)(5)(iv) of this F–1 status must apply for an extension (3) Circumstances beyond the section. USCIS must receive the of stay to receive an additional student’s control, including a natural extension application before the admission period as stated on Form I– disaster, national health crisis, or the expiration of the authorized period of 94, or successor form, if needed to closure of an institution. admission, including the 30-day period complete the course of study, engage in (C) Timely requested extension of provided in paragraph (f)(5)(iv) of this optional practical training pursuant to current program end date and extension section allowed after the completion of paragraph (f)(10)(ii) of this section, or to of F–1 status. To obtain a new program studies or any authorized practical start a new program through the new end date reflected on an updated Form training. If the extension of stay program end date indicated on Form I– I–20, or successor form, aliens must application is received during the 30- 20, or successor form. If a DSO extends request their DSO to make such a day period provided in paragraph an alien’s program end date for any recommendation through SEVIS. The (f)(5)(iv) of this section, the alien in F– reason, the alien must apply to USCIS DSO may recommend an extension of 1 status is authorized to continue a full for an extension of stay. the program end date in SEVIS only if course of study but may not continue or * * * * * the alien requested the recommendation begin engaging in practical training or (iii) Extension of current program and before the program end date noted on other employment. extension of F–1 status—(A) Failure to the most recent Form I–20, or successor (vi) Length of extensions. Extensions meet program end date. USCIS may form. If the DSO recommends an of stay may be granted for up to the grant an extension of stay to an alien extension of the program end date, then period of time needed to complete the

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program or requested practical training, transferring out of the school that transfer in school must update SEVIS to not to exceed 4 years, unless the alien recommended OPT or the date the OPT reflect the student’s registration and is a border commuter, enrolled in authorization ends, whichever is earlier. current address, thereby acknowledging language training or a public high (ii) An alien who is not maintaining that the student has completed the school, or paragraph (f)(20) of this F–1 status, including because he or she transfer process. In the remarks section section applies, in which case the failed to pursue a full course of study of the student’s Form I–20, the DSO restrictions of paragraphs (f)(5)(i) and at the school that he or she was last must note that the transfer has been (f)(18) and (20) of this section will authorized to attend, is ineligible to completed, including the date, and govern the new admission period and change educational levels or transfer return the form to the student. The attendant employment authorization. and must either depart immediately, or transfer is effected when the transfer-in (vii) Dependents. Dependent F–2 apply for reinstatement under the school notifies SEVIS that the student spouses and children seeking to provisions of paragraph (f)(16) of this has enrolled in classes in accordance accompany the principal F–1 student section, if eligible. Academic probation, with the 30 days required by 8 CFR during the additional period of suspension, or a pattern of student 214.3(g)(3)(iii). admission must either be included on behavior demonstrating a repeated (iv) F–1 transfer students must report the primary applicant’s request for inability or unwillingness toward to the transfer in DSO no later than 15 extension of stay or file their own completing his or her course of study, days after their Program Start Date. No extension of stay applications on the such as failing grades, resulting in the later than 30 days after the Initial form designated by USCIS, including student failing to carry a full course of Session Start Date as listed in SEVIS, any biometrics required by 8 CFR study, are not acceptable reasons for the transfer-in DSO must: 103.16. USCIS must receive the failing to pursue a full course of study, (A) Register the student in SEVIS, if extension of stay applications before the unless the student was previously the student enrolls at the transfer in expiration of the previously authorized authorized for a reduced course load school; or period of admission, including the 30- pursuant to paragraph (f)(6)(iii) of this (B) Terminate the student’s record in day period following the completion of section. SEVIS, if the student does not enroll. the course of study, as indicated on the (iii) To transfer schools, the alien (v) If the new program to which the F–2 dependent’s Form I–94, or must first notify the school he or she is student transferred will not be successor form. The F–2 dependent attending (‘‘transfer out school’’) of the completed within the authorized must demonstrate the qualifying intent to transfer, then obtain a valid admission period established in relationship with the principal F–1 Form I–20, or successor form, from the paragraph (f)(5)(i) or (f)(20) of this student, be maintaining his or her school to which he or she intends to section, the F–1 student must apply to status, and must not have engaged in transfer (‘‘transfer in school’’). Upon USCIS for an extension of stay in the any unauthorized employment. notification by the student, the transfer manner and on the form designated by Extensions of stay for F–2 dependents out school will update the student’s USCIS, with the required fee and in may not exceed the authorized record in SEVIS as a ‘‘transfer out’’ and accordance with form instructions, admission period of the principal F–1 indicate the transfer in school and a including any biometrics required by 8 student. release date. The release date will be the CFR 103.16, together with a valid, (viii) Denials. If an alien’s extension current semester or session completion properly endorsed Form I–20 indicating of stay application is denied and the date, or the date of expected transfer if the new program end date. alien’s authorized admission period has earlier than the established academic (9) * * * expired, the alien and his or her cycle. The transfer out school will retain (i) On-campus employment. On- dependents must immediately depart control over the student’s record in campus employment must either be the United States. SEVIS until the student completes the performed on the school’s premises, (8) School transfer and change in current term or reaches the release date, (including on-location commercial firms educational level. (i) An alien in F–1 whichever is earlier. At the request of that provide services for students on status may change educational levels or the student, the DSO of the current campus, such as the school bookstore or transfer to SEVP-certified schools if he school may cancel the transfer request at cafeteria), or at an off-campus location or she is maintaining status as described any time prior to the release date. As of that is educationally affiliated with the in paragraphs (f)(5)(ii)(A) through (C) of the release date specified by the current school. Employment with on-site this section. An alien seeking a transfer DSO, the transfer in school will be commercial firms, such as a to another SEVP-certified school, or to granted full access to the student’s construction company building a school a different campus at the same school, SEVIS record and then becomes building, which do not provide direct must follow the notification procedure responsible for that student. The student services is not deemed on- prescribed in paragraph (f)(8)(iii) of this transfer out school conveys authority campus employment for the purposes of section. Aliens in F–1 status changing and responsibility over that student to this paragraph. In the case of off-campus educational levels or transferring to an the transfer in school and will no longer locations, the educational affiliation SEVP-certified school also must meet have full SEVIS access to that student’s must be associated with the school’s the following requirements: record. As such, a transfer request may established curriculum or related to (A) The alien will begin classes at the not be cancelled by the transfer out DSO contractually funded research projects transfer school or program within 5 after the release date has been reached. at the post-graduate level. In any event, months of transferring out of the current After the release date, the transfer in the employment must be an integral part school or within 5 months of the DSO must complete the transfer of the of the student’s educational program. program completion date on his or her student’s record in SEVIS and may issue Employment authorized under this current Form I–20, or successor form, a Form I–20. The student is then paragraph must not exceed 20 hours a whichever is earlier. required to contact the DSO at the week while school is in session, unless (B) If the alien is authorized to engage transfer in school within 15 days of the DHS suspends the applicability of this in post-completion optional practical program start date listed on the Form I– limitation due to emergent training (OPT), he or she must be able 20. Upon notification that the student is circumstances by means of publication to resume classes within 5 months of enrolled in classes, the DSO of the of a document in the Federal Register,

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the student demonstrates to the DSO employers through cooperative recommendation, the DSO will provide that the employment is necessary to agreements with the school. Aliens in the alien a signed Form I–20, or avoid severe economic hardship F–1 status who have received 1 year or successor form, indicating that resulting from the emergent more of full time curricular practical recommendation. circumstances, and the DSO notates the training are ineligible for post- (A) Applications for employment Form I–20 in accordance with the completion academic training. authorization. An alien in F–1 status Federal Register document. However, Exceptions to the one academic year must properly file an application for an alien in F–1 status or in a period of requirement are provided for students employment authorization, on the form authorized stay during a pending F–1 enrolled in graduate studies that require and in the manner designated by USCIS, extension of stay application may work immediate participation in curricular with the required fee, as described in on campus full-time when school is not practical training. A request for the form’s instructions, including in session or during the annual authorization for curricular practical submitting a valid, properly endorsed vacation. An alien in F–1 status or in a training must be made to the DSO. An Form I–20 for OPT and other supporting period of authorized stay during a alien may begin curricular practical documents. pending F–1 extension of stay training only after receiving his or her (B) Filing deadlines for pre- application who has been issued a Form Form I–20 with the DSO endorsement. completion OPT and post-completion I–20 to begin a new program in Curricular practical training may not be OPT—(1) Pre-completion OPT. For pre- accordance with the provision of 8 CFR granted for a period exceeding the completion OPT, the alien in F–1 status 214.3(k) and who intends to enroll for alien’s fixed date of admission as noted may properly file his or her application the next regular academic year, term, or on his or her Form I–94, or successor for employment authorization up to 120 session at the institution that issued the form. If applicable, an alien described days before being enrolled for one full Form I–20 may continue on-campus under paragraph (f)(5)(vii) of this academic year, provided that the period employment incident to status but may section, must not engage in curricular of employment will not start prior to the not work beyond the fixed date of practical training until USCIS approves completion of the first full academic admission as noted on his or her Form his or her extension of stay application. year. (2) Post-completion OPT. For post- I–94, or successor form. An alien in F– (A) [Reserved] completion OPT, not including a 24- 1 status or in a period of authorized stay (B) SEVIS process. To grant month OPT extension under paragraph during a pending F–1 extension of stay authorization for a student to engage in (f)(10)(ii)(C)(2) of this section, the alien application may not engage in on- curricular practical training, a DSO at a in F–1 status must file his or her campus employment after completing a SEVIS school will update the student’s extension of stay and employment course of study, except employment for record in SEVIS as being authorized for authorization application with USCIS practical training as authorized under curricular practical training that is up to 120 days prior to his or her directly related to the student’s major paragraph (f)(10) of this section. An program end date and no later than 30 alien in F–1 status or in a period of area of study. The DSO will indicate days after his or her program end date. authorized stay during a pending F–1 whether the training is full-time or part- (C) Applications and filing deadlines extension of stay application may time, the employer and location, and the for 24-month OPT extension—(1) engage in any on-campus employment employment start and end date. The Application. An alien in F–1 status authorized under this paragraph that DSO will then print a copy of the meeting the eligibility requirements for will not displace United States workers. employment page of the SEVIS Form I– a 24-month OPT extension under In the case of a transfer in SEVIS, the 20 indicating that curricular practical paragraph (f)(10)(ii)(C) of this section to alien may only engage in on-campus training has been approved. The DSO engage in STEM OPT must file an employment at the school having must sign, date, and return the SEVIS extension of stay application under jurisdiction over the student’s SEVIS Form I–20 to the student prior to the paragraph (f)(7) of this section and an record. Upon initial entry to begin a student’s commencement of application for employment new course of study, such aliens may employment. authorization on the form designated by not begin on-campus employment more (ii) * * * USCIS with the required fees and in than 30 days prior to the actual start of (D) Extension of stay for post- accordance with form instructions. classes. If applicable, an alien described completion OPT. An alien in F–1 status (2) Filing deadline. An alien in F–1 in paragraph (f)(5)(vii) of this section, recommended for post-completion OPT status may file the application for STEM whose timely filed applications for an must apply for an extension of stay and OPT employment authorization up to extension of stay and employment employment authorization and may not 120 days prior to the expiration date of authorization (if required) are pending engage in post-completion OPT unless the alien’s current OPT employment may engage in on-campus employment such employment authorization is authorization and after the DSO enters for a period not to exceed 180 days, or granted. If the application for an the STEM OPT recommendation into until USCIS approves his or her extension of stay and post-completion the student’s SEVIS record. applications, whichever is earlier. OPT are granted, the alien will receive (3) Extension of OPT. If an alien * * * * * an additional 30-day period provided in timely and properly files an application (10) * * * paragraph (f)(5)(iv) of this section for STEM OPT employment (i) Curricular practical training. An following the expiration of the status authorization and timely and properly alien in F–1 status may be authorized by approved to complete post-completion requests a DSO recommendation, the DSO to participate in a curricular OPT. including by submitting the fully practical training program that is an * * * * * executed Form I–983, Training Plan for integral part of an established (11) * * * STEM OPT Students, or successor form, curriculum. Curricular practical training (i) Applicant responsibilities. An alien to his or her DSO, but the Form I–766, is defined to be alternative work/study, in F–1 status must initiate the OPT Employment Authorization Document internship, cooperative education, or application process by requesting a or successor form, currently in the any other type of required internship or recommendation for OPT from his or alien’s possession expires before USCIS practicum that is offered by sponsoring her DSO. Upon making the issues a decision on the alien’s STEM

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OPT employment application, the United States at the time of the alien’s (3) Admission. (i) Generally, aliens alien’s Form I–766, or successor form, is admission in F–1 status or at the time seeking admission in I status may be extended automatically pursuant to the the alien files an application for an admitted for a period of time necessary terms and conditions specified in 8 CFR extension of or change to F–1 status to complete the planned activities or 274a.12(b)(6)(iv). with USCIS; are in compliance with all assignments consistent with the I * * * * * requirements of the E-Verify program, classification, not to exceed 240 days (18) * * * including but not limited to verifying unless paragraph paragraph (i)(3)(ii) of (iii) Period of admission. An alien the employment eligibility of newly this section applies. with F–1 nonimmigrant status who is hired employees in the United States; (ii) Foreign nationals travelling on a admitted as a border commuter student and continue to be participants in good passport issued by the People’s under this paragraph (f)(18) will be standing in E-Verify at any time during Republic of China (with the exception of admitted until a date certain. The DSO which the alien is pursuing a full-course Macau Special Administrative Region is required to specify a completion date of study at the educational institution; passport holders) or Hong Kong Special on the Form I–20 that reflects the actual or Administrative Region passport holders: semester or term dates for the commuter (iv) Language training programs. The An alien who presents a passport from student’s current term of study. A new student is attending an English language the People’s Republic of China (with the Form I–20 will be required for each new training program, which does not lead exception of Macau Special semester or term that the alien attends to a degree. Administrative Region passport holders) at the school. (v) Alien with a 4-year period of or an alien who is a Hong Kong Special Administrative Region passport holder, * * * * * admission who becomes subject to a 2- year maximum period of admission. If may be admitted until the activities or (20) Limitations on period of assignments consistent with the I admission. Subject to the discretion of an alien was admitted in F status for a 4-year period of admission, but a new classification are completed, not to the Secretary of Homeland Security, exceed 90 days. aliens with F–1 status in the following Federal Register Notice is subsequently published according to paragraph (4) Change in activity. Aliens categories may only be admitted for up admitted pursuant to section to 2 years, or the program end date as (f)(20)(i) of this section that would subject the alien to the 2-year maximum 101(a)(15)(I) of the Act may not change stated on the Form I–20, whichever is the information medium or employer shorter, and may be eligible for period of admission, then the alien may remain in the United States for the until they obtain permission from extensions of stay for additional periods USCIS. Aliens must request permission of up to 2 years each, or until the remainder of the 4-year period. However, if the alien departs the United by submitting the form designated by program end date, whichever is shorter. USCIS, in accordance with that form’s States or otherwise must apply for These categories of 2-year maximum instructions, and with the required fee, admission or extension of stay, that period of admission are: including any biometrics required by 8 alien will become subject to the 2-year (i) Certain countries and U.S. national CFR 103.16, as appropriate. interest. Aliens who were born in or are limitation. (5) Extensions of stay. (i) Aliens in I citizens of countries listed on the State (21) Severability. The provisions in 8 status may be eligible for an extension Sponsor of Terrorism List, or who are CFR 214.2(f) are intended to be of stay of up to 240 days (90 days for citizens of countries with a student and independent severable parts. In the aliens who present a passport issued by exchange visitor total overstay rate event that any provision in this the People’s Republic of China or Hong greater than ten percent according to the paragraph is not implemented, DHS Kong Special Administrative Region most recent DHS Entry/Exit Overstay intends that the remaining provisions be passport holders, with the exception of report. DHS will publish a document in implemented as an independent rule. Macau Special Administrative Region the Federal Register listing the * * * * * passport holders) or until the activities countries or circumstances which fall (i) Representatives of information or assignments consistent with the I into the categories in this paragraph media—(1) Foreign Media Organization. classification are completed; whichever making aliens in F–1 status subject to A foreign information media date is earlier. To request an extension the 2 year maximum period of organization is an organization engaged of stay, aliens in I status must file an admission, and any other such in the regular gathering, production or application to extend their stay by circumstances that may serve the U.S. dissemination via print, radio, submitting the form designated by national interest. Changes to the list will television, internet distribution, or other USCIS, in accordance with that form’s be made by the publication of a new media, of journalistic information and instructions, and with the required fee, Federal Register document; has a home office in a foreign country. including any biometrics required by 8 (ii) Unaccredited institutions. The (2) Evidence. Aliens applying for I CFR 103.16, as appropriate. An alien alien has been accepted to and attends nonimmigrant status must: whose I status, as indicated on Form I– a post-secondary educational institution (i) Demonstrate that the foreign media 94, has expired but who has timely filed not accredited by an accrediting agency organization that the alien represents an extension of stay application is recognized by the Secretary of has a home office in a foreign country, authorized to continue engaging in Education; and that the home office will continue activities consistent with the I (iii) E-Verify participation. The alien to operate in the foreign country while classification on the day after the Form has been accepted to and attends an they are in the United States; and I–94 expired, for a period of up to 240 educational institution that is not (ii) Provide a letter from the days, as provided in 8 CFR enrolled in E-Verify, or if enrolled, is employing foreign media organization 274a.12(b)(20). Such authorization may not a participant in good standing in E- or, if self-employed or freelancing, an be subject to any conditions and Verify as determined by USCIS. attestation from the alien, that verifies limitations of the initial authorization. Educational institutions that are the employment, establishes that they (ii) Notwithstanding paragraph participants in good standing in the E- are representatives of that media (i)(5)(i) of this section and 8 CFR Verify program are: Enrolled in E-Verify organization, and describes the 274a.12(b)(20), an alien in I status who with respect to all hiring sites in the remuneration and work to be performed. is described in paragraph (i)(3)(ii) of this

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section whose status, as indicated on (A) Form. To request an extension of employment if authorized by USCIS. Form I–94, has expired but who has stay, an alien in J status must file an The employment authorization is valid timely filed an extension of stay extension of stay application on the only if the J–1 is maintaining status. An application is authorized to continue form and in the manner designated by application for employment engaging in activities consistent with USCIS, including submitting the valid authorization must be filed in the the I classification on the day after the Form DS–2019 or successor form, manner prescribed by USCIS, together Form I–94 expired, for a period of up to appearing for any biometrics collection with the required fee and any additional 90 days. Such authorization may be required by 8 CFR 103.16, and remitting evidence required in the filing subject to any conditions and the appropriate fee. instructions. Income from the J–2 limitations of the initial authorization. (B) Timely filing. An application is dependent’s employment may be used (6) Denials. If an alien’s extension of considered timely filed if the receipt to support the family’s customary stay application is denied and the date is on or before the date the recreational and cultural activities and alien’s authorized admission period has authorized admission period expires. related travel, among other things. expired, the alien and his or her USCIS must receive the extension of Employment will not be authorized if dependents must immediately depart stay application before the expiration of this income is needed to support the J– the United States. the authorized period of admission, 1 principal exchange visitor. If the (7) Severability. The provisions in this including the 30-day period of requested period of employment paragraph (i) are intended to be preparation for departure allowed after authorization exceeds the current independent severable parts. In the the completion of the program. If the admission period, the J–2 dependent event that any provision in this extension application is received during must file an extension of stay paragraph is not implemented, DHS the 30-day period provided in paragraph application, in addition to the intends that the remaining provisions be (j)(1)(ii)(C) of this section following the application for employment implemented as an independent rule. completion of the exchange visitor authorization, in the manner designated (j) Exchange visitors. program, the alien in J–1 status may by USCIS, with the required fee and in (1) * * * continue to participate in his or her accordance with form instructions. (ii) Admission period and period of exchange visitor program. (vi) Extension of J–1 stay and grant of stay—(A) J–1 exchange visitor. A J–1 (C) Length of extensions. Extensions employment authorization for aliens exchange visitor may be admitted for of stay may be granted for a period up who are the beneficiaries of a cap- the duration of the exchange visitor to the length of the program, not to subject H–1B petition. USCIS may, by program, as stated by the program end exceed 4 years, unless the J–1 exchange notice in the Federal Register, at any date noted on Form DS–2019, or visitor is subject to paragraph (j)(6) of time it determines that the H–1B successor form, not to exceed a period this section or otherwise restricted by numerical limitation as described in of 4 years, unless subject to paragraph regulations at 22 CFR part 62. section 214(g)(1)(A) of the Act will (j)(6) of this section. If paragraph (j)(6) (D) Dependents. Dependent J–2 likely be reached prior to the end of a of this section applies, the admission spouses and children seeking to current fiscal year, extend for such a period will be governed by the accompany the J–1 exchange visitor period of time as deemed necessary to limitations of paragraph (j)(6) of this during the additional period of complete the adjudication of the H–1B section. admission must either be included on application, the status of any J–1 alien (B) J–2 accompanying spouse and the primary applicant’s request for on behalf of whom an employer has dependent. The authorized period of extension or file their own extension of timely filed an application for change of initial admission for J–2 dependents is stay applications on the form designated status to H–1B. The alien, in accordance subject to the same requirements as the by USCIS, including any biometrics with 8 CFR part 248, must not have J–1 exchange visitor and may not exceed required by 8 CFR 103.16. USCIS must violated the terms of his or her the period of authorized admission of receive the extension of stay nonimmigrant stay and not be subject to the principal J–1 exchange visitor. applications before the expiration of the the 2-year foreign residence requirement (C) Period of stay. A J–1 exchange previously authorized period of at 212(e) of the Act. Any J–1 student visitor and J–2 spouse and children may admission, including the 30-day period whose status has been extended shall be be admitted for a period up to 30 days following the completion of the program considered to be maintaining lawful before the report date or start of the provided in paragraph (j)(1)(ii)(C) of this nonimmigrant status for all purposes approved program listed on Form DS– section, as indicated on the J–2 under the Act, provided that the alien 2019, or successor form, plus a period dependent’s Form I–94, or successor does not violate the terms and of 30 days at the end of the program for form. J–2 dependents must demonstrate conditions of his or her J nonimmigrant the purposes of departure, as provided the qualifying relationship with the stay. An extension made under this by this paragraph (j)(1)(ii)(C), or to principal J–1 exchange visitor, be paragraph also applies to the J–2 otherwise maintain status. maintaining status, and not have dependent alien. * * * * * engaged in any unauthorized (vii) Pending extension of stay (iv) Extension of stay. A future employment. Extensions of stay for J–2 applications and employment program end date as indicated on the dependents may not exceed the authorization. (A) An alien whose J–1 Form DS–2019, or successor form, authorized admission period of the status, as indicated on Form I–94, has standing alone, does not allow aliens principal J–1 exchange visitor. expired but who has timely filed an with J status to remain in the United (E) Denials. If an alien’s extension of extension of stay application is States in lawful status. If a sponsor stay application is denied, and the authorized to continue engaging in issues a Form DS–2019 or successor alien’s authorized admission period has activities consistent with pursuing the form extending an alien’s program end expired, he or she and his or her terms and conditions of the alien’s date for any reason, or the alien requires dependents must immediately depart program objectives and including an additional admission period to the United States. authorized training beginning on the complete his or her program, the alien (v) Employment of J–2 dependents. day after the admission period expires, must apply to USCIS for an extension of The spouse or minor children of a J–1 for a period of up to 240 days as stay. exchange visitor may only engage in provided in 8 CFR 274a.12(b)(20). Such

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authorization may be subject to any (6) Limitations on length of States or otherwise must apply for conditions and limitations of the initial admission. Subject to the discretion of admission or extension of stay, that authorization. the Secretary of Homeland Security, in alien will become subject to the 2-year (B) An Arrival-Departure Record consultation with the Secretary of State, limitation. (Form I–94 or successor form) is a J–1 exchange visitor in the following (7) Severability. The provisions in this considered unexpired when combined categories may be admitted for a period paragraph (j) are intended to be with a USCIS receipt notice indicating of up to the length of the exchange independent severable parts. In the receipt of a timely filed extension of visitor program as stated on the Form event that any provision in this stay application and a valid Form DS– DS–2019 or up to 2 years, whichever is paragraph is not implemented, DHS 2019, or successor form, indicating the shorter, and may be eligible to apply for intends that the remaining provisions be duration of the program. An application extensions of stay for additional periods implemented as an independent rule. is considered timely filed if the receipt of up to 2 years each, until the end date * * * * * notice for the application is on or before of the exchange visitor program. These the date the admission period expires. categories of 2-year periods of PART 248—CHANGE OF Such extension may not exceed the admission are: NONIMMIGRANT CLASSIFICATION earlier of 240 days, as provided in 8 CFR (i) Certain countries and U.S. national ■ 274a.12(b)(20), or the date of denial of interest. Exchange visitors who were 4. The authority citation for part 248 the alien’s application for an extension born in or are citizens of countries listed continues to read as follows: of stay. in the State Sponsor of Terrorism List or Authority: 8 U.S.C. 1101, 1103, 1184, (C) An alien in J–2 status whose who are citizens of countries with a 1258; 8 CFR part 2. student and exchange visitor total admission period has expired (as ■ 5. Section 248.1 is amended: overstay rate greater than ten percent indicated on his or her Form I–94) may ■ a. By redesignating paragraphs (e) and according to the most recent DHS Entry/ not engage in employment until USCIS (f) as paragraphs (g) and (h), Exit Overstay report. DHS will publish approves his or her application for respectively, and adding new a document in the Federal Register employment authorization. paragraphs (e) and (f); listing the countries or circumstances (viii) Use of SEVIS. The use of the ■ b. In newly redesignated paragraph (g) making aliens in J–1 status subject to the Student and Exchange Visitor by removing the words ‘‘A district factors listed in this paragraph and such Information System (SEVIS) is director shall’’ and adding in their place mandatory for designated program other factors that may serve the U.S. national interest. Changes to the list will ‘‘USCIS will’’; and sponsors. All designated program ■ be made by a new Federal Register c. In the first and second sentences of sponsors must issue a SEVIS Form DS– newly redesignated paragraph (h) by 2019 to any exchange visitor requiring document; or (ii) E-Verify participation. The J removing the word ‘‘shall’’ and adding a reportable action (e.g., program exchange visitor is participating in an in its place ‘‘will’’. extensions and requests for employment exchange visitor program whose The additions read as follows: authorization), or for any aliens who sponsor is not enrolled in E-Verify, or if must obtain a new nonimmigrant J visa. § 248.1 Eligibility enrolled, is not a participant in good As of 2003, the records of all current or * * * * * standing in E-Verify as determined by continuing exchange visitors must be (e) Admission of aliens under section USCIS. A sponsor is a participant in entered in SEVIS. 101(a)(15)(F) and (J) previously granted good standing in the E-Verify program if (ix) Current name and address. A J– duration of status—Aliens who were it has enrolled in E-Verify with respect 1 exchange visitor must inform USCIS to all hiring sites in the United States at granted a change to F or J status prior and the responsible officer of the the time of the exchange visitor’s to [EFFECTIVE DATE OF FINAL RULE] exchange visitor program of any legal admission in J–1 status or filing of an and who departed the United States and changes to his or her name or of any application for extension of or change to are applying for admission on or after change of address, within 10 calendar J–1 status with USCIS, is in compliance [EFFECTIVE DATE OF FINAL RULE] days of the change, in a manner with all requirements of the E-Verify will be inspected and may be admitted prescribed by the program sponsor. A J– program, including but not limited to into the United States up to the program 1 exchange visitor enrolled in a SEVIS verifying the employment eligibility of end date as noted on the Form I–20 or program can satisfy the requirement in newly hired employees in the United DS–2019 that accompanied the change 8 CFR 265.1 of notifying USCIS by States; and continues to be a participant of status application that was approved providing a notice of a change of in good standing in E-Verify at any time prior to the alien’s departure, not to address within 10 calendar days to the during which the J–1 exchange visitor is exceed a period of 4 years, unless responsible officer, who in turn shall participating in an exchange visitor subject to 8 CFR 214.2(f)(20) or (j)(6). To enter the information in SEVIS within program at the organization. be admitted into the United States, all 10 business days of notification by the (iii) Alien with a 4-year period of aliens must be eligible for the requested exchange visitor. In cases where an admission who becomes subject to a 2- status and possess the proper exchange visitor provides the sponsor a year maximum period of admission. If documentation including a valid mailing address that is different than his an alien in J status was originally passport, valid nonimmigrant visa, if or her actual physical address, he or she admitted for a 4-year period of required, and valid Form I–20 or Form is responsible to provide the sponsor his admission, but a new Federal Register DS–2019, or successor form. or her actual physical location of document is subsequently published (f) Abandonment of change of status residence. The exchange visitor program according to paragraph (j)(6)(i) of this application. If an alien timely files an sponsor is responsible for maintaining a section that would subject the alien to application to change to another record of, and must provide upon the 2-year maximum period of nonimmigrant status but departs the request from USCIS, the actual physical admission, then the alien may remain in United States while the application is location where the exchange visitor the United States for the remainder of pending, USCIS will consider the resides. the 4-year period. However, if the J–1 change of status application abandoned. * * * * * exchange visitor departs the United * * * * *

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PART 274a—CONTROL OF after having been enrolled full-time in a 214.2(i). An alien in this status may be EMPLOYMENT OF ALIENS SEVP-certified institution for one full employed pursuant to the requirements academic year. Curricular practical of 8 CFR 214.2(i). Employment ■ 6. The authority citation for part 274a training (part-time or full-time) is authorization does not extend to the continues to read as follows: authorized by the Designated School dependents of a foreign information Authority: 8 U.S.C. 1101, 1103, 1324a; 48 Official on the student’s Form I–20, or media representative. U.S.C. 1806; 8 CFR part 2; Pub. L. 101–410, successor form. Curricular practical * * * * * 104 Stat. 890, as amended by Pub. L. 114– training terminates on the earlier of the 74, 129 Stat. 599. employment end date indicated on (c) * * * ■ 7. Section 274a.12 is amended by Form I–20, or successor form, or on the (3) * * * revising paragraphs (b)(6)(i), (iii), and alien’s fixed date of admission as noted (iii) Is seeking employment because of (v), (b)(10), and (c)(3)(iii) to read as on his or her Form I–94. If applicable, severe economic hardship pursuant to 8 follows: an alien described in 8 CFR CFR 214.2(f)(9)(ii)(C) and has an § 274a.12 Classes of aliens authorized to 214.2(f)(5)(vii) must not engage in Employment Authorization Document, accept employment. curricular practical training until USCIS Form I–766 or successor form, based on approves an alien’s extension of stay * * * * * severe economic hardship pursuant to 8 (b) * * * request. CFR 214.2(f)(9)(ii)(C), and whose timely (6) * * * * * * * * filed Application for Employment (i) On-campus employment for not (v) The beneficiary of an H–1B Authorization, Form I–765 or successor more than 20 hours per week when petition and change of status request as form, and Application to Extend/Change school is in session or full-time described in 8 CFR 214.2(f)(5)(vi)(A) Nonimmigrant Status, Form I–539 or employment when school is not in and whose status and employment successor form, are pending, is session if the student intends and is authorization have been extended authorized to engage in employment eligible to register for the next term or pursuant to 8 CFR 214.2(f)(5)(vi). These beginning on the expiration date of the semester. Part-time on-campus aliens are authorized to continue Employment Authorization Document employment is authorized by the employment with the same employer issued under paragraph (c)(3)(i)(B) of school. On-campus employment beginning on the date of the expiration this section and ending on the date of terminates on the alien’s fixed date of of the authorized period of admission USCIS’ written decision on the current admission as noted on his or her Form until April 1 of the fiscal year for which Application for Employment I–94. If applicable, the employment H–1B status is requested. Such Authorization, Form I–765 or successor authorization of an alien described in 8 authorization will be subject to any form, but not to exceed 180 days. For CFR 214.2(f)(5)(vii) may be conditions and limitations noted on the this same period, such Employment automatically extended for up to 180 initial authorization. Such Authorization Document, Form I–766 or days, or until authorized by USCIS, authorization, however, will successor form, is automatically whichever is earlier. In cases where the automatically terminate upon the extended and is considered unexpired employment is authorized pursuant to 8 notification date in the denial decision when combined with a Certificate of CFR 214.2(f)(5)(v), the validity of the if USCIS denies the H–1B petition or Eligibility for Nonimmigrant (F–1/M–1) employment authorization is provided request for change of status. If USCIS Students, Form I–20 or successor form, by notice in the Federal Register and approves the H–1B petition and endorsed by the Designated School indicated by a Certificate of Eligibility associated change of status request, and Official recommending such an for Nonimmigrant (F–1/M–1) Students, the change of status will take effect prior extension. Form I–20 or successor form, endorsed to April 1 of the fiscal year for which * * * * * by the Designated School Official H–1B status was requested, such recommending such an extension. authorization will automatically Chad R. Mizelle, * * * * * terminate on the date that the change of Senior Official Performing the Duties of the (iii) Curricular practical training status takes effect. General Counsel, U.S. Department of (internships, cooperative training * * * * * Homeland Security. programs, or work-study programs that (10) A foreign information media [FR Doc. 2020–20845 Filed 9–24–20; 8:45 am] are part of an established curriculum) representative (I), pursuant to 8 CFR BILLING CODE 9111–28–P

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Part III

Department of Labor

Wage and Hour Division 29 CFR Parts 780, 788, and 795 Independent Contractor Status Under the Fair Labor Standards Act; Proposed Rule

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DEPARTMENT OF LABOR Federal eRulemaking Portal at http:// employer—i.e., the putative employer or www.regulations.gov. alleged employer—and have developed Wage and Hour Division FOR FURTHER INFORMATION CONTACT: a multifactor test to analyze whether a Amy DeBisschop, Division of worker is an employee or an 29 CFR Parts 780, 788, and 795 Regulations, Legislation, and independent contractor under the FLSA. The ultimate inquiry is whether, as a RIN 1235–AA34 Interpretation, Wage and Hour Division (WHD), U.S. Department of Labor, Room matter of economic reality, the worker is Independent Contractor Status Under S–3502, 200 Constitution Avenue NW, dependent on a particular individual, the Fair Labor Standards Act Washington, DC 20210; telephone: (202) business, or organization for work (and 693–0406 (this is not a toll-free is thus an employee) or is in business AGENCY: Wage and Hour Division, number). Copies of this Notice of for him- or herself (and is thus an Department of Labor. Proposed Rulemaking (NPRM) may be independent contractor). But the test’s ACTION: Notice of proposed rulemaking obtained in alternative formats (Large underpinning and the process for its application lack focus and have not and request for comments. Print, Braille, Audio Tape or Disc), upon always been sufficiently explained by request, by calling (202) 693–0675 (this SUMMARY: The U.S. Department of Labor courts or the Department, resulting in is not a toll-free number). TTY/TDD (the Department) is revising its uncertainty among the regulated callers may dial toll-free 1–877–889– interpretation of independent contractor community. The Department believes 5627 to obtain information or request status under the Fair Labor Standards that clear articulation will lead to materials in alternative formats. Act (FLSA or Act) in order to promote Questions of interpretation and/or increased precision and predictability in certainty for stakeholders, reduce enforcement of the agency’s regulations the economic reality test’s application, which will in turn benefit workers and litigation, and encourage innovation in may be directed to the nearest WHD businesses and encourage innovation the economy. district office. Locate the nearest office and flexibility in the economy. DATES: Submit written comments on or by calling WHD’s toll-free help line at before October 26, 2020. Accordingly, in this Notice of (866) 4US–WAGE ((866) 487–9243) Proposed Rulemaking (NPRM) the ADDRESSES: You may submit comments, between 8 a.m. and 5 p.m. in your local Department proposes to introduce a new identified by Regulatory Information time zone, or logging onto WHD’s part to Title 29 of the Code of Federal Number (RIN) 1235–AA34, by either of website for a nationwide listing of WHD Regulations setting forth its the following methods: Electronic district and area offices at http:// interpretation of the FLSA as relevant to Comments: Submit comments through www.dol.gov/whd/america2.htm. the question whether workers are the Federal eRulemaking Portal at SUPPLEMENTARY INFORMATION: ‘‘employees’’ or are independent http://www.regulations.gov. Follow the I. Executive Summary contractors under the Act. The proposed instructions for submitting comments. regulations would adopt general Mail: Address written submissions to The FLSA requires covered employers interpretations to which courts and the Division of Regulations, Legislation, and to pay their nonexempt employees at Department have long adhered. For Interpretation, Wage and Hour Division, least the federal minimum wage for example, the proposed regulations U.S. Department of Labor, Room S– every hour worked and overtime pay for would explain that independent 3502, 200 Constitution Avenue NW, every hour worked over 40 in a contractors are workers who, as a matter Washington, DC 20210. Instructions: workweek, and mandates that of economic reality, are in business for Please submit only one copy of your employers keep certain records themselves as opposed to being comments by only one method. regarding their employees. A worker economically dependent on the Commenters submitting file attachments who performs services for an individual potential employer for work. The on www.regulations.gov are advised that or entity (‘‘person’’ as defined in the proposed regulations would also uploading text-recognized documents— Act) as an independent contractor, explain that the inquiry into economic i.e., documents in a native file format or however, is not that person’s employee dependence is conducted through documents which have undergone under the Act. Thus, the FLSA does not application of several factors, with no optical character recognition (OCR)— require such person to pay an one factor being dispositive, and that enable staff at the Department to more independent contractor either the actual practices are entitled to greater easily search and retrieve specific minimum wage or overtime pay, nor weight than what may be contractually content included in your comment for does it require that person to keep or theoretically possible. The consideration. Please be advised that records regarding that independent Department proposes to sharpen this comments received will become a contractor. The Act does not define the inquiry into five distinct factors, instead matter of public record and will be term ‘‘independent contractor,’’ but it of the five or more overlapping factors posted without change to http:// defines ‘‘employer’’ as ‘‘any person used by most courts and the Department www.regulations.gov, including any acting directly or indirectly in the previously. Moreover, consistent with personal information provided. All interest of an employer in relation to an the FLSA’s text, its purpose, and the comments must be received by 11:59 employee,’’ 29 U.S.C. 203(d), Department’s experience administrating p.m. on October 26, 2020 for ‘‘employee’’ as ‘‘any individual and enforcing it, the Department consideration in this rulemaking. employed by an employer,’’ id. at proposes that two of those factors—the Commenters should transmit comments 203(e), and ‘‘employ’’ as ‘‘includ[ing] to nature and degree of the worker’s early to ensure timely receipt prior to suffer or permit to work,’’ id. at 203(g). control over the work and the worker’s the close of the comment period, as the See also Fair Labor Standards opportunity for profit or loss—should be Department continues to experience Amendments of 1974, Public Law 93– more probative of the question of delays in the receipt of mail. Submit 259 (Apr. 8, 1974). Courts and the economic dependence or lack thereof, only one copy of your comments by Department have long interpreted the and thus are afforded greater weight in only one method. Docket: For access to ‘‘suffer or permit’’ standard to require an the analysis than any others. the docket to read background evaluation of the extent of the worker’s This proposed rule would be the documents or comments, go to the economic dependence on the potential Department’s sole and authoritative

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interpretation of independent contractor traditional agency principles FLSA’s ambit.’’); Hopkins v. status under the FLSA. As such, it exclusively to examine the hiring Cornerstone America, 545 F.3d 338, 342 would replace the Department’s party’s right to control the manner and (5th Cir. 2008) (observing that the previous interpretations of independent means by which the worker ‘‘FLSA applies to employees but not to contractor status under the FLSA in accomplishes his or her task. See independent contractors’’). certain contexts, including Nationwide Mut. Ins. Co. v. Darden, 503 Accordingly, the FLSA does not interpretations found at 29 CFR U.S. 318, 326 (1992) (‘‘[T]he FLSA . . . require any ‘‘person’’ to pay an 780.330(b) (interpreting independent defines the verb ‘employ’ expansively to independent contractor the minimum contractor status under the FLSA for mean ‘suffer or permit to work.’ This wage or overtime pay under sections tenants and sharecroppers) and 29 CFR . . . definition, whose striking breadth 6(a) and 7(a) or to keep records 788.16(a) (interpreting independent we have previously noted, stretches the regarding that independent contractor contractor status under the FLSA for meaning of ‘employee’ to cover some under section 11(c). certain forestry and logging workers). parties who might not qualify as such The Department believes this proposal B. Economic Dependence and the under a strict application of traditional Economic Reality Test will significantly clarify to stakeholders agency law principles.’’ (citations how to distinguish between employees omitted)); Walling v. Portland Terminal 1. Supreme Court Development of the and independent contractors under the Co., 330 U.S. 148, 150–51 (1947) (‘‘But Economic Reality Test Act and seeks comment on all aspects in determining who are ‘employees’ In a series of cases from 1944 to 1947, of this proposed rule. under the Act, common law employee the U.S. Supreme Court explored the This proposed rule is expected to be categories or employer-employee an Executive Order (E.O.) 13771 limits of the employer-employee classifications under other statutes are relationship under three different deregulatory action. Details on the not of controlling significance. This Act estimated increased efficiency and cost federal statutes: The FLSA, the National contains its own definitions, Labor Relations Act (NLRA), and the savings of this proposed rule can be comprehensive enough to require its found in the preliminary regulatory Social Security Act (SSA). application to many persons and In the first of those cases, NLRB v. impact analysis (PRIA) provided below working relationships, which prior to in section VI. Hearst Publications, Inc., 322 U.S. 111 this Act, were not deemed to fall within (1944), the Court considered the II. Background an employer-employee category.’’ meaning of ‘‘employee’’ under the (citations omitted)); Rutherford Food, A. Relevant FLSA Definitions NLRA, which merely defined the term 331 U.S. at 728 (‘‘The [FLSA] definition to ‘‘include any employee.’’ Id. at 118– Enacted in 1938, the FLSA requires, of ‘employ’ is broad.’’). 20. The Court explained that the among other provisions, that covered However, the Act’s ‘‘statutory meaning of employee ‘‘takes color from employers pay their nonexempt definition[s] . . . have [their] limits.’’ its surroundings . . . [in] the statute employees at least the federal minimum Tony & Susan Alamo Found. v. Sec’y of where it appears, and derives meaning wage for every hour worked and Labor, 471 U.S. 290, 295 (1985) (internal from the context of that statute, which overtime pay for every hour worked citation omitted); see also Portland must be read in the light of the mischief over 40 in a workweek, and mandates Terminal, 330 U.S. at 152 (‘‘The to be corrected and the end to be that employers keep certain records definition ‘suffer or permit to work’ was attained.’’ Id. at 124 (citations omitted). 1 regarding their employees. The FLSA obviously not intended to stamp all The Hearst Court rejected application of does not define the term ‘‘independent persons as employees.’’). For example, the common law standard alone, see id. contractor.’’ The Act defines the Supreme Court recognized not long at 123–25, and concluded that ‘‘the ‘‘employer’’ in section 3(d) to ‘‘include[ ] after the FLSA’s passage that, despite broad language of the [NLRA’s] any person acting directly or indirectly the Act’s broad definition of ‘‘employ,’’ definitions . . . leaves no doubt that its in the interest of an employer in relation ‘‘[t]here may be independent contractors applicability is to be determined to an employee,’’ ‘‘employee’’ in section who take part in production or broadly, in doubtful situations, by 3(e)(1) to mean ‘‘any individual distribution who would alone be underlying economic facts rather than employed by an employer,’’ and responsible for the wages and hours of technically and exclusively by ‘‘employ’’ in section 3(g) to include ‘‘to their own employees.’’ Rutherford Food, previously established legal suffer or permit to work.’’ 2 The 331 U.S. at 729. Accordingly, federal classifications.’’ Id. at 129. Congress’s Supreme Court has recognized that courts of appeals have uniformly held, reaction to Hearst’s interpretation of ‘‘there is in the [FLSA] no definition and the Department has consistently ‘‘employee’’ under the NLRA ‘‘was that solves problems as to the limits of maintained, that independent adverse,’’ and on June 23, 1947, the employer-employee relationship contractors are not ‘‘employees’’ for Congress amended the NLRA ‘‘with the under the Act.’’ Rutherford Food Corp. purposes of the FLSA. See, e.g., Saleem obvious purpose of hav[ing] the Board v. McComb, 331 U.S. 722, 728 (1947). The Supreme Court has held that the v. Corporate Transp. Group, Ltd., 854 and the courts apply general agency ‘‘suffer or permit’’ definition is broad on F.3d 131, 139–40 (2d Cir. 2017) (noting principles in distinguishing between its face and is more inclusive than the that independent contractors are employees and independent contractors common law standard for determining separate from employees in the context under the [NLRA].’’ NLRB v. United Ins. who is employed and thereby who is an of the FLSA); Karlson v. Action Process Co. of Am., 390 U.S. 254, 256 (1968). employee. The common law utilizes Serv. & Private Investigation, LLC, 860 On June 16, 1947, one week before F.3d 1089, 1092 (8th Cir. 2017) (‘‘FLSA Congress amended the NLRA to 1 See 29 U.S.C. 206(a), 207(a) (minimum wage wage and hour requirements do not abrogate Hearst, the Supreme Court and overtime pay requirements); 29 U.S.C. 211(c) apply to true independent decided United States v. Silk, 331 U.S. (recordkeeping requirements). contractors.’’); Scantland v. Jeffry 704 (1947), which addressed the 2 29 U.S.C. 203(d), (e), (g). The Act defines a Knight, Inc., 721 F.3d 1308, 1311 (11th distinction between employees and ‘‘person’’ as ‘‘an individual, partnership, independent contractors under the SSA. association, corporation, business trust, legal Cir. 2013) (‘‘[The Act’s] ‘broad’ representative, or any organized group of persons.’’ definitions do not, however, bring In that case, the Court favorably 29 U.S.C. 203(a). ‘independent contractors’ within the summarized Hearst as setting forth

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‘‘economic reality,’’ as opposed to factors identified in Silk. For example, However, in 1948, Congress promptly ‘‘technical concepts’’ of the common the Court noted that the slaughterhouse rejected this application of the proposed law standard alone, as the framework workers performed unskilled work ‘‘on test. A committee report described the for determining workers’ classification. the production line.’’ Id. at 730. ‘‘The test as ‘‘‘a dimensionless and Id. at 712–14. But it also acknowledged premises and equipment of Kaiser were amorphous abstraction’ ’’ that would that not ‘‘all who render service to an used for the work,’’ indicating little confer upon ‘‘ ‘the administrative industry are employees.’’ Id. Although investment by the workers. Id. ‘‘The agencies and the courts an unbridled the Court found it to be ‘‘quite group had no business organization that license to say, at will, whether an impossible to extract from the [SSA] a could or did shift as a unit from one individual is an employee or an rule of thumb to define the limits of the slaughter-house to another,’’ indicating independent contractor’ ’’ for purposes employer-employe[e] relationship,’’ the a permanent work arrangement. Id. of the SSA. United States v. W.M. Webb, Court identified five factors as ‘‘The managing official of the plant kept Inc., 397 U.S. 179, 187–88 (1970) ‘‘important for decision’’: ‘‘degrees of close touch on the operation,’’ (quoting S. Rep. No. 1255, at 12 (1948) control, opportunities for profit or loss, indicating control by the alleged and H.R. Rep. No. 2168, at 9 (1948)). investment in facilities, permanency of employer. Id. And ‘‘[w]hile profits to the The report stated that Congress relation[,] and skill required in the boners depended upon the efficiency of amended the SSA to ‘‘avoid[ ] the claimed independent operation.’’ Id. at their work, it was more like piecework uncertainty of the proposed ‘economic 716. The Court added that ‘‘[n]o one than an enterprise that actually reality’ test’’ and to ensure that the [factor] is controlling nor is the list depended for success upon the common law control definition of complete.’’ Id. Just a week after Silk, on initiative, judgment or foresight of the employee alone would apply to that June 23, 1947, the Court reiterated these typical independent contractor.’’ Id. statute. See id. at 183–86, 191; 42 U.S.C. five factors in another case involving In addition to facts relevant to the five 410(j) (‘‘The term ‘employee’ [under the employee or independent contractor Silk factors, the Court also considered SSA] means . . . any individual who, status under the SSA. See Bartels v. whether the work was ‘‘a part of the under the usual common law rules Birmingham, 332 U.S. 126, 130 (1947). integrated unit of production’’ (meaning applicable in determining the employer- The Court explained that, under the whether the putative independent employee relationship, has the status of SSA, employee status ‘‘was not to be contractors were integrated into the an employee.’’). determined solely by the idea of control assembly line alongside the company’s Congress abrogated the interpretations which an alleged employer may or employees) to assess whether they were of the definitions of ‘‘employee’’ could exercise over the details of the employees or independent contractors adopted in Hearst for the NLRA and in service rendered to his business by the under the FLSA. Id. at 729–730. Silk and Bartels for the SSA ‘‘to worker.’’ Id. Although ‘‘control is Ultimately, the Court agreed with the demonstrate that the usual common-law characteristically associated with the appellate court that the ‘‘underlying principles were the keys to meaning.’’ employer-employee relationship,’’ economic realities’’ led to the Darden, 503 U.S. at 324–25. However, employees under ‘‘social legislation’’ conclusion that the boners were Congress did not similarly amend the such as the SSA are ‘‘those who as a employees of Kaiser under the FLSA. FLSA. Thus, the Supreme Court stated matter of economic reality are See id. at 727. in Darden that the scope of employment dependent upon the business to which In November 1947, five months after under the FLSA is broader than that they render service.’’ Id. Thus, in Silk and Rutherford Food, the under common law and is determined addition to control, ‘‘permanency of the Department of Treasury (Treasury) by the economic reality of the relation, the skill required, the proposed regulations governing the relationship at issue, relying on the investment in the facilities for work[,] determination of whether an individual ‘‘suffer or permit’’ standard that is and opportunities for profit or loss from is an independent contractor or unique to the FLSA. See id. However, the activities were also factors’’ to employee under the SSA, which used a since implicitly doing so in Rutherford consider. Id. Although the Court test that balanced the following factors: Food, the Court has not again applied identified these specific factors as 1. Degree of control of the individual; (or rejected the application of) the Silk relevant to the analysis, it explained 2. Permanency of relation; factors to an FLSA classification that ‘‘[i]t is the total situation that 3. Integration of the individual’s work in question. Accordingly, the Supreme the business to which he renders service; Court has not mandated any specific set controls’’ the worker’s classification 4. Skill required by the individual; under the SSA. Id. 5. Investment by the individual in facilities or formulation of economic reality Decided the same day as Silk, for work; and factors for purposes of the FLSA, nor Rutherford Food applied Hearst’s and 6. Opportunity of the individual for profit has it explicitly opined on any factor’s Silk’s reasoning to the FLSA. Rutherford or loss. relative probative value to the inquiry. Food addressed whether certain workers 12 FR 7966. Factors 1, 2, and 4–6 See Goldberg v. Whitaker House Co-op., at a plant owned by Kaiser Packing corresponded directly with the five Inc., 366 U.S. 28, 33 (1961) (noting that Company (Kaiser) who cut meat from factors identified as being ‘‘important ‘‘ ‘economic reality’ rather than the bones of slaughtered cattle were for decision’’ in Silk, 331 U.S. at 716, ‘technical concepts’ is . . . the test of Kaiser’s employees under the FLSA or and the third factor corresponded with employment’’ under the FLSA (citing were instead independent contractors. Rutherford Food’s consideration of the Silk, 331 U.S. at 713; Rutherford Food, Noting that ‘‘[d]ecisions that define the fact that the workers were ‘‘part of an 331 U.S. at 729)); Tony & Susan Alamo, coverage of the employer-[e]mployee integrated unit of production.’’ 331 U.S. 471 U.S. at 301 (‘‘The test of relationship under the [NLRA and the at 729. The Treasury proposal further employment under the Act is one of SSA] are persuasive in the consideration relied on Bartels, 332 U.S. at 130, to ‘economic reality.’ ’’ (quoting Whitaker 3 of a similar coverage under the [FLSA],’’ apply these factors to determine House, 366 U.S. at 33)). 331 U.S. at 723–24 (citing Hearst and whether a worker was ‘‘dependent as a 3 In Whitaker House, the Supreme Court Silk), the Court seemed to follow the matter of economic reality upon the concluded that certain homeworkers were path laid down in these previous cases business to which he renders services.’’ employees under the FLSA, as opposed to being by examining facts pertaining to the five 12 FR 7966. ‘‘self-employed’’ or ‘‘independent.’’ 366 U.S. at 33.

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2. Application of the Economic Reality omitted)); Saleem, 854 F.3d at 139 F.2d 1054, 1058 (2d Cir. 1988). And the Test by Federal Courts of Appeals (‘‘[O]ur ultimate concern [is] whether, as Fifth Circuit has not adopted the sixth Following Rutherford Food, federal a matter of economic reality, the factor listed above, which analyzes the courts of appeals have also stated that workers depend upon someone else’s integrality of the work. See, e.g., Usery, the common law standard alone does business for the opportunity to render 527 F.2d at 1311. not determine employee or independent service or are in business for A few courts of appeals have adopted contractor status under the FLSA and themselves.’’ (internal quotation marks noteworthy modifications to the that instead the inquiry was one of and citations omitted)); Baker v. Flint economic reality factors as originally economic reality. See, e.g., Wirtz v. Dr. Eng’g & Constr. Co., 137 F.3d 1436, 1443 articulated in 1947 by the Supreme Pepper Bottling Co. of Atlanta, 374 F.2d (10th Cir. 1998) (‘‘Our final step is to Court and by the Treasury Department. 5, 8 (5th Cir. 1967) (‘‘[C]ommon law review the findings on each of the above Compare, e.g., DialAmerica Mktg., 757 concepts of the employer-employee factors and determine whether F.2d at 1382, with Silk, 331 U.S. at 716, relationship are not controlling.’’); plaintiffs, as a matter of economic fact, and 12 FR 7966. First, the ‘‘skill McComb v. Homeworkers’ Handicraft depend upon [the employer’s] business required’’ factor identified in Silk, 331 Coop., 176 F.2d 633, 636 (4th Cir. 1949) for the opportunity to render service, or U.S. at 716, is now articulated more (same). For several decades after are in business for themselves.’’). Courts expansively by some courts of appeals Rutherford Food, courts applied this have emphasized that the inquiry into as including consideration of reasoning to ask, for example, whether the level and nature of dependence in ‘‘initiative.’’ See, e.g., Parrish, 917 F.3d a worker took ‘‘the usual path of an a given relationship should be based on at 379 (‘‘the skill and initiative required employee,’’ Dr. Pepper, 347 F.2d at 8, or the totality of the circumstances. See, in performing the job’’); Karlson, 860 had characteristics that ‘‘resembled . . . e.g., Donovan v. DialAmerica Mktg., F.3d at 1093 (same); Superior Care, 840 the typical independent contractor,’’ Inc., 757 F.2d 1376, 1382 (3d Cir. 1985) F.2d at 1058–59 (‘‘the degree of skill and Schultz v. Cadillac Assocs., Inc., 413 (noting that Rutherford Food independent initiative required to F.2d 1215, 1217 (7th Cir. 1969). But they ‘‘emphasized that the circumstances of perform the work’’). Second, Silk did not adopt a systematic approach to the whole activity should be considered analyzed workers’ investments, 331 U.S. the question. . . .’’). But these courts have also at 717–19, and the investment factor In the 1970s and 1980s, federal courts explained that a non-exhaustive, was articulated in the proposed 1947 of appeals began to adopt a multifactor standard set of factors—derived from Treasury regulation as evaluating ‘‘economic reality’’ test based on Silk, Silk and Rutherford—shape and guide ‘‘investments by the individual in Rutherford Food, and Bartels similar to this inquiry. See, e.g., Usery, 527 F.2d facilities for work.’’ 12 FR 7966 Treasury’s 1947 proposed SSA at 1311 (identifying ‘‘[f]ive (emphasis added). However, the Fifth regulation to analyze whether a worker considerations [which] have been set Circuit Court of Appeals has modified was an employee or an independent out as aids to making the determination the ‘‘investment’’ factor to consider ‘‘the contractor under the FLSA.4 of dependence, vel non’’); Real v. extent of the relative investments of the Drawing on the Supreme Court Driscoll Strawberry Assocs., Inc., 603 worker and the alleged employer.’’ precedent discussed above, courts have F.2d 748, 754 (9th Cir. 1979) Hopkins, 545 F.3d at 343. Some other recognized that the heart of the inquiry (articulating a six-factor test). circuits have adopted this ‘‘relative is whether ‘‘as a matter of economic In Driscoll, the Ninth Circuit Court of investment’’ approach but continue to reality’’ the workers are ‘‘dependent Appeals described its six-factor test as use the phrase ‘‘worker’s investment’’ to describe the factor. See, e.g., Keller v. upon the business to which they render follows: service.’’ Usery v. Pilgrim Equip. Co., Miri Microsystems LLC, 781 F.3d 799, 1. The degree of the alleged employer’s 527 F.2d 1308, 1311 (5th Cir. 1976) 810 (6th Cir. 2015); Dole v. Snell, 875 right to control the manner in which the F.2d 802, 805 (10th Cir. 1989). (quoting Bartels, 332 U.S. at 130 work is to be performed; (emphasis added)). And some courts Third, although the permanence 2. the alleged employee’s opportunity for factor under Silk was understood in the have clarified that this question of profit or loss depending on his managerial economic dependence may be boiled skill; 1947 Treasury proposal to mean the down to asking ‘‘whether the individual 3. the alleged employee’s investment in continuity and duration of working is or is not, as a matter of economic fact, equipment or materials required for his task, relationships, see 12 FR 7967, some in business for himself.’’ Donovan v. or his employment of helpers; courts of appeals have expanded this Tehco, Inc., 642 F.2d 141, 143 (5th Cir. 4. whether the service rendered requires a factor to also consider the exclusivity of 1981); see also Parrish v. Premier special skill; such relationships. See, e.g., Scantland, 5. the degree of permanency of the working Directional Drilling, L.P., 917 F.3d 369, 721 F.3d at 1319; Keller, 781 F.3d at relationship; and 807. Finally, Rutherford Food’s 380 (5th Cir. 2019) (‘‘Essentially, our 6. whether the service rendered is an task is to determine whether the consideration of whether work is ‘‘part integral part of the alleged employer’s of an integrated unit of production,’’ 331 individual is, as a matter of economic business. reality, in business for himself.’’ U.S. at 729—which was articulated as (internal quotation marks and citation Id. at 754. Most courts of appeals ‘‘integration of the individual’s work’’ in articulate a similar test, but application the 1947 Treasury proposal, 12 FR The Court’s analysis did not explicitly mention the between courts may vary significantly. 7966—is now typically articulated by Silk factors or the concept of economic dependence See, e.g., Sec’y of Labor v. Lauritzen, many courts of appeal as whether the from Bartels. However, the Court focused on the 835 F.2d 1529, 1534–35 (7th Cir. 1987); service rendered is ‘‘integral,’’ which fact that workers were not ‘‘selling their products DialAmerica Mktg., 757 F.2d at 1382; those courts have mistakenly applied as on the market for whatever price they could command,’’ but were instead ‘‘regimented under Donovan v. Brandel, 736 F.2d 1114, meaning important or central to the one organization, manufacturing what the 1117 (6th Cir. 1984). For example, the potential employer’s business. See, e.g., organization desire[d] and receiving the Second Circuit has analyzed Verma v. 3001 Castor, Inc., 937 F.3d compensation the organization dictates.’’ Id. opportunity for profit or loss and 221, 229 (3rd Cir. 2019) (concluding that 4 As explained below, this multifactor economic realty test had also been enforced and articulated investment (the second and third factors workers’ services were integral because by the Department in subregulatory guidance since listed above) together as one factor. See, they were the providers of the the 1950s. e.g., Brock v. Superior Care, Inc., 840 business’s ‘‘primary offering’’); Acosta

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v. Off Duty Police Servs., Inc., 915 F.3d circumstances of the whole activity are considers the worker’s ‘‘degree of 1050, 1055 (6th Cir. 2019) (concluding considered; the inquiry is broader than independent business organization and that services provided by workers were the common law control standard alone; operation.’’ 7 ‘‘integral’’ because the putative and a worker is an employee if, as a WHD’s most recent opinion letter employer ‘‘built its business around’’ matter of economic reality, he or she is addressing this issue, from 2019, those services); McFeeley, 825 F.3d at economically dependent on the generally applied the principles and 244 (consideration ‘‘the importance of employer as opposed to in business for factors similar to those described in the the services rendered to the company’s him- or herself.5 WHD has also prior opinion letters and Fact Sheet #13, business’’); DialAmerica, 757 F.2d at promulgated regulations applying a but not the ‘‘business organization’’ 1385 (‘‘[W]orkers are more likely to be multifactor analysis for independent factor (which it said was ‘employees’ under the FLSA if they contractor status under the FLSA in ‘‘[e]ncompassed within’’ the other perform the primary work of the alleged certain specific industries. See, e.g., 29 factors). The opinion letter addressed employer.’’). CFR 780.330(b) (applying a six factor the FLSA classification of service Courts of appeals applying the economic reality test to determine providers who used a virtual multifactor economic reality test draw whether a sharecropper or tenant is an marketplace company to be referred to from the totality of circumstances, with independent contractor or employee end-market consumers to whom the no single factor being determinative by under the Act); 29 CFR 788.16(a) services were actually provided. WHD itself. See, e.g., Keller, 781 F.3d at 807 (applying a six factor economic reality concluded that the service providers (‘‘No one factor is determinative.’’); test in forestry and logging operations appeared to be independent contractors Baker, 137 F.3d at 1440 (‘‘None of the with no more than eight employees). and not employees of the virtual factors alone is dispositive; instead, the And WHD has promulgated a regulation marketplace company. See WHD court must employ a totality-of-the- applying a multifactor economic reality Opinion Letter FLSA2019–6 at 7. WHD circumstances approach.’’); Martin v. analysis for determining independent found that it was ‘‘inherently difficult to Selker Bros., 949 F.2d 1286, 1293 (3rd contractor status under the Migrant and conceptualize the service providers’ Cir. 1991) (‘‘It is a well-established Seasonal Agricultural Worker Protection ‘working relationship’ with [the virtual principle that the determination of the Act (MSPA).The MSPA regulation is marketplace company], because as a employment relationship does not based on the FLSA’s definition of matter of economic reality, they are depend on isolated factors . . . neither ‘‘employ’’ because MSPA incorporates working for the consumer, not [the the presence nor the absence of any that definition, and it asks ‘‘whether or company].’’ Id. Because ‘‘[t]he facts . . . particular factor is dispositive.’’). not an independent contractor or demonstrate economic independence, rather than economic dependence, in 3. Application of the Economic Reality employment relationship exist under the working relationship between [the Test by WHD the Fair Labor Standards Act.’’ 29 CFR 500.20(h)(4) (emphasis in original). virtual marketplace company] and its Since at least 1954, WHD has applied WHD Fact Sheet #13, ‘‘Employment service providers,’’ WHD opined that a multifactor analysis when considering Relationship under the Fair Labor they were not employees of the whether a worker is an employee under Standards Act (FLSA)’’ (Jul. 2008), company under the FLSA but rather the FLSA or is instead an independent similarly states that, when determining were independent contractors. Id. at 9. contractor. See WHD Opinion Letter whether an employment relationship As explained in greater detail below, (Aug. 13, 1954) (applying six factors exists under the FLSA: The common these prior interpretations of very similar to the six economic reality law control is not the exclusive independent contractor status, which factors currently used by courts of consideration; instead, ‘‘it is the total themselves have evolved over time, are appeal and noting that ‘‘the activity or situation which controls’’; subject to the same limitations as the determination depends on the and ‘‘an employee, as distinguished court opinions from the same period, circumstances of the whole activity from a person who is engaged in a and the Department believes that considered in light of the statutory business of his or her own, is one who, stakeholders would benefit from purposes of the Act’’ (internal quotation as a matter of economic reality, follows clarification. As such, the Department is marks omitted)). In 1956, WHD the usual path of an employee and is proposing to promulgate a clearer and reiterated the six factors and noted that dependent on the business which he or more consistent standard for evaluating ‘‘[t]he degree of control retained by the she serves.’’ 6 The Fact Sheet identifies whether a worker is an employee or principal has [been] rejected as the sole seven economic reality factors; in independent contractor under the FLSA. criterion to be applied.’’ WHD Opinion addition to factors that are similar to the Letter (Feb. 8, 1956). In 1964, WHD III. Need for Rulemaking six factors identified above, it also stated: ‘‘The Supreme Court has made it The Department has never clear that an employee, as distinguished promulgated a generally applicable 5 See, e.g., WHD Opinion Letter FLSA2019–6 at from a person who is engaged in a 4 (Apr. 29, 2019); WHD Opinion Letter, 2002 WL regulation addressing the question of business of his own, is one who as a 32406602, at *2 (Sept. 5, 2002); WHD Opinion who is an independent contractor and, matter of economic reality follows the Letter, 2000 WL 34444342, at *3 (Dec. 7, 2000); thus, not an employee under the Act. usual path of an employee and is WHD Opinion Letter, 2000 WL 34444352, at *1 (Jul. Instead, as described above, the 5, 2000); WHD Opinion Letter, 1999 WL 1788137, dependent on the business which he at *1 (Jul. 12, 1999); WHD Opinion Letter, 1995 WL Department has issued and revised serves.’’ WHD Opinion Letter FLSA–795 1032489, at *1 (June 5, 1995); WHD Opinion Letter, subregulatory guidance since at least (Sept. 30, 1964). 1995 WL 1032469, at *1 (Mar. 2, 1995); WHD Over the years since, WHD has issued Opinion Letter, 1986 WL 740454, at *1 (June 23, 7 On July 15, 2015, WHD issued Administrator’s 1986); WHD Opinion Letter, 1986 WL 1171083, at numerous opinion letters addressing Interpretation No. 2015–1, ‘‘The Application of the *1 (Jan. 14, 1986); WHD Opinion Letter WH–476, Fair Labor Standards Act’s ‘Suffer or Permit’ whether a worker is an employee under 1978 WL 51437, at *2 (Oct. 19, 1978); WHD Standard in the Identification of Employees Who the FLSA or an independent contractor. Opinion Letter WH–361, 1975 WL 40984, at *1 Are Misclassified as Independent Contractors’’ (AI). In those letters, WHD has generally (Oct. 1, 1975); WHD Opinion Letter (Sept. 12, 1969); The AI provided guidance regarding the WHD Opinion Letter (Oct. 12, 1965). employment relationship under the FLSA and the relied on a multifactor analysis very 6 Fact Sheet #13 is available at https:// application of the six economic realities factors. similar to the six economic reality www.dol.gov/sites/dolgov/files/WHD/legacy/files/ The AI was withdrawn on June 7, 2017 and is no factors identified above; the whdfs13.pdf. longer in effect.

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1954, using different variations of a of the economic reality test. See, e.g., alleged employer or is instead in multifactor economic reality test that Parrish, 917 F.3d at 380; McFeeley, 825 business for himself.’’ Id. at 59. Less analyzes economic dependence to F.3d at 241; see also Bartels, 332 U.S. than a year later, a different panel of distinguish independent contractors at 130 (noting that the inquiry is that same circuit applied a second from employees. The Department has whether ‘‘as a matter of economic approach to economic dependence to also applied the multifactor test in reality,’’ the worker is ‘‘dependent upon find another cable splicer hired under a regulations addressing the meaning of the business to which [he or she] very similar arrangement by the same independent contractor in specific render[s] service’’). But underdeveloped company to be an independent industries. See, e.g., 29 CFR 780.330(b); analysis and inconsistency cloud the contractor. See Thibault v. BellSouth 29 CFR 788.16(a); 29 CFR 500.20(h)(4). application of this touchstone, Telecommunication, 612 F.3d 843 (5th For reasons explained below, however, generating uncertainty both in and Cir. 2010).10 The Thibault court that multifactor test, as currently outside of litigation. Given the central distinguished the result in Cromwell in applied, has proven to be unclear and importance of the economic dependence part by highlighting the plaintiff’s unwieldy. The Department thus concept, any confusion on this front is sources of income and wealth other than proposes to promulgate a regulation that problematic. The 1948 Senate Report from BellSouth in the analysis of explains the contours of the economic criticized Treasury’s proposal to rely on economic dependence. Id. at reality test and clarifies and sharpens a economic dependence for determining 849.11 Thibault’s reliance on income and test that has become less clear and independent contractor status under the wealth sources to analyze economic consistent through decades of case-by- SSA by rhetorically asking: ‘‘Who, in dependence is incompatible with Mr. W. case administration in the courts of this whole world engaged in any sort of Fireworks and similar decisions, which appeals. If this proposed rule were service relationship, is not dependent as have repeatedly explained that finalized, it would contain the a matter of economic reality on some ‘‘[e]conomic dependence is not Department’s sole and authoritative other person? The corner grocer, clearly conditioned on reliance on an alleged interpretation of independent contractor not an employee, is economically employer for one’s primary source of status under the FLSA. As such, the dependent upon his customers, his income, for the necessities of life.’’ 814 Department is proposing to strike banker, his supplier.’’ S. Rep. No. 80– F.2d at 1054 (emphasis in original).12 previous industry-specific 1255 at 12 (1948). In other words, The Department agrees with Mr. W interpretations set forth in 29 CFR ‘‘economic dependency is a vague Fireworks and similar courts that ‘‘the 780.330(b) and 788.16(a) and replace concept that without further proper test of economic dependence them with cross-references to the explanation and refinement is often . . . ‘examines whether the workers are interpretation set forth in this proposed difficult, if not impossible, to apply.’’ 8 dependent on a particular business or rule. The Department considered The Department and some courts have organization for their continued making similar revisions to its attempted to provide a measure of employment.’ ’’ Id. (quoting regulation addressing independent clarity by explaining, for example, that DialAmerica, 757 F.2d at 1385); see also contractor status under the MSPA in 29 the proper inquiry is ‘‘‘whether the Halferty, 821 F.2d at 268 (‘‘[I]t is not CFR 500.20(h)(4), but is not proposing workers are dependent on a particular dependence in the sense that one could not to make such revisions at this time, business or organization for their not survive without the income from the as explained further below. The continued employment’ in that line of job that we examine, but dependence for Department invites comments on the business,’’ Mr. W Fireworks, 814 F.2d at continued employment.’’). Dependence need for conforming edits to these or 1054 (emphasis in original) (quoting for work as opposed to income comports similar provisions. DialAmerica, 757 F.2d at 1385), or with the FLSA’s ‘‘suffer or permit’’ instead ‘‘are in business for standard for employment relationship. A. Challenges Presented by the themselves,’’ Saleem, 854 F.3d at 139. 29 U.S.C. 203(g). An individual who Economic Reality Test and Its But the Department and many courts depends on a potential employer for Application have often applied the test without work is an employee whom the The economic reality test has been helpful clarification on the meaning of criticized on several fronts. First, the the economic dependency that they are 10 In both cases, the splicers performed post- test’s overarching concept of ‘‘economic seeking.9 Hurricane Katrina repairs for BellSouth along the dependence’’ is under-developed and The lack of explanation of economic Gulf Coast; provided their own tools and trucks; received assignments in the same manner; received sometimes inconsistently applied, dependence has sometimes led to neither training nor close supervision; and worked rendering it a source of confusion. inconsistent approaches and results. For the same 12-hour shifts for 13 days at a time. Second, the test is indefinite and example, the Fifth Circuit held in 2009 Compare Cromwell, 348 F. App’x at 58–59, with amorphous in that it makes all facts that cable splicers hired as putative Thibault, 612 F.3d at 844–49. 11 Specifically, Mr. Thibault earned significant potentially relevant without providing independent contractors by BellSouth to profits from his own sales company, ‘‘owned eight any guidance on how to prioritize or provide post-Hurricane Katrina repairs drag-race cars [that] generated $1,478 in income balance different and sometimes along the Gulf Coast were actually from racing professionally[,]’’ and managed competing considerations. Third, employees. See Cromwell v. Driftwood ‘‘commercial rental property that generated some Elec. Contractor, Inc., 348 F. App’x 57 income.’’ Thibault, 612 F.3d at 849. The Thibault inefficiency and lack of structure in the court also highlighted the fact that Mr. Thibault test further stem from blurred (5th Cir. 2009). That case applied the worked for only three months—although he boundaries between the factors. Fourth, same approach to economic dependence intended to work for seven or eight months—before these shortcomings have become more as Mr. W. Fireworks and similar cases, being fired. Id. at 846, 849. In contrast, the splicers asking whether ‘‘the worker is in Cromwell worked approximately eleventh apparent over time as technology, months. 348 F. App’x at 58. economic conditions, and work economically dependent upon the 12 See also Off Duty Police, 915 F.3d at 1058 relationships have evolved. (‘‘[W]hether a worker has more than one source of 8 Bruce Goldstein, et al., Enforcing Fair Labor income says little about that worker’s employment 1. Confusion Regarding the Meaning of Standards in the Modern American Sweatshop: status.’’); DialAmerica, 757 F.2d at 1385 (‘‘The Economic Dependence Rediscovering the Statutory Definition of economic-dependence aspect of the [economic Employment, 46 UCLA L. Rev. 983, 1009 (1999) reality] test does not concern whether the workers Courts and the Department agree that (collecting cases). at issue depend on the money they earn for economic dependence is the touchstone 9 Id. at 1010. obtaining the necessities of life.’’).

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employer suffers or permits to work. In of business.’’ Mr. W Fireworks, 814 F.2d senators expressing concern that, ‘‘on contrast, an independent contractor at 1054. Put another way, the economic virtually no state of facts may anyone be does not work at the sufferance or reality analysis should ask whether the certain whether or not he has a tax permission of an employer because, as plaintiff had ‘‘opportunity for profit or liability.’’ Webb, 397 U.S. at 188 a matter of economic reality, he or she loss . . . in the claimed independent (quoting S. Rep. No. 1255, at 12 (1948)). is in business for him- or herself. See operations,’’ Silk, 331 U.S. at 716, which The same uncertainty often exists under Saleem, 854 F.3d at 139. in Parrish was consulting, not goat the FLSA. So far, neither the Without a consistent understanding of farming. Department nor courts have articulated economic dependence, the multifactor The Parrish court impliedly took yet clear, generally applicable guidance balancing test is left without a a third approach to economic about how the multiple factors, and the meaningful anchor. As a result, the dependence when it analyzed the countless facts encompassed therein, are test’s factors may become ‘‘an end in investment factor by comparing the to be balanced, creating uncertainty for themselves’’ instead of, as they are dollar value of ‘‘each worker’s the regulated community when, as is intended to be, guideposts in the individual investment’’ to the often the case, the significance of facts inquiry of economic dependence or lack investment made by an oil drilling is unclear or factors point in opposite thereof.13 For example, in Parrish, 917 company in its overall operations: directions. F.3d 369, the Fifth Circuit appears to ‘‘Obviously, [the drilling company] Courts applying the economic reality have applied three different concepts of invested more money at a drill site test often analyze the factors economic dependence in a single compared to each plaintiff’s individually and then reach an overall opinion to analyze the control, investments.’’ Id. at 383 (emphasis in decision about a worker’s classification opportunity for profit or loss, and original). That comparison was without meaningful explanation of how investment factors. First, the court unresponsive to the economic they balanced the factors to reach the analyzed the control factor through the dependence inquiry of whether the final decision. See, e.g., Parrish, 917 same concept of dependence as Mr. W worker is ‘‘[e]ssentially . . . in business F.3d at 380 (analyzing each factor Fireworks, announcing that ‘‘our task is for himself,’’ id. at 379, because large separately and then explaining ‘‘for the to determine whether the individual is, companies routinely contract for reasons stated supra, we reach the same as a matter of economic reality, in services with smaller entrepreneurs. conclusions as did the district court’’); business for himself.’’ Parrish, 917 F.3d Instead, the worker’s investment (or lack Chao v. Mid-Atl. Installation Servs., at 379. The Parrish court reasoned that thereof) should have been analyzed to Inc., 16 F. App’x 104, 108 (4th Cir. mandated ‘‘safety training and drug determine whether the worker had an 2001) (same); Snell, 875 F.2d at 912 testing, when working at an oil-drilling independent operation, distinct from (same). This is so even where many site, is not the type of control that the potential employer’s business, facts and factors support both sides of counsels in favor of employee status.’’ which created an opportunity for profit the classification inquiry. See, e.g., Id. at 382 (emphasis in original). This or loss. Acosta v. Paragon Contractors Corp., analysis is consistent with the ‘‘in The 1948 Senate Report cautioned 884 F.3d 1225, 1238 (10th Cir. 2018) business for himself’’ approach because that economic dependence was (concluding, without explanation as to an oil-drilling company reasonably potentially ‘‘dimensionless.’’ And weighing of the factors, that workers would require safety and drug testing of although courts and the Department were employees where two factors both employees (who depend on the have since added some guidance, the (control and integral part) favored company for work) and independent concept may be inconsistently applied independent contractor status and four contractors (who are in business for and under-analyzed. A more developed factors (opportunity for profit or loss, themselves), since an accident could and dependable touchstone at the heart investment, skill, and permanence) pose potentially significant risks to the of the economic reality test is needed to favored employee status); Iontchev v. worksite and to workers, regardless guide the regulated community. Under AAA Cab. Services, 685 F. App’x 548, whether caused by an employee or an this proposal, the Department would 550 (9th Cir. 2017) (concluding, without independent contractor. interpret and apply ‘‘economic explanation as to weighing of the The Parrish court then expressly dependence’’ consistent with the factors, that the workers were departed from Mr. W Fireworks in favor foregoing discussion. independent contractors where two of Thibault’s dependence-for-income 2. The Lack of Focus in the Multifactor factors (control and opportunity for approach to analyze the opportunity for Balancing Test profit or loss) favored independent profit or loss factor. Id. at 384. contractor status; one factor Specifically, the court held that the Under the test, the Department and (investment) was neutral; and three consultant was an independent courts analyze the totality of factors (skill, permanence, and integral contractor, in part, because he also circumstances making up the economic part) favored employee status). earned income from his own goat farm. reality of the relationship to determine At other times, courts have provided See id. at 383 (‘‘Thibault is more on a worker’s classification. But, as Judge analysis as to the relative weight of the point [than Mr. W. Fireworks]. Easterbrook warned in 1987, ‘‘ ‘reality’ factors in the specific case before them. Accordingly we consider . . . plaintiffs’ encompasses millions of facts, and For example, some courts have noted enterprises, such as the goat farm, as a unless we have a legal rule with which where factors weigh ‘‘strongly’’ or part of the overall analysis of how to sift the material from the immaterial, ‘‘weakly.’’ See, e.g., Scantland, 721 F.3d dependent plaintiffs were on we might as well examine the facts at 1313–19 (finding that, assuming [defendant].’’). But the goat farm has through a kaleidoscope.’’ Lauritzen, 835 factual inferences in favor of the absolutely nothing to do with whether F.2d at 1539 (Easterbrook J., concurring) workers, the control, opportunity for the worker was in business for himself (‘‘[A]ny balancing test begs questions profit or loss, permanence, and integral as a consultant or was ‘‘dependent on a about which aspects of ‘economic part factors strongly point to employee particular business or organization for reality’ matter, and why.’’). Indeed, status, and the investment and skill [his] continued employment in that line Congress rejected Treasury’s 1947 factors weakly favor independent proposal to use the multifactor contractor status); Superior Care, 840 13 Goldstein, supra note 8 at 1010. balancing test under the SSA, with some F.2d at 1059 (finding that opportunity

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for profit or loss and integral part factors these overlaps are discussed in more by adding ‘‘initiative’’ to the ‘‘skill ‘‘both weigh heavily in favor of the . . . detail below. required’’ factor originally articulated by conclusion that nurses are employees,’’ Silk articulated a ‘‘skill required’’ Silk, courts have turned that factor into while skill and permanence factors factor as part of the economic reality an extension of the control factor. The ‘‘weigh slightly in favor of independent test, 331 U.S. at 716, and several federal ‘‘skill and initiative’’ factor also status, [but] do not tip the balance’’). courts of appeals continue to apply this overlaps with the opportunity for profit And at least one court recently factor to consider ‘‘the degree of skill or loss factor, which considers whether dispensed with a factor-by-factor required to perform the work.’’ Paragon, a worker’s earnings are determined by analysis and instead focused its analysis 884 F3d at 1235; see also Iontchev, 685 initiative. See, e.g., Snell, 875 F.2d at on only those facts that determined the F. App’x at 550 (asking ‘‘whether 810 (finding employee status in part outcome in the case. See Saleem, 854 services rendered . . . require[d] a because the workers’ ‘‘earnings did not F.3d at 140 (‘‘draw[ing] upon and special skill’’); Keller, 781 F.3d at 807 depend upon their judgment or discuss[ing] the Silk factors where (analyzing ‘‘the degree of skill initiative, but on the [potential relevant’’ to the economic reality of the required’’). As explained above, this employer’s] need for their work’’). Thus, relationship at issue). inquiry has been expanded by some facts relating to initiative are analyzed While identifying the most relevant other courts into a ‘‘skill and initiative’’ through three factors: Control, factors in a specific case lends more factor which, in addition to asking opportunity for profit, and skill.14 clarity than a siloed analysis of each whether workers have ‘‘some unique Such overlap exacerbates confusion factor devoid of context, this approach skill set,’’ also analyzes whether they by blurring the lines between the still leaves the regulated community ‘‘exercise significant initiative within economic reality factors. It also requires without generally applicable guidance the business.’’ Parrish, 917 F.3d at 385; redundant analysis of the same facts as to what matters most and why. See see also, e.g., Superior Care, 840 F.2d at under different factors, which may yield Lauritzen, 835 F.2d at 1539 (Easterbrook 1060. The ability to exercise significant inconsistent and confusing results J., concurring) (‘‘A legal approach initiative is already analyzed as part of within the same case. For example, in calling on judges to examine all of the the control factor. This expansion of the Express Sixty-Minutes Delivery, the facts, and balance them, avoids skill factor to incorporate the initiative court concluded that the control factor formulating a rule of decision . . . [and] aspect of control occurred because pointed towards independent contractor keep[s businesses] in the dark about the courts recognized that ‘‘the use of status in part because the delivery legal consequences of their deeds.’’). In special skills is not itself indicative of drivers had substantial capacity for other words, the multifactor economic independent contractor status, initiative: ‘‘Drivers set their own hours reality test is missing direction on the especially if the workers do not use and days of work[,] can reject deliveries relative importance of the factors. those skills in any independent way.’’ without retaliation,’’ and ‘‘can work for Selker Bros., 949 F.2d at 1295; see also other courier delivery systems.’’ 161 3. Confusion and Inefficiency Due to Superior Care, 840 F.2d at 1060. The F.3d at 303. The court further Overlapping Factors Department now believes this sentiment determined that each ‘‘driver’s profit or The economic reality test’s could have been better incorporated into loss is determined largely on his or her multifactor framework gives some the analysis by explaining that capacity skill, initiative, ability to cut costs, and structure to an otherwise roving inquiry for initiative under the control factor is understanding of the courier business.’’ by filtering the totality of circumstances more important than having a Id. at 304. But confusingly, the court into distinct relevant categories. But specialized skill. Such an approach also held that the ‘‘skill and initiative three factors—skill, permanence, and would have also provided helpful factor points towards employee status’’ integral part—have been expanded by guidance regarding how to balance the due to ‘‘the key missing ingredient . . . courts and the Department to factors that point in different directions. [of] initiative.’’ Id at 305. Read together, incorporate aspects of economic reality Instead, courts and the Department these holdings may be confusing that also fall under the control factor, have imported a control analysis into because the court held that drivers creating overlapping coverage. There is the skill factor. See Selker Bros., 949 lacked the very initiative that the court additional overlap between the F.2d at 1295 (concluding that the skill recognized in the same opinion to opportunity for profit/loss and factor weighed towards employee determine their profits and losses. It investment factors, which ‘‘relate classification due to ‘‘the degree of may also appear inconsistent for the logically to one [an]other.’’ McFeeley, control exercised by [the potential court to hold that initiative was a 825 F.3d at 243; Lauritzen, 835 F.2d at employer] over the day-to-day ‘‘missing ingredient’’ when it 1537 (‘‘The capital investment factor is operations’’); see also WHD Fact Sheet determined in the same opinion that . . . interrelated to the profit and loss #13 (describing the skill factor to drivers had freedom to set hours, reject consideration.’’). The structure provided include ‘‘initiative, judgment, or assignments, and work for competitors. by a multifactor framework breaks down foresight’’). For many courts, the Next, the permanence factor originally when the lines between factors are analysis of control appears to have concerned the continuity and duration blurred. See Saleem, 854 F.3d at 140 n. become the most important part of the of a working relationship. The factor has 20 (‘‘[C]aution is merited because the skill factor, overriding presence or since been expanded by many courts Silk factors, while helpful in identifying absence of actual specialized skill. See and the Department to also consider the relevant facts, overlap to a substantial Baker, 137 F.3d at 1443 (finding that the exclusivity of the relationship. See, e.g., degree[.]’’). Blurred lines further create skill factor weighed towards employee inefficiency by requiring courts to classification where skilled welders ‘‘are 14 While both the control factor and the analyze the same facts multiple times, told what to do and when to do it’’); opportunity for profit or loss factor overlap with the ‘‘skill and initiative’’ factor, they do not overlap sometimes in inconsistent ways. Superior Care, 840 F.2d at 1060 (finding with each other in this regard. The control factor Additionally, litigants address and that the skill factor weighed towards concerns the capacity for initiative, i.e., whether a analyze the same facts repeatedly, and employee classification for skilled worker is able to exercise initiative. The businesses must evaluate those same nurses because ‘‘Superior Care in turn opportunity for profit concerns the effect of initiative, i.e., the extent to which profits (or losses) facts again and again when making controlled the terms and conditions of are determined by the exercise of initiative. The worker classification decisions. Each of the employment relationship’’). In short, former is a prerequisite for the latter.

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Parrish, 917 F.3d at 386–87 (considering appears to rest on a mistaken premise. Parrish, 917 F.3d at 383; Keller, 781 as part of the permanence factor Manufacturers, for example, commonly F.3d at 810, which says nothing about whether any worker worked exclusively have critical parts and components whether the worker is in business for for the potential employer); Keller, 781 produced and delivered by wholly him- or herself, as opposed to being F.3d at 807–09 (considering the separate companies. In any event, the economically dependent on the exclusivity of the working relationship control factor already directly analyzes potential employer for work. Such as part of the permanence factor); whether a business can compel a worker irrelevant and potentially misleading Scantland, 721 F.3d at 1319 (finding to work on a consistent basis or comparisons could be avoided if installation technicians’ relationships otherwise closely supervise and manage investment were analyzed together with with the potential employer were performance of the work. See, e.g., the opportunity for profit or loss factor, permanent because they ‘‘could not Nieman v. Nat’l Claims Adjusters, Inc., as the Supreme Court did in Silk, 331 work for other companies’’); see also 775 F. App’x 622, 625 (11th Cir. 2019) U.S. at 719. That is precisely what the WHD Opinion Letter FLSA2019–6 at 8. (‘‘The first factor—control—weighs in Second Circuit has done by combining But exclusivity is already an aspect of favor of independent contractor status opportunity for profit or loss and control. See, e.g., Saleem, 854 F.3d at because Nieman . . . controlled his investment in a single factor. See 141 (‘‘[A] company relinquishes control schedule.’’). Such analysis presumes a Superior Care, 840 F.2d at 1058. over its workers when it permits them relationship between control and In summary, significant overlaps to work for its competitors.’’); Express integral part, and therefore is between factors exacerbate confusion Sixty-Minutes Delivery, 161 F.3d at 303 redundant.17 about how certain facts are analyzed (concluding that the control factor Finally, while Silk articulated and balanced. They also create indicated independent contractor status opportunity for profit or loss and inefficiency by requiring redundant in part because the workers ‘‘can work investment as separate factors, 331 U.S. review of the same facts by courts, for other courier delivery systems, and at 716, there is clear overlap because redundant litigation over the same facts [their agreement] does not contain a ‘‘[e]conomic investment, by definition, by parties, and redundant analysis of covenant-not-to-compete’’). This overlap creates the opportunity for loss, [and] the same facts by business seeking to results in exclusivity being analyzed investors take such a risk with an eye to classify workers. twice in many cases,15 once as part of profit.’’ Saleem, 854 F.3d at 145 n.29. the control factor and again as part of Indeed, the Supreme Court analyzed 4. The Shortcomings and the permanence factor. As with these two factors together in Silk, Misconceptions That This Proposal initiative, such repetitive analysis is concluding that coal unloaders were Seeks To Remedy Are More Apparent in inefficient and may exacerbate employees because they had ‘‘no the Modern Economy confusion. opportunity to gain or lose except from Certain shortcomings of the economic Third, the integral part factor used by the work of their hands and [ ] simple reality test have become more apparent some courts to analyze importance tools.’’ 331 U.S. at 717–18. In contrast, in the modern economy. In particular, appears to be a proxy for control.16 truck drivers in that case were technological and social change—such Courts appear to assume that businesses independent contractors in part because as falling transaction costs, the will use employees and not they invested in their own trucks and transition from more of an industrial independent contractors to perform had an ‘‘opportunity for profit from economy to more of a knowledge important work in order to control how sound management’’ of that investment. economy, and shorter job tenures—have and when that work is performed. For Id. at 319. revealed how analyzing the integral part example, one court explained the use of There often is redundancy where the factor through the lens of importance this factor by stating ‘‘it is presumed opportunity for profit or loss and rather than integration, and giving that, with respect to vital or integral investment factors are considered undue weight to the investment and parts of the business, the employer will separately. See, e.g., Mid-Atlantic permanence factors, may send prefer to engage an employee rather Installation Servs., 16 F. App’x at 106– misleading signals regarding an than an independent contractor. This is 07. And separate analyses may result in individual’s classification. so because the employer retains control confusion to the extent that it First, falling transaction costs in many over the employee and can compel encourages analysis of a worker’s sectors of the economy highlight the attendan[ce] at work on a consistent investment outside of the context of the potential for errors resulting from basis.’’ Baker v. Dataphase, Inc., 781 F. worker’s opportunity for profit or loss. analyzing the integral part factor Supp. 724, 735 (D. Utah 1992); see also As discussed above, some courts through the lens of importance instead Baker v. Barnard Const. Co. Inc., 860 F. compare the dollar value of a worker’s of integration. When the transaction Supp. 766, 777 (D.N.M. 1994), aff’d sub personal investment against the total costs of hiring are high, firms tend to nom. Baker v. Flint Eng’g & Const. Co., investment of large companies that, for hire employees rather than independent 137 F.3d 1436 (10th Cir. 1998) (same). example, ‘‘maintain[ ] corporate offices,’’ contractors for core tasks that must be As an initial matter, this observation Hopkins, 545 F.3d at 344; see also performed on a routine basis.18 Thus, analyzing the importance, centrality, or 15 Compare, e.g., Freund, 185 F. App’x at 783 17 Moreover, some courts have further conflated frequency of the work to an (‘‘Hi–Tech exerted very little control over Mr. the integrality analysis by assuming that easily organization’s business may have been Freund [in part because] Freund was free to perform ‘‘replaceable’’ workers are less integral to a installations for other companies.’’), with id. at 784 business. Browning v. Ceva Freight, LLC, 885 F. correlated with a worker’s classification, (‘‘Freund’s relationship with Hi–Tech was not one Supp. 2d 590, 610 (E.D.N.Y. 2012); see also Velu with a significant degree of permanence . . . v. Velocity Exp., Inc., 666 F. Supp. 2d 300, 307 18 Ronald Coase, Nature of the Firm, 4 Economica [because] Freund was able to take jobs from other (E.D.N.Y. 2009) (observing that integrality to 386 (1937), https://onlinelibrary.wiley.com/doi/ installation brokers.’’). business diminished where ‘‘work is epdf/10.1111/j.1468-0335.1937.tb00002.x. See also 16 As discussed above, the Supreme Court’s interchangeable with the work of other[s]’’). That Nobel Prizes and Laureates, Oct., 15, 1991, https:// Rutherford opinion did not analyze whether work may be true, but being easily replaceable or www.nobelprize.org/prizes/economic-sciences/ was important but rather whether it was ‘‘part of an interchangeable makes workers more economically 1991/press-release/ (explaining The Nature of the integrated unit.’’ 331 U.S. at 729. Notably, the Fifth dependent on that business for work, not less. Thus, Firm’s contribution to economics literature as a Circuit does not typically consider the integral part focusing on integrality can sometimes obscure the central reason for Coase’s receipt of the 1991 Nobel factor. ultimate issue of economic dependence. Prize in Economics).

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even though such analysis departs from concurring) (observing that an attorney industry, which tends to have younger Rutherford Food’s consideration of ‘‘sells human capital rather than workers on average. This means that whether work is part of an ‘‘integrated physical capital, but this does not imply many employees today have shorter unit of production.’’ 331 U.S. at 726. that lawyers are ‘employees’ of their working relationships with their Over the past several decades, however, clients under the FLSA’’); Meyer v. U.S. employers, which dulls the usefulness technological innovations have driven Tennis Ass’n, 607 F. App’x 121, 123 (2d of job duration to distinguish an transactions costs down in many (but Cir. 2015) (holding that tennis umpires employee from an independent not all) sectors of the economy, were independent contractors even contractor. sometimes to negligible levels.19 Firms though they ‘‘invest little’’). So, while In summary, the Department believes in those sectors can now often hire the presence of significant capital the current multifactor economic reality independent contractors rather than investment is still probative, its absence test suffers because the analytical lens employees for core tasks without may be less so in more knowledge-based through which all the factors are to be incurring onerous transaction costs. For occupations and industries. Indeed, filtered remains inconsistent; there is no example, drivers are vital to the technological advances enable, for clear principle regarding how to balance personal transportation business, but example, freelance journalists, graphic the multiple factors; the lines between transportation companies increasingly designers, or consultants to be many of the factors are blurred; and hire independent contractor drivers entrepreneurs with little more than a these shortcomings have become more rather than employees. See, e.g., personal computer and smartphone. apparent in the modern economy. The Saleem, 854 F.3d at 140; Iontchev, 685 See, e.g., Faludi v. U.S. Shale Sols., result is legal uncertainty that obscures F. App’x at 550. The Department thus L.L.C., 950 F.3d 269, 276 (5th Cir. 2020) workers’ and businesses’ respective believes analyzing the importance or (holding that a consultant who rights and obligations under the FLSA. centrality of work may send misleading ‘‘provided his own phone and Such uncertainty is especially acute signals in low-transaction-cost computer’’ and ‘‘made investments in when it comes to the growing number environments that have become more his continuing education and home of more flexible and nimble work commonplace, which militates in favor office equipment’’ was an independent relationships. While such relationships of refocusing the integral part factor on contractor). benefit workers and businesses alike, integration rather than importance.20 Finally, shorter job tenures among they also lead to complex questions Second, the transition from a more American workers have diminished the about a worker’s classification under the industrial economy to more of a underlying rationale of the permanence FLSA, which are difficult to answer due knowledge-based economy has factor.22 That factor assumes that in part to the shortcomings described diminished the investment factor’s independent contractors have relatively above.26 ability to indicate economic short working relationships while The Department is further concerned dependence.21 Broadly speaking, the employees have longer ones.23 Such that continued legal uncertainty may factors of production in a more distinction was sharp when the vast deter innovative work arrangements by industrial economy consist of either majority of employees had job tenures creating legal risks with respect to physical capital that produced that lasted many years or even decades, misclassifying workers as independent investment returns or labor for which as may have been the case for contractors instead of employees. Take, wages were paid. Such a more industrial employees born in the 1940s and for example, the workers in WHD’s 24 economy facilitated a relatively clear earlier. But the Atlanta Federal April 2019 opinion letter who searched distinction between ‘‘wage earners Reserve’s 2015 analysis of BLS data for for job opportunities and negotiated for toiling for a living’’ and ‘‘independent U.S. workers born between 1933 and prices by ‘‘ ‘multi-app[ing]’—that is entrepreneurs seeking a return on their 1993 found that median job tenure has simultaneously run[ing a company]’s risky capital investments.’’ Mr. W declined steadily for every age cohort, virtual platform alongside the platform Fireworks, 814 F.2d at 1051. In today’s with younger generations having the of a competitor to compare virtual 25 more knowledge-based economy, lowest job tenures. The most recently opportunities in real time and pick the however, it is often human rather than available data from the Department’s best opportunity on a job-by-job basis.’’ physical capital that matters most. Bureau of Labor Statistics (BLS) shows WHD Opinion Letter FLSA2019–6 at 8. Because personal initiative and know- that, since 2014, job tenure rates have Multi-apping creates significant how can enable entrepreneurship in a resumed their long-term decline, economic value by letting workers find more knowledge-based economy, following a brief increase attributable to the best paying opportunities, providing workers who lack ‘‘capital investments’’ the 2008 recession, with the lowest job app companies with access to a larger cannot be assumed to be ‘‘wage earners tenure rates for younger workers. The workforce, and helping consumers toiling for a living.’’ See, e g., Lauritzen, lowest median tenure (2.2 years) was 835 F.2d at 1540–41 (Easterbrook, J. found in the leisure and hospitality 26 See, e.g., Kati L. Griffith, The Fair Labor Standards Act at 80: Everything Old Is New Again, 19 See, e.g., Anders Henten and Iwona Windekie, 22 The Department has not investigated the cause 104 Cornell L. Rev. 557, 561 (2019) (‘‘[N]ew trends ‘‘Transaction Costs and the Sharing Economy,’’ 26th of shorter job tenures since 1947 as part of this raise complicated questions about who is a true European Regional ITS Conference p. 2 (2015) rulemaking. independent contractor excluded from the [FLSA]’s (asserting that ‘‘digital platforms allow for 23 Compare, e.g., Bartels, 332 U.S. at 127 (finding protections. Most notably, the recent growth in decreasing transaction costs’’), https:// that band members were independent contractors in workers who depend on freelance or ‘contract www.econstor.eu/bitstream/10419/127145/1/ part because ‘‘[a]lmost all of the engagements . . . work,’ has received a lot of attention.’’); Griffin Henten-Winderkilde.pdf. involved were one-night stands’’), with Whitaker Toronjo Pivateau, The Prism of Entrepreneurship: 20 As noted in the Background section and House, 366 U.S. at 29 (finding that homeworkers Creating A New Lens for Worker Classification, 70 explained in further detail below, the Supreme were employees of a cooperative that ‘‘required [the Baylor L. Rev. 595, 625 (2018) (‘‘The economic Court did not analyze whether work was important, homeworkers] to remain members at least a year’’). realities test fails to cope with innovative working but rather whether work was ‘‘part of an integrated 24 Julie Hotchkiss and Christopher Macpherson, arrangements.’’); Keith Cunningham-Parmeter, unit of production.’’ Rutherford Food, 331 U.S. at Falling Job Tenure: It’s Not Just about Millennials, From Amazon to Uber: Defining Employment in the 726. The Department proposes to return to the Federal Reserve Bank of Atlanta, June 8, 2015, Modern Economy, 96 B.U. L. Rev. 1673, 1683–84, Supreme Court’s original factors. https://www.frbatlanta.org/blogs/macroblog/2015/ 1688 (2016) (‘‘[P]ersistent uncertainty impacts an 21 See, e.g., Walter Powell and Kaisa Snellman, 06/08/falling-job-tenure-its-not-just-about- ever-expanding list of businesses in retail, service, The Knowledge Economy, 30 Annu. Rev. Sociol. millennials.aspx. home care, construction, information technology, 199–220 (2004). 25 Id. and the burgeoning on-demand economy.’’).

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benefit from competition. This dependent on a potential employer for relationship exists under the Fair Labor innovative practice depends on being work (employee); Standards Act’’ to interpret independent able to confidently classify workers as • provisions at § 795.105(c) and (d) contractor status under MSPA. independent contractors.27 For this describing factors examined as part of Nonetheless, MSPA imposes different reason, a clear standard for employee the economic reality test, including two legal obligations than the FLSA’s classification can help encourage multi- ‘‘core’’ factors—the nature and degree of minimum wage and overtime pay apping and other economic innovations. the worker’s control over the work and obligations and applies to different Under the status quo, a company may the worker’s opportunity for profit or employers and employees.29 And the loss—which are afforded greater weight believe it cannot be sure of a Department’s enforcement experience in the analysis, as well as three other classification outside of costly litigation does not indicate that there is confusion factors that may serve as additional applying the economic reality test regarding workers’ classifications as an (which may be too unwieldly as guideposts in the analysis; • employee or independent contractor in currently applied). The prospect of such a provision at § 795.110 advising the MSPA context to the same extent as litigation expense and any potential that the parties’ actual practice is more the FLSA context. As such, it is not back wages and penalties may be relevant than what may be contractually or theoretically possible; and entirely clear whether the justifications enough to deter businesses from • exploring innovative business models a severability provision at articulated in the need for rulemaking and working relationships. Thus, legal § 795.115. discussion in Section III apply in the These proposals would significantly uncertainty regarding worker MSPA context. The Department clarify how the Department classification may inhibit the therefore proposes to proceed distinguishes between employees and development of new job opportunities incrementally by first seeking comment independent contractors under the Act. or result in the elimination of existing on a revised interpretation of The Department welcomes comment independent contractor status under the jobs. on all aspects of its proposal. The Department is therefore issuing FLSA before considering whether to The Department further proposes to 30 this NPRM to provide greater legal adopt the above-described provisions as revise the MSPA regulations. The certainty and solicits comments on all its sole and authoritative interpretation Department welcomes comments these issues. of independent contractor status under regarding whether 29 CFR 500.20(h)(4) should be revised to be consistent with IV. Proposed Regulatory Provisions the FLSA. Accordingly, the Department would replace industry-specific the interpretation of independent In light of the foregoing concerns, the interpretations of independent contractor status set forth in this Department is proposing to introduce a contractor status for sharecroppers or proposed rule. new part to Title 29 of the Code of tenants at § 780.330(b) and certain A. Introductory Statements Federal Regulations addressing whether forestry or logging operations at particular workers are ‘‘employees’’ or § 788.16(a) with cross-references to the independent contractors under the Proposed § 795.100 explains that the interpretation set forth in this rule. interpretations provided in part 795 will FLSA. In relevant part, and as discussed These previous industry-specific in greater detail below, the Department guide WHD’s enforcement of the FLSA interpretations of independent and are intended to be used by proposes: contractor status all rely on the same • employers, businesses, the public Introductory provisions at § 795.100 FLSA terms as the interpretation set sector, employees, workers, and courts explaining the purpose and legal forth in this propose rule.28 As such, the to assess employment status authority for the new part; Department believes the justifications • a provision at § 795.105(a) articulated in the need for rulemaking classifications under the Act. Proposed explaining that independent contractors discussion in Section III, particularly § 795.100 further clarifies that, if are not employees under the FLSA; the need for a consistent and clear proposed part 795 is adopted, • a provision at § 795.105(b) standard for determining independent employers may safely rely upon the discussing the ‘‘economic reality’’ test contractor status in all FLSA cases, interpretations provided in part 795 for distinguishing FLSA employees from largely apply to the question of under section 10 of the Portal-to-Portal independent contractors, clarifying that independent contractor status in those Act, unless and until any such the concept of economic dependence industries. interpretation ‘‘is modified or rescinded turns on whether a worker is in business The Department considered, but is not or is determined by judicial authority to for him- or herself (independent proposing at this time, similar revisions be invalid or of no legal effect.’’ 29 contractor) or is economically to 29 CFR 500.20(h)(4), which addresses U.S.C. 259. independent contractor status under 27 Businesses have a strong incentive to restrict MSPA. The Department recognizes that multi-apping to independent contractors because an employee who multi-apps may create complicated MSPA adopts by reference the FLSA’s 29 questions regarding which of the multiple app definition of ‘‘employ,’’ see 18 U.S.C. See WHD Fact Sheet #49, ‘‘The Migrant and companies is responsible for FLSA obligations for 1802(5), and that 29 CFR 500.20(h)(4) Seasonal Agricultural Worker Protection Act’’ (Jul. time spent multi-apping. During the multi-app considers ‘‘whether or not an 2008). period, a worker would be searching for customers 30 See, e.g., Pharm. Research & Mfrs. of Am. v. on behalf of multiple app companies, and it independent contractor or employment FTC., 790 F.3d 198, 203 (D.C. Cir. 2015) (affirming therefore may be difficult or impractical to that agency had discretion to ‘‘proceeding determine the company or companies for which the 28 The interpretation of independent contractor incrementally’’ in promulgating rules that were worker is performing compensable work if he or she status under § 780.330(b) for sharecroppers or directed to one industry but not others); Inv. Co. is a non-exempt employee. This could raise tenants pertain to an exemption for certain Inst. v. Commodity Futures Trading Comm’n, 720 challenging questions that create legal risk for each ‘‘employee[s] employed in agriculture’’ under F.3d 370, 378 (D.C. Cir. 2013) (observing that employer. The Department believes that the greater section 13(a)(6) of the FLSA. The Department ‘‘[n]othing prohibits federal agencies from moving the legal certainty of workers’ respective believes the distinction this proposed rule draws in an incremental manner’’ (quoting F.C.C. v. Fox classifications, the more the Department encourages between independent contractors and employees Television Stations, Inc., 556 U.S. 502, 522 (2009)); innovative work arrangements like multi-apping by would apply in the agricultural exemption context City of Las Vegas v. Lujan, 891 F.2d 927, 935 (D.C. providing companies with clear frameworks to set because the same statutory terms, i.e., employee and Cir. 1989) (noting that ‘‘agencies have great up these arrangements. employ, are being interpreted. discretion to treat a problem partially’’).

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B. Proposal To Explain That whether, as a matter of economic reality, difference between what they pay for Independent Contractors Are Not the individual is economically goods, materials, and labor and what Employees Under the Act dependent on the potential employer for they receive for the end result, that is, Proposed § 795.105(a) explains that an work. See Pilgrim Equip., 527 F.2d at upon profits.’’). The above-described concept of independent contractor who renders 1311 (‘‘It is dependence that indicates economic dependence comports with services to a person is not an employee employee status.’’). However, all workers—employees and the FLSA’s definition of employ as of that person under the FLSA. This is independent contractors alike—are ‘‘includ[ing] to suffer or permit to consistent with the Supreme Court’s economically dependent on others to work.’’ See 29 U.S.C. 203(g). An affirmation in Rutherford Food that the some degree. Business owners are individual who depends on a potential Act’s definition of employee has likewise economically dependent on the employer for work is able to work only consistently been interpreted as workers they hire, but this does not by the sufferance or permission of the excluding individuals who ‘‘might work make them employees of their own potential employer. Such an individual for their own advantage,’’ including workers. The economic reality test can is therefore an employee under the Act. ‘‘independent contractors who take part be ‘‘ ‘a dimensionless and amorphous In contrast, an independent contractor in production or distribution.’’ 331 U.S. abstraction’ ’’ unless its touchstone— does not work at the sufferance or at 728–29; see also, e.g., Hopkins, 545 economic dependence—is clarified. permission of others because, as a F.3d at 342; Saleem, 854 F.3d at 139– Webb, 397 U.S. at 188 (quoting S. Rep. matter of economic reality, he or she is 40; Karlson, 860 F.3d at 1092. Minimum No. 1255, at 12 (1948)). As explained in in business for him- or herself. In other wage and overtime pay requirements the need for rulemaking discussion words, an independent contractor is an under sections 6 and 7 of the Act apply earlier in Section III, the meaning of entrepreneur who works for him- or only to a person’s employees. See 29 economic dependence is sometimes herself, as opposed to an employer. U.S.C. 206(a), 207(a)(1). As such, those inconsistently applied and would Some courts have relied on a worker’s requirements do not apply with respect benefit from further explanation. entrepreneurship with respect to one to a person’s independent contractors. Clarifying the test requires putting the type of work to conclude that the For the same reason, the recordkeeping question of economic dependence in the worker was also in business for him- or obligations for employers under section proper context. ‘‘Economic dependence herself in a second, unrelated type of 11 of the Act do not apply to a person is not conditioned reliance on an work. See, e.g., Parrish, 917 F.3d at 384 with respect to services received from alleged employer for one’s primary (considering ‘‘plaintiff’s enterprise, such an independent contractor. See 29 source of income, for the necessities of as the goat farm, as part of the overall U.S.C. 211(c) (‘‘Every employer subject life.’’ Mr. W Fireworks, 814 F.2d at 1054. analysis of how dependent plaintiffs to any provision of [the FLSA] shall Rather, courts have framed the question were on [defendant]’’ for working as make, keep, and preserve such records as ‘‘whether, as a matter of economic consultants); Thibault, 612 F.3d at 849 of the persons employed by him[.]’’) reality, the workers depend upon (concluding that plaintiff was an (emphasis added). someone else’s business for the independent contractor as a cable C. Proposal To Adopt the Economic opportunity to render service or are in splicer in part because he managed Reality Test To Determine a Worker’s business for themselves.’’ Saleem, 854 unrelated commercial operations and Employee or Independent Contractor F.3d at 139; see also Parrish, 917 F.3d properties in a different state). However, Status Under the Act at 379; Baker, 137 F.3d at 1440 (‘‘[T]he the Supreme Court was clear that the focal point is whether the individual is economic reality analysis is limited to Proposed § 795.105(b) adopts the economically dependent on the ‘‘the claimed independent operation.’’ economic reality test to determine a business to which he renders service Silk, 331 U.S. at 716. Thus, the relevant worker’s status as an employee or an . . . or is, as a matter of economic fact, question in this context is whether the independent contractor under the Act. in business for himself.’’) (internal worker providing certain service to a The Department’s analysis begins quotation marks and citation omitted); potential employer is an entrepreneur with the text of the statute, following Donovan v. Tehco, Inc., 642 F.2d 141, ‘‘in that line of business.’’ Mr. W well-settled principles of statutory 143 (5th Cir. 1981) (‘‘The focal inquiry Fireworks, 814 F.2d at 1054. Otherwise, construction by ‘‘reading the whole in the characterization process is thus businesses must make worker statutory text, considering the purpose whether the individual is or is not, as classification decisions based on facts and context of the statute, and a matter of economic fact, in business outside the working relationship, such consulting any precedents or authorities for himself.’’). In other words, the key as whether a consultant manages a ‘‘goat that inform the analysis.’’ Kasten v. question is whether workers are ‘‘more farm,’’ Parrish 917 F.3d at 384, or Saint-Gobain Performance Plastics closely akin to wage earners,’’ who whether a cable splicer owns an out-of- Corp., 563 U.S. 1, 7 (2011) (interpreting depend on others to provide work state commercial venture. Thibault, 612 the FLSA) (internal quotation marks and opportunities, or ‘‘entrepreneurs,’’ who F.3d at 849.31 citation omitted). An employer employs create work opportunities for At bottom, the phrase ‘‘economic an individual under the Act if the themselves. Mr. W Fireworks, 814 F.2d dependence’’ may mean many different employer ‘‘suffer[s] or permit[s]’’ the at 1051; see also Express Sixty-Minutes, things. But in the context of the individual to work. 29 U.S.C. 203(g). 161 F.3d at 305 (asking whether workers economic reality test, ‘‘economic Proposed § 795.105(b) codifies the ‘‘are more like wage earners than dependence’’ is best understood in Supreme Court’s statement that ‘‘suffer independent entrepreneurs’’); cf. H.R. terms of what it is not. The phrase or permit’’ means something broader Rep. No. 245, 80th Cong., 1st Sess. 18 excludes individuals who, as a matter of than the common law conception of (1947) (‘‘ ‘Employees’ work for wages or economic reality, are in business for control; namely, economic dependence. salaries under direct supervision. themselves. Such individuals work for See, e.g., Darden, 503 U.S. at 326. ‘Independent contractors’ undertake to themselves rather than at the sufferance Therefore, the Department proposes that do a job for a price, decide how the the central inquiry as to whether an work will be done, usually hire others 31 It is possible for a worker to be an employee individual is an employee or to do the work, and depend for their in one line of business and an independent independent contractor under the Act is income not upon wages, but upon the contractor in another.

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or permission of a potential employer, appeals, with certain proposed outweigh the combined weight of the see 29 U.S.C. 203(g), and thus are not clarifications. core factors.33 dependent on that potential employer First, the Department proposes to The following discussion addresses for work. Proposed § 795.105(b) follow the Second Circuit’s approach of the five economic reality factors, including proposed modifications and therefore recognizes the principle that, analyzing the worker’s investment as clarifications made to each, and as a matter of economic reality, workers part of the opportunity for profit or loss explains why the two core factors are who are in business for themselves with factor. The combined factor would ask entitled to greater weight than other respect to work being performed are whether the worker has an opportunity independent contractors for that type of factors. to earn profits or incur losses based on work. his or her exercise of initiative or 1. The Nature and Degree of the D. Proposal To Apply the Economic management of investments. Second, Individual’s Control Over the Work Reality Factors To Determine a Worker’s the Department proposes to clarify that The first economic reality factor Independent Contractor or Employee the ‘‘skill required’’ factor originally (proposed § 795.105(d)(1)(i)) is ‘‘the Status articulated by the Supreme Court nature and degree of the individual’s The uncertainty and unpredictability should be used, as opposed to the ‘‘skill control over the work.’’ 34 This factor of the traditional multifactor analysis of and initiative’’ factor currently used in would weigh towards the individual economic dependence has led some some circuits, because considering being an independent contractor to the courts and commentators to call for initiative as part of the skill factor extent that the individual, as opposed to alternative approaches. Judge creates unnecessary and confusing the potential employer, exercises Easterbrook’s concurrence in Lauritzen, overlaps with the control and substantial control over key aspects of for instance, urged the Seventh Circuit opportunity for profit or loss factors. the performance of the work. Examples to ‘‘abandon these unfocused ‘factors’ Third, the Department proposes to in the proposed regulatory text of an and start again.’’ 835 F.2d at 1543 further reduce overlap by analyzing the individual’s substantial control include (Easterbrook J., concurring). One exclusivity of the relationship as a part setting his or her own work schedule, commentator in a recent article has of the control factor only, as opposed to choosing assignments, working with proposed replacing the economic reality both the control and permanence little or no supervision, and being able factors with ‘‘three main dimensions to factors. Lastly, the Department proposes to work for others, including a potential entrepreneurship.’’ 32 The Department, to reframe the ‘‘whether the service employer’s competitors.35 In addition, however, prefers to sharpen the existing rendered is an integral part of the the Department agrees with courts that test, rather than to create a new test out alleged employer’s business’’ factor in have found that an individual worker’s of whole cloth, in part because many accordance with the Supreme Court’s ‘‘substantial control of the key aspects’’ existing work relationships are original inquiry of whether the work is of the work weighs in favor of structured around the current ‘‘part of an integrated unit of independent contractor classification multifactor test and wholesale production.’’ See Rutherford, 331 U.S. at ‘‘even if the worker is not solely in abandonment of that test may impose 729. control of the work.’’ Parrish, 917 F.3d undue and prohibitive adjustment costs at 381–82; see also Mid-Atl. Installation Proposed § 795.105(c) further Servs., 16 F. App’x at 106 (affirming the on the regulated community. Moreover, improves the certainty and the economic reality test, properly predictability of the test by focusing it construed and applied, is effective at 33 As discussed in greater detail below, the on two core factors: (1) The nature and distinguishing employees from Department’s review of federal appellate decisions degree of the worker’s control over the indicates that, when the two proposed core factors independent contractors. As such, work; and (2) the worker’s opportunity are in alignment, they point to what the court finds proposed § 795.105(c) and (d) would to be the individual’s correct classification. for profit or loss. These core factors, adopt a variation on the traditional 34 Many courts articulate this factor as the degree listed in proposed § 795.105(d)(1), are multifactor analysis of economic of control over the work by the potential employer highly probative to the inquiry because as opposed to by the worker. See, e.g., Razak, 951 dependence to improve certainty and the ability to control one’s work and to F.3d at 142; Hobbs, 946 F.3d at 829; McFeeley, 825 predictability, as well as increase the F.3d at 241; Keller, 781 F.3d at 807; Scantland, 721 earn profits and risk losses strikes at the test’s probative value into the F.3d at 1312. This distinction, however, is of no core of what it means to be an underlying question of economic consequence. As the proposed regulatory text and entrepreneurial independent contractor, this accompanying discussion make clear, the dependence. as opposed to a ‘‘wage earner’’ nature and degree of control over the work by the Proposed § 795.105(c) explains that worker and by the potential employer are employee. Mr. W Fireworks, 814 F.2d at certain nonexclusive economic reality considered to determine whether control indicates 1051; cf. FedEx Home Delivery v. NLRB, factors guide the determination of employee or independent contractor status. 563 F.3d 492, 497 (D.C. Cir. 2009) 35 See, e.g., Saleem, 854 F.3d at 147 (noting that whether an individual is, on one hand, (‘‘[I]ndependent contractors have the workers’ ‘‘flexible work schedules and economically dependent on a potential ‘significant entrepreneurial opportunity considerable control over when, where, and in what employer and therefore an employee or, circumstances to accept a . . . fare’’ indicated that for gain or loss[.]’ ’’). Other factors listed on the other, in business for him- or they were independent contractors); Parrish, 917 in proposed § 795.105(d)(2) are also F.3d at 382 (finding control factor favored herself and therefore an independent probative depending on the independent contractor status where workers ‘‘did contractor. These factors are listed in circumstances, but should be evaluated not have to accept a project’’ and occasionally § 795.105(d) and are based on economic ‘‘turned down projects without negative in the context of these two core factors. reality factors currently used by the repercussion’’); Thibault, 612 F.3d at 847 (finding Given their greater weight, if both control factor favored independent contractor status Department and most federal courts of proposed core factors point towards the where ‘‘supervisors would only come by same classification—whether employee occasionally, and never specified how [the worker] 32 Pivateau, supra note 26, at 631. The proposal should do the [work]’’); Express Sixty-Minutes would replace the six-factor approach with ‘‘the or independent contractor—there is a Delivery, 161 F.3d at 303 (determining that the three main dimensions to entrepreneurship,’’ which substantial likelihood that the potential employer ‘‘had minimal control’’ over the are: ‘‘(1) the processes and events that make up individual’s classification is accurate. delivery drivers where drivers ‘‘set their own hours entrepreneurship; (2) the skills and traits that This is because it is highly unlikely for and days of work,’’ ‘‘can work for other currier characterize an entrepreneur; and (3) the results delivery systems,’’ and ‘‘can reject deliveries that entrepreneurship generates.’’ Id. the other, less probative factors to without retaliation’’).

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district court’s conclusion that, although primarily enforced the Airport’s rules regarding this approach, including the the potential employer exercised some and [the city’s] regulations governing distinction being drawn between bona control over the work, the manner in the [drivers’] operations and conduct’’ fide quality control measures and which the workers completed their in finding that the potential employer control that is indicative of an work was ‘‘left to their broad discretion exercised ‘‘relatively little control over employment relationship. and business judgment, which suggests the manner in which the [d]rivers that they are independent contractors’’). performed their work’’); Mid-Atl. 2. The ‘‘Opportunity for Profit or Loss’’ In contrast, the control factor would Installation Servs., 16 F. App’x at 106 Factor weigh in favor of classification as an (rejecting an argument that backcharging The second economic reality factor employee to the extent that a potential the workers ‘‘for failing to comply with (proposed § 795.105(d)(1)(ii)) is ‘‘the employer, as opposed to the individual, various local regulations or with individual’s opportunity for profit or exercises substantial control over key technical specifications demonstrates loss.’’ In analyzing this factor, courts aspects of the work, including through the type of control characteristic of an generally consider whether such requirements that the individual work employment relationship,’’ and noting opportunities are based on personal exclusively for it during the working that withholding money in such initiative, managerial skill, or business relationship or prohibiting the circumstances is common in contractual acumen.37 The Second Circuit also individual from working for others after relationships); Mr. W Fireworks, 814 considers the individual’s opportunity that relationship ends. According to the F.2d at 1048 (finding that, because a for profit or loss based on investments. proposed regulatory text, a potential scheduling requirement was imposed by See Superior Care, 840 F.2d at 1060. employer may exercise substantial the potential employer and not by state The Department and courts of appeals control, for example, where it explicitly law, it suggested control over the outside of the Second Circuit have requires an exclusive working workers). traditionally analyzed ‘‘opportunity for relationship or where it imposes In addition, this aspect of the profit or loss’’ and ‘‘investment’’ as restrictions that effectively prevent an Department’s proposal is supported by separate factors, but at least some of individual from working with others. Cf. case law regarding FLSA joint employer those courts recognize that the two are Keller, 781 F.3d at 814 (‘‘[A] reasonable status. For example, the Second Circuit ‘‘interrelated.’’ Lauritzen, 835 F.2d at jury could find that the way that [the agreed that control with respect to 1537; see also McFeeley, 825 F.3d at potential employer] scheduled [the ‘‘contractual warranties of quality and 243. The Department believes the worker’s] installation appointments time of delivery has no bearing on the Second Circuit’s approach of combining made it impossible for [the worker] to joint employment inquiry’’ because the factors is preferable because it provide installation services for other such control is ‘‘perfectly consistent minimizes duplicative analysis of the companies.’’); Baker, 137 F.3d at 1441 with a typical, legitimate subcontracting same facts under different factors and (‘‘[T]he hours [the workers] are required relationship.’’ Zheng v. Liberty Apparel aligns more closely with the Supreme to work on a project (ten to fourteen Co. Inc., 355 F.3d 61, 75 (2d Cir. Court’s original analysis in Silk, 331 36 hours a day, six days a week), coupled 2003). U.S. at 717–19. with driving time between home and Moreover, control exercised by a As explained in the need for often remote work sites each day, make potential joint employer over a rulemaking discussion in Section III, it practically impossible for them to contractor’s employees to ‘‘ensure treating ‘‘opportunity for profit or loss’’ offer services to other employers.’’). compliance with various safety and and ‘‘investment’’ as separate factors However, a ‘‘non-disclosure agreement security regulations’’ has been found to results in duplicative analysis of the does not require exclusive be ‘‘qualitatively different’’ from control same facts. For example, in Mid-Atlantic employment.’’ Parrish, 917 F.3d at 382; that indicates employer status. Moreau Installation Services, the Fourth Circuit v. Air France, 356 F.3d 942, 950–51 (9th see also Talbert, 405 F. App’x at 85 found that the opportunity for profit or Cir. 2003). Accordingly, the Department (‘‘[T]here is nothing in the confidential loss factor weighed in favor of agrees with the above case law that the agreement that would have precluded independent contractor status because types of control listed in the last . . . working for other[s].’’). the cable installer’s ‘‘net profit or loss Proposed § 795.105(d)(1)(i) clarifies sentence of proposed § 795.105(d)(1)(i) depends on [in part] . . . the business that requiring an individual to comply are ‘‘qualitatively different’’ from acumen with which the Installer makes with specific legal obligations, satisfy control that evinces employer status. health and safety standards, carry Moreau, 343 F.3d at 1189; see also 37 See, e.g., Karlson, 860 F.3d at 1094–95 insurance, meet contractually agreed- Iontchev, 685 F. App’x at 550; Mid- (discussing how the worker’s decisions and choices upon deadlines or quality control Atlantic Installation Servs., 16 F. App’x regarding assignments and customers affected his standards, or satisfy other similar terms at 106; Mr. W Fireworks, 814 F.2d at profits); Saleem, 854 F.3d at 145 (noting in support that are typical of contractual 1048; Freund, 185 F. App’x at 783. The of independent contractor status that the degree to which the worker’s relationship with the potential relationships between businesses (as Department welcomes comment employer ‘‘yielded returns was a function . . . of opposed to employment relationships) the business acumen of each [worker]’’); McFeeley, does not constitute control that makes 36 See also, e.g., Godlewska v. HDA, 916 F. Supp. 825 F.3d at 243 (‘‘The more the worker’s earnings the individual more or less likely to be 2d 246, 259 60 (E.D.N.Y. 2013), aff’d sub nom. depend on his own managerial capacity rather than Godlewska v. Human Dev. Ass’n, Inc., 561 F. App’x the company’s . . . the less the worker is an employee under the Act. These 108 (2d Cir. 2014) (‘‘Quality control and compliance economically dependent on the business and the requirements frequently apply to work monitoring . . . are qualitatively different from more he is in business for himself and hence an performed by employees and control that stems from the nature of the independent contractor.’’) (internal quotation marks independent contractors alike; as such, relationship between the employees and the omitted); Express Sixty-Minutes, 161 F.3d at 304 putative employer.’’ (quotation marks omitted)); (agreeing with district court that ‘‘driver’s profit or they are not probative as to whether a Jacobson v. Comcast Corp., 740 F. Supp. 2d 683, loss is determined largely on his or her skill, working relationship is one of 691–92 (D. Md. 2010) (holding that the potential initiative, ability to cut costs, and understanding of employment or independent joint employer’s ‘‘quality control procedures . . . the courier business.’’); WHD Opinion Letter contracting. The case law supports this [were] qualitatively different from the control FLSA2019–6 at 6 (‘‘These opportunities typically exercised by employers over employees’’); Thornton exist where the worker receives additional approach. See, e.g., Iontchev, 685 F. v. Charter Commc’ns, LLC, No. 4:12CV479 SNLJ, compensation based, not [merely] on greater App’x at 550 (noting that the potential 2014 WL 4794320, at *16 (E.D. Mo. Sept. 25, 2014) efficiency, but on the exercise of initiative, employer’s ‘‘disciplinary policy (same). judgment, or foresight.’’).

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his required capital investments in is whether workers are more like return on their risky capital tools, equipment, and a truck.’’ 16 F. unloaders whose profits were based investments.’’ Mr. W. Fireworks, 814 App’x at 106. The court further held solely on ‘‘the work of their hands and F.2d at 1051. that the investment factor also pointed [ ] simple tools’’ or the drivers whose The Department is therefore in that direction based on those same profits depended on their initiative and proposing to adopt an approach similar facts, i.e., the installers ‘‘suppl[ied] their investments. See id.; see also Rutherford to that of the Second Circuit, which own trucks (equipped with 28-foot Food, 331 U.S. at 730 (concluding that analyzes the worker’s investment as part ladders), specialized tools, uniforms, workers were employees in part because of the opportunity for profit or loss and pagers.’’ Id. at 107. Such their opportunity for profit ‘‘was more factor. The combined factor would duplicative analysis is unwieldly, and it like piecework than an enterprise that weigh towards the individual being can be potentially confusing where the actually depended for success upon the classified as an independent contractor two factors analyzing the same facts initiative, judgment or foresight of the if he or she has an opportunity for profit reach opposite conclusions regarding a typical independent contractor’’). or loss based on either or both: (1) The worker’s classification. See, e.g., Not all courts follow the Second exercise of personal initiative, including Parrish, 917 F.3d at 382–85; Cromwell, Circuit and the Supreme Court’s managerial skill or business acumen; 348 F. App’x at 61. approach of analyzing investment and/or (2) the management of The Second Circuit avoids through the lens of profit and loss. investments in, or capital expenditure duplication and potential confusion by Some, for instance, ‘‘use[ ] a side-by-side on, for example, helpers, equipment, or analyzing investment and opportunity comparison method’’ that directly material. While the effects of the for profit or loss together. Under this ‘‘compare[s] ‘each worker’s individual individual’s exercise of initiative and approach, the worker’s meaningful investment to that of the alleged management of investment are both capital investments may evince employer.’ ’’ Parrish, 917 F.3d at 383 considered under this factor, for reasons opportunity for profit or loss: (quoting Hopkins, 545 F.3d at 344); see explained above, the individual would ‘‘[e]conomic investment, by definition, also, e.g., Keller, 781 F.3d at 810 not need to have an opportunity for creates the opportunity for loss, [and] (agreeing that ‘‘courts must compar[e] profit or loss based on both for this investors take such a risk with an eye to the worker’s investment in the factor to weigh towards the individual profit.’’ Saleem, 854 F.3d at 145 n.29. equipment to perform his job with the being an independent contractor. This But investment is not the only way to [potential employer’s] total factor would weigh towards the satisfy this factor because workers who investment’’). In Hopkins, for example, individual being an employee to the ‘‘invest little’’ may nonetheless have an the Fifth Circuit held that insurance extent the individual is unable to affect opportunity for profit through the sales leaders’ investments were his or her earnings through initiative or exercise of personal initiative. Meyer, insignificant because ‘‘it is clear that investment or is only able to do so by 607 F. App’x at 121; accord Parrish, 917 [the insurance company’s] investment— working more hours or more F.3d at 384–85; Express Sixty-Minutes, including maintaining corporate offices, efficiently.38 161 F.3d at 304. In short, meaningful printing brochures and contracts, The Department also considered investment is a sufficient but not providing accounting services, and keeping opportunity for profit or loss necessary dimension of the opportunity developing and underwriting insurance and investment as separate factors in its for profit or loss. See Lauritzen, 835 products—outweighs the personal proposal, but believes that approach F.2d at 1540–41 (Easterbrook, J. investment of any one Sales Leader.’’ may be needlessly duplicative and concurring) (‘‘[P]ossess[ing] little or no 545 F.3d at 344. confusing for reasons stated above. If physical capital . . . is true of many But such a ‘‘side-by-side comparison investment were kept as a separate workers we would call independent method’’ does not illuminate the factor, the Department would emphasize contractors. Think of lawyers, many of ultimate question of economic that the factor should not reconsider whom do not even own books. The bar dependence. See Karlson, 860 F.3d at opportunity for profit or loss. Instead, it sells human capital rather than physical 1096 (‘‘[C]omparing the amount Karlson would focus on whether a worker’s capital, but this does not imply that spent . . . with [potential employer’s] investment (or lack thereof) in the lawyers are ‘employees’ of their clients total expenses in operating APS has equipment, materials, technology, etc. under the FLSA.’’); see also Faludi, 950 little relevance . . . [because] [l]arge necessary to perform the worker’s work F.3d at 275 (‘‘Faludi provided his own corporations can hire independent phone and computer’’ and ‘‘made contractors, and small businesses can 38 Workers who are paid on a piece-rate basis are investments in his continuing education hire employees.’’). Indeed, it merely an example of workers who are able to affect their earnings only through working more hours or more and home office equipment’’). highlights the obvious and unhelpful efficiently. Courts have generally agreed that such The Second Circuit’s approach of fact that individual workers—whether workers lack meaningful opportunity for profit or combining opportunity for profit or loss employees or independent contractors— loss. See, e.g., Whitaker House, 366 U.S. at 33 and investment is also more faithful to likely have fewer resources than (plaintiffs who manufactured knitted goods at home were employees under the FLSA, in part, because the Supreme Court’s original analysis in businesses that, for example, ‘‘[t]he management fixes the piece rates at which Silk. See 331 U.S. at 716. In that case, ‘‘maintain[ ] corporate offices,’’ see they work’’); Hodgson v. Cactus Craft of Arizona, the Court listed the two factors Hopkins, 545 F.3d at 344, or drill oil 481 F.2d 464, 467 (9th Cir. 1973) (persons who separately but analyzed them together. wells, see Parrish, 917 F.3d at 383 manufacture novelty and souvenir gift items at homes and were compensated at a piece rate were In particular, the Court found that coal (‘‘Obviously, [the oil drilling company] employees under the FLSA). In DialAmerica, 757 unloaders were employees because they invested more money at a drill site F.2d at 1385, for example, the Third Circuit held had ‘‘no opportunity to gain or lose compared to each plaintiff’s that homeworkers who were paid on a piece-rate except from the work of their hands and investments.’’). In contrast, analyzing basis to perform the simple service of researching telephone numbers were employees who lacked [ ] simple tools,’’ while truck drivers investment as part of individuals’ meaningful opportunity for profit or loss. In who invested in their own vehicles had opportunity for profit or loss illuminates contrast, distributors who recruited and managed ‘‘opportunity for profit from sound the ultimate inquiry of whether researchers and were paid based on the management’’ of that investment by, for individuals are ‘‘more closely akin to productivity of those they managed were independent contractors, in part, because instance, hauling for different wage earners toiling for a living, than to distributors’ earnings depended on ‘‘business-like customers. Id. at 719. Thus the question independent entrepreneurs seeking a initiative.’’ Id. at 1387.

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renders the worker more or less enough initiative to have a meaningful 825 F.3d at 241; Keller, 781 F.3d at 807; economically dependent on the opportunity for profit or loss but Scantland, 721 F.3d at 1312. However, potential employer for work. The apparently not enough to satisfy the they sometimes redundantly analyze the Department welcomes comments on this ‘‘skill and initiative required’’ factor. exclusivity of the working relationship alternative approach. Express Sixty-Minutes, 161 F.3d at 304– as part of the permanence factor. The 05. This calls into question the control factor already considers whether 3. The ‘‘Skill Required’’ Factor relevance of initiative as part of a a worker has freedom to pursue external ‘‘The amount of skill required for the separate skill factor. opportunities by working for others, work’’ is an economic reality factor The Department therefore proposes to including a potential employer’s rivals. under proposed § 795.105(d)(2)(i). The clarify that this factor should focus on See, e.g., Freund, 185 F. App’x at 783 Supreme Court articulated the ‘‘skill the ‘‘amount of skill required,’’ as (affirming district court’s finding that required’’ factor in Silk, 331 U.S. at 716, originally articulated by the Supreme ‘‘Hi–Tech exerted very little control which several courts of appeals Court in Silk, 331 U.S. at 716, and used over Mr. Freund,’’ in part, because continue to consider as ‘‘the degree of today by several courts of appeals, see, ‘‘Freund was free to perform skill required to perform the work.’’ e.g., Paragon, 884 F.3d at 1235; installations for other companies’’).39 Paragon, 884 F.3d at 1235; see also Iontchev, 685 F. App’x at 550; Keller, The same concept of exclusivity is then Iontchev, 685 F. App’x at 550; Keller, 781 F.3d at 807. Notably, this factor re-analyzed as part of the permanence 781 F. 3d at 807. The Department and would not include a consideration of factor. Compare id. (‘‘Freund’s other courts of appeals, however, have ‘‘initiative’’ (or the related concepts of relationship with Hi–Tech was not one traditionally expanded this factor to judgment and foresight) because facts with a significant degree of permanence include consideration of ‘‘initiative’’ related to initiative are considered as . . . [because] Freund was able to take and ‘‘judgment.’’ See, e.g., Parrish, 917 part of the control and opportunity for jobs from other installation brokers.’’), F.3d at 379; Karlson, 860 F.3d at 1093; profit or loss factors. Proposed with Scantland, 721 F.3d at 1319 Superior Care, 840 F.2d at 1058–59; see § 795.105(d)(2)(i) thus explains that the (finding installation technicians’ also WHD Fact Sheet #13. This ‘‘skill required’’ factor weighs in favor of relationships with the potential expansion was intended to increase the classification as an independent employer were permanent because they probative value of the skill factor by contractor where the work at issue ‘‘could not work for other companies’’). analyzing therein the worker’s capacity requires specialized training or skill that Such duplicative analysis of to ‘‘exercise significant initiative within the potential employer does not exclusivity under the permanence factor the business.’’ See Parrish, 917 F.3d at provide. Otherwise, it weighs in favor of is not supported by the Supreme Court’s 379; see also Selker Bros., 949 F.2d at classification as an employee. original articulation of that factor in 1295 (‘‘[T]he use of special skills is not The Department believes that this Silk. See 331 U.S. at 716 (analyzing the itself indicative of independent approach would sharpen the distinction ‘‘regularity’’ of unloaders’ work); id. at contractor status, especially if the between the economic reality factors by 719 (analyzing truck drivers’ ability to workers do not use those skills in any focusing on skill, as opposed to aspects work ‘‘for any customer’’ as an aspect of independent way.’’); Superior Care, 840 of control. The worker’s ability to ‘‘the control exercised’’ but not F.2d at 1060 (same). But the worker’s exercise initiative would remain more permanence); see also 12 FR 7967 capacity to exercise on-the-job initiative important than the presence of skill (describing the permanence factor as is already analyzed in multiple ways because it would be analyzed under the pertaining to ‘‘continuity of the under the control factor, including, for control factor, a core factor that would relation’’ but with no reference to example, whether the worker controls be given more weight than the skill exclusivity). Nor is the concept of the means and manner of work, decides factor. And the effect of the worker’s exclusivity part of the common when to work, or choice of assignments. initiative would be analyzed under the understanding of the word Express Sixty-Minutes, 161 F.3d at 304. opportunity for profit or loss factor, ‘‘permanent.’’ 40 In a similar vein to the And the effects of a worker’s initiative another core factor that would be given Department’s analysis of the concept of are already analyzed as part of the more weight. The Department initiative, the Department believes opportunity for profit or loss factor. Id. considered keeping initiative as an analysis of exclusivity as part of the As explained in the need for aspect of the skill factor, but believes permanence factor dilutes the rulemaking discussion in Section III, that such an approach may be significance of actual permanence importing aspects of the control factor needlessly duplicative and confusing for within that factor, blurs the lines into the skill factor has diluted the the reasons stated above. The between the economic reality factors, consideration of actual skill to the point Department welcomes comment on this of near irrelevance. In many cases, alternative approach. 39 In addition, the opportunity for profit or loss analysis of control rather than skill factor considers whether a worker’s decisions to drives whether the skill factor favors 4. The ‘‘Permanence of the Working work for others affects profits or losses. See, e.g., Relationship’’ Factor Freund, 185 F. App’x at 783 (affirming the district independent contractor or employee court’s finding that the ‘‘looseness of the status. See, e.g., Selker Bros., 949 F.2d ‘‘The degree of permanence of the relationship between Hi–Tech and Freund at 1295; Baker, 137 F.3d at 1443; working relationship between the permitted him great ability to profit,’’ in part, Superior Care, 840 F.2d at 1060. The individual and the potential employer’’ because ‘‘Freund could have accepted installation jobs from other companies.’’). The Department does Department believes such dilution is an economic reality factor under not believe this consideration overlaps with the generates confusion regarding the proposed § 795.105(d)(2)(ii). Courts and control factor. While the control factor concerns the relevance and weight of the worker’s the Department routinely consider this ability to work for others, the opportunity for profit skill in the evaluation of economic factor when applying the economic or loss factor concerns the effects of doing so. 40 See Merriam-Webster Dictionary, https:// dependence. It also blurs the lines reality analysis under the FLSA to www.merriam-webster.com/dictionary/permanent between the economic reality factors, determine employee or independent (defining permanent as ‘‘continuing or enduring thereby undermining the structural contractor status. See, e.g., WHD without fundamental or marked change’’); see also benefits of a multifactor test. Opinion Letter FLSA2019–6 at 4; Razak, Oxford American Dictionary 1980 (defining permanent as ‘‘lasting or meant to last Furthermore, as at least one court of 951 F.3d at 142; Hobbs, 946 F.3d at 829; indefinitely’’); Merriam-Webster Pocket Dictionary appeals has found, workers can exercise Karlson, 860 F.3d at 1092–93; McFeeley, 1947 (defining permanent as ‘‘Lasting; enduring’’).

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and creates confusion by incorporating status if the work performed is so The word ‘‘integral’’ can mean either a concept that is distinct from important that it is central to or at ‘‘[t]he very important or integrated.42 As some permanence. heart of [the potential employer’s] courts recognize, a worker can perform Because the worker’s ability to work business.’’ Werner v. Bell Family Med. services that are important to a business for others is already analyzed as part of Ctr., Inc., 529 F. App’x 541, 545 (6th Cir. without being integrated, meaning the control factor, proposed 2013); see also Baker, 137 F.3d at 1443 merged, into that business’s operations. § 795.105(d)(2)(ii) articulates the (‘‘[R]ig welders’ work is an important, See, e.g., Green v. Premier Telecomm. permanence factor without referencing and indeed integral, component of oil Servs., LLC, No. 1:16–CV–0332–LMM, the exclusivity of the relationship and gas pipeline construction work.’’); 2017 WL 4863239, at *14 (N.D. Ga. Aug. between the worker and potential Lauritzen, 835 F.2d at 1537–38 15, 2017) (‘‘While certainly Plaintiff employer. This proposal does not (‘‘[P]icking the pickles is a necessary performing his job was integral to require any changes to the articulation and integral part of the pickle Premier’s bottom-line, unlike in of this factor because the current Rutherford, Plaintiff did not perform articulation, i.e., ‘‘the permanency of the business[.]’’); DialAmerica, 757 F.2d at 1385 (‘‘[W]orkers are more likely to be one step in an integrated system.’’). working relationship,’’ provides no hint Federal courts of appeals typically ‘employees’ under the FLSA if they that exclusivity is also considered. This considered integration of worker into perform the primary work of the alleged approach would focus the permanence the potential employer’s production employer.’’). factor on the continuity and duration of process until the 1970s. See, e.g., the working relationship, which align The Department is concerned that this Driscoll, 603 F.2d at 754 (‘‘Appellants’ both with how the factor was originally focus on importance or centrality activities appear to be an integral part of articulated and with the plain meaning departs from the Supreme Court’s Driscoll’s strawberry growing operation, of ‘‘permanence.’’ The permanence original articulation of the economic rather than an independently viable factor would weigh in favor of an reality test, has limited probative value enterprise.’’); Mednick v. Albert individual being classified as an regarding the ultimate question of Enterprises, Inc., 508 F.2d 297 (5th Cir. independent contractor where his or her economic dependence, and may be 1975) (asking whether the service ‘‘was working relationship with the potential misleading in some instances. As such, [ ]an integrated part of the business of [a employer is by design definite in proposed § 795.105(d)(2)(iii) would potential employer] in the same way as duration or sporadic. In contrast, the clarify that the ‘‘integral part’’ factor the work of the meat boners in factor would weigh in favor of should instead consider ‘‘whether the Rutherford.’’); Tobin v. Anthony- classification as an employee where the work is part of an integrated unit of Williams Mfg. Co., 196 F.2d 547, 550 individual and the potential employer (8th Cir. 1952) (‘‘The haulers and woods have a working relationship that is by production,’’ which aligns with the Supreme Court’s analysis in Rutherford workers here are such an integrated part design indefinite in duration or of defendant’s production.’’).43 Starting continuous. The Department notes that Food, 331 U.S. at 729. As explained earlier, the ‘‘integral part’’ factor was not in the 1980s, courts instead began to the seasonal nature of some jobs does analyze whether the work is important not necessarily suggest independent one of the distinct factors identified in Silk as being ‘‘important for decision.’’ to the potential employer. See, e.g., contractor classification, especially Lauritzen, 835 F.2d 1529, 1534–35; where the worker’s position is 331 U.S. at 716.41 Nor was the importance of the work discussed in DialAmerica Mktg., 757 F.2d at 1386. permanent for the duration of the Focusing on whether an individual’s relevant season and where the worker Rutherford Food as one of the distinct work is important to a potential has done the same work for multiple considerations. Instead, Rutherford employer has questionable probative seasons. See Paragon Contractors, 884 Food observed that the work at issue value regarding the issue of economic F.3d at 1236–37. was ‘‘part of an integrated unit of dependence, and may even be The Department also considered production’’ in the potential employer’s keeping exclusivity as part of this factor counterproductive in some cases. Judge business and concluded that workers Easterbrook’s Lauritzen concurrence but changing the articulation to were employees in part because they ‘‘permanence and exclusivity of the argued that asking whether work is ‘‘work[ed] alongside admitted integral ‘‘has neither significance nor working relationship’’ to be more employees of the plant operator at their accurate. However, the Department tasks.’’ 331 U.S. at 729. The 1947 42 Compare, e.g., Cambridge Dictionary, https:// believes that such an approach may be proposed Treasury regulations under dictionary.cambridge.org/us/dictionary/english/ needlessly duplicative and confusing for the Social Security Act articulated the integral (defining integral as ‘‘necessary and important’’) with Merriam-Webster Dictionary, the reasons stated above. The sixth factor of the economic reality test Department welcomes comments on this https://www.merriam-webster.com/dictionary/ in line with Rutherford Food’s integral (defining ‘‘integral’’ as ‘‘formed as a unit alternative approach. ‘‘integrated unit’’ discussion as: with another part’’); see also Merriam Webster 5. The ‘‘Integrated Unit’’ Factor ‘‘[i]ntegration of the individual’s work Pocket Dictionary 1947 (defining integral as either ‘‘Needed for completeness’’ or ‘‘Composed of parts The Department and courts outside of in the businesses to which he renders that make up a whole’’). the Fifth Circuit have typically services,’’ which concerned ‘‘the merger 43 The Department has generally used ‘‘integral’’ of the individual’s services into the rather than ‘‘integrated’’ in its subregulatory articulated the sixth factor of the guidance since the 1950s. See WHD Opinion Letter economic reality test as ‘‘the extent to businesses, so that such services (Aug. 13, 1954); WHD Opinion Letter (Feb. 8, 1956). which services rendered are an integral constitute a part of the unity or whole A 2002 opinion letter interpreted the factor to focus part of the [potential employer’s] which comprise such business.’’ 12 FR on the importance of the work, explaining that at 7966–67. ‘‘[w]hen workers play a crucial role in a company’s business.’’ WHD Fact Sheet #13. Under operation, they are more likely to be employees this articulation, the ‘‘integral part’’ than independent contractors.’’ WHD Opinion factor considers ‘‘the importance of the 41 Silk did ask whether workers themselves were Letter, 2002 WL 32406602, at *3 (Sept. 5, 2002). services rendered to the company’s ‘‘an integral part of [defendants’] businesses,’’ as However, the Department’s most recent opinion opposed to operating their own businesses, but that letter on this subject characterized the factor as ‘‘the business.’’ McFeeley, 825 F.3d at 244. In question was presented as the ultimate economic extent of the integration of the worker’s services line with this thinking, courts generally reality inquiry, as opposed to a factor to be weighed into the potential employer’s business.’’ WHD state that this factor favors employee in that analysis. 331 U.S. at 716. Opinion Letter FLSA2019–6 at 6 (emphasis added).

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meaning’’ because ‘‘[e]verything the many sectors of the economy,45 firms could be a disputed material fact’’ employer does is ‘integral’ to its become more willing to hire whether Uber is ‘‘a technology company business—why else do it?’’ 835 F.2d at independent contractors for vital or that supports drivers’ transportation 1541 (Easterbrook, J. concurring) integral tasks, further diminishing the businesses, and not a transportation (emphasis in original); see also Zheng, probative value of the importance of the company that employs drivers.’’). Under 355 F.3d at 73 (cautioning in the joint work. this view, the intermediary company’s employer context that interpreting the Focusing on the importance of work ‘‘business operations effectively factor to focus on importance ‘‘could be can sometimes send misleading signals terminate at the point of connecting said to be implicated in every regarding economic dependence. For service providers to consumers and do subcontracting relationship, because all instance, some courts have explained not extend to the service provider’s subcontractors perform a function that a that ‘‘easily replaceable’’ workers are actual provision of services.’’ WHD general contractor deems ‘integral’ to a less integral to a business, and therefore, Opinion Letter FLSA2019–6 at 10. product or a service’’) (emphasis in are less dependent on that business. While intermediary companies are more original). Some courts have explained Browning v. Ceva Freight, LLC, 885 F. prevalent in the virtual marketplace, that ‘‘a worker who performs a routine Supp. 2d 590, 610 (E.D.N.Y. 2012); see they are not limited to that context.48 task that is normal and integral to the also Velu v. Velocity Exp., Inc., 666 F. For instance, health care brokers may be putative employer’s business is likely to Supp. 2d 300, 307 (E.D.N.Y. 2009) intermediaries that are in the business be dependent on the defendant’s overall (observing that integrality to business of connecting health care providers to enterprises.’’ Beck v. Boce Grp., L.C., diminished where ‘‘work is health care consumers. See State Dep’t 391 F. Supp. 2d 1183, 1192 (S.D. Fla. interchangeable with the work of of Employment, Training & Rehab., 2005); see also Charles v. Burton, 169 other[s]’’). But the workers in Employment Sec. Div. v. Reliable Health Rutherford Food were also ‘‘easily F.3d 1322, 1332–33 (11th Cir. 1999) Care Servs. of S. Nevada, Inc., 983 P.2d replaceable’’ precisely because they (same). This explanation, however, may 414, 419 (Nev. 1999) (‘‘[W]e cannot were ‘‘part of the integrated unit of be flawed: If certain workers perform ignore the simple fact that providing production’’ of a slaughterhouse tasks that are important to a business, patient care and brokering workers are processing line, which in turn indicated the logical inference is that the business two distinct businesses.’’). they were employees. 331 U.S. at 729. Analyzing the importance of services is dependent on those workers—not the More often than not, easily replaceable to a potential employer often first reverse. Put differently, the relative workers are more dependent on that requires characterizing the potential importance of the worker’s task to the business for work—not less. Thus, employer’s business as either an business of the potential employer says focusing on the worker’s importance to intermediary or a direct provider of nothing about whether the worker a business under the ‘‘integral part’’ services. But that characterization, in economically depends on that business factor may obscure rather than turn, requires answering the economic for work. illuminate the ultimate economic dependence question. If a potential Other courts have explained that ‘‘it is dependence inquiry. employer is an intermediary company presumed that, with respect to vital or Finally, analyzing the importance of that merely connects service providers integral parts of the business, the work under the ‘‘integral part’’ factor with customers, those service providers employer will prefer to engage an may send misleading signals due to the would have distinct businesses of their employee rather than an independent increasing difficulty of defining own. WHD Opinion Letter FLSA2019–6 contractor. This is so because the important or core functions of a growing at 10. As such, they would not be a part, employer retains control over the number of intermediary companies let alone an essential or important part, employee and can compel attendan[ce] whose main activity is ‘‘selling of the potential employer’s business. at work on a consistent basis.’’ reductions in transaction costs.’’ 46 By Analyzing the importance of services to Dataphase, 781 F. Supp. at 735; see also one view, the core functions of a evaluate economic dependence thus Barnard Const., 860 F. Supp. at 777, company that connects service becomes a circular exercise. The factor aff’d sub nom. Baker v. Flint Eng’g & providers to customers might be the considers whether workers’ services are Const. Co., 137 F.3d 1436 (10th Cir. service being provided. See O’Connor v. an important part of the potential 1998) (same). But the control factor Uber Techs., Inc., 82 F. Supp. 3d 1133, employer’s business to answer the already directly analyzes whether a 1153 (N.D. Cal. 2015) (‘‘[D]rivers ultimate inquiry of whether workers business can compel a worker to work perform a regular and integral part of provide services as part of their own on a consistent basis. See, e.g., Nieman, Uber’s business[.]’’). But in another distinct businesses. See Silk, 331 U.S. at 775 F. App’x at 625 (‘‘The first factor— view, such a company’s core services 716 (asking whether workers were ‘‘an control—weighs in favor of independent might be connecting service providers integral part of [defendants’] contractor status because Nieman . . . and customers.47 See Razak, 951 F.3d at businesses,’’ as opposed to operating controlled his schedule.’’). It is unclear 147 n. 12 (‘‘We also believe [there] their own businesses, as the ultimate why there is a need to indirectly analyze inquiry, rather than a discrete factor to control by presuming a relationship 45 See, e.g., L. Katz and A. Krueger, ‘‘The Rise and be weighed). Nature of Alternative Work Arrangements in the For these reasons, proposed between vital or integral services and United States, 1995–2015,’’ p. 25 (2018) (‘‘Coase’s control. Nor is it clear that such (1937) classic explanation for the boundary of firms § 795.105(d)(2)(iii) would rearticulate presumption survives scrutiny because rested on the minimization of transaction costs the ‘‘integral part’’ factor in accordance businesses appear to routinely hire within firm-employee relationships. Technological with the Supreme Court’s original changes may be reducing the transaction costs inquiry in Rutherford Food of whether independent contractors over whom associated with contracting out job tasks, however, they exercise little control to perform and thus supporting the disintermediation of the work was ‘‘part of the integrated vital or integral services.44 Indeed, as work.’’). unit of production,’’ with an emphasis transaction costs fall, as is the trend in 46 See Michael Munger, Tomorrow 3.0: Transaction Costs and the Sharing Economy, 51 48 See id. at 125 (‘‘The idea of a ‘gig economy’ is (2018). old, but the possibility of serial short term 44 See, e.g., Iontchev, 685 F. App’x at 551; Meyer, 47 See id. at 61 (‘‘The middleman makes possible employment or ‘gigs’ are expanding rapidly’’ 607 F. App’x at 123; Freund, 185 F. App’x at 784; transactions that otherwise could not take place because ‘‘entrepreneurs have found [new] ways to Mid-Atl. Installation Servs., Inc., 16 F. App’x at 107. . . . [by] selling transaction cost reduction[.]’’). sell reductions in transaction costs.’’).

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that the factor is different from the Conversely, if the individual’s work is classification. The discussion below concept of importance or centrality. not integrated into the potential explains in greater detail why Courts that have applied the ‘‘integral employer’s production process, the Department’s proposes to focus the part’’ factor to analyze integration rather factor would favor classification as an economic reality test on the two core than importance have typically independent contractor. This includes factors in § 795.105(d)(1) over the other grounded this factor to the specific where an individual service provider is factors listed in § 795.105(d)(2) and any circumstances in Rutherford Food. The able to perform his or her duties without additional factors that may be Second Circuit, for example, recognized depending on the potential employer’s considered. in a joint employer case that this factor production process. Green, 2017 WL The Department proposes a focus on was derived from the Supreme Court’s 4863239, at *14 (‘‘[U]nlike in the two core factors in light of the focus on the fact that the Rutherford Rutherford, [residential cable installer] sharpened articulation of economic Food plaintiffs ‘‘did a specialty job on . . . was not dependent on Premier’s dependence in proposed § 795.105(b). the production line,’’ and thus limited overall process to execute his duties.’’). The Supreme Court cautioned that this factor’s application to the Thus, performance of discrete, control is not the sole consideration, see production line or an analogous context. segregable services for individual Rutherford Food, 331 U.S. at 730, but it Zheng, 355 F.3d at 73 (‘‘[W]e construe customers is not part of an integrated did not deny that factor’s significance in Rutherford to mean that work on a unit of production. See WHD Opinion the analysis. Indeed, the Court production line occupies a special Letter FLSA 2019–6 at 11 (concluding recognized that, ‘‘[o]bviously control is status under the FLSA[.]’’); see also that the workers who provide services to characteristically associated with the Antenor v. D & S Farms, 88 F.3d 925, the virtual marketplace company’s employer-employee relationship,’’ Bartels, 332 U.S. at 130. And the 937 (11th Cir. 1996) (asking whether individual customers ‘‘are not integrated opportunity for profit and loss factor is workers ‘‘were analogous to employees into [the company]’s referral business’’). more closely tied to the concept of working at a particular position on a The Department welcomes comments on this approach to the ‘‘integrated economic dependence than any other larger production line’’); Mednick, 508 unit’’ factor. factors because it is a necessary F.2d at 300 (analyzing whether the The Department considered removing component of being in business for service ‘‘was [ ]an integrated part of the the ‘‘integral part’’ factor instead of oneself. As the D.C. Circuit observed in business of [a potential employer] in the rearticulating it as the above-described an NLRA case, ‘‘ ‘significant same way as the work of the meat ‘‘integrated unit’’ factor, in part, out of entrepreneurial opportunity for gain or boners in Rutherford’’); Green, 2017 WL concern that the ‘‘integrated unit’’ factor loss’ . . . [even] better captures the 4863239, at *14 (‘‘[U]nlike in may have limited applicability in the distinction between an employee and an Rutherford, Plaintiff did not perform modern economy. However, the independent contractor’’ than control. one step in an integrated system. He was Department believes that the ‘‘integrated Corporate Exp. Delivery Sys. v. NLRB, not dependent on Premier’s overall unit’’ factor described above would be 292 F.3d 777, 780 (2002); see also FedEx process to execute his duties.’’). applicable in sufficient cases to warrant Home Delivery, 563 F.3d at 497. Proposed § 795.105(d)(2)(iii) thus its listing as an economic reality factor. Together, these two factors shape the focuses the ‘‘integrated unit’’ factor on The Department also welcomes economic dependence inquiry of whether an individual works in comments on this alternative approach ‘‘whether the individual is, as a matter circumstances analogous to a to remove this factor and instead focus of economic reality, in business for production line. This factor weighs in the economic reality test on four factors. himself.’’ Parrish, 917 F.3d at 379. In ordinary circumstances, an individual favor of employee status where a worker 6. Affording Greater Weight to the Two ‘‘who is in business for him- or herself’’ is a component of a potential employer’s Core Factors integrated production process, whether will have meaningful control over the for goods or services. The overall Proposed § 795.105(c) explains that work performed and a meaningful production process need not be a the two core factors—i.e., control and opportunity to profit (or risk loss). In physical assembly line, but it must be opportunity for profit or loss—are each sum, it is not possible to properly assess an integrated process that requires the afforded more weight in the analysis of whether workers are in business for coordinated function of interdependent economic dependence than are any of themselves or are instead dependent on subparts working towards a specific the others. As a result of their greater another’s business without analyzing unified purpose.49 This may occur weight, if both core factors point their control over the work and profit or where the worker depends on the towards the same classification, their loss opportunities. combined weight is substantially likely overall process to perform work duties, While the Supreme Court established to outweigh the combined weight of such as, for example, a programmer who a multifactor approach to the question other factors that may point towards the works on a software development team. of employee versus independent opposite classification. In other words, See Antenor, 88 F.3d at 937 (finding contractor status, it did not require all where the two core factors align, the farmworkers ‘‘were dependent on the factors to be treated equally. To the bulk of the analysis is complete. Anyone growers’ overall production process’’). contrary, focusing on the control and who is assessing the classification— Another example would be where an opportunity for profit or loss factors is whether a business, a worker, the individual works closely alongside supported by the reasoning in Silk, 331 Department, a court, or a jury—may conceded employees and performs U.S. at 316, and Whitaker House, 366 approach the remaining factors and identical or closely interrelated tasks as U.S. at 32–33, the latter of which is the circumstances with skepticism, as only only post-Rutherford Food Supreme those employees, such as where an in unusual cases may such Court decision analyzing whether individual provides office cleaning considerations outweigh the workers were employees or independent services as part of a team of employees. combination of the two core factors. At contractors under the FLSA. Silk held the same time, if the two core factors do that coal unloaders were employees in 49 The unified purpose must be defined with specificity and thus would not include general not point toward the same classification, the SSA context based on their lack of business objectives such as increasing profits, the remaining enumerated factors will meaningful opportunity for profit or cutting costs, or satisfying customer’s needs. usually determine the correct loss, and further recognized that the

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lack of permanence was not significant. worker is an independent contractor. because it would incorporate the 331 U.S. at 317–18. The Court further See, e.g., Parrish, 917 F.3d at 379–388; probative value of the facts regarding held that truck drivers in that case were Nieman, 775 F. App’x at 624–25 (per investment.50 independent contractors because of ‘‘the curiam); Saleem, 854 F.3d at 140–48; In summary, each of the two core control [they] exercised [and] the Iontchev, 685 F. App’x at 550–51; factors is, by itself, highly probative of opportunity for profit from sound Barlow v. C.R. England, Inc., 703 F.3d a worker’s economic dependence. management,’’ without discussing any 497, 506–07 (10th Cir. 2012); Mid-Atl. Together, i.e., in cases where they both of the other economic reality factors. Id. Installation Servs., 16 F. App’x at 106– indicate the same classification, they are at 319. 08. substantially likely to point to the In Whitaker House, the Court The few occasions where an appellate answer of the classification question— concluded that homeworkers who were court’s ruling on a worker’s whether employee or independent paid on a piece-rate basis to produce classification was contrary to what the contractor. knitted goods were employees, as control factor indicated were cases in The Department’s proposal is opposed to being ‘‘self-employed’’ or which the other core factor— consistent with case law and adopting a ‘‘independent.’’ 366 U.S. at 32–33. opportunity for profit or loss—pointed more focused approach. Many courts While the Court reaffirmed that in the opposite direction. For example, have analyzed all six factors (or five ‘‘ ‘economic reality’ rather than in Acosta v. Paragon Contractors depending on the circuit) on a factor-by- ‘technical concepts’ is to be the test for Corporation, the Tenth Circuit held that factor basis, even where some factors employment,’’ id. at 33 (citing Silk, 331 the control factor ‘‘indicates status as an were recognized as having limited U.S. at 713, and Rutherford Food, 331 independent contractor’’ because the relevance in a particular context. See, U.S. at 729), it did not analyze any of defendant ‘‘could set his own hours and e.g., Hobbs, 946 F.3d at 830–36; Off the specific factors that are part of the determine how best to perform his job Duty Police, 915 F.3d at 1055–1062; current economic realty test. Instead, within broad parameters.’’ 884 F.3d Nieman, 775 F. App’x at 624–25; the Whitaker House Court’s conclusion 1225, 1235–36 (10th Cir. 2018). The Verma, 937 F.3d at 230–32; Snell, 875 was based on the facts that the court nonetheless held that he was an F.2d at 805–12; Lauritzen, 835 F.2d at homeworkers could not ‘‘sell[ ] their employee, in part, because he ‘‘was paid 1535–38; Mr. W Fireworks, 814 F.2d at products on the market for whatever only a flat fee’’ and therefore ‘‘could not 1047–55; DialAmerica, 757 F.2d at price they can command’’ and were increase or decrease his profits based on 1382–88; Donovan v. Sureway Cleaners, instead ‘‘regimented under one how well he did his job.’’ Id. at 1236; 656 F.2d 1368, 1370–73 (9th Cir. 1981). organization, manufacturing what the see also Cromwell, 348 F. App’x at 61 Several recent court opinions focus their organization desires and receiving the (concluding that the workers were analysis on just the most relevant facts compensation the organization employees even though they ‘‘controlled and factors to the case, thereby dictates.’’ Id. at 32. In other words, the the details of how they performed their achieving efficiency and clarity. In each Supreme Court’s reasoning was based work [and] were not closely supervised’’ such opinion, the most relevant factors entirely on facts that related to control because, in part, defendant’s ‘‘complete on which the court focused its attention (‘‘regimented under one organization, control over [their] schedule and pay[ ] were control and opportunity for profit manufacturing what the organization had the effect of severely limiting any or loss. And to the extent that the court desires’’) and opportunity for profit opportunity for profit or loss’’). considered elements of investment and (‘‘selling their products on the market This trend is also true, indeed even initiative, such elements are part of the for whatever price they can command’’ more so, for the opportunity for profit or control and opportunity for profit or versus ‘‘receiving the [piece rate] loss factor. Since 1975, virtually every loss factors under the Department’s compensation the organization time a circuit court of appeals has found proposal. dictates’’). The Court did not analyze (or affirmed a district court finding) that In Saleem, the Second Circuit did not any facts related to the workers’ skill, the potential employer predominantly engage in the same factor-by-factor capital investment, permanence of determined the opportunities for profit analysis as did the district court relationship, or integration of the work or loss, the court has concluded that the to the business. worker was an employee. See, e.g., 50 Even if the Department were to keep Focusing on control and opportunity Hobbs, 946 F.3d at 832–36; Off Duty opportunity for profit or loss and investment as for profit or loss is further supported by Police, 915 F.3d at 1059–1062; separate factors, the opportunity for profit or loss the results of federal courts of appeals McFeeley, 825 F.3d at 243–44; Hopkins, factor would still be of primary importance. In the above cited cases, the opportunity for profit or loss cases weighing the economic reality 545 F.3d at 344–46; Baker, 137 F.3d at factor aligned with the overall result of the case factors since 1975. In these cases, 1441–44; Snell, 875 F.2d at 808–812; even where that factor did not explicitly include whenever the court found (or affirmed Superior Care, 840 F.2d at 1059–61. consideration of the worker’s investment. A a district court finding) that the Conversely, if the court found (or separate investment factor, however, would not be a core factor because its importance is secondary potential employer predominantly affirmed a district court finding) that the compared to opportunity for profit or loss. Federal controlled the work, that court worker predominantly determined the courts of appeals have repeatedly concluded that concluded that the worker is an opportunities for profit or loss, the court workers without meaningful investment in a employee. See, e.g., Hobbs, 946 F.3d at concluded that the worker was an business are nonetheless independent contractors if they have meaningful opportunity for profit or loss 830–36; Verma, 937 F.3d at 230–32; independent contractor. See, e.g., based on their initiative or business acumen. See, Gayle v. Harry’s Nurses Registry, Inc., Parrish, 917 F.3d at 384–88; Saleem, e.g., Parrish, 917 F.3d at 382–85; Meyer, 607 F. 594 F. App’x 714, 717–18 (2d Cir. 2014); 854 F.3d at 140–48; Iontchev, 685 F. App’x at 123; Express Sixty-Minutes, 161 F.3d at Schultz v. Capital Int’l Sec., Inc., 466 App’x at 550–51; Freund, 185 F. App’x 303–04. Conversely, where the investment factor favors independent contractor classification to some F.3d 298, 307–09 (4th Cir. 2006); Baker, at 783–84; Eberline v. Media Net, L.L.C., degree, workers may nonetheless be employees if 137 F.3d at 1440–44; Martin, 949 F.2d 636 F. App’x 225, 228–29 (5th Cir. they lack such opportunity. See Cromwell, 348 F. at 1289. Conversely, whenever the court 2016); Mid-Atl. Installation Servs., 16 F. App’x at 61. Thus, if opportunity for profit or loss of appeals found (or affirmed a district App’x at 106–08. The opportunity for and investment were kept as separate factors in a final rule, the Department would propose making court finding) that the worker profit or loss factor as proposed in this opportunity for profit or loss a core factor and predominantly controlled the work, that rulemaking should be even more investment a non-core factor. The Department court nearly always concluded that the probative than these cases indicate welcomes comments on this alternative approach.

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regarding the black-car drivers, noting Circuit recently affirmed a jury verdict employer,’’ without more, does not help the economic reality ‘‘factors are merely that a process server was an answer the ultimate question the aids to analysis.’’ 854 F.3d at 138–39. independent contractor, relying Scantland court was attempting to Instead, the court focused on the primarily on evidence relating to the answer: ‘‘whether an individual is in drivers’ ‘‘considerable discretion in control and opportunity for profit or business for himself or is dependent choosing the nature and parameters of loss factors, including the process upon finding employment in the their relationship with the defendant,’’ server’s ability to determine his own business of others.’’ Id. at 1312 ‘‘significant control over essential profits by controlling hours, which (emphasis added). determinants of profits in [the] assignments to take, and for which Thus, the skill factor is over-inclusive business,’’ how they ‘‘invested heavily company to work. See Karlson, 860 F.3d to the extent it includes skills that may in their driving businesses,’’ and the at 1095. merely enable a worker to find ‘‘ability to choose how much work to In summary, control and opportunity employment, but do not indicate the perform,’’ to conclude that they were for profit or loss drive at the heart of worker is in business for him- or herself. ‘‘in business for themselves’’ as what it means to be an independent Recognizing this over-inclusiveness independent contractors. Id. at 139–47. contractor who is in business for oneself issue, some courts have explained that In other words, Saleem primarily and are the most relevant factors in ‘‘the use of special skills is not itself analyzed facts pertaining to the drivers’ virtually every case. As such, the indicative of independent contractor control over their work and opportunity Department believes focusing on these status, especially if the workers do not for profit or loss based on initiative or two as the core factors would add much use those skills in any independent investment, the core factors under this needed clarity and efficiency to the way.’’ Selker Bros., 949 F.2d at 1295; see proposed rule. In particular, the Second economic reality test. The Department also Superior Care, 840 F.2d at 1060. As Circuit explicitly questioned the welcomes comments on this approach, discussed above, these courts made the relevance of the permanence factor in which departs from courts’ and worker’s capacity for initiative, a light of the control factor, observing that Department’s previous practice of not consideration under the control factor in ‘‘whatever ‘the permanence or duration’ expressly identifying which types of the Department’s proposal, the most of Plaintiffs’ affiliation with Defendants, facts or factors are the most important. important aspect of the skill factor. This both its length and the ‘regularity’ of proposed rule would remove initiative 7. The Other Factors work was entirely of Plaintiffs’ as a consideration under the skill factor. choosing,’’ id. at 147 (citation omitted), In contrast to the two core factors, the Because capacity for initiative is already and gave no consideration whatsoever other factors listed in § 795.105(d)(2) a part of the control factor and the effect to the district court’s findings, 52 F. relating to skill, permanence, and of initiative is already a part of the Supp. 3d 526, 543 (S.D.N.Y. 2014), ‘‘that integration are not always as probative opportunity for profit or loss factor, driving is not a ‘specialized skill’ and to an inquiry into whether a worker is, these changes would thus cement the that ‘‘drivers were integral to as a matter of economic reality, in secondary importance of the skill factor. Defendants’ business.’’ business for him- or herself or The skill factor is also under-inclusive The Second Circuit again focused on economically dependent on someone because it excludes certain managerial control and opportunity for profit or else for work. Rather, their relevance and business skills that are highly loss in Agerbrink v. Model Service LLC varies depending on the circumstances. probative as to economic dependence. by relying on several disputed material Moreover, relevant aspects of the skill See Hopkins, 545 F.3d at 345 facts (‘‘control over her work schedule, and permanence factors under the (‘‘Certainly, the Sales Leaders required a whether she had the ability to negotiate current test—i.e., initiative and general set of skills to effectively her pay rate, and, relatedly, her ability exclusivity, respectively—are already manage their offices and teams. to accept or decline work’’) relating to part of the analysis with respect to the However, these are not specialized those two factors to vacate summary core factors. Since this rulemaking skills; they are abilities common to all judgment. 787 F. App’x 22, 25–27 (2d would remove such confusing overlaps effective managers.’’). A pair of cases Cir. 2019). The Third Circuit took a by removing initiative and exclusivity involving drivers are illustrative in this similar approach in Razak v. Uber from the skill and permanence factors, regard. In Express Sixty-Minutes Technologies., Inc., which held that respectively, the probative value of Delivery, the Fifth Circuit recognized summary judgment was inappropriate these two factors would become even that a delivery driver ‘‘must rely on his because there were genuine disputes of more limited. own judgment, knowledge of traffic fact regarding ‘‘whether Uber exercises Skill factor. To be sure, some patterns and road conditions ..., control over drivers’’ and whether independent contractors in business for ability to read [mapping software], and drivers have ‘‘the opportunity for profit themselves have ‘‘some unique skill ability to anticipate the need for an or loss depending on managerial skill.’’ set[s].’’ Parrish, 917 F.3d at 385. But alternative route.’’ 161 F.3d at 304. 951 F.3d at 145–47.51 And the Eighth many skills that count towards this However, these did not constitute skill factor are not necessarily relevant to the indicating independent contractor 51 The Razak court also found a genuine dispute question of economic dependence. In status. See id. at 305 (‘‘We agree with regarding degree of permanence of the working Scantland, for instance, the Eleventh the Secretary that the skill and initiative relationship, but characterized that dispute in one factor points toward employee status.’’). sentence solely as an issue of control, as opposed Circuit reasoned that the skill factor to permanence of the relationship: ‘‘On one hand, weakly favored independent contractor Nonetheless, the court ultimately found Uber can take drivers offline, and on the other status in part because ‘‘a highly trained the drivers were independent hand, Plaintiffs can drive whenever they choose to technician could gain economic contractors, in part, because ‘‘a driver’s turn on the Driver App, with no minimum amount profit or loss is determined largely on of driving time required.’’ 951 F.3d at 147. In independence by the ability to market addition, the court agreed with the district court his skills to a competing employer.’’ his or her skill, initiative, ability to cut that the skill factor ‘‘certainly weighs in favor of Scantland, 721 at 1318. But ‘‘the ability costs, and understanding of the courier finding that Plaintiffs are employees.’’ Id. Finally, to market oneself to a competing business.’’ Id. at 304. In other words, the the court acknowledged in a footnote that ‘‘Uber skill factor expressly excluded the strenuously disputes’’ the district court’s finding that the ‘‘integral’’ factor weighed in favor of disputed material facts relating to this factor. Id. at precise attributes that gave drivers an employee status and indicated that there could be n.12. opportunity for profit, thereby

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indicating their independent contractor they work on ‘‘a project-by-project factor is entitled to less weight than the status. Id. A similar omission occurred basis.’’ See, e.g., Parrish 917 F.3d at 387. core factors. in Iontchev, a case in which the Ninth But that does not mean independent In sum, the two core factors drive at Circuit concluded that certain taxi contractors cannot have long-term the heart of the economic dependence drivers were independent contractors in working relationships. To the contrary, question because they bear a causal part because the ‘‘[d]rivers’ opportunity the existence of a long-term relationship relationship with the ultimate inquiry. for profit or loss depended upon their has not prevented courts from finding A worker’s control over the work and managerial skill.’’ 685 F. App’x at 550. workers to be independent contractors, the opportunity for profit or loss are But such managerial skill evidently did particularly when such workers control generally what transforms him or her not count towards the skill factor their work and enjoy opportunities for from being economically dependent on because the court concluded that ‘‘[t]he profit or loss. See, e.g., Iontchev, 685 an employer as a matter of economic service rendered by the Drivers did not Fed. App’x at 550–51 (concluding that reality into being in business for him- or require a special skill.’’ Id. ‘‘Drivers were not economically herself. This is not so with the other The Department’s proposal to dependent upon AAA Cab’’ even though factors. Possessing a specialized skill, deemphasize the skill factor as ‘‘[t]he working relationship was often having a temporary working compared to the core factors is lengthy’’); Eberline, 636 F. App’x at 229 relationship, and not being part of an supported by the statutory text and case (concluding that installers were integrated unit of production are law. Employers can ‘‘suffer and permit’’ independent contractors even though certainly characteristics shared by many both skilled and non-skilled individuals ‘‘the length of the relationship between workers who are in business for to perform work as employees, 29 U.S.C. the Defendants and the installers was themselves. But they are often 203(g), and federal courts of appeals indefinite’’ and ‘‘no reasonable jury indicators rather than essential elements have routinely held that the presence of could have concluded that [the of being in business for oneself. specialized skill does not mean a worker permanence] factor favored independent Accordingly, the Department is an independent contractor if the contractor status’’); DialAmerica, 757 proposes to focus the economic reality worker lacks control over the work, an F.2d at 1387 (concluding that test on the two core factors. Instead of opportunity for profit or loss, or both. ‘‘distributors were not employees under balancing six or so unweighted and See, e.g., Cromwell, 348 F. App’x at 60 the FLSA because they operated more overlapping factors, a worker’s (telecom splicers); Superior Care, 840 like independent contractors’’ even classification as an employee or F.2d at 1060 (nurses). Nor does the though ‘‘many distributors did perform independent contractor can be largely absence of specialized skill mean a delivery work for DialAmerica determined in many cases by two worker is an employee if the worker continuously for several years’’). simple questions: (1) Does the worker otherwise has control over the work and exercise substantial control over the key Nor does the absence of a long-term aspects of the work; and (2) does the an opportunity for profit or loss. See, working relationship preclude a finding e.g., Express Sixty-Minutes Delivery, 161 worker have an opportunity for profit or of employee status. Workers who move a risk of loss based on initiative or F.3d at 304 (delivery workers); Iontchev, from job to job or work for short periods 685 F. App’x at 550 (taxi drivers). investment? If the answer to both is of time can still be economically ‘‘yes,’’ the worker is most likely an Permanence factor. Under the current dependent on an employer. As the test, this factor concerns the exclusivity independent contractor. And if the Second Circuit observed in Superior answer to both is ‘‘no,’’ the worker is and length of the relationship between Care, ‘‘even where work forces are the worker and the potential employer. most likely an employee. Other factors transient, the workers have been may also be probative as part of the If this rule were finalized as proposed, deemed employees where the lack of exclusivity of the relationship would be circumstances of the whole activity, but permanence is due to operational are less important. They are especially analyzed under the control factor rather characteristics intrinsic to the industry than the permanence factor to reduce relevant when the two core factors do rather than to the workers’ own business not point in the same direction or do not confusing overlap between factors. The initiative.’’ 840 F.2d at 1060–61. It is permanence factor would consider the point strongly in either direction. The therefore unsurprising that federal Department believes this proposed duration, continuity, and regularity of courts of appeals have held that workers 52 approach would improve the clarity and the relationship. who lack a permanent relationship with The Department believes that the predictability of the economic reality a potential employer are nonetheless test. remaining considerations that are part of economically dependent if the worker this factor—duration, continuity, and In the course of formulating this lacked control over the work and an NPRM, the Department also considered regularity—are relevant to an economic opportunity for profit or loss. See, e.g., reality analysis, though less so than the a more structured approach to Verma, 937 F.3d at 230–32; Reich v. sharpening the economic reality test core factors. Specifically, the length of Circle C. Investments, Inc., 998 F.2d relationship between a worker and a under the FLSA. In particular, the 324, 327–29 (5th Cir. 1993); Superior Department considered creating a potential employer has less relevance to Care, 840 F.2d at 1060–61. Because it is the issue of economic dependence than presumption of employee or often trumped by the core factors, the independent contractor status where the core factors. To be sure, many proposed regulation gives less weight to independent contractors who are in both core factors indicate the same the permanence of the relationship. status. Such a presumption would be business for themselves lack a long-term Integrated unit factor. As discussed rebuttable only by a showing that other relationship with a single client because above, the applicability of the factors weighed strongly in favor of the other outcome. The Department is 52 Even if the Department were to retain the ‘‘integrated unit’’ factor in proposed analysis of exclusivity under a newly named § 795.105(d)(2)(iii) is limited to the concerned that this approach would be ‘‘permanence and exclusivity’’ factor, that factor instances where a potential employer confusing or burdensome on courts and would be of secondary importance. This is because has an integrated production process the regulated community. Accordingly, the most important part of the ‘‘permanence and the Department is not proposing a exclusivity’’ factor, i.e., exclusivity, would add no (including a service business). Given additional probative value on top of what is already this limited applicability, the presumption-based approach at this provided by the control factor. Department believes the integrated unit time, but is nonetheless interested in

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comments on this, or other possible Plaintiffs . . . picked up passengers via U.S.C. 3506(c)(2)(B); 5 CFR 1320.8. This approaches to the economic reality test. street hail, despite TLC’s (apparently NPRM does not contain a collection of under-enforced) prohibition of this information subject to OMB approval E. Proposed Guidance Regarding the practice’’); see also Bartels, 332 U.S. at under the Paperwork Reduction Act. Primacy of Actual Practice 129 (rejecting in an SSA case the The Department welcomes comments Proposed § 795.110 states that the argument that employee status under an on this determination. actual practice of the parties involved— economic reality test could ‘‘be VI. Executive Order 12866, Regulatory both of the worker (or workers) at issue determined solely by the idea of control Planning and Review; and Executive and of the potential employer—is more which an alleged employer may or Order 13563, Improved Regulation and relevant than what may be contractually could exercise over the details of the Regulatory Review or theoretically possible. This principle service rendered to his business by the is derived from the Supreme Court’s worker or workers’’) (emphasis added). A. Introduction holding that ‘‘ ‘economic reality’ rather Importantly, proposed § 795.110 does Under E.O. 12866, OMB’s Office of than ‘technical concepts’ is to be the test not suggest that what is contractually or Information and Regulatory Affairs of employment’’ under the FLSA. theoretically possible in a work determines whether a regulatory action Whitaker House, 366 U.S. at 33; see also arrangement is irrelevant. Contractual is significant and, therefore, subject to Tony & Susan Alamo, 471 U.S. at 301 and theoretical possibilities are also part the requirements of the Executive Order (‘‘The test of employment under the of the economic reality of the parties’ and OMB review.53 Section 3(f) of [FLSA] is one of ‘economic reality’ ’’ relationship, and excluding them Executive Order 12866 defines a (citing Whitaker House, 366 U.S. at 33)). outright would not be consistent with ‘‘significant regulatory action’’ as an Applying this guidance, federal courts the Supreme Court’s instruction in action that is likely to result in a rule of appeals have emphasized the primacy Rutherford Food to evaluate ‘‘the that: (1) Has an annual effect on the of actual practice when evaluating circumstances of the whole activity.’’ economy of $100 million or more, or whether workers are employees or 331 U.S. at 730; see also Mid-Atlantic adversely affects in a material way a independent contractors under the Installation Servs., 16 F. App’x at 107 sector of the economy, productivity, FLSA. See, e.g., Saleem, 854 F.3d at 142 (determining that cable installers were competition, jobs, the environment, (‘‘[P]ursuant to the economic reality test, independent contractors in part because public health or safety, or state, local or it is not what [Plaintiffs] could have they had a ‘‘right to employ [their own] tribal governments or communities (also done that counts, but as a matter of workers’’); Keller, 781 F.3d at 813 (citing referred to as economically significant); economic reality what they actually do as relevant ‘‘the fact that Miri never (2) creates serious inconsistency or that is dispositive.’’) (citations omitted); explicitly prohibited Keller from otherwise interferes with an action Parrish, 917 F.3d at 387 (‘‘The analysis performing installation services for taken or planned by another agency; (3) is focused on economic reality, not other companies’’ and finding ‘‘a materially alters the budgetary impacts economic hypotheticals.’’); Scantland, material dispute as to whether Keller of entitlement grants, user fees, or loan 721 F.3d at 1311 (‘‘It is not significant could have increased his profitability programs, or the rights and obligations how one ‘could have’ acted under the had he improved his efficiency or of recipients thereof; or (4) raises novel contract terms. The controlling requested more assignments’’). legal or policy issues arising out of legal economic realities are reflected by the Contractual or theoretical possibilities mandates, the President’s priorities, or way one actually acts.’’) (citations are less relevant evidence to the the principles set forth in the Executive omitted). employment status inquiry, but the As the examples in proposed Order. Because the annual effect of this Department believes they are potentially proposed rule would be greater than § 795.110 illustrate, the primacy of the relevant nonetheless. parties’ actual practice applies to every $100 million, this proposed rule would F. Severability be economically significant under potentially relevant factor, and it can 54 weigh in favor of either an employee or section 3(f) of Executive Order 12866. Finally, the Department proposes to Executive Order 13563 directs independent contractor relationship. In include a severability provision in part agencies to propose or adopt a some cases, the actual practice of the 795 so that, if one or more of the regulation only upon a reasoned parties involved may suggest that the provisions of part 795 is held invalid or determination that its benefits justify its worker or workers are employees. See, stayed pending further agency action, costs; that it is tailored to impose the e.g., Sureway Cleaners, 656 F.2d at 1371 the remaining provisions would remain least burden on society, consistent with (‘‘[T]he fact that Sureway’s ‘agents’ effective and operative. The Department achieving the regulatory objectives; and possess, in theory, the power to set proposes to add this provision as that, in choosing among alternative prices, determine their own hours, and § 795.115. regulatory approaches, the agency has advertise to a limited extent on their selected the approaches that maximize own is overshadowed by the fact that in V. Paperwork Reduction Act net benefits. Executive Order 13563 reality the ‘agents’ work the same hours, The Paperwork Reduction Act of 1995 recognizes that some benefits are charge the same prices, and rely in the (PRA), 44 U.S.C. 3501 et seq., and its difficult to quantify and provides that, main on Sureway for advertising.’’); attendant regulations, 5 CFR part 1320, when appropriate and permitted by law, DialAmerica, 757 F.2d at 1387 require the Department to consider the agencies may consider and discuss (concluding that evidence showing agency’s need for its information qualitatively values that are difficult or workers were not doing similar work for collections, their practical utility, as any other businesses ‘‘although they well as the impact of paperwork and 53 See 58 FR 51735 (Sept. 30, 1993). were free to do so’’ indicates employee other information collection burdens 54 The entirety of the estimated costs from this status). In other cases, it may suggest imposed on the public, and how to deregulatory action, which exceed the $100 million that the worker or workers at issue are minimize those burdens. The PRA threshold and relate strictly to familiarization, fall independent contractors. See Saleem, typically requires an agency to provide in the first year alone. The Department’s Regulatory Impact Analysis further explains that these one-year 854 F.3d at 143 (concluding that black- notice and seek public comments on costs are more than offset by continuing annual car drivers were independent any proposed collection of information cost-savings of $447 million per year, accruing to contractors in part because ‘‘many contained in a proposed rule. See 44 the same parties that face the familiarization costs.

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impossible to quantify, including aggregate number of independent on the possible impacts resulting from equity, human dignity, fairness, and contractors that may occur if this the COVID–19 pandemic as it relates to distributive impacts. proposed rule is finalized. Furthermore, the composition of the labor market, the B. Overview of Analysis the Department‘s analysis relies on data share and scope of independent collected prior to 2020, which reflects contractors in the workforce, and any The Department estimates there were the state of the economy prior to the associated wage effects. 10.6 million workers who worked at any COVID–19 pandemic. The Department The Department estimated regulatory given time as independent contractors acknowledges that data on independent as their primary jobs in the United familiarization costs to be $370.9 contractors could look different States in 2017 (6.9 percent of all million in the first year. The Department following the economic effects of the workers), the most recent year of data estimated cost savings due to increased available. Including independent pandemic, but does not yet have clarity to be $447.2 million per year, contracting on secondary jobs results in information to determine how the and cost savings due to reduced an estimate of 18.9 million independent number of independent contractors litigation to be $33.6 million per year. contractors (12.3 percent of all workers). could change nor whether these changes This results in a 10-year annualized net The Department discusses other studies would be lasting or a near term market cost savings of $374.8 million using a 3 providing estimates of the total number distortion. The Department invites percent discount rate and $369.0 of independent contractors, ranging comments from stakeholders on the data million using a 7 percent discount from 6.1 percent to 14.1 percent of used in this analysis and on how the rate.55 For purposes of E.O. 13771, the workers (see Table 3 in VI.C.2). Due to universe of independent contractors annualized net cost savings over a uncertainties regarding magnitude and might change as a result of this perpetual time horizon are $221.3 other factors, the Department has not proposed rule. Specifically, the million.56 Other costs, benefits, and cost quantified the potential change to the Department requests data and comment savings are discussed qualitatively.

TABLE 3—SUMMARY OF ESTIMATES OF INDEPENDENT CONTRACTING

Annualized values a Impact Year 1 Year 2 Year 10 7% Discount 3% Discount

Regulatory Familiarization Costs ($2019 millions)

Establishments ...... $152.3 $0.0 $0.0 $21.7 $17.9 Independent Contractors ...... 218.6 0.0 0.0 31.1 25.6

Total ...... 370.9 0.0 0.0 52.8 43.5

Increased Clarity Cost Savings ($2019 millions)

Employers ...... 369.0 369.0 369.0 369.0 369.0 Independent Contractors ...... 78.1 78.1 78.1 78.1 78.1

Total ...... b 447.2 447.2 447.2 447.2 447.2

Reduced Litigation Cost Savings ($2019 millions)

33.6 33.6 33.6 33.6 33.6

Total Cost Savings ($2019 millions)

480.8 480.8 480.8 480.8 480.8

Net Cost Savings (Cost SavingsØCosts) ($2019 millions)

109.9 480.8 480.8 369.0 374.8 a Annualized over 10-years. b The numbers in this table do not sum to the total exactly because of rounding. Please see Table 4 for unrounded values.

C. Independent Contractors: Size and contractors and these span a wide range from other sources will be presented to Demographics based on methodologies and how the demonstrate the potential range. population is defined. The Department 1. Current Number of Independent The CPS is conducted by the U.S. believes that the Current Population Contractors Census Bureau and published monthly Survey (CPS) Contingent Worker by the Bureau of Labor Statistics (BLS). The Department estimated the Supplement (CWS) offers an appropriate The sample includes approximately number of independent contractors to lower bound for the number of 60,000 households and is nationally provide a sense of the current size of independent contractors; however, there representative. Periodically since 1995, this population. There are a variety of are potential biases in these data that and most recently in 2017, the CPS has estimates of the number of independent will be noted. Additionally, estimates included a supplement to the May

55 Discount rates are directed by OMB. See 56 Per OMB guidelines, E.O. 13771 data is Circular A–4, OMB (Sept. 17, 2003). represented in 2016 dollars, inflation-adjusted for when the proposed rule would take effect.

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survey to collect data on contingent and estimate of independent contractors Farrell and Greig (2016) used a alternative employment arrangements. does not include those who may be randomized sample of 1 million Chase Based on the CWS, there are 10.6 defined as an employee for their customers to estimate prevalence of the million independent contractors, which primary job, but may work as an Online Platform Economy.64 They amounts to 6.9 percent of workers.57 independent contractor for a secondary found that ‘‘[a]lthough 1 percent of The CWS measures those who say that or tertiary job.60 For example, Lim et al. adults earned income from the Online their independent contractor job is their (2019) estimate that independent Platform Economy in a given month, primary job and that they worked at the contracting work is the primary source more than 4 percent participated over independent contractor job in the of income for 48 percent of independent the three-year period.’’ Additionally, survey’s reference week. It is an contractors.61 Applying this estimate to Collins et al. (2019) examined tax data important data set and analysis. the 10.6 million independent from 2000 through 2016 and found that However, based on the survey’s design, contractors estimated from the CWS, the number of workers who filed a form while the Department refers to the CWS results in 22.1 million independent 1099 grew substantially over that measure of independent contractors contractors (10.6 million ÷ 0.48). period, and that fewer than half of these throughout this analysis, it should be Alternatively, a survey of independent workers earned more than $2,500 from uniformly recognized as representing a contractors in Washington found that 68 1099 work in 2016. The prevalence of constrained subsection of the entire percent of respondents reported that lower annual earnings implies that most independent contractor pool. Due to its independent contract work was their workers who received a 1099 did not clear methodological constraints, the primary source of income.62 Applying work as an independent contractor CWS measure should be differentiated that estimate to the 10.6 million every week.65 from other, more comprehensive independent contractors from the CWS The CWS also uses proxy responses, measures. results in an estimated 15.6 million which may underestimate the number of The BLS’s estimate of independent independent contractors (10.6 million ÷ independent contractors. The RAND contractors includes ‘‘[w]orkers who are 0.68). American Life Panel (ALP) survey identified as independent contractors, The CWS’s large sample size results conducted a supplement in 2015 to independent consultants, or freelance in small sampling error. However, the mimic the CWS questionnaire, but used workers, regardless of whether they are questionnaire’s design may result in self-responses only. The results of the self-employed or wage and salary some non-sampling error. For example, survey were summarized by Katz and workers.’’ BLS asks two questions to one potential source of bias is that the Krueger (2018).66 This survey found that identify independent contractors: 58 CWS only considers independent independent contractors comprise 7.2 • Workers reporting that they are self- contractors during a single point in percent of workers.67 Katz and Krueger employed are asked: ‘‘Are you self- time—the survey week (generally the identified that the 0.5 percentage point employed as an independent contractor, week prior to the interview). difference in magnitude between the independent consultant, freelance These numbers will thus CWS and the ALP was due to both worker, or something else (such as a underestimate the prevalence of cyclical conditions, and the lack of shop or restaurant owner)?’’ (9.0 million independent contracting over a longer proxy responses in the ALP.68 independent contractors). We refer to timeframe, which may better capture the Therefore, the Department believes a these workers as ‘‘self-employed size of the population.63 For example, reasonable upper-bound on the independent contractors’’ in the potential bias due to the use of proxy remainder of the analysis. 60 Even among independent contractors, failure to responses in the CWS is 0.5 percentage • Workers reporting that they are report multiple jobs in response to survey questions points (7.2 versus 6.7).69 70 wage and salary workers are asked: is common. For example, Katz and Krueger (2019) asked Amazon Mechanical Turk participants the the same, but the identity of the individuals who ‘‘Last week, were you working as an CPS-style question ‘‘Last week did you have more do it for less than the full year would likely vary. independent contractor, an independent than one job or business, including part time, Thus, the number of unique individuals who work evening or weekend work?’’ In total, 39% of consultant, or a freelance worker? That at some point in a year as independent contractors respondents responded affirmatively. However, is, someone who obtains customers on would exceed the number of independent these participants were asked the follow-up contractors who work within any one-week period their own to provide a product or question ‘‘Did you work on any gigs, HITs or other as independent contractors. service.’’ (1.6 million independent small paid jobs last week that you did not include 64 contractors). We refer to these workers in your response to the previous question?’’ After D. Farrell and F. Greig, ‘‘Paychecks, Paydays, this question, which differs from the CPS, 61 and the Online Platform,’’ JPMorgan Chase Institute as ‘‘other independent contractors’’ in (2016), https://papers.ssrn.com/sol3/ percent of those who indicated that they did not _ the remainder of the analysis. hold multiple jobs on the CPS-style question papers.cfm?abstract id=2911293. It is important to note that acknowledged that they failed to report other work 65 Collins, Brett, Andrew Garin, Emile Jackson, independent contractors are identified in the previous week. As Katz and Krueger write, Dmitri Koustas, and Mark Payne. 2019. ‘‘Is Gig in the CWS in the context of the ‘‘If these workers are added to the multiple job Work Replacing Traditional Employment? Evidence from Two Decades of Tax Returns.’’ Unpublished respondent’s ‘‘main’’ job (i.e., the job holders, the percent of workers who are multiple job holders would almost double from 39 percent paper, IRS SOI Joint Statistical Research Program. 59 with the most hours). Therefore, the to 77 percent.’’ See L. Katz and A. Krueger, 66 See Katz and Krueger (2018), supra note 45. ‘‘Understanding Trends in Alternative Work 67 Id. at 49. The estimate is 9.6 percent without 57 Bureau of Labor Statistics, ‘‘Contingent and Arrangements in the United States,’’ RSF: The correcting for overrepresentation of self-employed Alternative Employment Arrangements—May Russell Sage Foundation Journal of the Social workers or multiple job holders. Id. at 31. 2017,’’ USDL–18–0942 (June 7, 2018), https:// Sciences 5(5), p. 132–46 (2019). 68 Id. at Addendum (‘‘Reconciling the 2017 BLS www.bls.gov/news.release/pdf/conemp.pdf. 61 K. Lim, A. Miller, M. Risch, and E. Wilking, Contingent Worker Survey’’). 58 The variables used are PES8IC = 1 for self- ‘‘Independent Contractors in the U.S.: New Trends 69 Note that they estimate 6.7 percent of employed employed and PES7 = 1 for other workers. from 15 years of Administrative Tax Data,’’ workers are independent contractors using the 59 While self-employed independent contractors Department of Treasury, p. 61 (Jul. 2019), https:// CWS, opposed to 6.9 percent as estimated by the are identified by the worker’s main job, other www.irs.gov/pub/irs-soi/19rpindcontractorinus.pdf. BLS. This difference is attributable to changes to the independent contractors answered yes to the CWS 62 Washington Department of Commerce, sample to create consistency. question about working as an independent ‘‘Independent Contractor Study,’’ p. 21 (Jul. 2019), 70 In addition to the use of proxy responses, this contractor last week. Although the survey question https://deptofcommerce.app.box.com/v/ difference is also due to cyclical conditions. The does not ask explicitly about the respondent’s main independent-contractor-study. impacts of these two are not disaggregated for job, it follows questions asked in reference to the 63 In any given week, the total number of independent contractors, but if we applied the respondent’s main job. independent contractors would have been roughly relative sizes reported for all alternative work

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Another potential source of bias in the the potential magnitude of these biases to one state.74 The RAND ALP 75 and the CWS is that some respondents may not are unavailable, and so the net direction General Social Survey’s (GSS’s) Quality self-identify as an independent of the biases is unknown, the of Worklife (QWL) 76 supplement are contractor, and others who self-identify Department has not calculated any widely cited alternative estimates. may be misclassified. There are reasons estimates of how these biases may However, the Department chose to use to believe that some workers, who are impact the estimated number of sources with significantly larger sample legally considered independent independent contractors. sizes and more recent data for the contractors, would not self-identify as primary estimate. such. For example, if the worker has Because the CWS estimate represents 77 only one employer/client, or did not only the number of workers who Jackson et al. (2017) and Lim et al. 78 actively pursue the employer/client, worked as independent contractors on (2019) use tax information to estimate then they may not agree that they their primary job during the survey the prevalence of independent ‘‘[obtain] customers on their own to reference week, the Department applied contracting. In general, studies using tax provide a product or service.’’ the research literature and adjusted this data tend to show an increase in Additionally, individuals who do only measure to include workers who are prevalence of independent contracting informal work may not view themselves independent contractors in a secondary over time. The use of tax data has some as independent contractors.71 This job or who were excluded from the CWS advantages and disadvantages over population could be substantial. estimate due to other factors. As noted survey data. Advantages include large Abraham and Houseman (2019) above, integrating the estimated sample sizes, the ability to link confirmed this in their examination of proportions of workers who are information reported on different the Survey of Household Economics and independent contractors on secondary records, the reduction in certain biases Decision-making. They found that 28 or otherwise excluded jobs yields from such as reporting bias, records of all percent of respondents reported doing other surveys produces estimates of 15.6 activity throughout the calendar year informal work for money over the past (the CWS only references one week), 72 million and 22.1 million. The month. Conversely, some workers Department used the average of these and inclusion of both primary and misclassified as independent two estimates, 18.9 million, as the secondary independent contractors. contractors may answer in the estimated total number of workers Disadvantages are that independent affirmative, despite not truly being contractor status needs to be inferred; independent contractors. The working as independent contractors in any job at a given time. Given the there is likely an underreporting bias prevalence of misclassification is (i.e., some workers do not file taxes); unknown, but it is generally agreed to prevalence of independent contractors researchers are generally trying to match be common.73 Because reliable data on who work sporadically and earn minimal income, adjusting the estimate the IRS definition of independent arrangements, we would get 0.36 percentage point according to these sources captures contractor, which does not mirror the difference due to proxy responses. Additionally, it some of this population. It is likely that scope of independent contractors under should be noted that this may not entirely be a bias. the FLSA; and the estimates include It stems from differences in independent this figure is still an underestimate of contracting reported by proxy respondents and the true independent contractor pool. actual respondents. As Katz and Krueger explain, The Department requests comments and 74 Including, but not limited to: McKinsey Global Institute, ‘‘Independent Work: Choice, Necessity, this difference may be due to a ‘‘mode’’ bias or data on the assumptions made to proxy respondents may be less likely to be and the Gig Economy’’ (2016), https:// independent contractors. Id. at Addendum p. 4. calculate this estimate. www.mckinsey.com/featured-insights/employment- 71 The Department believes that including data on and-growth/independent-work-choice-necessity- informal work is useful when discussing the 2. Range of Estimates in the Literature and-the-gig-economy; Kelly Services, ‘‘Agents of magnitude of independent contracting, although not Change’’ (2015); Robles and McGee, ‘‘Exploring all informal work is done by independent To further consider the range of Online and Offline Informal Work: Findings from contractors. The Survey of Household Economics estimates available, the Department the Enterprising and Informal Work Activities (EIWA) Survey’’ (2016); Upwork, ‘‘Freelancing in and Decision-making asked respondents whether conducted a literature review, the they engaged in informal work sometime in the America’’ (2019); Washington Department of prior month. It categorized informal work into three findings of which are presented in Table Commerce, supra note 62; Farrell and Greig, supra broad categories: Personal services, on-line 3. Other studies were also considered note 64; MBO Partners, ‘‘State of Independence in activities, and off-line sales and other activities, but are excluded from this table because America’’ (2016); Abraham et al., ‘‘Measuring the which is broader than the scope of independent Gig Economy: Current Knowledge and Open Issues’’ contractors. These categories include activities like the study populations were broader than (2018), https://www.nber.org/papers/w24950; house sitting, selling goods online through sites like just independent contractors or limited Collins et al., ‘‘Is Gig Work Replacing Traditional eBay or Craigslist, or selling goods at a garage sale. Employment? Evidence from Two Decades of Tax The Department acknowledges that the data Returns,’’ IRS Working Paper (2019); Gitis et al., discussed in this study might not be a one-to-one ‘‘The Gig Economy: Research and Policy match with independent contracting, but it Implications of Regional, Economic, and nonetheless provides useful data for this purpose. Demographic Trends,’’ American Action Forum 72 Katherine G. Abraham, and Susan N. (2017), https://www.americanactionforum.org/ Houseman. 2019. ‘‘Making Ends Meet: The Role of research/gig-economy-research-policy-implications- Informal Work in Supplementing Americans’ regional-economic-demographic-trends/ Income.’’ RSF: The Russell Sage Foundation Journal #ixzz5IpbJp79a; Dourado and Koopman, of the Social Sciences 5(5): 110–31, https:// ‘‘Evaluating the Growth of the 1099 Workforce,’’ www.aeaweb.org/conference/2019/preliminary/ Mercatus Center (2015), https://www.mercatus.org/ paper/QreAaS2h. publication/evaluating-growth-1099-workforce. 75 73 See, e.g., U.S. Gov’t Accountability Off., GAO– See Katz and Krueger (2018), supra note 45. 09–717, Employee Misclassification: Improved 76 See Abraham et al., supra note 743, Table 4 Coordination, Outreach, and Targeting Could Better (2018). Ensure Detection and Prevention 10 (2008) 77 E. Jackson, A. Looney, and S. Ramnath, ‘‘The (‘‘Although the national extent of employee Rise of Alternative Work Arrangements: Evidence misclassification is unknown, earlier national and Implications for Tax Filing and Benefit studies and more recent, though not Coverage,’’ OTA Working Paper 114 (2017), https:// comprehensive, studies suggest that employee www.treasury.gov/resource-center/tax-policy/tax- misclassification could be a significant problem analysis/Documents/WP-114.pdf. with adverse consequences.’’). 78 Lim et al., supra note 61.

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misclassified independent contractors.79 publicly available and thus the analyses characteristics of independent A major disadvantage of using tax data conducted cannot be directly verified or contractors, etc.). for this NPRM is that the data are not adjusted as necessary (e.g., to describe

TABLE 3—SUMMARY OF ESTIMATES OF INDEPENDENT CONTRACTING

a Percent of Source Method Definition workers Sample size Year

CPS CWS ...... Survey ...... Independent contractor, consultant or free- 6.9 50,392 ...... 2017 lance worker (main only). ALP ...... Survey ...... Independent contractor, consultant or free- 7.2 6,028 ...... 2015 lance worker (main only). GSS QWL ...... Survey ...... Independent contractor, consultant or free- 14.1 2,538 ...... 2014 lancer (main only). Jackson et al ..... Tax data ...... Independent contractor, household worker ..... b 6.1 c ∼5.9 million ...... 2014 Lim et al ...... Tax data ...... Independent contractor ...... 8.1 1% of 1099–MISC and 2016 5% of 1099–K. a The survey data only identify independent contractors on their main job. Jackson et al. include independent contractors as long as at least 15 percent of their earnings were from self-employment income; thus, this population is broader. If Jackson et al.’s estimate is adjusted to exclude those who are primary wage earners, the rate is 4.0 percent. Lim et al. include independent contractors on all jobs. If Lim et al.’s estimate is adjusted to only those who receive a majority of their labor income from independent contracting, the rate is 3.9 percent. b Summation of (1) 2,132,800 filers with earnings from both wages and sole proprietorships and expenses less than $5,000, (2) 4,125,200 primarily sole proprietorships and with less than $5,000 in expenses, and (3) 3,416,300 primarily wage earners. c Estimate based on a 10 percent sample of self-employed workers and a 1 percent sample of W–2 recipients.

3. Demographics of Independent These divergent data suggest that this proposed rule could lead to an Contractors younger workers are more likely to use increase in the number of independent This section presents demographic contractor work sporadically and/or for contractor arrangements. The 81 information of independent contractors supplemental income. White workers Department has not attempted to using the CWS, which, as stated above, are somewhat overrepresented among estimate the magnitude of this change, only measures those who say that their primary independent contractors; they primarily because there are not objective independent contractor job is their comprise 85 percent of this population tools for quantifying the clarity, primary job and that they worked at the but only 79 percent of the population of simplification, and enhanced probative independent contractor job in the workers. Conversely, black workers are value of the Department’s proposals for survey’s reference week. According to somewhat underrepresented sharpening and focusing the economic the CWS, these primary independent (comprising 9 percent and 13 percent, reality test.85 Therefore, potential contractors are most prevalent in the respectively).82 The opposite trends transfers are discussed qualitatively construction and professional and emerge when evaluating informal work, with some numbers presented on a per business services industries. These two where racial minorities participate at a worker basis. Potential transfers may industries employ 44 percent of primary higher rate than white workers.83 result from differences in employer independent contractors. Independent Primary independent contractors are provided benefits, tax liabilities, and contractors tend to be older and spread across the educational spectrum, earnings between employees and predominately male (65 percent). with no group especially independent contractors. Although Millennials have a significantly lower overrepresented. The same trend in employer-provided benefits could prevalence of primary independent education attainment holds for workers decrease, and tax liabilities could contracting than older generations: 3.6 who participate in informal work.84 increase for these workers, the percent for Millennials compared to 6.0 D. Potential Transfers Department believes the net impact on percent for Generation X and 8.8 total compensation should be small in percent for Baby Boomers and The substantive effect of the rule is either direction. Furthermore, in order Matures.80 However, surveys suggest not intended to favor independent to attract qualified workers, companies that this trend is reversed when contractor or employee classification must offer competitive compensation. secondary independent contractors, or relative to the status quo. However, the Therefore, in a competitive labor those who did informal work as Department assumes in this RIA that the market, any reduction in benefits and independent contractors, are included. increased legal certainty associated with increase in taxes is likely to be offset by

79 In comparison to household survey data, tax worker’s age increases. Among 18 to 24 years olds, limitations on who may qualify as independent data may reduce certain types of biases (such as 41.3 percent did informal work over the past contractors than the FLSA. See Cal. Labor Code recall bias) while increasing other types (such as month. The rate fell to 25.7 percent for 45 to 54 year 2775 (establishing a demanding ‘‘ABC’’ test underreporting bias). Because the Department is olds, and 13.4 percent for those 75 years and older. applicable to most workers when determining unable to quantify this tradeoff, it could not See also Upwork, ‘‘Freelancing in America’’ (2019). independent contractor status under California determine whether, on balance, survey or tax data 82 These numbers are based on the respondents law). Because the FLSA does not preclude states are more reliable. who state that their race is ‘‘white only’’ or ‘‘black and localities from establishing broader wage and 80 The Department used the generational only’’ as opposed to identifying as being multi- hour protections than those that exist under the breakdown used in the MBO Partner’s 2017 report, racial. FLSA, see 29 U.S.C. 218(a), workers in some states ‘‘The State of Independence in America.’’ 83 ‘‘Millennials’’ were defined as individuals born Abraham and Houseman (2019), supra note 72. may be unaffected by this proposed rule. However, 1980–1996, ‘‘Generation X’’ were defined as 84 Id. because the Department is not well positioned to individuals born 1965–1980, and ‘‘Baby Boomers 85 Another uncertainty limiting the Department’s interpret the precise scope of each state’s wage and and Matures’’ were defined as individuals born ability to quantify the possible increase in hour laws, the Department is unable to definitively before 1965. independent contracting is the nature and effect of determine the degree to which workers in particular 81 Abraham and Houseman (2019), supra note state wage and hour laws. Some states, such as states would or would not be affected by this 7272, find that informal work decreases as a California, have laws that place more stringent proposed rule.

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higher base earnings—referred to as an instead hire new workers as insurance. Most of these workers either ‘‘earnings premium.’’ As explained independent contractors. purchased insurance on their own (31.5 elsewhere, however, the data provides percent) or have access through their 1. Employer Provided Benefits mixed evidence of this earnings spouse (28.6 percent). premium. Although this rule only affects • 80.7 percent of other independent Assuming that independent workers’ independent contractor status contractors have health insurance. contractor arrangements increase under the FLSA, the Department There are three main ways these following this proposed rule, it is assumes in this analysis that employers workers receive health insurance: unclear whether this would occur as a are likely to keep the status of the Through their spouse (25.1 percent), result of employees being subsequently worker the same across all benefits and through an employer (24.2), or on their classified as independent contractors or requirements.88 To the extent that own (20.1 percent). as a result of the hiring of new workers employers currently provide employees • 88.3 percent of employees have as independent contractors. This will benefits such as health insurance, health insurance. Most of these workers have implications for transfers. If retirement contributions, and paid time receive health insurance through their current employees change off, these would likely decrease with an work (64.1 percent). Furthermore, classifications, then there may be increase in the use of independent according to the ECEC, employers pay transfers. Employers could only change contractors because independent on average 12 percent of an employee’s the classification of current employees if contractors generally do not receive base compensation in health insurance those workers had previously been these benefits directly (although premiums. misclassified or by changing the independent contractors are able to From these data, it is unclear exactly working conditions such that the purchase at least some of these benefits how health insurance coverage would relationship becomes a true for themselves). Employer provided change if the number of independent independent contractor relationship, benefits are a significant share of contractors increased, but the data assuming doing so is consistent with workers’ compensation. According to suggest that independent contractors, on any applicable employment contracts, the BLS’s Employer Costs for Employee average, may be less likely to have collective bargaining agreement, or Compensation (ECEC), the value of health insurance coverage. That said, other applicable laws. Lim et al. (2019) employer benefits that directly benefit employment is not a guarantee of health found ‘‘little evidence that firms are employees average 21 percent of total 89 insurance, nor do independent increasingly reclassifying existing compensation. The Department used contractors generally lack health the CWS to compare prevalence of employee relationships as [independent insurance. health insurance and retirement benefits contractor] relationships,’’ however, A major source of retirement savings across employees and independent they found that ‘‘firms are hiring more is employer sponsored retirement contractors. However, it should be noted new workers as [independent accounts. According to the CWS, 55.5 that these two populations may differ in contractors] rather than as percent of employees have a retirement 86 ways other than just their employment employees.’’ account with their current employer; in By decreasing uncertainty and thus classification which may impact benefit addition, the ECEC found that potentially opening new opportunities amounts. For instance, an employee employers pay 5.3 percent of for firms, companies may hire shifting to independent contractor status employees’ total compensation in independent contractors who they who already receives health benefits retirement benefits on average ($1.96/ otherwise would not have hired. In this through a partner’s benefit plan would $37.03). If a worker shifts from case, there may be a decrease in not be impacted by losing heath benefit employee to independent contractor unemployment and/or an increase in eligibility. Additionally, lower benefits the size of the labor force. In a study of may be offset by increased base pay in status, that worker may no longer respondents from both Europe and the order to attract staff because workers receive employer-provided retirement U.S., McKinsey Global Institute found consider the full package of pay and benefits, but may choose alternate that 15 percent of those not working are benefits when accepting a job. investment options. As with health interested in becoming an independent According to the CWS’s relatively insurance, it is not clear whether contractor for their primary job.87 narrow definition of independent retirement savings for such a worker Attracting these individuals to join the contractor: would increase or decrease, but such a • labor force would be considered a 79.4 percent of self-employed worker would need to take a more active ` societal benefit, rather than a transfer, independent contractors have health role in saving for retirement vis-a-vis an and therefore, is analyzed more fully employee with an employer-sponsored below as part of the discussion on Cost 88 Courts have noted that the FLSA has the retirement plan. broadest conception of employment under federal Savings and Benefits. law. See, e.g., Darden, 503 U.S. at 326. To the extent 2. Tax Liability The Department invites comment on that businesses making employment status Payroll tax liability is generally its assumption that use of independent determinations base their decisions on the most divided between the employer and the contractors will increase if the proposed demanding federal standard, a rulemaking addressing the FLSA’s distinction between employee in the United States. Most rule is finalized. The Department also employees and independent contractors may affect economists believe that the ‘‘incidence’’ welcomes comments and data from the businesses’ classification decisions for purposes of the payroll tax, regardless of liability, companies looking to increase their use of benefits and legal requirements under other falls on the employee.90 of independent contractors, specifically federal and state laws. As self- on whether employees’ classifications 89 BLS, ‘‘Employer Costs for Employee Compensation News Release’’ (Sept. 2019), https:// 90 The share of payroll taxes borne by employees would change to independent contractor www.bls.gov/news.release/archives/ecec_ versus firms is unknown but economists generally status, consistent with this proposed 12182019.htm, Civilian Workers. This includes believe that employer payroll taxes are partially-to- rule and their other contractual and paid leave ($2.68), insurance ($3.22), and retirement completely shifted to employees in the long run. legal obligations, or whether they would and savings benefits ($1.96). It does not include For a detailed review of the literature see J. overtime and premium pay, shift differential pay, Deslauriers, B. Dostie, R. Gagne´, and J. Pare´, nonproduction bonuses, or legally required ‘‘Estimating the Impacts of Payroll Taxes: Evidence 86 Lim et al., supra note 61 at 3. benefits. Calculated as ($2.68 + $3.22 + $1.96)/ from Canadian Employer-Employee Tax Data,’’ IZA 87 McKinsey Global Institute, supra note 74 at 71. $37.03. Continued

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employed workers, independent protected, unless they purchase their contractor status,95 occupation, sex, contractors are legally obligated to pay own private insurance. The Department potential experience, potential both the employee and employer shares did not attempt to quantify the cost of experience squared, education, race, of the Federal Insurance Contributions changes in coverage or whether the net and ethnicity. They use the 2005 CWS Act (FICA) taxes. Thus, if workers’ effect is a benefit or cost to the worker. and the 2015 RAND ALP (the 2017 CWS classifications change from employees was not available at the time of their 3. Earnings to independent contractors, there may analysis). The Department conducted be a transfer in federal tax liabilities Although the minimum wage and similar regressions using the 2017 CWS. from employers to workers (regardless overtime pay requirements of the FLSA In both Katz and Krueger’s regression of whether this affects the actual cost of would no longer apply to workers who results and the Department’s these taxes to the worker). These payroll shift from employee status to calculations of unconditional averages taxes include: 91 independent contractor status, the in the 2017 CWS data presented below, • Social Security tax: The 6.2 percent Department anticipates an increase in the following outlying values were employer component (half of the 12.4 labor force activity. That said, the removed: Workers reporting earning less percent total).92 Department does not attempt to quantify than $50 per week, less than $1 per • Medicare tax: The 1.45 percent the magnitude of any increase in hour, or more than $1,000 per hour.96 employer component (half of the 2.9 earnings as a result of increased labor The Department combined the CWS percent total).93 force activity. data on usual earnings per week and In sum, independent contractors are If currently unemployed workers or hours worked per week to estimate legally responsible for an additional individuals who are out of the labor hourly wage rates.97 Examining mean 7.65 percent of their earnings in FICA market become independent contractors earnings, the Department found that taxes vis-a`-vis an employee. However, due to this rule, their earnings will independent contractors tend to earn any tax-related transfers from employers increase as they currently have no more per hour: Employees earned an to workers are likely to be offset by employment-related earnings other than average of $24.07 per hour, self- higher wages employers pay to ensure possibly unemployment benefits. The employed independent contractors workers’ take-home pay remains the impact on earnings is more ambiguous earned an average of $27.43 per hour, same. if employees’ classifications change to and other independent contractors Companies also cover unemployment independent contractors. In theory, earned an average of $26.71 per hour insurance and workers’ compensation companies would likely have to pay (the average hourly wage is $27.29 when taxes for their employees. Independent more per hour to independent combining the two types of independent contractors may choose to pay for contractors than to employees because contractors).98 Katz and Krueger comparable insurance protection offered independent contractors generally do conducted similar hourly earnings in the private market, but are not not receive employer-provided benefits estimates based on 2005 CWS and 2015 obligated to. The resulting regulatory and have higher tax liabilities. Data ALP data. Their analysis of the 2005 effect (experienced as savings, either by show an hourly wage premium for CWS data indicated that ‘‘[b]efore companies or employees, depending on independent contractors when conditioning on covariates, the 2005 who ultimately bears the cost of the tax) comparing unconditional means. But as and 2015 results are similar: Freelancers combines societal cost savings (the the analysis below shows, when lessened administrative cost of controlling for certain differences in 95 On-call workers, temporary help agency incrementally lower participation in worker characteristics, this expected workers, and workers provided by contract firms unemployment insurance and workers’ wage premium may not always be are excluded from the base group of ‘‘traditional’’ observable at a statistically significant employees. compensation programs) and transfers 96 Choice of exclusionary criteria from Katz and (from individuals whose unemployment level. It should be noted, however, that Krueger (2018), supra note 45. insurance or workers’ compensation these estimates do not attempt to 97 The CWS data, based on its relatively narrow payments decline, to entities paying less incorporate the value of flexibility and definition of independent contractors, indicated satisfaction that independent that employees worked more hours per week in in taxes). Independent contractors may comparison to primary independent contractors. recoup some or all of the employer contractors cite as key factors in their The Department found that 81 percent of employees portion of these taxes and insurance preference of independent contracting worked full-time, compared to 72 percent for self- premiums in the form of increased arrangements over traditional employed independent contractors and 69 percent employment. for other independent contractors. Katz and Krueger wages. This rule could decrease similarly found that independent contractors work employers’ tax liabilities and increase Comparing the average earnings, fewer hours per week than employees (statistically independent contractors’ take-home hourly wages, and hours of current significant at the 1 percent level of significance in compensation. However, there are costs employees and independent contractors all specifications with both datasets). Despite may provide some indication of the working fewer hours per week than employees, self- to independent contractors if they employed independent contractors earned more per become unemployed or injured or ill on impact on wages of a worker who week on average ($980 per week compared to $943 the job because they no longer are transitions from an employee to per week). Other independent contractors, on independent contractor classification. A average, worked fewer hours per week and earned regression analysis that controls for less per week than employees ($869 per week Institute of Labor Economics Discussion Paper compared to $943 per week). Given the difference Series IZA DP No. 11598 (June 2018), http:// observable differences between between hours worked by primary independent ftp.iza.org/dp11598.pdf. Further information is independent contractors and employees contractors and employees, and the appeal of available by the Tax Foundation, https:// may help isolate the impact on earning, flexibility cited by many independent contractors, taxfoundation.org/what-are-payroll-taxes-and-who- hourly wages, and usual hours of being average weekly earnings may be an inadequate pays-them/. measure. Accordingly, the Department’s analysis 91 Internal Revenue Service, ‘‘Publication 15, an independent contractor. Katz and focuses on hourly wages. (Circular E), Employer’s Tax Guide’’ (Dec. 23, 2019), Krueger (2018) 94 regressed the natural 98 The Department followed Katz and Krueger’s https://www.irs.gov/pub/irs-pdf/p15.pdf. log of usual weekly earnings, the natural methodology in excluding observations with 92 The social security tax has a wage base limit log of hourly wages, and the natural log weekly earnings less than $50, hourly wages less of $137,700 in 2020. than $1, or with hourly wages above $1,000. 93 An additional Medicare Tax of 0.9 percent of weekly hours worked on independent Additionally, workers with weekly earnings above applies to wages paid in excess of $200,000 in a $2,885 are topcoded at $2,885. Weekly earnings are calendar year for individual filers. 94 See Katz and Krueger (2018), supra note 45. used to calculate imputed hourly wages.

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and contract workers are paid more per trend of self-employment in the U.S. within each occupation,107 the hour than traditional employees.’’ 99 economy,’’ which suggest substantial Department’s analysis would not be When controlling for education, measurement error in at least some data comparing the hourly earnings of potential experience, potential sources.103 As noted above, reporting primary independent contractors and experience squared, race, ethnicity, sex errors by survey respondents may employees who have the same jobs. and occupation, independent contribute to measurement error in CWS Instead, the Department would be contractors’ higher hourly wages in the data.104 Additionally, CWS questions comparing a population of relatively 2005 CWS data were not statistically ‘‘were asked only about people who had low-level independent contractors with significant. But Katz and Krueger’s already been identified as employed in a population that includes both low- analysis of the 2015 ALP data under the response to the survey’s standard and high-level employees. same specifications found that primary employment questions and only about The existence of unobservable independent contractors earned more their main jobs,’’ and therefore may differences between independent per hour than traditional employees miss important segments of the contractors and employees that are with a statistically significant degree of population. BLS has recently correlated with earnings, such as confidence.100 acknowledged limitations in the 2017 productivity, skill, and preference for Conceptually, the Department expects CWS survey in response to a GAO audit flexibility also bias comparison of that independent contractors would and is reevaluating how it would hourly earnings. For example, earn more per hour than traditional measure independent contractors in the independent contractors may be on employees in base compensation as an future.105 average more willing than employees to offset to employer-provided benefits and Another potential bias in the trade monetary compensation for increases in tax liabilities. Katz and Department’s results could be due to the increased workplace flexibility, which Krueger’s analysis of the 2015 RAND exclusion of relevant explanatory would obscure the observability of an ALP data appears to support this variables from the model specification, earnings premium for independent prediction.101 However, they including the omission of observable contractors. It is possible that recommend caution in interpreting the variables that correlate with hourly independent contractors’ hourly estimates from the ALP due to the earnings. For example, the Department’s earnings premium may be best observed relatively small sample size. Their analysis of 2017 CWS data used 22 at the margin, such as comparing a analysis of the 2005 CWS data and the occupation dummy variables but did worker’s behavior when deciding Department’s similar analysis of 2017 not control for a worker’s job position between two similar positions, one as an CWS data did not show a statistically within any of the occupations (although employee and one as an independent significant difference. But as previously it did control for ‘‘potential contractor. noted, comparing current employees to experience’’). However, as the Labor market frictions and personal preferences facing both employers and current primary independent Department’s Guidance indicates, a workers may further prevent a clear contractors may not be indicative of statistical comparison of earnings detection of a full picture of any how earnings would change for current between workers generally must control earnings premium. Employees that employees who became independent for ‘‘job level or grade’’ in addition to transition to independent contractor contractors. Nor do such wage-based experience to ensure the comparison is 106 classification may prefer monetary comparisons reflect the non-pecuniary for workers in similar jobs. If, compensation over employer-provided attributes of employees and hypothetically, independent contractors on average have lower job levels (or benefits (e.g., subsidies for health independent contractors.102 equivalents) than traditional employees insurance when they already have other One potential reason for the variance coverage).108 The non-pecuniary among the estimates for independent 103 Abraham et al., supra note 74, at 15. benefits of independent contracting, contractor wages could be error in the Generally, ‘‘[h]ousehold surveys consistently show such as workplace flexibility, may measurement of independent contractor lower levels of self-employment than tax data and impact the observability of an earnings a relatively flat or declining long-term trend in self- status and earnings, a factor that is premium. Specifically, a range of present throughout all of the analyses in employment as contrasted with the upward trend that is evident in tax data.’’ Id.; see also id. at 45. research shows that workers are willing this area. As a recent analysis 104 ‘‘For example, a household survey respondent to accept lower wages in exchange for concluded, ‘‘different data sources might fail to mention informal work that they do increased flexibility.109 provide quite different answers to the not think of as a job, something that further probing An additional consideration is that simple question of what is the level and might uncover. To take another example, a household member who is doing work for a minimum wage and overtime pay would business may be reported as an employee of that no longer apply if workers shift from 99 Id. at 19. business, even in cases where further probing might 100 employee status to independent Id. at 34. reveal that the person is in fact an independent contractor status. The 2017 CWS data 101 See Katz and Kreuger (2018), supra note 45 at contractor or freelancer.’’ Id. at 15. 20 (‘‘A positive hourly wage premium for 105 Specifically, BLS recognized that: (1) The independent contractors could reflect a ‘‘CWS measures only respondents’ main jobs . . ., 107 For example, because individuals working as compensating differential for lower benefits and the thus potentially missing workers with independent contractors are less likely to be in need to pay self-employment taxes.’’). nontraditional second or supplementary income positions with managerial responsibilities over 102 In particular, at least some research reveals jobs’’; (2) ‘‘CWS only asks respondents about their other workers. significant non-pecuniary advantages to work in the past week and may fail to capture 108 Research using hedonic wage models has independent contracting, including through seasonal workers or workers that supplement their found mixed results on the trade-off between pay increased job satisfaction. See ‘‘The State of income with occasional work’’; and (3) ‘‘added and benefits, with some researchers finding a Independence in America,’’ MBO Partners (2019), questions regarding electronically-mediated positive correlation between increased pay and https://www.mbopartners.com/state-of- employment resulted in a large number of false benefits, rather than a trade-off. See Simon, K. independence/; Chen et al., ‘‘The Value of Flexible positive answers.’’ Government Accountability (2001), Displaced workers and employer-provided Work: Evidence from Uber Drivers,’’ Journal of Office, Contingent Workforce: BLS is Reassessing health insurance: Evidence of a wage/fringe benefit Political Economy 127:6, 2735–794 (2019); He, H. Measurement of Nontraditional Workers, Jan. 29, tradeoff? Int J Health Care Finance Econ., (3–4): et al., ‘‘Do Workers Value Flexible Jobs? A Field 2019, https://www.gao.gov/assets/700/696643.pdf. 249–71. https://www.ncbi.nlm.nih.gov/pubmed/ Experiment,’’ NBER Working Paper No. w25423, 106 Department of Labor, Office of Federal 14625928. (2019), https://ssrn.com/abstract=3311395; Contracting Compliance Programs, Directive 2018– 109 He, H. et al. 2019. Do Workers Value Flexible McKinsey Global Institute, supra note 74; Upwork, 5, Aug. 24, 2018, https://www.dol.gov/agencies/ Jobs? A Field Experiment. NBER Working Paper No. ‘‘Freelancing in America’’ (2019). ofccp/directives/2018-05#ftn.id10. w25423. https://ssrn.com/abstract=3311395.

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indicate that, before conditioning on their affiliates or they may rely entirely establishments, i.e., those that do or covariates, independent contractors on outside experts to evaluate the rule may face an independent contractor under the narrower definition of and provide the relevant information to versus employee classification primary, active work are more likely their organization (e.g., a chamber of determination, the Department than employees to report earning less commerce). The Department used the accordingly reduces the estimated pool than the FLSA minimum wage of $7.25 number of establishments to estimate to better estimate the establishments per hour (8 percent for self-employed the fundamental pool of regulated affected by the rule by assessing independent contractors, 5 percent for entities—which is larger than the regulatory familiarity costs only for other independent contractors, and 2 number of firms. This assumes that those establishments that engage percent for employees). That data regulatory familiarization occurs at both independent contractors. further indicated that, before the headquarters and establishment In 2019, Lim et al. used extensive IRS conditioning on covariates, primary levels. data to model the independent independent contractors are more likely There may be differences in contractor market, finding that 34.7 to work overtime at their main job (30 familiarization cost by the size of percent of firms have any independent percent for self-employed independent establishments; however, the analysis contractors.113 These data are based on contractors and 19 percent for other does not compute different costs for annual tax filings, so the dataset independent contractors versus 18 establishments of different sizes. includes firms that may contract for percent for employees). The Department Furthermore, the analysis does not only parts of a year. This figure forms was unable to determine whether these revise down for states where the laws the foundation of the multiplier used in differences were the result of differences may more stringently limit who this analysis. The Department requests in worker classification, as opposed to qualifies as an independent contractor public comments and data on these other factors. (such as California). To estimate the assumptions. number of establishments incurring OMB Circular A–4 instructs that E. Costs regulatory familiarization costs, the regulatory impact analyses establish a The Department estimated that Department began by using the Statistics baseline, usually a ‘‘no action’’ baseline, regulatory familiarization costs will of U.S. Businesses (SUSB) to define the to represent what the world is expected total $370.9 million in Year 1. total pool of establishments in the to be like in the absence of the proposed United States.111 In 2017, the most rule.114 In the absence of this proposed 1. Regulatory Familiarization Costs recent year available, there were 7.86 rule, establishments that do not Regulatory familiarization costs million establishments. These data were currently have any independent represent direct costs to businesses and supplemented with the 2017 Census of contractors but are looking to hire one current independent contractors Government that reports 90,075 local or more will need to familiarize associated with reviewing the new government entities, and 51 state and themselves with the current legal regulation. To estimate the total federal government entities.112 The total framework.115 Accordingly, firms that regulatory familiarization costs, the number of establishments and do not currently use independent Department used (1) the number of governments in the universe used for contractors are not counted in this establishments, government entities, this analysis is 7,950,800. universe of employers; however, to and current independent contractors; (2) The applicable universe used by the allow for an error margin, the the wage rates for the employees and for Department for assessing familiarization Department is using a rounded 35 the independent contractors reviewing costs of this proposed rule is all percent of the total number of the rule; and (3) the number of hours establishments that engage independent establishments defined above that it estimates employers and contractors, which is a subset of the (7,950,800), resulting in 2,782,780 independent contractors will spend universe of all establishments. The establishments estimated to incur reviewing the rule. This section presents Department estimates the impact of familiarization costs. the calculation for establishments first regulatory familiarization based upon The Department assumes that a and then the calculation for assessment of the regulated universe. Compensation, Benefits, and Job independent contractors. For the Department’s recent Joint Analysis Specialist (SOC 13–1141) (or a It is not clear whether regulatory Employer Status under the Fair Labor staff member in a similar position) will familiarization costs are a function of Standards Act, Defining and Delimiting review the rule.116 According to the the number of establishments or the the Exemptions for Executive, number of firms.110 Presumably, the Administrative, Professional, Outside 113 Table 10: Firm sample summary statistics by headquarters of a firm will conduct the Sales and Computer Employees, and year (2001–2015), https://www.irs.gov/pub/irs-soi/ Regular Rate Under the Fair Labor 19rpindcontractorinus.pdf. regulatory review for businesses with 114 OMB Circular A–4, https://www.reginfo.gov/ multiple locations, and may also require Standards Act rulemakings, it estimated public/jsp/Utilities/circular-a-4_regulatory-impact- some locations to familiarize themselves that the regulated universe comprised analysis-a-primer.pdf. with the regulation at the establishment all establishments because the rules 115 An added dimension is that the proposed rule level. Other firms may either review the were broadly applicable to every is expected to provide significant clarity, which would result in time and cost savings (net of rule to consolidate key takeaways for employer. For those rules, the regulatory familiarization costs) for those outside Department estimated familiarization the pool of firms with existing independent 110 An establishment is commonly understood as costs by assuming each establishment contractor relationships. These (net) cost savings a single economic unit, such as a farm, a mine, a would review each rule. Because the are not included in this analysis, consistent with factory, or a store, that produces goods or services. proposed rule affects only some this analysis’ treatment of resulting growth in the Establishments are typically at one physical independent contractor universe. location and engaged in one, or predominantly one, 116 A Compensation/Benefits Specialist ensures type of economic activity for which a single 111 U.S. Census Bureau, 2017 SUSB Annual Data company compliance with federal and state laws, industrial classification may be applied. An Tables by Establishment Industry. https:// including reporting requirements; evaluates job establishment contrasts with a firm, or a company, www.census.gov/data/tables/2017/econ/susb/2017- positions, determining classification, exempt or which is a business and may consist of one or more susb-annual.html. non-exempt status, and salary; plans, develops, establishments. See BLS, ‘‘Quarterly Census of 112 U.S. Census Bureau, 2017 Census of evaluates, improves, and communicates methods Employment and Wages: Concepts,’’ https:// Governments. https://www.census.gov/data/tables/ and techniques for selecting, promoting, www.bls.gov/opub/hom/cew/concepts.htm. 2017/econ/gus/2017-governments.html. compensating, evaluating, and training workers. See

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Occupational Employment Statistics familiarizing themselves with the legal as an independent contractor under the (OES), these workers had a mean wage framework in the matter of course, FLSA. This would reduce the burden of $33.58 per hour in 2019 (most recent without incurring a supplementary cost. faced by employers, potential data available). Given the proposed Furthermore, the Department believes employers, and workers to understand clarification to the Department’s that it is probable that independent the distinction and how the working interpretation of who is an employee contractors would review the regulation relationship should be classified. It is and who is an independent contractor only when they had reason to believe unclear exactly how much time would under the FLSA, the Department that the benefits would outweigh the be saved, but the Department provides assumes that it will take on average costs incurred in familiarizing some quantitative estimates to provide a about 1 hour to review the rule as themselves with the rule, and since this sense of the magnitude. To quantify this proposed. The Department believes that analysis does not attempt to calculate benefit, the following variables need to an hour, on average, is appropriate, those economic benefits it is possible be defined and estimated: (1) The because while some establishments will that the costs presented in this section number of new employer-worker spend longer than one hour to review are overestimated.117 relationships being assessed to the rule, many establishments may rely The total one-time regulatory determine the appropriate classification; on third-party summaries of the changes familiarization costs for independent (2) the amount of time saved per or spend little or no time reviewing the contractors are estimated to be $218.6 assessment; and (3) an average wage rate rule. Assuming benefits are paid at a million. The total one-time regulatory for the time spent. The Department rate of 46 percent of the base wage, and familiarization costs for establishments estimates this will result in a $447.2 overhead costs are 17 percent of the and independent contractors are million in savings annually. The base wage, the reviewer’s effective estimated to be $370.9 million. Department requests comments on these hourly rate is $54.74; thus, the average Regulatory familiarization costs in assumptions and calculations. cost per establishment conducting future years are assumed to be de The Department began with its regulatory familiarization is $54.74. minimis. Similar to the baseline case for estimate of the number of current Therefore, regulatory familiarization employers, independent contractors independent contractors as the basis for costs to businesses in Year 1 are would continue to familiarize estimating the number of new estimated to be $152.3 million ($54.74 themselves with the applicable legal relationships. As discussed in section × 2,782,780) in 2019 dollars. framework in the absence of the rule, so VI.C, according to the CWS, there are For regulatory familiarization costs for this proposed rulemaking—anticipated 10.6 million workers who are independent contractors, the to provide more clarity—is not expected independent contractors on their Department used its estimate of 18.9 to impose costs after the first year.118 primary job. Adjusting this figure to million independent contractors and This amounts to a 10-year annualized account for independent contractors on assumed each independent contractor cost of $43.5 million at a discount rate their secondary job results in 18.9 will spend 15 minutes to review the of 3 percent or $52.8 million at a million independent contractors. regulation. The time estimates used for discount rate of 7 percent. According to Lim et al. (2019), in 2016 independent contractors is estimated to 2. Other Costs the average number of 1099–MISC forms be smaller than for establishments. This issued per independent contractor was difference is in part because the There may be other costs associated 1.43. Therefore, the Department Department believes independent with this NPRM that have not been assumes the average independent contractors are likely to rely on quantified due to uncertainties or data contractor has 1.43 jobs per year.119 summaries of the key elements of the limitations. The Department invites This number does not account for the rule change published by the public comments and data to address workers who do not file taxes, a Department, worker advocacy groups, this issue. recognized limitation in the cited study. media outlets, and accountancy and F. Cost Savings Because it is unclear whether those who do not file taxes would have a higher or consultancy firms, as has occurred with This NPRM is expected to result in lower number jobs per year, the other rulemakings. Furthermore, the cost savings to firms and workers. The Department does not believe that this repercussions for independent Department has quantified only the cost biases the estimate in either direction. contractors are smaller (i.e., the costs savings from increased clarity and Multiplying these two numbers results associated with misclassification tend to reduced litigation. The other areas of in an estimated 27.0 million new fall on establishments). This time is anticipated cost savings were not independent contractor relationships valued at $46.36, which is the mean estimated due to uncertainties or data each year.120 hourly wage rate for independent limitations. The Department welcomes contractors in the CWS, $27.27, with an The independent contracting sector is data and comments on the potential cost characterized by churn. In their annual additional 46 percent benefits and 17 savings and benefits to society. percent for overhead, then updated to State of Independence in America 2019 2019 dollars. 1. Increased Clarity report, MBO Partners, a leading The estimate of 18.9 million This proposed rule is expected to American staffing firm, finds that 47.8 independent contractors captures the increase clarity concerning whether a 119 universe of workers over a one-year worker is classified as an employee or Lim et al., supra note 61, at 61. period. Using this figure for the overall 120 The Department in this analysis did not incorporate estimates of potential growth in cost estimate results in an artificially 117 For example, independent contractors in states independent contracting due to uncertainty. For high value because it includes workers with classification frameworks that are known to be example, the trend in independent contracting who would have otherwise been more stringent than the existing FLSA classification varies significantly based on the source. included in the baseline case without framework, such as in California, may not review Additionally, the impact of this rule on the the rule since it would be unlikely to affect their prevalence of independent contracting is uncertain. the proposed rule and thus spent time classification. Lastly, state laws, such as those in California 118 As explained below, the Department considers discussed below, may have significant impacts on BLS, ‘‘13–1141 Compensation, Benefits, and Job that the regulation may produce benefits along this the prevalence of independent contracting, which Analysis Specialists,’’ https://www.bls.gov/oes/ dimension in future years by simplifying the would make historical growth rates potentially current/oes131141.htm. regulatory environment. inappropriate.

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percent of U.S. adults reported working Compensation, Benefits & Job Analysis TABLE 4—COST SAVINGS FOR IN- as an independent contractor at some Specialists (13–1141) from the OES CREASED CLARITY TO EMPLOYERS point in their career; they estimate that multiplied by 1.63 to account for AND INDEPENDENT CONTRACTORS— figure will reach 53 percent in the next benefits and overhead. For independent Continued five years.121 This fits with the range of contractors, this time is valued at $46.36 estimates for the size of the independent per hour (mean wage rate for Parameter Value contractor universe presented in section independent contractors in the CWS of VI.C. Thus, it is assumed that over the $27.29 with the amount of benefits and Adjustment factor ...... 75% ten-year time horizon of this analysis, overhead paid by employers for millions of Americans will choose employees, then adjusted to 2019 Total ...... 20,225,205 independent contractor work either for dollars using the GDP deflator). Time savings per job (minutes): the first time or return to it. This churn Using these numbers, the Department Employers ...... 20 is not explicitly estimated for use in this estimates that employers will save Independent contractors ... 5 analysis, but it provides a qualitative $369.0 million annually and Value of time: rationale for not attempting to taper the independent contractors will save $78.1 Employers ...... $54.74 expected size of the independent million annually due to increased Independent contractors ... $46.36 contractor universe over time. The clarity (Table 4). In sum, this is Total savings: Department requests comments and data estimated to be a $447.2 million savings. Employers ...... $369,042,574 on these assumptions. The Department assumes the parameters Independent contractors ... $78,137,248 A subset of new independent used in this cost savings estimate will Total ...... $447,179,822 contractor relationships may have time remain constant over time. This savings associated with the proposed assumes no growth in independent 2. Reduced Litigation rule. Such a reduction is difficult to contracting, no real wage growth, and quantify because it is unclear how many no subsequent innovation in the These proposed changes are expected establishments and independent employer-worker relationship. These to result in decreased litigation due to contractors will realize benefits of assumptions, while highly unlikely to increased clarity and reduced increased clarity. It is also possible that be true in reality, facilitate simplicity of misclassification. The Department the increased clarity of the classification calculation. The annualized savings provides analysis here to assess the process will lead to compound effects over both a 10-year horizon and in potential magnitude of this cost savings. that generate far greater benefits over perpetuity, with both the 3 percent and The methodology of this section mirrors time. Nonetheless, because it is possible 7 percent discount rates is $447.2 previous final rules promulgated in that only a subset of contracts would million. recent years. The Department requests receive the cost savings associated with In addition to increased clarity when comments on the assumptions in this 125 increased clarity, the Department has assessing whether each relationship section. reduced the number of contracts in the qualifies as an independent contractor The Department estimates that, due to estimate by 25 percent. This results in or employment relationship, there may increased clarity on independent 20.2 million contracts with cost savings also be upfront time savings for new contractor status, $33.6 million in to both the employer and the entrants who must familiarize litigation costs will be avoided per year. independent contractor.122 The themselves with the definition of an To reach this estimate, the Department Department requests comments and data employee as compared to an determined that there were 6,711 federal independent contractor, and who now cases relating to the FLSA filed in on this assumption. 126 Per each new contract with time have clearer guidance to aid in that 2019. Of these cases, the Department savings, the Department has assumed understanding. This would apply to estimates that 7 percent of these cases that employers would save 20 minutes new independent contractors, new relate to independent contractor status. of time and independent contractors establishments, and current To determine this percentage, the would save 5 minutes.123 124 These establishments that are considering Department reviewed a random sample hiring independent contractors for the of 500 of the FLSA cases closed in 2014 numbers are small because they 127 represent the marginal time savings for first time. The Department did not (8,256 cases). Of those cases, the each contract, not the entire time quantify this benefit due to uncertainty Department identified 35 cases within necessary to identify whether an and the difficulty of determining this sample that related to independent independent contractor relationship reliable variables. However, such contractor status. This ratio was applied holds. For employers, this time is benefits are expected to be real and to the 6,711 FLSA cases from 2019 to valued at a loaded hourly wage rate of significant. The Department requests comments and data to address these 125 The Department applied a similar approach to $54.74. This is the mean hourly rate of litigation costs in the 2019 final rule Defining and constraints. Delimiting the Exemptions for Executive, 121 State of Independence in America, MBO Administrative, Professional, Outside Sales and Partners (2019). https://www.mbopartners.com/ TABLE 4—COST SAVINGS FOR IN- Computer Employees, 81 FR 51230 (2019). state-of-independence/. 126 CREASED CLARITY TO EMPLOYERS Downloaded from Public Access to Court 122 18.9 million ICs × 1.43 contracts per year × Electronic Records (PACER). ¥ (1 0.25 possible reduction in clarity benefits) = AND INDEPENDENT CONTRACTORS 127 The Department used data from 2014 already 20.2 million. obtained for use in the analysis performed for the 123 These time savings are based on a 33 percent Parameter Value 2019 overtime and regular rate final rules. See 84 assumed reduction in the estimated familiarization FR 51230, 51280–81 (reduced litigation estimate for time per contract for both independent contractors Number of new relationships the final rule updating the FLSA’s white collar (15 minutes) and employers (1 hour). (per year): exemptions at 29 CFR part 541); 84 FR 68736, 124 The Department requests comment on whether Independent contractors ... 18,858,000 68767–68 (reduced litigation estimate for the final more meaningful estimates would distinguish rule updating the FLSA’s ‘‘regular rate’’ regulations between time periods (with, for example, relatively Number of jobs per con- at 29 CFR part 778). The Department invites large upfront savings at the time contracts are tractor ...... 1.43 comment on its methodology but has no reason to arranged and smaller ongoing amounts) and/or New independent con- believe that a more recent sample would materially would vary by affected industry. tractor jobs ...... 26,966,940 affect the results in this analysis.

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estimate 470 cases related to from the rule total $33.6 million per • Increased competition and independent contractor status. The year (2019 dollars).130 decreased prices. Department assumes that the increased The Department estimates that annual • A more flexible and dynamic work clarity of the proposed rule would cost savings associated with this rule force, where workers are able to more reduce litigation in this area by 10 would be $480.8 million ($447.2 million easily move to locations or to employers percent as stakeholders would better in increased clarity + $33.6 million in where their labor and skills are needed. understand and be better able to agree avoided litigation costs). Eisenach explains several channels through which these efficiency gains on classification determinations. This 3. Other Cost Savings and Benefits estimate is based on an initial may be achieved. First, by avoiding Departmental review of FLSA cases, and Removing uncertainty improves labor some fixed employment costs, it is the Department requests comments and market efficiency by reducing easier for firms to adjust their labor data to help inform and refine this deadweight loss. As discussed in the needs based on fluctuations in demand. assumption. Multiplying these variables need for rulemaking, the Department Second, by using pay-for-preference, results in an estimated 47 cases avoided believes emerging and innovative independent contractors are annually. economic arrangements that benefit incentivized to increase production and both workers and business require Next, the Department applied a quality. Third, ‘‘contracting can be an reasonable certainty regarding the previous estimate of litigation costs of important mechanism for overcoming worker’s classification as an $654,182 per case. To obtain this legal and regulatory barriers to independent contractor. The current estimate, the Department examined a economically efficient employment legal uncertainty may deter businesses selection of 56 FLSA cases concluded arrangements.’’ The analysis of these from offering these arrangements or between 2012 and 2015 that contained benefits assume that businesses, developing them in the first place.131 If litigation cost information to estimate especially in other industries, would so, the result would be economic the average costs of litigation.128 The like to increase their use of independent deadweight loss: Legal uncertainty Department looked at records of court contractors, but have refrained from prevents mutually beneficial filings in the Westlaw Case Evaluator doing so because of uncertainty independent contractor arrangements. tool and on PACER to ascertain how regarding who can appropriately be This proposed rule may produce cost much plaintiffs in these cases were paid engaged as an independent contractor savings by reducing deadweight loss. for attorney fees, administrative fees, under the FLSA. Conversely, significant Nonetheless, due to the abundance of and/or other costs, apart from any use of independent contractors may not variables at play, the Department has monetary damages attributable to the be suitable for all industries, thus not attempted to quantify the precise alleged FLSA violations. After limiting the growth in its utilization. amount of that reduction. The determining the plaintiff’s total The Department believes this Department invites data and comments litigation costs for each case, the rulemaking may also result in greater on this topic. Department then doubled the figures to autonomy and job satisfaction for By decreasing uncertainty and thus workers. Several surveys have shown account for litigation costs that the potentially opening new opportunities defendant employers incurred. that independent contractors have high for firms, this proposed rule may job satisfaction.133 Using the CWS, According to this analysis, the average encourage companies to hire litigation cost for FLSA cases concluded which only considers primary, active independent contractors whom they contractors, the Department estimates between 2012 and 2015 was $654,182. otherwise would not have hired. Adjusting for inflation, using the GDP that of independent contractors with Eisenach (2010) outlines the potential valid responses, 83 percent prefer their deflator, results in a value of $715,637 costs of curtailing independent in 2019.129 current arrangement rather than being contracting.132 If independent an employee, compared with only 9 Applying these figures to the contracting is expanded due to this rule, percent who would prefer an estimated 47 cases that could be this could generate benefits that may employment arrangement (the prevented each year due to this include: remaining 8 percent responded that it • rulemaking, the Department estimates Increased job creation and small depends). Additionally, the main that avoided litigation costs resulting business formation. reasons they work as independent contractors demonstrate that they enjoy 128 The 56 cases used for this analysis were 130 Using the median litigation cost, rather than the benefits of being an independent retrieved from Westlaw’s Case Evaluator database the mean, results in a value of $122,341 (2019 using a keyword search for case summaries between dollars) per case, which for the estimated 47 annual contractor: 31 percent enjoy being their 2012 and 2015 mentioning the terms ‘‘FLSA’’ and cases produces a total annual litigation cost savings own boss or the independence it allows, ‘‘fees.’’ This was not limited to cases associated of $5.7 million. However, the median values do not and 27 percent enjoy the scheduling with independent contracting. Although the initial adequately capture the magnitude of the impact flexibility.134 Additionally, McKinsey search yielded 64 responsive cases, the Department resulting from large-scale litigation cases that are excluded one duplicate case, one case resolving expected to benefit from the clarity provided in this Global Institute found that litigation costs through a confidential settlement proposed rule. Therefore, the mean average is used ‘‘[i]ndependent workers report higher agreement, and six cases where the defendant for this analysis. levels of satisfaction on many aspects of employer(s) ultimately prevailed. Because the FLSA 131 See Pivateau, supra note 26, at 628 (‘‘The their work life than traditional only entitles prevailing plaintiffs to litigation cost continued demand for innovative work solutions 135 awards, information about litigation costs was only requires a new classification test. Without workers.’’ The McKinsey Global available for the remaining 56 FLSA cases that clarification, parties will be unwilling to engage in ended in settlement agreements or court verdicts new or innovative work arrangements.’’); see also 133 See, e.g., ‘‘The State of Independence in favoring the plaintiff employees. Hollrah and Hollrah, ‘‘The Time Has Come for America,’’ MBO Partners (2019) https:// 129 These totals may underestimate total litigation Congress to Finish Its Work on Harmonizing the www.mbopartners.com/state-of-independence/. costs because some FLSA cases are heard in state Definition of ‘Employee,’ ’’ 26 J. L. & Pol’y 439 134 The Department used PES26IC to identify court and thus were not captured by PACER; some (2018), https://brooklynworks.brooklaw.edu/jlp/ preferred work arrangement and PES26IR to filings are resolved before litigation or by vol26/iss2/1/. identify the reason they work as an independent alternative dispute resolution; and some attorneys 132 J. Eisenach, ‘‘The Role of Independent contractor. representing FLSA plaintiffs may take a Contractors in The U.S. Economy,’’ Navigant 135 McKinsey Global Institute, supra note 74 at contingency fee atop their statutorily awarded fees Economics (2010), https://papers.ssrn.com/sol3/ 11. A 2009 Pew survey similarly found that self- and costs. papers.cfm?abstract_id=1717932. Continued

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Institute examined workers who work G. Regulatory Alternatives measuring the exact stringency of multi- independently by choice and those who When proposing an economically factor legal tests and likely responses do so by necessity (such as needing significant rule, Executive Order 12866 from the regulated community. The supplemental income) and found that requires agencies to conduct ‘‘[a]n Department welcomes comment on both groups report being happy with the assessment, including the underlying these regulatory alternatives, as well as flexibility and autonomy of their analysis, of costs and benefits of suggestions regarding any other work.136 Similarly, Kelly Services found potentially effective and reasonably potential alternatives. that ‘‘free agents’’—i.e., workers who feasible alternatives to the planned 1. Codifying a Common Law Control ‘‘derive their primary income from regulation.’’ 138 Here, in addition to ‘‘the Test independent work and actively prefer alternative of not regulating,’’ 139 the it’’—report higher satisfaction than The least stringent alternative to the Department considered three proposed rule’s streamlined ‘‘economic traditional workers concerning overall alternatives to the proposed rule, listed employment situation; work-life reality’’ test would be to adopt a below from least to most restrictive of common law control test, as is generally balance; opportunities to expand skills; 140 independent contracting: used to determine independent and opportunities to advance career.137 (1) Codification of the common law contractor classification questions By clarifying that control and control test, which applies in arising under the Internal Revenue Code opportunity for profit are the core distinguishing between employees and and various other federal laws.144 The economic reality factors, this proposed independent contractors under various overarching focus of the common law rule is likely to encourage the creation other federal laws; 141 control test is ‘‘the hiring party’s right of independent contractor jobs that (2) codification of the traditional six- to control the manner and means by provide autonomy and entrepreneurial factor ‘‘economic reality’’ balancing test, which [work] is accomplished,’’ Reid, opportunities that workers find as recently articulated in WHD Opinion 490 U.S. at 751, but the Supreme Court satisfying. For the same reason, this Letter FLSA2019–6; and has explained that ‘‘other factors proposed rule likely would diminish the (3) codification of the ‘‘ABC’’ test, as relevant to the inquiry [include] the incidence of independent contractor adopted by the California Supreme skill required; the source of the jobs that lack these desired Court in Dynamex Operations W., Inc. v. instrumentalities and tools; the location characteristics. Thus, the Department Superior Court, 416 P.3d 1 (Cal. of the work; the duration of the expects this NPRM, if finalized, to result 2018).142 relationship between the parties; in more independent contractor Although the Department recognizes whether the hiring party has the right to opportunities which bring with them that legal limitations prevent some of assign additional projects to the hired autonomy and job satisfaction. The these alternatives from being actionable, party; the extent of the hired party’s benefits of worker autonomy and the Department nonetheless presents discretion over when and how long to satisfaction obviously ‘‘are difficult or them as regulatory alternatives in accord work; the method of payment; the hired impossible to quantify,’’ but they with OMB guidance.143 These three party’s role in hiring and paying nonetheless merit consideration. regulatory alternatives are analyzed assistants; whether the work is part of below in qualitative terms, due to data the regular business of the hiring party; employed workers are ‘‘significantly more satisfied constraints and inherent uncertainty in whether the hiring party is in business; with their jobs than other workers.’’ Rich Morin, the provision of employee benefits; and ‘‘Job Satisfaction among the Self-Employed,’’ Pew 138 the tax treatment of the hired party.’’ Id. Research Center, (September 2009), http:// Exec. Order No. 12866 § 6(a)(3)(C)(iii), 58 FR pewsocialtrends.org/pubs/743/job-satisfaction- 51741. at 751–52. highest-among-self-employed. In particular, 39 139 Exec. Order No. 12866 § 1, 58 FR 51735. Although the common law control percent of self-employed workers reported being 140 OMB guidance advises that, where possible, test considers many of the same factors ‘‘completely satisfied’’ with their jobs, compared agencies should analyze at least one ‘‘more as those identified in the proposed with 28 percent of employees. Id. stringent option’’ and one ‘‘less stringent option’’ to rule’s ‘‘economic reality’’ test (e.g., skill, 136 McKinsey Global Institute, supra note 74 at the proposed approach. OMB Circular A–4 at 16. 10. The McKinsey survey found that, while ‘‘those 141 See 26 U.S.C. 3121(d)(2) (generally defining length of the working relationship, the working independently out of necessity report the term ‘‘employee’’ under the Internal Revenue source of equipment and materials, etc.), being happier with the flexibility and content of the Code as ‘‘any individual who, under the usual courts generally recognize that, because work,’’ they also report being ‘‘less satisfied with common law rules applicable in determining the of its focus on control, the common law their level of income level and their income employer-employee relationship, has the status of test is more permissive of independent security.’’ Id. This rulemaking is unlikely to an employee’’); 42 U.S.C. 410(j) (similarly defining negatively impact the average income level of such ‘‘employee’’ under the Social Security Act); see contracting arrangements than the workers by encouraging independent contractor also, e.g., Community for Creative Non-Violence v. economic reality test, which more opportunities because there is no statistical Reid, 490 U.S. 730, 751 (1989) (applying broadly examines the economic evidence that independent contractor earn less than ‘‘principles of general common law of agency’’ to dependence of the worker. See, e.g., employees. To the contrary and as discussed above, determine ‘‘whether . . . work was prepared by an there are data indicating that independent employee or an independent contractor’’ under the Diggs v. Harris Hospital-Methodist, Inc., contractors, on average, may earn higher hourly Copyright Act of 1976); Darden, 503 U.S. 318 847 F.2d 270, 272 n. 1 (5th Cir. 1988) wages than employees. Nor is rulemaking likely to (holding that ‘‘a common-law test’’ should resolve (observing that ‘‘[t]he ‘economic negatively impact workers’ income security, on employee/independent contractor disputes under realities’ test is a more expansive average. The Department believes income security ERISA). is best achieved by removing barriers that prevent 142 See also Hargrove v. Sleepy’s, LLC, 106 A.3d standard for determining employee laid-off Americans from finding paid work, 449, 465 (N.J. 2015) (extending the ABC test to state status’’ than the common law control including as independent contractors. See 151 wage claims in New Jersey). test). Thus, if a common law control test Ph.D. Economists and Political Scientists in 143 OMB Circular A–4 advises that agencies determined independent contractor California, ‘‘Open Letter to Suspend California AB– ‘‘should discuss the statutory requirements that 5’’ (April 14, 2020). This lesson may be all the affect the selection of regulatory Approach. If legal status under the FLSA, it is possible that greater in light of the COVID–19 emergency. constraints prevent the selection of a regulatory some workers presently classified as 137 Kelly Services, ‘‘Agents of Change’’ (2015), action that best satisfies the philosophy and FLSA employees could be reclassified https://www.kellyservices.com/global/siteassets/3- principles of Executive Order 12866, [agencies] as independent contractors, increasing kelly-global-services/uploadedfiles/3-kelly_global_ should identify these constraints and estimate their services/content/sectionless_pages/ opportunity cost. Such information may be useful the overall number of independent kocg1047720freeagent to Congress under the Regulatory Right-to-Know 20whitepaper20210x21020final2.pdf. Act.’’ 144 See supra note 141.

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contractors and reducing the overall (3) The amount of the worker’s investment proposed rule would be to codify the number of employees. The Department in facilities, equipment, or helpers; ‘‘ABC’’ test recently adopted under is unable to estimate the exact (4) The amount of skill, initiative, California’s state wage and hour law to magnitude of such a reclassification judgment, or foresight required for the distinguish between employee/ effect, but believes that the vast majority worker’s services; independent contractor statuses.146 As (5) The worker’s opportunities for profit or of FLSA employees would remain FLSA loss; and described by the California Supreme employees under a common law control (6) The extent of integration of the worker’s Court in Dynamex, ‘‘[t]he ABC test test.145 services into the potential employer’s presumptively considers all workers to Codifying a common law control test business. be employees, and permits workers to would create a simpler legal regime for be classified as independent contractors WHD Opinion Letter FLSA2019–6 at 4 regulated entities interested in receiving only if the hiring business demonstrates (citing Rutherford, 331 U.S. at 730, and services from an independent that the worker in question satisfies Silk, 331 U.S. at 716). contractor, thereby reducing confusion, each of three conditions: (a) That the The Department believes that the six- compliance costs, and legal risk for worker is free from the control and factor balancing test (as articulated in entities interested in doing business direction of the hirer in connection with WHD Opinion Letter FLSA2019–6) is with independent contractors. Entities the performance of the work, both under neither more nor less permissive of would not, for example, have to the contract for the performance of the independent contractor relationships as understand and apply one employment work and in fact; and (b) that the worker compared to the streamlined test classification standard for tax purposes performs work that is outside the usual proposed in this rulemaking. Both tests and a different employment course of the hiring entity’s business; describe the ‘‘economic dependence’’ of classification standard for FLSA and (c) that the worker is customarily the worker at issue as the ultimate purposes. Thus, adopting the common engaged in an independently inquiry of the test; both emphasize the law control test would likely increase established trade, occupation, or primacy of actual practice over perpetual cost savings for regulated business of the same nature as that contractual or theoretical possibilities entities attributable to improved clarity involved in the work performed.’’ 416 (i.e., the ‘‘economic reality’’ of the work and reduced litigation as compared to P.3d at 34 (emphasis in original).147 In arrangement); and both evaluate the the proposed rule. It could, on the other justifying the adoption of such a same set of underlying factors, hand, impose burdens on workers who stringent test, the Dynamex court noted notwithstanding an emphasis and might prefer to be employees subject to the existence of an ‘‘exceptionally broad consolidation of certain factors under FLSA protections. suffer or permit to work standard’’ in the streamlined test. Notably, like The Department notes that the California’s wage and hour statute, id. at § 795.105(d)(1)(i) of the proposed rule, Supreme Court has interpreted the 31,148 as well as ‘‘the more general WHD Opinion Letter FLSA2019–6 ‘‘suffer or permit’’ language in section principle that wage orders are the type advised that certain safety measures and 3(g) of the FLSA as demanding a of remedial legislation that must be quality control standards do not broader definition of employment than liberally construed in a manner that that which exists under the common constitute ‘‘control’’ indicative of an FLSA employment relationship. See id. law. See, e.g., Darden, 503 U.S. at 326; 146 See Dynamex, 416 P.3d 1; Assembly Bill Portland Terminal Co., 330 at 150–51. at 8 n. 4. (‘‘A.B.’’) 5, Ch. 296, 2019–2020 Reg. Sess. (Cal. Accordingly, the Department believes it Although codifying this six-factor 2019) (codifying the ABC test articulated in is legally constrained from adopting the balancing test would thus impose a Dynamex); A.B. 2257, Ch. 38, 2019–2020 Reg. Sess. comparably stringent legal standard on (Cal. 2020) (retroactively exempting certain common law control test absent professions, occupations, and industries from the Congressional legislation to amend the the regulated community, the ABC test that A.B. 5 had codified). The ABC test FLSA. Department believes, as explained originated in state unemployment insurance earlier in section III, that the six-factor statutes, but some state courts and legislatures have 2. Codifying the Six-Factor ‘‘Economic balancing test presently used by WHD recently extended the test to govern employee/ Reality’’ Balancing Test independent contractor disputes under state wage and most courts would benefit from and hour laws. See Keith Cunningham-Parmeter, As discussed earlier in section II(B), clarification, sharpening, and Gig-Dependence: Finding the Real Independent WHD has long applied a multifactor streamlining. For this reason, the Contractors of Platform Work, 39 N. Ill. U. L. Rev. ‘‘economic reality’’ balancing test to Department believes that codifying such 379, 408–11 (2019) (discussing the origins and distinguish between employees and recent expansion of the ABC test). a test would not yield the perpetual 147 California’s ABC test is slightly more stringent independent contractors in enforcement benefits and cost savings discussed than versions of the ABC test adopted (or presently actions and subregulatory guidance. earlier in this analysis, such as under consideration) in other states. For example, Recently articulated in WHD Opinion improved clarity and reduced FLSA New Jersey provides that a hiring entity may satisfy Letter FLSA2019–6, the six factors the ABC test’s ‘‘B’’ prong by establishing either: (1) litigation. Additionally, the Department That the work provided is outside the usual course presently considered in WHD’s does not believe that codifying the six- of the business for which the work is performed, or multifactor balancing test are as follows: factor balancing test would reduce (2) that the work performed is outside all the places (1) The nature and degree of the potential initial regulatory familiarization costs or of business of the hiring entity. N.J. Stat. Ann. employer’s control; § 43:21–19(i)(6)(A–C). The Department has chosen provide per-contract clarity cost savings, to analyze California’s ABC test as a regulatory (2) The permanency of the worker’s as interested establishments and alternative because businesses subject to multiple relationship with the potential employer; independent contractors will likely standards, including nationwide businesses, are spend the same amount of time learning likely to comply with the most demanding standard 145 As discussed earlier in section IV(D)(7), a about any new regulatory language if they wish to make consistent classification review of federal appellate case law since 1975 determinations. shows that the classification outcome of almost addressing independent contractor 148 See Cal. Code Regs., tit. 8, § 11090, subd. 2(D) every FLSA employee/independent contractor status under the FLSA (no regulatory (‘‘ ‘Employ’ means to engage, suffer, or permit to dispute has aligned with the court’s specific finding guidance on the topic currently exists). work.’’). The Dynamex court noted that California’s on the control factor. Thus, adoption of a common adoption of the ‘‘suffer or permit to work’’ standard law control test would be unlikely to alter most 3. Codifying California’s ‘‘ABC’’ Test predated the enactment of the FLSA and was FLSA worker classifications, including those close therefore ‘‘not intended to embrace the federal enough to merit federal appellate litigation under The most stringent regulatory economic reality test’’ that subsequently developed. the economic reality test. alternative to the Department’s 416 P.3d at 35.

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serves its remedial purposes.’’ Id. at family obligations.151 The Department 730. Because the ABC test is therefore 32.149 believes adopting the ABC test as the inconsistent with Supreme Court On its face, California’s ABC test is far FLSA’s generally applicable standard precedent interpreting the FLSA, the more restrictive of independent for distinguishing employees from Department concludes it could not contracting arrangements than any independent contractors would be adopt the ABC test. formulation of an ‘‘economic reality’’ unduly restrictive and disruptive to the Although the ABC test is ‘‘a simpler, balancing test, including the proposed economy. The fact that California more structured test’’ than a multifactor rule. Whereas no single factor recently enacted numerous exemptions balancing test and would likely lead to necessarily disqualifies a worker from to the ABC test highlights the test’s more consistent classification outcomes, independent contractor status under an limitations as a possible alternative Dynamex, 416 P.3d at 34, legal economic reality test, each of the ABC under the FLSA.152 constraints and the disruptive economic test’s three factors may alone disqualify In any event, the Department believes effects of adopting such a stringent the worker from independent contractor it is legally constrained from adopting standard advises against its adoption in status. Thus, adoption of an ABC test to California’s ABC test because the the FLSA context. As mentioned earlier, govern independent contractor status Supreme Court has instituted the the Department has engaged in this under the FLSA would directly result in economic reality test as the relevant rulemaking to clarify the existing a large-scale reclassification of many standard for determining workers’ standard, not to radically transform it. workers presently classified as classification under the FLSA as an independent contractors into FLSA- employee or independent contractor. H. Summary of Impacts covered employees. This reclassification See Tony & Susan Alamo, 471 U.S. at In summary, the Department believes effect would be particularly disruptive 301 (‘‘The test of employment under the that this rule will increase clarity in industries that depend on Act is one of ‘economic reality.’ ’’); regarding whether a worker is classified independent contracting arrangements Whitaker House, 366 U.S. at 33 (1961) as an employee or an independent within the ‘‘usual course of the hiring (‘‘ ‘economic reality’ rather than contractor under the FLSA. This clarity entity’s business,’’ such as ‘technical concepts’ is . . . the test of could result in an increased use of transportation, residential construction, employment’’ under the FLSA) (citing independent contractors. The costs and cable installation, etc. While some Silk, 331 U.S. at 713; Rutherford Food, benefits to a worker being classified as independent contractors might benefit 331 U.S. at 729)). an independent contractor are discussed from reclassification by newly receiving The California Supreme Court throughout this analysis, and are overtime pay and/or a guaranteed explicitly recognized that the ABC test summarized below. minimum wage, these workers might defines ‘‘employee’’ more broadly than The Department believes that there also experience a reduction in work the FLSA when it explained that the are real benefits to the use of hours or diminished scheduling ABC test rests on a ‘‘standard in independent contractor status, for both flexibility as their new employers California wage orders [that] was not workers and employers. Independent attempt to avoid incurring additional intended to embrace the [FLSA’s] contractors generally have greater expenses for overtime work. Others economic reality test’’ and was instead autonomy and more flexibility in their workers, particularly off-site workers ‘‘intended to provide broader protection hours, providing them more control who operate free from the business’ than that accorded workers under the over the management of their time. The direct control and supervision, might [FLSA] standard.’’ Dynamex, 416 P.3d at use of independent contracting for see their work arrangements terminated 35.153 Moreover, the Supreme Court has employers allows for a more flexible by businesses unwilling or unable to stated that the existence of employment and dynamic workforce, where workers assume the financial burden and legal relationships under the FLSA ‘‘does not provide labor and skills where and risk of the FLSA’s overtime pay depend on such isolated factors’’ as the when they are needed. Independent requirement. Some businesses in three independently determinative contractors may more easily work for California responded to the increased factors in the ABC test, ‘‘but rather upon multiple companies simultaneously, legal risk of treating certain workers as the circumstances of the whole have more control over their labor- independent contractors under the ABC activity.’’ Rutherford Food, 331 U.S. at leisure balance, and more explicitly test by terminating their relationships define the nature of their work. 150 with workers, thereby eliminating 151 See, e.g., Elaine Pofeldt, ‘‘California’s AB–5 Independent contractors also appear to some of the flexible work arrangements leaves Women Business Owners Reeling,’’ Forbes have higher job satisfaction. sought, for example, by parents and (Jan. 19, 2020), www.forbes.com/sites/elainepofeldt/ 2020/01/19/californias-ab5-leaves-women-business- An increase in the number of job others who must balance work and owners-reeling/#460fb6f05ef3. openings for independent contractors 152 See A.B. 2257, Ch. 38, 2019–2020 Reg. Sess. can also have benefits for the economy 149 See Cal. Code Regs., tit. 8, § 11090, subd. 2(D) (Cal. 2020). as a whole. Increased job creation and (‘‘ ‘Employ’ means to engage, suffer, or permit to 153 The ABC test would define ‘‘employee’’ to work.’’). include workers who have been held by the enhanced flexibility in work 150 See, e.g., Marc Tracy and Kevin Draper, ‘‘Vox Supreme Court to be independent contractors under arrangements are critical benefits during Media to Cut 200 Freelancers, Citing California Gig- the economic reality test. For instance, under the periods of economic uncertainty, such Worker Law,’’ New York Times (Dec. 16, 2019), ABC test, the term ‘‘employee’’ would include as the current COVID–19 pandemic. www.nytimes.com/2019/12/16/business/media/vox- individuals who perform work that falls within the media-california-job-cuts.html; Dawn Kawamoto, usual course of the hiring entity’s business, There are unique challenges that face ‘‘Exclusive: Fast-growing S.F. company to exit regardless of all other considerations. Even though independent contractors compared to market as result of state’s new gig worker law,’’ San transporting coal falls within a coal company’s employees subject to the FLSA. Francisco Business Times (Jan. 3, 2020), usual course of business, the United States Supreme www.bizjournals.com/sanfrancisco/news/2020/01/ Court held in Silk that truck drivers hired by a coal Independent contractors are not subject 03/exclusive-fast-growing-s-f-company-to-exit- company to transport coal were independent to the protections of the FLSA, such as market.html; Sophia Bollag and Dale Kasler, contractors rather than employees. 331 U.S. at 719. minimum wage and overtime pay. ‘‘California Workers Blame New Labor Law for Lost Similarly, the Court held in Bartels that musicians Independent contractors generally do Jobs. Lawmakers are Scrambling to Fix It,’’ were independent contractors rather than Sacramento Bee (Feb. 10, 2020), www.sacbee.com/ employees of the music hall where they played, not receive the same employer-provided news/politics-government/capitol-alert/ even though playing music falls within the music benefits as employees, such as health article239822623.html. hall’s usual course of business. 332 U.S. at 130. insurance, retirement contributions, and

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paid time off.154 Independent which determine whether a business than large firms.159 If so, then it may be contractors may have a higher tax qualifies for small-business status, to reasonable to assume that the increased liability than employees, as they are estimate the number of small entities.155 use of independent contractors may also legally obligated to pay both the The Department then applied these favor smaller companies. In which case, employee and employer shares of the thresholds to the U.S. Census Bureau’s costs and benefits and cost savings may Federal Insurance Contributions Act 2012 Economic Census to obtain the be larger for these small firms. Because (FICA) taxes. However, economists number of establishments with benefits and cost savings are expected to recognize that payroll taxes generally employment or sales/receipts below the outweigh costs, the Department does not are subtracted from the wage rate of small business threshold in the expect this rule will result in an undue employees. Employers also cover industry.156 These ratios of small to hardship for small businesses. The unemployment insurance and workers’ large establishments were then applied Department requests comments and data compensation taxes for their employees. to the more recent 2017 SUSB data.157 on this finding, including the numbers These costs are also components of The Department estimated there are 6.4 of small entities affected by this rule businesses’ worker costs, and employee million small establishments or and the compliance costs and associated wages are expected to reflect that governments.158 cost savings and benefits. accordingly. Independent contractors do The per-entity cost for small business VIII. Unfunded Mandates Reform Act not pay these taxes nor are they employers is the regulatory Analysis generally protected by these insurance familiarization cost of $54.74, or the programs, but there are private fully loaded mean hourly wage of a The Unfunded Mandates Reform Act insurance companies that offer Compensation, Benefits, and Job of 1995 (UMRA) 160 requires agencies to equivalent coverage. Analysis Specialist multiplied by one prepare a written statement for rules Because the Department does not hour. The per-entity rule familiarization with a federal mandate that may result know how many workers may shift from cost for independent contractors, some in increased expenditures by state, employee status to independent of whom would be small businesses, is local, and tribal governments, in the contractor status, or how many people $11.59, or the fully loaded mean hourly aggregate, or by the private sector, of who were previously unemployed or wage of independent contractors in the $156 million ($100 million in 1995 out of the labor force will gain work as CWS ($46.36) multiplied by 0.25 hour. dollars adjusted for inflation) or more in an independent contractor, these costs The cost savings due to increased at least one year.161 This statement and benefits have not been quantified. clarity estimated per year for each small must: (1) Identify the authorizing The Department welcomes comments business employer is $18.25, or the fully legislation; (2) present the estimated and data on these costs and benefits, loaded mean hourly wage of a costs and benefits of the rule and, to the and on how the prevalence of Compensation, Benefits, and Job extent that such estimates are feasible independent contractor relationships Analysis Specialist multiplied by 0.33 and relevant, its estimated effects on the will change as a result of this proposed hours. The cost savings due to increased national economy; (3) summarize and rule. clarity for each independent contractor, evaluate state, local, and tribal some of whom would be a small government input; and (4) identify VII. Regulatory Flexibility Act Analysis business, is $3.86 per year, or the fully reasonable alternatives and select, or loaded mean hourly wage of The Regulatory Flexibility Act of 1980 explain the non-selection, of the least independent contractors in the CWS (RFA), 5 U.S.C. 601 et seq., as amended costly, most cost-effective, or least multiplied by 0.83 hours. Because by the Small Business Regulatory burdensome alternative. Enforcement Fairness Act of 1996, regulatory familiarization is a one-time Public Law 104–121 (1996), requires cost and the cost savings from clarity A. Authorizing Legislation recur each year, the Department expects federal agencies engaged in rulemaking This proposed rule is issued pursuant cost savings to outweigh regulatory to consider the impact of their proposals to the Fair Labor Standards Act, 29 familiarization costs in the long run. on small entities, consider alternatives U.S.C. 201, et seq. to minimize that impact, and solicit Because both costs and cost savings are public comment on their analyses. The minimal for small business entities, and B. Assessment of Costs and Benefits RFA requires the assessment of the well below one percent of their gross For purposes of the UMRA, this rule impact of a regulation on a wide range annual revenues, which is typically at includes a federal mandate that is of small entities, including small least $100,000 per year for the smallest expected to result in increased businesses, not-for-profit organizations, businesses, the Department certifies that expenditures by the private sector of and small governmental jurisdictions. the proposed rule will not have a more than $156 million in at least one Accordingly, the Department examined significant economic impact on a year, but will not result in increased the regulatory requirements of the substantial number of small entities. expenditures by state, local, and tribal There is some evidence that small proposed rule to determine whether governments, in the aggregate, of $156 firms use independent contractors for a they would have a significant economic million or more in any one year. greater proportion of their workforce impact on a substantial number of small Based on the cost analysis from this entities. Because both costs and cost 155 SBA, Summary of Size Standards by Industry proposed rule, the Department savings are minimal for small business Sector, 2017, www.sba.gov/document/support-- determined that the proposed rule will entities, the Department certifies that table-size-standards. result in Year 1 total costs for state and the proposed rule will not have a 156 The 2012 data are the most recently available local governments totaling $1.7 million, significant economic impact on a with revenue data. all for regulatory familiarization. There substantial number of small entities. 157 For this analysis, the Department excluded The Department used the Small independent contractors who are not registered as small businesses, and who are generally not 159 Lim et al, supra note 61 at 51. Business Administration size standards, captured in the SUSB, from the calculation of small 160 See 2 U.S.C. 1501. establishments. 161 Calculated using growth in the Gross Domestic 154 In some situations, independent contractors 158 The number of small governments was Product deflator from 1995 to 2019. Bureau of may be provided with benefits similar to those calculated based on data from the 2017 Census of Economic Analysis. Table 1.1.9. Implicit Price provided to employees. Governments. Deflators for Gross Domestic Product.

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will be no additional costs incurred in promote innovation and certainty in § 788.16 Employment relationship. subsequent years. business relationships. (a) In determining whether The Department determined that the individuals are employees or IX. Effects on Families proposed rule will result in Year 1 total independent contractors, the criteria costs for the private sector of $369.2 The undersigned hereby certifies that laid down in §§ 795.100 through million, all of them incurred for the proposed rule would not adversely 795.110 of this chapter are used. regulatory familiarization. The affect the well-being of families, as * * * * * Department included all independent discussed under section 654 of the ■ 5. Add part 795 to read as follows: contractors in the private sector total Treasury and General Government regulatory familiarization costs. There Appropriations Act, 1999. PART 795—EMPLOYEE OR will be no additional costs incurred in INDEPENDENT CONTRACTOR subsequent years. List of Subjects CLASSIFICATION UNDER THE FAIR UMRA requires agencies to estimate 29 CFR Part 780 LABOR STANDARDS ACT the effect of a regulation on the national Agriculture, Child labor, Wages. Sec. economy if such estimates are 795.100 Introductory statement. reasonably feasible and the effect is 29 CFR Part 788 795.105 Determining employee and relevant and material.162 However, OMB independent contractor classification guidance on this requirement notes that Forests and forest products, Wages. under the FLSA. such macroeconomic effects tend to be 29 CFR Part 795 795.110 Primacy of actual practice. measurable in nationwide econometric 795.115 Severability. models only if the economic effect of Employment, Wages. Authority: 52 Stat. 1060, as amended; 29 the regulation reaches 0.25 percent to Signed at Washington, DC, this 18th day of U.S.C. 201–219. 0.5 percent of Gross Domestic Product September, 2020. § 791.100 Introductory statement. (GDP), or in the range of $53.6 billion Cheryl M. Stanton, 163 This part contains the Department of to $107.2 billion (using 2019 GDP). A Administrator, Wage and Hour Division. regulation with a smaller aggregate Labor’s general interpretations of the effect is not likely to have a measurable For the reasons set out in the text governing individuals’ effect in macroeconomic terms, unless it preamble, the Department of Labor classification as employees or is highly focused on a particular proposes to amend Title 29 of the Code independent contractors under the Fair geographic region or economic sector, of Federal Regulations parts 780 and Labor Standards Act (FLSA or Act). See which is not the case with this proposed 788 and add part 795, as follows: 29 U.S.C. 201–19. The Administrator of rule. the Wage and Hour Division will use The Department’s PRIA estimates that PART 780—EXEMPTIONS these interpretations to guide the the total costs of the proposed rule will APPLICABLE TO AGRICULTURE, performance of his or her duties under be $369.2 million. Given OMB’s PROCESSING OF AGRICULTURAL the Act, and intends the interpretations guidance, the Department has COMMODITIES, AND RELATED to be used by employers, employees, determined that a full macroeconomic SUBJECTS UNDER THE FAIR LABOR and courts to understand employers’ analysis is not likely to show that these STANDARDS ACT obligations and employees’ rights under costs would have any measurable effect the Act. To the extent that prior on the economy. ■ 1. The authority citation for part 780 administrative rulings, interpretations, continues to read as follows: practices, or enforcement policies C. Least Burdensome Option Explained relating to classification as an employee Authority: Secs. 1–19, 52 Stat. 1060, as This Department believes that it has amended; 29 U.S.C. 201–219. or independent contractor under the Act chosen the least burdensome but still are inconsistent or in conflict with the cost-effective methodology to clarify its ■ 2. Amend § 780.330 by revising interpretations stated in this part, they interpretation of the FLSA’s distinction paragraph (b) as follows: are hereby rescinded. The interpretations stated in this part may be between employees and independent § 780.330 Sharecroppers and tenant contractors. Although the proposed farmers. relied upon in accordance with section 10 of the Portal-to-Portal Act, 29 U.S.C. regulation would impose costs for * * * * * regulatory familiarization, the 251–262, notwithstanding that after any Department believes that its proposal (b) In determining whether such such act or omission in the course of would reduce the overall burden on individuals are employees or such reliance, any such interpretation in organizations by simplifying and independent contractors, the criteria this part ‘‘is modified or rescinded or is clarifying the analysis for determining laid down in §§ 795.100 through determined by judicial authority to be whether a worker is classified as an 795.110 of this chapter are used. invalid or of no legal effect.’’ 29 U.S.C. employee or an independent contractor * * * * * 259. under the FLSA. The Department § 795.105 Determining employee and believes that, after familiarization, this PART 788—FORESTRY OR LOGGING OPERATIONS IN WHICH NOT MORE independent contractor classification under rule will reduce the time spent by the FLSA. organizations to determine whether a THAN EIGHT EMPLOYEES ARE EMPLOYED (a) Independent contractors are not worker is an independent contractor. employees under the Act. An individual Additionally, revising the Department’s ■ 3. The authority citation for part 788 who renders services to a potential guidance to provide more clarity could continues to read as follows: employer—i.e., a putative employer or alleged employer— as an independent 162 Authority: Secs. 1–19, 52 Stat. 1060, as See 2 U.S.C. 1532(a)(4). contractor is not that potential 163 According to the Bureau of Economic amended; 29 U.S.C. 201–219. Analysis, 2019 GDP was $21.43 trillion. https:// employer’s employee under the Act. As ■ www.bea.gov/system/files/2020-02/gdp4q19_2nd_ 4. Amend § 788.16 by revising such, sections 6, 7, and 11 of the Act, 0.pdf. paragraph (a) as follows: which impose obligations on employers

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regarding their employees, are selecting his or her projects, and/or individual and the potential employer. inapplicable. Accordingly, the Act does through the ability to work for others, This factor weighs in favor of the not require a potential employer to pay which might include the potential individual being an independent an independent contractor either the employer’s competitors. In contrast, this contractor to the extent the work minimum wage or overtime pay under factor weighs in favor of the individual relationship is by design definite in sections 6 or 7. Nor does section 11 of being an employee under the Act to the duration or sporadic, which may the Act require a potential employer to extent the potential employer, as include regularly occurring fixed keep records regarding an independent opposed to the individual, exercises periods of work, although the seasonal contractor’s activities. substantial control over key aspects of nature of work by itself would not (b) Economic dependence as the the performance of the work, such as by necessarily indicate independent ultimate inquiry. An ‘‘employee’’ under controlling the individual’s schedule or contractor classification. This factor the Act is an individual whom an workload and/or by directly or weighs in favor of the individual being employer suffers, permits, or otherwise indirectly requiring the individual to an employee to the extent the work employs to work. 29 U.S.C. 203(e)(1), work exclusively for the potential relationship is instead by design (g). An employer suffers or permits an employer. Requiring the individual to indefinite in duration or continuous. individual to work as an employee if, as comply with specific legal obligations, a matter of economic reality, the satisfy health and safety standards, carry (iii) Whether the work is part of an individual is economically dependent insurance, meet contractually agreed- integrated unit of production. This on that employer for work. Rutherford upon deadlines or quality control factor weighs in favor of the individual Food Corp. v. McComb, 331 U.S. 722, standards, or satisfy other similar terms being an employee to the extent his or 727 (1947); Bartels v. Birmingham, 332 that are typical of contractual her work is a component of the potential U.S. 126, 130 (1947). An individual is relationships between businesses (as employer’s integrated production an independent contractor, as opposed to employment relationships) process for a good or service. This factor distinguished from an ‘‘employee’’ does not constitute control that makes weighs in favor of an individual being under the Act, if the individual is, as a the individual more or less likely to be an independent contractor to the extent matter of economic reality, in business an employee under the Act. his or her work is segregable from the for him- or herself. (ii) The individual’s opportunity for potential employer’s production (c) Determining economic profit or loss. This factor weighs process. This factor is different from the dependence. The economic reality towards the individual being an concept of the importance or centrality factors in paragraph (d) of this section independent contractor to the extent the of the individual’s work to the potential guide the determination of whether the individual has an opportunity to earn employer’s business. relationship between an individual and profits or incur losses based on his or a potential employer is one of economic her exercise of initiative (such as § 795.110 Primacy of actual practice. dependence and therefore whether an managerial skill or business acumen or In evaluating the individual’s individual is properly classified as an judgment) or management of his or her economic dependence on the potential employee or independent contractor. investment in or capital expenditure on, employer, the actual practice of the These factors are not exhaustive, and no for example, helpers or equipment or parties involved is more relevant than single factor is dispositive. However, the material to further his or her work. what may be contractually or two core factors listed in paragraph While the effects of the individual’s theoretically possible. For example, an (d)(1) of this section are the most exercise of initiative and management of individual’s theoretical abilities to probative as to whether or not an investment are both considered under negotiate prices or to work for individual is an economically this factor, the individual does not need competing businesses are less dependent ‘‘employee,’’ 29 U.S.C. to have an opportunity for profit or loss meaningful if, as a practical matter, the 203(e)(1), and each is therefore afforded based on both for this factor to weigh individual is prevented from exercising greater weight in the analysis than is towards the individual being an such rights. Likewise, a business’ any other factor. Given the greater independent contractor. This factor contractual authority to supervise or weight afforded each of these two core weighs towards the individual being an discipline an individual may be of little factors, if they both point towards the employee to the extent the individual is relevance if in practice the business same classification, whether employee unable to affect his or her earnings or is never exercises such authority. or independent contractor, there is a only able to do so by working more substantial likelihood that is the hours or more efficiently. § 795.115 Severability. individual’s accurate classification. This (2) Other factors—(i) The amount of If any provision of this part is held to is because other factors, which are less skill required for the work. This factor be invalid or unenforceable by its terms, probative and afforded less weight, are weighs in favor of the individual being or as applied to any person or highly unlikely, either individually or an independent contractor to the extent circumstance, or stayed pending further collectively, to outweigh the combined the work at issue requires specialized agency action, the provision shall be weight of the two core factors. training or skill that the potential construed so as to continue to give the (d) Economic reality factors—(1) Core employer does not provide. This factor maximum effect to the provision factors—(i) The nature and degree of the weighs in favor of the individual being permitted by law, unless such holding individual’s control over the work. This an employee to the extent the work at shall be one of utter invalidity or factor weighs towards the individual issue requires no specialized training or unenforceability, in which event the being an independent contractor to the skill and/or the individual is dependent provision shall be severable from part extent the individual, as opposed to the upon the potential employer to equip 795 and shall not affect the remainder potential employer, exercises him or her with any skills or training thereof. substantial control over key aspects of necessary to perform the job. the performance of the work, such as by (ii) The degree of permanence of the [FR Doc. 2020–21018 Filed 9–24–20; 8:45 am] setting his or her own schedule, by working relationship between the BILLING CODE 4510–27–P

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Part IV

Department of Energy

10 CFR Part 431 Energy Conservation Program: Energy Conservation Standards for Computer Room Air Conditioners and Air-Cooled, Three-Phase, Small Commercial Package Air Conditioning and Heating Equipment With a Cooling Capacity of Less Than 65,000 Btu/h; Proposed Rule

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DEPARTMENT OF ENERGY ADDRESSES: Interested persons are submit comments through http:// encouraged to submit comments using www.regulations.gov. 10 CFR Part 431 the Federal eRulemaking Portal at FOR FURTHER INFORMATION CONTACT: Ms. http://www.regulations.gov. Follow the Catherine Rivest and Mr. Antonio [EERE–2020–BT–STD–0008] instructions for submitting comments. Bouza, U.S. Department of Energy, Alternatively, interested persons may RIN 1904–AF01 Office of Energy Efficiency and submit comments, identified by docket Renewable Energy, Building Energy Conservation Program: Energy number EERE–2020–BT–STD–0008 Technologies Office, EE–5B, 1000 Conservation Standards for Computer and/or RIN 1904–AF01, by any of the Independence Avenue SW, Washington, Room Air Conditioners and Air-Cooled, following methods: DC 20585–0121. Telephone: (202) 586– Three-Phase, Small Commercial 1. Federal eRulemaking Portal: http:// 7335. Email: Package Air Conditioning and Heating www.regulations.gov. Follow the ApplianceStandardsQuestions@ Equipment With a Cooling Capacity of instructions for submitting comments. ee.doe.gov. Less Than 65,000 Btu/h 2. Email: Mr. Eric Stas, U.S. Department of 2019ASHRAE2020STD0008@ Energy, Office of the General Counsel, AGENCY: Office of Energy Efficiency and ee.doe.gov. Include the docket number GC–33, 1000 Independence Avenue SW, Renewable Energy, Department of EERE–2020–BT–STD–0008 and/or RIN Washington, DC 20585. Telephone: Energy. 1904–AF01 in the subject line of the (202) 586–5827. Email: Eric.Stas@ ACTION: Notification of data availability message. hq.doe.gov. and request for information. 3. Postal Mail: Appliance and For further information on how to Equipment Standards Program, U.S. submit a comment or review other SUMMARY: The U.S. Department of Department of Energy, Building public comments and the docket, Energy (DOE) is publishing an analysis Technologies Office, Mailstop EE–5B, contact the Appliance and Equipment of the energy savings potential of Energy Conservation Standards NODA Standards Program staff at (202) 287– amended industry consensus standards and RFI for Certain Categories of 1445 or by email: for certain classes of computer room air Commercial Air-Conditioning and ApplianceStandardsQuestions@ conditioners (CRACs) and air-cooled, Heating Equipment, 1000 Independence ee.doe.gov. three-phase, small commercial package Avenue SW, Washington, DC 20585– SUPPLEMENTARY INFORMATION: air conditioning and heating equipment 0121. If possible, please submit all items with a cooling capacity of less than on a compact disc (CD), in which case Table of Contents 65,000 Btu/h (air-cooled, three-phase, it is not necessary to include printed I. Introduction small commercial package AC and HP copies. A. Authority (<65 K) equipment). As required under 4. Hand Delivery/Courier: Appliance B. Purpose of the Notice of Data the Energy Policy and Conservation Act and Equipment Standards Program, U.S. Availability (EPCA), DOE has been triggered to act Department of Energy, Building C. Rulemaking Background by changes to the American Society of Technologies Office, 950 L’Enfant Plaza 1. Computer Room Air Conditioners Heating, Refrigerating and Air- SW, 6th Floor, Washington, DC 20024. 2. Air-Cooled, Three-phase, Small Conditioning Engineers (ASHRAE) Commercial Package AC and HP (<65 K) Telephone: (202) 287–1445. If possible, Equipment Standard 90.1. DOE is also soliciting please submit all items on a CD, in II. Discussion of Changes in ASHRAE information regarding energy which case it is not necessary to include Standard 90.1–2019 conservation standards for CRACs and printed copies. A. Computer Room Air Conditioners air-cooled, three-phase, small No telefacsimilies (faxes) will be 1. Methodology for Efficiency and Capacity commercial package AC and HP (<65 K) accepted. For detailed instructions on Crosswalk Analyses equipment for which the industry submitting comments and additional a. General consensus standards have not been b. Increase in Return Air Dry-Bulb information on the rulemaking process, ° ° amended, pursuant to EPCA’s six-year- see section V of this document (Public Temperature from 75 F to 85 F lookback review requirement. This c. Decrease in Entering Water Temperature Participation). for Water-Cooled CRACs notice of data availability (NODA) and Docket: The docket for this activity, d. Changes in External Static Pressure request for information (RFI) solicits which includes Federal Register Requirements for Upflow Ducted CRACs information from the public to help notices, comments, and other e. Power Adder To Account for Pump and DOE determine whether more-stringent supporting documents/materials, is Heat Rejection Fan Power in NSenCOP amended standards for CRACs or air- available for review at http:// Calculation for Water-Cooled and Glycol- cooled, three-phase, small commercial www.regulations.gov (search EERE– Cooled CRACs package AC and HP (<65 K) equipment 2020–BT–STD–0008). All documents in f. Calculating Overall Changes in Measured Efficiency and Capacity from Test would result in significant additional the docket are listed in the http:// energy savings and whether such Procedure Changes www.regulations.gov index. However, 2. Crosswalk Results standards would be technologically some documents listed in the index, 3. Discussion of Comments Received feasible and economically justified. DOE such as those containing information Regarding Amended Standards for welcomes written comments from the that is exempt from public disclosure, CRACs public on any subject within the scope may not be publicly available. 4. CRAC Standards Amended Under of this document (including topics not The docket web page can be found at: ASHRAE Standard 90.1–2019 specifically raised in this NODA/RFI), https://www.regulations.gov/ B. Air-Cooled, Three-phase, Small as well as the submission of data and docket?D=EERE-2020-BT-STD-0008. Commercial Package AC and HP (<65 K) other relevant information. Equipment The docket web page contains 1. Crosswalk Methodology and Results DATES: Written comments and instructions on how to access all III. Analysis of Standards Amended and information are requested and will be documents, including public comments, Newly Established by ASHRAE Standard accepted on or before November 9, in the docket. See section V of this 90.1–2019 2020. document for information on how to A. Annual Energy Use

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1. Computer Room Air Conditioners procedures (42 U.S.C. 6314), labeling Standard 90.1, unless DOE determines a. Equipment Classes and Analytical Scope provisions (42 U.S.C. 6315), and the that there is clear and convincing b. Efficiency Levels authority to require information and evidence to support a determination c. Analysis Method and Annual Energy reports from manufacturers (42 U.S.C. that a more-stringent standard level as a Use Results 2. Air-Cooled, Three-Phase, Small 6316). national standard would produce Commercial Package AC and HP (<65k) Federal energy efficiency significant additional energy savings Equipment requirements for covered equipment and be technologically feasible and a. Equipment Classes and Analytical Scope established under EPCA generally economically justified. (42 U.S.C. b. Efficiency Levels supersede State laws and regulations 6313(a)(6)(A)(i)–(ii)) If DOE decides to c. Annual Energy Use Results concerning energy conservation testing, adopt as a uniform national standard the B. Shipments labeling, and standards. (42 U.S.C. minimum efficiency levels specified in 1. Computer Room Air Conditioners 6316(a) and (b); 42 U.S.C. 6297) DOE the amended ASHRAE Standard 90.1, 2. Air-Cooled, Three-Phase, Small may, however, grant waivers of Federal DOE must establish such standard not Commercial Package AC and HP (<65 K) preemption in limited circumstances for Equipment later than 18 months after publication of C. No-New-Standards-Case Efficiency particular State laws or regulations, in the amended industry standard. (42 Distribution accordance with the procedures and U.S.C. 6313(a)(6)(A)(ii)(I)) However, if D. Other Analytical Inputs other provisions set forth under EPCA. DOE determines, supported by clear and 1. Equipment Lifetime (See 42 U.S.C. 6316(b)(2)(D)). convincing evidence, that a more- 2. Compliance Dates and Analysis Period In EPCA, Congress initially set stringent uniform national standard E. Estimates of Potential Energy Savings mandatory energy conservation would result in significant additional F. Consideration of More-Stringent Energy standards for certain types of conservation of energy and is Efficiency Levels commercial heating, air-conditioning, technologically feasible and IV. Review Under Six-Year-Lookback and water-heating equipment. (42 U.S.C. Provisions: Requested Information economically justified, then DOE must 6313(a)) Specifically, the statute sets establish such more-stringent uniform V. Public Participation standards for small, large, and very large A. Submission of Comments national standard not later than 30 B. Issues on Which DOE Seeks Comment commercial package air conditioning 3 months after publication of the VI. Approval of the Office of the Secretary and heating equipment, packaged amended ASHRAE Standard 90.1.4 (42 terminal air conditioners (PTACs) and I. Introduction U.S.C. 6313(a)(6)(A)(ii)(II) and (B)(i)). packaged terminal heat pumps (PTHPs), In an update to 10 CFR part 430, A. Authority warm-air furnaces, packaged boilers, subpart C, appendix A, ‘‘Procedures, storage water heaters, instantaneous interpretations, and policies for The Energy Policy and Conservation water heaters, and unfired hot water 1 consideration of new or revised energy Act, as amended (EPCA), Public Law storage tanks. Id. In doing so, EPCA conservation standards and test 94–163 (42 U.S.C. 6291–6317, as established Federal energy conservation procedures for commercial/industrial codified) among other things, authorizes standards at levels that generally equipment’’ (the updated Process DOE to regulate the energy efficiency of corresponded to the levels in ASHRAE Rule),5 DOE codified in its regulations a number of consumer products and Standard 90.1, Energy Standard for its long-standing interpretation that the certain industrial equipment. Title III, Buildings Except Low-Rise Residential 2 ASHRAE ‘‘trigger’’ is applicable only to Part C of EPCA (42 U.S.C. 6311–6317, Buildings, as in effect on October 24, those equipment classes for which as codified), added by Public Law 95– 1992 (i.e., ASHRAE Standard 90.1– ASHRAE Standard 90.1 has adopted an 619, Title IV, § 441(a), established the 1989), for each type of covered increase to the efficiency level as Energy Conservation Program for equipment listed in 42 U.S.C. 6313(a). Certain Industrial Equipment, which In acknowledgement of technological compared to the current Federal sets forth a variety of provisions changes that yield energy efficiency standard for that specific equipment designed to improve energy efficiency. benefits, Congress further directed DOE This equipment includes CRACs and 4 In determining whether a more-stringent through EPCA to consider amending the standard is economically justified, EPCA directs air-cooled, three-phase, small existing Federal energy conservation DOE to determine, after receiving views and commercial package AC and HP (<65 K) standard for each type of covered comments from the public, whether the benefits of equipment, which are categories of equipment listed, each time ASHRAE the proposed standard exceed the burdens of the small, large, and very large commercial proposed standard by, to the maximum extent amends Standard 90.1 with respect to practicable, considering the following: package air conditioning and heating such equipment. (42 U.S.C. (1) The economic impact of the standard on the equipment, which are the subjects of 6313(a)(6)(A)) When triggered in this manufacturers and consumers of the products this document. (42 U.S.C. 6311(1)(B)– manner, DOE must undertake and subject to the standard; (D)). publish an analysis of the energy (2) The savings in operating costs throughout the Under EPCA, the energy conservation savings potential of amended energy estimated average life of the product compared to any increases in the initial cost or maintenance program consists essentially of four efficiency standards, and amend the expense; parts: (1) Testing, (2) labeling, (3) Federal standards to establish a uniform (3) The total projected amount of energy savings Federal energy conservation standards, national standard at the minimum level likely to result directly from the standard; and (4) certification and enforcement specified in the amended ASHRAE (4) Any lessening of the utility or the performance procedures. Relevant provisions of the of the products likely to result from the standard; (5) The impact of any lessening of competition, EPCA specifically include definitions 3 EPCA defines commercial package air- as determined in writing by the Attorney General, conditioning and heating equipment as meaning (42 U.S.C. 6311), energy conservation that is likely to result from the standard; standards (42 U.S.C. 6313), test air-cooled, water-cooled, evaporatively-cooled, or water source (not including ground water source) (6) The need for national energy conservation; electrically operated, unitary central air and 1 All references to EPCA in this document refer conditioners and central air-conditioning heat (7) Other factors the Secretary considers relevant. to the statute as amended through America’s Water pumps for commercial application. (42 U.S.C. (42 U.S.C. 6313(a)(6)(B)(ii)). Infrastructure Act of 2018, Public Law 115–270 6311(8)(A)) Commercial package air-conditioning 5 The updated Process Rule is applicable to (Oct. 23, 2018). and heating equipment includes CRACs and air- covered equipment and includes provisions specific 2 For editorial reasons, upon codification in the cooled, three-phase small commercial package AC to rulemakings related to ASHRAE equipment. 85 U.S. Code, Part C was redesignated Part A–1. and HP (<65 K) equipment. FR 8626, 8704, 8708, and 8711 (Feb. 14, 2020).

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class. 85 FR 8626, 8644–8645 (Feb. 14, amending the uniform national equipment specified under 42 U.S.C. 2020). DOE’s review in adopting standards. (42 U.S.C. 6313(a)(6)(C)) 6313(a). (42 U.S.C. 6313(a)(6)(A)) This amendments based on an action by Specifically, pursuant to the notice of data availability (NODA) ASHRAE to amend Standard 90.1 is amendments to EPCA under AEMTCA, presents the analysis of the energy strictly limited to the specific standards DOE is required to conduct an savings potential of the amended energy or test procedure amendment for the evaluation of each class of covered efficiency standards in ASHRAE specific equipment for which ASHRAE equipment in ASHRAE Standard 90.1 Standard 90.1–2019, as required under has made a change (i.e., determined ‘‘every 6 years’’ to determine whether 42 U.S.C. 6313(a)(6)(A)(i). down to the equipment class level). 85 the applicable energy conservation Although not compelled to do so by FR 8626, 8708 (Feb. 14, 2020). standards need to be amended. (42 the statute, DOE may decide in Although EPCA does not explicitly U.S.C. 6313(a)(6)(C)(i)) DOE must appropriate cases to simultaneously define the term ‘‘amended’’ in the publish either a notice of proposed conduct an ASHRAE trigger rulemaking context of what type of revision to rulemaking (NOPR) to propose amended (i.e., for those equipment classes for ASHRAE Standard 90.1 would trigger standards or a notice of determination which ASHRAE set a higher standard) DOE’s obligation, DOE’s longstanding that existing standards do not need to be and a 6-year-lookback rulemaking (i.e., interpretation has been that the amended. (42 U.S.C. 6313(a)(6)(C)(i)(I)– for those equipment classes where statutory trigger is an amendment to the (II)) In proposing new standards under ASHRAE left levels unchanged or set a standard applicable to that equipment the 6-year-lookback review, DOE must lower standard) so as to address all under ASHRAE Standard 90.1 that undertake the same considerations as if classes of an equipment category at the increases the energy efficiency level for it were adopting a standard that is more same time. 85 FR 8626, 8645 (Feb. 14, that equipment. See 72 FR 10038, 10042 stringent than an amendment to 2020). For CRACs and air-cooled, three- (March 7, 2007). In other words, if the ASHRAE Standard 90.1. (42 U.S.C. phase, small commercial package AC revised ASHRAE Standard 90.1 leaves 6313(a)(6)(C)(i)(II), 42 U.S.C. and HP (<65 K) equipment, DOE is also the energy efficiency level unchanged 6313(a)(6)(B)). evaluating possible amendments to the (or lowers the energy efficiency level), The 6-year-lookback review is a standards for those equipment classes as compared to the energy efficiency separate statutory review obligation, as for which the stringency of standards level specified by the uniform national differentiated from the obligation was not changed by ASHRAE Standard standard adopted pursuant to EPCA, triggered by an ASHRAE Standard 90.1 90.1, consistent with its obligations regardless of the other amendments amendment, as previously discussed. under EPCA. made to the ASHRAE Standard 90.1 ASHRAE not acting to amend Standard For all classes of CRACs and air- requirement (e.g., the inclusion of an 90.1 is tantamount to a decision that the cooled, three-phase, small commercial additional metric), DOE has stated that existing standard remain in place. 85 FR package AC and HP (<65 K) equipment it does not have the authority to conduct 8626, 8708 (Feb. 14, 2020). Thus, when (including both the classes for which a rulemaking to consider a higher undertaking a review as required by 42 ASHRAE did and did not increase the standard for that equipment pursuant to U.S.C. 6313(a)(6)(C), DOE would need to stringency of energy efficiency levels 42 U.S.C. 6313(a)(6)(A). See 74 FR find clear and convincing evidence, as applicable under ASHRAE Standard 36312, 36313 (July 22, 2009) and 77 FR defined in the Process Rule, to issue a 90.1), DOE seeks data and information 28928, 28937 (May 16, 2012). If an standard more stringent than the that could enable the agency to amendment to ASHRAE Standard 90.1 existing standard for the equipment at determine whether a more-stringent changed the metric for the standard on issue. Id. In those instances where DOE standard: (1) Would not result in which the Federal requirement was makes a determination that the significant additional savings of energy; based, DOE would perform a crosswalk standards for the equipment in question (2) is not technologically feasible; (3) is analysis to determine whether the do not need to be amended, the statute not economically justified; or (4) any amended metric under ASHRAE requires the Department to revisit that combination of the foregoing. If for the Standard 90.1 resulted in an energy decision within three years to either triggered equipment classes, standard efficiency level that was more stringent make a new determination or propose levels more stringent than the amended than the current DOE standard. amended standards. (42 U.S.C. ASHRAE levels do not meet the DOE notes that Congress adopted 6313(a)(6)(C)(iii)(II)). statutory criteria, DOE would adopt the amendments to these provisions related On October 24, 2019, ASHRAE amended ASHRAE Standard 90.1 levels. to ASHRAE Standard 90.1 equipment officially released for distribution and If for the non-triggered equipment under the American Energy made public ASHRAE Standard 90.1– classes, standard levels more stringent Manufacturing Technical Corrections 2019. As discussed in the following than the current Federal standards do Act (Pub. L. 112–210 (Dec. 18, 2012); sections, DOE has preliminarily not meet the statutory criteria, DOE ‘‘AEMTCA’’). In relevant part, DOE is determined that the amendments to would determine the standards do not prompted to act whenever ASHRAE ASHRAE Standard 90.1 have triggered need to be amended. Standard 90.1 is amended with respect DOE’s obligations under 42 U.S.C. to ‘‘the standard levels or design 6313(a)(6), for certain equipment B. Purpose of the Notice of Data requirements applicable under that classed of CRACs and air-cooled, three- Availability standard’’ to any of the enumerated phase, small commercial package AC As explained previously, DOE is types of commercial air conditioning, and HP (<65 K) equipment. publishing this NODA as a preliminary heating, or water heating equipment As a preliminary step in the process step pursuant to EPCA’s requirements covered under EPCA. (42 U.S.C. of reviewing the changes to ASHRAE for DOE to consider amended standards 6313(a)(6)(A)(i)). Standard 90.1, EPCA directs DOE to for certain categories of commercial In those situations where ASHRAE publish in the Federal Register for equipment covered by ASHRAE has not acted to amend the levels in public comment an analysis of the Standard 90.1, whenever ASHRAE ASHRAE Standard 90.1 for the covered energy savings potential of amended amends its standard to increase the equipment types enumerated in the standards within 180 days after energy efficiency level for an equipment statute, EPCA also provides for a 6-year- ASHRAE Standard 90.1 is amended class within a given equipment lookback to consider the potential for with respect to any of the covered category. Specifically, this NODA

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presents for public comment DOE’s level specified in ASHRAE Standard conditioning heat pumps for analysis of the potential energy savings 90.1–2019, or where supported by clear commercial application. (42 U.S.C. for amended national energy and convincing evidence, consider 6311(8)(A); 10 CFR 431.92) EPCA conservation standards for the more-stringent efficiency levels that further divides ‘‘commercial package air equipment classes of commercial would be expected to result in conditioning and heating equipment’’ equipment for which amended significant additional conservation of based on cooling capacity (i.e., small, efficiency levels are contained within energy and are technologically feasible large, and very large categories). (42 ASHRAE Standard 90.1–2019. DOE and economically justified. If DOE U.S.C. 6311(8)(B)–(D); 10 CFR 431.92) describes these analyses and determines it appropriate to conduct ‘‘Small commercial package air preliminary conclusions and seeks such a rulemaking under the statute, conditioning and heating equipment’’ input from interested parties, including DOE will address the anti-backsliding means equipment rated below 135,000 the submission of data and other provision,6 and if DOE determines it Btu per hour (cooling capacity). (42 relevant information. Specifically, DOE appropriate to conduct a rulemaking to U.S.C. 6311(8)(B); 10 CFR 431.92) seeks comment on the potential energy establish more-stringent efficiency ‘‘Large commercial package air savings for amended national energy levels, DOE will also address the general conditioning and heating equipment’’ conservation standards for these rulemaking requirements applicable means equipment rated: (i) At or above categories of commercial equipment under 42 U.S.C. 6313(a)(6)(B), such as, 135,000 Btu per hour; and (ii) below based on: (1) The amended efficiency the criteria for making a determination 240,000 Btu per hour (cooling capacity). levels contained within ASHRAE of economic justification as to whether (42 U.S.C. 6311(8)(C); 10 CFR 431.92) Standard 90.1–2019 and (2) more- the benefits of the proposed standard ‘‘Very large commercial package air stringent efficiency levels. DOE is also exceed the burden of the proposed conditioning and heating equipment’’ taking the opportunity to consider the standard,7 and the prohibition on means equipment rated: (i) At or above potential for more-stringent standards making unavailable existing products 240,000 Btu per hour; and (ii) below for the other equipment classes within with performance characteristics 760,000 Btu per hour (cooling capacity). the subject equipment categories (i.e., generally available in the United (42 U.S.C. 6311(8)(D); 10 CFR 431.92) classes for which energy efficiency States.8 DOE generally refers to these broad levels in ASHRAE Standard 90.1–2019 classifications as ‘‘equipment types.’’ were not increased, and, therefore, for C. Rulemaking Background 1. Computer Room Air Conditioners which DOE was not triggered) under EPCA defines ‘‘commercial package EPCA’s 6-year-lookback authority, so as air conditioning and heating Pursuant to its authority under EPCA to conduct a thorough review for the equipment’’ as air-cooled, water-cooled, (42 U.S.C. 6313(a)(6)(A)) and in entire equipment category of CRACs and evaporatively-cooled, or water source response to updates to ASHRAE the entire equipment category of air- (not including ground water source) Standard 90.1, DOE has established cooled, three-phase, small commercial electrically operated, unitary central air additional categories of equipment that package AC and HP (<65 K) equipment. conditioners and central air meet the EPCA definition of DOE carefully examined the changes ‘‘commercial package air conditioning for equipment in ASHRAE Standard 6 The anti-backsliding provision mandates that and heating equipment,’’ but which 90.1 in order to thoroughly evaluate the the Secretary may not prescribe any amended EPCA did not expressly identify. These amendments in ASHRAE Standard standard that either increases the maximum equipment categories include CRACs 90.1–2019, thereby permitting DOE to allowable energy use or decreases the minimum (see 10 CFR 431.92 and 10 CFR 431.97). required energy efficiency of a covered product. (42 determine what action, if any, is U.S.C. 6313 (a)(6)(B)(iii)(I)) Within these additional equipment required under its statutory mandate. 7 In deciding whether a potential standard’s categories, further distinctions are made Section II of this NODA contains DOE’s benefits outweigh its burdens, DOE must consider at the equipment class level based on evaluation of the amendments in to the maximum extent practicable, the following capacity and other equipment attributes. ASHRAE Standard 90.1–2019. For seven factors: DOE’s current energy conservation (1) The economic impact on manufacturers and standards for 30 equipment classes of equipment classes preliminarily consumers of the product subject to the standard; determined to have increased efficiency (2) The savings in operating costs throughout the CRACs are codified at 10 CFR 431.97. levels or changes in design requirements estimated average life of the product in the type (or DOE defines ‘‘computer room air in ASHRAE Standard 90.1–2019, DOE class), compared to any increase in the price, initial conditioner’’ as a commercial package subjected that equipment to further charges, or maintenance expenses of the products air-conditioning and heating equipment likely to result from the standard; (packaged or split) that is: Used in analysis as discussed in section III of (3) The total projected amount of energy savings this NODA. Section IV requests likely to result directly from the standard; computer rooms, data processing rooms, comment for those equipment classes (4) Any lessening of product utility or or other information technology cooling for which efficiency levels and design performance of the product likely to result from the applications; rated for sensible requirements have not been increased or standard; coefficient of performance (SCOP) and changed in ASHRAE Standard 90.1– (5) The impact of any lessening of competition, tested in accordance with 10 CFR as determined in writing by the Attorney General, 2019, but are undergoing review under likely to result from the standard; 431.96, and is not a covered product EPCA’s 6-year-lookback authority. (6) The need for national energy conservation; under 42 U.S.C. 6291(1)–(2) and 42 In summary, the energy savings and U.S.C. 6292. A computer room air analysis presented in this NODA is a (7) Other factors the Secretary considers relevant. conditioner may be provided with, or preliminary step required under 42 (42 U.S.C. 6313(a)(6)(B)(ii)(I)–(VII)). have as available options, an integrated U.S.C. 6313(a)(6)(A)(i). DOE is also 8 The Secretary may not prescribe an amended humidifier, temperature, and/or standard if interested persons have established by treating it as an opportunity to gather a preponderance of evidence that the amended humidity control of the supplied air, information regarding its obligations standard would likely result in unavailability in the and reheating function. 10 CFR 431.92. under 42 U.S.C. 6313(a)(6)(C). After United States of any covered product type (or class) DOE’s regulations include test review of the public comments on this of performance characteristics (including reliability, procedures and energy conservation features, capacities, sizes, and volumes) that are NODA, DOE will either establish substantially the same as those generally available standards that apply to the current amended uniform national standards for in the U.S. at the time of the Secretary’s finding. CRAC equipment classes that are the subject equipment at the minimum (42 U.S.C. 6313(a)(6)(B)(iii)(II)). differentiated by condensing system

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type (air-cooled, water-cooled, water- 2016), which in turn references ANSI/ DOE published a Notice of Data cooled with fluid economizer, glycol- ASHRAE Standard 127–2012, ‘‘Method Availability and Request for Information cooled, or glycol-cooled with fluid of Testing for Rating Computer and Data (NODA/RFI) in response to the economizer), net sensible cooling Processing Room Unitary Air amendments to the industry consensus capacity (NSCC) (less than 65,000 Btu/ Conditioners’’ (ANSI/ASHRAE 127– standard contained in ASHRAE h, greater than or equal to 65,000 Btu/ 2012). Subsequently, ASHRAE Standard Standard 90.1–2016 in the Federal h and less than 240,000 Btu/h, or greater 90.1–2019, which was published on Register on September 11, 2019 (the than or equal to 240,000 Btu/h and less October 24, 2019, further updated its September 2019 NODA/RFI). 84 FR than 760,000 Btu/h), and direction of test procedure reference for CRACs to 48006. In the September 2019 NODA/ conditioned air over the cooling coil AHRI Standard 1360–2017, RFI, DOE explained its methodology (upflow or downflow). 10 CFR 431.96 ‘‘Performance Rating of Computer and and assumptions to compare the current and 10 CFR 431.97, respectively. Data Processing Room Air Federal standards for CRACs (in terms DOE’s test procedure for CRACs, set Conditioners’’ (AHRI 1360–2017), of SCOP) to the levels in ASHRAE forth at 10 CFR 431.96, currently which also references ANSI/ASHRAE Standard 90.1–2016 (in terms of incorporates by reference American 127–2012. The energy efficiency metric NSenCOP) and requested comment on National Standards Institute (ANSI)/ for CRACs in AHRI 1360–2016 and its methodology and results. (The ASHRAE Standard 127–2007 (ANSI/ AHRI 1360–2017 is net sensible ASHRAE 127–2007), ‘‘Method of coefficient of performance (NSenCOP). document also addressed changes Testing for Rating Computer and Data The energy conservation standards for related to dedicated outdoor air systems Processing Room Unitary Air CRACs were most recently amended (DOASes).) DOE received a number of Conditioners,’’ (omit section 5.11), with through the final rule for energy comments from interested parties in additional provisions indicated in 10 conservation standards and test response to the September 2019 NODA/ CFR 431.96(c) and (e). The energy procedures for certain commercial RFI. Table I–1 lists the commenters efficiency metric is sensible coefficient HVAC and water heating equipment relevant to CRACs, along with each of performance (SCOP) for all CRAC published in the Federal Register on commenter’s abbreviated name used equipment classes. ASHRAE Standard May 16, 2012 (May 2012 final rule). 77 throughout this NODA/RFI. Discussion 90.1–2016, which was published on FR 28928. The May 2012 final rule of the relevant comments, and DOE’s October 26, 2016, updated its test established separate equipment classes responses, are provided in the procedure reference for CRACs from for CRACs and adopted energy appropriate sections of this document. ANSI/ASHRAE 127–2007 to AHRI conservation standards that generally Several other comments received in Standard 1360–2016, ‘‘Performance correspond to the levels in the 2010 response to the September 2019 NODA/ Rating of Computer and Data Processing revision of ASHRAE Standard 90.1 for RFI pertain only to DOASes and will be Room Air Conditioners’’ (AHRI 1360– most of the equipment classes. addressed in a separate notice.9

TABLE I–1—INTERESTED PARTIES PROVIDING COMMENT ON CRACSINRESPONSE TO THE SEPTEMBER 2019 NODA/RFI

Name Abbreviation Type

Air-Conditioning, Heating, and Refrigeration Institute ...... AHRI ...... IR. Pacific Gas and Electric Company, Southern California Gas Company, San Diego California Investor-Owned Utilities (CA U. Gas and Electric, and Southern California Edison. IOUs). Trane ...... Trane ...... M. Pano Koutrouvelis ...... Koutrouvelis ...... I. EA: Efficiency/Environmental Advocate; IR: Industry Representative; M: Manufacturer; U: Utility; and I: Individual.

As noted previously, on October 24, 2. Air-Cooled, Three-Phase, Small (single package) and heat pumps (single 2019, ASHRAE officially released for Commercial Package AC and HP (<65 K) package and split system). The July distribution and made public ASHRAE Equipment 2015 final rule also determined that Standard 90.1–2019. ASHRAE Standard standards for air-cooled, three-phase, The energy conservation standards for 90.1–2019 revised the efficiency levels small commercial package air air-cooled, three-phase, small for certain commercial equipment, conditioners (split system) did not need commercial package air conditioning including certain classes of CRACs (as to be amended. DOE’s current energy and heating equipment were most conservation standards for air-cooled, discussed in the following section). recently amended through the final rule three-phase, small commercial package ASHRAE Standard 90.1–2019 either for energy conservation standards and AC and HP (<65 K) equipment are maintained or increased the stringency test procedures for certain commercial codified at 10 CFR 431.97. of the efficiency levels applicable to HVAC and water heating equipment CRAC in ASHRAE Standard 90.1–2016, published in the Federal Register on The current DOE test procedure at 10 and as such, addressing the July 17, 2015 (July 2015 final rule). 80 CFR 431.96 for air-cooled, three-phase, amendments for CRACs in ASHRAE FR 42614. The July 2015 final rule small commercial package AC and HP Standard 90.1–2019 will also address adopted energy conservation standards (<65 K) equipment incorporates by DOE’s obligations for CRACs resulting that correspond to the levels in the 2013 reference ANSI/AHRI Standard 210/ from the 2016 update to ASHRAE revision of ASHRAE Standard 90.1 for 240–2008, ‘‘Performance Rating of Standard 90.1 (i.e., ASHRAE Standard air-cooled, three-phase, small Unitary Air-Conditioning & Air-Source 90.1–2016). commercial package air conditioners Heat Pump Equipment,’’ approved by

9 As noted, the September 2019 NODA/RFI As this NODA/RFI addresses only CRACs, it has activity regarding DOASes will continue to rely on addressed both CRACs and DOASes and is available been assigned a separate docket number (i.e., EERE– the docket number for the September 2019 NODA/ under docket number EERE–2017–BT–STD–0017. 2020–BT–STD–0008). Subsequent rulemaking RFI.

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ANSI on October 27, 2011 and updated levels for CRACs and whether more- On October 2, 2018, DOE published in by addendum 1 in June 2011 and stringent standards are warranted; DOE the Federal Register a request for addendum 2 in March 2012 (ANSI/ will separately consider whether to information on its test procedure (and AHRI 210/240–2008).10 adopt the NSenCOP metric for all CRAC certification and enforcement As noted previously, on October 24, equipment classes as part of the ongoing requirements) for air-cooled, three- 2019, ASHRAE officially released for test procedure rulemaking. As discussed phase, small commercial package AC distribution and made public ASHRAE in detail in section II.A of this NODA, and HP (<65 K) equipment. 83 FR 49501 Standard 90.1–2019. ASHRAE Standard DOE has conducted a crosswalk analysis (October 2018 TP RFI). The October 90.1–2019 revised the efficiency levels of the ASHRAE Standard 90.1–2019 2018 TP RFI notes that air-cooled, three- for certain commercial equipment, standard levels (in terms of NSenCOP) phase, small commercial package AC including certain classes of air-cooled, and the corresponding current Federal and HP (<65 K) equipment is essentially three-phase, small commercial package energy conservation standards (in terms identical to its single-phase residential AC and HP (<65 K) equipment (as of SCOP) to compare the stringencies. counterparts, is manufactured on the discussed in the following section). DOE has tentatively determined that the same production lines, and is physically updates in ASHRAE Standard 90.1– II. Discussion of Changes in ASHRAE 2019 increased the stringency of identical to their corresponding single- Standard 90.1–2019 efficiency levels for 48 equipment phase central air conditioner and heat Before beginning an analysis of the classes and maintained equivalent pump models (with the exception of the potential energy savings that would levels for six equipment classes of electrical systems and compressors). 83 result from adopting a uniform national CRACs relative to the current Federal FR 49501, 49504 (Oct. 2, 2018). standard as specified by ASHRAE standard.12 In addition, ASHRAE In order to determine whether the Standard 90.1–2019 or more-stringent Standard 90.1–2019 includes efficiency 2023 efficiency levels in ASHRAE uniform national standards, DOE must levels for 18 classes of horizontal-flow 13 Standard 90.1–2019 represent an first determine whether the ASHRAE CRACs and 48 classes of ceiling- increase in efficiency, DOE has Standard 90.1–2019 standard levels mounted CRACs which are not developed a preliminary crosswalk for actually represent an increase in currently subject to Federal standards. translating SEER to SEER2 and HSPF to efficiency above the current Federal Current Federal standards for air- HSPF2 based on the metric translations standard levels or whether ASHRAE cooled, three-phase, small commercial between SEER to SEER2 and HSPF to Standard 90.1–2019 adopted new design package AC and HP (<65 K) equipment HSPF2 developed for single-phase requirements, thereby triggering DOE are in terms of seasonal energy products (see section II.B.1 of this action. efficiency ratio (SEER) and heating document for details). DOE has This section contains a discussion of: seasonal performance factor (HSPF) as (1) Each equipment class for which the tentatively determined that the levels in measured by the current DOE test ASHRAE Standard 90.1–2019 for this ASHRAE Standard 90.1–2019 efficiency procedure which incorporates by levels differ from the current Federal equipment category are more stringent reference the ANSI/AHRI 210/240– for two equipment classes, equivalent minimum efficiency levels 11 (2) newly 2008. 10 CFR 431.96, Table 1. ASHRAE for two equipment classes, and less added equipment classes in ASHRAE Standard 90.1–2019 adopts new energy stringent for six equipment classes Standard 90.1, and (3) DOE’s efficiency levels and new metrics for all preliminary conclusion regarding the equipment classes of air-cooled, three- relative to the current Federal standard. appropriate action to take with respect phase, small commercial package AC Table II–1 and Table II–2 show the to these equipment classes. DOE is also and HP (<65 K) equipment. Beginning equipment classes and efficiency levels examining the other equipment classes January 1, 2023, the metrics for this for CRACs and air-cooled, three-phase, for the triggered equipment categories equipment under ASHRAE Standard small commercial package AC and HP under its 6-year-lookback authority. (42 90.1–2019 are SEER2 and HSPF2, as (<65 K) equipment provided in ASHRAE U.S.C. 6313(a)(6)(C)) measured by AHRI 210/240–2023, Standard 90.1–2019 and the current As noted in section I.C of this ‘‘Performance Rating of Unitary Air- Federal energy conservation standards. document, ASHRAE adopted efficiency Conditioning & Air-Source Heat Pump Table II–1 and Table II–2 also display levels for all CRAC equipment classes Equipment’’ (published in May the corresponding existing Federal denominated in terms of NSenCOP in 14 15 2020). AHRI 210/240–2023 aligns equipment classes for clarity and the 2016 and 2019 versions of Standard test methods and ratings to be consistent indicate whether the updated levels in 90.1 (measured per AHRI 1360–2016 with DOE’s test procedure for single- and AHRI 1360–2017, respectively), ASHRAE Standard 90.1–2019 trigger phase central at conditioners at DOE’s evaluation as required under whereas DOE’s current standards are Appendix M1 to 10 CFR part 430, EPCA (i.e., whether the update results in denominated in terms of SCOP subpart B. The year 2023 was chosen as a standard level more stringent than the (measured per ANSI/ASHRAE 127– the version year to align compliance to current Federal level), and, therefore, 2007). For this NODA, DOE’s analysis AHRI 210/240–2023 with Appendix M1. focuses on whether DOE has been whether analysis of potential energy savings from amended Federal triggered by ASHRAE Standard 90.1– 12 ASHRAE 90.1–2019 added separate classes for 2019 updates to minimum efficiency ‘‘air cooled with fluid economizer’’ CRACs. This standards is warranted. The remainder change resulted in nine new ‘‘air cooled with fluid of this section explains DOE’s 10 DOE notes that the Federal test procedure omits economizer’’ equipment classes being added and methodology for evaluating the updated the use of section 6.5 of ANSI/AHRI Standard 210/ made subject to Federal standards. levels in ASHRAE Standard 90.1–2019 13 ‘‘Horizontal flow’’ refers to the direction of 240–2008. 10 CFR 431.96, Table 1. and addresses comments received 11 ASHRAE Standard 90.1–2019 did not change airflow of the unit. any of the design requirements associated with the 14 Levels effective prior to January 1, 2023 are regarding CRAC efficiency levels and minimum efficiency tables for the commercial unchanged from ASHRAE Standard 90.1–2016. associated analyses discussed in the heating, air conditioning, and water heating 15 Prior to ASHRAE Standard 90.1–2019, ‘‘space- September 2019 NODA/RFI. equipment covered by EPCA, so this potential constrained’’ classes were referred to as ‘‘through- category of change is not discussed in this section. the-wall.’’

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TABLE II–1—ENERGY EFFICIENCY LEVELS FOR CRACSINASHRAE STANDARD 90.1–2019, AND THE CORRESPONDING FEDERAL ENERGY CONSERVATION STANDARDS

DOE triggered by Energy efficiency Federal energy ASHRAE standard 90.1–2019 equipment 1 ASHRAE standard 1 Current federal equipment class levels in ASHRAE conservation class 2 2 90.1–2019 standard 90.1–2019 standards amendment?

CRAC, Air-Cooled, <80,000 Btu/h, Downflow .. CRAC, Air-Cooled, <65,000 Btu/h, Downflow 2.70 NSenCOP ...... 2.20 SCOP ...... Yes. CRAC, Air-Cooled, <65,000 Btu/h, Horizontal- N/A ...... 2.65 NSenCOP ...... N/A ...... Yes.3 flow. CRAC, Air-Cooled, <80,000 Btu/h, Upflow CRAC, Air-Cooled, <65,000 Btu/h, Upflow .... 2.67 NSenCOP ...... 2.09 SCOP ...... Yes. Ducted. CRAC, Air-Cooled, <65,000 Btu/h, Upflow CRAC, Air-Cooled, <65,000 Btu/h, Upflow .... 2.16 NSenCOP ...... 2.09 SCOP ...... Yes. Non-Ducted. CRAC, Air-Cooled, ≥80,000 and <295,000 CRAC, Air-Cooled, ≥65,000 and <240,000 2.58 NSenCOP ...... 2.10 SCOP ...... Yes. Btu/h, Downflow. Btu/h, Downflow. CRAC, Air-Cooled, ≥65,000 and <240,000 N/A ...... 2.55 NSenCOP ...... N/A ...... Yes.3 Btu/h, Horizontal-flow. CRAC, Air-Cooled, ≥80,000 and <295,000 CRAC, Air-Cooled, ≥65,000 and <240,000 2.55 NSenCOP ...... 1.99 SCOP ...... No.4 Btu/h, Upflow Ducted. Btu/h, Upflow. CRAC, Air-Cooled, ≥65,000 and <240,000 CRAC, Air-Cooled, ≥65,000 and <240,000 2.04 NSenCOP ...... 1.99 SCOP ...... Yes. Btu/h, Upflow Non-Ducted. Btu/h, Upflow. CRAC, Air-Cooled, ≥295,000 Btu/h, Downflow CRAC, Air-Cooled, ≥240,000 Btu/h and 2.36 NSenCOP ...... 1.90 SCOP ...... Yes. <760,000 Btu/h, Downflow. CRAC, Air-Cooled, ≥240,000 Btu/h, Hori- N/A ...... 2.47 NSenCOP ...... N/A ...... Yes.3 zontal-flow. CRAC, Air-Cooled, ≥295,000 Btu/h, Upflow CRAC, Air-Cooled, ≥240,000 Btu/h and 2.33 NSenCOP ...... 1.79 SCOP ...... Yes. Ducted. <760,000 Btu/h, Upflow. CRAC, Air-Cooled, ≥240,000 Btu/h, Upflow CRAC, Air-Cooled, ≥240,000 Btu/h and 1.89 NSenCOP ...... 1.79 SCOP ...... Yes. Non-ducted. <760,000 Btu/h, Upflow. CRAC, Air-Cooled with fluid economizer, CRAC, Air-Cooled, <65,000 Btu/h, Downflow 2.70 NSenCOP ...... 2.20 SCOP ...... Yes.5 <80,000 Btu/h, Downflow. CRAC, Air-Cooled with fluid economizer, N/A ...... 2.65 NSenCOP ...... N/A ...... Yes.3 <65,000 Btu/h, Horizontal-flow. CRAC, Air-Cooled with fluid economizer, CRAC, Air-Cooled, <65,000 Btu/h, Upflow .... 2.67 NSenCOP ...... 2.09 SCOP ...... Yes.5 <80,000 Btu/h, Upflow Ducted. CRAC, Air-Cooled with fluid economizer, CRAC, Air-Cooled, <65,000 Btu/h, Upflow .... 2.09 NSenCOP ...... 2.09 SCOP ...... No.4 <65,000 Btu/h, Upflow Non-Ducted. CRAC, Air-Cooled with fluid economizer, CRAC, Air-Cooled, ≥65,000 and <240,000 2.58 NSenCOP ...... 2.10 SCOP ...... Yes.5 ≥80,000 and <295,000 Btu/h, Downflow. Btu/h, Downflow. CRAC, Air-Cooled with fluid economizer, N/A ...... 2.55 NSenCOP ...... N/A ...... Yes.3 ≥65,000 and <240,000 Btu/h, Horizontal- flow. CRAC, Air-Cooled with fluid economizer, CRAC, Air-Cooled, ≥65,000 and <240,000 2.55 NSenCOP ...... 1.99 SCOP ...... No.4 ≥80,000 and <295,000 Btu/h, Upflow Btu/h, Upflow. Ducted. CRAC, Air-Cooled with fluid economizer, CRAC, Air-Cooled, ≥65,000 and <240,000 1.99 NSenCOP ...... 1.99 SCOP ...... No.4 ≥65,000 and <240,000 Btu/h, Upflow Non- Btu/h, Upflow. Ducted. CRAC, Air-Cooled with fluid economizer, CRAC, Air-Cooled, ≥240,000 Btu/h and 2.36 NSenCOP ...... 1.90 SCOP ...... Yes.5 ≥295,000 Btu/h, Downflow. <760,000 Btu/h, Downflow. CRAC, Air-Cooled with fluid economizer, N/A ...... 2.47 NSenCOP ...... N/A ...... Yes.3 ≥240,000 Btu/h, Horizontal-flow. CRAC, Air-Cooled with fluid economizer, CRAC, Air-Cooled, ≥240,000 Btu/h and 2.33 NSenCOP ...... 1.79 SCOP ...... Yes.5 ≥295,000 Btu/h, Upflow Ducted. <760,000 Btu/h, Upflow. CRAC, Air-Cooled with fluid economizer, CRAC, Air-Cooled, ≥240,000 Btu/h and 1.81 NSenCOP ...... 1.79 SCOP ...... Yes.5 ≥240,000 Btu/h, Upflow Non-ducted. <760,000 Btu/h, Upflow. CRAC, Water-Cooled, <80,000 Btu/h, CRAC, Water-Cooled, <65,000 Btu/h, 2.82 NSenCOP ...... 2.60 SCOP ...... Yes. Downflow. Downflow. CRAC, Water-Cooled, <65,000 Btu/h, Hori- N/A ...... 2.79 NSenCOP ...... N/A ...... Yes.3 zontal-flow. CRAC, Water-Cooled, <80,000 Btu/h, Upflow CRAC, Water-Cooled, <65,000 Btu/h, Upflow 2.79 NSenCOP ...... 2.49 SCOP ...... Yes. Ducted. CRAC, Water-Cooled, <65,000 Btu/h, Upflow CRAC, Water-Cooled, <65,000 Btu/h, Upflow 2.43 NSenCOP ...... 2.49 SCOP ...... Yes. Non-ducted. CRAC, Water-Cooled, ≥80,000 and <295,000 CRAC, Water-Cooled, ≥65,000 and <240,000 2.73 NSenCOP ...... 2.50 SCOP ...... Yes. Btu/h, Downflow. Btu/h, Downflow. CRAC, Water-Cooled, ≥65,000 and <240,000 N/A ...... 2.68 NSenCOP ...... N/A ...... Yes.3 Btu/h, Horizontal-flow. CRAC, Water-Cooled, ≥80,000 and <295,000 CRAC, Water-Cooled, ≥65,000 and <240,000 2.70 NSenCOP ...... 2.39 SCOP ...... No.4 Btu/h, Upflow Ducted. Btu/h, Upflow. CRAC, Water-Cooled, ≥65,000 and <240,000 CRAC, Water-Cooled, ≥65,000 and <240,000 2.32 NSenCOP ...... 2.39 SCOP ...... Yes. Btu/h, Upflow Non-ducted. Btu/h, Upflow. CRAC, Water-Cooled, ≥295,000 Btu/h, CRAC, Water-Cooled, ≥240,000 Btu/h and 2.67 NSenCOP ...... 2.40 SCOP ...... Yes. Downflow. <760,000 Btu/h, Downflow. CRAC, Water-Cooled, ≥240,000 Btu/h, Hori- N/A ...... 2.60 NSenCOP ...... N/A ...... Yes.3 zontal-flow. CRAC, Water-Cooled, ≥295,000 Btu/h, Upflow CRAC, Water-Cooled, ≥240,000 Btu/h and 2.64 NSenCOP ...... 2.29 SCOP ...... Yes. Ducted. <760,000 Btu/h, Upflow. CRAC, Water-Cooled, ≥240,000 Btu/h, Upflow CRAC, Water-Cooled, ≥240,000 Btu/h and 2.20 NSenCOP ...... 2.29 SCOP ...... Yes. Non-ducted. <760,000 Btu/h, Upflow. CRAC, Water-Cooled with fluid economizer, CRAC, Water-Cooled with fluid economizer, 2.77 NSenCOP ...... 2.55 SCOP ...... Yes. <80,000 Btu/h, Downflow. <65,000 Btu/h, Downflow.

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TABLE II–1—ENERGY EFFICIENCY LEVELS FOR CRACSINASHRAE STANDARD 90.1–2019, AND THE CORRESPONDING FEDERAL ENERGY CONSERVATION STANDARDS—Continued

CRAC, Water-Cooled with fluid economizer, N/A ...... 2.71 NSenCOP ...... N/A ...... Yes.3 <65,000 Btu/h, Horizontal-flow. CRAC, Water-Cooled with fluid economizer, CRAC, Water-Cooled with fluid economizer, 2.74 NSenCOP ...... 2.44 SCOP ...... Yes. <80,000 Btu/h, Upflow Ducted. <65,000 Btu/h, Upflow. CRAC, Water-Cooled with fluid economizer, CRAC, Water-Cooled with fluid economizer, 2.35 NSenCOP ...... 2.44 SCOP ...... Yes. <65,000 Btu/h, Upflow Non-ducted. <65,000 Btu/h, Upflow. CRAC, Water-Cooled with fluid economizer, CRAC, Water-Cooled with fluid economizer, 2.68 NSenCOP ...... 2.45 SCOP ...... Yes. ≥80,000 and <295,000 Btu/h, Downflow. ≥65,000 and <240,000 Btu/h, Downflow. CRAC, Water-Cooled with fluid economizer, N/A ...... 2.60 NSenCOP ...... N/A ...... Yes.3 ≥65,000 and <240,000 Btu/h, Horizontal- flow. CRAC, Water-Cooled with fluid economizer, CRAC, Water-Cooled with fluid economizer, 2.65 NSenCOP ...... 2.34 SCOP ...... No.4 ≥80,000 and <295,000 Btu/h, Upflow ≥65,000 and <240,000 Btu/h, Upflow. Ducted. CRAC, Water-Cooled with fluid economizer, CRAC, Water-Cooled with fluid economizer, 2.24 NSenCOP ...... 2.34 SCOP ...... Yes. ≥65,000 and <240,000 Btu/h, Upflow Non- ≥65,000 and <240,000 Btu/h, Upflow. ducted. CRAC, Water-Cooled with fluid economizer, CRAC, Water-Cooled with fluid economizer, 2.61 NSenCOP ...... 2.35 SCOP ...... Yes. ≥295,000 Btu/h, Downflow. ≥240,000 Btu/h and <760,000 Btu/h, Downflow. CRAC, Water-Cooled with fluid economizer, N/A ...... 2.54 NSenCOP ...... N/A ...... Yes.3 ≥240,000 Btu/h, Horizontal-flow. CRAC, Water-Cooled with fluid economizer, CRAC, Water-Cooled with fluid economizer, 2.58 NSenCOP ...... 2.24 SCOP ...... Yes. ≥295,000 Btu/h, Upflow Ducted. ≥240,000 Btu/h and <760,000 Btu/h, Upflow. CRAC, Water-Cooled with fluid economizer, CRAC, Water-Cooled with fluid economizer, 2.12 NSenCOP ...... 2.24 SCOP ...... Yes. ≥240,000 Btu/h, Upflow Non-ducted. ≥240,000 Btu/h and <760,000 Btu/h, Upflow. CRAC, Glycol-Cooled, <80,000 Btu/h, CRAC, Glycol-Cooled, <65,000 Btu/h, 2.56 NSenCOP ...... 2.50 SCOP ...... Yes. Downflow. Downflow. CRAC, Glycol-Cooled, <65,000 Btu/h, Hori- N/A ...... 2.48 NSenCOP ...... N/A ...... Yes.3 zontal-flow. CRAC, Glycol-Cooled, <80,000 Btu/h, Upflow CRAC, Glycol-Cooled, <65,000 Btu/h, Upflow 2.53 NSenCOP ...... 2.39 SCOP ...... Yes. Ducted. Ducted. CRAC, Glycol-Cooled, <65,000 Btu/h, Upflow CRAC, Glycol-Cooled, <65,000 Btu/h, Upflow 2.08 NSenCOP ...... 2.39 SCOP ...... Yes. Non-ducted. Non-ducted. CRAC, Glycol-Cooled, ≥80,000 and <295,000 CRAC, Glycol-Cooled, ≥65,000 and 2.24 NSenCOP ...... 2.15 SCOP ...... Yes. Btu/h, Downflow. <240,000 Btu/h, Downflow. CRAC, Glycol-Cooled, ≥65,000 and <240,000 N/A ...... 2.18 NSenCOP ...... N/A ...... Yes.3 Btu/h, Horizontal-flow. CRAC, Glycol-Cooled, ≥80,000 and <295,000 CRAC, Glycol-Cooled, ≥65,000 and 2.21 NSenCOP ...... 2.04 SCOP ...... Yes. Btu/h, Upflow Ducted. <240,000 Btu/h, Upflow. CRAC, Glycol-Cooled, ≥65,000 and <240,000 CRAC, Glycol-Cooled, ≥65,000 and 1.90 NSenCOP ...... 2.04 SCOP ...... Yes. Btu/h, Upflow Non-ducted. <240,000 Btu/h, Upflow. CRAC, Glycol-Cooled, ≥295,000 Btu/h, CRAC, Glycol-Cooled, ≥240,000 Btu/h and 2.21 NSenCOP ...... 2.10 SCOP ...... Yes. Downflow. <760,000 Btu/h, Downflow. CRAC, Glycol-Cooled, ≥240,000 Btu/h, Hori- N/A ...... 2.18 NSenCOP ...... N/A ...... Yes.3 zontal-flow. CRAC, Glycol-Cooled, ≥295,000 Btu/h, Upflow CRAC, Glycol-Cooled, ≥240,000 Btu/h and 2.18 NSenCOP ...... 1.99 SCOP ...... Yes. Ducted. <760,000 Btu/h, Upflow Ducted. CRAC, Glycol-Cooled, ≥240,000 Btu/h, Upflow CRAC, Glycol-Cooled, ≥240,000 Btu/h and 1.81 NSenCOP ...... 1.99 SCOP ...... Yes. Non-ducted. <760,000 Btu/h, Upflow Non-ducted. CRAC, Glycol-Cooled with fluid economizer, CRAC, Glycol-Cooled with fluid economizer, 2.51 NSenCOP ...... 2.45 SCOP ...... Yes. <80,000 Btu/h, Downflow. <65,000 Btu/h, Downflow. CRAC, Glycol-Cooled with fluid economizer, N/A ...... 2.44 NSenCOP ...... N/A ...... Yes.3 <65,000 Btu/h, Horizontal-flow. CRAC, Glycol-Cooled with fluid economizer, CRAC, Glycol-Cooled with fluid economizer, 2.48 NSenCOP ...... 2.34 SCOP ...... Yes. <80,000 Btu/h, Upflow Ducted. <65,000 Btu/h, Upflow Ducted. CRAC, Glycol-Cooled with fluid economizer, CRAC, Glycol-Cooled with fluid economizer, 2.00 NSenCOP ...... 2.34 SCOP ...... Yes. <65,000 Btu/h, Upflow Non-ducted. <65,000 Btu/h, Upflow Non-ducted. CRAC, Glycol-Cooled with fluid economizer, CRAC, Glycol-Cooled with fluid economizer, 2.19 NSenCOP ...... 2.10 SCOP ...... Yes. ≥80,000 and <295,000 Btu/h, Downflow. ≥65,000 and <240,000 Btu/h, Downflow. CRAC, Glycol-Cooled with fluid economizer, N/A ...... 2.10 NSenCOP ...... N/A ...... Yes.3 ≥65,000 and <240,000 Btu/h, Horizontal- flow. CRAC, Glycol-Cooled with fluid economizer, CRAC, Glycol-Cooled with fluid economizer, 2.16 NSenCOP ...... 1.99 SCOP ...... Yes. ≥80,000 and <295,000 Btu/h, Upflow ≥65,000 and <240,000 Btu/h, Upflow. Ducted. CRAC, Glycol-Cooled with fluid economizer, CRAC, Glycol-Cooled with fluid economizer, 1.82 NSenCOP ...... 1.99 SCOP ...... Yes. ≥65,000 and <240,000 Btu/h, Upflow Non- ≥65,000 and <240,000 Btu/h, Upflow. ducted. CRAC, Glycol-Cooled with fluid economizer, CRAC, Glycol-Cooled with fluid economizer, 2.15 NSenCOP ...... 2.05 SCOP ...... Yes. ≥295,000 Btu/h, Downflow. ≥240,000 Btu/h and <760,000 Btu/h, Downflow. CRAC, Glycol-Cooled with fluid economizer, N/A ...... 2.10 NSenCOP ...... N/A ...... Yes.3 ≥240,000 Btu/h, Horizontal-flow.

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TABLE II–1—ENERGY EFFICIENCY LEVELS FOR CRACSINASHRAE STANDARD 90.1–2019, AND THE CORRESPONDING FEDERAL ENERGY CONSERVATION STANDARDS—Continued

CRAC, Glycol-Cooled with fluid economizer, CRAC, Glycol-Cooled with fluid economizer, 2.12 NSenCOP ...... 1.94 SCOP ...... Yes. ≥295,000 Btu/h, Upflow Ducted. ≥240,000 Btu/h and <760,000 Btu/h, Upflow Ducted. CRAC, Glycol-Cooled with fluid economizer, CRAC, Glycol-Cooled with fluid economizer, 1.73 NSenCOP ...... 1.94 SCOP ...... Yes. ≥240,000 Btu/h, Upflow Non-ducted. ≥240,000 Btu/h and <760,000 Btu/h, Upflow Non-ducted. Ceiling-mounted CRAC, Air-cooled with free N/A ...... 2.05 NSenCOP ...... N/A ...... Yes.6 air discharge condenser, Ducted, <29,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with free N/A ...... 2.02 NSenCOP ...... N/A ...... Yes.6 air discharge condenser, Ducted, ≥29,000 Btu/h and <65,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with free N/A ...... 1.92 NSenCOP ...... N/A ...... Yes.6 air discharge condenser, Ducted, ≥65,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with free N/A ...... 2.08 NSenCOP ...... N/A ...... Yes.6 air discharge condenser, Non-ducted, <29,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with free N/A ...... 2.05 NSenCOP ...... N/A ...... Yes.6 air discharge condenser, Non-ducted, ≥29,000 Btu/h and <65,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with free N/A ...... 1.94 NSenCOP ...... N/A ...... Yes.6 air discharge condenser, Non-ducted, ≥65,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with free N/A ...... 2.01 NSenCOP ...... N/A ...... Yes.6 air discharge condenser with fluid economizer, Ducted, <29,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with free N/A ...... 1.97 NSenCOP ...... N/A ...... Yes.6 air discharge condenser with fluid economizer, Ducted, ≥29,000 Btu/h and <65,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with free N/A ...... 1.87 NSenCOP ...... N/A ...... Yes.6 air discharge condenser with fluid economizer, Ducted, ≥65,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with free N/A ...... 2.04 NSenCOP ...... N/A ...... Yes.6 air discharge condenser with fluid economizer, Non-ducted, <29,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with free N/A ...... 2.00 NSenCOP ...... N/A ...... Yes.6 air discharge condenser with fluid economizer, Non-ducted, ≥29,000 Btu/h and <65,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with free N/A ...... 1.89 NSenCOP ...... N/A ...... Yes.6 air discharge condenser with fluid economizer, Non-ducted, ≥65,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with N/A ...... 1.86 NSenCOP ...... N/A ...... Yes.6 ducted condenser, Ducted, <29,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with N/A ...... 1.83 NSenCOP ...... N/A ...... Yes.6 ducted condenser, Ducted, ≥29,000 Btu/h and <65,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with N/A ...... 1.73 NSenCOP ...... N/A ...... Yes.6 ducted condenser, Ducted, ≥65,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with N/A ...... 1.89 NSenCOP ...... N/A ...... Yes.6 ducted condenser, Non-ducted, <29,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with N/A ...... 1.86 NSenCOP ...... N/A ...... Yes.6 ducted condenser, Non-ducted, ≥29,000 Btu/h and <65,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with N/A ...... 1.75 NSenCOP ...... N/A ...... Yes.6 ducted condenser, Non-ducted, ≥65,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with N/A ...... 1.82 NSenCOP ...... N/A ...... Yes.6 ducted condenser with fluid economizer, Ducted, <29,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with N/A ...... 1.78 NSenCOP ...... N/A ...... Yes.6 ducted condenser with fluid economizer, Ducted, ≥29,000 Btu/h and <65,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with N/A ...... 1.68 NSenCOP ...... N/A ...... Yes.6 ducted condenser with fluid economizer, Ducted, ≥65,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with N/A ...... 1.85 NSenCOP ...... N/A ...... Yes.6 ducted condenser with fluid economizer, Non-ducted, <29,000 Btu/h. Ceiling-mounted CRAC, Air-cooled with N/A ...... 1.81 NSenCOP ...... N/A ...... Yes.6 ducted condenser with fluid economizer, Non-ducted, ≥29,000 Btu/h and <65,000 Btu/h.

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TABLE II–1—ENERGY EFFICIENCY LEVELS FOR CRACSINASHRAE STANDARD 90.1–2019, AND THE CORRESPONDING FEDERAL ENERGY CONSERVATION STANDARDS—Continued

Ceiling-mounted CRAC, Air-cooled with N/A ...... 1.70 NSenCOP ...... N/A ...... Yes.6 ducted condenser with fluid economizer, Non-ducted, ≥65,000 Btu/h. Ceiling-mounted CRAC, Water-cooled, N/A ...... 2.38 NSenCOP ...... N/A ...... Yes.6 Ducted, <29,000 Btu/h. Ceiling-mounted CRAC, Water-cooled, N/A ...... 2.28 NSenCOP ...... N/A ...... Yes.6 Ducted, ≥29,000 Btu/h and <65,000 Btu/h. Ceiling-mounted CRAC, Water-cooled, N/A ...... 2.18 NSenCOP ...... N/A ...... Yes.6 Ducted, ≥65,000 Btu/h. Ceiling-mounted CRAC, Water-cooled, Non- N/A ...... 2.41 NSenCOP ...... N/A ...... Yes.6 ducted, <29,000 Btu/h. Ceiling-mounted CRAC, Water-cooled, Non- N/A ...... 2.31 NSenCOP ...... N/A ...... Yes.6 ducted, ≥29,000 Btu/h and <65,000 Btu/h. Ceiling-mounted CRAC, Water-cooled, Non- N/A ...... 2.20 NSenCOP ...... N/A ...... Yes.6 ducted, ≥65,000 Btu/h. Ceiling-mounted CRAC, Water-cooled with N/A ...... 2.33 NSenCOP ...... N/A ...... Yes.6 fluid economizer, Ducted, <29,000 Btu/h. Ceiling-mounted CRAC, Water-cooled with N/A ...... 2.23 NSenCOP ...... N/A ...... Yes.6 fluid economizer, Ducted, ≥29,000 Btu/h and <65,000 Btu/h. Ceiling-mounted CRAC, Water-cooled with N/A ...... 2.13 NSenCOP ...... N/A ...... Yes.6 fluid economizer, Ducted, ≥65,000 Btu/h. Ceiling-mounted CRAC, Water-cooled with N/A ...... 2.36 NSenCOP ...... N/A ...... Yes.6 fluid economizer, Non-ducted, <29,000 Btu/ h. Ceiling-mounted CRAC, Water-cooled with N/A ...... 2.26 NSenCOP ...... N/A ...... Yes.6 fluid economizer, Non-ducted, ≥29,000 Btu/ h and <65,000 Btu/h. Ceiling-mounted CRAC, Water-cooled with N/A ...... 2.16 NSenCOP ...... N/A ...... Yes.6 fluid economizer, Non-ducted, ≥65,000 Btu/ h. Ceiling-mounted CRAC, Glycol-cooled, N/A ...... 1.97 NSenCOP ...... N/A ...... Yes.6 Ducted, <29,000 Btu/h. Ceiling-mounted CRAC, Glycol-cooled, N/A ...... 1.93 NSenCOP ...... N/A ...... Yes.6 Ducted, ≥29,000 Btu/h and <65,000 Btu/h. Ceiling-mounted CRAC, Glycol-cooled, N/A ...... 1.78 NSenCOP ...... N/A ...... Yes.6 Ducted, ≥65,000 Btu/h. Ceiling-mounted CRAC, Glycol-cooled, Non- N/A ...... 2.00 NSenCOP ...... N/A ...... Yes.6 ducted, <29,000 Btu/h. Ceiling-mounted CRAC, Glycol-cooled, Non- N/A ...... 1.98 NSenCOP ...... N/A ...... Yes.6 ducted, ≥29,000 Btu/h and <65,000 Btu/h. Ceiling-mounted CRAC, Glycol-cooled, Non- N/A ...... 1.81 NSenCOP ...... N/A ...... Yes.6 ducted, ≥65,000 Btu/h. Ceiling-mounted CRAC, Glycol-cooled with N/A ...... 1.92 NSenCOP ...... N/A ...... Yes.6 fluid economizer, Ducted, <29,000 Btu/h. Ceiling-mounted CRAC, Glycol-cooled with N/A ...... 1.88 NSenCOP ...... N/A ...... Yes.6 fluid economizer, Ducted, ≥29,000 Btu/h and <65,000 Btu/h. Ceiling-mounted CRAC, Glycol-cooled with N/A ...... 1.73 NSenCOP ...... N/A ...... Yes.6 fluid economizer, Ducted, ≥65,000 Btu/h. Ceiling-mounted CRAC, Glycol-cooled with N/A ...... 1.95 NSenCOP ...... N/A ...... Yes.6 fluid economizer, Non-ducted, <29,000 Btu/ h. Ceiling-mounted CRAC, Glycol-cooled with N/A ...... 1.93 NSenCOP ...... N/A ...... Yes.6 fluid economizer, Non-ducted, ≥29,000 Btu/ h and <65,000 Btu/h. Ceiling-mounted CRAC, Glycol-cooled with N/A ...... 1.76 NSenCOP ...... N/A ...... Yes.6 fluid economizer, Non-ducted, ≥65,000 Btu/ h. 1 Note that equipment classes specified in ASHRAE Standard 90.1–2019 do not necessarily correspond to the equipment classes defined in DOE’s regulations. Ca- pacity ranges in ASHRAE Standard 90.1–2019 are specified in terms of NSCC, as measured according to AHRI 1360–2017. Capacity ranges in Federal equipment classes are specified in terms of NSCC, as measured according to ANSI/ASHRAE 127–2007. As discussed in section II.A.1 of this document, for certain equipment classes, AHRI 1360–2017 results in increased NSCC measurements as compared to the NSCC measured in accordance with ANSI/ASHRAE 127–2007. Therefore, some CRACs would switch classes (i.e., move into a higher capacity equipment class) if the equipment class boundaries are not changed accordingly. Consequently, DOE performed a ‘‘capacity crosswalk’’ analysis to translate the capacity boundaries for certain equipment classes. 2 For CRACs, ASHRAE Standard 90.1–2019 adopted efficiency levels in terms of NSenCOP based on test procedures in AHRI 1360–2017, while DOE’s current standards are in terms of SCOP based on the test procedures in ANSI/ASHRAE 127–2007. DOE performed a crosswalk analysis to compare the stringency of the ASHRAE Standard 90.1–2019 efficiency levels with the current Federal standards. See section II.A of this NODA for further discussion on the crosswalk analysis performed for CRACs. 3 Horizontal-flow CRACs are new equipment classes included in ASHRAE Standard 90.1–2016 and ASHRAE Standard 90.1–2019 (and not subject to current Fed- eral standards), but DOE does not have any data to indicate the market share of horizontal-flow units. In the absence of data regarding market share and efficiency distribution, DOE is unable to estimate potential savings for horizontal-flow equipment classes. 4 The preliminary CRAC crosswalk analysis indicates that there is no difference in stringency of efficiency levels for this class between ASHRAE Standard 90.1– 2019 and the current Federal standard. 5 Air-cooled CRACs with fluid economizers are new equipment classes included in ASHRAE Standard 90.1–2019 and are currently subject to the Federal standard for air-cooled CRACs. DOE does not have data regarding market share for air-cooled CRACs with fluid economizers. Although DOE is unable to disaggregate the estimated potential savings for these equipment classes, energy savings for these equipment classes are included in the savings presented for air-cooled CRACs.

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6 Ceiling-mounted CRACs are new equipment classes in ASHRAE Standard 90.1–2019 (and not subject to current Federal standards), and DOE does not have any data to indicate the market share of ceiling-mounted units. In the absence of data regarding market share and efficiency distribution, DOE is unable to estimate potential savings for ceiling-mounted equipment classes.

TABLE II–2—ENERGY EFFICIENCY LEVELS FOR AIR-COOLED, THREE-PHASE, SMALL COMMERCIAL PACKAGE AC AND HP (<65 K) IN ASHRAE STANDARD 90.1–2019, AND THE CORRESPONDING FEDERAL ENERGY CONSERVATION STANDARDS

DOE triggered by Federal energy ASHRAE ASHRAE standard 90.1–2019 Current federal equipment class Energy efficiency levels in ASHRAE conservation equipment class standard 90.1–2019 1 standard standards 90.1–2019 amendment?

Air-cooled Air Conditioner, Three- Air-cooled Air Conditioner, Three- 14.0 SEER before 1/1/2023, 13.4 14.0 SEER ...... No. Phase, Single-Package, <65,000 Phase, Single-Package, <65,000 SEER2 after 1/1/2023. Btu/h. Btu/h. Air-cooled Air Conditioner, Three- Air-cooled Air Conditioner, Three- 13.0 SEER before 1/1/2023, 13.4 13.0 SEER ...... Yes. Phase, Split-System, <65,000 Btu/h. Phase, Split-System, <65,000 Btu/h. SEER2 after 1/1/2023. Air-cooled Heat Pump, Three-phase, Air-cooled Heat Pump, three-phase, 14.0 SEER/8.0 HSPF before 1/1/2023, 14.0 SEER, 8.0 No. Single-Package, <65,000 Btu/h. Single-Package, <65,000 Btu/h. 13.4 SEER2/6.7 HSPF2 after 1/1/ HSPF. 2023. Air-cooled Heat Pump, Three-phase, Air-cooled Heat Pump, three-phase, 14.0 SEER/8.2 HSPF before 1/1/2023, 14.0 SEER, 8.2 Yes. Split-System, <65,000 Btu/h. Split-System, <65,000 Btu/h. 14.3 SEER2/7.5 HSPF2 after 1/1/ HSPF. 2023. Space-Constrained, Air-cooled Air Con- Air-cooled Air Conditioner, Three- 12.0 SEER before 1/1/2023, 11.7 14.0 SEER 2 ...... No. ditioner, Three-Phase, Single-Pack- Phase, Single-Package, <65,000 SEER2 after 1/1/2023. age, ≤30,000 Btu/h. Btu/h. Space-Constrained, Air-cooled Air Con- Air-cooled Air Conditioner, Three- 12.0 SEER before 1/1/2023, 11.7 13.0 SEER 2 ...... No. ditioner, Three-Phase, Split-System, Phase, Split-System, <65,000 Btu/h. SEER2 after 1/1/2023. ≤30,000 Btu/h. Space-Constrained, Air-cooled Heat Air-cooled Heat Pump, three-phase, 12.0 SEER/7.4 HSPF before 1/1/2023, 14.0 SEER,2 8.0 No. Pump, Three-Phase, Single-Pack- Single-Package, <65,000 Btu/h. 11.7 SEER2/6.3 HSPF2 after 1/1/ HSPF 2. age, ≤30,000 Btu/h. 2023. Space-Constrained, Air-cooled Heat Air-cooled Heat Pump, three-phase, 12.0 SEER/7.4 HSPF before 1/1/2023, 14.0 SEER,2 8.2 No. Pump, Three-Phase, Split-System, Split-System, <65,000 Btu/h. 11.7 SEER2/6.3 HSPF2 after 1/1/ HSPF 2. ≤30,000 Btu/h. 2023. Small-Duct, High-Velocity, Air-cooled Air-cooled Air Conditioner, Three- 12.0 SEER before 1/1/2023, 12.0 13.0 SEER 2 ...... No. Air Conditioner, Three-Phase, Split- Phase, Split-System, <65,000 Btu/h. SEER2 after 1/1/2023. System, <65,000 Btu/h. Small-Duct, High-Velocity, Air-cooled Air-cooled Heat Pump, three-phase, 12.0 SEER/7.2 HSPF before 1/1/2023, 14.0 SEER,2 8.2 No. Heat Pump, Three-Phase, Split-Sys- Split-System, <65,000 Btu/h. 12.0 SEER2/6.1 HSPF2 after 1/1/ HSPF 2. tem, <65,000 Btu/h. 2023. 1 ASHRAE Standard 90.1–2019 adopts levels in terms of SEER2 and HSPF2 effective on 1/1/2023, as measured by AHRI 210/240–2023, while Federal standards are in terms of SEER and HSPF. DOE performed a preliminary crosswalk analysis to determine whether the ASHRAE Standard 90.1–2019 levels due to take effect on 1/1/2023 represent an increase in stringency relative to the current Federal standards. 2 Although ASHRAE Standard 90.1–2019 specifies separate standard levels for three-phase space-constrained and small-duct, high-velocity equipment, the Federal standards for these equipment classes are the same as other types of small commercial package air-conditioning and heating equipment.

A. Computer Room Air Conditioners flow CRAC equipment classes, ceiling-mounted classes is not currently disaggregated the upflow CRAC subject to Federal standards set forth in DOE currently prescribes energy equipment classes into upflow ducted 10 CFR 431.97, although DOE issued a conservation standards for 30 and upflow non-ducted equipment draft guidance document on October 7, equipment classes of CRACs at 10 CFR classes, and established different sets of 2015 to clarify that horizontal-flow and 431.97. The current CRAC equipment efficiency levels for upflow ducted and ceiling-mounted CRACs are covered classes are differentiated by condensing upflow non-ducted equipment classes equipment and are required to be tested system type (air-cooled, water-cooled, based on the corresponding rating under the current DOE test procedure water-cooled with fluid economizer, conditions specified in AHRI 1360– for purposes of making representations glycol-cooled, or glycol-cooled with 2016. In contrast, DOE currently of energy consumption. (Docket No. fluid economizer), NSCC (less than specifies the same set of standards at 10 EERE–2014–BT–GUID–0022, No. 3, pp. 65,000 Btu/h, greater than or equal to CFR 431.97 for all covered upflow 1–2) In contrast, upflow and downflow 65,000 Btu/h and less than 240,000 Btu/ CRACs, regardless of ducting air-cooled CRACs with fluid h, or greater than or equal to 240,000 configuration. economizers are currently subject to the Btu/h and less than 760,000 Btu/h), and ASHRAE Standard 90.1–2019 Federal standards in 10 CFR 431.97 for direction of conditioned air over the maintains the equipment class structure air-cooled equipment classes. cooling coil (upflow or downflow). for floor-mounted CRACs as established DOE considered whether there were Federal standards established in 10 CFR in ASHRAE Standard 90.1–2016. any increases in stringency in the 431.97 are specified in terms of SCOP, ASHRAE Standard 90.1–2019 amended ASHRAE Standard 90.1–2019 levels for based on rating conditions in ANSI/ the efficiency levels in ASHRAE CRAC classes covered by DOE ASHRAE 127–2007. 10 CFR Standard 90.1–2016 for all but three of standards, thus triggering DOE 431.96(b)(2). those equipment classes. ASHRAE obligations under EPCA. As with the As discussed in the September 2019 Standard 90.1–2019 also added classes assessment of ASHRAE Standard 90.1– NODA/RFI, ASHRAE Standard 90.1– for air-cooled CRACs with fluid 2016, for CRACs, this assessment has 2016 established new equipment classes economizers and a new table with new been complicated because the current for CRACs. 84 FR 48006, 48013 (Sept. efficiency levels for ceiling-mounted standards established in 10 CFR 431.97 11, 2019). ASHRAE Standard 90.1–2016 CRAC equipment classes. The are specified in terms of SCOP and added efficiency levels for horizontal- equipment in horizontal-flow and based on the rating conditions in ANSI/

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ASHRAE 127–2007, while the efficiency II.A.1 of this document includes a ‘‘crosswalked’’ levels of the current levels for CRACs set forth in ASHRAE detailed discussion of the differences in Federal standards used in this NODA/ Standard 90.1–2019 are specified in rating conditions between DOE’s current RFI are the same as those presented in terms of NSenCOP and based on rating test procedure for CRACs (which the September 2019 NODA/RFI (i.e., the conditions in AHRI 1360–2017. While references ANSI/ASHRAE 127–2007), methodology and resulting levels used EPCA does not expressly state how DOE AHRI 1360–2016, and AHRI 1360–2017. to compare the current Federal is to consider a change to an ASHRAE The crosswalk allows DOE to standards to the levels in ASHRAE efficiency metric, DOE is guided by the determine whether any of the levels Standard 90.1–2016; see 84 FR 48006, criteria established under EPCA for the specified in the updated ASHRAE 48014–48019 (Sept. 11, 2019)). Because evaluation of amendments to the test Standard 90.1 are more stringent than ASHRAE Standard 90.1–2019 added procedures referenced in ASHRAE the current DOE standards; any such classes for air-cooled CRACs with fluid Standard 90.1. For ASHRAE equipment levels would be considered ‘‘amended’’ economizers, DOE also presents in this under 42 U.S.C. 6313(a)(6)(A)(i), EPCA for the purpose of the evaluation NODA/RFI crosswalked levels for the 9 directs that if the applicable test required by EPCA. To the extent that the air-cooled with fluid economizer classes procedure referenced in ASHRAE crosswalk identifies amended standards currently being made subject to Federal Standard 90.1 is amended, DOE must (i.e., ASHRAE Standard 90.1 levels standards. However, the crosswalk amend the Federal test procedure to be more stringent than the Federal results for these classes are the same as consistent with the amended industry standards), the crosswalk also allows the results for corresponding classes for test procedure, unless DOE makes a DOE to conduct an analysis of the air-cooled CRACs without fluid determination, supported by clear and energy savings potential of amended economizers, because: (1) These classes convincing evidence, that to do so standards, also as required by EPCA. (42 are subject to the same current Federal would result in a test procedure that is U.S.C. 6313(a)(6)(A)(i)) Additionally, in standards as air-cooled CRACs without not reasonably designed to provide order to make the required fluid economizers; and (2) per AHRI results representative of use during an determination of whether adoption of a 1360–2017, air-cooled units with fluid average use cycle, or is unduly uniform national standard more economizers are not tested differently burdensome to conduct. (42 U.S.C. stringent than the amended ASHRAE than units without fluid economizers. 6314(a)(4)(B)) In evaluating an update to Standard 90.1 level is technologically DOE received several comments in an industry test procedure referenced in feasible and economically justified (42 response to the September 2019 NODA/ ASHRAE Standard 90.1, DOE must also U.S.C. 6313(a)(6)(A)(ii)), DOE must RFI addressing DOE’s crosswalk consider any potential impact on the understand the relationship between the methodology. AHRI stated that it agrees measured energy efficiency as compared current Federal standard and the with DOE’s crosswalk methodology and to the current Federal test procedure corresponding ASHRAE Standard 90.1 analysis, with only slight discrepancies and in the context of the current Federal efficiency level. Finally, for any in some of the percentages. However, standard. (42 U.S.C. 6314(a)(4)(C) and standard that DOE does not make more AHRI also stated that the efficiency 42 U.S.C. 6293(e)) stringent because the Federal standard levels in ASHRAE 90.1–2019, which is already more stringent than the were developed by AHRI and DOE, As discussed in section II.A.1 of this resolve the shortcomings that AHRI document, the rating conditions in ASHRAE Standard 90.1 level and where more-stringent levels are not justified stated were in the crosswalk presented AHRI 1360–2016 and AHRI 1360–2017 in the September 2019 NODA/RFI. differ from those specified in ANSI/ (under the 6-year-lookback), DOE must (AHRI, No. 7 at p. 4) 16 The CA IOUs ASHRAE 127–2007 (the industry express these levels in terms of the new commented that they support DOE’s standard referenced in the current DOE efficiency metric so as to be consistent crosswalk analysis. (CA IOUs, No. 6 at test procedure for CRACs) for most with the relevant industry test p. 2) Similarly, Trane commented that it CRAC equipment classes. As part of the procedure (42 U.S.C. 6314(a)(4)). generally agrees with the high-level analysis for the September 2019 NODA/ 1. Methodology for Efficiency and methodology in DOE’s crosswalk RFI, DOE conducted a crosswalk Capacity Crosswalk Analyses analysis. (Trane, No. 5 at p. 1) Trane analysis for the classes affected by rating also commented that cooling capacity condition changes to determine whether a. General alone must be compared when the ASHRAE Standard 90.1–2016 levels DOE performed an efficiency determining if backsliding has occurred, in terms of NSenCOP and determined crosswalk analysis to compare the as opposed to what minimum SCOP according to AHRI 1360–2016 are more stringency of the current Federal requirement was previously required for stringent than DOE’s current standards standards (represented in terms of SCOP that individual unit. Trane further in terms of SCOP and determined based on the current DOE test stated that CRACs can achieve higher according to ANSI/ASHRAE 127–2007. procedure) for CRACs to the stringency cooling capacities with smaller box 84 FR 48006, 48014–48022 (Sept. 11, of the efficiency levels for this sizes and less power input at the test 2019). Because the rating conditions equipment in ASHRAE Standard 90.1– conditions specified in AHRI 1360 as specified in AHRI 1360–2017 and AHRI 2019 (represented in terms of NSenCOP compared to DOE’s current test 1360–2016 are the same for the classes and based on AHRI 1360–2017). The procedure. (Trane, No. 5 at p. 2) In covered by the crosswalk (upflow rating conditions for upflow ducted, response to Trane, while the measured ducted, upflow non-ducted, and upflow non-ducted, and downflow NSCC will be higher for models in downflow), the same crosswalk as equipment classes specified in AHRI certain equipment classes when tested described in the September 2019 1360–2017 are the same as in AHRI 1360–2016, so for these classes, the NODA/RFI can be used to compare 16 DOE identifies comments received in response DOE’s current SCOP-based CRAC same crosswalk can relate SCOP levels to the September 2019 NODA/RFI and placed in standards to the NSenCOP values in measured according to ANSI/ASHRAE Docket No. Docket EERE–2017–BT–STD–0017 by ASHRAE Standard 90.1–2019 127–2007 to NSenCOP levels measured the commenter, the number of the comment according to either the 2016 or 2017 document as listed in the docket maintained at (determined according to AHRI 1360– http://www.regulations.gov, and the page number of 2017), in order to perform the current editions of AHRI 1360. Therefore, the that document where the comment appears (for analysis required by EPCA. Section crosswalk methodology and resulting example: AHRI, No. 7 at p. 4).

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to AHRI 1360–2016 or AHRI 1360–2017 For the efficiency crosswalk, DOE distinguish between air-cooled CRACs as compared to when tested to ANSI/ analyzed the CRAC equipment classes with and without fluid economizers, ASHRAE 127–2007, DOE specifies in ASHRAE Standard 90.1–2019 that are whereas ASHRAE Standard 90.1–2019 minimum standards in terms of energy currently subject to Federal standards includes separate sets of efficiency efficiency, not cooling capacity. (i.e., all upflow and downflow levels for air-cooled CRACs with and Therefore, DOE’s analysis to determine classes).17 ASHRAE Standard 90.1–2019 without fluid economizers. Therefore, if the ASHRAE Standard 90.1 levels includes separate sets of efficiency DOE converted the single set of current constitute backsliding must compare the levels for upflow ducted and upflow Federal standards for air-cooled classes stringency of the current Federal SCOP non-ducted CRACs to reflect the in terms of SCOP to crosswalked standards to the NSenCOP levels in differences in rating conditions for standards in terms of NSenCOP for air- ASHRAE Standard 90.1. As discussed upflow ducted and upflow non-ducted cooled classes both with and without fluid economizers. However, there is no later in this section, DOE also performed units in AHRI 1360–2017 (e.g., return air temperature and external static difference between the rating conditions a ‘‘capacity crosswalk’’ analysis to pressure (ESP)). The current Federal test for air-cooled CRACs with and without translate the capacity boundaries for procedure does not specify different fluid economizers in AHRI 1360–2017 certain equipment classes, because some rating conditions for upflow ducted as so the crosswalk results are identical for CRACs would switch classes (i.e., move compared to upflow non-ducted CRACs, these classes. into a higher capacity equipment class) and DOE’s current standards set forth in As explained previously, the levels if the equipment class boundaries are 10 CFR 431.97 do not differentiate for CRACs as updated in ASHRAE not changed accordingly. Such between upflow ducted and upflow Standard 90.1–2019 rely on a different switching of classes has the potential to non-ducted CRACs. For the purpose of metric (NSenCOP) and test procedure subject existing CRACs to lower the efficiency crosswalk analysis, DOE (AHRI 1360–2017) than the metric and standards (which could raise concerns converted the single set of current test procedure required under the vis-a`-vis EPCA’s anti-backsliding Federal SCOP standards for all upflow Federal standards (SCOP and ANSI/ provision at 42 U.S.C. CRACs to sets of ‘‘crosswalked’’ ASHRAE 127–2007, respectively). AHRI 6313(a)(6)(B)(iii)(I)). Based on these NSenCOP levels for both the upflow 1360–2017 and ANSI/ASHRAE 127– comments, for this NODA/RFI, DOE did ducted and upflow non-ducted classes 2007 specify different rating conditions, not make any changes to the included in ASHRAE Standard 90.1– which are listed in Table II–3.18 AHRI methodology of the efficiency or 2019. 1360–2016 specifies the same rating capacity crosswalks presented in the Similarly, DOE’s current standards set conditions for these classes as AHRI September 2019 NODA/RFI. forth in 10 CFR 431.97 do not 1360–2017. TABLE II–3—DIFFERENCES IN RATING CONDITIONS BETWEEN DOE’S CURRENT TEST PROCEDURE AND AHRI STANDARD 1360–2017

Test parameter Affected equipment categories Current DOE test procedure (ANSI/ AHRI 1360–2017 ASHRAE 127–2007)

Return air dry-bulb temperature (RAT) Upflow ducted and downflow ...... 75 °F dry-bulb temperature 85 °F dry-bulb temperature.

Entering water temperature (EWT) ...... Water-cooled ...... 86 °F 83 °F

ESP (varies with NSCC) ...... Upflow ducted ...... <20 kW ...... 0.8 in H2O ...... <65 kBtu/h ...... 0.3 in H2O.

≥20 kW ...... 1.0 in H2O ...... ≥65 kBtu/h and 0.4 in H2O. <240 kBtu/h.

≥240 kBtu/h and 0.5 in H2O. <760 kBtu/h.

Adder for heat rejection fan and pump Water-cooled and glycol-cooled ...... No added power consumption for heat 5 percent of NSCC for water-cooled power (add to total power consump- rejection fan and pump. CRACs. tion). 7.5 percent of NSCC for glycol-cooled CRACs.

17 ASHRAE Standard 90.1–2019 includes mounted classes, so these classes were not included compared to AHRI 1360–2017. (42 U.S.C. efficiency levels for horizontal-flow and ceiling- in the crosswalk analysis. 6314(a)(4)(B)). mounted classes of CRACs. DOE does not currently 18 Pursuant to EPCA, DOE is conducting a prescribe standards for horizontal-flow or ceiling- separate evaluation of its current test procedure as

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Additionally, in ASHRAE Standard boundaries of affected equipment that the sensible heat ratio 20 is 90.1–2019 (which references AHRI classes to prevent this equipment class consistently higher at a RAT of 85 °F 1360–2017 as the test procedure for switching issue and avoid potential than at 75 °F. Because SCOP is CRACs), the capacity boundaries for backsliding that would occur if capacity calculated with NSCC, an increase in downflow and upflow-ducted CRAC boundaries were not adjusted. the fraction of total cooling capacity that equipment classes are increased relative Both the efficiency and capacity is sensible cooling rather than latent to the boundaries of analogous classes crosswalk analyses have a similar cooling also inherently increases SCOP. in the current Federal standards (which structure and the data for both analyses To analyze the impacts of increasing references ANSI/ASHRAE 127–2007 for came from several of the same sources. RAT for upflow ducted and downflow the test procedure). The capacity values The crosswalk analyses were informed CRACs on SCOP and NSCC, DOE that bound the CRAC equipment classes by numerous sources, including public gathered data from three separate are in terms of NSCC. For certain manufacturer literature, manufacturer sources and aggregated the results for equipment classes, NSCC values performance data obtained through non- each crosswalk analysis. First, DOE determined according to AHRI 1360– disclosure agreements (NDAs), results used product specifications for several 2017 are higher than the NSCC values from DOE’s testing of two CRAC units, CRAC models that provide SCOP and determined according to ANSI/ASHRAE and DOE’s Compliance Certification NSCC ratings for RATs ranging from ° ° 127–2007 because of differences in the Database for CRACs. DOE analyzed each 75 F to 95 F. Second, DOE analyzed specified rating conditions. Because the test procedure change independently manufacturer performance data test procedure in ASHRAE Standard and used the available data to determine obtained under NDAs that showed the 90.1–2019 results in an increased NSCC an aggregated percentage by which that performance impact of individual test value for certain equipment classes, as change impacted efficiency (SCOP) and/ condition changes, including the compared to the NSCC measured in or NSCC. Updated SCOP levels and increase in RAT. Third, DOE used accordance with the current Federal test NSCC equipment class boundaries were results from testing two CRAC units: procedure requirement, some CRACs calculated for each class (as applicable) one air-cooled upflow ducted and one would switch classes (i.e., move into a by combining the percentage changes air-cooled downflow unit. DOE higher capacity equipment class) if the for every test procedure change combined the results of these sources to equipment class boundaries are not applicable to that class. find the aggregated increases in SCOP 19 changed accordingly. The following sub-sections describe and NSCC due to the increase in RAT. As the equipment class capacity the approaches used to analyze the The increase in SCOP due to the change increases for upflow or downflow CRAC impacts on the measured efficiency and in RAT was found to be approximately classes, the stringency of both the capacity of each difference in rating 19 percent, and the increase in capacity ASHRAE Standard 90.1 efficiency level conditions between DOE’s current test was found to be approximately 22 and the current Federal standard procedure and AHRI 1360–2017. As percent. decreases. As a result, class switching discussed previously, the crosswalk c. Decrease in Entering Water would subject some CRAC models to an analysis methodology described in the Temperature for Water-Cooled CRACs efficiency level under ASHRAE following sub-sections is the same as Standard 90.1–2019 that is less stringent ANSI/ASHRAE 127–2007, which is presented in the September 2019 than the standard level that is referenced by DOE’s current test NODA/RFI. No additional data sources applicable to that model under the procedure, specifies an entering water were added to the analysis. current Federal requirements. Such temperature (EWT) of 86 °F for water- result would be impermissible under b. Increase in Return Air Dry-Bulb cooled CRACs, while AHRI 1360–2017 EPCA’s anti-backsliding provision at 42 Temperature From 75 °F to 85 °F specifies an entering water temperature U.S.C. 6313(a)(6)(B)(iii)(I). of 83 °F. A decrease in the EWT for ANSI/ASHRAE 127–2007, which is To provide for an appropriate water-cooled CRACs increases the referenced by DOE’s current test comparison between current Federal temperature difference between the procedure, specifies a return air dry- efficiency standards and the efficiency water and hot refrigerant in the bulb temperature (RAT) of 75 °F for levels in ASHRAE Standard 90.1–2019, condenser coil, thus increasing cooling testing all CRACs. AHRI 1360–2017 address potential backsliding, and capacity and decreasing compressor specifies an RAT of 85 °F for upflow evaluate the capacity boundaries in power. To analyze the impact of this ducted and downflow CRACs, but ASHRAE Standard 90.1–2019, a decrease in EWT on SCOP and NSCC, specifies an RAT for upflow non-ducted capacity crosswalk was conducted to DOE analyzed manufacturer data units of 75 °F. SCOP and NSCC both adjust the NSCC boundaries that obtained through NDAs and a publicly- increase with increasing RAT for two separate equipment classes in the available presentation from a major reasons. First, a higher RAT increases Federal efficiency standards to account CRAC manufacturer and calculated an the cooling that must be done for the air for the expected increase in measured SCOP increase of approximately 2 to approach its dew point temperature NSCC values for affected equipment percent and an NSCC increase of (i.e., the temperature at which water classes (i.e., equipment classes with test approximately 1 percent. procedure changes that increase NSCC). vapor will condense if there is any The capacity crosswalk calculated additional cooling). Second, a higher d. Changes in External Static Pressure necessary increases in the capacity RAT will tend to raise the evaporating Requirements for Upflow Ducted CRACs temperature of the refrigerant, which in For upflow ducted CRACs, AHRI 19 This difference in capacity values might shift turn raises the temperature of fin and 1360–2017 specifies lower ESP the boundaries between statutorily defined tube surfaces in contact with the air— requirements than ANSI/ASHRAE 127– categories (i.e., small, large and very large the resulting reduction in the portion of commercial package air conditioning and heating equipment), but would not impact which the heat exchanger surface that is below 20 ‘‘Sensible heat ratio’’ is the ratio of sensible equipment is within scope of DOE’s authority under the air’s dew point temperature reduces cooling capacity to the total cooling capacity. The these statutorily defined categories (i.e., DOE has the potential for water vapor to total cooling capacity includes both sensible authority to regulate all small, large, and very large condense on these surfaces. This is seen cooling capacity (cooling associated with reduction commercial package air conditioning and heating in temperature) and latent cooling capacity (cooling equipment). in product specifications which show associated with dehumidification).

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2007, which is referenced in DOE’s was calculated separately for each comparable air conditioning units with current test procedure. The ESP capacity range specified in AHRI 1360– similar cooling capacity, fan drive, and requirements in all CRAC industry test 2017 (i.e., <65 kBtu/h, 65–240 kBtu/h, fan motor horsepower. standards vary with NSCC; however, the and ≥240 kBtu/h). DOE also received manufacturer data capacity bins (i.e., capacity ranges over DOE conducted an analysis to (obtained through NDAs) showing the which each ESP requirement applies) in estimate the change in fan power ANSI/ASHRAE 127–2007 are different consumption due to the changes in ESP impact on efficiency and NSCC of the from AHRI 1360–2017. Testing with a requirements using performance data change in ESP requirements. lower ESP decreases the indoor fan and product specifications for 77 Additionally, DOE conducted tests on power input without a corresponding upflow CRAC models with certified an upflow-ducted CRAC at ESPs of 1 in. decrease in cooling capacity, thus SCOP ratings at or near the current H2O and 0.4 in. H2O (the applicable ESP increasing the measured efficiency. applicable SCOP standard level in requirements specified in ANSI/ Additionally, the reduction in fan heat DOE’s Compliance Certification ASHRAE 127–2007 and AHRI 1360– entering the indoor air stream that Database. Using the certified SCOP and 2017, respectively), and included the results from lower fan power also NSCC values, DOE determined each results of those tests in this analysis. slightly increases NSCC. model’s total power consumption for For each of the three capacity ranges To determine the impacts on operation at the rating conditions for which ESP requirements are measured SCOP and NSCC of the specified in DOE’s current test specified in AHRI AHRI 1360–2017, changes in ESP requirements between procedure. DOE then used fan Table II–4 shows the approximate DOE’s current test procedure and AHRI performance data for each model to 1360–2017, DOE aggregated data from estimate the change in indoor fan power aggregated percentage increases in its analysis of fan power consumption that would result from the lower ESP SCOP and NSCC associated with the changes, manufacturer data obtained requirements in AHRI 1360–2017, and decreased ESP requirements specified in through NDAs, and results from DOE modified the total power consumption AHRI 1360–2017 for upflow ducted testing. More details on each of these for each model by the calculated value. units. As discussed previously, AHRI sources are included in the following For several models, detailed fan 1360–2016 specifies the same rating paragraphs. The impact of changes in performance data were not available, so conditions for upflow ducted classes as ESP requirements on SCOP and NSCC DOE used fan performance data for AHRI 1360–2017. TABLE II–4—PERCENTAGE INCREASE IN SCOP AND NSCC FROM DECREASES IN EXTERNAL STATIC PRESSURE REQUIRE- MENTS FOR UPFLOW DUCTED UNITS BETWEEN DOE’S CURRENT TEST PROCEDURE AND AHRI STANDARD 1360– 2017

Net sensible cooling capacity range (kBtu/h) * ESP requirements in ESP require- Approx. aver- Approx. aver- DOE’s ments in AHRI age age current test procedure 1360–2017 percentage in- percentage in- (ANSI/ASHRAE 127– (in H2O) crease crease 2007) in SCOP in NSCC (in H2O)

<65 0.8 0.3 7 2

≥65 to <240 ...... ** ≥65 to <68.2 0.8 0.4 *** 8 *** 2

** ≥68.2 to <240 1

≥240 to <760 1 0.5 6 2 * These boundaries are consistent with the boundaries in ANSI/ASHRAE 127–2007, AHRI 1360–2016, and AHRI 1360–2017, and do not reflect the expected capacity increases for upflow-ducted and downflow equipment classes at the AHRI 1360–2016 and AHRI 1360–2017 test conditions. ** 68.2 kBtu/h is equivalent to 20 kW, which is the capacity value that separates ESP requirements in ANSI/ASHRAE 127–2007, which is referenced in DOE’s current test procedure. *** This average percentage increase is an average across upflow ducted CRACs with net sensible cooling capacity ≥65 and <240 kBtu/h, including models with capacity <20 kW and ≥20 kW. DOE’s Compliance Certification Database shows that most of the upflow CRACs with a net sensible cooling capacity ≥65 kBtu/h and <240 kBtu/h have a net sensible cooling capacity ≥20 kW.

As discussed in section II.A.1.a of this ESP requirements impact the stringency within an equipment class would be document, NSCC values determined of the test. For the efficiency and subject to the same ESP requirement. according to ANSI/ASHRAE 127–2007 capacity crosswalk analyses in this The same methodology was used in the are lower than NSCC values determined NODA, DOE used the adjusted capacity crosswalk analysis discussed in the according to AHRI 1360–2017 for boundaries for upflow ducted classes September 2019 NODA/RFI. certain CRAC classes, including upflow- presented in Table II–5 (as discussed in ducted classes. The increase in NSCC section II.A.1.f of this document) to e. Power Adder To Account for Pump also impacts the ESP requirements for specify the applicable ESP requirement and Heat Rejection Fan Power in upflow-ducted units in AHRI 1360– in AHRI 1360–2017 (rather than using NSenCOP Calculation for Water-Cooled 2017 because these requirements are the capacity boundaries specified in and Glycol-Cooled CRACs specified based on NSCC. Differences in AHRI 1360–2017) so that all CRACs

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Energy consumption for heat rejection ASHRAE 127–2007, which is referenced Specifically, Notes 2 and 3 to Table 3 of components for air-cooled CRACs (i.e., in DOE’s current test procedure, does AHRI 1360–2017 specify to add a condenser fan motor(s)) is measured in not include any factor in the calculation percentage of the measured NSCC (5 the industry test standards for CRACs; of SCOP to account for the power percent for water-cooled CRACs and 7.5 however, energy consumption for heat consumption of heat rejection percent for glycol-cooled CRACs) in kW rejection components for water-cooled components for water-cooled and to the total power input used to and glycol-cooled CRACs is not glycol-cooled CRACs. In contrast, AHRI calculate NSenCOP. DOE calculated the measured because these components 1360–2017 specifies to increase the impact of these additions on SCOP (i.e., water/glycol pump, dry cooler/ measured total power input for CRACs using Equation 1: cooling tower fan(s)) are not considered to account for the power consumption to be part of the CRAC unit. ANSI/ of fluid pumps and heat rejection fans.

Where, x is equal to 5 percent for 2017 affect each of the CRAC equipment These adjustment factors are equal to water-cooled CRACs and 7.5 percent for classes considered in the crosswalk 100 percent plus the calculated percent glycol-cooled CRACs, and SCOP1 is the analyses. To combine the impact on change in measured efficiency. SCOP value adjusted for the energy SCOP of the changes to rating To account for the impact of the adder consumption of heat rejection pumps conditions (i.e., increase in RAT, for heat rejection pump and fan power and fans. decrease in condenser EWT for water- cooled units, and decrease of the ESP for water-cooled and glycol-cooled f. Calculating Overall Changes in requirements for upflow ducted units), units, DOE used Equation 3. Hence, Measured Efficiency and Capacity From DOE multiplied together the calculated DOE determined crosswalked NSenCOP Test Procedure Changes adjustment factors representing the levels corresponding to the current Different combinations of the test measurement changes corresponding to Federal SCOP standards for each CRAC procedure changes between DOE’s each individual rating condition change, equipment class using the following two current test procedure and AHRI 1360– as applicable, as shown in Equation 2. equations.

In these equations, NSenCOP1 refers classes, NSenCOP is equal to 100 percent plus the calculated percent to a partially-crosswalked NSenCOP NSenCOP1. change in measured NSCC. In this level that incorporates the impacts of To combine the impact on NSCC of equation, Boundary refers to the original changes in RAT, condenser EWT, and the changes to rating conditions, DOE NSCC boundaries (i.e., 65,000 Btu/h, indoor fan ESP (as applicable), but not used a methodology similar to that used 240,000 Btu/h, or 760,000 Btu/h as the impact of adding the heat rejection for determining the impact on SCOP. To determined according to ANSI/ASHRAE pump and fan power; x1, x2, and x3 determine adjusted NSCC equipment 127–2007), Boundary1 refers to the represent the percentage change in class boundaries, DOE multiplied updated NSCC boundaries as SCOP due to changes in RAT, condenser together the calculated adjustment determined according to AHRI 1360– EWT, and indoor fan ESP requirements, factors representing the measurement 2017, and y1, y2, and y3 represent the respectively; and x4 is equal to 5 percent changes corresponding to each percentage changes in NSCC due to for water-cooled equipment classes and individual rating condition change, as changes in RAT, condenser EWT, and 7.5 percent for glycol-cooled equipment applicable, as shown in Equation 4. indoor fan ESP requirements, classes. For air-cooled classes, x4 is These adjustment factors are equal to respectively. equal to 0 percent; therefore, for these

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As mentioned previously, ASHRAE crosswalk analysis. Use of the capacity limit for downflow and Standard 90.1–2019 includes adjusted equipment class boundaries from upflow-ducted CRACs in the analysis equipment class capacity boundaries for ASHRAE Standard 90.1–2019 allows for presented in this notice. The 930,000 only upflow-ducted and downflow an appropriate comparison between the Btu/h upper capacity limit (as measured equipment classes. The adjusted class energy efficiency levels and equipment per AHRI 1360–2017) used in the ranges for these categories are <80,000 classes specified in ASHRAE Standard crosswalk analysis is equivalent to the Btu/h, ≥80,000 Btu/h and <295,000 Btu/ 90.1 and those in the current DOE 760,000 Btu/h upper capacity limit (as h, and ≥295,000 Btu/h. In previous standards, while addressing the measured per ANSI/ASHRAE 127–2007) versions of ASHRAE Standard 90.1, backsliding potential discussed established in the current DOE these ranges are <65,000 Btu/h, ≥65,000 previously. standards. Btu/h and <240,000 Btu/h, and ASHRAE Standard 90.1–2019 does ≥240,000 Btu/h. The capacity range not include an upper capacity limit for 2. Crosswalk Results boundaries for upflow non-ducted coverage of CRACs. DOE’s current The ‘‘crosswalked’’ DOE efficiency classes were left unchanged at 65,000 standards are applicable only to CRACs levels (in terms of NSenCOP) and Btu/h and 240,000 Btu/h in ASHRAE with an NSCC less than 760,000 Btu/h, adjusted equipment class capacity Standard 90.1–2019. DOE’s capacity which is consistent with the statutory boundaries were then compared with crosswalk analysis indicates that the limits on DOE’s authority.21 10 CFR the NSenCOP efficiency levels and primary driver for increasing NSCC is 431.97(e). In order to account for all capacity boundaries specified in increasing RAT. The increases in RAT equipment currently subject to the ASHRAE Standard 90.1–2019 to in AHRI 1360–2017, as compared to Federal standards, DOE adjusted the determine whether the ASHRAE ANSI/ASHRAE 127–2007, only apply to 760,000 Btu/h equipment class Standard 90.1–2019 requirements are upflow ducted and downflow boundary for certain equipment classes equipment classes. Based on the as part of its capacity crosswalk more stringent than current Federal analysis performed for this document, analysis. This adjustment to the upper standards. DOE found that all the equipment class boundary of the equipment classes Table II–5 presents the preliminary boundaries in ASHRAE Standard 90.1– applies only for downflow and upflow- results for the crosswalk analyses (see 2019, which are in increments of 5,000 ducted classes (the classes for which the section II.A.1 of this document for Btu/h, are within 1.4 percent of the RAT increase applies). Consistent with detailed discussion of the methodology boundaries calculated from DOE’s the adjustments made in ASHRAE for the crosswalk analyses). The last capacity crosswalk. As such, to more Standard 90.1–2019, DOE averaged the column in the table, labeled ‘‘Crosswalk closely align DOE’s analysis with cross-walked capacity results across the Comparison,’’ indicates whether the ASHRAE Standard 90.1–2019, DOE has affected equipment classes, and ASHRAE Standard 90.1–2019 levels are used the equipment class boundaries in rounded to the nearest 5,000 Btu/h. less stringent, equivalent to, or more ASHRAE Standard 90.1–2019 as the Following this approach, DOE has used stringent than the current Federal preliminary adjusted boundaries for the 930,000 Btu/h as the adjusted upper standards, based on DOE’s analysis. TABLE II–5—CROSSWALK RESULTS

Cross- ASHRAE Current NSCC Current Cross-walked walked cur- standard Condenser Airflow range federal Test procedure changes NSCC range rent federal 90.1–2019 Crosswalk system type configuration (kBtu/h) standard affecting efficiency * (kBtu/h) standard NSenCOP comparison (SCOP) (NSenCOP) level

Air-cooled ...... Downflow ...... <65 ...... 2.20 Return air dry-bulb tempera- <80 ...... 2.62 2.70 More Stringent. ture. Air-cooled ...... Downflow ...... ≥65 and <240 2.10 ≥80 and <295 2.50 2.58 More Stringent. Air-cooled ...... Downflow ...... ≥240 and <760 1.90 ≥295 and <930 2.26 2.36 More Stringent. Air-cooled with Downflow ...... <65 ...... 2.20 <80 ...... 2.62 2.70 More Stringent. fluid economizer. Air-cooled with Downflow ...... ≥65 and <240 2.10 ≥80 and <295 2.50 2.58 More Stringent. fluid economizer. Air-cooled with Downflow ...... ≥240 and <760 1.90 ≥295 and <930 2.26 2.36 More Stringent. fluid economizer. Water-cooled ... Downflow ...... <65 ...... 2.60 Return air dry-bulb tempera- <80 ...... 2.73 2.82 More Stringent. Water-cooled ... Downflow ...... ≥65 and <240 2.50 ture. Condenser entering ≥80 and <295 2.63 2.73 More Stringent. Water-cooled ... Downflow ...... ≥240 and <760 2.40 water temperature. Add al- ≥295 and <930 2.54 2.67 More Stringent. lowance for heat rejection components to total power input.

21 In initially establishing standards CRACs, DOE the relevant capacity values. DOE notes further that 760,000 Btu/h. (42 U.S.C. 6311(8)(D)) Consequently, noted that the energy efficiency levels from EPCA provides a definition for ‘‘very large DOE does not have authority to set standards for ASHRAE Standard 90.1 adopted as the Federal commercial package air conditioning and heating models beyond the capacity range specified for this standards were based on ANSI/ASHRAE 127–2007. equipment’’ that encompasses such equipment type of covered equipment. 77 FR 28928, 28945 (May 16, 2012). This includes rated at or above 240,000 Btu/h and less than

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TABLE II–5—CROSSWALK RESULTS—Continued

Water-cooled Downflow ...... <65 ...... 2.55 <80 ...... 2.68 2.77 More Stringent. with fluid economizer. Water-cooled Downflow ...... ≥65 and <240 2.45 ≥80 and <295 2.59 2.68 More Stringent. with fluid economizer. Water-cooled Downflow ...... ≥240 and <760 2.35 ≥295 and <930 2.50 2.61 More Stringent. with fluid economizer. Glycol-cooled ... Downflow ...... <65 ...... 2.50 Add allowance for heat rejec- <80 ...... 2.43 2.56 More Stringent. Glycol-cooled ... Downflow ...... ≥65 and <240 2.15 tion components to total ≥80 and <295 2.15 2.24 More Stringent. power input. Glycol-cooled ... Downflow ...... ≥240 and <760 2.10 ≥295 and <930 2.11 2.21 More Stringent. Glycol-cooled Downflow ...... <65 ...... 2.45 <80 ...... 2.39 2.51 More Stringent. with fluid economizer. Glycol-cooled Downflow ...... ≥65 and <240 2.10 ≥80 and <295 2.11 2.19 More Stringent. with fluid economizer. Glycol-cooled Downflow ...... ≥240 and <760 2.05 ≥295 and <930 2.06 2.15 More Stringent. with fluid economizer. Air-cooled ...... Upflow Ducted <65 ...... 2.09 Return air dry-bulb tempera- <80 ...... 2.65 2.67 More Stringent. Air-cooled ...... Upflow Ducted ≥65 and <240 1.99 ture. ESP requirements. ≥80 and <295 2.55 2.55 Equivalent. Air-cooled ...... Upflow Ducted ≥240 and <760 1.79 ≥295 and <930 2.26 2.33 More Stringent. Air-cooled with Upflow Ducted <65 ...... 2.09 <80 ...... 2.65 2.67 More Stringent. fluid economizer. Air-cooled with Upflow Ducted ≥65 and <240 1.99 ≥80 and <295 2.55 2.55 Equivalent. fluid economizer. Air-cooled with Upflow Ducted ≥240 and <760 1.79 ≥295 and <930 2.26 2.33 More Stringent. fluid economizer. Water-cooled ... Upflow Ducted <65 ...... 2.49 Return air dry-bulb tempera- <80 ...... 2.77 2.79 More Stringent. Water-cooled ... Upflow Ducted ≥65 and <240 2.39 ture. Condenser entering ≥80 and <295 2.70 2.70 Equivalent. Water-cooled ... Upflow Ducted ≥240 and <760 2.29 water temperature. ESP re- ≥295 and <930 2.56 2.64 More Stringent. Water-cooled Upflow Ducted <65 ...... 2.44 quirements. Add allowance <80 ...... 2.72 2.74 More Stringent. with fluid for heat rejection compo- economizer. nents to total power input. Water-cooled Upflow Ducted ≥65 and <240 2.34 ≥80 and <295 2.65 2.65 Equivalent. with fluid economizer. Water-cooled Upflow Ducted ≥240 and <760 2.24 ≥295 and <930 2.51 2.58 More Stringent. with fluid economizer. Glycol-cooled ... Upflow Ducted <65 ...... 2.39 Return air dry-bulb tempera- <80 ...... 2.47 2.53 More Stringent. Glycol-cooled ... Upflow Ducted ≥65 and <240 2.04 ture. ESP requirements. Add ≥80 and <295 2.19 2.21 More Stringent. Glycol-cooled ... Upflow Ducted ≥240 and <760 1.99 allowance for heat rejection ≥295 and <930 2.11 2.18 More Stringent. components to total power input. Glycol-cooled Upflow Ducted <65 ...... 2.34 <80 ...... 2.43 2.48 More Stringent. with fluid economizer. Glycol-cooled Upflow Ducted ≥65 and <240 1.99 ≥80 and <295 2.14 2.16 More Stringent. with fluid economizer. Glycol-cooled Upflow Ducted ≥240 and <760 1.94 ≥295 and <930 2.07 2.12 More Stringent. with fluid economizer. Air-cooled ...... Upflow Non- <65 ...... 2.09 No changes...... <65 ...... 2.09 2.16 More Stringent. Ducted. Air-cooled ...... Upflow Non- ≥65 and <240 1.99 ≥65 and <240 1.99 2.04 More Stringent. Ducted. Air-cooled ...... Upflow Non- ≥240 and <760 1.79 ≥240 and <760 1.79 1.89 More Stringent. Ducted. Air-cooled with Upflow Non- <65 ...... 2.09 <65 ...... 2.09 2.09 Equivalent. fluid econo- Ducted. mizer. Air-cooled with Upflow Non- ≥65 and <240 1.99 ≥65 and <240 1.99 1.99 Equivalent. fluid econo- Ducted. mizer. Air-cooled with Upflow Non- ≥240 and <760 1.79 ≥240 and <760 1.79 1.81 More Stringent. fluid econo- Ducted. mizer.

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TABLE II–5—CROSSWALK RESULTS—Continued

Water-cooled ... Upflow Non- <65 ...... 2.49 Condenser entering water <65 ...... 2.25 2.43 More Stringent. Water-cooled ... Ducted. ≥65 and <240 2.39 temperature. Add allowance ≥65 and <240 2.17 2.32 More Stringent. Water-cooled ... Upflow Non- ≥240 and <760 2.29 for heat rejection compo- ≥240 and <760 2.09 2.20 More Stringent. Ducted. nents to total power input. Upflow Non- Ducted. Water-cooled Upflow Non- <65 ...... 2.44 <65 ...... 2.21 2.35 More Stringent. with fluid Ducted. economizer. Water-cooled Upflow Non- ≥65 and <240 2.34 ≥65 and <240 2.13 2.24 More Stringent. with fluid Ducted. economizer. Water-cooled Upflow Non- ≥240 and <760 2.24 ≥240 and <760 2.05 2.12 More Stringent. with fluid Ducted. economizer. Glycol-cooled ... Upflow Non- <65 ...... 2.39 Add allowance for heat rejec- <65 ...... 2.03 2.08 More Stringent. Glycol-cooled ... Ducted. ≥65 and <240 2.04 tion components to total ≥65 and <240 1.77 1.90 More Stringent. Upflow Non- power input. Ducted. Glycol-cooled ... Upflow Non- ≥240 and <760 1.99 ≥240 and <760 1.73 1.81 More Stringent. Ducted. Glycol-cooled Upflow Non- <65 ...... 2.34 <65 ...... 1.99 2.00 More Stringent. with fluid Ducted. economizer. Glycol-cooled Upflow Non- ≥65 and <240 1.99 ≥65 and <240 1.73 1.82 More Stringent. with fluid Ducted. economizer. Glycol-cooled Upflow Non- ≥240 and <760 1.94 ≥240 and <760 1.69 1.73 More Stringent. with fluid Ducted. economizer. * Refer to Table II–4 of this document for specific changes in rating conditions.

CRAC Issue 1: DOE requests comment 90.1–2016 and requested comment on were subsequently included in ASHRAE on the methodology and results of the the crosswalk methodology and results Standard 90.1–2019. (AHRI, No. 7 at p. crosswalk analysis. in the September 2019 NODA/RFI. 84 3; Trane, No. 5 at p. 1) AHRI also As indicated by the crosswalk, the FR 48006, 48019 (Sept. 11, 2019). The commented that the levels in the second standard levels established for CRACs in crosswalk and resulting crosswalked public review draft were generated by ASHRAE Standard 90.1–2019 are levels of the current Federal standards AHRI, discussed with DOE, and equivalent to the current Federal (i.e., current Federal standards approved by the ASHRAE 90.1 standards for 6 equipment classes, and translated to the NSenCOP metric for committee to address all backsliding are more stringent than the current the purpose of comparison to ASHRAE concerns from the ASHRAE Standard Federal standards for all other Standard 90.1 levels) presented in the 90.1–2016 levels. AHRI further stated equipment classes of CRACs. ASHRAE September 2019 NODA/RFI are the that the levels in the second public Standard 90.1–2019 also added 66 same as in this NODA/RFI because the review draft are all equal to or greater equipment classes of ceiling-mounted test conditions specified in AHRI 1360– than the DOE crosswalk values from the and horizontal-flow CRACs that did not 2016 and AHRI 1360–2017 are the same current Federal standard and would require a crosswalk because there are and the Federal standards were resolve their concerns over DOE’s currently no Federal standards for unchanged, so no additional changes to crosswalk findings presented in the classes. ASHRAE Standard 90.1–2019 the crosswalk methodology were September 2019 NODA/RFI. also incorporates shifted capacity bin necessary. DOE received several Specifically, AHRI stated that the levels boundaries for upflow ducted and comments in response to the September in the second public review draft downflow CRAC equipment classes. 2019 NODA/RFI addressing of DOE’s represent an increase in stringency by 3 DOE’s crosswalk analysis indicates that crosswalk methodology and results. to 5 percent from current Federal these updated boundaries appropriately In response to the September 2019 minimums for most equipment classes. reflect the increase in NSCC that results NODA/RFI, several stakeholders AHRI recommended that DOE adopt from the changes in test procedure commented that DOE should not adopt new energy efficiency metrics for the adopted under ASHRAE Standard 90.1– the efficiency levels in ASHRAE national standards and revise capacity 2019 (as discussed in previous sections). Standard 90.1–2016 and should instead demarcations for relevant equipment adopt the levels in the Second Public classes to be published in the 2019 3. Discussion of Comments Received Review Draft of Addendum ‘be’ to edition of ASHRAE Standard 90.1. Regarding Amended Standards for ASHRAE Standard 90.1–2016 (‘‘the (AHRI, No. 7 at pp. 2–4) CRACs second public review draft’’),22 which Trane commented that there have As mentioned in section I.C of this been no recent technological document, DOE published a description 22 The second public review draft was published advancements for CRACs that would by ASHRAE in November 2018. The same levels of a crosswalk comparing current were included in the subsequent ASHRAE Standard merit an increase of stringency in Federal standards to the minimum 90.1–2019, which did not publish until after the standards relative to the current efficiency levels in ASHRAE Standard September 2019 NODA/RFI. efficiency levels (which are

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denominated in terms of SCOP), and, For equipment classes evaluated package and split systems. The energy therefore, that the levels in ASHRAE pursuant to the 6-year-lookback and for efficiency metric as measured under the Standard 90.1–2019 are the ‘‘most which DOE determines amended DOE test procedure listed in Table 1 to stringent across of all the CRAC standards are not justified, EPCA 10 CFR 431.96 is SEER for all systems,’’ in addition to being requires DOE to conduct a subsequent equipment types in cooling mode and technically feasible and economically review within three years of such a HSPF for heat pumps operating in justified. (Trane, No. 5 at p. 1) The CA determination. (42 U.S.C. heating mode. IOUs stated that the publication of 6313(a)(6)(C)(iii)(II)) As DOE has stated, ASHRAE Standard 90.1–2019 adopted ASHRAE Standard 90.1–2019 triggered it may decide in appropriate cases to new energy efficiency levels for air- DOE’s statutory requirements to adopt simultaneously conduct an ASHRAE cooled, three-phase, small commercial those levels or more-stringent standards, trigger rulemaking and a lookback package AC and HP (<65 K) equipment and that the levels in ASHRAE Standard rulemaking so as to address all classes levels, as well as a metric change. The 90.1–2019 ensure that CRAC efficiency of an equipment category at the same energy efficiency levels in ASHRAE levels will be maintained or time (see 85 FR 8626, 8645 (Feb. 14, Standard 90.1–2019 maintain the strengthened. (CA IOUs, No. 6 at pp. 2– 2020), but DOE is still bound by the previous ASHRAE Standard 90.1–2016 3) timeframes established in EPCA. levels until January 1, 2023. After this AHRI and Trane both recommended date, the levels for almost all equipment that DOE analyze and adopt the levels 4. CRAC Standards Amended Under classes in ASHRAE Standard 90.1–2019 in ASHRAE Standard 90.1–2019 for all ASHRAE Standard 90.1–2019 will align with Federal standards for air- CRAC classes rather than amend As discussed, DOE has analyzed the cooled, single-phase, central air efficiencies for only a small subset of updated CRAC efficiency levels in conditioners at 10 CFR 430.32(c)(5), products. (Trane, No. 5 at p. 2; AHRI, ASHRAE Standard 90.1–2019 for the which will also be effective on January No. 7 at p. 7) Along these lines, AHRI purpose of satisfying the requirements 1, 2023. The one exception is the cautioned that a ‘‘no-new-standards’’ of 42 U.S.C. 6313(a)(6)(A). DOE ASHRAE Standard 90.1–2019 energy decision for a subset of CRACs would identified 48 equipment classes for efficiency level for three-phase space- ‘‘create a serial rulemaking situation for which the ASHRAE Standard 90.1–2019 constrained (S–C) heat pumps, which this equipment.’’ (AHRI, No. 7 at p. 7) efficiency levels are more stringent than matches the SEER2 Federal standard for The CA IOUs similarly encouraged DOE current DOE efficiency levels (expressed single-phase S–C air conditioners in to move forward with an expanded in NSenCOP, see the crosswalk results cooling mode, rather than for single- energy conservation standards analysis presented in section II.A.2 of this phase S–C heat pumps in cooling mode. for all equipment subject to the document), 6 equipment classes for In aligning levels with single-phase ASHRAE trigger, as well as the covered which the ASHRAE Standard 90.1–2019 central air conditioning standard, the equipment classes subject to the six- efficiency levels are equal to the current efficiency rating metrics in ASHRAE year-lookback provision. CA IOUs also DOE efficiency levels, and 66 classes of 90.1–2019 change from SEER to SEER2 recommended that DOE not make the CRACs for which standards are and HSPF to HSPF2 effective January 1, decision on whether efficiency levels specified in ASHRAE Standard 90.1– 2023. above ASHRAE 90.1 levels can be 2019 that are not currently subject to As discussed, the current DOE test justified for CRACs until all energy DOE’s standards (i.e., horizontal-flow procedure at 10 CFR 431.96 for air- savings and cost-benefit analyses have and ceiling-mounted classes). cooled, three-phase, small commercial been completed. (CA IOUs, No. 6 at p. DOE was unable to obtain the market package AC and HP (<65 K) equipment 3) share data needed to disaggregate energy incorporates by reference ANSI/AHRI In response to these comments, DOE savings for the 6 air-cooled with fluid 210/240–2008. AHRI has recently notes that this NODA/RFI evaluates the economizer equipment classes that published updated industry standards efficiency levels for CRACs included in currently have DOE standards (i.e., in AHRI 210/240–2017 (published in ASHRAE Standard 90.1–2019. Section upflow ducted, upflow non-ducted, and December 2017), as well as AHRI 210/ III.F of this NODA/RFI includes down-flow) and that DOE identified as 240–2017 with Addendum 1 (published discussion of DOE’s consideration of having more-stringent standards under in April 2019). While ASHRAE standards more stringent than the levels ASHRAE Standard 90.1–2019. Standard 90.1–2016 references AHRI in ASHRAE Standard 90.1–2019 for all Additionally, DOE lacked market share 210/240–2008 with Addendum 1 and 2, CRAC equipment classes. Regarding data to establish a market baseline for ASHRAE Standard 90.1–2019 references AHRI’s concern of a ‘‘serial estimating energy savings potential for AHRI 210/240–2017 for the period prior rulemaking,’’ DOE notes that EPCA the 66 horizontal-flow or ceiling- to January 1, 2023. The reference to prescribes specific timing requirements. mounted equipment classes. Thus, DOE AHRI 210/240–2017 does not include As discussed, this NODA/RFI evaluates conducted an energy savings analysis, Addendum 1, which DOE believes was potential standards pursuant to the presented in section III of this an oversight. ASHRAE trigger in EPCA (42 U.S.C. document, for 42 of the 48 CRAC classes As part of the October 2018 TP RFI, 6313(a)(6)(A)), as well as pursuant to the that currently have DOE standards and DOE reviewed AHRI 210/240–2017 periodic lookback review required by that DOE identified as having more- (with and without Addendum 1) and EPCA (42 U.S.C. 6313(a)(6)(C)). While stringent standards under ASHRAE initially determined that it is consistent DOE has some flexibility to consolidate Standard 90.1–2019. with AHRI 210/240–2008 and would the reviews mandated by the two not be expected to impact the measured separate statutory obligations, EPCA B. Air-Cooled, Three-Phase, Small efficiency of the subject equipment prescribes the specific timing Commercial Package AC and HP (<65 K) during a representative average use requirements. Equipment cycle as compared to the 2008 version. In general, EPCA requires DOE DOE’s current standards for small 83 FR 49501, 49503 (Oct. 2. 2018). conduct an evaluation of each class of three-phase, air-cooled, commercial Therefore, DOE determined that the pre- covered equipment within six years package AC and HP (<65 K) equipment 2023 levels in ASHRAE Standard 90.1– following an amendment to the Federal cover four equipment classes codified at 2019 based on AHRI 210/240–2017 are standards. (42 U.S.C. 6313(a)(6)(C)(i)) 10 CFR 431.97, including both single consistent with those levels in ASHRAE

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Standard 90.1–2016 based on AHRI 210/ not required to take action on those equipment switching from SEER to 240–2008 and do not constitute a classes. Id. As DOE has previously SEER2 would impact three-phase change in efficiency levels that requires determined that the pre-2023 levels for equipment. For ducted equipment, the a crosswalk analysis. SDHV and S–C, which are equivalent to difference between Appendix M to 10 For the period beginning January 1, the ASHRAE Standard 90.1–2013 levels, CFR part 430 (the pre-2023 test method) 2023, ASHRAE Standard 90.1–2019 constitute backsliding in relation to the and Appendix M1 to 10 CFR part 430 references AHRI 210/240–2023 (to align Federal standards, DOE is now assessing (the post-2023 test method) that impacts with updates to minimum efficiency whether the ASHRAE Standard 90.1– measured energy use is an increase in standards that take effect on January 1, 2019 post-2023 levels for SDHV and S– external static pressure. For a given 2023). AHRI 210/240–2023, which C equipment constitute an increase in unit, the increase in external static published in May 2020, adopts the stringency as compared to the current pressure in the post-2023 test method SEER2 and HSPF2 metrics and aligns Federal standards for the broader leads to an increased measurement of with the test procedure for single-phase equipment classes of single-package and unit energy consumption, resulting in a central air conditioners in DOE’s test split-system air conditioners and heat lower SEER2 rating (relative to the procedure at Appendix M1 to 10 CFR pumps. DOE notes that there are unit’s comparable SEER rating). For part 430, subpart B. currently no three-phase SDHV or S–C SDHV equipment classes, the specified For the analysis of air-cooled, three- air conditioners or heat pumps on the external static pressure is the same in phase, small commercial package AC market. both the pre-2023 and post-2023 test and HP (<65 K) equipment conducted 1. Crosswalk Methodology and Results method. Consequently, for a given unit, for this NODA to assess whether the there is no change between SEER and post-2023 levels in ASHRAE Standard Given the similarity of the changes SEER2 rating. 90.1–2019 are a change that triggers occurring, DOE based its preliminary DOE review, DOE has applied the crosswalk analysis on the analysis For three-phase equipment classes crosswalk from SEER to SEER2 (and conducted for single-phase residential that did not have matching HSPF values HSPF to HSPF2 for heat pumps) central air conditioners and heat pumps in Table V–29 of the January 2017 direct developed for single-phase products switching from SEER and HSPF to final rule, DOE also evaluated the switching to the SEER2 (and HSPF2 for SEER2 and HSPF2 in the January 6, stringency of the ASHRAE Standard heat pumps) metric. DOE will update 2017 Direct Final Rule for Residential 90.1–2019 HSPF2 levels relative to the the crosswalk as needed based on any Central Air Conditioners and Heat Federal HSPF standard by qualitatively separate test procedure rulemaking that Pumps (January 2017 direct final rule) assessing how the testing method DOE may conduct. The crosswalk published in the Federal Register. 82 FR changes made for single-phase methodology and results are discussed 1786, 1857–1858 (Jan. 6, 2017). The equipment switching from HSPF to in the following section. January 2017 direct final rule provides HSPF2 would impact three-phase DOE also notes that ASHRAE the adopted standard levels for single- equipment. The primary difference Standard 90.1–2019 provides separate phase central air conditioners and heat between the pre-2023 test method and levels for small-duct high-velocity pumps in terms of SEER (and HSPF for the post-2023 test method is a change in (SDHV) and S–C heat pumps, as did heat pumps) and corresponding heating load line. For a given unit, the ASHRAE Standard 90.1–2013 and crosswalked SEER2 (and HSPF2 for heat change in heating load line in the post- ASHRAE Standard 90.1–2016 23 (using pumps) values. 82 FR 1786, 1848–1849, 2023 test method leads to an increased the nomenclature ‘‘through the wall’’ Tables V–29 and V–30 (Jan. 6, 2017). measurement of unit energy rather than space-constrained). In the For three-phase equipment classes with consumption, resulting in a significantly notice of proposed rule preceding the Federal standards matching SEER and lower HSPF2 rating (relative to the July 2015 final rule, DOE stated that HPSF standards in Table V–29 of the unit’s comparable HSPF rating). DOE EPCA does not separate these January 2017 direct final rule, DOE used applied these changes in order to equipment from other types of small the corresponding SEER2 and HSPF2 compare the current Federal HSPF to commercial package air-conditioning value from Table V–30 of the January the ASHRAE Standard 90.1–2019 and heating equipment in its 2017 direct final rule. HSPF2. definitions, and, therefore, EPCA’s For three-phase equipment classes The results of DOE’s preliminary definition of ‘‘small commercial package that did not have matching SEER values crosswalk are found Table II–6. The last air conditioning and heating in Table V–29 of the January 2017 direct column in the table, labeled ‘‘Crosswalk equipment’’ includes SDHV and S–C final rule, DOE evaluated the stringency Comparison,’’ indicates whether the heat pumps. 80 FR 1172, 1184 (Jan. 8, of the ASHRAE Standard 90.1–2019 ASHRAE Standard 90.1–2019 levels 2015). As the levels for those classes in SEER2 levels relative to the Federal beginning on January 1, 2023, are less ASHRAE Standard 90.1–2013 were SEER standard by qualitatively stringent, equivalent to, or more lower than the Federal standards for the assessing how the testing method stringent than the crosswalked Federal main classes, DOE concluded that it was changes made for single-phase standards, based on DOE’s analysis. TABLE II–6—CROSSWALK RESULTS FOR AIR-COOLED, THREE-PHASE, SMALL COMMERCIAL PACKAGE AC AND HP (<65 K) EQUIPMENT

Energy efficiency levels in ASHRAE Standard 90.1– Current federal equipment ASHRAE Standard Federal energy Cross-walked current Crosswalk 1 2019 equipment class class 90.1–2019 conservation standard(s) federal standard(s) comparison

Air-cooled Air Conditioner, Air-cooled Air Conditioner, 14.0 SEER before 1/1/ 14.0 SEER ...... 13.4 SEER2 ...... Equivalent. Three-Phase, Single- Three-Phase, Single- 2023; 13.4 SEER2 on Package, <65,000 Btu/h. Package, <65,000 Btu/h. and after 1/1/2023.

23 DOE notes that ASHRAE Standard 90.1–2016 90.1–2013 for air-cooled, three-phase, small did not amend levels relative to ASHRAE Standard commercial package AC and HP (<65 K) equipment.

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TABLE II–6—CROSSWALK RESULTS FOR AIR-COOLED, THREE-PHASE, SMALL COMMERCIAL PACKAGE AC AND HP (<65 K) EQUIPMENT—Continued

Air-cooled Air Conditioner, Air-cooled Air Conditioner, 13.0 SEER before 1/1/ 13.0 SEER ...... <13.0 SEER2 2 ...... More Stringent. Three-Phase, Split-Sys- Three-Phase, Split-Sys- 2023; 13.4 SEER2 on tem, <65,000 Btu/h. tem, <65,000 Btu/h. and after 1/1/2023. Air-cooled Heat Pump, Air-cooled Heat Pump, 14.0 SEER/8.0 HSPF be- 14.0 SEER; 8.0 HSPF ...... 13.4 SEER2; 6.7 HSPF2 .. Equivalent. Three-Phase, Single- Three-Phase, Single- fore 1/1/2023; 13.4 Package, <65,000 Btu/h. Package, <65,000 Btu/h. SEER2/6.7 HSPF on and after 1/1/2023. Air-cooled Heat Pump, Air-cooled Heat Pump, 14.0 SEER/8.2 HSPF be- 14.0 SEER; 8.2 HSPF ...... 13.4 SEER2; <7.5 More Stringent. Three-Phase, Split-Sys- Three-Phase, Split-Sys- fore 1/1/2023; 14.3 HSPF2 3. tem, <65,000 Btu/h. tem, <65,000 Btu/h. SEER2/7.5 HSPF2 on and after 1/1/2023. Space-Constrained, Air- Air-cooled Air Conditioner, 12.0 SEER before 1/1/ 14.0 SEER ...... >11.7 SEER2 4 ...... Less Stringent. cooled Air Conditioner, Three-Phase, Single- 2023; 11.7 SEER2 on Three-Phase, Single- Package, <65,000 Btu/h. and after 1/1/2023. Package, ≤30,000 Btu/h. Space-Constrained, Air- Air-cooled Air Conditioner, 12.0 SEER before 1/1/ 13.0 SEER ...... >11.7 SEER2 4 ...... Less Stringent. cooled Air Conditioner, Three-Phase, Split-Sys- 2023; 11.7 SEER2 on Three-Phase, Split-Sys- tem, <65,000 Btu/h. and after 1/1/2023. tem, ≤30,000 Btu/h. Space-Constrained, Air- Air-cooled Heat Pump, 12.0 SEER/7.4 HSPF be- 14.0 SEER; 8.0 HSPF ...... >11.7 SEER2; 4 >6.3 Less Stringent. Cooled Heat Pump, Three-Phase, Single- fore 1/1/2023; 11.7 HSPF2 3. Three-Phase, Single- Package, <65,000 Btu/h. SEER2/6.3 HSPF2 on Package, ≤30,000 Btu/h. and after 1/1/2023. Space-Constrained, Air- Air-cooled Heat Pump, 12.0 SEER/7.4 HSPF be- 14.0 SEER; 8.2 HSPF ...... >11.7 SEER2; 4 >6.3 Less Stringent. cooled Heat Pump, Three-Phase, Split-Sys- fore 1/1/2023; 11.7 HSPF2 3. Three-Phase, Split-Sys- tem, <65,000 Btu/h. SEER2/6.3 HSPF2 on tem, ≤30,000 Btu/h. and after 1/1/2023. Small Duct High Velocity, Air-cooled Air Conditioner, 12.0 SEER before 1/1/ 13.0 SEER ...... 13.0 SEER2 ...... Less Stringent. Air-cooled Air Condi- Three-Phase, Split-Sys- 2023; 12.0 SEER2 on tioner, Three-Phase, tem, <65,000 Btu/h. and after 1/1/2023. Split-System, <65,000 Btu/h. Small Duct, High Velocity, Air-cooled Heat Pump, 12.0 SEER/7.2 HSPF be- 14.0 SEER; 8.2 HSPF ...... 14.0 SEER2; >6.1 Less Stringent. Air-cooled Heat Pump, Three-Phase, Split-Sys- fore 1/1/2023; 12.0 HSPF2 3. Three-Phase, Split-Sys- tem, <65,000 Btu/h. SEER2/6.1 HSPF2 on tem, <65,000 Btu/h. and after 1/1/2023. 1 Column indicates whether the ASHRAE Standard 90.1–2019 levels beginning on January 1, 2023, are less stringent, equivalent to, or more stringent than the crosswalked Federal standards. 2 The Federal SEER standard is lower than the ASHRAE Standard 90.1–2019 SEER2 level indicating that the crosswalked Federal SEER2 standard will also be lower than the ASHRAE Standard 90.1–2019 SEER2 level. 3 For single-phase equipment, the decrease in HSPF2 compared to the equivalent HSPF is in the range of 1.1–1.3 points. 82 FR 1786, 1848–1849, Tables V–29 and V–30 (Jan. 6, 2017). We expect a similar relationship for three-phase equipment and use this to assess whether the crosswalked Federal standard HSPF2 value for a given HSPF value will be greater or less than the ASHRAE Standard 90.1–2019 HSPF2 level. 4 For S–C equipment classes, there is a small increase in external static pressure between the testing methods for SEER and SEER2 which, for a given unit, decreases the SEER2 rating slightly compared to the equivalent SEER rating. Therefore, the crosswalked Federal SEER2 is expected to be significantly higher than the ASHRAE Standard 90.1–2019 level of 11.7 SEER2.

Based on DOE’s preliminary III. Analysis of Standards Amended more stringent than the amended crosswalk, two equipment classes have and Newly Established by ASHRAE ASHRAE Standard 90.1 levels for either ASHRAE Standard 90.1–2019 levels that Standard 90.1–2019 CRACs or air-cooled, three-phase, small are more stringent that current Federal commercial package AC and HP (<65 K) standards; two equipment classes are As required under 42 U.S.C. equipment would result in significant equivalent, and six equipment classes 6313(a)(6)(A), for CRAC and air-cooled, additional energy savings because of have ASHRAE Standard 90.1–2019 three-phase, small commercial package uncertainty in estimated energy savings levels less stringent than the Federal AC and HP (<65 K) equipment classes resulting from the change in energy standards. for which ASHRAE Standard 90.1–2019 efficiency metrics. DOE notes that although the post- specifies amended energy efficiency The following discussion provides an 2023 values for S–C and SDHV levels that are more stringent than the overview of the energy savings analysis equipment are less stringent than corresponding Federal energy conducted for 42 classes of CRACs and current Federal standards for these conservation standards, DOE performed 2 classes of air-cooled, three-phase, equipment, DOE still intends to an analysis to determine the energy- small commercial package AC and HP consider these ASHRAE classes savings potential of amending Federal (<65 K) as defined by ASHRAE Standard separately in this rulemaking as part of standards to the amended ASHRAE 90.1–2019, followed by summary results the six-year-lookback review. levels as specified in ASHRAE Standard of that analysis. Although ASHRAE Three-Phase CAC/HP Issue 1: DOE 90.1–2019. DOE’s energy savings Standard 90.1–2019 included levels for requests feedback on its methodology analysis is limited to equipment classes horizontal flow and ceiling-mounted for determining crosswalked SEER2 and for which sufficient data are available. CRAC equipment classes (which HSPF2 values for three-phase However, as discussed in section III.F of currently do not have Federal equipment based on crosswalked values this document, DOE has tentatively standards), DOE was unable to find of single-phase residential central air determined that it lacks clear and market data that could be used to conditioners. convincing evidence that standards establish a market baseline for these

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classes and, thus, estimate energy section describes how DOE developed average CRAC total power consumption savings. estimates of annual energy consumption for each temperature bin. Annual In addition to the specific issues at the Federal baseline efficiency level estimates of energy use are developed identified in the following sections on and the ASHRAE Standard 90.1–2019 by multiplying the power consumption which DOE requests comment, DOE level. These annual unit energy at each temperature bin by the number requests comment on its overall consumption (UEC) estimates form the of hours in that bin for each climate approach and analyses used to evaluate basis of the national energy savings analyzed. In the May 2012 final rule, potential standard levels for CRACs and estimates discussed in section III.E of DOE then took a population-weighted air-cooled, three-phase, small this document. average over results for 239 different commercial package AC and HP (<65 K). climate locations to derive nationally 1. Computer Room Air Conditioners For the equipment classes where representative CRAC annual energy use ASHRAE Standard 90.1–2019 specified a. Equipment Classes and Analytical values. DOE assumed energy savings more-stringent levels than the Scope estimates derived for downflow corresponding Federal energy As noted previously in section II.A.4 equipment classes would be conservation standard, DOE calculated of this document, DOE has conducted representative of upflow equipment. 77 the potential energy savings to the an energy savings analysis for the 42 FR 28928, 28954 (May 16, 2012). In this Nation associated with adopting CRAC classes that currently have both document, DOE is using the results from ASHRAE Standard 90.1–2019 as the DOE standards and more-stringent the May 2012 final rule as the basis for difference between a no-new-standards standards under ASHRAE Standard the energy savings potential analysis of case projection (i.e., without amended 90.1–2019. DOE was unable to identify the CRAC equipment classes analyzed for this document, similar to the standards) and the ASHRAE Standard market data that would allow for methodology used in the September 90.1–2019 standards-case projection disaggregating results for the six air- 2019 NODA/RFI. (i.e., with adoption of ASHRAE cooled with fluid economizer Standard 90.1–2019 levels). equipment classes with ASHRAE b. Efficiency Levels The national energy savings (NES) Standard 90.1–2019 levels more refers to cumulative lifetime energy DOE analyzed the energy savings stringent than current Federal potential of adopting ASHRAE Standard savings for equipment purchased in a standards. Although ASHRAE Standard 30-year period that differs by equipment 90.1–2019 levels for CRAC equipment 90.1–2019 included levels for horizontal classes that currently have a Federal (i.e., the compliance date differs by flow and ceiling-mounted equipment standard and have an ASHRAE equipment class (i.e., capacity) classes which currently are not subject Standard 90.1–2019 standard more depending upon whether DOE is acting to Federal standards, DOE was unable to stringent than the current Federal under the ASHRAE trigger or the 6-year- identify market data that could be used standard. For each equipment class, lookback (see 42 U.S.C. 6313(a)(6)(D)). to establish a market baseline for these energy savings are measured relative to In the standards case, equipment that is classes in order to estimate energy the baseline (i.e., the current Federal more efficient gradually replaces less- savings. Based on information received standard for that class). efficient equipment over time. This in response to this document or affects the calculation of the potential otherwise identified, DOE may c. Analysis Method and Annual Energy energy savings, which are a function of disaggregate these equipment classes in Use Results the total number of units in use and future analyses and analyze them For this analysis, DOE used a similar their efficiencies. Savings depend on separately. analysis to that presented in the annual shipments and equipment In the May 2012 final rule, DOE September 2019 NODA/RFI. To derive lifetime. Inputs to the energy savings conducted an energy analysis for 15 UECs for the equipment classes analysis are presented in this document. downflow CRAC equipment classes analyzed in this document, DOE started A. Annual Energy Use using a modified outside temperature with the adopted standard level UECs bin analysis. 77 FR 28928, 28954 (May (i.e., the current DOE standard) for The purpose of the energy use 16, 2012). For each air-cooled downflow equipment classes analyzed analysis is to assess the energy savings equipment class, DOE calculated fan in the May 2012 final rule. DOE potential of different equipment energy and condensing unit power assumed that these UECs correspond to efficiencies in the building types that consumption at each 5 °F outdoor air the NSenCOP derived through the utilize the equipment. DOE uses the dry-bulb temperature bin. The crosswalk analysis (i.e., ‘‘Cross-walked annual energy consumption and energy- condensing unit power in this context Current Federal Standard’’ column in savings potential in the life-cycle cost included the compressor(s) and Table II–5). DOE determined the UEC (LCC) and payback period (PBP) condenser fan(s) and/or pump(s) for the ASHRAE Standard 90.1–2019 24 analyses to establish the savings in included as part of the equipment level by dividing the baseline NSenCOP consumer operating costs at various rating. For water-cooled and glycol- level by the NSenCOP for the ASHRAE equipment efficiency levels. cooled equipment, the May 2012 final Standard 90.1–2019 level and The Federal standard and ASHRAE rule analysis first estimated the entering multiplied the resulting percentage by Standard 90.1–2019 levels are expressed fluid temperature from either an the baseline UEC. in terms of an efficiency metric or evaporative cooling tower or a dry In the May 2012 final rule, DOE metrics. For each equipment class, this cooler for water-cooled and for glycol- assumed energy savings estimates cooled CRAC equipment, respectively, derived for downflow equipment classes 24 The purpose of the LCC and PBP analyses are to analyze the effects of potential amended energy based on binned weather data. Using would be representative of upflow conservation standards on commercial consumers these results, DOE then estimated the equipment classes which differed by a of CRACs and air-cooled, three-phase, small condensing unit power consumption fixed 0.11 SCOP. 77 FR 28928, 28954 commercial AC and HP (<65 K) by determining how and adds to this the estimated supply (May 16, 2012). Because of the fixed a potential amended standard affects the commercial consumers’ operating expenses (usually fan power. The sum of the CRAC 0.11 SCOP difference between upflow decreased) and total installed costs (usually condensing unit power and the CRAC and downflow CRAC units in ASHRAE increased). supply fan power is the estimated Standard 90.1–2013, DOE determined

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that the per-unit energy savings benefits proposed approach to determine the the most workable option for evaluating for corresponding CRACs at higher UEC of upflow units using the fractional the impact of proposed standards. efficiency levels could be represented increase or decrease in NSenCOP (Trane, No. 5 at p. 2) After consideration using the 15 downflow equipment relative to the baseline downflow unit of these comments, DOE has tentatively classes. Id. However, in this analysis, in a given equipment class grouping of decided to maintain the same the efficiency levels for the upflow non- condenser system and capacity was methodology in this document. ducted equipment classes do not differ reasonable and an acceptable method to from the downflow equipment class by CRAC Issue 2: DOE seeks comment on use. (AHRI, No. 7 at p. 5) Trane stated its energy-use analysis methodology. a fixed amount. For this document, DOE that return air conditions are becoming assumed that the fractional increase/ Table III–1 shows UEC estimates for more likely to approach AHRI 1360 decrease in NSenCOP between upflow the equipment classes triggered by class 4 levels in response to increased and downflow units corresponds to a ASHRAE Standard 90.1–2019 (i.e., use of High-Performance Computing proportional decrease/increase in the equipment classes for which the models. At higher return temperatures, baseline UEC within a given equipment ASHRAE Standard 90.1–2019 energy CRACs can avoid latent cooling and be class grouping of condenser system and efficiency level is more stringent than more efficient. (Trane, No. 5 at p. 2) capacity. the current applicable Federal However, Trane stated that using the In response to the September 2019 standard). NODA/RFI, AHRI stated that DOE’s UECs derived for the 2012 rule might be

TABLE III–1—NATIONAL UEC ESTIMATES (kWh/Year) FOR CRAC SYSTEMS 1

Current federal standard ASHRAE Standard 90.1–2019 Condenser system type Airflow Current net sensible configuration cooling capacity NSenCOP UEC (kwh) NSenCOP UEC (kwh)

Air-cooled ...... Downflow ...... <65,000 Btu/h ...... 2.62 27,411 2.70 26,599 ≥65,000 Btu/h and 2.50 102,762 2.58 99,575 <240,000 Btu/h. ≥240,000 Btu/h and 2.26 246,011 2.36 235,587 <760,000 Btu/h. Upflow, ducted ...... <65,000 Btu/h ...... 2.65 27,100 2.67 26,897 ≥240,000 Btu/h and 2.26 247,104 2.33 238,620 <760,000 Btu/h. Upflow, non-ducted ..... <65,000 Btu/h ...... 2.09 34,362 2.16 33,248 ≥65,000 Btu/h and 1.99 129,097 2.04 125,933 <240,000 Btu/h. ≥240,000 Btu/h and 1.79 310,606 1.89 294,172 <760,000 Btu/h. Water-cooled ...... Downflow ...... <65,000 Btu/h ...... 2.73 24,726 2.82 23,850 ≥65,000 Btu/h and 2.63 92,123 2.73 88,749 <240,000 Btu/h. ≥240,000 Btu/h and 2.54 208,727 2.67 198,564 <760,000 Btu/h. Upflow, ducted ...... <65,000 Btu/h ...... 2.77 24,280 2.79 24,106 ≥240,000 Btu/h and 2.56 207,096 2.64 200,821 <760,000 Btu/h. Upflow, non-ducted ..... <65,000 Btu/h ...... 2.25 29,891 2.43 27,677 ≥65,000 Btu/h and 2.17 112,169 2.32 104,433 <240,000 Btu/h. ≥240,000 Btu/h and 2.09 254,888 2.20 240,985 <760,000 Btu/h. Water-cooled with fluid Downflow ...... <65,000 Btu/h ...... 2.68 15,443 2.77 14,885 economizer. ≥65,000 Btu/h and 2.59 57,537 2.68 55,390 <240,000 Btu/h. ≥240,000 Btu/h and 2.50 129,787 2.61 123,819 <760,000 Btu/h. Upflow, ducted ...... <65,000 Btu/h ...... 2.72 15,159 2.74 15,048 ≥240,000 Btu/h and 2.51 128,753 2.58 125,259 <760,000 Btu/h. Upflow, non-ducted ..... <65,000 Btu/h ...... 2.21 18,657 2.35 17,546 ≥65,000 Btu/h and 2.13 70,022 2.24 66,271 <240,000 Btu/h. ≥240,000 Btu/h and 2.05 158,416 2.12 152,438 <760,000 Btu/h. Glycol-cooled ...... Downflow ...... <65,000 Btu/h ...... 2.43 24,671 2.56 23,419 ≥65,000 Btu/h and 2.15 101,844 2.24 97,297 <240,000 Btu/h. ≥240,000 Btu/h and 2.11 227,098 2.21 215,794 <760,000 Btu/h. Upflow, ducted ...... <65,000 Btu/h ...... 2.47 24,272 2.53 23,696 ≥65,000 Btu/h and 2.19 99,975 2.21 98,618 <240,000 Btu/h. ≥240,000 Btu/h and 2.11 226,021 2.18 218,764 <760,000 Btu/h.

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TABLE III–1—NATIONAL UEC ESTIMATES (kWh/Year) FOR CRAC SYSTEMS 1—Continued

Current federal standard ASHRAE Standard 90.1–2019 Condenser system type Airflow Current net sensible configuration cooling capacity NSenCOP UEC (kwh) NSenCOP UEC (kwh)

Upflow, non-ducted ..... <65,000 Btu/h ...... 2.03 29,679 2.08 28,823 ≥65,000 Btu/h and 1.77 123,833 1.90 114,708 <240,000 Btu/h. ≥240,000 Btu/h and 1.73 275,668 1.81 263,483 <760,000 Btu/h. Glycol-cooled with fluid Downflow ...... <65,000 Btu/h ...... 2.39 19,813 2.51 18,866 economizer. ≥65,000 Btu/h and 2.11 81,668 2.19 78,312 <240,000 Btu/h. ≥240,000 Btu/h and 2.06 182,034 2.15 174,414 <760,000 Btu/h. Upflow, ducted ...... <65,000 Btu/h ...... 2.43 19,567 2.48 19,094 ≥65,000 Btu/h and 2.14 80,142 2.16 79,400 <240,000 Btu/h. ≥240,000 Btu/h and 2.07 182,034 2.12 176,882 <760,000 Btu/h. Upflow, non-ducted ..... <65,000 Btu/h ...... 1.99 23,796 2.00 23,677 ≥65,000 Btu/h and 1.73 99,135 1.82 94,232 <240,000 Btu/h. ≥240,000 Btu/h and 1.69 221,888 1.73 216,757 <760,000 Btu/h. 1 The air-cooled, upflow ducted, >65,000 Btu/h and <240,000 Btu/h; water-cooled, upflow ducted, >65,000 Btu/h and <240,000 Btu/h; and water-cooled with fluid economizer, upflow ducted, >65,000 Btu/h and <240,000 Btu/h equipment classes are not included in this table, as the ASHRAE Standard 90.1–2019 levels for these equipment classes are equivalent to the current Federal standard.

2. Air-Cooled, Three-Phase, Small ASHRAE Standard 90.1–2019 level TABLE III–2—UNIT ENERGY CONSUMP- Commercial Package AC and HP (<65 K) relative to the current Federal baseline, TION OF SPLIT-SYSTEM AIR CONDI- Equipment DOE used the cooling UECs that were TIONERS AND HEAT PUMPS a. Equipment Classes and Analytical developed for the same kind of split systems in the July 2015 final rule. 80 Scope Three- Three- FR 42614, 42625 (July 17, 2015). The phase, phase, In response to the ASHRAE trigger at UECs in the July 2015 final rule came air-cooled air-cooled 42 U.S.C. 6313(a)(6)(A), DOE conducted split-sys- from the national impact analysis of a Efficiency Level tem air split-sys- an analysis of energy savings potential direct final rule for residential central condi- tem heat for two equipment classes of air-cooled, pumps air conditioners and heat pumps tioners <65,000 three-phase, small commercial package published June 27, 2011 (76 FR 37408) <65,000 Btu/h Btu/h AC and HP (<65 K) equipment: (1) Air- (June 2011 DFR), specifically the UECs cooled, three-phase, split-system air for residential split-system equipment Annual Energy Use conditioners less than 65,000 Btu/h, and that were used in commercial buildings. (kWh) (2) air-cooled, three-phase, split-system (EERE–2011–BT–STD–0011–0011) In heat pumps less than 65,000 Btu/h. the July 2015 final rule, DOE accounted Federal Baseline ...... 2,701 2,660 b. Efficiency Levels for variability by climate and building ASHRAE Standard type by using estimates of the Full Load 90.1–2019 ...... 2614 2,502 DOE analyzed the energy savings Equivalent Operating Hours (FLEOH) potential of adopting the post-2023 for cooling and heating equipment from Three-Phase CAC/HP Issue 2: DOE ASHRAE Standard 90.1–2019 levels for a Pacific Northwest National Laboratory requests comment on its approach to air-cooled, three-phase, small 25 report. In the July 2015 final rule, DOE estimate the energy use of air-cooled, commercial package AC and HP (<65 K) reviewed the heating loads that were three-phase, small commercial package classes that currently have a Federal used to determine heating energy use for AC and HP (<65 K). standard and have an ASHRAE the June 2011 DFR and determined that Standard 90.1–2019 standard more the heating loads were small (less than B. Shipments stringent than current Federal 500 kWh/year) and, therefore, did not standards. For each equipment class, include any energy savings due to the DOE uses shipment projections by energy savings are measured relative to increase in HSPF for this equipment in equipment class to calculate the the baseline (i.e., current Federal the July 2015 final rule. 80 FR 42614, national impacts of standards on energy standard for that class). 42625 (July 17, 2015). DOE maintained consumption, as well as net present value and future manufacturer cash c. Annual Energy Use Results that approach to develop UECs in its current analysis for this rulemaking. flows. DOE shipments projections The energy use analysis provides The UECs for split-system air typically are based on available estimates of the annual energy conditioners and split-system heat historical data broken out by equipment. consumption of air-cooled, three-phase, pumps are shown in Table III–2. Current sales estimates allow for a more small commercial package AC and HP accurate model that captures recent (<65 K), at the current Federal baseline 25 See Appendix D of the 2000 Screening Analysis trends in the market. and at the ASHRAE Standard 90.1–2019 for EPACT-Covered Commercial HVAC and Water- level. To estimate the savings of the Heating Equipment. (EERE–2006–STD–0098–0015).

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1. Computer Room Air Conditioners (AHRI, No. 7 at p. 5) Trane In comments in the September 2019 In the September 2019 NODA/RFI, recommended using the definitions of NODA/RFI, AHRI recommended using DOE performed a ‘‘bottom-up’’ ‘‘computer room’’ in ASHRAE Standard ASHRAE Datacom Series Book 2, ‘‘IT calculation to estimate CRAC shipments 90.1, the International Energy Equipment Power Trends,’’ third based on the cooling demand required Conservation Code (IECC), and the CFR, edition, published in 2018, which from CRAC-cooled data centers. Where rather than use a threshold of 10 servers, shows power consumption trends for all possible, DOE has incorporated data and to determine whether CRACs should be types of IT equipment through 2026. information received in comments to used for cooling. (Trane, No. 5 at p. 2) AHRI noted that that source is what the that document to better inform its Regarding DOE’s assumption that industry uses to estimate server power, analysis. DOE’s approach in this buildings with a central chiller or expectations of future server stock, and document estimates total annual district water system would not utilize energy use in many different types of shipments for the entire CRAC market a CRAC, AHRI stated that edge data centers. (AHRI, No. 7 at p. 6) Trane and then uses market share data to computing centers 29 may use a chilled also suggested using the same source for estimate shipments for ASHRAE water system that may also use a CRAC projecting future server power Standard 90.1–2019 triggered for cooling. (AHRI, No. 7 at pgs. 6–7) consumption. (Trane, No. 5 at p. 2) In this analysis, DOE used estimates equipment classes. For this RFI/NODA, DOE adjusted its DOE’s shipments model first assumptions for identifying data centers for server power draw for different IT estimates the installed CRAC base stock in CBECS 2012 that would utilize applications matched to CBECS building type based on ASHRAE by equipment size from information on CRACs. DOE is unable to use rack Datacom Series Book 2, ‘‘IT Equipment data centers in the 2012 Commercial counts or ‘‘kW per rack’’ to identify data Power Trends.’’ 32 For volume servers Business Energy Consumption Survey centers in CBECS 2012 because this used in office buildings, DOE assumed (CBECS).26 CBECS identifies buildings information is not recorded in the a typical power consumption of 575 W that contain data centers, the number of survey. CBECS 2012 provides a variable based on the typical heat load for a servers in the data center, and as to whether or not the building has a business analytics 2U server.33 For associated square footage. CBECS does data center. In this RFI/NODA, DOE volume servers used in buildings not specifically inquire about the assumed that any building with a data identified as laboratories, DOE used a presence of CRACs. center, regardless of the building’s main typical power consumption of 1150 W In the September 2019 NODA/RFI, cooling system, would use a CRAC, in based on the typical heat load for a DOE assumed any building identified as order to account for the use of CRACs scientific computing 2U server. DOE having a data center in CBECS 2012 that in edge computing centers and to align used a multiplier of 1.265 to account for did not have a central chiller or district with the ASHRAE Standard 90.1 the heating load due to network devices chilled water system would be serviced definition of a ‘‘computer room’’. connected to servers within the data by a CRAC. DOE assumed that a CRAC Issue 3: DOE seeks comment on center based on the LBNL data center building with a central chiller or district its methodology for identifying data report.34 The LBNL data center report chilled water system would use a centers within CBECS 2012. assigned mid-range and high-end computer room air handler (CRAH) and After identifying buildings with data servers, which have estimated power not a CRAC for its data center cooling, centers in CBECS 2012, DOE then consumptions of 2 kW and 12 kW, and, thus, such building was not estimated the CRAC cooling capacity respectively, to localized, mid-tier, and included in the analysis.27 Additionally, required by estimating the total heat high-end data centers. To account for DOE assumed buildings that contained generated from servers, networks, and the higher cooling needs of these servers 10 or more servers (but did not storage equipment within data centers. with high power consumption, DOE explicitly identify as having a data In the September 2019 NODA/RFI, DOE assumed that 1 percent of servers in center) and did not have a central used estimates from the Lawrence CBECS 2012 were high end, and that 6 chiller or district chilled water system Berkeley National Laboratory (LBNL) percent were mid-range. The LBNL data would also be serviced by CRAC units. data center report to estimate average center report did not provide estimates In response to the September 2019 power consumption of volume servers, NODA/RFI, DOE received a number of of the high-end and mid-range server network equipment, and storage stock; however, it did provide estimates comments on DOE’s assumptions for equipment.30 Servers that were not in a identifying data centers that would be of total electricity consumption by data center were assumed to only have server class. The high-end and mid- serviced by CRACs. AHRI stated that network equipment, while servers in a DOE’s methodology for using server range classes represent about 30 percent data center had both network and of electricity consumption (when count to identify data centers could be storage equipment, and thus a higher improved by using either counts by 31 power draw. DOE assumed 100 32 28 ASHRAE, IT Equipment Power Trends, Third ‘‘rack’’ or estimates for ‘‘kW per rack.’’ percent of the power draw was Edition, ASHRAE Datacom Series: Book 2 (2018). converted into heat exhaust that would 33 In Table 4.4 of the ASHRAE IT Equipment 26 U.S. Department of Energy—Energy need to be removed by a CRAC. Power Trends book, an example of the server heat Information Administration, 2012 CBECS Survey by workload is given. 575 W represents the Data (Last accessed March 9, 2020) (Available at: workloads for analytics, storage, and visualization https://www.eia.gov/consumption/commercial/ 29 ‘‘Edge’’ data centers are small-scale data centers and audio. 550 Watts is the workload for business data/2012/). This is the most recent release of built closer to the end user, thereby reducing the processing. In non-scientific buildings, these CBECS. time it takes for a server to respond to a user’s workloads are likely the most common. Therefore, 27 A ‘‘CRAH’’ is a specialized air handling unit request. DOE used 575 W for the servers in most data designed for use in data centers with an internal 30 Shehabi, A., Smith, S.J., Horner, N., Azevedo, centers. cooling coil supported by centralized chilled water I., Brown, R., Koomey, J., Masanet, E., Sartor, D., 34 Shehabi, A., Smith, S.J., Horner, N., Azevedo, system. In contrast, CRACs contain a cooling coil Herrlin, M. and Lintner, W., United States data I., Brown, R., Koomey, J., Masanet, E., Sartor, D., filled with a refrigerant. center energy usage report (2016), Lawrence Herrlin, M. and Lintner, W., United States data 28 Server racks are racks designed to hold and Berkeley National Laboratory, LBNL–1005775 center energy usage report (2016), Lawrence organize multiple servers and supporting (Available at: https://datacenters.lbl.gov/sites/all/ Berkeley National Laboratory, LBNL–1005775 information technology (IT) equipment. The files/DataCenterEnergyReport2016_0.pdf) (Last (Available at: https://datacenters.lbl.gov/sites/all/ amount of energy produced by a server rack can be accessed June 6, 2019). files/DataCenterEnergyReport2016_0.pdf) (Last measured in terms of kW per rack. 31 Id. accessed June 6, 2019).

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removing unbranded servers, which are without central chillers were assumed 2018 and market shares broken out by used in hyperscale data centers that are to have CRACs, and the cooling capacity the 30 Federal equipment classes. not considered in this report as they do of the CRAC units were based on the Accordingly, for this analysis, DOE not used CRACs). By assigning 1 percent three representative capacities analyzed calibrated the stock of CRACs in CBECS of the servers in CBECS to high-end and in the May 2012 final rule. 77 FR 28928, 2012 to an amount that would be equal 6 percent to mid-range, the total CRAC 28954 (May 16, 2012). For CRACs with to the number of 2012 shipments cooling required by those servers is a cooling capacity of less than 65,000 multiplied by the average lifetime of a approximately 30 percent of the total Btu/h, a 3-ton unit was assigned as the CRAC (i.e., 15 years). In this model, calculated for all CBECS data centers. representative capacity; cooling DOE assumed an N + 1 redundancy in In the September 2019 NODA/RFI, capacities from 65,000 Btu/h to 240,000 this NODA/RFI for any data center that DOE calculated the cooling load for Btu/h were assigned a representative is larger than 1,501 square feet and has each data center by multiplying the total capacity of 11 tons, and air conditioners a cooling load that requires a CRAC that server power draw by the number of greater than or equal to 240,000 Btu/h is larger than 65,000 Btu/h. All data servers in each CBECS-identified and less than 760,000 Btu/h were centers with a cooling load less than building and then applying an oversize assigned a 24-ton unit. 65,000 Btu/h were assigned one CRAC factor of 1.3. Research has shown that The final part of the stock without redundancy. For buildings that oversizing of the cooling load gives the methodology is estimating the had more than 20 servers but did not data center operator the flexibility to redundancy requirements of the data identify as having a data center in add more servers (and thus more heat) center which reduces the per-unit CBECS, a CRAC without redundancy without having to increase the size of energy use and increases the total was used, regardless of the cooling load. the cooling system.35 84 FR 48006, estimated shipment of CRACs. As DOE was able to calibrate shipments 48028 (Sept. 11, 2019). Redundancy varies significantly across without using 2N redundancy, DOE did In response to the September 2019 data centers, ranging from having one not consider those levels of redundancy NODA/RFI, Trane stated that redundant extra CRAC unit (N + 1 redundancy) to in this analysis. As in the May 2012 or oversized units, if used, would be having complete redundancy (2N final rule, DOE assumed the average closely tied to specific needs of the redundancy).37 sensible cooling load on a CRAC unit system they are cooling, so the In the September 2019 NODA/RFI, would be 65 percent of the unit’s commenter does not recommend using DOE assigned redundancy depending sensible capacity, factoring in operation broad assumptions for CRAC oversizing. on the data center square footage of redundant CRAC units, oversizing, (Trane, No. 5 at p. 2) AHRI stated that provided in CBECS 2012. Categories 1– and the diversity in server loads. DOE is likely overestimating energy use 4 (data centers under 10,000 square feet) In the September 2019 NODA/RFI, by using an oversize factor and were given N + 1 redundancy; category DOE estimated future CRAC shipments recommended DOE not oversize 5 (greater than 10,000+ sq. ft.) was in the no-new standards case (i.e., equipment in its energy use analysis. assigned 2N redundancy. DOE assumed shipments in the absence of an amended (AHRI, No. 7 at p. 5) Based on that servers that were not in a data standard) by estimating future cooling information gathered by Red Car center do not have cooling redundancy. demand for CRAC-cooled data centers Analytics, the CA IOUs stated that 84 FR 48006, 48028 (Sept. 11, 2019). using projected trends in data center oversizing factors of 20 to 30 percent are In response to the September 2019 growth. DOE used two variables to common for CRACs. (CA IOUs, No. 6 at NODA/RFI, AHRI stated that change the future server stock: (1) A 10- p. 3). redundancy can be N + 1 or 2N, but percent reduction in the number of In response, DOE continues to believe argued that it will not be operational all servers in small data centers in 2050 that oversizing is occurring in data the time. (AHRI, No. 7 at p. 5) Trane (the final year of the shipments period center settings, based upon the available states that the level of redundancy is for that analysis) and (2) a doubling of literature and the comment of the CA dependent on the size and need of the the power per server by 2050. DOE then IOUs. However, DOE is taking account data center. (Trane, No. 5 at p. 2) The calculated the stock using the same of other commenters’ suggestions that CA IOUs recommended DOE base the approach used to calculate stock in the Department’s previous oversize breakout between N + 1 and 2N 2012. DOE then used model counts from factor of 1.3 may have been too high. redundancy on total load (with a cut-off the CCMS database to determine market Accordingly, for this analysis, based on of 50 cooling tons) and load density shares by equipment class. 84 FR 48006, AHRI’s and Trane’s comments, DOE has (with a cut-off of 100 watts/square foot 48028 (Sept. 11, 2019). 2 AHRI commented that DOE’s total adjusted the oversizing factor to 1.2, (ft )). The CA IOUs suggested that load shipments estimates for 2012 were consistent with the lower estimate densities above this threshold would reasonable. (AHRI, No.7 at p. 6) provided by the CA IOUs. have higher redundancy. (CA IOUs, No. However, AHRI argued that DOE CRAC Issue 4: DOE requests comment 6 at pp. 3–4). estimates based on model counts in the on its server power consumption Through a confidential data CCMS database significantly estimates and any information or data submission, AHRI provided DOE with a overestimated shipments of the water- on expectations of future server stock CRAC shipments time series from 2012– cooled and glycol-cooled equipment and energy use in small data centers. classes. (AHRI, No 7 at p. 3). One ton of cooling can remove 3.5 kW Schneider Electric (Available at: https:// 36 www.apcdistributors.com/white-papers/Cooling/ In this analysis, DOE used the of heat from a space. All data centers WP-25%20Calculating%20Total%20Cooling confidential shipments data provided by %20Requirements%20for%20Data%20Centers.pdf) AHRI to calibrate its shipment model to 35 Rasmussen, N., Calculating Total Cooling (Last accessed June 6, 2019). Requirements for Data Centers—White paper 25. 37 Shehabi, A., Smith, S.J., Horner, N., Azevedo, produce a revised breakdown by Schneider Electric (Available at: https:// I., Brown, R., Koomey, J., Masanet, E., Sartor, D., equipment class. DOE then used a stock www.apcdistributors.com/white-papers/Cooling/ Herrlin, M. and Lintner, W., United States data turnover model to project shipments WP-25%20Calculating%20Total%20Cooling center energy usage report (2016) Lawrence over the shipments analysis period %20Requirements%20for%20Data%20Centers.pdf) Berkeley National Laboratory, LBNL–1005775 (Last accessed June 6, 2019). (Available at: https://datacenters.lbl.gov/sites/all/ assuming a constant annual growth in 36 Rasmussen, N., Calculating Total Cooling files/DataCenterEnergyReport2016_0.pdf) (Last stock, calibrated using confidential Requirements for Data Centers—White paper 25. accessed June 6, 2019). shipments data provided by AHRI,

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within a given cooling capacity analysis period as shown in Table equipment size. Total shipments are III–3. projected to grow slightly over the

TABLE III–3—ESTIMATED CRAC SHIPMENTS BY SCOP NET SENSIBLE COOLING CAPACITY

≥65,000 Btu/h and ≥240,000 Btu/h and Total <65,000 Btu/h <240,000 Btu/h <760,000 Btu/h shipments

2020 Shipments ...... 3,208 2,132 3,190 8,530 2052 Shipments ...... 2,634 3,650 3,178 9,462

The AHRI market share data provided three-phase equipment), and Three-Phase CAC/HP Issue 3: DOE to DOE was broken out by the 30 commercial floor space projections from requests comment on it approach to currently defined Federal equipment the 2014 Annual Energy Outlook (AEO estimate the shipments of air-cooled, classes. DOE assumed upflow market 2014).40 The shipments model began three-phase, small commercial package share would be evenly split between the with the 1999 estimates and projected AC and HP (<65 K) equipment. upflow ducted and upflow non-ducted shipments within 2000–2010 using the equipment classes. As the AHRI data year-over-year growth rate from U.S. C. No-New-Standards-Case Efficiency does not include market share for Census data. Shipments in 2011 Distribution horizontal-flow, ceiling-mounted, and shipments were estimated using the The no-new-standards case efficiency air-cooled with fluid economizer CRAC AHRI shipments data. From 2012 equipment classes, DOE was unable to through 2049 (the end of the analysis distribution is used to establish the disaggregate savings for these classes. period) shipments were based on the market share of each efficiency level in CRAC Issue 5: DOE requests growth rate of commercial floor space the case where there is no new or shipments data on horizontal-flow, from AEO 2014. amended standard. DOE is unaware of ceiling-mounted, and air-cooled with In the current analysis, DOE updated available market data that reports CRAC fluid economizer CRAC equipment the shipments model in two ways: (1) efficiency in terms of NSenCOP that can classes. The shipments estimates from 2012– be used to determine the no-new- standards case efficiency distribution. 2. Air-Cooled, Three-Phase, Small 2018 were updated using the growth Commercial Package AC and HP (<65 K) rates from the most recent AHRI data,41 For this analysis, DOE relied on DOE’s Equipment and (2) the projections from 2019 Compliance Certification Database for through 2054 were based on the CRACs which reports efficiency in DOE based shipments estimates for commercial floor space projections from terms of SCOP. DOE applied the air-cooled, three-phase, small AEO 2020.42 The shipments estimates crosswalk methodology discussed in commercial package AC and HP (<65 K) for the compliance year, end year, and section II.A.1 of this document to equipment on the model developed for select years in-between can be found in translate each model’s reported SCOP the July 2015 final rule. 80 FR 42614, Table III–4. into NSenCOP. 42629–42630 (July 17, 2015). As explained more fully in that document, DOE estimated the no-new-standards TABLE III–4—SHIPMENTS OF SPLIT- shipments projections in the July 2015 case efficiency distribution for each SYSTEM, AIR-COOLED, THREE- final rule relied on four data sources: A CRAC equipment class using model PHASE, AIR CONDITIONERS AND 1999 estimate of shipments from the counts from DOE’s Compliance 2000 Screening Analysis for EPACT- HEAT PUMPS <65,000 BTU/H Certification Database.43 DOE calculated Covered Commercial HVAC and Water- Year AC HP the fraction of models that are above the Heating Equipment (EERE–2006–STD– current Federal baseline and below the 0098–0015), data from the U.S. Census 2025 ...... 116,300 35,045 ASHRAE Standard 90.1–2019 level and Bureau for central AC and HP 2030 ...... 122,300 36,853 assigned this to the Federal baseline. All shipments (for both single-phase and 2035 ...... 128,503 38,721 models that are at or above that 38 three-phase equipment), data from 2040 ...... 134,418 40,504 ASHRAE Standard 90.1–2019 are 39 AHRI (for both single-phase and 2045 ...... 140,464 42,326 assigned to the ASHRAE level. The no- 2050 ...... 146,648 44,189 new-standard case distribution for 38 U.S. Census Bureau, Current Industrial Reports 2054 ...... 151,704 45,713 for Refrigeration, Air Conditioning, and Warm Air CRACs can be found in Table III–5. Heating Equipment, MA333M (Available at: http:// 40 2014 Annual Energy Outlook, Energy www.census.gov/manufacturing/cir/historical_data/ Information Administration, Commercial Sector ma333m/index.html). Key Indicators (Available at: https://www.eia.gov/ 39 AHRI, HVACR & Water Heating Industry outlooks/aeo/data/browser/#/?id=5- Statistical Profile (2012) (Available at: http:// AEO2014&cases=ref2014®ion=0-0). www.ari.org/site/883/Resources/Statistics/ 41 AHRI Historical Data: Central Air Conditioners AHRIIndustry-Statistical-Profile). See also AHRI and Heat Pumps (Available at: http://ahrinet.org/ 43 Monthly Shipments: http://www.ari.org/site/498/ Resources/Statistics/Historical-Data/Central-Air- Available at: https://www.regulations.doe.gov/ _ _ _ Resources/Statistics/Monthly-Shipments; especially Conditioners-and-Air-Source-Heat-Pumps) (Last certification-data/CCMS-4-Air Conditioners and ______December 2013 release: http://www.ari.org/App_ accessed July 9, 2020). Heat Pumps - Computer Room Air Content/ahri/files/Statistics/ 42 2020 Annual Energy Outlook, Energy Conditioners.html#q=Product_Group_ Monthly%20Shipments/2013/December2013.pdf; Information Administration, Commercial Sector s%3A%22Air%20Conditioners May 2014 release: http://www.ari.org/App_Content/ Key Indicators (Available at: https://www.eia.gov/ %20and%20Heat%20Pumps%20- ahri/files/Statistics/Monthly%20Shipments/2014/ outlooks/aeo/data/browser/#/?id=5-AEO2020& %20Computer%20Room%20 May2014.pdf. cases=ref2020&sourcekey=0). Air%20Conditioners%22.

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TABLE III–5—NO-NEW-STANDARDS CASE EFFICIENCY DISTRIBUTION FOR CRACS 1

ASHRAE Federal 90.1–2019 Condenser system type Airflow configuration Current net sensible cooling capacity baseline level (%) (%)

Air-cooled ...... Downflow ...... <65,000 Btu/h ...... 2 98 ≥65,000 Btu/h and <240,000 Btu/h .... 22 78 ≥240,000 Btu/h and <760,000 Btu/h .. 20 80 Upflow, ducted ...... <65,000 Btu/h ...... 0 100 ≥240,000 Btu/h and <760,000 Btu/h .. 4 96 Upflow, non-ducted ...... <65,000 Btu/h ...... 4 96 ≥65,000 Btu/h and <240,000 Btu/h .... 11 89 ≥240,000 Btu/h and <760,000 Btu/h .. 23 77 Water-cooled ...... Downflow ...... <65,000 Btu/h ...... 11 89 ≥65,000 Btu/h and <240,000 Btu/h .... 15 85 ≥240,000 Btu/h and <760,000 Btu/h .. 24 76 Upflow, ducted ...... <65,000 Btu/h ...... 0 100 ≥240,000 Btu/h and <760,000 Btu/h .. 13 87 Upflow, non-ducted ...... <65,000 Btu/h ...... 11 89 ≥65,000 Btu/h and <240,000 Btu/h .... 21 79 ≥240,000 Btu/h and <760,000 Btu/h .. 27 73 Water-cooled with fluid economizer ... Downflow ...... <65,000 Btu/h ...... 2 98 ≥65,000 Btu/h and <240,000 Btu/h .... 13 87 ≥240,000 Btu/h and <760,000 Btu/h .. 38 62 Upflow, ducted ...... <65,000 Btu/h ...... 2 98 ≥240,000 Btu/h and <760,000 Btu/h .. 13 87 Upflow, non-ducted ...... <65,000 Btu/h ...... 8 92 ≥65,000 Btu/h and <240,000 Btu/h .... 16 84 ≥240,000 Btu/h and <760,000 Btu/h .. 20 80 Glycol-cooled ...... Downflow ...... <65,000 Btu/h ...... 57 43 ≥65,000 Btu/h and <240,000 Btu/h .... 31 69 ≥240,000 Btu/h and <760,000 Btu/h .. 36 64 Upflow, ducted ...... <65,000 Btu/h ...... 20 80 ≥65,000 Btu/h and <240,000 Btu/h .... 6 94 ≥240,000 Btu/h and <760,000 Btu/h .. 30 70 Upflow, non-ducted ...... <65,000 Btu/h ...... 20 80 ≥65,000 Btu/h and <240,000 Btu/h .... 38 62 ≥240,000 Btu/h and <760,000 Btu/h .. 30 70 Glycol-cooled with fluid economizer ... Downflow ...... <65,000 Btu/h ...... 57 43 ≥65,000 Btu/h and <240,000 Btu/h .... 31 69 ≥240,000 Btu/h and <760,000 Btu/h .. 31 69 Upflow, ducted ...... <65,000 Btu/h ...... 10 90 ≥65,000 Btu/h and <240,000 Btu/h .... 8 92 ≥240,000 Btu/h and <760,000 Btu/h .. 33 67 Upflow, non-ducted ...... <65,000 Btu/h ...... 2 98 ≥65,000 Btu/h and <240,000 Btu/h .... 30 70 ≥240,000 Btu/h and <760,000 Btu/h .. 27 73 1 The air-cooled, upflow ducted, >65,000 Btu/h and <240,000 Btu/h; water-cooled, upflow ducted, >65,000 Btu/h and <240,000 Btu/h; and water-cooled with fluid economizer, upflow ducted, >65,000 Btu/h and <240,000 Btu/h equipment classes are not included in this table, as the ASHRAE Standard 90.1–2019 levels for these equipment classes are equivalent to the current Federal standard.

CRAC Issue 6: DOE requests equipment, DOE estimated the market their percentage by the Federal or the efficiency data for CRACs in terms of share of equipment at the current ASHRAE Standard 90.1–2019 efficiency NSenCOP that can be used to estimate Federal baseline and the ASHRAE level. The fraction of the market that the no-new-standards case efficiency efficiency level using DOE’s Compliance meets or exceeds the ASHRAE Standard distribution. Certification Database. Table III–6 and 90.1–2019 level is attributed to the For air-cooled, three-phase, small Table III–7 show the model counts and ASHRAE Standard 90.1–2019 level. commercial package AC and HP (<65 K)

TABLE III–6—NO-NEW-STANDARDS CASE EFFICIENCY DISTRIBUTION FOR SPLIT-SYSTEM AIR CONDITIONERS

EL Model count % by EL

Federal Baseline ...... 10,268 23 ASHRAE 90.1–2019 ...... 34,580 77

TABLE III–7—NO-NEW-STANDARDS CASE EFFICIENCY DISTRIBUTION FOR SPLIT-SYSTEM HEAT PUMPS

EL Model count % by EL

Federal Baseline ...... 6,438 57

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TABLE III–7—NO-NEW-STANDARDS CASE EFFICIENCY DISTRIBUTION FOR SPLIT-SYSTEM HEAT PUMPS—Continued

EL Model count % by EL

ASHRAE 90.1–2019 ...... 4,858 43

For assessing the energy savings that it allows for a failure rate that a compliance date of an amended potential of adopting ASHRAE Standard changes over time. DOE used a mean Federal standard relative to the effective 90.1–2019 levels, DOE assumed lifetime of 19 years for air conditioners date of January 1, 2023. shipments at the Federal baseline and 16.2 years for heat pumps. These If DOE were to prescribe standards efficiency would most likely roll up to are the same values that were used in more stringent than the efficiency levels the ASHRAE Standard 90.1–2019 level. the July 2015 final rule. 80 FR 42614, contained in ASHRAE Standard 90.1– CRAC Issue 7: DOE seeks input on its 42627 (July 17, 2015). 2019, EPCA dictates that any such determination of the no-new-standards Three-Phase CAC/HP Issue 5: DOE standard will become effective for case distribution of efficiencies for seeks comment on the approach of using equipment manufactured on or after a CRACs. a Weibull probability distribution with date which is four years after the date Three-Phase CAC/HP Issue 4: DOE an average lifetime of 19 years for air of publication of a final rule in the seeks input on its determination of the conditioners and 16.2 years for heat Federal Register. (42 U.S.C. no-new-standards case distribution of pumps. DOE also requests data or 6313(a)(6)(D)) For equipment classes efficiencies for air-cooled, three-phase, information which can be used to where DOE is acting under its 6-year small commercial package AC and HP inform the equipment lifetime for air- lookback authority, if DOE were to (<65 K) equipment. cooled, three-phase, small commercial adopt more-stringent standards, EPCA package AC and HP (<65 K). D. Other Analytical Inputs states that any such standard shall apply 2. Compliance Dates and Analysis to equipment manufactured after a date 1. Equipment Lifetime Period that is the latter of the date three years DOE defines ‘‘equipment lifetime’’ as If DOE were to prescribe energy after publication of the final rule the age at which a unit is retired from conservation standards at the efficiency establishing such standard or six years service. For the September 2019 NODA/ levels contained in ASHRAE Standard after the effective date for the current RFI, DOE used a 15-year lifetime for all 90.1–2019, EPCA states that any such standard. (42 U.S.C. 6313(a)(6)(C)(iv)) CRAC equipment classes based on the standard shall become effective on or However, as explained in sections III.F lifetime used in the May 2012 final rule. after a date that is two or three years and IV of this document, DOE has 84 FR 48006. 48030 (Sept. 11, 2019) (depending on the equipment type or tentatively concluded that it lacks the (citing the May 2012 final rule at 77 FR size) after the effective date of the clear and convincing evidence that 28928, 28958 (May 16, 2012)). In applicable minimum energy efficiency would be required to adopt more- response to the September 2019 NODA/ requirement in the amended ASHRAE stringent standard levels. RFI, AHRI and Trane agreed that 15 standard. (42 U.S.C. 6313(a)(6)(D)). For purposes of calculating the years was a reasonable average lifetime. ASHRAE Standard 90.1–2019 does national energy savings (NES) for the (AHRI, No. 7 at p.7; Trane, No. 5 at p. not list an effective date for CRAC equipment in this evaluation, DOE used 2) Accordingly, DOE maintains an levels. For estimating the energy savings a 30-year analysis period starting with equipment lifetime of 15 years for this potential of adopting ASHRAE Standard the assumed year of compliance listed analysis. 90.1-levels, DOE assumed a compliance in Table III–8 for equipment analyzed in For the other set of equipment under date of an amended Federal standard this NODA/RFI. This is the standard consideration, DOE based equipment relative to the publication of ASHRAE analysis period of 30 years that DOE lifetime on a retirement function in the Standard 90.1–2019 (i.e., October 23, typically uses in its NES analysis. For form of a Weibull probability 2019). equipment classes with a compliance distribution in its analysis of air-cooled, For air-cooled, three-phase, small date in the last six months of the year, three-phase, small commercial package commercial package AC and HP (<65 K), DOE starts its analysis period in the first AC and HP (<65 K). A Weibull ASHRAE Standard 90.1–2019 maintains full year after compliance. For example, distribution is a probability distribution ASHRAE Standard 90.1–2016 levels, if CRACs less than 65,000 Btu/h were to function that is commonly used to which are consistent with the current have a compliance date of October 23, measure failure rates. Its form is similar Federal standards, until January 1, 2023, 2021, the analysis period for calculating to an exponential distribution, which after which levels are changed, NES would begin in 2022 and extend to would model a fixed failure rate, except triggering DOE’s review. DOE assumed 2051.

TABLE III–8—APPROXIMATE COMPLIANCE DATE OF AN AMENDED ENERGY CONSERVATION STANDARD FOR TRIGGERED EQUIPMENT CLASSES

Approximate compliance date for adopting the Equipment class efficiency levels in ASHRAE Standard 90.1–2019

Computer Room Air Conditioners

Equipment with current NSCC <65,000 Btu/h ...... 10/23/2021 Equipment with current NSCC ≥65,000 and <240,000 Btu/h ...... 10/23/2022

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TABLE III–8—APPROXIMATE COMPLIANCE DATE OF AN AMENDED ENERGY CONSERVATION STANDARD FOR TRIGGERED EQUIPMENT CLASSES—Continued

Approximate compliance date for adopting the Equipment class efficiency levels in ASHRAE Standard 90.1–2019

Equipment with current NSCC ≥240,000 Btu/h and <760,000 Btu/h ...... 10/23/2022

Air-cooled, three-phase, small commercial package AC and HP (<65 K)

All Equipment Classes ...... 1/1/2025

E. Estimates of Potential Energy Savings analyzed. The potential energy savings cooled, three-phase, small commercial of adopting ASHRAE Standard 90.1– package AC and HP (<65 K), DOE estimated the potential site, 2019 levels are measured relative to the respectively. The reported energy primary, and full-fuel-cycle (FFC) current Federal standards. Table III–9 savings are cumulative over the period 15 energy savings in quads (i.e., 10 Btu) and Table III–10 show the potential in which equipment shipped in the 30- for adopting ASHRAE Standard 90.1– energy savings resulting from the year analysis continues to operate. 2019 within each equipment class analyses conducted for CRACs and air- TABLE III–9—POTENTIAL ENERGY SAVINGS OF ADOPTING ASHRAE STANDARD 90.1–2019 FOR CRACS 1

ASHRAE Site Primary FFC Condenser Current net sensible cooling efficiency level savings savings savings system type Airflow configuration capacity NSenCOP quads quads quads

Air-cooled ...... Downflow ...... <65,000 Btu/h ...... 2.70 0.0000 0.0000 0.0000 ≥65,000 Btu/h and <240,000 2.58 0.0011 0.0029 0.0030 Btu/h. ≥240,000 Btu/h and <760,000 2.36 0.0071 0.0185 0.0193 Btu/h. Upflow, ducted ...... <65,000 Btu/h ...... 2.67 0.0000 0.0000 0.0000 ≥240,000 Btu/h and <760,000 2.33 0.0001 0.0003 0.0003 Btu/h. Upflow, non-ducted ...... <65,000 Btu/h ...... 2.16 0.0000 0.0001 0.0001 ≥65,000 Btu/h and <240,000 2.04 0.0003 0.0007 0.0008 Btu/h. ≥240,000 Btu/h and <760,000 1.89 0.0014 0.0037 0.0039 Btu/h. Water-cooled ...... Downflow ...... <65,000 Btu/h ...... 2.82 0.0000 0.0000 0.0000 ≥65,000 Btu/h and <240,000 2.73 0.0001 0.0003 0.0003 Btu/h. ≥240,000 Btu/h and <760,000 2.67 0.0003 0.0007 0.0008 Btu/h. Upflow, ducted ...... <65,000 Btu/h ...... 2.79 0.0000 0.0000 0.0000 ≥240,000 Btu/h and <760,000 2.64 0.0000 0.0001 0.0001 Btu/h. Upflow, non-ducted ...... <65,000 Btu/h ...... 2.43 0.0001 0.0004 0.0004 ≥65,000 Btu/h and <240,000 2.32 0.0002 0.0005 0.0006 Btu/h. ≥240,000 Btu/h and <760,000 2.20 0.0001 0.0003 0.0003 Btu/h. Water-cooled with fluid econo- Downflow ...... <65,000 Btu/h ...... 2.77 0.0000 0.0000 0.0000 mizer. ≥65,000 Btu/h and <240,000 2.68 0.0000 0.0000 0.0000 Btu/h. ≥240,000 Btu/h and <760,000 2.61 0.0001 0.0002 0.0002 Btu/h. Upflow, ducted ...... <65,000 Btu/h ...... 2.74 0.0000 0.0000 0.0000 ≥240,000 Btu/h and <760,000 2.58 0.0000 0.0000 0.0000 Btu/h. Upflow, non-ducted ...... <65,000 Btu/h ...... 2.35 0.0000 0.0000 0.0000 ≥65,000 Btu/h and <240,000 2.24 0.0000 0.0000 0.0000 Btu/h. ≥240,000 Btu/h and <760,000 2.12 0.0000 0.0000 0.0000 Btu/h. Glycol-cooled ...... Downflow ...... <65,000 Btu/h ...... 2.56 0.0000 0.0000 0.0000 ≥65,000 Btu/h and <240,000 2.24 0.0001 0.0002 0.0002 Btu/h. ≥240,000 Btu/h and <760,000 2.21 0.0001 0.0003 0.0003 Btu/h. Upflow, ducted ...... <65,000 Btu/h ...... 2.53 0.0000 0.0000 0.0000 ≥65,000 Btu/h and <240,000 2.21 0.0000 0.0000 0.0000 Btu/h. ≥240,000 Btu/h and <760,000 2.18 0.0000 0.0000 0.0000 Btu/h. Upflow, non-ducted ...... <65,000 Btu/h ...... 2.08 0.0000 0.0000 0.0000

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TABLE III–9—POTENTIAL ENERGY SAVINGS OF ADOPTING ASHRAE STANDARD 90.1–2019 FOR CRACS 1—Continued

ASHRAE Site Primary FFC Condenser Current net sensible cooling efficiency level savings savings savings system type Airflow configuration capacity NSenCOP quads quads quads

≥65,000 Btu/h and <240,000 1.90 0.0001 0.0003 0.0003 Btu/h. ≥240,000 Btu/h and <760,000 1.81 0.0000 0.0001 0.0001 Btu/h. Glycol-cooled with fluid econo- Downflow ...... <65,000 Btu/h ...... 2.51 0.0000 0.0001 0.0001 mizer. ≥65,000 Btu/h and <240,000 2.19 ≤0.0003 0.0007 0.0007 Btu/h. ≥240,000 Btu/h and <760,000 2.15 0.0009 0.0022 0.0023 Btu/h. Upflow, ducted ...... <65,000 Btu/h ...... 2.48 0.0000 0.0000 0.0000 ≥65,000 Btu/h and <240,000 2.16 0.0000 0.0000 0.0000 Btu/h. ≥240,000 Btu/h and <760,000 2.12 0.0002 0.0004 0.0004 Btu/h. Upflow, non-ducted ...... <65,000 Btu/h ...... 2.00 0.0000 0.0000 0.0000 ≥65,000 Btu/h and <240,000 1.82 0.0003 0.0007 0.0008 Btu/h. ≥240,000 Btu/h and <760,000 1.73 0.0001 0.0003 0.0003 Btu/h. 1 The air-cooled, upflow ducted, >65,000 Btu/h and <240,000 Btu/h; water-cooled, upflow ducted, >65,000 Btu/h and <240,000 Btu/h; and water-cooled with fluid economizer, upflow ducted, >65,000 Btu/h and <240,000 Btu/h equipment classes are not included in this table, as the ASHRAE Standard 90.1–2019 levels for these equipment classes are equivalent to the current Federal standard.

TABLE III–10—POTENTIAL ENERGY SAVINGS FOR AIR-COOLED, THREE-PHASE, SMALL COMMERCIAL PACKAGED AC AND HP [<65 K]

Split-system, air conditioner Split-system, heat pump ASHRAE efficiency Level quads ASHRAE efficiency level quads

Site Energy Savings Estimate

Level 0—ASHRAE ...... 13.4 SEER2 ...... 0.0007 14.3 SEER2, 7.5 HSPF2 ...... 0.0017

Primary Energy Savings Estimate

Level 0—ASHRAE ...... 13.4 SEER2 ...... 0.0017 14.3 SEER2, 7.5 HSPF2 ...... 0.0044

FFC Energy Savings Estimate

Level 0—ASHRAE ...... 13.4 SEER2 ...... 0.0018 14.3 SEER2, 7.5 HSPF2 ...... 0.0047

F. Consideration of More-Stringent more stringent than the amended amended ASHRAE levels does not Energy Efficiency Levels ASHRAE Standard 90.1 levels for either require analysis of higher efficiency EPCA requires DOE to establish an CRACs or air-cooled, three-phase, small models because DOE’s analyses assume amended uniform national standard for commercial package AC and HP (<65 K) that a standards change only affects equipment classes at the minimum level equipment would result in significant shipments with efficiency lower than specified in the amended ASHRAE additional energy savings. the analyzed efficiency level (i.e., ‘‘roll- Standard 90.1 unless DOE determines, For CRACs, further energy savings up’’ shipments scenario). Additionally, by rule published in the Federal analysis would rely on market efficiency as discussed in section II.A.3 of this Register, and supported by clear and data in terms of the analyzed metric document, DOE’s crosswalk was used to convincing evidence, that adoption of a (i.e., NSenCOP). In order to determine confirm levels separately generated by uniform national standard more whether the adoption of an updated AHRI for inclusion in ASHRAE stringent than the amended ASHRAE metric for CRACs in ASHRAE Standard Standard 90.1–2019 (i.e., DOE was able Standard 90.1 for the equipment class 90.1 triggered DOE’s obligation under to compare its crosswalk to the would result in significant additional EPCA, DOE was required to perform a crosswalk conducted by industry). conservation of energy and is crosswalk between the Federal energy An estimation of energy savings technologically feasible and conservation standards and the potentials of energy efficiency levels economically justified. (42 U.S.C. amended ASHRAE levels. (See 42 more stringent than the amended 6313(a)(6)(A)(ii)(I)–(II)) As discussed in U.S.C. 6313(a)(6)(A)(i)) This crosswalk ASHRAE Standard 90.1 levels would the following paragraphs, because of required only that DOE translate the require developing efficiency data for uncertainty in estimated energy savings efficiency levels between the metrics at the entire market in terms of the resulting from the change in energy the baseline levels, and not all NSenCOP metric. This much broader efficiency metrics, DOE has tentatively efficiency levels currently represented crosswalk would require DOE to determined that it lacks clear and in the market (i.e., high efficiency translate the individual SCOP ratings to convincing evidence that standards levels). In addition, the analysis of the NSenCOP ratings for all models certified

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in DOE’s CCMS Database. As the range 10 CFR 430.32(c)(5)–(6). Currently, technology projections regarding energy of model efficiencies increases, so does manufacturers are permitted to make efficiency levels under the new metrics the number of different technologies representations under the SEER2 and for CRACs and air-cooled, three-phase, used to achieve such efficiencies. With HSPF2 representations metrics only if small commercial package AC and HP this increase in variation, there is an they certify to compliance to the 2023 (<65 K) equipment create substantial increase in the potential for variation in standards. As a result, there is a lack of doubt in any analysis of energy savings the crosswalk results from the actual SEER2 and HSPF2 data available for that would result from efficiency levels performance under the new metric of single-phase central air conditioners more stringent than the amended the analyzed models. As noted, there is and central air conditioning heat ASHRAE Standard 90.1–2019 levels for limited market data regarding the pumps, which if available may have this equipment. Regardless of the results performance of CRACs as represented provided for a certain level of of any such analysis, the degree of according to the updated metric, and assessment of the air-cooled, three- uncertainty would create substantial there is not a comparable industry phase, small commercial package AC doubt as to whether a standard more analysis (i.e., translating ratings to the and HP (<65 K) equipment market. stringent than the ASHRAE Standard updated metric for all models on the The market for air-cooled, three- 90.1–2019 amendment would result in a market) for comparison. phase, small commercial package AC significant additional amount of energy For air-cooled, three-phase, small and HP (<65 K) equipment has not savings as required for DOE to establish commercial package AC and HP (<65 K) responded to the change in the metrics, more-stringent standards. As a result, equipment, ASHRAE Standard 90.1– particularly given that ASHRAE DOE did not conduct an analysis of any 2019 amended the applicable metric, Standard 90.1–2019 does not specify associated energy savings for more- and the amended standards that rely on use of SEER2 and HSPF2 until 2023. stringent standards for the subject the updated metric are intended to Likewise, the closely related single- equipment in this document. apply in 2023. As with the amended phase market has not yet fully CRAC Issue 8: DOE is requesting data CRAC standards, DOE was required to responded to the amended Federal and information that could enable the conduct a crosswalk to compare the metrics and standards, for which agency to determine whether standards stringency levels of the Federal manufacturers are not required to levels more stringent than the levels in standards and the amended ASHRAE comply until 2023. Given the change in ASHRAE Standard 90.1–2019 for Standard 90.1–2019 efficiency levels to metrics and the future compliance dates CRACs would result in significant determine whether its obligation under of the ASHRAE Standard 90.1–2019 additional energy savings for classes for EPCA to adopt amended ASHRAE amendments, and the comparable which DOE is triggered. Standard 90.1 efficiency levels was changes to the Federal requirements for Three-Phase CAC/HP Issue 6: DOE is triggered. (42 U.S.C. 6313(a)(6)(A)(i)). the closely related single-phase market, requesting data and information that As with an analysis of the CRAC determination of max-tech levels and could enable the agency to determine standards amended by ASHRAE projections of market distribution whether standards levels more stringent Standard 90.1–2019, an analysis of according to efficiency levels have an than the levels in ASHRAE Standard standard levels more stringent than the increased degree of uncertainty. 90.1–2019 for air-cooled, three-phase, amended standards in ASHRAE As noted previously, EPCA provides small commercial package ACs and HPs Standard 90.1 for air-cooled, three- that in order to adopt a standard more (<65 K) would result in significant phase, small commercial package AC stringent than an amended ASHRAE additional energy savings for classes for and HP (<65 K) equipment) would Standard 90.1, DOE must determine, by which DOE is triggered. require DOE to crosswalk the entire rule published in the Federal Register, IV. Review Under Six-Year-Lookback market for this equipment. As noted, the and supported by clear and convincing Provisions: Requested Information amended ASHRAE Standard 90.1–2019 evidence, that adoption of a uniform levels for air-cooled, three-phase, small national standard more stringent than As discussed, DOE is required to commercial package AC and HP (<65 K) the amended ASHRAE Standard 90.1 conduct an evaluation of each class of equipment rely on updated metrics (i.e., would result in significant additional covered equipment in ASHRAE SEER2 and HSPF2), and they have the conservation of energy and is Standard 90.1 every 6 years. (42 U.S.C. added issue that the amended ASHRAE technologically feasible and 6313(a)(6)(C)(i)) Accordingly, DOE is Standard 90.1 efficiency levels in terms economically justified. (42 U.S.C. also evaluating the remaining 6 CRAC of the new SEER2 and HSPF2 metrics 6313(a)(6)(A)(ii)(II)) In the updated equipment classes and 8 air-cooled, are not applicable until 2023. This Process Rule, DOE reiterated the three-phase, small commercial package future applicability date compounds the existing statutory requirement stating AC and HP (<65 K) equipment classes problem of a lack of market data. that the statutory threshold of ‘‘clear for which ASHRAE Standard 90.1–2019 As discussed in the October 2018 TP and convincing evidence’’ is a very high did not increase the stringency of the RFI for air-cooled, three-phase, small bar. 85 FR 8626, 8708 (Feb. 14, 2020). standards. As explained in the February commercial package AC and HP (<65 K) Clear and convincing evidence would 2020 final rule updating DOE’s Process equipment, such equipment is exist only where the specific facts and Rule, EPCA applies the ‘‘clear and essentially identical to its single-phase data made available to DOE regarding a convincing’’ evidentiary threshold to residential counterparts, is particular ASHRAE amendment both ASHRAE ‘‘trigger’’ and 6-year- manufactured on the same production demonstrates that there is no substantial lookback rulemakings. 85 FR 8626, 8647 lines, and is physically identical to their doubt that a standard more stringent (Feb. 14, 2020). Thus, when conducting corresponding single-phase central air than that contained in the ASHRAE a six-year look-back review, DOE may conditioner and heat pump models Standard 90.1 amendment is permitted establish a uniform national standard (with the exception of the electrical because it would result in a significant more stringent than the corresponding systems and compressors). 83 FR 49501, additional amount of energy savings, is ASHRAE Standard 90.1 level only upon 49504 (Oct. 2, 2018). Single-phase technologically feasible and a determination, supported by clear and central air conditioners are subject to economically justified. Id. convincing evidence, that such an new Federal standards based on SEER2 The lack of market data and the amended Federal standard would result and HSPF2 beginning January 1, 2023. uncertainties in the market and in significant additional conservation of

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energy and is technologically feasible CRACs and air-cooled, three-phase, Submitting comments via email, hand and economically justified. (42 U.S.C. small commercial package AC and HP delivery/courier, or postal mail. 6313(a)(6)(C)(i)(I) (referencing 42 U.S.C. (<65 K) equipment. Interested parties Comments and documents submitted 6313(a)(6)(B), which in turn references may submit comments, data, and other via email, hand delivery/courier, or 42 U.S.C. 6313(a)(6)(A)(ii)(II)). information using any of the methods postal mail also will be posted to http:// The 6 equipment classes of CRACs described in the ADDRESSES section at www.regulations.gov. If you do not want and 8 equipment classes of air-cooled, the beginning of this document. your personal contact information to be three-phase, small commercial package Submitting comments via http:// publicly viewable, do not include it in AC and HP (<65 K) equipment suffer www.regulations.gov. The http:// your comment or any accompanying from the same lack of data and market www.regulations.gov web page will documents. Instead, provide your uncertainties resulting from the metric require you to provide your name and contact information in a cover letter. changes and future compliance dates as contact information. Your contact Include your first and last names, email with the equipment classes for which information will be viewable to DOE address, telephone number, and DOE was triggered, as discussed in Building Technologies staff only. Your optional mailing address. The cover section III.F of this document. As such, contact information will not be publicly letter will not be publicly viewable as any analysis of energy efficiency viewable except for your first and last long as it does not include any standards more stringent than the names, organization name (if any), and comments. current levels would be subject to a submitter representative name (if any). Include contact information each time degree of uncertainty that would create If your comment is not processed you submit comments, data, documents, substantial doubt as to whether a properly because of technical and other information to DOE. If you standard more stringent than the current difficulties, DOE will use this submit via postal mail or hand delivery/ Federal standard would result in a information to contact you. If DOE courier, please provide all items on a significant additional amount of energy cannot read your comment due to CD, if feasible, in which case it is not savings as required for DOE to establish technical difficulties and cannot contact necessary to submit printed copies. more-stringent standards. Because DOE you for clarification, DOE may not be Comments, data, and other does not have sufficient data to meet the able to consider your comment. information submitted to DOE electronically should be provided in ‘‘clear and convincing’’ threshold, DOE However, your contact information PDF (preferred), Microsoft Word or did not conduct an energy savings will be publicly viewable if you include Excel, WordPerfect, or text (ASCII) file analysis of standard levels more it in the comment itself or in any format. Provide documents that are not stringent than the current Federal documents attached to your comment. secured, that are written in English, and standard levels for CRACs and air- Any information that you do not want cooled, three-phase, small commercial that are free of any defects or viruses. to be publicly viewable should not be Documents should not contain special package AC and HP (<65 K) equipment included in your comment, nor in any that were not amended in ASHRAE characters or any form of encryption. document attached to your comment. Campaign form letters. Please submit Standard 90.1–2019. See section III.F of Following such instructions, persons campaign form letters by the originating this notice for further discussion of the viewing comments will see only first organization in batches of between 50 to consideration of energy efficiency levels and last names, organization names, 500 form letters per PDF or as one form more stringent than the ASHRAE correspondence containing comments, letter with a list of supporters’ names Standard 90.1–2019 levels. and any documents submitted with the compiled into one or more PDFs. This CRAC Issue 9: DOE is requesting data comments. reduces comment processing and and information that could enable the Do not submit to http:// posting time. agency to determine whether standards www.regulations.gov information for Confidential Business Information. levels more stringent than the levels in which disclosure is restricted by statute, Pursuant to 10 CFR 1004.11, any person ASHRAE Standard 90.1–2019 for such as trade secrets and commercial or submitting information that he or she CRACs would result in significant financial information (hereinafter believes to be confidential and exempt additional energy savings for classes for referred to as Confidential Business by law from public disclosure should which DOE is not triggered. Information (CBI)). Comments submit via email, postal mail, or hand Three-Phase CAC/HP Issue 7: DOE is submitted through http:// delivery/courier two well-marked requesting data and information that www.regulations.gov cannot be claimed copies: One copy of the document could enable the agency to determine as CBI. Comments received through the marked ‘‘confidential’’ including all the whether standards levels more stringent website will waive any CBI claims for information believed to be confidential, than the levels in ASHRAE Standard the information submitted. For and one copy of the document marked 90.1–2019 for air-cooled, three-phase, information on submitting CBI, see the ‘‘non-confidential’’ with the information small commercial package ACs and HPs Confidential Business Information believed to be confidential deleted. (<65 K) would result in significant section. Submit these documents via email or on additional energy savings for classes for DOE processes submissions made a CD, if feasible. DOE will make its own which DOE is not triggered. through http://www.regulations.gov determination about the confidential V. Public Participation before posting. Normally, comments status of the information and treat it will be posted within a few days of according to its determination. A. Submission of Comments being submitted. However, if large Factors of interest to DOE when DOE invites all interested parties to volumes of comments are being evaluating requests to treat submitted submit in writing by the date specified processed simultaneously, your information as confidential include: (1) previously in the DATES section of this comment may not be viewable for up to A description of the items, (2) whether document, comments, data, and several weeks. Please keep the comment and why such items are customarily information on matters addressed in this tracking number that http:// treated as confidential within the document and on other matters relevant www.regulations.gov provides after you industry, (3) whether the information is to DOE’s consideration of amended have successfully uploaded your generally known by or available from energy conservation standards for comment. other sources, (4) whether the

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information has previously been made Executive Order, DOE encourages the CRAC Issue 3: DOE seeks comment on available to others without obligation public to provide input on measures its methodology for identifying data concerning its confidentiality, (5) an DOE could take to lower the cost of its centers within CBECS 2012. explanation of the competitive injury to energy conservation standard CRAC Issue 4: DOE requests comment the submitting person which would rulemakings, recordkeeping and on its server power consumption result from public disclosure, (6) when reporting requirements, and compliance estimates and any information or data such information might lose its and certification requirements on expectations of future server stock confidential character due to the applicable to CRACs and air-cooled, and energy use in small data centers. passage of time, and (7) why disclosure three-phase, small commercial package CRAC Issue 5: DOE requests of the information would be contrary to AC and HP (<65 K) equipment while shipments data on horizontal-flow, the public interest. remaining consistent with the ceiling-mounted, and air-cooled with It is DOE’s policy that all comments requirements of EPCA. Other general fluid economizer CRAC equipment may be included in the public docket, topics of interest include the following. classes. without change and as received, CRAC Issue 6: DOE requests including any personal information Market Failures efficiency data for CRACs in terms of provided in the comments (except In the field of economics, a market NSenCOP that can be used to estimate information deemed to be exempt from failure is a situation in which the the no-new-standards case efficiency public disclosure). market outcome does not maximize distribution. DOE considers public participation to societal welfare. Such an outcome CRAC Issue 7: DOE seeks input on its be a very important part of the process would result in unrealized potential determination of the no-new-standards for developing energy conservation welfare. DOE welcomes comment on case distribution of efficiencies for standards. DOE actively encourages the any aspect of market failures, especially CRACs. participation and interaction of the those in the context of amended energy CRAC Issue 8: DOE is requesting data public during the comment period in conservation standards for CRACs and and information that could enable the each stage of the rulemaking process. air-cooled, three-phase, small agency to determine whether standards Interactions with and between members commercial package AC and HP (<65 K) levels more stringent than the levels in of the public provide a balanced equipment. ASHRAE Standard 90.1–2019 for discussion of the issues and assist DOE CRACs would result in significant in the rulemaking process. Anyone who Network Mode/‘‘Smart’’ Equipment additional energy savings for classes for wishes to be added to the DOE mailing DOE recently published an RFI on the which DOE is triggered. list to receive future notices and emerging smart technology appliance CRAC Issue 9: DOE is requesting data information about this process or would and equipment market. 83 FR 46886 and information that could enable the like to request a public meeting should (Sept. 17, 2018). In that RFI, DOE sought agency to determine whether standards contact Appliance and Equipment information to better understand market levels more stringent than the levels in Standards Program staff at (202) 287– trends and issues in the emerging ASHRAE Standard 90.1–2019 for 1445 or via email at market for appliances and commercial CRACs would result in significant ApplianceStandardsQuestions@ equipment that incorporate smart additional energy savings for classes for ee.doe.gov. technology. DOE’s intent in issuing the which DOE is not triggered. Three-Phase CAC/HP Issue 1: DOE B. Issues on Which DOE Seeks Comment RFI was to ensure that DOE did not inadvertently impede such innovation requests feedback on its methodology DOE welcomes comments on any in fulfilling its statutory obligations in for determining crosswalked SEER2 and aspect of this document for CRAC and setting efficiency standards for covered HSPF2 values for three-phase air-cooled, three-phase, small products and equipment. DOE seeks equipment based on crosswalked values commercial package AC and HP (<65 K) comments, data, and information on the of single-phase residential central air equipment classes where ASHRAE issues presented in the NODA/RFI as conditioners. Standard 90.1–2019 increased they may be applicable to CRACs and Three-Phase CAC/HP Issue 2: DOE stringency (thereby triggering DOE’s air-cooled, three-phase, small requests comment on its approach to review of amended standards) and for commercial package AC and HP (<65 K) estimate the energy use of air-cooled, CRAC and air-cooled, three-phase, small equipment. three-phase, small commercial package commercial package AC and HP (<65 K) AC and HP (<65 K). equipment classes undergoing 6-year- Other Three-Phase CAC/HP Issue 3: DOE lookback review. In addition to the issues identified requests comment on it approach to In the preceding sections, DOE has earlier in this document, DOE welcomes estimate the shipments of air-cooled, identified a variety of issues on which comment on any other aspect of energy three-phase, small commercial package it seeks input to aid in the development conservation standards for CRACs and AC and HP (<65 K) equipment. of the technical and economic analyses air-cooled, three-phase, small Three-Phase CAC/HP Issue 4: DOE regarding whether amended standards commercial package AC and HP (<65 K) seeks input on its determination of the for CRACs and air-cooled, three-phase, equipment not already addressed. no-new-standards case distribution of small commercial package AC and HP To summarize the specific issues efficiencies for air-cooled, three-phase, (<65 K) equipment may be warranted. identified in this NODA/RFI, DOE is small commercial package AC and HP DOE notes that under Executive Order particularly interested in receiving (<65 K) equipment. 13771, ‘‘Reducing Regulation and comments and views of interested Three-Phase CAC/HP Issue 5: DOE Controlling Regulatory Costs,’’ parties concerning the following topics, seeks comment on the approach of using Executive Branch agencies such as DOE listed by equipment category: a Weibull probability distribution with are directed to manage the costs CRAC Issue 1: DOE requests comment an average lifetime of 19 years for air associated with the imposition of on the methodology and results of the conditioners and 16.2 years for heat expenditures required to comply with crosswalk analysis. pumps. DOE also requests data or Federal regulations. See 82 FR 9339 CRAC Issue 2: DOE seeks comment on information which can be used to (Feb. 3, 2017). Consistent with that its energy-use analysis methodology. inform the equipment lifetime for air-

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cooled, three-phase, small commercial (<65 K) would result in significant maintained by DOE. For administrative package AC and HP (<65 K). additional energy savings for classes for purposes only, and in compliance with Three-Phase CAC/HP Issue 6: DOE is which DOE is not triggered. requirements of the Office of the Federal Register, the undersigned DOE Federal requesting data and information that VI. Approval of the Office of the Register Liaison Officer has been could enable the agency to determine Secretary whether standards levels more stringent authorized to sign and submit the The Secretary of Energy has approved than the levels in ASHRAE Standard document in electronic format for publication of this notice of data 90.1–2019 for air-cooled, three-phase, publication, as an official document of availability and request for information. small commercial package ACs and HPs the Department of Energy. This (<65 K) would result in significant Signing Authority administrative process in no way alters additional energy savings for classes for the legal effect of this document upon This document of the Department of publication in the Federal Register. which DOE is triggered. Energy was signed on August 21, 2020, Three-Phase CAC/HP Issue 7: DOE is by Alexander N. Fitzsimmons, Deputy Signed in Washington, DC, on August 21, requesting data and information that Assistant Secretary for Energy 2020. could enable the agency to determine Efficiency, Energy Efficiency and Treena V. Garrett, whether standards levels more stringent Renewable Energy, pursuant to Federal Register Liaison Officer, U.S. than the levels in ASHRAE Standard delegated authority from the Secretary Department of Energy. 90.1–2019 for air-cooled, three-phase, of Energy. That document with the [FR Doc. 2020–18778 Filed 9–24–20; 8:45 am] small commercial package ACs and HPs original signature and date is BILLING CODE 6450–01–P

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Part V

The President

Proclamation 10082—National Small Business Week, 2020

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Federal Register Presidential Documents Vol. 85, No. 187

Friday, September 25, 2020

Title 3— Proclamation 10082 of September 19, 2020

The President National Small Business Week, 2020

By the President of the United States of America

A Proclamation During National Small Business Week, we celebrate the resolve and ingenuity of American businesses, entrepreneurs, and workers. America’s small businesses are at the very core of our Nation’s identity and prosperity, and this week we pay tribute to these patriots for their contributions to our Nation’s economy and culture. This year, as we collectively recover from an unprecedented pandemic, my Administration remains intensely focused on helping every American enterprise remain viable, recover, and once again, thrive at historic levels. Our Nation’s more than 30 million small businesses, which employ nearly half the private-sector workforce and create two-thirds of all net new jobs, are the key to propelling our economy to the prosperity levels America has enjoyed over the past 3 years. That is why, as part of our extraordinary, whole-of-government economic response to the coronavirus, we have placed the small business sector front and center. We have delivered nearly three quarters of a trillion dollars in timely, economic relief to distressed small business entrepreneurs and their employees throughout the country, including $525 billion in Paycheck Protection Program (PPP) loans, $190 billion in COVID–19 Economic Injury Disaster Loans (EIDL), $20 billion in EIDL Advance grants, and additional healthcare funding. Additionally, American small businesses have been critical in revitalizing economically distressed areas. That is why my Administration worked with Congress to designate thousands of Opportunity Zones in underserved communities, and as a result, we are creating unprecedented new economic opportunities. We have also made extraordinary strides in the cultivation of entrepreneurship among underrepresented groups, including women, minorities, and veterans. In fact, under my Administration, Latinos are the fastest-growing group of entrepreneurs. These numbers are an important reminder that in the United States anyone who is dedicated and hard- working is capable of achieving their own American Dream. Across our country, small businesses are essential to their communities, creating jobs and giving back during times of prosperity and challenge. My Administration is committed to investing in small business owners, and therefore advancing solutions that make it easier for them to exceed their goals. During this National Small Business Week, we celebrate the success of our American entrepreneurs who have chartered their own courses to provide jobs and a bright future for millions of American workers. NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim September 20 through September 26, 2020, as National Small Business Week. I call upon all Americans to recognize the critical contributions of America’s entrepreneurs and small business owners as they grow our Nation’s economy.

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IN WITNESS WHEREOF, I have hereunto set my hand this nineteenth day of September, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty- fifth.

[FR Doc. 2020–21422 Filed 9–24–20; 11:15 am] Billing code 3295–F0–P

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Reader Aids Federal Register Vol. 85, No. 187 Friday, September 25, 2020

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING SEPTEMBER

Federal Register/Code of Federal Regulations At the end of each month the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 5 CFR Presidential Documents 3 CFR Executive orders and proclamations 741–6000 Proclamations: 841...... 59377 843...... 59378 The United States Government Manual 741–6000 9705 (See Proc. 10064) ...... 54877 870...... 60047 Other Services 9759 (See Proc. 1600...... 57665 Electronic and on-line services (voice) 741–6020 10064) ...... 54877 1650...... 57665, 59173 Privacy Act Compilation 741–6050 10064...... 54877 Proposed Rules: 10065...... 55161 212...... 59207 10066...... 55163 213...... 59207 ELECTRONIC RESEARCH 10067...... 55165 302...... 59207 316...... 56536 World Wide Web 10068...... 55167 10069...... 56463 930...... 59207 Full text of the daily Federal Register, CFR and other publications 10070...... 57663 6 CFR is located at: www.govinfo.gov. 10071...... 59165 Ch. I ...... 59651 Federal Register information and research tools, including Public 10072...... 59167 10073...... 59643 Inspection List and electronic text are located at: 7 CFR www.federalregister.gov. 10074...... 59645 10075...... 59647 Ch. XVIII ...... 59388 E-mail 10076...... 60041 1...... 55359 10077...... 60337 9...... 59174, 59380 FEDREGTOC (Daily Federal Register Table of Contents Electronic 10078...... 60339 205...... 57937 Mailing List) is an open e-mail service that provides subscribers 10079...... 60341 905...... 55359 with a digital form of the Federal Register Table of Contents. The 10080...... 60343 990...... 55363 digital form of the Federal Register Table of Contents includes 10081...... 60345 1210...... 56471 HTML and PDF links to the full text of each document. 10082...... 60681 1710...... 57077 To join or leave, go to https://public.govdelivery.com/accounts/ Executive Orders: 1779...... 57077, 59388 USGPOOFR/subscriber/new, enter your email address, then 13947...... 59171 1780...... 57077, 59388 follow the instructions to join, leave, or manage your 13948...... 59649 1783...... 57077 subscription. 13949...... 60043 1942...... 57077 PENS (Public Law Electronic Notification Service) is an e-mail Administrative Orders: 1980...... 57077 service that notifies subscribers of recently enacted laws. Memorandums: 3570...... 57077, 59388 3575...... 59388 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html Memorandum of September 20, 2013 4274...... 57077 and select Join or leave the list (or change settings); then follow 4279...... 57077, 59388 the instructions. (revoked by Memorandum of 4280...... 57077, 59388 FEDREGTOC and PENS are mailing lists only. We cannot September 2, Proposed Rules: respond to specific inquiries. 2020) ...... 55585 959...... 55388 Reference questions. Send questions and comments about the Memorandum of 1222...... 54945 Federal Register system to: [email protected] August 29, 2020...... 54883 1223...... 59610 Memorandum of 3560...... 59682 The Federal Register staff cannot interpret specific documents or September 2, regulations. 8 CFR 2020 ...... 55585, 60347 Memorandum of Ch. I ...... 59651 FEDERAL REGISTER PAGES AND DATE, SEPTEMBER September 4, 208...... 59655 2020 ...... 60349 Proposed Rules: 54233–54480...... 1 60047–60340...... 24 Notices: 1...... 56338 54481–54884...... 2 60341–60682...... 25 Notice of September 103...... 55597, 56338 54885–55168...... 3 10, 2020 ...... 56467 204...... 56338 55169–55358...... 4 Notice of September 207...... 56338 55359–55586...... 8 10, 2020 ...... 56469 208...... 56338 55587–55780...... 9 Presidential 209...... 56338 55781–56158...... 10 Determinations: 210...... 56338 56159–56470...... 11 No. 2020-10 of 212...... 56338 56471–57076...... 14 September 9, 214...... 56338, 60526 2020 ...... 57075 215...... 56338 57077–57664...... 15 No. 2020-11 of 216...... 56338 57665–57936...... 16 September 16, 235...... 55597, 56338 57937–58250...... 17 2020 ...... 60351 236...... 56338 58251–59172...... 18 Space Policy 240...... 56338 59173–59376...... 21 Directives: 244...... 56338 59377–59642...... 22 Space Policy 245...... 56338 59643–60046...... 23 Directive—5...... 56155 245a...... 56338

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248...... 60526 57085, 57086, 57088, 57673, 514...... 59427 52...... 58268 264...... 56338 57674, 59665, 59667, 59668 Proposed Rules: 55...... 58268 274a...... 60526 73...... 57675 1...... 59984 62...... 58268 287...... 56338 91...... 55372 201...... 59718 64...... 58268 316...... 56338 93...... 58255, 58258 300...... 55802 66...... 58268 333...... 56338 95...... 55174 801...... 59718 67...... 58268 335...... 56338 97 ...... 54902, 54909, 58260, 866...... 58300 70...... 58268 1003...... 59692 58262 72...... 58268 1208...... 59692 Proposed Rules: 24 CFR 74...... 58268 1240...... 59692 25...... 55198 100...... 60288 76...... 58268 39 ...... 54286, 54515, 55388, 80...... 58268 9 CFR Proposed Rules: 55391, 55619, 55622, 55624, 887...... 59234 82...... 58268 93...... 57944 57165, 57168, 57799, 57802, 984...... 59234 83...... 58268 Proposed Rules: 57804, 58002, 58004, 58007, 100 ...... 54494, 58268, 60362 2...... 57998 58010, 58014, 59217, 59449, 26 CFR 101...... 58268 103...... 58268 3...... 57998 59451, 59454, 59457, 59460, 1 ...... 55185, 56686, 58266, 104...... 58268 4...... 57998 60097, 60100, 60103 59428, 60358 352...... 56538 71 ...... 55200, 55395, 55627, 105...... 58268 Proposed Rules: 354...... 56538 57170, 57806, 59220, 59463, 106...... 58268 1 ...... 56846, 58307, 59481 412...... 56538 59465, 59700, 60107, 60108 107...... 58268 27 CFR 109...... 58268 10 CFR 15 CFR 114...... 58268 72...... 54885, 59395 285...... 60061 9...... 54491, 60358 115...... 58268 429...... 56475 Ch. VII...... 60059 29 CFR 117 ...... 54496, 56516, 57691, 430...... 56475 743...... 56294 58268 826...... 57677 Proposed Rules: 744...... 59419 118...... 58268 1926...... 57109 35...... 57148 772...... 56294 125...... 58268 2520...... 59132 50...... 56548 774...... 56294 126...... 58268 4022...... 57123 52...... 56548 Proposed Rules: 127...... 58268 4044...... 57123 72...... 59447 30...... 58016 143...... 58268 73...... 56548 Proposed Rules: 145...... 58268 16 CFR 429...... 58299 780...... 60620 146...... 58268 430 ...... 56185, 57787, 60090 1450...... 58263 788...... 60620 148...... 58268 431 ...... 57149, 60090, 60642 Proposed Rules: 795...... 60620 149...... 58268 641...... 57172 2509...... 55219 150...... 58268 12 CFR 642...... 59226 2510...... 54288 151...... 58268 3...... 57956 680...... 59466 2550...... 55219 153...... 58268 44...... 60355 698...... 59226 4022...... 55587 154...... 58268 155...... 58268 217...... 57956 31 CFR 248...... 60355 17 CFR 156...... 58268 261...... 57616 1...... 57462 501...... 54911 160...... 58268 324...... 57956 23...... 56924, 57462 515...... 60068 161...... 58268 351...... 60355 75...... 60355 800...... 57124 162...... 58268 624...... 54233 140...... 57462 1010...... 57129 164...... 58268 701...... 56498, 57666 200...... 57089 1020...... 57129 165 ...... 54497, 54499, 54501, Proposed Rules: 202...... 57089 Proposed Rules: 55190, 56517, 56519, 58268, 22...... 54946 227...... 54483 1...... 58308 60362 208...... 54946 239...... 54483 Ch. X...... 58023 166...... 58268 Ch. III ...... 60402 240...... 55082 167...... 58268 32 CFR 338...... 60389 255...... 60355 169...... 58268 339...... 54946 270...... 57089 105...... 57967 177...... 58268 390...... 60389 276...... 55155 143...... 56172 Proposed Rules: 614...... 54946, 55786 Proposed Rules: 199...... 54914 Ch. II ...... 57298 615...... 55786 23...... 59470, 59702 204...... 55783 117...... 57808 620...... 55786 190...... 60110 217...... 55783 165 ...... 54946, 56186, 57175, 628...... 55786 232...... 58018 327...... 57967 59254, 60115 760...... 54946 Proposed Rules: 18 CFR 1026...... 60096 553...... 57640 34 CFR 292...... 54638 75...... 59916 14 CFR 375...... 54638 33 CFR 76...... 59916 21...... 58251 1301...... 60063 1...... 58268 106...... 59916 23...... 59400 Proposed Rules: 2...... 58268 Ch. III ...... 57693 39 ...... 54481, 54885, 54888, 37...... 55201 3...... 58268 Ch. VI...... 57138 54891, 54893, 54896, 54900, 38...... 55201 5...... 58268 600...... 54742 55169, 55171, 55781, 56159, 292...... 58300 6...... 58268 602...... 54742 56161, 57666, 57668, 57671, 8...... 58268 606...... 59916 57965, 59175, 59178, 59180, 19 CFR 13...... 58268 607...... 59916 59404, 59406, 59409, 59411, Ch. I...... 57108, 59651, 59669, 17...... 58268 608...... 59916 59413, 59416, 59661, 59663, 59670 23...... 58268 609...... 59916 60048, 60356 360...... 56162 25...... 58268 668...... 54742 61...... 60057 Ch. IV...... 59651 26...... 58268 Proposed Rules: 63...... 60057 Proposed Rules: 27...... 58268 Ch. II ...... 60117 65...... 60057 351...... 55801 40...... 58268 Ch. III ...... 55802 67...... 60057 45...... 58268 71 ...... 54233, 55174, 55366, 21 CFR 50...... 58268 36 CFR 55368, 55369, 55371, 56514, 101...... 55587 51...... 58268 1155...... 59187

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Proposed Rules: 721...... 57756, 57968 405...... 54327 52 ...... 56549, 56558, 57177 214...... 54311 Proposed Rules: 227...... 59258 228...... 54311 49...... 55628 43 CFR 252...... 59258 261...... 54311 52 ...... 54947, 54952, 54954, Proposed Rules: 802...... 60073 54960, 54961, 56193, 56196, 3170...... 55940 809...... 60073 37 CFR 56198, 57810, 58310, 58315, 841...... 60073 1...... 58282 58319, 58320, 59256, 59486, 44 CFR 842...... 60073 11...... 58282 59729, 60407, 60413 64...... 55196, 58294 852...... 60073 41...... 58282 60...... 57815 45 CFR 42...... 58282 61...... 57815 49 CFR 210...... 58114, 58160 63...... 57815 1173...... 56525 Proposed Rules: 81...... 54517 Ch. XII...... 57108 Proposed Rules: 543...... 55386 210...... 58170 131...... 54967 302...... 58029 180...... 55810 571...... 54273 38 CFR 271...... 56200 46 CFR 633...... 59672 1244...... 54936 21...... 59190 282...... 56207 1...... 57757, 58268 Proposed Rules Proposed Rules: 300...... 54970 2...... 58268 571...... 55396 3...... 56189 41 CFR 4...... 58268 7...... 58268 102–77...... 60383 39 CFR 8...... 58268 50 CFR 102–83...... 60385 551...... 55192 16...... 58268 201...... 54263 17...... 54281 Proposed Rules: 28...... 58268 Ch. II ...... 60079 111...... 59484 42 CFR 30...... 58268 216...... 58297 3050...... 56192 9...... 54271 35...... 58268 223...... 59198 71...... 56424 39...... 58268 Ch. III ...... 60079 40 CFR 121...... 59438 68...... 58268 300...... 58297 9...... 57968 Ch. VI...... 60079 402...... 55385 47 CFR 52 ...... 54504, 54507, 54509, 403...... 55385 600...... 56177, 59199 54510, 54924, 56521, 57694, 405...... 58432 1...... 57980, 59864 622 ...... 54513, 54942, 54943, 57696, 57698, 57700, 57701, 410...... 54820 2...... 57980 55592, 57982, 60385, 60386 57703, 57707, 57712, 57714, 411...... 55385 25...... 57980 635...... 57783, 59445 57721, 57723, 57727, 57729, 412...... 55385, 58432 27...... 57765, 57980 648 ...... 54514, 55595, 56534, 57731, 57733, 57736, 58283, 413...... 54820, 58432 52...... 57767 57785, 57986 58286, 59192, 59194, 59436, 414...... 54820, 57980 54...... 56528, 59196 660...... 55784 59672 417...... 58432 64...... 56530 665...... 57988 55...... 55377 422...... 54820, 55385 73...... 58295 679 ...... 54285, 55595, 57785, 60 ...... 57018, 57398, 57739 423...... 54820, 55385 101...... 57980 57786, 58298, 59204, 59205, 61...... 57739 460...... 55385 Proposed Rules: 59206 63 ...... 55744, 56080, 57739 476...... 58432 1 ...... 54523, 56549, 58032 Proposed Rules: 81 ...... 57733, 57736, 58286 480...... 58432 2...... 56549 17 ...... 54339, 55398, 57578, 141...... 54235 482...... 54820 64...... 59110 57816, 58192, 58224, 59487, 143...... 54235 483...... 54820, 55385 59732 180 ...... 54259, 54927, 55193, 484...... 58432 48 CFR 229...... 59258 55380, 57746, 57750, 60363, 485...... 54820 Proposed Rules: 300...... 58321 60366, 60368 488...... 54820, 55385 1...... 56549, 57177 600...... 56569 228...... 60370 493...... 54820, 55385 7...... 56549 660...... 54529 281...... 57754 495...... 58432 12...... 56558 665...... 56208 282...... 56172 Proposed Rules: 25...... 56549, 56558 679...... 55243, 58322 300...... 54931 Ch. I ...... 56108 44...... 56549 680...... 55243

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