Vol. 86 Tuesday, No. 7 January 12, 2021
Pages 2243–2526
OFFICE OF THE FEDERAL REGISTER
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Contents Federal Register Vol. 86, No. 7
Tuesday, January 12, 2021
Agriculture Department Organix, Inc., 2457–2458 See Forest Service Siegfried USA, LLC, 2458 See Rural Housing Service Importer of Controlled Substances Application: Medi-Physics, Inc. dba GE Healthcare, 2456–2457 Air Force Department S and B Pharma, LLC dba Norac Pharma, 2458 NOTICES Intent to Grant an Exclusive Patent License, 2391 Education Department NOTICES Army Department Applications for New Awards: NOTICES Alaska Native Education Program, 2392–2397 Agency Information Collection Activities; Proposals, Office of Indian Education Formula Grants to Local Submissions, and Approvals, 2391–2392 Educational Agencies, 2397–2401 Meetings: Coast Guard President’s Advisory 1776 Commission, 2402 RULES Security Zone: Energy Department Potomac River and Anacostia River, and Adjacent Waters; See Federal Energy Regulatory Commission Washington, DC, 2256–2257 RULES NOTICES Including Short-Term Export Authority in Long-Term Agency Information Collection Activities; Proposals, Authorizations for the Export of Natural Gas on a Non- Submissions, and Approvals, 2424–2425, 2427–2430 Additive Basis, 2243–2246 Guidance: NOTICES Voluntarily Obtaining Merchant Mariner Credential Energy Conservation Program: Endorsements for Basic and Advanced Operations on Petition for Waiver of Air Innovations from the Vessels subject to the International Code of Safety for Department of Energy Walk-in Coolers and Walk-in Ships using Gases or Low Flashpoint Fuels, 2425– Freezers Test Procedure and Notification of Grant of 2427 Interim Waiver, 2403–2412 Request for Applications: Environmental Protection Agency National Merchant Marine Personnel Advisory PROPOSED RULES Committee; Vacancy, 2428 Air Quality State Implementation Plans; Approvals and Promulgations: Commerce Department 2008 8-Hour Ozone Nonattainment Area Requirements; See Foreign-Trade Zones Board Western Nevada County, CA, 2318–2337 See Industry and Security Bureau NOTICES See National Oceanic and Atmospheric Administration Product Cancellation Order: See Office of the Under-Secretary for Economic Affairs Certain Pesticide Registrations and Amendments to Terminate Uses, 2415 Comptroller of the Currency Transfer of Data: PROPOSED RULES Department of Justice and Parties to Certain Litigation, Computer-Security Incident Notification Requirements for 2414–2415 Banking Organizations and their Bank Service Providers, 2299–2311 Equal Employment Opportunity Commission NOTICES NOTICES Agency Information Collection Activities; Proposals, Meetings; Sunshine Act, 2415–2416 Submissions, and Approvals: Investment Securities, 2491–2492 Federal Communications Commission RULES Corporation for National and Community Service Television Broadcasting Services: NOTICES Mesa, AZ, 2296–2297 Agency Information Collection Activities; Proposals, Unlicensed White Space Device Operations in the Submissions, and Approvals: Television Bands, 2278–2296 AmeriCorps External Reviewer Survey, 2390–2391 PROPOSED RULES Allowing Earlier Equipment Marketing and Importation Defense Department Opportunities, 2337–2344 See Air Force Department NOTICES See Army Department Meetings: North American Numbering Council, 2416 Drug Enforcement Administration NOTICES Federal Deposit Insurance Corporation Bulk Manufacturer of Controlled Substances Application: RULES Cedarburg Pharmaceuticals, 2457 Rules of Practice and Procedure; Technical Revisions, Marihuana: Natural Fulfillment, LLC, 2458–2459 2246–2251
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PROPOSED RULES Foreign-Trade Zones Board Computer-Security Incident Notification Requirements for NOTICES Banking Organizations and their Bank Service Application for Subzone: Providers, 2299–2311 Coating Place, Inc., Foreign-Trade Zone 266, Madison, WI, 2382 Federal Emergency Management Agency NOTICES Forest Service Flood Hazard Determinations; Changes, 2434–2440 NOTICES Flood Hazard Determinations; Proposals, 2430–2434 Forest Order Closing Areas: Beattie Gulch Trailhead and McConnell Fishing Access Federal Energy Regulatory Commission North and West of Gardiner, MT to the Discharge of NOTICES Firearms, 2380 Combined Filings, 2414 Environmental Assessments; Availability, etc.: Health and Human Services Department Aclara Meters, LLC, 2413–2414 See Health Resources and Services Administration Filing: See National Institutes of Health City of Springfield, Illinois, City Water, Light and Power, RULES 2412–2413 Grants Regulation, 2257–2278 Institution of Section 206 Proceeding and Refund Effective NOTICES Date: Persons that Entered the Over-the-Counter Drug Market to Highlander Solar Energy Station 1, LLC, 2413 Supply Hand Sanitizer during the COVID–19 Public Health Emergency are not Subject to the Over-the- Federal Highway Administration Counter Drug Monograph Facility Fee, 2420–2421 NOTICES Final Federal Agency Actions: Health Resources and Services Administration Proposed Highway in California, 2480–2481 NOTICES Geographic Eligibility for Federal Office of Rural Health Federal Motor Carrier Safety Administration Policy Grants, 2418–2420 PROPOSED RULES Qualifications of Drivers; Vision Standard, 2344–2372 Homeland Security Department See Coast Guard Federal Reserve System See Federal Emergency Management Agency PROPOSED RULES See U.S. Customs and Border Protection Computer-Security Incident Notification Requirements for Banking Organizations and their Bank Service Housing and Urban Development Department Providers, 2299–2311 RULES NOTICES Manufactured Home Construction and Safety Standards, Change in Bank Control: 2496–2526 Acquisitions of Shares of a Bank or Bank Holding Company, 2417 Indian Affairs Bureau Formations of, Acquisitions by, and Mergers of Bank NOTICES Holding Companies, 2416–2417 Chippewa Cree Indians of the Rocky Boy’s Reservation; Meetings; Sunshine Act, 2416 Amendment to Liquor Control Ordinance, 2446–2448 HEARTH Act Approval of the Cahuilla Band of Indians, Federal Trade Commission California Leasing Ordinance, 2450–2451 NOTICES Indian Gaming: Agency Information Collection Activities; Proposals, Approval of Tribal-State Class III Gaming Compact in the Submissions, and Approvals, 2417 State of Washington, 2448–2449 Reservation Proclamations: Fish and Wildlife Service Certain Lands as Reservation for the Shakopee PROPOSED RULES Mdewakanton Sioux Community of Minnesota, Endangered and Threatened Species: 2449–2450 Regulations for Interagency Cooperation, 2373–2379 NOTICES Industry and Security Bureau Agency Information Collection Activities; Proposals, RULES Submissions, and Approvals: Change to License Review Policy for Unmanned Aerial Horseshoe Crab and Cooperative Fish Tagging Programs, Systems to Reflect Revised Export Policy, 2252–2254 2443–2445 NOTICES Endangered and Threatened Species: Agency Information Collection Activities; Proposals, Initiation of 5-Year Status Reviews of 7 Species in the Submissions, and Approvals: Mountain-Prairie Region, 2442–2443 Application for NATO International Bidding, 2382–2383 Endangered and Threatened Wildlife and Plants: Draft Recovery Plan for Jones cycladenia, 2440–2442 Interior Department Incidental Take Permit Application: See Fish and Wildlife Service Habitat Conservation Plan and Categorical Exclusion for See Indian Affairs Bureau the Threatened Grizzly Bear; Flathead, Glacier, See Land Management Bureau Lincoln, and Toole Counties, Montana, 2445–2446 See Ocean Energy Management Bureau
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International Trade Commission Nuclear Regulatory Commission NOTICES NOTICES Investigations; Determinations, Modifications, and Rulings, Agency Information Collection Activities; Proposals, etc.: Submissions, and Approvals: Passenger Vehicle and Light Truck Tires from China, Registration Certificate—In Vitro Testing with Byproduct 2456 Material under General License, 2465–2466 Exemption; Issuance: Justice Department Southern Nuclear Operating Co., Inc. Vogtle Electric See Drug Enforcement Administration Generating Plant, Unit 3; Unit 3 Auxiliary Building Wall 11 Seismic Gap Requirements, 2464–2465 Fire Protection Program: Land Management Bureau Nuclear Power Plants During Decommissioning, 2463– NOTICES 2464 Meetings: License Amendment Request: Idaho Resource Advisory Council, 2451–2452 Indiana Michigan Power Co., Donald C. Cook Nuclear Plant, Unit No. 2, 2460–2463 National Highway Traffic Safety Administration NOTICES Cybersecurity Best Practices for the Safety of Modern Ocean Energy Management Bureau Vehicles, 2481–2486 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Institutes of Health Pollution Prevention and Control, 2452–2455 NOTICES Meetings: Center for Scientific Review, 2421–2424 Office of the Under-Secretary for Economic Affairs Eunice Kennedy Shriver National Institute of Child NOTICES Health and Human Development, 2423 Meetings: National Heart, Lung, and Blood Institute, 2421–2423 Advisory Committee on Data for Evidence Building, National Institute of Environmental Health Sciences, 2381–2382 2423
Pipeline and Hazardous Materials Safety Administration National Oceanic and Atmospheric Administration NOTICES RULES Hazardous Materials: Pacific Island Pelagic Fisheries: 2021 U.S. Territorial Longline Bigeye Tuna Catch Limits, Applications for Modifications to Special Permit, 2486– 2297–2298 2487 PROPOSED RULES Applications for Modifications to Special Permits, 2488– Endangered and Threatened Species: 2489 Designation of Nonessential Experimental Population of Applications for New Special Permits, 2490–2491 Central Valley Spring-run Chinook Salmon in the Meetings: Upper Yuba River Upstream of Englebright Dam, CA, Lithium Battery Air Safety Advisory Committee, 2487– 2372–2373 2488 Regulations for Interagency Cooperation, 2373–2379 NOTICES Rural Housing Service Matching Fund Opportunity for Hydrographic Surveys and Request for Partnership Proposals, 2387–2390 NOTICES Meetings: Agency Information Collection Activities; Proposals, Fisheries of the Gulf of Mexico; Southeast Data, Submissions, and Approvals, 2380–2381 Assessment, and Review, 2384 Fisheries of the South Atlantic; Southeast Data, Securities and Exchange Commission Assessment, and Review, 2386–2387 PROPOSED RULES Pacific Fishery Management Council, 2386, 2390 Proposed Conditional Exemptive Order: South Atlantic Fishery Management Council, 2385 Granting a Conditional Exemption from the Information Permits: Review Requirement and the Recordkeeping Marine Mammals and Endangered Species, 2385–2386 Requirement under the Securities Exchange Act of Public Hearing: 1934 for Certain Publications or Submissions of South Atlantic Fishery Management Council, 2383 Broker-Dealer Quotations on an Expert Market, 2311– Review of Nomination: 2318 Lake Erie Quadrangle National Marine Sanctuary, 2384– NOTICES 2385 Application: Symmetry Panoramic Trust and Symmetry Partners, LLC, National Science Foundation 2466–2468 NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Meetings: Cboe BZX Exchange, Inc., 2473–2476 Networking and Information Technology Research and ICE Clear Europe Ltd., 2472–2473 Development Program, 2459 LCH SA, 2468–2472
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Selective Service System NOTICES NOTICES Multiemployer Pension Plan Application to Reduce Agency Information Collection Activities; Proposals, Benefits, 2492 Submissions, and Approvals: Forms Submitted to the Office of Management and U.S. Customs and Border Protection Budget for Extension of Clearance, 2476–2477 RULES Extension of Import Restrictions Imposed on Categories of Small Business Administration Archaeological Material of Italy, 2255–2256 NOTICES Agency Information Collection Activities; Proposals, Veterans Affairs Department Submissions, and Approvals, 2477 NOTICES Surface Transportation Board Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Release of Waybill Data, 2477 Statement of Dependency of Parent(s), 2492–2493 Meetings: Trade Representative, Office of United States Joint Biomedical Laboratory Research and Development NOTICES and Clinical Science Research and Development Determination Pursuant to Section 301: Services Scientific Merit Review Board, 2493 India’s Digital Services Tax, 2478–2479 Turkey’s Digital Services Tax, 2480 Determination: Separate Parts In This Issue Italy’s Digital Services Tax, 2477–2478 Modification of Section 301 Action: Investigation of France’s Digital Services Tax, 2479–2480 Part II Housing and Urban Development Department, 2496–2526 Transportation Department See Federal Highway Administration See Federal Motor Carrier Safety Administration Reader Aids See National Highway Traffic Safety Administration Consult the Reader Aids section at the end of this issue for See Pipeline and Hazardous Materials Safety phone numbers, online resources, finding aids, and notice Administration of recently enacted public laws. Treasury Department To subscribe to the Federal Register Table of Contents See Comptroller of the Currency electronic mailing list, go to https://public.govdelivery.com/ RULES accounts/USGPOOFR/subscriber/new, enter your e-mail Extension of Import Restrictions Imposed on Categories of address, then follow the instructions to join, leave, or Archaeological Material of Italy, 2255–2256 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.
10 CFR 590...... 2243 12 CFR 308...... 2246 Proposed Rules: 53...... 2299 225...... 2299 304...... 2299 15 CFR 742...... 2252 17 CFR Proposed Rules: 240...... 2311 19 CFR 12...... 2255 24 CFR 3280...... 2496 3282...... 2496 3285...... 2496 33 CFR 165...... 2256 40 CFR Proposed Rules: 52...... 2318 45 CFR 75...... 2257 47 CFR 15...... 2278 73...... 2296 Proposed Rules: 2...... 2337 95...... 2337 49 CFR Proposed Rules: 391...... 2344 50 CFR 665...... 2297 Proposed Rules: 223...... 2372 402...... 2373
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Rules and Regulations Federal Register Vol. 86, No. 7
Tuesday, January 12, 2021
This section of the FEDERAL REGISTER Cody, U.S. Department of Energy (GC– gas (FTA countries) are ‘‘deemed to be contains regulatory documents having general 70), Associate General Counsel, consistent with the public interest.’’ 3 applicability and legal effect, most of which Forrestal Building, Room 6B–222, 1000 Therefore, applications authorizing are keyed to and codified in the Code of Independence Avenue SW, Washington, exports of natural gas to FTA countries Federal Regulations, which is published under DC 20585; (202) 586–6918; email: must be granted ‘‘without modification 50 titles pursuant to 44 U.S.C. 1510. [email protected]; Cassandra or delay.’’ 4 Section 3(a) of the NGA The Code of Federal Regulations is sold by Bernstein, U.S. Department of Energy governs exports to any other country the Superintendent of Documents. (GC–76), Office of the Assistant General with which trade is not prohibited by Counsel for Electricity and Fossil U.S. law or policy (non-FTA countries).5 Energy, Forrestal Building, Room 6D– DOE, as affirmed by the U.S. Court of DEPARTMENT OF ENERGY 033, 1000 Independence Avenue SW, Appeals for the District of Columbia Washington, DC 20585; (202) 586–9793; Circuit, has consistently interpreted 10 CFR Part 590 email: [email protected]. NGA section 3(a) as creating a rebuttable presumption that a proposed export of Including Short-Term Export Authority SUPPLEMENTARY INFORMATION: natural gas is in the public interest.6 in Long-Term Authorizations for the Acronyms and Abbreviations. Accordingly, DOE will conduct an Export of Natural Gas on a Non- Frequently used acronyms and informal adjudication and grant a non- Additive Basis abbreviations are set forth below for reference. FTA application unless DOE finds that AGENCY: Office of Fossil Energy, the proposed exportation will not be DOE U.S. Department of Energy Department of Energy. consistent with the public interest.7 EA Environmental Assessment Before reaching a final decision on a ACTION: Policy statement. EIS Environmental Impact Statement FE Office of Fossil Energy non-FTA application, DOE must also SUMMARY: The Department of Energy’s FTA Free Trade Agreement comply with the National (DOE) Office of Fossil Energy (FE) is LNG Liquefied Natural Gas Environmental Policy Act of 1969 discontinuing its practice of issuing NEPA National Environmental Policy Act (NEPA).8 DOE’s environmental review separate long-term and short-term of 1969 process under NEPA may result in the authorizations for exports of NGA Natural Gas Act preparation or adoption of an domestically produced natural gas from Table of Contents environmental impact statement (EIS) or the same facility (or facilities). DOE is environmental assessment (EA) instead establishing a practice that I. Statutory Background describing the potential environmental certain long-term authorizations to II. Regulatory Background impacts associated with the export domestically produced natural A. DOE Regulations Involving Contract application.9 In other cases, DOE may Terms gas—including liquefied natural gas B. Long-Term Export Authority 3 Id. at 15 U.S.C. 717b(c). The United States (LNG), compressed natural gas, and C. Short-Term Export Authority compressed gas liquid—include currently has FTAs requiring national treatment for III. Policy Statement trade in natural gas with Australia, Bahrain, additional authority to export the same IV. Administrative Benefits Canada, Chile, Colombia, Dominican Republic, El approved volume pursuant to V. Approval of the Office of the Secretary Salvador, Guatemala, Honduras, Jordan, Mexico, transactions with terms of less than two Morocco, Nicaragua, Oman, Panama, Peru, Republic I. Statutory Background of Korea, and Singapore. FTAs with Israel and Costa years on a non-additive basis (including Rica do not require national treatment for trade in non-additive commissioning volumes). DOE is responsible for authorizing natural gas. By consolidating this authority in a exports of domestically produced 4 Id. single authorization without any natural gas—including LNG, 5 Id. at 15 U.S.C. 717b(a). increase in total approved export compressed natural gas, and 6 See Sierra Club v. U.S. Dep’t of Energy, 867 F.3d volumes, this action will streamline compressed gas liquid 1—to foreign 189, 203 (D.C. Cir. 2017) (‘‘We have construed 2 [NGA section 3(a)] as containing a ‘general DOE’s regulatory process and reduce countries under section 3 of the NGA. presumption favoring [export] authorization.’ ’’) administrative burdens. This policy Under section 3(c) of the NGA, exports (quoting W. Va. Pub. Serv. Comm’n v. U.S. Dep’t statement affects only future long-term of natural gas to countries with which of Energy, 681 F.2d 847, 856 (D.C. Cir. 1982)). export authorizations issued by DOE the United States has entered into a free 7 See id. (‘‘there must be ‘an affirmative showing trade agreement (FTA) requiring of inconsistency with the public interest’ to deny under the Natural Gas Act (NGA). DOE the application’’ under NGA section 3(a)) (quoting is concurrently issuing a blanket order national treatment for trade in natural Panhandle Producers & Royalty Owners Ass’n v. amending existing export authorizations Econ. Regulatory Admin., 822 F.2d 1105, 1111 (D.C. consistent with this policy statement. 1 In referring to natural gas in this policy Cir. 1987)). Additionally, qualifying small-scale statement, DOE refers primarily, but not exports of natural gas to non-FTA countries are DATES: This policy statement is effective exclusively, to LNG. Several DOE proceedings have deemed to be consistent with the public interest on January 12, 2021. involved other types of natural gas: Compressed under NGA section 3(a). See 10 CFR 590.102(p); 10 FOR FURTHER INFORMATION CONTACT: natural gas (or CNG) in FE Docket Nos. 13–157– CFR 590.208(a); see also U.S. Dep’t of Energy, CNG and 20–57–CNG, and compressed gas liquid Small-Scale Natural Gas Exports; Final Rule, 83 FR Amy Sweeney, U.S. Department of (or CGL) in FE Docket Nos. 14–83–CGL, 16–22– 35106 (July 25, 2018). Energy (FE–34), Office of Regulation, CGL, and 19–147–CGL. See 15 U.S.C. 717a(5) 8 42 U.S.C. 4321 et seq. Analysis, and Engagement, Office of (definition of natural gas); 10 CFR 590.102(i) (same). 9 Typically, the federal agency responsible for Fossil Energy, Forrestal Building, Room 2 15 U.S.C. 717b. The authority to regulate the permitting the export facility—either the Federal imports and exports of natural gas, including LNG, Energy Regulatory Commission or the U.S. 3E–042, 1000 Independence Avenue under NGA section 3 has been delegated to the Department of Transportation’s Maritime SW, Washington, DC 20585; (202) 586– Assistant Secretary for FE in Redelegation Order Administration—serves as the lead agency in the 2627; [email protected]; Bill No. 00–002.04G, issued on June 4, 2019. Continued
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determine that an application is eligible by the authorization holders’ natural gas a short-term or spot market basis’’ from for a categorical exclusion from the supply and sales contracts that often the Sabine Pass Liquefaction Project.21 preparation or adoption of an EIS or EA, have similarly lengthy terms. In the In evaluating the non-FTA portion of pursuant to DOE’s regulations long-term orders issued to date, DOE the application, DOE stated that it implementing NEPA.10 specifies that the authorization holder is already had ‘‘conducted a full public authorized to export the natural gas interest review under NGA section 3(a)’’ II. Regulatory Background ‘‘pursuant to one or more long-term for Sabine Pass’s long-term non-FTA A. DOE Regulations Involving Contract contracts (a contract greater than two authorization.22 Next, DOE noted that Terms years).’’ 16 Sabine Pass was seeking only to export a non-additive portion of its total export DOE’s regulations implementing C. Short-Term Export Authority section 3 of the NGA are codified in 10 volume over the two-year period. DOE In 2015, DOE received the first found: CFR part 590. In relevant part, any application requesting short-term (or person applying to export natural gas Provided that the volumes proposed for ‘‘blanket’’) authorization to export export . . . when added to any volumes from the United States or to amend an domestically produced LNG over a two- existing export authorization 11 is exported under Sabine Pass’ long-term export year period to both FTA and non-FTA authorization, do not exceed [the approved required to provide DOE with ‘‘a copy countries under NGA section 3.17 In the long-term export volume] on an annual (i.e., of all relevant contracts and purchase application, filed by Sabine Pass consecutive 12 month) basis, the public 12 agreements’’ and to identify any Liquefaction, LLC (Sabine Pass), Sabine interest impacts of the total exports will not ‘‘contract volumes’’ related to the Pass noted that it held (at that time) two increase as a consequence of our approval of 13 23 supply of natural gas to be exported. long-term FTA orders and one long-term the Application in this proceeding. DOE’s regulations, however, do not non-FTA order authorizing it to export On this basis, DOE concluded that ‘‘no address the terms of contracts for the domestically produced LNG from the additional public interest review supply or export of natural gas, or Sabine Pass Liquefaction Project, then beyond that conducted in the earlier distinguish between types of export under construction in Cameron Parish, non-FTA export proceedings is authorizations based on the contract Louisiana.18 Sabine Pass requested to warranted.’’ 24 term. export a subset of its total export In the ordering paragraphs for Sabine B. Long-Term Export Authority volume approved under its long-term Pass’s short-term order, DOE specified authorizations for the two-year period. that Sabine Pass was authorized to Because of the time, complexity, and Sabine Pass explained that, in export the requested LNG ‘‘pursuant to expense of commercializing, financing, anticipation of the start of liquefaction transactions that have terms of no longer and constructing LNG export terminals, operations at the Liquefaction Project, it than two years.’’ 25 DOE also required authorization holders typically apply to sought ‘‘to engage in short-term exports that ‘‘[t]he volume of LNG authorized DOE for long-term authority to export of LNG produced both prior to for export to non-FTA countries in this LNG (or other types of natural gas) from commercial operations as well as Order, when combined with the volume their export facility to FTA and non- subsequent to commercial operations if of LNG approved for export in [Sabine 14 FTA countries. Since 2010, DOE has and when appropriate market Pass’s long-term non-FTA order] shall issued more than 100 long-term opportunities arise.’’ 19 Sabine Pass not exceed [the total approved non-FTA authorizations approving the export of further stated that the requested short- volume] during any consecutive 12- natural gas in the form of LNG, term authorization would provide it month period.’’ 26 compressed natural gas, or compressed with ‘‘enhanced operational flexibility Under this framework, DOE has gas liquid to either FTA countries, non- and the ability to export produced LNG issued 13 additional short-term FTA countries, or both under cargoes that may be rejected by authorizations to supplement one or consolidated FTA and non-FTA orders. customers under one or more long-term more existing long-term authorizations These long-term authorizations—which contracts.’’ 20 for the same facility (or facilities) and originally ranged in duration from 20 to In January 2016, in DOE/FE Order No. authorization holder. To maintain this 30 years (depending on the type of 3767, DOE granted Sabine Pass’s export authority, authorization holders order) and which now may extend application to export LNG by vessel ‘‘on are required to apply for new short-term through the year 2050 15—are supported orders—and DOE is required to process through December 31, 2050, as the standard export and review those applications—every NEPA review process, and DOE serves as a term for long-term non-FTA authorizations, unless two years.27 Five of these short-term cooperating agency. Where no other federal agency a shorter term is requested by the applicant. See orders are currently active, including is responsible for permitting the export facility, U.S. Dep’t of Energy, Extending Natural Gas Export Sabine Pass’s most recent short-term DOE serves as the lead agency in the NEPA review Authorizations to Non-Free Trade Agreement process. Countries Through the Year 2050, Notice of Final 10 See 10 CFR part 1021, subpart D, appendix B Policy Statement and Response to Comments, 85 FR 21 Sabine Pass Liquefaction, LLC, DOE/FE Order (listing of categorical exclusions from preparation of 52237 (Aug. 25, 2020) [hereinafter Term Extension No. 3767, FE Docket No. 15–171–LNG, Order either an EA or EIS under NEPA). Policy Statement]. Granting Blanket Authorization to Export Liquefied 11 10 CFR 590.201(a). For purposes of this policy 16 See, e.g., Epcilon LNG LLC, DOE/FE Order No. Natural Gas by Vessel from the Sabine Pass LNG statement, DOE uses the terms ‘‘authorization’’ and 4629, FE Docket No. 20–31–LNG, Opinion and Terminal Located in Cameron Parish, Louisiana, at ‘‘order’’ interchangeably. Order Granting Long-Term Authorization to Export 2 (Jan. 13, 2016). 12 Id. at 10 CFR 590.202(c). Natural Gas to Mexico for Liquefaction, and to Re- 22 Id. at 9. 13 Id. at 10 CFR 590.202(b)(2). Export U.S.-Sourced Natural Gas in the Form of 23 Id. at 9–10 (emphasis added). 14 This policy statement does not apply to long- Liquefied Natural Gas from Mexico to Free Trade 24 Id. at 10. term export authorizations involving modes of Agreement and Non-Free Trade Agreement Nations, 25 Id. at 13 (Ordering Para. A). transport other than by marine vessel, including but at 55 (Dec. 8, 2020) (Ordering Para. A). 26 Id. at 13–14 (Ordering Para. B). 17 not limited to orders authorizing exports of natural Sabine Pass Liquefaction, LLC, FE Docket No. 27 See U.S. Dep’t of Energy, Office of Fossil gas by pipeline. 15–171–LNG, Application for Blanket Energy, ‘‘How to Obtain Authorization to Import 15 Effective August 25, 2020, DOE discontinued Authorization to Export Liquefied Natural Gas and/or Export Natural Gas and LNG—Types of its practice of granting a standard 20-year export (Nov. 6, 2015). Authorizations and Requests,’’ available at: https:// term for long-term authorizations to export 18 Id. at 2–3. www.energy.gov/fe/services/natural-gas-regulation/ domestically produced natural gas from the lower- 19 Id. at 4. how-obtain-authorization-import-andor-export- 48 states to non-FTA countries. DOE adopted a term 20 Id. at 6. natural-gas-and-lng.
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order issued in January 2020.28 As holder. If an authorization holder has a liquid—will include authority to export indicated, each of these orders approves long-term export order tied to contracts the same approved volume pursuant to the requested short-term exports on a of two years or longer, but wishes to transactions with terms of less than two non-additive basis to the previously export a subset of that approved volume years on a non-additive basis (including approved long-term exports for each on a short-term or spot market basis non-additive commissioning volumes to authorization holder—meaning without under transactions with terms of less be exported prior to the start of a any increase in the total export volume than two years (including facility’s commercial operations). for the respective facility (or facilities). commissioning volumes prior to the This policy statement applies only to Additionally, in every short-term start of a facility’s commercial future long-term authorizations to order issued for non-FTA exports under operations 34), DOE finds that it is export natural gas.38 Concurrently with NGA section 3(a), DOE has evaluated its beneficial to provide both types of this policy statement, DOE is issuing a obligations under NEPA. In each order, authority in a single consolidated order blanket order that (i) amends existing DOE determined that the approval of the going forward. long-term export authorizations to application ‘‘will not result in any As an initial matter, DOE’s regulations include short-term export authority incremental environmental impacts as implementing NGA section 3 do not under NGA section 3(a) and (c), and (ii) compared to the environmental impacts address the terms of an applicant’s vacates DOE’s existing short-term orders previously reviewed’’ for the natural gas supply or sales contracts, (and short-term export authority granted corresponding long-term nor do they distinguish between types in other orders) in light of DOE’s action authorization(s).29 DOE also found that of export authority on this basis.35 to consolidate this authority in each approval of each application would not Therefore, there is no legal requirement corresponding long-term require additional construction or for DOE to continue issuing separate authorization.39 DOE has included a list modification to the previously approved short-term and long-term authorizations of the affected export authorizations in facilities.30 Accordingly, in every short- on a non-additive basis from the same that order. term order for non-FTA exports to date, facility. IV. Administrative Benefits DOE has granted the non-FTA portion of DOE also finds that there are no the application, in part, based on a practical benefits to continuing to In this policy statement, DOE is not categorical exclusion from the separate these types of authorizations. proposing any new requirements for preparation of an EA or EIS under DOE developed this approach in 2016 applicants or authorization holders NEPA 31 (specifically, categorical during a rapidly evolving regulatory under 10 CFR part 590. Rather, DOE’s exclusion B5.7 under DOE’s regulations period for exports of LNG and other objective to streamline DOE’s at 10 CFR part 1021, subpart D, forms of natural gas. At this point, administrative process and to minimize appendix B).32 however, DOE’s regulatory practice is administrative burdens and uncertainty well established, U.S. companies have on the U.S. natural gas industry by III. Policy Statement been exporting domestically produced conserving resources that would be Nearly five years ago, in January 2016, LNG from the lower 48-states around utilized to apply for and process short- DOE issued its first short-term LNG the globe for nearly five years,36 and the term export authorizations, respectively, export authorization to Sabine Pass to need for U.S. exporters to have without any incremental benefit to the supplement its existing long-term LNG operational flexibility to compete in the public. export authorizations.33 Since that time, global marketplace is greater than 37 V. Approval of the Office of the the U.S. market for natural gas—and, in ever. Based on its analysis of the U.S. Secretary particular, the LNG export market—has natural gas market, DOE/FE believes matured, as has DOE’s understanding of this action is in the public interest The Secretary of Energy has approved the administrative burdens associated under NGA section 3. publication of this policy statement. Accordingly, under this policy with implementing its regulatory Signing Authority program under NGA section 3. Upon statement, DOE is establishing that review, DOE has determined that it is no certain long-term authorizations to This document of the Department of longer necessary to issue separate long- export domestically produced natural Energy was signed on December 18, term and short-term authorizations to gas—including LNG, compressed 2020, by Steven Winberg, Assistant export natural gas from the same facility natural gas, and compressed gas Secretary, Office of Fossil Energy, (or facilities) for the same authorization pursuant to delegated authority from the 34 Cf. U.S. Dep’t of Energy, Office of Fossil Secretary of Energy. That document Energy, LNG Monthly, at 38 (Nov. 2020), available with the original signature and date is 28 Sabine Pass Liquefaction, LLC, DOE/FE Order at: https://www.energy.gov/sites/prod/files/2020/ No. 4487, FE Docket No. 19–133–LNG, Order 11/f80/LNG%20Monthly%202020_4.pdf (defining maintained by DOE. For administrative Granting Blanket Authorization to Export Liquefied ‘‘commissioning cargoes’’ as ‘‘pre-commercial purposes only, and in compliance with Natural Gas to Free Trade Agreement and Non-Free cargos loaded while export facility operations are requirements of the Office of the Federal Trade Agreement Nations, at 14–15 (Jan. 15, 2020) still undergoing final testing and inspection,’’ and Register, the undersigned DOE Federal (Ordering Paras. A, B). stating that ‘‘[c]ommissioning cargos may occur 29 See, e.g., id. at 12. multiple times for the same facility as individual Register Liaison Officer has been 30 See, e.g., id. at 12–13. LNG trains enter service’’). authorized to sign and submit the 31 See, e.g., id. at 12–13, 14 (Findings Para. (3)). 35 See supra § II.A (discussing DOE’s regulations 32 10 CFR part 1021, Subpt. D, App. B, Categorical implementing NGA section 3 at 10 CFR part 590). 38 As noted, this policy statement does not apply Exclusion B5.7) (providing a categorical exclusion 36 Indeed, after four years exporting at market- to long-term export authorizations involving modes where approvals or disapprovals of authorizations based levels, the United States has become one of of transport other than by marine vessel, including to import or export natural gas under NGA section the top three LNG exporters in the world. See Term but not limited to orders authorizing exports of 3 involve minor operational changes, but not new Extension Policy Statement, 85 FR 52244 (Aug. 25, natural gas by pipeline. construction). DOE notes that, on January 4, 2021, 2020). 39 See U.S. Dep’t of Energy, DOE/FE Order No. an amended form of this B5.7 categorical exclusion 37 DOE recently discussed the benefits associated 4641, FE Docket Nos. 10–85–LNG, et al., Order will take effect. See U.S. Dep’t of Energy, National with increasing operational flexibility for U.S. Amending Long-Term Authorizations for the Export Environmental Policy Act Implementing exporters, including but not limited to providing of Natural Gas to Include Short-Term Export Procedures; Final Rule, 85 FR 78197 (Dec. 4, 2020) economic benefits and improving energy security Authority on a Non-Additive Basis, and Vacating (effective date of Jan. 4, 2021). for the United States and its allies. See id. at 85 FR Related Short-Term Authority in Separate Orders 33 See supra note 21. 52244 (Aug. 25, 2020). (Dec. 18, 2020).
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document in electronic format for the Executive Secretary of the FDIC. appointed by the Board, the FDIC is publication, as an official document of These functions include but are not making technical changes to part 308 to the Department of Energy. This limited to: (1) Serving in place of an ALJ update outdated references to certain administrative process in no way alters when no ALJ has jurisdiction over an position titles. administrative proceeding; (2) issuing the legal effect of this document upon II. Exemption From Public Notice and rulings in certain administrative publication in the Federal Register. Comment proceedings; and (3) serving as the Signed in Washington, DC, on December Section 553 of the Administrative 21, 2020. custodian of records for administrative Procedure Act (APA) (5 U.S.C. 553) sets Treena V. Garrett, proceedings. See generally, 12 CFR 308.102(b) and 308.105. forth requirements for providing the Federal Register Liaison Officer, U.S. On June 21, 2018, the U.S. Supreme general public notice of, and the Department of Energy. Court held that the ALJs employed by opportunity to comment on, proposed [FR Doc. 2020–28599 Filed 1–11–21; 8:45 am] the U.S. Securities and Exchange agency rules. However, unless notice or BILLING CODE 6450–01–P Commission (SEC) were ‘‘inferior hearing is required by statute, those officers’’ of the United States under the requirements do not apply to Appointments Clause of the United interpretive rules, general statements of FEDERAL DEPOSIT INSURANCE States Constitution because these ALJs policy, or rules of agency organization, CORPORATION hold a continuing office established by procedure, or practice. See 5 U.S.C. law, and they exercise ‘‘significant 553(b)(A). 12 CFR Part 308 discretion’’ in connection with certain The FDIC is updating part 308, its RIN 3064–AF69 ‘‘important functions’’ when presiding rules of practice and procedure, to over administrative hearings. Lucia v. substitute the Administrative Officer for FDIC Rules of Practice and Procedure; SEC, 138 S. Ct. 2044, 2053–2054 (2018) the Executive Secretary in multiple Technical Revisions (Lucia). As inferior officers, the places. Since the changes relate to Supreme Court held that the SEC’s ALJs agency organization, procedure, or AGENCY: Federal Deposit Insurance are ‘‘subject to the Appointments Clause practice, the rules are being published Corporation. and as such, can only be appointed by in final form without public notice and ACTION: Final rule. the President, ‘‘Courts of Law’’ or comment. SUMMARY: The Federal Deposit ‘‘Heads of Departments.’’ See, Lucia, III. Regulatory Analysis Insurance Corporation (FDIC) is 138 S. Ct. 2044, 2046. A. Congressional Review Act amending its rules of practice and Although the Lucia decision did not procedure to codify the agency’s directly affect the FDIC or the ALJs for Under the Congressional Review Act longstanding practice of having certain the FDIC, the Board nevertheless elected (CRA), ‘‘[b]efore a rule can take effect, adjudicative functions performed by an to formally appoint the ALJs that the Federal agency promulgating such inferior officer of the United States preside over FDIC enforcement rule shall submit to each House of the appointed by the FDIC’s Board of proceedings. The ALJs who were Congress and to the Comptroller General serving at the time of the Lucia decision Directors (Board). Additionally, the a report containing—(i) a copy of the were appointed by the Board on July 19, FDIC is making other technical edits to rule; (ii) a concise general statement 2018. See FDIC Board Resolution its rules of practice and procedure to relating to the rule, including whether it 085152. Since that time, the Board has update references to certain positions is a major rule; and (iii) the proposed appointed all ALJs that preside over 1 within the FDIC Legal Division whose effective date of the rule.’’ The CRA FDIC enforcement proceedings. titles are outdated. further defines the term ‘‘rule’’ as Since the Lucia decision, the FDIC has having ‘‘the meaning given such term in DATES: The final rule is effective on received questions regarding whether January 12, 2021. section 551, except that such term does the FDIC’s Executive Secretary was also not include—(A) any rule of particular FOR FURTHER INFORMATION CONTACT: appointed in a manner consistent with applicability . . . ; (B) any rule relating Romulus A. Johnson, Counsel, Legal the Supreme Court’s ruling in Lucia. In to agency management or personnel; or Division, (202) 898–3820, romjohnson@ fact, the Board duly appointed the (C) any rule of agency organization, fdic.gov; Josephine M. Bahn, Senior FDIC’s current Executive Secretary as an procedure, or practice that does not Attorney, Legal Division, (202) 898– inferior officer on June 22, 1997, substantially affect the rights or 6576, [email protected]; or Nicholas S. pursuant to Article II of the United obligations of non-agency parties.’’ 2 Kazmerski, Counsel, Legal Division, States Constitution and 12 U.S.C. The FDIC is updating part 308, its (202) 898–3524, [email protected]. 1819(a) (Fifth) (allowing the FDIC to rules of practice and procedure, to SUPPLEMENTARY INFORMATION: ‘‘appoint by its Board of Directors such clarify that certain adjudicative officers and employees as are not I. Background functions, specified in part 308 as being otherwise provided for in this chapter’’). performed by the FDIC’s Executive Administrative enforcement Nonetheless, in the interest of Secretary or Assistant Executive proceedings brought by the FDIC are transparency and to assuage any Secretary, will be performed by an subject to the Administrative Procedure outstanding concerns about this issue, ‘‘Administrative Officer’’ or ‘‘Assistant Act (APA), 5 U.S.C. 551 et seq., and the we are amending part 308 to clarify and Administrative Officer’’ who has been FDIC Rules of Practice and Procedure, to expressly provide that such duly appointed by the Board. 12 CFR part 308. Under part 308, adjudicative functions will continue to Additionally, the FDIC is updating evidentiary hearings and related be performed by an inferior officer of outdated references to certain position proceedings are generally presided over the United States (Administrative titles in part 308. These amendments do by an Administrative Law Judge (ALJ). Officer) that has been duly appointed by not constitute substantive changes, but See generally, 5 U.S.C. 556; 12 CFR the Board. merely conform the titles in the 308.5, and 308.3. Additionally, part 308 In addition to clarifying that these provides that certain procedural and adjudicative functions are performed by 1 5 U.S.C. 801(a)(1)(A). adjudicative functions are reserved to an Administrative Officer that is duly 2 5 U.S.C. 804(3).
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regulation to the current titles of these quarter that begins on or after the date § 308.3 Definitions. positions. on which the regulations are published * * * * * The clarifications relate to agency in final form.4 The FDIC has determined Administrative Officer means an management and personnel, and to that the rule would not impose inferior officer of the Federal Deposit agency practice and procedure. Further, additional reporting, disclosure, or other Insurance Corporation, duly appointed to the extent that non-agency parties are requirements; therefore the by the Board of Directors of the Federal impacted by the amended rules (i.e., requirements of the RCDRIA do not Deposit Insurance Corporation to serve they may be required to submit requests apply. as the Board’s designee to hear certain and documents to the attention of the motions or requests in an adjudicatory E. Plain Language Administrative Officer rather than the proceeding and to be the official Executive Secretary), their rights and Section 722 of the Gramm-Leach- custodian of the record for the Federal obligations will not be substantially Bliley Act 5 requires the Federal banking Deposit Insurance Corporation. affected. As such, submission to agencies to use ‘‘plain language’’ in all * * * * * Congress and the Comptroller General is proposed and final rules published after Assistant Administrative Officer not required for the rules to become January 1, 2000. In light of this means an inferior officer of the Federal effective. requirement, the FDIC has sought to Deposit Insurance Corporation, duly present the final rule in a simple and B. Paperwork Reduction Act appointed by the Board of Directors of straightforward manner. the Federal Deposit Insurance This rule does not propose new or Corporation to serve as the Board’s revisions to existing ‘‘collection[s] of List of Subjects in 12 CFR Part 308 designee to hear certain motions or information’’ as that term is defined Administrative practice and requests in an adjudicatory proceeding under the Paperwork Reduction Act of procedure, Bank deposit insurance, upon the designation or unavailability 1995, Public Law 104–13, 44 U.S.C. Banks, banking, Claims, Crime, Equal of the Administrative Officer. chapter 35, and its implementing access to justice, Fraud, Investigations, regulations, 5 CFR part 1320. Lawyers, Penalties, Savings * * * * * associations. Decisional employee means any C. Regulatory Flexibility Act member of the Federal Deposit The Regulatory Flexibility Act (RFA) 12 CFR Chapter III Insurance Corporation’s or (5 U.S.C. 601–612) does not apply to a Authority and Issuance administrative law judge’s staff who has not engaged in an investigative or rulemaking where a general notice of For the reasons stated in the proposed rulemaking is not required. (5 prosecutorial role in a proceeding and preamble, the FDIC amends 12 CFR part who may assist the Board of Directors, U.S.C. 603 and 604). As noted 308 as follows: previously, the FDIC has determined the administrative law judge, or the that it is unnecessary to publish a notice PART 308—RULES OF PRACTICE AND Administrative Officer, or the Assistant of proposed rulemaking for the final PROCEDURE Administrative Officer, in preparing rule amending part 308. Accordingly, orders, recommended decisions, the RFA’s requirements relating to an ■ 1. The authority citation for part 308 decisions, and other documents under initial and final regulatory flexibility continues to read as follows: the Uniform Rules. analysis do not apply to this rulemaking Authority: 5 U.S.C. 504, 554–557; 12 * * * * * for part 308. U.S.C. 93(b), 164, 505, 1464, 1467(d), 1467a, Person means an individual, sole proprietor, partnership, corporation, D. Riegle Community Development and 1468, 1815(e), 1817, 1818, 1819, 1820, 1828, 1829, 1829(b), 1831i, 1831m(g)(4), 1831o, unincorporated association, trust, joint Regulatory Improvement Act of 1994 1831p–1, 1832(c), 1884(b), 1972, 3102, venture, pool, syndicate, agency, or Pursuant to section 302(a) of the 3108(a), 3349, 3909, 4717, 5412(b)(2)(C), other entity or organization, including Riegle Community Development and 5414(b)(3); 15 U.S.C. 78(h) and (i), 78o(c)(4), an institution as defined in this section. 78o–4(c), 78o–5, 78q–1, 78s, 78u, 78u–2, Regulatory Improvement Act * * * * * (RCDRIA),3 78u–3, 78w, 6801(b), 6805(b)(1); 28 U.S.C. in determining the effective ■ 3. Amend § 308.18 by revising date and administrative compliance 2461 note; 31 U.S.C. 330, 5321; 42 U.S.C. 4012a; Pub. L. 104–134, sec. 31001(s), 110 paragraph (a)(1)(ii) to read as follows: requirements for new regulations that Stat. 1321; Pub. L. 109–351, 120 Stat. 1966; impose additional reporting, disclosure, Pub. L. 111–203, 124 Stat. 1376; Pub. L. 114– § 308.18 Commencement of proceeding or other requirements on insured 74, sec. 701, 129 Stat. 584. and contents of notice. depository institutions (IDIs), each ■ 2. Amend § 308.3 by: (a) * * * Federal banking agency must consider, ■ a. Removing the first-level paragraph (1) * * * (ii) The notice must be served by consistent with the principle of safety designations from paragraphs (a) Enforcement Counsel upon the and soundness and the public interest, through (s); respondent and given to any other any administrative burdens that the ■ b. Adding definitions of appropriate financial institution regulations would place on depository ‘‘Administrative Officer’’ and ‘‘Assistant supervisory authority where required by institutions, including small depository Administrative Officer’’ in alphabetical law. institutions and customers of depository order; institutions, as well as the benefits of ■ c. Revising the definition of * * * * * the regulations. In addition, section ‘‘Decisional employee’’; ■ 4. Amend § 308.23 by revising 302(b) of RCDRIA requires new ■ d. Removing the definition of paragraphs (c) and (d) to read as follows: regulations and amendments to ‘‘Executive Secretary’’; and regulations that impose additional ■ e. Revising the definition of ‘‘Person’’. § 308.23 Motions. reporting, disclosures, or other new The additions and revisions read as * * * * * requirements on IDIs generally to take follows: (c) Filing of motions. Motions must be effect on the first day of a calendar filed with the administrative law judge, 4 12 U.S.C. 4802. except that following the filing of the 3 12 U.S.C. 4802(a). 5 12 U.S.C. 4809. recommended decision, motions must
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be filed with the Administrative Officer briefs, memoranda, and other Board of Directors or on the written for disposition by the Board of supporting papers filed in connection request of any party filed with the Directors. with the hearing. The administrative Administrative Officer within the time (d) Responses. (1) Except as otherwise law judge shall serve upon each party for filing exceptions, the Board of provided in this paragraph (d), within the recommended decision, findings, Directors may order and hear oral ten days after service of any written conclusions, and proposed order. argument on the recommended findings, motion, or within such other period of (b) Filing of index. At the same time conclusions, decision, and order of the time as may be established by the the administrative law judge files with administrative law judge. A written administrative law judge or the and certifies to the Administrative request by a party must show good Administrative Officer, any party may Officer for final determination the cause for oral argument and state file a written response to a motion. The record of the proceeding, the reasons why arguments cannot be administrative law judge shall not rule administrative law judge shall furnish to presented adequately in writing. A on any oral or written motion before the Administrative Officer a certified denial of a request for oral argument each party has had an opportunity to index of the entire record of the may be set forth in the Board of file a response. proceeding. The certified index shall Directors’ final decision. Oral argument (2) The failure of a party to oppose a include, at a minimum, an entry for before the Board of Directors must be on written motion or an oral motion made each paper, document or motion filed the record. on the record is deemed a consent by with the administrative law judge in the * * * * * proceeding, the date of the filing, and that party to the entry of an order ■ 9. Amend § 308.102 by revising the substantially in the form of the order the identity of the filer. The certified index shall also include an exhibit section heading and paragraphs (a), (b) accompanying the motion. heading, (b)(1), and (b)(2) introductory * * * * * index containing, at a minimum, an entry consisting of exhibit number and text to read as follows: ■ 5. Amend § 308.33 by revising title or description for: Each exhibit paragraph (a) to read as follows: § 308.102 Authority of Board of Directors introduced and admitted into evidence and Administrative Officer. § 308.33 Public hearings. at the hearing; each exhibit introduced (a) The Board of Directors. (1) The but not admitted into evidence at the (a) General rule. All hearings shall be Board of Directors may, at any time hearing; each exhibit introduced and open to the public, unless the FDIC, in during the pendency of a proceeding, admitted into evidence after the its discretion, determines that holding perform, direct the performance of, or completion of the hearing; and each an open hearing would be contrary to waive performance of, any act which exhibit introduced but not admitted into the public interest. Within 20 days of could be done or ordered by the evidence after the completion of the service of the notice or, in the case of Administrative Officer. hearing. change-in-control proceedings under (2) Nothing contained in this part ■ section 7(j)(4) of the FDIA (12 U.S.C. 7. Amend § 308.39 by revising shall be construed to limit the power of 1817(j)(4)), within 20 days from service paragraph (a) to read as follows: the Board of Directors granted by of the hearing order, any respondent § 308.39 Exceptions to recommended applicable statutes or regulations. may file with the Administrative Officer decision. (b) The Administrative Officer. (1) a request for a private hearing, and any (a) Filing exceptions. Within 30 days When no administrative law judge has party may file a reply to such a request. after service of the recommended jurisdiction over a proceeding, the A party must serve on the decision, findings, conclusions, and Administrative Officer may act in place administrative law judge a copy of any proposed order under § 308.38, a party of, and with the same authority as, an request or reply the party files with the may file with the Administrative Officer administrative law judge, except that Administrative Officer. The form of, and written exceptions to the administrative the Administrative Officer may not hear procedure for, these requests and replies law judge’s recommended decision, a case on the merits or make a are governed by § 308.23. A party’s findings, conclusions, or proposed recommended decision on the merits to failure to file a request or a reply order, to the admission or exclusion of the Board of Directors. constitutes a waiver of any objections evidence, or to the failure of the (2) Pursuant to authority delegated by regarding whether the hearing will be administrative law judge to make a the Board of Directors, the public or private. ruling proposed by a party. A Administrative Officer and Assistant * * * * * supporting brief may be filed at the time Administrative Officer, upon the advice ■ 6. Revise § 308.38 to read as follows: the exceptions are filed, either as part of and recommendation of the Deputy the same document or in a separate General Counsel for Litigation or, in his § 308.38 Recommended decision and filing document. absence, the Assistant General Counsel of record. * * * * * for General Litigation, may issue rulings in proceedings under sections 7(j), 8, (a) Filing of recommended decision ■ 8. Amend § 308.40 by revising 18(j), 19, 32 and 38 of the FDIA (12 and record. Within 45 days after paragraphs (a) and (b) to read as follows: expiration of the time allowed for filing U.S.C. 1817(j), 1818, 1828(j), 1829, reply briefs under § 308.37(b), the § 308.40 Review by Board of Directors. 1831i and 1831o) concerning: administrative law judge shall file with (a) Notice of submission to Board of * * * * * and certify to the Administrative Directors. When the Administrative ■ 10. Amend § 308.103 by revising Officer, for decision, the record of the Officer determines that the record in the paragraph (b)(1) to read as follows: proceeding. The record must include proceeding is complete, the the administrative law judge’s Administrative Officer shall serve notice § 308.103 Appointment of administrative recommended decision, recommended upon the parties that the proceeding has law judge. findings of fact, recommended been submitted to the Board of Directors * * * * * conclusions of law, and proposed order; for final decision. (b) * * * all prehearing and hearing transcripts, (b) Oral argument before the Board of (1) The Enforcement Counsel shall exhibits, and rulings; and the motions, Directors. Upon the initiative of the promptly after issuance of the notice file
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the matter with the Office of Financial FDIC, for that reason alone may be sought and the reason therefor, and Institution Adjudication (‘‘OFIA’’) disqualified from practicing before the shall include a statement indicating which shall secure the appointment of FDIC until such time as the appropriate why the exemption would be consistent an administrative law judge to hear the filing shall be made. Failure to file any with the public interest or the proceeding. such paper shall not impair the protection of investors. * * * * * operation of any other provision of this ■ 16. Amend § 308.140 by revising ■ 11. Revise § 308.104 to read as section. paragraph (a) to read as follows: follows: (3) A suspension or disbarment under paragraph (b)(1) of this section from § 308.140 Newspaper notice. § 308.104 Filings with the Board of practice before the FDIC shall continue (a) General rule. If the Board of Directors. until the applicant has been reinstated (a) General rule. All materials Directors or its designee, in its sole by the Board of Directors for good cause discretion, decides to further consider required to be filed with or referred to shown, provided that any person the Board of Directors in any an application for exemption, there suspended or disbarred under paragraph shall be served upon the applicant proceedings under this part shall be (b)(1) of this section shall be filed with the Administrative Officer, instructions to publish one notification automatically reinstated by the in a newspaper of general circulation in Federal Deposit Insurance Corporation, Administrative Officer, upon 550 17th Street NW, Washington, DC the community where the main office of appropriate application, if all the the issuer is located. The applicant shall 20429. grounds for suspension or disbarment (b) Scope. Filings to be made with the furnish proof of such publication to the under paragraph (b)(1) of this section Administrative Officer or such other Administrative Officer include are subsequently removed by a reversal pleadings and motions filed during the person as may be directed in the of the conviction (or the passage of time instructions. proceeding; the record filed by the since the conviction) or termination of administrative law judge after the the underlying suspension or * * * * * issuance of a recommended decision; disbarment. An application for ■ 17. Revise § 308.141 to read as the recommended decision filed by the reinstatement on any other grounds by follows: administrative law judge following a any person suspended or disbarred motion for summary disposition; under paragraph (b)(1) of this section § 308.141 Notice of hearing. referrals by the administrative law judge may be filed no sooner than one year Within ten days after expiration of the of motions for interlocutory review; after the suspension or disbarment, and period for receipt of comments pursuant motions and responses to motions filed thereafter, a new request for to § 308.140, the Administrative Officer by the parties after the record has been reinstatement may be made no sooner shall serve upon the applicant and any certified to the Board of Directors; than one year after the counsel’s most person who has requested an exceptions and requests for oral recent reinstatement application. The opportunity to be heard written argument; and any other papers application must comply with the notification indicating the place and required to be filed with the Board of requirements of § 303.3 of this chapter. time of the hearing. The hearing shall be Directors under this part. An applicant for reinstatement under held not later than 30 days after service ■ 12. Revise § 308.105 to read as this provision may, in the Board of of the notification of hearing. The follows: Directors’ sole discretion, be afforded a notification shall contain the name and § 308.105 Custodian of the record. hearing. address of the presiding officer designated by the Administrative The Administrative Officer is the * * * * * Officer and a statement of the matters to official custodian of the record when no ■ 14. Amend § 308.112 by revising be considered. administrative law judge has paragraph (a)(2)(ii) to read as follows: ■ 18. Amend § 308.154 by revising jurisdiction over the proceeding. As the § 308.112 Notice of disapproval. official custodian, the Administrative paragraph (c)(1) to read as follows: Officer shall maintain the official record (a) * * * § 308.154 Decision on review. of all papers filed in each proceeding. (2) * * * (ii) Indicate that a hearing may be ■ 13. Amend § 308.109 by revising * * * * * requested by filing a written request paragraphs (b)(2) and (3) to read as (c) * * * with the Administrative Officer within follows: (1) Inform the petitioner that a written ten days after service of the notice of request for a hearing, stating the relief disapproval; and if a hearing is § 308.109 Suspension and disbarment. desired and the grounds therefore, may requested, that an answer to the notice * * * * * be filed with the Administrative Officer of disapproval, as required by § 308.113, (b) * * * within 15 days after the receipt of the must be filed within 20 days after (2) Any person appearing or denial; and practicing before the FDIC who is the service of the notice of disapproval. * * * * * subject of an order, judgment, decree, or * * * * * finding of the types set forth in ■ 15. Revise § 308.139 to read as ■ 19. Amend § 308.155 by revising paragraph (b)(1) of this section shall follows: paragraphs (a), (c)(1) and (9), and (f) to promptly file with the Administrative read as follows: Officer a copy thereof, together with any § 308.139 Application for exemption. related opinion or statement of the Any interested person may file a § 308.155 Hearing. agency or tribunal involved. Any person written application for an exemption (a) Hearing dates. The Administrative who fails to so file a copy of the order, under this subpart with the Officer shall order a hearing to be judgment, decree, or finding within 30 Administrative Officer, Federal Deposit commenced within 30 days after receipt days after the entry of the order, Insurance Corporation, 550 17th Street of a request for a hearing filed pursuant judgment, decree, or finding or the date NW, Washington, DC 20429. The to § 308.154. Upon request of the such person initiates practice before the application shall specify the exemption petitioner or the FDIC, the presiding
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officer or the Administrative Officer designated place, before a presiding (9) The presiding officer shall forward may order a later hearing date. officer designated by the Administrative his or her recommendation to the * * * * * Officer. * * * Administrative Officer who shall (c) * * * (9) The presiding officer shall forward promptly certify the entire record, (1) The hearing shall be held in his or her recommendation to the including the recommendation to the Washington, DC or at another Administrative Officer who shall Board of Directors. The Administrative designated place, before a presiding promptly certify the entire record, Officer’s certification shall close the officer designated by the Administrative including the recommendation to the record. Officer. * * * Board of Directors or its designee. The * * * * * (9) The presiding officer shall forward Administrative Officer certification (e) Decision by Board of Directors or his or her recommendation to the shall close the record. its designee. Within 60 days following Administrative Officer who shall * * * * * the Administrative Officer’s certification promptly certify the entire record, (f) Decision by Board of Directors or of the record to the Board of Directors including the recommendation to the its designee. Within 60 days following or its designee, the Board of Directors or Board of Directors or its designee. The the Administrative Officer’s certification its designee shall notify the institution- Administrative Officer’s certification of the record to the Board of Directors affiliated party whether the notice of shall close the record. or its designee, the Board of Directors or suspension or prohibition or the order * * * * * its designee shall notify the affected of removal or prohibition will be (f) Decision by Board of Directors or person whether the person shall remain continued, terminated, or otherwise its designee. Within 45 days following barred under section 19. The modified. The notification shall state the Administrative Officer’s certification notification shall state the basis for any the basis for any decision of the Board of the record to the Board of Directors decision of the Board of Directors or its of Directors or its designee that is or its designee, the Board of Directors or designee that is adverse to the applicant. adverse to the institution-affiliated its designee shall notify the affected ■ 22. Amend § 308.163 by revising party. The Board of Directors or its individual whether the denial of the paragraphs (c)(1) and (d) introductory designee shall promptly rescind or notice will be continued, terminated, or text to read as follows: modify a notice of suspension or otherwise modified. The notification § 308.163 Notice of suspension or prohibition or an order of removal or shall state the basis for any decision of prohibition where the decision is the Board of Directors or its designee prohibition, and orders of removal or prohibition. favorable to the institution-affiliated that is adverse to the petitioner. The * * * * * party. Board of Directors or its designee shall ■ promptly rescind or modify the denial (c) * * * 24. Amend § 308.170 by revising (1) Inform the institution-affiliated where the decision is favorable to the paragraphs (a) introductory text and (d) party that a written request for a petitioner. to read as follows: hearing, stating the relief desired and ■ 20. Revise § 308.157 to read as grounds therefore, and any supporting § 308.170 Filing, content, and service of follows: evidence, may be filed with the documents. § 308.157 Denial of applications. Administrative Officer within 30 days (a) Time to file. An application and any other pleading or document related If an application is denied under 12 after service of the written notice or to the application shall be filed with the CFR part 303, subpart L, then the order; and Administrative Officer within 30 days applicant may request a hearing under * * * * * after service of the final order of the this subpart. The applicant will have 60 (d) To obtain a hearing, the Board of Directors in disposition of the days after the date of the denial to file institution-affiliated party shall file with proceeding whenever: a written request with the the Administrative Officer a written Administrative Officer. In the request, request for a hearing within 30 days * * * * * the applicant shall state the relief after service of the notice of suspension (d) Referral. Upon receipt of an desired, the grounds supporting the or prohibition or the order of removal or application, the Administrative Officer request for relief, and provide any prohibition, which shall: shall refer the matter to the supporting evidence that the applicant * * * * * administrative law judge who heard the believes is responsive to the grounds for ■ 23. Amend § 308.164 by revising underlying adversary proceeding, the denial. paragraphs (a), (b)(1) and (9), and (e) to provided that if the original ■ 21. Amend § 308.158 by revising read as follows: administrative law judge is unavailable, paragraphs (a), (c)(1) and (9), and (f) to or the Administrative Officer read as follows: § 308.164 Hearings. determines, in his or her sole discretion, (a) Hearing dates. The Administrative that there is cause to refer the matter to § 308.158 Hearings. Officer shall order a hearing to be a different administrative law judge, the (a) Hearing dates. The Administrative commenced within 30 days after receipt matter shall be referred to a different Officer shall order a hearing to be of a request for hearing filed pursuant to administrative law judge. commenced within 60 days after receipt § 308.163. Upon the request of the ■ 25. Amend § 308.171 by revising of a request for hearing on an institution-affiliated party, the presiding paragraph (a)(1) to read as follows: application filed under § 308.157. Upon officer or the Administrative Officer the request of the applicant or FDIC may order a later hearing date. § 308.171 Responses to application. enforcement counsel, the presiding * * * * * (a) * * * officer or the Administrative Officer (b) * * * (1) Within 20 days after service of an may order a later hearing date. (1) The hearing shall be held in application, counsel for the FDIC may * * * * * Washington, DC, or at another file with the Administrative Officer and (c) * * * designated place, before a presiding serve on all parties an answer to the (1) The hearing shall be held in officer designated by the Administrative application. Unless counsel for the FDIC Washington, DC, or at another Officer. * * * requests and is granted an extension of
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time for filing or files a statement of file with the Administrative Officer for the FDIC in a case may not, in that intent to negotiate under § 308.179, written exceptions thereto. A supporting or a factually related case, serve as a failure to file an answer within the 20- brief may also be filed. presiding officer or participate or advise day period will be treated as a consent (b) Decision of Board of Directors. The in the decision of the presiding officer to the award requested. Board of Directors shall render its or of the FDIC, except as witness or * * * * * decision within 60 days after the matter counsel in the proceeding. In the sole ■ 26. Revise § 308.179 to read as is submitted to it by the Administrative discretion of the presiding officer, upon follows: Officer. The Administrative Officer shall a specific showing of compelling need, furnish copies of the decision and order oral testimony of witnesses also may be § 308.179 Settlement negotiations. of the Board of Directors to the parties. presented. Enforcement counsel may If counsel for the FDIC and the Judicial review of the decision and represent the agency at the hearing. In applicant believe that the issues in a fee order may be obtained as provided in 5 hearings held pursuant to this paragraph application can be settled, they may U.S.C. 504(c)(2). (c)(4) there shall be no discovery, and jointly file with the Administrative ■ 29. Revise § 308.183 to read as the provisions of §§ 308.6 through Officer with a copy to the administrative follows: 308.12, 308.16, and 308.21 will apply. law judge a statement of their intent to (5) Decision on petition. Within 30 negotiate a settlement. The filing of this § 308.183 Payment of awards. calendar days after the hearing, the statement shall extend the time for filing An applicant seeking payment of an presiding officer will issue a decision. an answer under § 308.171 for an award made by the Board of Directors The presiding officer will grant a stay additional 30 days, and further shall submit to the Administrative upon a demonstration that a substantial extensions may be granted by the Officer a statement that the applicant likelihood exists of the respondent’s administrative law judge upon the joint will not seek judicial review of the success on the issues raised by the request of counsel for the FDIC and the decision and order or that the time for notice of intention and that, absent such applicant. seeking further review has passed and relief, the respondent will suffer ■ 27. Revise § 308.181 to read as no further review has been sought. The immediate and irreparable injury, loss, follows: FDIC will pay the amount awarded or damage. In the absence of such a within 30 days after receiving the demonstration, the presiding officer will § 308.181 Recommended decision. applicant’s statement, unless judicial notify the parties that the immediate The administrative law judge shall review of the award or of the underlying suspension will be continued pending file with the Administrative Officer a decision of the adversary adjudication the completion of the administrative recommended decision on the fee has been sought by the applicant or any proceedings pursuant to the notice of application not later than 90 days after other party to the proceeding. intention. The presiding officer will the filing of the application or 30 days ■ 30. Amend § 308.602 by revising serve a copy of the decision on, and after the conclusion of the hearing, paragraphs (c)(3) through (6) to read as simultaneously certify the record to, the whichever is later. The recommended follows: Administrative Officer. decision shall include written proposed (6) Review of presiding officer’s findings and conclusions on the § 308.602 Removal, suspension, or decision. The parties may seek review of debarment. applicant’s eligibility and its status as a the presiding officer’s decision by filing prevailing party and an explanation of * * * * * a petition for review with the the reasons for any difference between (c) * * * Administrative Officer within 10 the amount requested and the amount of (3) Petition to stay. Any accountant or calendar days after service of the the recommended award. The accounting firm immediately suspended decision. Replies must be filed within recommended decision shall also from performing audit services in 10 calendar days after the petition filing include, if at issue, proposed findings accordance with paragraph (c)(1) of this date. Upon receipt of a petition for on whether the FDIC’s position was section may, within 10 calendar days review and any reply, the substantially justified, whether the after service of the notice of immediate Administrative Officer will promptly applicant unduly protracted the suspension, file a petition with the certify the entire record to the Board of proceedings, or whether special Administrative Officer for a stay of such Directors. Within 60 calendar days of circumstances make an award unjust. immediate suspension. If no petition is the Administrative Officer’s The administrative law judge shall file filed within 10 calendar days, the certification, the Board of Directors will the record of the proceeding on the fee immediate suspension shall remain in issue an order notifying the affected application and, at the same time, serve effect. party whether or not the immediate upon each party a copy of the (4) Hearing on petition. Upon receipt suspension should be continued or recommended decision, findings, of a stay petition, the Administrative reinstated. The order will state the basis conclusions, and proposed order. Officer will designate a presiding officer of the Board’s decision. ■ 28. Revise § 308.182 to read as who will fix a place and time (not more Federal Deposit Insurance Corporation. than 10 calendar days after receipt of follows: By order of the Board of Directors. the petition, unless extended at the § 308.182 Board of Directors action. request of petitioner) at which the Dated at Washington, DC, on December 15, (a) Exceptions to recommended immediately suspended party may 2020. decision. Within 20 days after service of appear, personally or through counsel, James P. Sheesley, the recommended decision, findings, to submit written materials and oral Assistant Executive Secretary. conclusions, and proposed order, the argument. Any FDIC employee engaged [FR Doc. 2020–27944 Filed 1–11–21; 8:45 am] applicant or counsel for the FDIC may in investigative or prosecuting functions BILLING CODE 6714–01–P
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DEPARTMENT OF COMMERCE of advanced missiles and missile-related imposing licensing requirements that equipment, materials, software and apply to MTCR Category I and Category Bureau of Industry and Security technology. The Regime establishes a II items. As a Regime member, the common list of controlled items and a United States exercises sovereign 15 CFR Part 742 common export control policy that national discretion in making [Docket No. 201214–0341] member countries implement in implementing decisions. accordance with their national export Background on the Revised U.S. UAS RIN 0694–AI13 controls. The MTCR seeks to limit the Policy risk of proliferation of weapons of mass Change to the License Review Policy destruction (WMD) by controlling The U.S. Government remains for Unmanned Aerial Systems (UAS) exports of goods and technologies that committed to the goals of the MTCR, To Reflect Revised United States UAS could make a contribution to delivery including the objective of limiting the Export Policy systems (other than manned aircraft) for proliferation of unmanned delivery AGENCY: Bureau of Industry and such weapons. The United States systems for WMD. At the same time, the Security, Commerce. became a member at the Regime’s U.S. Government is cognizant of rapid advances in the uses of Unmanned ACTION: Final rule. founding in 1987. In 1993, the MTCR’s original focus on Aerial Systems (UAS), including SUMMARY: Consistent with President missiles for nuclear weapons delivery growing commercial uses for UAS that Donald J. Trump’s July 24, 2020 was expanded to include the meet the MTCR Category I control announcement of a change in U.S. proliferation of missiles for the delivery criteria, as well as the need to protect policy regarding the export of of all types of WMD, i.e., nuclear, U.S. national security and economic Unmanned Aerial Systems (UAS), the chemical, and biological weapons. Such security interests. An inflexible Bureau of Industry and Security (BIS) is proliferation has been identified as a approach to implementing the MTCR’s amending the Export Administration threat to international peace and strong presumption of denial that Regulations (EAR) licensing review security. One way to address this threat applies to Category I items creates a policy with respect to certain UAS that is to maintain vigilance over the transfer competitive disadvantage for the United are controlled for Missile Technology of missile equipment, material, and States and other MTCR partners by (MT) reasons. UAS that have a range related technologies usable for systems restraining industry globally from fully and payload capability equal to or capable of delivering WMD. MTCR participating in the expanding greater than 300 kilometers (km)/500 members voluntarily pledge to adopt the commercial UAS market, which kilograms (kg) are identified on the Regime’s Guidelines for Sensitive increasingly includes suppliers outside Missile Technology Control Regime Missile-Relevant Transfers (MTCR of the MTCR. Additionally, the U.S. (MTCR) Annex as Category I items. Guidelines) and to restrict the transfer of Government recognizes the need to Pursuant to this amendment, BIS will items contained in the Regime’s enhance security relationships with review export and reexport license Equipment, Software, and Technology countries that wish to collaborate on applications involving UAS that fall Annex. The Annex consists of Category counter-terrorism, border control, and within these parameters and a I and Category II items, with Category I other mutual security interests. maximum true airspeed of less than 800 including items of greatest sensitivity. Accordingly, the U.S. Government has km/hour (hr) for export licensing review Category I items include rocket systems recognized the need to update its purposes on a case-by-case basis under and unmanned aerial vehicle systems treatment of UAS that meet the 300 km/ the more flexible review policy with a range capability of 300 km and 500 kg threshold as MTCR Category I generally applied to MTCR Category II greater and a payload capability of 500 items for the implementation of the items under the EAR. BIS will also kg and greater, and production facilities MTCR’s strong presumption of denial review MT items for the design, and major sub-systems for such items. and export licensing review purposes to development, production, or use in such Category II items include rocket systems ensure U.S. economic, national security, UAS on a case-by-case basis. This policy and unmanned aerial vehicle systems and foreign policy interests are change reflects a reasonable approach to with a range of 300 km or greater but appropriately addressed. technological change and the protection below a payload capability of 500 kg. The United States has been working of the national security and economic Category II also includes a wide range with its MTCR partners on this issue interests of the United States, while of equipment, material, and since 2017, in the interest of updating simultaneously remaining committed to technologies, most of which have uses UAS controls to address the ongoing the MTCR and its core nonproliferation other than for systems capable of revolution in both UAS technology and objectives. delivering WMD. its applications. At the MTCR October Pursuant to the MTCR Guidelines, 2019 Plenary in Auckland, New Zealand DATES: This rule is effective January 12, transfers (including exports and the United States put forward a revised 2021. reexports) of Category I items are subject proposal to increase flexibility for FOR FURTHER INFORMATION CONTACT: to a ‘‘strong presumption of denial.’’ See export control purposes on a certain Sharon Bragonje, Nuclear and Missile MTCR Guidelines, Paragraph 2. subset of MTCR Category I UAS, based Technology Controls Division, Bureau Transfers of Category II Items are subject primarily on a speed value, and thus not of Industry and Security, Phone: (202) to a more flexible case-by-case review subject their transfer to the Regime’s 482–0434; Email: sharon.bragonje@ policy. strong presumption of denial. However, bis.doc.gov. The MTCR Guidelines are the MTCR partners have not achieved SUPPLEMENTARY INFORMATION: implemented through the national consensus on this proposal. export control laws, regulations and Background policies of Regime members. The United Unilateral Modification to U.S. The Missile Technology Control States has implemented in § 742.5 of the Licensing Policy for UAS Regime (MTCR or Regime) is an export EAR missile technology controls and To address the national security and control arrangement among 35 nations, policies that are consistent with the economic security concerns described including most of the world’s suppliers MTCR Guidelines, including by above, on July 24, 2020, President
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Trump announced a change in the end, UAS that fall within this subset of including foreign-made UAV systems policy of the United States regarding Category I UAS will continue to be that do so (whether or not the foreign- exports of UAS (July 24, 2020 Revised subject to a strong presumption of made systems are or will be subject to UAS Export Policy). In this final rule, denial if they are intended for use as the EAR). consistent with this revised policy, the WMD delivery systems, or if they BIS estimates that this licensing U.S. Government is amending the present a risk of diversion to such an review policy change will result in an licensing policy of the United States to end use. increase of twenty license applications allow greater flexibility in the export or This approach will maintain submitted annually to BIS. This increase reexport of certain MTCR Category I particular restraint on exports and is anticipated because certain exporters UAS subject to the Export reexports of those UAS that present that previously may have been deterred Administration Regulations (EAR). higher risk for WMD delivery—such as from applying for a license as a result Pursuant to this revision, the United cruise missiles, hypersonic aerial of the more restrictive license review States will invoke its national discretion vehicles, and advanced unmanned policy in place prior to this rule may on the implementation of the MTCR’s combat aerial vehicles—without unduly now be motivated to apply for licenses strong presumption of denial to treat a impeding exports for growing under the new case-by-case license subset of MTCR Category I UAS, i.e., commercial and conventional military review policy. In addition, in making those that have a range and payload applications. Finally, the United States this estimate, BIS took into account the capability equal to or greater than 300 notes that while all MTCR-related fact that the current number of km/500 kg but a maximum true airspeed concerns are considered when commercial U.S. UAVs with the of less than 800 km/hr, as Category II reviewing a potential export or reexport capability described in this final rule is UAS for export licensing review of all UAS, the decision to approve—or rather small. Consequently, under the purposes, which are generally subject to not approve—such an export or reexport new, more flexible license review a more flexible case-by-case review. BIS is a whole-of-government decision that policy, the anticipated increase in the is accordingly amending § 742.5 takes into account all relevant factors number of license applications will be (Missile Technology) of the EAR to and policies, including U.S. national minimal. review license applications involving security, nonproliferation, and foreign This final rule also makes a such UAS, as well as MT items for the policy objectives, as well as the conforming technical change by revising design, development, production, or use recipient country’s capability and the second sentence in paragraph (b)(1) in such systems, under a case-by-case willingness to effectively and of § 742.5 to add double quotation review policy. responsibly use and safeguard U.S.- marks around the term parts (‘‘part’’ is While the updated policy of the origin items, including technology, in a defined term in the EAR) and to add United States refers to the term UAS, accordance with U.S. laws and policies. after it the term ‘‘components’’ the MTCR and the EAR use the term (‘‘component’’ is also a defined term in Amendments to the Export ‘‘Unmanned Aerial Vehicle (UAV)’’. The the EAR). These technical edits clarify Administration Regulations (EAR) change in licensing policy set forth in that the review standard applies to revised § 742.5 of the EAR consequently This final rule revises the EAR’s replacement ‘‘parts’’ and ‘‘components’’ uses the term UAV. missile technology controls to reflect the for use in the specified applications (i.e., In making this licensing review policy July 24, 2020 Revised UAS Export manned aircraft, satellite, land vehicle, change, the U.S. Government is Policy. Specifically, in § 742.5 of the or marine vessel). exercising its national discretion as a EAR (Missile technology), this final rule member of the MTCR. This change will revises paragraph (b)(1) to add a new Export Control Reform Act of 2018 strengthen U.S. national security by licensing review policy for UAVs with On August 13, 2018, the President improving the capabilities of U.S. a specified range, payload, and signed into law the John S. McCain partners and will increase U.S. maximum true airspeed by adding a National Defense Authorization Act for economic security by opening the new Note to paragraph (b)(1). The new Fiscal Year 2019, which included the expanding UAS market to U.S. industry. Note to paragraph (b)(1) added by this Export Control Reform Act of 2018 The U.S. Government is implementing final rule specifies that UAV systems (ECRA) (50 U.S.C. 4801–4852). ECRA the July 24, 2020 Revised UAS Policy as that have a range and payload capability provides the legal basis for BIS’s a responsible and reasonable approach equal to or greater than 300 km/500 kg, principal authorities and serves as the to technological change, establishing a but a maximum true airspeed of less authority under which BIS issues this systematic framework for than 800 km/hr, and MT items for use rule. implementation of the MTCR’s strong in UAV systems that meet these Executive Order Requirements presumption of denial for export parameters, will not be subject to a licensing review purposes as applied to policy of denial. Instead, such UAV Executive Orders 13563 and 12866 a particular subset of MTCR Category I systems will be reviewed on a case-by- direct agencies to assess all costs and UAS. This subset of UAS is widely used case basis to determine whether the benefits of available regulatory in intelligence, surveillance, and export or reexport will be used in alternatives and, if regulation is reconnaissance (ISR) missions and support of WMD activities or military necessary, to select regulatory various commercial and other activities contrary to U.S. national approaches that maximize net benefits applications not involving WMD security, or whether there is a risk of (including potential economic, delivery, so a case-by-case license diversion to such activities. In addition, environmental, public health and safety review policy is warranted. the same, more flexible, review policy effects, distribute impacts, and equity). The United States takes seriously both will apply under the new note to MT- Executive Order 13563 emphasizes the its nonproliferation commitments and controlled ‘‘parts’’ and ‘‘components’’ importance of quantifying both costs its responsibility to ensure that exports and other MT items for the design, and benefits, of reducing costs, of and reexports and subsequent use of all ‘‘development,’’ ‘‘production,’’ or ‘‘use’’ harmonizing rules, and of promoting U.S.-origin UAS are conducted (see § 772.1 of the EAR (15 CFR part flexibility. This final rule has been responsibly, with appropriate end users 772—Definitions of Terms)) of UAV designated a ‘‘significant regulatory and for appropriate end uses. To this systems that meet these parameters, action’’ under Executive Order 12866.
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Commerce estimates that this rule will subject to the PRA: 0694–0088, ‘‘Multi- 3201 et seq.; 42 U.S.C. 2139a; 22 U.S.C. 7201 result in a minimal increase to the Purpose Application’’, which carries a et seq.; 22 U.S.C. 7210; Sec. 1503, Pub. L. number of license requests submitted to burden hour estimate of 29.6 minutes 108–11, 117 Stat. 559; E.O. 12058, 43 FR BIS annually. for a manual or electronic submission; 20947, 3 CFR, 1978 Comp., p. 179; E.O. This rule does not contain policies 0694–0096 ‘‘Five Year Records 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. with federalism implications as that Retention Period’’, which carries a 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 term is defined under E.O. 13132. burden hour estimate of less than 1 Comp., p. 950; E.O. 13026, 61 FR 58767, 3 For the purposes of E.O. 13771, minute; and 0607–0152 ‘‘Automated CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR ‘‘Reducing Regulation and Controlling Export System (AES) Program’’, which 44025, 3 CFR, 2001 Comp., p. 783; Regulatory Costs,’’ this rule is issued carries a burden hour estimate of 3 Presidential Determination 2003–23, 68 FR with respect to a national security minutes per electronic submission. This 26459, 3 CFR, 2004 Comp., p. 320; Notice of function of the United States. The cost- rule changes the respondent burden by November 12, 2020, 85 FR 72897 (November benefit analysis indicates that the rule is increasing the estimated number of 13, 2020). intended to improve national security as submissions by 20. Specific license ■ 2. Section 742.5 is amended by its primary direct benefit. The U.S. application submission estimates are revising paragraph (b)(1) to read as Government is acting to protect U.S. further discussed in the preamble of this follows: national security interests, which are rule where the regulatory revision is directly related to U.S. economic explained. The additional burden falls § 742.5 Missile technology. security interests. An inflexible within the estimated burden approved * * * * * approach to implementing the MTCR’s by OMB for the information collections strong presumption of denial for the 0694–0088, 0694–0096, and 0607–0152. (b) * * * subset of UAS specified in this rule Any comments regarding these (1) Applications to export and presents a competitive disadvantage for collections of information, including reexport items identified in ECCNs on the United States, and other MTCR suggestions for reducing the burden, the CCL as MT Column No. 1 in the partners, by restraining industry from may be submitted online at https:// Country Chart column of the ‘‘License fully participating in the expanding www.reginfo.gov/public/do/PRAMain. Requirements’’ section will be commercial UAS market. Additionally, Find the particular information considered on a case-by-case basis to the U.S. Government needs to meet the collection by using the search function determine whether the export or growing demand for key tools, and and entering either the title of the reexport would make a material capabilities and the development and collection or the OMB Control Number. contribution to the proliferation of enhancement of security relationships Administrative Procedure Act and missiles. Applications for exports and from countries that want to work with reexports of such items contained in the U.S. on counter-terrorism, border Regulatory Flexibility Act Requirements Category 7A or described by ECCN control, and other mutual security 9A101 on the CCL will be considered interests. The revised U.S. national Pursuant to Section 4821 of ECRA, favorably if such exports or reexports policy announced on July 24, 2020, is this action is exempt from the are destined to a manned aircraft, consistent with U.S. national security Administrative Procedure Act (5 U.S.C. satellite, land vehicle, or marine vessel, interests, as the United States will 553) requirements for notice of in quantities appropriate for continue to maintain specific controls proposed rulemaking, opportunity for replacement ‘‘parts’’ and ‘‘components’’ on transfers of UAS that present higher public participation, and delay in for such applications. When an export risks of use in or support for WMD effective date. or reexport is deemed to make a delivery—such as cruise missiles, Further, no other law requires that a material contribution to the hypersonic aerial vehicles, and notice of proposed rulemaking and an proliferation of missiles, the license will advanced unmanned combat aerial opportunity for public comment be be denied. vehicles—while not unduly impeding given for this final rule. Because a exports for growing commercial and notice of proposed rulemaking and an Note 1 to paragraph (b)(1): Applications to conventional military applications. opportunity for public comment are not export and reexport an Unmanned Aerial Accordingly, this rule meets the required to be given for this rule under Vehicle (UAV) that has a range and payload requirements set forth in the April 5, the Administrative Procedure Act or by capability equal to or greater than 300 km/ 2017 OMB guidance implementing E.O. any other law, the analytical 500 kg but a maximum true airspeed of less 13771 and is exempt from the requirements of the Regulatory than 800 km/hr, and items controlled for requirements of E.O. 13771. Flexibility Act (5 U.S.C. 601 et seq.) are Missile Technology reasons for the design, development, production, or use of UAV not applicable. Accordingly, no Paperwork Reduction Act systems that meet these parameters, will not regulatory flexibility analysis is Requirements be subject to a policy of denial but will required, and none has been prepared. Notwithstanding any other provision instead be reviewed on a case-by-case basis of law, no person is required to respond List of Subjects in 15 CFR Part 742 to determine whether the export or reexport will be used in support of WMD activities or to, nor shall any person be subject to a Exports, Terrorism. military activities contrary to U.S. national penalty for failure to comply with, a Accordingly, part 742 of the Export security, or whether there is a risk of collection of information subject to the Administration Regulations (15 CFR diversion to support such activities. requirements of the Paperwork parts 730–774) is amended as follows: Reduction Act of 1995 (44 U.S.C. 3501 * * * * * et seq.) (PRA), unless that collection of PART 742—[AMENDED] information displays a currently valid Matthew S. Borman, Office of Management and Budget ■ 1. The authority citation for part 742 Deputy Assistant Secretary for Export (OMB) Control Number. is revised to read as follows: Administration. This rule involves the following OMB Authority: 50 U.S.C. 4801–4852; 50 U.S.C. [FR Doc. 2020–27983 Filed 1–11–21; 8:45 am] approved collections of information 4601 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. BILLING CODE 3510–33–P
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DEPARTMENT OF HOMELAND I. Background United States and Italy, with entry into SECURITY Pursuant to the Convention on force on January 12, 2016, thus the Cultural Property Implementation Act, extension of the import restrictions was U.S. Customs and Border Protection Public Law 97–446, 19 U.S.C. 2601 et implemented for an additional five-year seq. (hereinafter, ‘‘the Cultural Property period ending on January 12, 2021. See DEPARTMENT OF THE TREASURY Implementation Act’’) which 19 CFR 12.104g(a); 81 FR 2086. On September 29, 2020, the Assistant implements the 1970 United Nations 19 CFR Part 12 Secretary for Educational and Cultural Educational, Scientific and Cultural Affairs, United States Department of Organization (UNESCO) Convention on State, after consultation with and [CBP Dec. 21–01] the Means of Prohibiting and Preventing recommendation by the Cultural the Illicit Import, Export and Transfer of Property Advisory Committee, RIN 1515–AE59 Ownership of Cultural Property (823 determined that the cultural heritage of U.N.T.S. 231 (1972)), the United States Extension of Import Restrictions Italy continues to be in jeopardy from entered into a bilateral agreement with pillage of certain archaeological material Imposed on Categories of the Italian Republic (Italy) on January Archaeological Material of Italy representing the pre-Classical, Classical, 19, 2001, concerning the imposition of and Imperial Roman periods and that import restrictions on archaeological AGENCY: U.S. Customs and Border the import restrictions should be material representing the pre-Classical, extended for an additional five years. Protection, Department of Homeland Classical, and Imperial Roman periods Security; Department of the Treasury. Subsequently, a new MOU was (‘‘the prior MOU’’). concluded between the United States ACTION: Final rule. On January 23, 2001, the former U.S. and Italy on October 29, 2020. The new Customs Service (now U.S. Customs and MOU supersedes and replaces the prior SUMMARY: This document amends U.S. Border Protection (CBP)) published MOU of January 19, 2001, as amended Customs and Border Protection (CBP) Treasury Decision 01–06 in the Federal and extended. The new MOU extends regulations to reflect an extension of Register (66 FR 7399), which amended the import restrictions that went into import restrictions on certain categories § 12.104g(a) of Title 19 of the Code of effect under the prior MOU, as amended of archaeological material of the Italian Federal Regulations (19 CFR 12.104g(a)) and extended, for five years from entry Republic (Italy). The restrictions, which to reflect the imposition of these into force of the new MOU on January were originally imposed by Treasury restrictions and included a list covering 12, 2021. The new MOU is titled: Decision 01–06 and last extended by certain types of archaeological material. ‘‘Memorandum of Understanding CBP Decision (CBP Dec.) 16–02, are due Import restrictions listed in 19 CFR between the Government of the United to expire on January 12, 2021. The 12.104g(a) are effective for no more than States of America and the Government Assistant Secretary for Educational and five years beginning on the date on of the Italian Republic Concerning the Cultural Affairs, United States which the agreement enters into force Imposition of Import Restrictions on Department of State, has made the with respect to the United States. This Categories of Archaeological Material of requisite determination for extending period may be extended for additional Italy.’’ Accordingly, CBP is amending 19 the import restrictions that previously periods of not more than five years if it CFR 12.104g(a) to reflect the extension existed and entered into a new is determined that the factors which of the import restrictions. Memorandum of Understanding (MOU) justified the initial agreement still The restrictions on the importation of with Italy to reflect the extension of pertain and no cause for suspension of categories of archaeological material of these import restrictions. The new MOU the agreement exists. Italy are to continue in effect until supersedes the existing MOU that was Since the final rule was published on January 12, 2026. Importation of such entered into on January 19, 2001, and January 23, 2001, the import restrictions materials from Italy continues to be previously extended, most recently until that became effective on January 19, restricted until that date unless the January 12, 2021. Accordingly, these 2001, have been extended three times conditions set forth in 19 U.S.C. 2606 import restrictions will remain in effect pursuant to exchanges of diplomatic and 19 CFR 12.104c are met. for an additional five years, and the CBP notes as reflected in subsequent final The Designated List of pre-Classical, regulations are being amended to reflect rules. First, on January 19, 2006, CBP Classical and Imperial Roman period this extension until January 12, 2026. published CBP Decision (CBP Dec.) 06– archaeological material from Italy CBP Dec. 11–03 contains the amended 01 in the Federal Register (71 FR 3000) covered by these import restrictions is Designated List of archaeological which amended 19 CFR 12.104g(a) to set forth in CBP Dec. 11–03. The material of Italy to which the reflect the extension for an additional Designated List and additional restrictions apply. period of five years. Second, on January information may also be found at the DATES: Effective on January 12, 2021. 19, 2011, CBP published CBP Dec. 11– following website address: https:// 03 in the Federal Register (76 FR 3012) eca.state.gov/cultural-heritage-center/ FOR FURTHER INFORMATION CONTACT: For to extend the import restrictions for an cultural-property-advisory-committee/ legal aspects, Lisa L. Burley, Chief, additional five-year period. CBP Dec. current-import-restrictions by selecting Cargo Security, Carriers and Restricted 11–03 also reflects an amendment to the the materials for ‘‘Italy.’’ Merchandise Branch, Regulations and Designated List to include the Rulings, Office of Trade, (202) 325– subcategory ‘‘Coins of Italian Types’’ as Inapplicability of Notice and Delayed 0300, ot-otrrculturalproperty@ part of the category entitled ‘‘Metal,’’ Effective Date cbp.dhs.gov. For operational aspects, pursuant to 19 U.S.C. 2604. Third, on This amendment involves a foreign Genevieve S. Dozier, Management and January 15, 2016, CBP published CBP affairs function of the United States and Program Analyst, Commercial Targeting Dec. 16–02 in the Federal Register (81 is, therefore, being made without notice and Analysis Center, Trade Policy and FR 2086) to further extend the import or public procedure under 5 U.S.C. Programs, Office of Trade, (202) 945– restrictions. This extension was 553(a)(1). For the same reason, a 2942, [email protected]. pursuant to the exchange of diplomatic delayed effective date is not required SUPPLEMENTARY INFORMATION: notes that took place between the under 5 U.S.C. 553(d)(3).
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Regulatory Flexibility Act Division for CBP, for purposes of associated with the 59th Presidential publication in the Federal Register. Inauguration are scheduled from Because no notice of proposed January 17, 2021, to January 25, 2021. rulemaking is required, the provisions Robert F. Altneu, The Coast Guard will enforce of the Regulatory Flexibility Act (5 Director, Regulations & Disclosure Law regulations in 33 CFR 165.508 for the U.S.C. 601 et seq.) do not apply. Division, Regulations & Rulings, Office of zone identified in paragraph (a)(6). This Trade, U.S. Customs and Border Protection. Executive Orders 12866 and 13771 action is being taken to protect Approved: January 7, 2021. government officials, mitigate potential CBP has determined that this Timothy E. Skud, terrorist acts and incidents, and enhance document is not a regulation or rule Deputy Assistant Secretary of the Treasury. public and maritime safety and security subject to the provisions of Executive immediately before, during, and after Order 12866 or Executive Order 13771 [FR Doc. 2021–00499 Filed 1–11–21; 8:45 am] BILLING CODE 9111–14–P this event. because it pertains to a foreign affairs Our regulations for Security Zone; function of the United States, as Potomac River and Anacostia River, and described above, and therefore is DEPARTMENT OF HOMELAND adjacent waters; Washington, DC, specifically exempted by section 3(d)(2) SECURITY § 165.508, specifies the location for this of Executive Order 12866 and section security zone as an area that includes all 4(a) of Executive Order 13771. Coast Guard navigable waters described in Signing Authority paragraphs (a)(1) through (a)(3). This 33 CFR Part 165 zone includes (1) Security Zone 1; all This regulation is being issued in [Docket No. USCG–2020–0652] navigable waters of the Potomac River, accordance with 19 CFR 0.1(a)(1) from shoreline to shoreline, bounded to pertaining to the Secretary of the RIN 1625–AA87 the north by the Francis Scott Key (US– Treasury’s authority (or that of his/her 29) Bridge, at mile 113, and bounded to delegate) to approve regulations related Security Zone; Potomac River and the south by a line drawn from the to customs revenue functions. Anacostia River, and Adjacent Waters; Virginia shoreline at Ronald Reagan Washington, DC List of Subjects in 19 CFR Part 12 Washington National Airport, at ° ′ ″ ° ′ ″ AGENCY: Coast Guard, DHS. 38 51 21.3 N, 077 02 00.0 W, eastward Cultural property, Customs duties and across the Potomac River to the District ACTION: Notice of Enforcement of inspection, Imports, Prohibited of Columbia shoreline at Hains Point at Regulation. merchandise, and Reporting and position 38°51′24.3″ N, 077°01′19.8″ W, recordkeeping requirements. SUMMARY: The Coast Guard will enforce including the waters of the Boundary Amendments to the CBP Regulations a security zone along the Potomac River Channel, Pentagon Lagoon, Georgetown and Anacostia River, and adjacent Channel Tidal Basin, and Roaches Run. For the reasons set forth above, part waters at Washington, DC, for activities (2) Security Zone 2; all navigable waters 12 of title 19 of the Code of Federal associated with the 59th Presidential of the Anacostia River, from shoreline to Regulations (19 CFR part 12), is Inauguration. The zone will be enforced shoreline, bounded to the north by the amended as set forth below: on the days leading up to and through John Philip Sousa (Pennsylvania Avenue) Bridge, at mile 2.9, and PART 12—SPECIAL CLASSES OF the cessation of activities associated bounded to the south by a line drawn MERCHANDISE with the 59th Presidential Inauguration taking place on January 20, 2021. This from the District of Columbia shoreline ° ′ ″ ■ action is necessary to protect at Hains Point at position 38 51 24.3 N, 1. The general authority citation for ° ′ ″ part 12 and the specific authority government officials, mitigate potential 077 01 19.8 W, southward across the citation for § 12.104g continue to read terrorist acts and incidents, and enhance Anacostia River to the District of public and maritime safety and security Columbia shoreline at Giesboro Point at as follows: ° ′ ″ ° ′ ″ immediately before, during, and after position 38 50 52.4 N, 077 01 10.9 W, Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 including the waters of the Washington (General Note 3(i), Harmonized Tariff these activities. During the enforcement period, entry into or remaining within Channel. (3) Security Zone 3 all Schedule of the United States (HTSUS)), navigable waters of the Potomac River, 1624; the zone is prohibited unless authorized from shoreline to shoreline, bounded to * * * * * by the Captain of the Port or his designated representative. the north by a line drawn from the Sections 12.104 through 12.104i also Virginia shoreline at Ronald Reagan issued under 19 U.S.C. 2612; DATES: The regulations in 33 CFR Washington National Airport, at 165.508 will be enforced from 8 a.m. on * * * * * 38°51′21.3″ N, 077°02′00.0″ W, eastward January 17, 2021, through 8 a.m. on across the Potomac River to the District § 12.104g [Amended] January 25, 2021, for the zone identified of Columbia shoreline at Hains Point at in 33 CFR 165.508(a)(6). ■ 2. In § 12.104g, amend the table in position 38°51′24.3″ N, 077°01′19.8″ W, paragraph (a), in the entry for Italy, by FOR FURTHER INFORMATION CONTACT: If thence southward across the Anacostia removing the words ‘‘CBP Dec. 16–02’’ you have questions about this notice of River to the District of Columbia and adding in their place the words enforcement, call or email MST2 Shaun shoreline at Giesboro Point at position ‘‘CBP Dec. 21–01’’. Landante, U.S. Coast Guard Sector 38°50′52.4″ N, 077°01′10.9″ W, and Mark A. Morgan, the Chief Operating Maryland-National Capital Region bounded to the south by the Woodrow Officer and Senior Official Performing (Waterways Management Division); Wilson Memorial (I–95/I–495) Bridge, at the Duties of the Commissioner, having telephone 410–576–2570, email mile 103.8. reviewed and approved this document, [email protected]. As specified in § 165.508 (b), during is delegating the authority to SUPPLEMENTARY INFORMATION: On the enforcement period, entry into or electronically sign this notice document October 2, 2020, the Coast Guard was remaining in the zone is prohibited to Robert F. Altneu, who is the Director notified by the event organizer that the unless authorized by the Coast Guard of the Regulations and Disclosure Law anticipated dates for the activities Captain of the Port Maryland-National
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Capital Region. Public vessels and requirements, and a portion of the sowed uncertainty that, over time, could vessels already at berth at the time the provision dealing with shared decrease the effectiveness of security zone is implemented do not responsibility payments under the Department-funded programs by have to depart the security zone. All Affordable Care Act. This rule also deterring participation in them. vessels underway within the security amends sections dealing with national Given the careful balancing of rights, zone at the time it is implemented are policy requirements to bring them into obligations, and goals in the public- to depart the zone at the time the compliance with the authority under private partnerships in Federal grant security zone is implemented. To seek which the UAR is promulgated and programs, the Department believes it permission to transit the zone, the OMB guidance, as well as to reflect appropriate to impose only those Captain of the Port Maryland-National those nondiscrimination requirements nondiscrimination requirements Capital Region can be contacted at that have been adopted by Congress. required by the Constitution and federal telephone number (410) 576–2693 or on DATES: This rule is effective February statutes applicable to the Department’s Marine Band Radio, VHF–FM channel 11, 2021. grantees. But such authorities do not 16 (156.8 MHz). Coast Guard vessels FOR FURTHER INFORMATION CONTACT: support the application of some of the enforcing this zone can be contacted on Johanna Nestor at Johanna.Nestor@ requirements in existing § 75.300(c) and Marine Band Radio, VHF–FM channel hhs.gov or 202–205–5904. (d) to all recipients of Departmental 16 (156.8 MHz). The Coast Guard may SUPPLEMENTARY INFORMATION: assistance or to all Department-funded be assisted by other Federal, state or programs. Accordingly, the Department Table of Contents local law enforcement agencies in revises § 75.300(c) to recognize the enforcing this regulation. If the Captain I. Introduction public policy requirement that of the Port or his designated on-scene II. Background otherwise eligible persons not be patrol personnel determines the security III. Statutory Authority excluded from participation in, denied IV. Section-by-Section Description of the zone need not be enforced for the full the benefits of, or subjected to duration stated in this notice, a Final Rule and Response to Public Comments discrimination in the administration of Broadcast Notice to Mariners may be V. Regulatory Impact Analysis programs and services where such used to suspend enforcement and grant actions are prohibited by federal statute. general permission to enter the security I. Introduction The Department also revises § 75.300(d) zone. This rule repromulgates provisions of to state clearly that the Department will This notice of enforcement is issued Part 75 that were originally published follow all applicable Supreme Court under authority of 33 CFR 165.508 and late in 2016 in a rulemaking which the decisions in the administration of the 5 U.S.C. 552(a). In addition to this Department had serious concerns about Department’s award programs.2 notice of enforcement in the Federal compliance with certain requirements of With respect to the other provisions Register, the Coast Guard will provide the Regulatory Flexibility Act. This rule in the 2016 rulemaking, the Department notification of this enforcement period also finalizes proposed changes to repromulgates § 75.305(a), which via the Local Notice to Mariners and § 75.300, on statutory and national addressed the applicability of certain marine information broadcasts. policy requirements to bring them into payment provisions to states; § 75.365, Dated: December 28, 2020. alignment with the Department’s which authorized the grant agency to Joseph B. Loring, statutory authorities, including those require recipients to permit public underlying part 75. The Department is Captain, U.S. Coast Guard, Captain of the access to various materials produced Port Maryland-National Capital Region. committed to the principle that every under a grant, but authorized the agency person must be treated with dignity and [FR Doc. 2020–28985 Filed 1–11–21; 8:45 am] to place restrictions on grantees’ ability respect and afforded all of the BILLING CODE 9110–04–P to make public any personally protections of the Constitution and identifiable information or other statutes enacted by Congress—and to information that would be exempt from fully enforcing such civil rights disclosure under FOIA; § 75.414(c)(1)(i) DEPARTMENT OF HEALTH AND protections and requirements. The through (iii) and (f), which established HUMAN SERVICES Department has determined, however, limits on the amount of indirect costs that the public policy requirements it 45 CFR Part 75 allowable under certain types of grants; imposed in the existing § 75.300(c) and and § 75.477, which established that RIN 0991–AC16 (d) disrupted the balance struck by Congress with respect to recipients could not include, in Health and Human Services Grants nondiscrimination requirements allowable costs under HHS grants, any Regulation applicable to grant recipients and, as tax payment imposed on an employer evidenced by the requests for for failure to comply with the AGENCY: Office of the Assistant Affordable Care Act’s employer shared Secretary for Financial Resources, accommodations and lawsuits, will violate the Religious Freedom responsibility provisions, but does not Department of Health and Human repromulgate the exclusion from Services. Restoration Act, 42 U.S.C. 2000bb– 2000bb–4 (RFRA), in some allowable costs in grants of penalties ACTION: Final rule. circumstances.1 The Department also due for failing to comply with the believes that these requirements have individual shared responsibility SUMMARY: This final rule repromulgates provision because such tax penalty has and adopts changes to certain 1 Some non-Federal entities and commenters been reduced to zero except for tax provisions in the Department’s Uniform argued that the Department lacked the legal penalties associated with failure to Administrative Requirements, Cost authority to promulgate existing § 75.300(c) and (d). maintain minimum essential coverage Principles, and Audit Requirements for While the Department is concerned about its prior to January 1, 2019. HHS awards (UAR). This rule statutory authority for these existing provisions, it does not need to resolve the issue definitively repromulgates sections of the UAR because the Department believes that amending 2 The final rule also does not repromulgate, and dealing with payments, access to these provisions is warranted in light of the other removes, § 75.101(f); with the amendments to records, indirect allowable cost reasons set forth in this preamble. § 75.300(c) and (d), the provision is not necessary.
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II. Background financial management and oversight of directly or by reference in the terms and federal grants. But that authority is conditions of the Federal award. The December 2014 Adoption of the limited to requirements associated with The OMB Uniform Guidance and the UAR the financial management and oversight Department’s UAR apply to the On December 26, 2013, the Office of of federal grants. recipients (and, as provided, Management and Budget (OMB) issued As initially promulgated, Statutory subrecipients) of Federal financial the Uniform Administrative and National Policy Requirements, 2 assistance from the Department, Requirements, Cost Principles, and CFR 200.300 (and 45 CFR 75.300), was whether such assistance is provided in Audit Requirements for Federal Awards a notice provision. It directed the the form of grants or cooperative (Uniform Guidance), 2 CFR part 200, Federal awarding agency ‘‘to agreements, with such recipients and that ‘‘set standard requirements for communicate to the non-Federal entity subrecipients referenced, collectively, as financial management of Federal awards all relevant public policy requirements, ‘‘non-Federal entities.’’ In this preamble, across the entire federal government.’’ including those in general for ease of reference, the Department 78 FR 78590 (Dec. 26, 2013). OMB’s appropriations provisions, and uses the term ‘‘grant’’ in place of purpose in promulgating the Uniform incorporate them either directly or by ‘‘Federal financial assistance’’ or Guidance was to (1) streamline guidance reference in the terms and conditions of ‘‘Federal award,’’ the terms used in the in making federal awards to ease the Federal award.’’ 2 CFR 200.300(a). UAR and defined in § 75.2. Similarly, administrative burden and (2) See also Appendix I, F.2 to Part 200— the term ‘‘grantmaking agency’’ is used strengthen financial oversight over Full Text of Notice of Funding to reference ‘‘Federal awarding agency’’ federal funds to reduce risks of fraud, Opportunity (describing requirement to or ‘‘HHS awarding agency,’’ as those waste, and abuse. 78 FR 78590 (Dec. 26, inform applicants of national policy terms are defined in § 75.2. Finally, in 2013); 85 FR 3766 (Jan. 22, 2020). requirements: ‘‘Providing this this preamble, the Department uses In December of 2014, the Department, information lets a potential applicant ‘‘grantee’’ and ‘‘subgrantee’’ in conjunction with OMB and two identify any requirements with which it interchangeably with ‘‘recipient’’ and dozen other federal departments and would have difficulty complying if its ‘‘subrecipient,’’ respectively, as those agencies adopted Uniform terms are also defined in § 75.2. Administrative Requirements, Cost application is successful .... Doing so Principles, and Audit Requirements for will alert applicants that have received The Department’s Additions to the UAR Federal Awards (UAR). 79 FR 75871 Federal awards from the Federal in December 2016 (Dec. 19, 2014). The Department awarding agency previously and might In July 2016, the Department adopted ‘‘OMB’s final guidance with not otherwise expect different terms and proposed certain amendments to the certain amendments, based on existing conditions.’’). The section, Statutory UAR, and in December 2016, the HHS regulations, to supplement the and National Policy Requirements, was Department finalized amendments to guidance as needed for the not intended to be an independent basis modify its UAR to incorporate certain Department.’’ 79 FR at 75875. for, or to establish, new substantive directives ‘‘not previously codified in As promulgated by OMB, the conditions, nondiscrimination or regulation.’’ 81 FR 89393 (December 12, statutory authorities for the cost and otherwise. 2016) (2016 Rule). These amendments audit principles in the Uniform In adopting the Uniform OMB included changes to a State payment Guidance and the UAR include the guidance, the Department supplemented provision, access to records, indirect Chief Financial Officer’s Act, 31 U.S.C. it with HHS specific amendments to allowable cost requirements, exclusion 503, the Budget and Accounting Act, 31 account for the Department’s particular from allowable costs of employer and U.S.C. 1101–1125, the Single Audit Act, functions and programs. 79 FR 75871, individual shared responsibility 31 U.S.C. 6101–6106, and several 75889 (Dec. 19, 2014). However, the payments under the Affordable Care Executive Orders dictating internal Department did not add to the Act, and policy requirements dealing government practice. 2 CFR 200.103. authorities beyond § 75.103 and the with discrimination and Supreme Court Similarly, as adopted—and as currently Housekeeping Statute as the basis for decisions on same-sex marriage. in force—these same authorities Part 75. Specifically, the 2016 Rule adopted: underlie HHS’s UAR regulations. 45 In § 75.300, Statutory and National • Section 75.300(c) and (d), which CFR 75.103. These laws provide broad Policy Requirements, HHS adopted required recipients not to discriminate authority for the financial management OMB’s Uniform Guidance nearly on the basis of certain specified factors, and administration of federal awards verbatim. Under § 75.300(a), the HHS regardless of whether those factors had (grants and cooperative agreements). agency awarding a grant is required to been incorporated into The Chief Financial Officers Act, for manage and administer the Federal nondiscrimination statutes applicable to example, provides that OMB shall award so as to ensure that Federal the specific grants and recipients (and ‘‘oversee, periodically review, and make funding is expended and associated § 75.101(f), which exempted the recommendations to heads of agencies programs are implemented in full Temporary Assistance for Needy on the administrative structure of accordance with U.S. statutory and Families from such requirements), and agencies with respect to their financial public policy requirements. The required recipient compliance with two management activities.’’ 5 U.S.C. regulation specifically identifies those specific Supreme Court decisions. 503(a)(6). Similarly, the Single Audit statutory and public policy • Section 75.305(a), which addressed Act directs each agency, pursuant to requirements as including those the applicability of certain payment guidance issued by OMB, to ‘‘(1) protecting public welfare, the provisions to states. monitor non-federal entity use of federal environment, and prohibiting • Section 75.365, which authorized awards, and (2) assess the quality of discrimination. Section 75.300(a) also the grant agency both to require audits conducted under this chapter.’’ requires the HHS awarding agency to recipients to permit public access to 31 U.S.C. 7504. These statutes include communicate to recipients all relevant various materials produced under a rulemaking delegations, see, e.g., 31 public policy requirements, including grant and to place restrictions on U.S.C. 7505, and for decades have those in general appropriations recipients’ ability to make public any provided unquestioned authority for the provisions, and incorporate them either personally identifiable information or
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other information that would be exempt www.hhs.gov/about/news/2019/11/01/ provisions’ viability and enforcement.6 from disclosure under FOIA. hhs-issues-proposed-rule-to-align- The Department also noted that some • Section 75.414(c)(1)(i) through (iii) grants-regulation.html (issuance of federal grantees had stated that they and (f), which established limits on the proposed rule ‘‘follows same-day would require their subgrantees to amount of indirect costs allowable issuance of a Notice of Nonenforcement comply with § 75.300(c) and (d), even if under certain types of grants. of certain regulatory provisions’’); it was it meant some subgrantees with • Section 75.477, which established published in the Federal Register on religious objections would leave the that recipients could not include, in November 19, 2019. Notice of Exercise program(s) and cease providing services. allowable costs under HHS grants, any of Enforcement Discretion, 84 FR 63809 Such grantees and subgrantees provide tax penalty/payment imposed on an (Nov. 19, 2019).5 a substantial percentage of services in individual or on the employer for failure some Department-funded programs and to comply with the individual or The Notice of Proposed Rulemaking are effective partners of federal and state employer shared responsibility governments in providing such services. The Department simultaneously provisions, respectively.3 As noted in the proposed rule, the published a proposed rule to These new requirements became Department believes that the departure repromulgate or revise the provisions of effective January 11, 2017. of such grantees and subgrantees from the UAR that had been adopted through Department-funded programs could The Department’s November 2019 the 2016 Rule. It proposed to likely reduce the effectiveness of those Notice of Exercise of Enforcement repromulgate, without change, Discretion and Proposed Rule programs. §§ 75.305(a), 75.365, and 75.414(c)(1)(i)– Accordingly, as an exercise of its As States and other recipients and (iii) and (f). With respect to § 75.477, the discretion to establish requirements for subrecipients became aware of these Department proposed to repromulgate its grant programs and to establish new regulatory requirements, some only the exclusion from allowable costs enforcement priorities for those began to complain to the Department of any employer payments for failure to programs, the Department proposed to about certain elements of § 75.300(c) offer health coverage to employees as amend § 75.300(c) and (d). It proposed and (d), contending, among other things, required by 26 U.S.C. 4980H; it did not to amend § 75.300(c) to require that application of some of the propose to repromulgate the provision compliance with all applicable statutory requirements in those provisions (1) with respect to shared responsibility nondiscrimination requirements. It also unlawfully interfered with certain faith- payments for individuals because such proposed to amend § 75.300(d) to based organizations’ protected speech tax penalty had been reduced to zero. specify its commitment to complying and religious exercise, in violation of The Department proposed to amend with all applicable Supreme Court the Religious Freedom Restoration Act § 75.300 because it had received decisions in administering its award (RFRA), 42 U.S.C. 2000bb, et seq., or the communication and complaints, programs, instead of singling out two U.S. Constitution, (2) exceeded the requests for exceptions (under 45 CFR specific Supreme Court decisions. Department’s statutory authority, and 75.102), and lawsuits concerning As the Department noted in the (3) reduced the effectiveness of § 75.300(c) and (d). It noted that it was proposed rule, it had received several programs funded by the Department by preliminarily enjoined from enforcing requests for exceptions from § 75.300(c) excluding certain entities from § 75.300(c) in the State of Michigan as and (d) under 45 CFR 75.102(b) participating in those programs. These to a particular subgrantee’s protected (allowing exceptions to part 75 communications, requests for religious exercise. Buck v. Gordon, 429 requirements on a case-by-case basis). In exemptions or deviations, and F. Supp. 3d 447 (W.D. Mich. 2019). It January of 2019, the Department granted complaints 4 caused the Department to also described concerns expressed by the State of South Carolina an exception look more closely at the 2016 some non-federal entities that requiring from the provision in § 75.300(c) that rulemaking by which these and other compliance with certain nonstatutory required the State to prohibit provisions in the UAR were adopted. requirements of those paragraphs subgrantees from selecting among The Department’s examination raised violates the Religious Freedom prospective foster parents on the basis serious concerns about compliance with Restoration Act (RFRA), 42 U.S.C. of religion, to the extent that such certain requirements of the Regulatory 2000bb, et seq., or the U.S. Constitution, prohibition conflicts with a subgrantee’s Flexibility Act, and caused the exceeds the Department’s statutory religious exercise, conditioned on the Department to decide not to enforce the authority, or reduces the effectiveness of referral of potential foster parents who provisions added by the 2016 Rule, programs, for example, by reducing do not adhere to the subgrantee’s pending repromulgation. The foster care placements in the Title IV– religious beliefs to other subgrantees, or Department issued that Notice of E program of HHS’s Administration for to the South Carolina foster care Exercise of Enforcement Discretion on Children and Families. The Department program. The State’s request for a November 1, 2019. See https:// explained that these complaints and deviation or waiver from § 75.300(c) and (d) noted that the child placing agencies 3 The Department had proposed, but did not legal actions indicated that § 75.300(c) finalize, a revision to § 75.102, relating to and (d) imposed regulatory burden and working with South Carolina comply requirements related to the Indian Self created a lack of predictability and with the requirements of Social Security Determination and Education Assistance Act. Apart stability for both the Department and Act Title IV–E, including the provision from this provision, which generated a significant that they may not deny a person the number of comments, the Department received few stakeholders with respect to these comments on the proposed rule. right to become an adoptive or foster 4 In addition to those specifically mentioned in 5 The Department received several comments on the proposed rule, the Department received the enforcement discretion notice. These comments 6 In response to a request for information in 2017, communications from individuals and primarily criticized the Department for ignoring the some members of the public submitted comments organizations such as Senators and Members of statements of Regulatory Flexibility Act compliance to the Department citing possible burdens created Congress, state legislators, religious leaders within the 2016 rule, and for not engaging in notice by paragraphs (c) and (d) as they were included in (including all of the Catholic Bishops of and comment prior to amending the rule. As this the 2016 Rule. See https://www.regulations.gov/ Pennsylvania), faith-based charities and charities notice responds to comments and finalizes the docketBrowser?rpp=25&so=DESC&sb= operated by churches and religious orders, and proposed rule, those concerns are no longer at commentDueDate&po=0&s=75.300&dct=PS&D= public interest groups. issue. HHS-OS-2017-0002.
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parent on the basis of ‘‘race, color, or The State of Texas also expressed Pursuant to the Department’s motion to national origin,’’ 42 U.S.C. 671(a)(18), concerns about the legality of dismiss, on August 5, 2020, the district and contended that the Department had § 75.300(c) and (d). The Texas Attorney court dismissed the complaint as moot unlawfully expanded such statutory General first sent a letter to the and entered judgment for the provisions through those regulatory Secretary and to several components of Department. Texas v. Azar, 2020 WL provisions.7 The State also argued that the Department from which it received 4499128 (Aug. 5, 2020). the provisions violated the Constitution grants, notifying them that it considered In addition to the litigation referenced and RFRA because they require certain the gender-identity and sexual- above, the Department has also been child placing agencies to abandon their orientation nondiscrimination subject to several other lawsuits religious beliefs or forgo the available requirements of § 75.300(c), and the concerning these provisions. As noted, public licensure and funding. In treatment of same-sex-marriage in Buck v. Gordon, 429 F.Supp.3d 447 granting the exception, the Department, requirement of § 75.300(d), to be (W.D. Mich. 2019), a district court through its Office for Civil Rights (OCR) contrary to law and that it did not preliminarily enjoined the Department and the Administration for Children and intend to comply with such provisions from enforcing § 75.300(c) with respect Families (ACF), respectively, found that in the operation of its programs funded to plaintiffs. One of the plaintiffs in that requiring the State’s subgrantee to with Department grants. In a subsequent lawsuit, a Catholic charity, was willing comply with the religious communication, the Texas Attorney to place children for adoption with nondiscrimination provision would General’s Office stated that § 75.300(c) same-sex couples once they were substantially burden its religious beliefs and (d) suffer from various legal flaws, certified by the State or another agency, in violation of RFRA 8 and that asked the Department to repeal the but could not, consistent with its application of the regulatory provisions, and, in the alternative, religious beliefs, provide such requirement would cause a significant requested that ACF grant an exception certifications. Michigan had not sought programmatic burden for South from the application of those provisions an exception, but had required Carolina’s foster care program by for any faith-based, child-welfare subrecipients to comply with impeding the placement of children into service provider in Texas’s Title IV–E nondiscrimination conditions as foster care.9 Finding that other foster foster care and adoption program. adoption placement agencies, even care agencies were available to facilitate Another letter reiterated the arguments though doing so violated the sincerely adoptions for those who did not share and requests made in the preceding held religious beliefs of the plaintiff the particular subrecipient’s religious letters. The Department, through ACF Catholic charity in the lawsuit.12 beliefs, the Department granted South and OCR, reached out to the State on Plaintiffs sued both Michigan and the Carolina’s request for an exception with several occasions, but was unable to Department. As noted, the court entered respect to the particular subgrantee and determine whether specific faith-based a preliminary injunction against the other similarly situated subgrantees, in organizations were being affected by the Department, prohibiting it from taking order to facilitate the participation of provisions. One day before the any enforcement action against faith-based entities in the recruitment of Department posted the proposed rule in Michigan based on the faith-based families for South Carolina’s foster care this rulemaking to its website, see organization’s protected religious program. The Department also reviewed https://www.hhs.gov/about/news/2019/ exercise or Michigan’s obligations under § 75.300(c) and concluded that it likely 11/01/hhs-issues-proposed-rule-to- the preliminary injunction to exceeded the nondiscrimination align-grants-regulation.html, Texas, accommodate that religious exercise. provisions for the foster care program joined by the Archdiocese of Galveston- Against the backdrop of multiple specifically enacted by Congress.10 Houston, instituted a lawsuit requests for exceptions, challenging the regulations under the communications and other complaints 7 The request was subsequently narrowed to a Administrative Procedure Act (APA), request for an exception from the religious RFRA, the First Amendment, and the • The Archdiocese’s sincerely held religious nondiscrimination provision in § 75.300(c). Spending Clause. Texas and the beliefs with respect to marriage. 8 In reaching this conclusion, OCR found, among • Application of § 75.300(d) and certain other things, that (1) the religious Archdiocese alleged that the application provisions in § 75.300(c) to require Texas to exclude nondiscrimination provision in section 75.300(c) of § 75.300(c) and (d) to the State’s Title the Archdiocese (or similarly situated entities) from exceeds the scope of the nondiscrimination IV–E Foster Care and Adoption its foster care and adoption programs would provisions found in the federal statutes applicable Assistance program violates RFRA constitute a substantial burden on the to the foster care program, and provides no Archdiocese’s religious exercise by compelling it to exception for religious organizations (as found in because it requires current and potential choose between religious exercise and participation other statutes prohibiting religious discrimination, program participants, including the in the program. (2) the OMB UAR does not include analogous Archdiocese, which seeks to participate • Applying those provisions to Texas with provisions to section 75.300(c), and (3) HHS UAR in Texas’s Title IV–E program, to refrain respect to the Archdiocese is not the least restrictive permits the awarding agency to grant exceptions to means of advancing a compelling governmental applicable provisions on a case-by-case basis. from discriminating on the basis of interest because doing so would likely reduce the 9 South Carolina had provided information to the sexual orientation, gender identity, and effectiveness of the Title IV–E program and the Department that it needs more child placing same-sex-marriage status as a condition Department’s compelling interest is in increasing agencies, that faith-based organizations are essential of participation in the program. Texas v. the number of providers, including faith-based to recruiting more families for child placement, and 11 providers, who are willing to participate in the that it would have difficulty continuing to place all Azar, 3:19–cv–0365 (S.D. Tex 2019). foster care program; the governmental interest in children in need of foster care without the ensuring that potential foster care or adoptive participation of such faith-based organizations. has filed a further lawsuit. In Rogers v. HHS, 19– parents with whom certain providers cannot 10 Two lawsuits were filed against the cv–01567–TMC (D.S.C. 2019), a Unitarian same-sex partner still have opportunities to participate in the Department, challenging the Department’s decision couple challenged the exception as a violation of Title IV–E program can be accomplished through to grant an exception to South Carolina. In the First and Fifth Amendments as well. other means, such as promoting the availability of Maddonna v. Department of Health and Human 11 On March 5, 2020, the Department’s Office for alternative providers; the OMB UAR does not Services, 19–cv–448 (D.S.C. 2019), a Catholic Civil Rights (OCR) issued a letter to the Texas contain provisions analogous to the provisions at plaintiff challenged the exception granted to South Attorney General indicating that OCR has issue; and part 75 provides a mechanism for Carolina and its subrecipient bringing claims concluded that RFRA prohibits the Department granting exceptions from the requirements of that against the Department under the Administrative from applying (i.e., enforcing) section 75.300(c) and part. Procedure Act, and the First and Fifth Amendment; (d) to Texas with respect to the Archdiocese or 12 Michigan imposed this requirement while the complaint was dismissed without other similarly situated entities. In analyzing the independent of the requirements imposed by the prejudice because of lack of standing, the plaintiff issue, OCR noted. Department in § 75.300(c) and (d).
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concerning § 75.300(c) and (d), appropriate, amend its UAR to align and Child Health Services Block Grant continued lawsuits, and a careful with any changes adopted to the programs).14 consideration of its authorities, the 13 Uniform Guidance. IV. Section-by-Section Description of Department proposed amending these the Final Rule and Response to Public provisions in November of 2019. 84 FR III. Statutory Authority Comments 63831 (Nov. 19, 2019). As discussed above, in promulgating The Department provided a 30-day OMB’s January 2020 Proposed Rule the UAR and Part 75, both OMB and the comment period, which closed on Updating the Uniform Guidance Department relied almost exclusively on December 19, 2019. The Department Consistent with 2 CFR 200.109, which the Housekeeping Statute, 5 U.S.C. 301, received well over 100,000 public requires OMB to review the Uniform and the financial management statutes comments. After considering the Guidance every five years, on January in 2 CFR 200.103 (and 45 CFR 75.103). comments, the Department finalizes the 22, 2020, OMB issued a proposed rule These include the Chief Financial proposed rule with the changes to update the Uniform Guidance. 85 FR Officer’s Act, 31 U.S.C. 503, the Budget described in this section, in which the 3766 (Jan. 27, 2020). With respect to and Accounting Act, 31 U.S.C. 1101– Department discusses the public OMB’s Statutory and National Policy 1125, the Single Audit Act, 31 U.S.C. comment, its responses, and the text of Requirements provision, OMB proposed 6101–6106, and several Executive the final rules. to amend the first sentence of Orders dictating internal government General Comments § 200.300(a) to include references to the practice. U.S. Constitution and federal law and Comment: Several comments stated The Department also has statutory 30 days was not sufficient time to specific references to free speech and authority to issue regulations to enforce religious liberty, in addition to the comment on the proposed rule and certain government-wide statutory civil specific references currently in asked the Department to extend the rights nondiscrimination statutes, such § 200.300(a). Thus, under the proposed comment period. guidance, the Federal awarding agency as Title VI of the Civil Rights Act of Response: The Department would be required to manage and 1964, 42 U.S.C. 2000d et seq. appreciates the commenters’ administer the Federal award in a (prohibiting discrimination on the basis suggestions, but respectfully disagrees manner so as to ensure that Federal of race, color, national origin by that the 30-day comment period was funding is expended and associated recipients of Federal financial insufficient and declines to extend the programs are implemented ‘‘in full assistance); Title IX of the Education comment period. The APA does not accordance with the U.S. Constitution, Amendments of 1972, 20 U.S.C. 1681 have a minimum time period for Federal Law, statutory, and public (prohibiting discrimination on the basis comments, and 30-day comment periods policy requirements,’’ including ‘‘those of sex in federally assisted education are often provided in rulemakings. The protecting free speech, religious liberty, programs), Section 504 of the comment period closed 30 days after public welfare, the environment, and Rehabilitation Act of 1973, 29 U.S.C. publication of the proposed rule in the prohibiting discrimination.’’ 85 FR at 794 (prohibiting discrimination on the Federal Register on November 19, 2019, 3793. According to OMB, the purpose basis of disability in programs and but the proposed rule went on display for the proposed revisions are ‘‘to align activities conducted by, or receiving at the Office of the Federal Register on with Executive Orders (E.O.) 13798 financial assistance from, federal November 18, 2019, and on the ‘‘Promoting Free Speech and Religious agencies), and the Age Discrimination Department’s website on November 1, Liberty’’ and E.O. 13864 ‘‘Improving Act, 42 U.S.C. 6101 et seq. (prohibiting 2019. See https://www.hhs.gov/about/ news/2019/11/01/hhs-issues-proposed- Free Inquiry, Transparency, and discrimination on the basis of age in rule-to-align-grants-regulation.html. Accountability at Colleges and programs and activities receiving Universities.’’ These Executive Orders This is consistent with the 2016 Rule, financial assistance from federal which was also the subject of a 30-day advise agencies on the requirements of agencies). There are also certain religious liberty laws, including those comment period. See Health and program specific nondiscrimination Human Services Grant Regulation, 81 laws that apply to grants, and set forth provisions where the Department has a policy of free inquiry at institutions FR 45270 (July 13, 2016) (establishing a the authority to issue enforcement receiving Federal grants; the proposed comment period that closed on August regulations. These include section revisions would ‘‘underscore[ ] the 16, 2016). importance of compliance with the First 471(a)(18) of the Social Security Act The comment period provided ample Amendment.’’ 85 FR at 3768. The (SSA), 42 U.S.C. 671(a)(18) (prohibiting time for the submission of more than comment period closed on March 23, discrimination on the basis of race, 100,000 comments by a variety of 2020. On August 13, 2020, OMB issue color, or national origin in Title IV–E interested parties, including extensive the final Guidance for Grants and adoption and foster care programs), and comments by a number of entities. Agreements, 85 FR 49506 (Aug. 13, section 508 of the SSA, 42 U.S.C. 708 Those comments offer a broad array of 2020). As amended in the final rule, (prohibiting discrimination on the basis perspectives on the provisions that the section 200.300(a) provides that the of age, race, color, national origin, Department proposed to modify in its federal awarding agency would manage disability, sex, or religion in Maternal repromulgation of the 2016 Rule. The and administer federal awards so as to number and comprehensiveness of the ensure that funding and associated 13 The changes to § 200.300(a) seem to address comments received disprove programs are implemented and many of the issues that led the Department to commenters’ claim that the 30-day propose the changes that it did to § 75.300(c) and comment period was insufficient. managed ‘‘in full accordance with the (d). The Department finalizes the amendments to U.S. Constitution, Federal Law, and § 75.300(c) and (d) with no substantive changes Accordingly, after reviewing the public public policy requirements,’’ including from the proposed rule. However, as the ‘‘those protecting free speech, religious Department gains experience in implementing the 14 The Department is authorized to issue updated provisions, it will consider whether the regulations for the efficient administration of its liberty, public welfare, the environment, changes made to section 200.300(a) obviate any functions in the Social Security Act programs for and prohibiting discrimination.’’ The need for the Department’s § 75.300(c) and (d) and, which it is responsible. See SSA 1102(a), 42 U.S.C. Department anticipates that it will, as thus, whether it should repeal such provisions. 1302(a).
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comments and the requests for not apply to the Temporary Assistance inconsistent with the Department’s additional time, the Department does for Needy Families Program (title IV–A previous legal position as embodied in not believe that extending the comment of the Social Security Act, 42 U.S.C. the current rule. period is or was necessary for the public 601–619). Other commenters supported the to receive sufficient notice of, and The Department reexamined the proposed provisions, contending that opportunity to comment on, the current § 75.300(c) and (d) and their the current rule exceeds the proposed rule. Consequently, the authorities after also receiving Department’s authority. Some of these Department concludes that the comment complaints from recipients and States commenters focused on specific period was legally sufficient and is not that these provisions exceeded the programs. For example, some extending the comment period. Department’s authority under the laws commenters said that the current rule cited in § 75.103 and the Housekeeping Section 75.300(c) and (d), Statutory and exceeds the Department’s authority by Statute, 5 U.S.C. 301. Several expanding the nondiscrimination clause National Policy Requirements, and the commenters pointed out, for example, Related Provision at 75.101(f) in Title IV–E (the federal foster care and that the Social Security Act prohibits adoption program) to include As noted above, in proposing to discrimination on the basis of ‘‘race, classifications not found in the statute. repromulgate § 75.300(c) and (d) in color or national origin’’ in the foster Another commenter said that the modified form, the Department noted care and adoption context, 42 U.S.C. current rule exceeds the Department’s non-Federal entities have expressed 671(a)(18); see 42 U.S.C. 608(d) authority and discretion by unilaterally concerns that requiring compliance with (incorporating statutory expanding civil rights protections to certain nonstatutory requirements of nondiscrimination provisions). And persons not protected by existing law or those paragraphs violates RFRA or the several other statutes, such as Title VI, Supreme Court decisions. Another U.S. Constitution, exceeds the 42 U.S.C. 2000d et seq, prohibit commenter noted that the Department Department’s statutory authority, or categories of discrimination by grantees lacks statutory authority to vary the reduces the effectiveness of its on a government-wide basis. Upon nondiscrimination requirements programs. The Department further noted closer scrutiny, the Department has established by Congress for funded that the existence of complaints and determined it was not appropriate to programs. Other commenters labeled the legal actions indicates that § 75.300(c) stray beyond those statutory categories current rule executive overreach, and (d) imposed regulatory burden and with the 2016 amendments to § 75.300. contended that it grossly exceeded the created a lack of predictability and The Department is finalizing authority of an Executive Branch agency stability for the Department and § 75.300(c) as proposed, which states: to implement the relevant statutory stakeholders with respect to these ‘‘It is a public policy requirement of scheme, or argued that federal provisions’ viability and enforcement. HHS that no person otherwise eligible discrimination standards should adhere The Department also noted that some will be excluded from participation in, to the Constitution, acts of Congress, Federal grantees had stated that they denied the benefits of, or subjected to and Supreme Court decisions. will require their subgrantees to comply discrimination in the administration of Response: The Department, like all with the nonstatutory requirements of HHS programs and services, to the federal agencies, has authority to revisit § 75.300(c) and (d), even if it means extent doing so is prohibited by federal 15 regulations and question the wisdom of some subgrantees with religious statute.’’ This change ensures that its policies on a continuing basis. objections would leave the program(s) relevant changes in the law in these Chevron U.S.A. Inc. v. Natural and cease providing services rather than areas will be most appropriately Resources Defense Council, Inc., 467 comply. Because certain grantees and monitored by the relevant program U.S. 837, 842–843 (1984). The subgrantees that may cease providing offices administering them. The Department has, in fact, written into its services if forced to comply with Department also finalizes the removal of UAR regulations a periodic review § 75.300(c) and (d) provide a substantial § 75.101(f). mechanism. 45 CFR 75.109 (‘‘HHS will percentage of services pursuant to some As discussed, OMB issued proposed review 45 part 75 at least every five Department-funded programs and are guidance amending § 75.300(a) in years’’). In reassessing these provisions, effective partners of federal and state January. OMB’s proposed revision, particularly in light of the receipt of governments in providing such services, requiring funds to be expended in full letters and complaints,16 the Department indicated that it accordance with the Constitution and ongoing believes that such an outcome would federal laws, could be seen as mirroring lawsuits, and exception requests, likely reduce the effectiveness of the requirements of proposed regarding the lawful and appropriate Department-funded programs. § 75.300(d). However, the Department is scope of § 75.300(c) and (d), the Accordingly, as an exercise of its adopting paragraph (d) as proposed. Department is exercising that obligation. discretion to establish requirements for Comments: Some commenters With respect to § 75.300(c) in its grant programs and to establish opposed the proposed provisions, particular, the Department begins by enforcement priorities for those contending that the Department had the noting that Congress has selectively programs, the Department proposed to authority to promulgate the current imposed nondiscrimination amend § 75.300(c) and (d). It proposed § 75.300(c) and (d) in the 2016 requirements in certain statutes, and to amend § 75.300(c) to require rulemaking. Some said concern about with respect to certain grant programs, compliance with applicable statutory the Department’s legal authority is and not imposed the same requirements nondiscrimination requirements. It in others. For example, Title VI of the proposed to amend § 75.300(d) to 15 The Department notes that ‘‘federal statute’’ Civil Rights Act prohibits provide that the Department would encompasses binding case law authoritatively discrimination on the basis of race, interpreting the statute, as well as any regulations color and national origin, but not follow all applicable Supreme Court duly promulgated pursuant to statutory rulemaking decisions in administering its award authority that address discrimination in particular religion or sex. Title IX of the Education programs. The Department also programs. This clarification should remove possible 16 proposed to remove § 75.101(f), which confusion as to the scope of the provision while While several commenters stressed that still ensuring the agency maintains the balance important reliance interests are at stake, the 2016 was added by the 2016 rule to clarify established by Congress in adopting statutory amendment had been in place less than three years that the requirements of § 75.300(c) do nondiscrimination provisions in part 75. when the Department issued the proposed rule.
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Amendments of 1972 prohibits to non-state action. Indeed, depending to a person ‘‘(1) is in furtherance of a discrimination on the basis of sex, but on how broadly that provision were compelling governmental interest; and not religion, and only in certain interpreted, it could raise concerns (2) is the least restrictive means of programs. While RFRA prohibits the under the unconstitutional conditions furthering that compelling governmental federal government from substantially doctrine. Cf. Agency for Int’l Dev’t v. interest.’’ 42 U.S.C. 2000bb–1. The burdening a person’s exercise of religion Alliance for Open Society Int’l, Inc., 570 Department has already concluded that unless it demonstrates that the U.S. 205, 214 (2013) (‘‘[T]he imposition of some of the application of the burden is the least Government may not deny a benefit to nondiscrimination requirements in restrictive means of furthering a a person on a basis that infringes his § 75.300(c) and (d) would violate the compelling governmental interest and constitutionally protected . . . freedom rights of certain religious organizations discrimination by the federal of speech even if he has no entitlement interested in providing foster-care government on the basis of religion to that benefit.’’ (internal quotation services as part of Department-funded often will violate RFRA, Congress does marks omitted). programs. There may be other not specifically prohibit discrimination The Department notes that the circumstances where these requirements on the basis of religion (as such) in authority for imposing these create similar problems under RFRA. many of its statutes. In the statutes requirements is not clear. In Even assuming that the Department establishing certain programs and promulgating part 75, it relied on the had legal authority to impose the grants, Congress has specified the Housekeeping Statute, 5 U.S.C. 301, nondiscrimination requirements in protected categories with respect to which authorizes ‘‘[t]he head of an circumstances that do not present a which discrimination is prohibited. Executive department . . . [to] RFRA problem, however, the Congress has not expressly included prescribe[ ] regulations for the Department no longer believes it discrimination on the basis of sexual government of his department, the appropriate to do so. As explained orientation, gender identity, or same-sex conduct of its employees, the throughout this preamble, those marriage status, in any statute distribution and performance of its nondiscrimination requirements raised applicable to departmental grants. In business, and the custody, use, and questions about whether the Department making these decisions, Congress preservation of its records, pages, and was exceeding its authority, disrupted balanced a number of competing property.’’ But the Department does not the balance of nondiscrimination considerations, including ensuring interpret that statute as authorizing requirements adopted by Congress, and protections for beneficiaries and substantive regulations imposing sowed uncertainty for grant applicants, avoiding burdens that might discourage nondiscrimination requirements on the recipients, and subrecipients that could organizations from participating in conduct of federal grant recipients, deter participation in Department- Department-funded programs. And it except as necessary or appropriate to funded programs and, over time, balanced these considerations with implement an underlying substantive undermine the effectiveness of those respect to, and in the context of, specific statutory requirement.17 Similarly, the programs. The Department is under no grant programs. Department is not convinced that the legal obligation to impose such Likewise, with respect to § 75.300(d), authority conferred in the financial requirements and has accordingly the Supreme Court’s holdings in United management statutes cited in 45 CFR decided to remove them. In their place, States v. Windsor, 570 U.S. 744 (2013), 75.103 is appropriately exercised to the Department adopts a new § 75.300(c) and Obergefell v. Hodges, 576 U.S. 644 impose nondiscrimination requirements to state clearly that all grant recipients (2015), have limits. Generally, those of this sort. The Single Audit Act and subrecipients must comply with the cases require federal and state Amendments, for example, authorize nondiscrimination requirements made governments (as state actors) to treat the Department to promulgate rules to applicable to them by Congress and a same-sex and opposite-sex couples the ‘‘(1) monitor non-Federal entity use of new § 75.300(d) to state that the same in licensing and recognizing Federal awards, and (2) assess the Department will comply with all marriage. Those cases do not require quality of audits conducted under this applicable Supreme Court precedents in private individuals to abandon any chapter,’’ 31 U.S.C. 7504, 7505. That its administration of grants. These provisions fall squarely within the views or beliefs that they have about grant of authority does not appear to same-sex marriage; nor could they, Department’s statutory authorities, contemplate imposition of substantive given that the Due Process Clause and respect the balance struck by Congress nondiscrimination provisions onto all Equal Protection doctrine do not with respect to nondiscrimination Departmental grant programs through regulate private conduct. requirements applicable to grant regulation, especially where the In promulgating the existing recipients, and will promote certainty substantive requirements were not § 75.300(c) and (d), however, the for grant applicants and recipients by embodied in statute(s) applying the Department went beyond the returning to the longstanding requirement to all such grant programs. nondiscrimination requirements requirements with which they are Application of the requirements in imposed by Congress and beyond the familiar. § 75.300(c) and (d) is also contrary to holdings of Windsor and Obergefell. It Comment: A number of commenters, added additional prohibited bases of RFRA in at least some circumstances. both those that supported the proposed discrimination, thus disrupting the As explained at length later in this rule generally and those that opposed balance struck by Congress for preamble, RFRA provides that the the proposed rule, suggested that nondiscrimination requirements in ‘‘Government shall not substantially proposed § 75.300(d) was unnecessary, Department-funded grant programs. It burden a person’s exercise of religion as a truism or otherwise. also inserted a requirement that all grant even if the burden results from a rule of Response: The Department recognizes recipients ‘‘[i]n accordance with the general applicability, except’’ where that proposed § 75.300(d) may seem a Supreme Court decisions in United application of such substantial burden truism. But it states an important States v. Windsor and in Obergefell v. principle: The Department will follow 17 The Department recognizes that there are Hodges, . . . must treat as valid the current legal challenges as to the use of the all applicable Supreme Court decisions marriages of same-sex couples,’’ which Housekeeping Statute to issue regulations to in administering its award programs. thus extends the holdings in those cases implement substantive statutory requirements. And it is not unknown for federal
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regulations to enunciate such principles funding to carry out activities in Comments: With respect to religious that may seem unnecessary to be set furtherance of a public goal: A grant liberty issues and RFRA, some forth in regulatory text. The Department, agreement is used when the principal commenters opposed the proposed rule accordingly, finalizes § 75.300(d) as purpose of the relationship is to transfer based on their view that religious proposed. something of value to the recipient ‘‘to freedom exemptions do not belong in Comment: Several commenters carry out a public purpose of support or healthcare where lives may be at stake, opposed the proposed rule, arguing that stimulation authorized by a law of the or in science and medical procedures. proposed § 75.300(c) creates an United States’’ and ‘‘substantial Another commenter contended that the inconsistency among the Department’s involvement is not expected’’ between proposed rule would allow religious regulations and policies prohibiting the agency and the recipient when groups to discriminate, to the detriment discrimination. Specifically, carrying out the contemplated activity. of children needing foster care services. commenters referred to HHSAR 31 U.S.C. 6304.18 In contrast, the Another disagreed that the 2016 Rule 352.237–74, which includes a ‘‘Non- primary purpose of a procurement violated religious freedom or RFRA, or Discrimination in Service Delivery’’ contract is to acquire goods or services required remediation for that reason. clause that prohibits discrimination for the direct benefit or use of the Other commenters contended the based on non-merit factors such as government: A procurement contract proposed rule would permit religious ‘‘race, color, national origin, religion, (including for service delivery) is used discrimination, including against sex, gender identity, sexual orientation, when ‘‘the principal purpose of the beneficiaries and participants in direct [and] disability (physical or mental).’’ instrument is to acquire (by purchase, federally funded programs, or opposed Commenters noted that the Department lease, or barter) property or services for the proposed rule because religious cited this provision in promulgating the direct benefit or use of the United freedom should not be pursued with current § 75.300(c); one commenter States government.’’ 31 U.S.C. 6303.19 discriminatory regulations or policies. noted that the alignment of grant Procurement contracts ‘‘are subject to a Another claimed that the proposed rule programs with contractual requirements variety of statutory and regulatory is based on a false premise that helped guarantee uniformity in service requirements that generally do not protecting minorities is inconsistent delivery and ensured that apply to assistance transactions.’’ GAO– with RFRA. Some commenters opposed discrimination had no place in any 06–382SP, Appropriations Law (2006), the proposed rule, asserting that it is Department-funded program. Another Vol. II, 10–18. And, arguably, because unconstitutional and violates the commenter said that this codification the purpose is to acquire goods or Establishment Clause (or the separation was, according to the Department, services for the direct benefit or use of of church and state); another commenter ‘‘based on existing law or HHS policy.’’ the government, the Department may contended that it would also violate the Commenters asserted that removing this have greater latitude to impose Equal Protection and Due Process consistency goes against the nondiscrimination and other components of the Fifth Amendment. Department’s assertion, in its proposed requirements on a contractor than on a Conversely, many commenters rulemaking, that the amendment will grantee, when the Department’s purpose supported the proposed rule because it increase predictability and stability, and is to provide assistance through a protects the religious freedom of faith- would subject grants and service grant.20 based organizations that provide contracts to different nondiscrimination services in federal programs. They requirements. Furthermore, commenters 18 A cooperative agreement is used when the stated that the proposed rule corrected have said that the proposed rule principal purpose of the relationship is to transfer the RFRA violations in the 2016 rule, amending § 75.300(c) would remove something of value to the recipient ‘‘to carry out a public purpose of support or stimulation authorized alleviated discrimination against faith- explicit protections from certain by law of the United States’’ and ‘‘substantial based organizations, and would protect communities, leaving grantees with involve is expected’’ between the agency and the against religious discrimination. little clarity or guidance. recipient when carrying out the contemplated Another commenter supported the Response: The Department activity. 31 U.S.C. 6305. 19 The ‘‘Non-Discrimination in Service Delivery’’ proposed rule because the current rule respectfully disagrees. This final rule clause is applied to ‘‘solicitations, contracts, and may violate the Free Speech and Free amending § 75.300(c) expressly orders to deliver services under HHS’ programs Exercise Clauses of the U.S. prohibits discrimination where directly to the public.’’ See HHSAR 337.103(e). Constitution. Some commenters prohibited by federal statute. While the These service contracts are procurement contracts where the federal agency provides assistance to supported the proposed rule because it Department’s regulations and policies specified recipients by using an intermediary. They is a regulation that frees up long- applicable to federal contracts can serve are procurement contracts: The agency is acquiring standing faith-based organizations to as persuasive authority for its the services for the direct benefit or use of the help the public good. A number of regulations and policies applicable to United States government because it is buying the intermediary’s services for its own purposes, to commenters, specifically addressing grants and cooperative agreements, they relieve the agency of the need to provide the advice foster care and adoption or other child do not bind the Department in adopting or services with its own staff. See S. Rep. No. 97– welfare programs, supported the policies that govern its grant programs. 180, 3 (1981) (‘‘What is important is whether the proposed rule to prevent government federal government’s principal purpose is to acquire Furthermore, in basing its decision to discrimination against religious adopt current § 75.300(c) on the fact that the intermediary’s services, which may happen to take the form of producing a product or carrying out the HHSAR contains such a provision a services that is then delivered to an assistance enforcement of the current § 75.300(c) and (d). 84 with respect to service contracts, the recipient, or if the government’s principal purpose FR at 638132. The Department recognizes that, Department may have failed to give is to assist the intermediary to do the same thing. because Congress has been selective in imposing sufficient consideration to the difference Where the recipient of the award is not receiving specific nondiscrimination requirements with assistance from the federal agency but is merely respect to certain grant programs, grantees may see between grants and procurement used to provide a service to another entity which even the application of statutory nondiscrimination contracts (including service contracts) is eligible for assistance, the proper instrument is requirements as unpredictable. However, under under federal law. Under the Federal a procurement contract.’’). § 75.300(a), the Department’s awarding agency is Grant and Cooperative Agreement Act, a 20 In the proposed rule, the Department expressed required to communicate to the non-Federal entity concern that the existence of the referenced all relevant public policy nondiscrimination grant (or cooperative agreement) is an complaints and legal actions created a lack of requirements and to incorporate them either assistance arrangement, where the predictability and stability for the Department and directly or by reference in the terms and conditions purpose is to encourage the recipient of stakeholders with respect to the viability and of the Federal award.
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adoption and foster care providers or Department of Justice, ‘‘Federal Law government has in place a system of faith-based agencies, which should not Protections for Religious Liberty,’’ 82 FR individual exemptions from the need to choose between helping 49668, 49669–70 (Oct. 26, 2017). requirement, Employment Division, children and their deeply held beliefs Whether the financial consequences are Department of Human Resources of and should be free to serve children and a fine or the withholding of a benefit, Oregon v. Smith, 494 U.S. 872, 884 families according to their beliefs. such as a grant or license, is irrelevant. (1994); Fraternal Order of Police v. City Several noted that prohibiting religious See Sherbert v. Verner, 374 U.S. 398, of Newark, 170 F.3d 359, 366 (3d Cir. groups from providing critical services 404 (1963) (‘‘It is too late in the day to 1999) (Alito, J.), or that similar agencies to underserved and at-risk children doubt that the liberties of religion and or programs do not impose the violates the principles of religious expression may be infringed by the requirement, Holt v. Hobbs, 135 S. Ct. freedom; others noted that Christian- denial of or placing of conditions upon 853, 866 (2015). The compelling-interest based foster agencies should not be a benefit or privilege.’’); see also Hobbie requirement applies even where the discriminated against because of their v. Unemployment Appeals Comm’n of accommodation sought is ‘‘an religious beliefs regarding marriage. Fla., 480 U.S. 136, 141 (1987); Thomas exemption from a legal obligation Some commenters also supported the v. Review Bd. of Ind., 450 U.S. 708, 717– requiring [the claimant] to confer proposed rule because they support the 18 (1981).22 In 2017, the Supreme Court benefits on third parties.’’ Hobby Lobby, inclusion of faith-based organizations recognized that, under the First 134 S. Ct. at 2781 n.37. Although ‘‘in for consideration in the awarding of Amendment, religious institutions applying RFRA ‘courts must take grants. applying for government grants have ‘‘a adequate account of the burdens a Response: RFRA provides broad right to participate in a government requested accommodation may impose protection for religious liberty against benefit program without having to on nonbeneficiaries,’ ’’ the Supreme infringement by the federal government. disavow [their] religious character.’’ Court has explained that almost any Burwell v. Hobby Lobby, 573 U.S. 682 Trinity Lutheran Church of Columbia, governmental regulation could be (2014). RFRA provides that the federal Inc. v. Comer, 137 S. Ct. 2012, 2022 reframed as a legal obligation requiring government ‘‘shall not substantially (2017). And RFRA likewise applies to a claimant to confer benefits on third burden a person’s exercise of religion government actions in administering parties. Id. (quoting Cutter v. Wilkinson, even if the burden results from a rule of grant programs. See 82 FR at 49669 544 U.S. 709, 720 (2005)). As nothing in general applicability,’’ unless ‘‘it (‘‘RFRA applies to all actions by federal the text of RFRA admits of an exception demonstrates that the application of the administrative agencies, including . . . for laws requiring a claimant to confer burden to the person (1) is in grant or contract distribution and benefits on third parties, 42 U.S.C. furtherance of a compelling administration.’’); see also OLC 2000bb–1, and such an exception would governmental interest; and (2) is the Opinion, ‘‘Application of the Religious have the potential to swallow the rule, least restrictive means of furthering that Freedom Restoration Act to the Award the Supreme Court has rejected the compelling governmental interest.’’ 42 of a Grant Pursuant to the Juvenile proposition that RFRA accommodations U.S.C. 2000bb–1. RFRA’s test is the Justice and Delinquency Prevention are categorically unavailable for laws ‘‘most rigorous’’ form of scrutiny Act,’’ 31 Op. O.L.C. 1, 62 (2007) (RFRA requiring claimants to confer benefits on identified by the Supreme Court. requires Office of Justice Programs to third parties. Hobby Lobby, 134 S. Ct. at Church of the Lukumi Babalu Aye v. exempt a religious organization that is a 2781 n.37. City of Hialeah, 508 U.S. 520, 546 grantee from a religious Even if the government can identify a (1993); see also City of Boerne v. Flores, nondiscrimination requirement in the compelling interest, the government 521 U.S. 507, 534 (1997) (‘‘Requiring a grant). must also show that denial of an State to demonstrate a compelling Government bears a heavy burden to accommodation is the least restrictive interest and show that it has adopted justify a substantial burden on the means of serving that compelling the least restrictive means of achieving exercise of religion. ‘‘[O]nly those governmental interest. This standard is that interest is the most demanding test interests of the highest order . . . can ‘‘exceptionally demanding.’’ Id. at 2780. known to constitutional law.’’). It overbalance legitimate claims to the free It requires the government to show that governs ‘‘all Federal law, and the exercise of religion.’’ Thomas, 450 U.S. it cannot accommodate the religious implementation of that law, whether at 718 (quoting Wisconsin v. Yoder, 406 adherent while achieving its interest statutory or otherwise, and whether U.S. 206, 215 (1972)). ‘‘[B]roadly through a viable alternative, which may adopted before or after November 16, formulated interests justifying the include, in certain circumstances, 1993’’: It is applicable to federal general applicability of government expenditure of additional funds, statutory law adopted after such date mandates’’ are insufficient. Gonzales v. modification of existing exemptions, or ‘‘unless such law explicitly excludes O Centro Espirita Beneficente Uniao do creation of a new program. Id. at 2781. Indeed, the existence of exemptions for such application by reference to this Vegetal, 546 U.S. 418, 431 (2006). The chapter.’’ 21 other individuals or entities that could government must establish a compelling For purposes of RFRA, ‘‘exercise of be expanded to accommodate the interest to deny an accommodation to religion’’ includes ‘‘any exercise of claimant, while still serving the the particular claimant. Id. at 430, 435– religion, whether or not compelled by, government’s stated interests, will 38. An asserted compelling interest in or central to, a system of religious generally defeat a RFRA defense, as the denying an accommodation to a belief.’’ 42 U.S.C. 2000bb–2(2), 2000cc– government bears the burden to particular claimant is undermined by 5(7)(A). The term ‘‘substantially establish that no accommodation is evidence that exemptions or burden’’ means to ban an aspect of a viable. See id. at 2781–82. person’s religious observance or accommodations have been granted for Applying these principles, as noted in practice, compel an act inconsistent other interests, id. at 433, 436–37; the proposed rule, and above, the with that observance or practice, or Hobby Lobby, 134 S. Ct. at 2780, that the Department determined that RFRA’s substantially pressure the person to application to § 75.300(c) in the context 22 RFRA expressly incorporates the compelling modify such observance or practice.’’ interest tests of Wisconsin v. Yoder, 406 U.S. 205 of the South Carolina Title IV–E foster (1972) and Sherbert v. Verner, 374 U.S. 398 (1963). care program, and the participation of a 21 42 U.S.C. 2000bb–3. See 42 U.S.C. 2000bb(b)(1). faith-based provider whose religious
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beliefs precluded it from complying § 75.300 because they asserted that the independence, including their with the religious nondiscrimination revisions would lead to spending of expression of their religious beliefs. See, provision, required the Department to taxpayer dollars to support e.g., 42 U.S.C. 290kk–1 (SAMHSA issue an exception to South Carolina for organizations that discriminate in discretionary funds), 300x–65 that faith-based organization and other violation of equal rights. Similarly, (SAMHSA block grants), 604a similarly situated faith-based some commenters asserted that the (Temporary Assistance for Needy participants in South Carolina’s foster proposed revisions to § 75.300 would Families); see also 45 CFR 87.3.24 care program who were willing to refer violate the separation of church and Comment: The Department received would-be foster parents to other state. numerous comments on a variety of providers. A federal district court in Response: The Department other laws as well. These included Title Michigan likewise concluded that RFRA respectfully disagrees. Under the state VII, the Affordable Care Act, the Family required an exception from § 75.300(c) action doctrine, the First, Fifth, and First Prevention Services Act, and state for a Catholic organization that Fourteenth Amendment of the and local laws dealing with participated in Michigan’s foster care Constitution among others, apply only discrimination and child welfare. Some and adoption program, but could not— to state action, i.e., the action of the commenters believed these laws consistent with its Catholic beliefs— federal government and, as applicable, required keeping the current language of review and recommend to the State the state governments. It does not apply § 75.300(c) and (d), while other same-sex or unmarried couples to private conduct. See United States v. commenters believed these laws (although it referred such cases to other Morrison, 529 U.S. 598 (2000); Civil required the Department to repeal or child placing agencies for review and Rights Cases, 109 U.S. 3 (1883). Thus, amend paragraphs (c) and (d). Some also recommendation). The court issued a only the action of the federal thought agency action to be premature preliminary injunction precluding the government (or state governments) given the pendency of several cases Secretary from taking ‘‘any enforcement could violate the Establishment Clause surrounding these laws at the Supreme action against the State under 45 CFR or the Due Process or Equal Protection Court. 75.300(c) based upon [plaintiff’s] Clauses. The private conduct of Federal Response: This rulemaking does not protected religious exercise . . . or recipients and subrecipients is not alter a grant applicant or recipient’s upon the State of Michigan’s obligation considered state action merely by obligations under the referenced laws or under this preliminary injunction to receipt of partial funding from the any regulations promulgated to accommodate such protected religious government. See Rendell-Baker v. Kohn, implement such laws. Thus, grant exercise.’’ Buck, 429 F.Supp.3d at 461. 457 U.S. 830 (1982). And the applicants and recipients that are Finally, as noted above, the Department’s funding of faith-based and subject to nondiscrimination Department’s OCR notified the Texas other organizations for a wide variety of requirements in Title VII, the Affordable Attorney General that it had concluded purposes does not constitute sufficient Care Act, and/or state or local laws that application of § 75.300(d) and involvement or entwinement with the dealing with discrimination, will certain provisions in § 75.300(c) to government for private recipients to be remain subject to those laws to the same require Texas to exclude the considered state actors. See Shelley v. extent that they were before this Archdiocese of Galveston (or similarly Kraemer, 334 U.S. 1 (1948). rulemaking. Conversely, grant situated entities) from its foster care and The government does not violate the applicants and recipients who are not adoption programs would violate RFRA. Establishment Clause where grants are subject to those requirements will The Department recognized that it awarded to a wide variety of entities, continue not to be subject to them. The had a number of options to address the including faith-based organizations, and Department will also continue to burdens imposed on religious exercise for a wide variety of purposes, none of enforce any nondiscrimination by § 75.300(c) and (d). As noted above, which are the promotion of religion. provisions for which it has enforcement the Department proposed to amend the Indeed, ‘‘a significant factor in authority relating to grant applicants provisions to mirror the balance struck upholding governmental programs in and recipients, and it will do so in by Congress with respect to the face of Establishment Clause attack accordance with the terms of the nondiscrimination requirements and to is their neutrality towards religion.’’ statutes. For example, the Department reduce confusion for grant applicants Rosenberger v. Rector & Visitors of Univ. will continue to require State foster care and recipients. This exercise of the of Va., 515 U.S. 819, 839 (1995). That plans under the Family First Prevention Department’s discretion also alleviates ‘‘guarantee of neutrality is respected, Services Act to include the prohibition the substantial burdens on religious not offended, when the government, on ‘‘delay[ing] or deny[ing] the exercise that the Department had following neutral criteria and placement of a child for adoption or into identified and others of which it is not evenhanded policies, extends benefits to foster care, on the basis of the race, yet aware. Especially in the absence of recipients whose ideologies and color, or national origin of the adoptive any statutory requirement to impose viewpoints, including religious ones, or foster parent, or of the child, § 75.300(c) and (d), the Department are broad and diverse.’’ Id. Thus, believes that the best way to avoid such religious adherents and organizations 24 The Department is aware that a federal district burdens on religious exercise is, instead may, like nonreligious adherents and court has recently declined to dismiss a challenge, brought by a same-sex couple against South of requiring individual objectors to organizations, receive direct financial Carolina and the Department, challenging the assert claims under RFRA or other aid through a secular-aid program. exception granted to the State of South Carolina applicable laws, to avoid such Indeed, excluding religious adherents with respect to the religious nondiscrimination regulatory requirements.23 and organizations from secular-aid provision in the current § 75.300(c) for Miracle Hill and similarly situated entities in South Carolina. Comments: A number of commenters programs may violate the Free Exercise The court dismissed the plaintiff’s equal protection opposed the proposed revisions to Clause. See, e.g., Trinity Lutheran, 137 claim for religious discrimination and denied the S. Ct. 2012 (scrap tire program). And the motion to dismiss the plaintiff’s claims for violation 23 See California v. Azar, No. 19–15974, 2020 WL Department is under an affirmative duty of the Establishment Clause and equal protection 878528, at *24 (9th Cir. Feb. 24, 2020) (en banc) to allow faith-based organizations to based on sexual orientation discrimination. Nothing (‘‘HHS acted well within its authority in deciding in that decision would preclude the Department how best to avoid conflict with the Federal participate equally in federal grant from finalizing this rule. Rogers v. HHS, 19–cv– conscience laws’’). programs while maintaining their 01567–TMC (D.S.C. 2019).
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involved,’’ 42 U.S.C. 671(a)(18)(b), homosexual or transgender has protected categories from discrimination while also ensuring that federal discharged or otherwise discriminated in the rule or applying two specific payments for foster care are only against that individual ‘because of such Supreme Court decisions. If anything, expended for child placements made individual’s sex.’ ’’ 140 S. Ct. at 1753 Bostock shows the utility of the pursuant to the ‘‘best interest of the (‘‘Under Title VII . . . we do not Department’s approach in this final rule. child’’ standard. 42 U.S.C. 672(e). purport to address bathrooms, locker Comments: Some commenters Commenters noted the pendency rooms, or anything else of the kind.’’). opposed the proposed rule, contending before the Supreme Court of several It noted that ‘‘the employers worry that that it is an arbitrary and capricious cases raising the question whether Title our decision will sweep beyond Title exercise of the Department’s rulemaking VII prohibits an employer from firing VII to other federal or state laws that authority and violates the APA; another employees because of their sexual prohibit sex discrimination,’’ but stated added that it is an abuse of discretion orientation or gender identity, that ‘‘none of these other laws are before and otherwise not in accordance with contending that any action by the us; we have not had the benefit of law. Several commenters asserted that Department would be premature. As a adversarial testing about the meaning of the Department did not provide general matter, although the Supreme their terms, and we do not prejudge any adequate evidence to support its Court’s interpretation of the language of such question today.’’). Id. Finally, the assertions about complaints or the Title VII may inform the interpretation Court acknowledged the potential proposed revisions, or failed to provide of similar language in other statutes and application of the ‘‘express statutory a reasoned analysis for the proposed regulations, like Title IX, the statutes exception for religious organizations’’; changes. differ in certain respects. See, e.g., of the First Amendment, which ‘‘can bar Response: The Department Gebser v. Lago Vista Indep. Sch. Dist., the application of employment respectfully disagrees. Under the APA, 524 U.S. 274, 283–90 (1998) (comparing discrimination laws’’ in certain cases; agency action may be arbitrary and the text, context, and structure of Title and of RFRA, ‘‘a kind of super statute’’ capricious if the agency (1) ‘‘relied on VII and Title IX); Jackson v. which ‘‘might supersede Title VII’s factors which Congress has not intended Birmingham Bd. of Educ., 544 U.S. 167, commands in appropriate cases.’’ 140 S. it to consider’’; (2) ‘‘entirely failed to 175 (2005) (same). Ct. at 1754 (noting that ‘‘how these consider an important aspect of the The Supreme Court has now decided doctrines protecting religious liberty problem’’; (3) ‘‘offered an explanation those Title VII cases and nothing in its interact with Title VII are questions for for its decision that runs counter to the decision in Bostock v. Clayton County, future cases too’’). evidence before the agency’’; or (4) 590 U.S. ll, 140 S. Ct. 1731 (2020), on offered an explanation ‘‘so implausible those consolidated cases precludes the The final rule is consistent with that it could not be ascribed to a Department from issuing this final rule. Bostock. First, whether a grant recipient difference in view or the product of In Bostock v. Clayton County, the or applicant is subject to Title VII is agency expertise.’’ Motor Vehicle Mfrs. Supreme Court held that Title VII’s determined by facts independent of its Ass’n of U.S., Inc. v. State Farm Mut. prohibition of employment relationship to the Department. Auto. Ins. Co., 463 U.S. 29, 43 (1983). discrimination because of sex Receiving a grant from the Department Having identified legal, policy, and encompasses discrimination because of does not change a grantee’s obligations programmatic issues presented by sexual orientation and gender identity. under that statute. Second, if the Court’s current § 75.300(c) and (d), the The provision at issue in Bostock stated reasoning in Bostock is extended to Department proposed, and now that it is ‘‘unlawful . . . for an employer other statutory protections prohibiting finalizes, revisions to the provisions to to fail or refuse to hire or to discharge discrimination on the basis of sex— address the issues. As finalized here, the any individual, or otherwise to statutory provisions that are applicable amended § 75.300(c) and (d) better align discriminate against any individual . . . to grants, such as Title IX, section 1557 with the governing statutes. It is never because of such individual’s . . . sex.’’ of the Affordable Care Act or other arbitrary and capricious for an agency to 42 U.S.C. 2000e–2(a)(1). The Court statutory provisions that incorporate ‘‘justify its policy choice by explaining stated that it ‘‘proceed[ed] on the Title IX’s prohibition on discrimination why that policy ‘is more consistent with assumption that ‘sex’ signified what the on the basis of sex into Departmental statutory language,’ ’’ so long as the employers suggest, referring only to grant programs, or other statutes that agency ‘‘analyze[s] or explain[s] why the biological distinctions between male prohibit sex discrimination in statute should be interpreted’’ as the and female’’ when Title VII was Departmental grant programs— agency proposes. Encino Motorcars, LLC enacted.in 1964 140 S. Ct. at 1739. The § 75.300(c) and (d) would incorporate v. Navarro, 136 S. Ct. 2117, 2127 (2016) Court then discussed the statute’s use of such protections. Third, because the (quoting Long Island Care at Home, Ltd. the words ‘‘because of’’ (‘‘by reason of’’ final rule applies only applicable v. Coke, 551 U.S. 158, 175 (2007)). or ‘‘on account of’’), ‘‘discriminate statutory nondiscrimination The Department respectfully disagrees against’’ (treating [an] individual worse requirements to its grant programs, the with commenters that contended that than others who are similarly situated), Department necessarily acknowledges the Department has not met the and ‘‘individual,’’ before concluding the potential exceptions to such threshold standard for revising its that the statute covered the challenged requirements under the Constitution regulations. Agency action that conduct, see 140 S. Ct. at 1739–40, and federal statute, including in ‘‘changes prior policy’’ is not subject to 1753. The Court reasoned, ‘‘[f]or an nondiscrimination statutes, RFRA, and a heightened justification or standard of employer to discriminate against the First Amendment. Accordingly, review: An Agency ‘‘need not employees for being homosexual or nothing about the Bostock decision demonstrate to a court’s satisfaction that transgender, the employer must undermines the Department’s choice in the reasons for the new policy are better intentionally discriminate against this final rule to refer to statutory than the reasons for the old one; it individual men and women in part nondiscrimination requirements and suffices that the new policy is because of sex.’’ 140 S. Ct. at 1743. The state that the Department will follow permissible under the statute, that there Court noted that ‘‘[t]he only question applicable Supreme Court decisions in are good reasons for it, and that the before us is whether an employer who administering its award programs, agency believes it to be better, which the fires someone simply for being rather than delineating the specific conscious change of course adequately
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indicates. This means that the agency organizations that may discriminate effective in January 2017, and there is need not always provide a more detailed against, or violate the rights of, no reason to believe that this will occur justification than what would suffice for vulnerable people who need services, or as a result of the fact that the regulation a new policy created on a blank slate.’’ in violation of equal rights. Some will only require compliance with FCC v. Fox Television Stations, Inc., 556 commenters argued that discrimination statutory nondiscrimination U.S. 502, 515 (2009). Given the limited is against American beliefs and that law requirements. This final rule merely justification for the adoption of and government policy should not allow removes the regulatory requirement to § 75.300(c) and (d), and the fact that the it. Another commenter noted that all of comply with nonstatutory Department was not statutorily humankind is created in the image of nondiscrimination requirements; grant obligated to add those provisions in the God, and that no form of discrimination recipients are still required to comply first place, the explanations provided in is defensible. with the statutory nondiscrimination the proposed rule—and in this final In addition to the potential impact on requirements that are applicable to the rule—meet the applicable standards. foster care and adoption (discussed programs for which they receive Comments: Many commenters below), commenters asserted that the Department funding—and they remain opposed the proposed rule, contending proposed rule would have an adverse free, consistent with their other legal impact on children and adults served in that it would permit organizations to and regulatory obligations, to observe multiple systems of care. Other discriminate against members of the nonstatutory nondiscrimination commenters claimed a negative impact LGBTQ community, women, and practices.25 To the extent that on various health and human services religious minorities. One commenter commenters view statutory programs supported by HHS funding, claimed that the proposed rule including housing, homeless shelters, nondiscrimination provisions as eliminates protections for traditionally child care, education, food assistance, insufficient, they can address that issue marginalized populations, including health care, cancer screenings, with Congress. LGBTQ people, and permits immunization programs, reproductive The Department is committed to discrimination in the administration of care, and STD/STI and HIV/AIDS improving the health and wellbeing of HHS programs and services based on programs, Head Start and other pre- all Americans.26 Consistent with its gender identity or sexual orientation. kindergarten programs, domestic statutory authority, the Department Many suggested that LGBTQ individuals violence hotlines, substance abuse seeks, wherever possible, to remove and other marginalized communities programs, resettlement efforts for barriers to healthcare. As a matter of could lose access to healthcare through refugees and asylees, and community policy, the Department recognizes and discrimination under the proposed rule. support services for seniors and people works to address barriers to treatment One commenter claimed that the with disabilities. Several commenters caused by stigma about depression, proposed rule lays the foundation for claimed that the proposed rule could anxiety, substance use disorder, and possible discrimination against certain restrict access to HIV prevention and other comorbid mental and behavioral groups of people; other commenters treatment and would be a setback to the health conditions.27 For example, this expressed concern that it will set a administration’s Ending HIV as an final rule does not alter or affect the precedent for discrimination in other epidemic initiative. health and human services programs. longstanding Federal protections against Response: The Department believes discrimination for individuals with HIV: One commenter suggested that the that all people should be treated with proposed changes would increase the Section 504, and hence also this final dignity and respect, especially in the rule, prohibits discrimination on the burdens on the LGBTQ community, Department’s programs, and that they 28 women, and people of minority faiths, basis that an individual has HIV. OCR should be given every protection continues to pursue major enforcement violating their civil rights and imposing afforded by the Constitution and the damage far greater than the monetary laws passed by Congress. The 25 A few commenters complained about the effects on the regulated community. A Department does not condone the proposed removal of the express enumeration of the number of State Attorneys General unjustified denial of needed medical required nondiscrimination in § 75.300(c). opposed the proposed rule, contending care or social services to anyone. And it However, § 75.300(a) requires the Department’s that it would eliminate explicit is committed to fully and vigorously grantmaking agencies to communicate all of the protections for age, disability, sex, race, relevant public policy requirements—which enforcing all of the nondiscrimination includes the applicable nondiscrimination color, natural origin, religion, gender statutes entrusted to it by Congress. In requirements—to grantees and to incorporate them identity, or sexual orientation, and this final rule, the Department either directly or by reference in the terms and replace them with a generic prohibition reemphasizes this commitment to apply conditions of the Federal award. of discrimination to the extent and enforce those nondiscrimination 26 When there are a sufficient number of eligible organizations and the issue is which ones should prohibited by federal statutes, making laws. be funded, an increase in the number of such grantees free to discriminate if they so The Department does not agree with organizations makes it more likely that the funding choose. One commenter stated that the commenters’ assertion that, should the component (or recipient) would be able to select proposed rule would allow HHS award Department limit its nondiscrimination more effective or higher quality recipients/ recipients, whether religious or non- regulatory and enforcement activities to subrecipients. 27 See, e.g., Pain Management Task Force, ‘‘Pain religious, to discriminate based on non- the nondiscrimination laws passed by Management Best Practices, Fact Sheet on Stigma’’ merit factors unless some other Congress, grantees will discriminate (Aug. 13, 2019), https://www.hhs.gov/sites/default/ prohibition applies explicitly to the against vulnerable populations or deny files/pmtf-fact-sheet-stigma_508-2019-08-13.pdf program or activity. A number of services to the intended beneficiaries of (‘‘Compassionate, empathetic care centered on a patient-clinician relationship is necessary to commenters argued that discrimination departmental programs, or that counter the suffering of patients.... Patients with has no place in HHS programs and that individuals who are otherwise eligible painful conditions and comorbidities, such as HHS has no authority to hold money or to receive services from programs anxiety, depression or substance use disorder (SUD) discriminate against anyone with their funded by the Department will not face additional barriers to treatment because of stigma.’’). tax dollars. Other commenters claimed receive them. Commenters offered little 28 See 29 U.S.C. 705(20) (incorporating ADA that the proposed rule would permit evidence that this was the case before definition of disability into Section 504); 42 U.S.C. taxpayer dollars to support the current § 75.300(c) and (d) became 12102(1)–(3); 28 CFR 35.108(d)(2)(iii)(J).
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actions under its authorities 29 and to the children and youth higher priority. All children and youth should be provide the public guidance 30 to protect Several commenters disagreed that the treated fairly and with compassion and the rights of persons with HIV or AIDS. current rule reduces the effectiveness of respect for their human dignity. Those HHS remains committed to ensuring HHS-funded programs, contending that in foster care need the support of a that those living with HIV or AIDS there is no evidence validating the loving family to help them negotiate receive full protection under the law, in statement. One commenter faulted HHS adolescence and grow into healthy accordance with full implementation of for not providing empirical data to adults, including those that face special the President’s National HIV/AIDS support the contention that the or unique challenges. Faith-based child Strategy.31 nondiscrimination rule is materially placement agencies are critical Comments: Some commenters affecting efforts to find qualified providers and partners in caring for opposed the proposed rule, contending providers; another complained that HHS vulnerable children and youth. These that it would license discrimination by did not present evidence that a agencies have a long and successful allowing child welfare agencies to reject significant number of grantees have history of placing foster children with prospective foster and adoptive families been unduly burdened under the loving families, either in temporary on the basis of sexual orientation, current rule. foster care or in forever homes through gender identity or expression, religion, On the other hand, some commenters adoption. Their participation in these and other factors; several suggested that believed that, with the proposed programs does not prevent qualified such interests would be prioritized changes, more children in the foster care individuals, with whom some faith- above the best interests of the child. system will be able to receive help as based agencies cannot work, from Others were concerned that it would there will be more organizations becoming foster or adoptive parents permit discrimination against children available to provide services. Other because there are other agencies that in foster care who are LGBTQ and are commenters supported the proposed would welcome their participation. entitled to loving support and the rule, believing that it keeps faith-based Failure to address the objections to chance of a family. One state noted that adoption agencies viable. Several the nonstatutory nondiscrimination its experience was that placement rates Senators who submitted comments requirements could destabilize this and time in care do not change argued that the proposed rule would diverse system of foster care providers. significantly when discriminatory encourage a wider array of foster service Some faith-based subrecipients, providers leave the field. A number of providers. Other commenters noted that including some that provide critically commenters thought that the proposed faith-based organizations have a good important child welfare services to rule would have a negative impact on track record of helping vulnerable states and local jurisdictions across the the availability of foster care/adoption children through foster care and child welfare continuum, may not be placements; a few claimed that it would adoption, and providing material able to provide needed services—and limit the number of loving parents that support and services, and believe the indeed, might be compelled to children can be placed with based on proposed rule will have a positive withdraw from the provision of child sexual preference, which does not serve impact on the availability of foster care welfare services—if they are forced to anyone, with one commenter asserting and adoption services. Some noted that comply with the current nonstatutory that it will increase the number of the proposed rule protects the nondiscrimination requirements. Foster children in foster care permanently. One beneficiaries of HHS programs by care service providers in Michigan, commenter suggested that the ensuring that faith-based organizations South Carolina, and Texas have made substantive due process rights of do not cease to provide services, such claims, supported by the state in children in state-regulated foster care including foster care; several the case of the providers in South will be impaired by the proposed rule commenters noted that the current rule Carolina and Texas. Such a result would and that placing the providers of foster jeopardized foster care for thousands of likely reduce the effectiveness of the care and adoption services in a position children nationwide. foster care/adoption programs because, Response: The Department and its to serve their religious objectives over in many states, it would decrease the Administration for Children and the best interest of the children in their number of entities available to provide Families (ACF) supports the prompt care violates federal statute which gives foster care/adoption related services. placement of children in loving homes The Department further notes that a according to the best interest of the 29 See, e.g., ‘‘HHS Office for Civil Rights Secures number of states have laws requiring the children involved. The Department Corrective Action and Ensures Florida Orthopedic placement of children, when possible, Practice Protects Patients with HIV from recognizes that many states may need with families of the same faith tradition Discrimination’’ (Oct. 30, 2019), https:// more foster and adoptive families and www.hhs.gov/about/news/2019/10/30/hhs-ocr- as the child, in order to promote and greater foster care capacity. The secures-corrective-action-and-ensures-fl-orthopedic- protect the child’s free exercise rights. Department values the work of faith- practice-protects-patients-with-hiv-from- Eliminating the ability of faith-based discrimination.html; ‘‘HHS Office for Civil Rights based organizations in service to providers to participate in Department- Enters Into Agreement with Oklahoma Nursing persons in need and in the protection of Home to Protect Patients with HIV/AIDS from funded foster care and adoption children. It believes that when both Discrimination’’ (Sept. 8, 2017), https:// programs—because of their sincerely faith-based and secular entities www.hhs.gov/about/news/2017/09/08/hhs-office- held religious beliefs—could thus make for-civil-rights-enters-into-agreement-with- participate in the foster care and it more difficult for children to receive oklahoma-nursing-home.html. adoption placement processes, children, 30 services from child placement agencies See OCR, ‘‘Know the Rights That Protect families, and providers benefit from Individuals with HIV and AIDS,’’ https:// that share their faith traditions and are more, not fewer, placement options.32 www.hhs.gov/sites/default/files/ocr/civilrights/ more likely to place such children with resources/factsheets/hivaids.pdf; OCR, ‘‘Protecting the Civil Rights and Health Information Privacy 32 While one state indicated that its placement foster or adoptive parents and families Rights of People Living with HIV/AIDS,’’ https:// rates and time in care did not change significantly www.hhs.gov/civil-rights/for-individuals/special- when ‘‘discriminatory’’ providers leave the field, experience, the Department believes that when topics/hiv/index.html. other states provided the Department with different faith-based organizations are permitted to 31 See ‘‘Ending the HIV Epidemic: A Plan for perspectives on the issue, given the unique participate consistent with their religious beliefs, America,’’ https://www.hiv.gov/Federal-response/ dynamics and experiences of their state foster care there is greater availability of foster care and ending-the-hiv-epidemic/overview. and adoption systems. As noted above, based on its adoption services and placements.
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who share their religious beliefs and services. These organizations and and other regulatory provisions. The values and faith traditions. individuals are likely familiar with the Department is reaffirming this This final rule removes the federal varying eligibility requirements clarification so that all states are aware regulatory barriers that would have imposed by Congress for various grant of the necessity, for example, to expend precluded such faith-based organization programs—that there may be varying refunds and rebates prior to drawing from participating in the federally nondiscrimination requirements among down additional grant funds. The funded Title IV–E foster care and such programs is unlikely to come as a Department repromulgates this adoption programs. surprise. Moreover, the Department’s provision without change. Removing regulatory barriers to agencies are required to inform As with the 2016 rulemaking, the participation of faith-based child recipients of the relevant public policy Department received no comments on placement agencies thus serves the requirements—which includes the this proposal. Department’s goals of creating more applicable nondiscrimination options for children in need of loving Section 75.365, Restrictions on Public requirements—and to incorporate them Access to Records homes. State child welfare agencies are either directly or by reference in the best situated to determine how to serve terms and conditions of the Federal In the proposed rule, the Department the diversity of children and families award. See 45 CFR 75.300(a). This proposed to repromulgate this section within their states, but the changes in would minimize any potential for without change. Section 75.365 clarifies this final rule will ensure that they have uncertainty or confusion as to what is the limits on the restrictions that can be the flexibility to work with all available required. placed on non-federal entities that limit providers. Such providers include not The Department respectfully disagrees public access to records pertinent to only those child placing agencies that that the proposed rule’s provisions that certain federal awards. As stated in the operate within the context of their are finalized here will create a conflict proposed rule, it also implements sincerely held religious beliefs, but also with state or local laws. A conflict arises Executive Order 13642 (May 9, 2013), other providers that do not have such when an entity cannot comply with two and corresponding law. See, e.g., beliefs, including State agency different laws. The Department’s action https://www.federalregister.gov/ placement services. The Department here merely removes certain federal documents/2013/05/14/2013-11533/ and ACF place the best interests of the regulatory requirements. Regulated making-open-and-machine-readable- child first, as participants in entities may follow such the-new-default-for-government- Department-funded Title IV–E programs nondiscrimination principles information/, and Departments of Labor, must; ensuring qualified providers can (voluntarily or as a result of other law), Health, and Human Services, and participate allows ACF to continue to consistent with their other legal Education Appropriations Act of 2014, prioritize the child’s best interest and to obligations. And consistent with their Public Law 113–76, Div. H, Sec. 527 avoid any violation of RFRA. constitutional and legal obligations, (requiring ‘‘each Federal agency, or in Comments: Several commenters State and local governments remain free the case of an agency with multiple (including the Chairs of House to adopt additional nondiscrimination bureaus, each bureau (or operating Committees with jurisdiction) opposed requirements. division) funded under this Act that has the proposed rule, arguing that it would The Department also notes that research and development expenditures create a confusing, uneven patchwork of commenters appear to have in excess of $100,000,000 per year [to] civil rights protections across HHS misunderstood its expressed concern in develop a Federal research public access programs, and undermine a uniform the proposed rule that the existence of policy’’). The language in this final rule nondiscrimination standard for HHS the referenced complaints and legal codifies permissive authority for the grant programs. Several commenters actions created a lack of predictability Department’s awarding agencies to contended that the proposed rule would and stability for the Department and require public access to manuscripts, confuse beneficiaries and recipients of stakeholders with respect to the publications, and data produced under HHS services, and inevitably lead to viability and enforcement of the current an award, consistent with applicable extensive litigation; they also claimed § 75.300(c) and (d) in the proposed rule. law. The Department repromulgates this that it would create conflicts between 84 FR at 63832. In particular, the provision without change. federal, state, and local law and with Department was focused on the As with the 2016 rulemaking, the prior Executive Orders. Several situations that had been brought to its Department received no comments on commenters contended that the attention where under the current rule, this proposal. proposed rule creates greater ambiguity, nonstatutory requirements conflict with Section 75.414, Indirect (Facilities and compliance complexity and uncertainty statutory requirements (e.g., RFRA). It Administration) Costs for both providers and beneficiaries of was in this context that the Department HHS-funded programs. determined that the adoption of this This provision, as published in 2016, Response: As noted above, Congress regulatory approach would make restricted indirect cost rates for certain has been selective in imposing specific compliance more predictable and grants. The Department is nondiscrimination criteria in certain simple for grant recipients, and, thus, repromulgating this provision without statutes and programs, and not imposing control regulatory costs and relieve change. As stated in the proposed rule, the same criteria in other statutes and regulatory burden. The final rule is it is long-standing HHS policy to restrict programs. The Department has elected consistent with that comment. training grants to a maximum eight to follow those selections, and leaves for percent indirect cost rate. In addition to Congress the determination whether to Section 75.305, Payment implementing this limit for training create a uniform nondiscrimination In the proposed rule, the Department grants, this section imposes the same standard for all of the Department’s proposed to repromulgate § 75.305 limitation on foreign organizations and grant programs. without change. As stated in the foreign public entities, which typically The Department doubts that the lack proposed rule, the 2016 Rule modified do not negotiate indirect cost rates, and of a uniform standard will cause the language in § 75.305 to clarify the includes clarifying language to confusion among grantees, beneficiaries, relation between it, the Treasury-State § 75.414(f), which would permit an and recipients of Department-funded Cash Management Improvement Act, entity that had never received an
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indirect cost rate to charge a de minimis payments imposed under 26 U.S.C. Management and Budget (OMB) has rate of ten percent, in order to ensure 4980H for failure to offer employees determined this rule is not economically that the two provisions do not (and their dependents) the opportunity significant in that it will not have an conflict.33 Additionally, the American to enroll in minimum essential annual effect on the economy of greater University, Beirut, and the World coverage. However, because of the than $100 million dollars in one year. Health Organization are exempted possibility that individuals may still be However, because the Department specifically from the indirect-cost-rate responsible for payments of the tax determined that this rule is a limitation because they are eligible for penalties assessed for failure to comply ‘‘significant regulatory action’’ under negotiated facilities and administration with the individual shared Executive Order 12866, § 3(f)(4), in as (F&A) cost reimbursement. This responsibility prior to 2019, the much as it raises novel legal or policy restriction on indirect costs, as Department repromulgates the provision issues that arise out of legal mandates, indicated by 45 CFR 75.101, would flow excluding such payments from the President’s priorities, or the down to subawards and subrecipients. allowable costs, but only with respect to principles set forth in an Executive The Department received no payments incurred as a result of the Order, the Office of Management and comments on this provision. failure to maintain minimum essential Budget has reviewed it. Under In repromulgating the provision, the coverage prior to January 1, 2019, the Executive Order 13563, this rule Department makes several minor date on which the individual tax harmonizes and streamlines rules, and technical corrections to the language, penalty was reduced to zero. promotes flexibility by removing replacing ‘‘training grants’’ with As with the 2016 promulgation of this unnecessary burdens. provision, the Department received no ‘‘Federal awards for training’’ in Summary of and Need for Final Rule paragraph (c)(1)(i); replacing ‘‘grants comments on this section. As the Department noted in the awarded’’ with ‘‘Federal awards’’ and V. Regulatory Impact Analysis deleting an ‘‘and’’ in subparagraph proposed rule, after promulgation of the The Department has examined the (c)(1)(ii); and adding ‘‘in this section’’ 2016 Rule, non-Federal entities, impacts of this final rule as required by after ‘‘paragraphs (c)(1)(i) and (ii)’’ in including States and other grant Executive Order 12866 on Regulatory paragraph (f). recipients and subrecipients raised Planning and Review, 58 FR 51735 (Oct. concerns about § 75.300(c) and (d), Section 75.477, Allowability of Costs 4, 1993); Executive Order 13563 on contending that the requiring Pursuant to Affordable Care Act Improving Regulation and Regulatory compliance with certain of the Provisions Review, 76 FR 3821 (Jan. 21, 2011); nonstatutory requirements would The Department proposed to Executive Order 13771 on Reducing violate RFRA or the U.S. Constitution, repromulgate only part of current Regulation and Controlling Costs, 82 FR exceed the Department’s statutory § 75.477, providing for the exclusion, 9339 (Jan. 30, 2017); the Regulatory authority, or reduce the effectiveness of from allowable costs, of any payments Flexibility Act (Pub. L. 96–354, 94 Stat. the Department’s programs. As a result imposed on employers for failure to 1164 (Sept. 19, 1980) and Executive of the Department’s consideration of offer employees and their dependents Order 13272 on Proper Consideration of these issues, it believes that this final the opportunity to enroll in minimum Small Entities in Agency Rulemaking, rule is needed for a number of reasons, essential coverage. It did not propose to 67 FR 53461 (Aug. 16, 2002); section including: • To restore the Congressionally repromulgate the exclusion, from 202 of the Unfunded Mandates Reform established balance with respect to allowable costs, of any penalties Act of 1995, Public Law 104–4, 109 Stat. 48 (Mar. 22, 1995); Executive Order nondiscrimination requirements. imposed on individuals for failure to Congress carefully balanced the rights, maintain minimum essential coverage 13132 on Federalism, 64 FR 43255 (Aug. 4, 1999); Executive Order 13175 on obligations, and goals involved in because Congress reduced to zero the various Federal grant programs when it penalties imposed on individuals as a Tribal Consultation, 65 FR 67249 (Nov. 6, 2000); the Congressional Review Act decided which nondiscrimination result of their failure to maintain such provisions to make applicable to such coverage, effective after December 31, (Pub. L. 104–121, sec. 251, 110 Stat. 847 (Mar. 29, 1996)); section 654 of the programs. The 2016 Rule made a 2018. The Department has since learned number of nondiscrimination that payments of the tax penalties Treasury and General Government Appropriations Act of 1999; and the requirements, including certain assessed for failure to comply with the nonstatutory nondiscrimination individual shared responsibility prior to Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq. requirements, applicable to all grantees 2019 may continue, whether as the in all Departmental grant programs, result of later filing, IRS administrative Executive Order 12866 and Related regardless of whether Congress had or appeals processes, or litigation in the Executive Orders on Regulatory Review made such requirements applicable to Tax Court, the Court of Federal Claims, Executive Order 12866 directs the grantees in particular Departmental or the District Courts. As a result, the agencies to assess all costs and benefits programs. Because Congress carefully Department repromulgates § 75.477, of available regulatory alternatives and, balanced competing interests, rights, with changes. As proposed, the if regulation is necessary, to select and obligation, the Department believes Department repromulgates, without regulatory approaches that maximize that it is appropriate to impose only change from the proposed rule, the net benefits (including potential those nondiscrimination requirements provision addressing tax penalties for economic, environmental, public health required by the Constitution and the failure to comply with the employer and safety effects; distributive impacts; federal statutes that are applicable to the shared responsibility provisions. That and equity). Executive Order 13563 is grantees. provision makes clear that employers supplemental to Executive Order 12866 • To avoid RFRA issues. The may not claim as allowable costs any and reaffirms the principles, structures, imposition of certain nonstatutory nondiscrimination requirements on 33 and definitions governing regulatory OMB has proposed to change this in its current certain faith-based organizations as rulemaking on 2 CFR part 200. Should OMB review established there. finalize the rule as proposed, the Department would As explained in the proposed rule and recipients or subrecipients in the implement as appropriate. in this final rule, the Office of Department’s programs would likely
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constitute a substantial burden on their • Require recipients to comply with would require the expenditure of exercise of religion that is not the least applicable federal statutory departmental resources to address, as restrictive means of furthering a nondiscrimination provisions.34 well as the expenditure of resources by compelling government interest and, • Provide that HHS complies with such faith-based organizations that likely, constitute a violation of RFRA. applicable Supreme Court decisions in participate in, or seek to participate in, With respect to the Title IV–E foster care administering its award programs. Department-funded programs or and adoption program, the Department • Not repromulgate the exclusion activities consistent with their religious has determined in two contexts that this from allowable costs of the tax penalty, beliefs. Finally, the current was the case, and a federal district court now reduced to zero, imposed on requirements, if enforced, could have similarly issued a preliminary individuals for failure to maintain led to the exclusion of certain faith- injunction against the Department’s minimum essential coverage, except for based organizations from participating enforcement of such provisions in the tax penalties associated with failure to in the Department’s programs as case of a faith-based organization that maintain minimum essential coverage recipients or subrecipients and would participates in Michigan’s foster care prior to January 1, 2019, when the tax likely have a negative impact on the and adoption program. The Department penalty was reduced to zero. effectiveness of such programs. • • believes that this final rule constitutes Repromulgate without change a Alternative 2: Not make any the best way to avoid such burdens on provision which established that changes to the regulatory provisions at religious exercise. recipients could not include, in issue, but promulgate a regulatory • To appropriately focus on allowable costs under HHS grants, any exemption for faith-based organizations compliance with applicable Supreme tax penalty imposed on an employer for whose religious exercise would be Court decisions. The 2016 Rule made failure to comply with the employer substantially burdened by the two specific Supreme Court decisions mandate under the ACA. application of § 75.300(c) and (d) in • Repromulgate without change a applicable to all recipients of the their current form. This would address provision which addressed the Department’s grants, although those the RFRA issues presented by applicability of certain payment decisions only apply to state actors. The application of certain provisions in the provisions to states. section to certain faith-based Department is committed to complying • Repromulgate without change a organizations that participate in or seek not just with those decisions, but all provision which authorized the grant applicable Supreme Court decisions, to participate in Department-funded agency both to require recipients to programs or activities. However, this which is what this final rule provides. permit public access to various • To limit uncertainty that would approach would not adhere to the materials produced under a grant and to balance struck by Congress on decrease the effectiveness of the place restrictions on recipients’ ability Department’s programs. Section nondiscrimination provisions to make public any personally applicable to Department grant 75.300(c) and (d) have raised questions identifiable information or other about whether the Department exceeded programs and, thus, would raise information that would be exempt from competing concerns that might require its authority, disrupted the balance of disclosure under FOIA. nondiscrimination requirements careful balancing. • Repromulgate, with certain • Alternative 3: Revise § 75.300(c) adopted by Congress, generated requests technical changes, a provision which and (d) to enumerate all applicable for deviations or exceptions and established limits on the amount of nondiscrimination provisions and the lawsuits challenging the provisions, and indirect costs allowable under certain programs and recipients/subrecipients sowed uncertainty for grant applicants, types of grants. to which the nondiscrimination recipients, and subrecipients that could Alternatives Considered provisions would apply. This deter participation in Department- alternative would require the funded programs and, over time, The Department carefully considered Department to update the provision undermine the effectiveness of those several alternatives, but rejected the every time Congress created a new programs. The Department is under no potential alternatives for a number of program for the Department to legal obligation to impose such reasons: • implement, adopted new requirements and, accordingly, believes Alternative 1: Not make any nondiscrimination provisions, or that it is appropriate to remove them in changes to the previously issued revised existing nondiscrimination order to avoid such impacts to the regulatory provisions at issue. The provisions. Moreover, since § 75.300(a) Department’s programs. Department concluded that this • already requires the grantmaking agency To remove an exclusion from alternative would likely lead to to communicate to awardees all relevant allowable indirect costs to the extent additional legal challenges. Moreover, public policy requirements, including that is no longer necessary. The 2016 because of the RFRA issues presented specifically all nondiscrimination Rule excludes from allowable indirect by application of certain provisions in requirements (and incorporate them costs any tax penalty imposed on the section to certain faith-based either directly or by reference in the individuals for failure to maintain organizations that participate in or seek terms and conditions of the Federal minimum essential coverage under the to participate in Department-funded award), this alternative would provide ACA. That tax penalty has since been programs or activities, the Department no new benefits to the recipients of reduced to zero, but individuals may would continue to be faced with either grants from the Department’s still be paying such tax penalties. litigation over the Department’s grantmaking agencies. Accordingly, the final rule limits the compliance with RFRA, or additional exclusion to tax penalties assessed for requests for exceptions or deviations Expected Benefits and Costs of the Final failure to maintain such coverage prior from the provisions, both of which Rule to January 1, 2019, when the penalty The Department expects several was reduced to zero. 34 The final rule would remove the provision benefits from this final rule. The final Thus, as discussed in more detail which exempted the Temporary Assistance for Needy Families program from this provision rule will better align the regulation to elsewhere in the preamble, this final because the changes to the provision render the the statutory requirements adopted by rule would exemption unnecessary. Congress. This provides covered entities
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more clarity and stability concerning the the proposed rule to small business or with such requirements. In addition, in requirements applicable to them. The the foster care system. Another January 2019, the Department issued an final rule better ensures compliance complained that the Department had not exception to the State of South Carolina with RFRA, and allows the Department explained why the proposed rule was a with respect to one of the nonstatutory to avoid some situations where a significant regulatory action under nondiscrimination requirements, substantial burden on religious exercise Executive Order 12866, but not recognizing that requiring the State’s may be applied by requirements that economically significant. compliance with respect to certain faith- flow from the Department but not from Response: The Department based organizations would violate a statute. The final rule will reduce respectfully disagrees with commenters. RFRA. In September 2019, a federal litigation and associated costs, both to First, the Department does not believe district court preliminarily enjoined the the government and to covered entities, the final rule imposes the costs and Department from enforcing § 75.300(c) resulting from challenges to harms that some commenters allege. with respect to the plaintiffs as a nonstatutory public policy While commenters opposing the violation of RFRA. And on November 1, requirements. The final rule relieves revisions argued that the final rule 2019, the Department announced that it administrative burdens on covered would permit grantees and would not be enforcing the provisions of entities by removing certain subrecipients to discriminate against the 2016 rule, including the requirements that go beyond those LGBT individuals, women, and other nonstatutory nondiscrimination mandated by statute. As a result, the vulnerable populations and negatively requirements, pending repromulgation final rule enables the participation of affect the health or well-being of such of the provisions. In light of this faith-based organizations that individuals who would be discouraged sequence of events, the Department participate in or seek to participate in from seeking services from secular believes that its recipients fall into one Department-funded programs or service providers, the Department does of several categories: activities. In turn, the Department not believe that such discrimination is • Recipients that adopted the expects the final rule will avoid the widespread in its programs (or would be nondiscrimination practices prior to the negative impact that the current widespread in its programs in the 2016 rule, voluntarily or as a result of regulations, if fully implemented, may absence of the nonstatutory state or local law. These recipients’ have on the effectiveness of the nondiscrimination requirements), nor observance of nonstatutory Department’s programs. For example, that the final rule would lead to a nondiscrimination requirements is, the Department expects the final rule reduction in services provided overall— thus, not the result of the 2016 rule. will avoid reducing participation rates or, as explained below, that this final Because this final rule merely removes in the Department’s programs by entities rule would necessarily cause a change the regulatory requirement to comply that object to the current regulations. in the composition of participants in with the nonstatutory The Department believes some of those Department-funded programs. For nondiscrimination provisions, entities have been effective in providing example, as discussed above in cases recipients remain free to observe such a significant number and percentage of concerning Title IV–E foster care and nondiscrimination practices, consistent services in such programs, so the adoption programs, the Department is with their other legal and/or Department expects this rule will avoid aware that various entities will provide constitutional obligations. And the a reduction in the effectiveness of the services only to persons of their Department anticipates that recipients Department’s programs and in the religion, or to persons having a certain in this category are likely to continue to number of beneficiaries served overall. marital status, but the Department is observe such practices. As the Department noted in the also aware that other entities in such • Recipients that had not adopted the regulatory impact analysis in the programs have been available to provide nondiscrimination practices prior to the proposed rule and in this final rule, services to parents with whom a specific 2016 rule and still have not adopted with respect to the Regulatory provider will not work. On the other such practices, despite the 2016 rule’s Flexibility Act (and as the Department hand, the entities of which the nonstatutory nondiscrimination reiterates below in response to Department is aware that will only work requirements, in some instances because comments), the Department does not with limited categories of parents often of the concerns outlined in the proposed believe that there will be any direct place many children, and if they were rule and this final rule with respect to costs or economic impact associated forced to leave the program because of such requirements. The Department with final rule, apart from potential the current regulations, the overall knows that there are grantees that are in administrative costs to grantees to number of children placed would likely this category. Since this final rule become familiar with the requirements drop. removes the requirement to comply of the final rule. With respect to the requirements with such nonstatutory The Department received comments imposed by current § 75.300(c) and (d) nondiscrimination provisions, the on the Department’s compliance with to comply with certain nonstatutory Department expects that these grantees Executive Order 12866. nondiscrimination requirements, the will continue to do what they have been Comments: Several commenters Department notes that these doing—and, thus, will not change any contended that the Department had requirements of the 2016 rule became behavior as a result of the final rule. failed to conduct an adequate cost- effective in January 2017, coinciding • Recipients that had not adopted the benefit analysis for the proposed rule. with the change in Administration. As nondiscrimination practices prior to the Several commenters asserted that the a result of changes in compliance and 2016 rule, but have complied with the Department had failed to consider the enforcement priorities, the Department nonstatutory nondiscrimination health and financial costs from the and its grantmaking agencies did not provisions since then. The Department proposed rule; others alleged that the make, and have not made, any acknowledges that there could be some Department had failed to consider the concerted effort to obtain recipient grantees that are in this category, impacts and harms that would flow compliance with the nonstatutory although it is not specifically aware of from the proposed rule. One commenter nondiscrimination provisions since the any. To the extent that any grantees fall alleged the proposed rule lacked a 2016 rule became effective, and have into such category, it seems likely that holistic analysis of risks and benefits of not taken steps to enforce compliance many would continue to follow such
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nondiscrimination practices, voluntarily particular harms—for example, Department estimates that it has a total or because of new or newly enforced discrimination against particular groups of 12,202 grantees.35 Depending on the state or local laws. The Department of beneficiaries—would flow from the grantee, the task of familiarization could reaches that conclusion because, to the removal of the provisions, the potentially fall to the equivalent of (1) extent that grantees knew about the Department did not identify such a lawyer (hourly rate: Median $59.11, nonstatutory nondiscrimination problems prompting its promulgation of mean $69.86); (2) a general/operations requirements imposed by the 2016 rule § 75.300(c) and (d) in 2016, and the manager (hourly rate: Median $48.45, at the time it was promulgated and had commenters did not provide evidence to mean $59.15); (3) a medical and health any concerns about them, such grantees suggest that such problems would occur services manager (hourly rate: Median or prospective grantees would most after promulgation of this final rule. $48.55, mean $55.37); (4) a compliance likely have taken a ‘‘wait and see’’ Finally, the Department believes that officer (hourly rate: Median $33.02, approach to the Department’s this final rule will impose only de mean $35.03); or (5) a social and interpretation and enforcement of such minimis costs, if any, on covered community service manager (hourly provisions. They would thus have fallen entities. This final rule relieves rate: Median $32.28, mean $35.05).36 within the category described in the regulatory burdens by removing Averaging these rates leads to a median previous bullet. The same would likely requirements on recipients and hourly rate of $44.28 and mean hourly be the case with respect to such grantees subrecipients in § 75.300(c) that are not rate of $50.89. The Department assumes that learned of the 2016 rule only after imposed by statute, and eliminate the that the total dollar value of labor, the fact—for example, as a result of burden imposed on faith-based which includes wages, benefits, and coverage of the State of South Carolina’s organizations that participate in the overhead, is equal to 200% of the wage February 2018 request for a deviation Department’s programs to seek an rate, or $88.56 (median) and $101.78 from certain requirements in § 75.300(c) exception from certain nonstatutory (mean). The changes made by the final and (d). Absent specific concerns about nondiscrimination imposed by the 2016 rule are straight forward and easy to complying with those nonstatutory rule through litigation or the exception understand—and the Department requirements, the Department sees little process in § 75.102(b), as well as the anticipates that professional reason that grantees would change expenses that the Department would organizations, trade associations and course yet again. incur in addressing such litigation or other interested groups may prepare exceptions requests. Therefore, as a summaries of the rule. Accordingly, the Thus, apart from the familiarization qualitative matter, the final rule could Department estimates that it would take costs, the Department concludes that be seen as relieving burdens and costs a grantee approximately an hour to there will be no economic impact rather than imposing them. Because the become familiar with the final rule’s associated with § 75.300(c) and (d). final rule does not impose any new requirements. The Department, thus, For significant regulatory actions, regulatory requirements, recipients and concludes that the cost for grantee Executive Order 12866 requires ‘‘an subrecipients should not incur any new familiarization with the final rule would assessment, including the underlying or additional compliance costs. Nor total $1,080,609.12 (median) or analysis,’’ of benefits and costs does the Department believe covered $1,241,919.56 (mean). ‘‘anticipated from the regulatory entities would necessarily incur any The Department does not believe that action.’’ Executive Order 12866, more than de minimis costs to review covered entities will incur training costs §§ 6(a)(3)(C), 3(f)(1). The Department this rule. Recipients are already under § 75.300(c) and (d) of this rule. provides such an assessment here and required by § 75.300(a) and (b) and other Section 75.300(c) only applies provided one in the proposed rule. regulatory provisions to comply with requirements to the extent imposed by Furthermore, the APA requires agencies statutory nondiscrimination statute, and recipients and subrecipients to base their decisions ‘‘on requirements and ensure their are already required to comply with consideration of the relevant factors,’’ subrecipients and their programs are in such statutory requirements under State Farm, 463 U.S. 29, 42 (1983), but compliance. Pursuant to § 75.300(a), the § 75.300(a) and (b) and other statutes it does not require them to ‘‘conduct a Department’s grantmaking agencies are and regulations. Section 75.300(d) does formal cost-benefit analysis in which required to inform applicants for grants not impose requirements that recipients each advantage and disadvantage is and recipients in notices of funding or subrecipients need to review, but assigned a monetary value,’’ Michigan v. opportunities and award notices of makes a general statement about the EPA, 135 S. Ct. 2699, 2711 (2015), or applicable statutory and regulatory Department’s compliance with assess the relevant factors in requirements, including, specifically, applicable Supreme Court cases in its quantitative terms, Ranchers Cattlemen the nondiscrimination requirements award programs, without requiring Action Legal Fund v. USDA, 415 F.3d applicable to the grant program. familiarity with any particular case on 1078, 1096–97 (9th Cir. 2005). The Therefore, as a practical matter, grantees the part of recipients or subrecipients. Department noted in the proposed rule and recipients may rely on these In both respects, § 75.300(c) and (d) of that it would harmonize and streamline communications to inform them of the this final rule impose requirements that rules and promote flexibility by legal and regulatory requirements may be simpler and easier to understand removing unnecessary burdens. It applicable to the programs in which than the current regulation.37 similarly noted that most of the they participate. provisions of the proposed rule have However, as a standard practice, the 35 Based on unique DUNS numbers, the been operational since 2016, and that Department considers regulatory Department had 11,749 recipients in 2017, 12,333 where the Department proposed to familiarization costs in its regulatory recipients in 2018, and 12,523 recipients in 2019, for an average of 12,202. amend the 2016 provisions, grantees impact analyses. Although the 36 U.S. Bureau of Labor Statistics, May 2019 were already subject to the requirements Department issues many grants on an National Occupational Employment and Wage that were proposed, so grantees would annual basis, many recipients receive Estimates United States, available at https:// not need to make any changes to their multiple grants. Thus, based on www.bls.gov/oes/current/oes_nat.htm. current practice in response to the information in the Department’s 37 The Department notes that Executive Order 12866 ‘‘is intended only to improve the internal rulemaking. Although the Department Tracking Accountability in Government management of the Federal Government and does received comments asserting that Grant Spending (TAGGS) system, the not create any right or benefit, substantive or
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Executive Order 13771 organizations that are not dominant in involved in the delivery of health and The White House issued Executive their fields; and small governmental human services. It is important to note, Order 13771 on Reducing Regulation jurisdictions with populations of less however, that the RFA does not require and Controlling Regulatory Costs on than 50,000. 5 U.S.C. 601(3)–(6). States that an entity assess the impact of a rule January 30, 2017. Section 2(a) of and individuals are not small entities. on all small entities that may be affected Executive Order 13771 requires an The Department considers a rule to have by the rule, but only those directly agency, unless prohibited by law, to a significant impact on a substantial regulated by the rule. See National identify at least two existing regulations number of small entities if it has at least Women, Infants, and Children Grocers to be repealed when the agency publicly a three percent impact on revenue on at Ass’n et al. v. Food and Nutrition proposes for notice and comment or least five percent of small entities. Service, 416 F. Supp. 2d 92, 108–110 otherwise promulgates a new regulation. Executive Order 13272 on Proper (D.D.C. 2006). In furtherance of this requirement, § 2(c) Consideration of Small Entities in With respect to the changes that the of Executive Order 13771 requires that Agency Rulemaking reinforces the final rule makes to § 75.300(c) and (d): the new incremental costs associated requirements of the RFA and requires The adoption of amendments to with new regulations shall, to the extent the Department to notify the Chief § 75.300(c) and (d) do not impose any permitted by law, be offset by the Counsel for Advocacy of the Small new regulatory requirements on elimination of existing costs associated Business Administration if the final rule recipients. Recipients are currently with at least two prior regulations. may have a significant economic impact required to comply with applicable Guidance from OMB indicates this on a substantial number of small entities federal statutory nondiscrimination offset requirement applies to Executive under the RFA. Executive Order 13272, provisions by operation of such laws Order 13771 regulatory actions. This 67 FR 53461 (Aug. 16, 2002). and pursuant to 45 CFR 75.300(a); the rulemaking, while significant under As discussed, this final rule would Department is currently required to • Executive Order 12866, will impose at Require recipients to comply with comply with applicable Supreme Court most de minimis costs and, therefore, is applicable federal statutory decisions. As discussed above, apart not either a regulatory action or nondiscrimination provisions. from the potential familiarization costs, • deregulatory action under Executive Provide that HHS complies with the Department does not believe that Order 13771. applicable Supreme Court decisions in there will be any economic impact administering its award programs. associated with these amendments. Regulatory Flexibility Act and Executive • Not repromulgate the exclusion Order 13272 With respect to the repeal of the from allowable costs of the tax penalty, allowable cost exclusion for the tax The Department has examined the now reduced to zero, imposed on penalty for failure to comply with the economic implications of this final rule individuals for failure to maintain individual shared responsibility as required by the Regulatory Flexibility minimum essential coverage, except for provision: When the Department Act (RFA), 5 U.S.C. 601–612. The RFA tax penalties associated with failure to imposed this allowable cost exclusion, requires agencies to analyze regulatory maintain minimum essential coverage individuals were subject to a tax penalty options that would minimize any prior to January 1, 2019, when the tax or assessment for failure to maintain significant impact of a rule on small penalty was reduced to zero. health insurance that constituted • Otherwise re-promulgate the entities. The RFA generally requires that minimum essential coverage. Congress provisions of the 2016 rule. when an agency issues a proposed rule, has since reduced to zero such tax The Department’s grantees include or a final rule that the agency issues penalties or assessments, effective after state and local governments; state and under 5 U.S.C. 553 after being required December 31, 2018. While the local health and human services to publish a general notice of proposed individual tax penalty for failure to rulemaking, the agency must prepare a agencies; public and private colleges comply with the individual shared regulatory flexibility analysis that meets and universities; nonprofit responsibility provision has been the requirements of the RFA and organizations in the health and social reduced to zero, the Department has publish such analysis in the Federal services areas, including both secular been informed that individuals may still Register—unless the agency expects that and faith-based organizations; and be paying assessed tax penalties for the rule will not have a significant certain health care providers. Because failure to maintain minimum essential impact on a substantial number of small this final rule would apply to all coverage prior to January 1, 2019. The entities, provides a factual basis for this grantees, affected small entities include Department had proposed to eliminate determination, and certifies the all small entities that apply for the the provision because it seemed statement. 5 U.S.C. 603, 604, 605(b). If Department’s grants; these small entities unnecessary to maintain a provision an agency must provide a regulatory operate in a wide range of areas flexibility analysis, this analysis must with respect payments of penalties that had been reduced to zero. Since some address the consideration of regulatory virtue of having less than between $8.0 million and options that would lessen the economic $41.5 million in average annual revenues, individuals may still be paying such depending on the particular type of business. See assessments, the Department is effect of the rule on small entities. For U.S. Small Business Administration, Table of Small purposes of the RFA, ‘‘small entities’’ repromulgating the provision, but Business Size Standards Matched to North limited to tax penalties for failure to include proprietary firms meeting the American Industry Classification System Codes, size standards of the Small Business effective August 19, 2019 (sector 62), available at maintain coverage prior to January 1, Administration (SBA); 38 nonprofit https://www.sba.gov/sites/default/files/2019-08/ 2019, when the penalty was reduced to SBA%20Table%20of%20Size%20Standards_ zero. Because this does not represent a Effective%20Aug%2019%2C%202019_Rev.pdf. In procedural, enforceable at law or equity by a party as much as colleges, universities and professional change of the requirement imposed against the United States, its agencies or schools (e.g., medical schools) and other under the 2016 rule with respect to instrumentalities, its officers or employees, or any educational institutions may receive Department periods for which a non-zero tax penalty other person.’’ Executive Order 12866, § 10, 58 FR funding, the other sector from which the could be assessed, there should be no 51735 (Oct. 4, 1993). Department may draw grantees is the educational 38 In the health care and social assistance sector, services sector, where the relevant small business economic impact associated with re- from which the Department draws most of its sizes range from $12.0 million to $30.0 million in imposing an allowable costs exclusion grantees, SBA considers businesses to be small by annual revenues. Id. (sector 61). for such payments.
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With respect to the provisions being Response: The Department imposes substantial direct requirement repromulgated without change: These respectfully disagrees with commenters. costs on State and local governments, provisions of the final rule have been With respect to the RFA, the preempts State law, or otherwise has operational since the publication of the Department did fully consider whether Federalism implications. Executive 2016 rule. As a result, as noted in the the proposed rule’s changes would have Order 13132, 64 FR 43255 (Aug. 4, proposed rule, recipients, including a significant impact on a substantial 1999). The Department does not believe small entities, will not need to make any number of small entities. It reviewed the that this final rule would (1) impose changes to their current practice in evidence and concluded that it would substantial direct requirements costs on response to this final rule. Accordingly, not—and provided a statement in the State or local governments; (2) preempt there should be no economic impact proposed rule with the factual bases for State law; or (3) otherwise have associated with the repromulgation of its conclusion. Very few commenters Federalism implications. these provisions. addressed the effect of the proposed rule Executive Order 12866 directs that In light of the foregoing, the on small entities, with most arguing that significant regulatory actions avoid Department anticipates that this final the Department should have considered undue interference with State, local, or rule will have no impact beyond the impact on individuals and entities tribal governments, in the exercise of providing information to the public. The other than the Department’s recipients. their governmental functions. Executive Department anticipates that this However, the RFA requires the Order 12866 at 6(a)(3)(B). Executive information will allow affected entities Department to consider the impact only Order 13175 further directs that to better deploy resources in line with on small entities directly regulated by Agencies respect Indian tribal self- established requirements for its the rule; it does not require government and sovereignty, honor recipients, while reducing consideration of the rule on all small tribal treaty and other rights, and strive administrative burdens related to entities potentially indirectly affected to meet the responsibilities that arise litigation and waiver requests. Thus, by it. See National Women, Infants, and from the unique legal relationship grantees will be able to better prioritize Children Grocers Ass’n, 416 F. Supp. 2d between the Federal Government and resources towards providing services at 108–110 (rule only applied to state Indian tribal governments. Executive consistent with their mission and grant. agencies, not to small businesses, such Order 13175 at 2(a). The Department As a result, the Department has as WIC-only vendors, so federal agency does not believe that the final rule determined, and the Secretary certifies, properly certified that rule would not would implicate the requirements of that this final rule will not have a have a significant impact on a Executive Orders 12866 and 13175 with significant impact on the operations of substantial number of small entities). respect to tribal sovereignty. a substantial number of small entities. Nor does the RFA require consideration The final rule maintains the full force The Department asked for comments of the impact on individuals since of statutory civil rights laws protections on the impact of the proposed rule on individuals do not constitute small against discrimination, but does not small entities under the Regulatory entities as such term is defined in the attempt to impose a ceiling on how Flexibility Act, as well as the RFA. those protections may be observed by States. Consistent with their other comparative effects and impacts of the Unfunded Mandates Reform Act situation if the Department were to fully constitutional and legal obligations, enforce the provisions of the 2016 rule Section 202 of the Unfunded State and local jurisdictions will as compared to the situation if the Mandates Reform Act of 1995 continue to have the flexibility to Department were to fully exercise its (Unfunded Mandates Act), 2 U.S.C. impose additional civil rights enforcement discretion with respect to 1532, requires that covered agencies protections. Therefore, the Department the 2016 rule. The Department received prepare a budgetary impact statement has determined that this final rule does a number of comments on the RFA before promulgating a rule that includes not have sufficient Federalism analysis.39 any Federal mandate that may result in implications to warrant the preparation Comments: Several commenters the expenditure by State, local, and of a Federalism summary impact opposing the proposed rule contended tribal governments, in the aggregate, or statement under Executive Order 13132, that the Department had failed to by the private sector, of $100 million in and that the rule would not implicate conduct the required cost-benefit 1995 dollars, updated annually for the requirements of Executive Orders analysis necessary to sustain the inflation. Currently, that threshold is 12866 and 13175 with respect to tribes. proposed rule. Some commenters approximately $154 million. If a The Department received several contended that the Department did not budgetary impact statement is required, comments on its Executive Order 13132 properly conduct a cost benefit and risk section 205 also requires covered analysis. analysis of potential affected entities. agencies to identify and consider a Comments: One commenter argued Several commenters asserted that such a reasonable number of regulatory that the Department had not complied cost-benefit analysis would have to alternatives before promulgating a rule. with Executive Order 13132. Other consider the health and financial costs The Department has determined that commenters claimed that the proposed from the proposed rule. One commenter this final rule will not result in rule creates conflicts between federal, alleged the proposed rule lacked a expenditures by State, local, and tribal state, and local law. Response: The Department holistic analysis of risks and benefits of governments, or by the private sector, of respectfully disagrees. The proposed the proposed rule to small business or $154 million or more in any one year. rule, and this final rule, do not impose the foster care system. Accordingly, the Department has not prepared a budgetary impact statement any substantial direct requirements on 39 Many commenters disagreed with the or specifically addressed the regulatory State and local governments that do not Department’s decision to exercise enforcement alternatives considered. already exist, nor does it preempt or discretion with respect to the provisions of the 2016 conflict with State or local laws. A rule, pending repromulgation, as a result of its Executive Order 13132, Federalism conflict arises when an entity cannot concerns about the rule’s compliance with the Regulatory Flexibility Act. As such comments are Executive Order 13132 establishes comply with two different laws. The beyond the scope of the proposed rule, the certain requirements that an agency Department’s action here merely Department does not respond to them. must meet when it issues a rule that removes certain regulatory requirements
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for which it lacked legal authority. determination is affirmative, then the programs for which they are otherwise Consistent with their other Department or agency must prepare an eligible. Commenters offered little constitutional and legal obligations, impact assessment to address criteria evidence that this was the case before State and local jurisdictions will specified in the law.42 In the proposed the current § 75.300(c) and (d) became continue to have the flexibility to rule, the Department determined that effective, and the Department has no impose additional civil rights the proposed rule would not have an evidence supporting the belief that this protections. And, consistent with their impact on family well-being, as defined will occur as a result of the final rule. other legal obligations, regulated entities in section 654. Many commenters focused on child are free to comply with such additional The Department received many welfare programs and the foster care and civil rights protections. comments on its initial family well- adoption systems. Based on the being impact analysis, or on the likely Congressional Review Act information before the Department, as impact of the proposed rule on the well- well as the Department’s experience and The Congressional Review Act (CRA) being of children in need of foster care expertise, the Department believes that defines a ‘‘major rule’’ as ‘‘any rule that or other services. After considering the the final rule will enable faith-based the Administrator of the Office of comments, the Department concludes child placement agencies—which are Information and Regulatory Affairs that the final rule will not have an critical providers and partners in caring (OIRA) of the Office of Management and impact on family well-being as defined for vulnerable children and have a long Budget finds has resulted in or is likely in section 654. and successful history of placing to result in—(A) an annual effect on the Comment: Several commenters argued children (including older children, economy of $100,000,000 or more; (B) a that, since the proposed rule rolls back children with health conditions and major increase in costs or prices for nondiscrimination protections, it will sibling groups, all of whom are more consumers, individual industries, have significant impacts on family well- Federal, State, or local government being across a range of the Department’s difficult to place) with loving families— agencies, or geographic regions; or (C) programs because it will affect access to to continue their service. Based on its significant adverse effects on programs for which they would experience and expertise, the competition, employment, investment, otherwise be eligible. They suggested Department believes that the result will productivity, innovation, or on the individual impact assessments were be more, rather than fewer, child ability of United States-based necessary for, among others, Head Start placement agencies and more, rather enterprises to compete with foreign- Programs, Refugee Resettlement, and than fewer, options for children in need based enterprises in domestic and caregiver support programs. of loving homes. Furthermore, it is the export markets.’’ 5 U.S.C. 804(2). Based Commenters also believed the family Department’s understanding that the on the analysis of this final rule under well-being analysis required an participation of faith-based child Executive Order 12866, OMB has assessment of the impact for placement organizations will not affect determined that this final rule is not populations under the rule, including the availability of secular child likely to result in an annual effect of LGBT beneficiaries. At least some of the placement organizations that are able to $100,000,000 or more, and is not comments seem based on the premise work with prospective foster and otherwise a major rule for purposes of that, under the proposed rule, religious adoptive parents and families with the Congressional Review Act. or faith-based organizations would whom some faith-based organizations discriminate and, for example, reject cannot work. States work with both Assessment of Regulation and Policies faith-based child placement on Families prospective foster and adoptive families, to the detriment of children, including organizations and secular child- Section 654 of the Treasury and LGBTQ children, in need of foster or placement organizations. General Government Appropriations adoptive placements in loving families. 40 Paperwork Reduction Act Act of 1999 requires Federal Other commenters supported the departments and agencies to determine proposed rule, arguing that society In accordance with the Paperwork whether a proposed policy or regulation needed as many agencies working on Reduction Act of 1995 (44 U.S.C. 3506; 41 could affect family well-being. If the behalf of children as possible and that 5 CFR part 1320 appendix A.1), the the proposed rule would prevent Department has reviewed this final rule 40 Public Law 105–277, Div. A, § 654, 112 Stat. discrimination in the Department’s and has determined that there are no 2681–480, 2681–528 (Oct. 21, 1998), codified at 5 U.S.C. 601 note. programs by permitting religious and new collections of information 41 Before implementing regulations that may faith-based organizations to participate contained therein. affect family well-being, an agency is required to in Department-funded programs. assess the actions as to whether the action Response: The Department List of Subjects in 45 CFR Part 75 (1) strengthens or erodes the stability or safety of respectfully disagrees with commenters the family and, particularly, the marital Administrative Practice and commitment; who argued that the proposed rule (and Procedure, Federal aid programs, Grants (2) strengthens or erodes the authority and rights this final rule) would have a negative Programs, Grants Administration, Cost of parents in the education, nurture, and effect on family well-being, as defined Principles, state and local governments. supervision of their children; in section 654. The Department rejects (3) helps the family perform its functions, or commenters’ view that, under the rule, Dated: January 5, 2021. substitutes governmental activity for the function; Alex M. Azar II, (4) increases or decreases disposable income or vulnerable families or populations will poverty of families and children; experience discrimination, or be denied Secretary, Department of Health and Human (5) action‘s proposed benefits justify the financial services in Department-funded Services. impact on the family; (6) may be carried out by State or local 42 If a regulation may affect family well-being, the Therefore, under the authority of 5 government or by the family; and head of the agency is required to submit a written U.S.C. 301 & 2 CFR part 200, and for the (7) establishes an implicit or explicit policy certification to the director of OMB and to Congress reasons stated in the preamble, the concerning the relationship between the behavior that the regulation has been assessed and to provide and personal responsibility of youth, and the norms an adequate rationale for implementation of a Department of Health and Human of society. regulation that may negatively affect family well- Services amends 45 CFR part 75 as 5 U.S.C. 601 (note). being. Id. follows:
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PART 75—UNIFORM ADMINISTRATIVE the Freedom of Information Act (5 minimum essential coverage as required REQUIREMENTS, COST PRINCIPLES, U.S.C. 552) (FOIA) or controlled by 26 U.S.C. 5000A(a) with respect to AND AUDIT REQUIREMENTS FOR HHS unclassified information pursuant to any period prior to January 1, 2019, are AWARDS Executive Order 13556 if the records not allowable expenses under Federal had belonged to the HHS awarding awards from an HHS awarding agency. ■ 1. The authority citation for 45 CFR agency. The FOIA does not apply to (b) Payments for failure to offer health part 75 is revised to read as follows: those records that remain under a non- coverage to employees. Any payments Authority: 5 U.S.C. 301; 2 CFR part 200. Federal entity’s control except as or assessments imposed on an employer required under § 75.322. Unless pursuant to 26 U.S.C. 4980H as a result § 75.101 [Amended] required by Federal, State, local, or of the employer’s failure to offer to its ■ 2. Amend § 75.101 by removing tribal statute, non-Federal entities are full-time employees (and their paragraph (f). not required to permit public access to dependents) the opportunity to enroll in ■ 3. Amend § 75.300 by revising their records identified in §§ 75.361 minimum essential coverage under an paragraphs (c) and (d) to read as follows: through 75.364. The non-Federal eligible employer-sponsored plan are entity’s records provided to a Federal not allowable expenses under Federal § 75.300 Statutory and national policy agency generally will be subject to FOIA awards from an HHS awarding agency. requirements. and applicable exemptions. [FR Doc. 2021–00207 Filed 1–7–21; 4:15 pm] * * * * * ■ 7. Amend § 75.414 by revising BILLING CODE 4150–24–P (c) It is a public policy requirement of paragraphs (c)(1)(i) through (iii) and the HHS that no person otherwise eligible first sentence of paragraph (f) to read as will be excluded from participation in, follows: FEDERAL COMMUNICATIONS denied the benefits of, or subjected to COMMISSION discrimination in the administration of § 75.414 Indirect (F&A) costs. HHS programs and services, to the * * * * * 47 CFR Part 15 extent doing so is prohibited by federal (c) * * * statute. (1) * * * [ET Docket No. 20–36; FCC 20–156; FRS (d) HHS will follow all applicable (i) Indirect costs on Federal awards 17258] for training are limited to a fixed rate of Supreme Court decisions in Unlicensed White Space Device eight percent of MTDC exclusive of administering its award programs. Operations in the Television Bands ■ 5. Amend § 75.305 by revising tuition and related fees, direct paragraph (a) to read as follows: expenditures for equipment, and AGENCY: Federal Communications subawards in excess of $25,000; Commission. § 75.305 Payment. (ii) Indirect costs on Federal awards to ACTION: Final rule. (a)(1) For States, payments are foreign organizations and foreign public governed by Treasury-State CMIA entities performed fully outside of the SUMMARY: In this document, the agreements and default procedures territorial limits of the U.S. may be paid Commission revises its rules to expand codified at 31 CFR part 205 and TFM to support the costs of compliance with the ability of unlicensed white space 4A–2000 Overall Disbursing Rules for federal requirements at a fixed rate of devices to deliver wireless broadband All Federal Agencies. eight percent of MTDC exclusive of services in rural areas and areas where (2) To the extent that Treasury-State tuition and related fees, direct fewer broadcast television stations are CMIA agreements and default expenditures for equipment, and on the air. The Commission also procedures do not address expenditure subawards in excess of $25,000; and modifies its rules to facilitate the of program income, rebates, refunds, (iii) Negotiated indirect costs may be development of new and innovative contract settlements, audit recoveries paid to the American University, Beirut, narrowband Internet of Things (IoT) and interest earned on such funds, such and the World Health Organization. devices in TV white spaces. Unlicensed funds must be expended before * * * * * white space devices operate in the VHF requesting additional cash payments. (f) In addition to the procedures and UHF broadcast TV bands, a spectral * * * * * outlined in the appendices in paragraph region that has excellent propagation (e) of this section, any non-Federal characteristics that are particularly ■ 6. Revise § 75.365 to read as follows: entity that has never received a attractive for delivering wireless § 75.365 Restrictions on public access to negotiated indirect cost rate, except for communications services over long records. those non-Federal entities described in distances, varying terrain, and into and Consistent with § 75.322, HHS paragraphs (c)(1)(i) and (ii) of this within buildings. The Commission awarding agencies may require section and section (D)(1)(b) of adopts a number of changes to the white recipients to permit public access to appendix VII to this part, may elect to space device rules to spur continued manuscripts, publications, and data charge a de minimis rate of 10% of growth of the white space ecosystem, produced under an award. However, no modified total direct costs (MTDC) especially for providing affordable HHS awarding agency may place which may be used indefinitely. * * * broadband service to rural and unserved restrictions on the non-Federal entity * * * * * communities that can help close the that limits public access to the records ■ 8. Revise § 75.477 to read as follows: digital divide, while at the same time of the non-Federal entity pertinent to a protecting broadcast television stations Federal award identified in §§ 75.361 § 75.477 Shared responsibility payments. in the band from harmful interference. through 75.364, except for protected (a) Payments for failure to maintain DATES: Effective February 11, 2021, personally identifiable information (PII) minimum essential health coverage. except for amendatory instruction 4.f. or when the HHS awarding agency can Any payments or assessments imposed for § 15.709(g)(1)(ii), which is delayed. demonstrate that such records will be on an individual or individuals The Commission will publish a kept confidential and would have been pursuant to 26 U.S.C. 5000A(b) as a document in the Federal Register exempted from disclosure pursuant to result of any failure to maintain announcing the effective date.
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ADDRESSES: Federal Communications that operate in the TV bands to enable gain exceeds 12 dBi, in order to ensure Commission, 45 L Street NE, improved broadband service in rural that the EIRP from a fixed device does Washington, DC 20554. areas and underserved areas. not exceed 16 watts EIRP. FOR FURTHER INFORMATION CONTACT: Specifically, in ‘‘less congested’’ areas 6. The Commission adopts its Hugh Van Tuyl, Office of Engineering the Commission increases the maximum proposal to permit fixed white space and Technology, 202–418–7506, permissible radiated power from 10 to devices to operate in the TV bands on [email protected]. 16 watts EIRP, and increases the channels 2–35 with a maximum 16 SUPPLEMENTARY INFORMATION: This is a maximum permissible antenna HAAT watts EIRP (42 dBm) in ‘‘less congested’’ summary of the Commission’s from 250 meters to 500 meters. Because areas. The record generally supports this document, Report and Order, FCC 20– the higher power and increased antenna action, and as the Commission noted in 156, ET Docket No. 20–36, adopted limits will expand the maximum the NPRM, this change will permit fixed October 27, 2020 and released October transmission range of white space devices used in ‘‘less congested’’ areas 28, 2020. The full text of this document devices, they will be able to provide (including rural areas) to reach users at is available for public inspection and broadband service over larger areas. greater distances, thus enabling can be downloaded at: https:// Given these revisions, the Commission improved broadband coverage at less www.fcc.gov/document/fcc-increases- is commensurately increasing the cost in these hard-to-reach areas. In unlicensed-wireless-operations-tv-white- minimum required separation distances addition, higher power will enable spaces-0 or by using the search function between white space devices operating signals to better penetrate foliage, for ET Docket No. 20–36 on the at higher power/HAAT and protected buildings, and other obstacles, thus Commission’s ECFS web page at services in the TV bands. providing improved coverage at www.fcc.gov/ecfs. locations where there is not a direct Higher Power Limits line-of-sight to the transmitter. The Synopsis 4. Current rules permit fixed white Commission also adopts its related 1. The Commission adopts targeted space devices to operate on channels 2– proposals to maintain the transmitter changes to the part 15 unlicensed device 36 with a 4 watts EIRP maximum in any conducted power limit of one watt, and rules for white space devices in the TV area, provided the device meets to require that when an antenna with a bands to provide improved broadband minimum separation distances from co- directional gain of greater than 12 dB is coverage that will benefit American channel and adjacent channel users in used, the transmitter power must be consumers in rural and underserved the band. In addition, a fixed white reduced by the amount in dB that the areas as well as to provide improved space device may operate with up to 10 antenna gain exceeds 12 dBi, thus access to narrowband IoT applications watts EIRP on channels 2–35 in ‘‘less ensuring that the maximum EIRP does that will benefit consumers and congested’’ areas, defined as those areas not exceed 16 watts (42 dBm). businesses while still protecting where at least half the television 7. The Commission limits higher broadcast television stations from channels in the band of operation are power operation to ‘‘less congested’’ harmful interference. Specifically, the not in use, provided the fixed device areas as proposed in the NPRM. This is Commission permits higher EIRP complies with larger separation consistent with the Commission’s (‘‘equivalent isotropically radiated distances from other users in the band. actions in other white spaces power’’) and higher antenna HAAT Fixed white space devices are limited to proceedings in which it initially took a (‘‘height above average terrain’’) for one-watt maximum conducted cautious approach when adopting white fixed white space devices in ‘‘less transmitter power, requiring devices space rules. This limitation will also congested’’ geographic areas. In with radiated power levels above one- minimize the likelihood of any potential addition, the Commission permits watt EIRP to use an antenna with harmful interference to authorized higher power mobile operation within directional gain, e.g., 6 dBi to produce services in the TV bands since there are ‘‘geo-fenced’’ areas in ‘‘less congested’’ 4 watts EIRP, and 10 dBi to produce 10 fewer authorized services in ‘‘less areas. The Commission also adopts rule watts EIRP. congested,’’ typically rural, areas. The changes designed to facilitate the 5. In the notice of proposed Commission therefore declines requests development of new and innovative rulemaking (85 FR 18901, April 3, by Broadband Connects America narrowband IoT services. 2020), the Commission proposed to Coalition and Public Interest Spectrum 2. The Commission declines at this permit fixed devices to operate in the Coalition to allow higher power in all time to allow higher power operation by TV bands, up to channel 35, with a areas, not just ‘‘less congested’’ ones. white space devices operating within maximum 16 watts EIRP (42 dBm) in 8. Restricting higher power operations the service contour of an adjacent ‘‘less congested’’ areas. The Commission only to ‘‘less congested’’ areas will also channel TV station or to change the proposed this change to permit fixed limit the potential impact on users of methodology it uses to protect devices to reach users at greater unlicensed wireless microphones authorized services within the TV distances in rural and other less (which share use of unused TV channels bands. The changes the Commission congested areas, and thus enable but are not entitled to any interference adopts apply only to white space improved broadband coverage at lower protection from unlicensed white space devices operating on TV channels 2–35. cost. The Commission proposed to devices). Higher power operation will The Commission excludes channel 36 maintain the one-watt transmitter be permitted only at locations where from these changes based on the need to conducted power limit for fixed devices multiple vacant channels are available protect Wireless Medical Telemetry and require instead that the higher for use by varying types of unlicensed Service and Radio Astronomy Service power be achieved by using higher gain, users. The Commission’s decision to operations on channel 37 (608–614 more highly directional antennas to limit the areas where higher power MHz). improve spectrum efficiency. The operations may occur should alleviate Commission proposed that in cases the concerns of wireless microphone Fixed White Space Devices in Rural where an antenna with a gain higher operators about the potential impact Areas in the TV Bands than 12 dBi is used, the transmitter that higher power white space devices 3. The Commission adopts rule power must be reduced below one watt would have on wireless microphone changes for fixed white space devices by the amount in dB that the antenna operations.
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9. The Commission is not increasing enable fixed white space devices to the TV bands. Relatedly, because there the maximum permissible conducted operate at locations where they are not are expected to be fewer authorized transmitter power as requested by some currently permitted due to the 250- services and protected entities operating parties. NAB opposes this request, meter HAAT limit, such as existing in ‘‘less congested’’ areas, the arguing that greater conducted power towers located at higher ground Commission expects that the separation levels will inevitably lead to inadvertent elevations. To protect Wireless Medical distances between white space devices or intentional overpowered operation Telemetry Service and radio astronomy and authorized services and protected and increased potential for interference. operations on channel 37, the entities to generally be greater. This The Commission finds that increasing Commission did not propose to permit combination of fewer potential conducted transmitter power limits operation with a higher HAAT in the interactions between white space could encourage the use of lower gain adjacent channel 36. devices and authorized services and (i.e., less directional) antennas, resulting 12. Several commenters—including protected entities and greater distance in less efficient spectrum use and also Adaptrum, Broadband Connects separation minimizes the potential for increasing the potential for causing America Coalition, Consumer harmful interference to such services. harmful interference to licensees and Technology Association, Dynamic Moreover, these white space devices are protected users. Requiring the use of Spectrum Alliance, Microsoft, Public still required to operate pursuant to the more highly directional antennas will Interest Spectrum Coalition, RADWIN, channel availability and power levels ensure that less white space device RED Technologies, RTO Wireless, and provided by a white space database energy is directed outside the main the Wireless internet Service Providers which is designed to ensure that antenna beam than would be the case if Association (WISPA)—support the harmful interference does not occur. higher radiated power were achieved proposal to increase the maximum While wireless microphone interests using lower gain, less directional HAAT for fixed devices to 500 meters as express concerns about the impact of antennas. a way of promoting expanded coverage. increased HAAT on unlicensed wireless Broadband Connects America Coalition, microphone operations, restricting Higher Antenna Height Above Average Microsoft, Public Interest Spectrum Terrain Limits higher HAAT operations to ‘‘less Coalition, and Dynamic Spectrum congested’’ areas will serve to limit any 10. HAAT limit. The rules currently Alliance also recommend allowing impact on users of unlicensed wireless permit fixed white space devices to higher HAAT in all areas, not just ‘‘less microphones since by definition these operate with a maximum 250-meter congested’’ ones. areas have multiple vacant TV channels antenna HAAT. A white space database 13. As proposed, the Commission (i.e., at least half) available for use by will not provide a list of available increases the HAAT limit for fixed other types of unlicensed operations. channels to a fixed white space device white space devices that operate in the The Commission also notes that the with an antenna HAAT that exceeds 250 TV bands on channels 2–35 from 250 to rules do not provide harmful meters, and such devices are not 500 meters in ‘‘less congested’’ areas. As interference protection between permitted to operate. The Commission with the Commission decision to unlicensed devices. However, because adopted this requirement to limit the increase the maximum power allowed fixed white space device locations are distance over which the fixed white for fixed white space devices, this registered in a database, unlicensed space devices would transmit and thus change will permit fixed devices used in wireless microphone users have the limit the distance at which harmful ‘‘less congested,’’ including rural, areas ability to check the database and avoid interference to other TV band users to reach users at greater distances, thus using channels where a higher could occur. The antenna HAAT limit enabling improved broadband coverage probability of harmful interference is also precludes white space devices from at less cost in these hard-to-reach areas. operating at certain locations, e.g., those This change will also increase the predicted. In addition to limiting the where the ground HAAT exceeds 250 number of locations where fixed white use of high HAAT to ‘‘less congested’’ meters. In the White Spaces Order on space devices can operate since it will areas, as discussed in more detail below, Reconsideration, the Commission permit white space device operators to the Commission is increasing the upheld its previous decision to maintain use sites where the HAAT of the ground required separation distances between a 250-meter antenna HAAT limit but exceeds 250 meters, which would have white space devices operating with stated that it might consider increasing been precluded under the current rules. higher HAAT and co-channel and the limit in the future if there were a Many parties support this change. adjacent channel TV contours to further more complete record addressing 14. While the Commission recognizes minimize the likelihood of harmful whether higher HAAT could be that some parties request that it not interference. permitted without causing harmful limit this higher HAAT to ‘‘less 15. Coordination procedure with interference. congested’’ areas, the Commission licensees. The Commission sought 11. In the NPRM, the Commission believes that a more cautious approach comment on whether to require a proposed to increase the maximum is appropriate at this time due to the coordination procedure between white permissible antenna HAAT for fixed significant increase in HAAT it is space device operators and broadcast white space devices operating on allowing and the potential for harmful licensees when fixed white space channels 2–35 from 250 meters to 500 interference at greater distances, as devices operate with an HAAT meters and sought comment on noted by Smith and Fisher. Therefore, exceeding 250 meters. In particular, the appropriate procedures that may be consistent with the Commission’s Commission requested comment on necessary to ensure that broadcast actions increasing the maximum power Microsoft’s suggested coordination operations and other entities in the TV limit for fixed white space devices, the procedure comprised of several steps, bands are protected from harmful Commission is restricting operation of including notifying a white space interference. The Commission noted white space devices with an HAAT of database administrator, notifying that increasing permissible antenna greater than 250 meters to ‘‘less broadcast licensees, operating on a test HAAT would improve broadband congested’’ areas where fewer basis on a 30-day trial authorization, as coverage in rural areas by enabling authorized services and protected well as a process to submit claims of signals to reach greater distances and entities are expected to be operating in harmful interference, investigate such
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claims, and upon satisfactorily address any concerns regarding device operations when operating at addressing any such claims, permit potential harmful interference high HAATs and the need for white authorization on a permanent basis. The situations. space device operators to begin Commission expressed concern about 18. Parties operating white space providing service. Because these white the complexity of Microsoft’s suggested devices on an unlicensed basis have an space devices are restricted to ‘‘less coordination procedure and whether ongoing obligation under the rules to congested’’ areas, the Commission does such a procedure is even warranted cease operation if harmful interference not expect broadcasters to be overloaded given the existing obligations of occurs to any authorized service. The with notification requests. Also, because unlicensed devices to protect authorized complex multi-step procedure, device installation must generally be radio services and other protected users. including a 30-day trial period, initially planned in advance, the four-day The Commission also sought comment suggested by Microsoft and supported requirement should not unduly delay on a simpler alternative to this by NAB is therefore unnecessary. For new broadband service to rural and procedure. Specifically, the Commission example, requiring a 30-day trial period underserved areas. sought comment on whether a party appears unnecessary since the 21. The Commission also adopts the wishing to operate a fixed white space unlicensed device operating parameters other elements of the coordination device at an HAAT greater than 250 (location, channel, power, and antenna procedure proposed in the NPRM. meters should be required to notify height) during a trial period would be Specifically, the Commission will potentially affected, protected entities of no different than those planned for require that, upon request, the installing their intended operation at least 48 normal operation of the device. In party must provide each potentially hours in advance. The notification addition, parties who believes that an affected licensee with information on would include the prospective white unlicensed device is causing harmful the time periods of operations. This will space device operator’s contact interference may report this occurrence help licensees investigate alleged information, geographic coordinates of to the Commission and unlicensed harmful interference from white space the antenna, antenna height above device operator at any time, so there devices. The Commission will also ground and average terrain, EIRP and appears to be no need to require a require that if the installing party seeks channel(s) of operation. For notification specific time period for reporting and to modify its fixed operations by (i) purposes, a potentially affected TV investigating interference complaints. increasing its power level, (ii) moving station would be defined consistent An unlicensed device that causes more than 100 meters horizontally from with Microsoft’s proposal, i.e., a station harmful interference to an authorized its location, or (iii) making an increase would receive notification if its service must cease operation regardless in the HAAT or EIRP of the white space broadcast contour was within the of whether the interference was found device that results in an increase in the separation distance corresponding to an during the first 30 days of operation or minimum required separation distances assumed HAAT 50 meters higher than sometime later. from co-channel or adjacent channel TV the actual deployment. 19. As proposed in the NPRM, the station contours, then it must conduct a 16. Adaptrum, Microsoft, and WISPA Commission requires that when a party new coordination. This requirement support the more streamlined plans to operate a fixed white space will ensure that TV broadcast licensees coordination procedure with device with an HAAT greater than 250 have the most current information on broadcasters that the Commission meters, it must contact a white space white space device operations. The proposed in the NPRM. RADWIN, RED database and identify all TV broadcast Commission selects 100 meters as the Technologies, and Dynamic Spectrum station contours that would be minimum change in location for which Alliance assert that no coordination potentially affected by operation at the a new coordination is required since the procedure is necessary since unlicensed planned HAAT and EIRP. The tables of separation distances from TV device operators already have an Commission will define a potentially station contours are rounded to the obligation to not interfere with affected TV station as one where the nearest 0.1 kilometer (100 meters). The authorized services, although RED protected service contour would be Commission see no benefits in requiring Technologies states that it supports the within the applicable separation a new coordination for changes less Commission’s proposed coordination distance if the white space device were than 100 meters. procedure if one is required. operating at an HAAT of 50 meters 22. The Commission declines to 17. The Commission adopts the above the planned HAAT at the require parties planning to operate simpler procedures proposed in the proposed power level. The Commission white space devices with an HAAT NPRM, except it will require that will also require that the installing party above 250 meters to notify public safety notifications be made four calendar days notify each of these broadcast licensees or wireless microphone licensees prior in advance of operating at an increased and provide the geographic coordinates to commencing operation, as requested HAAT, in response to concerns raised of the white space device, relevant by NPSTC, Sennheiser, and Shure. by some parties that 48 hours is not technical parameters of the proposed Their services are very different from sufficient notice. The Commission deployment, and contact information. broadcast TV. In the case of broadcast requires this coordination procedure The Commission will permit this TV, white space devices must protect a because white space devices operating process to be automated through the consumer receive-only service with very at high HAAT have the potential to white space database, with notifications weak signal levels at long distances interfere with TV reception at large sent to a TV station licensee’s address from the transmitter. By contrast, public distances. Several parties support this of record with the Commission. The safety licensees operate two-way voice simpler procedure, which will ensure white space device may commence and data systems, generally operate with that TV broadcasters are aware of new operations no earlier than four days much higher signal levels than those a white space device operations with high after the notification. consumer receives at the edge of a TV HAAT that have the potential to affect 20. The Commission believes that contour and could increase power if broadcast operations at greater increasing the notification period from necessary. Wireless microphones also distances. This procedure provides an two to four days balances broadcasters’ operate at significantly higher signal opportunity for TV broadcasters to work concerns regarding having sufficient levels than those at the edge of a TV with white space system operators to time to review proposed white space contour. In addition, the required
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separation distances from licensed requirement opining that it is at higher power and HAAT and the wireless microphones are much shorter unnecessary. As the Commission noted following services in the TV bands: (1) than those for broadcast TV and are in in the NPRM, the separation distances Broadcast television services, including fact shorter than the distances over from protected services are based on the low power; (2) receive sites of TV which HAAT is calculated (3 to 16 antenna HAAT, and the HAAT already translators, low power TV stations, kilometers). Therefore, the Commission takes into account the antenna height Class A TV stations, Multichannel believes it is unnecessary to notify above ground. Therefore, there does not Video Programming Distributors wireless microphone licensees of nearby appear to be a need for a separate (MVPDs), and Broadcast Auxiliary white space devices operating at high antenna height above ground limit, and Service (BAS) facilities; (3) private land HAAT since the HAAT is undefined at limiting the height above ground can mobile radio services and commercial the wireless microphone’s location. unnecessarily limit the maximum mobile radio services (PLMRS/CMRS), 23. Antenna height above ground. The achievable HAAT. CP Communications and (4) licensed low power auxiliary Commission previously increased the and Sennheiser assert that the service (LPAS) stations, including maximum permissible antenna height Commission has previously concluded licensed wireless microphones. The above ground from 30 meters to 100 that there is no general need to mount increases the Commission adopts will meters in ‘‘less congested’’ areas in the an antenna higher than the current limit protect these services from potentially White Spaces Order on Reconsideration to avoid shadowing by trees or other receiving harmful interference as a (84 FR 34792, July 19, 2019). It took this obstructions and that the current limit result of expanded white space device action to improve wireless broadband should therefore not be changed. The operating parameters. service to Americans in rural and other Commission acknowledges that it did 28. Broadcast television services, underserved areas, and stated that a decide in the 2015 White Spaces Order including low power. In the NPRM, the 100-meter antenna height above ground (80 FR 73044, Nov. 23, 2015) that there Commission proposed to expand the limit will benefit wireless broadband was no need for a higher antenna height existing tables of minimum separation providers and users by permitting above ground limit. However, upon distances from broadcast television antennas to be mounted on towers or further consideration the Commission protected contours (both co-channel and other structures at heights sufficient to reversed its decision and decided that adjacent channel) to include additional clear intervening obstacles such as trees there was a need to increase this limit entries for fixed white space device and hills that would attenuate the in ‘‘less congested’’ areas in the 2019 operation at up to 500 meters HAAT transmitted signal, thereby increasing White Spaces Order on Reconsideration. and 42 dBm EIRP. No party argued that the range at which the signal can be In that proceeding, the Commission the proposed separation distances from received. stated ‘‘that real world experience has co-channel and adjacent channel TV 24. In the NPRM, the Commission sufficiently demonstrated that station protected contours are sought comment on whether to increase increasing the allowable height above inadequate to prevent interference to TV the antenna height above ground limit ground would be beneficial for reception. However, several parties in addition to the HAAT limit, noting operators in less congested areas’’ and request that the Commission that antenna heights above ground and that such a change would not increase significantly change the methodology average terrain are directly related, in the potential to cause harmful used to protect services in the TV bands. that any change to a device’s antenna interference to other users. In that same Dynamic Spectrum Alliance, WISPA, height above ground changes its HAAT White Spaces Order on Reconsideration, and Public Interest Spectrum Coalition by the same amount. The Commission the Commission noted Sennheiser’s argue that the Commission should further noted that limiting the antenna concern about potential interference to determine white space channel height above ground may also limit the wireless microphones from a higher availability using a terrain-based model, maximum achievable HAAT in areas height limit, but concluded that limiting such as the Longley-Rice Irregular where the terrain is flat since in those higher antenna height to less congested Terrain Model, which they assert will areas the HAAT will be approximately areas, where there are many vacant determine channel availability more the same as, or not significantly higher channels, ensures there will be accurately than the overly conservative than, the antenna height above ground. sufficient spectrum resources in these current contour-based model. NAB and This means that the antenna height areas for multiple spectrum users. Sennheiser, however, oppose using the above ground limit (30 or 100 meters) Finally, the Commission notes that no Longley-Rice model due to concerns may preclude white space device party provided specific information or about its accuracy in protecting TV operators from taking advantage of a analysis in response to the NPRM receivers and because it may slow higher HAAT limit, or even the current showing that there is actually a need to operation of the white space database. 250-meter limit. The Commission retain an antenna height above ground 29. The Commission adopts the sought comment on whether it should limit. updated tables of separation distances increase the antenna height above 26. However, the Commission is not from TV contours proposed in the ground limit or remove it completely removing the 10-meter height above NPRM. As noted, NAB supported these and rely only on HAAT since the ground limit that applies to fixed white proposed separation distances in its separation distances from protected space devices operating within the comments to Microsoft’s petition. In services are based on HAAT. The protected contours of adjacent channel addition, the Commission adds a row at Commission also sought comment on TV stations since the NPRM did not the end of each table (co-channel and whether modified rules should apply seek comment on changing that limit adjacent channel) to include separation across the entire U.S. or only in certain and no party indicated a need to do so. distances for white space devices with areas, such as ‘‘less congested’’ areas. That height limit could be addressed at HAAT values over 500 meters and up to 25. The Commission eliminates the a future date. 550 meters, which will be used only for requirement that a fixed device’s the purpose of determining which TV antenna height above ground may not Separation Distances broadcast stations must be notified exceed 30 meters generally or 100 27. The Commission increases the when a white space device operates meters in ‘‘less congested’’ areas. minimum required separation distances with an HAAT of more than 450 meters Several parties support eliminating this between white space devices operating and up to 500 meters.
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Fixed white space devices
Antenna height above Required separation in kilometers from co-channel digital or analog TV average terrain of (full service or low power) protected contour * unlicensed devices 16 dBm 20 dBm 24 dBm 28 dBm 32 dBm 36 dBm 40 dBm 42 dBm (meters) (40 mW) (100 mW) (250 mW) (625 mW) (1,600 mW) (4 W) (10 W) (16 W)
Less than 3...... 1.3 1.7 2.1 2.7 3.3 4.0 4.5 5.0 3–10 ...... 2.4 3.1 3.8 4.8 6.1 7.3 8.5 9.4 10–30 ...... 4.2 5.1 6.0 7.1 8.9 11.1 13.9 15.3 30–50 ...... 5.4 6.5 7.7 9.2 11.5 14.3 19.1 20.9 50–75 ...... 6.6 7.9 9.4 11.1 13.9 18.0 23.8 26.2 75–100 ...... 7.7 9.2 10.9 12.8 17.2 21.1 27.2 30.1 100–150 ...... 9.4 11.1 13.2 16.5 21.4 25.3 32.3 35.5 150–200 ...... 10.9 12.7 15.8 19.5 24.7 28.5 36.4 39.5 200–250 ...... 12.1 14.3 18.2 22.0 27.3 31.2 39.5 42.5 250–300 ...... 13.9 16.4 20.0 23.9 29.4 35.4 42.1 45.9 300–350 ...... 15.3 17.9 21.7 25.7 31.4 37.6 44.5 48.4 350–400 ...... 16.6 19.3 23.2 27.3 33.3 39.7 46.9 51.0 400–450 ...... 17.6 20.4 24.4 28.7 35.1 41.9 49.4 53.8 450–500 ...... 18.3 21.4 25.5 30.1 36.7 43.7 51.4 55.9 500–550 ...... 18.9 21.8 26.3 31.0 37.9 45.3 53.3 57.5
Fixed White space devices Required separation in kilometers from adjacent channel digital or analog TV Antenna height above average (full service or low power) protected contour* terrain of unlicensed devices (meters) 20 dBm 24 dBm 28 dBm 32 dBm 36 dBm 40 dBm 42 dBm (100 mW) (250 mW) (625 mW) (1,600 mW) (4 W) (10 W) (16 W)
Less than 3...... 0.1 0.1 0.1 0.1 0.2 0.2 0.3 3–10 ...... 0.1 0.2 0.2 0.2 0.3 0.4 0.5 10–30 ...... 0.2 0.3 0.3 0.4 0.5 0.6 0.7 30–50 ...... 0.3 0.3 0.4 0.5 0.7 0.8 1.0 50–75 ...... 0.3 0.4 0.5 0.7 0.8 0.9 1.0 75–100 ...... 0.4 0.5 0.6 0.8 1.0 1.1 1.3 100–150 ...... 0.5 0.6 0.8 0.9 1.2 1.3 1.5 150–200 ...... 0.5 0.7 0.9 1.1 1.4 1.5 1.7 200–250 ...... 0.6 0.8 1.0 1.2 1.5 1.7 1.9 250–300 ...... 0.7 0.8 1.0 1.3 1.6 2.1 2.3 300–350 ...... 0.7 0.9 1.1 1.4 1.8 2.2 2.4 350–400 ...... 0.8 1.0 1.2 1.5 1.9 2.4 2.7 400–450 ...... 0.8 1.0 1.3 1.6 2.1 2.6 2.9 450–500 ...... 0.8 1.1 1.4 1.7 2.1 2.7 2.9 500–550 ...... 0.9 1.2 1.5 1.8 2.2 2.8 3.0
30. The Commission declines at this proposed to increase the minimum fixed white space devices operating at time to alter the current method of required separation distance from the greater than 10 watts EIRP and PLMRS/ protecting TV stations (i.e., minimum receive site from 10.2 kilometers to 16.6 CMRS operations, which include public separation distances outside of defined kilometers co-channel, and from 2.5 safety operations, on TV channels 14–20 protected contours) by changing to a kilometers to 3.5 kilometers adjacent (the T-Band) in 11 major markets and in terrain-based model as requested by channel, over an arc of more than ±30 some additional areas under rule some parties. The Commission did not degrees outside the main lobe of the waivers. In the 11 markets where propose to make this change in the receive antenna. The Commission PLMRS/CMRS stations are permitted to NPRM. However, it recognizes parties’ proposed no changes to the minimum operate in the TV bands, the arguments that more sophisticated required separation distances from a Commission proposed to increase the propagation models could possibly receive site (80 kilometers co-channel minimum required separation distance identify unused TV spectrum more and 20 kilometers adjacent channel) beyond the defined city center accurately than the current contour- within a ±30 degrees arc in the main coordinates from 136 kilometers to based model while still protecting TV lobe of the receive antenna. No party 139.2 kilometers co-channel, and from service from harmful interference. argued that the proposed changes are 131.5 kilometers to 132.2 kilometers 31. Receive sites of TV translators, insufficient to protect these receive sites adjacent channel. The Commission also low power TV stations, Class A TV from higher power white space device proposed to increase the minimum stations, MVPDs, and BAS facilities. In operation. As such, the Commission separation distance from PLMRS/CMRS the NPRM, the Commission proposed to adopts its proposal. base stations operating under a waiver modify the keyhole-shaped exclusion 32. Private land mobile radio services outside the 11 markets from 56 zone around receive sites where white and commercial mobile radio services kilometers to 59.2 kilometers co-channel space devices may not operate. For fixed (PLMRS/CMRS). The Commission and from 51.3 kilometers to 52.2 devices operating with an EIRP of proposed to increase the minimum kilometers adjacent channel. NPSTC greater than 10 watts, the Commission required separation distances between argues that these proposed separation
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distances need to be increased to reflect meters, to avoid needlessly making 11 markets areas where the PLMRS/ both the higher power and the higher areas off limits to white space devices. CMRS currently operates, and relocating HAAT proposed and provided a table of The Commission agrees that this ‘‘public safety eligibles’’ from this band. recommended separation distances. approach will maximize the amount of The Commission proposed rules that 33. The Commission will increase the spectrum available for white space would allow for flexible use in the proposed separation distances between devices while protecting the PLMRS/ auctioned T-Band, including wireless PLMRS/CMRS operations and fixed CMRS from white space devices use, and also proposed to permit white space devices operating with an operating at higher power and antenna broadcast operations. If the Commission HAAT of greater than 250 meters to heights. The Commission will therefore adopts rules to allow new types of properly reflect the increase in HAAT of specify protection distances for the licensed services in the T-Band, white up to 500 meters the Commission is PLMRS/CMRS for three power level space devices would operate on a non- permitting in ‘‘less congested’’ areas. No ranges (i.e., up to 4 watts EIRP, greater interference basis to them as they do party objected to NPSTC’s suggested than 4 and up to 10 watts EIRP, and with the current PLMRS/CMRS services separation distances, and the greater than 10 watts and up to 16 watts in the bands. To the extent that any Commission believes that they will EIRP), and for two ranges of HAAT (i.e., future services in the T-Band have a adequately protect PLMRS/CMRS up to 250 meters, and greater than 250 different potential for receiving operations from white space device meters and up to 500 meters). The interference than the PLMRS/CMRS, the operations at the higher power and Commission adopts the proposed Commission may need to adjust the HAAT levels the Commission is separation distances for the lower minimum separation distances that permitting. However, the Commission HAAT range, and NPSTC’s suggested white space devices must meet. also recognizes Microsoft’s suggestion separation distances for the higher 35. The following two tables show the that if the separation distances to HAAT range. minimum required separation distances protect PLMRS/CMRS are increased, 34. In the T-Band NPRM (85 FR from the 11 metropolitan areas where they should be provided on a stepped 46047, July 31, 2020), the Commission the PLMRS/CMRS can operate in the TV basis, rather than based on the sought comment on reallocating T-Band bands, and from PLMRS/CMRS assumption that all white space devices spectrum, assigning new licenses by operations authorized under waivers of operate at a maximum HAAT of 500 auction for that spectrum in each of the the rules.
Required separation in kilometers from the areas specified in § 90.303(a) of this chapter White space device transmitter power Co-channel operation Adjacent channel operation Up to 250 meters Greater than 250 Up to 250 meters Greater than 250 HAAT meters HAAT HAAT meters HAAT
Up to 4 watts EIRP ...... 134.0 158.0 131.0 155.4 Greater than 4 watts and up to 10 watts EIRP ...... 136.0 169.8 131.5 166.0 Greater than 10 watts and up to 16 watts EIRP ...... 139.2 171.1 132.2 166.2
Required separation in kilometers from operations authorized by waiver outside of the areas specified in § 90.303(a) of this chapter White space device transmitter power Co-channel operation Adjacent channel operation Up to 250 meters Greater than 250 Up to 250 meters Greater than 250 HAAT meters HAAT HAAT meters HAAT
Up to 4 watts EIRP ...... 54.0 78.0 51.0 75.4 Greater than 4 watts and up to 10 watts EIRP ...... 56.0 89.8 51.5 86.0 Greater than 10 watts and up to 16 watts EIRP ...... 59.2 91.1 52.2 86.2
36. LPAS stations, including licensed 37. The Commission increases the space devices to 10 watts in ‘‘less wireless microphones. The Commission minimum required separation distance congested’’ areas without also proposed an increase from one between fixed white space devices increasing the one-kilometer separation kilometer to 1.3 kilometers in the operating with a power level greater distance from wireless microphones. minimum required separation distance than 10 watts EIRP and licensed The Commission also notes that it did between fixed white space devices wireless microphones as proposed in not propose to increase the existing one- operating with greater than 10 watts the NPRM. This will provide the same kilometer separation distance in the EIRP and registered licensed wireless level of protection to wireless NPRM, and it believes that it would be microphones. Sennheiser and Shure microphones as the current rules based inappropriate in these circumstances to argue that the proposed separation on a conservative free space propagation take such an action based on this record. model. As a separate and independent basis for distances to protect licensed wireless 38. The Commission declines to its decision, the Commission does not microphones should be increased, and require even greater separation believe that Sennheiser’s suggested they provided a table of recommended distances from wireless microphones as increased separation distances for distances. Microsoft, however, argues suggested by Sennheiser and Shure. The higher HAAT operations are that there is no need to increase the Commission first notes that no party appropriate. HAAT is defined and separation distances in the manner challenged its 2015 decision to increase calculated along radials at a distance of Sennheiser and Shure proposes. the maximum power for fixed white three to 16 kilometers from a transmitter
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site, i.e., HAAT is not defined for way for the white space database to congested. The higher frequency UHF distances less than three kilometers. The identify these areas where the TV band (470–608 MHz) is more heavily majority of Sennheiser’s suggested Commission permits higher power and used by TV stations, white space separation distances are at distances of antenna heights to improve broadband devices, and wireless microphones than less than three kilometers, which is coverage. In addition, in areas where the the lower frequency VHF TV bands (54– shorter than the distance (3–16 spectrum is less congested, there is less 72 MHz, 76–88 MHz and 174–216 MHz) kilometers) over which HAAT is likelihood that white space devices due to factors such as the shorter radio defined. Moreover, because higher operating at higher power and antenna wavelengths and smaller required HAAT operations are expected to be heights will cause interference to antennas. Moreover, because the TV coupled with higher power operations protected services in the TV band. The bands are not contiguous, determining to reach greater distances, the rules Commission agrees with wireless ‘‘less congested’’ areas based on require use of a directional antenna microphone operators that the current considering all TV bands together may which will both direct energy towards definition should be retained because not produce a result that is the horizon (rather than downward) and spectrum is a scarce resource and it is representative of the actual spectrum minimize the energy outside the main therefore appropriate to base the congestion in the specific band where a beam. This, in effect, will minimize definition on how much spectrum is white space device will operate. Thus, white space signal strength at nearby available at a given location rather than the Commission believes it is wireless microphones. Thus, the population density. appropriate to continue determining Commission does not believe there 41. Shure states that to the extent ‘‘less congested’’ areas on a band-by- would be any benefit to wireless there are concerns about accounting for band approach, rather than by microphones by increasing the the number of vacant channels with considering all TV bands together. separation distance requirements. In variations in white space device EIRP Higher Power Mobile Operation Within fact, the directional antenna and HAAT, the Commission can address ‘‘Geo-Fenced’’ Areas requirement may actually provide a this by defining vacant channels at a better operating environment for particular antenna height and power 43. The white space rules permit two wireless microphones in such level. While no party suggested a general classes of devices: Fixed and situations. specific white space device EIRP and personal/portable, with personal/ HAAT that should be used in portable devices further subdivided into Definition of ‘‘Less Congested’’ Area determining TV channel availability, the two types: Mode I and Mode II. Fixed 39. In the NPRM, the Commission Commission notes that it stated in the and Mode II personal/portable devices sought comment on whether any 2015 White Spaces Order that vacant must incorporate a geo-location changes are necessary to the definition channels would be defined as those capability to determine their of ‘‘less congested’’ area given that many available for fixed white space devices coordinates and access a database to of the proposals were limited to those operating with an EIRP of 40 milliwatts determine the available channels at areas. ‘‘Less congested’’ locations are and an HAAT of 3 meters, although it those specific coordinates. The current typically rural or semi-rural areas and did not codify this decision. Since no rules permit fixed white space devices are defined as those where at least half party suggested specific criteria for to operate with up to 4 watts EIRP of the TV channels within a device’s determining channel availability in generally, and up to 10 watts in ‘‘less particular TV sub-band of operation response to the NPRM, the Commission congested’’ areas, which the (i.e., the low VHF (channels 2–6), the retains and codifies its 2015 decision by Commission is increasing to 16 watts as high VHF (channels 7–13), or the UHF specifying the power and antenna discussed above. Personal/portable (channels 14–36) band) are unused for heights used to determine TV channel devices may operate with a maximum broadcast and other protected services availability in the definition of ‘‘less EIRP of 100 milliwatts. A Mode II and are available for white space device congested’’ area in § 15.703. personal/portable device must re-check use. The Commission sought comment 42. In addition, the Commission its coordinates every 60 seconds and on whether the current definition is still clarifies the definition of ‘‘less contact the database for an updated list appropriate, and if not, what the congested’’ area by codifying its of available channels if it changes appropriate metric for defining ‘‘less decision in the 2015 White Spaces location by more than 100 meters. congested’’ area would be. In addition, Order that ‘‘less congested’’ areas are Additionally, Mode II personal/portable because the number of vacant channels calculated by the white space database devices may load channel availability at a location can vary based on the EIRP in the three TV bands separately: The information for multiple locations from and HAAT of a white space device, the low VHF band (channels 2–6), the high the white space database and use that Commission sought comment on VHF band (channels 7–13) and the UHF information to define a geographic area whether it should define vacant band (channels 14–36). The within which it can operate on a mobile channels depending on particular Commission declines to significantly basis (on the same available channels at antenna height and power level. modify the definition of ‘‘less all locations within that geographic 40. The Commission will continue to congested’’ areas as suggested by some area); the device must contact the define ‘‘less congested’’ areas as those parties. For the reasons described above, database again, however, if it moves where at least half of the TV channels the Commission finds that the current beyond the boundary of the area where in the bands that will continue to be definition, with certain modifications, is the channel availability information is allocated and assigned only for the appropriate metric for determining valid. No device manufacturers or broadcast service are unused for which areas are ‘‘less congested’’. The database systems have yet implemented broadcast and other protected services Commission also declines Dynamic this provision. and available for white space device Spectrum Alliance’s request to modify 44. In the NPRM, the Commission use. Areas where the spectrum is less the definition of ‘‘less congested’’ area proposed to allow white space devices congested generally correspond to rural to consider all TV bands together (low to operate on TV channels 2–35 on and unserved areas that will benefit VHF, high VHF and UHF) in mobile platforms within geo-fenced from improved broadband coverage, and determining vacant channel availability areas at higher power levels than the the current definition provides a simple and whether an area qualifies as less rules currently permit for personal/
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portable devices, and proposed to limit benefit Americans in rural and devices change direction as they travel, such operations to ‘‘less congested’’ underserved areas by permitting new the Commission permits the use of areas to limit their potential for causing agricultural applications and enabling electrically steerable directional harmful interference. The Commission broadband communications with antennas to help enable mobile devices proposed to permit a higher power moving vehicles such as school buses. to remain in contact with their Mode II white space device installed on The Commission implements this associated base unit or another mobile a movable platform to load channel change by establishing a new class of device. availability information for multiple higher power mobile white space 48. The white space database will locations in the vicinity of its current device, rather than by modifying the determine channel availability over a location and to use that information to Mode II personal/portable device rules defined geo-fenced area where a mobile define a geo-fenced area within which it as proposed in the NPRM and supported device will operate. In order to provide can operate on the same available by Shure and Sennheiser, or by allowing flexibility for manufacturers and mobile channels at all locations. The fixed devices to operate on mobile device operators, the Commission does Commission also proposed to require platforms as suggested by Microsoft in not specify how the boundaries of an that the white space device’s location be its petition and supported by RED area are entered into and stored within checked at least once every 60 seconds Technologies. The Commission agrees the white space database or a mobile while in operation (unless in ‘‘sleep’’ with commenters that establishing a device. The Commission does, however, mode). The Commission further new class of mobile white space device require that both the white space proposed that a device may not use would be simpler than modifying the database and mobile device contain the channel availability information for Mode II personal/portable device rules same boundary information. This multiple locations if or when it moves to permit higher power operation, and requirement will ensure that mobile closer than 1.6 kilometers to the that this approach is more congruous devices operate only where the database boundary of the geo-fenced area in than an approach providing for a fixed has determined available channels. which the device operates, or at any device on mobile platform as initially Because mobile devices will operate at point outside that boundary; this suggested by Microsoft. The the same maximum power level as fixed requirement would ensure that a device Commission uses the term ‘‘mobile devices, the Commission requires that moving at 60 miles per hour (1.6 device’’ to refer to this class of white the database use the same minimum kilometers per minute) does not cross space devices to distinguish them from required separation distances from outside the boundary between device re- personal/portable white space devices. protected services in the TV bands as checks of its location. Additionally, the As suggested by Shure, the Commission fixed devices in determining available Commission proposed to prohibit is clearly indicating in the rules that channels. This includes all protected operation on board aircraft or satellites mobile devices may operate only in services, including the PLMRS/CMRS, to limit the range at which harmful ‘‘less congested’’ areas by adding this as noted by NPSTC. For simplicity of interference could occur. requirement to the definition of ‘‘mobile operation, the Commission requires that 45. The Commission sought comment white space device’’. any channel identified by the database on a number of equipment issues for as available within the geo-fenced area higher power geo-fenced mobile 47. The Commission permits mobile must be available at the same power operations, including whether to permit devices to operate at the same radiated level over an entire geo-fenced area. fixed devices to operate on mobile power level permitted for fixed devices 49. The Commission recognizes that platforms, the antenna and equipment in ‘‘less congested’’ areas, i.e., up to 16 there are some complexities in authorization requirements that should watts EIRP. This power level will enable determining the available channels over apply, and whether the Commission the provision of new types of mobile a contiguous geo-fenced area. The should establish a new class of higher broadband services in rural and other current white space database system power mobile device to distinguish such unserved areas. Because the determines channel availability at devices from personal/portable white Commission is permitting power levels discrete locations since it was designed space devices. The Commission also that are the same as fixed devices, it to implement rules that require devices sought comment on other requirements believes that many of the technical to determine their geographic for higher power mobile white space requirements that apply to fixed devices coordinates at a single location and devices, including whether to place are also appropriate for the new class of submit those coordinates to the database limitations on the size of the area over mobile white space devices. when requesting a list of available which a geo-fenced mobile device could Accordingly, the Commission requires channels. The database system would operate, the appropriate maximum mobile devices to comply with the same have to use a modified methodology for power, whether there is a need to transmitter power limits as fixed determining available channels over a specify how information on an area will devices, including maximum in-band geo-fenced area. For example, it could be provided to the white space database, power, adjacent channel emissions, divide the area into cells, e.g., 100 by and any other safeguards needed to power spectral density, and out-of-band 100-meters, and determine channel ensure that higher power mobile devices emissions, as well as require them to availability within each cell. The do not cause harmful interference to meet the same antenna gain Commission will not prescribe the exact protected operations. The Commission requirements as fixed devices. Under method that database administrators further sought comment on whether these requirements, a mobile device will must use to determine channel there is a need to prohibit operation on be permitted to operate with a availability within geo-fenced areas, but other mobile platforms such as trains maximum transmitter power output of mobile white space devices must and boats. one watt, and can use an antenna with comply with the minimum required 46. The Commission permits the a gain of up to 12 dBi to achieve an EIRP separation distances from protected operation of higher power mobile of 16 watts. If the maximum gain of the services at any point within a geo- devices within defined geo-fenced areas antenna exceeds 12 dBi, then the fenced area. The white space database in ‘‘less congested’’ areas, as proposed transmitter power must be reduced by will have to consider a mobile device’s in the NPRM. A number of parties the same amount in dB that the antenna HAAT in determining available support this change, stating that it will gain exceeds 12 dBi. Because mobile channels and consider any variation in
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HAAT over a geo-fenced area to because that corresponds to an atypical per 100 kilohertz, which limits total determine whether a channel is vehicle speed of more than 100 miles conducted power within any 6- available over the entire area. To per hour, but note that Shure believes megahertz television channel to 30 simplify calculations, the Commission an increase in the buffer zone size to 1.9 dBm. The PSD limit is proportionally permits the database to use only the kilometers (corresponding to a vehicle lower for devices operating at lower highest, i.e., worst case, HAAT within a speed of just over 70 miles per hour) EIRP levels. The Commission geo-fenced area in determining channel would be an improvement over the established PSD limits to prevent availability rather than having to Commission’s proposal of 1.6 multiple white space devices from calculate the HAAT at each location. kilometers. Accordingly, the simultaneously operating at the The Commission sees no reason to limit Commission adopts the proposed maximum allowable power with the size of the geo-fenced area since location re-check interval of 60 seconds, transmit bandwidths of less than six mobile devices will only be permitted to but increases the size of the geo-fenced megahertz within a single television operate in areas where the spectrum is area buffer from the proposed 1.6 channel, which would result in a total ‘‘less congested.’’ The requirement that kilometers to 1.9 kilometers. transmitted power within that channel a channel must be available over an 52. The Commission limits operation significantly greater than the limit. The entire geo-fenced area will tend to of mobile devices to ‘‘less congested’’ PSD limits were calculated based upon preclude extremely large areas since areas as proposed in the NPRM. The a single white space device spreading its there is less likelihood that the same TV Commission believes that the primary energy uniformly across a 6-megahertz channel will be vacant over a very large applications for mobile devices will be television channel bandwidth, contiguous area. in more rural areas, and limiting the excluding 250 kilohertz near each 50. Because a mobile device must be new class of higher power mobile channel edge for roll-off, and serve to able to accurately determine its location, device to areas with more available limit the maximum power of white the Commission requires that a mobile spectrum will limit the likelihood of space devices with bandwidths of less device comply with similar geo-location interference to authorized services in than 6-megahertz. requirements to fixed devices. the TV bands as well as enable all 55. In the NPRM, the Commission Specifically, the Commission requires unlicensed devices, including other proposed changes to the white space that a mobile device incorporate a geo- white space devices and unlicensed rules to facilitate narrowband (e.g., 100 location capability that is capable of wireless microphones, to have an kilohertz) IoT device deployment on TV determining its location and geo- opportunity to access spectrum in the channels 2–35. The proposed rules location uncertainty (expressed in TV bands. To limit the distance at would permit white space devices to meters), with a confidence level of 95%. which mobile devices could cause operate with narrowband carriers rather To provide flexibility in the design of interference to authorized services, the than having to spread all of their energy mobile devices, the Commission permits Commission prohibits their operation across a six megahertz channel, and are the use of a remote geo-location unit as on satellites and aircraft as proposed in designed to ensure that narrowband the rules permit for fixed devices, the NPRM. This prohibition of operation white space devices have no greater provided the remote unit is located on on aircraft will include unmanned aerial interference potential than wider the same moveable platform as the vehicles (e.g., drones). bandwidth devices operating under the mobile device, e.g., bus or tractor. To 53. The Commission sees no reason to current rules. Specifically, the ensure that a mobile device is capable specially limit the maximum height Commission proposed to define a of determining whether it is within a above ground level for mobile devices or ‘‘narrowband white space device’’ as a geo-fenced area, the Commission to preclude operation on cranes or type of fixed or personal/portable white requires that a mobile device have the bucket trucks as suggested by NAB and space device operating in a bandwidth ability to store information on the others. The Commission requires a of no greater than 100 kilohertz. The boundaries of a geo-fenced area in mobile device to report its height above Commission also proposed that which it will operate. ground to the white space database as is narrowband white space devices be 51. While the Commission proposed required for fixed devices, and the client devices that communicate with a in the NPRM to require a mobile white database will take the antenna height fixed or Mode II master device that space device operating within a geo- above ground into consideration when contacts the white space database to fenced area to re-check its geographic calculating a mobile device’s HAAT and obtain a list of available channels and coordinates at least once every 60 the available channels within a geo- operating powers at its location. In this seconds and to cease operation if it fenced area. Thus, a higher antenna connection, the Commission also sought travels closer than 1.6 kilometers to the height above ground will not increase comment on whether the proposed edge of the geo-fenced area or is outside the likelihood of interference to definition for narrowband white space the boundary of the area, the authorized services as parties suggest. device is appropriate for the intended Commission agrees with Shure that this The Commissions also sees no reason to IoT applications. proposed distance should be slightly make any special requirements 56. The Commission proposed to increased to account for vehicles regarding the directivity of mobile permit narrowband white space devices traveling at allowable highway speed device antennas, i.e., larger buffer zones, to operate with the same conducted PSD limits. The proposed buffer requirement as suggested by Shure. The required size limit, adjacent channel emission limits, was intended to ensure that a mobile of the buffer zone is a function of a and antenna gain requirements as 4-watt white space device traveling at 60 miles mobile device’s speed and re-check fixed devices. To ensure that the total per hour (1.6 kilometers per minute) interval and is independent of the energy in a single TV channel does not does not cross outside the geo-fenced power level used. cause harmful interference, the area between location checks. However, Commission proposed to limit each the Commission recognizes Shure’s Narrowband IoT Operations transmitter to transmissions totaling no argument that many vehicles travel 54. Under current rules, fixed white more than 10 seconds per hour. The faster than this speed. The Commission space devices operating with 4 watts or Commission further proposed to require disagrees with Shure’s contention that a greater EIRP must comply with a power narrowband devices to use a channel 2.7-kilometer buffer is necessary spectral density (PSD) limit of 12.6 dBm plan that limits total transmitted power
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in a six-megahertz channel to no higher maximum antenna gain of 6 dBi with no channels centered at integral multiples than the existing limits for a four-watt reduction in transmitter conducted of 100 kilohertz between the 250 EIRP broadband white space device. power, or higher antenna gain if the kilohertz guard bands. The net effect of Although the Commission declined to conducted power is proportionally these requirements is that narrowband propose requiring narrowband devices reduced. The Commission also requires devices will be permitted to operate to use a listen-before-talk mechanism, it narrowband white space devices to within 55 possible 100-kilohertz nonetheless sought comment on comply with an emission limit of ¥42.8 channels in the center 5.5 megahertz of whether one would be necessary to dBm into adjacent channels, i.e., outside each six-megahertz channel. Even in the prevent harmful interference to of the 6-megahertz channel in which event that all 55 narrowband channels protected services in the TV bands. The they operate. These requirements will within a six-megahertz channel were Commission also sought comment on permit a white space device to operate occupied simultaneously by devices whether there is a need to increase the with a single or several narrowband transmitting at maximum power, the minimum separation distances from co- carriers rather than having to spread all total conducted and radiated power channel and adjacent channel TV of its energy across a six megahertz within that six-megahertz channel station contours as the rules require for channel while ensuring that would be no greater than for a fixed personal/portable devices operating as narrowband white space devices have device operating with one-watt clients. no greater interference potential than conducted power and 4 watts EIRP. 57. The Commission modifies the wider bandwidth devices operating Because of the transmission time limit rules to facilitate the development of under the current rules. To prevent of thirty-six seconds per hour (a one- new and innovative narrowband IoT narrowband devices from being used for percent duty cycle), the interference devices in the TV bands. Specifically, data intensive applications and to limit potential of these narrowband white the Commission establishes a new class the potential for these devices to cause space devices will actually be of ‘‘narrowband white space device,’’ harmful interference, the Commission significantly less than four-watt EIRP which it defines as a type of fixed or limits transmissions on each fixed devices in most cases since it is personal/portable white space device narrowband channel to a total of 36 extremely unlikely that devices would operating in a bandwidth of no greater seconds per hour, as suggested by transmit at maximum power on all 55 than 100 kilohertz. A number of parties Dynamic Spectrum Alliance and narrowband channels simultaneously, support the proposals to modify the Microsoft, i.e., a 1% duty cycle. and even if they did, that would occur white space rules to permit narrowband 59. The Commission will not, for no more than 36 seconds per hour. IoT operations. In response to specific however, increase this transmission 61. The Commission is not limiting comment sought on the definition of a time limit for narrowband devices to operation of narrowband devices to narrowband white space device, the allow for signaling overhead as ‘‘less congested’’ areas as suggested by Commission expands that definition to suggested by Microsoft. Microsoft has wireless microphone interests. Since include master devices as well as not indicated how much additional narrowband devices will operate under clients. This change is suggested by transmission time would be necessary control of a master device that accesses Dynamic Spectrum Alliance and for this overhead. Further, to the extent a white space database to determine Microsoft to enable greater flexibility in that a narrowband device needs available channels at its location, the design of IoT networks. No party additional transmission time for narrowband devices will not be opposed this change. A narrowband functions such as contacting a white permitted to operate on the channels at device that operates as a client must space database to obtain a list of locations where registered licensed communicate with a master device that available channels, there appear to be wireless microphones operate. contacts the white space database to ways to perform these functions while Additionally, unlicensed wireless obtain a list of available channels and still complying with the 36 second per microphones and white space devices operating powers at its location, while hour per narrowband channel limit. For must already share spectrum with fixed a narrowband device that acts as a example, under the rules the white space devices operating at up to master must incorporate a geo-location Commission is adopting there will be up 4 watts EIRP in areas that do not meet mechanism and be capable of obtaining to 55 narrowband channels within one the definition of ‘‘less congested.’’ Even lists of available channels and operating six-megahertz TV channel, and a device under worst-case conditions, powers from the white space database. could use one or more of these narrowband devices will have no greater The Commission permits all types of narrowband channels for signaling interference potential than four-watt white space devices that incorporate purposes. In addition, any overhead fixed devices and will have a geo-location and have database access associated with contacting the database significantly lower interference (fixed, Mode II, mobile, and could be accomplished by other means, potential in the vast majority of cases. narrowband) to act as a master device to such as a non-narrowband white space For these reasons, the Commission does a narrowband client device. TV band channel, Wi-Fi, a fixed link, or a fiber not agree with RADWIN that a frequencies are better able to penetrate connection. proliferation of narrowband devices will foliage and other obstacles than higher 60. The Commission also requires prevent spectrum use for internet frequencies, so this action will permit narrowband devices to use the proposed access. the development of IoT devices with channel plan that limits total 62. The Commission declines to allow improved transmission range. transmitted power in a six-megahertz a greater transmission duty cycle for 58. As proposed in the NPRM, the channel to no higher than the existing narrowband devices used only by public Commission permits narrowband white limits for a four-watt EIRP broadband safety entities as requested by NPSTC. space devices to operate with a white space device. This channel plan While NPSTC does not indicate how conducted PSD of up to 12.6 dBm/100 requires narrowband white space much it wants the limit increased, the kilohertz, which is the same maximum devices to operate at least 250 kilohertz higher transmit duty cycle the level permitted for fixed devices, and from the edge of a six-megahertz TV Commission is permitting will benefit require narrowband devices to comply channel, unless the adjacent channel is all narrowband device applications, with the same maximum antenna gain also vacant, and requires narrowband including those used by public safety requirements as fixed devices, i.e., a white space devices to operate only on entities. Allowing different technical
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requirements for public safety entities manufacturers’ specifications or actual tested ATSC 1.0 receivers is better than would complicate equipment measurement results, and whether there the value the Commission assumed, and certification and would be difficult to is any indication that next-generation that ATSC 3.0 receivers have a enforce since there could be multiple TV receivers will have better adjacent selectivity 10 dB better than that of versions of the same device, some of channel interference rejection than ATSC 1.0 receivers at lower order which could be legally used only by current receivers. modulations and similar to ATSC 1.0 specific types of entities. It is not clear 65. The Commission does not increase receivers at higher order modulations. how the Commission could ensure that the maximum permissible power for In addition, the report shows that devices approved for use only by public white space devices operating inside the receiver adjacent channel selectivity safety entities would be marketed to, protected contour of adjacent channel improves by 5.7 dB on average when a and operated by, only those entities. TV stations at this time. As an initial white space device operates at a 3 matter, the Commission does not at this megahertz offset from a TV channel Higher Power on Adjacent Channels time have sufficient evidence in the edge. 63. White space devices must record on which to change the manner 67. The improved receiver selectivity generally operate outside the protected of protecting broadcast services to a shown in Microsoft’s testing could contours of adjacent channel TV terrain-based model, as Microsoft and allow white space devices to operate stations because a strong signal on an others suggest. Microsoft argues that the within adjacent channel protected adjacent channel can cause interference Commission should permit white space contours at higher power levels than the to the reception of a channel being device operation within the protected rules currently permit without viewed. The general requirement that contour of adjacent channel TV stations increasing the potential for interference white space devices avoid operation at higher power levels than the rules to TV reception. The Commission within the protected contours of a currently permit. In so doing, Microsoft recognizes, however, NAB’s concern station operating on an adjacent channel supplied a test report on the results of that Microsoft’s testing was performed means that, as a practical matter, a laboratory measurements of current with a limited number of TV receivers white space device may operate only at model ATSC 1.0 TV receivers and next which may not be representative of the locations where there are three generation ATSC 3.0 TV receivers that currently installed base. The contiguous vacant channels, i.e., the it claims shows higher power adjacent Commission encourages Microsoft and channel used by the white space device channel operation is possible because other parties to continue studies and plus both adjacent channels. The these TV receivers have better white space device and TV receiver Commission’s rules do, however, selectivity than the Commission testing to determine whether or how the provide two exceptions that permit assumed in developing the current Commission can permit higher power white space device operations at lower power limits and because the use of for white space devices without causing power levels when adjacent channels terrain-based propagation models (e.g., harmful interference to TV reception. are occupied, based upon the shorter Longley-Rice) can provide a more The Commission welcomes interested distances at which interference to accurate determination of where higher parties to file a petition in the future adjacent channel TV stations could power adjacent channel white space when this work has been done. occur. First, both fixed and personal/ device operation can be permitted Other Matters portable white space devices may without causing harmful interference. operate at up to 40 milliwatts EIRP at Microsoft also supplied a test report on 68. Directional antennas. Broadband locations where both adjacent channels field measurements conducted with Ark Connects America Coalition, Public are occupied. Second, fixed white space Multicasting, a lower power TV network Interest Spectrum Coalition, and WISPA devices may operate within the operator, that it claims validates its request that the white space database be protected contour of adjacent channel laboratory measurements and allowed to consider the directivity of TV stations with a power level of 100 demonstrates that for the given white space device transmit antennas in milliwatts EIRP when the white space parameters (e.g., fixed white space determining channel availability for device operates in a six-megahertz band device EIRP and antenna pattern, DTV white space devices. NAB opposes this centered on the boundary of two transmitter characteristics, adjacent request, arguing that there is no way of contiguous vacant channels, i.e., 50 channel selectivity of the newer model determining whether a directional milliwatts EIRP within a three- TV receivers with integral display antenna has been installed properly megahertz band in each channel. tested, and distance between the DTV without hiring a licensed land-surveyor, 64. In the NPRM, the Commission transmitter and the TV receiver) a white which it believes is unlikely to occur. sought comment on whether it could space device can operate within the The Commission previously considered permit white space devices to operate at protected contour on a first adjacent and rejected requests to consider white higher power levels than the rules channel at higher powers than currently space device transmit antenna currently permit when adjacent TV allowed. directivity in the White Spaces Order on channels are occupied. In particular, the 66. But while data supplied by Reconsideration and did not make any Commission sought comment on Microsoft shows that some newer model proposals on this issue in the NPRM. methods that could be used to TV receivers have better adjacent The Commission declines to take any determine the locations where it could channel selectivity than the ¥33 dB D/ action on these requests. permit higher power unlicensed U ratio the Commission assumed when 69. Wireless microphone issues. operations on adjacent channels, and if it adopted the power limits for white Wireless microphone interests request so, what specific technical parameters space devices operating inside the that the Commission not take action to would need to be considered or protected contour of adjacent channel change the rules for white space devices specified in such calculations. The TV stations, NAB disputes Microsoft’s until it acts on the outstanding Commission also sought comment on analysis, arguing that the TV receivers it proceeding (GN Docket No. 14–166) that whether there is any information used are not representative of the proposed to expand the eligibility for available on adjacent channel selectivity currently installed consumer base. obtaining a part 74 license for wireless and interference rejection capabilities of Microsoft’s report shows that the microphones and until the Commission next-generation TV receivers, such as average adjacent channel selectivity of addresses difficulties with the white
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space database in registering licensed (OMB) for review under section 3507(d) 77. It is further ordered that the wireless microphones. of the PRA. OMB, the general public, Commission’s Consumer and 70. The Commission declines to defer and other Federal agencies will be Governmental Affairs Bureau, Reference action in this proceeding pending a invited to comment on the new or Information Center, shall send a copy of decision in GN Docket No. 14–166 on modified information collection this Report and Order, including the expanding part 74 licensing eligibility. requirements contained in this Final Regulatory Flexibility Analyses, to The Commission actions in this proceeding. In addition, we note that the Chief Counsel for Advocacy of the proceeding will benefit Americans in pursuant to the Small Business Small Business Administration. rural and underserved areas by enabling Paperwork Relief Act of 2002, Public 78. It is further ordered that the improved broadband access. The Law 107–198, see 44 U.S.C. 3506(c)(4), Commission’s Consumer and Commission does not wish to delay we previously sought specific comment Governmental Affairs Bureau, Reference these public benefits until some on how the Commission might further Information Center, shall send a copy of unspecified point in the future. Further, reduce the information collection this Report and Order, including the the Commission decision here will not burden for small business concerns with Final Regulatory Flexibility Analyses, to adversely impact either licensed or fewer than 25 employees. Congress and the Government unlicensed wireless microphone 73. Final Regulatory Flexibility Accountability Office pursuant to the operations. For example, the Analysis. As required by the Regulatory Congressional Review Act, see 5 U.S.C. Commission is limiting higher power Flexibility Act of 1980 (RFA), as 801(a)(1)(A). and antenna height operations, as well amended, the Commission has prepared List of Subjects in 47 CFR Part 15 as higher power geo-fenced operations, a Final Regulatory Flexibility Analysis to areas where the spectrum is less (FRFA) regarding the possible Communications equipment, Radio, congested, which will limit the impact significant economic impact on small Reporting and recordkeeping on wireless microphones that operate in entities of the policies and rules requirement. the TV bands. Moreover, because white adopted in this Report and Order, Federal Communications Commission. space devices operate on an unlicensed which the full FRFA is found in basis, they are obligated by the rules to Marlene Dortch, Appendix C at https://www.fcc.gov/ Secretary. protect licensed wireless microphone document/fcc-increases-unlicensed- operations; unlicensed wireless wireless-operations-tv-white-spaces-0. Final Rules microphones operate on a co-equal basis The Commission’s Consumer and with white space devices. However, if For the reasons discussed in the Governmental Affairs Bureau, Reference preamble, the Federal Communications the Commission decides to expand Information Center, will send a copy of wireless microphone licensing Commission amends 47 CFR part 15 as the Report and Order, including the eligibility in GN Docket No. 14–166, any follows: FRFA, to the Chief Counsel for newly licensed wireless microphone Advocacy of the Small Business PART 15—RADIO FREQUENCY operation would receive the same Administration. DEVICES protection from harmful interference, 74. Congressional Review Act. The even if white space device operators ■ Commission has determined, and the 1. The authority citation for part 15 need to adjust their systems. Thus, the continues to read as follows: actions the Commission takes in this Administrator of the Office of Report and Order do not alter the Information and Regulatory Affairs, Authority: 47 U.S.C. 154, 302a, 303, 304, 307, 336, 544a, and 549. relationship between wireless Office of Management and Budget, microphones and white space devices, concurs that this rule is non-major ■ 2. Amend § 15.703 by: including the obligation for unlicensed under the Congressional Review Act, 5 ■ a. Removing the paragraph devices to protect licensed wireless U.S.C. 804(2). The Commission will designations; microphones. send a copy of this Report and Order to ■ b. Adding a definition for ‘‘Geo-fenced 71. The Commission appreciates Congress and the Government area’’ in alphabetical order; parties bringing concerns about the Accountability Office pursuant to 5 ■ c. Revising the definition of ‘‘Less white space database to its attention, U.S.C. 801(a)(1)(A). congested area’’; ■ and is working with the database Ordering Clauses d. Adding definitions for ‘‘Mobile administrators to address them. The white space device’’ and ‘‘Narrowband Commission notes that a new 75. It is ordered, pursuant to sections white space device in alphabetical administrator, RED Technologies, has 4(i), 201, 302, and 303 of the order. taken over operation of the Nominet Communications Act of 1934, as The additions and revision read as white space database. However, the amended, 47 U.S.C. 154(i), 201, 302a, follows: 303, that this Report and Order is Commission believes that the concerns § 15.703 Definitions. parties raised, e.g., improvements to the hereby adopted. licensed wireless microphone 76. It is further ordered that the * * * * * registration procedure, can be addressed amendments of the Commission’s rules Geo-fenced area. A defined without a need to delay action in this as set forth below are adopted, effective geographic area over which the white proceeding. thirty days from the date of publication space database has determined the set of in the Federal Register, except for the available channels. Procedural Matters amendment to § 15.709(g)(1)(ii), which * * * * * 72. Paperwork Reduction Act contains new or modified information Less congested area. Geographic areas Analysis. This document contains new collection requirements that require where at least half of the TV channels or modified information collection approval by the OMB under the PRA within a specific TV band are unused requirements subject to the Paperwork and will become effective after the for broadcast and other protected Reduction Act of 1995 (PRA), Public Commission publishes a document in services and available for white space Law 104–13. It will be submitted to the the Federal Register announcing such device use. Less congested areas are Office of Management and Budget approval and the relevant effective date. determined separately for each TV
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band—the low VHF band (channels 2– (2) 600 MHz duplex gap. Fixed and (B) Fixed devices in the 600 MHz 6), the high VHF band (channels 7–13) personal/portable white space devices service bands above 620 MHz: Up to 4 and the UHF band (channels 14–36); may operate in the 657–663 MHz W (36 dBm) EIRP, and up to 10 W (40 i.e., one, two or all three bands or any segment of the 600 MHz duplex gap. dBm) EIRP in less congested areas. combination could qualify as less (3) 600 MHz service band. Fixed and Fixed devices that operate in any congested. White space devices may personal/portable white space devices portion of the 614–620 MHz band may only operate at the levels permitted for may operate on frequencies in the bands operate with up to 4 W (36 dBm) EIRP. less congested areas within the area and 617–652 MHz and 663–698 MHz in * * * * * the specific TV band(s) that qualify as areas where 600 MHz band licensees (5) Mobile devices in the TV bands a less congested area. For the purpose of have not commenced operations, as below 602 MHz. Up to 16 W (42 dBm) this definition, a channel is considered defined in § 27.4 of this chapter. EIRP in less congested areas. Mobile (4) Channel 37 guard band. White available for white space device use if device operation is not permitted above space devices are not permitted to it is available for fixed devices operating 602 MHz. Mobile devices may operate operate in the band 614–617 MHz. with 40 milliwatts EIRP at 3 meters only in less congested areas. HAAT. Less congested areas in the UHF (b) Only mobile white space devices (b) * * * TV band are also considered to be less and fixed white space devices that congested areas in the 600 MHz service communicate only with other fixed or (1) Fixed and mobile white space band. mobile white space devices may operate devices. (i) Technical limits for fixed on available channels in the bands 54– and mobile white space devices are Mobile white space device. A white shown in the table in paragraph space device that transmits and/or 72 MHz (TV channels 2–4), 76–88 MHz (TV channels 5 and 6), and 174–216 (b)(1)(iii) of this section and subject to receives radiocommunication signals on the requirements of this section. available channels within a defined geo- MHz (TV channels 7–13), subject to the fenced area. A mobile white space interference protection requirements in (ii) For operation at EIRP levels of 36 device uses an incorporated geo- §§ 15.711 and 15.712. dBm (4,000 mW) or less, fixed and (c) Narrowband and mobile white location capability to determine its mobile white space devices may operate space devices may only operate on location with respect to the boundaries at EIRP levels between the values shown frequencies below 602 MHz. of the defined area. A mobile white in the table in paragraph (b)(1)(iii) of ■ space device may operate only in less 4. Amend § 15.709 by: this section provided that the conducted ■ congested areas. a. Revising paragraphs (a)(2)(i); power and the conducted power ■ b. Adding paragraph (a)(5); spectral density (PSD) limits are linearly * * * * * ■ c. Revising paragraph (b)(1); interpolated between the values shown Narrowband white space device. A ■ d. Adding paragraph (b)(4); and the adjacent channel emission limit fixed or personal/portable white space ■ e. Revising paragraphs (c)(2) and of the higher value shown in the table device operating in a bandwidth of no (g)(1)(i); and is met. Operation at EIRP levels above ■ greater than 100 kilohertz. f. Delayed indefinitely, revising 36 dBm (4,000 mW) but not greater than * * * * * paragraph (g)(1)(ii). 40 dBm (10,000 mW) shall follow the The additions and revisions read as requirements for 40 dBm (10,000 mW). ■ 3. Revise § 15.707 to read as follows: follows: Operation at EIRP levels above 40 dBm § 15.707 Permissible channels of § 15.709 General technical requirements. (10,000 mW) shall follow the operation. (a) * * * requirements for 42 dBm (16,000 mW). (a)(1) 470–614 MHz band. Fixed and (2) * * * (iii) The conducted power spectral personal/portable white space devices (i)(A) Fixed devices in the TV bands density from a fixed or mobile white are permitted to operate on available below 602 MHz: Up to 4 W (36 dBm) space device shall not be greater than channels in the frequency bands 470– EIRP, and up to 16 W (42 dBm) EIRP in the values shown in the table in this 614 MHz (TV channels 14–37), subject less congested areas. Fixed devices in paragraph (b)(1)(iii) when measured in to the interference protection the 602–608 MHz band may operate any 100 kilohertz band during any time requirements in §§ 15.711 and 15.712. with up to 4 W (36 dBm) EIRP. interval of continuous transmission.
TABLE 1 TO PARAGRAPH (b)(1)(iii)
Conducted adjacent Conducted PSD limit 1 EIRP Conducted power limit (100 kHz) channel emission limit (6 MHz) (6 MHz) (100 kHz) (dBm) (dBm)
16 dBm (40 mW) ...... 10 dBm (10 mW) ...... ¥7.4 ¥62.8 20 dBm (100 mW) ...... 14 dBm (25 mW) ...... ¥3.4 ¥58.8 24 dBm (250 mW) ...... 18 dBm (63 mW) ...... 0.6 ¥54.8 28 dBm (625 mW) ...... 22 dBm (158 mW) ...... 4.6 ¥50.8 32 dBm (1,600 mW) ...... 26 dBm (400 mW) ...... 8.6 ¥46.8 36 dBm (4,000 mW) ...... 30 dBm (1,000 mW) ...... 12.6 ¥42.8 40 dBm (1,0000 mW) ...... 30 dBm (1,000 mW) ...... 12.6 ¥42.8 42 dBm (16,000 mW) ...... 30 dBm (1,000 mW) ...... 12.6 ¥42.8
* * * * * (fixed, Mode II, mobile or narrowband) narrowband white space device that acts (4) Narrowband white space devices. that contacts the white space database to as a master must incorporate a geo- (i) A narrowband white space device obtain a list of available channels and location mechanism and be capable of that operates as a client must operating powers at its location. A obtaining lists of available channels and communicate with a master device
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operating powers from the white space (ii) Height above average terrain (j) * * * database. (HAAT). For devices operating in the TV (3) A white space database shall be (ii) Narrowband white space devices bands below 602 MHz, the transmit protected from unauthorized data input shall operate on channel sizes that are antenna shall not be located where its or alteration of stored data. To provide no more than 100 kilohertz. The edge of height above average terrain exceeds this protection, the white space database a narrowband channel shall be offset 250 meters generally, or 500 meters in administrator shall establish from the upper and lower edge of the 6 less congested areas. For devices communications authentication megahertz channel in which it operates operating in all other bands the transmit procedures that allow fixed, mobile, and by at least 250 kilohertz, except in the antenna shall not be located where its Mode II white space devices to be case where bonded 6 megahertz height above average terrain exceeds assured that the data they receive is channels share a common band edge. 250 meters. The HAAT is to be from an authorized source. Narrowband operating channels shall be calculated by the white space database (4) Applications for certification of at integral multiples of 100 kilohertz using the methodology in § 73.684(d) of white space devices shall include a high beginning at a 250 kilohertz offset from this chapter. For HAAT greater than 250 level operational description of the a 6 megahertz channel’s edge, or with meters the following procedures are technologies and measures that are no offset at the common band edge of required: incorporated in the device to comply two bonded 6 megahertz channels. (A) The installing party must contact with the security requirements of this (iii) The conducted power limit is a white space database and identify all section. In addition, applications for 12.6 dBm in a 100 kilohertz segment. TV broadcast station contours that certification of fixed, mobile, and Mode The EIRP limit is 18.6 dBm in a 100 would be potentially affected by II white space devices shall identify at kilohertz segment. The conducted operation at the planned HAAT and least one of the white space databases power spectral density limit is 12.6 dBm EIRP. A potentially affected TV station operated by a designated white space in any 100 kilohertz band during any is one where the protected service database administrator that the device time interval of continuous contour is within the applicable will access for channel availability and transmission. separation distance for the white space affirm that the device will conform to (iv) Conducted adjacent channel device operating at an assumed HAAT the communications security methods emissions shall be limited to ¥42.8 of 50 meters above the planned height used by that database. (k) Requirements for mobile white dBm in 100 kilohertz in a first adjacent at the proposed power level. space devices. (1) Mobile white space 6 megahertz channel, starting at the (B) The installing party must notify devices shall operate within geo-fenced edge of the 6 megahertz channel within each of these licensees and provide the areas over which the white space which the narrowband device is geographic coordinates of the white database has determined channel operating. This limit shall not apply space device, relevant technical availability. A mobile white space between the edge of the narrowband parameters of the proposed deployment, device shall have the capability to channel and the edge of the 6 megahertz and contact information. internally store the boundaries of a geo- channel that contains it. (C) No earlier than four calendar days fenced area and determine its location (v) If transmitting antennas of after the notification in paragraph with respect to those boundaries. The directional gain greater than 6 dBi are (g)(1)(ii)(B) of this section, the installing area boundaries stored within a mobile used, the maximum conducted power party may commence operations. white space device must be the same as output shall be reduced by the amount (D) Upon request, the installing party those used by the white space database in dB that the directional gain of the must provide each potentially affected to determine channel availability. antenna exceeds 6 dBi. licensee with information on the time (2) A mobile white space device shall (vi) Total occupancy for each periods of operations. incorporate a geo-location capability to narrowband channel shall be limited to (E) If the installing party seeks to determine its geographic coordinates. A 36 seconds per hour. modify its operations by increasing its mobile white space device may obtain (c) * * * power level, by moving more than 100 its geographic coordinates through an (2) The conducted power, PSD, and meters horizontally from its location, or external geo-location source, provided adjacent channel limits for fixed and by making an increase in the HAAT or that source is on the same vehicle or mobile white space devices operating at EIRP of the white space device that other mobile platform as the mobile greater than 36 dBm (4,000 milliwatts) results in an increase in the minimum device. An external geo-location source EIRP shown in the table in paragraph required separation distances from co- may be connected to a mobile device (b)(1)(iii) of this section are based on a channel or adjacent channel TV station through either a wired or a wireless maximum transmitting antenna gain of contours, it must conduct a new connection, and a single geo-location 12 dBi. If transmitting antennas of notification. source may provide location directional gain greater than 12 dBi are (F) All notifications required by this information to multiple mobile devices used, the maximum conducted output section must be in written form on the same mobile platform. An power shall be reduced by the amount (including email). In all cases, the external geo-location source must be in dB that the directional gain of the names of persons contacted, and dates connected to a mobile device using a antenna exceeds 12 dBi. of contact should be kept by the white secure connection that ensures that only * * * * * space device operator for its records and an external geo-location source that has (g) * * * supplied to the Commission upon been approved with a particular mobile (1) * * * request. device can provide geographic (i) Above ground level. The transmit * * * * * coordinates to that device. The antenna height shall not exceed 10 ■ 5. Amend § 15.711 by revising geographic coordinates must be meters above ground level in any area paragraphs (j)(3) and (4) and adding provided automatically by the external for fixed white space devices operating paragraph (k) to read as follows: geo-location source to the mobile in the TV bands at 40 mW EIRP or less device; users may not manually enter or operating across multiple contiguous § 15.711 Interference avoidance methods. them. Alternatively, an extender cable TV channels at 100 mW EIRP or less. * * * * * may be used to connect a remote receive
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antenna to a geo-location receiver antennas, but a device’s maximum EIRP personal/portable white space devices within a mobile device. in any direction must be used by the with a location accuracy of ±50 meters. (3) The applicant for certification of a white space database in determining These distances must be increased by mobile device must demonstrate the channel availability. the amount that the location uncertainty accuracy of the geo-location method (8) A mobile device must re-check its of a white space device exceeds ±50 used and the location uncertainty as coordinates at least once every 60 meters. Narrowband white space defined in paragraph (b) of this section. seconds while in operation except while devices shall comply with the For mobile devices that are not using an in sleep mode, i.e., in a mode in which separation distances applicable to a internal geo-location capability, this the device is inactive but is not powered fixed white space device operating with uncertainty must account for the down. It must cease operation if its 30 dBm conducted power and 36 dBm accuracy of the geo-location source and location is within 1.9 kilometers of the EIRP across a 6 megahertz channel. the separation distance between such boundary, or outside the boundary, of source and the white space device. the geo-fenced area over which the (a) * * * (4) The antenna height above ground white space database has determined (2) Required separation distance. shall be determined by the operator of the available channels. White space devices must be located the device, or by an automatic means. (9) Each mobile white space device outside the contours indicated in The mobile device shall provide this shall access the white space database at paragraph (a)(1) of this section of co- information to the white space database least once a day to verify that the channel and adjacent channel stations when it requests a list of available operating channels within the geo- by at least the minimum distances channels for the geo-fenced area in fenced area continue to remain specified in the tables in paragraph which it will operate. available. Each mobile white space (a)(2)(v) of this section. (5) Each mobile device must access a device must adjust its use of channels (i) If a device operates between two white space database over the internet in accordance with channel availability to determine the available channels and schedule information provided by its defined power levels, it must comply the maximum permitted power for each database for the 48-hour period with the separation distances for the available channel within the geo-fenced beginning at the time the device last higher power level. area in which it will operate. The white accessed the database for a list of (ii) White space devices operating at space database must take into available channels. 40 mW EIRP or less are not required to consideration the mobile device’s (10) Operation of mobile white space meet the adjacent channel separation antenna height above ground level and devices on satellites and aircraft, distances. geo-location uncertainty in determining including unmanned aerial vehicles, is the list of available channels. It must (iii) Fixed white space devices prohibited. also take into consideration any operating at 100 mW EIRP or less per 6 variation in mobile device HAAT ■ 6. Amend § 15.712 by: megahertz across multiple contiguous throughout the geo-fenced area and ■ a. Revising the introductory text and TV channels with at least 3-megahertz must use the highest HAAT within the paragraphs (a)(2) and (3) and (b)(3)(ii) separation between the frequency band geo-fenced area in determining channel and (iii); occupied by the white space device and availability. Operation is permitted only ■ b. Adding paragraph (b)(3)(iv); adjacent TV channels are not required to on channels that are indicated by the ■ c. Revising paragraph (c)(2)(ii); meet the adjacent channel separation database as being available at the same ■ d. Adding paragraph (c)(2)(iii); and distances. power level throughout the entire geo- ■ e. Revising paragraphs (d), (f), (g), (iv) Fixed white space devices may fenced area in which the mobile device (h)(1), and (i)(1). only operate above 4 W EIRP in less will operate. The revisions and additions read as congested areas as defined in § 15.703. (6) Mobile devices must comply with follows: the same separation distances from (v) The following are the tables of protected services in § 15.712 as fixed § 15.712 Interference protection minimum required separation distances devices. requirements. outside the contours of co-channel and (7) Mobile devices may use The separation distances in this adjacent channel stations that white electrically steerable directional section apply to fixed, mobile, and space devices must meet.
TABLE 2 TO PARAGRAPH (a)(2)(v)
Mode II personal/portable white space devices Required separation in kilometers from co-channel digital or analog TV (full service or low power) protected contour 16 dBm 20 dBm (40 mW) (100 mW)
Communicating with Mode II or Fixed device ... 1.3 1.7 Communicating with Mode I device ...... 2.6 3.4
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TABLE 3 TO PARAGRAPH (a)(2)(v)
Fixed white space devices
Antenna height above Required separation in kilometers from co-channel digital or analog TV 1 average terrain of (full service or low power) protected contour unlicensed devices 16 dBm 20 dBm 24 dBm 28 dBm 32 dBm 36 dBm 40 dBm 42 dBm (meters) (40 mW) (100 mW) (250 mW) (625 mW) (1,600 mW) (4 W) (10 W) (16 W)
Less than 3...... 1.3 1.7 2.1 2.7 3.3 4.0 4.5 5.0 3–10 ...... 2.4 3.1 3.8 4.8 6.1 7.3 8.5 9.4 10–30 ...... 4.2 5.1 6.0 7.1 8.9 11.1 13.9 15.3 30–50 ...... 5.4 6.5 7.7 9.2 11.5 14.3 19.1 20.9 50–75 ...... 6.6 7.9 9.4 11.1 13.9 18.0 23.8 26.2 75–100 ...... 7.7 9.2 10.9 12.8 17.2 21.1 27.2 30.1 100–150 ...... 9.4 11.1 13.2 16.5 21.4 25.3 32.3 35.5 150–200 ...... 10.9 12.7 15.8 19.5 24.7 28.5 36.4 39.5 200–250 ...... 12.1 14.3 18.2 22.0 27.3 31.2 39.5 42.5 250–300 ...... 13.9 16.4 20.0 23.9 29.4 35.4 42.1 45.9 300–350 ...... 15.3 17.9 21.7 25.7 31.4 37.6 44.5 48.4 350–400 ...... 16.6 19.3 23.2 27.3 33.3 39.7 46.9 51.0 400–450 ...... 17.6 20.4 24.4 28.7 35.1 41.9 49.4 53.8 450–500 ...... 18.3 21.4 25.5 30.1 36.7 43.7 51.4 55.9 500–550 ...... 18.9 21.8 26.3 31.0 37.9 45.3 53.3 57.5 1 When communicating with Mode I personal/portable white space devices, the required separation distances must be increased beyond the specified distances by 1.3 kilometers if the Mode I device operates at power levels no more than 40 mW EIRP or 1.7 kilometers if the Mode I de- vice operates at power levels above 40 mW EIRP.
TABLE 4 TO PARAGRAPH (a)(2)(v)
Personal/portable white space devices Required separation in kilometers from adjacent channel digital or analog TV (full service or low power) protected contour 20 dBm (100 mW)
Communicating with Mode II or Fixed device ...... 0.1 Communicating with Mode I device ...... 0.2
TABLE 5 TO PARAGRAPH (a)(2)(v)
Fixed white space devices Required separation in kilometers from adjacent channel digital or analog TV Antenna height above average (full service or low power) protected contour 1 terrain of unlicensed devices (meters) 20 dBm 24 dBm 28 dBm 32 dBm 36 dBm 40 dBm 42 dBm (100 mW) (250 mW) (625 mW) (1,600 mW) (4 W) (10 W) (16 W)
Less than 3...... 0.1 0.1 0.1 0.1 0.2 0.2 0.3 3–10 ...... 0.1 0.2 0.2 0.2 0.3 0.4 0.5 10–30 ...... 0.2 0.3 0.3 0.4 0.5 0.6 0.7 30–50 ...... 0.3 0.3 0.4 0.5 0.7 0.8 1.0 50–75 ...... 0.3 0.4 0.5 0.7 0.8 0.9 1.0 75–100 ...... 0.4 0.5 0.6 0.8 1.0 1.1 1.3 100–150 ...... 0.5 0.6 0.8 0.9 1.2 1.3 1.5 150–200 ...... 0.5 0.7 0.9 1.1 1.4 1.5 1.7 200–250 ...... 0.6 0.8 1.0 1.2 1.5 1.7 1.9 250–300 ...... 0.7 0.8 1.0 1.3 1.6 2.1 2.3 300–350 ...... 0.7 0.9 1.1 1.4 1.8 2.2 2.4 350–400 ...... 0.8 1.0 1.2 1.5 1.9 2.4 2.7 400–450 ...... 0.8 1.0 1.3 1.6 2.1 2.6 2.9 450–500 ...... 0.8 1.1 1.4 1.7 2.1 2.7 2.9 500–550 ...... 0.9 1.2 1.5 1.8 2.2 2.8 3.0 1 When communicating with a Mode I personal/portable white space device that operates at power levels above 40 mW EIRP, the required separation distances must be increased beyond the specified distances by 0.1 kilometers.
(3) Fixed white space device antenna (b) * * * 10 watts EIRP may not operate within height. Fixed white space devices must (3) * * * 10.2 kilometers from the receive site for comply with the requirements of (ii) White space devices operating co-channel operation and 2.5 kilometers § 15.709(g). with more than 4 watts EIRP and up to
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from the receive site for adjacent station or low power TV/Class A TV operate within 16.6 kilometers from the channel operation. station. receive site for co-channel operation (c) * * * (iii) White space devices operating and 3.5 kilometers from the receive site (2) * * * for adjacent channel operation. with more than 10 watts EIRP may not (ii) White space devices operating operate within 16.6 kilometers from the with more than 4 watts EIRP and up to (d) PLMRS/CMRS operations. (1) receive site for co-channel operation 10 watts EIRP may not operate within White space devices may not operate at and 3.5 kilometers from the receive site 10.2 km from the receive site for co- distances less than those specified in for adjacent channel operation. channel operation and 2.5 km from the the table in this paragraph (d)(1) from (iv) For purposes of this section, a TV receive site for adjacent channel the coordinates of the metropolitan station being received may include a operation. areas and on the channels listed in full power TV station, TV translator (iii) White space devices operating § 90.303(a) of this chapter. with more than 10 watts EIRP may not
TABLE 6 TO PARAGRAPH (d)(1)
Required separation in kilometers from the areas specified in § 90.303(a) of this chapter White space device transmitter power Co-channel operation Adjacent channel operation Up to 250 meters Greater than 250 Up to 250 meters Greater than 250 HAAT meters HAAT HAAT meters HAAT
Up to 4 watts EIRP ...... 134.0 158.0 131.0 155.4 Greater than 4 watts and up to 10 watts EIRP ...... 136.0 169.8 131.5 166.0 Greater than 10 watts and up to 16 watts EIRP ...... 139.2 171.1 132.2 166.2
(2) White space devices may not (d)(2) from PLMRS/CMRS operations metropolitan areas listed in § 90.303(a) operate at distances less than those authorized by waiver outside of the of this chapter. specified in the table in this paragraph
TABLE 7 TO PARAGRAPH (d)(2)
Required separation in kilometers from operations authorized by waiver outside of the areas specified in § 90.303(a) of this chapter White space device transmitter power Co-channel operation Adjacent channel operation Up to 250 meters Greater than 250 Up to 250 meters Greater than 250 HAAT meters HAAT HAAT meters HAAT
Up to 4 watts EIRP ...... 54.0 78.0 51.0 75.4 Greater than 4 watts and up to 10 watts EIRP ...... 56.0 89.8 51.5 86.0 Greater than 10 watts and up to 16 watts EIRP ...... 59.2 91.1 52.2 86.2
* * * * * White space devices are not required to (1) To determine and provide to a (f) Low power auxiliary services, comply with the separation distances in white space device, upon request, the including wireless microphones. White paragraph (a)(2) from portions of the available channels at the white space space devices are not permitted to protected contours of Canadian or device’s location in the TV bands, the operate within the following distances Mexican TV stations that fall within the 600 MHz duplex gap, the 600 MHz of the coordinates of registered low United States. service band, and 608–614 MHz power auxiliary station sites on the (h) * * * (channel 37). Available channels are registered channels during the (1) Operation of fixed, mobile, and determined based on the interference designated times they are used by low personal/portable white space devices is protection requirements in § 15.712. A power auxiliary stations. prohibited on all channels within 2.4 database must provide fixed, mobile, (1) Fixed white space devices with 10 kilometers at the following locations. and Mode II personal portable white watts EIRP or less: 1 kilometer. * * * * * space devices with channel availability (2) Fixed white space devices with information that includes scheduled (i) * * * greater than 10 watts EIRP: 1.3 changes in channel availability over the kilometers. (1) Fixed white space devices may course of the 48-hour period beginning (3) Personal/portable white space only operate above 4 W EIRP in less at the time the white space devices devices: 400 meters. congested areas as defined in § 15.703. make a recheck contact. In making lists (g) Border areas near Canada and * * * * * of available channels available to a Mexico. Fixed, mobile, and personal/ ■ 7. Amend § 15.713 by revising white space device, the white space portable white space devices shall paragraphs (a)(1), (e)(1), (2), (3), and (6), database shall ensure that all comply with the required separation (h), and (l)(2) to read as follows: communications and interactions distances in paragraph (a)(2) of this between the white space database and section from the protected contours of § 15.713 White space database. the white space device include adequate TV stations in Canada and Mexico. (a) * * * security measures such that
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unauthorized parties cannot access or (2) A personal/portable device FEDERAL COMMUNICATIONS alter the white space database or the list operating in Mode II shall provide the COMMISSION of available channels sent to white database the device’s geographic space devices or otherwise affect the coordinates (latitude and longitude 47 CFR Part 73 database system or white space devices (NAD 83)). [MB Docket No. 20–331; RM–11863; DA 20– in performing their intended functions (3) A mobile device shall provide the 1436; FRS 17286] or in providing adequate interference database with the boundaries of the geo- protections to authorized services fenced area in which it will operate. Television Broadcasting Services; operating in the TV bands, the 600 MHz Alternatively, the boundaries of the geo- Mesa, Arizona duplex gap, the 600 MHz service band, fenced area may be loaded from the and 608–614 MHz (channel 37). In AGENCY: Federal Communications database into the mobile device. addition, a white space database must Commission. also verify that the FCC identifier (FCC * * * * * ACTION: Final rule. ID) of a device seeking access to its (l) * * * SUMMARY: The Media Bureau, Video services is valid; under the requirement (2) A white space database shall verify Division (Bureau) has before it a notice in this paragraph (a)(1) the white space that the FCC identification number of proposed rulemaking issued in database must also verify that the FCC supplied by a fixed, mobile, or personal/ response to a petition for rulemaking ID of a Mode I device provided by a portable white space device is for a filed by Multimedia Holdings fixed or Mode II device is valid. A list certified device and may not provide Corporation (Multimedia), licensee of of devices with valid FCC IDs and the service to an uncertified device. KPNX, channel 12 (NBC), Mesa, FCC IDs of those devices is to be Arizona, requesting the substitution of obtained from the Commission’s * * * * * channel 18 for channel 12 at Mesa in the Equipment Authorization System. ■ 8. Amend § 15.714 by revising DTV Table of Allotments. The Bureau * * * * * paragraph (a) to read as follows: had instituted a freeze on the (e) * * * acceptance of rulemaking petitions by § 15.714 White space database (1) Fixed, mobile, and Mode II white full power television stations requesting administration fees. space devices must provide their channel substitutions in May 2011 and location and required identifying (a) A white space database waived the freeze to consider information to the white space database administrator may charge a fee for Multimedia’s proposal to substitute in accordance with the provisions of provision of lists of available channels channel 18 at Mesa. TEGNA, Inc., filed this subpart. to fixed, mobile, and personal/portable comments in support of the petition (2) Fixed, mobile, and Mode II white reaffirming its commitment to applying space devices shall not transmit unless devices and for registering fixed for channel 18. The Bureau believes the they receive, from the white space devices. This paragraph (a) applies to public interest would be served by the database, a list of available channels and devices that operate in the TV bands, substitution and will permit the station may only transmit on the available the 600 MHz service band, the 600 MHz to better serve its viewers, who have channels on the list provided by the duplex gap, and 608–614 MHz (channel experienced reception problems with database. 37). (3) Fixed and mobile white space * * * * * VHF channel 12. devices register and receive a list of DATES: Effective January 12, 2021. ■ 9. Amend § 15.715 by revising available channels from the database by FOR FURTHER INFORMATION CONTACT: paragraph (e) to read as follows: connecting to the internet, either Joyce Bernstein, Media Bureau, at directly or through another fixed white § 15.715 White space database [email protected], or (202) 418– space device that has a direct administrator. 1647. connection to the internet. Fixed * * * * * SUPPLEMENTARY INFORMATION: This is a devices must also register with the (e) Provide accurate lists of available synopsis of the Commission’s Report database in accordance with paragraph and Order, MB Docket No. 20–331; RM– channels and the corresponding (g) of this section. 11863; DA 20–1436, adopted December maximum permitted power for each * * * * * 2, 2020, and released December 2, 2020. available channel to fixed, mobile, and (6) A fixed device with an antenna The full text of this document is personal/portable white space devices height above ground that exceeds 30 available for download at https:// that submit to it the information meters or an antenna height above www.fcc.gov/edocs. To request materials required under § 15.713(e), (g), and (h) average terrain (HAAT) that exceeds 250 in accessible formats for people with based on their geographic location and meters generally, or 500 meters in less disabilities (braille, large print, provide accurate lists of available congested areas shall not be provided a electronic files, audio format), send an channels and the corresponding list of available channels. The HAAT is email to [email protected] or call the maximum permitted power for each to be calculated using computational Consumer & Governmental Affairs available channel to fixed, mobile, and software employing the methodology in Bureau at 202–418–0530 (voice), 202– § 73.684(d) of this chapter. Mode II devices requesting lists of 418–0432 (tty). available channels for Mode I devices. * * * * * This document does not contain (h) Mode II personal/portable and Database administrators may allow information collection requirements mobile device information to database. prospective operators of white space subject to the Paperwork Reduction Act (1) A mobile device and a personal/ devices to query the database and of 1995, Public Law 104–13. In addition, portable device operating in Mode II determine whether there are vacant therefore, it does not contain any shall provide the database its FCC channels at a particular location. proposed information collection burden Identifier (as required by § 2.926 of this * * * * * ‘‘for small business concerns with fewer chapter) and serial number as assigned [FR Doc. 2020–26706 Filed 1–11–21; 8:45 am] than 25 employees,’’ pursuant to the by the manufacturer. BILLING CODE 6712–01–P Small Business Paperwork Relief Act of
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2002, Public Law 107–198, see 44 U.S.C. specified fishing agreements that meet projected to be reached), and/or vessels 3506(c)(4). Provisions of the Regulatory established criteria. The overall in a specified fishing agreement (if the Flexibility Act of 1980, 5 U.S.C. 601– allocation limit among all territories, allocation limit is projected to be 612, do not apply to this proceeding. however, may not exceed 3,000 t. As an reached). The Commission will send a copy of accountability measure, NMFS will You may find additional background this Report and Order in a report to be monitor, attribute, and restrict (if information on this action in the sent to Congress and the Government necessary) catches of longline-caught preamble to the proposed specifications Accountability Office pursuant to the bigeye tuna, including catches made published on November 9, 2020 (85 FR Congressional Review Act, see 5 U.S.C. under a specified fishing agreement. 71300). Regardless of the final 801(a)(1)(A). These catch limits and accountability specifications, all other existing measures support the long-term List of Subjects in 47 CFR Part 73 management measures will continue to sustainability of fishery resources of the apply in the longline fishery. Television. U.S. Pacific Islands. Comments and Responses Federal Communications Commission. DATES: The final specifications are Thomas Horan, effective January 12, 2021, through On November 9, 2020, NMFS Chief of Staff, Media Bureau. December 31, 2021. The deadline to published the proposed specifications submit a specified fishing agreement and request for public comments (85 FR Final Rule pursuant to 50 CFR 665.819(b)(3) for 71300); the comment period closed on For the reasons discussed in the review is July 12, 2021. November 24, 2020. NMFS received preamble, the Federal Communications ADDRESSES: Copies of the Fishery comments on the proposed Commission amends 47 CFR part 73 as Ecosystem Plan for Pelagic Fisheries of specifications from one person. NMFS follows: the Western Pacific (FEP) are available considered these comments in making from the Western Pacific Fishery its decision on this action, and responds PART 73—RADIO BROADCAST Management Council (Council), 1164 below. We made no changes to the final SERVICES Bishop St., Suite 1400, Honolulu, HI specifications. 96813, tel 808–522–8220, or NMFS specifically invited public ■ 1. The authority citation for part 73 www.wpcouncil.org. comments on the effect of the proposed continues to read as follows: Pursuant to the National action on cultural fishing in American Authority: 47 U.S.C. 154, 155, 301, 303, Environmental Policy Act, the Council Samoa; we received no relevant 307, 309, 310, 334, 336, 339. and NMFS prepared environmental comments on this issue. analyses that support this action, § 73.622 [Amended] Comment 1: Catch limits should be available from http:// reduced because the styrofoam and ■ 2. Amend § 73.622(i), the Post- www.regulations.gov/ plastic, with chemicals in them, used in Transition Table of DTV Allotments #!docketDetail;D=NOAA-NMFS-2020- longline fishing gear pose controversial under Arizona, by removing channel 12 0010. implications for ecosystems, fish, and and adding channel 18 at Mesa. FOR FURTHER INFORMATION CONTACT: the food chain. Mitigation efforts should [FR Doc. 2020–27981 Filed 1–11–21; 8:45 am] Lynn Rassel, NMFS PIRO Sustainable be made to protect consumers from BILLING CODE 6712–01–P Fisheries, 808–725–5184. harmful chemicals. SUPPLEMENTARY INFORMATION: NMFS is Response: NMFS has no information specifying a 2021 catch limit of 2,000 t that longline fishing, including the gear DEPARTMENT OF COMMERCE of longline-caught bigeye tuna for each used, results in significant adverse U.S. Pacific territory. NMFS is also impacts to the marine habitat or food National Oceanic and Atmospheric authorizing each U.S. Pacific territory to chain. Federal laws and regulations Administration allocate up to 1,500 t of its 2,000 t strictly regulate the disposal of waste in bigeye tuna limit, not to exceed a 3,000 ocean waters. NMFS also notes that 50 CFR Part 665 t total annual allocation limit among all fisheries observers collect information [Docket No. 210106–0003] the territories, to U.S. longline fishing on the frequency, location and vessels permitted to fish under the FEP. composition of marine debris. During RTID 0648–XP014 A specified fishing agreement with the 2008–2016, NMFS observers on Hawaii applicable territory must identify those vessels reported 1,326 marine debris Pacific Island Pelagic Fisheries; 2021 vessels. items intercepted by longlines. While U.S. Territorial Longline Bigeye Tuna NMFS will monitor catches of derelict fishing gear made up most of Catch Limits longline-caught bigeye tuna by the the debris, most (52 percent) was AGENCY: National Marine Fisheries longline fisheries of each U.S Pacific netting, and ropes and other types of Service (NMFS), National Oceanic and territory, including catches made by lines (27 percent). Floats and Atmospheric Administration (NOAA), U.S. longline vessels operating under monofilament fishing line used in Commerce. specified fishing agreements. The longline fishing made up less than 9 ACTION: Final specifications. criteria that a specified fishing percent of the debris. When longline agreement must meet, and the process fishermen snag marine debris in their SUMMARY: NMFS specifies a 2021 limit for attributing longline-caught bigeye gear, they typically bring it on board of 2,000 metric tons (t) of longline- tuna, will follow the procedures in 50 and disposed of in port. This prevents caught bigeye tuna for each U.S. Pacific CFR 665.819. When NMFS projects that future entanglement with sea life and territory (American Samoa, Guam, and the fishery will reach a territorial catch entry into the food chain. the Commonwealth of the Northern or allocation limit, NMFS will, as an Comment 2: Longline gear poses a Mariana Islands (CNMI), the territories). accountability measure, prohibit the threat to seabirds, most notably NMFS will allow each territory to catch and retention of longline-caught endangered albatross, that dive for allocate up to 1,500 t in 2021 to U.S. bigeye tuna by vessels in the applicable baited lines and are hooked or entangled longline fishing vessels through territory (if the territorial catch limit is and drowned.
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Responses: The short-tailed albatross the availability of fish, other The AA has also determined that (Phoebastria albatrus) is the only environmental effects, or health effects. because this rule relieves a restriction, endangered albatross in the fishing area. Comment 4: Longline bigeye tuna it is exempt from the otherwise- None has ever been observed or catch limits should be increased from applicable requirement of a 30-day reported interacting with Hawaii previous years to address observed delayed effectiveness provision, longline fisheries. The current biological impacts of overfishing such as fewer pursuant to 5 U.S.C. 553(d)(1). This rule opinion prepared under Section 7 of the fish and smaller fish, shorter fishing allows U.S. vessels identified in a valid Endangered Species Act concluded that seasons, bizarre developments in their specified fishing agreement to continue Hawaii longline fisheries are not likely seasonal appearance and dispersal, and fishing in the WCPO even if NMFS to jeopardize the continued existence of fewer overall species seen. closes the longline fishery for bigeye short-tailed albatross. Response: In August 2020, the tuna. Consistent with Conservation and Western and Central Pacific Fisheries NMFS acknowledges that seabirds are Management Measure 2018–01 adopted Commission (WCPFC) completed the by the WCPFC at its December 2018 sometimes hooked and entangled in most recent assessment of the western longline gear, and we have implemented meeting, the bigeye tuna catch limit for and central Pacific Ocean (WCPO) U.S. longline fisheries in the western measures that significantly reduce bigeye tuna stock. The assessment seabird bycatch. Current mitigation and central Pacific in 2021 is 3,554 t. showed that the stock remains healthy, When NMFS projects the limit will be methods include, but are not limited to, is not subject to overfishing and is not bird-scaring curtains, weights to quickly reached, NMFS must close the fishery overfished. NMFS is satisfied that the for bigeye tuna in the WCPO. sink hooks below birds’ reach, dying catch limits are consistent with the bait blue so it is less visible to birds, safe Regulations at 50 CFR 665.819 require conservation and management needs of NMFS to begin attributing longline seabird handling techniques, and bigeye tuna in the WCPO, and that this strategically discharging spent bait and caught bigeye tuna to the U.S. territory action would not result in a change in to which a fishing agreement applies fish offal to distract birds from lines and stock status. hooks. These mitigation methods are seven days before the date NMFS Comment 5: Mitigation efforts should projects the fishery will reach the 70–90 percent effective at reducing be made to ensure the sustainability of WCPO limit, or upon the effective date seabird bycatch. Nonetheless, NMFS has fishing practices and to protect marine of the agreement, whichever is later. noticed an increasing trend in seabird species. interaction rates and is currently Response: See responses to comments The Chief Counsel for Regulation of developing and testing new mitigation 1, 2, and 4 regarding efforts to reduce the Department of Commerce certified methods, including the potential use of marine debris, protect seabirds, and the to the Chief Counsel for Advocacy of the tori lines, to further protect seabirds. scientific information NMFS considers Small Business Administration at the Comment 3: While NMFS considered when establishing catch limits. In proposed rule stage that this action economic impacts on smaller fisheries, accordance with the Endangered would not have a significant economic the effects of catch limits on ‘‘small Species Act and Marine Mammal impact on a substantial number of small entities’’ such as minority, ethnic, and/ Protection Act, fisheries are managed entities. NMFS published the factual or native populations and the under a suite of requirements designed basis for the certification in the biodiversity of affected fishing to reduce the likelihood and severity of proposed rule, and we do not repeat it territories were not explicitly effects of unintentional and incidental here. NMFS received no comments considered. interactions with protected species, and relevant to this certification; as a result, that allow monitoring of interactions. a final regulatory flexibility analysis is Responses: Although these NMFS continually evaluates monitoring not required, and none has been populations were not specifically and scientific information to determine prepared. addressed in the Regulatory Flexibility whether they change our understanding Act analysis of the effect of this rule on This action is exempt from review of the potential effects of our under Executive Order 12866. small entities, they were considered in management decisions and prepares the environmental assessment (EA) and supplemental environmental analyses, This final rule contains no supplemental environmental assessment as appropriate. information collection requirements (SEA) under Executive Order 12898 under the Paperwork Reduction Act of (E.O. 12898), ‘‘Federal Actions to Classification 1995. Address Environmental Justice in Pursuant to section 304(b)(1)(A) of the Authority: 16 U.S.C. 1801, et seq. Minority Populations and Low-Income Magnuson-Stevens Fishery Populations.’’ As described in the EA Conservation and Management Act Dated: January 6, 2021. and SEA, NMFS does not expect the (Magnuson-Stevens Act), the NMFS Samuel D. Rauch III, proposed action to have large effects to Assistant Administrator (AA) has Deputy Assistant Administrator for the environment that would result in a determined that this final rule is Regulatory Programs, National Marine disproportionately large and adverse consistent with the FEP, other Fisheries Service. effect on minority or low-income provisions of the Magnuson-Stevens [FR Doc. 2021–00391 Filed 1–11–21; 8:45 am] populations including with respect to Act, and other applicable laws. BILLING CODE 3510–22–P
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Proposed Rules Federal Register Vol. 86, No. 7
Tuesday, January 12, 2021
This section of the FEDERAL REGISTER bank service provider would be required • Mail: Chief Counsel’s Office, contains notices to the public of the proposed to notify at least two individuals at Attention: Comment Processing, Office issuance of rules and regulations. The affected banking organization customers of the Comptroller of the Currency, 400 purpose of these notices is to give interested immediately after the bank service 7th Street SW, Suite 3E–218, persons an opportunity to participate in the provider experiences a computer- Washington, DC 20219. rule making prior to the adoption of the final • rules. security incident that it believes in good Hand Delivery/Courier: 400 7th faith could disrupt, degrade, or impair Street SW, Suite 3E–218, Washington, services provided for four or more DC 20219. DEPARTMENT OF THE TREASURY hours. Instructions: You must include ‘‘OCC’’ as the agency name and ‘‘Docket DATES: Comments must be received by Office of the Comptroller of the ID OCC–2020–0038’’ in your comment. April 12, 2021. Currency In general, the OCC will enter all ADDRESSES: You may submit comments, comments received into the docket and 12 CFR Part 53 identified by RIN (1557–AF02 (OCC), publish the comments on the 7100–AF (Board), 3064–AF59 (FDIC)), [Docket ID OCC–2020–0038] Regulations.gov website without by any of the following methods: change, including any business or RIN 1557–AF02 OCC: personal information provided such as Commenters are encouraged to submit name and address information, email FEDERAL RESERVE SYSTEM comments through the Federal addresses, or phone numbers. eRulemaking Portal, if possible. Please Comments received, including 12 CFR Part 225 use the title ‘‘Computer-Security attachments and other supporting [Docket No. R–1736] Incident Notification Requirements for materials, are part of the public record Banking Organizations and Their Bank and subject to public disclosure. Do not RIN 7100–AG06 Service Providers’’ to facilitate the include any information in your organization and distribution of the FEDERAL DEPOSIT INSURANCE comment or supporting materials that comments. You may submit comments CORPORATION you consider confidential or by any of the following methods: inappropriate for public disclosure. • 12 CFR Part 304 Federal eRulemaking Portal— Public Inspection: You may review Regulations.gov Classic or comments and other related materials RIN 3064–AF59 Regulations.gov Beta: that pertain to this rulemaking action by Æ Regulations.gov Classic: Go to any of the following methods: Computer-Security Incident https://www.regulations.gov/. Enter • Viewing Comments Electronically— Notification Requirements for Banking ‘‘Docket ID OCC–2020–0038’’ in the Regulations.gov Classic or Organizations and Their Bank Service Search Box and click ‘‘Search.’’ Click on Regulations.gov Beta: Providers ‘‘Comment Now’’ to submit public Æ Regulations.gov Classic: Go to AGENCY: The Office of the Comptroller comments. For help with submitting https://www.regulations.gov/. Enter of the Currency (OCC), Treasury; the effective comments please click on ‘‘Docket ID OCC–2020–0038’’ in the Board of Governors of the Federal ‘‘View Commenter’s Checklist.’’ Click Search box and click ‘‘Search.’’ Click on Reserve System (Board); and the Federal on the ‘‘Help’’ tab on the ‘‘Open Docket Folder’’ on the right side Deposit Insurance Corporation (FDIC). Regulations.gov home page to get of the screen. Comments and supporting ACTION: Notice of proposed rulemaking. information on using Regulations.gov, materials can be viewed and filtered by including instructions for submitting clicking on ‘‘View all documents and SUMMARY: The OCC, Board, and FDIC public comments. comments in this docket’’ and then (together, the agencies) invite comment Æ Regulations.gov Beta: Go to https:// using the filtering tools on the left side on a notice of proposed rulemaking beta.regulations.gov/ or click ‘‘Visit of the screen. Click on the ‘‘Help’’ tab (proposed rule or proposal) that would New Regulations.gov Site’’ from the on the Regulations.gov home page to get require a banking organization to Regulations.gov Classic homepage. information on using Regulations.gov. provide its primary federal regulator Enter ‘‘Docket ID OCC–2020–0038’’ in The docket may be viewed after the with prompt notification of any the Search Box and click ‘‘Search.’’ close of the comment period in the same ‘‘computer-security incident’’ that rises Public comments can be submitted via manner as during the comment period. to the level of a ‘‘notification incident.’’ the ‘‘Comment’’ box below the Æ Regulations.gov Beta: Go to https:// The proposed rule would require such displayed document information or by beta.regulations.gov/ or click ‘‘Visit notification upon the occurrence of a clicking on the document title and then New Regulations.gov Site’’ from the notification incident as soon as possible clicking the ‘‘Comment’’ box on the top- Regulations.gov Classic homepage. and no later than 36 hours after the left side of the screen. For help with Enter ‘‘Docket ID OCC–2020–0038’’ in banking organization believes in good submitting effective comments please the Search Box and click ‘‘Search.’’ faith that the incident occurred. This click on ‘‘Commenter’s Checklist.’’ For Click on the ‘‘Comments’’ tab. notification requirement is intended to assistance with the Regulations.gov Beta Comments can be viewed and filtered serve as an early alert to a banking site, please call (877) 378–5457 (toll by clicking on the ‘‘Sort By’’ drop-down organization’s primary federal regulator free) or (703) 454–9859 Monday–Friday, on the right side of the screen or the and is not intended to provide an 9 a.m.–5 p.m. ET or email regulations@ ‘‘Refine Results’’ options on the left side assessment of the incident. Moreover, a erulemakinghelpdesk.com. of the screen. Supporting materials can
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be viewed by clicking on the station at the rear of the 550 17th Street software to target weaknesses in the ‘‘Documents’’ tab and filtered by NW, building (located on F Street) on computers or networks of banking clicking on the ‘‘Sort By’’ drop-down on business days between 7:00 a.m. and organizations supervised by the the right side of the screen or the 5:00 p.m. agencies.2 Some cyberattacks have the ‘‘Refine Results’’ options on the left side Public Inspection: All comments potential to alter, delete, or otherwise of the screen.’’ For assistance with the received will be posted without change render a banking organization’s data and Regulations.gov Beta site, please call to https://www.fdic.gov/regulations/ systems unusable. Depending on the (877) 378–5457 (toll free) or (703) 454– laws/federal/—including any personal scope of an incident, a banking 9859 Monday–Friday, 9 a.m.–5 p.m. ET information provided—for public organization’s data and system backups or email regulations@ inspection. Paper copies of public may also be affected, which can severely erulemakinghelpdesk.com. The docket comments may be ordered from the affect the ability of the banking may be viewed after the close of the FDIC Public Information Center, 3501 organization to recover operations. The comment period in the same manner as North Fairfax Drive, Room E–1002, Office of the Comptroller of the during the comment period. Arlington, VA 22226 or by telephone at Currency (OCC), Board of Governors of Board: (877) 275–3342 or (703) 562–2200. the Federal Reserve System (Board), and When submitting comments, please FOR FURTHER INFORMATION CONTACT: the Federal Deposit Insurance consider submitting your comments by OCC: Patrick Kelly, Director, Critical Corporation (FDIC) (collectively, the email or fax because paper mail in the Infrastructure Policy, (202) 649–5519, agencies) are issuing a notice of Washington, DC area and at the Board Jennifer Slagle Peck, Counsel, (202) proposed rulemaking (the proposal or may be subject to delay. You may 649–5490, or Priscilla Benner, Senior proposed rule) that would require a submit comments, identified by Docket Attorney, Chief Counsel’s Office, (202) banking organization to notify its No. R–1736 RIN 7100–AG06, by any of 649–5490, or persons who are hearing primary federal regulator when the the following methods: impaired, TTY, (202) 649–5597, Office banking organization believes in good • Agency Website: http:// of the Comptroller of the Currency, 400 faith that a significant ‘‘computer- www.federalreserve.gov. Follow the 7th Street SW, Washington, DC 20219. security incident’’ has occurred.3 This instructions for submitting comments at Board: Nida Davis, Associate Director, notification requirement is intended to http://www.federalreserve.gov/ (202) 872–4981, Julia Philipp, Lead serve as an early alert to a banking generalinfo/foia/RevisedRegs.cfm. Financial Institution Cybersecurity organization’s primary federal regulator • Email: regs.comments@ Policy Analyst, (202) 452–3940, Don and is not intended to include an federalreserve.gov. Include docket and Peterson, Supervisory Cybersecurity assessment of the incident. RIN numbers in the subject line of the Analyst, (202) 973–5059, Systems and The agencies also recognize that a message. Operational Resiliency Policy, of the computer-security incident may be the • FAX: (202) 452–3819 or (202) 452– Supervision and Regulation Division; result of non-malicious failure of 3102. Jay Schwarz, Special Counsel, (202) hardware, software errors, actions of • Mail: Ann E. Misback, Secretary, 452–2970, Claudia Von Pervieux, Senior staff managing these computer Board of Governors of the Federal Counsel (202) 452–2552, Legal Division, resources, or potentially criminal in Reserve System, 20th Street and Board of Governors of the Federal nature. Banking organizations that Constitution Avenue NW, Washington, Reserve System, 20th and C Streets NW, experience a computer-security incident DC 20551. Washington, DC 20551. For the hearing that may be criminal in nature are All public comments will be made impaired only, Telecommunications expected to contact relevant law available on the Board’s website at: Device for the Deaf (TDD) users may enforcement or security agencies, as http://www.federalreserve.gov/ contact (202) 263–4869. appropriate, after the incident occurs.4 generalinfo/foia/RevisedRegs.cfm as FDIC: Robert C. Drozdowski, Special Moreover, banking organizations have submitted, unless modified for technical Assistant to the Deputy Director (202) become increasingly reliant on bank reasons or to remove personally 898–3971, [email protected], and identifiable information at the Martin D. Henning, Deputy Director 2 See Cybercriminals and Fraudsters: How Bad commenter’s request. Accordingly, (202) 898–3699, [email protected], Actors Are Exploiting the Financial System During comments will not be edited to remove the COVID–19 Pandemic: Virtual Hearing Before Division of Risk Management the Subcommittee on National Security, any identifying or contact information. Supervision; Graham N. Rehrig, Senior International Development and Monetary Policy of Public comments also may be viewed Attorney (703) 314–3401, grehrig@ the U.S. House Committee on Financial Services electronically or in paper in 146, 1709 fdic.gov, and John Dorsey, Acting 116th Congress (2020) (written statement of Tom New York Avenue NW, Washington, DC Kellerman, Head of Cybersecurity Strategy, Supervisory Counsel (202) 898–3807, VMware, Inc.), available at https:// 20006, between 9:00 a.m. and 5:00 p.m. [email protected], Legal Division, financialservices.house.gov/uploadedfiles/hhrg- on weekdays. Federal Deposit Insurance Corporation, 116-ba10-wstate-kellermannt-20200616.pdf. FDIC: 3 As defined by the proposed rule, a computer- • 550 17th Street NW, Washington, DC Agency Website: https:// 20429. security incident is an occurrence that results in www.fdic.gov/regulations/laws/federal/. actual or potential harm to the confidentiality, SUPPLEMENTARY INFORMATION: integrity, or availability of an information system or Follow the instructions for submitting the information that the system processes, stores, or comments on the Agency website. I. Introduction transmits; or constitutes a violation or imminent • Email: [email protected]. Include threat of violation of security policies, security Cyberattacks reported to federal law RIN 3064–AF59 in the subject line of procedures, or acceptable use policies. To promote enforcement have increased in uniformity of terms, the agencies have sought to the message. 1 align this term to the fullest extent possible with an • Mail: James P. Sheesley, Assistant frequency and severity in recent years. These types of attacks may use existing definition from the National Institute of Executive Secretary, Attention: Standards and Technology (NIST). See NIST, Comments, Federal Deposit Insurance destructive malware or other malicious Computer Security Resource Center, Glossary (last Corporation, 550 17th Street NW, accessed Sept. 20, 2020), available at https:// 1 csrc.nist.gov/glossary/term/Dictionary. Washington, DC 20429. See Federal Bureau of Investigation, internet • Crime Complaint Center, 2019 internet Crime 4 For example, a local FBI field office. See FBI, Hand Delivery/Courier: Comments Report at 5 (last accessed Sept. 4, 2020), available Contact Us, Field Offices, https://www.fbi.gov/ may be hand delivered to the guard at https://pdf.ic3.gov/2019_IC3Report.pdf. contact-us/field-offices (last accessed Dec. 9, 2020).
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service providers to provide essential the better they can assess the extent of security compromises; however, these technology-related products and the threat and take appropriate action; existing requirements do not provide services. Service providers that provide • Based on the agencies’ broad the agencies with sufficiently timely services described in the Bank Service supervisory experiences, they may be information about every notification Company Act (BSCA) 5 to banking able to provide information to a banking incident that would be captured by the organizations (bank service providers) 6 organization that may not have proposed rule. also are vulnerable to cyber threats, previously faced a particular type of Under the reporting requirements of which have the potential to disrupt, notification incident; the Bank Secrecy Act (BSA) and its degrade, or impair the provision of • The agencies would be better able implementing regulations, certain banking services to their banking to conduct analyses across supervised banking organizations are required to organization customers. Therefore, the banking organizations to improve file SARs when they detect a known or proposed rule would require a bank guidance, adjust supervisory programs, suspected criminal violation of federal service provider to notify affected and provide information to the industry law or a suspicious transaction related banking organization customers to help banking organizations protect to a money-laundering activity.10 While immediately after the bank service themselves; and the agencies monitor SARs regularly, provider experiences a computer- • Receiving notice would enable the SARs serve a different purpose from this security incident that it believes in good primary federal regulator to facilitate proposed incident notification faith could disrupt, degrade, or impair and approve requests from banking requirement and do not require the provision of services subject to the organizations for assistance through the reporting of every incident captured by BSCA. Given the rule’s purposes of U.S. Treasury Office of Cybersecurity the proposed definition of a notification ensuring that banking organizations and Critical Infrastructure Protection incident. Moreover, the 30-calendar-day provide timely notice of significant (OCCIP).8 reporting requirement under the BSA computer-security incident disruptions As discussed below, current reporting framework (with an additional 30 to the agencies, the agencies believe that requirements related to cyber incidents calendar days provided in certain bank service providers should contact at are neither designed nor intended to circumstances) does not provide the least two individuals at affected banking provide timely information to regulators agencies with sufficiently timely notice organizations to help ensure that notice regarding such incidents. of reported incidents. has been received. Additionally, the Interagency The agencies believe that it is II. Review of Existing Regulations and Guidance on Response Programs for important that the primary federal Guidance Unauthorized Access to Customer regulator of a banking organization be The agencies considered whether the Information and Customer Notice, notified as soon as possible of a information that would be provided which interprets section 501(b) of the significant computer-security incident under the proposed rule could be Gramm-Leach-Bliley Act (GLBA) and that could jeopardize the viability of the obtained through existing reporting the Interagency Guidelines Establishing operations of an individual banking standards. Currently, banking Information Security Standards, organization, result in customers being organizations may be required to report generally sets forth the supervisory unable to access their deposit and other certain instances of disruptive cyber- expectation that a banking organization accounts, or impact the stability of the events and cyber-crimes through the notify its primary federal regulator ‘‘as financial sector.7 The proposed rule filing of Suspicious Activity Reports soon as possible’’ if the organization refers to these significant computer- (SARs), and they are generally expected becomes aware of an incident involving security incidents as ‘‘notification to notify their primary federal regulator unauthorized access to, or use of, 11 incidents.’’ Knowing about and ‘‘as soon as possible’’ when they become sensitive customer information. While responding to notification incidents ‘‘aware of an incident involving this may provide the agencies with affecting banking organizations is unauthorized access to or use of notice of certain computer-security important to the agencies’ missions for sensitive customer information.’’ 9 incidents, this standard is too narrow in a variety of reasons, including the These reporting standards provide the scope to address all relevant computer- following: agencies with valuable insight regarding security incidents that would be • The receipt of notification-incident cyber-related events and information- covered by the proposed rule. In information may give the agencies particular, the GLBA notification earlier awareness of emerging threats to 8 OCCIP coordinates with U.S. Government standard focuses on incidents that result individual banking organizations and, agencies to provide agreed-upon assistance to in the compromise of sensitive customer potentially, to the broader financial banking and other financial services sector information and, therefore, does not organizations on computer-incident response and include the reporting of incidents that system; recovery efforts. These activities may include • An incident may so severely impact providing remote or in-person technical support to disrupt operations but do not a banking organization that it can no an organization experiencing a significant cyber compromise sensitive customer longer support its customers, and the event to protect assets, mitigate vulnerabilities, information. recover and restore services, identify other entities Finally, the BSCA requires a banking incident could impact the safety and at risk, and assess potential risk to the broader soundness of the banking organization, community. The Federal Financial Institutions organization to notify the appropriate leading to its failure. In these cases, the Examination Council’s Cybersecurity Resource Federal banking agency of the existence sooner the agencies know of the event, Guide for Financial Institutions (Oct. 2018) of service relationships within 30 days identifies additional information available to after the making of such service banking organizations. Available at https:// 5 12 U.S.C. 1861–67. www.ffiec.gov/press/pdf/FFIEC%20 contracts or the performance of the 6 Bank service providers would include both bank Cybersecurity%20Resource%20Guide%20for%20 service companies and third-party providers under Financial%20Institutions.pdf (last accessed Nov. 10 See, e.g., 31 U.S.C. 5311 et seq.; 31 CFR subtitle the BSCA. 29, 2020). B, chapter X. 7 These computer-security incidents may include 9 See 12 CFR part 30, appendix B, supp. A (OCC); 11 See 15 U.S.C. 6801; 12 CFR part 30, appendix major computer-system failures, cyber-related 12 CFR part 208, appendix D–2, supp. A, 12 CFR B, supp. A (OCC); 12 CFR part 208, appendix interruptions, such as coordinated denial of service 211.5(l), 12 CFR part 225, appendix F, supp. A D–2, supp. A, 12 CFR 211.5(l), 12 CFR part 225, and ransomware attacks, or other types of (Board); 12 CFR part 364, appendix B, supp. A appendix F, supp. A (Board); 12 CFR part 364, significant operational interruptions. (FDIC) (italics omitted). appendix B, supp. A (FDIC).
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service, whichever occurs first.12 functions and support, and would result in The proposed rule would apply to the However, the BSCA has no notification a material loss of revenue, profit, or franchise following banking organizations: value; or requirements if the service is disrupted. For the OCC, ‘‘banking organizations’’ those operations of a banking organization, would include national banks, federal III. The Proposal including associated services, functions and savings associations, and federal branches support, as applicable, the failure or The proposed rule would establish and agencies. discontinuance of which would pose a threat two primary requirements, which would For the Board, ‘‘banking organizations’’ to the financial stability of the United States. promote the safety and soundness of would include all U.S. bank holding banking organizations and be consistent Second, the proposed rule would companies and savings and loan holding with the agencies’ authorities to require a bank service provider of a companies; state member banks; the U.S. supervise these entities.13 First, the service described under the BSCA to operations of foreign banking organizations; proposed rule would require a banking notify at least two individuals at Edge and agreement corporations. organization to notify the agencies of a For the FDIC, ‘‘banking organizations’’ affected banking organization customers would include all insured state nonmember notification incident. In particular, a immediately after experiencing a banks, insured state-licensed branches of banking organization would be required computer-security incident that it foreign banks, and state savings associations. to notify its primary federal regulator of believes in good faith could disrupt, To clarify, not all ‘‘computer-security any computer-security incident that degrade, or impair services provided incidents’’ require a banking rises to the level of a notification subject to the BSCA for four or more organization to notify its primary federal incident as soon as possible and no later hours. As technological developments regulator; only those that rise to the than 36 hours after the banking have increased in pace, banks have level of ‘‘notification incidents’’ require organization believes in good faith that become increasingly reliant on bank notification. Other computer-security a notification incident has occurred. service providers to provide essential incidents, such as a limited distributed The agencies do not expect that a technology-related products and denial of service attack that is promptly banking organization would typically be services. The impact of computer- and successfully managed by a banking able to determine that a notification security incidents at bank service organization, would not require notice incident has occurred immediately providers can flow through to their to the appropriate agency. upon becoming aware of a computer- banking organization customers. The following is a non-exhaustive list security incident. Rather, the agencies Therefore, in order for a banking of events that would be considered anticipate that a banking organization organization to be able to provide ‘‘notification incidents’’ under the would take a reasonable amount of time relevant notifications to its primary proposed rule: to determine that it has experienced a federal regulator in a timely manner, it notification incident. In this context, the 1. Large-scale distributed denial of needs to receive prompt notification of service attacks that disrupt customer agencies recognize banking computer-security incidents from its organizations may not come to a good account access for an extended period of service providers. time (e.g., more than 4 hours); faith belief that a notification incident Bank services that are subject to the has occurred outside of normal business 2. A bank service provider that is used BSCA include ‘‘check and deposit by a banking organization for its core hours. Only once the banking sorting and posting, computation and organization has made such a banking platform to operate business posting of interest and other credits and applications is experiencing widespread determination would the requirement to charges, preparation and mailing of report within 36 hours begin. system outages and recovery time is checks, statements, notices, and similar undeterminable; The proposed rule would define a items, or any other clerical, computer-security incident as an 3. A failed system upgrade or change bookkeeping, accounting, statistical, or that results in widespread user outages occurrence that (i) results in actual or similar functions performed for a potential harm to the confidentiality, for customers and bank employees; depository institution,’’ as well as 4. An unrecoverable system failure integrity, or availability of an components that underlie these information system or the information that results in activation of a banking activities.14 Other services that are organization’s business continuity or the system processes, stores, or subject to the BSCA include data transmits; or (ii) constitutes a violation disaster recovery plan; processing, back office services, and 5. A computer hacking incident that or imminent threat of violation of activities related to credit extensions, as security policies, security procedures, or disables banking operations for an well as components that underlie these extended period of time; acceptable use policies. The proposed activities.15 rule would define a notification incident 6. Malware propagating on a banking organization’s network that requires the as a computer-security incident that a 14 banking organization believes in good See 12 U.S.C. 1863–64. banking organization to disengage all 15 See 12 U.S.C. 1864(f). Under the BSCA, such faith could materially disrupt, degrade, internet-based network connections; services must be permissible for bank holding and or impair— companies under section 4(c)(8) of the Bank Holding Company Act of 1956, as amended, and 7. A ransom malware attack that the ability of the banking organization to § 225.28 of the Board’s Regulation Y. 12 U.S.C. 1841 encrypts a core banking system or carry out banking operations, activities, or et seq.; 12 CFR 225.28. Activities permissible under backup data. processes, or deliver banking products and § 225.28 are: (1) Extending credit and servicing services to a material portion of its customer loans; (2) activities related to extending credit; (3) The agencies expect that banking base, in the ordinary course of business; leasing personal or real property; (4) operating organizations would consider whether any business line of a banking organization, nonbank depository institutions; (5) trust company other significant computer-security including associated operations, services, functions; (6) financial and investment advisory incidents they experience, beyond those activities; (7) agency transactional services for customer investments; (8) investment transactions listed above, constitute notification 12 12 U.S.C. 1867(c)(2). as principal; (9) management consulting and incidents for purposes of notifying the 13 See 12 U.S.C. 1, 93a, 161, 481, 1463, 1464, counseling activities; (10) support services; (11) appropriate agency. 1861–1867, and 3102 (OCC); 12 U.S.C. 321–338a, insurance agency and underwriting; (12) 1467a(g), 1818(b), 1844(b), 1861–1867, 3101 et seq., community development activities; (13) money The definition of ‘‘notification and 5365 (Board); 12 U.S.C. 1463, 1811, 1813, 1817, orders, savings bonds, and traveler’s checks; and incident’’ includes language that is 1819, and 1861–1867 (FDIC). (14) data processing. 12 CFR 225.28. consistent with the ‘‘core business line’’
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and ‘‘critical operation’’ definitions about which it must notify its primary computer-security incident that it included in the resolution-planning rule federal regulator. An entity that is not believes in good faith could disrupt, issued by the Board and FDIC under itself a banking organization, but that is degrade, or impair services provided section 165(d) of the Dodd-Frank Act.16 a subsidiary of a banking organization, subject to the BSCA for four or more In particular, the second prong of the would not have its own separate hours. A bank service provider would notification incident definition notification requirement under this not be expected to assess whether the identifies incidents that would impact proposed rule. Instead, if a computer- incident rises to the level of a core business lines, and the third prong security incident were to occur at a non- notification incident for a banking identifies incidents that would impact bank subsidiary of a banking organization customer. The banking critical operations. Banking organization, the parent banking organization would be responsible for organizations subject to the Resolution organization would be expected to making that determination because a Planning Rule can use the core business assess whether the incident was a bank service provider may not know if lines and critical operations identified notification incident, and if so, it would the services provided are critical to the in their resolution plans 17 to identify be required to notify its primary federal banking organization’s operations. If, incidents that should be reported under regulator. after receiving such notice from a bank the second and third prongs of the The proposed notification service provider, the banking proposed rule. requirement is intended to serve as an organization determines that a The agencies do not expect banking early alert to a banking organization’s notification incident has occurred, the organizations that are not subject to the primary federal regulator about a banking organization would be required Resolution Planning Rule to identify notification incident and is not intended to notify its primary federal regulator in ‘‘core business lines’’ or ‘‘critical to include an assessment of the accordance with this proposed rule. operations,’’ or to develop procedures to incident. As such, no specific Typically, existing bank service determine whether they engage in any information is required for the notice, provider agreements that support operations, the failure or discontinuance and the proposed rule does not include operations that are critical to a banking of which would pose a threat to the any prescribed reporting forms or organization customer require financial stability of the United States. templates to minimize reporting burden. notification to the customer as soon as However, the agencies do expect all The agencies believe that in most cases possible in the event of a material banking organizations to have a banking organizations would eventually incident during the normal course of sufficient understanding of their lines of notify their primary regulator when an business, and the agencies believe that business to be able to notify the event occurs that meets the high the procedures in place to do so will appropriate agency of notification threshold of a notification incident and generally include some redundancy to incidents that could result in a material that this proposed rule is formalizing a ensure that notification occurs. loss of revenue, profit, or franchise process that the agencies’ experience Under the proposal, the agencies value to the banking organization. suggest already exists. The agencies would expect bank service providers to If a banking organization is a recognize that a banking organization continue to provide a banking subsidiary of another banking may be working expeditiously to resolve organization customer with prompt organization that is also subject to the the notification incident—either directly notification of these material incidents. notification requirements of this or through a bank service provider—at The agencies believe that it is practical proposed rule, the agencies expect the the time it would be expected to notify for a bank service provider to subsidiary banking organization to alert its primary federal regulator. The immediately notify at least two its parent banking organization as soon agencies believe, however, that 36 hours individuals at their affected banking as possible of the notification incident, is a reasonable amount of time after a organization customers after in addition to notifying its primary banking organization believes in good experiencing a computer-security federal regulator. The parent banking faith that a notification incident has incident of the severity described in the organization would need to make a occurred to notify its primary federal proposed rule because the notice would separate assessment of whether it, too, regulator, particularly because the not need to include an assessment of the has suffered a notification incident notice would not need to include an incident, and the agencies observe that assessment of the incident. The agencies there are effective automated systems 16 Section 165(d) of the Dodd-Frank Act and the expect only that banking organizations for doing so currently. The agencies resolution-plan rule, 12 CFR parts 363 and 381 (the share general information about what is expect only that bank service providers Resolution Planning Rule), require certain financial companies to report periodically to the FDIC and known at the time. Moreover, the notice would make a best effort to share the Board their plans for rapid and orderly could be provided through any form of general information about what is resolution in the event of material financial distress written or oral communication, known at the time. Regulators would or failure. On November 1, 2019, the FDIC and the including through any technological enforce the bank service provider Board published in the Federal Register amendments to the Resolution Planning Rule. See means (e.g., email or telephone), to a notification requirement directly against 84 FR 59194. designated point of contact identified by bank service providers and would not 17 Elements of both the ‘‘core business lines’’ and the banking organization’s primary cite a banking organization because a ‘‘critical operations’’ definitions from the federal regulator (e.g., an examiner-in- service provider fails to comply with the Resolution Planning Rule are incorporated in the proposed ‘‘notification incident’’ definition. Under charge, local supervisory office, or a service provider notification the Resolution Planning Rule, ‘‘core business lines’’ cyber-incident operations center). The requirement. means those business lines of the covered company, notification, and any information This proposal is not expected to add including associated operations, services, functions provided by a banking organization significant burden on banking and support, that, in the view of the covered organizations. Banking organizations company, upon failure would result in a material related to the incident, would be subject loss of revenue, profit, or franchise value, and to the agencies’ confidentiality rules. should already have internal policies for ‘‘critical operations’’ means those operations of the Under the proposed rule, a bank responding to computer-security covered company, including associated services, service provider would be required to incidents, which the agencies believe functions, and support, the failure or notify at least two individuals at generally already include processes for discontinuance of which would pose a threat to the financial stability of the United States. See 12 CFR affected banking organization customers notifying their primary federal regulator 363.2, 381.2. immediately after it experiences a and other stakeholders of incidents
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within the scope of the proposal. this analysis, the agencies assume that The agencies do not have the However, these processes are not all firms in this industry are bank information to quantify the potential uniform or consistent between service providers.19 According to benefits of the proposed rule because institutions and have not always Census counts, there were 120,220 firms the benefits depend on the breadth and resulted in timely notification being in the United States under NAICS code severity of future notification incidents, provided to the applicable regulator, 5415 in 2017, the most recent year for the specifics of those incidents, and the which is why the agencies are issuing which such data is available.20 value of the assistance approved by the this proposal. This proposal also is not agencies, among other things. In Benefits expected to add significant burden on addition, the agencies believe that the bank service providers. The agencies’ The agencies believe that prompt proposed rule would formalize a experiences with conducting bank notification of these incidents would process that already exists, based on the service provider contract reviews during provide the following benefits to agencies’ experiences. Nevertheless, as examinations indicates that most of banking organizations and the financial previously discussed, banking these contracts include incident- industry as a whole. organizations face a heightened risk of reporting provisions. As a result, this Notification may assist the relevant disruptive and destructive attacks that proposal is not expected to add agencies in determining whether the have increased in frequency and significant burden on a material number incident is isolated or is one of many severity in recent years; therefore, the of bank service providers. simultaneous identical or similar agencies believe that the benefits of the Each agency may provide additional incidents at multiple banking proposed rule would exceed the costs— clarification and guidance to its organizations. If the notification detailed below. supervised banking organizations on incident is isolated to a single banking how best to communicate with the organization, the primary federal Costs agencies to implement the notification regulator may be able to facilitate The proposed rule would require requirements of the rule. requests for assistance to the affected banking organizations to notify their organization, arranged by the U.S. primary federal regulator as soon as IV. Impact Analysis Treasury OCCIP, to minimize the impact possible and no later than 36 hours after Covered banking organizations under of the incident. This benefit may be a banking organization has determined the proposed rule would include all greatest for small banking organizations that a notification incident has depository institutions, holding with more limited computer security occurred. The agencies reviewed companies, and certain other financial resources. If the notification incident is available supervisory data and SARs entities that are supervised by one of the one of many simultaneous identical or involving cyber events against banking agencies. According to recent Call similar incidents at multiple banking organizations to develop an estimate of Report and other data, the agencies organizations, the agencies may also the number of notification incidents supervise approximately 5,000 alert other banking organizations of the expected to be reported annually. This depository institutions along with a threat, as appropriate, while protecting review focused on descriptive criteria number of holding companies and other confidential supervisory information, (e.g., ransomware, trojan, zero day, etc.) financial services entities that would be recommend preventative measures in that may be indicative of the type of covered under the proposed rule.18 order to better manage or prevent material computer-security incident that In addition, the proposed rule would reoccurrence of similar incidents, or would meet the notification incident require bank service providers as otherwise help coordinate the response reporting criteria. Based on this review, described in the BSCA to notify at least and mitigation efforts. Receiving the agencies estimate that two individuals at affected banking notification incident information from approximately 150 notification organization customers immediately multiple banking organizations would incidents may occur on an annual after the bank service providers also allow regulators to conduct basis.21 The agencies specifically invite experience a computer-security incident analyses across entities to improve comment on the estimated number of that they believe in good faith could guidance, to adjust supervisory incidents. disrupt, degrade, or impair services they programs to limit the reoccurrence of The agencies estimate that, upon provide subject to the BSCA for four or such incidents in the future, and to occurrence of a notification incident, more hours. This requirement would provide information to the industry to the affected banking organization may enable a banking organization to help banking organizations protect incur up to three hours of staff time to promptly respond to an incident, themselves against future computer- coordinate internal communications, determine whether it must notify its security incidents. consult with its bank service provider, primary federal regulator that a The proposal may help reduce losses if appropriate, and notify the banking notification incident has occurred, and in the event a notification incident is so organization’s primary federal regulator. take other appropriate measures related significant that it jeopardizes a banking This may include discussion of the to the incident. The agencies do not organization’s viability, as the proposal incident among staff of the banking have data on the number of bank service will provide additional time for the organization, such as the Chief providers that would be affected by this agencies to prepare to handle a potential Information Officer, Chief Information requirement. However, several known failure as cost-effectively and non- Security Officer, a senior legal or bank service providers have self- disruptively as possible. compliance officer, and staff of a bank selected the North American Industry service provider, as appropriate, and Classification System (NAICS) industry 19 NAICS code 5415 most likely contains many firms that are not bank service providers, so the liaison with senior management of the ‘‘Computer System Design and Related agencies believe using the population of firms in Services’’ (NAICS industry code 5415) this industry is an overestimate. However, there 21 The agencies used conservative judgment when as their primary business activity. As a may be some bank service providers that do not assessing whether a cyber-event might have risen to conservative estimate of the population self-identify under NAICS code 5415. the level of a notification incident, so the approach 20 See U.S. Census Bureau, 2017 SUSB Annual may overestimate the number. However, the of covered bank service providers for Data Tables by Establishment Industry (Mar. 2020), approach may also underestimate the number of https://www.census.gov/data/tables/2017/econ/ notification incidents since supervisory and SAR 18 September 30, 2020 Call Report Data. susb/2017-susb-annual.html. data may not capture all such incidents.
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banking organization. The agencies support to affected bank organization security incident,’’ should the definition believe that the regulatory burden customers that would be provided of ‘‘notification incident’’ refer to other associated with the notice requirement during the normal course of business NIST terms and definitions, or another would be de minimis, because the when managing and resolving a recognized source of terms and communications that led to the computer security incident are beyond definitions? Should the standard for determination of the notification the scope of the notification materially disrupt, degrade, or impair be incident would occur regardless of the requirement. altered to reduce potential redundancy proposed rule.22 The agencies invite comments on between the terms or to consider The proposed rule also requires a these expected benefits and costs. different types of impact on the banking bank service provider, as defined herein organization? Should the definition not V. Alternatives Considered and in accordance with the BSCA, to include language that is consistent with notify at least two individuals at The agencies considered several the ‘‘core business line’’ and ‘‘critical affected banking organization customers alternatives to the proposal. The operation’’ definitions included in the immediately after it experiences a agencies considered leaving the current resolution-planning rule? Should those computer-security incident that it regulations unchanged. The agencies elements of the definition only apply to believes in good faith could disrupt, rejected this alternative because of the banking organizations that have degrade, or impair services provided significant risks that notification resolution planning requirements? subject to the BSCA for four or more incidents pose to banking organizations 3. How should the 36 hour timeframe hours. The agencies do not have data on and to the financial sector. for notification be modified, if at all, the frequency of incidents that would The agencies considered limiting the and why? Should it be made shorter or require bank service providers to notify definition of notification incidents to longer? Should it start at a different their customers who are banking those covered by the SAR-filing time? Should the timeframe be modified organizations. For purposes of this requirements. In this alternative, for certain types of notification proposed rule, the agencies assume that submission of a SAR would have served incidents or banking organizations (for 2,404 bank service providers, or as notification of such an incident. This example, should banks with total assets approximately 2 percent 23 of the approach would have eliminated the of less than $10 billion have a different 120,220 firms under NAICS code 5415, additional compliance burden but timeframe)? could experience a computer-security would have delayed the notification and 4. Is the proposed requirement that incident each year that would require decreased the benefits provided by the banking organizations and bank service notification to affected banking proposed rule. In the proposal, however, providers notify the appropriate party organization customers. The agencies the agencies determined that, to when they ‘‘believe in good faith’’ that specifically invite comment on the minimize regulatory burden, the notice they are experiencing or have estimated number of incidents. requirement would not include the level experienced a notification incident or The agencies believe that bank service of detail required of a SAR (which could computer-security incident, as providers would have automated otherwise have created a significant applicable, sufficiently clear such that systems allowing them to identify burden to complete as a banking banking organizations and bank service banking organization customers when a organization manages a notification providers understand when they should computer-security incident that meets incident). provide notice? How should the the criteria for notification has occurred The agencies considered expanding ‘‘believes in good faith’’ standard be and for contacting at least two the definition of notification incident to modified, if at all? For example, should individuals at affected banking include any incident that might disrupt the standard be ‘‘reasonably believes’’ organization customers. Furthermore, a banking organization’s systems or any for either banking organizations or bank the agencies anticipate that such firms unauthorized access to the banking service providers? would need approximately one hour to organization’s sensitive customer data. 5. How should notification by banking determine that a computer-security However, the agencies ultimately sought organizations under the proposed rule incident meets the notification criteria to strike a balance that would minimize be provided to the agencies? Should the and two hours to identify the customers compliance burden by focusing only on agencies adopt a process for joint affected by the service disruption and events that are likely to cause significant notification to the agencies in cases provide notification that an incident has harm to banking organizations. where multiple affiliates of a banking occurred. These activities would total organization have notification 7,212 hours per year for the population VI. Request for Comments requirements to different agencies? If so, of bank service providers described The agencies seek comment on all how should joint notification be done above.24 The agencies believe that the aspects of their proposal and more and why? Should the agencies adopt additional compliance costs would be specifically on the following: centralized points of contact to receive de minimis for each affected bank 1. How should the definition of notifications or should notifications be service provider.25 Post-notification ‘‘computer-security incident’’ be provided to regional offices (such as activities such as providing technical modified, if at all? For example, should Federal Reserve Banks) or banking it include only occurrences that result organization-specific supervisory teams? 22 Even at an elevated labor compensation rate of in actual harm to the confidentiality, 6. The proposed rule’s definition of $200 per hour, the proposed rule would only integrity, or availability of an ‘‘banking organizations’’ and ‘‘bank impose additional compliance costs of $600 per information system or the information service providers’’ would include the notification. 23 This is informed by the estimate of the the system processes, stores, or financial market utilities (FMUs) that percentage of banking organizations that have transmits? Should it include only are chartered as a State member bank or notification incidents. occurrences that constitute an actual Edge corporation, or perform services 24 7,212 hours = 2,404 per year frequency of violation of security policies, security subject to regulation and examination incidents * 3 hours per incident. procedures, or acceptable use policies? under the BSCA. Are there unique 25 Even at an elevated labor compensation rate of $200 per hour, the proposed rule would only 2. How should the definition of factors that the agencies should consider impose additional compliance costs of $600 per ‘‘notification incident’’ be modified, if at in determining how notification notification. all? For example, instead of ‘‘computer- requirements should apply to these
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FMUs? For designated FMUs for which disruptions. The agencies are seeking approval by the OCC and FDIC under the Board is the Supervisory Agency information on how bank service section 3507(d) of the PRA (44 U.S.C. under Title VIII of the Dodd-Frank Act, providers currently notify banking 3507(d)) and section 1320.11 of OMB’s would notification requirements best be organizations of service disruptions implementing regulations (5 CFR part conveyed through this proposed rule or under existing contracts between bank 1320). The Board reviewed the proposed through amendments to the Board’s service providers and banking rule under the authority delegated to the Regulation HH? organizations. Do those contracts Board by OMB. 7. What other types of entities contemplate the provision of notice to at The proposed rule contains a regulated by the agencies should be least two individuals at an affected reporting requirement that is subject to added to the rule as ‘‘banking banking organization? Is the method of the PRA. The reporting requirement is organizations’’ that would be subject to notice specified in existing contracts found in §§ 53.3 (OCC), 225.302 (Board), the rule? Why? (for example, email, telephone, etc.) and 304.23 (FDIC) of the proposed rule, 8. Which entities proposed in the rule sufficient to allow bank service which require a banking organization to as ‘‘banking organizations’’ should be providers to provide notice of computer- notify its primary federal bank removed from the rule? Why? security incidents to at least two regulatory agency of the occurrence of a 9. Do existing contracts between individuals at affected banking ‘‘notification incident’’ at the banking banking organizations and bank service organizations? If not, how best could the organization. providers already have provisions that requirement for bank service providers The proposed rule also contains a would allow banking organizations to to notify at least two individuals at disclosure requirement that is subject to meet the proposed notification incident affected banking organizations be the PRA. The disclosure requirement is requirements? achieved most efficiently and cost found in §§ 53.4 (OCC), 225.303 (Board), 10. Does the definition of ‘‘bank effectively for both parties? and 304.24 (FDIC) of the proposed rule, service provider’’ in the proposed rule 14. Describe circumstances in which which require a bank service provider to appropriately capture the services about a bank service provider would become which banking organizations should be notify at least two individuals at aware of a material disruption that affected banking organization customers informed in the event of disruptions? could be a notification incident for Should all the services included in the immediately after it experiences a banking organization customers but the Bank Service Company Act be included computer-security incident that it banking organization customers would for purposes of banking organizations believes in good faith could disrupt, not be aware of the incident. Would it receiving notice of disruptions from degrade, or impair services provided be overly burdensome to certain bank their bank service providers? If not, subject to the BSCA for four or more service providers, such as smaller bank which services should require a bank hours. service providers, to provide notice of service provider to notify its affected Comments are invited on: material disruptions, degradations, or banking organization customers when (a) Whether the collections of impairments to their affected banking those services are disrupted, and why? information are necessary for the proper organization customers and, if so, why? performance of the agencies’ functions, Should the requirement only attach to a 15. The agencies invite comments on subset of services provided to banking including whether the information has specific examples of computer-security practical utility; organizations under the BSCA or should incidents that should, or should not, it only attach to certain bank service (b) the accuracy of the estimates of the constitute notification incidents. burden of the information collections, providers, such as those that are 16. The agencies invite comments on examined by the federal banking including the validity of the the methodology used to estimate the methodology and assumptions used; agencies? number of notification incidents per 11. Should the proposed rule for bank (c) ways to enhance the quality, year that would need to be reported utility, and clarity of the information to service providers require bank service under the proposed rule. providers to notify all banking be collected; Written comments must be received by organization customers or only those (d) ways to minimize the burden of the agencies no later than April 12, affected by a computer-security incident the information collections on 2021. under the proposed rule? respondents, including through the use 12. Within what timeframe should VII. Regulatory Analysis and Procedure of automated collection techniques or bank service providers provide other forms of information technology; notification to banking organizations? Is Paperwork Reduction Act and immediate notification after Certain provisions of the proposed (e) estimates of capital or start-up experiencing a disruption in services rule contain ‘‘collection of information’’ costs and costs of operation, provided to affected banking requirements within the meaning of the maintenance, and purchase of services organization customers and to report to Paperwork Reduction Act (PRA) of 1995 to provide information. All comments those organizations reasonable? If not, (44 U.S.C. 3501–3521). In accordance will become a matter of public record. what is the appropriate amount of time with the requirements of the PRA, the Comments on aspects of this for a bank service provider to determine agencies may not conduct or sponsor, document that may affect reporting it has experienced a material disruption and the respondent is not required to requirements and burden estimates in service that impacts its banking respond to, an information collection should be sent to the addresses listed in organization customers, and why? unless it displays a currently valid the ADDRESSES section of this 13. The agencies understand that Office of Management and Budget Supplementary Information. A copy of many existing contracts between (OMB) control number. The agencies the comments may also be submitted to banking organizations and bank service will request new control numbers for the OMB desk officer for the Agencies: providers contain notification this information collection. The By mail to U.S. Office of Management provisions regarding material incidents information collection requirements and Budget, 725 17th Street NW, and that, generally, bank service contained in this joint notice of #10235, Washington, DC 20503 or by providers use automated systems to proposed rulemaking have been facsimile to (202) 395–5806, Attention, notify banking organizations of service submitted to OMB for review and Federal Banking Agency Desk Officer.
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Proposed Information Collection • The ability of the banking the RFA to include commercial banks Title of Information Collection: organization to carry out banking and savings institutions with total assets Computer-Security Incident operations, activities, or processes, or of $600 million or less and trust Notification. deliver banking products and services to companies with total assets of $41.5 Frequency of Response: On occasion; a material portion of its customer base, million or less) or to certify that the 26 in the ordinary course of business; proposed rule would not have a event-generated. • Affected Public: Businesses or other Any business line of a banking significant economic impact on a for-profit. organization, including associated substantial number of small entities. Respondents: operations, services, functions and The OCC currently supervises support, and would result in a material OCC: National banks, federal savings approximately 745 small entities. associations, federal branches and agencies, loss of revenue, profit, or franchise Because the proposed rule impacts all value; or OCC-supervised institutions, as well as and bank service providers. • FDIC: All insured state nonmember banks, Those operations of a banking all bank service providers, it would insured state-licensed branches of foreign organization, including associated impact a substantial number of small banks, State savings associations, and bank services, functions and support, as entities. However, the expected costs of service providers. applicable, the failure or discontinuance the proposal would be de minimis. Board: All state member banks (as defined of which would pose a threat to the Many banks already have internal in 12 CFR 208.2(g)), bank holding companies financial stability of the United States. policies for responding to security (as defined in 12 U.S.C. 1841), savings and A ‘‘computer-security incident’’ is loan holding companies (as defined in 12 incidents, which include processes for U.S.C. 1467a), foreign banking organizations defined as an occurrence that results in notifying their primary regulator and (as defined in 12 CFR 211.21(o)), foreign actual or potential harm to the other stakeholders of incidents within banks that do not operate an insured branch, confidentiality, integrity, or availability the scope of the proposal. Additionally, state branch or state agency of a foreign bank of an information system or the while the OCC believes bank service (as defined in 12 U.S.C. 3101(b)(11) and (12)), information that the system processes, provider contracts may already include Edge or agreement corporations (as defined stores, or transmits; or constitutes a these provisions, if current contracts do in 12 CFR 211.1(c)(2) and (3)), and bank violation or imminent threat of violation not include these provisions, then the service providers. of security policies, security procedures, OCC does not expect the Number of Respondents: 27 or acceptable use policies. implementation of these provisions to OCC: Reporting—22; Disclosure—801. The proposed rule would require a impose a material burden on bank FDIC: Reporting—96; Disclosure—802. banking organization to notify its service providers. Therefore, the OCC Board: Reporting—32; Disclosure—801. primary federal banking regulator upon certifies that the proposed rule, if Estimated Hours per Response: the occurrence of a ‘‘notification implemented, would not have a Reporting—Sections 53.3 (OCC), 225.302 incident’’ at the banking organization. significant economic impact on a (Board), and 304.23 (FDIC): 3 hours. The agencies recognize that the substantial number of small entities. Disclosure—Sections 53.4 (OCC), 225.303 proposed rule would impose a limited Board: The Board has considered the (Board), and 304.24 (FDIC): 3 hours. amount of burden, beyond what is usual potential impact of the proposed rule on Estimated Total Annual Burden: and customary, on banking small entities in accordance with organizations in the event of a section 603 of the RFA.28 Based on the OCC: Reporting –66 hours; Disclosure— 2,403 hours. computer-security incident even if it Board’s analysis, and for the reasons FDIC: Reporting –288 hours; Disclosure— does not rise to the level of a stated below, the Board believes that 2,406 hours. notification incident, as banking this proposed rule will not have a Board: Reporting –96 hours; Disclosure— organizations will need to engage in an significant economic impact on a 2,403 hours. analysis to determine whether the substantial of number of small entities. Abstract: The proposed rule would relevant thresholds for notification are As discussed in the SUPPLEMENTARY establish notification requirements for met. Therefore, the agencies’ estimated INFORMATION, the agencies are proposing banking organizations upon the burden per notification incident takes to require a banking organization to occurrence of a ‘‘computer-security into account the burden associated with notify its primary federal regulator as incident’’ that rises to the level of a such computer-security incidents. soon as possible and no later than 36 ‘‘notification incident.’’ The proposed rule also would require hours after the banking organization A ‘‘notification incident’’ is defined as a bank service provider, as defined believes in good faith that a notification a ‘‘computer-security incident’’ that a herein and in accordance with the incident has occurred. The proposed banking organization believes in good BSCA, to notify at least two individuals rule would establish a significant faith could materially disrupt, degrade, at affected banking organization computer-security incident notification or impair: customers immediately after it requirement, which would support the experiences a computer-security safety and soundness of entities 26 For purposes of these calculations, the agencies incident that it believes in good faith supervised by the agencies. The assume that the frequency is 1 response per could disrupt, degrade, or impair proposed rule also would require a bank respondent. services provided subject to the BSCA service provider, as defined herein and 27 The number of respondents for the reporting in accordance with the BSCA, to notify requirement is based on allocating the estimated for four or more hours. at least two individuals at affected 150 notification incidents among the agencies based Regulatory Flexibility Act on the percentage of entities supervised by each banking organization customers agency. The FDIC represents the majority of the OCC: The Regulatory Flexibility Act immediately after it experiences a banking organizations (64 percent), while the Board (RFA), 5 U.S.C. 601 et seq., requires an computer-security incident that it supervises approximately 21 percent of the banking organizations, with the OCC supervising the agency, in connection with a proposed believes in good faith could disrupt, remaining 15 percent of banking organizations. The rule, to prepare an Initial Regulatory degrade, or impair the provision of number of respondents for the disclosure Flexibility Analysis describing the services subject to the BSCA for four or requirement is based on an assumption of an impact of the rule on small entities approximately 2 percent per year frequency of more hours. incidents from 120,220 firms, which is divided (defined by the Small Business equally among the OCC, FDIC, and Board. Administration (SBA) for purposes of 28 5 U.S.C. 603.
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The Board’s rule applies to state- incident would have occurred a significant effect to be a quantified chartered banks that are members of the regardless of the proposed rule. effect in excess of 5 percent of total Federal Reserve System, bank holding The proposed rule also would require annual salaries and benefits per companies, savings and loan holding a bank service provider, as defined institution, or 2.5 percent of total companies, U.S. operations of foreign herein and in accordance with the noninterest expenses. The FDIC believes banking organizations, Edge and BSCA, to notify at least two individuals that effects in excess of these thresholds agreement corporations (collectively, at affected banking organization typically represent significant effects for ‘‘Board-regulated entities’’). As customers immediately after it FDIC-supervised institutions. For the described in the Impact Analysis experiences a computer-security reasons described below, the FDIC section, requirements under the incident that it believes in good faith certifies that the proposed rule will not proposed rule would apply to all Board- could disrupt, degrade, or impair the have a significant economic impact on regulated entities. Under regulations provision of services subject to the a substantial number of small entities. issued by the Small Business BSCA for four or more hours. As As described in the Impact Analysis Administration, a small entity includes described in the Impact Analysis section section, the proposed rule is expected to a depository institution, bank holding above, the agencies believe that any affect all institutions supervised by the company, or savings and loan holding compliance costs associated with the FDIC. According to recent Call Reports, company with total assets of $600 implementation of this requirement the FDIC supervises 3,270 insured million or less and trust companies with would be de minimis for each affected depository institutions (FDIC- total receipts of $41.5 million or less.29 bank service provider. There are no supervised IDIs).34 Of these, According to Call Reports and other other recordkeeping, reporting or approximately 2,492 FDIC-supervised Board reports, there were approximately compliance requirements associated IDIs would be considered small entities 472 state member banks, 2,925 bank with the proposed rule. for the purposes of RFA.35 These small holding companies, 132 savings and The Board has not identified any entities hold approximately $540 billion loan holding companies, and 16 Edge federal statutes or regulations that in assets, accounting for 14 percent of and agreement corporations that are would duplicate, overlap, or conflict total assets held by FDIC-supervised small entities.30 In addition, the with the proposed revisions, and the institutions. In addition, the rule affects proposed rule affects all bank service Board is not aware of any significant all bank service providers that provide providers that provide services subject alternatives to the final rule that would services subject to the BSCA.36 The to the BSCA.31 The Board is unable to reduce the economic impact on Board- FDIC is unable to estimate the number estimate the number of bank service regulated small entities. For the reasons of affected bank service providers that providers that are small due to the stated above, the Board believes that are small. For purposes of this varying types of banking organizations this proposed rule will not have a certification, the FDIC assumes, as an that may enter into outsourcing significant economic impact on a upper limit, that all affected bank arrangements with bank service substantial number of small entities. service providers are small. providers. The Board welcomes comment on all The proposed rule would require a The proposed rule would require all aspects of its analysis. In particular, the banking organization to notify its banking organizations to notify their Board requests that commenters primary federal regulator as soon as primary federal regulator as soon as describe the nature of any impact on possible and no later than 36 hours after possible and no later than 36 hours after small entities and provide empirical the banking organization believes in the banking organization believes in data to illustrate and support the extent good faith that a notification incident good faith that a notification incident of the impact. has occurred. As described in the FDIC: The Regulatory Flexibility Act has occurred. The agencies estimate Impact Analysis section above, this (RFA) generally requires an agency, in that, upon occurrence of a notification requirement is estimated to affect a connection with a proposed rule, to incident, an affected banking relatively small number of FDIC- prepare and make available for public organization may incur compliance supervised institutions and impose a comment an initial regulatory flexibility costs of up to three hours of staff time compliance cost of up to three hours per analysis that describes the impact of a to coordinate internal communications, incident. The agencies believe that the proposed rule on small entities.32 consult with its bank service provider, regulatory burden of such a requirement However, a regulatory flexibility if appropriate, and notify the banking would be de minimis in nature, since organization’s primary federal regulator. analysis is not required if the agency the internal communications that led to As described in the Impact Analysis certifies that the rule will not have a the determination of the notification section above, this requirement is significant economic impact on a incident would have occurred estimated to affect a relatively small substantial number of small entities. regardless of the proposed rule.37 number of Board-regulated entities. The The Small Business Administration In addition, the proposed rule would agencies believe that any compliance (SBA) has defined ‘‘small entities’’ to require a bank service provider, as costs associated with the notice include banking organizations with total defined herein and in accordance with requirement would be de minimis, assets of less than or equal to $600 the BSCA, to notify at least two because the communications that led to million.33 Generally, the FDIC considers individuals at affected banking the determination of the notification 32 5 U.S.C. 601 et seq. a banking organization’s affiliated and acquired 29 See 13 CFR 121.201; 84 FR 34261 (July 18, 33 The SBA defines a small banking organization assets, averaged over the preceding four quarters, to 2019). as having $600 million or less in assets, where an determine whether the banking organization is 30 organization’s assets are determined by averaging State member bank data is derived from March ‘‘small’’ for the purposes of RFA. the assets reported on its four quarterly financial 31, 2020 Call Reports. Data for bank holding 34 companies and savings and loan holding companies statements for the preceding year. See 13 CFR FDIC Call Reports, June 30, 2020. are derived from the June 30, 2020, FR Y–9C and 121.201 (as amended by 84 FR 34261, effective 35 Id. FR Y–9SP. Data for Edge and agreement August 19, 2019). In its determination, the SBA 36 Discussed in detail in the Impact Analysis corporations are derived from the December 31, counts the receipts, employees, or other measure of section. 2019 and March 31, 2020, FR–2086b. size of the concern whose size is at issue and all 37 Even at an elevated labor compensation rate of 31 Discussed in detail in the Impact Analysis of its domestic and foreign affiliates. See 13 CFR $200 per hour, the proposed rule would impose a section. 121.103. Following these regulations, the FDIC uses cost burden of less than $600 per incident.
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organization customers immediately would be de minimis and, thus, has Authority and Issuance after it experiences a computer-security determined that this proposed rule For the reasons stated in the Common incident that it believes in good faith would not result in expenditures by Preamble and under the authority of 12 could disrupt, degrade, or impair the State, local, and Tribal governments, or U.S.C. 1, 93a, 161, 481, 1463, 1464, provision of services subject to the the private sector, of $157 million or 1861–1867, and 3102, the Office of the BSCA for four or more hours. As more in any one year. Accordingly, the Comptroller of the Currency proposes to described in the Impact Analysis section OCC has not prepared a written amend chapter I of Title 12, Code of above, the agencies believe that any statement to accompany this proposal. Federal Regulations, as follows: additional compliance costs would be Riegle Community Development and ■ 1. Part 53 is added to read as follows: de minimis for each affected bank Regulatory Improvement Act of 1994 service provider. The Riegle Community Development PART 53—COMPUTER-SECURITY Given that the costs of the proposed INCIDENT NOTIFICATION rule would be de minimis, the FDIC and Regulatory Improvement Act of 39 certifies that the proposed rule would 1994 (RCDRIA) requires that each Sec. not have a significant economic impact federal banking agency, in determining 53.1 Authority, purpose, and scope. on a substantial number of small the effective date and administrative 53.2 Definitions. entities. The FDIC invites comments on compliance requirements for new 53.3 Notification. all aspects of the supporting information regulations that impose additional 53.4 Bank service provider notification. provided in this RFA section. In reporting, disclosure, or other Authority: 12 U.S.C. 1, 93a, 161, 481, 1463, particular, would this proposed rule requirements on insured depository 1464, 1861–1867, and 3102. institutions, consider, consistent with have any significant effects on small § 53.1 Authority, purpose, and scope. entities that the FDIC has not identified? principles of safety and soundness and the public interest, any administrative (a) Authority. This part is issued Plain Language burdens that such regulations would under the authority of 12 U.S.C. 1, 93a, Section 722 of the GLBA 38 requires place on depository institutions, 161, 481, 1463, 1464, 1861–1867, and the agencies to use plain language in all including small depository institutions, 3102. proposed and final rules published after and customers of depository (b) Purpose. This part promotes the January 1, 2000. The agencies have institutions, as well as the benefits of timely notification of significant sought to present the proposed rule in such regulations. In addition, new computer-security incidents that affect a simple and straightforward manner regulations and amendments to OCC-supervised institutions and their and invite comment on the use of plain regulations that impose additional service providers. language. For example: reporting, disclosure, or other new (c) Scope. This part applies to all 1. How could the agencies organize the requirements on insured depository national banks, Federal savings material to better suit your needs? How could institutions generally must take effect associations, and Federal branches and they present the proposed rule more clearly? on the first day of a calendar quarter agencies of foreign banks. This part also 2. How could the requirements in the that begins on or after the date on which applies to bank service providers, as proposed rule be more clearly stated? the regulations are published in final defined in § 53.2(b)(2). 3. Do the regulations contain technical form.40 The agencies invite comments language or jargon that is not clear? If so, § 53.2 Definitions. which language requires clarification? that further will inform their 4. Would a different format (grouping and consideration of the RCDRIA. (a) Except as modified in this part, or unless the context otherwise requires, order of sections, use of headings, List of Subjects paragraphing) make the regulation easier to the terms used in this part have the understand? If so, what changes would 12 CFR Part 53 same meanings as set forth in 12 U.S.C. achieve that? 1813. Administrative practice and 5. Would more, but shorter, sections be (b) For purposes of this part, the procedure, Federal Savings better? If so, which sections should be following definitions apply— Associations, National Banks, Reporting changed? (1) Banking organization means a 6. What other changes can the agencies and recordkeeping requirements, Safety national bank, Federal savings incorporate to make the regulation easier to and soundness. understand? association, or Federal branch or agency 12 CFR Part 225 of a foreign bank. OCC Unfunded Mandates Reform Act of (2) Bank service provider means a 1995 Determination Administrative practice and procedure, Bank holding companies, bank service company or other person The OCC analyzed the proposed rule banking, Edge and agreement providing services to a banking under the factors set forth in the corporations, Foreign banking organization that is subject to the Bank Unfunded Mandates Reform Act of 1995 organizations, Reporting and Service Company Act (12 U.S.C. 1861– (UMRA) (2 U.S.C. 1532). Under this recordkeeping requirements, Safety and 1867). analysis, the OCC considered whether soundness, Savings and loan holding (3) Business line means products or the proposed rule includes a federal companies, State member banks. services offered by a banking mandate that may result in the organization to serve its customers or expenditure by State, local, and Tribal 12 CFR Part 304 support other business needs. governments, in the aggregate, or by the Administrative practice and (4) Computer-security incident is an private sector, of $100 million or more procedure, Bank deposit insurance, occurrence that— in any one year, adjusted for inflation Banks, banking, Freedom of (i) Results in actual or potential harm (currently $157 million). As noted in the information, Reporting and to the confidentiality, integrity, or OCC’s Regulatory Flexibility analysis, recordkeeping requirements, Safety and availability of an information system or the OCC expects that the costs soundness. the information that the system associated with the proposal, if any, processes, stores, or transmits; or 39 Public Law 103–325, 108 Stat. 2160. (ii) Constitutes a violation or 38 Codified at 12 U.S.C. 4809. 40 12 U.S.C. 4802(b)(1). imminent threat of violation of security
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policies, security procedures, or Authority: 12 U.S.C. 1817(j)(13), 1818, organization believes in good faith acceptable use policies. 1828(o), 1831i, 1831p–1, 1843(c)(8), 1844(b), could materially disrupt, degrade, or (5) Notification incident is a 1972(1), 3106, 3108, 3310, 3331–3351, 3906, impair— computer-security incident that a 3907, and 3909; 15 U.S.C. 1681s, 1681w, (1) The ability of the banking 6801 and 6805. banking organization believes in good organization to carry out banking faith could materially disrupt, degrade, ■ 3. Subpart N is added to read as operations, activities, or processes, or or impair— follows: deliver banking products and services to a material portion of its customer base, (i) The ability of the banking organization Subpart N—Computer-Security Incident to carry out banking operations, activities, or Notification in the ordinary course of business; (2) Any business line of a banking processes, or deliver banking products and Sec. services to a material portion of its customer organization, including associated 225.300 Authority, purpose, and scope. operations, services, functions and base, in the ordinary course of business; 225.301 Definitions. (ii) Any business line of a banking 225.302 Notification. support, and would result in a material organization, including associated 225.303 Bank service provider notification. loss of revenue, profit, or franchise operations, services, functions and support, value; or and would result in a material loss of Subpart N—Computer-Security (3) Those operations of a Banking revenue, profit, or franchise value; or Incident Notification organization, including associated (iii) Those operations of a banking services, functions and support, as organization, including associated services, § 225.300 Authority, purpose, and scope. applicable, the failure or discontinuance functions and support, as applicable, the (a) Authority. This subpart is issued of which would pose a threat to the failure or discontinuance of which would pose a threat to the financial stability of the under the authority of 12 U.S.C. 1, 321– financial stability of the United States. United States. 338a, 1467a(g), 1818(b), 1844(b), 1861– (b) [Reserved] 1867, 3101 et seq., and 5365. § 225.302 Notification. (6) Person has the same meaning as (b) Purpose. This subpart promotes set forth at 12 U.S.C. 1817(j)(8)(A). the timely notification of significant A banking organization must notify the Board of a notification incident § 53.3 Notification. computer-security incidents that affect Board-supervised entities and their through any form of written or oral A banking organization must notify service providers. communication, including through any the OCC of a notification incident (c) Scope. This subpart applies to all technological means (e.g., email, through any form of written or oral U.S. bank holding companies and telephone, text, etc.), to a designated communication, including through any savings and loan holding companies; point of contact identified by the Board technological means, to a designated state member banks; the U.S. operations (e.g., an examiner-in-charge, local point of contact identified by the OCC. of foreign banking organizations; and, supervisory office, or a cyber-incident The OCC must receive this notification Edge and agreement corporations. This operations center). The Board must from the banking organization as soon subpart also applies to bank service receive this notification from a banking as possible and no later than 36 hours providers, as defined in § 225.301(a)(2). organization as soon as possible and no after the banking organization believes later than 36 hours after the banking in good faith that a notification incident § 225.301 Definitions. organization believes in good faith that has occurred. (a) For purposes of this subpart, the a notification incident has occurred. § 53.4 Bank service provider notification. following definitions apply— § 225.303 Bank service provider Banking organization means a U.S. notification. A bank service provider is required to bank holding company; U.S. savings notify at least two individuals at each A bank service provider is required to and loan holding company; state notify at least two individuals at each affected banking organization customer member bank; the U.S. operations of immediately after the bank service affected banking organization customer foreign banking organizations; and an immediately after the bank service provider experiences a computer- Edge and agreement corporation. security incident that it believes in good provider experiences a computer- Bank service provider means a bank security incident that it believes in good faith could disrupt, degrade, or impair service company or other person services provided subject to the Bank faith could disrupt, degrade, or impair providing services to a banking services provided, subject to the Bank Service Company Act (12 U.S.C. 1861– organization that is subject to the Bank 1867) for four or more hours. Service Company Act (12 U.S.C. 1861– Service Company Act (12 U.S.C. 1861– 1867), for four or more hours. FEDERAL RESERVE SYSTEM 1867). Business line means products or FEDERAL DEPOSIT INSURANCE 12 CFR Chapter II services offered by a banking CORPORATION Authority and Issuance organization to serve its customers or Authority and Issuance support other business needs. For the reasons stated in the Common Computer-security incident is an For the reasons stated in the Common Preamble and under the authority of 12 occurrence that: Preamble, and under the authority of 12 U.S.C. 321–338a, 1467a(g), 1818(b), (1) Results in actual or potential harm U.S.C. 1463, 1811, 1813, 1817, 1819, 1844(b), 1861–1867, 3101 et seq., and to the confidentiality, integrity, or and 1861–1867, the FDIC proposes to 5365 the Board proposes to amend availability of an information system or amend 12 CFR part 304 as follows: chapter II of Title 12, Code of Federal the information that the system Regulations, as follows: PART 304—FORMS, INSTRUCTIONS, processes, stores, or transmits; or AND REPORTS PART 225—BANK HOLDING (2) Constitutes a violation or ■ COMPANIES AND CHANGE IN BANK imminent threat of violation of security 4. Revise the authority citation for part CONTROL (REGULATION Y) policies, security procedures, or 304 to read as follows: acceptable use policies. Authority: 5 U.S.C. 552; 12 U.S.C. 1463, ■ 2. The authority citation for part 225 Notification incident is a computer- 1464, 1813, 1817, 1819, 1831, and 1861– continues to read as follows: security incident that a banking 1867.
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■ 5. Revise § 304.1 to read as follows: the information that the system By order of the Board of Directors. processes, stores, or transmits; or Dated at Washington, DC, on or about § 304.1 Purpose. (ii) Constitutes a violation or December 15, 2020. This subpart informs the public where imminent threat of violation of security James P. Sheesley, it may obtain forms and instructions for policies, security procedures, or Assistant Executive Secretary. reports, applications, and other acceptable use policies. [FR Doc. 2020–28498 Filed 1–11–21; 8:45 am] submittals used by the FDIC, and (5) Notification incident is a BILLING CODE 4810–33–P; 6210–01–P; 6714–01–P describes certain forms that are not computer-security incident that a described elsewhere in FDIC banking organization believes in good regulations. faith could materially disrupt, degrade, SECURITIES AND EXCHANGE § § 304.15–304.20 [Reserved] or impair— COMMISSION (i) The ability of the banking ■ 6. Reserve §§ 304.15 through 304.20. organization to carry out banking ■ 7. Add subpart C to read as follows: 17 CFR Part 240 operations, activities, or processes, or Subpart C—Computer-Security Incident deliver banking products and services to [Release No. 34–90769; File No. S7–23–20] Notification a material portion of its customer base, Notice of Proposed Conditional Sec. in the ordinary course of business; Exemptive Order Granting a 304.21 Authority, purpose, and scope. (ii) Any business line of a banking Conditional Exemption From the 304.22 Definitions. organization, including associated Information Review Requirement and 304.23 Notification. operations, services, functions and 304.24 Bank service provider notification. the Recordkeeping Requirement Under support, and would result in a material the Securities Exchange Act of 1934 loss of revenue, profit, or franchise Subpart C—Computer-Security for Certain Publications or value; or Incident Notification Submissions of Broker-Dealer (iii) Those operations of a banking Quotations on an Expert Market § 304.21 Authority, purpose, and scope. organization, including associated (a) Authority. This subpart is issued services, functions and support, as AGENCY: Securities and Exchange under the authority of 12 U.S.C. 1463, applicable, the failure or discontinuance Commission. 1811, 1813, 1817, 1819, and 1861–1867. of which would pose a threat to the ACTION: Notice of proposed conditional (b) Purpose. This subpart promotes financial stability of the United States. exemptive order; request for comment. the timely notification of significant (6) Person has the same meaning as SUMMARY: Pursuant to Section 36(a)(1) of computer-security incidents that affect set forth at 12 U.S.C. 1817(j)(8)(A). the Securities Exchange Act of 1934 (the FDIC-supervised institutions and their § 304.23 Notification. ‘‘Exchange Act’’) and Rule 15c2–11 service providers. (c) Scope. This subpart applies to all A banking organization must notify under the Exchange Act (as published in insured state nonmember banks, insured the FDIC of a notification incident the Federal Register on October 27, state licensed branches of foreign banks, through any form of written or oral 2020, ‘‘Amended Rule 15c2–11’’ or the and State savings associations. This communication, including through any ‘‘Amended Rule’’), the Securities and subpart also applies to bank service technological means, to a designated Exchange Commission (the ‘‘SEC’’ or the providers, as defined in § 304.22(b)(2). point of contact identified by the FDIC. ‘‘Commission’’) is proposing to grant The FDIC must receive this notification exemptive relief, subject to certain § 304.22 Definitions. from the banking organization as soon conditions, to permit broker-dealers to (a) Except as modified in this subpart, as possible and no later than 36 hours publish or submit proprietary or unless the context otherwise requires, after the banking organization believes quotations for securities, on a the terms used in this subpart have the in good faith that a notification incident continuous basis, in a market where the same meanings as set forth in 12 U.S.C. has occurred. distribution of such quotations is 1813. restricted to sophisticated or § 304.24 Bank service provider professional investors, without (b) For purposes of this subpart, the notification. following definitions apply: complying with the information review (1) Banking organization means an A bank service provider is required to and recordkeeping requirements of FDIC-supervised insured depository notify at least two individuals at each Amended Rule 15c2–11(a)(1)(i) and institution, including all insured state affected banking organization customer (d)(1)(i)(A), respectively. immediately after the bank service nonmember banks, insured state- DATES: Comments should be received on licensed branches of foreign banks, and provider experiences a computer- or before February 11, 2021. security incident that it believes in good State savings associations. ADDRESSES: Comments may be faith could disrupt, degrade, or impair (2) Bank service provider means a submitted by any of the following services provided subject to the Bank bank service company or other person methods: providing services to a banking Service Company Act (12 U.S.C. 1861– organization that is subject to the Bank 1867) for four or more hours. Electronic Comments • Service Company Act (12 U.S.C. 1861– § § 304.25–304.30 [Reserved] Use the Commission’s internet 1867). ■ 8. Reserve §§ 304.25 through 304.30. comment form (https://www.sec.gov/ (3) Business line means products or rules/exorders.shtml); or services offered by a banking Brian P. Brooks, • Send an email to rule-comments@ organization to serve its customers or Acting Comptroller of the Currency. sec.gov. support other business needs. (4) Computer-security incident is an By order of the Board of Governors of the Paper Comments Federal Reserve System. occurrence that: • Send paper comments to Secretary, (i) Results in actual or potential harm Ann Misback, Securities and Exchange Commission, to the confidentiality, integrity, or Secretary of the Board. 100 F Street NE, Washington, DC availability of an information system or Federal Deposit Insurance Corporation. 20549–1090.
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All submissions should refer to File Under the Amended Rule, certain 15c2–11 that expressed interest in the Number S7–23–20. This file number applicable issuer information must be formation of an ‘‘expert market’’ for should be included on the subject line ‘‘current’’ and ‘‘publicly available,’’ as certain securities that become ineligible if email is used. To help us process and those terms are defined in the Amended for quotation after the Compliance Date review your comments more efficiently, Rule,3 for a broker-dealer to initiate (or because the information required by the please use only one method. The resume) a quoted market in the issuer’s Rule is not current and publicly Commission will post all comments on security after complying with the available for the issuers of those the Commission’s internet website information review requirement.4 securities.6 In response to comments, (https://www.sec.gov/rules/ Further, with respect to the ‘‘piggyback’’ the Commission stated that, under exorders.shtml). Comments are also exception, which allows a broker-dealer certain conditions and circumstances, available for website viewing and to rely on the quotations of the broker- an ‘‘expert market’’ could enhance printing in the Commission’s Public dealer that initially complied with the liquidity for sophisticated or Reference Room, 100 F Street NE, information review requirement to professional investors in grey market Washington, DC 20549–1090 on official maintain continuous quotations for the securities,7 as well as for small business days between the hours of security in an interdealer quotation companies seeking growth opportunities 10:00 a.m. and 3:00 p.m. All comments system (an ‘‘IDQS’’), the amendments that might prefer to be quoted in a received will be posted without change. require that applicable issuer market that is limited to such persons.8 Persons submitting comments are information also must be current and The Commission stated that it cautioned that the Commission does not publicly available, timely filed, or filed ‘‘preliminarily believes that any such redact or edit personal identifying within 180 calendar days from the end expert market must not have the information from comment submissions. of the issuer’s most recent fiscal year or potential to develop into a parallel Commenters should submit only any quarterly reporting period that is market for which quotations are information that they wish to make covered by a report required by Section accessible by retail investors and the available publicly. 13 or 15(d) of the Exchange Act, as general public.’’ 9 5 FOR FURTHER INFORMATION CONTACT: John applicable. As a result, on the The Commission stated that it has the Guidroz, Branch Chief, James Curley, Compliance Date, broker-dealers may authority to issue exemptive relief by Laura Gold, Theresa Hajost, Patrice not rely on the piggyback exception to order, under Section 36 of the Exchange 10 Pitts, Special Counsels, Elizabeth maintain a quoted market in the Act and under the Amended Rule, to Sandoe, Senior Special Counsel, securities of issuers for which facilitate the formation and Josephine Tao, Assistant Director, or information is not current and publicly implementation of such an expert Mark Wolfe, Associate Director, at (202) available. market. The Commission also stated 551–5777, in the Division of Trading The Commission received comments that, in doing so, it may consider certain and Markets, Securities and Exchange on the proposed amendments to Rule safeguards to protect retail investors, Commission, 100 F Street NE, such as (1) the types of investors who Washington, DC 20549–1090. effective date of the Rule is referred to herein as the may access quotations in this market ‘‘Compliance Date.’’ Between the effective date and (e.g., sophisticated investors that have SUPPLEMENTARY INFORMATION: the Compliance Date, broker-dealers must comply with the provisions of Rule 15c2–11 prior to the ability to assess an investment I. Background amendment. The compliance date for paragraph opportunity, including the ability to (b)(5)(i)(M) of the Amended Rule is two years after analyze its risks and rewards), and (2) A. Adoption of Amendments to Rule the effective date of the Amended Rule. the types of securities that may be 15c2–11 3 See Amended Rule 15c2–11(e)(2) (defining the quoted in such a market (e.g., those that term ‘‘current’’), (e)(5) (defining the term ‘‘publicly Rule 15c2–11 specifies key, basic available’’). were quoted in reliance on the issuer information that must be obtained 4 See Amended Rule 15c2–11(a)(1)(i)(B). The piggyback exception on the business and reviewed before a broker-dealer Rule’s recordkeeping requirement is unchanged day preceding the initial quotation that may initiate (or resume) quotations for under the amendments, except broker-dealers no is published or submitted in any such a security in a market other than a longer have to preserve documents that are 11 available on the Commission’s Electronic Data market). national securities exchange, subject to Gathering, Analysis and Retrieval System B. Request for Exemptive Relief by OTC certain exceptions.1 The Amended Rule (‘‘EDGAR’’). See Amended Rule 15c2–11(d)(1)(i)(A). Link LLC becomes effective on December 28, 5 See Amended Rule 15c2–11(f)(3)(i)(C) (requiring 2020. Except for paragraph (b)(5)(i)(M) an issuer’s specified information to be, depending In response to the Commission’s on the regulatory status of the issuer, one of the ® of the Amended Rule, compliance is following: (1) Current and publicly available; (2) discussion, OTC Link LLC (‘‘OTC Link required nine months following the timely filed (i.e., filed by the prescribed due date LLC’’), a wholly owned subsidiary of effective date, on September 28, 2021 for a report or statement as required by an Exchange OTC Markets Group Inc. (‘‘OTC Markets (the ‘‘Compliance Date’’).2 Act or Securities Act of 1933 (the ‘‘Securities Act’’) Group’’), has submitted a request on reporting obligation); or (3) filed within 180 calendar days from a specified period); see also 1 The ‘‘information review requirement’’ refers to Amended Rule 15c2–11(e)(3) (defining the term 6 Comments are available on the Commission’s the Amended Rule’s requirement to obtain and ‘‘interdealer quotation system’’). For purposes of website at https://www.sec.gov/comments/s7/14/ review specified issuer information, and to have a this proposed exemptive order, these requirements 19/s71419.htm. reasonable basis under the circumstances for with respect to the piggyback exception are referred 7 Grey market securities are securities that trade believing, based on a review of such information, to as the requirement to be ‘‘current and publicly over-the-counter but for which no quoted prices are together with any applicable supplemental available.’’ The amendments also (1) modify the published or submitted in a quotation medium for information also specified under the Amended piggyback exception’s frequency-of-quotation buyers and sellers to access. Rule, that the issuer information is accurate in all requirement by eliminating both the 12-business- 8 See Adopting Release at 68145. material respects and is from reliable sources, day requirement and the 30-calendar-day window 9 Id. before a broker-dealer may publish or submit a while still requiring that no more than four business 10 The exemptive authority provision of Rule quotation to initiate or resume a quoted market in days in succession elapse without a quotation, see 15c2–11 has been re-lettered from paragraph (h) to the issuer’s security. Amended Rule 15c2–11(f)(3)(i)(A), and (2) limit the paragraph (g) under the Amended Rule. In addition, 2 See Publication or Submission of Quotations amount of time during which broker-dealers may the standard for exemptive authority under the Without Specified Information, Exchange Act rely on the exception to quote securities of issuers Amended Rule conforms to the provision for Release No. 89891 (Sept. 16, 2020), 85 FR 68124, that they have a reasonable basis under the exemptive authority in Section 36 of the Exchange 68172 (Oct. 27, 2020) (‘‘Adopting Release’’). The circumstances for believing are shell companies, see Act. See id. at 68167. compliance date that is nine months after the Amended Rule 15c2–11(f)(3)(B)(2). 11 See id. at 68145.
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behalf of certain broker-dealers for an The Commission is proposing to grant submitted on the Expert Market would exemption from the Amended Rule’s OTC Link LLC’s request for exemptive not be permitted to be distributed or information review requirement and relief and issue a conditional exemptive displayed to the general public. Further, recordkeeping requirement to permit order as outlined below. pursuant to the MDDA, market data such broker-dealers to publish or distributors must require any person to submit, on a continuous basis, 1. Distribution of Expert Market Quotes whom they distribute quotations proprietary quotations for certain and Data published or submitted on the Expert securities of issuers for which there is Quotations published or submitted on Market that is not party to the MDDA to no current and publicly available the Expert Market are clearly identified agree, by contract, not to distribute such information, and in other specified in a data feed to which OTC Markets quotations to any person that is not a circumstances, on one of its electronic Group controls which Subscribers, permitted recipient as described herein. platforms where the distribution of such market data distributors, and users have In operating the Expert Market under quotations is limited to sophisticated or access. OTC Markets Group currently the proposed exemptive relief, OTC professional investors. limits the distribution of quotations Link LLC would establish, maintain, OTC Link LLC operates trading published or submitted on the Expert and enforce written policies and platforms on which broker-dealers Market solely to broker-dealers. Under procedures that are reasonably designed provide liquidity and execution services the proposed conditional exemptive to allow only permitted recipients to for over 11,000 U.S. and global order, OTC Markets Group would view, and to prevent the general public securities. One such platform is OTC authorize market data distributors, from viewing, quotations published or Link ATS, an alternative trading system including Subscribers, to be eligible to submitted on the Expert Market. OTC (‘‘ATS’’) that meets the definition of a receive quotations published or Link LLC also would establish, ‘‘qualified interdealer quotation system’’ submitted on the Expert Market and to maintain, and enforce policies and under paragraph (e)(6) of the Amended distribute such data to Subscribers who procedures to regularly surveil the use Rule. The securities that are quoted on comply with certain obligations and of the Expert Market data feed. Further, OTC Link ATS are organized into restrictions on data access. As Expert under its written policies and market tiers based on several factors, Market quotations are clearly identified procedures, OTC Link LLC would including the public availability of in the data feed, recipients would be determine whether market data current issuer information and whether able to control their distribution and distributors, including Subscribers, are an issuer meets minimum financial display. complying with the terms of the MDDA. thresholds. These market tiers include OTC Link LLC would regularly review Under the proposed exemptive relief, the OTCQX® Best Market, the OTCQB® activity on the Expert Market and would all entities that distribute OTC Markets Venture Market, the Pink Open Market, establish, maintain, and enforce policies Group’s market data, including and the Expert Market. The Expert and procedures that provide for further Subscribers, would be required to enter Market is a distinct market tier on review and escalation of issues, into a Market Data Distribution which OTC Link LLC’s broker-dealer including irregular quotation activities Agreement (‘‘MDDA’’) directly with subscribers (each, a ‘‘Subscriber’’ and that may indicate fraudulent behavior OTC Markets Group. OTC Markets collectively, the ‘‘Subscribers’’) 12 can, (e.g., unusually high volumes) and non- Group would control which market data among other things, find price compliance with the MDDA. Escalation distributors are permitted to receive transparency in certain securities that of issues may include a determination of may not be eligible or suitable for retail market data, and the MDDA would whether any market data distributor or investors. Currently, the distribution of require each such market data Subscriber should be denied further quotations for securities that are distributor to report all end-users to access to the Expert Market or whether published or submitted on the Expert OTC Markets Group. OTC Markets a detailed referral should be made to Market is limited to broker-dealers, and Group would distribute quotations FINRA or Commission staff, or both. OTC Link ATS does not make such published or submitted on the Expert 2. Permitted Recipients of Quotations quotations available to the general Market to market data distributors that Published or Submitted on the Expert public. In requesting exemptive relief on agree to the MDDA’s contractual and Market behalf of the Subscribers, OTC Link LLC data access restrictions that limit the plans to modify the Expert Market to distribution and display of quotations to As described above, the distribution include the safeguards described certain eligible investors, as described of real-time and delayed quotations below.13 below. Accordingly, real-time and published or submitted on the Expert delayed quotations 14 published or Market would be limited exclusively to 12 All Subscribers to OTC Link ATS are required market data distributors, including to be broker-dealer members of the Financial 14 ‘‘Delayed’’ quotations, for the purpose of this Subscribers, and certain types of Industry Regulatory Authority (‘‘FINRA’’) and must proposal, do not include ‘‘end-of-day’’ quotation sophisticated or professional investors, enter into a subscription agreement with OTC Link information, which is defined in the MDDA, and is LLC that outlines the terms and conditions of their generally understood to mean information specifically, the following categories of use of OTC Link ATS. All OTC Link ATS consisting of a snapshot of the best bid price and market participants (each, a ‘‘Qualified Subscribers can access all market tiers, including size and the best ask price and size for a security, Expert’’ and collectively, the ‘‘Qualified the Expert Market. Under the proposed conditional taken at the close of regular trading hours. End-of- Experts’’): (1) Any qualified institutional exemptive order, all quotations published or day quotation information does not include the submitted on the Expert Market would be identity of the broker-dealer(s) that published or buyer, as defined in Rule 144(A)(a)(1) attributable to Subscribers at prices at which such submitted the quotation(s) that make up the ‘‘end- under the Securities Act; and (2) any Subscribers are prepared to trade. See, e.g., FINRA of-day’’ quotation. End-of-day information is used accredited investor, as defined in Rule Rule 5220. by broker-dealers, custodian banks, clearing firms, 501(a) of Regulation D; 15 and (3) any 13 Although OTC Link LLC is requesting relief on prime brokers and service bureaus for valuation, behalf of its Subscribers using the Expert Market on settlement, accounting, clearing and custody OTC Link ATS, OTC Link LLC is not requesting the purposes because it can be more accurate, than last public; however, it is not actionable for the same relief for OTC Link ATS, as a quotation transaction information. Thus, end-of-day quotation purposes of effecting transactions. medium, because OTC Link ATS does not publish information that is used by broker-dealers in 15 The term ‘‘accredited investor’’ includes, or submit quotations on the Expert Market and, providing valuation, settlement, accounting, among other things, any bank as defined in Section thus, does not engage in activity that is subject to clearing, and custody information to its customers 3(a)(2) of the Securities Act, broker or dealer the provisions of Amended Rule 15c2–11. may be viewed by retail investors and the general Continued
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qualified purchaser, as defined in as a shell company, or a failure to meet current and publicly available, and such Section 2(a)(51)(A) of the Investment the frequency-of-quotation securities may migrate to the grey Company Act of 1940 (the ‘‘Investment requirement; 20 and (3) any security that market, where no quoted prices are Company Act’’) and the rules is issued in conjunction with a Chapter published in a quotation medium for thereunder.16 Qualified Experts may 11 bankruptcy plan confirmed pursuant buyers and sellers to access and receive quotations published or to Section 1129 of the U.S. Bankruptcy transact. As the Commission stated in submitted on the Expert Market directly Code (the ‘‘Code’’) 21 and is exempt from the Adopting Release, this may impose from OTC Markets Group, from any registration in accordance with Section costs on potential and existing investors market data distributor or Subscriber 1145 of the Code.22 by reducing liquidity for these securities that has entered into the MDDA with In addition, OTC Link LLC would and potentially resulting in less efficient OTC Markets Group, or from both.17 remove from the Expert Market pricing. Further, the loss of a quoted OTC Markets Group would also quotations for any security that fits market and the information embedded distribute quotations for an issuer’s within the following two categories: (1) in share prices may adversely impact an security published or submitted on the Any security of an issuer that is the issuer’s ability to raise capital through Expert Market to the issuer of any such subject of a registration revocation or stock issuances or through other security if the issuer contractually trading suspension order issued by the channels of finance, such as debt. The agrees not to distribute such quotations, Commission pursuant to Section 12(j) or Commission also noted that investors in directly or indirectly, to any person that 12(k) of the Exchange Act, respectively; securities in the grey market may be is not a current officer, director, or and (2) any security of an issuer that more susceptible to fraud.25 employee of the issuer.18 OTC Link LLC has identified as As described above, the Commission ‘‘defunct’’ (i.e., it has ceased operations, also stated in the Adopting Release that 3. Categories of Expert Market Securities ceased to exist, or has failed to respond it could be beneficial to establish an The subject of Subscribers’ to inquiries by OTC Link LLC). Once the ‘‘expert market’’ that would enhance proprietary quotations that can be applicable Section 12(k) trading liquidity for sophisticated or published or submitted on the Expert suspension order terminates or the professional investors and promote Market would be restricted to the subject security is re-registered with the growth opportunities for certain small following categories of securities: (1) Commission following an applicable companies, although the comments Any security that is quoted in reliance Section 12(j) revocation order, in order received on the proposal provided on the piggyback exception prior to the to be quoted on the Expert Market, the insufficient detail as to how that market Compliance Date and loses such subject security must either (1) gain and would function, safeguard retail eligibility upon the Compliance Date then lose eligibility to be quoted in investors from fraud and manipulation, due to a lack of current and publicly reliance on the piggyback exception or and facilitate regulatory oversight.26 In available information about the issuer of (2) be issued in conjunction with a its December 21, 2020 request, OTC the security; 19 (2) any security that is Chapter 11 bankruptcy plan and be Link LLC made certain representations quoted in reliance on the piggyback quoted on the Expert Market in regarding how the Expert Market would exception following the Compliance accordance with the timing function with safeguards to reduce the Date and subsequently loses such requirements discussed above.23 potential for certain retail investors to eligibility due to a lack of current and In addition, OTC Link LLC would flag be harmed by fraud and manipulation, publicly available information about the on its website any ‘‘formerly’’ as well as representations regarding how issuer of the security, the issuer’s status suspended security for such period of OTC Link LLC would establish, time as set forth in OTC Link LLC’s maintain, and enforce written policies registered pursuant to Section 15 of the Exchange policies and procedures, which OTC and procedures reasonably designed to Act, investment adviser registered pursuant to Link LLC represents would be for two facilitate the integrity and Commission Section 203 of the Investment Advisers Act of 1940, and investment company registered under the years following the applicable trading oversight of the Expert Market. Based on Investment Company Act of 1940. See Rule suspension.24 these and other facts and 501(a)(1) of Regulation D. The term ‘‘accredited II. Discussion of Proposed Relief representations made in OTC Link investor’’ also includes any entity of a type not LLC’s December 21, 2020 request, the listed in Rule 501(a)(1), that is not formed for the As a result of the amendments to Rule specific purpose of acquiring the securities offered, Commission preliminarily believes that that own investments in excess of $5,000,000, 15c2–11, after the Compliance Date, it is necessary or appropriate in the which could include a foreign bank or other non- broker-dealers must withdraw from public interest, and is consistent with U.S. financial institution. See Rule 501(a)(9) of publishing or submitting quotations in a the protection of investors, to grant, Regulation D. quotation medium for securities of subject to the conditions described 16 OTC Link LLC has requested that foreign issuers for which information is not broker-dealers, as defined in Exchange Act Rule below, exemptive relief pursuant to 15a–6(b)(3), be included in the list of Qualified Section 36(a)(1) of the Exchange Act and Experts. The Commission is seeking comment, 20 A quoted market on the Expert Market for such Rule 15c2–11 to permit Subscribers to below, regarding whether foreign broker-dealers, as security would have to commence within the first publish or submit proprietary defined in Exchange Act Rule 15a–6(b)(3), should four business days from the date on which it loses be included in the list of Qualified Experts. eligibility to be quoted in reliance on the piggyback quotations on the Expert Market, on a 17 Qualified Experts that receive Expert Market exception. continuous basis, without complying data directly from OTC Markets Group would be 21 The issuers of such securities would be subject with the requirements of Amended Rule subject to a subscriber agreement that contractually to oversight of the bankruptcy court. After 15c2–11(a)(1)(i) and (d)(1)(i)(A). The limits any further distribution. confirmation of the bankruptcy plan, the Commission notes that OTC Link LLC 18 As described above in Part I.B.1, market data bankruptcy courts may direct the company and distributors, including Subscribers, would be others to carry out the plan. See 28 U.S.C. 1142. may implement additional conditions, contractually required to ensure that the recipients 22 A quoted market on the Expert Market for such criteria, or noticing mechanisms for of quotations published or submitted on the Expert security must commence within 90 calendar days certain quotations on its platform by Market meet the definition of a Qualified Expert. from the date on which it is issued. Subscribers as it may find appropriate, 23 19 A quoted market on the Expert Market for such See supra notes 19 and 20. including as to whether additional security would have to commence within the first 24 OTC Link LLC would remove any such flag if four business days from the date on which it loses it becomes aware of a Commission or court order eligibility to be quoted in reliance on the piggyback finding for the successful challenge of the 25 See Adopting Release at 68145, 68198. exception. applicable trading suspension. 26 Id. at 68145.
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quotations for securities of certain things, demonstrated the ability to B. Expert Market Securities issuers should be transferred to the assess an investment opportunity The Commission preliminarily Expert Market because they may present (including the ability to analyze risks believes that it is appropriate for the more risk to certain retail investors. and rewards), or the ability to gain following categories of securities to be The proposed conditional exemptive access to information about an issuer or eligible to be the subject of Subscribers’ relief would allow the Expert Market to about an investment opportunity.29 proprietary quotations on the Expert serve as a centralized location for Such persons should be able to view Market. published quotations in certain quotations published or submitted on The first category is securities that securities—that otherwise would the Expert Market because they may not lose eligibility to be quoted in reliance migrate to the grey market following the need the same investor protections that on the piggyback exception—either (1) Compliance Date—to be viewed are afforded, in part, by current and upon the Compliance Date due to a lack exclusively by specified categories of publicly available issuer information in of current and publicly available sophisticated or professional investors. the same way that the general public information about an issuer, or (2) Such relief, therefore, could help to may need it to analyze an investment following the Compliance Date due to (i) advance opportunities for more efficient opportunity or to counteract a lack of current and publicly available pricing in such securities, enhance misinformation. In addition, the information about the issuer, (ii) the liquidity for sophisticated or Commission preliminarily believes that issuer’s status as a shell company, or professional investors in such securities, it is appropriate to include qualified (iii) a failure to meet the frequency-of- and promote capital formation for purchasers, as defined in Section quotation requirement—so long as companies seeking growth opportunities 2(a)(51)(A) of the Investment Company quotations on the Expert Market that might prefer to be quoted in a Act and the rules thereunder, in the list commence within four business days of market limited to such persons. 31 of Qualified Experts because qualified such loss of eligibility. As stated in the A. Permitted Recipients of Quotations purchasers are investors that have a Adopting Release, the Commission Published or Submitted on the Expert high degree of financial sophistication recognizes that holders of such securities may incur costs related to a Market who are in a position to appreciate the loss of liquidity when broker-dealers risks associated with investing in The Commission is proposing to limit cannot rely on the piggyback securities that would be quoted on the the universe of market participants to exception.32 The ability of broker- whom real-time and delayed quotations Expert Market without the protections dealers (i.e., Subscribers) to publish or published or submitted on the Expert afforded by the Amended Rule. submit proprietary quotations for those Market are distributed. Accordingly, Notably, this list of Qualified Experts securities on the Expert Market could with one exception discussed below, would exclude customers of broker- help to facilitate liquidity for such real-time or delayed quotations dealers and investment advisers (that do securities because the availability of published or submitted on the Expert not fit into any of the three categories of quotations could reduce trading costs Market may not be distributed, whether Qualified Experts) because this market and facilitate pricing efficiency. This is directly or indirectly from another is not available to the general public.30 because investors that are Qualified source,27 to any person that is not a In addition, as an exception to the Experts would be able to view those Qualified Expert. The Commission Qualified Expert requirement, the quotations and use such information in preliminarily believes that the inability the mix of information (e.g., in addition Commission preliminarily believes that of the general public to view real-time to their own due diligence or issuer it is appropriate for an issuer to be able and delayed quotations published or disclosures that might not be publicly to view quotations published or submitted on the Expert Market should available but to which they otherwise help protect investors from incidents of submitted on the Expert Market for its have access) that they take into account fraud and manipulation in OTC own security, if the issuer agrees not to as part of a meaningful investment securities for which no or limited distribute such quotations, directly or analysis when making investment publicly available information about the indirectly, to any person that is not a decisions.33 Without the proposed issuers exists to help counteract current officer, director, or employee of exemption, as discussed above, these misinformation, while also allowing the issuer, as described above. This is securities may migrate to the grey Subscribers to maintain a market in because such information could inform market, to which retail investors and the certain securities for certain qualified the issuer about the liquidity and general public have access, without investors to interact.28 market price of the security and allow access to information embedded in The Commission preliminarily the issuer to make informed decisions prices published in a quotation believes that including in the list of regarding future offerings to raise medium. The ability of Subscribers to Qualified Experts (1) any qualified capital. In order for an issuer to view publish or submit quotations in a institutional buyer, as defined in Rule these quotations, the issuer would need quotation medium for such securities 144(A)(a)(1) under the Securities Act, to contractually agree not to distribute could help protect retail investors and and (2) any accredited investor, as such quotations, directly or indirectly, defined in Rule 501(a) of Regulation D, to any person that is not a current 31 This four-business-day window mirrors the would appropriately capture the types officer, director, or employee of the time frame provided in the piggyback exception issuer. that quotations occur with no more than four of investors who have, among other business days in succession without a priced quotation. See Amended Rule 15c2–11(f)(3)(i). As 27 As discussed above in Part I.B, quotations 29 See, e.g., Amending the ‘‘Accredited Investor’’ an example, if eligibility to be quoted in reliance published or submitted on the Expert Market would Definition, Securities Act Release No. 10824 (Aug. on the piggyback exception were lost on Monday, be accessible to market data distributors, including 26, 2020), 85 FR 64234 (Oct. 9, 2020) (‘‘Accredited January 4, 2021, a Subscriber’s quotations on the Subscribers, that have contractually agreed to not Investor Release’’). Expert Market must commence no later than Friday, distribute quotations published or submitted on the 30 Any Subscriber that distributes quotations January 8, 2021 to be eligible for this proposed Expert Market to persons who are ineligible to published or submitted on the Expert Market to any exemption. access such information (i.e., non-Qualified person that is not a Qualified Expert would not be 32 Adopting Release at 68141. Experts), including to the general public. eligible for the relief proposed herein and may 33 See, e.g., Accredited Investor Release at 64269– 28 See, e.g., Adopting Release at 68145. violate Rule 15c2–11. 70.
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the general public from potential revocation or trading suspension order would help investors make better- incidents of fraud and manipulation in and the Commission’s finding that it is informed investment decisions.39 the grey market and facilitate liquidity in the public interest and for the C. Policies and Procedures for such securities. protection of investors,36 Subscribers The second category captures would not be able to effect transactions The Commission is proposing to securities issued in conjunction with a in such securities. Therefore, such condition the exemptive relief upon Chapter 11 bankruptcy plan that is quotations must be removed. OTC Link LLC establishing, confirmed pursuant to Section 1129 of maintaining, and enforcing reasonably the Code and are exempt from In addition, the Commission designed written policies and registration in accordance with Section preliminarily believes that it is procedures to operate the Expert Market 1145 of the Code, so long as quotations appropriate for OTC Link LLC to remove in a manner that is consistent with how on the Expert Market commence within from the Expert Market quotations the Expert Market is described herein. 90 calendar days from the date on published or submitted for any security Such policies and procedures would which any such security is issued.34 A of an issuer that OTC Link LLC has account for the following: (1) The bankruptcy proceeding is a significant identified as ‘‘defunct,’’ to prevent the manner in which the distribution of event involving an issuer that a broker- publication or submission of quotations real-time and delayed quotations on the dealer should carefully consider before for securities of issuers that have ceased Expert Market is limited, directly and it publishes or submits a quotation for operations, ceased to exist, or have indirectly, only to Qualified Experts the issuer’s security in a quotation failed to respond to inquiries by OTC and, as applicable, issuers of securities medium.35 But, the Commission Link LLC. Furthermore, the issuer of for which quotations are published or preliminarily believes that the inclusion such security may not have a transfer submitted on the Expert Market with of this category of securities as eligible agent to allow investors to receive or respect to their own securities; (2) to be the subject of Subscribers’ transfer their stock certificates. Thus, specific actions that will be taken if quotations published or submitted on the quotations for such securities should OTC Link LLC becomes aware that any the Expert Market is appropriate given be removed from the Expert Market to Subscriber or market data distributor or that Qualified Experts are more likely help prevent such securities from user has violated the contractual than the general public to possess the becoming vehicles for fraud and obligations described above, and ability to evaluate the merits and risks manipulation. specific actions that will be taken if OTC Link LLC becomes aware that an of a prospective investment opportunity Further, the Commission issuer has violated its contractual and, therefore, it would provide an preliminarily believes that requiring obligation not to distribute, directly or efficient means to liquidate positions OTC Link LLC to flag on its website any acquired through a bankruptcy indirectly, quotations published or ‘‘formerly suspended’’ security for such submitted on the Expert Market for its proceeding. The inclusion of this period of time as set forth in OTC Link second category could help promote security to any person that is not a LLC’s policies and procedures (which current officer, director, or employee of capital formation opportunities for would be for two years following the certain companies in limited the issuer; and (3) the regular applicable trading suspension) would surveillance of the Expert Market data circumstances while ensuring, for 37 help to promote investor protection. feed and quotation activity on the investor protection, that the distribution Such a flag would serve as a notice to of quotations for the securities of such Expert Market to determine whether a market participants that there was, in Subscriber or market data distributor or companies is limited to investors that the recent past, the presence of any have a demonstrated ability to assess user has facilitated access, directly or number of factors (such as uncertainty indirectly, to quotations published or such an investment opportunity. about the accuracy of publicly available The Commission believes that it submitted on the Expert Market to any issuer information or questions about would be appropriate for OTC Link LLC person that is not a Qualified Expert or, trading in the issuer’s security) that led to remove from the Expert Market as applicable, an issuer of a security for the Commission to conclude that it was quotations published or submitted for which quotations are published or in the public interest and for the any security of an issuer that is the submitted on the Expert Market with protection of investors to suspend subject of a registration revocation or respect to its own security. trading in the security.38 Accordingly, The Commission preliminarily trading suspension order issued by the the Commission preliminarily believes believes that the obligation to establish, Commission pursuant to Section 12(j) or that this flag requirement would maintain, and enforce such written 12(k) of the Exchange Act, respectively. improve the overall mix of information policies and procedures as part of the Pursuant to any such registration about issuers and their securities and proposed exemptive relief would help to prevent the general public from 34 This 90-calendar-day window is consistent with the Amended Rule’s requirement for the 36 See Exchange Act Section 12(j) (‘‘The accessing quote information, promote information of prospectus issuers (i.e., issuers that Commission is authorized, by order, as it deems the integrity of the Expert Market, and filed a registration statement under the Securities necessary or appropriate for the protection of facilitate Commission oversight of the Act) to be ‘‘current’’ for broker-dealers to commence investors to . . . revoke the registration of a Expert Market. In particular, OTC Link a quoted market in these issuers’ securities in a security, if the Commission finds . . . that the quotation medium. See Amended Rule 15c2– issuer of such security has failed to comply with LLC’s reasonably designed written 11(b)(1). The Commission preliminarily believes any provision of this chapter or the rules and policies and procedures would provide that it is appropriate to use a measurement of time regulations thereunder.’’); Exchange Act Section transparency of, and set expectations that is consistent with the Amended Rule’s 12(k)(1)(A) (‘‘If in its opinion the public interest and for, the manner in which OTC Link LLC requirement for prospectus issuers’ information the protection of investors so require, the because both requirements pertain to the Commission is authorized by order—summarily to operates the Expert Market; would commencement of a quoted market in securities of suspend trading in any security . . . for a period encompass compliance considerations an issuer with which the market is unfamiliar and not exceeding 10 business days . . . .’’). relevant to the operations of the Expert are designed to ensure that the Amended Rule’s 37 As discussed above in Part I.B.3, this period of Market; and would assist Commission specified information about the issuers of these time would be for two years following the securities is not stale or outdated with respect to applicable trading suspension, unless the trading staff in examining the Expert Market. such issuance. suspension is successfully challenged. 35 See Adopting Release at 68171. 38 See, e.g., Adopting Release at 68151. 39 See id. at 68144.
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D. Recordkeeping Requirement distribution of quotations published or 501(a) of Regulation D, be considered Finally, the Commission is proposing submitted on the Expert Market only to Qualified Experts, or should the list be to require as part of the exemptive relief Qualified Experts (and, as applicable, limited to a narrower set of that OTC Link LLC preserve, for a issuers of securities for which sophisticated investors? What steps period of not less than three years, the quotations are published or submitted should broker-dealers and investment first two years in an easily accessible on the Expert Market with respect to advisers be required to take, if any, to place, the following records: their own securities). verify the accredited investor status of customers before providing them access 1. Documents and information E. Additional Considerations for Market to quotations published or submitted on regarding OTC Link LLC’s written Participants Relying on the Proposed the Expert Market? Should all policies and procedures related to the Exemption Expert Market, including records related employees of an issuer, including those In addition, Subscribers that publish who would not otherwise qualify as to the implementation of such written or submit quotations in compliance policies and procedures; Qualified Experts, be allowed to view with this proposed exemption remain quotations published or submitted on 2. Documents and information subject to liability under the antifraud regarding any processes undertaken by the Expert Market? Please explain, provisions of the federal securities laws. including how this suggestion would be OTC Link LLC that analyze information Further, the proposed exemption would over time to identify whether the necessary or appropriate in the public not create an exemption or change interest and consistent with the distribution of quotations published or existing exemptions from the protection of investors. submitted on the Expert Market is registration requirements or any other 3. Are there any other categories of limited only to Qualified Experts and, as requirements under the federal persons or entities that should be applicable, issuers of securities for securities laws, including the Securities eligible to view real-time or delayed which quotations are published or Act, for any party. Accordingly, for quotations published or submitted on submitted on the Expert Market with example, if a Subscriber were to publish the Expert Market? The Commission respect to their own securities; and or submit a quotation on the Expert understands that foreign broker-dealers, 3. Documents and information Market in reliance on the proposed as defined in Exchange Act Rule 15a– regarding OTC Link LLC’s ongoing exemption, the Subscriber would need 6(b)(3), similar to broker-dealers surveillance of the quoting activity and to determine whether the security, or registered under Section 15 of the distribution of quotations published or any offer or sale of such security, is Exchange Act—an entity included in the submitted on the Expert Market, registered in accordance with any definition of ‘‘accredited investor’’— including any reports that identify applicable requirement under federal may demonstrate the ability to assess an exceptions to compliance with the securities laws or whether an exemption investment opportunity, the capacity to written policies and procedures and the from any such registration requirement allocate investments in such a way as to resolution of such exceptions. exists. mitigate or avoid risks of unsustainable The Commission preliminarily loss, the ability to gain access to III. Request for Comments believes that this recordkeeping information about an issuer or about an condition will help facilitate the The Commission is seeking comment investment opportunity, or the ability to Commission’s oversight of the Expert on all aspects of the proposed bear the risk of a loss. OTC Link LLC Market, including of Subscribers that exemption. In particular, the has requested that such foreign broker- publish or submit quotations on the Commission requests comment on the dealers be included in the list of Expert Market and the distribution of following questions about the proposed Qualified Experts. Should foreign such quotations. In particular, the exemption. When responding to the broker-dealers, as defined in Exchange documents and information that would request for comment, please explain Act Rule 15a–6(b)(3), be added to the be required to be maintained will your reasoning. Additionally, the list of Qualified Experts? Please explain provide the Commission with a record Commission requests that commenters why or why not, including how this of how OTC Link LLC has (1) identify sources of data and information suggestion would be necessary or implemented its reasonably designed as well as provide data and information appropriate in the public interest and written policies and procedures to assist the Commission in analyzing consistent with the protection of described above; (2) conducted its the impact of the proposed relief. investors. ongoing maintenance of such written 1. Are there any other categories of 4. What costs would be associated policies and procedures in response to securities that should be eligible for with the proposed Expert Market analysis of whether quotations Subscribers’ proprietary quotations on exemption? Please specify the market published or submitted on the Expert the Expert Market? Are there any other participant(s) that would incur such Market are distributed only to market categories of securities that should be costs (e.g., issuers, broker-dealers, etc.), data distributors (including excluded from Subscribers’ proprietary if any. Would the cost of the proposed Subscribers), Qualified Experts, and, as quotations on the Expert Market? For policies and procedures and applicable, issuers of securities for example, should only those securities recordkeeping conditions prevent the which quotations are published or that meet certain reported trade formation of an ‘‘expert market’’ for any submitted on the Expert Market with thresholds be eligible for quoting? eligible securities? Would the ability for respect to their own securities; and (3) Please explain, including how this issuers’ securities to be quoted on the enforced such written policies and suggestion would be necessary or Expert Market reduce incentives for procedures as part of its ongoing appropriate in the public interest and relevant issuers to provide public surveillance of exceptions to consistent with the protection of information? compliance with those written policies investors. 5. How active would quotations in and procedures. The Commission also 2. Are there categories of investors these securities likely be if the proposed preliminarily believes that these included in the proposed list of exemptive relief were granted? What proposed recordkeeping conditions Qualified Experts who should be degree of liquidity and price discovery would aid the Commission’s oversight excluded? For example, should all would likely be facilitated by the ability of OTC Link LLC’s limitation on the accredited investors, as defined in Rule of Subscribers to publish or submit
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quotations on the Expert Market? Where discuss the costs and benefits of meeting all the applicable ozone possible, please provide data or identify including such a sunset provision in the nonattainment area requirements except sources of information the Commission exemptive order. Additionally, please for the contingency measures could use to analyze the impact of the explain why such a sunset provision requirement, for which the EPA is relief on liquidity and price discovery. would be necessary or appropriate in proposing conditional approval. In 6. Does the proposed policies and the public interest and consistent with addition, the EPA is beginning the procedures condition provide the protection of investors. adequacy process for the 2020 motor appropriate assurance that real-time and Alternatively, please explain why the vehicle emissions budgets in the 2018 delayed quotations published or exemptive order should omit a sunset Western Nevada County Ozone Plan submitted on the Expert Market would provision, including a discussion of the through this proposed rulemaking. not be accessible to the general public, benefits and costs of such omission or DATES: Written comments must arrive including retail investors, other than the any distortive effects on the market. on or before February 11, 2021. Qualified Experts? Please explain why Lastly, please discuss whether there are ADDRESSES: Submit your comments, or why not. If not, please explain how alternative means of achieving any identified by Docket ID No. EPA–R09– the condition should be modified, benefits of a sunset provision. OAR–2019–0440 at https:// including the minimum requirements By the Commission. www.regulations.gov. For comments that should be included in OTC Link’s submitted at Regulations.gov, follow the policies and procedures to (1) ensure Dated: December 22, 2020. online instructions for submitting that only Qualified Experts can view Vanessa A. Countryman, comments. Once submitted, comments quotations published or submitted on Secretary. cannot be edited or removed from the Expert Market and (2) address [FR Doc. 2020–28700 Filed 1–11–21; 8:45 am] Regulations.gov. The EPA may publish concerns about fraud and manipulation? BILLING CODE 8011–01–P 7. Does the proposed recordkeeping any comment received to its public condition for OTC Link LLC provide docket. Do not submit electronically any appropriate means to facilitate the information you consider to be ENVIRONMENTAL PROTECTION Confidential Business Information (CBI) Commission’s oversight of the Expert AGENCY Market, including of Subscribers that or other information whose disclosure is publish or submit quotations on the 40 CFR Part 52 restricted by statute. Multimedia Expert Market and the distribution of submissions (audio, video, etc.) must be [EPA–R09–OAR–2019–0440; FRL–10018– accompanied by a written comment. such quotations? Please explain why or 44–Region 9] why not. If not, please explain how the The written comment is considered the official comment and should include condition should be modified. Clean Air Plans; 2008 8-Hour Ozone discussion of all points you wish to 8. Are the proposed safeguards Nonattainment Area Requirements; make. The EPA will generally not appropriate to ensure that only investors Western Nevada County, California who are able to assess the risks and consider comments or comment merits of investment in the categories of AGENCY: Environmental Protection contents located outside of the primary securities proposed to be included in Agency (EPA). submission (i.e., on the web, cloud, or the Expert Market are able to access ACTION: Proposed rule. other file sharing system). For quotations? Are the proposed conditions additional submission methods, please of this exemptive order (in conjunction SUMMARY: The Environmental Protection contact the person identified in the FOR with FINRA rules that govern this Agency (EPA) is proposing to approve, FURTHER INFORMATION CONTACT section. market) sufficient to prevent the general or conditionally approve, all or portions For the full EPA public comment policy, public from accessing quotations of a state implementation plan (SIP) information about CBI or multimedia published or submitted in the Expert revision submitted by the State of submissions, and general guidance on Market, or should the Commission California to meet Clean Air Act (CAA making effective comments, please visit impose additional conditions? Are there or ‘‘Act’’) requirements for the 2008 8- https://www.epa.gov/dockets/ any other safeguards that should be hour ozone national ambient air quality commenting-epa-dockets. If you need implemented in the Expert Market to standards (NAAQS or ‘‘standards’’) in assistance in a language other than protect investors? the Nevada County (Western part), English or if you are a person with 9. Are there additional conditions that California ozone nonattainment area disabilities who needs a reasonable the exemptive order providing the relief (‘‘Western Nevada County’’). The SIP accommodation at no cost to you, please proposed herein should include to help revision is the ‘‘Ozone Attainment Plan, contact the person identified in the FOR prevent persons who are not Qualified Western Nevada County, State FURTHER INFORMATION CONTACT section. Experts from accessing quotations Implementation Plan for the 2008 FOR FURTHER INFORMATION CONTACT: T. published or submitted on the Expert Primary Federal 8-Hour Ozone Standard Khoi Nguyen, Air Planning Office (AIR– Market? If yes, please specify such of .075 ppm’’ (‘‘2018 Western Nevada 2), EPA Region IX, 75 Hawthorne Street, condition and explain how this County Ozone Plan’’ or ‘‘Plan’’). The San Francisco, CA 94105, (415) 947– suggestion would be necessary or 2018 Western Nevada County Ozone 4120, or by email at nguyen.thien@ appropriate in the public interest and Plan addresses the Serious epa.gov. consistent with the protection of nonattainment area requirements for the SUPPLEMENTARY INFORMATION: 2008 ozone NAAQS, including the investors. Throughout this document, ‘‘we,’’ 10. Should the exemptive order requirements for emissions inventories, ‘‘us,’’ and ‘‘our’’ refer to the EPA. providing the relief proposed herein attainment demonstration, reasonable include a sunset provision so that the further progress, reasonably available Table of Contents relief would expire on a particular date? control measures, and contingency I. Regulatory Context If yes, what would be an appropriate measures, among others; and establishes A. Ozone Standards, Area Designations, date on which the relief should expire motor vehicle emissions budgets. The and SIPs (e.g., one year after the issuance of the EPA is proposing to approve the 2018 B. The Western Nevada County Ozone exemptive order, etc.) and why? Please Western Nevada County Ozone Plan as Nonattainment Area
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C. CAA and Regulatory Requirements for million (ppm) (referred to herein as the expeditiously as practicable but no later 2008 Ozone Nonattainment Area SIPs ‘‘1-hour ozone NAAQS’’).3 All of than July 20, 2018. II. The 2018 Western Nevada County Ozone Nevada County was designated Plan In November 2018, pursuant to CAA ‘‘Unclassifiable/Attainment’’ for the 1- section 181(b)(2), the EPA proposed to A. Summary of Submission 4 B. Clean Air Act Procedural Requirements hour standard on November 15, 1990. determine that the Western Nevada for Adoption and Submission of SIP In 1997, the EPA revised the NAAQS County Moderate nonattainment area Revisions for ozone, setting it at 0.08 ppm failed to attain the 2008 ozone NAAQS III. Evaluation of the 2018 Western Nevada averaged over an 8-hour timeframe by the Moderate area attainment date.12 County Ozone Plan (referred to herein as the ‘‘1997 ozone A. Emissions Inventories Additionally, following the EPA’s NAAQS’’) to replace the existing 1-hour November 2018 proposal, the California B. Emissions Statements 5 C. Reasonably Available Control Measures ozone NAAQS. In 2004, the EPA Air Resources Board (CARB) submitted Demonstration initially designated and classified a request under CAA section 181(b)(3) D. Attainment Demonstration Western Nevada County as a ‘‘Subpart to voluntarily reclassify the Western E. Rate of Progress Plan and Reasonable 1’’ nonattainment area for the 1997 Nevada County nonattainment area from Further Progress Demonstration ozone NAAQS.6 In response to a F. Contingency Measures Moderate to Serious nonattainment for decision of the United States Court of the 2008 ozone standards accompanied G. Motor Vehicle Emissions Budgets for Appeals for the District of Columbia by a SIP revision to address planning Transportation Conformity Circuit vacating the EPA’s subpart 1 H. Other Clean Air Act Requirements elements for a Serious area.13 designations, the EPA in 2012 revised Applicable to Serious Ozone In a final rule dated August 23, 2019, Nonattainment Areas the area’s classification for the 1997 IV. Proposed Action ozone NAAQS to ‘‘Moderate,’’ with an the EPA found that Western Nevada V. Statutory and Executive Order Reviews outermost attainment date of June 15, County failed to attain the 2008 ozone 2011.7 In 2011, the design value for the NAAQS by the applicable attainment I. Regulatory Context area was 0.079 ppm, and the EPA date, and reclassified the area as Serious A. Ozone Standards, Area Designations, published a clean data determination on by operation of law, effective September and SIPs December 3, 2012, suspending 23, 2019.14 Once reclassified to Serious, attainment-related planning Ground-level ozone pollution is the area is required to attain the requirements for the 1997 ozone formed from the reaction of volatile standard as expeditiously as practicable, NAAQS.8 organic compounds (VOC) and oxides of but no later than 9 years after the initial designation as nonattainment, i.e., July nitrogen (NOX) in the presence of In 2008, the EPA lowered the 8-hour sunlight.1 These two pollutants, referred ozone NAAQS to 0.075 ppm (referred to 20, 2021. to as ozone precursors, are emitted by herein as the ‘‘2008 ozone NAAQS’’) to The SIP revision that is the subject of many types of sources, including on-and replace the 1997 ozone NAAQS of 0.08 today’s proposed action addresses the off-road motor vehicles and engines, ppm.9 In 2012, the EPA designated Serious nonattainment area power plants and industrial facilities, Western Nevada County as requirements that apply to Western and smaller area sources such as lawn nonattainment for the 2008 ozone Nevada County for the 2008 ozone and garden equipment and paints. NAAQS and classified the area as NAAQS. Scientific evidence indicates that Marginal.10 Areas classified as Marginal adverse public health effects occur must attain the NAAQS within 3 years B. The Western Nevada County Ozone following exposure to ozone, of the effective date of the Nonattainment Area particularly in children and adults with nonattainment designation. For Western The Western Nevada County lung disease. Breathing air containing Nevada County, the applicable Marginal nonattainment area for the 2008 ozone ozone can reduce lung function and area attainment date was as inflame airways, which can increase expeditiously as practicable but no later NAAQS consists of the portion of respiratory symptoms and aggravate than July 20, 2015. The area failed to Nevada County west of the ridge of the asthma or other lung diseases.2 attain the 2008 ozone NAAQS by this Sierra Nevada mountains. Western Under section 109 of the CAA, the date, and the EPA published a Nevada County encompasses an area of EPA promulgates NAAQS for pervasive reclassification to Moderate on May 4, approximately 800 square miles. The air pollutants, such as ozone. The 2016.11 Upon reclassification, Western nonattainment area is bounded on the NAAQS are concentration levels that, Nevada County was required to attain north by the Middle Yuba River and the attainment and maintenance of the 2008 ozone NAAQS as most of the southern border is defined which, the EPA has determined to be by the Bear River. The eastern boundary requisite to protect public health and 3 44 FR 8202 (February 8, 1979). is a line running north/south that welfare. Section 110 of the CAA 4 56 FR 56694 (November 6, 1991). generally follows the ridge of the Sierra requires states to develop and submit 5 62 FR 38856 (July 18, 1997). The 1-hour ozone SIPs to implement, maintain, and standard was revoked effective June 15, 2005. See 12 83 FR 56781 (November 14, 2018). 70 FR 44470 (August 3, 2005). enforce the NAAQS. 13 See letter dated December 2, 2018, from 6 69 FR 23857 (April 30, 2004). Richard W. Corey, Executive Officer, CARB, to In 1979, the EPA established the 1- 7 77 FR 28423 (May 14, 2012). For more details Michael Stoker, Regional Administrator, EPA hour ozone NAAQS of 0.12 parts per on the revised classification, see 77 FR 56775, Region IX, and letter dated November 14, 2018 from 56776 (September 14, 2012). Gretchen Bennitt, Executive Director, NSAQMD, to 1 The State of California refers to reactive organic 8 77 FR 71551 (December 3, 2012). Richard W. Corey, Executive Officer, CARB, subject gases (ROG) rather than VOC in some of its ozone- 9 73 FR 16436 (March 27, 2008). The EPA further ‘‘Submittal of the Northern Sierra Air Quality related SIP submissions. As a practical matter, ROG tightened the 8-hour ozone NAAQS to 0.070 ppm Management District Ozone Attainment Plan for the and VOC refer to the same set of chemical in 2015, but today’s proposed action relates to the 2008 Federal 8-hour Ozone Standard.’’ constituents, and for the sake of simplicity, we refer requirements for the 2008 ozone NAAQS only. 14 84 FR 44238. The notice for this action to this set of gases as VOC in this proposed rule. Information on the 2015 ozone NAAQS is available acknowledges CARB’s request for voluntary 2 ‘‘Fact Sheet—2008 Final Revisions to the at 80 FR 65292 (October 26, 2015). reclassification, and notes that the EPA’s National Ambient Air Quality Standards for Ozone’’ 10 77 FR 30088 (May 21, 2012). determination resulted in the same outcome as dated March 2008. 11 81 FR 26697 (May 4, 2016). would occur with an approval of that request.
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Nevada mountains.15 The population of 2008 Ozone SRR. The only aspect of the area generally, a discussion about the Western Nevada County South Coast II decision that relates to specific challenges in meeting air nonattainment area is about 83,000 this proposed action is the vacatur of quality standards in the area, and a people.16 the alternative baseline year for RFP formal request to reclassify the area to Air quality in Western Nevada County plans. More specifically, the 2008 Serious for the 2008 ozone NAAQS. is regulated jointly by the Northern Ozone SRR required states to develop Chapters IV through XIII address Sierra Air Quality Management District the baseline emissions inventory for specific planning elements for a Serious (NSAQMD or ‘‘District’’) and CARB. The RFP plans using the emissions area, including emissions inventory, Nevada County Transportation inventory for the most recent calendar transportation conformity budgets, Commission (NCTC) is the regional year for which states submit a triennial emissions statements, new source transportation planning agency for the inventory to the EPA under subpart A, review (NSR), RACM, RFP, attainment County of Nevada. For transportation ‘‘Air Emissions Reporting demonstration, and contingency planning purposes, the area is an Requirements,’’ of 40 CFR part 51, measures. The Plan also includes eight 17 isolated rural area. which was 2011. The 2008 Ozone SRR, appendices providing additional however, allowed states to use an information on emissions inventories, C. CAA and Regulatory Requirements alternative year, between 2008 and CARB control measures, CARB analysis for 2008 Ozone Nonattainment Area 2012, for the baseline emissions of key mobile source regulations and SIPs inventory provided the state programs, a mobile sources and States must implement the 2008 demonstrated why the alternative consumer products RACM ozone NAAQS under title I, part D of baseline year was appropriate. In the demonstration, and the modeled the CAA, including sections 171–179B South Coast II decision, the D.C. Circuit of subpart 1, ‘‘Nonattainment Areas in vacated the provisions of the 2008 attainment demonstration, a modeling General,’’ and sections 181–185 of Ozone SRR that allowed states to use an emissions inventory for the subpart 2, ‘‘Additional Provisions for alternative baseline year for nonattainment area, a description of the Ozone Nonattainment Areas.’’ To assist demonstrating RFP. conceptual model for the nonattainment states in developing effective plans to area, and CARB’s modeling protocol II. The 2018 Western Nevada County address ozone nonattainment problems, used for the photochemical modeling. Ozone Plan in 2015, the EPA issued a SIP Additionally, to further supplement Requirements Rule (SRR) for the 2008 A. Summary of Submission the contingency measures element of ozone NAAQS (‘‘2008 Ozone SRR’’) that On December 2, 2018, CARB the 2018 Western Nevada County Ozone addressed implementation of the 2008 submitted the 2018 Western Nevada Plan, CARB forwarded an October 26, standards, including attainment dates, County Ozone Plan to the EPA as a 2020 letter from the District 22 requirements for emissions inventories, revision to the California SIP to address committing to adopt as a rule the most attainment and reasonable further the nonattainment area requirements for recent Architectural Coatings Suggested progress (RFP) demonstrations, among Western Nevada County for the 2008 Control Measure (SCM) developed and other SIP elements, as well as the ozone NAAQS.20 The 2018 Western approved by CARB to serve as a transition from the 1997 ozone NAAQS Nevada County Ozone Plan includes contingency measure that would be to the 2008 ozone NAAQS and various chapters and appendices, triggered if the area fails to meet an RFP associated anti-backsliding described further below, plus the milestone for the 2008 ozone NAAQS or requirements.18 The 2008 Ozone SRR is District’s resolution of adoption for the to reach attainment by a July 20, 2021 codified at 40 CFR part 51, subpart AA. Plan (District Resolution 2018–07) and attainment date. In the letter forwarding We discuss the CAA and regulatory CARB’s resolution of adoption of the this commitment, dated November 16, requirements for the elements of 2008 Plan as a revision to the California SIP ozone plans relevant to this proposal in 2020, CARB commits to submit the new (CARB Resolution 18–36).21 The Plan District rule to the EPA as a SIP revision more detail in Section III of this addresses the CAA requirements for document. within 12 months of the EPA’s final emissions inventories, air quality action on the contingency measures The EPA’s 2008 Ozone SRR was modeling demonstrating attainment, challenged, and on February 16, 2018, element of the 2018 Western Nevada reasonably available control measures County Ozone Plan. the U.S. Court of Appeals for the D.C. (RACM), RFP, and motor vehicle Circuit (‘‘D.C. Circuit’’) published its emissions budgets, among other In a technical memorandum decision in South Coast Air Quality requirements. submitted by email on October 27, 2020, Management. District v. EPA (‘‘South The 2018 Western Nevada County CARB provided additional information 19 Coast II’’) vacating portions of the Ozone Plan begins with an executive related to the motor vehicle emissions summary, an introductory section budgets in the 2018 Western Nevada 15 For a precise definition of the boundaries of the County Ozone Plan.23 Additionally, Western Nevada County 2008 ozone nonattainment discussing ozone pollution and the area, see 40 CFR 81.305. Western Nevada County nonattainment CARB has provided a copy of the 2019 16 2018 Western Nevada County Ozone Plan, page emissions inventory for the 12. The earlier decision involved a challenge to the 17 Isolated rural nonattainment and maintenance EPA’s Phase 1 implementation rule for the 1997 22 Letter dated November 16, 2020, from Richard areas are defined in 40 CFR 93.101 as areas that do ozone NAAQS. South Coast Air Quality Corey, Executive Officer, CARB, to John Busterud, not contain or are not part of any metropolitan Management Dist. v. EPA, 472 F.3d 882 (D.C. Cir. Regional Administrator, EPA Region IX. CARB’s planning area as designated under the 2006). letter also forwarded the District’s commitment transportation planning regulations. 20 Letter dated December 2, 2018, from Richard letter to the EPA. The District’s letter is dated 18 80 FR 12264 (March 6, 2015). Corey, Executive Officer, CARB, to Mike Stoker, October 26, 2020, from Gretchen Bennitt, NSAQMD 19 South Coast Air Quality Management District v. Regional Administrator, U.S. Environmental Air Pollution Control Officer, to Richard Corey, EPA, 882 F.3d 1138 (D.C. Cir. 2018). The term Protection Agency Region 9. CARB Executive Officer. ‘‘South Coast II’’ is used in reference to the 2018 21 NSAQMD Board Resolution 2018–7, October 23 See attachment to email dated October 27, 2020 court decision to distinguish it from a decision 22, 2018; CARB Board Resolution 18–36, 2018 from Nesamani Kalandiyur, CARB, to Khoi Nguyen published in 2006 also referred to as ‘‘South Coast.’’ Ozone Attainment Plan for Western Nevada County. and Karina O’Connor, EPA Region 9.
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24 nonattainment area, and clarifications 2018 Western Nevada County Ozone emissions of VOC and NOX and to emissions tables in the Plan.25 Plan.29 On June 20, 2019, the EPA represent emissions for a typical ozone determined that certain portions of this season weekday.33 B. Clean Air Act Procedural States should submittal applicable to the 2008 ozone Requirements for Adoption and include documentation explaining how NAAQS were complete.30 Submission of SIP Revisions the emissions data were calculated. In Based on information provided in the estimating mobile source emissions, CAA sections 110(a) and 110(l) SIP revision summarized above, the states should use the latest emissions require a state to provide reasonable EPA has determined that all hearings models and planning assumptions public notice and opportunity for public were properly noticed. Therefore, we available at the time the SIP is hearing prior to the adoption and find that the submittal of the 2018 developed.34 submission of a SIP or SIP revision. To Western Nevada County Ozone Plan meet this requirement, every SIP meets the procedural requirements for Future baseline emissions inventories submittal should include evidence that public notice and hearing in CAA must reflect the most recent population, adequate public notice was given and an sections 110(a) and 110(l) and 40 CFR employment, travel and congestion opportunity for a public hearing was 51.102. projections for the area. In this context, provided consistent with the EPA’s future ‘‘baseline’’ emissions inventories implementing regulations in 40 CFR III. Evaluation of the 2018 Western refer to emissions estimates for a given 51.102. Nevada County Ozone Plan year and area that reflect rules and Both the District and CARB have A. Emissions Inventories regulations and other measures that are satisfied the applicable statutory and already adopted and that consider regulatory requirements for reasonable 1. Statutory and Regulatory expected growth. Future baseline public notice and hearing prior to the Requirements emissions inventories are necessary to adoption and submittal of the 2018 CAA sections 172(c)(3) and 182(a)(1) show the projected effectiveness of SIP Western Nevada County Ozone Plan. On require states to submit for each ozone control measures. Both the base year September 21, 2018, the District nonattainment area a ‘‘base year and future year inventories are published a notice in the local inventory’’ that is a comprehensive, necessary for photochemical modeling newspaper of a public hearing to be accurate, current inventory of actual to demonstrate attainment. held on October 22, 2018, for the emissions from all sources of the adoption of the 2018 Western Nevada relevant pollutant or pollutants in the 2. Summary of State’s Submission 26 County Ozone Plan. The District area. In addition, the 2008 Ozone SRR The 2018 Western Nevada County adopted the Plan through Resolution requires that the inventory year be Ozone Plan includes base year (2011) #2018–07 at the October 22, 2018 selected consistent with the baseline and future year (2012, 2014, 2017, 2020, hearing, and directed the Executive year for the RFP demonstration, which and 2021) baseline inventories for NOX Director to forward the Plan to CARB for is the most recent calendar year for and VOC for the Western Nevada 27 inclusion in the California SIP. which a complete triennial inventory is County ozone nonattainment area. CARB also provided public notice and required to be submitted to the EPA Documentation for the inventories are opportunity for public comment on the under the Air Emissions Reporting found in Chapter IV, ‘‘Emissions 2018 Western Nevada County Ozone 31 Requirements. Inventory Background,’’ Chapter V, Plan. On October 12, 2018, CARB The EPA has issued guidance on the ‘‘Summary of Emissions Inventory released for public review its Staff development of base year and future Methodologies,’’ Appendix A, Report for the Plan and published a year emissions inventories for ozone ‘‘Emissions Inventories for 2011, 2012, notice of public meeting to be held on and other pollutants.32 Emissions 2014, 2017, 2020 and 2021,’’ and November 15, 2018, to consider inventories for ozone must include Appendix F, ‘‘Modeling Emission adoption.28 At the November 15, 2018 Inventory for the 8-Hour Ozone State hearing, CARB adopted the Plan as a 29 CARB Resolution 18–36. Implementation Plan in Western Nevada revision to the California SIP, excluding 30 Letter dated June 20, 2019, from Elizabeth County Non-attainment Area (WNNA).’’ those portions not required to be Adams, Director, Air and Radiation Division, EPA Region IX, to Richard Corey, Executive Officer, submitted to the EPA, and directed the CARB. The Plan was deemed complete by operation The emissions inventories represent Executive Officer to submit the Plan to of law on June 2, 2019, 6 months after submittal, average summer day emissions, the EPA for approval into the California but the EPA completeness finding for the following consistent with the observation that SIP. On December 2, 2018, the SIP elements: Contingency measures for VOC and higher ozone levels in Western Nevada NOX; emissions statement; ozone attainment Executive Officer of CARB submitted demonstration; and RFP demonstration for VOC County typically occur from May the Plan to the EPA, including the and NOX for moderate nonattainment areas was through October. The 2011 base year CARB Board resolution adopting the necessary to stop clocks for mandatory sanctions in and future year inventories in the 2018 the Western Nevada nonattainment area under Western Nevada County Ozone Plan section 179(a) of the CAA resulting from a 24 Email dated May 14, 2020 from Earl December 11, 2017 finding of failure to submit. See reflect District rules and CARB Withycombe, CARB, to Khoi Nguyen, EPA Region 82 FR 58118. regulations submitted through 9, for attachment of the 2019 emission inventory for 31 2008 Ozone SRR at 40 CFR 51.1115(a) and the November 2016.35 The mobile source the nonattainment area. Air Emissions Reporting Requirements at 40 CFR 25 portions of both base year and projected Email dated August 17, 2020 from Webster part 51, subpart A. Tasat, CARB, to Khoi Nguyen, EPA Region 9, for future year inventories were developed 32 ‘‘Emissions Inventory Guidance for clarifications of the emission tables. Implementation of Ozone and Particulate Matter using California’s EPA-approved mobile 26 Affidavit of Publication from Nevada County National Ambient Air Quality Standards (NAAQS) source emissions model, EMFAC2014, Publishing Company including a copy of the proof and Regional Haze Regulations,’’ EPA–454/B–17– of publication and of the September 21, 2018 notice 002, May 2017. At the time the 2018 Western 33 40 CFR 51.1115(a) and (c), and 40 CFR for the October 22, 2018 public hearing. Nevada County Ozone Plan was developed, the 51.1100(bb) and (cc). 27 See NSAQMD Resolution #2018–07, October following EPA emissions inventory guidance 34 80 FR 12264, at 12290 (March 6, 2015). 22, 2018. applied: ‘‘Emissions Inventory Guidance for 35 ‘‘Staff Report: CARB Review of the Ozone 28 Notice of Public Meeting to Consider the Ozone Implementation of Ozone and Particulate Matter Attainment Plan for Western Nevada County, National Ambient Air Quality Standards (NAAQS) Attainment Plan for Western Nevada County,’’ signed by Richard Corey, Executive Officer, CARB, and Regional Haze Regulations,’’ EPA–454–R–05– CARB, October 12, 2018, page 6 (‘‘CARB Staff October 12, 2018. 001, August 2005. Report’’).
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37 for estimating on-road motor vehicle NOX. Areawide sources include CARB developed the emission emissions.36 smaller emissions sources distributed forecasts in the 2018 Western Nevada Emissions estimates of VOC and NOX across the nonattainment area. CARB County Ozone Plan by applying growth in the 2018 Western Nevada County and the District estimate emissions for and control profiles to the base year Ozone Plan are grouped into three areawide sources using the most recent inventory. Growth profiles for stationary categories: (1) Stationary point sources, models and methodologies, including point and areawide sources are derived (2) areawide sources, (3) on-road and publicly available emission factors and from surrogates such as economic other mobile sources. Stationary point activity information. CARB also activity, fuel usage, population, housing sources refer to larger sources that have reviewed the growth profiles for point units, etc. Growth projections were a fixed geographic location, such as and areawide source categories and obtained from government entities with power plants, industrial engines, and oil updated them as necessary to ensure expertise in developing forecasts for storage tanks. This inventory includes that the emission projections are based specific sectors, and from econometric emissions from stationary internal on data that reflect historical trends, models. Control profiles, which account combustion engines and gasoline current conditions, and recent economic for emissions reductions resulting from dispensing facilities; these are not and demographic forecasts. Growth adopted rules and regulations, are inventoried individually but estimated forecasts for most point and areawide derived from data provided by the as a group and reported as an aggregated sources were developed by CARB. regulatory agencies responsible for the total. Areawide sources are emissions affected emission categories.38 sources occurring over a wide On-road emissions inventories in the geographic area, such as consumer 2018 Western Nevada County Ozone Table 1 provides a summary of the products and architectural coatings. The Plan are based on 2012 travel activity District’s 2011 base year, 2012 baseline on-road sources include light-duty data provided by the California year for modeling, and 2020 attainment automobiles, light-, medium-, and Department of Motor Vehicles. CARB year baseline VOC and NOX emissions heavy-duty trucks, and motorcycles. provided emissions inventories for off- estimates in tons per day (tpd) for an Other mobile (off-road) sources include road equipment, including locomotives, average summer day. All inventory aircraft, recreational boats, and off-road pleasure craft and recreational vehicles, years in the 2018 Western Nevada equipment. in-use off-road equipment, transport County Ozone Plan are derived from the For the 2018 Western Nevada County refrigeration units, cargo handling 2011 base year inventory, except that Ozone Plan, stationary point source equipment, diesel agricultural 2012 is used as the baseline year for emissions for the 2011 base year equipment, and fuel storage and attainment modeling. These inventories emissions inventory are based on handling. Emissions from off-road provide the basis for the control reported data from all stationary point sources were estimated using a suite of measure analysis and the attainment sources in Western Nevada County category-specific models or, where a demonstration in the Plan. Based on the using the District’s annual emissions new model was not available, the inventory for 2011, mobile sources are reporting program, which applies under OFFROAD2007 model. A detailed list of the predominant sources for both VOC District Rule 513, ‘‘Emissions the updates made to specific emissions and NOX emissions. For a more detailed Statements and Recordkeeping,’’ to inventory categories can be found in discussion of the inventories, see stationary sources that emit VOC or Chapter V. Appendix A of the Plan.
TABLE 1—WESTERN NEVADA 2011 BASE YEAR, 2012 BASELINE YEAR FOR MODELING, AND 2020 ATTAINMENT YEAR EMISSIONS INVENTORIES [Summer planning inventory, tpd]
2011 2012 2020 Category VOC NOX VOC NOX VOC NOX
Stationary ...... 0.7620 0.0999 0.7006 0.0997 0.7843 0.0918 Area Sources...... 1.4109 0.1452 1.3946 0.1349 1.5150 0.1377 On-Road and Other Mobile Sources ...... 3.3227 5.4415 3.1131 4.9124 1.9559 2.8886
Total for Western Nevada County Nonattainment Area...... 5.4956 5.6866 5.2083 5.1470 4.2552 3.1181 Source: 2018 Western Nevada County Ozone Plan, Appendix A. The sum of the emissions values may not equal the total shown due to rounding of the numbers.
3. The EPA’s Review of the State’s Western Nevada County Ozone Plan and guidance. First, as required by EPA Submission the inventory methodologies used by regulation, we find that the 2011 We have reviewed the 2011 base year the District and CARB for consistency inventory includes estimates for VOC emissions inventory in the 2018 with CAA requirements and EPA and NOX for a typical ozone season
36 EMFAC is short for EMission FACtor. In EMFAC2017, for future SIP development and if the emissions for the class or category of source December 2015, the EPA approved EMFAC2014 for transportation purposes in California. 84 FR 41717 are included in the base year and periodic emission SIP development and transportation conformity (August 15, 2019). inventories and the emissions are calculated using purposes in California. 80 FR 77337 (December 14, 37 The Air Pollution Control Officer of the emission factors established by the EPA or other 2015). EMFAC2014 was the most recently approved NSAQMD may waive the applicability of the methods acceptable to the EPA. As described in version of the EMFAC model that was available at reporting required by District Rule 513 for certain Section B of this document, this approach is the time of preparation of the Western Nevada classes or categories of sources with actual consistent with CAA section 182(a)(3)(B)(ii). County Ozone Attainment Plan. The EPA recently emissions or potential to emit less than 10 tons per 38 2018 Western Nevada County Ozone Plan, page approved an updated version of the EMFAC model, year of actual facility-wide VOC or NOX emissions 23.
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weekday, and that the Plan provides certifying the statement. Section District has waived the requirement adequate documentation explaining 182(a)(3)(B)(ii) of the Act allows states (consistent with CAA section how the emissions are calculated. to waive the emissions statement 182(a)(3)(B)(ii)); and requires reporting, Second, we find that the 2011 base requirement for any class or category of on an annual basis, of total emissions of year emissions inventory in the Plan stationary sources that emit less than 25 VOC and NOX. Also, as required under reflects appropriate emissions models tpy of VOC or NOX, if the state provides CAA section 182(a)(3)(B), District Rule and methodologies, and, therefore, an inventory of emissions from such 513 requires certification that the represents a comprehensive, accurate, class or category of sources as part of the information provided to the District is and current inventory of actual base year or periodic inventories accurate to the best knowledge of the emissions during that year in the required under CAA sections 182(a)(1) individual certifying the emissions data. Western Nevada County nonattainment and 182(a)(3)(A), based on the use of Therefore, for the reasons described in area. Therefore, the EPA is proposing to emission factors established by the EPA the preceding paragraph, we propose to approve the 2011 emissions inventory or other methods acceptable to the EPA. find that District Rule meets the in the 2018 Western Nevada County The preamble of the 2008 Ozone SRR emissions statement requirements for Ozone Plan as meeting the requirements states that if an area has a previously the 2008 ozone NAAQS under CAA for a base year inventory set forth in approved emissions statement rule for section 182(a)(3)(B). CAA section 182(a)(1) and 40 CFR the 1997 ozone NAAQS or the 1-hour 51.1115. ozone NAAQS that covers all portions C. Reasonably Available Control With respect to future year baseline of the nonattainment area for the 2008 Measures Demonstration projections, we have reviewed the ozone NAAQS, such rule should be 1. Statutory and Regulatory growth and control factors and find sufficient for purposes of the emissions Requirements them acceptable and conclude that the statement requirement for the 2008 future baseline emissions projections in ozone NAAQS.40 The state should CAA section 172(c)(1) requires that the 2018 Western Nevada County Ozone review the existing rule to ensure it is each attainment plan provide for the Plan reflect appropriate calculation adequate and, if so, may rely on it to implementation of all RACM as methods and the latest planning meet the emission statement expeditiously as practicable (including assumptions. requirement for the 2008 ozone NAAQS. such reductions in emissions from Furthermore, we note that the future Where an existing emissions statement existing sources in the area as may be year baseline projections take into program is still adequate to meet the obtained through implementation of account emissions reductions from requirements of this rule, states can reasonably available control technology control measures in adopted state and provide the rationale for that (RACT)), and also provide for local rules and regulations. As a general determination to the EPA in a written attainment of the NAAQS. The 2008 matter, the EPA will approve a SIP statement in the SIP to meet this Ozone SRR requires that, for each revision that takes emissions reduction requirement. States should identify the nonattainment area required to submit credit for such control measures only various requirements and how each is an attainment demonstration, the state where the EPA has approved the control met by the existing emissions statement concurrently submit a SIP revision measures as part of the SIP. See program. Where an emissions statement demonstrating that it has adopted all Appendix B of the 2018 Western requirement is modified for any reason, RACM necessary to demonstrate Nevada County Ozone Plan, ‘‘CARB states must provide the revision to the attainment as expeditiously as Control Measures, 1985 to 2016,’’ 2018 emissions statement as part of its SIP. practicable and to meet any RFP Western Nevada County Ozone Plan for requirements.42 the list of control measures. 2. Summary of the State’s Submission The EPA has previously provided With respect to mobile sources, the The 2018 Western Nevada County guidance interpreting the RACM EPA has taken action in recent years to Ozone Plan addresses compliance with requirement in the General Preamble for approve CARB mobile source the emissions statement requirement in the Implementation of the CAA regulations into the California SIP.39 We CAA section 182(a)(3)(B) for the 2008 Amendments of 1990 (‘‘General therefore find that the future year ozone NAAQS by reference to District Preamble’’) and in a memorandum baseline projections in the 2018 Western Rule 513, ‘‘Emission Statements and entitled ‘‘Guidance on the Reasonably Nevada County Ozone Plan are properly Recordkeeping,’’ which, among other Available Control Measure Requirement supported by SIP-approved stationary things, requires emissions reporting and Attainment Demonstration and mobile source control measures. from all stationary sources of NOX and Submissions for Ozone Nonattainment 43 B. Emissions Statements VOC greater than or equal to 10 tpy. The Areas.’’ In short, to address the EPA approved District Rule 513 as a requirement to adopt all RACM, states 1. Statutory and Regulatory revision to the California SIP on June should consider all potentially Requirements 21, 2017, finding that Rule 513 fulfills reasonable control measures for source Section 182(a)(3)(B)(i) of the Act the relevant emissions statement categories in the nonattainment area to requires each state to submit a SIP requirements of CAA section determine whether they are reasonably revision requiring owners or operators 182(a)(3)(B)(i).41 available for implementation in that of stationary sources of VOC or NOX to area and whether they would, if provide the state with statements of 3. The EPA’s Review of the State’s implemented individually or actual emissions from such sources. Submission collectively, advance the area’s Statements must be submitted at least We find that District Rule 513 applies every year and must contain a within the entire ozone nonattainment 42 40 CFR 51.1112(c). certification that the information area; applies to all stationary sources 43 See General Preamble, 57 FR 13498 at 13560 contained in the statement is accurate to emitting NOX and VOC, except those (April 16, 1992) and memorandum dated November emitting less than 10 tpy for which the 30, 1999, from John Seitz, Director, OAQPS, to the best knowledge of the individual Regional Air Directors, titled ‘‘Guidance on the Reasonably Available Control Measure Requirement 39 See 81 FR 39424 (June 16, 2016), 82 FR 14446 40 80 FR 12264, at 12291 (March 6, 2015). and Attainment Demonstration Submissions for (March 21, 2017), and 83 FR 23232 (May 18, 2018). 41 82 FR 28240. Ozone Nonattainment Areas.’’
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attainment date by one year or more.44 D discuss CARB’s mobile source and evaluated Sacramento Metropolitan Air Any measures that are necessary to meet consumer products RACM assessment. Quality Management District these requirements that are not already The District concludes that there are no (SMAQMD) Rule 414 for water heaters, either federally promulgated, or part of additional control measures reasonably boilers, and process heaters rated less the state’s SIP, must be submitted in available in the area that can advance than a million BTU per hour. Based on enforceable form as part of the state’s attainment by a year or more. its analysis, and considering especially attainment plan for the area.45 The District’s RACM analysis builds the low population in the upon a foundation of District rules nonattainment area, the District 2. Summary of the State’s Submission developed for earlier ozone plans and concluded that potential cumulative For the 2018 Western Nevada County approved as part of the SIP.47 The reductions in NOX from a similar rule in Ozone Plan, the District and CARB each District has adopted rules to address the District would produce only about undertook a process to identify and various source categories of NOX and 0.0005 tpd each year, and that these evaluate potential RACM that could VOC. We provide a list of the District’s reductions would occur too slowly to contribute to expeditious attainment of NOX and VOC rules approved into the make any meaningful difference in the 2008 ozone NAAQS in Western California SIP in Table 1 of our attainment. For service/commercial fuel Nevada County. We describe each December 3, 2020 memorandum to file combustion, the District evaluated agency’s efforts below. in the docket for this proposed action. SMAQMD Rule 419 for miscellaneous combustion units. The District a. District’s RACM Analysis The SIP-approved District VOC or NOX rules listed in Table 1 of our concluded that emission reductions The District’s RACM demonstration memorandum establish emission limits from applying Rule 419 controls in the for the 2008 ozone NAAQS is described or other types of emissions controls for area would be approximately zero, in Chapter X, ‘‘Reasonably Available a wide range of sources, including because applying the rule would not be Control Measures Demonstration,’’ of incinerator burning, orchard or citrus feasible for two of the three sources in the 2018 Western Nevada County Ozone heaters, fossil fuel steam generator the nonattainment area that would be Plan. This discussion summarizes the facilities, gas stations, and more. These subject to the rule and would not result District’s analysis of potential additional rules have already provided significant in a more stringent emissions limit for control measures for stationary sources and ongoing reductions toward the last applicable source in the 46 conducted in the District’s RACT SIP, attainment of the 2008 ozone NAAQS nonattainment area. For VOC and describes additional controls in by 2021. reductions, the District evaluated state place for ‘‘areawide’’ source categories, Tables 2 and 3 of the December 3, measures for architectural coatings and 49 such as architectural and automotive 2020 memorandum provide a crosswalk automotive coatings, and found that coatings. Chapter X and Appendices B– of the area’s top-emitting stationary and reductions would be equivalent to 0.010 tpd and 0.003 tpd, respectively. The area source categories of NOX and VOC 44 Id. See also 44 FR 20372 (April 4, 1979), and with related District control rules. As District found that the estimated memorandum dated December 14, 2000, from John reductions for automotive coatings was S. Seitz, Director, OAQPS, to Regional Air shown in these tables, the area’s 2020 Directors, titled ‘‘Additional Submission on RACM stationary and area source emissions negligible and not cost effective but From States with Severe One-Hour Ozone inventory includes about 0.23 tpd of committed to adopting a rule for Nonattainment Area SIPs.’’ architectural coatings as a contingency NOX and 2.20 tpd of VOC. The top NOX 45 For ozone nonattainment areas classified as 50 source categories for this year are measure. Moderate or above, CAA section 182(b)(2) also Transportation Control Measures residential fuel combustion (0.13 tpd; requires implementation of RACT for all major (TCMs) are projects that reduce air sources of VOC and for each VOC source category 4.26 percent of 2020 inventory) and pollutants from transportation sources for which the EPA has issued a control techniques service/commercial fuel combustion guideline. CAA section 182(f) requires that RACT by reducing vehicle use, traffic (0.04 tpd; 1.25 percent of 2020 under section 182(b)(2) also apply to major congestion, or vehicle miles traveled. inventory); all other categories each stationary sources of NOX. In Serious areas, a major The Nevada County Regional source is a stationary source that emits or has the represent less than 1 percent of the 2020 Transportation Plan 2015–2035 potential to emit at least 50 tpy of VOC or NOX (see inventory.48 The top VOC source CAA section 182(c) and (f)). Under the 2008 Ozone (‘‘Transportation Plan’’), prepared by categories for this year are consumer SRR, states were required to submit SIP revisions NCTC in January 2018, summarizes and products (0.44 tpd; 10.28 percent of meeting the RACT requirements of CAA sections highlights TCMs in Nevada County, 182(b)(2) and 182(f) no later than 24 months after 2020 inventory), asphalt paving/roofing including the Western portion of the effective date of designation for the 2008 Ozone (0.38 tpd; 8.98 percent of 2020 NAAQS and to implement the required RACT Nevada County, and is included in the inventory), and architectural coatings measures as expeditiously as practicable but no docket for this action. Sample measures (0.32 tpd; 7.55 percent of 2020 later than January 1 of the 5th year after the in Western Nevada County are included effective date of designation (see 40 CFR inventory). within the TCM categories of CAA 51.1112(a)). California submitted the CAA section The District’s October 26, 2020 182 RACT SIP for Western Nevada County for the section 108(f)(1)(A). They include commitment letter for contingency 2008 ozone NAAQS on June 7, 2018. Although proposed bikeways, for example, in measures includes further analysis of Western Nevada County was classified as Moderate Grass Valley,51 a 511 traveler nonattainment for the 2008 ozone NAAQS at the potential additional controls for time of submittal, the RACT SIP evaluated the area regulated high-emission source for compliance with applicable RACT requirements 49 Architectural coatings is Western Nevada based on the 50 tpy Serious major source categories. As mentioned above, the two County’s third largest VOC source category. The thresholds, in anticipation of the area’s largest NOX source categories are largest VOC source categories in the area are reclassification to the higher classification. The EPA residential fuel combustion and service/ consumer products and asphalt paving/roofing, and found this submission complete on November 29, commercial fuel combustion. For they are already regulated, respectively, by multiple 2018 (see letter dated November 29, 2018 from CARB regulations and District Rule 227. See Table Elizabeth Adams, Acting Director, Air Divison, EPA residential fuel combustion, the District 3 of our December 3, 2020 memorandum to file. Region IX, to Richard Corey, Executive Officer, 50 The emission reductions from the adopting an California Air Resources Board, and finalized the 47 2018 Western Nevada County Ozone Plan, page architectural coatings rule for VOC (0.010 tpd) is RACT SIP submission on January 15, 2020 (85 FR 42. less than the value needed to advance attainment 48 2313). For a further breakdown of the area’s NOX and by a year for VOC (0.075 tpd), as calculated below 46 The EPA approved the District’s RACT SIP on VOC sources, see Table 3 of the EPA’s December 3, in Section III.C.3. January 15, 2020. 85 FR 2313. 2020 memorandum to file. 51 Transportation Plan, Appendix D, page D–1.
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information system that provides of on-road vehicles and engines, and NOX emission reductions due to the information on ridesharing and directs new and in-use off-road vehicles and NOX-limited nature of the drivers to other regional resources for engines. nonattainment area.58 carpools and vanpools,52 and programs CARB’s mobile source program The District evaluated a range of for improved public transit,53 including extends beyond regulations that are potentially available measures and was improvements and maintenance for bus subject to the waiver or authorization unable to find a combination of stops and shelters. process set forth in CAA section 209 to potential additional control measures As explained above, the District include standards and other for RACM. The EPA further calculated identified potential candidate measures requirements to control emissions from the additional reductions that would be for RACM based upon categories with in-use heavy-duty trucks and buses, necessary to advance attainment by a high NOX and VOC emissions and gasoline and diesel fuel specifications, year. Subtracting the District’s 2020 relevant local or state measures. This and many other types of mobile sources. attainment year emissions inventory analysis was included in the District’s Generally, these regulations have been from the 2019 emissions inventory commitment letter for contingency submitted and approved as revisions to yields a difference of 0.21 tpd NOX and measures and is further described in the California SIP.54 0.075 tpd VOC, equivalent to the Section III.F.2. Based on its evaluation CARB’s Consumer Products Program reductions needed to advance 59 of all available measures and the NOX- has established regulations that limit attainment by a year. Based on our limited nature of the nonattainment VOC emissions from 129 consumer review of the District’s analysis, we area, the District concludes that the product categories, which apply in agree that no additional control District’s existing rules for stationary Western Nevada County.55 The EPA has measures are available for stationary and area sources are generally as approved many CARB measures into the and area source categories in the stringent as, or more stringent than the California SIP that limit VOC emissions nonattainment area that would provide analogous rules in other districts. from a wide array of products, including the emissions reductions needed to Further, the District concludes that, antiperspirants and deodorants, aerosol advance attainment by a year. based on its comprehensive review and coating products, and other consumer With respect to mobile sources, evaluation of potential candidate products.56 CARB’s current program addresses the measures, the District meets the RACM CARB’s RACM analysis determines full range of mobile sources in the requirement for the 2008 ozone NAAQS that, with the current mobile source Western Nevada County nonattainment for all sources under the District’s program and proposed measures, there area through regulatory programs for jurisdiction. are no additional RACM that would both new and in-use vehicles. With respect to TCMs, we find that the TCMs b. CARB’s RACM Analysis advance attainment of the 2008 ozone NAAQS in Western Nevada County. As being implemented in Western Nevada CARB’s RACM analysis is contained a result, CARB concludes that County (i.e., the TCMs described in the in Chapter X as well as Appendices California’s mobile source programs Transportation Plan) are inclusive of all B–D of the 2018 Western Nevada fully meet the RACM requirement.57 TCM RACM to be reasonably justified County Ozone Plan. CARB’s RACM and supported. analysis provides a general description 3. The EPA’s Review of the State’s We also find that CARB’s consumer of CARB’s existing mobile source Submission products program comprehensively programs. A more detailed description As described above and in our addresses emissions from consumer of CARB’s mobile source control December 3, 2020 memorandum to file products in the Western Nevada County program, including a comprehensive in the docket for this proposed action, nonattainment area. CARB measures are table listing on- and off-road mobile the District has implemented rules to more stringent than the EPA’s consumer source regulatory actions taken by reduce VOC and NOX emissions from products regulation promulgated in CARB since 1985, is contained in stationary sources in the Western 1998,60 and generally exceed the Appendix A. The RACM assessment Nevada nonattainment area. For the controls in place throughout other areas contains CARB’s evaluation of mobile 2018 Western Nevada County Ozone of the country. source and other statewide control Plan, the District indicates that its ozone Based on our review of these RACM measures that reduce emissions of NOX precursor control strategy focuses on analyses and the District’s and CARB’s and VOC in Western Nevada County. adopted rules, we propose to find that Source categories for which CARB has 54 See, e.g., the EPA’s approval of standards and there are, at this time, no additional primary responsibility for reducing other requirements to control emissions from in-use RACM (including RACT) that would emissions in California include most heavy-duty diesel-powered trucks, at 77 FR 20308 advance attainment of the 2008 ozone (April 4, 2012), revisions to the California on-road NAAQS in Western Nevada County. For new and existing on- and off-road reformulated gasoline and diesel fuel regulations at engines and vehicles, motor vehicle 75 FR 26653 (May 12, 2010), and revisions to the the foregoing reasons, we propose to fuels, and consumer products. California motor vehicle inspection and find that the 2018 Western Nevada Given the need for substantial maintenance program at 75 FR 38023 (July 1, 2010). emissions reductions from mobile and 55 2018 Western Nevada County Ozone Plan, page 58 2018 Western Nevada County Ozone Plan, page 51 and Appendix D, ‘‘Reasonably Available Control area sources to meet the NAAQS in 41. As explained in Section III.D.2.a of this Measures Assessment for Mobile Sources and document, Western Nevada County is ‘‘NOX California nonattainment areas, CARB Consumer Products.’’ limited’’ because ozone formation in the area is 56 has established stringent control CARB’s consumer product measures are found driven primarily by NOX emissions. As a result, measures for on-road and off-road in Title 17 California Code of Regulations section reducing NOX emissions is more effective for mobile sources and the fuels that power 94500 et seq. The compilation of such measures reducing ozone than reducing VOC emissions. that have been approved into the California SIP, 59 The Plan’s RACM analysis incorrectly them. California has authority under including Federal Register citations, is available at: identifies the necessary year-to-year reductions as CAA section 209 (subject to a waiver by https://www.epa.gov/sips-ca/epa-approved- 0.06 tpd of VOC and 0.23 tpd of NOX, based on a the EPA) to adopt and implement new regulations-california-sip. EPA’s most recent comparison of 2020 and 2021 inventories. Given the approval of amendments to California’s consumer small discrepancy in these numbers, relative to the emission standards for many categories products regulations was in 2014. 79 FR 62346 emission reductions available in the area, we find (October 17, 2014). that the District’s RACM analysis is adequately 52 Transportation Plan, page 126. 57 Appendix VI–A, Attachment VI–A–3, page VI– supported. 53 Transportation Plan, Tables 42–46. A–106. 60 63 FR 48819 (September 11, 1998).
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County Ozone Plan provides for the includes recommendations for a measures, means or techniques implementation of all RACM as required modeling protocol, model input (including economic incentives such as by CAA section 172(c)(1) and 40 CFR preparation, model performance fees, marketable permits, and auctions 51.1112(c). evaluation, use of model output for the of emission rights), as well as schedules numerical NAAQS attainment test, and and timetables for compliance, as may D. Attainment Demonstration modeling documentation. Air quality be necessary or appropriate to provide 1. Statutory and Regulatory modeling is performed using for timely attainment of the NAAQS.68 Requirements meteorology and emissions from a base Under the 2008 Ozone SRR, all control Section 182(c)(2)(A) of the CAA year, and the predicted concentrations measures needed for attainment must be requires that a plan for an ozone from this base case modeling are implemented no later than the nonattainment area classified Serious or compared to air quality monitoring data beginning of the attainment year ozone 69 above include a ‘‘demonstration that the from that year to evaluate model season. The attainment year ozone plan . . . will provide for attainment of performance. Once the model season is defined as the ozone season the ozone [NAAQS] by the applicable performance is determined to be immediately preceding a nonattainment 70 attainment date. This attainment acceptable, future year emissions are area’s maximum attainment date; in demonstration must be based on simulated with the model. The relative the case of the Western Nevada County photochemical grid modeling or any (or percent) change in modeled area, the attainment year is 2020. other analytical method determined concentration due to future emissions 2. Summary of the State’s Submission . . . to be at least as effective.’’ The reductions provides a relative response attainment demonstration predicts factor (RRF). Each monitoring site’s RRF a. Photochemical Modeling future ambient concentrations for is applied to its monitored base year CARB performed the air quality comparison to the NAAQS, making use design value to give the future design modeling for the Western Nevada Ozone of available information on measured value for comparison to the NAAQS. Plan, and has included documentation concentrations, meteorology, and The Modeling Guidance also of this modeling within the Plan and the current and projected emissions recommends supplemental air quality Staff Report that accompanied CARB’s inventories of ozone precursors, analyses, which may be used as part of submittal of the 2018 Ozone Plan including the effect of control measures a weight of evidence (WOE) analysis. A (‘‘CARB Staff Report’’).71 The modeling in the Plan. WOE analysis corroborates the relies on a 2012 base year and projects Areas classified Serious for the 2008 attainment demonstration by design values for 2020. The Plan’s ozone NAAQS must demonstrate considering evidence other than the modeling protocol is in Appendix H of attainment as expeditiously as main air quality modeling attainment the 2018 Western Nevada County Ozone practicable, but no later than 9 years test, such as trends and additional Plan and contains all the elements after the effective date of designation as monitoring and modeling analyses. recommended in the Modeling nonattainment. Western Nevada County Unlike the RFP demonstration and the Guidance, with the exception of a was designated as a Marginal emissions inventory requirements, the conceptual description and a WOE nonattainment area for the 2008 ozone 2008 SRR does not specify that a analysis, which appear in the CARB NAAQS effective July 20, 2012.61 It was specific year must be used for the Staff Report.72 The area is dominated by subsequently reclassified to Moderate,62 modeled base year for the attainment transport of ozone and precursors from and then to Serious,63 and accordingly demonstration. The Modeling Guidance the Sacramento Metro nonattainment must demonstrate attainment of the also does not require a particular year to area, which has a much higher standards by no later than July 20, be used as the base year for 8-hour population and emissions about twenty 2021.64 An attainment demonstration ozone plans.66 The Modeling Guidance times larger.73 Concentrations at must show attainment of the standards states that the most recent year of the Western Nevada County’s single for a full calendar year before the National Emissions Inventory may be monitor, Grass Valley, have paralleled attainment date, so in practice, Serious appropriate for use as the base year for those in the eastern portions of the nonattainment areas must demonstrate modeling, but that other years may be Sacramento area for the past two attainment for the attainment year 2020. more appropriate when considering decades. The Western Nevada County The EPA’s recommended procedures meteorology, transport patterns, area has multiple valleys extending for modeling ozone as part of an exceptional events, or other factors that from southwest to northeast into the attainment demonstration are contained may vary from year to year.67 Therefore, higher elevations of the Sierra Nevada in ‘‘Modeling Guidance for the base year used for the attainment mountain range. Upslope-downslope Demonstrating Attainment of Air demonstration need not be the same Quality Goals for Ozone, PM2.5, and year used to meet the requirements for 68 See also CAA section 110(a)(2)(A). Regional Haze’’ (‘‘Modeling 69 40 CFR 51.1108(d). emissions inventories and RFP. 70 Guidance’’).65 The Modeling Guidance With respect to the list of adopted 40 CFR 51.1100(h). 71 ‘‘Staff Report: CARB Review of the Ozone measures, CAA section 172(c)(6) 61 Attainment Plan for Western Nevada County,’’ 77 FR 30088 (May 21, 2012). requires that nonattainment area plans CARB, October 12, 2018. 62 81 FR 26697 (April 4, 2015). include enforceable emissions 72 CARB Staff Report, 2 and 20. 63 84 FR 44238 (August 23, 2019). limitations, and such other control 73 The summer 2020 emissions inventories for the 64 Nine years after the initial designation, 84 FR Sacramento nonattainment area and Western 44244. Nevada Nonattainment NOX are 63.2 and 3.1 tpd, 65 ‘‘Modeling Guidance for Demonstrating development of the Plan; the final version differs respectively; VOC emissions are 86.8 and 4.3 tpd, mainly in organization, and in updates to the Attainment of Air Quality Goals for Ozone, PM2.5, respectively, 2018 Western Nevada County Ozone and Regional Haze,’’ EPA 454/R–18–009, EPA regional haze portion and to other document Plan, E–27. The 2020 Sacramento County OAQPS, November 2018; available at https:// references. Additional EPA modeling guidance can population is 1,543,522, about 14 times the size of www.epa.gov/scram/state-implementation-plan-sip- be found in 40 CFR 51 Appendix W, Guideline on the Nevada County population of 104,343, Almanac attainment-demonstration-guidance. See also Air Quality Models, 82 FR 5182 (January 17, 2017); of Emissions & Air Quality, California Air December 2014 draft of this guidance, available at available at https://www.epa.gov/scram/clean-air- Resources Board, 2013, Appendix C, available at https://www3.epa.gov/ttn/scram/guidance/guide/ act-permit-modeling-guidance. https://ww2.arb.ca.gov/our-work/programs/ Draft-O3-PM-RH-Modeling_Guidance-2014.pdf. The 66 Modeling Guidance section 2.7.1, 35. resource-center/technical-assistance/air-quality- December 2014 draft guidance was available during 67 Id. and-emissions-data/almanac.
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flows in those valleys lead to collected during 2012. Those data cover exercises.79 The Plan’s supplemental recirculation of pollutants, and the May through September, a period that figures with hourly time series show Sierra crest tends to block flow further spans the period of highest ozone good performance; although some east; both of these enhance ozone concentrations in Western Nevada individual daily ozone peaks are missed concentrations. The area is mainly rural, County. The Modeling Guidance in May and September, there are days with generally low NOX emissions and recognizes both CMAQ and WRF as for which the modeled highest relatively high VOC emissions, so that technically sound, state-of-the-art concentration is close to the value of the ozone formation there is expected to be models. The areal extent and the highest observed concentration. This 74 NOX-limited. The recirculation and horizontal and vertical resolution used supports the adequacy of the model for the lack of NOX emissions prevents the in these models is adequate for use in the attainment demonstration. removal of ozone through the NOX modeling Western Nevada County As noted in the 2018 Western Nevada titration process. This allows carryover ozone. County Ozone Plan’s modeling protocol, of pollution from the previous day, the Modeling Guidance recognizes that The WRF meteorological model leading to high ozone values that persist limited time and resources can results and performance statistics are constrain the extent of the diagnostic through the night at the start of the 76 following morning, unlike the typical described in Appendix E. The and dynamic evaluation of model pattern for areas with ozone caused by performance evaluation focuses on a performance undertaken.80 The Plan locally generated emissions.75 smaller area than the full domain but describes a dynamic evaluation 81 in The modeling and the modeled encompassing the Western Nevada which model predictions of ozone attainment demonstration are described County nonattainment area and the concentrations for weekdays and in Chapter XII of the 2018 Western greater Sacramento area, with special weekends were compared to each other Nevada County Ozone Plan and in more attention on the winds for high ozone and to observed concentrations. This detail in Appendix E, which provides a days. There is a slight overprediction of evaluation provides useful information description of model input preparation wind speeds and underprediction of on how well the model simulates the procedures and various model temperatures in the eastern portion of effect of emissions changes, since NOX configuration options. Appendix F of the nonattainment area, but overall, emissions are lower on weekends than the 2018 Western Nevada County Ozone modeled wind speed, wind direction, on weekdays, but the days are otherwise Plan provides the coordinates of the and temperature all track observations similar. The modeled ozone decreased modeling domain and thoroughly very well, as shown in scatter and time in response to the weekend NOX describes the development of the series plots. The modeling replicates reductions, which matches the observed modeling emissions inventory, some important meteorological features decrease, and indicates that the model including its chemical speciation, its such as the upslope-downslope flows in is simulating the chemistry correctly. spatial and temporal allocation, its the Sierra Nevada foothills, and the The Plan also contains results of an temperature dependence, and quality ‘‘Schulz eddy’’ known to occur in the analysis of weekday and weekend ozone assurance procedures. The modeling greater Sacramento area. The 2018 concentrations during the 2000–2015 analysis uses version 5 of the Western Nevada County Ozone Plan period. It notes a shift over the years Community Multiscale Air Quality states that the bias and error are toward lower ozone on weekends, (CMAQ) photochemical model relatively small and are comparable to especially after 2010, showing that developed by the EPA, using the 2007 those seen in previous meteorological lower NOX emissions lead to lower ozone concentrations.82 Both the version of the Statewide Air Pollution modeling of central California and cited modeling and the observed weekday- Research Center (SAPRC07) chemical in the Plan. In summary, the 2018 weekend trends show that ozone mechanism. The CMAQ modeling Western Nevada County Ozone Plan’s responds to NO emissions reductions, domain covers most of California, meteorological modeling performance X i.e., that ozone formation is NO - nested within a domain covering the statistics appear satisfactory. X limited. The modeled 2012 base year is entire state. To prepare meteorological Ozone model performance statistics also NO -limited, with the weekday- inputs for CMAQ, CARB used the X are described in the 2018 Western weekend difference comparable to those Weather and Research Forecasting Nevada County Ozone Plan at Appendix seen historically. This match lends model version 3.6 (WRF) from the E.77 Appendix E includes tables of confidence to the modeling. National Center for Atmospheric statistics recommended in the Modeling After accepting the model Research. The WRF domain covers the Guidance for 8-hour and 1-hour daily performance for the 2012 base case, entire state of California, nested within maximum ozone concentrations. CARB used the model to develop RRFs a domain covering most of the western Predicted concentrations have a small for the attainment demonstration.83 This United States. The modeling used negative bias (underprediction) of 4.1 entailed running the model with the inputs prepared from routinely available ppb.78 This compares well to the range same meteorological inputs as before, meteorological and air quality data of 2.7 to 10.8 ppb seen in a previous but with emissions inventories to reflect
74 modeling exercise for central California Ozone is generally NOX-limited in rural areas 79 and downwind suburban areas. See pages 24 and that is cited in the Plan; bias and error Simon, H., Baker, K.R., Phillips, S, 2012, 38 of CARB Staff Report and also Chapter 2.1 Ozone are both at the low end of those seen in Compilation and Interpretation of Photochemical Model Performance Statistics Published Between Chemistry, ‘‘Final Ozone NAAQS Regulatory a comparative study of 69 modeling Impact Analysis,’’ March 2008, EPA Office of Air 2006 and 2012, Atmos. Environ., 61, 124–139. Quality Planning and Standards, available at doi:10.1016/j.atmosenv.2012.07.012. https://www3.epa.gov/ttnecas1/regdata/RIAs/452_ 76 Appendix E, section 3.2, E–17; also, refer to 80 2018 Western Nevada County Ozone Plan, R_08_003.pdf. The term ‘‘NOX-limited’’ can mean supplemental figures S.1–S.11, E–48. Appendix H, ‘‘Modeling Protocol,’’ H–31; Modeling 77 either that reducing NOX emissions decrease ozone Appendix E, section 5.2, E–32; also, refer to Guidance, 63. 81 (as opposed to increasing it); or that reducing NOX supplemental figures S.12–S.16, E–55. See ‘‘Diagnostic Evaluation’’ in Appendix E is much more effective at decreasing ozone than is 78 Because only the relative response to emissions section 5.2.1, E–36. reducing VOC. As discussed below and on page 42 changes (RRF) from the modeling is used, the 82 2018 Western Nevada County Ozone Plan, of CARB Staff Report, ozone in Western Nevada underprediction of absolute ozone concentrations Appendix E, E–40. County are decreased by reducing NOX emissions. does not mean that future concentrations will be 83 Id. at 57, and Appendix H, ‘‘Modeling 75 2018 Western Nevada Ozone Plan, page H–16. underestimated. Protocol,’’ section 10.3, H–34.
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the expected changes between the 2012 monitor. The 2018 Western Nevada air quality progress made in the Western base year and the 2020 future year. County Ozone Plan describes a UAA Nevada County Area and add support to These modeling inventories exclude carried out using software developed by the attainment demonstration for 2020. ‘‘emissions events which are either CARB and implemented in ‘‘R,’’ 90 using b. Control Strategy random and/or cannot be projected to a procedure virtually the same as that the future . . . wildfires, and events outlined in the Modeling Guidance. The The control strategy for attainment of such as the [San Francisco Bay Area] Plan states that the 2020 results show the 2008 ozone NAAQS is detailed in Chevron refinery fire.’’ 84 The future concentrations below 75 ppb at all Chapter IV of the 2018 Western Nevada inventories project the base year with locations in the nonattainment area; it County Ozone Plan. The Plan’s strategy these exclusions into the future by did not examine the surrounding area. relies primarily on emissions reductions including the effect of economic growth Because the results are well below the from control measures that have been and emissions control measures. 2008 ozone NAAQS level of 75 ppb, the adopted by the Districts and CARB prior The 2018 Western Nevada County UAA supports the demonstration that to the submittal of the Plan. The District Ozone Plan carries out the attainment all locations in Western Nevada County has adopted rules for reducing test procedure consistent with the will attain the NAAQS in 2020. emissions from a broad scope of Modeling Guidance. The RRF is In addition to the formal attainment stationary and area sources into its calculated as the ratio of future to base demonstration, the Plan also contains a RACT SIP. Additionally, a detailed year concentrations; these are then WOE analysis within Appendix A to the description of the mobile source control applied to the 2013 weighted design CARB Staff Report. It mainly shows the programs and a comprehensive list of values for the Grass Valley monitor to long-term downward trends that CARB regulations are included in arrive at a future year design value.85 continue through 2017, the latest year Appendices B and C of the Plan. CARB’s Typically the RRFs would be applied to available prior to development of the comprehensive strategy to reduce a weighted design value for 2012, the 2018 Western Nevada County Ozone emissions from mobile sources consists model base year,86 but in this case Plan. As described in the WOE, Western of emissions standards for new vehicles, CARB used the somewhat higher value Nevada County has shown a general in-use programs to reduce emissions for 2013, considering the upward trend downward trend in measured ozone from existing vehicle and equipment design values starting in 2013.87 The concentrations and number of days fleets, cleaner fuels, and incentive predicted 2020 ozone design value is 67 above the ozone NAAQS but has programs to accelerate the penetration ppb or 0.067 ppm, well below the level recently seen increases in 2017 and of the cleanest vehicles beyond that of the 2008 8-hour ozone NAAQS of 2018. Atypical high ozone achieved by regulations alone. 0.075 ppm. concentrations were observed in 2017, As Table 2 and Table 3 show, the vast Finally, the 2018 Western Nevada though CARB’s staff analysis does not majority of emissions reductions relied County Ozone Plan modeling includes point to specific anthropogenic or upon by the Plan’s control strategy are an ‘‘Unmonitored Area Analysis’’ (UAA) biogenic emission increases or from the on- and off-road mobile source to assess whether locations without a meteorology as likely causes for the inventory and can be largely attributed monitor are able to reach attainment; the unusual number of exceedances. to control measures adopted by CARB, standard attainment test procedure Additionally, the area may have subsequently approved by the EPA, and covers only locations with a monitor.88 experienced higher than normal ozone cited in detail in Section III.C. The Modeling Guidance describes a concentrations in 2018 due to wildfire Generally, the bulk of the emissions procedure utilizing ‘‘gradient adjusted impacts in the surrounding areas during reductions on which the control spatial fields,’’ as well as the EPA the summer and fall months. Despite the strategies rely is expected to come from software used to carry it out.89 This recent exceptions, there are strong already-adopted measures, which are procedure uses a form of interpolation, downward trends in emissions of ozone discussed in Section III.C of this combining monitored concentrations and of the ozone precursors NOX and document. For the 2008 ozone NAAQS, and modeled gradients (modeled VOC, both within the Western Nevada already-adopted measures are expected changes in concentration with distance County area and in the upwind to achieve all of the reductions needed from a monitor) to estimate future Sacramento and San Francisco Bay from the 2012 base year to attain the concentrations at locations without a areas.91 These all show the substantial NAAQS in 2020.
TABLE 2—2012 AND 2020 NOX EMISSIONS FOR WESTERN NEVADA COUNTY [Summer planning inventory, tpd]
Emissions Percentage of total Source category 2012 2020 difference from emissions change 2012 to 2020 (%)
Stationary Sources ...... 0.106 0.096 ¥0.010 ¥9.4 Area Sources ...... 0.135 0.138 +0.003 2.2 On-Road Mobile Sources ...... 3.976 2.160 ¥1.816 ¥45.7 Other Mobile Sources ...... 0.944 0.738 ¥0.206 ¥21.8
84 Id. at Appendix H, H–33; and, Appendix F, 86 The Modeling Guidance recommends that 88 2018 Western Nevada County Ozone Plan, ‘‘Modeling Emissions Inventory,’’ F–35. To include RRFs be applied to the average of three three-year Appendix E, section 5.4, E–41. the fires in the base year but not the future year design values, for the base year and the two 89 Modeling Guidance section 4.7, 138. would effectively credit the Plan’s control measures subsequent years. This amounts to a 5-year 90 with eliminating emissions from the fire. weighted average of individual year 4th high The R Project for Statistical Computing, https:// 85 Id. at 57, and Appendix H, ‘‘Modeling concentrations, centered on the base year, and so www.r-project.org. Protocol,’’ section 10.3, H–34. The combination of is referred to as a weighted design value. 91 2018 Western Nevada County Ozone Plan, page years used is illustrated in Appendix E, Table 1, 87 2018 Western Nevada County Ozone Plan, 41. E–11. Appendix E, E–10; also Plan, 58.
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TABLE 2—2012 AND 2020 NOX EMISSIONS FOR WESTERN NEVADA COUNTY—Continued [Summer planning inventory, tpd]
Emissions Percentage of total Source category 2012 2020 difference from emissions change 2012 to 2020 (%)
Total ...... 5.160 3.131 ¥2.029 ¥39.3 Source: 2018 Western Nevada County Ozone Plan, Chapter XII, Table 11, 57. The sum of the emissions values may not equal the total shown due to rounding.
TABLE 3—2012 AND 2020 ANTHROPOGENIC VOC EMISSIONS FOR WESTERN NEVADA COUNTY [Summer planning inventory, tpd]
Emissions Percentage of total Source category 2012 2020 difference from emissions change 2012 to 2020 (%)
Stationary Sources ...... 0.702 0.785 +0.083 11.8 Area Sources ...... 1.394 1.515 +0.121 8.7 On-Road Mobile Sources ...... 1.793 1.007 ¥0.786 ¥43.8 Other Mobile Sources ...... 1.327 0.958 ¥0.369 ¥27.8
Total ...... 5.215 4.265 ¥0.950 ¥18.2 Source: 2018 Western Nevada County Ozone Plan, Chapter XII, Table 11, 57. The sum of the emissions values may not equal the total shown due to rounding.
c. Attainment Demonstration The modeling followed the Modeling discussed above, ozone in the area is Chapter XII of the Plan describes the Guidance in essentially all respects, and largely due to emissions in and attainment demonstration in general both the meteorological and the transport from the upwind Sacramento terms, including photochemical photochemical models showed good area. The chemical evolution of the modeling results, while Appendix E to performance. One difference between pollutant plume as it travels from the Plan provides more detail CARB’s modeling and the Modeling Sacramento to Nevada County concerning photochemical modeling. Guidance was that the state applied necessitates evaluation at more than a Other aspects of this demonstration are RRFs to a weighted design value based single downwind location. This means included throughout the Plan, including on the year 2013, instead of 2012, as that the submitted modeling emissions inventory forecasts included would be typical for modeling of a 2012 performance evaluation alone may not in Appendix A and the control strategy base year. The Modeling Guidance be adequate for assessing the described in Chapter IV. The WOE recognizes that there is no one correct performance model, which is influenced analysis in Appendix A to the CARB method for choosing base design by emissions from a much larger area, 92 Staff Report includes additional values, and provides for other with various meteorological and terrain supporting information to complement calculations with appropriate impacts. However, because the 2012 the photochemical modeling and to justification, such as consideration of modeling exercise in the Plan was essentially the same as that undertaken provide context for this attainment unusual meteorological conditions. As for the 2017 Sacramento Regional Ozone demonstration, such as analyses of noted above, the state’s choice of 2013 Plan, the EPA is relying on the latter anthropogenic emissions, ambient was based on design values increasing plan’s more complete model ozone data, and meteorological relative to 2012. Since a higher starting performance evaluation. As discussed in analyses. point base design value will yield a higher 2020 attainment year design the technical support document 94 3. The EPA’s Review of the State’s value, the state’s use of 2013 adds accompanying the EPA’s proposed Submission conservatism to the attainment action on the Sacramento plan, the state a. Photochemical Modeling demonstration. followed EPA recommended modeling An important difference from the procedures and the modeling had good To approve a SIP’s attainment Modeling Guidance is that the state performance. That was shown in demonstration, the EPA must make presented a model performance statistical and dynamic performance several findings. First, we must find that evaluation only for the single analyses that covered a larger portion of the demonstration’s technical bases, monitoring site in the nonattainment the modeling domain than the analyses including the emissions inventories and area, in Grass Valley. The Modeling in the submittal for the 2018 Western air quality modeling, are adequate. As Guidance recommends a performance Nevada County Ozone Plan, discussed above in Section III.A of this evaluation using all available ambient encompassing the Western Nevada document, we are proposing to approve monitoring data.93 This is of particular County as well as the Sacramento area. the base year emissions inventory and to importance for the Western Nevada Overall, the EPA therefore considers the find that the future year emissions County area. As described in the modeling in the 2018 Western Nevada projections in the 2018 Western Nevada conceptual description in the Plan County Ozone Plan reflect appropriate 94 Docket EPA–R09–OAR–2020–0425, item A–85, calculation methods and that the latest ‘‘Modeling Technical Support Document (TSD) for 92 Modeling Guidance, section 4.1.1, planning assumptions are properly the ‘2017 Sacramento Regional Ozone Plan’, 2008 ‘‘Establishing the Base Design Value,’’ 103. 8-hour ozone National Ambient Air Quality supported by SIP-approved stationary 93 Modeling Guidance, section 3.1, ‘‘Overview of Standard,’’ September 14, 2020, Air and Radiation and mobile source measures. Model Performance Evaluation,’’ 68. Division, EPA Region IX.
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County Ozone Plan to be adequate for E. Rate of Progress Plan and Reasonable Therefore, the 15 percent ROP establishing modeling performance. Further Progress Demonstration requirement of section 182(b)(1) remains applicable to Western Nevada County, The modeling shows that existing 1. Statutory and Regulatory and the area must show a 15 percent control measures from CARB and the Requirements reduction in VOC within the first six Districts are sufficient to attain the 2008 Requirements for RFP for ozone years of the planning period. 8-hour ozone NAAQS by 2020 at all nonattainment areas are specified in Except as specifically provided in monitoring sites in the Western Nevada CAA sections 172(c)(2), 182(b)(1), and CAA section 182(b)(1)(C), emissions County area. The Plan follows the 182(c)(2)(B). CAA section 172(c)(2) reductions from all SIP-approved, procedures recommended in the EPA requires that plans for nonattainment federally promulgated, or otherwise SIP- Modeling Guidance, properly areas provide for RFP, which is defined creditable measures that occur after the incorporates all modeling and input at CAA section 171(1) as such annual baseline year are creditable for purposes preparation procedures, tests, and incremental reductions in emissions of of demonstrating that the RFP targets are performance analyses called for in the the relevant air pollutant as are required met. Because the EPA has determined modeling protocol, demonstrates good under part D, ‘‘Plan Requirements for that the passage of time has caused the model performance, and responds to Nonattainment Areas,’’ or may effect of certain exclusions to be de emission changes consistent with reasonably be required by the EPA for minimis, the RFP demonstration is no observations. Therefore, based on the the purpose of ensuring attainment of longer required to calculate and documentation included in the the applicable NAAQS by the applicable specifically exclude reductions from modeling performance analysis, UAA, date. CAA section 182(b)(1) specifically measures related to motor vehicle and WOE analysis, the EPA finds that requires that ozone nonattainment areas exhaust or evaporative emissions the photochemical modeling is adequate that are classified as Moderate or above promulgated by January 1, 1990; demonstrate a 15 percent reduction in for purposes of supporting the regulations concerning Reid vapor VOC within the first six years of the pressure promulgated by November 15, attainment demonstration. planning period. The EPA has typically 1990; measures to correct previous b. Control Strategy referred to section 182(b)(1) as the Rate RACT requirements; and, measures of Progress (ROP) requirement. For required to correct previous inspection As discussed above, the 2018 Western ozone nonattainment areas classified as and maintenance (I/M) programs.98 Nevada County Ozone Plan relies on Serious or higher, section 182(c)(2)(B) The 2008 Ozone SRR requires the RFP previously adopted measures to achieve requires reductions averaged over each baseline year to be the most recent all of the emissions reductions needed consecutive 3-year period, beginning 6 calendar year for which a complete to attain the 2008 ozone NAAQS in years after the baseline year until the triennial inventory was required to be 2020. For the reasons described above, attainment date, of at least 3 percent of submitted to the EPA. For the purposes we find that the emissions reductions baseline emissions per year. CAA of developing RFP demonstrations for that are relied on for attainment are section 182(c)(2)(B)(ii) allows an the 2008 ozone NAAQS, the applicable creditable and are sufficient to provide amount less than 3 percent of such triennial inventory year is 2011. As for attainment. baseline emissions each year if the state discussed previously, the 2008 Ozone demonstrates to the EPA that a plan SRR provided states with the c. Attainment Demonstration includes all measures that can feasibly opportunity to use an alternative be implemented in the area in light of baseline year for RFP,99 but this The 2018 Western Nevada County technological achievability. To meet provision was vacated by the D.C. Ozone Plan follows the modeling CAA sections 172(c)(2) and 182(c)(2)(B) Circuit in the South Coast II decision. procedures recommended in the EPA’s RFP requirements, the state may 2. Summary of the State’s Submission Modeling Guidance and shows excellent substitute NOX emissions reductions for performance in simulating observed VOC reductions.95 Documentation for the Western ozone concentrations in the 2012 base The 2008 Ozone SRR provides that Nevada County RFP baseline and year. Given the extensive discussion of areas classified Moderate or higher for milestone emissions inventories is modeling procedures, tests, and the 2008 8-hour ozone standard will found in the 2018 Western Nevada performance analyses called for in the have met the ROP requirements of CAA County Ozone Plan on pages 21–34, 54– modeling protocol, the good model section 182(b)(1) if the area has a fully 56, and in Appendix A. Consistent with performance, and the model response to approved 15 percent ROP plan for the the South Coast II decision, CARB’s RFP emissions changes consistent with 1979 1-hour or 1997 8-hour ozone demonstration for Western Nevada observations, the EPA finds that the standards, provided the boundaries of County uses a 2011 RFP baseline emissions inventory.100 To develop the modeling is adequate for purposes of the ozone nonattainment areas are the 96 2011 RFP baseline inventory, CARB supporting the attainment same. Western Nevada County does relied on actual emissions reported from demonstration. Based on our review of not have a fully approved 15 percent ROP plan for either the 1979 1-hour or industrial point sources for year 2011 the 2018 Western Nevada County Ozone the 1997 8-hour ozone standards.97 and backcasted emissions from smaller Plan and our proposed findings that the stationary sources and area sources from photochemical modeling and control 95 40 CFR 51.1110(a)(2)(i)(C) and 40 CFR strategy are acceptable and demonstrate 51.1110(a)(2)(ii)(B); and 70 FR 12264, at 12271 NAAQS, the EPA initially designated Western attainment by the applicable attainment (March 6, 2015). Nevada County as a ‘‘Subpart 1’’ nonattainment date, we propose to approve the 96 70 FR 12264, 12271 (March 6, 2015). For more area and later reclassified the area to Moderate, information about how the RFP requirement of triggering the ROP requirement, but subsequently attainment demonstration for the 2008 section 172(c)(2) applies in such areas, see 84 FR issued a clean data determination, which ozone NAAQS in the Western Nevada 28132, 28157 (June 17, 2019). suspended attainment-related planning County Ozone Plan as meeting the 97 As explained above in Section I, for the 1979 requirements, including the ROP requirement. 69 FR 23857 (April 30, 2004); 77 FR 28423 (May 14, requirements of CAA section 1-hour ozone NAAQS, the EPA classified Western Nevada County as Unclassifiable/Attainment and, 2012); 77 FR 71551 (December 3, 2012). 182(c)(2)(A) and 40 CFR 51.1108. thus, it was not subject to the ROP requirement. 62 98 40 CFR 51.1110(a)(7). FR 38856 (July 18, 1997). For the 1997 8-hour ozone 99 See 40 CFR 51.1110(b).
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2012 to 2011 using the same growth and NAAQS is shown in Table 10 of the period until the attainment year. The control factors used for future years.101 2018 Western Nevada County Ozone RFP demonstration calculates future The Plan indicates that the 2012 Plan, which is reproduced as Table 4 year VOC targets from the 2011 baseline, inventory base year for modeling and below. As Western Nevada County is a consistent with CAA 182(c)(2)(B)(i), and the 2011 baseline year inventory for RFP Serious nonattainment area without a it substitutes NOX reductions for VOC are consistent with each other since previously approved ROP plan, the Plan reductions beginning in milestone year they both use actual emissions for demonstrates a reduction in VOC of 15 2020 to meet VOC emission targets as stationary sources and the same growth percent from baseline emissions within allowed under CAA section profiles. Emissions estimates in the six years of the RFP baseline year 182(c)(2)(C).102 CARB concludes that baseline emissions inventory reflect period, consistent with CAA 182(b)(1). the RFP demonstration meets the District and CARB rules submitted to The Plan shows an additional 3 percent applicable requirements for each the EPA through November 2016. The RFP demonstration for Western reduction of VOC or NOX emissions, milestone year as well as the attainment Nevada County for the 2008 ozone averaged over each consecutive 3-year year.
TABLE 4—2008 OZONE RFP DEMONSTRATION WESTERN NEVADA COUNTY [Summer planning inventory, tpd or percent]
VOC 2011 2017 2020
Baseline VOC ...... 5.50 4.50 4.20 Required change since 2011 (VOC or NOX), % ...... 15 24 Target VOC level ...... 4.7 4.2 Apparent shortfall (¥)/surplus (+) in VOC ...... +0.2 ¥0.1 Apparent shortfall (¥)/surplus (+) in VOC, % ...... +3.2 ¥1.4 Actual VOC shortfall (¥)/surplus (+), % ...... +3.2 ¥1.4
NOX 2011 2017 2020
Baseline NOX ...... 5.69 3.74 2.89 Change in NOX since 2011 ...... 1.95 2.8 Change in NOX since 2011, % ...... 34 49 NOX reductions used for VOC substitution through last milestone year, % ...... 3.1 NOX reductions since 2011 available for VOC substitution in this milestone year, % ...... 34 49 NOX reductions since 2011 used for VOC substitution in this milestone year, % ...... 0 3.1 NOX reductions since 2011 surplus after meeting VOC substitution needs in this milestone year, % ...... 34 45.9 Total shortfall for RFP ...... 0 0 RFP met? ...... Yes Yes Source: 2018 Western Nevada County Ozone Plan, Table 10, p. 55.
3. The EPA’s Review of the State’s We have also reviewed the County with respect to the 2008 ozone Submission comparison of the VOC emission NAAQS. reductions against the 15 percent ROP Based on our review of the emissions We find that the District’s use of requirement. As shown in Table 4, the inventory documentation in the 2018 substitution of NOX reductions for VOC Western Nevada County Ozone Plan, we RFP demonstration shows that Western reductions in this demonstration is find that CARB and the District have Nevada County meets the 15 percent appropriate under CAA section used the most recent planning and reduction in VOC emissions with an 182(c)(2)(C). As described in Section activity assumptions, emissions models, additional 3.2 percent surplus in VOC III.D.2.a of this document, ozone and methodologies in developing the emissions reductions from 2011 to 2017. formation in Western Nevada County is RFP baseline and milestone year Such reductions satisfy the ROP NOX-limited, and the substituted NOX emissions inventories. We have also requirement for Western Nevada County reductions are expected to achieve an reviewed the calculations in Table 10 of for the 2008 ozone NAAQS. As a result, equal or greater reduction in ozone the Plan and presented in Table 4 above we find that the District and CARB have concentrations as would result from the and find that the District and CARB met the ROP requirements of CAA VOC emissions reductions described in have used an appropriate calculation section 182(b)(1) for Western Nevada CAA section 182(c)(2)(B).103 method to demonstrate RFP.
101 2018 Western Nevada County Ozone Plan, domain that encompassed the Western Nevada estimate the sensitivity of ozone to NOX reductions page 23. nonattainment area, and was used to create an and to VOC reductions, and found NOX reductions 102 See also 40 CFR 51.1110(a)(2)(i)(C) and 40 CFR isopleth diagram showing ozone for various levels to be 23 times as effective at reducing ozone as VOC 51.1110(a)(2)(ii)(B); and 70 FR 12264, at 12271 of NOX and VOC emissions. Sacramento Regional reductions, on a tonnage basis, and 13 times as 2008 NAAQS 8-hour Attainment and Reasonable (March 6, 2015). The District’s RFP demonstration effective on a percentage basis. Docket EPA–R09– Further Progress Plan (‘‘2017 Sacramento Regional substitutes NOX reductions for VOC reductions on Ozone Plan’’), July 24, 2017, Appendix B–4, p.B– OAR–2020–0425, item A–86, ‘‘Assessment of a percentage basis. See EPA, NOX Substitution 158, Figure 16, available at https://ww2.arb.ca.gov/ Sacramento Metro NAA Conformity Motor Vehicle Guidance (December 1993). resources/documents/2017-sacramento-regional- Emissions Budget Consistency with O3 NAAQS 103 As discussed above, modeling for the 2008-8-hour-ozone-attainment-and-further- Attainment,’’ September 14, 2020, Air and Sacramento nonattainment area used a modeling reasonable. The EPA used this information to Radiation Division, EPA Region IX.
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For these reasons, we have measures requirements. The purpose of reductions to comply with the determined that the 2018 Western contingency measures is to provide contingency measures requirements of Nevada County Ozone Plan continued emissions reductions while sections 172(c)(9) and 182(c)(9) but, demonstrates RFP in each milestone the plan is being revised to meet the rather, to provide context in which to year and the attainment year, consistent missed milestone or attainment date. evaluate the adequacy of Bahr- with applicable CAA requirements and The EPA has approved numerous SIPs compliant (i.e., to take effect if triggered) EPA guidance. We therefore propose to under this interpretation, i.e., SIPs that contingency measures for the 2008 approve the RFP demonstrations for the use as contingency measures one or ozone NAAQS. Western Nevada County nonattainment more federal or local measures that are To comply with sections 172(c)(9) and area for the 2008 ozone NAAQS under in place and provide reductions that are 182(c)(9), as interpreted in the Bahr v. sections 172(c)(2), 182(b)(1) and in excess of the reductions required by EPA decision, the state must develop, 182(c)(2)(B) of the CAA and 40 CFR the attainment demonstration or RFP adopt and submit a contingency 51.1110(a)(2)(ii). plan,106 and there is case law measure to be triggered upon a failure supporting the EPA’s interpretation in to meet RFP milestones or failure to F. Contingency Measures this regard.107 However, in Bahr v. EPA, attain the NAAQS by the applicable 1. Statutory and Regulatory the United States Court of Appeals for attainment date regardless of the extent Requirements the Ninth Circuit (‘‘Ninth Circuit’’) to which already-implemented Under the CAA, 8-hour ozone rejected the EPA’s interpretation of CAA measures would achieve surplus nonattainment areas classified under section 172(c)(9) as allowing for early emissions reductions beyond those implementation of contingency necessary to meet RFP milestones and subpart 2 as Moderate or above must 108 include in their SIPs contingency measures. The Ninth Circuit beyond those predicted to achieve measures consistent with sections concluded that contingency measures attainment of the NAAQS. Therefore, to 172(c)(9) and 182(c)(9). Contingency must take effect at the time the area fails fully address the contingency measures to make RFP or attain by the applicable requirement for the 2008 ozone NAAQS measures are additional controls or 109 measures to be implemented in the attainment date, not before. Thus, in the Western Nevada nonattainment event the area fails to make reasonable within the geographic jurisdiction of the area, the District has committed to further progress or to attain the NAAQS Ninth Circuit, states cannot rely on develop, adopt and submit a by the attainment date. The SIP should early-implemented measures to comply contingency measure to CARB in contain trigger mechanisms for the with the contingency measures sufficient time to allow CARB to submit requirements under CAA section the contingency measure as a SIP contingency measures, specify a 110 schedule for implementation, and 172(c)(9) and 182(c)(9). revision to the EPA within 12 months of the EPA’s final conditional approval of indicate that the measure will be 2. Summary of the State’s Submission the contingency measures element of implemented without significant further In the 2018 Western Nevada County action by the state or the EPA.104 the 2018 Western Nevada County Ozone Ozone Plan, CARB calculates the extent 112 Neither the CAA nor the EPA’s Plan. of surplus emission reductions (i.e., implementing regulations establish a The District’s commitment is to adopt surplus to meeting the RFP milestone specific level of emissions reductions the 2019 (or most recent) Architectural requirement for a given milestone year) that implementation of contingency Coatings Suggested Control Measure in the milestone years and estimates the measures must achieve, but the EPA’s (SCM), developed and approved by incremental emissions reductions in the 2008 Ozone SRR reiterates the EPA’s CARB, as a rule to take effect upon year following the attainment year.111 In policy that contingency measures adoption throughout the nonattainment light of the Bahr v. EPA decision, should generally provide for emissions area upon a determination that the however, the 2018 Western Nevada reductions approximately equivalent to Western Nevada County nonattainment County Ozone Plan does not rely on the one year’s worth progress, amounting to area failed to meet an RFP milestone or surplus or incremental emissions reductions of 3 percent of the baseline failed to attain the 2008 ozone NAAQS emissions inventory for the by the applicable attainment date. The 106 See, e.g., 62 FR 15844 (April 3, 1997) (direct nonattainment area.105 District estimates that adoption of this final rule approving an Indiana ozone SIP revision); new measure will yield an estimated It has been the EPA’s longstanding 62 FR 66279 (December 18, 1997) (final rule interpretation of CAA section 172(c)(9) approving an Illinois ozone SIP revision); 66 FR 0.010 tpd in VOC emissions reductions that states may rely on federal measures 30811 (June 8, 2001) (direct final rule approving a in the nonattainment area. The District Rhode Island ozone SIP revision); 66 FR 586 also evaluated three other additional (e.g., federal mobile source measures (January 3, 2001) (final rule approving District of based on the incremental turnover of the Columbia, Maryland, and Virginia ozone SIP categories for potential contingency motor vehicle fleet each year) and local revisions); and 66 FR 634 (January 3, 2001) (final measures. The categories are automotive rule approving a Connecticut ozone SIP revision). coatings, water heaters, boilers, and measures already scheduled for 107 implementation that provide emissions See, e.g., LEAN v. EPA, 382 F.3d 575 (5th Cir. process heaters rated less than a million 2004) (upholding contingency measures that were BTU per hour, and miscellaneous reductions in excess of those needed to previously required and implemented where they provide for RFP or expeditious were in excess of the attainment demonstration and combustion units. However, the District attainment. The key is that the Act RFP SIP). determined that these categories did not 108 113 requires that contingency measures Bahr v. EPA, 836 F.3d 1218, at 1235–1237 (9th yield meaningful reductions. Cir. 2016). CARB attached the District’s provide for additional emissions 109 Id. at 1235–1237. commitment to a letter committing reductions that are not relied on for RFP 110 The Bahr v. EPA decision involved a challenge or attainment and that are not included to an EPA approval of contingency measures under CARB to adopt and submit the revised in the RFP or attainment demonstrations the general nonattainment area plan provisions for contingency measures in CAA section 172(c)(9), 112 Letter dated October 26, 2020, from Gretchen as meeting part or all of the contingency but, given the similarity between the statutory Bennitt, Executive Director, NSAQMD, to Richard language in section 172(c)(9) and the ozone-specific Corey, Executive Officer, CARB. 104 70 FR 71612 (November 29, 2005). See also contingency measures provision in section 113 Appendix to Letter dated October 26, 2020, 2008 Ozone SRR, 80 FR 12264, at 12285 (March 6, 182(c)(9), we find that the decision affects how both from Gretchen Bennitt, Executive Director, 2015). sections of the Act must be interpreted. NSAQMD, to Richard Corey, Executive Officer, 105 80 FR 12264 at 12285 (March 6, 2015). 111 CARB Staff Report, Section D, 10–11. CARB.
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NSAQMD rule to the EPA within one area fails to achieve the 2020 RFP following the attainment year (2021) in year of the EPA’s final conditional milestone or fails to attain the 2008 Western Nevada County are expected to approval of the contingency measures ozone NAAQS by the 2020 attainment be approximately 0.048 tpd lower for 115 element of the 2018 Western Nevada year. VOC and 0.23 tpd lower for NOX than County Ozone Plan.114 As discussed above, 2018 Western in the attainment year (2020).117 The Nevada County Ozone Plan provides downward trend in emissions reflects 3. The EPA’s Review of the State’s estimates of emissions reductions that the continuing benefits of already- Submission are surplus of the reductions necessary implemented measures and is primarily CAA sections 172(c)(9) and 182(c)(9) for RFP or attainment, but does not the result of vehicle turnover, which require contingency measures to address include measures that would implement refers to the ongoing replacement by potential failures to achieve RFP additional emissions controls, if individuals, companies, and milestones or to attain the NAAQS by triggered, without significant further government agencies of older, more the applicable attainment date through action by the state or the EPA. However, polluting vehicles and engines with implementation of additional emissions CARB and the District have submitted newer vehicles and engines. While the controls in the event the area fails to commitments to adopt and submit a continuing reductions from such make RFP or to attain the NAAQS by revised District rule with the necessary already-implemented measures do not the applicable attainment date. provisions as a SIP revision within one constitute contingency measures Contingency measures must provide for year of the EPA’s final action on the themselves, they provide context in the implementation of additional contingency measures element of the which we evaluate the adequacy of the emissions controls, if triggered, without Plan. The specific revisions the District contingency measures submitted (or, in significant further action by the state or has committed to make, such as this case, to be submitted) to fulfill the the EPA. For the purposes of evaluating tightening control efficiencies or requirements of CAA sections 172(c)(9) the adequacy of the emissions establishing content limits, upon a and 182(c)(9). reductions from the contingency failure to achieve a milestone or a In this instance, we find that the measures (once adopted and submitted), failure to attain, would comply with the emissions reductions from the to-be- we find it useful to distinguish between requirements in CAA sections 172(c)(9) adopted contingency measures together contingency measures to address and 182(c)(9) because the additional with the reductions expected to occur potential failure to achieve RFP controls would be undertaken if the area due to already-implemented measures milestones (‘‘RFP contingency fails to achieve a milestone or fails to are consistent with our guidance measures’’) and contingency measures attain, and would take effect without recommending that contingency to address potential failure to attain the significant further action by the State or measures provide for one year’s worth NAAQS (‘‘attainment contingency the EPA. of progress in the event of a failure to measures’’). We find that the contingency meet an RFP milestone or a failure to With respect to the RFP contingency measures described in the District and attain the NAAQS by the applicable measures requirement, we have CARB’s commitment letters would attainment date. Therefore, in light of reviewed the surplus emissions provide adequate emissions reductions the year-to-year reductions in the VOC estimates in each of the RFP milestone when triggered. Neither the CAA nor the and NOX inventories, we find that the years, as shown in CARB’s Staff Report, EPA’s implementing regulations for the contingency measures described in the and find that the calculations are ozone NAAQS establish a specific District’s and CARB’s commitment correct. We therefore agree that the 2018 amount of emissions reductions that letters would provide sufficient Western Nevada County Ozone Plan implementation of contingency emissions reductions even though provides surplus emissions reductions measures must achieve, but we reductions from the measures would be well beyond those necessary to generally expect that contingency lower than the EPA normally demonstrate RFP in all of the RFP measures should provide for emissions recommends for such measures. milestone years. While such surplus reductions approximately equivalent to For these reasons, and in light of emissions reductions in the RFP one year’s worth of RFP, which, for commitments from the District and milestone years do not represent ozone, amounts to reductions of 3 CARB to adopt and submit a District contingency measures themselves, we percent of the RFP baseline year rule that will apply tighter limits or believe they are relevant in evaluating emissions inventory for the requirements upon a failure to achieve the adequacy of RFP contingency nonattainment area. For the 2008 ozone an RFP milestone or the 2008 ozone measures that are submitted (or will be NAAQS in Western Nevada County, one NAAQS by the applicable attainment submitted) to meet the requirements of year’s worth of RFP is approximately date, we propose to approve sections 172(c)(9) and 182(c)(9). 0.16 tpd of VOC or 0.17 tpd of NOX conditionally the contingency measures The attainment year for the 2008 reductions.116 The District’s element of the 2018 Western Nevada ozone NAAQS in Western Nevada commitment letter estimates the County Ozone Plan as meeting the County coincides with the 2020 RFP potential additional emission reductions contingency measures requirements of milestone, and thus, we have reviewed from its contingency measure CAA sections 172(c)(9) and 182(c)(9). the emissions reductions estimated by commitment at 0.010 tpd VOC. Our proposed approval is conditional the District for the committed However, emissions in the year because it relies upon commitments to contingency measures in light of the adopt and submit a specific enforceable facts and circumstances in Western 115 CAA section 182(g)(2) provides that states Nevada County in the year following the must submit RFP milestone compliance 117 Estimates for the emissions reductions in the attainment year, to determine whether demonstrations within 90 days after the date on year following the attainment year are based on the there will be sufficient continued which an applicable milestone occurs, except emissions inventories for Western Nevada County where the milestone and attainment date are the in Appendix A of the Plan. The estimate of the progress in that area in the event the same and the standard has been attained. reductions in emissions of 0.048 tpd of VOC and 116 One year’s worth of RFP for Western Nevada 0.23 tpd of NOX in 2021 (relative to 2020) amounts 114 Letter dated November 16, 2020, from Richard County corresponds to 3 percent of the 2011 RFP to approximately 29 percent and 132 percent of one W. Corey, Executive Officer, CARB, to John baseline year inventories for VOC (5.496 tpd) and year’s worth of progress, respectively in this area Busterud, Regional Administrator, EPA Region IX. NOX (5.687 tpd). based on the 2011 RFP baseline inventory.
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contingency measure (i.e., a revised conform to the applicable SIP.118 This 2. Summary of the State’s Submission District rule or rules with contingent demonstration is typically done by provisions). Conditional approvals are showing that estimated emissions from Chapter VI of the 2018 Western authorized under CAA section 110(k)(4). existing and planned highway and Nevada County Ozone Plan includes transit systems are less than or equal to budgets for the 2020 RFP milestone and G. Motor Vehicle Emissions Budgets for attainment year. The budgets were Transportation Conformity the motor vehicle emissions budgets (‘‘budgets’’) contained in all control derived from the 2011 base year. The 1. Statutory and Regulatory strategy SIPs. Budgets are generally budgets were calculated using Requirements established for specific years and EMFAC2014, CARB’s then-current and Section 176(c) of the CAA requires specific pollutants or precursors. Ozone latest approved version of the EMFAC federal actions in nonattainment and plans should identify budgets for on- model for estimating emissions from on- maintenance areas to conform to the road emissions of ozone precursors road vehicles operating in California and are rounded up to the nearest whole SIP’s goals of eliminating or reducing (NOX and VOC) in the area for each RFP the severity and number of violations of milestone year and, if the plan number. The budgets in the Plan reflect the NAAQS and achieving expeditious demonstrates attainment, the attainment updated VMT estimates from the NCTC attainment of the standards. Conformity year.119 2015–2035 Regional Transportation to the SIP’s goals means that such Plan, adopted by NCTC in January 2018, For budgets to be approvable, they which are lower than the conservative actions will not: (1) Cause or contribute must meet, at a minimum, the EPA’s to violations of a NAAQS, (2) worsen estimate of on-road emissions in the adequacy criteria (40 CFR 93.118(e)(4)) emissions inventory. Given the use of the severity of an existing violation, or and be approvable under all pertinent (3) delay timely attainment of any updated travel data and CARB’s SIP requirements. To meet these convention of rounding emissions up to NAAQS or any interim milestone. requirements, the budgets must be Actions involving Federal Highway the next tenth (0.1), there are some consistent with the attainment and RFP Administration (FHWA) or Federal differences between the budgets and the requirements and reflect all of the motor Transit Administration (FTA) funding emissions inventories in the Plan for the vehicle control measures contained in or approval are subject to the EPA’s RFP and attainment demonstrations. the attainment and RFP CARB’s addendum to the technical transportation conformity rule, codified 120 at 40 CFR part 93, subpart A. Under this demonstrations. clarification memorandum dated rule, metropolitan planning The EPA’s process for determining October 27, 2020 indicates that the organizations in nonattainment and adequacy of a budget consists of three differences are quite small (VOC: 0.55 maintenance areas coordinate with state basic steps: (1) Providing public tpd; NOX: 0.26 tpd) and do not impact and local air quality and transportation notification of a SIP submission; (2) the RFP or attainment agencies, the EPA, the FHWA, and the providing the public the opportunity to demonstrations.122 The conformity FTA to demonstrate that an area’s comment on the budget during a public budgets for NOX and VOC in the Plan regional transportation plans and comment period; and (3) making a for the Western Nevada County area are transportation improvement programs finding of adequacy or inadequacy.121 provided in Table 5 below.
TABLE 5—TRANSPORTATION CONFORMITY BUDGETS FOR 2020 FOR THE 2008 OZONE NAAQS IN WESTERN NEVADA COUNTY [Summer planning inventory, tpd]
2020
VOC NOX
Motor vehicle emissions budget ...... 0.8 1.7 Source: Table 7 of the 2018 Western Nevada County Ozone Plan.
3. The EPA’s Review of the State’s and (5). We will complete the adequacy the EPA is announcing the beginning of Submission review concurrent with our final action the adequacy process for these budgets, on the 2018 Western Nevada County and the public has 30 days to comment As part of our review of the Ozone Plan. The transportation on their adequacy, per the approvability of the budgets in the 2018 conformity rule does not require the transportation conformity regulation at Western Nevada County Ozone Plan, we EPA to find budgets adequate prior to 40 CFR 93.118(f)(2)(i) and (ii). have evaluated the budgets using our proposing approval of them.123 Today, As documented in a separate adequacy criteria in 40 CFR 93.118(e)(4) memorandum included in the docket for
118 As mentioned in Section I.B, Western Nevada requirements for isolated rural areas at 40 CFR please visit our transportation conformity website County is an isolated rural area. Isolated rural areas 93.109(g). See also ‘‘Transportation Conformity at: http://www.epa.gov/otaq/stateresources/ do not have federally required metropolitan Guidance for 2008 Ozone Nonattainment Areas,’’ transconf/index.htm. transportation plans and transportation July 2012, EPA Office of Transportation and Air 121 40 CFR 93.118(f)(2). improvement programs, and they are not subject to Quality, Transportation and Climate Division, 122 This is addressed in more detail in our the frequency requirements for conformity available at https://www3.epa.gov/ttn/naaqs/ memorandum for the budgets, as detailed in Section determinations on transportation plans and aqmguide/collection/cp2/20120701_otaq_epa-420_ III.G.3. _ _ _ _ _ transportation improvement programs (40 CFR b-12-045 guidance transport conformity 2008 123 Under the transportation conformity _ 93.104(b), (c), and (e)). Instead, in an isolated rural oxone naaqs.pdf. regulations, the EPA may review the adequacy of area, a conformity determination is required for the 119 40 CFR 93.102(b)(2)(i). submitted motor vehicle emission budgets 2008 ozone and other applicable NAAQS only 120 40 CFR 93.118(e)(4)(iii), (iv) and (v). For more simultaneously with the EPA’s approval or when a non-exempt FHWA/FTA project(s) needs information on the transportation conformity disapproval of the submitted implementation plan. funding or approval, based on the conformity requirements and applicable policies on budgets, 40 CFR 93.118(f)(2).
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this rulemaking, we preliminarily email dated August 17, 2020, CARB Federally Designated Non-attainment conclude that the budgets in the 2018 indicated its decision to no longer Areas,’’ as amended by the District on Western Nevada County Ozone Plan request limited approval of the budgets June 27, 2016, as the rule that meets meet each adequacy criterion.124 While for Western Nevada.127 Serious area requirements for adequacy and approval are two separate nonattainment NSR.131 Since the Plan’s H. Other Clean Air Act Requirements actions, reviewing the budgets in terms submittal, the District rescinded the Applicable to Serious Ozone of the adequacy criteria informs the previously adopted Rule 428 and Nonattainment Areas EPA’s decision to propose to approve concurrently adopted a new Rule 428, the budgets. We have completed our In addition to the SIP requirements ‘‘NSR Requirements for New and detailed review of the 2018 Western discussed in the previous sections, the Modified Major Sources in Nevada County Ozone Plan and are CAA includes certain other SIP Nonattainment Areas,’’ on November proposing herein to approve the SIP’s requirements applicable to Serious 25, 2019. The rule was submitted to the attainment and RFP demonstrations. We ozone nonattainment areas, such as EPA on February 19, 2020. We approved have also reviewed the budgets in the Western Nevada County. We describe this version of Rule 428 into the SIP on 2018 Western Nevada County Ozone these provisions and their current status November 20, 2020.132 Plan and found that they are consistent below for informational purposes only. 3. Clean Fuels Fleet Program with the attainment and RFP 1. Enhanced Vehicle Inspection and demonstrations for which we are Maintenance Programs Sections 182(c)(4)(A) and 246 of the proposing approval, are based on CAA require California to submit to the control measures that have already been Section 182(c)(3) of the CAA requires EPA for approval into the SIP measures adopted and implemented, and meet all states with ozone nonattainment areas to implement a Clean Fuels Fleet other applicable statutory and classified under subpart 2 as Serious or Program. Section 182(c)(4)(B) of the regulatory requirements including the above to implement an enhanced motor CAA allows states to opt out of the adequacy criteria in 40 CFR vehicle I/M program in each urbanized federal clean-fuel vehicle fleet program 93.1118(e)(4) and (5). Therefore, we are area within the nonattainment area, as by submitting a SIP revision consisting proposing to find adequate and approve defined by the Bureau of the Census, of a program or programs that will result the 2020 budgets in the 2018 Western with a 1980 population of 200,000 or in at least equivalent long-term Nevada County Ozone Plan (and shown more. The requirements for those reductions in ozone precursors and in Table 5, above). If we finalize our programs are provided in CAA section toxic air emissions. adequacy determination and approval of 182(c)(3) and 40 CFR part 51, subpart S. In 1994, CARB submitted a SIP the budgets for the 2008 ozone NAAQS Consistent with the 2008 Ozone SRR, revision to the EPA to opt out of the in the Plan as proposed, then they will no new I/M programs are currently federal clean-fuel fleet program. The be approved for use in transportation required for nonattainment areas for the 128 submittal included a demonstration that conformity determinations. 2008 ozone NAAQS. Further, because California’s low-emissions vehicle Under our transportation conformity there are no urbanized areas in Nevada program achieved emissions reductions rule, as a general matter, once budgets County, the Western Nevada County at least as large as would be achieved by are approved, they cannot be nonattainment area is not required to the federal program. The EPA approved superseded by revised budgets implement an enhanced I/M program. the SIP revision to opt out of the federal submitted for the same CAA purpose Nevada County has had a basic smog 133 129 program on August 27, 1999. There and the same period of years addressed check program in place since 1998. have been no changes to the federal by the previously approved SIP until the 2. New Source Review Rules Clean Fuels Fleet program since the EPA approves the revised budgets as a EPA approved the California SIP Section 182(a)(2)(C) of the CAA SIP revision. In other words, as a revision to opt out of the federal requires states to develop SIP revisions general matter, such approved budgets program, and thus, no corresponding containing permit programs for each of cannot be superseded by revised changes to the SIP are required. Thus, its ozone nonattainment areas. The SIP budgets found adequate, but rather only we find that the California SIP revision revisions are to include requirements for through approval of the revised budgets, to opt out of the federal program, as permits in accordance with CAA unless the EPA specifies otherwise in its approved in 1999, meets the sections 172(c)(5) and 173 for the approval of a SIP by limiting the requirements of CAA sections construction and operation of each new duration of the approval to last only 182(c)(4)(A) and 246 for Western or modified major stationary source for until subsequently submitted budgets Nevada County for the 2008 ozone 125 VOC and NO anywhere in the are found adequate. X NAAQS. In this instance, CARB originally nonattainment area. The 2008 Ozone requested that we limit the duration of SRR includes provisions and guidance 4. Gasoline Vapor Recovery our approval of the budgets in the 2018 for nonattainment NSR programs.130 The 2018 Western Nevada County Section 182(b)(3) of the CAA requires Western Nevada County Ozone Plan states to submit a SIP revision by only until the effective date of the EPA’s Ozone Plan cites District Rule 428, ‘‘New Source Review Requirements for November 15, 1992, that requires adequacy finding for any subsequently owners or operators of gasoline 126 New and Modified Major Sources in submitted budgets. However, in an dispensing systems to install and operate gasoline vehicle refueling vapor 124 Memorandum dated December 4, 2020, from 2018, from Richard Corey, Executive Officer, CARB, Khoi Nguyen, Air Planning Office, EPA Region 9, to Mike Stoker, Regional Administrator, EPA recovery (‘‘Stage II’’) systems in ozone to the docket for this proposed rulemaking, titled Region IX. nonattainment areas classified as ‘‘Adequacy Documentation for Plan Motor Vehicle 127 See email dated August 17, 2020 from Moderate and above. California’s ozone Emission Budgets in 2018 Western Nevada County Nesamani Kalandiyur, CARB, to EPA Region 9. nonattainment areas implemented Stage Ozone Plan.’’ 128 2008 Ozone SRR, 80 FR 12264, 12283 (March 125 40 CFR 93.118(e)(1). 6, 2015). 126 CARB’s request to limit the duration of the 129 2018 Western Nevada County Ozone Plan, 131 2018 Western Nevada County Ozone Plan, 40. approval of the Western Nevada County ozone page 50. 132 85 FR 74263 (November 20, 2020). budgets is contained in a letter dated December 2, 130 80 FR 12264 (March 6, 2015). 133 64 FR 46849 (August 27, 1999).
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II vapor recovery well before the passage concentrations of ozone, NOX, and VOC, enhanced monitoring requirements of the CAA Amendments of 1990.134 and to improve monitoring of emissions under CAA section 182(c)(1) for Section 202(a)(6) of the CAA requires of NOX and VOC. The enhanced Western Nevada County with respect to the EPA to promulgate standards monitoring network for ozone is referred the 2008 ozone NAAQS. requiring motor vehicles to be equipped to as the Photochemical Assessment IV. Proposed Action with onboard refueling vapor recovery Monitoring Station (PAMS) network. (ORVR) systems. The EPA promulgated The EPA promulgated final PAMS For the reasons discussed in this the first set of ORVR system regulations regulations on February 12, 1993.138 notice, under CAA section 110(k)(3), the in 1994 for phased implementation on Prior to 2006, the EPA’s ambient air EPA is proposing to approve as a vehicle manufacturers, and since the monitoring regulations in 40 CFR part revision to the California SIP the end of 2006, essentially all new 58, ‘‘Ambient Air Quality Surveillance,’’ following portions of the 2018 Western gasoline-powered light and medium- set forth specific SIP requirements (see Nevada County Ozone Plan submitted duty vehicles are ORVR-equipped.135 former 40 CFR 52.20). In 2006, the EPA by CARB on December 2, 2018: Section 202(a)(6) also authorizes the significantly revised and reorganized 40 • Base year emissions inventory EPA to waive the SIP requirement under CFR part 58.139 Under revised 40 CFR element as meeting the requirements of CAA section 182(b)(3) for installation of part 58, SIP revisions are no longer CAA sections 172(c)(3) and 182(a)(1) Stage II vapor recovery systems after required; rather, compliance with EPA and 40 CFR 51.1115 for the 2008 ozone such time as the EPA determines that monitoring regulations is established NAAQS; • ORVR systems are in widespread use through review of required annual RACM demonstration element as throughout the motor vehicle fleet. monitoring network plans.140 The 2008 meeting the requirements of CAA Effective May 16, 2012, the EPA waived Ozone SRR made no changes to these section 172(c)(1) and 40 CFR 51.1112(c) requirements.141 for the 2008 ozone NAAQS; the requirement of CAA section • 182(b)(3) for Stage II vapor recovery The 2018 Western Nevada County Attainment demonstration element systems in ozone nonattainment areas Ozone Plan does not specifically for the 2008 ozone NAAQS as meeting regardless of classification.136 Thus, a address the enhanced ambient air the requirements of CAA section monitoring requirement in CAA section 182(c)(2)(A) and 40 CFR 51.1108; SIP submittal meeting CAA section • 182(b)(3) is not required for the 2008 182(c)(1). However, we note that CARB ROP demonstration element as ozone NAAQS. includes the ambient monitoring meeting the requirements of CAA While a SIP submittal meeting CAA network within Western Nevada 182(b)(1) and 40 CFR 51.1110(a)(4)(i) for County, in its annual monitoring the 2008 ozone NAAQS; section 182(b)(3) is not required for the • 2008 ozone NAAQS, under California network plan that is submitted to the RFP demonstration element as State law (i.e., Health and Safety Code EPA, and that we have approved the meeting the requirements of CAA section 41954), CARB is required to most recent annual monitoring network sections 172(c)(2), 182(b)(1), and adopt procedures and performance plan (‘‘Annual Network Plan Covering 182(c)(2)(B), and 40 CFR standards for controlling gasoline Monitoring Operations in 25 California 51.1110(a)(4)(iii) for the 2008 ozone emissions from gasoline marketing Air Districts, July 2020’’ or ‘‘2020 ANP’’) NAAQS; • Motor vehicle emissions budgets for operations, including transfer and with respect to Western Nevada 142 the RFP milestone and attainment year storage operations. State law also County. In addition, CARB has of 2020 (see Table 5) because they are authorizes CARB, in cooperation with fulfilled the requirement under 40 CFR consistent with the RFP and attainment local air districts, to certify vapor part 58, Appendix D, section 5(h), to submit an enhanced monitoring plan for demonstrations for the 2008 ozone recovery systems, to identify defective Western Nevada County.143 Based on NAAQS proposed for approval herein equipment and to develop test methods. our review and approval of the 2020 and meet the other criteria in 40 CFR CARB has adopted numerous revisions ANP with respect to Western Nevada 93.118(e); to its vapor recovery program County and CARB’s submittal of an We are also proposing to find that the: regulations and continues to rely on its enhanced monitoring plan for Western • California SIP revision to opt-out of vapor recovery program to achieve Nevada County, we propose to find that the federal Clean Fuels Fleet Program emissions reductions in ozone CARB and the NSAQMD meet the meets the requirements of CAA sections nonattainment areas in California. 182(c)(4)(A) and 246 and 40 CFR In Western Nevada County, the 138 58 FR 8452 (February 12, 1993). 51.1102 for the 2008 ozone NAAQS installation and operation of CARB- 139 71 FR 61236 (October 17, 2006). with respect to Western Nevada County; certified vapor recovery equipment is 140 40 CFR 58.2(b) now provides ‘‘The and required and enforced through requirements pertaining to provisions for an air • Requirements for enhanced quality surveillance system in the SIP are contained NSAQMD Rule 215, ‘‘Phase II Vapor monitoring under CAA section 182(c)(1) Recovery System Requirements,’’ which in this part.’’ 141 The 2008 ozone SRR addresses PAMS-related and 40 CFR 51.1102 for Western Nevada was most recently approved into the SIP requirements at 80 FR 12264, at 12291 (March 6, County for the 2008 ozone NAAQS have 137 on July 26, 2011. 2015). been met. 142 Letter dated November 5, 2020, from Gwen In addition, we are proposing, under 5. Enhanced Ambient Air Monitoring Yoshimura, Manager, Air Quality Analysis Office, EPA Region IX, to Ravi Ramalingam, Chief, CAA section 110(k)(4), to approve Section 182(c)(1) of the CAA requires conditionally the contingency measures that all ozone nonattainment areas Consumer Products and Air Quality Assessment Branch, Air Quality Planning and Science Division, element of the 2018 Western Nevada classified as Serious or above CARB. County Ozone Plan as meeting the 143 implement measures to enhance and Letter dated November 9, 2020, from Dr. requirements of CAA sections 172(c)(9) improve monitoring for ambient Michael T. Benjamin, Chief, Air Quality Planning and Science Division, CARB, to Meredith Kurpius, and 182(c)(9) for RFP and attainment Assistant Director, EPA Region 9, enclosing the contingency measures. Our proposed 134 General Preamble, 57 FR 13498 at 13514 ‘‘2020 Monitoring Network Assessment (October approval is based on commitments by (April 16, 1992). 2020).’’ The assessment includes a five-year 135 77 FR 28772, at 28774 (May 16, 2012). network assessment and an updated enhanced the District and CARB to supplement 136 See 40 CFR 51.126(b). monitoring plan, as required by 40 CFR 58, the element through submission, as a 137 76 FR 44493 (July 26, 2011). Appendix D, Section 5(a). SIP revision (within one year of our
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final conditional approval action), of a • Does not provide the EPA with the FOR FURTHER INFORMATION CONTACT: new District rule that would add new discretionary authority to address Brian Butler, Office of Engineering and limits or other requirements if an RFP disproportionate human health or Technology, 202–418–2702, milestone is not met or if Western environmental effects with practical, [email protected], or Thomas Struble Nevada County fails to attain the 2008 appropriate, and legally permissible at 202–418–2470 or Thomas.Struble@ ozone NAAQS by the applicable methods under Executive Order 12898 fcc.gov. attainment date. (59 FR 7629, February 16, 1994). SUPPLEMENTARY INFORMATION: This is a In addition, the SIP is not approved summary of the Commission’s Notice of V. Statutory and Executive Order to apply on any Indian reservation land Reviews Proposed Rulemaking (NPRM), FCC 20– or in any other area where the EPA or 180, ET Docket No. 20–382, adopted Under the Clean Air Act, the an Indian tribe has demonstrated that a December 10, 2020, and released Administrator is required to approve a tribe has jurisdiction. In those areas of December 10, 2020. The full text of this SIP submission that complies with the Indian country, the proposed rule does document is available for public provisions of the Act and applicable not have tribal implications and will not inspection and can be downloaded at: federal regulations. 42 U.S.C. 7410(k); impose substantial direct costs on tribal https://www.fcc.gov/document/fcc- 40 CFR 52.02(a). Thus, in reviewing SIP governments or preempt tribal law as proposes-rules-expedite-release-new- submissions, the EPA’s role is to specified by Executive Order 13175 (65 devices-and-technologies-0 or by using approve state choices, provided that FR 67249, November 9, 2000). the search function for ET Docket No. they meet the criteria of the Clean Air List of Subjects in 40 CFR Part 52 20–382 on the Commission’s ECFS web Act. Accordingly, this proposed action page at www.fcc.gov/ecfs. merely proposes to approve, or Environmental protection, Air conditionally approve, state plans as pollution control, Incorporation by Synopsis reference, Intergovernmental relations, meeting federal requirements and does 1. Discussion. In June 2020 CTA filed Nitrogen dioxide, Ozone, Reporting and not impose additional requirements a petition seeking modification of the recordkeeping requirements, Volatile beyond those imposed by state law. For equipment authorization rules organic compounds. that reason, this proposed action: pertaining to the marketing and • Is not a ‘‘significant regulatory Authority: 42 U.S.C. 7401 et seq. importation of radiofrequency devices. action’’ subject to review by the Office Dated: December 21, 2020. An FCC-issued Public Notice seeking of Management and Budget under John Busterud, comment on CTA’s petition yielded Executive Orders 12866 (58 FR 51735, Regional Administrator, Region IX. eight comments and two reply October 4, 1993) and 13563 (76 FR 3821, comments. The Commission took this [FR Doc. 2020–28885 Filed 1–11–21; 8:45 am] January 21, 2011); record into consideration when it issued • BILLING CODE 6560–50–P Is not an Executive Order 13771 (82 this rulemaking proposal. The FR 9339, February 2, 2017) regulatory Commission observed that the existing action because SIP approvals are rules often limit the ability of device exempted under Executive Order 12866; FEDERAL COMMUNICATIONS manufacturers to market and import • Does not impose an information COMMISSION radiofrequency devices in the most collection burden under the provisions 47 CFR Parts 2 and 95 efficient and cost-effective manner and of the Paperwork Reduction Act (44 proposed specific rule changes that U.S.C. 3501 et seq.); [ET Docket No. 20–382; FCC 20–180; FRS would allow device manufacturers to • Is certified as not having a 17351] take full advantage of modern marketing significant economic impact on a and importation practices. Specifically, Allowing Earlier Equipment Marketing substantial number of small entities the proposals relate to the marketing and Importation Opportunities under the Regulatory Flexibility Act (5 and importation of radiofrequency U.S.C. 601 et seq.); AGENCY: Federal Communications devices. Although CTA also asked the • Does not contain any unfunded Commission. Commission to grant a rule waiver to mandate or significantly or uniquely ACTION: Proposed rule. permit conditional sales to consumers affect small governments, as described during the pendency of the rulemaking in the Unfunded Mandates Reform Act SUMMARY: The Commission proposes to proceeding and other parties asked for of 1995 (Pub. L. 104–4); update its radiofrequency (RF) device similar action, the Commission • Does not have federalism marketing and importation rules in determined that an interim waiver was implications as specified in Executive order to allow equipment manufacturers not warranted in this case. The Order 13132 (64 FR 43255, August 10, to better gauge consumer interest and Commission notes that it would need to 1999); prepare for new product launches. In consider several complex issues before • Is not an economically significant particular, the Commission proposes allowing conditional sales of regulatory action based on health or limited exceptions to its requirement radiofrequency devices, or additional safety risks subject to Executive Order that RF devices receive equipment imports of radiofrequency devices, prior 13045 (62 FR 19885, April 23, 1997); authorization prior to marketing in or to the receipt of equipment • Is not a significant regulatory action importation to the United States and it authorization. subject to Executive Order 13211 (66 FR seeks comment on the conditions 2. The Commission’s equipment 28355, May 22, 2001); necessary to ensure that parties who authorization rules are based on Section • Is not subject to requirements of utilize such exceptions ultimately bring 302 of the Communications Act of 1934, Section 12(d) of the National such devices into full compliance with as amended (the Act), 47 U.S.C. 302a, Technology Transfer and Advancement the Commission’s equipment which gives the Commission authority Act of 1995 (15 U.S.C. 272 note) because authorization rules. to make reasonable regulations application of those requirements would DATES: Comments are due February 11, governing the interference potential of be inconsistent with the Clean Air Act; 2021. Reply comments are due February devices that emit radiofrequency energy and 26, 2021. and can cause harm to consumers or
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other radio operations. The Commission cycles of new devices are short. The end, the Commission identifies Section uses the equipment authorization Commission further recognizes that the 95.391, 47 CFR 95.391, and seeks program, codified in Part 2 of its rules, its proposal has the potential to better comment on whether other rules, such 47 CFR part 2, to ensure that align its processes with popular as those provided under Sections radiofrequency devices comply with its consumer expectations and noted CTA’s 80.1061, 87.147, and 95.2991, 47 CFR technical and equipment authorization claim that pre-ordering consumer goods 80.1061, 87.147, and 95.2991, would requirements before they can be has become commonplace. The also need to be revised or clarified. The marketed in or imported to the United Commission seeks comment on its Commission asks whether there are States. There are two different approval observations and asks whether there are other specific devices subject to certain procedures for equipment other benefits or risks associated with rules that might also need to be authorization—Certification and the proposed marketing rule that it had excluded and directed commenters to be Supplier’s Declaration of Conformity not identified. The Commission asks if specific in detailing which rules and (SDoC). Certification, the most rigorous expanding the scope of marketing to what types of equipment would be approval process for radiofrequency include conditional sales of implicated, and why these would need devices, results in an equipment radiofrequency devices directly to to be treated differently. authorization issued by an FCC- consumers would yield the anticipated 7. The Commission’s proposed rule recognized Telecommunication benefits for industry and consumers and would require the prospective buyer to Certification Body (TCB) based on an whether there are other actions the FCC be advised at the time of marketing the evaluation of the supporting could take that would more effectively conditional sale that the equipment is documentation and test data submitted meet its objective. subject to the Commission’s rules and to the TCB. SDoC is a procedure that 5. The Commission also recognizes delivery to the buyer is contingent upon requires the party responsible for the continuing importance of ensuring compliance with the applicable compliance (who must be located in the that unauthorized radiofrequency equipment authorization and technical United States) to ensure that the devices do not reach consumers where requirements. The Commission asks equipment complies with the they could potentially cause harm. As a whether it should require the seller to appropriate technical standards. Unlike fundamental matter, the Commission make additional disclosures throughout with Certification, equipment proposes to prohibit the delivery of the marketing and sales process, authorized under the SDoC procedure is radiofrequency devices to consumers including up to the time of delivery, not listed in a Commission database. prior to authorization. The Commission noting that TechFreedom had suggested 3. Subpart I of part 2 of the notes that its rules are designed to that the Commission require any seller Commission’s rules sets out the prevent the sale and operation of non- to display specific language warning conditions under which radiofrequency compliant devices, and that potential customers that they are pre- devices that are capable of causing harm manufacturers and vendors who market ordering a device that is not yet certified to consumers or other radio operations and deliver non-compliant devices to under the Commission’s rules, and it may be marketed in the United States. purchasers in the United States, as well ultimately may never be delivered. The Marketing is broadly defined to include as domestic consumers who operate Commission proposes that sellers ‘‘sale or lease, or offering for sale or non-compliant devices, can be held should be required to prominently lease, including advertising for sale or liable for violating these rules. display language clarifying the lease, or importation, shipment, or 6. The Commission seeks comment on conditional nature of a sale at the time distribution for the purpose of selling or whether there are additional safeguards of offer, as set forth in the proposed leasing or offering for sale or lease.’’ 47 that it should implement. Are there rules. CFR 2.803(a). In general, parties may not certain types of devices for which 8. The Commission asks whether market radiofrequency devices unless conditional sales to consumers would there are other disclosures that sellers the devices have been properly not be appropriate? These could include should make when marketing authorized or otherwise comply with all devices designed to operate in particular radiofrequency devices to consumers applicable technical, labeling, frequency bands where extensive pre- prior to equipment authorization. identification, and administrative operation coordination is required; Should the Commission require sellers requirements. 47 CFR 2.803(b). An equipment designed for commercial to provide information on how to seek existing limited exception permits operation that could pose a greater risk a refund in the event the device does conditional sales contracts—that is, of harmful interference or harm to not receive authorization? If so, how sales whereby the actual delivery of the persons if not installed properly; and should the seller provide this product to the buyer is postponed—to medical or other equipment that require information? How would consumers be wholesalers and retailers. The review or approval by other regulatory notified that authorization was not Commission proposes to modernize its bodies. How can the Commission granted, and that the devices will not be rules to also allow conditional sales, but prevent devices that have no likelihood delivered? What records of such notice not delivery, of radiofrequency devices of being approved from being marketed? are needed? Should the Commission to consumers prior to authorization. Should equipment that could only require online marketplaces to ensure 4. The Commission expresses belief operate under a Commission waiver be all advertisements of devices marketed that the marketplace and the consumer prohibited from marketing prior to a through conditional sales include the experience have changed such that there waiver being granted? The Commission required disclosures? If unique is good reason to modify the rules to recognizes that certain types of devices identifying information (e.g., model allow for some conditional sales. These are used to ensure the safety of life and numbers, expected FCC ID) is known at reasons include that such sales would property on board ships and aircraft. the time of marketing, should the allow manufacturers to better gauge Should the Commission exclude those Commission require that information to consumer interest and demand, would types of devices? If not, the Commission be disclosed in online advertisements? improve supply-chain management and notes that certain rules in parts 80, 87, 9. The Commission asks if it should thus reduce waste, and would support and 95 of the Commission’s rules may require manufacturers to include a label the highly competitive communications need to be adjusted and proposed to on device packaging noting that it shall market where the development and life revise these rules accordingly. To this not be delivered to consumers prior to
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obtaining equipment authorization and, the Commission’s rules? The ‘‘manufacturers’’ may be too limiting for if so, how it should implement this Commission seeks comment on these the wide range of creators and requirement as any such label notice questions as well as any other innovators who are likely to take would only have temporary enforcement measures that may be advantage of conditional sales of applicability. The Commission asks appropriate. radiofrequency devices to consumers, what information should be included on 12. The Commission seeks comment but was not sure that CTA’s suggested the label and whether there are other on the government’s role when a addition of ‘‘responsible parties, as steps the Commission could take to conditionally sold radiofrequency defined in Section 2.909 [of the ensure that all parties are fully aware device cannot be delivered and Commission’s rules]’’ was the most that device delivery is prohibited prior consumers may be entitled to a refund appropriate way to expand the scope of to authorization. or similar remedy under the sales the exemption because that rule 10. The Commission asks if it should agreement. The Commission asks if addresses the chain of responsibility for impose particular recordkeeping there were actions it could take to set the equipment authorization process. requirements on the manufacturer so appropriate consumer expectations, For certain conditional sales situations, that such equipment can be accounted direct consumers to appropriate such as the beginning stages of a for if equipment authorization is resources, and avoid becoming Kickstarter campaign, the seller may ultimately not granted or enforcement overwhelmed with general questions neither be a ‘‘manufacturer’’ nor a action needs to be taken. If so, the and complaints for which other agencies ‘‘responsible party’’ for purposes of the Commission proposes to require that the or entities may be a more appropriate Commission’s Part 2 rules; indeed, for manufacturer retain these records and contact. Should sellers make additional equipment in the conceptual stage, the provide them to the Commission upon product and contact information readily seller may not have even begun the request; it further asks what time period available—such as on their websites or equipment authorization process. The would be appropriate. The Commission that of a relevant industry trade group Commission asks how it should account also asks if the seller should be required (such as CTA), or as a specific for such sellers. Alternately, are there to provide the Commission with a disclosure to the Commission—to make benefits or risks to retaining the existing monthly update on the number of units it easier to identify what a caller is limitation to manufacturers? Would pre-ordered, and what requirements for talking about and where they should doing so, for example, help ensure that maintaining a designated agent or point direct their concerns? The Commission unauthorized and non-compliant of contact based in the United States asks about the role of the Federal Trade radiofrequency devices do not make would be appropriate. Commission, state attorneys general, or their way to consumers and cause harm? 11. The Commission asks what effect other enforcement entities outside of the 14. The Commission did not propose its proposal might have on its Commission in providing consumer to change Section 2.803(c)(2)(ii), 47 CFR enforcement activities. Acknowledging relief. Are these the best authorities for 2.803(c)(2)(ii), as CTA suggested in its that its proposal could lead to situations redressing potential consumer injuries petition. The Commission states that that might upset consumers’ from conditional sales of radiofrequency that this is a separate provision that expectations, the Commission asks what devices? How should the information allows limited marketing, in the form of scenarios could cause problems and about these authorities be provided to sales, to a narrow class of specialized seeks comment on whether it should consumers? What role, if any, should entities and that it explicitly prohibits adopt specific rules to address any the Commission have in providing this the offering for sale to other parties or potential harms that may result from information to consumers? What role, if to end users located in a residential allowing conditional sales of any, should the Commission have in environment. The Commission states radiofrequency devices to consumers. assisting other official bodies in seeking that it did not believe it would be For example, if equipment authorization redress for consumers? Should the necessary to change this portion of the is not granted, what actions should be Commission make contact information rule to satisfy its discrete objective and required of the manufacturer to ensure available on its website to identify that doing so might actually eliminate that unauthorized equipment is not where consumers should direct their an important avenue for limited made available to consumers? If an concerns? The Commission tentatively marketing that exists outside the unauthorized device is delivered to a concludes that adequate remedies exist conditional sales contract context. The consumer prior to receipt of the for contractual and similar harms that Commission seeks comment on this equipment authorization, what are the are external to the Commission and conclusion. The Commission also notes appropriate sanctions? What should the seeks comment on this observation. The that CTA proposed replacing this base forfeiture be for such violations? Commission asks if it should establish section with language that would allow Should the forfeiture be based on the a memorandum of understanding with manufacturers to enter into contracts for number of unauthorized units that are the Federal Trade Commission to share importation and preparatory activities delivered? Should the Commission deny information on potential violations or prior to sale. The Commission states future equipment authorization best practices in this area, as it has done that it did not believe that such applications from grantees who deliver in the past to facilitate coordination on activities constitute ‘‘marketing’’ that unauthorized devices to consumers, issues that span multiple jurisdictions. would be prohibited if not explicitly either directly or indirectly through a 13. The Commission notes that its permitted under the conditional sales third-party retailer? Should the proposed rule would retain the existing contract rule, but seeks comment from Commission require additional reference to ‘‘manufacturers’’ entering parties that might hold a different view. protections to prevent potential harm into conditional sales contracts, but 15. Finally, the Commission asks from online vendors or from overseas seeks comment on CTA’s request that, about the relative costs and benefits of vendors? What would those protections ‘‘[t]o the extent entities become its proposal to modify the marketing look like? If a manufacturer delivers a responsible for a device’s FCC rule. Can the benefits of allowing device that has failed to receive compliance, those ‘responsible parties’ conditional sales of radiofrequency authorization, should domestic also should be permitted to engage in devices be quantified in terms of cost consumers who operate the non- conditional sales with consumers.’’ The savings to equipment developers and compliant device be liable for violating Commission recognizes that manufacturers? How would this rule
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change affect the development time for in a marketplace characterized by out- what circumstances and how should devices and how long it takes to get new of-country production of many those parties be defined? innovative devices to market? How radiofrequency devices, shortened 19. The Commission states that it will should conditional sales of goods and product cycles, and the importance of need to provide additional safeguards as services pre-sold in other contexts quickly familiarizing consumers with part of any final rules it adopts. The inform the Commission’s analysis of new electronic devices. The Commission first seeks comment on conditional sales for radiofrequency Commission says the proposed change specific safeguards based on what CTA devices? The Commission encourages would allow consumers to see and had identified in its petition. The commenters to provide data on how examine devices more quickly to allow Commission asks if it should limit the common conditional sales are and, to them to make more timely purchase number of radiofrequency devices that the extent possible, quantify the benefits decisions and will assist sales associates can be imported for pre-sale activities to such conditional sales yield for both who need to become familiar with the 4,000, which would be a nationwide industry and consumers. What would be features associated with mobile 5G total as opposed to a limit on each the costs and benefits of expanding devices, Internet of Things devices, and shipment of devices imported into the conditional sales beyond manufacturers augmented reality and virtual reality United States. The Commission asks if to include a broader class of responsible devices once those devices are Certified specific controls are needed to ensure parties? What would be the costs and and may be operated. Facilitating an manufacturers cannot exceed this limit benefits of the proposals for record accelerated rollout of such devices, the by, for example, making separate 4,000- keeping of authorized and unauthorized Commission asserted, is an important unit shipments through multiple ports equipment? How often do crowd- way to maintain the United States’ of entry. If so, what controls would be funding campaigns, like those on global leadership in these industries. needed? The proposed rule would also codify a method to exceed this number Kickstarter and other platforms, result 18. The Commission states that it by providing for written approval to be in technology products being delivered must continue to protect against the obtained from the Commission’s Chief to consumers? What are the average possibility of unauthorized devices Engineer, which is consistent with the refund rates for unsuccessful crowd- making their way to consumers and approach the Commission has taken in funding or pre-sale events featuring a causing harm to consumers or other technology product that is ultimately other situations. Should this written radio operations. The Commission says not brought to market? approval be made public? Would this that it believes that the proposal would 16. Subpart K of part 2 of the numerical limitation, with a provision Commission’s rules sets out the not fundamentally change the general for allowing a greater number of conditions under which radiofrequency importation practice, in which the devices, provide a suitable balance devices may be imported into the overwhelming majority of between meeting manufacturer and United States. These rules are designed radiofrequency devices that are importer needs and limiting the number to provide assurance that imported will satisfy the condition that of unauthorized devices that may be radiofrequency devices brought into the an equipment authorization has already imported under this condition? The United States comply with the technical been obtained, and seeks comment on Commission notes some commenters standards that the Commission has this observation. The Commission also discussed the need for a larger number developed to minimize the potential for notes that the proposal would only and asks, for these commenters, if 8,000 harm to consumers or other radio apply to devices subject to Certification, would be sufficient. The Commission operations. These rules also recognize under which devices are subject to an also asks if, given that thousands of narrowly defined conditions where authorization process that involves devices are granted Certification each equipment that has not completed the rigorous review by a TCB and listing in year, a smaller limit would result in a Commission’s equipment authorization a Commission database, which should meaningful reduction in the risk of process nevertheless may be imported make importers well equipped to satisfy unauthorized devices being imported. under controlled circumstances, such as the controls placed in the proposed The Commission asks commenters for compliance testing, repair, or use by importation condition. The Commission addressing this matter to provide the Federal government. The states that there is no compelling reason specific data to justify their suggested Commission proposes to allow a limited to provide for pre-authorization limit. number of radiofrequency devices importation of devices that are approved 20. The Commission seeks comment subject to Certification to be imported under SDoC, which is a self-certification on implementing a requirement that into the United States prior to process that gives the manufacturer manufacturers using the proposed equipment authorization for pre-sale substantially greater control over the importation exception must have a activities, including imaging, packaging, timing of the equipment authorization reasonable basis to believe authorization and delivery to retail locations, by process. Because the proposed rule will be granted within 30 days of adding a new condition under which would only allow for specified pre-sale importation. Is 30 days an appropriate limited quantities of radiofrequency activities, which explicitly exclude length of time? Would a longer or devices are permitted to be imported. marketing and operation, the shorter timeline for obtaining The Commission states that the proposal Commission asks if its proposed authorization be appropriate here? What would allow device manufacturers to definition of pre-sale activities is does it mean for a manufacturer to have better prepare for new product launches appropriate. Would this definition of a reasonable basis to believe while guarding against the proliferation pre-sale activities conflict with other authorization will be obtained? Are of unauthorized and non-compliant rules, including the proposed rule there particular elements that must devices that might increase the risk of discussed above to allow marketing of make up such determination? For causing harm to consumers or other devices prior to authorization? Are there example, would a belief that radio operations. other pre-sale activities that should be authorization will be obtained within 30 17. The Commission states that it included or excluded? Should operation days be reasonable only if a believes that its proposal could provide by a limited class of parties (such as manufacturer has filed an equipment substantial benefits to device agents of the manufacturer) be allowed authorization application with a TCB? manufacturers and retailers that operate or prohibited, and if allowed, under Are achieving or performing other
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milestones in the authorization process temporary labels indicate the for manufacturers to identify and recall appropriate measures of reasonableness? administrative, civil, and criminal radiofrequency devices from retailers in Should the manufacturer be required to penalties that can result from the event that equipment authorization request permission in the context of the unauthorized operation of is not obtained? Would this condition authorization application process to radiofrequency devices? Should the be more burdensome for small import devices under this proposed manufacturer or importer be required to manufacturers than large rule? Do existing Commission processes, have a designated point of contact manufacturers? How would this like pre-approval guidance for TCBs or indicated on the temporary labels and, condition impact device retailers? waiver requests, provide manufacturers if so, should the contact be required to Would it impact small retailers with a sufficient general indication of be United States-based? The differently than large retailers? Should timeframe to allow ascertainment of Commission seeks comment on whether online retailers and brick-and-mortar ‘‘reasonable belief’’ under this proposed the temporary label must plainly state retailers be treated differently? Should rule? Should the novelty of a device or all of the required information on its foreign-based manufacturers be treated its features factor into whether an face or if the use of a URL or other differently? Are manufacturers the expectation of approval is reasonable? ‘‘pointer’’ should be allowed (and, if so, correct entity here or is there a larger Should the Commission consider the whether all of the required information universe of entities to which the past experience of the manufacturer in should be allowed to be conveyed in ownership provision should apply, such obtaining equipment Certifications as that manner). The Commission also as importers or sellers? Should relevant to this determination? Would seeks comment on whether a labeling manufacturers be required to maintain a accounting for past experience, or lack requirement should be used to assist public-facing database of imports made thereof, discourage small businesses or consumers and other parties in under this proposed rule? If so, what new entrants from taking advantage of determining whether the device has information should be included in such this new rule? The Commission also become Certified. Should the label a database? Should manufacturers asks if it should require the contain a URL or other machine- otherwise be responsible for manufacturer to document, and provide readable ‘‘pointer’’ that enables retailers unauthorized devices imported under such documentation to the Commission and end-users to verify the status of a this proposed rule that are operated upon request, the basis for its device’s authorization? If so, would the illegally? determination of reasonableness prior to label need to be temporary? Are other 23. The Commission asks about importing the devices. If so, how long labels or import documentation requiring manufacturers to have should the manufacturer be required to necessary to allow third parties to processes in place to retrieve the retain this documentation? To the extent identify whether there is a legitimate equipment from retailers in the event that such documentation may be attempt to obtain authorization for the that authorization is denied. How important for compliance and otherwise unauthorized devices? should such processes be structured? enforcement purposes, it proposed that Should, for example, manufacturers be For example, should the Commission manufacturers be required to maintain required to maintain a database or other specify these processes or allow this information for five years and public-facing way to confirm that an manufacturers to develop their own provide it to the Commission upon authorization is being sought for the processes, provided they are effective in request. Would a longer or shorter device? Would a temporary label make retrieving equipment from retailers in timeframe be more appropriate for it easier for bad actors to sell the event that authorization is denied? retaining this information? If so, how unauthorized devices by falsely Should the Commission require long should the information be retained claiming their devices have received or manufacturers to maintain specific and why? Finally, what consequences are in the process of receiving detailed records of which devices are would be suitable for cases where the authorization? Finally, if temporary supplied to which locations and/or manufacturer’s basis to believe labels include a URL or other pointer to prepare a formal plan prior to authorization will be obtained cannot be an online website or database where the importation? If so, should the considered ‘‘reasonable,’’ or if equipment’s authorization status can be Commission require that these records authorization is not obtained within 30 verified, would that reduce the chances be supplied to the Commission or days (or another time period, if that of bad actors using such labels for posted to the manufacturer’s website or would be more appropriate)? fraudulent purposes? the website of a relevant industry trade 21. The Commission seeks comment 22. The Commission seeks comment group (such as CTA)? How long should on the use of a temporary device label on requiring manufacturers to maintain the Commission require these records to and asks how such a requirement would legal ownership of devices, even after be maintained? As with other similar be implemented and the benefits it transferring control of them to retailers. records, should the Commission require could provide. The Commission How would such a requirement operate that such records be made available to discusses CTA’s suggestion that the in practice? The Commission asks it upon request (such as before devices temporary labels would provide notice whether the language contained in the may be imported for pre-sale activities of the Commission’s rules—namely, that proposed rule would be sufficient to or in the event that a device recall devices cannot be displayed, operated, implement this proposal. If becomes necessary)? If the manufacturer or sold prior to FCC authorization. The manufacturers retain legal ownership of is unable to obtain authorization for its Commission asks what information devices after they have left their direct equipment, should the Commission should be required on these labels. control, would that provide them with require the manufacturer to provide the Should the Commission require use of adequate incentive and means to ensure Commission a report detailing its plan the specific language CTA identifies? that their devices do not cause harm to for retrieving equipment along with Would such information be appropriate consumers or other radio operations? status reports updating the progress of and adequate in this case? Should other Would they be able to help remediate that endeavor? If so, what information information be required here, such as any harm that may occur? What are the should be included in this report? the model numbers or expected FCC IDs primary benefits of codifying such a Should the Commission require associated with the devices? Should the requirement? Would this make it easier manufacturers to report the model and
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serial numbers of all devices that are a requirement in its final rule and, if so, importations only if it fails to retrieve retrieved? When should a status report whether it should apply to all types of all devices after failing to obtain be required? How long should radiofrequency devices or only authorization for a radiofrequency manufacturers have to complete the radiofrequency devices that operate in device imported under this proposed device retrieval process? Would 14 days accordance with particular Commission rule? Should the manufacturer be be appropriate? Should manufacturers rule parts. subject to a penalty under Section 503 have more or less time to complete the 26. The Commission notes that the of the Act, and if so, what should be the retrieval process? proposed rule restricts devices from base forfeiture for such violations? Are 24. The Commission recognizes that being displayed, offered for sale, or there other ways the Commission there are additional conditions or marketed to consumers, but places no should structure enforcement where the approaches beyond those discussed limitations on where they may be sent manufacturer fails to retrieve equipment above, which were based on safeguards after importation. The Commission asks in the event an authorization is denied? suggested by CTA, that could be if parties believe that this would present 29. The Commission seeks comment appropriate to meet its objectives of unwarranted risks for adequate control on this importation proposal and the adding a new permissible import of the devices prior to authorization likely costs and benefits associated with condition while minimizing the and, if so, whether the Commission expanding the provisions under which potential for unauthorized and non- should require that the devices be kept radiofrequency devices may be compliant radiofrequency devices to only at specific locations, such as imported to support pre-sale activities. cause harm to consumers or other radio distribution facilities, prior to Can these benefits be quantified in operations. The Commission asks authorization. terms of cost savings to device whether there are conditions it should 27. Because the proposed rule manufacturers? How would this rule adopt in addition to or instead of those modification would allow affect the time it takes to get new CTA has identified and encouraged radiofrequency devices that are not yet innovative devices to market? Would commenters to identify the specific Certified to be imported, the importing devices for pre-sale activities requirements that would be the most Commission seeks comment on how generate any other benefits or risks for effective while minimizing potential manufacturers intend to ensure that industry or consumers? The burdens. For example, in addition to or these devices comply with the Commission encourages commenters to in lieu of a strict numerical importation Commission’s labeling and disclosure provide data to quantify these benefits limit, should the Commission requirements once authorization is and risks. In addition, what would be differentiate based on the nature or type obtained. The proposed rule the costs to firms in following the of device? Should it exempt certain incorporates CTA’s suggestion that safeguards discussed above, such as the classes of equipment or equipment that devices imported pursuant to this use of temporary device labels and are intended to operate in certain bands Section ‘‘may include the expected FCC maintaining processes to retrieve due to greater risk of harmful ID if obscured by the temporary label.’’ equipment from retailers if interference or harm to persons, such as The Commission seeks comment on authorization is denied? If commenters U–NII devices, medical devices, or whether this would be an effective way have alternative proposals to reform the devices designed to operate exclusively to ensure that a device complies with importation rules, what would be the in public safety bands? If so, the Commission’s rules once it receives benefits and costs? commenters should be specific as to authorization. Would there be situations 30. The Commission notes that its what equipment or bands should be where manufacturers would have to equipment authorization proceeding in excluded. Further, the Commission physically recall devices to ensure that ET Docket 15–170, which also asks recognizes that certain types of devices they comply with the labeling and questions about importation, remains are used to ensure the safety of life and disclosure requirements associated with open and active, it tentatively property on board ships and aircraft and the Commission’s equipment concluded that the marketing and seeks comment on whether there is any authorization rules? How could the importation changes proposed in this reason to exclude those types of devices Commission be confident that Notice of Proposed Rulemaking are from its proposal. The Commission also manufacturers take all necessary steps sufficiently discrete that it could act on notes that certain rules in Parts 80, 87, to ensure that devices imported prior to them independently, and seeks and 95 of its rules may need to be equipment authorization comply with comment on how they might interrelate adjusted for purposes of streamlining the Commission’s labeling and with any open equipment authorization the proposed framework, proposed to disclosure rules? What impact would matters the Commission has under revise Section 95.391, 47 CFR 95.391, to the use of electronic labeling have on consideration. ensure that its rules are consistent with this matter? 31. Finally, the Commission the proposed framework, and seeks 28. The Commission asks how recognizes that other agencies play an comment on whether other rules, such enforcement of this rule should be important role in importation matters. as Sections 80.1061, 87.147, and structured. What penalties would be The Commission asks if there are 95.2991, 47 CFR 80.1061, 87.147, and appropriate for violating any of the specific actions the Commission can 95.2991, should also be revised or conditions attached to this rule? For take in working with Customs and clarified. example, should a manufacturer be Border Protection, with which the 25. The Commission notes that some barred from availing itself of this Commission has a longstanding commenters have suggested that it could exception for future importations if it cooperative relationship, to help ensure require a remote shutdown feature for fails to obtain authorization for a that radiofrequency devices imported all radiofrequency devices imported for radiofrequency device imported under for pre-sale activities prior to pre-sale activities and observed that this proposed rule? Or if it fails to authorization comply with all under its experimental licensing rules comply with any of the labeling or applicable conditions. Are there other there are specific situations in which reporting requirements the Commission agencies the Commission should work licensees must either recall or disable might ultimately adopt? Should a with to ensure that its importation rules devices at the end of an experiment. The manufacturer be barred from availing operate in an effective and efficient Commission asks if it should adopt such itself of this exception for future manner? Are there other agencies that
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have addressed importation issues Commission’s ex parte rules. Persons overnight U.S. Postal Service mail. All related to products subject to approval making ex parte presentations must file filings must be addressed to the that would provide a model for a copy of any written presentation or a Commission’s Secretary, Office of the achieving the Commission’s objectives? memorandum summarizing any oral Secretary, Federal Communications presentation within two business days Commission. Procedural Matters after the presentation (unless a different • Commercial overnight mail (other 32. This document contains proposed deadline applicable to the Sunshine than U.S. Postal Service Express Mail new information collection period applies). Persons making oral ex and Priority Mail) must be sent to 9050 requirements. The Commission, as part parte presentations are reminded that Junction Drive, Annapolis Junction, MD of its continuing effort to reduce memoranda summarizing the 20701. U.S. Postal Service first-class, paperwork burdens, invites the general presentation must (1) list all persons Express, and Priority mail must be public and the Office of Management attending or otherwise participating in addressed to 45 L Street NE, and Budget (OMB) to comment on the the meeting at which the ex parte Washington, DC 20554. information collection requirements presentation was made, and (2) • Effective March 19, 2020, and until contained in this document, as required summarize all data presented and further notice, the Commission no by the Paperwork Reduction Act of arguments made during the longer accepts any hand or messenger 1995, Public Law 104–13. In addition, presentation. If the presentation delivered filings. This is a temporary pursuant to the Small Business consisted in whole or in part of the measure taken to help protect the health Paperwork Relief Act of 2002, Public presentation of data or arguments and safety of individuals, and to Law 107–198, see 44 U.S.C. 3506(c)(4), already reflected in the presenter’s mitigate the transmission of COVID–19. we seek specific comment on how we written comments, memoranda or other See FCC Announces Closure of FCC might further reduce the information filings in the proceeding, the presenter Headquarters Open Window and collection burden for small business may provide citations to such data or Change in Hand-Delivery Policy, Public concerns with fewer than 25 employees. arguments in his or her prior comments, Notice, DA 20–304 (March 19, 2020). 33. Initial Regulatory Flexibility memoranda, or other filings (specifying https://www.fcc.gov/document/fcc- Analysis. As required by the Regulatory the relevant page and/or paragraph closes-headquarters-open-window-and- Flexibility Act, the Commission has numbers where such data or arguments changes-hand-delivery-policy. prepared an Initial Regulatory can be found) in lieu of summarizing 37. People with Disabilities: To Flexibility Analysis (IRFA) of the them in the memorandum. Documents request materials in accessible formats possible significant economic impact on shown or given to Commission staff for people with disabilities (braille, a substantial number of small entities of during ex parte meetings are deemed to large print, electronic files, audio the proposals addressed in this Notice. be written ex parte presentations and format), send an email to [email protected] The Full IRFA is found in Appendix B must be filed consistent with rule or call the Consumer & Governmental at https://www.fcc.gov/document/fcc- 1.1206(b). In proceedings governed by Affairs Bureau at 202–418–0530 (voice), proposes-rules-expedite-release-new- rule 1.49(f) or for which the 202–418–0432 (tty). devices-and-technologies-0. Written Commission has made available a Ordering Clauses public comments are requested on the method of electronic filing, written ex IRFA. These comments must be filed in parte presentations and memoranda 38. Accordingly, it is ordered, accordance with the same filing summarizing oral ex parte pursuant to Sections 4(i), 201, 302, and deadlines for comments on the NPRM, presentations, and all attachments 303 of the Communications Act of 1934, and they should have a separate and thereto, must be filed through the as amended, 47 U.S.C. 154(i), 201, 302a, distinct heading designating them as electronic comment filing system 303, that this Notice of Proposed responses to the IRFA. The available for that proceeding, and must Rulemaking is hereby adopted. 39. It is further ordered that the Commission’s Consumer and be filed in their native format (e.g., .doc, Commission’s Consumer and Governmental Affairs Bureau, Reference .xml, .ppt, searchable .pdf). Participants Governmental Affairs Bureau, Reference Information Center, will send a copy of in this proceeding should familiarize Information Center, shall send a copy of this Notice, including the IRFA, to the themselves with the Commission’s ex this Notice of Proposed Rulemaking, Chief Counsel for Advocacy of the Small parte rules. Business Administration, in accordance 36. Filing Requirements. Pursuant to including the Initial and Final with the Regulatory Flexibility Act. §§ 1.415 and 1.419 of the Commission’s Regulatory Flexibility Analyses, to the 34. The Commission requests written rules, 47 CFR 1.415, 1.419, interested Chief Counsel for Advocacy of the Small public comment on the IRFA. parties may file comments and reply Business Administration. 40. It is further ordered that the Comments must be filed in accordance comments on or before the dates Commission’s Consumer and with the same filing deadlines as indicated on the first page of this Governmental Affairs Bureau, Reference comments filed in response to the document. Comments may be filed Information Center, shall send a copy of NPRM and must have a separate and using the Commission’s Electronic this Notice of Proposed Rulemaking, distinct heading designating them as Comment Filing System (ECFS). See including the Initial and Final responses to the IRFA. The Electronic Filing of Documents in Regulatory Flexibility Analyses, to Commission’s Consumer and Rulemaking Proceedings, 63 FR 24121 Congress and the Government Governmental Affairs Bureau, Reference (1998). Information Center, will send a copy of • Electronic Filers: Comments may be Accountability Office pursuant to the this Notice, including the IRFA, to the filed electronically using the internet by Congressional Review Act, see 5 U.S.C. Chief Counsel for Advocacy of the Small accessing the ECFS: http://apps.fcc.gov/ 801(a)(1)(A). Business Administration, in accordance ecfs/. List of Subjects with the Regulatory Flexibility Act. • Paper Filers: Parties who choose to 35. Ex Parte Presentations. The file by paper must file an original and 47 CFR Part 2 proceeding this Notice initiates shall be one copy of each filing. Frequency Allocations and Radio treated as a ‘‘permit-but-disclose’’ Filings can be sent by commercial Treaty Matters; General Rules and proceeding in accordance with the overnight courier, or by first-class or Regulations.
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47 CFR Part 95 proper equipment authorization has § 302(b) of the Communications Act (47 been obtained. U.S.C. 302a(b)). See also part 2, subpart Personal Radio Services. (i) The Chief, Office of Engineering I (§ 2.801 et seq.) of this chapter for rules Federal Communications Commission. and Technology, may approve governing marketing of radiofrequency Marlene Dortch, importation of a greater number of units devices. Secretary. in a manner otherwise consistent with [FR Doc. 2020–28906 Filed 1–11–21; 8:45 am] this paragraph (11) in response to a Proposed Rules BILLING CODE 6712–01–P specific request; For the reasons set forth in the (ii) This exception is only available to preamble, the Federal Communications manufacturers for radiofrequency Commission proposes to amend 47 CFR devices who have a reasonable belief DEPARTMENT OF TRANSPORTATION part 2 as follows: that authorization will be granted Federal Motor Carrier Safety within 30 days of importation; Administration PART 2—FREQUENCY ALLOCATIONS (iii) Each device imported under this AND RADIO TREATY MATTERS; exception must contain a temporary 49 CFR Part 391 GENERAL RULES AND REGULATIONS removable label stating: ‘‘This device cannot be displayed, operated, offered [Docket No. FMCSA–2019–0049] ■ 1. The authority citation for part 2 for sale, marketed to consumers, or sold continues to read as follows: until FCC equipment authorization has RIN 2126–AC21 Authority: 47 U.S.C. 154, 302a, 303, and been granted. Under penalty of law, this Qualifications of Drivers; Vision 336, unless otherwise noted. label may not be removed prior to the Standard ■ 2. In § 2.803 revise paragraph (c)(2)(i) grant of FCC authorization.’’ (iv) Notwithstanding § 2.926, to read as follows: AGENCY: Federal Motor Carrier Safety radiofrequency devices imported Administration (FMCSA), DOT. § 2.803 Marketing of radio frequency pursuant to this paragraph (11) may ACTION: Notice of proposed rulemaking. devices prior to equipment authorization. include the expected FCC ID if obscured * * * * * by the temporary label described in this SUMMARY: FMCSA proposes to amend its (c) * * * section or, in the case of electronic regulations to permit individuals who (2) * * * displays, if it cannot be viewed prior to cannot meet either the current distant (i) Conditional sales contracts authorization. visual acuity or field of vision standard, (including agreements to produce new (v) The radiofrequency devices or both, in one eye to be physically devices manufactured in accordance remain under legal ownership of the qualified to operate a commercial motor with designated specifications), and device manufacturer, and only vehicle (CMV) in interstate commerce. advertisements for such sales, are possession of the device is transferred Currently, such individuals are permitted between manufacturers and prior to authorization. Manufacturers prohibited from driving CMVs in potential customers provided that the must have processes in place to retrieve interstate commerce unless they obtain prospective buyer is advised at the time the equipment in the event that an exemption from FMCSA. The Agency of marketing, through a prominent authorization is not received. proposes an alternative vision standard (vi) Manufacturers must maintain, for disclosure, that the equipment is subject for physical qualification that, if a period of sixty (60) months, records to the FCC rules and delivery to the adopted, would replace the current identifying the recipient of devices buyer or to centers of distribution is vision exemption program as a basis for imported for pre-sale activities. Such conditional upon a determination that establishing the physical qualification records must identify the device name the equipment complies with the determination for these individuals. and product identifier, the quantity applicable equipment authorization and DATES: You must submit comments on shipped, the date on which the device technical requirements. Delivery to this notice of proposed rulemaking authorization was sought, the expected customers of equipment subject to FCC (NPRM) to FMCSA on or before March FCC ID number, and the identity of the rules prior to obtaining the applicable 15, 2021. Comments on the collection of recipient, including address and equipment authorization and complying information must be received on or telephone number. The manufacturer with the applicable technical before March 15, 2021. must provide records maintained under requirements is prohibited. this paragraph (vi) upon the request of ADDRESSES: You may submit comments * * * * * Commission personnel. on this NPRM identified by docket ■ 3. Amend § 2.1204 by adding number FMCSA–2019–0049 using any paragraph (a)(11) to read as follows: PART 95—PERSONAL RADIO one of the following methods: SERVICES • Federal eRulemaking Portal: § 2.1204 Import Conditions. www.regulations.gov. (a) * * * ■ 4. The authority citation for part 95 • Fax: (202) 493–2251. (11) The radio frequency device is continues to read as follows: • Mail: Docket Operations, U.S. subject to Certification and is being Authority: 47 U.S.C. 154, 303, 307. Department of Transportation, West imported in quantities of 4,000 or fewer ■ 5. Section 95.391 is revised to read as Building Ground Floor, Room W12–140, units for pre-sale activity. Pre-sale follows: 1200 New Jersey Avenue SE, activity includes packaging and Washington, DC 20590–0001. delivering devices to retails locations, as § 95.391 Manufacturing, importation, and • Hand Delivery: Docket Operations, well as loading devices with specific sales of non-certified equipment prohibited. U.S. Department of Transportation, software to demonstrate specific No person shall manufacture, import, West Building Ground Floor, Room features of the devices when displayed sell or offer for sale non-certified W12–140, 1200 New Jersey Avenue SE, at retail locations. The devices will not equipment for the Personal Radio Washington, DC 20590–0001, between 9 be displayed, operated, offered for sale, Services except as provided for in a.m. and 5 p.m., Monday through marketed to consumers, or sold until § 2.803(c)(2)(i) of this chapter. See Friday, except Federal holidays.
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To avoid duplication, please use only Regulation and Regulatory Review), and disclosure. If your comments responsive one of these four methods. See the DOT Regulations to this NPRM contain commercial or ‘‘Public Participation and Request for B. E.O. 13771 (Reducing Regulation and financial information that is customarily Comments’’ heading under the Controlling Regulatory Costs) C. Congressional Review Act treated as private, that you actually treat SUPPLEMENTARY INFORMATION section D. Regulatory Flexibility Act (Small as private, and that is relevant or below for instructions regarding Entities) responsive to this NPRM, it is important submitting comments, including E. Assistance for Small Entities that you clearly designate the submitted collection of information comments for F. Unfunded Mandates Reform Act of 1995 comments as CBI. FMCSA will treat the Office of Information and Regulatory G. Paperwork Reduction Act (Collection of such marked submissions as Affairs (OIRA) at the Office of Information) confidential under the Freedom of Management and Budget (OMB). H. E.O. 13132 (Federalism) I. Privacy Information Act, and they will not be FOR FURTHER INFORMATION CONTACT: If J. E.O. 13175 (Indian Tribal Governments) placed in the public docket for this you have questions about this proposed K. National Environmental Policy Act of rulemaking. Please mark each page of rule, contact Ms. Christine A. Hydock, 1969 your submission that constitutes CBI as Chief, Medical Programs Division, ‘‘PROPIN’’ to indicate it contains I. Public Participation and Request for FMCSA, 1200 New Jersey Avenue SE, proprietary information. Submissions Comments Washington, DC 20590–0001, by containing CBI should be sent to Mr. telephone at (202) 366–4001, or by FMCSA encourages you to participate Brian Dahlin, Chief, Regulatory Analysis email at [email protected]. If you in this rulemaking by submitting Division, FMCSA, 1200 New Jersey have questions about viewing or comments and related materials. Where Avenue SE, Washington, DC 20590. Any submitting material to the docket, call possible, please provide scientific, peer- comments FMCSA receives that are not DOT Docket Operations, (202) 366– reviewed articles to support your specifically designated as CBI will be 9826. comments. placed in the public docket for this SUPPLEMENTARY INFORMATION: This A. Submitting Comments rulemaking. NPRM is organized as follows. If you submit comments, please FMCSA will consider all comments I. Public Participation and Request for include the docket number for this and material received during the Comments comment period and may make changes A. Submitting Comments rulemaking (FMCSA–2019–0049), indicate the heading of the specific based on your comments. FMCSA may B. Viewing Comments and Documents issue a final rule at any time after the C. Privacy Act section of this document to which each D. Waiver of Advance Notice of Proposed comment applies, and provide a reason close of the comment period. Rulemaking for each suggestion or recommendation. B. Viewing Comments and Documents E. Comments on the Collection of You may submit your comments and Information material online or by fax, mail, or hand To view comments and any document II. Abbreviations, Acronyms, and Symbols delivery, but please use only one of mentioned in this preamble as being III. Executive Summary these means. FMCSA recommends that A. Purpose of the Amendments available in the docket, go to B. Summary of the Major Provisions you include your name and a mailing www.regulations.gov, insert the docket C. Benefits and Costs address, an email address, or a phone number (FMCSA–2019–0049) in the IV. Legal Basis for the Rulemaking number in the body of your document ‘‘Keyword’’ box, and click ‘‘Search.’’ V. Background so the Agency can contact you if it has Next, click the ‘‘Open Docket Folder’’ A. Current Vision Standard questions regarding your submission. button and choose the document listed B. Vision Waiver Study Program and To submit your comment online, go to to review. If you do not have access to Grandfathered Drivers www.regulations.gov, type the docket the internet, you may view the docket C. Federal Vision Exemption Program— number (FMCSA–2019–0049) in the online by visiting Docket Operations in 1998 to the Present ‘‘Keyword’’ box and click ‘‘Search.’’ VI. Assessments of the Vision Standards, Room W12–140 on the ground floor of Waivers, and Exemptions When the new screen appears, click the the DOT West Building, 1200 New VII. Rationale for Proposed Qualification ‘‘Comment Now!’’ button and type your Jersey Avenue SE, Washington, DC Standard comment into the text box in the 20590, between 9 a.m. and 5 p.m., A. Individuals Adapt to and Compensate following screen. Choose whether you Monday through Friday, except Federal for Vision Loss are submitting your comment as an holidays. To be sure someone is there to B. MEs Would Make the Qualification individual or on behalf of a third party, Determination help you, please call (202) 366–9317 or and click ‘‘Submit.’’ (202) 366–9826 before visiting Docket C. Review of an Individual’s Safety If you submit your comments by mail Operations. Performance Would Continue or hand delivery, submit them in an VIII. Discussion of Proposed Rule 1 A. Proposed Physical Qualification Process unbound format, no larger than 8 ⁄2 by C. Privacy Act 11 inches, suitable for copying and B. Road Test in Accordance With 49 CFR In accordance with 5 U.S.C. 553(c), 391.31 electronic filing. If you submit C. Elimination of Vision Exemption comments by mail and would like to DOT solicits comments from the public Program and Grandfather Provisions know that they reached the facility, to better inform its rulemaking process. D. Change to the Medical Examination please enclose a stamped, self-addressed DOT posts these comments, without Process in 49 CFR 391.43(b)(1) postcard or envelope. edit, including any personal information E. Benefits of the Proposal to Drivers Confidential Business Information: the commenter provides, to IX. Section-by-Section Analysis Confidential Business Information (CBI) www.regulations.gov, as described in A. Regulatory Provisions the system of records notice DOT/ALL B. Guidance Statements and Interpretations is commercial or financial information X. International Impacts that is both customarily and actually 14—Federal Docket Management XI. Regulatory Analyses treated as private by its owner. Under System (FDMS), which can be reviewed A. E.O. 12866 (Regulatory Planning and the Freedom of Information Act (5 at https://www.transportation.gov/ Review), E.O. 13563 (Improving U.S.C. 552), CBI is exempt from public privacy.
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D. Waiver of Advance Notice of TEA–21 Transportation Equity Act for the individuals who cannot meet either the Proposed Rulemaking 21st Century current FMCSA distant visual acuity or U.S.C. United States Code Under 49 U.S.C. 31136(g)(1), FMCSA field of vision standard, or both, in one is required to publish an advance notice III. Executive Summary eye and, if adopted, would replace the current vision exemption program as a of proposed rulemaking or conduct a A. Purpose of the Amendments negotiated rulemaking if a proposed rule basis for determining the physical is likely to lead to the promulgation of FMCSA proposes to amend its qualification of such individuals to a major rule.1 As this proposed rule is regulations to permit an individual who operate a CMV. The proposed action not likely to result in the promulgation cannot meet either the current distant would ensure that these individuals are of a major rule, the Agency is not visual acuity or field of vision standard, physically qualified to operate a CMV required to issue an advance notice of or both, in one eye to be physically safely. In addition, the proposed process proposed rulemaking or to proceed with qualified to operate a CMV in interstate would create a clear and consistent a negotiated rulemaking. commerce under specified conditions. framework to assist certified medical The individual would need to meet the examiners (ME) with making a physical E. Comments on the Collection of proposed alternative vision standard qualification determination that is Information and FMCSA’s other physical equally as effective as a program based Written comments and qualification standards. In addition, entirely on granting exemptions under recommendations for the proposed with limited exceptions, individuals 49 U.S.C. 31315(b). information collections discussed in physically qualified under the Just as in the alternative standard for this NPRM should be sent to FMCSA alternative standard for the first time insulin-treated diabetes mellitus, the within 60 days of publication using any would complete a road test before alternative vision standard would of the methods described in ‘‘Public operating a CMV in interstate involve a two-step process for physical Participation and Request for commerce. The proposed action would qualification. First, an individual Comments’’ above. eliminate the need for the current seeking physical qualification would Federal vision exemption program, as obtain a vision evaluation from an II. Abbreviations, Acronyms, and well as the grandfather provision in 49 ophthalmologist or optometrist who Symbols CFR 391.64 for drivers operating under would record the findings and provide ATA American Trucking Associations, Inc. the previously administered vision specific medical opinions on the CBI Confidential Business Information waiver study program. Medical proposed Vision Evaluation Report, CDL Commercial Driver’s License professionals would evaluate and make Form MCSA–5871, which incorporates CFR Code of Federal Regulations medical qualification determinations the recommendations of the MRB. Next, CMV Commercial Motor Vehicle instead of FMCSA, as in the current an ME would perform an examination DOT U.S. Department of Transportation exemption program. Motor carriers and determine whether the individual E.O. Executive Order would administer the road tests. The meets the proposed vision standard, as FHWA Federal Highway Administration proposed alternative vision standard well as FMCSA’s other physical FMCSA Federal Motor Carrier Safety qualification standards. If the ME Administration would enhance employment FMCSRs Federal Motor Carrier Safety opportunities while remaining determines that the individual meets the Regulations consistent with FMCSA’s safety physical qualification standards, the ME FR Federal Register mission. could issue a Medical Examiner’s GES General Estimates System Certificate (MEC), Form MCSA–5876, ICR Information Collection Request B. Summary of the Major Provisions for a maximum of 12 months. This Id. Idem—the same author or work The proposed alternative vision approach of MEs making the physical MCMIS Motor Carrier Management standard is based on recommendations qualification determination, instead of Information System from FMCSA’s Medical Review Board FMCSA as in the current exemption ME Medical Examiner (MRB). The proposed physical MEC Medical Examiner’s Certificate, Form program, is consistent with Congress’s MCSA–7876 qualification process is analogous to the directive in 49 U.S.C. 31149(d) to have MRB Medical Review Board regulatory framework FMCSA adopted trained and certified MEs determine the NAICS North American Industry in § 391.46 for individuals with insulin- individual’s physical qualification to Classification System treated diabetes mellitus (see 83 FR operate a CMV. National Registry National Registry of 47486, September 19, 2018). Prior to In making the physical qualification Certified Medical Examiners that rulemaking, such individuals were determination, the ME would consider NPRM Notice of Proposed Rulemaking prohibited from driving CMVs in the information in the Vision Evaluation OIRA Office of Information and Regulatory interstate commerce unless they Report, Form MCSA–5871, and utilize Affairs obtained an exemption from FMCSA. independent medical judgment to apply OMB Office of Management and Budget Like the approach in the rule for RFA Regulatory Flexibility Act four standards. The proposal would SBA Small Business Administration insulin-treated diabetes mellitus, after provide that, to be physically qualified Secretary Secretary of Transportation the public comment period for this under the alternative vision standard, § Section NPRM closes, FMCSA will ask the MRB the individual must: (1) Have in the to review all comments from medical better eye distant visual acuity of at 1 A ‘‘major rule’’ means any rule that the professionals and associations. If after least 20/40 (Snellen), with or without Administrator of OIRA at OMB finds has resulted that review the MRB makes material corrective lenses, and field of vision of in or is likely to result in (a) an annual effect on changes to its prior recommendations, at least 70 degrees in the horizontal the economy of $100 million or more; (b) a major increase in costs or prices for consumers, individual FMCSA will publish a Federal Register meridian; (2) be able to recognize the industries, Federal agencies, State agencies, local notice announcing the availability of the colors of traffic signals and devices government agencies, or geographic regions; or (c) new MRB recommendations and request showing standard red, green, and amber; significant adverse effects on competition, public comment specific to those (3) have a stable vision deficiency; and employment, investment, productivity, innovation, or on the ability of United States-based enterprises recommendations. (4) have had sufficient time to adapt to to compete with foreign-based enterprises in The proposed rule provides an and compensate for the change in domestic and export markets (5 U.S.C. 804(2)). alternative vision standard for vision.
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It is well recognized in the literature programs to ensure they cause no Form MCSA–5876, issued under that individuals with vision loss in one adverse impact on safety. The proposed § 391.64(b) would become void. eye can and do develop compensatory alternative vision standard would adopt Similarly, the 2,566 vision exemption viewing behavior to mitigate the vision the major vision criteria of the existing holders would have 1 year after the loss. Therefore, if an individual meets Federal vision exemption program, effective date of any final rule to comply the proposed vision standard, the which were also used in the preceding with the rule, at which time all Agency expects there will be no adverse Federal vision waiver study program exemptions issued under 49 U.S.C. impact on safety due to the individual’s since the early 1990s, and would modify 31315(b) would become void. Drivers vision. That is, once an individual’s other criteria from the exemption who hold a vision exemption would be vision is stable and the individual has program. Based on nearly 30 years of notified by letter with details of the adapted to and compensated for the experience with these programs, transition to the new standard. change in vision, the loss in vision is individuals who meet the proposed C. Benefits and Costs not likely to play a significant role in alternative vision standard will be at whether the individual can drive a CMV least as safe as the general population of FMCSA estimates that the proposed safely. CMV drivers. This experience has rule would reduce barriers to entry for Instead of requiring 3 years of shown that individuals with vision loss current and future CMV drivers. The intrastate driving experience with the in one eye are not limited by their lack 2,566 drivers holding vision exemptions vision deficiency as in the current of binocularity with respect to driving would no longer have to apply for an exemption program, individuals once they have adapted to and exemption, and potential driver physically qualified under the proposed compensated for the change in vision. applicants who do not have 3 years of alternative vision standard for the first If the proposed action is adopted, the intrastate driving experience may meet time would complete a road test before 2,566 vision exemption holders 3 would the alternative vision standard and be operating in interstate commerce. no longer require an exemption. able to operate a CMV in interstate Individuals would be excepted from the Accordingly, these drivers would be commerce. A one-time road test would road test requirement if they have 3 relieved of the time and paperwork be less burdensome on drivers than years of intrastate or excepted interstate burden associated with applying for or obtaining 3 years of intrastate driving CMV driving experience with the vision renewing an exemption.4 The proposed experience and addresses the deficiency, hold a valid Federal vision rule could increase employment consideration that some drivers live in exemption, or are medically certified opportunities because potential States that do not issue vision waivers. under § 391.64(b). These individuals applicants who do not have 3 years of The proposed rule would result in have already demonstrated they can intrastate driving experience may meet incremental cost savings of operate a CMV safely with the vision the alternative vision standard and be approximately $1.6 million annually by deficiency. Motor carriers would able to operate a CMV in interstate eliminating the need for the Federal conduct the road test in accordance commerce. In addition, previously vision exemption program. This with the road test already required by qualified interstate CMV drivers who estimate includes the additional annual § 391.31. FMCSA finds that a road test are no longer able to meet either the impact of approximately $47,000 for the would be an appropriate indicator of an distant visual acuity or field of vision road test. The Agency does not individual’s ability to operate a CMV standard, or both, in one eye would be anticipate any negative impacts on safely with the vision deficiency. Thus, able to return to operating in interstate safety. The proposed rulemaking, if finalized, the Agency expects there will be no commerce sooner. would result in reduced costs and, adverse impact on safety from FMCSA proposes that the therefore, would be a deregulatory eliminating the 3-year intrastate driving approximately 1,900 individuals action under Executive Order (E.O.) experience criterion. physically qualified under the The proposed standard takes a grandfather provisions in § 391.64(b) 13771, Reducing Regulation and performance-based approach. The would have 1 year after the effective Controlling Regulatory Costs. The standard emphasizes that the individual date of any final rule to comply with the present value of the cost savings, has developed the skills to adapt to and rule. During that transition year, measured on an infinite time horizon at compensate for the vision loss once it grandfathered individuals could elect to a 7 percent discount rate, expressed in has been deemed stable by a medical seek physical qualification through the 2016 dollars, would be $14.9 million. professional, and that the individual has final rule or § 391.64. This transition On an annualized basis, these cost demonstrated the skills to operate a year would provide time to learn the savings would be $1 million. CMV safely. The ME would ensure the new process for individuals whose IV. Legal Basis for the Rulemaking MEC, Form MCSA–5876, expires near driver is physically qualified to operate FMCSA has authority under 49 U.S.C. the time any final rule becomes a CMV in accordance with the physical 31136(a) and 31502(b)—delegated to the effective. However, 1 year after the qualification standards. With limited Agency by 49 CFR 1.87(f) and (i), effective date of the final rule all MECs, exceptions, motor carriers would respectively—to establish minimum conduct a road test for individuals to valid waivers from the vision standard at the qualifications, including physical ensure they possess the skills needed to qualifications, for individuals operating operate a CMV safely with the vision program’s end could continue to operate in interstate commerce under grandfather provisions CMVs in interstate commerce. Section deficiency. in 49 CFR 391.64. The vision waiver study program 31136(a)(3) requires specifically that the The Federal Highway Administration and grandfather provisions are discussed in section Agency’s safety regulations ensure that (FHWA), the predecessor agency to V.B. below. the physical condition of CMV drivers FMCSA, and FMCSA have continuously 3 FMCSA data as of July 2, 2019. 4 is adequate to enable them to operate monitored the impact of the vision As discussed below in the Paperwork Reduction Act section XI.G. with respect to the information their vehicles safely and that certified waiver study 2 and the exemption collection titled ‘‘Medical Qualification MEs trained in physical and medical Requirements,’’ FMCSA attributes 2,236 annual 2 FHWA conducted the vision waiver study burden hours at a cost of $69,136 for drivers to examination standards perform the program from July 1992 through March 31, 1996. request and maintain a vision exemption. The physical examinations required of such Drivers who participated in the program and held proposed rule would eliminate this entire burden. drivers.
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In addition to the statutory individual is physically qualified to requirements and published the final requirements specific to the physical drive a CMV if the individual has criteria for the vision waiver study qualifications of CMV drivers, section distant visual acuity of at least 20/40 program (57 FR 31458, July 16, 1992). 31136(a) requires the Secretary of (Snellen) in each eye without corrective FHWA concluded that the program met Transportation (Secretary) to issue lenses or visual acuity separately the statutory requirements for granting regulations on CMV safety, including corrected to 20/40 (Snellen) or better waivers because the program was in the regulations to ensure that CMVs ‘‘are with corrective lenses, distant binocular public interest and included conditions maintained, equipped, loaded, and acuity of at least 20/40 (Snellen) in both that allowed FHWA to find that such operated safely’’ (section 31136(a)(1)). eyes with or without corrective lenses, waivers were consistent with the safe The remaining statutory factors and field of vision of at least 70 degrees in operation of CMVs.5 FHWA reiterated requirements in section 31136(a), to the the horizontal meridian in each eye, and that the vision waiver study program extent they are relevant, are also the ability to recognize the colors of would provide the empirical data satisfied here. The proposed rule would traffic signals and devices showing necessary to evaluate the relationships not impose any ‘‘responsibilities . . . on standard red, green, and amber (49 CFR between specific vision deficiencies and operators of [CMVs that would] impair 391.41(b)(10)). This standard has not the operation of CMVs. their ability to operate the vehicles changed since it became effective on Under the vision waiver study safely’’ (section 31136(a)(2)), or ‘‘have a January 1, 1971. program, FHWA issued waivers to deleterious effect on the physical FMCSA’s physical qualification drivers following an individual condition’’ of CMV drivers (section standards cover 13 areas that relate determination of each driver’s capability 31136(a)(4)). FMCSA also does not directly to the driving function. With to operate a CMV safely. The anticipate that drivers would be coerced respect to most of the standards, an determination included a review of each to operate a vehicle because of this individual’s qualification to drive is individual’s vital statistics, experience rulemaking (section 31136(a)(5)). determined by an ME who is operating CMVs, anticipated post- Additionally, in 2005, Congress knowledgeable about the on-the-job waiver operations, and status of driving authorized the creation of the MRB, functions performed by a commercial privilege as recorded on the licensing composed of experts in a variety of driver and whether the driver has a State’s motor vehicle record for the past medical specialties relevant to the condition that would interfere with the 3 years. The determination also driver fitness requirements, to provide operation of a CMV. In the case of three included a review of an opinion by an medical advice and recommendations standards, including vision, the ophthalmologist or optometrist attesting on physical qualification standards (49 standard is absolute and provides no to the visual acuity of each driver, that U.S.C. 31149(a)). The position of Chief discretion to the ME. Thus, any the visual acuity had not worsened Medical Examiner was authorized at the individual who does not meet the vision since the last vision examination, and same time (49 U.S.C. 31149(b)). Under standard in its entirety cannot be that the driver was able to perform the section 31149(c)(1), the Agency, with physically qualified to drive a CMV in driving tasks required to operate a CMV. the advice of the MRB and Chief interstate commerce. The waiver study program required Medical Examiner, is directed to B. Vision Waiver Study Program and visual acuity of at least 20/40 (Snellen), establish, review, and revise medical Grandfathered Drivers corrected or uncorrected, in the better standards for CMV drivers that will eye, as well as satisfaction of the other On March 25, 1992, FHWA published applicable vision standard requirements ensure their physical condition is notice of its intent to accept adequate to enable them to operate the (i.e., field of vision of at least 70 degrees applications from CMV drivers for in the horizontal meridian in the better vehicles safely (see also 49 U.S.C. temporary waivers of certain 31149(d)). eye and the ability to recognize red, requirements contained in the vision green, and amber colors). Finally, prior to prescribing any standard, pursuant to the waiver regulations, FMCSA must consider their Drivers eligible for vision waivers had provision of former 49 U.S.C. 31136(e) to have driving records that surpassed ‘‘costs and benefits’’ (49 U.S.C. (57 FR 10295). To avoid any adverse 31136(c)(2)(A) and 31502(d)). Those those of their peers who met the vision impact on highway safety, FHWA requirements. FHWA aimed to eliminate factors are discussed in the Regulatory outlined specific criteria that applicants Analyses section of this NPRM. unsafe drivers by requiring applicants to had to meet to receive the vision waiver. have 3 years of intrastate CMV driving V. Background The waiver program’s goal was to experience with the vision deficiency provide objective data to be considered and a record that showed: A. Current Vision Standard in a future rulemaking that would FMCSA’s mission is to reduce explore the feasibility of relaxing the (1) No suspensions or revocations of his or her driver’s license for operating violations in crashes, injuries, and fatalities involving absolute vision standard in favor of a any motor vehicle; large trucks and buses. As discussed more individualized standard. To do so, (2) No involvement in a reportable accident above, FMCSA is authorized by statute FHWA invited CMV drivers who met in a CMV in which the applicant was cited to establish minimum physical the vision standard to participate in a for a moving traffic violation; qualification standards for drivers of study comparing a group of experienced (3) No convictions for a disqualifying CMVs operating in interstate commerce. drivers who did not meet the vision offense, as described in 49 CFR 383.51 (e.g., To ensure the physical qualification of standard with a control group of drivers driving a CMV while under the influence of alcohol or a controlled substance, leaving the CMV drivers, the Agency has who did meet the standard. scene of an accident involving a CMV, or the established several standards. As vision Subsequently, on June 3, 1992, FHWA plays an important role in the driving modified some of the program’s 5 Section 206(f) of the Motor Carrier Safety Act of task, one of the standards provides conditions, clarified some of its details, 1984 provides that any Federal Motor Carrier Safety vision requirements (see 49 CFR and requested comments on the Regulation (FMCSR) can be waived if ‘‘such waiver 391.41(b)(10)). proposed vision waiver study program is not contrary to the public interest and is consistent with the safe operation of [CMVs].’’ FHWA adopted the current vision (57 FR 23370, June 3, 1992). Public Law 98–554, 98 Stat. 2832, 2835, (October standard in 1970 (35 FR 6458, 6463, In July 1992, FHWA announced its 30, 1984), originally codified at 49 U.S.C. App. 2505 April 22, 1970). Under this standard, an decision to issue waivers of the vision and then at former 49 U.S.C. 31136(e).
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commission of a felony involving the use of the research plan (59 FR 59386). FHWA C. Federal Vision Exemption Program— a CMV), or more than one serious traffic determined that issuing waivers to the 1998 to the Present violation, as that term was defined in § 383.5 drivers through the conclusion of the 6 FHWA established the current Federal at the applicable time (e.g., excessive program was consistent with the public speeding, reckless driving, improper or vision exemption program on December erratic lane changes, following the vehicle interest and the safe operation of CMVs. 8, 1998 (63 FR 67600) following the ahead too closely, or a violation arising in FHWA based its decision, in part, on enactment of amendments to the connection with a fatality, all while driving data collected on the group of waived statutes governing exemptions made by a CMV); and drivers indicating that they had section 4007 of the Transportation (4) No more than two convictions for any performed and continued to perform other moving traffic violations while driving Equity Act for the 21st Century (TEA– more safely than drivers in the general 21).9 With the enactment of TEA–21, a CMV. population of commercial drivers. As FHWA was authorized to grant an discussed above, drivers were required FHWA accepted 2,686 drivers into the exemption to relieve an individual from vision waiver study program.7 Once to have a 3-year safe driving history in compliance in whole or in part with granted a waiver, a driver had to report intrastate commerce to participate in the certain regulations if FHWA determined or submit certain information to FHWA program. A statistical analysis of the that the exemption would likely achieve during the term of the waiver. Each driving performance of individuals a level of safety equivalent to, or greater driver was required to: participating in the program from July than, the level that would be achieved 1992 to July 1994 revealed the total (1) Report any citation for a moving by complying with the regulation to accident rate of drivers in the waived violation involving the operation of a CMV; which the exemption would apply (49 group was 1.636 per million vehicle (2) Report the disposition of such citation; U.S.C. 31315(b)(1)). (3) Report any accident involvement while miles traveled compared to the higher FMCSA processes exemption letters operating a CMV; national accident rate of 2.531 per of application in accordance with 49 (4) Submit documentation of an annual million vehicle miles traveled (59 FR CFR part 381, subpart C. Qualifying evaluation by an ophthalmologist or 59389).8 optometrist; and On March 26, 1996, FHWA issued a individuals may apply for an exemption (5) Submit monthly driving reports that from specified provisions of the included the number of miles driving a CMV rule to allow those drivers participating in the vision waiver study program and FMCSRs, including physical during the preceding month (with daylight qualification standards specified under and nighttime hours reported separately) and holding valid waivers from the vision the number of days a CMV was not operated standard to continue to operate in § 391.41(b) (see 49 CFR 381.300(c)(3)). during the preceding month. interstate commerce after March 31, Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption for up FHWA periodically verified the waived 1996 (61 FR 13338). FHWA amended 49 CFR part 391 by adding a new provision to a 5-year period and may renew an drivers’ reported accidents and citations exemption at the end of the 5-year through State motor vehicle records and at § 391.64 to grant grandfather rights to these drivers, subject to certain period. However, FMCSA grants vision the waived drivers’ medical reports. exemptions for up to a 2-year period to On August 2, 1994, the United States conditions. FHWA required a physical align with the maximum duration of a Court of Appeals for the District of qualification examination for the driver’s physical qualification Columbia Circuit found that FHWA’s grandfathered drivers every year, rather certification. The Agency considers determination that the vision waiver than every 2 years as required of most vision exemptions on a case-by-case study program would not adversely other drivers, as an extra precaution to basis upon application by CMV drivers affect the safe operation of CMVs lacked ensure the continued safe operation of who do not meet either the distant empirical support in the record these drivers. Under § 391.64(b), the visual acuity or field of vision standard, (Advocates for Highway and Auto grandfathered drivers, like all other or both, of § 391.41(b)(10) in one eye. Safety v. FHWA, 28 F.3d 1288, 1294 interstate drivers, must be otherwise The Agency does not grant exemptions (D.C. Cir. 1994)). Accordingly, the court physically qualified under § 391.41(b) (including a field of vision of at least 70 for color blindness. found that FHWA failed to meet the The criteria currently considered exacting statutory requirements to grant degrees in the horizontal meridian in the better eye and the ability to when reviewing an application for a a waiver. Consequently, the court Federal vision exemption have been in concluded that FHWA’s adoption of the recognize red, green, and amber colors). In addition, the grandfathered vision place since the program began in 1998. waiver program was contrary to law and The vision criteria are consistent with vacated and remanded the decision to drivers must obtain an annual vision examination by an ophthalmologist or criteria used in the preceding Federal FHWA. vision waiver study program that began On November 17, 1994, FHWA optometrist indicating that they have been examined and that the distant in July 1992. published notice of its final As part of the current vision determination to continue the vision visual acuity in the better eye continues to measure at least 20/40 (Snellen). This exemption program, there is a template waiver study program through March that CMV drivers can use to prepare a 31, 1996, and announced a change in information must be submitted to the certifying ME at the time of the letter of application for a Federal vision exemption. In addition to the template, 6 Section 383.5 was amended to remove the individual’s annual physical definition of a ‘‘serious traffic violation’’ effective qualification examination. Currently, there are two instructional letters for July 8, 2011 (76 FR 26854, 26878, May 9, 2011). FMCSA checks the driving records of applicants residing in Florida or Indiana Section 383.51(c) contains a list of serious traffic grandfathered drivers to determine if that provide the unique State processes violations and the periods for which an individual they continue to operate CMVs safely. for requesting a copy of a motor vehicle is disqualified from operating a CMV. 10 7 Sheridan J, and DuLaney A., Qualification of record. Drivers—Vision, Diabetes, Hearing and Epilepsy. 8 FHWA stated that during the same period there Final Report, McLean, VA: Conwal, Inc.; May 30, were 6 fatal accidents in which waived drivers were 9 Public Law 105–178, 112 Stat. 107, 401, June 9, 1997, p. 7, which is available at https://ntrl.ntis.gov/ involved, and one more occurred after June 30, 1998. NTRL/dashboard/searchResults/titleDetail/ 1994. A review of the police accident reports, 10 Copies of these documents are in the docket for PB98142649.xhtml (last accessed August 23, 2019) however, revealed that none of the waived drivers this rulemaking and available on FMCSA’s website and in the docket. Note that this report is cited as was found to be at fault by the reporting police at https://www.fmcsa.dot.gov/medical/driver- Conwal, Inc. in this rulemaking. officer (59 FR 59389). Continued
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The template outlines the information (5) Provide a signed statement that reads, (2) The driver must provide a copy of the and documents drivers should include ‘‘I acknowledge that I must be otherwise ophthalmologist or optometrist report to the to be considered for an exemption. In qualified under 49 CFR 391.41(b)(1)–(13) ME at the time of the driver’s annual physical general, drivers should submit before I can legally operate a commercial qualification examination. motor vehicle in interstate commerce’’; (3) The driver must keep a copy of the information relating to vital statistics, (6) Have visual acuity of at least 20/40 annual MEC, Form MCSA–5876, in his or her experience driving a CMV (number of (Snellen), corrected or uncorrected, in the qualification file if the driver is self- years driving, types of vehicles driven, better eye; employed or provide a copy to the driver’s miles driven per year), and present (7) Have field of vision, including central employer for retention in the driver’s employment (contact information, types and peripheral fields, of at least 70 degrees qualification file. of vehicles, items transported, driving in the horizontal meridian in the better eye (4) The driver must possess a copy of the hours). Drivers also should submit utilizing a testing modality that tests to at exemption and MEC, Form MCSA–5876, documentation to support the least 120 degrees in the horizontal (Formal when driving, for presentation to any legally perimetry is required. The doctor must authorized Federal, State, or local application, such as a copy of the submit the formal perimetry for each eye and enforcement official. driver’s license to operate a CMV; an interpret the results in degrees of field (5) The driver must obtain and display the official copy of the driving record issued vision.); appropriate driver’s license from his or her by a State; copies of any citations, crash (8) Can recognize the colors of traffic State of domicile and comply with any reports, or court records; a signed control signals and devices showing red, restrictions placed thereon regarding use of statement on letterhead from present or green, and amber; and eyeglasses, mirrors, or other visual aids. past employers (or a notarized statement (9) Have been examined in the last 3 (6) The driver must report any changes in if letterhead is not available); and a months by an ophthalmologist or optometrist personal information (i.e., address, telephone signed statement on letterhead by an who: number, employment status) to FMCSA (a) Identifies the vision deficiency; immediately, as well as changes in the type ophthalmologist or optometrist. (b) Defines the nature of the vision of vehicle driven. Applicants are not permitted to deficiency, including how long the driver has At any time during the authorized operate a CMV in interstate commerce had the deficiency; during the time in which an application (c) States the date of the examination; exemption period, the Agency may for a new exemption is pending. The (d) Certifies that the vision deficiency is require the exempted CMV driver to Agency encourages drivers to begin the stable; and provide information regarding driving renewal process well in advance of an (e) Provides an opinion that the driver has experience and performance as it relates exemption’s expiration. In addition, the sufficient vision to perform the driving tasks to citations, crashes, license Agency provides such drivers with a required to operate a CMV. suspensions or revocations, and medical deadline by which their renewal FMCSA is required to publish a notice status (78 FR 76590, 76591, December package must be complete. Drivers who in the Federal Register explaining that 18, 2013). miss the deadline risk having their a medical exemption request has been FMCSA monitors each driver’s exemptions expire, resulting in a lapse submitted to the Agency for performance operating a CMV on a of their permission to operate a CMV in consideration. The notice provides the quarterly basis. FMCSA may revoke an interstate commerce. driver’s name, age, and class of license exemption immediately if (1) the driver Under the current program, FMCSA with issuing State, as well as the fails to comply with the terms and considers exemptions from either the specific cause and duration of the conditions of the exemption; (2) the distant visual acuity or field of vision driver’s vision deficiency and current exemption has resulted in a lower level standard, or both, in one eye only for distant visual acuity in at least the better of safety than was maintained before the those individuals who: eye. The notice identifies the provisions exemption was granted; or (3) (1) Hold a valid license (an intrastate from which the individual seeks continuation of the exemption is commercial driver’s license (CDL) or a non- exemption and the effective period, and determined by FMCSA to be CDL license to operate a CMV); provides an opportunity for public inconsistent with the goals and (2) Are at least 21 years old; comment. After the 30-day comment objectives of the FMCSRs (49 CFR (3) Have 3 years of legal CMV driving period, FMCSA must publish a notice in 381.330(b)). experience, driving at least 10 hours per On December 18, 2013, FMCSA week in intrastate commerce with the vision the Federal Register of its decision to approve or deny the request and all the proposed changes to the eligibility deficiency, immediately preceding the date requirements for the exemption of the application; terms and conditions of any exemption (4) Have had a driving record for the 3-year granted. program, including changes to the period immediately preceding the date of The Agency imposes the following driving experience, convictions and application that contains: requirements on drivers who are granted violations, and driver statement criteria (a) No suspensions or revocations of a an exemption from the vision standards (78 FR 76590). After receiving driver’s license for the operation of any in § 391.41(b)(10): comments that both supported and motor vehicle (including a personal vehicle); opposed the proposed changes, the (b) No involvement in a crash for which (1) The exempted driver must be examined Agency elected not to revise the the driver contributed or received a citation every year by: for a moving traffic violation; (a) An ophthalmologist or optometrist who exemption program criteria at that time. (c) No convictions for a disqualifying attests that the driver’s vision continues to As suggested by some comments, the offense, as defined in § 383.51(b); meet the standards of 49 CFR 391.41(b)(10) development of a fuller record in a (d) No more than one serious traffic in the better eye (i.e., that the individual has rulemaking proceeding will assist the violation, as defined in § 383.51(c), driving a distant visual acuity of at least 20/40 Agency in making an appropriate CMV that disqualified or should have (Snellen), field of vision of at least 70 degrees determination about modifying the disqualified the driver in accordance with in the horizontal meridian, and can recognize vision standard instead of modifying the the driver disqualification provisions of red, green, and amber colors); and exemption criteria. § 383.51; and (b) An ME who determines that the driver FMCSA’s October 2017 annual report (e) No more than two convictions for any is otherwise qualified under § 391.41 and other moving traffic violations in a CMV. provides an MEC, Form MCSA–5876, that to Congress on waivers, exemptions, includes a statement that the driver is and pilot programs noted that the vision medical-requirements/driver-exemption-programs medically qualified when accompanied by a exemption program received 1,147 (last accessed October 1, 2019). Federal vision exemption. applications and granted 479
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exemptions in Federal fiscal year this project was to reassess the adequacy obtain the empirical data that the Ketron 2016.11 The September 2018 annual of the Federal vision standards for CMV project did not provide. Accordingly, report to Congress noted that the vision drivers. In that regard, the report FHWA began the vision waiver study exemption program received 793 concluded that a review of the most program in July 1992 that concluded in applications and granted 286 recent scientific research that March 1996. exemptions in Federal fiscal year investigated the vision performance of In May 1997, Conwal, Inc. presented 2017.12 passenger and commercial drivers FHWA with the final report titled As of July 2, 2019, there were 2,566 ‘‘revealed no conclusive evidence to ‘‘Qualification of Drivers—Vision, drivers with active exemptions issued support definitive changes to the Diabetes, Hearing and Epilepsy’’ 19 that pursuant to the Federal vision current standard.’’ 14 The report found described the findings of the vision exemption program. From January 2016 the studies ‘‘were able to demonstrate waiver study program. The program’s through July 2019, the most prevalent only weak relationships between goal was to determine the associated reasons for denial of exemption requests measures of vision and correlates of risk, based on accident involvement, of were insufficient intrastate driving driver safety.’’ 15 Only a few studies allowing CMV drivers who did not meet experience (i.e., less than 3 years of examined the relationship between the the vision standard to drive under a experience) and not meeting the vision driving performance record of CMV granted waiver in interstate commerce. standard in the better eye. drivers and their vision performance.16 FHWA determined that the findings The project considered the need to showed the waiver group did not VI. Assessments of the Vision exclude drivers with substantial vision represent a threat to public safety. Standards, Waivers, and Exemptions loss only in one eye. Ketron convened The original design of the vision FHWA and FMCSA have a long a focused workshop discussion waiver study program was an history of examining the relationship consisting of a panel of doctors, observational, nonrandomized study between the vision standards in ophthalmologists, optometrists, with a prospective cohort structure. § 391.41(b)(10) and the performance of professors in academic ophthalmology However, the Advocates for Highway CMV drivers. Since the early 1990s, departments, and traffic and safety and Auto Safety v. FHWA 20 lawsuit FHWA and FMCSA have continuously professionals in private industry. ‘‘Most prevented the implementation of the monitored the impact of the vision panelists agreed that the available study, and the study was converted to waiver study and vision exemption research results linking driver safety to a monitoring program to ensure that the programs to ensure they cause no lowered acuity in one eye were public was not exposed to excessive adverse impact on safety. The basis for sufficient to change the current standard risk.21 this rulemaking is the safety to allow monocular drivers or drivers Monitoring focused on comparing the performance of the drivers in these with vision that is substantially worse accident rates of the waivered drivers to programs, which is at least as good as in one eye.’’ 17 However, the panelists rates of a reference group that that of the general population of CMV did not reach a consensus. represented the prevailing safety level drivers. The Ketron report noted the for drivers of large trucks (10,000 Consistent with statutory difficulties associated with determining pounds or larger) in the United States. requirements, the Agency consults with minimum vision criteria. It stated that FHWA selected the General Estimates the MRB and Chief Medical Examiner to ‘‘[n]umerous studies have shown that System (GES) as the best measure of the establish, review, and revise physical visual deficits are rarely the primary prevailing national norm relative to qualification standards for CMV drivers. cause of major accidents. Typically, large truck accidents.22 A series of seven FMCSA also engages these medical many factors are found to contribute.’’ 18 monitoring reports was completed professionals to assist with medical and It continued that individuals involved during the vision waiver study program scientific reports and analyses prepared in accidents have already been screened to report periodically on the number of for the Agency. The reports and for visual deficits, which reduces the accidents occurring in the group of analyses undertaken since 1990 to number of visually poor drivers on the drivers who were issued waivers.23 gather information and evaluate the road. Accordingly, tests of primary The seventh monitoring report in the vision standards, the waiver study visual capability cannot reasonably be series was completed in February 1996 program, and exemption program, as expected to correlate highly with well as MRB recommendations measures of driver safety or to provide 19 Sheridan J, and DuLaney A., Qualifications of Drivers—Vision, Diabetes, Hearing and Epilepsy, pertaining to vision, are summarized unambiguous cutoff points for screening Final Report, McLean, VA: Conwal, Inc., May 30, below and are available in the docket for out unsafe drivers. 1997, available at https://ntrl.ntis.gov/NTRL/ this rulemaking. In June 1992, FHWA stated that the dashboard/searchResults/titleDetail/ In November 1991, FHWA received a Ketron project illuminated the lack of PB98142649.xhtml (last accessed August 23, 2019). empirical data on the link between 20 28 F.3d 1288, 1294 (D.C. Cir. 1994) (see section report titled ‘‘Visual Disorders and V.B. above for additional information relating to Commercial Drivers’’ prepared by the vision disorders and CMV safety (57 FR this lawsuit). Ketron Division of the Bionetics 23370, June 3, 1992). FHWA proposed 21 FHWA originally conceived a study that would Corporation.13 The primary objective of the vision waiver study program to determine the associated level of risk of allowing CMV drivers who did not meet the physical qualification standards relating to vision, diabetes, 11 Division of the Bionetics Corp., Washington, DC: FMCSA. Waivers, Exemptions, and Pilot epilepsy, and hearing to operate interstate. These FHWA, Office of Motor Carriers (FHWA–MC–92– Programs Annual Report to Congress Fiscal Year conditions were chosen because the related 2016, October 2017, p. 3, available at https:// 003), November 1991, available at https:// standards were absolute at the time, providing no www.fmcsa.dot.gov/mission/policy/reports-congress ntrl.ntis.gov/NTRL/dashboard/searchResults/ discretion to the ME. Because of the lawsuit, FHWA (last accessed July 15, 2019) and in the docket. titleDetail/PB92143015.xhtml (last accessed August did not initiate the hearing and epilepsy waiver 20, 2019). Note that this report is cited as ‘‘Ketron’’ 12 FMCSA: Waivers, Exemptions, and Pilot study programs. in this rulemaking. Programs Annual Report to Congress Fiscal Year 22 14 The GES is a national survey of police accident 2017, September 2018, p. 3, available at https:// Id. at Technical Report Documentation Page reports in the United States conducted by the www.fmcsa.dot.gov/mission/policy/reports-congress (Abstract); see also p. 15. National Highway Traffic Safety Administration. 15 (last accessed July 15, 2019) and in the docket. Id. at iv. 23 The seven monitoring reports are included in 13 Decina L, Breton M, and Staphlin L., Visual 16 Id. at 15. Appendix 12 of the May 1997 final report titled Disorders and Commercial Drivers (Report No. 17 Id. at 34. ‘‘Qualification of Drivers—Vision, Diabetes, Hearing DTFH61–90–C–00093), Malvern, PA: Ketron 18 Id. at iv; see also p. 13. and Epilepsy’’ by Conwal, Inc.
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and reported driving behavior for the national rate. The national rate was rate. In fact, the waiver group’s overall drivers who were still in the program as treated as a constant because it was accident rate was lower than the of November 1995. From August 1992 to given frequently as an official rate national rate. Thus, FHWA determined November 1995, 510 total accidents (i.e., without a confidence interval. The that the waiver group did not represent not limited to accidents where fault was decision was made to notify FHWA a threat to public safety.26 assigned to the waivered driver) were when the lower 90 percent confidence Table 1 also presents comparisons reported in this group.24 bound associated with the accident rate between the waiver group and national To effectively monitor the waiver of the waiver group was larger than the program, FHWA established a national rate. That strategy was seen as accident rates relative to accident framework to notify FHWA if the waiver conservative in that it limited the severity. FHWA routinely investigated group proved to be unsafe. The waiver group’s accident exposure.25 serious accidents and violations framework involved the use of a Based on analysis of the data involving members of the waiver group. decision strategy that identified when collected from August 1992 to ‘‘In the case of these accidents, the the waiver group’s accident rate was November 1995, Table 1 provides a drivers were not found to be at fault nor sufficiently larger than the national comparison of the accident rate in the were any of the accidents related to a accident rate that there could be a threat waiver group to the national rate. vision deficiency.’’ 27 In none of the to public safety. More specifically, the Relative to the 90 percent confidence severity categories did the lower 90 90 percent confidence interval interval calculated for the waiver percent confidence bounds of the associated with the waiver group’s group’s rate, the data show the lower relevant waiver group rates exceed the accident rate was compared to the bound was not larger than the national respective national rates.
TABLE 1—COMPARISON OF ACCIDENT RATES EXPERIENCED BY COMMERCIAL MOTOR VEHICLE OPERATORS WITH VISION WAIVERS TO NATIONAL ACCIDENT RATES IN RELATION TO TOTAL ACCIDENTS AND ACCIDENT SEVERITY
Waiver group 90% Confidence interval National accident rate 1 (lower and upper) accident rate 2 (number of (number of accidents) accidents)
Total Accidents 3 ...... 1.706 (510) 1.582 1.830 2.605 (444,000)
Accident Severity
Property Damage Only ...... 1.284 (384) 1.177 1.392 2.048 (349,000) Injury Involved ...... 408 (122) .347 .469 .534 (95,000) Fatality Involved ...... 013 (4) .002 .024 .026 (4,615) 1 Rate is calculated based on 299 million vehicle miles traveled by the waiver group between July 1992 and November 1995. 2 National accident estimates are for large trucks given by the GES 1994, National Highway Traffic Safety Administration. Rate calculated based on 170,415 million vehicle miles traveled in 1994. 3 Total accidents experienced by the waiver group between July 1992 and November 1995. Source: FHWA. Office of Motor Carriers. The Seventh Monitoring Report on the Drivers of Commercial Motor Vehicles Who Receive Vision Waivers. Washington, DC: U.S. Department of Transportation; February 29, 1996, Table 1.
A September 1999 FHWA Tech Brief report stated that the data obtained from that might modify the current vision titled ‘‘Qualifications of Drivers — the vision waiver study program was requirements for commercial drivers. Vision and Diabetes’’ 28 summarizes the ‘‘extremely compelling. The waiver In October 2006, FMCSA received a May 1997 report discussed above. The group accident rate was consistently report titled ‘‘Medical Exemption Tech Brief notes that the report’s risk below the national accident rate Program Study’’ prepared by Cambridge analysis was performed to support the (cumulative comparison) and for drivers Systematics, Inc.31 This project grandfathering of drivers to permanent still in the program in August 1995, the provided process and outcome waiver status after the vision waiver waiver group accident rate consistently information regarding the vision study program was closed; therefore, the decreased to well below the national exemption program. The main generalizability of the results was accident rate, exceeding the latter only conclusion of this project was that the limited. during the first 6 months of the vision exemption program did not In October 1998, FHWA received a appear to impact safety negatively on program.’’ 30 The report continued that report titled ‘‘Visual Requirements and the nation’s highways.32 Additionally, the program resulted in a useful Commercial Drivers’’ prepared by a the project found the overall vision database that clearly supported a new panel of medical experts associated with exemption program to be effective. Beth Israel Deaconess Medical Center ongoing waiver program, and provided Drivers in the vision exemption and Harvard Medical School.29 The sufficient rationale for a follow-up study program had 20 percent fewer reported
24 FHWA, Office of Motor Carriers. The Seventh Diabetes, Tech Brief (FHWA–MCRT–99–017), visionfinalreport10-16-98.pdf (last accessed July 15, Monitoring Report on the Drivers of Commercial Washington, DC: U.S. Department of 2019). Motor Vehicles Who Receive Vision Waivers, Transportation, September 1999, available at 30 Id. at 12 (original bolding deleted). https://rosap.ntl.bts.gov/view/dot/14291 (last Washington, DC: U.S. Department of 31 Cambridge Systematics, Inc., Medical accessed July 15, 2019). Transportation, February 29, 1996, p. 1. Exemption Program Study: Preliminary Report of 29 Berson F, Kuperwaser M, Aiello L, and 25 Id. at 2. Findings, Final Report, Chevy Chase, MD: 26 Rosenberg J., Visual Requirements and Commercial Id. at 2–3. Drivers, Final Report, Boston, MA: Beth Israel Cambridge Systematics, Inc., October 13, 2006, 27 Id. at 3, note. Deaconess Medical Center and Harvard Medical available at https://rosap.ntl.bts.gov/view/dot/16459 28 FHWA, Office of Motor Carrier Research and School, October 16, 1998, available at https:// (last accessed July 16, 2019). Standards, Qualifications of Drivers—Vison and www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/ 32 Id. at 7–1.
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collisions than a control set of drivers. presence or absence of an eye condition In March 2008, a medical expert panel Participation in the exemption program and the different thresholds used to made recommendations, titled ‘‘Vision was shown to have a 94.4 percent designate subjects as impaired or and Commercial Motor Vehicle Driver confidence interval of reducing the unimpaired. With respect to monocular Safety,’’ associated with the evidence number of reported collisions drivers being granted commercial report for the MRB to consider.44 With attributable to the driver.33 While most licenses, Cambridge Systematics respect to monocular vision, the panel of the analysis compared the exemption pointed out ‘‘[t]he term ‘monocular’ is agreed that the current evidence was program drivers to the entire set of typically used quite broadly in the insufficient to justify a change in the control drivers, one analysis compared research literature on this topic and vision standard. The panel noted that a subset of the control drivers who had denotes drivers who have a total the evidence report did not rule out the no reported collisions during the 3 years absence of function in one eye and possibility of increased crash risk for ending on the ‘‘control date’’ of additionally those who have visual monocular drivers. Nonetheless, the December 31, 2003, to the exemption function in one eye below the minimum panel stated ‘‘that the Exemption program drivers. The analysis showed level for commercial licensing.’’ 39 Program should be continued and a ‘‘little difference in reported collision In June 2008, FMCSA received the protocol established to obtain the data rate between the program and control final evidence report titled ‘‘Vision and necessary for a future sets.’’ 34 Thus, when controlling for Commercial Motor Vehicle Driver recommendation.’’ 45 previous collision rates over a 3-year Safety’’ prepared by the Manila During an April 2008 meeting, the period, the collision rates for visually Consulting Group, Inc. and the ECRI MRB made recommendations to the impaired ‘‘safe’’ drivers were not found Institute.40 The evidence report Agency pertaining to driver vision to be higher than the non-impaired addressed several key questions requirements based on presentations ‘‘safe’’ drivers.35 developed by FMCSA pertaining to and discussions of the 2008 draft Cambridge Systematics summarized vision and CMV driver safety by evidence report, the related medical the findings from the various studies in summarizing the best evidence that was expert panel recommendations, and the scientific literature into a set of key available in the literature. The key public comment. With respect to points, and stated that ‘‘[a]lmost all of question relevant to this proposal was monocular vision, the MRB the studies examined in the area of an inquiry to determine whether recommended that ‘‘[t]he current vision deficiencies illustrate similar monocular vision is associated with an standard which precludes individuals challenges in the design, increased crash risk. Due to with monocular vision from driving a implementation, and patterns of their methodological limitations and CMV for the purposes of interstate findings.’’ 36 The challenges were inconsistency among the findings of commerce should not be changed at this 46 summarized as confounding factors, different studies, the authors concluded time.’’ outcome definitions, and impairment that the evidence was insufficient to In September 2015, the MRB provided definitions. Confounding effect is determine whether individuals with recommendations to the Agency in observed when a factor that is not monocular vision were at increased risk response to MRB Task 15–2, which controlled statistically or by the study of a crash.41 requested that the MRB recommend design obscures the effect of treatment. The authors identified three studies criteria and identify factors the Agency Examples of such factors impacting the that provided crash data for drivers with should consider in deciding about a field of vision and driving were age, monocular vision in general driver future rulemaking regarding vision driving exposure, and compensating populations. ‘‘Because of a number of criteria. The MRB provided the 47 behavior. With respect to compensating methodological flaws, [the authors’] following recommendations: behavior, Cambridge Systematics stated confidence in the findings of all three of I. If FMCSA considers removing the that ‘‘[i]t is well recognized that visually the studies [was] low. While two studies current Visual Exemption program, the MRB impaired drivers develop effective found no evidence to support the recommends the following changes to the compensatory strategies to contention that individuals with vision standard regulations: accommodate their impairments. monocular vision are at an increased 44 Berson F, Owsley C, and Peli E., Vision and Therefore, relying on medical test scores risk for a motor vehicle crash, the third Commercial Motor Vehicle Driver Safety, Expert and ignoring actual driving performance study did find an association between Panel Recommendations, March 14, 2008, available can easily obscure the treatment effect monocular vision and increased crash at https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/ under study.’’ 37 Traffic safety outcomes risk. Given the low quality of the files/docs/MEP-Recommendations-Vision-v2- prot.pdf (last accessed July 16, 2019). The expert may be defined in terms of crashes, included studies and the fact that the panel reviewed a draft of the ‘‘Vision and violations, crash or violation rates per findings of these studies were Commercial Motor Vehicle Driver Safety’’ evidence miles driven, performance in on-road inconsistent, [the authors did] not draw report. While the expert panel agreed with the tests and driving simulations, and self- an evidence-based conclusion.’’ 42 The findings of the draft evidence report, the panel disagreed with the reasoning for including and reported incidence involvement rates authors stated, however, that ‘‘the excluding several studies. The research team and other habits. However, because ‘‘the possibility that individuals with considered the panel’s criticism and agreed to relationship between these outcomes is monocular vision have an increased amend the report before it was finalized. The not clearly established, making crash risk cannot be ruled out.’’ 43 revised executive summary for the 2008 evidence report is Appendix A of the expert panel comparisons across different studies recommendations report and is included in the becomes tenuous.’’ 38 Inconsistencies in 39 Id. at 4–12. final June 2008 evidence report discussed above. impairment definitions and measuring 40 Tregear S, Reed M, Tiller M, and Reston J., 45 Id. at 4. can result from incorrect reports of the Vision and Commercial Motor Vehicle Driver 46 FMCSA Medical Review Board, Meeting Safety, Volume 1: Evidence Report, McLean, VA: Summary, April 7, 2008, p. 15, available at https:// Manila Consulting Group, Inc. and Plymouth www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/ 33 Id. at 7–1. Meeting, PA: The ECRI Institute, June 6, 2008, April_7_MRB_Meeting_Minutes_71708_Final_ 34 Id. at 6–14. available at https://rosap.ntl.bts.gov/view/dot/16502 Updated10108.pdf (last accessed July 16, 2019). 35 Id. 7–2. (last accessed July 16, 2019). 47 FMCSA Medical Review Board, MRB Task 15– 36 Id. at 4–22. 41 Id. at 2–3. 02 Report, September 1, 2015, available at https:// 37 Id. at 4–22. 42 Id. at 3. www.fmcsa.dot.gov/final-mrb-task-15-02-report 38 Id. at 4–22. 43 Id. at 3. (last accessed July 16, 2019).
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A. Provide a form/questionnaire to the eye B. What is the minimum amount of time vision exemption program. The study’s specialist (ophthalmologist or optometrist) they would feel comfortable allowing purpose was to compare the crash rates that includes all information required by the someone to drive who has sudden change of CMV drivers enrolled in the vision current Visual Exemption program. Form from binocular vision? (Current Visual exemption program with drivers not should be given to the Certified Medical Exemption Program requires a safe driving record with such an eye condition for 3 enrolled in the program. The Agency Examiner (CME). assessed drivers in terms of their crash B. Length of certification with vision years.) C. Co-condition/disease process. rates and inspection violation rates. exemption: MRB recommends 1 year but D. Recommendations on field of vision FMCSA assessed the safety performance FMCSA should seek comment from eye criteria (e.g., not supposed to be 70° as stated of drivers in the program for 5 years specialist (ophthalmologist or optometrist) in the current vision standard). associations on recommended frequency of from 2011 through 2015. examination. The proposed alternative vision Table 2 compares the crash rate for II. FMCSA should seek comment from the standard incorporates the MRB’s 2015 drivers in the vision exemption program eye specialist (ophthalmologist or recommendations. to the national crash rate. The data show optometrist) associations regarding: In November 2016, FMCSA published that the crash rate for drivers in the A. Whether there is additional information an Analysis Brief 48 that reviewed the vision exemption program is lower than that would be useful to collect. safety performance of drivers in the the national crash rate.49
TABLE 2—CRASH RATES FOR VISION EXEMPTION PROGRAM DRIVERS COMPARED TO NATIONAL CRASH RATES, CRASHES PER DRIVER PER YEAR, 2011–2015
Number of Vision National National National crash rate Number of exemption driver exemption crash rate average annual average annual (crashes per driver exemption drivers (crashes per driver crashes per year) number of drivers number of crashes per year)
1,117 144 0.02578 4,599,623 143,289 0.03115
The Agency also compared drivers added to the control group in proportion determine whether any differences in enrolled in the exemption program to a to the age and carrier size of the crash rates were statistically significant, control group that was established using corresponding exemption program FMCSA conducted statistical testing at the Driver Information Resource, which group until the control group contained the 95 percent confidence level. Table 3 captures drivers’ driving histories. three times as many drivers as the shows the results.50 Drivers were chosen at random and respective exemption program group. To
TABLE 3—COMPARISON OF VISION EXEMPTION PROGRAM GROUP AND CONTROL GROUP CRASH AND VIOLATION RATES
Number of Exemption exemption program group Control group Statistically significant Crash or violation rates program group crash or crash or difference drivers violation rate violation rate
Crash Rates ...... 680 0.03853 0.02819 Yes. Violation Rates...... 680 1.9721 2.4911 Yes. Out-of-Service Violation Rates ...... 680 0.22353 0.29870 Yes.
The crash rate for the vision There are several limitations program group as compared to its exemption program group was regarding the Analysis Brief’s findings. control group demonstrated in the statistically different from its control For example, the crash information did Analysis Brief is not cause for concern. group, being slightly higher at 0.03853 not consider whether the CMV driver The findings of the Analysis Brief crashes per driver per year than the was at fault in any given crash. It is not represent a limited period and are control group rate of 0.02819. ‘‘This possible to know whether visual subject to the additional limitations equates to about one more crash per function caused or contributed to the discussed previously. FMCSA monitors year for every 100 drivers in the vision crash. It also is not possible to the performance of individual drivers in exemption program than for similar determine whether including only those the vision exemption program drivers not in the vision exemption drivers who were in the vision continuously. FMCSA does not have program.’’ 51 The driver violation rate exemption program for the full 5-year evidence to suggest drivers in the and driver out-of-service violation rate period impacted the results, if at all. exemption program are less safe than were lower than the control group, with The control group was selected based on the general population of CMV drivers. the difference being statistically age of the driver and the size of the Every year the Agency reports to significant. FMCSA concluded in 2016 employing motor carrier, rather than Congress regarding the vision that further studies should be done individual visual function criteria. exemptions granted and any impact on using larger sample sizes to confirm or The Agency finds that the increased safety. The Agency has consistently challenge the results from this study. crash rate for the vision exemption informed Congress that FMCSA has
48 FMCSA, Safety Performance of Drivers with Washington, DC: U.S. Department of 49 Id. at 5, Table 5. Medical Exemptions: How safe are drivers in a Transportation, November 2016, available at 50 See id. at 5–6, Tables 6–8. medical exemption program compared to those who https://rosap.ntl.bts.gov/view/dot/31521 (last 51 Id. at 5. are not?, Analysis Brief (FMCSA RRA–16–019b), accessed July 16, 2019).
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observed no adverse impacts on CMV of vision,55 color recognition, and their crashes more severe. Ball, et al. safety due to the vision exemption monocular vision, were compared for (2019) noted, however, that ‘‘one program.52 drivers who met the vision standard limitation of this analysis is that it is During its June 2018 meeting, the versus drivers who did not meet the unknown whether the reference group MRB discussed the MRB Task 15–2 vision standard. Evidence from the was similar to the waiver group on other report and was presented draft findings literature review, consultation with factors (e.g., age, other visual function of a study performed by the University experts, and analysis of CMV driver measures) that may be related to crash 63 of Alabama at Birmingham examining vision and crash data supported the risk.’’ the FMCSA vision standard for CMV measurement of visual acuity and The report continues that findings across studies in the literature are drivers. The MRB made no changes to horizontal field of vision using the 56 inconsistent with respect to the safety of its previous recommendations in MRB current cut-points. As relevant to this proposal, Ball, et monocular drivers, which is not Task 15–2. al. (2019) found that the literature surprising given that the definition of During its July 2019 meeting, FMCSA regarding how monocularity impacts monocularity across the studies is not updated the MRB on the University of driving performance is mixed.57 Some consistent. The definition of Alabama study. The MRB discussed the studies suggest that monocularity is not ‘‘monocular’’ is variable and can range draft findings of the study and the related to CMV performance decrements from the total absence of vision in one vision exemption program. The MRB in specific skills such as visual search, eye, to vision in one eye that involves did not change its MRB Task 15–2 lane placement, clearance judgment, gap a lack of binocular visual function, such recommendations. The MRB continued judgment, hazard detection, and as depth perception, or is below some the status quo by recommending that information recognition.58 The literature standard. FMCSA maintain the current vision also is mixed with respect to how FMCSA Conclusions standard and continue the vision monocularity impacts motor vehicle exemption program. In addition, the collision rates, with several studies The foregoing reports and analyses do MRB recommended that FMCSA finding elevated collision rates or more not call into question the existence of investigate shortening the 3-year severe collisions for monocular the vision exemption program. As early intrastate driving experience criterion. drivers,59 60 61 and another study as 1991, most of the panelists convened The MRB also voted to review the vision showing that commercial monocular by Ketron agreed there was sufficient exemption program at a future meeting drivers did not have a higher collision evidence relating to lowered acuity to when more information is available.53 rate than drivers with normal vision in change the vision standard to allow In November 2019, FMCSA published both eyes. In that study (discussed monocular drivers or drivers with vision the University of Alabama at above), FHWA evaluated commercial substantially worse in one eye. The Birmingham report titled ‘‘Examining vehicle drivers who received waivers of 1997 Conwal report showed the vision the FMCSA Vision Standard for the CMV driver vision requirements.62 waiver study program group’s overall Commercial Motor Vehicle Drivers’’ Results indicated that the waiver accident rate was lower than the (Ball et al., 2019).54 One of the study’s group’s crash rates were not higher than national rate and FHWA determined the overall objectives was to determine the the national reference group, nor were waiver group did not represent an safety efficacy of FMCSA’s current increased risk to public safety. In 1998, vision standards. The research team 55 The study uses the term ‘‘field of view,’’ which a panel of medical experts stated the procured a dataset from a third-party is synonymous with the FMCSR term ‘‘field of data from the vision waiver study vision.’’ To avoid confusion, the term is replaced program was ‘‘extremely compelling’’ provider that included all vision-related in this discussion of the study with ‘‘field of data obtained during an FMCSA vision.’’ and clearly supported a new waiver physical qualification examination on 56 FMCSA notes that the study found no evidence program. In 2006, Cambridge Systematics’ nearly 190,000 CMV drivers. The that CMV drivers with monocular vision were at increased risk of collision. The Agency is not review of the vision exemption program research team merged the data with relying on that finding to support this rulemaking concluded the program did not appear crash records obtained from the Motor due to limitations set forth in the study relating to to impact safety negatively. The 2008 Carrier Management Information System the study’s design and dataset. 57 evidence report found the three studies (MCMIS). From the examination dataset, Id. at 5. 58 that provided crash data for drivers with the results of vision function testing, McKnight AJ, Shinar D, and Hilburn B., ‘‘The visual and driving performance of monocular and monocular vision in general driver including visual acuity, horizontal field binocular heavy-duty truck drivers,’’ Accident populations were insufficient to Analysis & Prevention 23(4), pp. 225–237 (1991). determine whether individuals with 52 FMCSA, Waivers, Exemptions, and Pilot This study was performed under contract to FHWA. Programs Annual Reports to Congress Fiscal Years 59 Dionne G, Desjardins D, Laberge-Nadeau C, and monocular vision were at increased risk 1999–2013, February 2016, p. 25; Fiscal Year 2014, Maag U., ‘‘Medical conditions, risk exposure, and of a crash. Because the report did not April 2017, p. 9; Fiscal Year 2015, May 2017, p. 15; truck drivers’ accidents: an analysis with count data provide any conclusions, neither the Fiscal Year 2016, October 2017, p. 11; and Fiscal regression models,’’ Accident Analysis & Prevention medical expert panel nor the MRB Year 2017, September 2018, p. 10. These reports are 27(3), pp. 295–305 (1995). available at https://www.fmcsa.dot.gov/mission/ 60 Laberge-Nadeau C, Dionne G, Maag U, recommended changing the vision policy/reports-congress (last accessed July 15, Desjardins D, Vanasse C, and E´ koe´ J–M., ‘‘Medical standard. The 2008 medical expert 2019). conditions and the severity of commercial motor panel recommended that the exemption 53 FMCSA Medical Review Board, Meeting vehicle drivers’ road accidents,’’ Accident Analysis program continue. The MRB has never Minutes, July 15–16, 2019, p. 3, available at https:// & Prevention 28(1), pp. 43–51 (1996). recommended that the exemption www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2020- 61 Maag U, Vanasse C, Dionne G, and Laberge- 08/MRB-meeting-minutes-july-2019-508c.pdf (last Nadeau C., ‘‘Taxi drivers’ accidents: how binocular program end and has continued its 2015 accessed September 2, 2020). vision problems are related to their rate and severity 54 Ball K, Heaton K, McGwin G, Owsley C, and in terms of the number of victims,’’ Accident 63 Ball K, Heaton K, McGwin G, Owsley C, and Stavrinos D., Examining the FMCSA Vision Analysis & Prevention 29(2), pp. 217–224 (1997). Stavrinos D., Examining the FMCSA Vision Standard for Commercial Motor Vehicle Drivers 62 FHWA, Office of Motor Carriers, The Seventh Standard for Commercial Motor Vehicle Drivers (Report No. FMCSA–RRR–19–011).), Washington, Monitoring Report on the Drivers of Commercial (Report No. FMCSA–RRR–19–011), Washington, DC: FMCSA, 2019, available at https:// Motor Vehicles Who Receive Vision Waivers, DC: FMCSA 2019, p. 5, available at https:// rosap.ntl.bts.gov/view/dot/42735 (last accessed Washington, DC: U.S. Department of rosap.ntl.bts.gov/view/dot/42735 (last accessed December 09, 2019). Transportation, February 29, 1996. December 09, 2019).
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recommendations for FMCSA to exemptions in 49 U.S.C. 31315. TEA–21 viewing behavior to mitigate the vision consider if it changes the vision gave the Agency ‘‘broader discretion to loss. Therefore, if an individual meets standard. grant waivers and exemptions from the proposed vision standard, the The reports and analyses discussed motor carrier and driver safety Agency expects there will be no adverse above do not establish strong regulations which are necessary to impact on safety due to the individual’s relationships between specific measures develop performance based regulations vision. That is, once an individual’s of vision and correlates of driver safety. and evaluate the effectiveness of vision is stable and the individual has They do, however, point out the existing regulations.’’ H. Report 105–550 adapted to and compensated for the numerous difficulties associated with at 489 (1998). change in vision, the loss in vision is obtaining empirical data to determine Accordingly, the Agency proposes to not likely to play a significant role in minimum vision criteria and the adopt most of the existing vision whether the individual can drive a CMV methodological flaws associated with exemption program criteria and modify safely. many studies evaluating vision criteria other of the criteria as a vision standard Instead of requiring 3 years of and crash risk. Most of the available to be applied in lieu of the vision intrastate driving experience with the data come from drivers in general and exemption program. Therefore, the vision deficiency as in the current not CMV drivers specifically. Usually, alternative vision standard would exemption program, FMCSA proposes crash information does not indicate require individuals, to be physically that individuals physically qualified whether the driver was at fault in any qualified, to have in the better eye under the proposed alternative vision given crash. In addition, it is rarely distant visual acuity of at least 20/40 standard for the first time satisfactorily possible to determine whether visual (Snellen) (with or without corrective complete a road test before operating in function was the cause of a crash. lenses) and field of vision of at least 70 interstate commerce. Individuals would Data on the relationship between degrees in the horizontal meridian; the be excepted from the road test monocular vision and crash ability to recognize the colors of traffic requirement if they have 3 years of involvement is sparse, conflicting with signals and devices showing standard intrastate or excepted interstate CMV respect to crash risk, and not definitive. red, green, and amber; stability of the driving experience with the vision Moreover, the Agency must exercise vision deficiency; and sufficient time to deficiency, hold a valid Federal vision caution when interpreting the data adapt to and compensate for the change exemption, or are medically certified because of the different definitions of in vision. Instead of requiring 3 years of under § 391.64(b). These individuals ‘‘monocular vision’’ in the literature. intrastate driving experience with the have already demonstrated they can After full consideration of the vision deficiency, with limited operate a CMV safely with the vision foregoing reports and analyses, FMCSA exceptions, individuals physically deficiency. finds the experience with the vision qualified under the proposed alternative The requirement for 3 years of waiver study and exemption programs vision standard for the first time would intrastate driving experience with the is most relevant in establishing an complete a road test before operating in vision deficiency has been equated to alternative vision standard. These interstate commerce. FMCSA expects sufficient time for the driver to adapt to programs have allowed FMCSA to that individuals who satisfy these and compensate for the change in evaluate the vision criteria used in the criteria would not create an increased vision. FHWA stated the 3-year safe programs since 1992 in the context of risk of injury to themselves or others driving history with the vision actual CMV driving experience. due to their vision. deficiency requirement was based on Considering the long period over which studies ‘‘indicating that past experience the programs have operated, FMCSA VII. Rationale for Proposed can be used to predict future has sufficient information to reach Qualification Standard performance, especially when combined generalized conclusions. The Agency proposes to adopt most of with other predictive factors such as FHWA and FMCSA monitored the the existing vision exemption program geographic location, mileage driven, and safety performance of drivers in the criteria and to modify other program conviction history’’ (59 FR 50887, vision waiver study and the current criteria as an alternative vision 50888, October 6, 1994). FHWA exemption programs continuously. standard. The proposed standard takes a continued that it relied on opinions Based on the experience with the vision performance-based approach. The from the medical community that waiver study and exemption programs, standard emphasizes that the individual individuals with a vision deficiency are FMCSA has determined that the safety has developed the skills to adapt to and often able to compensate for their performance of individuals in these compensate for the vision loss once it impairment over time. ‘‘Because of the programs is at least as good as that of has been deemed stable by a medical discrepancy as to how much time is the general population of CMV drivers. professional, and that the individual has necessary to allow an individual to Indeed, the Agency has continued to demonstrated the skills to operate a compensate for an impairment (which grant vision exemptions because CMV safely. The ME would ensure the generally ranged from several months to experience has shown that individuals individual is physically qualified to a full year), [FHWA’s] choice of three with vision loss in one eye are not operate a CMV in accordance with the years provided added assurance that limited by their lack of binocularity physical qualification standards. Motor drivers would have had sufficient time with respect to driving once they have carriers would maintain the to develop compensatory behavior. It adapted to and compensated for the responsibility for reviewing the was also the longest period for which change in vision. individual’s safety performance and, driver histories were uniformly The Agency’s ability to draw on its with limited exceptions, would conduct available from State motor vehicle experience from the vision waiver study a road test for individuals. departments’’ (59 FR 50888–89). and exemption programs to develop Although it was considered modifications of the existing standard is A. Individuals Adapt to and appropriate for FHWA to proceed consistent with one of the purposes of Compensate for Vision Loss conservatively and to ensure adequate the authority provided by the enactment As stated above, it is well recognized time for individuals to adapt to and of TEA–21 that established a new that individuals with vision loss in one compensate for vision changes when process for granting regulatory eye can and do develop compensatory beginning the waiver study program, it
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appears that the primary factor in change in vision. Accordingly, the 3- diabetes mellitus (see 83 FR 47486, selecting the 3 years of intrastate driving year safe driving history criterion has September 19, 2018). Thus, licensed experience criterion was that it served its purpose and is no longer healthcare professionals listed on the coincided with the typical period of necessary. Agency’s National Registry of Certified motor vehicle driving histories. Three FMCSA declines to propose specific Medical Examiners (National Registry) years of experience driving with the periods for which an individual’s vision would consider the information in the vision deficiency exceeded by several deficiency must be stable and for what Vision Evaluation Report, Form MCSA– months to a full year, according to constitutes sufficient time to adapt to 5871, and determine whether an opinions of the medical community, the and compensate for the change in individual meets the proposed vision period necessary to compensate for the vision. The causes of vision loss are standard. This approach of MEs making vision loss. Eliminating the driving many and varied. Vision loss may be the physical qualification experience criterion would not allow present at birth, the result of trauma, determination, instead of FMCSA, is potentially hazardous drivers to due to medical treatment intervention, consistent with Congress’s directive in participate in interstate commerce or the result of a progressive eye 49 U.S.C. 31149(d) to have trained and because medical professionals would condition or disease. The cause of the certified MEs assess the individual’s ensure drivers have had the time to vision loss is a primary factor in how health status. In addition, the proposed adapt to and compensate for the vision long it takes for an individual to adapt process would create a clear and change. The driving experience criterion to and compensate for the change in consistent framework to assist MEs with has the limitation that many drivers are vision. In general, those who experience making a physical qualification not able to obtain intrastate driving sudden loss of vision in one eye require determination that is equally as effective experience because not all States issue more time to adapt to and compensate as a program based entirely on granting vision waivers. For these reasons, for the change than those who lose their exemptions under 49 U.S.C. 31315(b). FMCSA is not proposing to continue the vision gradually. For example, Coday, et exemption program’s requirement for 3 al. (2002) found the time for patients to C. Review of an Individual’s Safety years of intrastate driving experience adapt to sudden vision loss was 8.8 Performance Would Continue with the vision deficiency in the months and to adapt to gradual vision FMCSA is not proposing to change 64 alternative vision standard. loss was 3.6 months. the current regulations that require Nonetheless, it is reasonable to ensure Therefore, the Agency proposes that motor carriers to review an individual’s medical decisions regarding whether an an individual possesses the skills safety performance. FMCSA has individual’s vision deficiency is stable needed to operate a CMV safely with the regulatory requirements in place to and whether the individual has adapted vision deficiency. ensure that motor carriers review the to and compensated for the change in As an alternative to the 3 years of safety performance of all their drivers. vision be made by medical intrastate driving experience criterion, For example, motor carriers are required professionals. These medical decisions FMCSA proposes, with limited to review both the motor vehicle records should be based on an individualized exceptions, that individuals physically and the safety performance history, qualified under the alternative vision assessment by a medical professional which must include accident standard for the first time satisfactorily rather than a regulation.65 information, from previous employers complete a road test before operating in B. MEs Would Make the Qualification for the prior 3 years when hiring a interstate commerce. The road test Determination driver (49 CFR 391.23(a) and (d)). Also, would be conducted in accordance with motor carriers are required to review the the road test already required by The proposed alternative vision motor vehicle records for all drivers § 391.31. When FHWA adopted the road standard would place the case-by-case annually (49 CFR 391.25). In addition, test in § 391.31, it stated that the physical qualification determination the road test would demonstrate interests of CMV safety would be with the ME who examines the whether individuals are able to operate promoted by ensuring drivers have individual, which is consistent with demonstrated their skill by completing FMCSA’s rule to adopt an alternative a CMV safely with the vision deficiency. the road test (35 FR 6458, 6450 (April physical qualification standard for As previously stated, the 3-year safe 22, 1970)). FMCSA finds that a road test individuals with insulin-treated driving history criterion has served its would be an appropriate indicator of an purpose and is no longer necessary. individual’s ability to operate a CMV 64 Coday MP, Warner MA, Jahrlin KV, and Rubin Accordingly, the safety performance of PA, ‘‘Acquired Monocular Vision: Functional individuals who can satisfy the safely with the vision deficiency. Thus, Consequences from the Patient’s Perspective,’’ the Agency expects there will be no Ophthalmic Plastic and Reconstructive Surgery, proposed alternative vision standard adverse impact on safety from 18(1), pp. 56–63 (2002), available at https:// should be evaluated in the same manner eliminating the intrastate driving www.ncbi.nlm.nih.gov/pubmed/11910326 (last as other drivers. accessed March 24, 2020). experience criterion. 65 On December 18, 2013, FMCSA proposed VIII. Discussion of Proposed Rule The proposed alternative vision changes to the eligibility requirements for the standard also would not continue the 3- exemption program. As relevant here, FMCSA FMCSA elects to respond to the year safe driving history criterion. proposed to reduce the length of driving experience MRB’s request to investigate shortening Selecting only drivers with a history of to 1 year of intrastate driving experience with the the 3-year intrastate driving experience stable visual deficiency or to remove the driving safe driving to participate in the vision experience criterion altogether (78 FR 76590, criterion and to provide more waiver study program allowed FHWA to 76592). The American Optometric Association information about the vision exemption focus on the impact of vision on driving. supported removing the requirement for a specific program by publishing this NPRM and After nearly 30 years with the vision amount of driving experience, in part, because an proposing a rule that includes the examination by an ophthalmologist or optometrist waiver study and exemption programs, within the prior 3 months from the date of MRB’s 2015 recommendations. This experience has shown that individuals application would help to assess whether the driver approach provides the MRB with with vision loss in one eye are not had experienced recent vision deterioration. This background on the exemption program, limited by their lack of binocularity comment is available in docket number FMCSA– summaries of prior reports and analyses, 2013–0097 at https://www.regulations.gov/ with respect to driving once they have document?D=FMCSA-2013-0097-0004 (last a specific proposal and its rationale to adapted to and compensated for the accessed March 13, 2020). consider, and public comment on the
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proposal.66 As noted above, the Agency green, and amber; stability of the vision Individuals would be evaluated by a will follow a rulemaking process like deficiency; and sufficient time to adapt licensed ophthalmologist or optometrist the one used when FMCSA adopted the to and compensate for the change in no more than 45 days before each alternative physical qualification vision. With limited exceptions, FMCSA annual or more frequent examination by standard for insulin-treated diabetes also would require individuals an ME. Even individuals who have a mellitus. After the public comment physically qualified under the proposed non-functional eye or have lost an eye period closes, FMCSA will ask the MRB alternative vision standard for the first would be required to undergo vision to review all comments to the NPRM time to complete a road test evaluations at least annually. Because of from medical professionals and administered by the motor carrier the potential for vision changes in the associations. If after that review the satisfactorily before operating in remaining eye, it is important to MRB makes material changes to its prior interstate commerce. monitor that eye’s compliance with the recommendations in MRB Task 15–2, A. Proposed Physical Qualification vision standard. FMCSA will publish a Federal Register Process During the vision evaluation, the notice announcing the availability of the ophthalmologist or optometrist would new MRB recommendations and request FMCSA proposes a two-step process complete the proposed Vision public comment specific to those for physical qualification. The process Evaluation Report, Form MCSA–5871. recommendations. would be analogous to what the Agency The report’s instructions to the FMCSA proposes to establish an adopted in § 391.46 for individuals with ophthalmologist or optometrist state alternative physical qualification insulin-treated diabetes mellitus (see 83 that completion of the report does not standard for individuals who cannot FR 47486, September 19, 2018). First, an imply that the ophthalmologist or satisfy either the distant visual acuity or individual seeking physical optometrist is making a decision to field of vision standard, or both, in qualification would obtain a vision qualify the individual to drive a CMV. § 391.41(b)(10) in one eye. If adopted, evaluation from an ophthalmologist or The instructions state further that any the alternative vision standard would optometrist who would record the determination as to whether the findings and provide specific medical replace the current vision exemption individual is physically qualified to opinions on the proposed Vision program as a basis for determining the drive a CMV will be made by an ME. Evaluation Report, Form MCSA–5871, physical qualification of these The Agency is aware that the which incorporates the individuals to operate a CMV. It also definition of ‘‘monocular vision’’ varies; recommendations of the MRB. Next, at would eliminate the need for the therefore, the proposed Vision grandfather provisions under a physical qualification examination, an Evaluation Report, Form MCSA–5871, § 391.64(b). The proposed alternative ME would consider the information includes FMCSA’s definition of the vision standard would enhance provided on the vision report and term. The report defines monocular employment opportunities and reduce exercise independent medical judgment vision as (1) in the better eye, distant the paperwork burden for drivers, while to determine whether the individual visual acuity of at least 20/40 (with or remaining consistent with FMCSA’s meets the proposed vision standard, as without corrective lenses) and field of safety mission. well as FMCSA’s other physical Specifically, the Agency proposes to qualification standards. If the ME vision of at least 70 degrees in the adopt most of the existing vision determines that the individual meets the horizontal meridian, and (2) in the exemption program criteria and modify physical qualification standards to worse eye, either a distant visual acuity other of the criteria as a vision standard operate a CMV safely, the ME could of less than 20/40 (with or without to be applied in lieu of the vision issue an MEC, Form MCSA–5876, for a corrective lenses) or field of vision of exemption program. The alternative maximum of 12 months. less than 70 degrees in the horizontal vision standard would require FMCSA is not proposing changes to meridian, or both. FMCSA’s monocular individuals, to be physically qualified, the current vision standard found in vision definition has been applied to have in the better eye distant visual § 391.41(b)(10). The current standard consistently for nearly 30 years. acuity of at least 20/40 (Snellen) (with would be redesignated as paragraph The proposed Vision Evaluation or without corrective lenses) and field of (b)(10)(i). An alternative vision standard Report, Form MCSA–5871, includes vision of at least 70 degrees in the would be added in paragraph (b)(10)(ii) instructions to the individual regarding horizontal meridian; the ability to to allow an individual who cannot the timeframe for providing the report to recognize the colors of traffic signals satisfy either the distant visual acuity or the ME. The individual would be and devices showing standard red, field of vision standard, or both, in one required to begin the physical eye to be physically qualified if the qualification examination no later than 66 FMCSA notes that proceeding with an NPRM individual satisfies the requirements of 45 calendar days after the is also responsive to stakeholder comment. For proposed § 391.44. ophthalmologist or optometrist signs example, in the rulemaking to change the physical Proposed § 391.44 would set forth the and dates the report, after which time qualification standard relating to insulin-treated diabetes mellitus, the American Trucking provisions of the alternative vision the Vision Evaluation Report is no Associations, Inc. (‘‘ATA’’) commented that it was standard. It would provide that an longer valid. This timeframe would pleased that FMCSA was using the rulemaking individual who cannot satisfy either the ensure the ME is receiving the results of process to adjust that standard. Additionally, ATA current distant visual acuity or field of a recent vision evaluation. ‘‘implore[d] FMCSA to also conduct rulemaking on its other ‘absolute’ medical standards for which it vision standard, or both, in one eye is The Vision Evaluation Report, Form is currently issuing exemptions en masse including physically qualified to operate a CMV in MCSA–5871, collects the individual’s the vision and hearing standards.’’ ATA continued interstate commerce if the individual (1) name, date of birth, driver’s license that ‘‘[e]xemptions from these medical standards number, and State of issuance. In only create confusion in the industry as to what meets FMCSA’s other physical constitutes a medically safe driver and what does qualification standards in § 391.41 (or addition, the report collects the not. It also creates an unnecessary, but easily has an exemption or skill performance following information: solvable, predicament for motor carriers.’’ This evaluation certificate, if required), and comment is available in docket number FMCSA– (1) Whether the individual completing the 2005–23151 at https://www.regulations.gov/ (2) has the vision evaluation and report is an ophthalmologist or an document?D=FMCSA-2005-23151-0960 (last access medical examination required by optometrist; March 13, 2020). § 391.44. (2) The date of the vision evaluation;
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(3) The distant visual acuity in each eye be treated as part of the Medical proposed rule would add a paragraph in (corrected and uncorrected), and, if Examination Report Form, MCSA–5875, § 391.45 that would require individuals corrected, the type of correction; and would be retained by the ME for at physically qualified under proposed (4) The field of vision, including central least 3 years from the date of the § 391.44 to be medically examined and and peripheral fields in each eye, utilizing a testing modality that tests to at least 120 examination as required by 49 CFR certified at least annually. As with any degrees in the horizontal. A formal perimetry 391.43(i). individual, an ME would have test interpreted in degrees is required and Under the alternative vision standard, discretion to certify an individual for must be attached to the report; an individual would be medically less than the maximum year if medical (5) Whether the individual can recognize examined and certified by an ME at conditions warrant. red, green, and amber colors; least annually as physically qualified to (6) The date of the last comprehensive eye operate a CMV. The ME would B. Road Test in Accordance With 49 examination; determine whether the individual meets CFR 391.31 (7) Whether the individual has monocular the physical qualification standards in With limited exceptions, FMCSA vision as defined by FMCSA; § 391.41. In making that determination, (8) The cause of the monocular vision; proposes that individuals physically (9) When the monocular vision began; the ME would consider the information qualified under the alternative vision (10) The current treatment for the in the Vision Evaluation Report, Form standard for the first time must monocular vision; MCSA–5871, and utilize independent successfully complete a road test before (11) A medical opinion regarding whether medical judgment to apply the operating a CMV in interstate the vision deficiency is stable; following four standards proposed in commerce. The road test would (12) A medical opinion regarding whether § 391.44: demonstrate individuals are able to sufficient time has passed to allow the (1) The individual would not be physically operate a CMV safely with the vision individual to adapt to and compensate for the qualified to operate a CMV if in the better eye deficiency. Once an individual is change in vision; and the distant visual acuity is not at least 20/40 (13) Information regarding progressive eye physically qualified under § 391.44 for (Snellen), with or without corrective lenses, conditions and diseases, including the date the first time and receives an MEC, and the field of vision is not at least 70 of diagnosis, severity, current treatment, Form MCSA–5876, the individual degrees in the horizontal meridian. would consult § 391.44(d) to determine whether the condition is stable, and a (2) The individual would not be physically medical opinion regarding whether a vision qualified to operate a CMV if the individual whether a road test may be required. evaluation is required more often than is not able to recognize the colors of traffic The ME issuing the MEC, Form MCSA– annually, and if so, how often. signals and devices showing standard red, 5876, would have no role with respect The report requires the individual green, and amber. to the road test. completing the report to attest that the (3) The individual would not be physically Paragraph (d)(1) would provide the individual is an ophthalmologist or qualified to operate a CMV if the individual’s general rule that, subject to limited vision deficiency is not stable. exceptions, an individual physically optometrist and that the information (4) The individual would not be physically provided is true and correct to the best qualified to operate a CMV if there has not qualified under § 391.44 for the first of the individual’s knowledge. The been sufficient time to allow the individual time could not drive a CMV until the report includes the date, printed name to adapt to and compensate for the change in individual has successfully completed a and medical credential of the vision. subsequent road test and has been ophthalmologist or optometrist, The ME would consider the data and issued a certificate of driver’s road test signature, professional license number medical opinions provided by the in accordance with § 391.31. Such an and issuing State, phone number, and ophthalmologist or optometrist to assist individual would be required to inform email and street addresses. The report in making a qualification determination. the motor carrier responsible for would be available on FMCSA’s The Vision Evaluation Report, Form completing the road test under website. MCSA–5871, should include sufficient § 391.31(b) when the individual is The draft Vision Evaluation Report, information for the ME to determine required by § 391.44(d) to have a road Form MCSA–5871, is available in the whether the opinions expressed by the test. Motor carriers would conduct the docket for this rulemaking. The Agency ophthalmologist or optometrist appear road test and issue a certificate of seeks public comment on the substance informed and appropriate. driver’s road test in accordance with and form of the report, as well as the Consistent with current practice for § 391.31(b) thorough (g). Motor carriers four questions posed in section XI.G. any medical condition, if the ME are currently required to conduct a road below, relating to the information determines that additional information test under § 391.31 when they hire a collection titled ‘‘Medical Qualification is necessary to make the qualification new driver, subject primarily to Requirements,’’ regarding FMCSA’s determination, the ME could confer exceptions in § 391.33. Therefore, many request for OMB approval of the report with the ophthalmologist or optometrist motor carriers and drivers are already and related information collection for additional information concerning familiar with the road test and related under the Paperwork Reduction Act. the individual’s related vision medical documentation requirements. Under the proposed regulation, the history and status, make requests for Section 391.31(b) provides the road individual examined, ophthalmologist, other appropriate referrals, or request test must be given by the motor carrier or optometrist could provide the signed medical records from the individual’s employing the individual or a person report to an ME. An ME would have to treating provider, all with appropriate designated by the motor carrier. If the receive a completed report for each consent. Because the ME is individual is also a motor carrier (e.g., examination of an individual needing knowledgeable about the physical an owner-operator), the road test must evaluation under § 391.44. A report requirements to operate a CMV and the be given by a person other than the would be considered complete when a physical qualification regulations, the individual. The road test must be given response is provided to all data fields ME would continue to determine by a person competent to evaluate and and the ophthalmologist or optometrist whether an individual meets FMCSA’s determine whether the individual taking signs, dates, and provides his or her full physical qualification standards. the test demonstrated that the name, office address, and telephone In addition to adding the alternative individual is capable of operating the number on the report. The report would vision standard in § 391.44, the CMV, and associated equipment, the
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motor carrier intends to assign to the However, after an individual required to Paragraphs (4) and (5) of § 391.44(d), individual for operation. have a road test by § 391.44(d) respectively, would except individuals The road test also must be of successfully completes a road test and is holding a valid Federal vision sufficient duration to enable the person issued a certificate of driver’s road test exemption or medically certified under giving it to evaluate the skill of the in accordance with § 391.31 once, the § 391.64(b) on the effective date of any individual taking it at handling the provisions of § 391.33 would apply to final rule from the requirement to have CMV, and associated equipment, the the individual as they would normally a road test. Such individuals would not motor carrier intends to assign to the operate. FMCSA notes that motor be required to inform the motor carrier individual (49 CFR 391.31(c)). At a carriers always have the option to that they are excepted from the minimum, the road test must include: require any individual to take a road test requirement in § 391.44(d)(1) to have a (1) The pre-trip inspection required by as a condition of employment (see 49 road test. § 392.7; CFR 391.33(c)). The development of this proposed (2) Coupling and uncoupling of Paragraphs (3), (4), and (5) of rule provided FMCSA with the combination units (if the equipment the § 391.44(d) would provide exceptions to opportunity to review § 391.31 in the individual may drive includes combination the general requirement for a road test. context of current privacy units); These individuals would be excepted considerations. Section 391.31(e) (3) Placing the CMV in operation; because they have already demonstrated provides that, if the road test is (4) Use of the CMV’s controls and they can operate a CMV safely with the successfully completed, the motor emergency equipment; vision deficiency. Accordingly, a road carrier must complete a certificate of (5) Operating the CMV in traffic and while test would not be necessary. driver’s road test ‘‘substantially’’ in the passing other motor vehicles; Paragraph (3) would except an form prescribed in paragraph (f). (6) Turning the CMV; (7) Braking and slowing the CMV by means individual from the road test Paragraph (f) provides a Certification of other than braking; and requirement if the motor carrier Road Test that lists, in part, the driver’s (8) Backing and parking the CMV. determines the individual possessed a social security number, the driver’s valid CDL or non-CDL to operate, and license number, and the State of The motor carrier provides a road test did operate, a CMV in either intrastate issuance of the driver’s license. Because form on which the person giving the commerce or in interstate commerce the road test is completed when hiring road test rates the individual taking it at excepted by § 390.3T(f) or § 391.2 from a driver, the motor carrier already each operation that is a part of the test. the requirements of 49 CFR part 391, would have collected this information The person giving the test signs the form subpart E, with the vision deficiency for on other employment documents. The once it is complete (49 CFR 391.31(d)). the 3-year period immediately motor carrier also would have verified If the road test is successfully preceding the date of physical the identity of the driver and that the completed, the person giving it qualification under § 391.44 for the first driver has a driver’s license. completes a certificate of driver’s road time. To qualify for the exception, the Accordingly, FMCSA proposes to test in substantially the form prescribed individual would certify in writing to remove this information from the list in in § 391.31(f) (49 CFR 391.31(e)). A copy the motor carrier the date the vision paragraph (f) because it is unnecessary of the certificate of driver’s road test is deficiency began. The motor carrier and duplicative. given to the individual tested (49 CFR would review employment information 391.31(g)). The motor carrier retains in to determine whether the individual C. Elimination of Vision Exemption the individual’s driver qualification file operated a CMV for the required 3 years Program and Grandfather Provisions the original of the signed road test form with the vision deficiency. Many motor The proposed rule would eliminate and the original, or a copy, of the carriers would use employment the need for the current vision certificate of driver’s road test (49 CFR information obtained when exemption program and the grandfather 391.31(g)(1) and (2)). investigating the individual’s safety provisions of § 391.64(b). As discussed The Agency seeks public comment on performance history from previous above in the background section of this the information collection associated employers for the prior 3 years when NPRM, drivers who participated in the with the § 391.31 road test, particularly hiring a driver, as required by Agency’s vision waiver study program as required by proposed § 391.44 and § 391.23(a)(2) and (d). and were holding valid waivers from the the exception to the road test for If the motor carrier determines the vision standard on March 31, 1996 intrastate and excepted interstate individual operated a CMV in intrastate could continue to operate in interstate drivers discussed below. The or excepted interstate commerce with commerce under the grandfather information collection titled ‘‘391.31 the vision deficiency for the required 3 provisions of § 391.64(b). If the Road Test Requirement’’ is described in years, the motor carrier would prepare proposed rule is adopted, the Agency section XI.G. below regarding FMCSA’s a written statement to that effect with believes the grandfathering provisions request for OMB approval of the the finding that the individual is not would be redundant. Therefore, FMCSA information collection under the required by § 391.44(d) to complete a proposes that the approximately 1,900 Paperwork Reduction Act. Also, the road test. A copy of the written individuals physically qualified under draft supporting statement for the statement would be provided to the § 391.64(b) would have 1 year after the information collection is available in the individual. The motor carrier would effective date of any final rule to comply docket for this rulemaking. retain the original of the written with the rule. During that transition Paragraph (d)(2) would provide that statement and the original, or a copy, of year, grandfathered individuals could the alternatives to a § 391.31 road test in the individual’s certification regarding elect to seek physical qualification § 391.33 do not apply to individuals the date the vision deficiency began in through the final rule or § 391.64. This required to have a road test by the driver qualification file. Section transition year would provide time to § 391.44(d). Accordingly, a motor carrier 391.51, which provides what documents learn the new process for individuals could not accept certain CDLs or a copy must be included in a driver whose MEC, Form MCSA–5876, expires of a certificate of driver’s road test qualification file, would be amended to near the time any final rule becomes issued within the preceding 3 years as include the written statement and effective. However, 1 year after the an alternative to the required road test. certification. effective date of the final rule all MECs,
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Form MCSA–5876, issued under information and documentation years of intrastate CMV driving § 391.64(b) would become void. necessary to apply for or renew an experience, assuming they lived in a FMCSA anticipates that individuals exemption, or to respond to subsequent State that offers vision waivers, once physically qualified under § 391.64(b) requests for information.67 Publishing their vision is stable and they have had would not be adversely affected by the personal and medical information in the time to adapt to and accommodated for proposed action. Grandfathered drivers Federal Register and seeking public the change in their vision before they are already required to obtain annual comment about drivers would be would be eligible to obtain a Federal vision evaluations performed by an discontinued. Also, individuals would exemption and return to interstate ophthalmologist or optometrist before no longer be required to carry a copy of driving. their physical qualification the vision exemption when on duty as IX. Section-by-Section Analysis examinations and the proposed rule required by § 391.41(a)(1)(ii) and (2)(iii) includes similar qualification criteria. or provide a copy to their employers. This section includes a summary of However, FMCSA seeks public Eliminating the prohibition on the proposed changes to 49 CFR part comment regarding whether the certifying individuals who cannot meet 391. The regulatory changes proposed proposed alternative vision standard either the current visual acuity or field will be discussed first in numerical would adversely affect any driver who of vision standard, or both, in one eye order, followed by a discussion of is operating currently under § 391.64(b). (without an exemption) would enable proposed changes to Agency guidance. Similarly, the 2,566 vision exemption more qualified individuals to operate as A. Regulatory Provisions holders would have 1 year after the interstate CMV drivers without effective date of any final rule to comply compromising safety. The criterion that Section 391.31 Road Test with the rule, at which time all an individual should have 3 years of In § 391.31, paragraph (f) would be exemptions issued under 49 U.S.C. experience driving a CMV with the amended by removing the entries for the 31315(b) would become void. Drivers vision deficiency precludes many driver’s social security number, the who hold a vision exemption would be individuals from being eligible to obtain driver’s license number, and the State of notified by letter with details of the a Federal exemption. The only way for issuance of the driver’s license from the transition to the new standard. an individual to get the CMV driving Certification of Road Test. A new D. Change to the Medical Examination experience is to obtain intrastate driving paragraph (h) would be added that Process in 49 CFR 391.43(b)(1) experience. To do that, the individual provides OMB reviewed the information must obtain a State vision waiver to collection requirements in § 391.31 and The Agency proposes to amend operate in intrastate commerce, but not assigned an OMB control number. § 391.43(b)(1) by adding an all States issue vision waivers.68 The ophthalmologist as a category of eye road test alternative addresses this Section 391.41 Physical Qualifications care professional who may perform the limitation and is much less burdensome for Drivers part of the physical qualification than obtaining 3 years of intrastate In § 391.41(b)(10), the current vision examination that involves visual acuity, driving experience. Thus, the proposed standard would be renumbered as field of vision, and the ability to rule would provide an opportunity to paragraph (b)(10)(i) without any textual recognize colors. Currently, the operate as an interstate CMV driver changes. An alternative standard would provision is limited to licensed regardless of the driver’s State of be added in paragraph (b)(10)(ii) that optometrists. When § 391.43(a) was domicile. Individuals who live in a would allow an individual who cannot adopted in 1970, it provided that the State that issues vision waivers also satisfy either the current distant visual medical examination must be performed would be able to begin a career as an acuity or field of vision standard, or by a doctor of medicine or osteopathy, interstate CMV driver more quickly and both, in one eye to be physically which allowed an ophthalmologist to may have more employment qualified under proposed § 391.44. perform any part of the examination (35 opportunities. FR 6458, 6463, April 22, 1970). An Previously qualified interstate CMV Section 391.43 Medical Examination; exception was provided in paragraph (b) drivers who are no longer able to meet Certificate of Physical Examination to allow optometrists to perform the part either the distant visual acuity or field In § 391.43(b)(1), an ophthalmologist of the medical examination that of vision standard, or both, in one eye would be added as a category of eye care involves visual acuity, field of vision, would be able to return to operating professional who may perform the part and the ability to recognize colors. interstate sooner. Currently, such of the physical qualification Section 391.43 has been amended individuals would have to obtain 3 examination that involves visual acuity, several times since 1970 and now field of vision, and the ability to provides that the medical examination 67 As discussed below in the Paperwork recognize colors. Textual changes also must be performed by an ME listed on Reduction Act section XI.G. regarding the Medical Qualification Requirements information collection, would be made to improve readability. the National Registry. The Agency did FMCSA attributes 2,236 annual burden hours at a Section 391.44 Physical Qualification not amend § 391.43 at the time of the cost of $69,136 for drivers to obtain and maintain prior amendments to continue to allow a vision exemption. The proposed rule would Standards for an Individual Who Cannot ophthalmologists to perform the vision eliminate this entire burden. Satisfy Either the Distant Visual Acuity 68 portion of the medical examination. The fact that some States have vision waiver or Field of Vision Standard, or Both, in programs for intrastate CMV drivers provides One Eye Accordingly, the proposed rule would additional evidence that individuals who cannot correct that oversight. meet either FMCSA’s distant visual acuity or field A new § 391.44 would be added. of vision standard, or both, in one eye are driving Paragraph (a) would apply so an E. Benefits of the Proposal to Drivers safely in intrastate commerce. When FMCSA individual who cannot satisfy either the proposed changes to the eligibility requirements for The physical qualification process the exemption program in December 2013, an current distant visual acuity or field of proposed in § 391.44 would eliminate individual commented that he did not understand vision standard, or both, in one eye can the need for individuals to obtain and why FMCSA requires driving experience when his be physically qualified to operate a renew an exemption. Drivers would no State issues a waiver without driving experience. CMV in interstate commerce. Such an The comment is available in docket number longer be required to create and FMCSA–2013–0097 at https://www.regulations.gov/ individual would be physically assemble the substantial amount of document?D=FMCSA-2013-0097-0003. qualified if the individual meets the
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other physical qualification standards in certified under § 391.64(b) on the meant to bind the public in any way. § 391.41(b) (or has an exemption or skill effective date of any final rule. They are intended only to provide performance evaluation certificate, if clarity to the public regarding existing Section 391.45 Persons Who Must Be required), and has the vision evaluation requirements under the law or FMCSA Medically Examined and Certified and medical examination required by policies. Guidance statements will not paragraphs (b) and (c), respectively. Section 391.45 would be amended by be relied on by FMCSA as a separate Paragraph (b) would require the renumbering existing paragraphs (f) and basis for affirmative enforcement action individual to have a vision evaluation (g) as paragraphs (g) and (h), or other administrative penalty. completed by a licensed respectively. A new paragraph (f) would Conformity with guidance statements is ophthalmologist or optometrist before be added to require any driver certified voluntary, and nonconformity will not each physical qualification examination. under proposed § 391.44 to be affect rights and obligations under The ophthalmologist or optometrist recertified at least every 12 months. existing statutes or regulations. Rather, would complete the proposed Vision Conforming changes would be made in guidance is strictly advisory and Evaluation Report, Form MCSA–5871, paragraph (b) to reflect the addition of intended to provide information that during the individual’s evaluation, a new paragraph to this section. helps to support the application of the including signing and dating the report Section 391.51 General Requirements standards in the regulations or to serve and providing business contact for Driver Qualification Files as a reference. A guidance statement information. does not alter the meaning of a Conforming changes would be made Paragraph (c) would set forth the regulation. to § 391.51. Paragraph (b)(3) would be requirements for the ME’s examination, amended to include in the driver Appendix A to Part 391—Medical including that the examination must qualification file the original of the Advisory Criteria begin no later than 45 days after the written statement from the motor carrier Appendix A to Part 391 is published ophthalmologist or optometrist signs required by § 391.44(d)(3)(ii)(A), as well at the end of part 391 in the CFR. The and dates the Vision Evaluation Report, as the original, or a copy, of the appendix contains guidelines in the Form MCSA–5871. The ME would have certification from the driver required by form of Medical Advisory Criteria to to receive a completed report for each § 391.44(d)(3)(i). help MEs assess a driver’s physical examination of an individual needing qualification to operate a CMV under Section 391.64 Grandfathering for evaluation under § 391.44. The report the standards set forth in § 391.41(b). Certain Drivers Who Participated in the would be treated and retained as part of FMCSA proposes to remove section II. the Medical Examination Report Form, Vision Waiver Study Program J., Vision: § 391.41(b)(10), of Appendix MCSA–5875. The ME would make a FMCSA would revise the title of A to Part 391 in its entirety. physical qualification determination by § 391.64 to reflect that the regulation is considering the information in the now applicable only to drivers who Interpretations for § 391.41 Vision Evaluation Report, Form MCSA– participated in the vision waiver study Interpretations for specific regulations 5871, and using independent medical program. Language would be inserted at are available through the Guidance judgment in applying four standards. the beginning of existing paragraph (b) Portal on FMCSA’s website. FMCSA The standards would provide that the to provide that any final rule resulting proposes to revise the guidance to individual must (1) have in the better from this NPRM would not apply to Question 3 of the interpretations for eye distant visual acuity of at least 20/ individuals certified pursuant to § 391.41.69 FMCSA would conform the 40 (Snellen), with or without corrective § 391.64(b) until 1 year after the language to the number of medical lenses, and field of vision of at least 70 effective date of the rule. During that conditions that would not be subject to degrees in the horizontal meridian; (2) year, individuals certified under the an ME’s judgment (i.e., two), and be able to recognize the colors of traffic grandfather provisions could choose to remove ‘‘vision’’ from the list of signals and devices showing standard be certified under § 391.64(b) or the conditions for which an ME has no red, green, and amber; (3) have a stable final rule. A new paragraph (b)(4) would discretion. The interpretative guidance vision deficiency; and (4) have had be added to remove and void all of for Question 3 would thus read as sufficient time to adapt to and paragraph (b) 1 year after the effective follows: compensate for changes in vision. date of the final rule; thus, eliminating Question 3: What are the physical Paragraph (d) would provide an certification under § 391.64(b). qualification requirements for operating individual physically qualified under Paragraph (b)(4) would provide that any a CMV in interstate commerce? § 391.44(d) for the first time could not MEC, Form MCSA–5876, issued under Guidance: The physical qualification drive a CMV until the individual has the provisions of § 391.64(b) would regulations for drivers in interstate successfully completed a road test become void 1 year after the effective commerce are found at § 391.41. subsequent to physical qualification and date of the final rule. In addition, Instructions to medical examiners has been issued a certificate of driver’s instructions would be provided to performing physical examinations of road test in accordance with § 391.31. A remove and reserve § 391.64 1 year after these drivers are found at § 391.43. The qualification standards cover 13 motor carrier could not accept in place the effective date of the final rule. Cross areas, which directly relate to the of a road test required by § 391.44(d) the references to § 391.64 in existing driving function. All but two of the alternatives provided in § 391.33. regulations would be eliminated in standards require a judgment by the Individuals would be excepted from the future rulemakings. road test requirement if they had a valid medical examiner. A person’s license and operated in intrastate or B. Guidance Statements and qualification to drive is determined by excepted interstate commerce with the Interpretations a medical examiner who is vision deficiency for the 3-year period This rulemaking proposes to amend a knowledgeable about the driver’s immediately preceding the date of regulation that has associated guidance 69 statements or interpretations. Such See https://www.fmcsa.dot.gov/medical/driver- physical qualification under § 391.44 for medical-requirements/what-are-physical- the first time, or held a valid Federal guidance statements do not have the qualification-requirements-operating-cmv (last vision exemption or were medically force and effect of law and are not accessed August 20, 2020).
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functions and whether a particular signals and devices showing standard meet certain conditions to maintain the condition would interfere with the red, green, and amber (49 CFR exemption. The driver must receive an driver’s ability to operate a CMV safely. 391.41(b)(10)). This standard has been annual vision evaluation by an In the case of hearing and epilepsy, the in effect since 1971. ophthalmologist or optometrist and an current standards are absolute, Drivers who do not meet either the annual physical qualification providing no discretion to the medical distant visual acuity or field of vision examination by an ME. In addition, the examiner. However, drivers who do not standard, or both, in one eye may apply Agency must monitor the meet the current requirements may to FMCSA for an exemption from the implementation of each exemption and apply for an exemption as provided by standard to operate CMVs in interstate immediately revoke an exemption if the 49 CFR part 381. commerce (49 CFR part 381, subpart C). driver fails to comply with the terms To do so, the driver must submit a letter and conditions; the exemption has X. International Impacts of application and supporting resulted in a lower level of safety than The FMCSRs, and any exceptions to documents to enable FMCSA to evaluate was maintained before the exemption; the FMCSRs, apply only within the the safety impact of the exemption.70 or continuation of the exemption would United States (and, in some cases, Among the documentation is a signed not be consistent with the goals and United States territories). Motor carriers statement by an ophthalmologist or objectives of the FMCSRs (49 CFR and drivers are subject to the laws and optometrist showing evaluation of the 381.330). regulations of the countries in which driver within the last 3 months and FMCSA monitors vision-exempted they operate, unless an international which: drivers on a quarterly basis. If any • agreement states otherwise. Drivers and Identifies and defines the nature of potentially disqualifying information is carriers should be aware of the the vision deficiency, including how identified, FMCSA will request a copy regulatory differences among nations. long the individual has had the of the violation or crash report from the Pursuant to the terms of the 1998 deficiency; driver. Should the violation be • States the date of examination; disqualifying, FMCSA will revoke the medical reciprocity agreement with • Canada, the United States would notify Certifies that the vision deficiency exemption immediately. Canada if an alternative vision standard is stable; Currently, 2,566 drivers hold a vision • Identifies the visual acuity of each 72 is adopted and propose the countries exemption. Compared to all interstate eye, corrected and uncorrected; CMV drivers operating in the United review their applicable vision standards • Identifies the field of vision of each to determine whether they remain States in 2017 (3.7 million, including eye, including central and peripheral 73 equivalent. 3.2 million who hold CDLs), these fields, utilizing a testing modality that drivers represent less than 0.1 percent of XI. Regulatory Analyses tests to at least 120 degrees in the the population.74 horizontal; There are approximately 1,900 active A. E.O. 12866 (Regulatory Planning and • Identifies whether the individual grandfathered drivers.75 FMCSA checks Review), E.O. 13563 (Improving can recognize the colors of traffic Regulation and Regulatory Review), and the driving records of grandfathered control signals and devices showing red, drivers to determine if they continue to DOT Regulations green, and amber; and • operate CMVs safely. FMCSA performed an analysis of the Certifies that in his or her medical Since the inception of the vision impacts of the proposed rule and opinion, the individual has sufficient exemption program, the predominant determined it is not a significant vision to perform the driving tasks reason for denial of an exemption is less regulatory action under section 3(f) of required to operate a commercial than 3 years of experience operating E.O. 12866 (58 FR 51735, October 4, vehicle. with the vision deficiency. 1993), Regulatory Planning and Review, FMCSA must publish notice of the as supplemented by E.O. 13563 (76 FR request for an exemption and provide revocations of the applicant’s license for operating 3821, January 21, 2011), Improving the public opportunity to comment. The violations in any motor vehicle; no involvement in Regulation and Regulatory Review. notice granting the exemption must a crash in which the applicant contributed or was identify the individual who will receive cited for a moving traffic violation; no convictions Accordingly, OMB has not reviewed it for a disqualifying offense, as described in 49 CFR under that Order. It is also not the exemption, the provisions from 383.51(b) (e.g., driving while under the influence of significant within the meaning of DOT which the individual will be exempt, alcohol or a controlled substance, leaving the scene of an accident, or the commission of a felony regulations (49 CFR 5.13(a)). The the effective period, and all terms and conditions of the exemption. The involving the use of a vehicle); more than one Agency has determined that the serious traffic violation, as described in § 383.51(c) proposed rule would result in cost Agency’s terms and conditions must (e.g., excessive speeding, reckless driving, improper savings. ensure that the exemption will likely or erratic lane changes, following the vehicle ahead achieve a level of safety that is too closely, or a violation arising in connection with A preliminary Regulatory Impact equivalent to or greater than the level a fatality) while driving a CMV; and no more than Assessment follows: two convictions for any other moving traffic that would be achieved by complying violations while driving a CMV. Baseline for the Analysis with the regulations. 72 FMCSA data as of July 2, 2019. Currently, FMCSA grants exemptions 73 The current physical qualification FMCSA 2018 Pocket Guide to Large Truck and to applicants who meet specific criteria, Bus Statistics, available at https://www.fmcsa. standard to drive a CMV requires distant including stable vision and experience dot.gov/sites/fmcsa.dot.gov/files/docs/safety/data- visual acuity of at least 20/40 (Snellen) safely operating a CMV with the vision and-statistics/413361/fmcsa-pocket-guide-2018- in each eye without corrective lenses or final-508-compliant-1.pdf (last accessed July 16, deficiency.71 If granted, the driver must visual acuity separately corrected to 20/ 2019). 74 40 (Snellen) or better with corrective Compared to all (interstate and intrastate) CMV 70 A copy of the application template is available drivers, 6.1 million, or CDL drivers, 4.2 million, the lenses; distant binocular acuity of at in the docket and at https://www.fmcsa.dot.gov/ percentage is even lower. least 20/40 (Snellen) in both eyes with sites/fmcsa.dot.gov/files/docs/regulations/medical/ 75 The provisions of 49 CFR 391.41(b)(10) do not or without corrective lenses; field of driver-medical-requirements/10451/vision- apply to drivers who were in good standing on exemption-package-0918.pdf (last accessed July 16, March 31, 1996, in a vision waiver study program; vision of at least 70 degrees in the 2019). provided, they meet certain conditions (49 CFR horizontal meridian of each eye; and the 71 Applicants should have 3 years of intrastate 391.64(b)). This figure may not represent active ability to recognize the colors of traffic driving experience in a CMV; no suspensions or drivers.
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Impact of the Proposed Rule: Physical Under the vision exemption program, deficiency, hold a valid Federal vision Qualification and Road Test the Agency determines whether to exemption, or are medically certified Physical Qualification provide the exemption that enables the under § 391.64(b). These individuals driver to obtain physical qualification. have already demonstrated they can Should this proposal become a final Under the proposed rule, the ME would operate a CMV safely with the vision rule, an individual who cannot meet make the physical qualification deficiency. The road test would be either the distant visual acuity or field determination. The Agency lacks data to conducted by motor carriers in of vision standard, or both, in one eye determine how the proposed change accordance with the road test already could be physically qualified without might affect qualification required by § 391.31. applying for or receiving an exemption. determinations. However, the outcomes FMCSA finds that a road test would The individual would still have to of the ME qualification determinations be an appropriate indicator of an receive a vision evaluation by an may differ from those that would be individual’s ability to operate a CMV ophthalmologist or optometrist. The made under the exemption program. safely with the vision deficiency. Thus, ophthalmologist or optometrist would For those who obtain an MEC, Form the Agency expects there will be no complete the Vision Evaluation Report, MCSA–5876, the proposed action may adverse impact on safety from Form MCSA–5871, which in part: represent a streamlined process eliminating the intrastate driving • States the date of the vision compared to the requirements of the experience criterion. When FHWA evaluation; vision exemption program in that the adopted the road test in § 391.31, it • Identifies the distant visual acuity driver would not need to compile and stated that the interests of CMV safety in both eyes, uncorrected and corrected; submit the letter of application and would be promoted by ensuring drivers • Identifies the field of vision, supporting documentation to FMCSA, have demonstrated their skill by including central and peripheral fields, or respond to any subsequent requests completing the road test (35 FR 6458, utilizing a testing modality that tests to for information. However, it is possible 6450 (April 22, 1970)). that the ME could issue a certificate that at least 120 degrees in the horizontal; The intrastate driving experience • is valid for a shorter time to monitor the Identifies whether the individual criterion has the limitation that some condition. In such circumstances, under can recognize the standard red, green, States do not have waiver programs the vision exemption program, the and amber traffic control signal colors; through which drivers can obtain the • applicant would likely not receive an Identifies whether the individual driving experience necessary to comply exemption. For those who do not obtain has monocular vision as it is defined by with the criteria of the Federal vision an MEC, Form MCSA–5876, the result FMCSA and if so, the cause and when exemption program. The removal of the it began; may or may not have been the same under the vision exemption program. 3-year experience criterion under the • Identifies current treatment; proposed rule could more readily allow • Provides a medical opinion If the proposed rule becomes a final rule, it would result in the these individuals to operate in interstate regarding whether the vision deficiency discontinuation of the Federal vision commerce. However, the current is stable; exemption program. Instead, the number of exemption holders, • Provides a medical opinion physical qualification determination of grandfathered drivers, and applicants regarding whether sufficient time has these individuals would be made by the denied exemptions represents less than passed to allow the individual to adapt ME, who is trained and qualified to 1 percent of all interstate CMV drivers. to and compensate for monocular make such determinations, considering The Agency anticipates the proposed vision; action would be safety neutral. FMCSA • the information received in the vision Identifies whether the individual report from the ophthalmologist or notes that, although it would no longer has any progressive eye condition or optometrist. directly monitor the safety performance disease and if so, the date of diagnosis, of drivers, motor carriers would severity (mild, moderate, or severe), Road Test continue to monitor individuals’ safety current treatment, and whether the Instead of requiring 3 years of performance when hiring drivers and condition is stable; and intrastate driving experience with the during the annual inquiry and review of • Provides a medical opinion vision deficiency as in the current the driving record required by §§ 391.23 regarding whether a vision evaluation is exemption program, FMCSA proposes and 391.25, respectively. required more often than annually and that individuals physically qualified Costs if so, how often. under the proposed alternative vision The individual examined, standard for the first time must FMCSA estimates that the proposed ophthalmologist, or optometrist would complete a road test before operating in rule would result in incremental cost provide the signed report to an ME who interstate commerce. As described in savings of approximately $1.6 million would determine whether the Section VII. Rationale for Proposed annually from the elimination of the individual is physically qualified to Qualification Standard, individuals Federal vision exemption program and operate a CMV. Upon receipt of a would be excepted from the road test contract expenditures (Table 4). As completed and signed MEC, Form requirement if they have 3 years of described in detail below, FMCSA also MCSA–5876, the individual would not intrastate or excepted interstate CMV accounts for the annual cost of a road incur any further delay in qualification. driving experience with the vision test at approximately $47,000.
TABLE 4—COST SAVINGS: FEDERAL VISION EXEMPTION PROGRAM CONTRACT AND ROAD TEST
Fiscal year Contract cost Road test Total
2020–2021 ...... ($1,531,633) $47,137 ($1,484,496) 2021–2022 ...... (1,577,268) 47,137 (1,530,131) 2022–2023 ...... (1,624,586) 47,137 (1,577,449)
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TABLE 4—COST SAVINGS: FEDERAL VISION EXEMPTION PROGRAM CONTRACT AND ROAD TEST—Continued
Fiscal year Contract cost Road test Total
2023–2024 ...... (1,673,324) 47,137 (1,626,187) Note: For years 2022–2023 and 2023–2024, FMCSA estimated an average contract cost increase of 3 percent and extrapolated based on the percent increase of previous years.
The 2,566 current vision exemption relative advantages for these individuals drivers (Table 6) and $51 for the motor holders would no longer have to apply are unlikely to affect market conditions carrier’s compliance officer.78 for an exemption, and potential in the truck and bus industries. applicants who do not have 3 years of FMCSA estimates that the road test TABLE 5—ROAD TEST COST intrastate driving experience may meet would result in a total annual cost CALCULATIONS the alternative vision standard and be impact of $47,000 (Table 5). There [2019$] able to operate a CMV in interstate would be approximately 1,085 drivers 76 commerce. As described in Section VIII. Drivers/Motor Carriers ...... 1,085 Discussion of Proposed Rule, this may requiring a road test under § 391.44 each year. This number is the average of new Test Hours ...... 0.55 lead to a reduction in burden, as drivers Driver Wage ...... $27.88 would no longer be required to create applications for the vision exemption and assemble the substantial amount of program FMCSA received over years Subtotal ...... $16,634 information and documentation 2017 through 2019.77 As described necessary to apply for or renew an above, motor carriers would be Compliance Officer Wage .... $51.13 exemption, or to respond to subsequent responsible for administering the test to requests for information. However, the the drivers, which is estimated to take Subtotal ...... $30,502 affected population is small (less than 1 0.55 hours (33 minutes). For the hourly Sum ...... $47,137 percent of CMV drivers), and the wage rates, FMCSA used $28 for the
TABLE 6—WAGE RATES FOR CMV TRUCK DRIVERS
North American Industry Fringe BLS SOC Classification System Total Median benefits Median hourly Occupational title code (NAICS) occupational employees hourly base rate base wage + designation wage (%) fringe benefits
Heavy and Tractor-Trailer Truck Drivers 53–3032 All Industry ...... 1,856,130 $21.76 45 $31.55 Light Truck or Delivery Service Driver ... 53–3033 All Industry ...... 923,050 16.70 45 24.22 Weighted Driver Wage ...... 27.88 Source: BLS. May 2019 OES Database, National, All Industries, available at http://www.bls.gov/oes/ (last accessed September 10, 2020).
Although the Agency acknowledges Benefits current exemption program. Drivers there may be motor carriers employing As described in Section VIII. who do not have 3 years of intrastate multiple drivers, FMCSA lacks data to Discussion of Proposed Rule, driving experience may meet the estimate the exact number of motor eliminating the prohibition on certifying alternative vision standard and be able carriers. Therefore, to ensure the individuals who cannot meet either the to operate a CMV interstate. A one-time inclusion of all affected motor carriers, current visual acuity or field of vision road test would also be less burdensome FMCSA opted for a conservative standard, or both, in one eye (without on drivers than obtaining 3 years of approach of assuming a 1:1 ratio of an exemption) would enable more intrastate driving experience. It also drivers per motor carrier, making qualified individuals to operate as an addresses the consideration that many $47,000 a likely overestimate. interstate CMV driver without drivers live in States that do not issue Additionally, there may be some drivers compromising safety. The proposed vision waivers. The road test would who are motor carriers, in which case alternative vision standard would allow provide more drivers the opportunity to the test must be given by a person other previously qualified interstate CMV operate a CMV. than themselves (49 CFR 391.31(b)). drivers who are no longer able to meet Regarding risk, the Agency anticipates FMCSA treats the impacts on these either the distant visual acuity or field drivers as equivalent to those of all of vision standard, or both, in one eye no changes in risk resulting from the affected drivers, and the Agency invites to return to operating interstate sooner. very small number of additional public comment from owner-operators Additional employment opportunities individuals affected by this proposed to further inform this assumption. Using may also result from the removal of the rule relative to those of the baseline. this approach, the Agency estimates a 3-years of intrastate driving experience Therefore, FMCSA considers the per entity impact of $43.46.79 requirement, which is a criterion of the proposed rule to be safety neutral.
76 FMCSA recognizes that using 1,085 as the would already be required to obtain a § 391.31 road 78 Bureau of Labor Statistics (2020). driver population is a high estimation and test. Therefore, FMCSA opted for a conservative ‘‘Occupational Employment and Wages, May 2019, overstates the burden associated with the proposed approach of assuming all 1,085 individuals would 13–1041 Compliance Officers,’’ available at https:// requirement in § 391.44 for a road test. Some of the require a road test. www.bls.gov/oes/current/oes131041.htm (last individuals would already be required to obtain a 77 accessed August 16, 2020). road test under § 391.31, in the absence of the In 2017 there were 1,151 applicants, in 2018 79 × × requirement in § 391.44(d). However, FMCSA lacks there were 1,073, and in 2019 there were 1,030 ($51.13 0.55) + ($27.88 0.55) = $43.46. internal data to estimate how many individuals ((1,151 + 1,073 + 1,030)/3 = 1,085).
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B. E.O. 13771 (Reducing Regulation and do not meet the definition of a small E. Assistance for Small Entities Controlling Regulatory Costs) entity in section 601 of the RFA. Specifically, drivers are considered In accordance with section 213(a) of The Agency expects this proposed the Small Business Regulatory rule to have total costs less than zero, neither a small business under section 601(3) of the RFA, nor are they Enforcement Fairness Act of 1996, and, if finalized, to qualify as an E.O. FMCSA wants to assist small entities in 13771 deregulatory action. The present considered a small organization under section 601(4) of the RFA. understanding this proposed rule so that value of the cost savings of this they can better evaluate its effects on proposed rule, measured on an infinite The Small Business Administration themselves and participate in the time horizon at a 7 percent discount (SBA) defines the size standards used to rulemaking initiative. If the proposed rate, expressed in 2016 dollars, and classify entities as small. SBA rule would affect your small business, discounted to 2021 (the year the establishes separate standards for each organization, or governmental proposed rule would go into effect and industry, as defined by the North jurisdiction and you have questions cost savings would first be realized), American Industry Classification concerning its provisions or options for would be $20.9 million. On an System (NAICS).81 This rule could affect compliance; please consult the FMCSA annualized basis, these cost savings many different industry sectors in point of contact, Ms. Christine Hydock, would be $1.5 million. addition to the Transportation and listed in the FOR FURTHER INFORMATION For E.O. 13771 accounting, the April Warehousing sector (NAICS sectors 48 5, 2017, OMB guidance requires that CONTACT section of this proposed rule. and 49); for example, the Construction Small businesses may send comments agencies also calculate the costs and sector (NAICS sector 23), the cost savings discounted to year 2016. In on the actions of Federal employees Manufacturing sector (NAICS sectors 31, who enforce or otherwise determine accordance with this requirement, the 32, and 33), and the Retail Trade sector present value of the cost savings of this compliance with Federal regulations to (NAICS sectors 44 and 45). Industry rule, measured on an infinite time the Small Business Administration’s groups within these sectors have size horizon at a 7 percent discount rate, Small Business and Agriculture standards for qualifying as small based expressed in 2016 dollars, and Regulatory Enforcement Ombudsman on the number of employees (e.g., 500 discounted to 2016, would be $14.9 and the Regional Small Business million. On an annualized basis, the employees), or on the amount of annual Regulatory Fairness Boards. The cost savings would be $1 million. revenue (e.g., $27.5 million in revenue). Ombudsman evaluates these actions To determine the NAICS industries annually and rates each agency’s C. Congressional Review Act potentially affected by this rule, FMCSA responsiveness to small business. To This proposed rule is not a major rule cross-referenced occupational comment on actions by employees of as defined under the Congressional employment statistics from the Bureau FMCSA, call 1–888–REG–FAIR (1–888– Review Act (5 U.S.C. 801–808). of Labor Statistics with NAICS industry 734–3247). DOT has a policy regarding codes. D. Regulatory Flexibility Act (Small the rights of small entities to regulatory Entities) The RFA does not define a threshold enforcement fairness and an explicit for determining whether a specific policy against retaliation for exercising The Regulatory Flexibility Act (RFA) regulation results in a significant these rights. (5 U.S.C. 601, et seq.), as amended by impact. However, the SBA, in guidance F. Unfunded Mandates Reform Act of the Small Business Regulatory to government agencies, provides some Enforcement Fairness Act of 1996,80 1995 objective measures of significance that requires Federal agencies to consider the agencies can consider using.82 One The Unfunded Mandates Reform Act the impact of their regulatory actions on measure that could be used to illustrate of 1995 (2 U.S.C. 1531–1538) requires small entities, analyze effective a significant impact is labor costs, Federal agencies to assess the effects of alternatives that minimize small entity specifically, if the cost of the regulation their discretionary regulatory actions. In impacts, and make their analyses exceeds 1 percent of the average annual particular, the Act addresses actions available for public comment. The term revenues of small entities in the sector. that may result in the expenditure by a ‘‘small entities’’ means small businesses Given the proposed rule’s average State, local, or tribal government, in the and not-for-profit organizations that are annual per-entity impact of $43.46, a aggregate, or by the private sector of independently owned and operated and small entity would need to have average $168 million (which is the value are not dominant in their fields, and annual revenues of less than $4,346 to equivalent of $100 million in 1995, governmental jurisdictions with experience an impact greater than 1 adjusted for inflation to 2019 levels) or populations under 50,000 (5 U.S.C. percent of average annual revenue, more in any 1 year. Though this 601(6)). Accordingly, DOT policy which is an average annual revenue that proposed rule would not result in such requires an analysis of the impact of all is smaller than would be required for a an expenditure, the Agency discusses regulations on small entities, and firm to support one employee. the effects of this rule elsewhere in this mandates that agencies strive to lessen Therefore, I certify this rule would not preamble. any adverse effects on these entities. have a significant impact on the entities Section 605 of the RFA allows an G. Paperwork Reduction Act (Collection affected. Agency to certify a rule, in lieu of of Information) preparing an analysis, if the rulemaking 81 is not expected to have a significant ‘‘North American Industry Classification The Paperwork Reduction Act of 1995 System’’ (2017), available at https:// (44 U.S.C. 3501–3520) requires that an economic impact on a substantial www.census.gov/eos/www/naics/2017NAICS/2017_ number of small entities. NAICS_Manual.pdf (last accessed January 15, agency consider the impact of This rule would affect drivers and 2020). paperwork and other information motor carriers. Drivers are not 82 SBA, Office of Advocacy, ‘‘A Guide for collection burdens imposed on the Government Agencies. How to Comply with the public. An agency is prohibited from considered small entities because they Regulatory Flexibility Act’’ (2017), available at https://www.sba.gov/sites/default/files/advocacy/ collecting or sponsoring an information 80 Public Law 104–121, 110 Stat. 857, March 29, How-to-Comply-with-the-RFA-WEB.pdf (last collection, as well as imposing an 1996. accessed January 16, 2020). information collection requirement,
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unless it displays a valid OMB control for up to a maximum of 12 months. The The revised total annual estimated number (5 CFR 1320.8(b)(3)(vi)). proposed Vision Evaluation Report, burden associated with the Medical The proposed rule would impact an Form MCSA–5871, supports safety by Qualification Requirements ICR that existing information collection request ensuring that CMV drivers are reflects the addition of this proposed (ICR) titled ‘‘Medical Qualification physically qualified to operate trucks information collection and the Requirements,’’ OMB control number and buses on our nation’s highways. completion of the Vision Evaluation 2126–0006, and a new ICR titled Because of the proposed action, a new Report, Form MCSA–5871; the ‘‘391.31 Road Test Requirement,’’ OMB information collection, IC–8 elimination of the Federal vision control number 2126–TBD.83 The ICRs Qualifications of Drivers; Vision exemption program; updated driver will be discussed separately below, Standard, would be added to the population, program statistics, National followed by a discussion of the net existing ICR. FMCSA estimates that Registry statistics, and wage data; and information collection and reporting ophthalmologists and optometrists regulatory changes is as follows. burdens of the proposed rule. would complete 3,614 Vision Total estimated number of Evaluation Reports, Form MCSA–5871, 1. Related Information Collection respondents: 5,586,232 CMV drivers, annually and that it would take them 8 Requests motor carriers, MEs, treating clinicians, minutes to complete a report. Thus, the ophthalmologists, and optometrists. a. Medical Qualification Requirements estimated annual burden hours ICR associated with the proposed Total estimated responses: 27,202,863. This proposed rule would amend the information collection is 482 hours × ÷ existing approved Medical Qualification (3,614 forms 8 minutes per form 60 Total estimated burden hours: Requirements ICR, OMB control number minutes = 482 hours, rounded to the 2,251,571. 2126–0006, which expires on November nearest whole hour). At an average Total estimated cost: $171,044,474. 30, 2021. Specifically, FMCSA seeks hourly labor cost of $82.40 for b. Section 391.31 Road Test approval for the revision of the ICR due optometrists, the estimated salary cost Requirement ICR to the Agency’s development of this associated with this information proposed rule, which includes the use collection is $39,717 ($82.40 hourly × FMCSA proposes a new § 391.31 Road of the proposed Vision Evaluation labor costs 482 hours = $39,717, Test Requirement ICR. The ICR Report, Form MCSA–5871. In rounded to the nearest dollar). estimates the paperwork burden motor accordance with 44 U.S.C. 3507(d), Additional information is provided in carriers incur to comply with the FMCSA will submit the proposed the draft supporting statement for the reporting and recordkeeping tasks information collection amendments to Medical Qualification Requirements required for the road test associated OIRA at OMB for its approval. ICR, which is available in the docket. with 49 CFR 391.31. FMCSA has not Title: Medical Qualification Estimated number of respondents: previously accounted for the burden Requirements. 3,614 ophthalmologists and associated with § 391.31 road tests; OMB Control Number: 2126–0006. optometrists. accordingly, the ICR accounts for the Type of Review: Revision of a Estimated responses: 3,614. burden. The ICR also would include the currently-approved information Frequency: At least annually. incremental burden for motor carriers collection. Estimated burden hours: 482. Summary: FMCSA proposes to Estimated cost: $39,717. associated with § 391.31 road tests due establish an alternative vision standard The proposed alternative vision to FMCSA’s development of this for individuals who cannot satisfy either standard would eliminate the need for proposed rule. In accordance with 44 the current distant visual acuity or field the Federal vision exemption program U.S.C. 3507(d), FMCSA will submit the of vision standard, or both, in one eye. and the related information collection new ICR to OIRA at OMB for its FMCSA proposes a two-step process for (IC–3a). The current vision exemption approval. physical qualification of these program requires individuals to submit Title: 391.31 Road Test Requirement. individuals that, if adopted, would personal, health, and driving OMB Control Number: 2126–TBD. information during the application replace the current vision exemption Type of Review: Approval of a new process. In addition, motor carriers must program as a basis for determining the information collection. physical qualification of these copy and file the vision exemption in Summary: The road test provision in individuals to operate a CMV. First, an the driver qualification file. FMCSA § 391.31 provides an individual must individual seeking physical attributes 2,236 annual burden hours to not drive a CMV until the individual qualification would obtain a vision obtain and maintain a vision exemption, has successfully completed a road test evaluation from an ophthalmologist or and this proposed rule would eliminate and has been issued a certificate of optometrist who would record the this entire burden. However, it would driver’s road test. It was adopted by findings and provide specific medical add 482 burden hours for the FHWA in 1970 (35 FR 6458, 6462, April opinions on the proposed Vision information collection associated with 22, 1970). At that time, FHWA stated Evaluation Report, Form MCSA–5871. completion of the Vision Evaluation that the interests of CMV safety would Next, at a physical qualification Report, Form MCSA–5871. Thus, the be promoted by ensuring drivers have examination, an ME would consider the net effect of the proposed rule would be demonstrated their skill by completing information provided on the Vision a reduction in burden hours of 1,754 a road test (35 FR 6459). The related Evaluation Report, Form MCSA–5871, (482 hours related to the vision ¥ requirement in § 391.51 that the motor and determine whether the individual report 2,236 hours related to the carrier include information relating to meets the proposed alternative vision current vision exemption program = ¥ the road test in the driver qualification standard and FMCSA’s other physical 1,754). The net effect of the proposed file was also adopted in 1970 (35 FR qualification standards. If so, the ME rule with respect to cost would be a 6465). The information documents the could issue an MEC, Form MCSA–5876, reduction of $29,419 ($39,717 related to the vision report ¥$69,136 related to driver’s ability to operate a CMV safely. 83 The OMB control number will be determined the current vision exemption program = Sections 391.31 and 391.51 are based and assigned by OMB upon approval of the ICR. ¥$29,419). on the authority of the Motor Carrier Act
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of 1935 84 (1935 Act) and the Motor investigator for an investigation or populations in 2022, 2023, and 2024 Carrier Safety Act of 1984 85 (1984 Act), audit. (the 3 years projected to be reflected in both as amended. The 1935 Act, as There are three reporting and the ICR), FMCSA adjusts the driver codified at 49 U.S.C. 31502(b), recordkeeping tasks motor carriers population by multiplying it by the authorizes the Secretary to prescribe perform regarding the road test required growth rate for driver occupations requirements for the qualifications of by § 391.31 when they hire a new typical in the light vehicle industry (i.e., employees of a motor carrier and the driver. The three tasks are: 5 percent). Next, FMCSA estimates the safety of operation and equipment of a 1. The motor carrier completes and signs total number of job openings per year by motor carrier. The 1984 Act, as codified the road test form while the driver performs multiplying the adjusted total driver at 49 U.S.C. 31136, provides concurrent a pre-trip inspection and the driving portion population by the industry turnover rate authority to regulate drivers, motor of the road test (49 CFR 391.31(d)). (i.e., 79.2 percent). Because drivers may carriers, and vehicle equipment. Section 2. If the driver successfully passes the road present a certificate of driver’s road test 31136(a) requires the Secretary to issue test, the motor carrier completes a certificate for up 3 years from when it is completed regulations on CMV safety, including of driver’s road test in substantially the form under § 391.33, FMCSA estimates one- regulations to ensure that CMVs are prescribed in § 391.31(f) (49 CFR 391.31(e)) third of drivers will be required to have and gives the driver a copy (49 CFR operated safely. The Secretary has 391.31(g)). a road test each year of the ICR. The discretionary authority under 49 U.S.C. 3. The motor carrier retains in the driver resulting number is the respondent 31133(a)(8) to prescribe recordkeeping qualification file the original signed road test universe, i.e., the number of motor and reporting requirements. The form and the original, or a copy, of the signed carriers required to complete a road test Administrator of FMCSA is delegated certificate of driver’s road test (49 CFR for drivers hired. authority under 49 CFR 1.87 to carry out 391.31(g)(1) and (2)). For each of the three § 391.31 road the functions vested in the Secretary by To estimate the total burden hours, test reporting and recordkeeping tasks 49 U.S.C. Chapters 311 and 315 as they FMCSA multiplies the number of motor carriers perform when they hire relate to CMV operators, programs, and respondents by the hourly burden per a new driver, FMSCA estimates the safety. response. FMCSA estimates a burden of motor carrier burden hours by Motor carriers must ensure each 30 minutes for the motor carrier to multiplying the number of respondents driver has the skill to operate a CMV complete the road test form while by the hourly burden for each task. safely. The information collected and conducting the road test. Should the Then FMCSA estimates the motor maintained by motor carriers in each driver successfully pass the road test, carrier cost by multiplying the burden driver qualification file related to the FMCSA assumes it will take the motor hours by the median salary for the road test substantiates the driver can carrier 2 minutes to complete the person performing the task. The total operate a CMV safely and the motor certification of driver’s road test and an motor carrier burden hours and cost for carrier has fulfilled its regulatory additional 1 minute to store documents the three tasks is reflected below in the requirements. It also aids Federal and in the driver qualification file. total burden and cost amounts for the State safety investigators in assessing To estimate burden costs, FMCSA ICR. the qualifications of drivers. assumes a compliance officer will be the IC–2 consists of the incremental burden associated with the requirement Public interest in highway safety person who will complete the road test in this proposed rule that individuals dictates that employers hire drivers who form and associated certificate, and a physically qualified under the can safely operate CMVs amidst the file clerk will be the person who will alternative vision standard in § 391.44 various physical and mental demands of store the documents. The median salary for the first time would be required to truck driving. Section 391.31 requires a for a compliance officer is $51.13 per complete a road test in accordance with motor carrier to conduct a road test hour. The median salary for a file clerk § 391.31. FMCSA uses the same three when the motor carrier hires a new is $25.63 per hour. reporting and recordkeeping tasks, time driver. The motor carrier is required to The ICR estimates the information- estimates, labor costs, and overall rate the performance of the driver collection burden incurred by motor methodology discussed above to during the test on a road test form. If the carriers associated with the § 391.31 calculate the annual burden hours and road test is successfully completed, the road test in two circumstances. The first cost associated with the proposed rule. motor carrier completes a certificate of is when the road test is required by However, FMCSA estimates the driver’s road test and provides a copy to § 391.31 (IC–1); the second is when the respondent universe of 1,085 motor the driver. Motor carriers may maintain road test is required as part of the carriers by averaging the number of new the required road test form and alternative vision standard in proposed requests for a Federal vision exemption certificate electronically or via paper § 391.44 (IC–2). in 2017, 2018, and 2019 ((1,151 + 1,073 copy. The motor carrier must retain the IC–1 consists of the three reporting + 1,030)/3 = 1,085). signed road test form and the signed and recordkeeping tasks motor carriers certificate in the driver qualification perform regarding the road test required FMCSA recognizes that using 1,085 as file. Generally, driver qualification files by § 391.31 when they hire a new the driver population is a high must be maintained at the motor driver. The respondent universe is the estimation and overstates the burden carrier’s principal place of business. number of motor carriers required to associated with the proposed Neither the road test form nor the complete a road test for drivers hired. requirement in § 391.44 for a road test. certificate is routinely submitted to To determine the number of drivers who Some of the individuals would already FMCSA. A motor carrier would only will be hired and require a road test, be required to obtain a road test under make the information available when FMCSA first determines the driver § 391.31, in the absence of the requested by an FMCSA or State safety population subject to the road test requirement in § 391.44(d). However, requirement. Because § 391.33 allows FMCSA lacks internal data to estimate motors carriers to accept a valid CDL how many individuals would already be 84 Public Law 74–255, 49 Stat. 543, August 9, 1935. instead of the § 391.31 road test, the required to obtain a § 391.31 road test. 85 Public Law 98–554, 98 Stat. 2829, 2832, driver population is non-CDL interstate Therefore, FMCSA opted for a October 30, 1984. and intrastate drivers. To find the driver conservative approach of assuming all
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1,085 individuals would require a road in burden hours of 609 and in cost of regulation that will affect the privacy of test. $30,578. Thus, the net effect of the individuals. In accordance with this In addition, § 391.44(d)(3) would proposed rule would be a reduction in Act, a privacy impact assessment is provide an exception to the road test burden hours of 1145 (¥1,754 hours warranted to address any privacy requirement for some individuals. If the related to the Medical Qualification implications contemplated in the motor carrier determines an individual Requirements ICR + 609 hours related to proposed rulemaking. possessed a valid CDL or non-CDL the 391.31 Road Test Requirement ICR With respect to the proposed Vision license to operate, and did operate, a = ¥1,145). The net effect of the Evaluation Report, Form MCSA–5871, CMV in either intrastate commerce or in proposed rule with respect to cost the DOT Chief Privacy Officer has exempt interstate commerce with the would be an addition of $1,159 evaluated the risks and effects that this vision deficiency for the 3-year period (¥$29,419 related to the Medical rulemaking might have on collecting, immediately preceding the date of Qualification Requirements ICR + storing, and sharing personally physical qualification under § 391.44 for $30,578 related to the 391.31 Road Test identifiable information and has the first time, the individual would not Requirement ICR = $1,159). examined protections and alternative be required to complete a § 391.31 road 3. Request for Comments information handling processes in test. FMCSA lacks internal data to developing the proposal to mitigate estimate how many individuals would FMCSA asks for comment on the potential privacy risks. The privacy be excepted from a road test by this information collection requirements of risks and effects associated with this provision, but expects only a small this proposed rule, as well as the proposed rule are not unique and have number of individuals would qualify for revised total estimated burden been addressed previously by the DOT/ the exception. In addition, the associated with the Medical FMCSA 009—National Registry of paperwork burden to except an Qualification Requirements ICR and the Certified Medical Examiners system of individual from the road test total estimated burden associated with records notice published on October 4, requirement would be less than the the new 391.31 Road Test Requirement 2019 (84 FR 53211), available at https:// burden for the individual to take the ICR. Specifically, the Agency asks for www.transportation.gov/privacy. The road test. Therefore, FMCSA opted for a comment on: (1) Whether the proposed DOT Chief Privacy Officer has conservative approach of assuming all information collections are necessary for determined that a new system of records 1,085 individuals would require a road FMCSA to perform its functions; (2) notice for this rulemaking is not test. how the Agency can improve the required. The estimated incremental annual quality, usefulness, and clarity of the In this rulemaking, FMCSA proposes burden associated with the requirement information to be collected; (3) the a two-step process for the physical in the proposed rule that individuals accuracy of FMCSA’s estimate of the qualification of individuals who cannot physically qualified under § 391.44 for burden of this information collection; satisfy either the current distant visual the first time would be required to and (4) how the Agency can minimize acuity or field of vision standard, or complete a road test in accordance with the burden of the information both, in one eye. First, an individual § 391.31 (IC–2), is as follows. collection. seeking physical qualification would Estimated number of respondents: If you have comments on the obtain a vision evaluation from an 1,085 motor carriers. collection of information, you must ophthalmologist or optometrist who Estimated responses: 3,255. submit those comments as outlined would record the requested information Estimated burden hours: 609. under section I.E. at the beginning of on the proposed Vision Evaluation Estimated cost: $30,578. this NPRM. Report, Form MCSA–5871. Next, at a The total estimated annual burden physical qualification examination, an associated with the 391.31 Road Test H. E.O. 13132 (Federalism) ME would consider the information Requirement ICR for IC–1 and IC–2 is as A rule has implications for federalism provided on the Vision Evaluation follows: under section 1(a) of E.O. 13132 if it has Report, Form MCSA–5871, and Total estimated number of ‘‘substantial direct effects on the States, determine whether the individual is respondents: 560,809 motor carriers. on the relationship between the national physically qualified to operate a CMV Total estimated responses: 2,306,709. government and the States, or on the safely. The Vision Evaluation Report, Total estimated burden hours: distribution of power and Form MCSA–5871, would be used 430,588. responsibilities among the various exclusively as part of the physical Total estimated cost: $21,623,811. levels of government.’’ FMCSA qualification process and would collect Additional information for the determined that this proposal would not only information that is necessary to assumptions, calculations, and have substantial direct costs on or for assist the ME in making a physical methodology summarized above is States, nor would it limit the qualification determination. provided in the draft supporting policymaking discretion of States. statement for the 391.31 Road Test Nothing in this document preempts any The information collected on the Requirement ICR. The supporting State law or regulation. Therefore, this Vision Evaluation Report, Form MCSA– statement is available in the docket for rule does not have sufficient federalism 5871, would provide a means for this rulemaking. implications to warrant the preparation healthcare professionals to exchange of a Federalism Impact Statement. information about an individual who 2. Net Information Collection Reporting cannot satisfy either the current distant Burdens I. Privacy visual acuity or field of vision standard, As shown above, the net effect of the Section 522 of title I of division H of or both, in one eye. This is the same proposed rule on the Medical the Consolidated Appropriations Act, type of communication that occurs Qualification Requirements ICR would 2005,86 requires the Agency to conduct when the ME needs to follow up with be a reduction in burden hours of 1,754 a privacy impact assessment of a an individual’s primary care provider and in cost of $29,419. The effect of the regarding the individual’s health and proposed rule on the 391.31 Road Test 86 Public Law 108–447, 118 Stat. 2809, 3268, exchanges information. Therefore, no Requirement ICR would be an addition December 8, 2004 (5 U.S.C. 552a note). new category of medical or privacy
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information would be generated because K. National Environmental Policy Act of § 391.41 Physical qualifications for of this proposed rule. 1969 drivers. * * * * * The Agency expects that this FMCSA analyzed this proposed rule information would be safeguarded along (b) * * * for purposes of the National (10)(i) Has distant visual acuity of at with all the other medical information Environmental Policy Act of 1969 (42 least 20/40 (Snellen) in each eye that these healthcare providers U.S.C. 4321, et seq.) and determined without corrective lenses or visual maintain. In other words, the this action is categorically excluded acuity separately corrected to 20/40 ophthalmologist or optometrist would from further analysis and (Snellen) or better with corrective maintain certain medical records about documentation in an environmental lenses, distant binocular acuity of at the individual based on his or her vision assessment or environmental impact least 20/40 (Snellen) in both eyes with evaluation, and the ME would maintain statement under FMCSA Order 5610.1 or without corrective lenses, field of certain medical records to support the (69 FR 9680, March 1, 2004), Appendix vision of at least 70° in the horizontal physical qualification determination. 2, paragraph 6.z. The content in this Meridian in each eye, and the ability to The Vision Evaluation Report, Form rule is covered by the Categorical recognize the colors of traffic signals MCSA–5871, would be attached to the Exclusions in paragraph 6.z.(1) and devices showing standard red, Medical Examination Report Form, regarding the minimum qualifications green, and amber; or MCSA–5875, that must be maintained for individuals who drive CMVs, and in (ii) Meets the requirements in by the ME for at least 3 years from the paragraph 6.z.(2) regarding the § 391.44; minimum duties of motor carriers with date of the examination. The Vision respect to the qualifications of their * * * * * Evaluation Report, Form MCSA–5871, ■ 4. Revise § 391.43 paragraph (b)(1) to drivers. would be provided only to FMCSA read as follows: upon request if there were an List of Subjects in 49 CFR Part 391 § 391.43 Medical examination; certificate investigation or audit. Therefore, this Alcohol abuse, Drug abuse, Drug of physical examination. proposed rule would provide a privacy- testing, Highway safety, Motor carriers, * * * * * positive outcome because it results in Reporting and recordkeeping (b) * * * less sensitive data being held by the requirements, Safety, Transportation. (1) A licensed ophthalmologist or Agency. There is privacy risk not optometrist may perform the part of the controlled by the Agency because the For the reasons set forth in the preamble, FMCSA proposes to amend medical examination that involves Vision Evaluation Report, Form MCSA– 49 CFR part 391 as follows: visual acuity, field of vision, and the 5871, would be maintained by the ME ability to recognize colors as specified at his or her office. However, as PART 391—QUALIFICATIONS OF in § 391.41(b)(10). healthcare providers, MEs are required DRIVERS AND LONGER * * * * * to maintain and disclose medical COMBINATION VEHICLE (LCV) ■ 5. Add § 391.44 to read as follows: information and personally identifiable DRIVER INSTRUCTORS information in accordance with § 391.44 Physical qualification standards applicable Federal and State privacy ■ 1. The authority citation for part 391 for an individual who cannot satisfy either laws. continues to read as follows: the distant visual acuity or field of vision standard, or both, in one eye. With respect to the proposed Authority: 49 U.S.C. 504, 508, 31133, (a) General. An individual who 31136, 31149, 31502; sec. 4007(b), Pub. L. requirement for a road test as part of the cannot satisfy either the distant visual alternative vision standard, the Agency 102–240, 105 Stat. 1914, 2152; sec. 114, Pub. L. 103–311, 108 Stat. 1673, 1677; sec. 215, acuity or field of vision standard, or has completed a Privacy Threshold Pub. L. 106–159, 113 Stat. 1748, 1767; sec. both, in § 391.41(b)(10)(i) in one eye is Assessment to evaluate the risks and 32934, Pub. L. 112–141, 126 Stat. 405, 830; physically qualified to operate a effects the proposed requirement might secs. 5403 and 5524, Pub. L. 114–94, 129 commercial motor vehicle in interstate have on collecting, storing, and sharing Stat. 1312, 1548, 1560; sec. 2, Pub. L. 115– commerce provided: personally identifiable information. The 105, 131 Stat. 2263; and 49 CFR 1.87. (1) The individual meets the other Privacy Threshold Assessment has been ■ 2. Amend § 391.31 by: physical qualification standards in submitted to FMCSA’s Privacy Officer § 391.41 or has an exemption or skill ■ a. Revising paragraph (f) by deleting performance evaluation certificate, if for review and preliminary adjudication the entry lines for ‘‘Social Security No’’, and will be submitted to DOT’s Privacy required; and ‘‘Operator’s or Chauffeur’s License No’’, (2) The individual has the vision Officer for review and final and ‘‘State’’ in the Certification of Road adjudication. evaluation required by paragraph (b) of Test form; and this section and the medical J. E.O. 13175 (Indian Tribal ■ b. Adding paragraph (h). examination required by paragraph (c) Governments) The addition reads as follows: of this section. § 391.31 Road test. (b) Evaluation by an ophthalmologist This rule does not have tribal or optometrist. Prior to the examination implications under E.O. 13175, * * * * * required by § 391.45 or the expiration of Consultation and Coordination with (h) The information collection a medical examiner’s certificate, the Indian Tribal Governments, because it requirements of this section have been individual must be evaluated by a does not have a substantial direct effect reviewed by the Office of Management licensed ophthalmologist or optometrist. on one or more Indian tribes, on the and Budget pursuant to the Paperwork (1) During the evaluation of the relationship between the Federal Reduction Act of 1995 (44 U.S.C. 3501, individual, the ophthalmologist or Government and Indian tribes, or on the et seq.) and have been assigned OMB optometrist must complete the Vision distribution of power and control number 2126–TBD. Evaluation Report, Form MCSA–5871. responsibilities between the Federal ■ 3. Revise § 391.41 paragraph (b)(10) to (2) Upon completion of the Vision Government and Indian tribes. read as follows: Evaluation Report, Form MCSA–5871,
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the ophthalmologist or optometrist must successfully completed a road test of physical qualification in accordance sign and date the Report and provide his subsequent to physical qualification and with § 391.44 for the first time and, or her full name, office address, and has been issued a certificate of driver’s therefore, is not required by § 391.44(d) telephone number on the Report. road test in accordance with § 391.31 of to complete a road test; (c) Examination by a medical this part. An individual physically (B) Give the individual a copy of the examiner. At least annually, but no later qualified under this section for the first written statement; and than 45 days after an ophthalmologist or time must inform the motor carrier (C) Retain in the individual’s driver optometrist signs and dates the Vision responsible for completing the road test qualification file the original of the Evaluation Report, Form MCSA–5871, under § 391.31(b) that the individual is written statement and the original, or a an individual who cannot satisfy either required by § 391.44(d) to have a road copy, of the individual’s certification the distant visual acuity or field of test. The motor carrier must conduct the regarding the date the vision deficiency vision standard, or both, in road test in accordance with § 391.31(b) began. § 391.41(b)(10)(i) in one eye must be thorough (g). (4) An individual physically qualified medically examined and certified by a (2) For road tests required by under this section for the first time is medical examiner as physically paragraph (d)(1) of this section, the not required to complete a road test in qualified to operate a commercial motor provisions of § 391.33 of this part for the accordance with § 391.31 if the vehicle in accordance with § 391.43. equivalent of a road test do not apply. individual holds on [DATE 60 DAYS (1) The medical examiner must If an individual required to have a road AFTER THE DATE OF PUBLICATION receive a completed Vision Evaluation test by paragraph (d)(1) of this section OF THE FINAL RULE IN THE Federal Report, Form MCSA–5871, signed and successfully completes the road test and Register] a valid exemption from the dated by an ophthalmologist or is issued a certificate of driver’s road vision standard in § 391.41(b)(10) issued optometrist for each required test in accordance with § 391.31, then by FMCSA under 49 CFR part 381. Such examination. This Report shall be any otherwise applicable provisions of an individual is not required to inform treated and retained as part of the § 391.33 will apply thereafter to such the motor carrier that the individual is Medical Examination Report Form, individual. excepted from the requirement in MCSA–5875. (3) An individual physically qualified § 391.44(d)(1) to have a road test. (2) The medical examiner must under this section for the first time is (5) An individual physically qualified determine whether the individual meets not required to complete a road test in under this section for the first time is the physical qualification standards in accordance with § 391.31 if the motor not required to complete a road test in § 391.41 to operate a commercial motor carrier responsible for completing the accordance with § 391.31 if the vehicle. In making that determination, road test under § 391.31(b) determines individual is medically certified on the medical examiner must consider the the individual possessed a valid [DATE 60 DAYS AFTER THE DATE OF information in the Vision Evaluation commercial driver’s license or non- PUBLICATION OF THE FINAL RULE Report, Form MCSA–5871, signed by an commercial driver’s license to operate, IN THE Federal Register] under the ophthalmologist or optometrist and, and did operate, a commercial motor provisions of § 391.64(b) for drivers who utilizing independent medical vehicle in either intrastate commerce or participated in a previous vision waiver judgment, apply the following standards in interstate commerce excepted by study program. Such an individual is in determining whether the individual § 390.3T(f) of this subchapter or § 391.2 not required to inform the motor carrier may be certified as physically qualified of this part from the requirements of that the individual is excepted from the to operate a commercial motor vehicle. subpart E of this part with the vision requirement in § 391.44(d)(1) to have a (i) The individual is not physically deficiency for the 3-year period road test. qualified to operate a commercial motor immediately preceding the date of ■ 6. Amend § 391.45 by: vehicle if in the better eye the distant physical qualification under this section ■ a. Redesignating existing paragraphs visual acuity is not at least 20/40 for the first time. (f) and (g) as paragraphs (g) and (h), (Snellen), with or without corrective (i) The individual must certify in respectively; lenses, and the field of vision is not at writing to the motor carrier the date the ■ b. Adding a new paragraph (f); and least 70° in the horizontal meridian. vision deficiency began. ■ c. Revising paragraph (b). (ii) The individual is not physically (ii) If the motor carrier determines the The addition and revision read as qualified to operate a commercial motor individual possessed a valid follows: vehicle if the individual is not able to commercial driver’s license or non- recognize the colors of traffic signals commercial driver’s license to operate, § 391.45 Persons who must be medically examined and certified. and devices showing standard red, and did operate, a commercial motor green, and amber. vehicle in either intrastate commerce or * * * * * (iii) The individual is not physically in interstate commerce excepted by (b) Any driver who has not been qualified to operate a commercial motor either § 390.3T(f) or § 391.2 from the medically examined and certified as vehicle if the individual’s vision requirements of subpart E of this part qualified to operate a commercial motor deficiency is not stable. with the vision deficiency for the 3-year vehicle during the preceding 24 months, (iv) The individual is not physically period immediately preceding the date unless the driver is required to be qualified to operate a commercial motor of physical qualification in accordance examined and certified in accordance vehicle if there has not been sufficient with § 391.44 for the first time, the with paragraph (c), (d), (e), (f), (g), or (h) time to allow the individual to adapt to motor carrier must— of this section; and compensate for the change in (A) Prepare a written statement to the * * * * * vision. effect that the motor carrier determined (f) Any driver who cannot satisfy (d) Road test. (1) Except as provided the individual possessed a valid license either the distant visual acuity or field in paragraphs (d)(3), (4), and (5) of this and operated a commercial motor of vision standard, or both, in section, an individual physically vehicle in intrastate or excepted § 391.41(b)(10)(i) in one eye and who qualified under this section for the first interstate commerce (as applicable) with has obtained a medical examiner’s time shall not drive a commercial motor the vision deficiency for the 3-year certificate under the standards in vehicle until the individual has period immediately preceding the date § 391.44, if such driver’s most recent
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medical examination and certification Issued under the authority of delegation in Federal eRulemaking Portal. Go to as qualified to drive did not occur 49 CFR 1.87. https://beta.regulations.gov/docket/ during the preceding 12 months; James W. Deck, NOAA-NMFS-2020-0139/document * * * * * Deputy Administrator. click the ‘‘Comment Now!’’ icon, [FR Doc. 2020–28848 Filed 1–11–21; 8:45 am] complete the required fields, and enter ■ 7. Amend § 391.51 by revising BILLING CODE 4910–EX–P or attach your comments. paragraph (b)(3) to read as follows: • Phone: (916) 930–3717; Fax: (916) § 391.51 General requirements for driver 930–3629. qualification files. DEPARTMENT OF COMMERCE Instructions: Comments sent by any other method, to any other address or * * * * * National Oceanic and Atmospheric individual, or received after the end of (b) * * * Administration the comment period, may not be (3) The certificate of driver’s road test considered by NMFS. All comments issued to the driver pursuant to 50 CFR Parts 223 received are part of the public record § 391.31(e), a copy of the license or [Docket No. 201125–0320] and will generally be posted to http:// certificate which the motor carrier www.regulations.gov without change. RIN 0648–BK00 All personal identifying information accepted as equivalent to the driver’s (e.g., name, address, etc.), confidential road test pursuant to § 391.33, or the Endangered and Threatened Species: business information, or otherwise original of the written statement Designation of Nonessential sensitive information submitted providing that the motor carrier Experimental Population of Central voluntarily by the sender will be determined the driver is not required by Valley Spring-Run Chinook Salmon in publicly accessible. NMFS will accept § 391.44(d) to complete a road test the Upper Yuba River Upstream of anonymous comments (enter ‘‘N/A’’ in pursuant to § 391.44(d)(3)(ii)(A) and the Englebright Dam, CA; Extension of the required fields if you wish to remain original, or a copy, of the driver’s Public Comment Period anonymous). Attachments to electronic certification required by AGENCY: National Marine Fisheries comments will be accepted in Microsoft § 391.44(d)(3)(i); Service (NMFS), National Oceanic and Word, Excel, or Adobe PDF file formats * * * * * Atmospheric Administration (NOAA), only. ■ 8. Amend § 391.64 by revising the Commerce. You may access a copy of the draft EA and other supporting documents by section title and paragraph (b) ACTION: Proposed rule; extension of visiting the NMFS website at: https:// introductory text, and adding paragraph public comment period. www.fisheries.noaa.gov/action/ (b)(4) to read as follows. SUMMARY: We, NMFS, announce the proposed-rule-authorize-reintroduction- § 391.64 Grandfathering for certain drivers extension of the public comment period central-valley-spring-run-chinook- who participated in the vision waiver study on our December 11, 2020, 30-day salmon-upper-yuba. program. proposal of a rule to designate and FOR FURTHER INFORMATION CONTACT: authorize the release of a nonessential * * * * * Jonathan Ambrose, by phone at (916) experimental population (NEP) of 930–3717, or by mail at National Marine (b) Until [DATE 60 DAYS AND 1 Central Valley (CV) spring-run Chinook Fisheries Service, 650 Capitol Mall, YEAR AFTER THE DATE OF salmon (Oncorhynchus tshawytscha) Suite 5–100, Sacramento, CA 95814. PUBLICATION OF THE FINAL RULE under the Endangered Species Act SUPPLEMENTARY INFORMATION: IN THE Federal Register], the (ESA) in the upper Yuba River and its provisions of § 391.41(b)(10) do not tributaries upstream of Englebright Dam, Background apply to a driver who was a participant California, and establish take exceptions On December 11, 2020, we published in good standing on March 31, 1996, in for the NEP for particular activities. A a proposed rule to designate and a waiver study program concerning the draft environmental assessment (EA) authorize the release of a NEP of CV operation of commercial motor vehicles has been prepared on this proposed spring-run Chinook salmon under the by drivers with visual impairment in action and is available for comment. As ESA in the upper Yuba River and its one eye; provided: part of that proposed action, we tributaries upstream of Englebright Dam, * * * * * solicited comment on the proposed rule California, and establish take exceptions and EA over a 30-day period to end on (4) On [DATE 60 DAYS AND 1 YEAR for the NEP for particular activities. In January 11, 2021. Today, we update that notice we also announced a 30-day AFTER THE DATE OF PUBLICATION contact information, website addresses OF THE FINAL RULE IN THE Federal public comment period and the and extend the public comment period availability of a draft EA. Register], the provisions of paragraph by 60 days to March 12, 2021. (b) of this section are removed, and any We received a request to extend the Comments previously submitted need public comment period by 90 days in medical examiner’s certificate issued not be resubmitted, as they will be fully order to provide the public with under § 391.43 of this part on the basis considered in the agency’s proposed additional time to adequately comment that the driver is qualified by operation action. on the proposed rule. We considered the of the provisions of 49 CFR 391.64(b), DATES: The deadline for receipt of request and concluded that a 60-day related to drivers with visual comments is extended from January 11, extension should allow sufficient time impairment in one eye, is void. 2021 until March 12, 2021. for responders to submit comments Appendix A to Part 391—Medical ADDRESSES: You may submit comments without significantly delaying Advisory Criteria [Amended] on this proposed rule, identified by finalization of the proposed rule. We are ‘‘NOAA–NMFS–2020–0139’’ by any one therefore extending the close of the ■ 9. Remove and reserve paragraph II. J., of the following methods: public comment period from January 11, Vision: § 391.41(b)(10), of Appendix A • Electronic Submissions: Submit all 2021, to March 12, 2021. In addition to to Part 391. electronic public comments via the extending the public comment period,
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we have also updated contact instructions concerning National Forest Act states that it is the policy of information and our website address to System lands with permanent Congress that the Federal Government review the proposed rule and instructions. The Services are proposing shall seek to conserve threatened and supporting materials. this change to improve and clarify the endangered species and use its interagency cooperation procedures by authorities in furtherance of the Authority making them more efficient and purposes of the Act. The Lists of The authority for this action is the consistent. Endangered and Threatened Wildlife Endangered Species Act of 1973, as DATES: We will accept comments from and Endangered and Threatened Plants amended (16 U.S.C. 1531 et seq.). all interested parties until February 11, (hereafter, ‘‘the Lists’’) are in title 50 of Dated: January 5, 2021. 2021. Please note that if you are using the Code of Federal Regulations in part Samuel D. Rauch, III, the Federal eRulemaking Portal (see 17 (§ 17.11(h) and § 17.12(h)). Deputy Assistant Administrator for ADDRESSES below), the deadline for Part 402 of title 50 of the Code of Regulatory Programs, National Marine submitting an electronic comment is Federal Regulations establishes the Fisheries Service. 11:59 p.m. Eastern Standard Time on procedural regulations governing [FR Doc. 2021–00178 Filed 1–8–21; 4:15 pm] this date. interagency cooperation under section 7 BILLING CODE 3510–22–P ADDRESSES: You may submit comments of the Act, which requires Federal by one of the following methods: agencies, in consultation with and with (1) Electronically: Go to the Federal the assistance of the Secretaries of the DEPARTMENT OF THE INTERIOR eRulemaking Portal: http:// Interior and Commerce, to insure that www.regulations.gov. In the Search box, any action authorized, funded, or Fish and Wildlife Service enter FWS–HQ–ES–2012;2020–0102, carried out by such agencies is not which is the docket number for this likely to jeopardize the continued DEPARTMENT OF COMMERCE rulemaking. Then in the Search panel existence of endangered or threatened on the left side of the screen, under the species or result in the destruction or National Oceanic and Atmospheric Document Type heading, click on the adverse modification of critical habitat Administration Proposed Rules link to locate this of such species. The Secretary of the document. You may submit a comment Interior and the Secretary of 50 CFR Parts 402 by clicking on ‘‘Comment Now!’’ Agriculture, through the Bureau of Land (2) By Hard Copy: Submit by U.S. Management (BLM) and the U.S. Forest [Docket No. FWS–HQ–ES–2020–0102; Service (FS), respectively, are FXES1114090FEDR–201–FF09E30000; mail to: Public Comments Processing, Docket No. 201231–0363] Attn: FWS–HQ–ES–2020–0102, U.S. responsible for the administration, Fish and Wildlife Service, MS:JAO/3W, management, and protection of RIN 1018–BF17; 0648–BJ77 5275 Leesburg Pike, Falls Church, VA approximately 438 million surface acres 22041–3803 or National Marine of Federal lands. Congress has directed Endangered and Threatened Wildlife Fisheries Service, Office of Protected that both Departments develop land and Plants; Regulations for Resources, 1315 East-West Highway, management plans that provide for Interagency Cooperation Silver Spring, MD 20910. management of these Federal lands in AGENCY: U.S. Fish and Wildlife Service, We request that you send comments accordance with the concepts of Interior; National Marine Fisheries only by the methods described above. multiple use and sustained yield. Service, National Oceanic and We will post all comments on https:// More specifically, the Federal Land Atmospheric Administration, www.regulations.gov. This generally Policy and Management Act of 1976 Commerce. means that we will post any personal (FLPMA) and the National Forest ACTION: Proposed rule. information you provide us (see Public Management Act (NFMA) require the Comments below for more information). Secretaries of the Interior and SUMMARY: The U.S. Fish and Wildlife FOR FURTHER INFORMATION CONTACT: Gary Agriculture, respectively, to ‘‘develop, Service (FWS) and the National Marine Frazer, U.S. Fish and Wildlife Service, maintain, and, as appropriate, revise’’ Fisheries Service (NMFS) (collectively Department of the Interior, Washington, land management plans and to referred to as the ‘‘Services’’ or ‘‘we’’) DC 20240, telephone 202/208–4646; or coordinate such planning with other propose to amend the Services’ Samuel D. Rauch, III, National Marine Federal agencies. See 43 U.S.C. 1712(a), consultation regulations under the Fisheries Service, Department of (c)(1)–(c)(9); 16 U.S.C. 1604(a); see also Endangered Species Act of 1973, as Commerce, 1315 East-West Highway, Norton v. Southern Utah Wilderness amended, pertaining to the U.S. Forest Silver Spring, MD 20910, telephone Alliance, 542 U.S. 55 (2004) (SUWA); Service and Bureau of Land 301/427–8000. If you use a Ohio Forestry Ass’n v. Sierra Club, 523 Management. The proposed revisions telecommunications device for the Deaf U.S. 726, 728 (1998) (Ohio Forestry). would clarify that reinitiation of (TDD), call the Federal Relay Service at The BLM and FS develop plans that consultation would not be required for 800–877–8339. provide standards and guidelines for these agencies’ previously approved SUPPLEMENTARY INFORMATION: land and resource management that land management plans when new reflect both economic and information reveals that effects of a plan Background environmental considerations. Once a may affect listed species or critical The purposes of the Endangered plan is adopted, the agencies’ individual habitat in a manner or to an extent not Species Act of 1973, as amended project decisions and associated previously considered, provided that (‘‘ESA’’ or ‘‘Act’’; 16 U.S.C. 1531 et permits, contracts, and other any authorized actions for which the seq.), are to provide a means to conserve instruments regulating use and new information is relevant will be the ecosystems upon which listed occupancy within a unit covered by the addressed through a separate action- species depend, to develop a program plan must be consistent with the plan. specific consultation. The proposed for the conservation of listed species, See 43 U.S.C. 1732(a); 16 U.S.C. 1604(i); revisions would also replace the and to achieve the purposes of certain 43 CFR 1601.0–5, 1610.5–3(a); 36 CFR existing regulation’s temporary treaties and conventions. Moreover, the 219.15.
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Land management plans are broad ground effects, but rather are plans do not result in any immediate planning documents that guide long- frameworks for future actions. Those on-the-ground effects, and relevant new term natural resource management. excluded approved plans contrast with information would be considered during Unless it expressly states otherwise, a specific on-the-ground actions that are a separate section 7 consultation on a plan generally does not authorize any subject to their own section 7 subsequent action taken in conformance on-the-ground action such as road consultations if those on-the-ground with the approved land management building or timber cutting. Ohio actions may affect listed species or plan if those actions may affect listed Forestry, 523 U.S. at 729–730; SUWA, critical habitat. Thus, the 2019 revised species or critical habitat. As discussed 542 U.S. at 59, 69–70. Before regulation also noted that a previously in greater detail below, this is consistent authorizing a project in an area approved land management plan with the government’s longstanding governed by an approved land prepared pursuant to FLPMA or NFMA legal position that the duty to consult management plan, the BLM and FS does not require reinitiation of under section 7 is limited to affirmative must ensure that the proposed project is consultation upon the new listing of agency actions, which include consistent with the applicable plan, species or new designation of critical prospective or ongoing actions while also complying with other habitat, if any effects on newly listed authorized, funded, or carried out by applicable laws, including section 7 of species or newly designated critical Federal agencies—but not to completed the ESA. habitat (to the extent there are any) will actions or agency inaction. In 2019, the Services revised 50 CFR be analyzed in a separate section 7 Land management plans prepared 402.16 to address issues arising under consultation on a subsequent authorized pursuant to NFMA or FLPMA do not the Ninth Circuit’s decision in action taken under the plan. differ significantly in overall structure Cottonwood Environmental Law Center and generally contain a framework for v. U.S. Forest Service, 789 F.3d 1075 Proposed Regulatory Revisions desired conditions, objectives, and (9th Cir. 2015), cert. denied, 137 S. Ct. Concerning New Information guidance for project and activity 293 (2016), which held that the FS must We now propose to further amend our decision-making in the plan area. Plans reinitiate consultation on its existing regulations to address a closely related do not generally grant, withhold, or programmatic forest plan when the FWS issue that also arose in Cottonwood by modify any contract, permit, or other designated critical habitat for the revising § 402.16 (b) to clarify that the legal instrument or create any legal Canada lynx. See 84 FR 44976–45018 duty to reinitiate does not apply to an rights. As courts have noted, ‘‘a (August 27, 2019). We added a new approved land management plan statement in a plan that BLM ‘‘will’’ paragraph (b) to 50 CFR 402.16 to clarify prepared pursuant to FLPMA, 43 U.S.C. take this, that, or the other action’’ is not that the duty to reinitiate consultation 1701, or NFMA, 16 U.S.C. 1604, if new a legally binding commitment does not apply to an approved land information reveals effects of the plan enforceable under the [Administrative management plan prepared pursuant to on listed species or critical habitat in a Procedure Act.]’ ’’ Forest Guardians v. FLPMA or NFMA when a species is manner or to an extent not previously Forsgren, 478 F.3d 1149, 1156 n. 9 (10th added to the Lists or new critical habitat considered, provided that any Cir. 2007) (quoting SUWA, 542 U.S. at is designated, in certain specific subsequent actions taken pursuant to 72). circumstances, provided that any the plan will be subject to a separate The proposed revision appropriately authorized actions that may affect the section 7 consultation if those actions relies on the proposition that a land newly listed species or designated may affect listed species or critical management plan prepared pursuant to critical habitat will be addressed habitat. Generally, ground-disturbing NFMA or FLPMA establishes a through a separate action-specific actions would be authorized subsequent framework for the development of consultation. Consistent with the to approval of the plan and addressed specific future action(s) but does not Wildfire Suppression Funding and through a subsequent action-specific normally authorize future action(s). Forest Management Activities Act, H.R. consultation. However, there are actions Land management plans do not 1625, Division O, section 208, which in some BLM land management plans generally fund, authorize, or carry out was included in the Omnibus that allow ground-disturbing action ground-disturbing actions. However, as Appropriations bill for fiscal year 2018 upon approval. For example, BLM plans described above, there are actions in (codified at 16 U.S.C. 1604(d)(2)(B)), we may include off-highway vehicle (OHV) some BLM land management plans that noted that this statutory exception to ‘‘open areas’’ that do not require are directly authorized by the plan itself reinitiation of consultation does not subsequent approval. If the plan directly and will not be reviewed in a separate apply to those land management plans authorizes the action (e.g., OHV open ESA section 7 consultation. Thus, to the prepared pursuant to 16 U.S.C. 1604 if areas), then this proposed exemption extent that new information reveals (1) 15 years have passed since the date from reinitiation does not apply if new effects to listed species or critical the agency adopted the land information reveals effects of the action habitat from these actions directly management plan and (2) 5 years have that may affect listed species or critical authorized by the plan and that were passed since the enactment of Public habitat in a manner or to an extent not not previously considered, this Law 115–141 [March 23, 2018] or the previously considered with respect to proposed exemption from reinitiation of date of the listing of a species or the those activities under the plan (e.g., consultation would not apply. designation of critical habitat, OHV use in an open area) that would The proposed revisions to the whichever is later. These statutory not be subject to future action-specific regulations are consistent with the timing provisions are discussed in consultation. statutory purposes of section 7 of the greater detail below. This proposed regulatory revision ESA. New information regarding effects We aligned the application of would improve the efficiency of the not previously considered in the § 402.16(a)(4) to exclude from consultation process while ensuring programmatic biological opinion would reinitiation of consultation approved consideration of new information prior be evaluated in a separate consultation land management plans (including to the implementation of actions that in which more site-specific details approved amendments and revisions) may affect listed species or critical would be available to better assess any prepared pursuant to the FLPMA or the habitat. Unless they expressly state impacts on listed species or critical NFMA that have no immediate on-the- otherwise, completed land management habitat. In addition, to the maximum
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extent that doing so is consistent with land management plan when new environment than that analyzed in the the agencies’ responsibilities under the species are listed or critical habitat consultation on the land management ESA, the process of updating or designated, reinitiation of consultation plan, that new information would also revisiting programmatic consultations on those plans based on new be considered and incorporated in on land management plans is usually information on effects of the plan does future consultations on specific best conducted in conjunction with the little to further the goals of the Act. Both authorized actions that may affect listed amendment and revision process set the BLM and the FS periodically update species and/or critical habitat. Each forth in the planning statutes rather than their land management plans, at which consultation builds on past on an ad hoc basis. Thus, the proposed time they would consider any new consultations no matter whether the revision to the regulations would make information during consultation on action being consulted on relates to a the consultation process more efficient effects of the plan. The BLM plan or to a specific action. and consistent, while ensuring that periodically evaluates and revises At the early stage and broad scale of species and the habitats upon which resource management plans (see 43 CFR plan consultation, the agencies lack they depend are conserved. Specifically, subpart 1610), and the interval between specific information on whether and we propose to revise paragraph (b) of reevaluations should not exceed 5 years how actual projects and activities will § 402.16 by moving some of the existing (see BLM Handbook H–1601–1 at p. 34). occur. As discussed, plans are language to new paragraph (b)(1) and FS is required to revise their land programmatic documents that set broad adding a new paragraph (b)(2), which management plans at least every 15 goals and guidelines for land includes language pertaining to land years (see 36 CFR 219.7). In addition to management, but typically do not management plans for which new periodically revising their land authorize ground-disturbing activities. information reveals that effects of the management plans, both BLM and FS See Ohio Forestry, 523 U.S. at 733–34. action may affect listed species or are required to consult on any specific The number, type, timing, location, and critical habitat in a manner or to an actions if those actions may affect listed other details for any activities that may extent not previously considered. species or critical habitat. occur in the plan area mostly are Congress did not address land We propose, therefore, to expand unknown to the action and consulting management plans prepared pursuant to § 402.16(b) to apply likewise to the agencies at the time of consultation on FLPMA in the 2018 Omnibus Act, receipt of new information revealing a plan. except for grant lands under the Oregon effects of the action that may affect By contrast, in the context of project and California Revested Lands Act, 39 listed species or critical habitat in a consultations, the consulting agency Stat. 218, and the Coos Bay Wagon Road manner or to an extent not previously knows specifically where and when the Reconveyed Lands Act, 40 Stat. 1179. considered. Requiring reinitiation on actions are to occur and the details No expiration date was attached to these these completed plans based on new about the types of activities proposed provisions. Accordingly, like the 2019 information of effects of the existing that were unknown at the time of the regulatory exemption from reinitiation plans often results in impractical and consultation on the plan. Moreover, as on the basis of newly listed species or disruptive burdens while resulting in designated critical habitat, this proposal little benefit to listed species or critical part of the environmental baseline, the would exclude from the reinitiation habitat. Generally, specific on-the- consulting agency knows how other requirement any completed land ground actions taken in conformance Federal, State, and private actions have management plan prepared pursuant to with the approved land management affected the species and its critical FLPMA from reinitiation of consultation plan are subject to their own action- habitat and analyzes those impacts on the basis of new information on specific section 7 consultations if those during the project consultations. See 50 effects of the plan, as long as any action actions may affect listed species or CFR 402.02. Significantly, the project taken pursuant to the plan will be critical habitat, and relevant new consultations are not narrowly limited subject to an action-specific section 7 information would be analyzed at that to the effects of the individual action on consultation if that action may affect a time. In these cases, focusing on these the species or its critical habitat but listed species or critical habitat. For the action-specific consultations would include ‘‘all consequences to listed same reasons set forth below as to allow the affected agencies to direct species or critical habitat that are caused National Forest System lands, the their limited resources to those actions by the proposed action, including the Services conclude that these that cause on-the-ground effects to listed consequences of other activities that are instructions may be established on a species or designated critical habitats caused by the proposed action [that] permanent basis. and ensure that the FS and the BLM . . . would not occur but for the After decades of experience fulfill their obligations under section 7, proposed action and it is reasonably cooperating with action agencies across while avoiding unnecessary reinitiation certain to occur.’’ Id. § 402.02. These the Federal Government, we have at the plan level. include effects that may occur later in gained expertise with respect to when For example, if new information time or outside the immediate area reinitiation of consultation is most revealed a higher density of a listed involved in the action. Id.; see also effective in meeting the overall goals of species in a plan area than was known § 402.17. Thus, each section 7 the Act. As a legal matter, as the during the consultation on the land consultation builds on the consultations Department of Justice correctly argued management plan, that new information for previous actions. in Cottonwood, the duty to reinitiate would be considered and incorporated This proposed revision to the consultation does not apply to in future consultations on specific regulations would not change the completed land and resource authorized actions that may affect that approach for subsequent consultations management plans. See, e.g., Forest species and/or its critical habitat. As on specific authorized actions. During Guardians v. Forsgren, 478 F.3d at another example, if, after completion of consultation, the Services and the action 1158–59 (disagreeing with Pacific Rivers consultation on a land management agency are required to use the best Council v. Thomas, 30 F.3d 1050 (9th plan, it was learned that a technique or scientific and commercial data Cir. 1994)). Independently of any such practice that was anticipated to be used available, and this requirement legal considerations, as a policy matter, during subsequent projects is reasonably necessarily encompasses considering similar to reinitiating consultation on a certain to have a greater impact on the new relevant information.
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Proposed Regulatory Revisions intact the Services’ authority to Service’s general authority under the Concerning Permanent Rulemaking as establish a permanent administrative ESA. The Act’s ‘‘notwithstanding’’ to National Forest System Lands remedy to such problems. language signifies that no matter how a The proposed revisions would remove First, the ESA sets forth a general duty court may read the ESA or section 7 the existing regulation’s timing to consult on agency action and broadly requirements in general, no consultation authorizes the Services to determine the limitations concerning National Forest is required on forest plans in the manner in which that duty is carried System lands. To be sure, the 2018 Act’s circumstances specifically addressed by out. See Babbitt v. Sweet Home Chapter instructions will remain in force for the the legislation. The Act therefore does of Communities for a Greater Oregon, time specified by the statute itself. But not preclude the broader administrative 515 U.S. 687, 708 (1995) (‘‘When it while Congress’ legislative solution has adjustment of the underlying enacted the ESA, Congress delegated proven to be protective of species’ regulations proposed here, particularly broad administrative and interpretive interests and workable for all of the given the sweeping delegation of power to the Secretary.’’); 16 U.S.C. rulemaking authority that the ESA agencies involved, it is only a temporary 1533(b)(8) (authorizing ‘‘publication in affords to the Services as a general fix. Therefore, we have decided to the Federal Register of any proposed or matter. See Sweet Home Chapter of invoke our general authority under final regulation which is necessary or Communities for a Greater Oregon, 515 section 7 concerning inter-agency appropriate to carry out the purposes of U.S. at 708 (‘‘When Congress has consultation and issue permanent this Act’’). We also note that while entrusted the Secretary with broad consultation instructions for FS section 7 was enacted in 1973 and discretion, we are especially reluctant to planning efforts, just as we did for the initial ESA regulations were issued in substitute our views of wise policy for BLM in 2019. 1978, no reinitiation regulation was his.’’). As previously noted, in 2018 Congress issued until 1986. Agencies routinely Viewing the Omnibus Act through the statutorily intervened to temporarily revisit their regulations seeking familiar rules of statutory construction, resolve the effects of the Cottonwood improvement and resolving ambiguities. it is clear that nothing is to be added to ruling regarding ESA reinitiation See Nat’l Cable & Telecomm. Ass’n v. what the Omnibus Act’s text states or requirements following critical habitat Brand X internet Servs., 545 U.S. 967, reasonably implies (casus omissus pro designations. The Omnibus Act created 982–83 (2005). The Services’ authority omisso habendus est). That is, a matter a temporary, safe harbor exempting the to clarify and adjust the consultation not covered is to be treated as not FS from reinitiating consultation for procedures is well-supported in the covered. As the Fifth Circuit said with approved land management plans when ESA’s text and case law and is necessary respect to similar safe-harbor a new species is listed or new critical to ensure the ESA’s proper amendments to the Migratory Bird habitat designation occurs. The administration. A permanent solution to Treaty Act, ‘‘[w]hether Congress Omnibus Act also established a resolve conflicting judicial deliberately avoided more broadly permanent exemption from reinitiation interpretations of administrative changing the [statute] or simply chose to for certain lands managed by the BLM. regulations is entirely appropriate and address a discrete problem, the most To recognize these instructions, the within the Service’s authority. that can be said is that Congress did no Services amended the reinitiation Second, the fact that Congress already more than the plain text of the regulations at 50 CFR 402.16 to has enacted a narrow, temporary fix amendment means.’’ United States v. incorporate the Omnibus Act’s does not preclude a permanent Citgo, 801 F.3d 477, 491 (5th Cir. 2015); instructions that reinitiation of administrative solution. Nothing in the see id. (‘‘A single carve-out from the law consultation shall not be required for Omnibus Act’s text suggests a broad cannot mean that the entire coverage of land management plans upon listing of preemptive effect as to the Services’ the MBTA was implicitly and hugely a new species or designation of new general rulemaking authority. More expanded.’’). critical habitat, subject to the time specifically, while 16 U.S.C. Third, a permanent resolution also limitations on this safe-harbor relief that 1604(d)(2)(B) provides that the aligns with the government’s were specified in the Omnibus Act (84 protection afforded by subparagraph (A) longstanding position that the duty to FR 45017, August 27, 2019). The ‘‘shall not apply’’ if certain temporal consult under section 7 is limited to regulatory provisions applicable to limits have been exceeded, affirmative agency actions and is not National Forest System lands reflected subparagraph (A) provides that applicable to completed actions or the Omnibus Act’s rolling sunset of the ‘‘notwithstanding any other provision of agency inaction. The United States’ safe-harbor exemptions from reinitiation law, the Secretary shall not be required 2016 Petition for Certiorari in of consultation. For a National Forest to engage in consultation under this Cottonwood clearly and unequivocally System plan that is outside the time section or any other provision of law stated that ‘‘the Ninth Circuit’s holding limitations that apply to the relief (including section 7 of Public Law 93– that federal agencies must reinitiate afforded by the Omnibus Act, 205 (16 U.S.C. 1536) and § 402.16 of consultation pursuant to section 7 of the reinitiation of consultation is governed title 50, Code of Federal Regulations (or ESA on a completed agency action at by standard ESA statutory and a successor regulation)) with respect to’’ the programmatic level because the regulatory requirements and is not species listings and critical habitat agency retains discretion to authorize subject to the safe harbor afforded by the designations. That ‘‘notwithstanding site-specific projects governed by the Act. any other provision of law’’ provision programmatic action has no basis in the While the Omnibus Act set specific does not change the meaning of the ESA or its implementing regulations.’’ temporal timeframes for its temporary underlying law, and therefore does not Petition for Writ of Certiorari, United safe-harbor exemption of NFS lands, the disturb the preexisting ESA authorities States Forest Service v. Cottonwood Services retain their general ESA section outside its specific instructions. The Environmental Law Center, No. 15–1387 7 authority to establish procedures Omnibus Act’s ‘‘notwithstanding’’ (June 2016). As previously noted, unless governing inter-agency cooperation. language disavows other provisions of expressly stated otherwise, completed Congress’ negotiated outcome of a law to create an independent, self- land management plans do not result in temporary safe-harbor solution to the executing limitation that is self- any immediate on-the-ground effects, problems created by Cottonwood leaves contained and not preemptive of the and all relevant information is
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considered during the separate section 7 comment period provides such an effective or less burdensome in consultations that occur for subsequent opportunity given the proposed rule’s achieving the regulatory objectives.’’ project activities if those actions may limited scope and the other recent Executive Order 13771 affect listed species or critical habitat. rulemaking pertaining to reinitiation The Forest Service’s current planning practices. This proposed rule is an Executive regulations confirm that ‘‘[a] plan does You may submit your comments and Order 13771 ‘‘other’’ action. not authorize projects or activities or materials concerning the proposed rule Regulatory Flexibility Act commit the Forest Service to take by one of the methods listed in action.’’ 36 CFR 219.2(b)(2). Under the Regulatory Flexibility Act ADDRESSES. Comments must be (as amended by the Small Business Further, plan level consultation will submitted to http://www.regulations.gov of course continue to occur when the FS Regulatory Enforcement Fairness Act before 11:59 p.m. (Eastern Time) on the (SBREFA) of 1996; 5 U.S.C. 601 et seq.), proposes to amend or revise a plan. date specified in DATES. We will not Cyclical or periodic consultation aligns whenever a Federal agency is required consider mailed comments that are not to publish a notice of rulemaking for with other Ninth Circuit caselaw such postmarked by the date specified in as California Sportfishing Protection any proposed or final rule, it must DATES. Alliance v. FERC, 472 F.3d 593, 595, prepare, and make available for public 598 (9th Cir. 2006), where the Circuit We will post your entire comment— comment, a regulatory flexibility reviewed a challenge to the Federal including your personal identifying analysis that describes the effect of the Energy Regulatory Commission’s information—on http:// rule on small entities (i.e., small decision not to initiate consultation over www.regulations.gov. If you provide businesses, small organizations, and the ongoing operation of a private personal identifying information in your small government jurisdictions). hydroelectric plant operated under a 30- comment, you may request at the top of However, no regulatory flexibility year license. In that case, FERC had the your document that we withhold this analysis is required if the head of an discretion to institute proceedings to information from public review. agency, or his designee, certifies that the amend an existing license, but the court However, we cannot guarantee that we rule will not have a significant emphasized, that ‘‘[t]he ESA and the will be able to do so. Comments and economic impact on a substantial applicable regulations . . . mandate materials we receive, as well as number of small entities. SBREFA consultation with [the consulting supporting documentation we used in amended the Regulatory Flexibility Act agency] only before an agency takes preparing this proposed rule, will be to require Federal agencies to provide a some affirmative agency action, such as available for public inspection on http:// statement of the factual basis for issuing a license.’’ The court concluded www.regulations.gov. certifying that a rule will not have a that ‘‘the agency action of granting a Required Determinations significant economic impact on a permit is complete,’’ and that the mere substantial number of small entities. We unexercised discretion to modify the Regulatory Planning and Review— certify that, if adopted as proposed, this license for the benefit of listed species Executive Orders 12866 and 13563 proposed rule would not have a significant economic effect on a did not constitute ‘‘action’’ triggering a Executive Order 12866 provides that substantial number of small entities. duty to initiate consultation. the Office of Information and Regulatory A permanent rule addressing Because this rulemaking action Affairs (OIRA) in the Office of programmatic plan consultation will specifically affects only Federal Management and Budget will review all promote predictability for agencies and agencies, no external entities, including significant rules. OIRA has determined the public and allow the FS and BLM any small businesses, small that this proposed rule is significant. to efficiently accomplish their species organizations, or small governments, conservation objectives and land Executive Order 13563 reaffirms the will experience any economic impacts management missions. principles of E.O. 12866 while calling from this rule. for improvements in the nation’s Public Comments regulatory system to promote Unfunded Mandates Reform Act (2 The proposed amendments would predictability, to reduce uncertainty, U.S.C. 1501 et seq.) adjust reinitiation practices addressing and to use the best, most innovative, In accordance with the Unfunded new information supplementing the and least burdensome tools for Mandates Reform Act (2 U.S.C. 1501 et Services’ rulemaking governing achieving regulatory ends. The seq.): reinitiation for critical habitat executive order directs agencies to (a) On the basis of information designations and species listings which consider regulatory approaches that contained in the Regulatory Flexibility was the subject of both legislation and reduce burdens and maintain flexibility Act section above, this proposed rule administrative rulemaking. These and freedom of choice for the public would not ‘‘significantly or uniquely’’ proposed procedural adjustments where these approaches are relevant, affect small governments. This proposed provide clarity and transparency about feasible, and consistent with regulatory rule applies exclusively to Federal how the Secretaries intend to exercise objectives. E.O. 13563 emphasizes agencies. We have determined and their discretion regarding evaluation of further that regulations must be based certify pursuant to the Unfunded new information concerning land on the best available science and that Mandates Reform Act, 2 U.S.C. 1502, management plans under section 7(a)(2) the rulemaking process must allow for that this rule would not impose a cost of the ESA. As the ESA does not provide public participation and an open of $100 million or more in any given a specific public comment period for exchange of ideas. We have developed year on local or State governments or issuance of inter-agency consultation this rule in a manner consistent with private entities. A Small Government regulations, generally speaking, any these requirements. This proposed rule Agency Plan is not required. As otherwise applicable notice requirement is consistent with Executive Order explained above, small governments will be satisfied if it affords interested 13563, and in particular with the would not be affected because the persons a reasonable and meaningful requirement of retrospective analysis of proposed rule would not place opportunity to participate in the existing rules, designed ‘‘to make the additional requirements on any city, rulemaking process. The 30-day agency’s regulatory program more county, or other local municipalities.
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(b) This proposed rule would not NOAA Administrative Order (NAO) have a significant effect on the human produce a Federal mandate on State, 218–8 (April 2012), we are considering environment and are, therefore, local, or Tribal governments or the possible effects of this proposed rule on categorically excluded from the private sector of $100 million or greater federally recognized Indian Tribes. The requirement for completion of an in any year; that is, this proposed rule Services have reached a preliminary environmental assessment or is not a ‘‘significant regulatory action’’’ conclusion that the proposed changes to environmental impact statement: under the Unfunded Mandates Reform these implementing regulations are ‘‘Policies, directives, regulations, and Act. This proposed rule would impose general in nature and do not directly guidelines: that are of an administrative, no obligations on State, local, or Tribal affect specific species or Tribal lands. financial, legal, technical, or procedural governments. These proposed regulations clarify the nature.’’ NOAA’s NEPA procedures processes for reinitiation of consultation include a similar categorical exclusion Takings (E.O. 12630) and directly affect only the Services and for ‘‘preparation of policy directives, In accordance with Executive Order Federal land-managing agencies. rules, regulations, and guidelines of an 12630, this proposed rule would not Therefore, we conclude that these administrative, financial, legal, have significant takings implications. regulations do not have ‘‘Tribal technical, or procedural nature.’’ This proposed rule would not pertain to implications’’ under section 1(a) of E.O. (Categorical Exclusion G7, at CM ‘‘taking’’ of private property interests, 13175, and, formal government-to- Appendix E). nor would it directly affect private government consultation is not required We are continuing to consider the property. A takings implication by the Executive Order and related extent to which this proposed regulation assessment is not required because this policies of the Departments of the may have a significant impact on the proposed rule (1) would not effectively Interior and Commerce. We will human environment or fall within one compel a property owner to suffer a continue to collaborate with Tribes on of the categorical exclusions. We invite physical invasion of property and (2) issues related to federally listed species the public to comment on these or any would not deny all economically and their habitats and work with them other aspects of NEPA compliance that beneficial or productive use of the land as we implement the provisions of the may be needed for these revisions. We or aquatic resources. This proposed rule Act. See Joint Secretarial Order 3206 will comply with NEPA before would not present a barrier to all (‘‘American Indian Tribal Rights, finalizing this regulation. reasonable and expected beneficial use Federal-Tribal Trust Responsibilities, of private property. and the Endangered Species Act’’, June Energy Supply, Distribution or Use (E.O. 5, 1997). 13211) Federalism (E.O. 13132) Paperwork Reduction Act Executive Order 13211 requires In accordance with Executive Order agencies to prepare Statements of 13132, we have considered whether this This proposed rule does not contain Energy Effects when undertaking certain proposed rule would have significant any new collections of information that actions. The proposed revised federalism effects and have determined require approval by the OMB under the regulations are not expected to affect that a federalism summary impact Paperwork Reduction Act. This energy supplies, distribution, and use, statement is not required. This proposed proposed rule will not impose and the Administrator of OIRA has not rule pertains only to factors concerning recordkeeping or reporting requirements otherwise designated it as a significant reinitiation of consultation for Federal on State, local, or Tribal governments, energy action. Accordingly, no agencies under the Endangered Species individuals, businesses, or Statement of Energy Effects is required. Act and would not have substantial organizations. An agency may not direct effects on the States, on the conduct or sponsor, and a person is not Clarity of the Rule relationship between the Federal required to respond to, a collection of We are required by Executive Orders Government and the States, or on the information unless it displays a 12866 and 12988 and by the distribution of power and currently valid OMB control number. Presidential Memorandum of June 1, responsibilities among the various National Environmental Policy Act 1998, to write all rules in plain levels of government. language. This means that each rule we We are analyzing this proposed publish must: Civil Justice Reform (E.O. 12988) regulation in accordance with the (1) Be logically organized; This proposed rule would clarify criteria of the National Environmental (2) Use the active voice to address responsibilities for reinitiation of Policy Act (NEPA), the Department of readers directly; consultation under the Endangered the Interior regulations on (3) Use clear language rather than Species Act. This proposed rule would Implementation of the National jargon; not unduly burden the judicial system Environmental Policy Act (43 CFR (4) Be divided into short sections and and meets the applicable standards 46.10–46.450), the Department of the sentences; and provided in sections 3(a) and 3(b)(2) of Interior Manual (516 DM 8), the NOAA (5) Use lists and tables wherever Executive Order 12988. Administrative Order 216–6A, and the possible. NOAA Companion Manual (CM), If you believe that we have not met Government-to-Government ‘‘Policy and Procedures for Compliance these requirements, send us comments Relationship With Tribes with the National Environmental Policy by one of the methods listed in In accordance with Executive Order Act and Related Authorities’’ (effective ADDRESSES. To better help us revise the 13175, ‘‘Consultation and Coordination January 13, 2017). rule, your comments should be as with Indian Tribal Governments,’’ the As a result, we anticipate that the specific as possible. For example, you Department of the Interior’s manual at categorical exclusion found at 43 CFR should tell us the numbers of the 512 DM 2, and the Department of 46.210(i) applies to the proposed sections or paragraphs of the rule that Commerce (DOC) Tribal Consultation regulation changes. At 43 CFR 46.210(i), are not clearly written, which sections and Coordination Policy (May 21, 2013), the Department of the Interior has found or sentences are too long, the sections DOC Departmental Administrative that the following categories of actions where you believe lists or tables would Order (DAO) 218–8 (April 2012), and would not individually or cumulatively be useful, etc.
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Authority Authority: 16 U.S.C. 1531 et seq. a manner or to an extent not previously We issue this proposed rule under the ■ 2. Amend § 402.16 by revising considered, provided that any authority of the Endangered Species paragraph (b) to read as follows: authorized actions for which the new Act, as amended (16 U.S.C. 1531 et information is relevant will be seq.). § 402.16 Reinitiation of consultation. addressed through a separate action- * * * * * specific consultation. List of Subjects in 50 CFR Part 402 (b) After an agency approves a land Endangered and threatened species. management plan prepared pursuant to George Wallace, Assistant Secretary for Fish and Wildlife and Proposed Regulation Promulgation 43 U.S.C. 1712 or 16 U.S.C. 1604, the agency need not reinitiate consultation Parks, Department of the Interior. For the reasons set out in the on that plan upon: Christopher Wayne Oliver, preamble, we propose to amend subpart (1) The listing of a new species or Assistant Administrator for Fisheries, B of part 402, subchapter A of chapter designation of new critical habitat, National Marine Fisheries Service, National IV, title 50 of the Code of Federal provided that any authorized actions Oceanic and Atmospheric Administration. Regulations, as set forth below: that may affect the newly listed species [FR Doc. 2021–00366 Filed 1–11–21; 8:45 am] PART 402—INTERAGENCY or designated critical habitat will be BILLING CODE 4333–15–P COOPERATION—ENDANGERED addressed through a separate action- SPECIES ACT OF 1973, AS AMENDED specific consultation; or (2) The receipt of new information ■ 1. The authority citation for part 402 revealing effects of the action that may continues to read as follows: affect listed species or critical habitat in
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Notices Federal Register Vol. 86, No. 7
Tuesday, January 12, 2021
This section of the FEDERAL REGISTER Individuals who use TDD may call the the comments, and show how the contains documents other than rules or Federal Relay Service (FRS) at 1–800– resolution led to the closure. The proposed rules that are applicable to the 877–8339, 24 hours a day, every day of response to comments on the proposed public. Notices of hearings and investigations, the year, including holidays. order, justification for the final order, committee meetings, agency decisions and and the issuance of the final forest order rulings, delegations of authority, filing of SUPPLEMENTARY INFORMATION: petitions and applications and agency will all be posted on the following I. Advance Notice and Public Comment website: www.fs.usda.gov/main/ statements of organization and functions are Procedures examples of documents appearing in this custergallatin and www.fs.usda.gov/ section. Section 4103 of the John D. Dingell, about-agency/regulations-policies. Jr., Conservation, Management, and II. Background and Need for Forest Recreation Act (Pub. L. 116–9) requires Order DEPARTMENT OF AGRICULTURE that the Secretary of Agriculture, acting through the Chief of the Forest Service, This permanent shooting closure is Forest Service provide public notice and comment needed to address potentially imminent before permanently or temporarily harm to human health and safety Second Notice of Intent To Issue closing any National Forest System resulting from the discharge of firearms Forest Order Closing Areas Near lands to hunting, fishing, or recreational in these small areas. Bow hunting/ Beattie Gulch Trailhead and McConnell shooting. Section 4103 applies to the shooting would still be allowed. These Fishing Access North and West of proposed forest order closing areas near areas total 23 acres in size collectively, Gardiner, Montana to the Discharge of Beattie Gulch is 18 acres and McConnell Firearms Beattie Gulch and McConnell Fishing Access north and west of Gardiner, Fishing access totals 5 acres. The size of AGENCY: Forest Service, USDA. Montana to the discharge of firearms. both areas has been limited to the ACTION: Notice. On June 17, 2020, the Forest Service minimum necessary to protect public published advanced notice in the health and safety. The Beattie Gulch SUMMARY: The U.S. Department of Federal Register of the 60-day public area and McConnell Fishing Access Agriculture, Forest Service provides this comment period beginning on June 24, permanent closures are needed to Second Notice of Intent to issue an 2020, for this proposed forest order. The address concerns resulting from the order closing the Beattie Gulch Forest Service now provides this second discharge of firearms toward developed Trailhead and McConnell Fishing advance notice that it is reopening the facilities including the Old Yellowstone Access areas north and west of public comment period for this Trail South, private property and Gardiner, Montana to the discharge of proposed forest order for 60 additional residences, the Yellowstone River, a firearms. The purpose of the Second days. The purpose of reopening this powerline, and Montana State Highway Notice is to provide a correct mailing public comment period is to provide the 89. address for comments submitted by mail correct mailing address for comments The proposed forest order and the and reopen the public comment period submitted by mail. The public notice justification for the forest order are for this proposed forest order for an and comment process in section available on the Forest Service’s additional 60 days. All comments 4103(b)(2) requires the Secretary to websites at www.fs.usda.gov/main/ submitted electronically during the publish a notice of intent, in the Federal custergallatin and www.fs.usda.gov/ previous comment 60-day period Register, of the proposed closure in about-agency/regulations-policies. beginning on June 24, 2020, remain advance of the public comment period Tina Johna Terrell, valid and need not be resubmitted. All for the closure. This notice meets the comments submitted by mail during the Associate Deputy Chief, National Forest requirement to publish a notice of intent System. previous comment period should be in the Federal Register in advance of resubmitted to ensure consideration. [FR Doc. 2021–00394 Filed 1–11–21; 8:45 am] the public comment period. BILLING CODE 3411–15–P DATES: The 60-day public comment Following the notice of intent, section period will begin January 13, 2021. The 4103(b)(2) requires an opportunity for notice of the opportunity for public public comment. Because the proposed DEPARTMENT OF AGRICULTURE comment, including directions on how forest order would permanently close to submit comments, is posted at areas near Beattie Gulch and McConnell Rural Housing Service www.fs.usda.gov/main/custergallatin Fishing Access, north and west of and www.fs.usda.gov/about-agency/ Gardiner, Montana to the discharge of Notice of Request for Revision of a regulations-policies. firearms, the public comment period Currently Approved Information ADDRESSES: The proposed forest order must be not less than 60 days. The Collection and the justification for the forest order solicitation for public comment will be AGENCY: Rural Housing Service, USDA. are available on the Forest Service’s posted on www.fs.usda.gov/main/ ACTION: Proposed collection; comments website at www.fs.usda.gov/main/ custergallatin and www.fs.usda.gov/ requested. custergallatin and www.fs.usda.gov/ about-agency/regulations-policies. about-agency/regulations-policies. Section 4103(b)(2) requires the SUMMARY: In accordance with the FOR FURTHER INFORMATION CONTACT: Secretary to respond to public Paperwork Reduction Act of 1995, this Mike Thom, District Ranger, 406–848– comments received on the proposed notice announces the Rural Housing 7375, extension 22, michael.thom@ forest order, explain how the Secretary Service (RHS), Rural Business Service usda.gov. resolved any significant issues raised by (RBS), and Rural Utilities Service (RUS)
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intention to request a revision for a are being provided to beneficiaries on DEPARTMENT OF COMMERCE currently approved information an equal opportunity basis. Office of the Under Secretary for collection in support of compliance Estimate of Burden: Public reporting Economic Affairs with Civil Rights laws. burden for this collection of information DATES: Comments on this notice must be is estimated to average 7.5 hours per Advisory Committee on Data for received by March 15, 2021 to be response. Evidence Building assured of consideration. Respondents: Recipients of RBS, RHS, AGENCY: Office of the Under Secretary FOR FURTHER INFORMATION CONTACT: and RUS Federal financial assistance, for Economic Affairs, Department of Sharese C. Paylor, Ed.D, Director, Rural loan, and loan guarantee programs. Development, Civil Rights Staff, U.S. Commerce. Department of Agriculture, STOP 0703, Estimated Number of Respondents: ACTION: Notice of public meetings. 1400 Independence Ave. SW, 27,000. Washington, DC 20250–0703, Estimated Number of Responses per SUMMARY: The Office of the Under Telephone (202) 692–0097 (voice) or Respondent: 2.72. Secretary for Economic Affairs is 800.877.8339 (Federal Relay). providing notice of three upcoming Estimated Number of Responses: meetings of the Advisory Committee on SUPPLEMENTARY INFORMATION: 73,559. Data for Evidence Building (ACDEB or Title: 7 CFR 1901–E, Civil Rights Estimated Total Annual Burden on Committee). These will constitute the Compliance Requirements. Respondents: 550,276. second, third, and fourth meeting of the OMB Number: 0575–0018. Copies of this information collection Committee in support of its charge to Expiration Date of Approval: May 30, review, analyze, and make can be obtained from Kimble Brown, 2021. recommendations on how to promote Regulations and Paperwork Type of Request: Revision of a the use of Federal data for evidence Currently Approved Information Management Branch, at (202) 720–6780. building purposes. At the conclusion of Collection. Comments the Committee’s first and second year, it Abstract: The information collection will submit to the Director of the Office under OMB Number 0575–0018 enables Comments are invited on: (a) Whether of Management and Budget, Executive the RHS, RBS, and RUS, to effectively the proposed collection of information Office of the President, an annual report monitor a recipient’s compliance with is necessary for the proper performance on the activities and findings of the the civil rights laws, and to determine of the functions of the Rural Committee. This report will also be whether or not service and benefits are Development, including whether the made available to the public. being provided to beneficiaries on an information will have practical utility; DATES: February 19, 2021; March 19, equal opportunity basis. The RBS, RHS, (b) the accuracy of the Agencies’ 2021; April 23, 2021. The meetings will and RUS are required to provide Federal estimate of the burden of the proposed begin at approximately 9:00 a.m. and financial assistance through its housing collection of information including the adjourn at approximately 12:00 p.m. and community and business programs validity of the methodology and (ET). on an equal opportunity basis. The laws assumptions used; (c) ways to enhance ADDRESSES: Those interested in implemented in 7 CFR part 1901, the quality, utility and clarity of the subpart E, require the recipients of RBS, attending the Committee’s public information to be collected; and (d) RHS, and RUS Federal financial meetings are requested to RSVP to ways to minimize the burden of the assistance to collect various types of [email protected] one week prior to collection of information on those who information, including information on each meeting. Agendas, background participants in certain of these agencies’ are to respond, including through the material, and meeting links will be programs, by race, color, and national use of appropriate automated, accessible 24 hours prior to each origin. electronic, mechanical, or other meeting at www.bea.gov/evidence. The information collected and technological collection techniques or Members of the public who wish to maintained by the recipients of certain other forms of information technology. submit written input for the programs from RBS, RHS, and RUS is Comments may be sent to Jeanne Jacobs, Committee’s consideration are used internally by these agencies for Regulations and Paperwork welcomed to do so via email to monitoring compliance with the civil Management Branch, Support Services [email protected]. Additional rights laws and regulations. This Division, Rural Development U.S. opportunities for public input will be information is made available to USDA Department of Agriculture, STOP 0742, forthcoming. officials, officials of other Federal Washington, DC 20250–0742. All The safety and well-being of the agencies, and to Congress for reporting responses to this notice will be public, committee members, and our purposes. Without the required summarized and included in the request staff are our top priority. In light of information, RBS, RHS, RUS and its for OMB approval. All comments will current travel restrictions and social- recipients will lack the necessary also become a matter of public record. distancing guidelines resulting from the documentation to demonstrate that their COVID–19 outbreak, each meeting will programs are being administered in a Elizabeth Green, be held virtually. nondiscriminatory manner, and in full Acting Administrator, Rural Housing Service. FOR FURTHER INFORMATION CONTACT: compliance with the civil rights laws. [FR Doc. 2021–00333 Filed 1–11–21; 8:45 am] Gianna Marrone, Program Analyst, U.S. In addition, the RBS, RHS, RUS and BILLING CODE 3410–XV–P Department of Commerce, 4600 Silver their recipients would be vulnerable in Hill Road (BE–64), Suitland, MD 20746; lawsuits alleging discrimination in the phone (301) 278–9282; email Evidence@ affected programs of these agencies, and bea.gov. would be without appropriate data and SUPPLEMENTARY INFORMATION: The documentation to defend themselves by Foundations for Evidence-Based demonstrating that services and benefits Policymaking Act (Pub. L. 115–435,
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Evidence Act 101(a)(2) (5 U.S.C. 315 Dated: January 6, 2021. DEPARTMENT OF COMMERCE (a)), establishes the Committee and its Gianna Marrone, charge. It specifies that the Chief Alternate Designated Federal Official, U.S. Bureau of Industry and Security Statistician of the United States shall Department of Commerce. Agency Information Collection serve as the Chair and other members [FR Doc. 2021–00380 Filed 1–11–21; 8:45 am] Activities; Submission to the Office of shall be appointed by the Director of the BILLING CODE 3510–MN–P Management and Budget (OMB) for Office of Management and Budget Review and Approval; Comment (OMB). The Act prescribes a DEPARTMENT OF COMMERCE Request; Application for NATO membership balance plan that includes: International Bidding One agency Chief Information Officer; Foreign-Trade Zones Board one agency Chief Privacy Officer; one AGENCY: Bureau of Industry and agency Chief Performance Officer; three Security, Commerce. [S–03–2021] members who are agency Chief Data ACTION: Notice of information collection, Officers; three members who are agency Foreign-Trade Zone 266—Madison, request for comment. Evaluation Officers; and three members Wisconsin; Application for Subzone; SUMMARY: The Department of who are agency Statistical Officials who Coating Place, Inc.; Verona, Wisconsin are members of the Interagency Council Commerce, in accordance with the Paperwork Reduction Act of 1995 for Statistical Policy established under An application has been submitted to (PRA), invites the general public and section 3504(e)(8) of title 44. the Foreign-Trade Zones (FTZ) Board by other Federal agencies to comment on Dane County, Wisconsin, grantee of FTZ Additionally, at least 10 members are proposed, and continuing information 266, requesting subzone status for the to be representative of state and local collections, which helps us assess the facility of Coating Place, Inc. (Coating governments and nongovernmental impact of our information collection Place), located in Verona, Wisconsin. stakeholders with expertise in requirements and minimize the public’s The application was submitted pursuant government data policy, privacy, reporting burden. The purpose of this to the provisions of the Foreign-Trade technology, transparency policy, notice is to allow for 60 days of public Zones Act, as amended (19 U.S.C. 81a– evaluation and research methodologies, comment preceding submission of the 81u), and the regulations of the FTZ and other relevant subjects. Committee collection to OMB. Board (15 CFR part 400). It was formally members serve for a term of two years. docketed on January 6, 2021. DATES: To ensure consideration, Following a public solicitation and comments regarding this proposed review of nominations, the Director of A notification of proposed production information collection must be received OMB appointed members per this activity has been submitted and is being on or before March 15, 2021. balance plan and information on the processed under 15 CFR 400.37 (Doc. B– 62–2020). The proposed subzone would ADDRESSES: Interested persons are membership can be found at invited to submit comments by email to www.bea.gov/evidence. Any member be subject to the existing activation limit of FTZ 266. Mark Crace, IC Liaison, Bureau of appointed to fill a vacancy occurring Industry and Security, at mark.crace@ before the expiration of the term for In accordance with the FTZ Board’s bis.doc.gov or to PRAcomments@ which the member’s predecessor was regulations, Elizabeth Whiteman and doc.gov). Do not submit Confidential appointed shall be appointed only for Juanita Chen of the FTZ Staff are Business Information or otherwise the remainder of that term. designated examiners to review the sensitive or protected information. application and make recommendations FOR FURTHER INFORMATION CONTACT: The ACDEB is interested in the to the Executive Secretary. public’s input on the issues it will Requests for additional information or consider, and requests that interested Public comment is invited from specific questions related to collection parties submit statements to the ACDEB interested parties. Submissions shall be activities should be directed to Mark addressed to the FTZ Board’s Executive via email to [email protected]. Please Crace, IC Liaison, Bureau of Industry Secretary and sent to: [email protected]. The use the subject line ‘‘ACDEB Meeting and Security, phone 202–482–8093 or closing period for their receipt is Public Comment.’’ All statements will by email at [email protected]. February 22, 2021. Rebuttal comments SUPPLEMENTARY INFORMATION: be provided to the members for their in response to material submitted consideration and will become part of during the foregoing period may be I. Abstract the Committee’s records. Additional submitted during the subsequent 15-day This new proposed information opportunities for public input will be period to March 8, 2021. forthcoming as the Committee’s work collection replaces previously approved progresses. A copy of the application will be generic collection 0694–0128. All U.S. available for public inspection in the firms desiring to participate in the ACDEB Committee meetings are open, ‘‘Reading Room’’ section of the FTZ NATO International Competitive and the public is invited to attend and Board’s website, which is accessible via Bidding (ICB) process under the NATO observe. Those planning to attend are www.trade.gov/ftz. Security Investment Program (NSIP) asked to RSVP to [email protected]. For further information, contact must be certified as technically, The call-in number, access code, and Elizabeth Whiteman at financially and professionally meeting link will be posted 24 hours [email protected] or competent. The U.S. Department of prior to each meeting on www.bea.gov/ Juanita Chen at [email protected]. Commerce provides the Declaration of evidence. The meetings are accessible to Eligibility that certifies these firms. Any people with disabilities. Requests for Dated: January 7, 2021. such firm seeking certification is foreign language interpretation or other Andrew McGilvray, required to submit a completed Form auxiliary aids should be directed to Executive Secretary. BIS–4023P along with a current annual Gianna Marrone at [email protected] [FR Doc. 2021–00436 Filed 1–11–21; 8:45 am] financial report and a resume of past two weeks prior to each meeting. BILLING CODE 3510–DS–P projects in order to become certified and
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placed on the Consolidated List of public record. We will include or safmc.net/safmc-meetings/public- Eligible Bidders. summarize each comment in our request hearings-scoping-meetings/. The to OMB to approve this ICR. Before scoping meeting on February 8, 2021 II. Method of Collection including your address, phone number, will begin at 5 p.m. and the scoping Applications are submitted to the U.S. email address, or other personal meeting on February 9, 2021 will begin Department of Commerce’s Office of identifying information in your at 9 a.m. Registration for the webinars Strategic Industries and Economic comment, you should be aware that is required. Registration information, a Security, Defense Programs Division your entire comment—including your copy of the Public Scoping Document, where the contents are reviewed for personal identifying information—may an online public comment form and any completeness and accuracy by the be made publicly available at any time. additional information as needed will NATO Program Specialist. The While you may ask us in your comment be posted on the Council’s website at application is a one-time effort. The to withhold your personal identifying https://safmc.net/safmc-meetings/ information provided on the BIS–4023P information from public review, we public-hearings-scoping-meetings/ as it form is used to certify the U.S. firm and cannot guarantee that we will be able to becomes available. Public scoping place it in the bidders list database. BIS do so. comments are due by 5 p.m. on has developed a form-fillable .PDF February 10, 2021. version of the BIS–4023P to enable Sheleen Dumas, electronic submission of this form. The Department PRA Clearance Officer, Office of Amendment 10 to the Coral, Coral Reef form is available at the following URL: the Chief Information Officer, Commerce and Live Hard Bottom Habitat FMP Department. http://www.bis.doc.gov/index.php/ other-areas/strategic-industries-and- [FR Doc. 2021–00449 Filed 1–11–21; 8:45 am] The draft amendment currently economic-security-sies/nato-related- BILLING CODE 3510–33–P addresses a request from the rock business-opportunities. shrimp industry to create a Shrimp Fishery Access Area (SFAA) along the Completed applications and DEPARTMENT OF COMMERCE eastern boundary of the northern supporting documentation may be extension of the Oculina Bank Coral submitted electronically via email. National Oceanic and Atmospheric HAPC to allow rock shrimp trawling III. Data Administration and access to historic rock shrimp OMB Control Number: 0694–XXXX. [RTID 0648–XA753] fishing grounds. Vessels fishing for rock Form Number(s): BIS–4023P. shrimp in the South Atlantic region are South Atlantic Fishery Management required to carry approved Vessel Type of Review: New; Regular Council; Public Hearings Monitoring Systems (VMS) to harvest or submission. possess rock shrimp. Establishing a Affected Public: Business or other for- AGENCY: National Marine Fisheries SFAA would allow access to the area at profit organizations. Service (NMFS), National Oceanic and times where the species is found Estimated Number of Respondents: Atmospheric Administration (NOAA), slightly west of the existing boundary 50. Commerce. while retaining the integrity of the Estimated Time per Response: 1 hour. ACTION: Notice of public hearings. eastern boundary of the Oculina Bank Estimated Total Annual Burden Coral HAPC, maintaining the Hours: 50. SUMMARY: The South Atlantic Fishery prohibition on all other bottom tending Estimated Total Annual Cost to Management Council (Council) will gear. Public: 0. hold a series of public scoping meetings Respondent’s Obligation: Voluntary. via webinar pertaining to Amendment During the scoping meetings, Council Legal Authority: Section 401 (10) of 10 to the Coral, Coral Reef and Live staff will present an overview of the Executive order 12656 (November 18, Hard Bottom Habitat Fishery amendment and will be available for 1988), 15 U.S.C. 1512. Management Plan (FMP). The informal discussions and to answer amendment addresses establishing a questions via webinar. Members of the IV. Request for Comments Shrimp Fishery Access Area along the public will have an opportunity to go on We are soliciting public comments to eastern border of the northern extension record to record their comments for permit the Department/Bureau to: (a) of the Oculina Bank Coral Habitat Area consideration by the Council. Evaluate whether the proposed of Particular Concern (HAPC). Special Accommodations information collection is necessary for DATES: The public hearings will be held the proper functions of the Department, via webinar on February 8 and 9, 2021. These hearings are physically including whether the information will accessible to people with disabilities. ADDRESSES: have practical utility; (b) Evaluate the Requests for auxiliary aids should be Council address: South Atlantic accuracy of our estimate of the time and directed to the Council office (see Fishery Management Council, 4055 cost burden for this proposed collection, ADDRESSES) 5 days prior to the meeting. Faber Place Drive, Suite 201, N including the validity of the Charleston, SC. 29405 Note: The times and sequence specified in methodology and assumptions used; (c) this agenda are subject to change. Evaluate ways to enhance the quality, FOR FURTHER INFORMATION CONTACT: Kim utility, and clarity of the information to Iverson, Public Information Officer, Authority: 16 U.S.C. 1801 et seq. be collected; and (d) Minimize the SAFMC; phone: (843) 571–4366 or toll Dated: January 7, 2021. reporting burden on those who are to free: (866) SAFMC–10; fax: (843) 769– respond, including the use of automated 4520; email: [email protected]. Rey Israel Marquez, collection techniques or other forms of SUPPLEMENTARY INFORMATION: The Acting Deputy Director, Office of Sustainable information technology. scoping meetings will be conducted via Fisheries, National Marine Fisheries Service. Comments that you submit in webinar and accessible via the internet [FR Doc. 2021–00419 Filed 1–11–21; 8:45 am] response to this notice are a matter of from the Council’s website at https:// BILLING CODE 3510–22–P
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DEPARTMENT OF COMMERCE monitoring needs. The product of the DEPARTMENT OF COMMERCE Review Workshop is an Assessment National Oceanic and Atmospheric Summary documenting panel opinions National Oceanic and Atmospheric Administration regarding the strengths and weaknesses Administration of the stock assessment and input data. [RTID 0648–XA764] Review of Nomination for Lake Erie Participants for SEDAR Workshops are Quadrangle National Marine Sanctuary Fisheries of the Gulf of Mexico; appointed by the Gulf of Mexico, South Southeast Data, Assessment, and Atlantic, and Caribbean Fishery AGENCY: Office of National Marine Review (SEDAR); Public Meeting Management Councils and NOAA Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and AGENCY: National Marine Fisheries Fisheries Southeast Regional Office, Atmospheric Administration (NOAA), Service (NMFS), National Oceanic and HMS Management Division, and Department of Commerce (DOC). Atmospheric Administration (NOAA), Southeast Fisheries Science Center. Commerce. Participants include data collectors and ACTION: Notice; request for written comments. ACTION: Notice of SEDAR 72 Workshop database managers; stock assessment scientists, biologists, and researchers; for Gulf of Mexico Gag Grouper. SUMMARY: The Office of National Marine constituency representatives including Sanctuaries of the National Oceanic and SUMMARY: The SEDAR 72 assessment fishermen, environmentalists, and Atmospheric Administration is process of Gulf of Mexico gag grouper NGO’s; International experts; and staff requesting written comments to will consist of a series of data and of Councils, Commissions, and state and facilitate ONMS’ five year review of the assessment webinars. See federal agencies. nomination for the Lake Erie SUPPLEMENTARY INFORMATION. The items of discussion during the Quadrangle National Marine Sanctuary DATES: The SEDAR 72 Gag Grouper Workshop are as follows: (NMS). In particular, NOAA is Workshop will be held via webinar requesting relevant information as it • Panelists will review the data sets February 9, 2021 through February 11, pertains to its evaluation criteria for being considered for the assessment and 2021, from 9 a.m. to 1 p.m., Eastern each inclusion in the inventory (these criteria discuss initial modeling efforts. day. are detailed at https:// ADDRESSES: Although non-emergency issues not nominate.noaa.gov/guide.html). In this Meeting address: The meeting will be contained in this agenda may come five year review, NOAA will pay held via webinar. The webinar is open before this group for discussion, those particular attention to any new to members of the public. Those issues may not be the subject of formal information about the nomination’s interested in participating should action during these meetings. Action resources, changes to any threats contact Julie A. Neer at SEDAR (see FOR will be restricted to those issues towards these resources, and any FURTHER INFORMATION CONTACT) to specifically identified in this notice and updates to the management framework request an invitation providing webinar any issues arising after publication of of the area. NOAA will also assess the access information. Please request this notice that require emergency continuity and breadth of community- webinar invitations at least 24 hours in action under section 305(c) of the based support for the nomination. advance of each webinar. Magnuson-Stevens Fishery NOAA has provided the original SEDAR address: 4055 Faber Place Conservation and Management Act, nominating party an opportunity to Drive, Suite 201, North Charleston, SC provided the public has been notified of share its views on these same questions. 29405. the intent to take final action to address Following this information gathering FOR FURTHER INFORMATION CONTACT: Julie the emergency. and internal analysis, NOAA will make A. Neer, SEDAR Coordinator; (843) 571– a final determination on whether or not 4366; email: [email protected]. Special Accommodations the Lake Erie Quadrangle NMS SUPPLEMENTARY INFORMATION: The Gulf nomination will remain in the inventory These meetings are physically of Mexico, South Atlantic, and for another five year period. Caribbean Fishery Management accessible to people with disabilities. DATES: Written comments must be Councils, in conjunction with NOAA Requests for sign language received by February 11, 2021. Fisheries and the Atlantic and Gulf interpretation or other auxiliary aids ADDRESSES: Comments may be States Marine Fisheries Commissions should be directed to the Council office submitted by the following method: have implemented the Southeast Data, (see ADDRESSES) at least 5 business days Federal eRulemaking Portal: https:// Assessment and Review (SEDAR) prior to each workshop. www.regulations.gov. Submit electronic process, a multi-step method for Note: The times and sequence specified in comments via the Federal eRulemaking determining the status of fish stocks in this agenda are subject to change. Portal with Docket Number NOAA– the Southeast Region. SEDAR is a multi- NOS–2020–0167. step process including: (1) Data Authority: 16 U.S.C 1801 et seq. Instructions: All comments received Workshop, (2) a series of assessment Dated: January 7, 2021. are a part of the public record. All webinars, and (3) a Review Workshop. personal identifying information (for Rey Israel Marquez, The product of the Data Workshop is a example, name and address) voluntarily report that compiles and evaluates Acting Deputy Director, Office of Sustainable submitted by the commenter may be potential datasets and recommends Fisheries, National Marine Fisheries Service. publicly accessible. Do not submit which datasets are appropriate for [FR Doc. 2021–00420 Filed 1–11–21; 8:45 am] confidential business information or assessment analyses. The assessment BILLING CODE 3510–22–P otherwise sensitive or protected webinars produce a report that describes information. NOAA will accept the fisheries, evaluates the status of the anonymous comments (enter N/A in the stock, estimates biological benchmarks, required fields to remain anonymous). projects future population conditions, FOR FURTHER INFORMATION CONTACT: and recommends research and Ellen Brody, Great Lakes Regional
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Coordinator, 4840 South State Road, Authority: 16 U.S.C. 1431 et seq. Amendment 50 to the Snapper Grouper Ann Arbor, MI 48108 or at ellen.brody@ John Armor, FMP noaa.gov, 734–741–2270. Director, Office of National Marine The Council must adjust catch levels SUPPLEMENTARY INFORMATION: Sanctuaries, National Ocean Service, for red porgy in response to the most National Oceanic and Atmospheric recent stock assessment for the species Background Information Administration. in the region (SEDAR 60 2020). The [FR Doc. 2020–29176 Filed 1–11–21; 8:45 am] stock assessment results indicated the In 2014, NOAA issued a final rule BILLING CODE 3510–NK–P stock continues to be overfished and is establishing the sanctuary nomination undergoing overfishing. Consequently, process (SNP), which details how catch levels must be adjusted based on communities may submit nominations DEPARTMENT OF COMMERCE the acceptable biological catch to NOAA for consideration of national recommended by the South Atlantic marine sanctuary designation (79 FR National Oceanic and Atmospheric Council’s Scientific and Statistical 33851). NOAA moves successful Administration Committee (SSC) and the rebuilding nominations to an inventory of areas schedule must be revised. In addition, that could be considered for national [RTID 0648–XA794] the Council is considering modifications marine sanctuary designation. The final to sector allocations, accountability rule establishing the SNP included a South Atlantic Fishery Management measures, and commercial and five-year limit on any nomination added Council; Public Meetings recreational management measures to to the inventory that NOAA does not end overfishing and rebuild the red AGENCY: National Marine Fisheries advance for designation. porgy stock. Service (NMFS), National Oceanic and During the scoping meetings, Council In November 2019, NOAA issued a Atmospheric Administration (NOAA), staff will present an overview of the notice (84 FR 61546) to clarify Commerce. amendment and will be available for procedures for evaluating and updating ACTION: Notice of scoping meetings. informal discussions and to answer a nomination as it approaches the five- questions via webinar. Members of the year mark on the inventory of areas that SUMMARY: The South Atlantic Fishery public will have an opportunity to go on could be considered for national marine Management Council (Council) will record to provide their comments for sanctuary designation. The nomination hold a series of scoping meetings via consideration by the Council. for Lake Erie Quadrangle NMS was webinar pertaining to Amendment 50 to Special Accommodations accepted to the national inventory on the Fishery Management Plan for the February 22, 2016, and is therefore Snapper Grouper Fishery of the South These meetings are physically scheduled to expire on February 22, Atlantic Region. The amendment accessible to people with disabilities. 2021. The full nomination can be found addresses catch levels, rebuilding plan, Requests for auxiliary aids should be at https://nominate.noaa.gov/ sector allocations, accountability directed to the Council office (see nominations/. measures, and management measures ADDRESSES) 5 days prior to the meeting. NOAA is not proposing to designate for red porgy. Note: The times and sequence specified in the Lake Erie Quadrangle NMS or any DATES: The scoping meetings will be this agenda are subject to change. other new national marine sanctuary held via webinar on February 3 and 4, Authority: 16 U.S.C. 1801 et seq. with this action. Instead, NOAA is 2021. Dated: January 7, 2021. seeking public comment on ONMS’ five ADDRESSES: Council address: South Rey Israel Marquez, year review of the nomination for the Atlantic Fishery Management Council, Lake Erie Quadrangle NMS. Acting Deputy Director, Office of Sustainable 4055 Faber Place Drive, Suite 201, N Fisheries, National Marine Fisheries Service. Accordingly, written comments Charleston, SC 29405. submitted as part of this request should [FR Doc. 2021–00422 Filed 1–11–21; 8:45 am] FOR FURTHER INFORMATION CONTACT: Kim BILLING CODE 3510–22–P not focus on whether NOAA should Iverson, Public Information Officer, initiate the designation process for the SAFMC; phone: (843) 571–4366 or toll Lake Erie Quadrangle. Rather, free: (866) SAFMC–10; fax: (843) 769– DEPARTMENT OF COMMERCE comments should address the relevance 4520; email: [email protected]. of the nomination towards NOAA’s National Oceanic and Atmospheric SUPPLEMENTARY INFORMATION: evaluation criteria and any new The Administration information NOAA should consider scoping meetings will be conducted via [RTID 0648–XA800] about the nominated area. Comments webinar and accessible via the internet from the Council’s website at https:// that do not pertain to the evaluation Marine Mammals and Endangered criteria, or present new information on safmc.net/safmc-meetings/public- hearings-scoping-meetings/. The Species the Lake Erie Quadrangle NMS scoping meetings will begin at 6 p.m. nomination, will not be considered as AGENCY: National Marine Fisheries Registration for the webinars is part of this five year review. Service (NMFS), National Oceanic and required. Registration information, a Atmospheric Administration (NOAA), Whether removing or maintaining the copy of the scoping materials, an online Commerce. nomination for Lake Erie Quadrangle public comment form and any ACTION: Notice; issuance of a permit. NMS, NOAA would follow the same additional information as needed will procedure for notifying the public as be posted on the Council’s website at SUMMARY: Notice is hereby given that a was followed when the nomination was https://safmc.net/safmc-meetings/ permit has been issued to the following submitted, including a letter to the public-hearings-scoping-meetings/ as it entity under the Marine Mammal nominator, a notice in the Federal becomes available. Public comments Protection Act (MMPA). Register, and posting information on must be received by 5 p.m. on February ADDRESSES: The permit and related ‘‘nominate.noaa.gov’’. 5, 2021. documents are available for review
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upon written request via email to SUPPLEMENTARY INFORMATION: Notice our receipt of the application and a [email protected]. was published in the Federal Register complete description of the activity, go on the date listed below that a request to www.federalregister.gov and search FOR FURTHER INFORMATION CONTACT: Sara for a permit had been submitted by the on the permit number provided in Table Young (Permit No. 24356) at (301) 427– below-named applicant. To locate the 1 below. 8401. Federal Register notice that announced
TABLE 1—ISSUED PERMIT
Previous Federal Permit No. RTID Applicant Register Notice Issuance date
24356 ...... 0648–XA614 ..... Plimsoll Productions, Whiteladies House, 51–55 85 FR 70130; November December 18, 2020. Whiteladies Road, Bristol BS8 2LY, United King- 4, 2020. dom (Responsible Party: James Manisty).
In compliance with the National Meeting address: The meeting will be noaa.gov; (503) 820–2412) at least 10 Environmental Policy Act of 1969 (42 held online. Specific meeting days prior to the meeting date. U.S.C. 4321 et seq.), a final information, including directions on Authority: 16 U.S.C. 1801 et seq. determination has been made that the how to join the meeting and system activities proposed are categorically requirements will be provided in the Dated: January 7, 2021. excluded from the requirement to meeting announcement on the Pacific Rey Israel Marquez, prepare an environmental assessment or Council’s website (see Acting Deputy Director, Office of Sustainable environmental impact statement. www.pcouncil.org). You may send an Fisheries, National Marine Fisheries Service. [FR Doc. 2021–00417 Filed 1–11–21; 8:45 am] Authority: The requested permit was email to Mr. Kris Kleinschmidt issued under the MMPA of 1972, as amended ([email protected]) or contact BILLING CODE 3510–22–P (16 U.S.C. 1361 et seq.) and the regulations him at (503) 820–2412 for technical governing the taking of marine mammals (50 assistance. CFR part 216). Council address: Pacific Fishery DEPARTMENT OF COMMERCE Dated: January 6, 2021. Management Council, 7700 NE National Oceanic and Atmospheric Julia Marie Harrison, Ambassador Place, Suite 101, Portland, Administration Chief, Permits and Conservation Division, OR 97220–1384. [RTID 0648–XA765] Office of Protected Resources, National FOR FURTHER INFORMATION CONTACT: Marine Fisheries Service. Kerry Griffin, Pacific Council; Fisheries of the South Atlantic; [FR Doc. 2021–00352 Filed 1–11–21; 8:45 am] telephone: (503) 820–2409. Southeast Data, Assessment, and BILLING CODE 3510–22–P SUPPLEMENTARY INFORMATION: The Review (SEDAR); Public Meeting CPSMT will primarily be working on AGENCY: National Marine Fisheries DEPARTMENT OF COMMERCE the essential fish habitat periodic review and a management flowchart/framework Service (NMFS), National Oceanic and for the central subpopulation of Atmospheric Administration (NOAA), National Oceanic and Atmospheric Commerce. Administration northern anchovy. The CPSMT may discuss other CPS-related tasks or ACTION: Notice of SEDAR 71 South [RTID 0648–XA733] administrative and ecosystem matters Atlantic Gag Grouper Assessment on the Pacific Council’s March meeting Webinar IV. Pacific Fishery Management Council; agenda, as necessary. A meeting agenda SUMMARY: The SEDAR 71 assessment of Public Meeting will be posted to the Pacific Council’s the South Atlantic stock of gag grouper website in advance of the meeting. AGENCY: National Marine Fisheries will consist of a data webinar and a Although non-emergency issues not Service (NMFS), National Oceanic and series assessment webinars. contained in the meeting agenda may be Atmospheric Administration (NOAA), DATES: The SEDAR 71 Gag Grouper discussed, those issues may not be the Commerce. Assessment Webinar IV has been subject of formal action during this scheduled for Tuesday, February 9, ACTION: Notice of a public meeting. meeting. Action will be restricted to 2021, from 12 p.m. to 3 p.m., EDT. those issues specifically listed in this SUMMARY: The Pacific Fishery ADDRESSES: Meeting address: The Management Council (Pacific Council) document and any issues arising after publication of this document that meeting will be held via webinar. The will hold an online work session of its webinar is open to members of the Coastal Pelagic Species Management require emergency action under section 305(c) of the Magnuson-Stevens Fishery public. Registration is available online Team (CPSMT) to develop reports and at: https://attendee.gotowebinar.com/ products for upcoming Pacific Council Conservation and Management Act, provided the public has been notified of register/9037843055622147088. meetings. This meeting is open to the SEDAR address: South Atlantic public. the intent to take final action to address the emergency. Fishery Management Council, 4055 DATES: The online work session will be Faber Place Drive, Suite 201, N held Tuesday, February 2, 2021 through Special Accommodations Charleston, SC 29405; Thursday, February 4, 2021, from 9 a.m. Requests for sign language www.sedarweb.org. to 3 p.m. each day, or until business for interpretation or other auxiliary aids FOR FURTHER INFORMATION CONTACT: the day has been completed. should be directed to Mr. Kris Kathleen Howington, SEDAR ADDRESSES: Kleinschmidt (kris.kleinschmidt@ Coordinator, 4055 Faber Place Drive,
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Suite 201, North Charleston, SC 29405; Fishery Conservation and Management to conduct surveying and mapping phone: (843) 571–4371; email: Act, provided the public has been activities. This pilot program is subject [email protected]. notified of the intent to take final action to funding availability. SUPPLEMENTARY INFORMATION: The Gulf to address the emergency. DATES: Proposals must be received via of Mexico, South Atlantic, and Special Accommodations email by 5 p.m. EST on February 26, Caribbean Fishery Management 2021 with any accompanying GIS files Councils, in conjunction with NOAA This meeting is accessible to people due no later than March 5, 2021. If an Fisheries and the Atlantic and Gulf with disabilities. Requests for auxiliary entity is unable to apply for this States Marine Fisheries Commissions, aids should be directed to the South particular opportunity but has an have implemented the Southeast Data, Atlantic Fishery Management Council interest in participating in similar, Assessment and Review (SEDAR) office (see ADDRESSES) at least 5 future opportunities, NOAA requests a process, a multi-step method for business days prior to the meeting. one-page statement of interest by determining the status of fish stocks in Note: The times and sequence specified in February 26, 2021, to help gauge the Southeast Region. SEDAR is a three- this agenda are subject to change. whether to offer this matching fund step process including: (1) Data program in future years. Workshop; (2) Assessment Process Authority: 16 U.S.C. 1801 et seq. ADDRESSES: Proposals must be utilizing webinars; and (3) Review Dated: January 7, 2021. Workshop. The product of the Data submitted in PDF format via email to Rey Israel Marquez, [email protected] by the February Workshop is a data report which Acting Deputy Director, Office of Sustainable compiles and evaluates potential 26, 2021, deadline. Coast Survey Fisheries, National Marine Fisheries Service. strongly encourages interested entities datasets and recommends which [FR Doc. 2021–00421 Filed 1–11–21; 8:45 am] datasets are appropriate for assessment to submit their proposals in advance of BILLING CODE 3510–22–P analyses. The product of the Assessment the deadline. Process is a stock assessment report FOR FURTHER INFORMATION CONTACT: which describes the fisheries, evaluates DEPARTMENT OF COMMERCE Requests for additional information the status of the stock, estimates should be directed to Ashley Chappell, biological benchmarks, projects future National Oceanic and Atmospheric NOAA Integrated Ocean and Coastal population conditions, and recommends Administration Mapping Coordinator, 240–429–0293, or research and monitoring needs. The [email protected]. assessment is independently peer Notice of Matching Fund Opportunity SUPPLEMENTARY INFORMATION: reviewed at the Review Workshop. The for Hydrographic Surveys and Request product of the Review Workshop is a for Partnership Proposals I. Background Summary documenting panel opinions AGENCY: National Oceanic and Coast Survey is responsible for regarding the strengths and weaknesses Atmospheric Administration (NOAA), conducting hydrographic and seafloor of the stock assessment and input data. Department of Commerce. surveys for safe navigation, the Participants for SEDAR Workshops are conservation and management of coastal ACTION: Announcement of matching appointed by the Gulf of Mexico, South and ocean resources, and emergency fund pilot program opportunity, request Atlantic, and Caribbean Fishery response. Coast Survey is committed to for proposals, and request for interest by Management Councils and NOAA meeting these missions as February 26, 2021. Fisheries Southeast Regional Office, collaboratively as possible, adhering to Highly Migratory Species Management SUMMARY: This notice establishes the Integrated Ocean and Coastal Division, and Southeast Fisheries selection criteria and requirements for Mapping (IOCM) principle of ‘‘Map Science Center. Participants include: the NOAA National Ocean Service Once, Use Many Times.’’ Data collectors and database managers; Office of Coast Survey’s (Coast Survey) After the June 2020 publications of stock assessment scientists, biologists, Hydrographic Surveying Matching Fund the National Strategy for Mapping, and researchers; constituency opportunity pilot program (pilot Exploring (NOMEC), and Characterizing representatives including fishermen, program). The purpose of this notice is the U.S. Exclusive Economic Zone and environmentalists, and non- to encourage non-Federal entities to the Alaska Coastal Mapping Strategy governmental organizations (NGOs); partner with NOAA on jointly funded (ACMS), Coast Survey released a international experts; and staff of hydrographic surveying and mapping responsive Ocean Mapping Plan with a Councils, Commissions, and state and and related activities of mutual interest. goal to map the full extent of waters federal agencies. NOAA would match partner funds and subject to U.S. jurisdiction to modern The items of discussion at the SEDAR rely on its existing contract standards (all three plans are available 71 Gag Grouper Assessment Webinar IV arrangements to conduct the actual at https://iocm.noaa.gov/about/ are as follows: surveying and mapping activities. strategic-plans.html. The Coast Survey • Discuss data and modeling as needed NOAA is requesting that interested Ocean Mapping Plan describes a • Finalize modeling and data entities submit proposals by February number of motivating forces for discussions 26, 2021. The goal of the pilot program surveying and mapping waters subject Although non-emergency issues not is to acquire more ocean and coastal to U.S. jurisdiction, including, but not contained in this agenda may come hydrographic surveying for mutual limited to: before this group for discussion, those benefit, including for safe navigation, • Safe marine transportation; issues may not be the subject of formal integrated ocean and coastal mapping, • Coastal community resilience; action during this meeting. Action will coastal zone management, coastal and • A need to better understand the be restricted to those issues specifically ocean science, and other activities. The influence of the ocean’s composition on identified in this notice and any issues program relies on NOAA’s hydrographic related physical and ecosystem arising after publication of this notice expertise, appropriated funds, and its processes that affect climate, weather, that require emergency action under authority to receive and expend and coastal and marine resources and section 305(c) of the Magnuson-Stevens matching funds contributed by partners infrastructure;
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• Interest in capitalizing on the Blue matching funds with Coast Survey to horizontal/vertical position Economy in growth areas like seafood partner on ocean and coastal uncertainty) production, tourism and recreation, hydrographic surveys. Proposals will be • Survey and control services, marine transportation, and ocean evaluated and prioritized for funding including the installation, operation, exploration; based on submitted justifications. Coast and removal of water level and Global • The national prerogative to exercise Survey will select proposals using the Positioning System (GPS) stations U.S. sovereign rights to explore, review process and criteria evaluation • Data processing, quality assessment manage, and conserve natural resources described in section IX of this notice. If and review of all acquired in waters subject to U.S. jurisdiction; there is sufficient interest in the pilot hydrographic data and program, Coast Survey plans to increase • Data management and stewardship • International commitments to map its allocation for matching funds in through data archive at NCEI the global oceans by 2030. future years, as appropriations allow. • High-resolution topographic/ Ocean mapping data is needed for The goal of this pilot program is to bathymetric product generation safe navigation and also informs leverage NOAA and partner funds to More information on Coast Survey’s decisions regarding emergency acquire more coastal and ocean planning, climate adaptation and Hydrographic Surveys Specifications mapping data to a consistent standard and Deliverables publication can be resilience, economic investment, for projects during FY2022. If infrastructure development, and habitat found at https:// appropriated funds are available, NOAA nauticalcharts.noaa.gov/publications/ protection. Emerging sectors that require will match funds contributed by high-resolution seafloor surveys include docs/standards-and-requirements/ selected entities for hydrographic specs/hssd-2020.pdf. This publication deep sea mineral exploration, national surveys. Coast Survey will receive the security, and maritime domain details the requirements for NOAA contributions through memoranda of hydrographic surveys. These awareness in the Arctic Ocean. agreement using the authority granted to Numerous other fields that rely on high- specifications are based in part on the NOAA under the Coast and Geodetic International Hydrographic resolution ocean mapping data include Survey Act of 1947 to receive and fisheries management and sustainable Organization’s Standards for expend funds for collaborative Hydrographic Surveys, Special use of natural resources, offshore hydrographic surveys (33 U.S.C. 883e). renewable energy construction, and Publication 44 (https://iho.int/uploads/ Coast Survey will manage survey user/pubs/Drafts/S-44_Edition_6.0.0- tsunami and hurricane modelling. planning, quality-assure all data and Bathymetry is a critical factor in Final.pdf). products, provide the data and products Coast Survey would also like to gauge assessing and preparing for potential to the partners, and handle data impacts of threats such as sea level rise, interest in this matching fund pilot submission to the National Centers for program by eligible, non-Federal entities flooding, and storm surge to coastal Environmental Information (NCEI) for communities. However, the resources that do not plan to apply this year but archiving and accessibility. All that would consider applying in future needed to fully achieve the goal of hydrographic data and related products comprehensively mapping U.S. oceans years. Coast Survey welcomes eligible resulting from this pilot program will be entities to submit a one-page statement and coasts currently exceed Coast available to the public. The value-added Survey’s capacity. Mapping the full of interest by February 26, 2021, that services Coast Survey will provide Coast Survey will consider in deciding extent of waters subject to U.S. include: jurisdiction means relying on partners • whether to offer this matching fund Project management and GIS-based program in future years. to contribute to the effort. task order planning, negotiation and Coast Survey has considerable award of necessary procurement III. Areas of Focus hydrographic expertise, including contracts: cutting edge understanding of the For this opportunity, proposals will Æ Tailored to meet the interests of science and related acoustic systems. be considered that are well aligned with matching fund partners More detail on Coast Survey’s surveying the goals of the NOMEC, ACMS, and the Æ Managed on aerial, shipboard, and expertise and capabilities is available in Coast Survey Ocean Mapping Plan (all uncrewed/autonomous vehicles available at https://iocm.noaa.gov/ the NOAA Coast Survey Ocean Mapping • Capabilities report (https:// Data acquisition collection methods about/strategic-plans.html). Those goals nauticalcharts.noaa.gov/about/docs/ include, but are not limited to: include: Æ about/ocean-mapping-capabilies.pdf). Multibeam Echosounder A. Map the United States Exclusive Æ Side Scan Sonar Economic Zone (EEZ): The goal is to Coast Survey’s hydrographic expertise is Æ a resource available to NOAA partners, Lidar (topographic, bathymetric, coordinate mapping efforts to compile a mobile) complete map of deep water by 2030 both federal and non-Federal. Æ Through this pilot program, Coast Subsurface and airborne feature and nearshore waters by 2040. Survey will match funds contributed by investigations Completing this goal will give the Æ non-Federal entities for hydrographic Sediment sampling United States unprecedented and surveys. Coast Survey hydrographic • Managing survey compliance with detailed information about the depth, survey services include single beam and applicable laws Products acquired may shape, and composition of the seafloor multibeam echo sounding, side scan include, but not be limited to: of the United States EEZ (NOMEC Goal sonar, lidar, and backscatter acquisition • Bathymetric data (multibeam, single 2). by means of air and surface vehicles, beam, lidar) B. Expand Alaska Coastal Data autonomous underwater vehicles, and • Backscatter Collection to Deliver the Priority uncrewed surface vehicles. • Water column (depth dependent) Geospatial Products Stakeholders • Side scan sonar imagery Require: Mapping the Alaska coast is II. Description • Feature detection reports challenging. However, using targeted This notice announces a pilot • Sensor/data corrections and and coordinated data collections will program to assess whether there is calibrations (e.g., conductivity, potentially reduce overall costs and sufficient stakeholder interest in temperature and depth (CTD) casts, improve the cost-to-benefit ratio of
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expanded mapping activities. (ACMS VI. Funding Availability IX. Review Process and Evaluation Goal 2) Criteria In the first year of this pilot program, C. Map the full extent of waters Proposals will be evaluated by the subject to U.S. jurisdiction to modern Coast Survey anticipates funding between two to five survey projects at a Coast Survey Hydrographic Surveying standards: Based on analysis of data Matching Fund Program Management holdings at the NOAA NCEI, 54 percent 50% match of up to $1 million per project. All projects are expected to Team. Submissions will be ranked of waters subject to U.S. jurisdiction are based on the following criteria=: unmapped, covering an area of about have a FY2022 project start date and all non-Federal partner matching funds A. Project justification (30 points)— two million square nautical miles (Coast This criterion ascertains whether there Survey Ocean Mapping Plan). must be received by NOAA in October 2021. Coast Survey reserves the right to is intrinsic IOCM value in the proposed IV. Proposal Eligibility increase or decrease the available work and/or relevance to NOAA missions and priorities, including This matching fund opportunity is amount of matching funds based on the downstream partner proposals and uses. available to non-Federal entities. quality and feasibility of proposals Use of, and reference to, NOMEC, Examples of non-Federal entities received. This notice is subject to the ACMS and the Coast Survey Ocean include state and local governments, availability of appropriations. Mapping Plan (all available at https:// tribal entities, universities, researchers VII. Project Period iocm.noaa.gov/about/strategic- and academia, the private sector, non- plans.html); gap assessment tools such governmental organizations (NGOs), and NOAA intends to complete each as the U.S. Bathymetric Gap Analysis philanthropic partners. Qualifying selected project within two (2) years. (https://iocm.noaa.gov/seabed-2030- proposals must demonstrate the ability However, the period to complete a bathymetry.html); and the U.S. to provide at least 50% matching funds, project may be extended, with no Interagency Elevation Inventory (https:// which would be transferred to NOAA by additional funding, if additional time is catalog.data.gov/dataset/united-states- October 2021 using a memorandum of needed. Coast Survey will submit a final interagency-elevation-inventory-usiei), agreement. A coalition of non-Federal report to the non-Federal partner within among others, are recommended. Coast entities may assemble matching funds 60 days of the conclusion of each Survey’s Hydrographic Health Model and submit a proposal jointly. In-kind project. showing priority survey areas for contributions are welcome to strengthen navigation safety is available upon the proposal, but do not count toward VIII. Submission Requirements request. The U.S. Federal Mapping the match and therefore are not Project Proposal—To qualify, a Coordination site shows current Coast required. proposal shall not exceed six (6) total Survey mapping plans V. Deadlines and Process Dates pages (plus GIS files of project areas) (fedmap.seasketch.org); email and must include the following three All submissions must be emailed to [email protected] for assistance components: [email protected]. Partner with the layers on this site if needed. proposals are due by 5:00 p.m. EST on 1. A project title; executive summary B. Statement of need (10 points)— February 26, 2021 (see Section VIII. for (3–5 sentences); and the names, This criterion assesses clarity of project details). Please include all required affiliations, and roles of the project need, partner proposal alternatives if components of the proposal in one partners and any co-investigators, as not selected, anticipated outcomes and email. Incomplete and late submissions well as the project lead that will serve public benefit. will not be considered. as primary contact (1 page maximum). C. Specified partner match (20 points)—The proposal identifies a point • Informational Webinar, January 28, 2. A justification and statement of of contact for the entity submitting the 2021, 2 p.m. EST; register at https:// need; description and graphics of the proposal, as well as any partnering attendee.gotowebinar.com/register/ proposed survey area polygon(s) entities, a clear statement on partner 2034875377454911502. including relevance to the strategic • February 26, 2021: Due date for areas of focus noted in Section III and matching funds provenance (e.g., state proposals degree of flexibility on timing of survey appropriations, NGO funds, or other • February 26, 2021: Due date for effort (4 pages maximum). sources), and timing of funds availability. In-kind contributions are statements of interest regarding 3. A project budget that lists the potential future proposals welcome to strengthen the proposal, but • source(s) and amount(s) of funding that do not count toward the funding match. March 5, 2021: Due date for the partner would provide as its 50% additional GIS files supporting a D. Project costs (15 points)—This contribution to NOAA. Budget must criterion evaluates whether the proposal confirm that partner funds can be • March 26, 2021: NOAA issues its proposed budget is realistic and transferred to NOAA by October 31, decisions on proposals (subject to commensurate with the proposed 2021 (1 page maximum). appropriations) project needs and timeframe. If needed, • April 2021: NOAA works with Proposals must use 12-point, Times please contact [email protected] selected partners to develop New Roman font, single spacing, and 1- for a rough estimate of cost per square memoranda of agreement to facilitate inch margins. Failure to adhere to these nautical mile for surveys in a particular the transfer of funds from the non- requirements will result in the proposal region; this figure will not be exact, as Federal partner to NOAA being returned without review and actual cost will be negotiated by region • August 2021: NOAA finalizes the eliminated from further consideration. and scale of project. memoranda of agreement with Coast Survey welcomes the submission E. Project feasibility and flexibility (25 partners of GIS files of project areas noted in VIII points)—This criterion assesses the • October 2021: Non-Federal partners B. as ancillary attachments to the likelihood that the proposal would transfer matching funds to NOAA proposal to facilitate review. These files succeed based on survey conditions at • October 2021-September 2022: NOAA will not count toward the 6-page the proposed time of year, such as issues task orders to its survey proposal limit. The GIS files may arrive project size, location, weather, NOAA contractors for NOAA/partner projects no later than March 5, 2021. analysis of environmental compliance
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implications, project flexibility and PST and continuing until 5 p.m. or until Special Accommodations adaptability to existing Coast Survey business for the day has been This meeting is physically accessible plans and schedules, and other factors. completed. The meeting will reconvene, to people with disabilities. Requests for During the proposal review period, if needed, on February 5, 2021 sign language interpretation or other Coast Survey reserves the right to beginning at 9 a.m. PST and continuing auxiliary aids should be directed to Mr. engage with proposal points of contact until 1 p.m. or until business for the day Kris Kleinschmidt (503) 820–2412 at to ask questions and provide feedback has been completed. least 10 business days prior to the on project costs and feasibility. ADDRESSES: The SSC HMS meeting date. X. Management and Oversight Subcommittee meeting will be an online Authority: 16 U.S.C. 1801 et seq. Once selections are made, Coast meeting. Dated: January 7, 2021. Survey will coordinate the development Specific meeting information, Rey Israel Marquez, of the memoranda of agreement, funding including directions on how to join the Acting Deputy Director, Office of Sustainable transfers, project planning, meeting and system requirements will Fisheries, National Marine Fisheries Service. environmental compliance, acquisition be provided in the meeting [FR Doc. 2021–00418 Filed 1–11–21; 8:45 am] awards and quality assurance process. announcement on the Pacific Council’s BILLING CODE 3510–22–P Coast Survey may bring in additional website (see www.pcouncil.org). You partners and/or funding (federal and/or may send an email to Mr. Kris non-Federal) to expand a project further Kleinschmidt (kris.kleinschmidt@ CORPORATION FOR NATIONAL AND if feasible and agreed to by all partners. noaa.gov) or contact him at (503) 820– COMMUNITY SERVICE Projects will be reviewed by Coast 2412 for technical assistance. Survey on an annual basis to ensure Council address: Pacific Fishery Agency Information Collection they are responsive to partner interests Management Council, 7700 NE Activities; Submission to the Office of and NOAA mission requirements, and Ambassador Place, Suite 101, Portland, Management and Budget for Review to identify opportunities for outreach OR 97220. and Approval; Comment Request; and education on the societal benefits of AmeriCorps External Reviewer Survey; the work. FOR FURTHER INFORMATION CONTACT: Mr. Proposed Information Collection; Authority: Coast and Geodetic Survey Act John DeVore, Staff Officer, Pacific Comment Request of 1947 (33 U.S.C. 883 et seq.) Fishery Management Council; telephone: (503) 820–2413. AGENCY: Corporation for National and Shepard M. Smith, Community Service. SUPPLEMENTARY INFORMATION: The Rear Admiral, Director, Office of Coast ACTION: Notice of information collection; Survey, National Ocean Service, National purpose of the SSC HMS Subcommittee request for comment. Oceanic and Atmospheric Administration. meeting is to discuss new stock [FR Doc. 2021–00385 Filed 1–11–21; 8:45 am] assessments for bigeye and yellowfin SUMMARY: The Corporation for National BILLING CODE 3510–JE–P tunas, which use a new probabilistic and Community Service (CNCS, framework for informing management operating as AmeriCorps) has submitted decisions. Specifically, the SSC HMS a public information collection request DEPARTMENT OF COMMERCE Subcommittee members and NMFS staff (ICR) entitled AmeriCorps External will discuss recommendations for Reviewer Survey for review and National Oceanic and Atmospheric maximum fishing mortality threshold approval in accordance with the Administration proxies for SDC determinations based Paperwork Reduction Act. [RTID 0648–XA752] on BSIA for these tropical tuna species DATES: Written comments must be using new probabilistic assessments, as submitted to the individual and office Pacific Fishery Management Council; well as options for using probabilistic listed in the ADDRESSES section by Public Meeting framework assessment for HMS status February 11, 2021. determinations, more generally. AGENCY: National Marine Fisheries ADDRESSES: Written comments and Service (NMFS), National Oceanic and The SSC HMS Subcommittee recommendations for the proposed Atmospheric Administration (NOAA), members’ role will be development of information collection should be sent Commerce. recommendations and reports for within 30 days of publication of this consideration by the SSC and the Pacific ACTION: Notice of a public meeting. notice to www.reginfo.gov/public/do/ Council at the March meeting of the PRAMain. Find this particular SUMMARY: The Highly Migratory Species Pacific Council. information collection by selecting (HMS) Subcommittee of the Pacific Although nonemergency issues not ‘‘Currently under 30-day Review—Open Fishery Management Council’s (Pacific contained in the meeting agendas may for Public Comments’’ or by using the Council’s) Scientific and Statistical be discussed, those issues may not be search function. Committee (SSC) will hold an online the subject of formal action during these FOR FURTHER INFORMATION CONTACT: meeting to advise on a best scientific meetings. Action will be restricted to Copies of this ICR, with applicable information available (BSIA) those issues specifically listed in this supporting documentation, may be determination by NMFS on the use of notice and any issues arising after obtained by calling AmeriCorps, Curtis new stock assessments to determine publication of this notice that require Cannon at 202–606–6706, or by email to management limit reference points and emergency action under Section 305(c) [email protected]. status determination criteria (SDC) for of the Magnuson-Stevens Fishery SUPPLEMENTARY INFORMATION: The OMB managing bigeye and yellowfin tunas. Conservation and Management Act, is particularly interested in comments The meeting is open to the public. provided the public has been notified of which: DATES: The SSC HMS Subcommittee’s the intent of the SSC HMS • Evaluate whether the proposed online meeting will be held Thursday, Subcommittee to take final action to collection of information is necessary February 4, 2021 beginning at 1 p.m. address the emergency. for the proper performance of the
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functions of AmeriCorps, including Department of the Air Force hereby considered as an alternative to the whether the information will have gives notice of its intent to grant an proposed license. practical utility; exclusive patent license to Targeted Adriane Paris, • Evaluate the accuracy of the Endo, LLC, a small business and limited Acting Air Force Federal Register Liaison agency’s estimate of the burden of the liability corporation having a place of proposed collection of information, Officer. business at P.O. Box 646, Golden, CO [FR Doc. 2021–00403 Filed 1–11–21; 8:45 am] including the validity of the 80402. methodology and assumptions; BILLING CODE 5001–10–P • Propose ways to enhance the DATES: Written objections must be filed quality, utility, and clarity of the no later than fifteen (15) calendar days DEPARTMENT OF DEFENSE information to be collected; and after the date of publication of this • Propose ways to minimize the Notice. Department of the Army burden of the collection of information on those who are to respond, including ADDRESSES: Submit written objections to through the use of appropriate Chastity D.S. Whitaker, Ph.D., Air Force [Docket ID: USA–2020–HQ–0018] automated, electronic, mechanical, or Materiel Command Law Office, Proposed Collection; Comment other technological collection AFMCLO/JAZ, 2240 B Street, Area B, Request techniques or other forms of information Building 11, Wright-Patterson AFB, OH technology. 45433–7109; Facsimile: (937) 255–9318; AGENCY: U.S. Army Corps of Engineers, Department of Defense (DoD). Comments or Email: [email protected]. Include Docket No. A59–201207A–PL in ACTION: Information collection notice. A 60-day Notice requesting public the subject line of the message. comment was published in the Federal SUMMARY: In compliance with the Register on November 13, 2020 at Vol. FOR FURTHER INFORMATION CONTACT: Paperwork Reduction Act of 1995, the 85, No. 220, Pg. 72638. This comment Chastity D.S. Whitaker, Ph.D., Air Force U.S. Army Corps of Engineers period ended January 12, 2021. Zero Materiel Command Law Office, announces a proposed public public comments were received from AFMCLO/JAZ, 2240 B Street, Area B, information collection and seeks public this Notice. Building 11, Wright-Patterson AFB, OH comment on the provisions thereof. Title of Collection: AmeriCorps 45433–7109; Telephone: (937) 904– Comments are invited on: whether the External Reviewer Survey. 5787; Facsimile: (937) 255–9318; or proposed collection of information is OMB Control Number: 3045–0090. Email: [email protected]. necessary for the proper performance of Type of Review: New. the functions of the agency, including Respondents/Affected Public: SUPPLEMENTARY INFORMATION: whether the information shall have Individuals and Households. Abstract of Patent Application(s) practical utility; the accuracy of the Total Estimated Number of Annual agency’s estimate of the burden of the Responses: 250. Devices and methods for guided proposed information collection; ways Total Estimated Number of Annual endodontic micro-surgery using to enhance the quality, utility, and Burden Hours: 60 hours. trephine burs. The device includes a clarity of the information to be Abstract: The External Reviewer surgical guide comprising a dentate collected; and ways to minimize the Survey is used by individuals who have guard and a port extending from the burden of the information collection on served as External Reviewers or External dentate guard. The dentate guard is respondents, including through the use Panel Coordinators for AmeriCorps to configured to conform to dentition of a of automated collection techniques or review grant applications. The other forms of information technology. information collected will be used by patient proximate to a surgical site. The AmeriCorps to assess and make port has a bore extending therethrough DATES: Consideration will be given to all improvements to grant competitions. such that a distal end of the bore comments received by March 15, 2021. The information is collected terminates at the surgical site. The port, ADDRESSES: You may submit comments, electronically. This is a new information and its bore, are configured to receive a identified by docket number and title, collection. trephine bur for the EMS procedure at by any of the following methods: the surgical site. Federal eRulemaking Portal: http:// Dated: January 6, 2021. www.regulations.gov. Follow the Intellectual Property Amy Hetrick, instructions for submitting comments. Director, Grants, Policy and Operations. U.S. Application Publication No. Mail: The DoD cannot receive written [FR Doc. 2021–00441 Filed 1–11–21; 8:45 am] 2019/0328486, published October 31, comments at this time due to the BILLING CODE 6050–28–P 2019, and entitled Guided endodontic COVID–19 pandemic. Comments should micro-surgery (EMS) with trephine burs. be sent electronically to the docket listed above. DEPARTMENT OF DEFENSE The Department of the Air Force may Instructions: All submissions received grant the prospective license unless a must include the agency name, docket Department of the Air Force timely objection is received that number and title for this Federal sufficiently shows the grant of the Register document. The general policy Notice of Intent To Grant an Exclusive license would be inconsistent with the for comments and other submissions Patent License Bayh-Dole Act or implementing from members of the public is to make AGENCY: Department of the Air Force, regulations. A competing application for these submissions available for public Department of Defense. a patent license agreement, completed viewing on the internet at http:// ACTION: Notice of intent. in compliance with 37 CFR 404.8 and www.regulations.gov as they are received by the Air Force within the received without change, including any SUMMARY: Pursuant to the Bayh-Dole period for timely objections, will be personal identifiers or contact Act, and implementing regulations, the treated as an objection and may be information.
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FOR FURTHER INFORMATION CONTACT: To DEPARTMENT OF EDUCATION the educational success and long-term request more information on this well-being of Alaska Native students. In proposed information collection or to Applications for New Awards; Alaska light of the disparities in remote obtain a copy of the proposal and Native Education Program learning infrastructure exposed by the widespread school closures caused by associated collection instruments, AGENCY: Office of Elementary and the novel coronavirus 2019 (COVID–19), please write to the Institute for Water Secondary Education, Department of the need for students across the country, Resources, Navigation and Civil Works Education. and low-income students in particular, Decision Support Center, 7701 ACTION: Notice. Telegraph Road, Alexandria, VA 22315– to have access to high-quality remote learning is particularly acute. Thus, for 3868, ATTN: Steven D. Riley or call SUMMARY: The Department of Education this competition, the ANE program 703–428–6380. (Department) is issuing a notice inviting applications for fiscal year (FY) 2021 for gives competitive preference to SUPPLEMENTARY INFORMATION: the Alaska Native Education (ANE) applicants whose proposals address Title; Associated Form; and OMB program, Assistance Listing Number remote learning and target certain Number: Lock Performance Monitoring 84.356A. This notice relates to the subgroups for remote learning. Specifically, the competitive preference System (LPMS) Waterway Traffic approved information collection under priority solicits applications that Report; ENG FORM 3102C and 3102D; OMB control number 1894–0006. propose to provide reliable high-speed OMB Control Number 0710–0008. DATES: Applications Available: January internet, devices, and software Need and Uses The U.S. Army Corps 12, 2021. applications to learners who previously Deadline for Transmittal of of Engineers utilizes the data collected did not have access to such Applications: April 12, 2021. to monitor and analyze the use and technologies. In addition, the operation of federally owned or ADDRESSES: For the addresses for competitive preference priority operated locks. General data of vessel obtaining and submitting an encourages applications that include identification, tonnage, and application, please refer to our Common providing high-quality remote learning commodities are supplied by the master Instructions for Applicants to for Native American (as defined in this Department of Education Discretionary of vessels and all locks owned and notice) students. Grant Programs, published in the operated by the U.S. Army Corps of Priorities: This notice contains one Federal Register on February 13, 2019 absolute priority and one competitive Engineers. The information is used for (84 FR 3768), and available at sizing and scheduling replacements, the preference priority. In accordance with www.govinfo.gov/content/pkg/FR–2019– 34 CFR 75.105(b)(2)(v), the absolute timing of rehabilitation or maintenance 02–13/pdf/. actions, and the setting of operation priority is from section 6304(a)(2)(A) FOR FURTHER INFORMATION CONTACT: and (B) of the ESEA. In accordance with procedures and closures for locks and Almita Reed, U.S. Department of 34 CFR 75.105(b)(2)(ii), the competitive canals. Education, 400 Maryland Avenue SW, preference priority is from the notice of Affected Public: Business or other for- room 3E222, Washington, DC 20202. final administrative priority and profit. Telephone: (202) 260–1979. Email: definitions for discretionary grants Annual Burden Hours: 26,312. [email protected]. programs published in the Federal If you use a telecommunications Register on December 30, 2020 (85 FR Number of Respondents: 6,529. device for the deaf (TDD) or a text 86545) (NFP). Responses per Respondent: 93. telephone (TTY), call the Federal Relay Absolute Priority: For FY 2021 and Annual Responses: 607,197. Service (FRS), toll free, at 1–800–877– any subsequent year in which we make 8339. awards from the list of unfunded Average Burden per Response: 2.6 SUPPLEMENTARY INFORMATION: applications from this competition, this minutes priority is an absolute priority. Under 34 Frequency: On occasion. Full Text of Announcement CFR 75.105(c)(3), we consider only Respondents are vessel operators who I. Funding Opportunity Description applications that meet this priority. An applicant must address both parts provide the vessel identification, Purpose of Program: The purpose of tonnage and community information as of the absolute priority. An applicant the ANE program is to support must clearly identify in its application stipulated on ENG Form 3012C, innovative projects that recognize and where the absolute priority is addressed. Waterway Traffic Report—Vessel Log or address the unique educational needs of This priority is: ENG form 3102D, Waterway Traffic Alaska Natives. These projects must Eligible applicants must design a Report—Detail Vessel Log. The include the activities authorized under project that— information is applied to navigation section 6304(a)(2) of the Elementary and 1. Develops and implements plans, system management to identify and Secondary Education Act of 1965, as methods, strategies, and activities to prioritize lock maintenance, amended (ESEA), and may include one improve the educational outcomes of rehabilitation, or replacement. It is also or more of the activities authorized Alaska Natives; and used to measure waterway performance under section 6304(a)(3) of the ESEA, 2. Collects data to assist in the and the level of service of the national including, but not limited to, evaluation of the programs carried out waterway systems. curriculum development, training and under the ANE program. professional development, early Competitive Preference Priority: For Dated: January 7, 2021. childhood and parent outreach, and FY 2021, and any subsequent year in Aaron T. Siegel, enrichment programs, as well as which we make awards from the list of Alternate OSD Federal Register Liaison construction. unfunded applications from this Officer, Department of Defense. Background: The ANE program serves competition, this priority is a [FR Doc. 2021–00379 Filed 1–11–21; 8:45 am] the unique educational needs of Alaska competitive preference priority. Under BILLING CODE 5001–06–P Natives and recognizes the roles of 34 CFR 75.105(c)(2)(i), we award up to Alaska Native languages and cultures in an additional 10 points to an
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application, depending on how well the Alaska Native organization (ANO) of the submission of the application and application meets the competitive means an organization that has or expressly (1) authorizes the applicant to preference priority. If an applicant commits to acquire expertise in the conduct activities authorized under the chooses to address this competitive education of Alaska Natives and is—— ANE program and (2) describes the preference priority, the applicant must (a) An Indian Tribe, as defined in nature of those activities. identify in the project narrative section section 4 of the Indian Self- Predominately governed by Alaska of its application its response to the Determination and Education Natives means that at least 80 percent of competitive preference priority. Assistance Act (25 U.S.C. 5304), that is the entity’s governing board (i.e., the The competitive preference priority an Indian Tribe located in Alaska; board elected or appointed to direct the is: (b) A Tribal organization, as defined policies of the organization) are Alaska Building Capacity for Remote in section 4 of such Act (25 U.S.C. Natives. Learning. (up to 10 points) 5304), that is a Tribal organization Project component means an activity, Under this priority, an applicant must located in Alaska; or strategy, intervention, process, product, propose a project that is designed to (c) An organization listed in clauses practice, or policy included in a project. address both of the following priority (i) through (xii) of section 619(4)(B) of Evidence may pertain to an individual areas: the Social Security Act (42 U.S.C. project component or to a combination (a) Providing access to any of the 619(4)(B)(i) through (xii)), or the of project components (e.g., training following, in particular to serve learners successor of an entity so listed. teachers on instructional practices for without access to such technologies: Demonstrates a rationale means a key English learners and follow-on coaching Reliable, high-speed internet, learning project component included in the for these teachers). devices, or software applications that project’s logic model is informed by Relevant outcome means the student meet all students’ and educators’ remote research or evaluation findings that outcome(s) or other outcome(s) the key learning needs while inside the school suggest the project component is likely project component is designed to building and in remote learning to improve relevant outcomes. improve, consistent with the specific environments. Experience operating programs that (b) Providing high-quality remote fulfill the purposes of the ANE program goals of the program. learning specifically for Native means that, within the past four years, Remote learning means programming American (as defined in this notice) the entity has received and satisfactorily where at least part of the learning occurs students. administered, in compliance with away from the physical building in a The remote learning environment applicable terms and conditions, a grant manner that addresses a learner’s must be accessible to individuals with under the ANE program or another education needs. Remote learning may disabilities in accordance with Section Federal or non-Federal program that include online, hybrid/blended 504 of the Rehabilitation Act of 1973 focused on meeting the unique learning, or non-technology-based and Title II of the Americans with education needs of Alaska Native learning (e.g., lab kits, project supplies, Disabilities Act, as applicable. The children and families in Alaska. paper packets). remote learning environment must also Logic model (also referred to as a Application Requirements: The provide appropriate remote learning theory of action) means a framework following requirements are from section language assistance services to English that identifies key project components 6304(a)(2) of the ESEA and from the learners. of the proposed project (i.e., the active NFR. In order to receive funding, an Definitions: The definitions for ‘‘ingredients’’ that are hypothesized to applicant must meet the following ‘‘Alaska Native’’ and ‘‘Alaska Native be critical to achieving the relevant requirements. organization’’ are from section 6306 of outcomes) and describes the theoretical (a) The applicant must provide a the ESEA (20 U.S.C. 7546). For purposes and operational relationships among the detailed description of the plans, of the competitive preference priority, key project components and relevant methods, strategies, and activities it will ‘‘Native American’’ has the meaning outcomes. develop and implement to improve the ascribed to ‘‘Alaska Native.’’ The Native means a citizen of the United educational outcomes of Alaska Natives definitions for ‘‘demonstrates a States who is a person of one-fourth and how the applicant will develop and rationale,’’ ‘‘logic model,’’ ‘‘project degree or more Alaska Indian (including implement such plans, methods, component,’’ and ‘‘relevant outcome’’ Tsimshian Indians not enrolled in the strategies, and activities. (ESEA section are from 34 CFR 77.1. The definition for Metlaktla Indian Community) Eskimo, 6304(a)(2)) ‘‘Native’’ is from section 3(b) of the or Aleut blood, or combination thereof. (b) The applicant must provide a Alaska Native Claims Settlement Act (43 The term includes any Native as so detailed description of the data it will U.S.C. 1602(b)). In addition, the defined either or both of whose adoptive collect to assist in the evaluation of the definitions for ‘‘experience operating parents are not Natives. It also includes, programs carried out under the ANE programs that fulfill the purposes of the in the absence of proof of a minimum program, including data that address the ANE program,’’ ‘‘official charter or blood quantum, any citizen of the performance measures in section VI.5 sanction,’’ and ‘‘predominately United States who is regarded as an (Performance Measures) of this notice; governed by Alaska Natives’’ are from Alaska Native by the Native village or and how the applicant will collect such the notice of final definitions and Native group of which he claims to be data. (ESEA section 6304(a)(2)) requirements published June 4, 2019, in a member and whose father or mother (c) Group Application: the Federal Register (84 FR 25682) is (or, if deceased, was) regarded as An applicant that applies as part of a (NFR). The definition of ‘‘remote Native by any village or group. Any partnership must meet this requirement, learning’’ is from the NFP. decision of the Secretary of the Interior in addition to the requirements in Alaska Native or Native American has regarding eligibility for enrollment shall paragraphs (a) and (b) above. the same meaning as the term Native be final. (1) An ANO that applies for a grant in has in section 3(b) of the Alaska Native Official charter or sanction means a partnership with a State educational Claims Settlement Act (43 U.S.C. signed letter or written agreement from agency (SEA) or local educational 1602(b)) and includes the descendants an Alaska Native Tribe or ANO that is agency (LEA) must serve as the fiscal of individuals so defined. dated within 120 days prior to the date agent for the project.
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(2) Group applications under the ANE (2) Give to Indian organizations and to ANE program, but are in partnership program must include a partnership Indian-owned economic enterprises, as with— agreement that includes a Memorandum defined in section 3 of the Indian (i) An SEA or LEA; or of Understanding or a Memorandum of Financing Act of 1974 (25 U.S.C. (ii) An Alaska Native organization Agreement (MOU/MOA) between the 1452(e)), preference in the award of that operates a program that fulfills the members of the partnership identified subcontracts in connection with the purposes of the ANE program; or and discussed in the grant application. administration of the grant. (c) An entity located in Alaska, and Each MOU/MOA must— (b) For purposes of this requirement, predominately governed by Alaska (i) Be signed by all partners, and an Indian is a member of any federally Natives, that does not meet the dated within 120 days prior to the date recognized Indian Tribe. definition of an Alaska Native of the submission of the application; Program Authority: Title VI, part C of organization but— (ii) Clearly outline the work to be the ESEA (20 U.S.C. 7541–7546). (i) Has experience operating programs completed by each partner that will Note: Projects must be awarded and that fulfill the purposes of the ANE participate in the grant in order to operated in a manner consistent with program; and accomplish the goals and objectives of the nondiscrimination requirements (ii) Is granted an official charter or the project; and contained in the U.S. Constitution and sanction from at least one Alaska Native (iii) Demonstrate an alignment the Federal civil rights laws. Tribe or Alaska Native organization to between the activities, roles, and Applicable Regulations: (a) The carry out programs that meet the responsibilities described in the grant Education Department General purposes of the ANE program. application for each of the partners in Administrative Regulations in 34 CFR 2. a. Cost Sharing or Matching: This the partnership agreement. (NFR) parts 75, 77, 79, 81, 82, 84, 86, 97, 98, program does not require cost sharing or (d) Applicants Establishing Eligibility and 99. (b) The Office of Management matching. through a Charter or Sanction from an and Budget Guidelines to Agencies on b. Indirect Cost Rate Information: This Alaska Native Tribe or ANO: Governmentwide Debarment and program uses an unrestricted indirect For an entity that does not meet the Suspension (Nonprocurement) in 2 CFR cost rate. For more information eligibility requirements for an ANO, part 180, as adopted and amended as regarding indirect costs, or to obtain a established in section 6304(a)(1) and regulations of the Department in 2 CFR negotiated indirect cost rate, please see 6306(2) of the ESEA and the definitions part 3485. (c) The Uniform www2.ed.gov/about/offices/list/ocfo/ in this notice, and that seeks to establish Administrative Requirements, Cost intro.html. eligibility through a charter or sanction Principles, and Audit Requirements for c. Administrative Cost Limitation: No provided by an Alaska Native Tribe or Federal Awards in 2 CFR part 200, as more than five percent of funds awarded ANO as required under section adopted and amended as regulations of for a grant under this program may be 6304(a)(1)(C)(ii) of the ESEA, the the Department in 2 CFR part 3474. (d) used for direct administrative costs following documentation is required, in The NFR. (e) The NFP. (ESEA section 6305(b) and Consolidated Note: The regulations in 34 CFR part addition to the information in Appropriations Act, 2021). This five 79 apply to all applicants except Application Requirements (a) through percent limit does not include indirect federally recognized Indian Tribes. (c) above: costs. Note: The regulations in 34 CFR part (1) Written documentation 3. Subgrantees: A grantee under this 86 apply to institutions of higher demonstrating that the entity is competition may not award subgrants to education only. physically located in the State of entities to directly carry out project Alaska. II. Award Information activities described in its application. (2) Written documentation Type of Award: Discretionary grants. demonstrating that the entity has IV. Application and Submission Estimated Available Funds: Information experience operating programs that $15,592,043. fulfill the purposes of the ANE program. Contingent upon the availability of 1. Application Submission (3) Written documentation funds and the quality of applications, Instructions: Applicants are required to demonstrating that the entity is we may make additional awards in FY follow the Common Instructions for predominately governed by Alaska 2021 or in subsequent years from the list Applicants to Department of Education Natives (as defined in this notice), of unfunded applications from this Discretionary Grant Programs, including the total number, names, and competition. published in the Federal Register on Tribal affiliations of members of the Estimated Range of Awards: February 13, 2019 (84 FR 3768), and governing board. $300,000–$1,500,000 for each 12-month available at www.govinfo.gov/content/ (4) A copy of the official charter or budget period. pkg/FR–2019–02–13/pdf/2019– sanction (as defined in this notice) Estimated Average Size of Awards: 02206.pdf, which contain requirements provided to the entity by an Alaska $500,000 for each 12-month period. and information on how to submit an Native Tribe or ANO. (NFR) Estimated Number of Awards: 18. application. Statutory Hiring Preference: (a) Note: The Department is not bound by 2. Submission of Proprietary Awards that are primarily for the benefit any estimates in this notice. Information: Given the types of projects of Indians are subject to the provisions Project Period: Up to 36 months. that may be proposed in applications for of section 7(b) of the Indian Self- the ANE program, your application may Determination and Education III. Eligibility Information include business information that you Assistance Act (93 Pub. L. 638). That 1. Eligible Applicants: (a) Alaska consider proprietary. In 34 CFR 5.11, we section requires that, to the greatest Native organizations with experience define ‘‘business information’’ and extent feasible, a grantee— operating programs that fulfill the describe the process we use in (1) Give to Indians preferences and purposes of the ANE program; determining whether any of that opportunities for training and (b) Alaska Native organizations that information is proprietary and, thus, employment in connection with the do not have experience operating protected from disclosure under administration of the grant; and programs that fulfill the purposes of the Exemption 4 of the Freedom of
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Information Act (5 U.S.C. 552, as CFR 75.210 and section 6304(a)(2)(A) of The Secretary considers the quality of amended). the ESEA. The maximum score for all of the personnel who will carry out the Because we plan to make successful the selection criteria is 100 points. The proposed project. applications available to the public, you maximum score for each criterion is (1) In determining the quality of may wish to request confidentiality of included in parentheses following the project personnel, the Secretary business information. title of the specific selection criterion. considers the extent to which the Consistent with Executive Order Each criterion also includes the factors applicant encourages applications for 12600, please designate in your that reviewers will consider in employment from persons who are application any information that you determining the extent to which an members of groups that have believe is exempt from disclosure under applicant meets the criterion. traditionally been underrepresented Exemption 4. In the appropriate The selection criteria are as follows: based on race, color, national origin, Appendix section of your application, (a) Need for project (up to 10 points) gender, age, or disability (up to 5 under ‘‘Other Attachments Form,’’ The Secretary considers the need for points). please list the page number or numbers the proposed project. In determining the (2) In addition, the Secretary on which we can find this information. need for the proposed project, the considers the qualifications, including For additional information please see 34 Secretary considers the following relevant training and experience, of key CFR 5.11(c). factors: project personnel (up to 5 points). 3. Intergovernmental Review: This (e) Quality of the management plan program is not subject to Executive (1) The magnitude of the need for the (up to 20 points) Order 12372 and the regulations in 34 services to be provided or the activities The Secretary considers the quality of CFR part 79. to be carried out by the proposed project the management plan for the proposed 4. Funding Restrictions: No more than (up to 5 points). project. In determining the quality of the five percent of funds awarded for a grant (2) The extent to which specific gaps management plan for the proposed under this program may be used for or weaknesses in services, project, the Secretary considers the direct administrative costs (ESEA infrastructure, or opportunities have following factors: section 6305(b) and Consolidated been identified and will be addressed by (1) The adequacy of the management Appropriations Act, 2021). This five the proposed project, including the plan to achieve the objectives of the percent limit does not include indirect nature and magnitude of those gaps or proposed project on time and within costs. See also Section III (b) and (c) of weaknesses (up to 5 points). budget, including clearly defined this notice (‘‘Eligibility Information’’). (b) Quality of the project design (up to responsibilities, timelines, and 5. Recommended Page Limit: The 20 points) milestones for accomplishing project application narrative is where you, the The Secretary considers the quality of tasks (up to 10 points); and applicant, address the selection criteria the design of the proposed project. In (2) The adequacy of mechanisms for that reviewers use to evaluate your determining the quality of the design of ensuring high-quality products and application. We recommend that you (1) the proposed project, the Secretary services from the proposed project (up limit the application narrative to no considers the following factors: to 10 points). more than 30 pages and (2) use the (1) The extent to which the design of (f) Quality of the project evaluation following standards: the proposed project is appropriate to, (up to 10 points) • A ‘‘page’’ is 8.5’’ x 11’’, on one side and will successfully address, the needs The Secretary considers the quality of only, with 1’’ margins at the top, of the target population or other the evaluation to be conducted of the bottom, and both sides. identified needs (up to 10 points). proposed project. In determining the • Double space (no more than three (2) The extent to which the proposed quality of the evaluation, the Secretary lines per vertical inch) all text in the project demonstrates a rationale (as considers the extent to which the application narrative, including titles, defined in this notice) (up to 10 points). methods of evaluation will provide valid and reliable performance data on headings, footnotes, quotations, (c) Quality of project services (up to relevant outcomes. references, and captions, as well as all 30 points) text in charts, tables, figures, and 2. Review and Selection Process: We The Secretary considers the quality of remind potential applicants that in graphs. the services to be provided by the • Use a font that is either 12 point or reviewing applications in any proposed project. larger or no smaller than 10 pitch discretionary grant competition, the (characters per inch). (1) In determining the quality of the Secretary may consider, under 34 CFR • Use one of the following fonts: services to be provided by the proposed 75.217(d)(3)(ii), the past performance of Times New Roman, Courier, Courier project, the Secretary considers the the applicant in carrying out a previous New, or Arial. quality and sufficiency of strategies for award, such as the applicant’s use of The recommended page limit does not ensuring equal access and treatment for funds, achievement of project apply to the cover sheet; the budget eligible project participants who are objectives, and compliance with grant section, including the narrative budget members of groups that have conditions. The Secretary may also justification; the assurances and traditionally been underrepresented consider whether the applicant failed to certifications; or the one-page abstract, based on race, color, national origin, submit a timely performance report or the resumes, the bibliography, or the gender, age, or disability (up to 15 submitted a report of unacceptable letters of support. However, the points). quality. recommended page limit does apply to (2) In addition, the Secretary In addition, in making a competitive all of the application narrative. An considers the extent to which the grant award, the Secretary requires applicant will not be disqualified if it services to be provided by the proposed various assurances, including those exceeds the recommended page limit. project reflect up-to-date knowledge applicable to Federal civil rights laws from research and effective practice (up that prohibit discrimination in programs V. Application Review Information to 15 points). or activities receiving Federal financial 1. Selection Criteria: The selection (d) Quality of project personnel (up to assistance from the Department (34 CFR criteria for this competition are from 34 10 points) 100.4, 104.5, 106.4, 108.8, and 110.23).
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3. Risk Assessment and Specific alignment with section 889 of the your application has been reviewed and Conditions: Consistent with 2 CFR National Defense Authorization Act of selected for funding. For additional 200.205, before awarding grants under 2019 (Pub. L. 115–232) (2 CFR 200.216); information on the open licensing this competition the Department (c) Promoting the freedom of speech requirements please refer to 2 CFR conducts a review of the risks posed by and religious liberty in alignment with 3474.20. applicants. Under 2 CFR 3474.10, the Promoting Free Speech and Religious 4. Reporting: (a) If you apply for a Secretary may impose specific Liberty (E.O. 13798) and Improving Free grant under this competition, you must conditions and, in appropriate Inquiry, Transparency, and ensure that you have in place the circumstances, high-risk conditions on a Accountability at Colleges and necessary processes and systems to grant if the applicant or grantee is not Universities (E.O. 13864) (2 CFR comply with the reporting requirements financially stable; has a history of 200.300, 200.303, 200.339, and in 2 CFR part 170 should you receive unsatisfactory performance; has a 200.341); funding under the competition. This financial or other management system (d) Providing a preference, to the does not apply if you have an exception that does not meet the standards in 2 extent permitted by law, to maximize under 2 CFR 170.110(b). CFR part 200, subpart D; has not use of goods, products, and materials (b) At the end of your project period, fulfilled the conditions of a prior grant; produced in the United States (2 CFR you must submit a final performance or is otherwise not responsible. 200.322); and report, including financial information, 4. Integrity and Performance System: (e) Terminating agreements in whole as directed by the Secretary. If you If you are selected under this or in part to the greatest extent receive a multiyear award, you must competition to receive an award that authorized by law if an award no longer submit an annual performance report over the course of the project period effectuates the program goals or agency that provides the most current may exceed the simplified acquisition priorities (2 CFR 200.340). performance and financial expenditure threshold (currently $250,000), under 2 information as directed by the Secretary VI. Award Administration Information CFR 200.206(a)(2), we must make a under 34 CFR 75.118. The Secretary judgment about your integrity, business 1. Award Notices: If your application may also require more frequent ethics, and record of performance under is successful, we notify your U.S. performance reports under 34 CFR Federal awards—that is, the risk posed Representative and U.S. Senators and 75.720(c). For specific requirements on by you as an applicant—before we make send you a Grant Award Notification reporting, please go to www.ed.gov/ an award. In doing so, we must consider (GAN); or we may send you an email fund/grant/apply/appforms/ any information about you that is in the containing a link to access an electronic appforms.html. integrity and performance system version of your GAN. We may notify (c) Under 34 CFR 75.250(b), the (currently referred to as the Federal you informally, also. Secretary may provide a grantee with Awardee Performance and Integrity If your application is not evaluated or additional funding for data collection Information System (FAPIIS)), not selected for funding, we notify you. analysis and reporting. In this case the accessible through the System for 2. Administrative and National Policy Secretary establishes a data collection Award Management. You may review Requirements: We identify period. and comment on any information about administrative and national policy 5. Performance Measures: For the yourself that a Federal agency requirements in the application package purposes of the Government previously entered and that is currently and reference these and other Performance and Results Act of 1993 in FAPIIS. requirements in the Applicable and for Department reporting under 34 Please note that, if the total value of Regulations section of this notice. CFR 75.110, we have established four your currently active grants, cooperative We reference the regulations outlining performance measures for the ANE agreements, and procurement contracts the terms and conditions of an award in program: (1) The number of grantees from the Federal Government exceeds the Applicable Regulations section of who attain or exceed the targets for the $10,000,000, the reporting requirements this notice and include these and other outcome indicators for their projects in 2 CFR part 200, Appendix XII, specific conditions in the GAN. The that have been approved by the require you to report certain integrity GAN also incorporates your approved Secretary; (2) the percentage of Alaska information to FAPIIS semiannually. application as part of your binding Native children participating in early Please review the requirements in 2 CFR commitments under the grant. learning and preschool programs who part 200, Appendix XII, if this grant 3. Open Licensing Requirements: consistently demonstrate school plus all the other Federal funds you Unless an exception applies, if you are readiness in language and literacy as receive exceed $10,000,000. awarded a grant under this competition, measured by the Revised Alaska 5. In General. In accordance with the you will be required to openly license Development Profile; (3) the percentage Office of Management and Budget’s to the public grant deliverables created of Alaska Native students in schools guidance located at 2 CFR part 200, all in whole, or in part, with Department served by the program who graduate applicable Federal laws, and relevant grant funds. When the deliverable from high school with a high school Executive guidance, the Department consists of modifications to pre-existing diploma in four years; and (4) the will review and consider applications works, the license extends only to those number of Alaska Native programs that for funding pursuant to this notice modifications that can be separately primarily focus on Alaska Native inviting applications in accordance identified and only to the extent that culture and language. with— open licensing is permitted under the 6. Continuation Awards: In making a (a) Selecting recipients most likely to terms of any licenses or other legal continuation award under 34 CFR be successful in delivering results based restrictions on the use of pre-existing 75.253, the Secretary considers, among on the program objectives through an works. Additionally, a grantee or other things: Whether a grantee has objective process of evaluating Federal subgrantee that is awarded competitive made substantial progress in achieving award applications (2 CFR 200.205); grant funds must have a plan to the goals and objectives of the project; (b) Prohibiting the purchase of certain disseminate these public grant whether the grantee has expended funds telecommunication and video deliverables. This dissemination plan in a manner that is consistent with its surveillance services or equipment in can be developed and submitted after approved application and budget; and,
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if the Secretary has established SUMMARY: The Department of Education Indian students. These funds must be performance measurement (Department) is issuing a notice inviting used to support comprehensive requirements, the performance targets in applications for new awards for fiscal programs that are designed to meet the the grantee’s approved application. year (FY) 2021 for Office of Indian unique cultural, language, and In making a continuation award, the Education (OIE) Formula Grants to educational needs of American Indian Secretary also considers whether the Local Educational Agencies, Assistance and Alaska Native (AI/AN) students and grantee is operating in compliance with Listing Number 84.060A. This notice ensure that all students meet the assurances in its approved relates to the approved information challenging State academic standards. application, including those applicable collection under OMB control number The information gathered from the to Federal civil rights laws that prohibit 1810–0021. project’s final annual performance discrimination in programs or activities DATES: Part I of Electronic Application report (APR) will be utilized to receiving Federal financial assistance System for Indian Education (EASIE) complete OIE’s required annual from the Department (34 CFR 100.4, Applications Available: February 8, Government Performance and Results 104.5, 106.4, 108.8, and 110.23). 2021. Act (GPRA) report. Specifically, that Deadline for Transmittal of EASIE report covers the Secretary’s established VII. Other Information Part I: March 11, 2021. key performance measures for assessing Accessible Format: On request to the Part II of EASIE Applications the effectiveness and efficiency of the program contact person listed under FOR Available: April 5, 2021. Formula Grants program as detailed in FURTHER INFORMATION CONTACT, Deadline for Transmittal of EASIE this notice. individuals with disabilities can obtain Part II: May 14, 2021. Integration of Services Authorized this document and a copy of the FOR FURTHER INFORMATION CONTACT: For As authorized under section 6116 of application package in an accessible questions about the Formula Grants the Elementary and Secondary format. The Department will provide the program, contact Dr. Crystal C. Moore, Education Act of 1965, as amended requestor with an accessible format that U.S. Department of Education, 400 (ESEA), the Secretary will, upon receipt may include Rich Text Format (RTF) or Maryland Avenue SW, MS 6335, of an acceptable plan for the integration text format (txt), a thumb drive, an MP3 Washington, DC 20202–6335. of education and related services, and in file, braille, large print, audiotape, or Telephone: (202) 215–3964. Email: cooperation with other relevant Federal compact disc, or other accessible format. [email protected]. For technical agencies, authorize the entity receiving Electronic Access to This Document: questions about the EASIE application the funds under this program to The official version of this document is and uploading documentation, contact consolidate all Federal funds that are to the document published in the Federal the Partner Support Center (PSC). be used exclusively for Indian students. Register. You may access the official Telephone: 877–457–3336. Email: Instructions for submitting an edition of the Federal Register and the [email protected]. integration of education and related Code of Federal Regulations at If you use a telecommunications services plan are included in EASIE, www.govinfo.gov. At this site you can device for the deaf (TDD) or a text which is described under Application view this document, as well as all other telephone (TTY), contact the Federal and Submission Information in section documents of this Department Relay Service (FRS), toll free, at 1–800– IV of this notice. published in the Federal Register, in 877–0996 or by email at: federalrelay@ Note: Under the Formula Grants text or Portable Document Format sprint.com. program, all applicants are required to (PDF). To use PDF you must have SUPPLEMENTARY INFORMATION: develop proposed projects in open Adobe Acrobat Reader, which is consultation, including through public available free at the site. Full Text of Announcement hearings held to provide a full You may also access documents of the Note: Applicants must meet the opportunity to understand the program Department published in the Federal deadlines for both EASIE Part I and Part and to offer recommendations regarding Register by using the article search II to be eligible to receive a grant. the program (section 6114(c)(3)(C) of the feature at www.federalregister.gov. Failure to submit the required ESEA), with parents of Indian children Specifically, through the advanced supplemental documentation, described and teachers of Indian children, search feature at this site, you can limit under Content and Form of Application representatives of Indian Tribes on your search to documents published by Submission in section IV of this notice, Indian lands located within 50 miles of the Department. by the EASIE Part I or II deadline will any school that the LEA will serve if result in an incomplete application that such Tribes have any children in such Frank T. Brogan, will not be considered for funding. OIE school, Indian organizations (IOs), and, Assistant Secretary for Elementary and recommends uploading the if appropriate, Indian students from Secondary Education. documentation at least two days prior to secondary schools. LEA applicants are [FR Doc. 2021–00378 Filed 1–11–21; 8:45 am] each deadline date to ensure that any required to develop proposed projects BILLING CODE P potential submission issues are resolved with the participation and written prior to the deadlines. approval of an Indian Parent Committee whose membership includes parents DEPARTMENT OF EDUCATION I. Funding Opportunity Description and family members of Indian children Applications for New Awards; Office of Purpose of Program: The Office of in the LEA’s schools; representatives of Indian Education Formula Grants to Indian Education Formula Grants to Indian Tribes on Indian lands located Local Educational Agencies Local Educational Agencies (Formula within 50 miles of any school that the Grants) program provides grants to LEA will serve if such Tribes have any AGENCY: Office of Elementary and support local educational agencies children in such school; teachers in the Secondary Education, Department of (LEAs), Indian Tribes and organizations, schools; and, if appropriate, Indian Education. and other eligible entities in developing students attending secondary schools of and implementing elementary and the LEA (ESEA section 6114(c)(4)). The ACTION: Notice. secondary school programs that serve majority of the Indian Parent Committee
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members must be parents and family Estimated Number of Awards: 1,300. must submit and technical assistance members of Indian children (section Note: The Department is not bound by resources, are located on the EASIE 6114(c)(4) of the ESEA). any estimates in this notice. Communities of Practice website at Definitions: The following definition Project Period: 12 months. https://easie.grads360.org/. Note: To address the current needs of is from ESEA section 6112(d)(3): III. Eligibility Information Indian community-based organization OIE’s formula award applicants, EASIE (ICBO) means any organization that (1) 1. Eligible Applicants: The following will move to the OMB MAX Survey is composed primarily of Indian entities are eligible under this program: Portal. OIE and PSC will create parents, family members and Certain LEAs, as prescribed by ESEA dedicated technical assistance community members, Tribal section 6112(b), including charter documentation to support applicants government educational officials, and schools authorized as LEAs under State and grantees with accessing, navigating, Tribal members, from a specific law; certain schools funded by the entering data, and submitting their community; (2) assists in the social, Bureau of Indian Education of the U.S. responses in the new system. Prior to cultural, and educational development Department of the Interior (BIE), as the opening of EASIE Part I, this of Indians in such community; (3) meets prescribed by ESEA section 6113(d); documentation will be announced and the unique cultural, language, and Indian Tribes and IOs under certain posted on the EASIE Communities of academic needs of Indian students; and conditions, as prescribed by ESEA Practice website at: https:// (4) demonstrates organizational and section 6112(c); and ICBOs, as easie.grads360.org/. administrative capacity to manage the prescribed by ESEA section 6112(d). User accounts will be replaced with grant. Consortia of two or more eligible an entity-specific link (also known as a Statutory Hiring Preference: entities are also eligible under certain token) to access the new EASIE (a) Awards that are primarily for the circumstances, as prescribed by ESEA application in the OMB MAX Survey benefit of Indians are subject to the section 6112(a)(4). Portal. Only individuals that are provisions of section 7(b) of the Indian 2. a. Cost Sharing or Matching: This registered as the current Point of Self-Determination and Education program does not require cost sharing or Contact or Superintendent/Authorized Assistance Act (25 U.S.C. 5307(b)). That matching. Representative will receive the entity- section requires that, to the greatest b. Supplement-Not-Supplant: ESEA specific link to access the application extent feasible, a grantee— Section 6114(c)(1) requires a grantee to for EASIE Part I and II. The (1) Give to Indians preferences and use these grant funds only to Superintendent/Authorized opportunities for training and supplement the funds that, in the Representative can continue to delegate employment in connection with the absence of these Federal funds, such the responsibility of completing the administration of the grant; and agency would make available for EASIE application in the new OMB (2) Give to IOs and to Indian-owned services described in this application, MAX Survey to other entity contacts by economic enterprises, as defined in and not to supplant such funds. sharing their entity-specific link section 3 of the Indian Financing Act of c. Indirect Cost Rate Information: This internally. The Superintendent/ 1974 (25 U.S.C. 1452(e)), preference in program uses a restricted indirect cost Authorized Representative is ultimately the award of contracts in connection rate. For more information regarding responsible for the review and with the administration of the grant. restricted indirect costs, or to obtain a certification the application. Please (b) For purposes of this section, an negotiated restricted indirect cost rate, contact the PSC with any questions Indian is a member of any federally please see: www2.ed.gov/about/offices/ related to this change. recognized Indian Tribe (25 U.S.C. list/ocfo/restrate.html. (b) Supplementary Documentation: 1452(b)). d. Administrative Cost Limitation: We The EASIE application requires Program Authority: 20 U.S.C. 7421, et note that, under ESEA section 6115(d) submission of the following seq. and per the Consolidated supplementary documentation in Applicable Regulations: (a) The Appropriations Act, 2021, no more than electronic Portable Document Format Education Department General five percent of the funds awarded for a (PDF): Administrative Regulations in 34 CFR grant may be used for direct (i) In EASIE Part I, applicants that are parts 75, 77, 81, 82, 84, 97, 98, and 99. administrative costs. This five percent Tribes, IOs, or ICBOs must submit the (b) The Office of Management and limit does not include indirect costs. appropriate ‘‘Applying in Lieu of the Budget Guidelines to Agencies on LEA’’ agreement form with their IV. Application and Submission Governmentwide Debarment and application to verify their eligibility no Information Suspension (Non-procurement) in 2 later than March 11, 2021 (which is the CFR part 180, as adopted and amended 1. How to Request an Application closing date of EASIE Part I). Each as regulations of the Department in 2 Package: You can obtain an entity- separate eligibility document is CFR part 3485. (c) The Uniform specific link for the electronic identified by applicant-type as either: Administrative Requirements, Cost application for grants under this Tribe Applying in Lieu of an LEA Principles, and Audit Requirements for program by contacting the PSC listed Agreement; IO Agreement; or ICBO Federal Awards in 2 CFR part 200, as under FOR FURTHER INFORMATION Agreement. These are available on the adopted and amended as regulations of CONTACT. Getting Started page in the EASIE Portal the Department in 2 CFR part 3474. Individuals with disabilities can as downloadable documents. The obtain a copy of the application package details of the verification process, which II. Award Information in an accessible format (e.g., braille, are necessary to meet the statutory Type of Award: Formula grants. large print, audiotape, or compact disc) eligibility requirements for Tribes, IOs, Estimated Available Funds: by contacting the PSC listed under FOR and ICBOs, are in the application $105,381,000. FURTHER INFORMATION CONTACT. package. Estimated Range of Awards: $4,000 to 2. Content and Form of Application (ii) In EASIE Part I, an applicant that $2,772,768. Submission: (a) Requirements is the lead applicant for a consortium Estimated Average Size of Awards: concerning the content of an must use the consortium agreement $81,000. application, together with the forms you form that is available on the Getting
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Started page in the EASIE Portal as a Management (SAM), the Government’s Eligibility Certification Form (ED 506 downloadable document and upload it primary registrant database; Form). All applicants must submit a to EASIE no later than March 11, 2021, c. Provide your DUNS number and current Indian student count for FY the EASIE Part I closing date. TIN on your SAM application; and 2021. Applicants must use the ED 506 (iii) In EASIE Part II, for an applicant d. Maintain an active SAM Form to document eligible Indian that is an LEA or a consortium of LEAs, registration with current information students; however, BIE schools may use the EASIE application requires the while your application is under review either the ISEP count or the ED 506 electronic PDF submission of the Indian by the Department and, if you are Form count to verify their Indian Parent Committee Approval form no awarded a grant, during the project student counts. Applicants must protect later than the deadline for transmittal of period. the privacy of all individual data EASIE Part II, which is May 14, 2021. You can obtain a DUNS number from collected and only report aggregated Applicants are encouraged to begin Dun and Bradstreet at the following data to the Secretary. planning parent committee meetings website: http://fedgov.dnb.com/ Applicants that verify their Indian early to ensure parent committee webform. A DUNS number can be student count with the ED 506 Form requirements are met before EASIE Part created within one to two business days. must document their Indian student II closes. The form is available on the If you are a corporate entity, agency, counts by completing the following: (1) EASIE Communities of Practice website institution, or organization, you can Each year, the applicant must verify at https://easie.grads360.org/. obtain a TIN from the Internal Revenue there is a valid ED 506 Form for each 3. Submission Dates and Times: Service. If you are an individual, you Indian child included in the count; (2) Part I of the Formula Grant EASIE can obtain a TIN from the Internal all ED 506 Forms included in the count Applications Available: February 8, Revenue Service or the Social Security must be completed, signed, and dated 2021. Administration. If you need a new TIN, by the parent, and be on file; (3) the Deadline for Transmittal of EASIE please allow two to five weeks for your applicant must maintain a copy of the Part I: March 11, 2021, 11:59 p.m., TIN to become active. student enrollment roster(s) covering The SAM registration process can take Eastern Time. the same period of time indicated in the approximately seven business days, but Part II of the Formula Grant EASIE application as the count period; and (4) may take upwards of several weeks, Applications Available: April 5, 2021. each Indian child included in the count depending on the completeness and Deadline for Transmittal of EASIE must be listed on the LEA’s enrollment accuracy of the data you enter into the Part II: May 14, 2021, 11:59 p.m., roster(s) for at least one day during the SAM database. Thus, if you think you Eastern Time. count period. might want to apply for Federal Submit applications for grants under BIE schools that enter an ISEP count financial assistance under a program this program electronically using EASIE to verify their Indian student count administered by the Department, please located in the OIE-provided portal. For must use the most current Indian allow sufficient time to obtain and information (including dates and times) student count certified by the BIE. register your DUNS number and TIN. about how to submit your application, Once an Indian child is determined to We strongly recommend that you please refer to Other Submission be eligible to be counted for such grant register early. award, the applicant must maintain a Requirements in section IV of this If you are currently registered with record of such determination and must notice. SAM, you may not need to make any not require a new or duplicate OIE will only consider an application changes. However, please make certain determination or form to be made for that is compliant with deadline that the TIN associated with your DUNS such child for a subsequent application requirements. number is correct. Also note that you for a grant under this program. Individuals with disabilities who will need to update your registration need an accommodation or auxiliary aid annually. This may take three or more Applicants must indicate the time in connection with the application business days. span for the project objectives and process should contact the person listed Information about SAM is available at corresponding activities and services for under FOR FURTHER INFORMATION www.SAM.gov. To further assist you AI/AN students. Applicants can choose CONTACT. If the Department provides an with obtaining and registering your to set objectives that remain the same accommodation or auxiliary aid to an DUNS number and TIN in SAM or for up to four years to facilitate data individual with a disability in updating your existing SAM account, collection and enhance long-term connection with the application we have prepared a SAM.gov Tip Sheet, planning. process, the individual’s application which you can find at: www2.ed.gov/ In EASIE Part II, all applicants are remains subject to all other fund/grant/apply/sam-faqs.html. required to— requirements and limitations in this 6. Other Submission Requirements: (1) Select the type of program being notice. a. Electronic Submission of submitted as either regular formula 4. Intergovernmental Review: This Applications. grant program, formula grant project program is not subject to Executive Electronic Application System for consolidated with a title I schoolwide Order 12372 and the regulations in 34 Indian Education (EASIE): EASIE is an program, or integration of services CFR part 79. electronic application found in the under ESEA section 6116; 5. Data Universal Numbering System EASIE OMB MAX Survey Portal via an (2) Select the grade levels offered by Number, Taxpayer Identification entity-specific link. It is divided into the LEA or BIE school; Number, and System for Award two parts—EASIE Part I and EASIE Part (3) Identify, from a list of possible Management: To do business with the II. Department grant programs (e.g., ESEA Department, you must— EASIE Part I, student count, provides title I), the programs in the LEA that are a. Have a Data Universal Numbering the appropriate data-entry screens to currently coordinated with a title VI System (DUNS) number and a Taxpayer submit verified, aggregated, Indian project, or with which the school Identification Number (TIN; student count totals based on either the district plans to coordinate during the b. Register both your DUNS number Indian School Equalization Program project year, in accordance with ESEA and TIN with the System for Award (ISEP) count or the Indian Student section 6114(c)(5), and describe the
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comprehensive program for AI/AN applicant’s award amount increases or information in the application is true, students with those grant programs; decreases by less than $5,000, a budget reliable, and valid. An applicant that (4) Describe the professional update is not required. For an applicant provides a false statement in the development opportunities that will be that receives an increased award application is subject to penalties under provided as part of a comprehensive amount following submission of its the False Claims Act, 18 U.S.C. 1001. program to ensure that teachers and original budget, the applicant must b. Submission of Paper Applications other school professionals who are new allocate the increased amount only to by Mail. to the Indian community are prepared to previously approved budget categories; We discourage paper applications, but work with Indian children, and that all (11) As required by section 427 of the if electronic submission is not possible teachers who will be involved in General Education Provisions Act (e.g., you do not have access to the programs assisted by this grant have (GEPA), describe the steps the applicant internet), you must provide a written been properly trained to carry out such proposes to take to ensure equitable statement that you intend to submit a programs, as required by ESEA section access to, and participation in, the paper application. Send this written 6114(b)(5); project or activity to be conducted with statement no later than Monday, January (5) Provide information on how the such assistance, by addressing the 11, 2021. State assessment data of all Indian special needs of students, teachers, and If you mail your written statement to students (not just those served) are used other program beneficiaries in order to the Department, it must be postmarked and how such information will be overcome barriers to equitable no later than two weeks before the disseminated to the Indian community, participation, including barriers based application deadline date of EASIE Part Indian Parent Committee, and Indian on gender, race, color, national origin, I. If you fax your written statement to Tribes whose children are served by the disability, and age; and the Department, we must receive the LEA. Also describe how assessment data (12) If needed, provide additional faxed statement no later than two weeks from the previous school year (SY) were comments to assist OIE in the review of before the application deadline date of used, as required by ESEA section the application. EASIE Part I. If you email the written 6114(b)(6); Registration for Formula Grant EASIE: statement, it must be sent no later than (6) Indicate when the public hearing Current, former, and new applicants two weeks before the application was held for SY 2021, as required by interested in submitting a Formula deadline date to the person listed under ESEA section 6114(c)(3)(C); Grant EASIE application must register FOR FURTHER INFORMATION CONTACT. (7) For an applicant that is an LEA, for Formula Grant EASIE. Prior to the Address and mail or fax your BIE school, or a consortium of LEAs or opening of EASIE Part I, PSC will send statement to: Dr. Crystal C. Moore, U.S. BIE schools, describe the process the a broadcast to prior year grantees and Department of Education, Office of applicant used to meaningfully new prospective applicants that have Indian Education, 400 Maryland collaborate with Indian Tribes located contacted PSC and registered for EASIE. Avenue SW, MS 6335 Washington, DC in the community in a timely, active, All recipients who receive PSC’s 20202–6335. FAX: (202) 205–0606. and ongoing manner in the development broadcast will be asked to complete Your paper application must be of the comprehensive program and the their intent to apply for the upcoming submitted in accordance with the mail actions taken as a result of such application period in the EASIE Portal. or hand delivery instructions described collaboration (ESEA section 6114(b)(7)); All prospective applicants will be in this notice. (8) Identify specific project objectives provided the opportunity to confirm if You must mail the original and two that will further the goal of providing any updates to their registration copies of your application, on or before culturally responsive education for AI/ information are necessary, and/or if they the application deadline dates for both AN students to meet their academic would like to completely decline EASIE Part I and Part II, to the needs and help them meet State registration. Entities that do not have an Department at the following address: achievement standards (ESEA section active registration or are new applicants U.S. Department of Education, Office of 6115(b)), and identify the data sources should contact the PSC listed under FOR Indian Education, Attention: Assistance that will be used to measure progress FURTHER INFORMATION CONTACT to Listing Number 84.060A, 400 Maryland toward meeting project objectives; register any time before the EASIE Part Avenue SW, MS 6335, Washington, DC (9) For an LEA that selects a I application deadline date. Registration 20202–6335. schoolwide application, identify how does not serve as the entity’s grant You must show proof of mailing the use of such funds in a schoolwide application. For assistance registering, consisting of one of the following: program will produce benefits to Indian contact the PSC listed under FOR (1) A legibly dated U.S. Postal Service students that would not be achieved if FURTHER INFORMATION CONTACT. postmark. the funds were not used in a schoolwide Certification for Formula Grant (2) A legible mail receipt with the program (ESEA section 6115(c)(3)); EASIE: The applicant’s authorized date of mailing stamped by the U.S. (10) Submit a program budget and representative, who must be a senior Postal Service. justification based on the estimated level official (Superintendent, Tribal (3) A dated shipping label, invoice, or grant amount that the EASIE system Chief, or similar) of the entity and receipt from a commercial carrier. calculates from the Indian student count legally authorized by the applicant (4) Any other proof of mailing submitted in EASIE Part I. After the organization to approve the application, acceptable to the Secretary of the U.S. initial grant amounts are determined, must certify EASIE Part I and Part II by Department of Education. additional funds may become available the deadline date. Each applicant If you mail your application through due to such circumstances as should identify at least three system the U.S. Postal Service, we do not withdrawn applications or reduction in users, one for each of the following: accept either of the following as proof another applicant’s student count. An Project director, authorized of mailing: applicant whose award amount representative, and another party (such (1) A private metered postmark. increases or decreases more than $5,000 as a Budget Director) designated to (2) A mail receipt that is not dated by must submit a revised budget prior to answer questions in the event the the U.S. Postal Service. receiving its grant award but will not project director is unavailable. The Note: The U.S. Postal Service does not need to re-certify its application. If an certification process ensures that the uniformly provide a dated postmark.
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Before relying on this method, you Regulations section of this notice. We simplified acquisition threshold should check with your local post reference the regulations outlining the (currently $250,000), under 2 CFR office. terms and conditions of a grant in the 200.206(a)(2) we must make a judgment We will not consider applications Applicable Regulations section of this about your integrity, business ethics, postmarked after the application notice. and record of performance under deadline date for EASIE Part I or Part II. 3. Reporting: (a) If you apply for a Federal awards—that is, the risk posed c. Submission of Paper Applications grant under this program, you must by you as an applicant—before we make by Hand Delivery. ensure that you have in place the an award. In doing so, we must consider If you are submitting a paper necessary processes and systems to any information about you that is in the application, you (or a courier service) comply with the reporting requirements integrity and performance system may deliver your paper application to in 2 CFR part 170 should you receive (currently referred to as the Federal the Department by hand. You must funding. This does not apply if you have Awardee Performance and Integrity deliver the original and two copies of an exception under 2 CFR 170.110(b). Information System (FAPIIS)), your application by hand, on or before (b) You must submit an annual accessible through SAM. You may the application deadline dates for both performance report (APR) using EASIE review and comment on any via the OMB MAX Survey Portal entity- EASIE Part I and Part II, to the information about yourself that a Department at the following address: specific link, including financial Federal agency previously entered and U.S. Department of Education, Office of information, as directed by the that is currently in FAPIIS. Indian Education, Attention: Assistance Secretary, within 90 days after the close Listing Number 84.060A 400 Maryland of the grant year. You will be able to Please note that, if the total value of Avenue SW, MS 6335Washington, DC access the APR via the EASIE portal link your currently active grants, cooperative 20202–6335. provided to registered entities prior to agreements, and procurement contracts The program office accepts hand the system being open to users. Grantees from the Federal Government exceeds deliveries daily between 8:00 a.m. and will receive an email from the PSC $10,000,000, the requirements in 2 CFR 4:30 p.m., Eastern Time, except identifying the date that the APR will be part 200, Appendix XII, require you to Saturdays, Sundays, and Federal available to grantees and the deadline report certain integrity information to holidays. for its transmission. FAPIIS semiannually. Please review the Note for Mail or Hand Delivery of 4. Performance Measures: The requirements in 2 CFR part 200, Paper Applications: If you mail or hand Secretary has established the following Appendix XII, if this grant plus all the deliver your application to the key performance measures for assessing other Federal funds you receive exceed Department— the effectiveness and efficiency of the $10,000,000. (1) You must indicate on the envelope Formula Grants program: (1) The and—if not provided by the percentage of AI/AN students in grades VI. Other Information Department—in Item 11 of the SF 424 four and eight who score at or above the the Assistance Listing Number, basic level in reading on the National Accessible Format: Individuals with including suffix letter, of this program— Assessment of Educational Progress disabilities can obtain a copy of the 84.060A; and (NAEP); (2) the percentage of AI/AN application package in an accessible (2) The program office will mail you students in grades four and eight who format (e.g., Braille, large print, a notification of receipt of your grant score at or above the basic level in audiotape, or compact disc) by application. If you do not receive this mathematics on the NAEP; (3) the contacting the PSC listed under FOR notification within 15 business days percentage of AI/AN students in grades FURTHER INFORMATION CONTACT. On from the application deadline date, you three through eight meeting State Electronic Access to This Document: should contact the program office at achievement standards by scoring at or The official version of this document is (202) 453–7042. above the proficient level in reading and published in the Federal Register. You mathematics on State assessments; (4) V. Grant Administration Information may access the official edition of the the difference between the percentage of Federal Register and the Code of 1. Risk Assessment and Specific AI/AN students in grades three through Federal Regulations at www.govinfo.gov. Conditions: Consistent with 2 CFR eight at or above the proficient level in At this site you can view this document, 200.205, before awarding grants under reading and mathematics on State as well as other documents of this this program the Department conducts a assessments and the percentage of all Department published in the Federal review of the risks posed by applicants. students scoring at those levels; (5) the Register, in text or PDF. To use PDF, Under 2 CFR 3474.10, the Secretary may percentage of AI/AN students who you must have Adobe Acrobat Reader, impose specific conditions and, in graduate from high school as measured which is available free at the site. appropriate circumstances, high-risk by the four-year adjusted cohort conditions on a grant if the applicant or graduation rate; (6) the percentage of You may also access documents of the grantee is not financially stable; has a grantees providing culturally responsive Department published in the Federal history of unsatisfactory performance; activities; and (7) the percentage of Register by using the article search has a financial or other management funds used by grantees prior to award feature at: www.federalregister.gov. system that does not meet the standards close-out. Specifically, through the advanced in 2 CFR part 200, subpart D; has not Note: In any year in which NAEP or search feature at this site, you can limit fulfilled the conditions of a prior grant; State assessment data are systematically your search to documents published by or is otherwise not responsible. unavailable, reporting of such data will the Department. 2. Administrative and National Policy not be required and will not be used for Requirements: We identify purposes of performance measures. Frank T. Brogan, administrative and national policy 5. Integrity and Performance System: Assistant Secretary for Elementary and requirements in the application package If you receive an award under this grant Secondary Education. and reference these and other program that over the course of the [FR Doc. 2021–00321 Filed 1–11–21; 8:45 am] requirements in the Applicable project period may exceed the BILLING CODE 4000–01–P
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DEPARTMENT OF EDUCATION recommendations regarding the Federal Avenue SW, Washington, DC, by Government’s plans to celebrate the emailing [email protected] or by President’s Advisory 1776 250th anniversary of American phoning (202) 401–3003 to schedule an Commission Independence and coordinating with appointment. relevant external stakeholders on the AGENCY: Office of Communications and Public Comment: Members of the United States Semiquincentennial Outreach, U.S. Department of public may submit written statements Commission’s plans; (iii) facilitating the Education. regarding the work of The 1776 development and implementation of a ACTION: Announcement of an open ‘‘Presidential 1776 Award’’ to recognize Commission via Adam.Honeysett@ meeting. student knowledge of the American ed.gov (please use the subject line ‘‘January 2021 1776 Commission SUMMARY: This notice sets forth the founding, including knowledge about the Founders, the Declaration of Meeting Public Comment’’) or by letter agenda, time, and instructions for public to Adam Honeysett, Office of participation in the January 15, 2021, Independence, the Constitutional Convention, and the great soldiers and Communication and Outreach, U.S. meeting of the President’s Advisory Department of Education, 400 Maryland 1776 Commission (‘‘The 1776 battles of the American Revolutionary Avenue SW, 7W220, Washington, DC Commission’’) and provides information War; (iv) advising executive 20202, by Thursday, January 14, 2021. to members of the public regarding the departments and agencies with regard to meeting. Notice of this meeting is their efforts to ensure patriotic Reasonable Accommodations: The required under Section 10(a)(2) of the education—meaning the presentation of meeting platform and access code are Federal Advisory Committee Act the history of the American founding accessible to individuals with (FACA). This notice is being published and foundational principles, the disabilities. If you will need an auxiliary less than 15 days from the meeting date examination of how the United States aid or service for the meeting (e.g., due to the exceptional and immediate has grown closer to those principles interpreting service, assistive listening need to establish next steps for the work throughout its history, and the device, or materials in an alternate of The 1776 Commission in light of explanation of why commitment to format), notify the contact person listed America’s aspirations is beneficial and ongoing attacks on the American in this notice not later than Thursday, justified—and provide such education founding and critical discussion around January 14, 2021. Although we will to the public at national parks, the nation’s core principles for further attempt to meet a request received after battlefields, monuments, museums, enjoyment of liberty and striving ‘‘to that date, we may not be able to make form a more perfect Union.’’ installations, landmarks, cemeteries, and other places important to the available the requested auxiliary aid or DATES: The meeting of The 1776 American Revolution and the American service because of insufficient time to Commission will be held on Friday, founding, as appropriate and consistent arrange it. January 15, 2021, from 1:00 p.m. to 2:00 with applicable law; (v) advising Electronic Access to this Document: p.m. Eastern Standard Time at the agencies on prioritizing the American The official version of this document is Eisenhower Executive Office Building, founding in Federal grants and the document published in the Federal 1650 Pennsylvania Avenue NW, initiatives, including those described in Register. Free internet access to the Washington, DC 20502. Members of the section 4 of Executive Order 13958, as public can attend virtually. official edition of the Federal Register appropriate and consistent with and the Code of Federal Regulations is FOR FURTHER INFORMATION CONTACT: applicable law; and (vi) facilitating and available via the Federal Digital System Adam Honeysett, Designated Federal promoting other activities to support at: www.gpo.gov/fdsys. At this site you Official, Office of Communications and public knowledge and patriotic can view this document, as well as all Outreach, U.S. Department of education on the American Revolution other documents of this Department Education, 400 Maryland Avenue SW, and the American founding, as Room 7W220, Washington, DC 20202, published in the Federal Register, in appropriate and consistent with text or Adobe Portable Document telephone: (202) 401–3003 or email: applicable law. [email protected]. Format (PDF). To use PDF, you must Meeting Agenda: The agenda for The have Adobe Acrobat Reader, which is SUPPLEMENTARY INFORMATION: The 1776 1776 Commission meeting is available free at the site. You also may Commission’s Statutory Authority and consideration of a possible report as access documents of the Department Function: The 1776 Commission is called for under its charter. established under Executive Order published in the Federal Register by 13958 (November 2, 2020). The 1776 Instructions for Accessing the Meeting using the article search feature at: Commission’s duties are to advise the Members of the public can access the www.federalregister.gov. Specifically, President regarding how to better enable meeting by registering to obtain dial-in through the advanced search feature at a rising generation to understand the instructions by emailing Adam this site, you can limit your search to history and principles of the founding of Honeysett at [email protected]. documents published by the the United States in 1776 and to strive Due to technical constraints, registration Department. to form a more perfect Union by: (i) is limited to 200 participants and will Authority: Executive Order 13958 Producing a report, within 1 year of the be available on a first-come, first-served (November 2, 2020). date of Executive Order 13958, which basis. shall be publicly disseminated, Access to Records of the Meeting: The Elizabeth Hill, regarding the core principles of the Department will post the official report Delegated to perform the duties of the American founding and how these of the meeting on the Department’s Assistant Secretary, Communications principles may be understood to further website within 90 days after the Director, Office of Communications and enjoyment of ‘‘the blessings of liberty’’ meeting. In addition, pursuant to the Outreach. and to promote our striving ‘‘to form a FACA, the public may request to inspect [FR Doc. 2021–00525 Filed 1–8–21; 4:15 pm] more perfect Union;’’ (ii) offering records of the meeting at 400 Maryland BILLING CODE P
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DEPARTMENT OF ENERGY Building Technologies Office, Mail Stop all aspects of the petition, including the EE–5B, Petition for Waiver Case No. alternate test procedure. Pursuant to 10 [Case Number 2019–010; EERE–2019–BT– 2019–010, 1000 Independence Avenue CFR 431.401(d), any person submitting WAV–0029] SW, Washington, DC 20585–0121. If written comments to DOE must also Energy Conservation Program: possible, please submit all items on a send a copy of such comments to the Notification of Petition for Waiver of compact disc (‘‘CD’’), in which case it is petitioner. The contact information for Air Innovations From the Department not necessary to include printed copies. the petitioner is: Scott Toukatly, • of Energy Walk-In Coolers and Walk-In Hand Delivery/Courier: Appliance [email protected], 2301 Freezers Test Procedure and and Equipment Standards Program, U.S. SW 145th Avenue, Miramar, FL 33027. Notification of Grant of Interim Waiver Department of Energy, Building Submitting comments via http:// Technologies Office, 950 L’Enfant Plaza www.regulations.gov. The http:// AGENCY: Office of Energy Efficiency and SW, 6th Floor, Washington, DC 20024. www.regulations.gov web page will Renewable Energy, Department of Telephone: (202) 287–1445. If possible, require you to provide your name and Energy. please submit all items on a ‘‘CD’’, in contact information. Your contact ACTION: Notification of petition for which case it is not necessary to include information will be viewable to DOE waiver and grant of an interim waiver; printed copies. Building Technologies staff only. Your request for comments. No telefacsimilies (‘‘faxes’’) will be contact information will not be publicly accepted. For detailed instructions on viewable except for your first and last SUMMARY: This document announces submitting comments and additional names, organization name (if any), and receipt of and publishes a petition for information on this process, see the submitter representative name (if any). waiver and interim waiver from Air SUPPLEMENTARY INFORMATION section of If your comment is not processed Innovations, which seeks a waiver for this document. properly because of technical specified walk-in cooler refrigeration Docket: The docket, which includes difficulties, DOE will use this system basic models from the U.S. Federal Register notices, comments, information to contact you. If DOE Department of Energy (‘‘DOE’’) test and other supporting documents/ cannot read your comment due to procedure used to determine the materials, is available for review at technical difficulties and cannot contact efficiency and energy consumption of http://www.regulations.gov. All you for clarification, DOE may not be walk-in coolers and walk-in freezers. documents in the docket are listed in able to consider your comment. DOE also gives notice of an Interim the http://www.regulations.gov index. However, your contact information Waiver Order that requires Air However, some documents listed in the will be publicly viewable if you include Innovations to test and rate the specified index, such as those containing it in the comment or in any documents walk-in cooler refrigeration system basic information that is exempt from public attached to your comment. Any models in accordance with the alternate disclosure, may not be publicly information that you do not want to be test procedure set forth in the Interim available. publicly viewable should not be Waiver Order, which modifies the The docket web page can be found at included in your comment, nor in any alternate test procedure suggested by https://www.regulations.gov/ document attached to your comment. If Air Innovations. DOE solicits docket?D=EERE-2019-BT-WAV-0029. this instruction is followed, persons comments, data, and information The docket web page contains viewing comments will see only first concerning Air Innovations’ petition, its instruction on how to access all and last names, organization names, suggested alternate test procedure, and documents, including public comments, correspondence containing comments, the alternate test procedure specified in in the docket. See the SUPPLEMENTARY and any documents submitted with the the Interim Waiver Order so as to inform INFORMATION section for information on comments. DOE’s final decision on Air Innovations’ how to submit comments through Do not submit to http:// waiver request. http://www.regulations.gov. www.regulations.gov information for DATES: The Interim Waiver Order is FOR FURTHER INFORMATION CONTACT: Ms. which disclosure is restricted by statute, effective on January 12, 2021. Written Lucy deButts, U.S. Department of such as trade secrets and commercial or comments and information will be Energy, Office of Energy Efficiency and financial information (hereinafter accepted on or before February 11, 2021. Renewable Energy, Building referred to as Confidential Business ADDRESSES: Interested persons are Technologies Office, Mailstop EE–5B, Information (‘‘CBI’’)). Comments encouraged to submit comments using 1000 Independence Avenue SW, submitted through http:// the Federal eRulemaking Portal at Washington, DC 20585–0121. Email: www.regulations.gov cannot be claimed http://www.regulations.gov. [email protected]. as CBI. Comments received through the Alternatively, interested persons may Mr. Michael Kido, U.S. Department of website will waive any CBI claims for submit comments, identified by case Energy, Office of the General Counsel, the information submitted. For number ‘‘2019–010’’, and Docket Mail Stop GC–33, Forrestal Building, information on submitting CBI, see the number ‘‘EERE–2019–BT–WAV–0029,’’ 1000 Independence Avenue SW, Confidential Business Information by any of the following methods: Washington, DC 20585–0103. section. • Federal eRulemaking Portal: http:// Telephone: (202) 586–8145. Email: DOE processes submissions made www.regulations.gov. Follow the [email protected]@hq.doe.gov. through http://www.regulations.gov instructions for submitting comments. SUPPLEMENTARY INFORMATION: DOE is before posting. Normally, comments • Email: publishing Air Innovations’ petition for will be posted within a few days of AirInnovations2019WAV0029@ waiver, pursuant to 10 CFR being submitted. However, if large ee.doe.gov. Include Case No. 2019–010 431.401(b)(1)(iv), absent information for volumes of comments are being in the subject line of the message. which the petitioner requested processed simultaneously, your • Postal Mail: Appliance and treatment as confidential business comment may not be viewable for up to Equipment Standards Program, U.S. information. DOE invites all interested several weeks. Please keep the comment Department of Energy, Office of Energy parties to submit in writing by February tracking number that http:// Efficiency and Renewable Energy, 11, 2021, comments and information on www.regulations.gov provides after you
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have successfully uploaded your provided in the comments (except procedures. Relevant provisions of comment. information deemed to be exempt from EPCA include definitions (42 U.S.C. Submitting comments via email, hand public disclosure). 6311), test procedures (42 U.S.C. 6314), delivery/courier, or postal mail. labeling provisions (42 U.S.C. 6315), Signing Authority Comments and documents submitted energy conservation standards (42 via email, hand delivery/courier, or This document of the Department of U.S.C. 6313), and the authority to postal mail also will be posted to http:// Energy was signed on January 7, 2021, require information and reports from www.regulations.gov. If you do not want by Daniel R Simmons, Assistant manufacturers. (42 U.S.C. 6316) your personal contact information to be Secretary for Energy Efficiency and The Federal testing requirements publicly viewable, do not include it in Renewable Energy, pursuant to consist of test procedures that your comment or any accompanying delegated authority from the Secretary manufacturers of covered equipment documents. Instead, provide your of Energy. That document with the must use as the basis for: (1) Certifying contact information on a cover letter. original signature and date is to DOE that their equipment complies Include your first and last names, email maintained by DOE. For administrative with the applicable energy conservation address, telephone number, and purposes only, and in compliance with standards adopted pursuant to EPCA (42 optional mailing address. The cover requirements of the Office of the Federal U.S.C. 6316(a); 42 U.S.C. 6295(s)), and letter will not be publicly viewable as Register, the undersigned DOE Federal (2) making representations about the long as it does not include any Register Liaison Officer has been efficiency of that equipment (42 U.S.C. comments. authorized to sign and submit the 6314(d)). Similarly, DOE must use these Include contact information each time document in electronic format for test procedures to determine whether you submit comments, data, documents, publication, as an official document of the equipment complies with relevant and other information to DOE. If you the Department of Energy. This standards promulgated under EPCA. (42 submit via postal mail or hand delivery/ administrative process in no way alters U.S.C. 6316(a); 42 U.S.C. 6295(s)) courier, please provide all items on a the legal effect of this document upon Under 42 U.S.C. 6314, EPCA sets forth CD, if feasible, in which case it is not publication in the Federal Register. the criteria and procedures DOE is necessary to submit printed copies. Signed in Washington, DC, on January 7, required to follow when prescribing or Faxes will not be accepted. 2021. amending test procedures for covered Comments, data, and other Treena V. Garrett, equipment. EPCA requires that any test information submitted to DOE Federal Register Liaison Officer, U.S. procedures prescribed or amended electronically should be provided in Department of Energy. under this section must be reasonably PDF (preferred), Microsoft Word or designed to produce test results which Excel, WordPerfect, or text (ASCII) file Case Number 2019–010 reflect the energy efficiency, energy use format. Provide documents that are not Interim Waiver Order or estimated annual operating cost of secured, written in English and free of covered products and equipment during I. Background and Authority any defects or viruses. Documents a representative average use cycle and should not contain special characters or The Energy Policy and Conservation requires that test procedures not be any form of encryption and, if possible, Act, as amended (‘‘EPCA’’),1 authorizes unduly burdensome to conduct. (42 they should carry the electronic the U.S. Department of Energy (‘‘DOE’’) U.S.C. 6314(a)(2)) The test procedure signature of the author. to regulate the energy efficiency of a used to determine the net capacity and Campaign form letters. Please submit number of consumer products and annual walk-in energy factor (‘‘AWEF’’) campaign form letters by the originating certain industrial equipment. (42 U.S.C. of walk-in cooler and walk-in freezer organization in batches of between 50 to 6291–6317) Title III, Part C 2 of EPCA, refrigeration systems is contained in the 500 form letters per PDF or as one form added by the National Energy Code of Federal Regulations (‘‘CFR’’) at letter with a list of supporters’ names Conservation Policy Act, Public Law 10 CFR part 431, subpart R, appendix C, compiled into one or more PDFs. This 95–619, sec. 441 (Nov. 9, 1978), Uniform Test Method for the reduces comment processing and established the Energy Conservation Measurement of Net Capacity and posting time. Program for Certain Industrial AWEF of Walk-in Cooler and Walk-in Confidential Business Information. Equipment, which sets forth a variety of Freezer Refrigeration Systems According to 10 CFR 1004.11, any provisions designed to improve the (‘‘Appendix C’’). person submitting information that he energy efficiency for certain types of Under 10 CFR 431.401, any interested or she believes to be confidential and industrial equipment. Through person may submit a petition for waiver exempt by law from public disclosure amendments brought about by the from DOE’s test procedure should submit via email, postal mail, or Energy Independence and Security Act requirements. DOE will grant a waiver hand delivery/courier two well-marked of 2007, Public Law 110–140, sec. 312 from the test procedure requirements if copies: One copy of the document (Dec. 19, 2007), this equipment includes DOE determines either that the basic marked ‘‘confidential’’ including all the walk-in coolers and walk-in freezers, the model for which the waiver was information believed to be confidential, subject of this Interim Waiver Order. (42 requested contains a design and one copy of the document marked U.S.C. 6311(1)(G)) characteristic that prevents testing of the ‘‘non-confidential’’ with the information The energy conservation program basic model according to the prescribed believed to be confidential deleted. under EPCA consists essentially of four test procedures, or that the prescribed Submit these documents via email or on parts: (1) Testing, (2) labeling, (3) test procedures evaluate the basic model a CD, if feasible. DOE will make its own Federal energy conservation standards, in a manner so unrepresentative of its determination about the confidential and (4) certification and enforcement true energy consumption characteristics status of the information and treat it as to provide materially inaccurate according to its determination. 1 All references to EPCA in this document refer comparative data. See 10 CFR It is DOE’s policy that all comments to the statute as amended through America’s Water 431.401(f)(2). A petitioner must include Infrastructure Act of 2018, Public Law 115–270 may be included in the public docket, (Oct. 23, 2018). in its petition any alternate test without change and as received, 2 For editorial reasons, upon codification in the procedures known to the petitioner to including any personal information U.S. Code, Part C was redesignated as Part A–1. evaluate the performance of the
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equipment type in a manner prescribed test procedure would Innovations also asserts that operating a representative of its energy evaluate the specified basic models in a wine cellar at the 35 °F condition would consumption characteristics of the basic manner so unrepresentative of their true adversely mechanically alter the model. See 10 CFR 431.401(b)(1)(iii). energy consumption as to provide intended performance of the system, DOE may grant the waiver subject to materially inaccurate comparative data. which would include icing of the conditions, including adherence to As presented in Air Innovations’ evaporator coil that could potentially alternate test procedures. See 10 CFR petition, the specified basic models of damage the compressor, and would not 431.401(f)(2). walk-in cooler refrigeration systems result in an accurate representation of As soon as practicable after the operate at a temperature range of 45– the performance of the cooling unit. granting of any waiver, DOE will 65 °F; higher than that of a typical walk- Additionally, the Thru-the-wall publish in the Federal Register a notice in cooler refrigeration system. Thus, the (TTW009 and TTW018) and Ducted of proposed rulemaking to amend its 35 °F temperature specified in the DOE Self-contained (D025, D050, D088, and regulations so as to eliminate any need test procedure for medium-temperature D200) basic models of walk-in for the continuation of such waiver. See walk-in refrigeration systems would refrigeration systems identified in Air 10 CFR 431.401(1). As soon thereafter as result in the prescribed test procedures Innovations’ waiver petition are single- practicable, DOE will publish in the evaluating the specified basic models in package systems. Although not Federal Register a final rule to that a manner so unrepresentative of their explicitly identified by Air Innovations, effect. Id. true energy consumption characteristics DOE recognizes that because of their The waiver process also provides that as to provide materially inaccurate single-package design, these basic DOE may grant an interim waiver if it comparative data. Air Innovations also models have insufficient space within appears likely that the underlying states that the specified basic models are the units and insufficient lengths of petition for waiver will be granted and/ ‘‘wine cellar cooling systems’’ that liquid line and evaporator outlet line for or if DOE determines that it would be operate at temperature and relative the dual mass flow meters and the dual desirable for public policy reasons to humidity ranges optimized for the long- temperature and pressure measurements grant immediate relief pending a term storage of wine and are usually required by the test procedure’s determination on the underlying located in air-conditioned spaces. Air refrigerant enthalpy method. AHRI petition for waiver. See 10 CFR Innovations contends that because of 1250–2009 does not include specific 431.401(e)(2). Within one year of these characteristics, wine cellar walk- provisions for testing single-package issuance of an interim waiver, DOE will in refrigeration systems differ in their systems and testing these basic models either: (i) Publish in the Federal walk-in box temperature setpoint, walk- using the refrigerant enthalpy method as Register a determination on the petition in box relative humidity, low/high load required by Appendix C would require for waiver; or (ii) publish in the Federal split,4 and compressor efficiency from extensive additional piping to route the Register a new or amended test other walk-in cooler refrigeration pipes out of the system where the procedure that addresses the issues systems. components can be installed, and then presented in the waiver. See 10 CFR Air Innovations states that the back in.6 This additional piping would 431.401(h)(1). specified basic models are designed to impact unit performance, likely be When DOE amends the test procedure provide a cold environment at a inconsistent between test labs, and to address the issues presented in a temperature range between 45–65 °F result in unrepresentative test values for waiver, the waiver will automatically with 50–70 percent relative humidity the unit under test. AHRI has recently terminate on the date on which use of (‘‘RH’’), and typically are kept at 55 °F published a revised version of the test that test procedure is required to and 55 percent RH rather than the 35 °F standard that provides provisions for demonstrate compliance. See 10 CFR and <50 percent RH test condition single-package systems without 431.401(h)(2). prescribed by the DOE test procedure. requiring extensive additional piping The website for Air Innovations’ Wine (AHRI 1250–2020, 2020 Standard for II. Air Innovations’ Petition for Waiver Guardian brand stresses the importance Performance Rating of Walk-in Coolers and Application for Interim Waiver of temperature control for optimum and Freezers). As discussed below, the On September 23, 2019, DOE received wine storage, and states that the ideal interim waiver alternative test an email from Air Innovations filing a temperature range for wine storage is procedure presented for comment in petition for an interim waiver from the 55 °F to 57 °F and that the ideal average this notification adopts the new test test procedure for walk-in cooler and relative humidity is 60 percent.5 methods included in AHRI 1250–2020 walk-in freezer refrigeration systems set Further, Air Innovations states that the for single-package units. forth at Appendix C (Air Innovations, refrigeration systems are designed solely DOE has received multiple requests No. 1 at p. 1 3). The waiver process for the purpose of long-term wine from wine cellar manufacturers for under 10 CFR 431.401 requires that a storage to mimic the temperature and waiver and interim waiver from petitioner must request a waiver for humidity of natural caves. Air Appendix C. In light of these requests, there to be consideration of a petition for an interim waiver. Air Innovations 4 The DOE test procedure incorporates by 6 In a waiver granted to Store It Cold for certain later confirmed in a May 21, 2020 email reference Air-Conditioning, Heating, and models of single-package units, DOE acknowledged Refrigeration Institute (‘‘AHRI’’) Test Standard a similar issue in which the additional piping that the petition should also be 1250–2009, ‘‘Standard for Performance Rating of necessary to install the required testing components considered as a petition for waiver (Air Walk-in Coolers and Freezers’’ (including Errata would affect performance of the units, rendering the Innovations, No. 4). sheet dated December 2015) (‘‘AHRI 1250–2009’’). results unrepresentative. See 84 FR 39286 (Aug. 9, The primary assertion in the petition, Section 6 of that standard defines walk-in box 2019). In the case of the waiver granted to Store It thermal loads as a function of refrigeration system Cold, the refrigerant enthalpy method yielded absent an interim waiver, is that the net capacity for both high-load and low-load inaccurate data for the specified basic models periods. The waiver petition asserts that wine compared to the basic models’ true performance 3 A notation in the form ‘‘Air Innovations, No. 1’’ cellars do not have distinct high and low load characteristics because of the additional piping identifies a written submission: (1) Made by Air periods, and that the box load levels in the test required to attach the testing components required Innovations; and (2) recorded in document number standard are not representative for wine cellar by the refrigerant enthalpy test. The same issues are 1 that is filed in the docket of this petition for refrigeration systems. present for the specified basic Thru-the-wall and waiver (Docket No. EERE–2019–BT–WAV–0029) 5 https://wineguardian.com/proper-wine-storage- Ducted Self-contained single-package basic models and available at http://www.regulations.gov. temperature-and-humidity/. included in Air Innovations’ waiver petition.
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DOE met with the AHRI and wine cellar when making representations about the The Through-the-wall and Ducted Self- walk-in refrigeration system energy consumption and energy contained Systems are single-package manufacturers to develop a consistent consumption costs of covered systems. The basic models that are and representative alternate test equipment. (42 U.S.C. 6314(d)). Through-the-wall systems (basic model procedure that would be relevant to Consistency is important when making numbers TTW009 and TTW018) are each waiver request. Ultimately, AHRI representations about the energy designed for installation through the sent a letter to DOE on August 18, 2020, efficiency of products and equipment, wall of a wine cellar, while the basic summarizing the industry’s position on including when demonstrating models that are Ducted Self-contained several issues (‘‘AHRI August 2020 compliance with applicable DOE energy systems (basic model numbers D025, Letter’’).7 This letter documents conservation standards. Pursuant to its D050, D088, D200) are designed to be industry support for specific wine cellar regulations at 10 CFR 431.401, and after installed remotely from the wine cellar walk-in refrigeration system test consideration of public comments on and provide cooling by circulating air procedure requirements, allowing the the petition, DOE may establish in a through ducts from the wine cellar to provisions to apply only to refrigeration subsequent Decision and Order an the unit and back. The basic models that systems with a minimum operating alternate test procedure for the basic are Ducted Split Systems (basic model temperature of 45 °F, since wine cellar models addressed by the Interim Waiver numbers DS025, DS050, DS088, and system controls and unit design Order. DS200) and Ductless Split Systems specifications prevent a temperature Air Innovations seeks to use an (basic model numbers SS018 CS025, below 45 °F. A provision for testing approach that would test and rate and CS050) are split (matched) systems, walk-in wine cellar refrigeration specific wine cellar walk-in refrigeration in which refrigerant circulates between systems at an external static pressure system basic models. The company’s the ‘‘fan coil’’ (unit cooler) portion of (‘‘ESP’’) 8 of 50 percent of the maximum suggested approach specifies using an the unit and the ‘‘condensing unit’’. The ° ESP to be specified by manufacturers for air-return temperature of 55 F, as refrigerant cools the wine cellar air in ° each basic model (AHRI August 2020 opposed to the 35 F requirement the fan coil, while the condensing unit Letter) is also included. prescribed in the current DOE test rejects heat from the refrigeration Accordingly, Air Innovations procedure. Air Innovations also suggests system in a remote location, often submitted an updated petition for using an air-return relative humidity of outside. The fan coil of the Ducted Split waiver and interim waiver on October 55 percent RH, as opposed to <50 System circulates air through ducts from 19, 2020 (Air Innovations, No. 6). The percent RH. Additionally, Air the wine cellar to the fan coil and back updated petition states that all basic Innovations requests that a correction to provide cooling, while the fan coil of models listed in the petition for waiver factor of 0.55 be applied to the final the Ductless Split System is installed and interim waiver cannot be operated AWEF calculation to account for the ° either partially or entirely in the wine at a temperature less than 45 F and different use and load patterns of the cellar, allowing direct cooling. The provides DOE with maximum ESP specified basic models as compared to capacity range of the specified basic values for specified ducted self- walk-in cooler refrigeration systems models is from 1,130 Btu/h to 15,000 contained and ducted split system basic generally. Air Innovations cited the use 9 Btu/h for the specified operating models. of such a correction factor for coolers 10 conditions for each of the models.11 Air Innovations requests an interim and combination cooler refrigeration DOE considers the operating waiver from the existing DOE test products under DOE’s test procedure for temperature range of the specified basic procedure. DOE will grant an interim miscellaneous refrigeration products at models to be integral to its analysis of waiver if it appears likely that the 10 CFR part 430, subpart B, appendix A. whether such models require a test petition for waiver will be granted, and/ procedure waiver. Grant of the interim or if DOE determines that it would be IV. Interim Waiver Order waiver and its alternative test procedure desirable for public policy reasons to DOE has reviewed Air Innovations’ to the specified basic models listed in grant immediate relief pending a application, its suggested testing the petition is based upon the determination of the petition for waiver. approach, representations of the representation by Air Innovations that See 10 CFR 431.401(e)(2). specified basic models on the website the operating range for the basic models III. Requested Alternate Test Procedure for the Wine Guardian brand, related listed in the interim waiver does not product catalogs, and information extend below 45 °F. EPCA requires that manufacturers use provided by Air Innovations and other the applicable DOE test procedures The alternate test procedure specified wine cellar walk-in refrigeration system in the Interim Waiver Order requires manufacturers in meetings with DOE. 7 DOE’s meetings with Air Innovations and other testing the specified basic models wine cellar refrigeration systems were conducted Based on this review, DOE is granting according to Appendix C with the consistent with the Department’s ex parte meeting an interim waiver that requires testing following changes. The required guidance (74 FR 52795; October 14, 2009). The with a modified version of the testing alternate test procedure specifies an air AHRI August 2020 letter memorializes this approach suggested by Air Innovations. entering dry-bulb temperature of 55 °F communication and is provided in Docket No. The modified testing approach would EERE- 2019–BT–WAV–0029–0005. and a relative humidity of 55 percent. 8 External static pressure is the sum of all the apply to the models specified in Air The alternate test procedure also pressure resisting the fans, in this case chiefly the Innovations’ waiver petition that specifies that the capacity measurement resistance generated by the air moving through include two categories of WICF for the specified basic models that are ductwork. refrigeration systems, i.e., single 9 Air Innovations’ has stated that the maximum ESP values included in their updated petition for package and split (matched) systems. 11 The specified operating conditions vary among waiver are confidential business information. These the models but are generally 57 °F and 55% relative values have been replaced by ‘‘[ESP REDACTED]’’ 10 A cooler is a cabinet, used with one or more humidity cold-side air entering conditions and in the publicly available petition. Further, Air doors, that has a source of refrigeration capable of either 75 °F or 80 °F warm-side air entering Innovations included a maximum ESP for model operating on single-phase, alternating current and is temperature. An example series of specified models TTW018 in a clarifying email on December 18, 2020 capable of maintaining compartment temperatures with capacity information based upon these (Air Innovations, No. 10). This value has also been either: (1) No lower than 39 °F (3.9 °C); or (2) In a conditions can be found at https:// replaced by ‘‘[ESP REDACTED]’’ in the publicly range that extends no lower than 37 °F (2.8 °C) but wineguardian.com/wp-content/uploads/2020/01/ available version. at least as high as 60 °F (15.6 °C). 10 CFR 430.2. Split-System-Datasheet-2020-01-16.pdf.
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single-package systems (i.e., the Thru- by Air Innovations for the specified test procedure required by the Interim the-wall and Ducted Self-contained basic models. Given that the number Waiver Order. The company had systems) be conducted using a primary and degree of duct bends and duct type observed that the test procedure in and a secondary capacity measurement will vary by installation, DOE found the appendix A to subpart B of 10 CFR part method as specified in AHRI 1250– maximum ESP values provided by Air 430 (‘‘Appendix A’’), includes such a 2020, using two of the following: The Innovations to be sufficiently factor to account for the difference in indoor air enthalpy method; the outdoor representative. use and loading patterns of coolers (e.g., air enthalpy method; the compressor Selection of a representative ESP self-contained wine chiller cabinets) as calibration method; the indoor room equal to half the maximum ESP is based compared to other residential calorimeter method; the outdoor room on the expectation that most refrigeration products and sought to calorimeter method; or the balanced installations will require less than the include a factor as part of its petition. ambient room calorimeter method. maximum allowable duct length. In the Coolers, like other residential The required alternate test procedure absence of field data, DOE expects that refrigeration products, are tested in a also includes the following additional a range of duct lengths from the 90 °F room without door openings modifications to Air Innovations’ minimal length to the maximum (section 2.1.1 of Appendix A). The suggested approach: For systems that allowable length would be used; thus, intent of the energy test procedure for can be installed with (1) ducted DOE believes that half of the maximum residential refrigeration products is to evaporator air, (2) with or without ESP would be representative of most simulate operation in typical room ducted evaporator air, (3) ducted installations. For basic models with conditions (72 °F) with door openings condenser air, or (4) with or without condenser or evaporator systems that by testing at 90 °F ambient temperature ducted condenser air, testing would be are not designed for the ducting of air, without door openings. 10 CFR conducted at 50 percent of the this design characteristic must be 430.23(ff)(7). In section 5.2.1.1 of maximum ESP, consistent with the clearly stated. Appendix A, a correction factor of 0.55 AHRI August 2020 Letter Additionally, if there are multiple is applied to the measured energy recommendations, subject to a tolerance condenser or fan-coil (unit cooler) fan consumption of coolers so that of ¥0.00/+0.05 in. wc.12 DOE speed settings, the speed setting used measuring energy consumption at 90 °F understands that maximum ESP is would be as instructed in the unit’s ambient temperature without door generally not published in available installation instructions. However, if the openings provides test results that are literature such as installation installation instructions do not specify a representative of consumer usage at instructions, but manufacturers do fan speed setting for ducted installation, 72 °F ambient temperature with door generally specify the size and maximum systems that can be installed with ducts openings. Specifically, the 0.55 length of ductwork that is acceptable for would be tested with the highest correction factor reflects that (1) closed- any given unit in such literature. The available fan speed. The ESP would be door operation of self-contained coolers duct specifications determine what ESP set for testing either by symmetrically in typical 72 °F room conditions results would be imposed on the unit in field restricting the outlet duct 16 or, if using in an average energy consumption 0.46 operation.13 The provision of allowable the indoor air enthalpy method, by times the value measured at the 90 °F duct dimensions is more convenient for adjusting the airflow measurement ambient temperature specified by the installers than maximum ESP, since it apparatus blower. test procedure; and (2) expected door relieves the installer from having to The alternate test procedure also openings of a self-contained wine perform duct pressure drop calculations describes the requirements for chiller would add an additional 20% to determine ESP. DOE independently measurement of ESP consistent with thermal load. Multiplying 0.46 by 1.2 calculated the maximum pressure drop provisions provided in AHRI 1250–2020 results in the overall correction factor of over a range of common duct roughness when using the indoor air enthalpy 0.55. See 81 FR 46768, 46782 (July 18, values 14 using duct lengths and method with unit coolers. 2016) (final rule for miscellaneous diameters published in Air Innovations’ Additionally, the alternate test refrigeration products). installation manuals.15 DOE’s procedure indicates that specified basic In contrast, these same closed-door calculations show reasonable agreement models that are split systems must be conditions on which the miscellaneous with the maximum ESP values provided tested as matched pairs. According to refrigeration correction factor is based Air Innovations’ petition, the walk-in are not present in the test procedure for 12 Inches of water column (‘‘in. wc’’) is a unit of refrigeration system basic models that walk-in cooler refrigeration systems. pressure conventionally used for measurement of are split-systems are sold as full systems The WICF test procedure does not pressure differentials. provide for closed-door testing at 13 The duct material, length, diameter, shape, and (i.e., matched pairs) rather than as configuration are used to calculate the ESP individual unit cooler and condensing elevated ambient temperatures as the generated in the duct, along with the temperature unit components. This Interim Waiver test procedure for residential and flow rate of the air passing through the duct. Order provides no direction regarding refrigeration products does because The conditions during normal operation that result refrigerant line connection operating walk-ins are tested and rated by in a maximum ESP are used to calculate the component, with a walk-in refrigeration reported maximum ESP values, which are conditions, and as such is inapplicable dependent on individual unit design and represent to testing the basic models as individual system tested and rated separately from manufacturer-recommended installation and use. components. Consequently, the Interim a walk-in enclosure (panels and doors). 14 Calculations were conducted over an absolute See 76 FR 21580. Walk-in refrigeration roughness range of 1.0–4.6 mm for flexible duct as Waiver Order addresses only matched- pair testing of the specified basic load is set by using a representative defined in pages 1–2 of an OSTI Journal Article on ratio of box load to capacity (see pressure loss in flexible HVAC ducts at https:// models that are split-systems. www.osti.gov/servlets/purl/836654 (Docket No. DOE notes that, despite the request discussion below). As a result, applying EERE–2019–BT–WAV–0029) and available at from Air Innovations, it is not including the 0.55 correction factor as suggested http://www.regulations.gov. a 0.55 correction factor in the alternate by Air Innovations is not appropriate for 15 Duct lengths and diameters can be found in Air the specified basic models. Innovations’ installation manuals at http:// www.regulations.gov Docket No. EERE–2019–BT– 16 This approach is used for testing of furnace Further, Air Innovations asserted that WAV–0029–0008 and Docket No. EERE–2019–BT– fans, as described in Section 8.6.1.1 of 10 CFR part the suggested 0.55 correction factor was WAV–0029–0009. 430, appendix AA to subpart B. to address the differences in run time
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and compressor inefficiency of the temperature for outdoor refrigeration Based on DOE’s review of Air specified basic models as compared to systems. Setting the walk-in box load Innovations’ petition, the required walk-in cooler refrigeration systems equal to half the refrigeration system net alternate test procedure laid out in the more generally. It suggested that the run capacity results in a refrigeration system Interim Waiver Order appears to allow time for wine cellar walk-in run time fraction slightly above 50 for the accurate measurement of energy refrigeration systems ranges from 50 to percent, which is in the range suggested efficiency of the specified basic models, 75 percent. AHRI 1250–2009 accounts by Air Innovations as being while alleviating the testing issues for percent run time in the AWEF representative for the specified basic associated with Air Innovations’ calculation by setting walk-in box load models. As previously discussed, walk- implementation of wine cellar walk-in equal to specific fractions of in energy consumption is determined by refrigeration system testing for these refrigeration system net capacity—the component, with separate test basic models. Consequently, DOE has fractions are defined based on whether procedures for walk-in refrigeration determined that Air Innovations’ the refrigeration system is for cooler or petition for waiver will likely be systems, doors, and panels. Section 6 of freezer applications, and whether it is granted. Furthermore, DOE has AHRI 1250–2009 provides equations for designed for indoor or outdoor determined that it is desirable for public installation (see sections 6.2 (applicable determining refrigeration box load as a policy reasons to grant Air Innovations to coolers) and 6.3 (applicable to function of refrigeration system immediate relief pending a freezers) of AHRI 1250–2009). The capacity. Using these equations with an determination of the petition for waiver. alternate test procedure provided by this assumed load factor of 50 percent For the reasons stated, it is Ordered interim waiver requires calculating maintains consistency with Appendix C that: AWEF based on setting the walk-in box while providing an appropriate load (1) Air Innovations must test and rate load equal to half of the refrigeration fraction for wine cellar refrigeration the following Air Innovations-branded system net capacity, without variation systems. Accordingly, DOE has declined wine cellar walk-in refrigeration system according to high and low load periods to adopt a correction factor for the basic models 17 with the alternate test and without variation with outdoor air equipment at issue. procedure set forth in paragraph (2).
Ducted Ducted Ductless Through-the-wall self-contained split system split system
TTW018 ...... D025 DS025 SS018 D050 DS050 CS025 D088 DS088 CS050 D0200 DS200
(2) The alternate test procedure for the modifications to AHRI 1250–2009 In Appendix C to Subpart R, revise Air Innovations basic models identified (incorporated by reference; see section 3.1.4 (which specifies in paragraph (1) of this Interim Waiver § 431.303)) to read: modifications to AHRI 1250–2009) and Order is the test procedure for Walk-in 3.1.1. In Table 1, Instrumentation add modifications of AHRI 1250–2009 Cooler Refrigeration Systems prescribed Accuracy, refrigerant temperature Tables 3 and 4 to read: by DOE at 10 CFR part 431, subpart R, measurements shall have an accuracy of 3.1.4. In Tables 3 and 4 of AHRI appendix C (‘‘Appendix C to Subpart ±0.5 °F for unit cooler in/out. R’’), except as detailed below. All other Measurements used to determine 1250–2009, Section 5, the Condenser requirements of Appendix C to Subpart temperature or water vapor content of Air Entering Wet-Bulb Temperature R, and DOE’s regulations remain the air (i.e., wet bulb or dew point) shall requirement applies only to single- applicable. be accurate to within ±0.25 °F; all other packaged dedicated systems. Tables 3 In Appendix C to Subpart R, revise temperature measurements shall be and 4 shall be modified to read: section 3.1.1 (which specifies accurate to within ±1.0 °F.
TABLE 3—FIXED CAPACITY MATCHED REFRIGERATOR SYSTEM AND SINGLE-PACKAGED DEDICATED SYSTEM, CONDENSING UNIT LOCATED INDOOR
Unit cooler Unit cooler Condenser Maximum air entering air entering condenser Test description relative air entering air entering Compressor Test objective dry-bulb, humidity, dry-bulb, status °F °F wet-bulb, % 1 °F
Evaporator Fan Power ...... 55 55 ...... Measure fan input wattage.2 Refrigeration Capacity ...... 55 55 90 3 65 Compressor Determine Net Refrigeration On. Capacity of Unit Cooler, input power, and EER at Rating Condition. 1 The test condition tolerance (maximum permissible variation of the average value of the measurement from the specified test condition) for relative humidity is 3%. 2 Measure fan input wattage either by measuring total system power when the compressor and condenser are turned off or by separately sub- metering the evaporator fan.
17 Basic model TTW009 was initially included in submission on December 18, 2020 stating that Air Innovations has decided to discontinue offering Air Innovation’s petition, prior to an email model TTW009 (Air Innovations, No. 10).
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3 Maximum allowable value for Single-Packaged Systems that do not use evaporative Dedicated Condensing Units, where all or part of the equipment is located in the outdoor room.
TABLE 4—FIXED CAPACITY MATCHED REFRIGERATOR SYSTEM AND SINGLE-PACKAGED DEDICATED SYSTEM, CONDENSING UNIT LOCATED OUTDOOR
Maximum Unit cooler Unit cooler Condenser air entering air entering condenser air Compressor Test description air entering relative entering wet- Test objective dry-bulb, dry-bulb, bulb, status °F humidity, °F % 1 °F
Evaporator Fan Power ...... 55 55 ...... Measure fan input wattage.2 Refrigeration Capacity A ...... 55 55 95 3 68 Compressor Determine Net Refrigeration On. Capacity of Unit Cooler, input power, and EER at Rating Condition. Refrigeration Capacity B ...... 55 55 59 3 46 Compressor Determine Net Refrigeration On. Capacity of Unit Cooler and system input power at moderate condition. Refrigeration Capacity C ..... 55 55 35 3 29 Compressor Determine Net Refrigeration On. Capacity of Unit Cooler and system input power at cold condition. 1 The test condition tolerance (maximum permissible variation of the average value of the measurement from the specified test condition) for relative humidity is 3%. 2 Measure fan input wattage either by measuring total system power when the compressor and condenser are turned off or by separately sub- metering the evaporator fan. 3 Maximum allowable value for Single-Packaged Dedicated Systems that do not use evaporative Dedicated Condensing Units, where all or part of the equipment is located in the outdoor room.
In Appendix C to Subpart R, Section C3.5 of AHRI 1250–2009. This 3.3.8. Measure power and capacity of following section 3.2.5 (instructions measurement shall be made with the fan single-packaged dedicated systems as regarding modifications to AHRI 1250– operating at full speed, either measuring described in sections C4.1.2 and C9 of 2009), add sections 3.2.6 and 3.2.7 to unit cooler or total system power input AHRI 1250–2020. The third and fourth read: upon the completion of the steady state sentences of Section C9.1.1.1 of AHRI 3.2.6. The purpose in section C1 of test when the compressors and 1250–2020 (‘‘Entering air is to be appendix C is modified by extending it condenser fan of the walk-in system is sufficiently dry as to not produce frost to include Single-Packaged Dedicated turned off, or by submetered on the Unit Cooler coil. Therefore, only Systems. measurement of the evaporator fan sensible capacity measured by dry bulb 3.2.7. For general test conditions and power during the steady state test. change shall be used to calculate data recording (appendix C, section C7), Section C3.5 of AHRI 1250–2009 is capacity.’’) shall not apply. the test acceptance criteria in Table 2 revised to read: 3.3.9. For systems with ducted and the data to be recorded in Table C2 Unit Cooler Fan Power Measurement. evaporator air, or that can be installed apply to the Dual Instrumentation and The following shall be measured and with or without ducted evaporator air: Calibrated Box methods of test. recorded during a fan power test. Connect ductwork on both the inlet and In Appendix C to Subpart R, revise EFcomp,on Total electrical power input outlet connections and determine section 3.3 to read: to fan motor(s) of Unit Cooler, W external static pressure as described in 3.3. Matched systems, single- FS Fan speed (s), rpm ASHRAE 37–2009, sections 6.4 and 6.5. packaged dedicated systems, and unit N Number of motors Use pressure measurement coolers tested alone: Test any split Pb Barometric pressure, in. Hg instrumentation as described in system wine cellar walk-in refrigeration Tdb Dry-bulb temperature of air at ASHRAE 37–2009 section 5.3.2. Test at system as a matched pair. Any inlet, °F the fan speed specified in manufacturer condensing unit or unit cooler Twb Wet-bulb temperature of air at installation instructions—if there is ° component must be matched with a inlet, F more than one fan speed setting and the corresponding counterpart for testing. V Voltage of each phase, V installation instructions do not specify Use the test method in AHRI 1250–2009 For a given motor winding which speed to use, test at the highest (incorporated by reference; see configuration, the total power input speed. Conduct tests with the external § 431.303), appendix C as the method of shall be measured at the highest static pressure equal to 50 percent of the test for matched refrigeration systems, nameplated voltage. For three-phase maximum external static pressure single-packaged dedicated systems, or power, voltage imbalance shall be no allowed by the manufacturer for system unit coolers tested alone, with the more than 2%. installation within a tolerance of ¥0.00/ following modifications: 3.3.3.2. Evaporator fan power for the +0.05 in. wc. If testing with the indoor off cycle is equal to the on-cycle * * * * * air enthalpy method, adjust the airflow In Appendix C to Subpart R, revise evaporator fan power with a run time of measurement apparatus fan to set the sections 3.3.3 through 3.3.3.2 to read: ten percent of the off-cycle time. external static pressure—otherwise, set × 3.3.3. Evaporator fan power. EFcomp,of f = 0.1 EFcomp,on the external static pressure by 3.3.3.1. The unit cooler fan power In Appendix C to Subpart R, symmetrically restricting the outlet of consumption shall be measured in following section 3.3.7.2, add new the test duct. In case of conflict, these accordance with the requirements in sections 3.3.8, 3.3.9, and 3.3.10 to read: requirements for setting evaporator
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airflow take precedence over airflow which speed to use, test at the highest enthalpy method, the requirements of values specified in manufacturer speed. Conduct tests with the external section 8.6 of ASHRAE 37–2009 are not installation instructions or product static pressure equal to 50 percent of the applicable. literature. maximum external static pressure In Appendix C to Subpart R, revise 3.3.10. For systems with ducted allowed by the manufacturer for system section 3.3.6 (which specifies condenser air, or that can be installed installation within a tolerance of ¥0.00/ modifications to AHRI 1250–2009) to with or without ducted condenser air: +0.05 in. wc. If testing with the outdoor read: Connect ductwork on both the inlet and enthalpy method, adjust the airflow 3.3.6. AWEF is calculated on the basis outlet connections and determine measurement apparatus fan to set the that walk-in box load is equal to half of external static pressure as described in external static pressure—otherwise, set the system net capacity, without ASHRAE 37–2009, sections 6.4 and 6.5. the external static pressure by variation according to high and low load Use pressure measurement symmetrically restricting the outlet of periods and without variation with instrumentation as described in the test duct. In case of conflict, these outdoor air temperature for outdoor ASHRAE 37–2009 section 5.3.2. Test at requirements for setting condenser refrigeration systems, and the test must the fan speed specified in manufacturer airflow take precedence over airflow be done as a matched or single-package installation instructions—if there is values specified in manufacturer refrigeration system, as follows: more than one fan speed setting and the installation instructions or product For Indoor Condensing Units: installation instructions do not specify literature. If testing using the outdoor air BILLING CODE 6450–01–P
For Outdoor Condensing Units:
BILLING CODE 6450–01–C has been tested in accordance with the (5) This Interim Waiver Order is (3) Representations. Air Innovations provisions set forth above and such issued on the condition that the may not make representations about the representations fairly disclose the statements and representations provided efficiency of a basic model listed in results of such testing. by Air Innovations are valid. If Air paragraph (1) of this Interim Waiver (4) This interim waiver shall remain Innovations makes any modifications to Order for compliance, marketing, or in effect according to the provisions of the controls or configurations of a basic other purposes unless that basic model 10 CFR 430.401. model subject to this Interim Waiver
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Order, such modifications will render We ask that you refer to each of these term storage of wine like that in natural the waiver invalid with respect to that website links to see our products, and caves. basic model, and Air Innovations will their applications • These cooling systems are all-in-one either be required to use the current https://wineguardian.com/https:// ready for use and no more refrigerant Federal test method or submit a new wineguardian.com/wine-cellar- piping is required in the field. application for a test procedure waiver. cooling-units/ • These cooling systems are factory- DOE may rescind or modify this waiver https://wineguardian.com/wine-cellar- built, critically charged and tested, and at any time if it determines the factual cooling-units/through-the-wall/ only require through-the-wall basis underlying the petition for the https://wineguardian.com/wine-cellar- installation on walk-in wine cellars in Interim Waiver Order is incorrect, or the cooling-units/ducted-wine-cellar- the field. • results from the alternate test procedure cooling-systems/ These systems are available as are unrepresentative of a basic model’s https://wineguardian.com/wine-cellar- indoor or outdoor uses with automatic cooling-units/split-system/ off-cycle air defrost. true energy consumption characteristics. • 10 CFR 431.401(k)(1). Likewise, Air The design characteristics Wine cellars are usually located in Innovations may request that DOE constituting the grounds for the Waiver air-conditioned spaces. rescind or modify the Interim Waiver and Interim Waiver Application: SPLIT COOLING SYSTEMS FOR Order if Air Innovations discovers an AHRI 1250–2009 is silent on the WALK-IN WINE CELLARS (refer to error in the information provided to definition of single packaged and matched-pair walk-in cooler DOE as part of its petition, determines matched pair refrigeration systems, refrigeration systems in AHRI 1250) that the interim waiver is no longer however, as seen in Section 3.12 of the * All basic models listed in our needed, or for other appropriate reasons. public comment version of soon to be petition for Waiver and Interim Waiver 10 CFR 431.401(k)(2). published revision of AHRI 1250, these cannot be operated at a temperature (6) Issuance of this Interim Waiver type of products are defined as follows: less than 45F. • Order does not release Air Innovations 3.12 Refrigeration System. The Split cooling systems are designed from the certification requirements set mechanism (including all controls and to provide cold environment between ∼ ° forth at 10 CFR part 429. other components integral to the 45 65 F and maintain relative humidity ∼ DOE makes decisions on waivers and system’s operation) used to create the range within 50 70% for properly interim waivers for only those basic refrigerated environment in the interior insulated wine cellars. • models specifically set out in the of a walk-in cooler or walk-in freezer, These temperature and relative petition, not future models that may be consisting of: A Dedicated Condensing humidity ranges are optimized for long manufactured by the petitioner. Air Unit; or A Unit Cooler. term storage of wine like that in natural Innovations may submit a new or caves. 3.12.1 Matched Refrigeration System • amended petition for waiver and request (Matched-pair). A combination of a These cooling systems consist of a for grant of interim waiver, as Dedicated Condensing Unit and one or remote condensing unit and an appropriate, for additional basic models more Unit Coolers specified by the evaporator unit, which are connected by of Walk-in Cooler Refrigeration Systems. Dedicated Condensing Unit a liquid line and an insulated suction Alternatively, if appropriate, Air line. manufacturer which are all distributed • Innovations may request that DOE in commerce together. Single-Packaged These systems must be charged extend the scope of a waiver or an Dedicated Systems are a subset of properly with refrigerant in the field. • These systems are available as interim waiver to include additional Matched Refrigeration Systems. indoor or outdoor uses with automatic basic models employing the same 3.12.2 Single-packaged Refrigeration technology as the basic model(s) set off-cycle air defrost. System (Single-packaged). A Matched • Wine cellars are usually located in forth in the original petition consistent Refrigeration System that is a Single- with 10 CFR 431.401(g). air-conditioned spaces. packaged assembly that includes one or • As opposed to utilize large Signed in Washington, DC, on January 7, more compressors, a condenser, a compressors, large surface area coils, 2021. means for forced circulation of multiple fans, and large volumes of Daniel R Simmons, refrigerated air, and elements by which refrigerant, these systems employ Assistant Secretary, Energy Efficiency and heat is transferred from air to fractional compressors and automatic Renewable Energy. refrigerant, without any element expansion valves to maintain 50∼70% external to the system imposing relative humidity. Application for Waiver and Interim resistance to flow of the refrigerated air. DOE uniform test method for the Waiver SELF-CONTAINED COOLING measurement of energy consumption of Air Innovations (Wine Guardian SYSTEMS FOR WALK-IN WINE walk-in coolers and walk-in freezers Brand) is requesting for a Waiver and CELLARS (refer to single-packaged (WICF) described in 10 CFR 431.304 Interim Waiver from a DOE test walk-in cooler refrigeration systems in adopts the test standard set forth in procedure pursuant to provisions AHRI 1250) AHRI 1250–2009. Both 10 CFR 431 and described in 10 CFR 431.401 for the * All basic models listed in our AHRI 1250 define WICF products as following products on the grounds that petition for Waiver and Interim Waiver ‘‘. . . an enclosed storage space ‘‘either the basic model contains one or cannot be operated at a temperature refrigerated to temperatures, more design characteristics that prevent less than 45F. respectively, above, and at or below 32 testing of the basic model according to • Self-contained cooling systems are degrees Fahrenheit that can be walked the prescribed test procedures or the designed to provide cold environment into, and has a total chilled storage area prescribed test procedures evaluate the between 45∼65 °F and maintain relative of less than 3,000 square feet. . .’’ basic model in a manner so humidity within the range of 50∼70% Walk-in wine cellar cooling systems unrepresentative of its true energy for properly insulated and sized wine meet this definition. Therefore, WICF consumption characteristics as to cellars. products are subject to the test method provide materially inaccurate • These temperature and relative and minimum energy requirements as comparative data.’’ humidity ranges are optimized for long described in 10 CFR 431.401.
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AHRI 1250 specifies that for walk-in Specific Requirements sought to be minimum AWEF, as the refrigerant coolers, the refrigeration system is to be waived choices for lower GWP and model rated at a cooler air-return temperature options available from component ° Petitioning for a Waiver and Interim of 35 F (box setpoint) than is typically Waiver to exempt wine cellar walk-in manufacturers (compressors, valves, seen in a wine cellar application. cooler systems from being tested to the heat exchangers, etc.) may limit ability Operating a wine cellar at this condition current test procedures, specifically the further to comply with present would adversely mechanically alter the requirement for the refrigeration system requirements. intended performance of the system to be rated at an air-return temperature Success of the application for Interim including icing of the evaporator coil, of 35 °F. Waiver will: Success of the application for Interim potential damage to the compressor, and The petition also includes a Waiver will ensure that manufacturers will not result in an accurate correction factor of 0.55 to be applied to of walk-in wine cellar cooling systems representation of the performance of the final AWEF calculations for wine cellar can continue to participate in the cooling unit. Wine cellars generally are products to allow the unit to pass ° market. kept at 55 F, with 55% relative minimum efficiency as delineated by 10 What economic hardship and/or humidity. CFR 431 subpart R. There is precedent competitive disadvantage is likely to The calculation of the Annual Walk- for wine cooling products receiving a result absent a favorable determination in Energy Factor (AWEF) found in AHRI correction factor of 0.55 from Appendix 1250 accounts for typical usage of WICF on the Application for Interim Waiver: A to Subpart B of 10 CFR 430 and DOE Economic hardship will be loss of products with high and low load Direct Final Rule EERE–2011–BT–STD– periods. Wine cellars see a constant sales due to not meeting the DOE energy 0043–0122. conservation standards set forth in 10 load, no highs or lows, that does not List of manufacturers of all other resemble the use patterns that are CFR 431.306 if the existing products basic models marketing in the United were altered in order to test per current representative of typical WICF products. States and known to the petitioner to Therefore, the AWEF calculation requirements set forth in 10 CFR incorporate similar design 431.304 and AHRI 1250, it would add described in 10 CFR 431.304 and AHRI characteristics— 1250 does not match the applications of significant cost and increase energy (a) Air Innovations consumption. wine cellar cooling systems. (b) Bacchus The compressors used in wine cellar Conclusion: (c) BreezAire Air Innovations (Wine Guardian cooling systems are predominately (d) CellarPro fractional horsepower, which are Brand) seeks an Interim Waiver from (e) Vinotemp DOE’s current test method for the inherently less efficient than larger (f) WhisperKool compressors used in walk-in cooler measurement of energy consumption of Proposed alternate test procedure: refrigeration systems. Therefore, we do walk-in wine cellar Self-contained and AHRI 1250 test procedure will be not believe there is technology on the Split cooling systems. followed, but with the following market that will provide the needed Respectfully submitted modifications: energy efficiency in wine cellar cooling /s/ 1. Temperature of the air returning to Scott R. Toukatly, systems to meet the minimum AWEF ° the walk-in cooling unit shall be 55 F. Director of Engineering Air Innovations value for commercial walk-in cooler 2. Relative humidity of the air refrigeration systems set forth in 10 CFR (Wine Guardian brand). returning to the walk-in cooling unit [FR Doc. 2021–00393 Filed 1–11–21; 8:45 am] 431.306. shall be 55%RH. BILLING CODE 6450–01–P The prescribed test procedure is 3. The AWEF calculations shall unrepresentative of the products true include a correction factor of 0.55 to energy characteristics. inflate the final AWEF value for wine- DEPARTMENT OF ENERGY One or more design characteristics related products to meet minimum that prevent testing of the basic model efficiency standards. Federal Energy Regulatory according to the prescribed test Technical Justifications for the Commission procedures or cause the prescribed test alternate test procedure: procedures to evaluate the basic model As discussed previous, the technical [Docket No. EL21–38–000] in a manner so unrepresentative of its justifications summarized for our true energy or water consumption City of Springfield, Illinois, City Water, products are as follows: Light and Power; Notice of Filing characteristics as to provide materially • Wine cellar environment is most inaccurate comparative data. typically at 55F/55%RH, so the return Take notice that on December 31, Basic Models on which the Waiver air to cooling unit is not consistent with 2020, The City of Springfield, Illinois, and Interim Waiver is being requested: what is prescribed in AHRl1250 City Water, Light and Power (CWLP), Thru-The-Wall (free blow/non-ducted): presently. filed its proposed rate schedule, which TTW009, TTW018 • The component technology, specified CWLP’s cost-based revenue Ducted self-contained: D025, [ESP specifically fractional HP compressors requirements for Reactive Supply and REDACTED] (reciprocating) are not being optimized Voltage Control from Generation or D050, [ESP REDACTED] for efficiency in the models our product other Sources Service supplied by D088, [ESP REDACTED] sector dictate. CWLP generating units, pursuant to the D200, [ESP REDACTED] • Without the .55 correction factor, Open Access Transmission and Energy Ducted Split System: DS025, [ESP there is not a means to pass the Markets Tariff of the Midwest REDACTED] minimum AWEF efficiency rating for Independent Transmission System DS050, [ESP REDACTED] these products. As noted earlier, there is Operator, Inc, along with supporting DS088, [ESP REDACTED] a precedent set for applying this testimony and data. DS200, [ESP REDACTED] correction factor. Any person desiring to intervene or to Ductless Split System: SS018, CS025, • Pending EPA SNAP regulations yet protest this filing must file in CS050 to be determined on effect for meeting accordance with Rules 211 and 214 of
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the Commission’s Rules of Practice and DEPARTMENT OF ENERGY County, Maine, and has prepared an Procedure (18 CFR 385.211, 385.214). environmental assessment (EA) for the Protests will be considered by the Federal Energy Regulatory project. The project does not occupy Commission in determining the Commission federal lands. appropriate action to be taken, but will [Docket No. EL21–31–000] The EA contains staff’s analysis of the not serve to make protestants parties to potential environmental impacts of the the proceeding. Any person wishing to Highlander Solar Energy Station 1, proposed action and concludes that become a party must file a notice of LLC; Notice of Institution of Section approval of the surrender would not intervention or motion to intervene, as 206 Proceeding and Refund Effective constitute a major federal action appropriate. Such notices, motions, or Date significantly affecting the quality of the protests must be filed on or before the human environment. On January 5, 2021, the Commission The EA may be viewed on the comment date. On or before the issued an order in Docket No. EL21–31– Commission’s website at http:// comment date, it is not necessary to 000 pursuant to section 206 of the www.ferc.gov using the ‘‘eLibrary’’ link. serve motions to intervene or protests Federal Power Act (FPA), 16 U.S.C. Enter the docket number excluding the on persons other than the Applicant. 824e (2018), instituting an investigation last three digits in the docket number The Commission encourages into whether Highlander Solar Energy field to access the document. For electronic submission of protests and Station 1, LLC’s Proposed Rates may be assistance, contact FERC Online unjust, unreasonable, unduly interventions in lieu of paper using the Support at FERCOnlineSupport@ discriminatory or preferential, ‘‘eFiling’’ link at http://www.ferc.gov. ferc.gov, (866) 208–3676 (toll free), or substantially excessive or otherwise Persons unable to file electronically (202) 502–8659 (TTY). At this time, the unlawful. Highlander Solar Energy should submit an original and 5 copies Commission has suspended access to Station 1, LLC, 174 FERC of the protest or intervention to the the Commission’s Public Reference ¶ 61,003(2020). Federal Energy Regulatory Commission, Room, due to the proclamation The refund effective date in Docket 888 First Street NE, Washington, DC declaring a National Emergency No. EL21–31–000, established pursuant 20426. Hand delivered submissions in concerning the Novel Coronavirus to section 206(b) of the FPA, will be the docketed proceedings should be Disease (COVID–19), issued by the date of publication of this notice in the delivered to Health and Human President on March 13, 2020. Federal Register. Services, 12225 Wilkins Avenue, Any interested person desiring to be You may also register online at http:// Rockville, Maryland 20852. heard in Docket No. EL21–31–000 must www.ferc.gov/docs-filing/ In addition to publishing the full text file a notice of intervention or motion to esubscription.asp to be notified via of this document in the Federal intervene, as appropriate, with the email of new filings and issuances Register, The Commission provides all Federal Energy Regulatory Commission, related to this or other pending projects. interested persons an opportunity to 888 First Street NE, Washington, DC For assistance, contact FERC Online view and/or print the contents of this 20426, in accordance with Rule 214 of Support. document via the internet through the the Commission’s Rules of Practice and Any comments should be filed within Commission’s Home Page (http:// Procedure, 18 CFR 385.214 (2019), 30 days from the date of this notice. www.ferc.gov) using the ‘‘eLibrary’’ link. within 21 days of the date of issuance The Commission strongly encourages Enter the docket number excluding the of the order. electronic filing. Please file comments last three digits in the docket number Dated: January 6, 2021. using the Commission’s eFiling system field to access the document. At this Nathaniel J. Davis, Sr., at http://www.ferc.gov/docs-filing/ time, the Commission has suspended Deputy Secretary. efiling.asp. Commenters can submit brief comments up to 6,000 characters, access to Commission’s Public [FR Doc. 2021–00405 Filed 1–11–21; 8:45 am] without prior registration, using the Reference Room, due to the BILLING CODE 6717–01–P proclamation declaring a National eComment system at http:// Emergency concerning the Novel www.ferc.gov/docs-filing/ Coronavirus Disease (COVID–19), issued DEPARTMENT OF ENERGY ecomment.asp. You must include your by the President on March 13, 2020. For name and contact information at the end of your comments. For assistance, assistance, contact FERC at Federal Energy Regulatory please contact FERC Online Support. In [email protected] or call Commission lieu of electronic filing, you may submit toll-free, (886) 208–3676 or TYY, (202) [Project No. 3820–012] a paper copy. Submissions sent via the 502–8659. U.S. Postal Service must be addressed Comment Date: 5:00 p.m. Eastern Aclara Meters, LLC; Notice of to: Kimberly D. Bose, Secretary, Federal Time on January 21, 2021. Availability of Environmental Energy Regulatory Commission, 888 Assessment Dated: January 6, 2021. First Street NE, Room 1A, Washington, DC 20426. Submissions sent via any Nathaniel J. Davis, Sr., In accordance with the National Environmental Policy Act of 1969 and other carrier must be addressed to: Deputy Secretary. the Federal Energy Regulatory Kimberly D. Bose, Secretary, Federal [FR Doc. 2021–00406 Filed 1–11–21; 8:45 am] Commission’s (Commission) Energy Regulatory Commission, 12225 BILLING CODE 6717–01–P regulations, 18 CFR part 380, the Office Wilkins Avenue, Rockville, Maryland of Energy Projects has reviewed an 20852. The first page of any filing application submitted by Aclara Meters, should include docket number P–3820– LLC, to surrender its Somersworth 012. Hydroelectric Project No. 3820, located For further information, contact Diana on the Salmon Falls River in Strafford Shannon at (202) 502–6136 or by email County, New Hampshire, and York at [email protected].
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Dated: January 6, 2021. Applicants: ISO New England Inc., must file in accordance with Rules 211 Nathaniel J. Davis, Sr., New England Power Pool Participants and 214 of the Commission’s Deputy Secretary. Committee. Regulations (18 CFR 385.211 and [FR Doc. 2021–00407 Filed 1–11–21; 8:45 am] Description: § 205(d) Rate Filing: ISO– 385.214) on or before 5:00 p.m. Eastern BILLING CODE 6717–01–P NE & NEPOOL; Rev. Related to time on the specified comment date. Disclosure Information Under FAP to be Protests may be considered, but effective 3/9/2021. intervention is necessary to become a DEPARTMENT OF ENERGY Filed Date: 1/6/21. party to the proceeding. Accession Number: 20210106–5006. eFiling is encouraged. More detailed Federal Energy Regulatory Comments Due: 5 p.m. ET 1/27/21. information relating to filing Commission Docket Numbers: ER21–817–000. requirements, interventions, protests, Applicants: Midcontinent service, and qualifying facilities filings Combined Notice of Filings #1 Independent System Operator, Inc. can be found at: http://www.ferc.gov/ Description: § 205(d) Rate Filing: docs-filing/efiling/filing-req.pdf. For Take notice that the Commission _ received the following electric rate 2021–01–06 SA 3616 Entergy other information, call (866) 208–3676 filings: Louisiana-EDF Renewables (toll free). For TTY, call (202) 502–8659. Development GIA (J1076) to be effective Docket Numbers: ER20–2715–003; Dated: January 6, 2021. 3/8/2021. ER17–380–003; ER19–997–003; ER11– Nathaniel J. Davis, Sr., Filed Date: 1/6/21. 2424–014; ER19–358–001; ER19–359– Accession Number: 20210106–5026. Deputy Secretary. 001. Comments Due: 5 p.m. ET 1/27/21. [FR Doc. 2021–00404 Filed 1–11–21; 8:45 am] Applicants: Stored Solar, LLC, Stored BILLING CODE 6717–01–P Solar J&WE, LLC, Stored Solar Docket Numbers: ER21–818–000. Applicants: PJM Interconnection, Bethlehem, LLC, Stored Solar L.L.C. Tamworth, LLC, Stored Solar Whitefield Description: § 205(d) Rate Filing: ENVIRONMENTAL PROTECTION LLC, Stored Solar Springfield, LLC. Correction to eTariff Metadata for SA AGENCY Description: Notice of Non-Material No. 5581 Filed in Docket No. ER20– Change in Status of Stored Solar [EPA–HQ–OPP–2009–0308; FRL–10017–94] 2002 to be effective 8/4/2020. Entities, et. al. Filed Date: 1/6/21. Filed Date: 1/4/21. United States Department of Justice Accession Number: 20210106–5034. Accession Number: 20210104–5395. and Parties to Certain Litigation; Comments Due: 5 p.m. ET 1/27/21. Comments Due: 5 p.m. ET 1/25/21. Transfer of Data Docket Numbers: ER21–819–000. Docket Numbers: ER21–21–001. Applicants: PJM Interconnection, AGENCY: Environmental Protection Applicants: Harts Mill Solar, LLC. L.L.C. Agency (EPA). Description: Compliance filing: Description: § 205(d) Rate Filing: ACTION: Notice. Revised Rate Schedule FERC No. 1 to be Correction to eTariff Metadata for SA SUMMARY: effective 12/2/2020. No. 5582 Filed in Docket No. ER20– This notice announces that Filed Date: 1/6/21. 2003 to be effective 8/4/2020. pesticide related information submitted Accession Number: 20210106–5005. Filed Date: 1/6/21. to the Environmental Protection Agency Comments Due: 5 p.m. ET 1/27/21. Accession Number: 20210106–5035. (EPA) pursuant to the Federal Docket Numbers: ER21–350–001. Comments Due: 5 p.m. ET 1/27/21. Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, Applicants: Highlander Solar Energy Docket Numbers: ER21–820–000. and Cosmetic Act (FFDCA), including Station 1, LLC. Applicants: Midcontinent information that may have been claimed Description: Compliance filing: Independent System Operator, Inc. as Confidential Business Information Revised Rate Schedule FERC No. 1 to be Description: § 205(d) Rate Filing: (CBI) by the submitter, will be effective 12/1/2020. 2021–01–06_SA 3617 ELL–EDF-St. transferred to the U.S. Department of Filed Date: 1/6/21. James-St James II MPFCA (J1076 J1142 Justice (DOJ) and parties to certain Accession Number: 20210106–5021. J1158) to be effective 3/8/2021. Comments Due: 5 p.m. ET 1/27/21. Filed Date: 1/6/21. litigation. This transfer of data is in Docket Numbers: ER21–370–001. Accession Number: 20210106–5037. accordance with the CBI regulations Applicants: Cleco Power LLC. Comments Due: 5 p.m. ET 1/27/21. governing the disclosure of potential CBI in litigation. Description: Tariff Amendment: Docket Numbers: ER21–821–000. Amendment to Rate Schedule for Applicants: PJM Interconnection, DATES: Access to this information by Blackstart Service to be effective 1/9/ L.L.C. DOJ and the parties to certain litigation 2021. Description: § 205(d) Rate Filing: is ongoing and expected to continue Filed Date: 1/6/21. Original ISA, Service Agreement No. during the litigation as discussed in this Accession Number: 20210106–5028. 5868; Queue No. AC2–165 to be Notice. Comments Due: 5 p.m. ET 1/27/21. effective 12/7/2020. FOR FURTHER INFORMATION CONTACT: Docket Numbers: ER21–711–001. Filed Date: 1/6/21. Patricia Biggio, Pesticide Re-Evaluation Applicants: PacifiCorp. Accession Number: 20210106–5039. Division (7508P), Office of Pesticide Description: Tariff Amendment: Comments Due: 5 p.m. ET 1/27/21. Programs, Environmental Protection OATT Revised Attachment H–1 (Rev The filings are accessible in the Agency, 1200 Pennsylvania Ave. NW, Dep Rates)—Supplemental Filing to be Commission’s eLibrary system (https:// Washington, DC 20460–0001; telephone effective 1/1/2021. elibrary.ferc.gov/idmws/search/ number: (703) 347–0547; email address: Filed Date: 1/6/21. fercgensearch.asp) by querying the [email protected]. Accession Number: 20210106–5040. docket number. SUPPLEMENTARY INFORMATION: This Comments Due: 5 p.m. ET 1/27/21. Any person desiring to intervene or notice is being provided pursuant to 40 Docket Numbers: ER21–816–000. protest in any of the above proceedings CFR 2.209(d) to inform affected
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businesses that EPA, via DOJ, will ENVIRONMENTAL PROTECTION Due to the public health concerns provide certain information to the AGENCY related to COVID–19, the EPA Docket parties and the Court in the matter of Center (EPA/DC) and Reading Room is [EPA–HQ–OPP–2018–0014; FRL–10017–33] Natural Resources Defense Council v. closed to visitors with limited U.S. Environmental Protection Agency Product Cancellation Order for Certain exceptions. The staff continues to et al., Case No. 20–72794 (9th Cir.) Pesticide Registrations and provide remote customer service via (‘‘TCVP litigation’’). The information is Amendments To Terminate Uses; email, phone, and webform. For the contained in documents that have been Amendment latest status information on EPA/DC submitted to EPA pursuant to FIFRA services and docket access, visit https:// and FFDCA by pesticide registrants or AGENCY: Environmental Protection www.epa.gov/dockets. Agency (EPA). other data-submitters, including II. What does this amendment do? information that has been claimed to be, ACTION: Notice. or determined to potentially contain, This notice is being issued to amend SUMMARY: EPA issued a notice in the CBI. In the TCVP Litigation, the the voluntary cancellation effective date Federal Register of March 19, 2019, Petitioner seeks judicial review of EPA’s for the two triadimefon registrations concerning the cancellations voluntarily July 21, 2020 denial of the Natural listed in Table 1 of the cancellation requested by the registrants and Resources Defense Council’s 2009 notice that published in the Federal accepted by the Agency but have not yet petition requesting that EPA cancel all Register on March 19, 2019 (84 FR become effective. This notice is being pet uses of the pesticide 10068) (FRL–9989–85), which was issued to amend the cancellation order, tetrachlorvinphos (TCVP) registered corrected in the Federal Register on as requested by the registrant, by under FIFRA. May 29, 2019 (84 FR 24778) (FRL–9992– amending the effective date of the 29). The agency was made aware by The documents are being produced as cancellation and the existing stocks Bayer that the final shipments of their part of the Administrative Record of the provision for the two triadimefon triadimefon technical registrations were decision at issue and include registrations (264–736 and 264–740). delayed due to quarantine measures. documents that registrants or other data- DATES: The Federal Register of March Since the risk assessments for submitters may have submitted to EPA 19, 2019, announced the voluntarily triadimefon have not yet been regarding the pesticide TCVP, and that cancellation of two triadimefon conducted and no risks of concern have may be subject to various release registrations (264–736 and 264–740) been identified at this time, the agency restrictions under federal law. The that the registrant requested. has determined that this extension will information includes documents FOR FURTHER INFORMATION CONTACT: not pose a significant risk. This submitted with pesticide registration Matthew B. Khan, Pesticide amendment grants the two-month applications and may include CBI as Reevaluation Division (7502P), Office of extension for the two triadimefon well as scientific studies subject to the Pesticide Programs, Environmental registrations (264–736 and 264–740). disclosure restrictions of FIFRA section Protection Agency, 1200 Pennsylvania The effective cancellation date for these 10(g), 7 U.S.C. 136h(g). Ave. NW, Washington, DC 20460–0001; registrations is now February 28, 2020, All documents that may be subject to telephone number: (703) 347–8613 with a one-year existing stocks release restrictions under federal law email address: [email protected]. provision. will be designated as ‘‘Confidential or SUPPLEMENTARY INFORMATION: Authority: 7 U.S.C. 136 et seq. Restricted Information’’ in the certified list of record materials that EPA will file I. General Information Dated: November 25, 2020. in this case. Further, EPA intends to A. Does this action apply to me? Mary Reaves, seek a Protective Order that would Acting Director, Pesticide Re-Evaluation This action is directed to the public preclude public disclosure of any such Division, Office of Pesticide Programs. in general, and may be of interest to a documents by the parties in this action [FR Doc. 2021–00322 Filed 1–11–21; 8:45 am] wide range of stakeholders including who have received the information from BILLING CODE 6560–50–P environmental, human health, and EPA, and that would limit the use of agricultural advocates; the chemical such documents to litigation purposes industry; pesticide users; and members only. EPA would only produce such of the public interested in the sale, documents in accordance with the EQUAL EMPLOYMENT OPPORTUNITY distribution, or use of pesticides. Since Protective Order. The anticipated COMMISSION others also may be interested, the Protective Order would require that Agency has not attempted to describe all such documents would be filed under Sunshine Act Meeting the specific entities that may be affected seal and would not be available for by this action. TIME AND DATE: Friday, January 15, 2021, public review, unless the information 1:00 p.m. Eastern Time. contained in the document has been B. How can I get copies of this document determined to not be subject to FIFRA and other related information? PLACE: Because of the COVID–19 pandemic, the meeting will be held as section 10(g) and all CBI has been The docket for this action, identified an audio-only conference. The public redacted. by docket identification (ID) number may listen to the audio-only conference EPA–HQ–OPP–2018–0014, is available Authority: 7 U.S.C. 136 et seq.; 21 U.S.C. by following the instructions that will at http://www.regulations.gov or at the 301 et seq. be posted on www.eeoc.gov 24 hours Office of Pesticide Programs Regulatory Dated: December 1, 2020. before the meeting. Closed captioning Public Docket (OPP Docket) in the services will be available. Mary Reaves, Environmental Protection Agency Acting Director, Pesticide Re-Evaluation Docket Center (EPA/DC), West William STATUS: The meeting will be open to the Division, Office of Pesticide Programs. Jefferson Clinton Bldg., Rm. 3334, 1301 public. [FR Doc. 2021–00324 Filed 1–11–21; 8:45 am] Constitution Ave. NW, Washington, DC MATTER TO BE CONSIDERED: The BILLING CODE 6560–50–P 20460–0001. following item will be considered:
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Proposed Updated Compliance Manual accommodations for people with SUPPLEMENTARY INFORMATION: You may on Religious Discrimination disabilities are available upon request. access the Board’s website at Requests for such accommodations www.federalreserve.gov for an electronic Note: In accordance with the Sunshine Act, should be submitted via email to announcement. the public will be able to listen to the [email protected] or by calling the Dated: January 8, 2021. Commission’s deliberations and voting. (In Consumer & Governmental Affairs addition to publishing notices on EEOC Ann Misback, Commission meetings in the Federal Bureau at (202) 418–0530 (voice), (202) Secretary of the Board. Register, the Commission also provides 418–0432 (TTY). Such requests should information about Commission meetings on include a detailed description of the [FR Doc. 2021–00523 Filed 1–8–21; 4:15 pm] its website, www.eeoc.gov. and provides a accommodation needed. In addition, BILLING CODE 6210–01–P recorded announcement a week in advance please include a way for the FCC to on future Commission meetings.) contact the requester if more Please telephone (202) 663–7100 information is needed to fill the request. FEDERAL RESERVE SYSTEM (voice) or (202) 921–2750, or email Please allow at least five days’ advance [email protected] notice for accommodation requests; last Formations of, Acquisitions by, and at any time for information on this minute requests will be accepted but Mergers of Bank Holding Companies meeting. may not be possible to accommodate. The companies listed in this notice CONTACT PERSON FOR MORE INFORMATION: Members of the public may submit have applied to the Board for approval, Rachel V. See, Acting Executive Officer, comments to the NANC in the FCC’s pursuant to the Bank Holding Company (202) 921–2545. Electronic Comment Filing System, ECFS, at www.fcc.gov/ecfs. Comments to Act of 1956 (12 U.S.C. 1841 et seq.) Dated: January 8, 2021. the NANC should be filed in CC Docket (BHC Act), Regulation Y (12 CFR part Rachel V. See, No. 92–237. This is a summary of the 225), and all other applicable statutes Acting Executive Officer, Executive Commission’s document in CC Docket and regulations to become a bank Secretariat. No. 92–237, CC Docket No. 18–336, DA holding company and/or to acquire the [FR Doc. 2021–00524 Filed 1–8–21; 4:15 pm] 20–1548 released December 31, 2020. assets or the ownership of, control of, or BILLING CODE 6570–01–P Proposed Agenda: At the February 4 the power to vote shares of a bank or meeting, the NANC will discuss and bank holding company and all of the provide input on the feasibility and cost banks and nonbanking companies FEDERAL COMMUNICATIONS of including an automatic dispatchable owned by the bank holding company, COMMISSION location with a 988 call to facilitate including the companies listed below. Commission preparation of a report on [CC Docket No. 92–237; CC Docket No. 18– The public portions of the 336; FRS 17370] this topic, as directed by the National Suicide Hotline Designation Act of applications listed below, as well as other related filings required by the Next Meeting of the North American 2020. The NANC will also hear routine Board, if any, are available for Numbering Council status reports, including an update from the Secure Telephone Identification immediate inspection at the Federal AGENCY: Federal Communications Governance Authority. This agenda may Reserve Bank(s) indicated below and at Commission. be modified at the discretion of the the offices of the Board of Governors. ACTION: Notice. NANC Chair and the Designated Federal This information may also be obtained Officers (DFO). (5 U.S.C. App 2 on an expedited basis, upon request, by SUMMARY: In this document, the § 10(a)(2)) contacting the appropriate Federal Commission released a public notice Reserve Bank and from the Board’s Federal Communications Commission. announcing the meeting of the North Freedom of Information Office at American Numbering Council (NANC), Daniel Kahn, https://www.federalreserve.gov/foia/ which will be held via conference call Associate Bureau Chief, Wireline Competition request.htm. Interested persons may Bureau. and available to the public via live express their views in writing on the internet feed. [FR Doc. 2021–00423 Filed 1–11–21; 8:45 am] standards enumerated in the BHC Act DATES: Thursday, February 4, 2021. The BILLING CODE 6712–01–P (12 U.S.C. 1842(c)). meeting will come to order at 9:30 a.m. Comments regarding each of these ADDRESSES: The meeting will be applications must be received at the FEDERAL RESERVE SYSTEM conducted via conference call and Reserve Bank indicated or the offices of available to the public via the internet the Board of Governors, Ann E. at http://www.fcc.gov/live. Government in the Sunshine Act; Meeting Notice Misback, Secretary of the Board, 20th FOR FURTHER INFORMATION CONTACT: Street and Constitution Avenue NW, Jordan Reth, Deputy Designated Federal AGENCY: Board of Governors of the Washington, DC 20551–0001, not later Officer, at [email protected] or 202– Federal Reserve System. than February 10, 2021. 418–1418. More information about the TIME AND DATE: 10 a.m., Friday, January A. Federal Reserve Bank of St. Louis NANC is available at https:// 15, 2021. www.fcc.gov/about-fcc/advisory- (David L. Hubbard, Senior Manager) PLACE: committees/general/north-american- Virtual Meeting via Video/Audio P.O. Box 442, St. Louis, Missouri numbering-council. Conference. 63166–2034. Comments can also be sent STATUS: electronically to SUPPLEMENTARY INFORMATION: The Closed. NANC meeting is open to the public on MATTER(S) TO BE CONSIDERED: 1. [email protected]: the internet via live feed from the FCC’s Personnel Matter. 1. HNB Bancorp, Inc., Hannibal, web page at http://www.fcc.gov/live. FOR MORE INFORMATION CONTACT: Missouri; to become a bank holding Open captioning will be provided for Michelle Smith, Director, Division of company by acquiring HNB National this event. Other reasonable Board Members at 202–452–2955. Bank, Hannibal, Missouri.
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Board of Governors of the Federal Reserve Peoples Savings Bank, both of Estimated Annual Cost Burden: System, January 7, 2021. Montezuma, Iowa. $2,732,510 (solely related to labor Michele Taylor Fennell, Board of Governors of the Federal Reserve costs). Deputy Associate Secretary of the Board. System, January 6, 2021. Abstract: The R-value Rule establishes [FR Doc. 2021–00415 Filed 1–8–21; 8:45 am] Michele Taylor Fennell, uniform standards for the substantiation BILLING CODE P Deputy Associate Secretary of the Board. and disclosure of accurate, material [FR Doc. 2021–00361 Filed 1–11–21; 8:45 am] product information about the thermal performance characteristics of home FEDERAL RESERVE SYSTEM BILLING CODE P insulation products. The R-value of an Change in Bank Control Notices; insulation signifies the insulation’s Acquisitions of Shares of a Bank or degree of resistance to the flow of heat. Bank Holding Company FEDERAL TRADE COMMISSION This information tells consumers how well a product is likely to perform as an The notificants listed below have Agency Information Collection insulator and allows consumers to applied under the Change in Bank Activities; Submission for OMB determine whether the cost of the Review; Comment Request Control Act (Act) (12 U.S.C. 1817(j)) and insulation is justified. § 225.41 of the Board’s Regulation Y (12 AGENCY: Federal Trade Commission Request for Comment CFR 225.41) to acquire shares of a bank (FTC). or bank holding company. The factors On October 27, 2020, the FTC sought that are considered in acting on the ACTION: Notice and request for comment. public comment on the information applications are set forth in paragraph 7 SUMMARY: The FTC requests that the collection requirements associated with of the Act (12 U.S.C. 1817(j)(7)). Office of Management and Budget the Rule. 85 FR 68068. The Commission The public portions of the (OMB) extend for three years the current received no germane comments. applications listed below, as well as Paperwork Reduction Act (PRA) Pursuant to the OMB regulations, 5 CFR other related filings required by the clearance for information collection part 1320, that implement the PRA, 44 Board, if any, are available for requirements contained in the Trade U.S.C. 3501 et seq., the FTC is providing immediate inspection at the Federal Regulation Rule titled Labeling and this second opportunity for public Reserve Bank(s) indicated below and at Advertising of Home Insulation (R-value comment while seeking OMB approval the offices of the Board of Governors. Rule or Rule). That clearance expires on to renew the pre-existing clearance for This information may also be obtained January 31, 2021. the Rule. on an expedited basis, upon request, by DATES: Comments must be received by contacting the appropriate Federal Your comment—including your name February 11, 2021. Reserve Bank and from the Board’s and your state—will be placed on the Freedom of Information Office at ADDRESSES: Written comments and public record of this proceeding. https://www.federalreserve.gov/foia/ recommendations for the proposed Because your comment will be made request.htm. Interested persons may information collection should be sent public, you are solely responsible for express their views in writing on the within 30 days of publication of this making sure that your comment does standards enumerated in paragraph 7 of notice to www.reginfo.gov/public/do/ not include any sensitive personal the Act. PRAMain. Find this particular information, such as anyone’s Social Comments regarding each of these information collection by selecting Security number; date of birth; driver’s applications must be received at the ‘‘Currently under 30-day Review—Open license number or other state Reserve Bank indicated or the offices of for Public Comments’’ or by using the identification number, or foreign the Board of Governors, Ann E. search function. The reginfo.gov web country equivalent; passport number; Misback, Secretary of the Board, 20th link is a United States Government financial account number; or credit or Street and Constitution Avenue NW, website produced by OMB and the debit card number. You are also solely Washington, DC 20551–0001, not later General Services Administration (GSA). responsible for making sure that your Under PRA requirements, OMB’s Office than January 27, 2021. comment does not include any sensitive of Information and Regulatory Affairs health information, such as medical A. Federal Reserve Bank of Chicago (OIRA) reviews Federal information records or other individually (Colette A. Fried, Assistant Vice collections. President) 230 South LaSalle Street, identifiable health information. In Chicago, Illinois 60690–1414: FOR FURTHER INFORMATION CONTACT: addition, your comment should not 1. G. Michael Herger Revocable Trust, Hampton Newsome, Attorney, Division include any ‘‘trade secret or any G. Michael Herger, as trustee, both of of Enforcement, Federal Trade commercial or financial information Redding, California; Paul M. Herger and Commission, Room CC–9528, 600 which . . . is privileged or Cathy S. Beatty, both of Vinton Iowa; to Pennsylvania Avenue NW, Washington, confidential’’—as provided by Section become members of the Herger Family DC 20580, (202) 326–2889. 6(f) of the FTC Act, 15 U.S.C. 46(f), and Control Group, a group acting in SUPPLEMENTARY INFORMATION: FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2)— concert, to retain voting shares of Title: R-value Rule, 16 CFR part 460. including in particular competitively Keystone Community Bancorporation, OMB Control Number: 3084–0109. sensitive information such as costs, and thereby indirectly retain voting Type of Review: Extension of a sales statistics, inventories, formulas, shares of Keystone Savings Bank, both currently approved collection. patterns, devices, manufacturing of Keystone, Iowa. Likely Respondents: Insulation processes, or customer names. 2. Mark Curtis Bolen, Montezuma, manufacturers, installers, home Iowa; to join the Arendt Family Control builders, home sellers, insulation Josephine Liu, Group, a group acting in concert, to sellers. Assistant General Counsel for Legal Counsel. retain voting shares of Arendt’s Inc., and Estimated Annual Hours Burden: [FR Doc. 2021–00337 Filed 1–11–21; 8:45 am] thereby indirectly retain voting shares of 132,707 hours. BILLING CODE 6750–01–P
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DEPARTMENT OF HEALTH AND rural for grant purposes using Rural- 3. The proposal is too limited and HUMAN SERVICES Urban Commuting Area (RUCA) codes should more expansively define what is from the Economic Research Service rural. Health Resources and Services (ERS) of the U.S. Department of 4. The proposal, and the current Administration Agriculture (USDA). These include all definition of what is eligible for rural census tracts inside MSAs with RUCA health grants, is too expansive and Response to Comments on Revised codes 4–10 and 132 large area census includes areas that are not truly rural. Geographic Eligibility for Federal tracts with RUCA codes 2 and 3. The 5. Determination of need in rural Office of Rural Health Policy Grants 132 MSA census tracts with RUCA areas should include whether areas are AGENCY: Health Resources and Services codes 2–3 are at least 400 square miles ‘‘underserved,’’ alternatively, the Administration (HRSA), Department of in area with a population density of no determination should factor in Health and Human Services (HHS). more than 35 people per square mile. unemployment as another criteria. Information regarding FORHP’s Response to Comment 1: FORHP ACTION: Revised definition of rural area; understands commenters concerns that final response to comments. designation of rural is publicly available on its website at: https://www.hrsa.gov/ expanding the number of areas eligible SUMMARY: HRSA’s Federal Office of rural-health/about-us/definition/ to apply for rural health grants has the Rural Health Policy (FORHP) is index.html and https://data.hrsa.gov/ potential to dilute available resources modifying the definition it uses of rural tools/rural-health. for existing rural areas. At the same for the determination of geographic In the Federal Register notice time, it is important to identify the areas eligible to apply for or receive published in September 2020, FORHP entire rural population as objectively services funded by FORHP’s rural proposed modifying its existing rural and accurately as possible so that health grants. This notice revises the definition by adding outlying MSA resource allocation decisions can be definition of rural and responds to counties with no UA population to its based on complete and accurate comments received on proposed list of areas eligible to apply for and information. The modification is modifications to how FORHP designates receive services funded by FORHP’s intended to more accurately identify areas to be eligible for rural health grant rural health grants. UAs are defined by rural populations within MSAs. programs published in the Federal the Census Bureau as densely settled Response to Comment 2: After every Register on September 23, 2020. After areas with a total population of at least Census, there is a process to identify consideration of the public comments 50,000 people. areas where population has increased or received, FORHP is adding Metropolitan FORHP received 67 comments in decreased. Urban Clusters, which have Statistical Area (MSA) counties that response to the Federal Register notice. increased in population above the contain no Urbanized Area (UA) Following is a summary of the 49,999 limit, are re-designated as UA population to the areas eligible for rural comments received. and, vice versa, some UA may lose health grant programs. Over three quarters of the comments population and be re-designated as received supported the proposal to add Urban Clusters. FORHP’s intent, with DATES: All proposed changes will go outlying MSA counties with no UA the use of RUCA codes and this into effect for new rural health grant population to the list of areas eligible for proposed modification for counties with opportunities anticipated to start in rural health grants. While most no UA population, is to correctly Fiscal Year 2022. comments supported the proposal, identify rural populations inside of FOR FURTHER INFORMATION CONTACT: several advised against adoption of the MSAs. Steve Hirsch, Public Health Analyst, proposal. There were also several Response to Comment 3: FORHP is FORHP, HRSA, 5600 Fishers Lane, commenters who neither supported nor proposing clear, quantitative criteria Mailstop 17W59D, Rockville, MD opposed the proposal. using nationally available data for an 20857. Phone: (301) 443–0835. Email: The comments in favor of the expansion of areas eligible for rural [email protected]. proposal agreed with FORHP that health grants. FORHP has not identified SUPPLEMENTARY INFORMATION: FORHP proximity to a Metropolitan area does clear, quantitative criteria beyond what published a notice in the Federal not mean a county is not rural in was proposed. Register on September 23, 2020, (85 FR character and that shifts in employment Response to Comment 4: FORHP will 59806) seeking public comment on and job creation have drawn people to continue to use the best available means proposed modifications to how it commute to jobs in MSAs even though it can to define rural areas. designates areas eligible for its rural they still live in rural areas. Many Response to Comment 5: FORHP is health grant programs. FORHP proposed commenters noted that FORHP’s modifying its identification of rural a data-driven methodology connected to proposal appropriately identified areas with this notice, consistent with existing geographic identifiers that populations that were rural in character its program authority to award grants to could be applied nationally and be and did not include areas or support rural health and rural health applicable to the wide variation in rural populations that were not rural in care services. While rural areas are areas across the U.S. character. frequently underserved and may FORHP uses the Office of Those who opposed the proposed experience shortages of health care Management and Budget (OMB)’s list of modification did so for a variety of providers, rurality and underservice are counties designated as part of a MSA as reasons. These included: not the same thing. Unemployment is the basis for determining eligibility to 1. There are limited resources also a factor that does not determine apply for, or receive services funded by, currently available for rural rurality since a rural area could have its rural health grant programs. populations. Increasing the number of high or low unemployment. Both could Currently, all areas within non-metro people and areas eligible will dilute the be used as factor in grant awards, given counties (both Micropolitan counties resources available. programmatic goals, but do not indicate and counties with neither designation) 2. The proposed modification does rurality. are considered rural and eligible for not include some areas that used to be Many of the commenters, both those rural health grants. FORHP also considered rural, and still should be, who supported and those who opposed designates census tracts within MSAs as but are now part of MSAs. the proposed FORHP modifications,
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also suggested further modifications or rural health grants as long as they serve enable those organizations to apply for adjustments to the way FORHP defines eligible rural populations. rural health grants even if they were no rural areas. Comment: Some commenters longer located in a rural area. Comment: The most common suggested that FORHP should accept Response to Comment: This comment suggestion was that FORHP identify state government-designated rural areas is similar, but not precisely the same as difficult and mountainous terrain for the purpose of eligibility for rural the earlier comment that FORHP should because travel on roads through such health grant programs. accept all providers with specific terrain is more difficult and time- Response to Comment: FORHP certifications or special payment consuming. understands and supports the right of designations from CMS as eligible for Response to Comment: FORHP states to develop definitions of rural that rural health grants. The change in recognizes that travel in difficult and meet their specific needs. In statutory authority for the Section 330A mountainous terrain, along with determining eligibility for a federal programs will allow these providers to distance, are often barriers to access to grant program that is national in scope, continue to apply for rural health grants health care. the challenge for FORHP is having as long as they continue to serve rural The ERS of U.S. Department of consistent and objective standards that populations. Identifying and tracking Agriculture was charged with can be applied consistently across the legacy rural sites of care would be researching the feasibility of identifying entire country. For that reason, FORHP administratively unworkable and is not census tracts with difficult and uses quantitative standards that can be needed to target services to rural mountainous terrain in Senate Report applied nationally and consistently in populations. 116–110—Agriculture, Rural an administratively efficient manner. Comment: Several commenters Comment: Some commenters Development, Food and Drug suggested that FORHP remove suggested that FORHP allow individual Administration, and related Agencies incarcerated people from the total counties to request designations as Appropriations Bill, 2020. ERS population that makes up the UA core rural. produces the RUCA codes that FORHP Response to Comment: FORHP of a MSA in cases where the UA uses to identify rural areas insides applies consistent quantitative population would fall below the floor of MSAs. ERS has greater experience and standards to identify rural areas and 50,000. resources to analyze geography than populations across the nation as a Response to Comment: FORHP has FORHP does. If ERS does add identifiers whole. An exception process for not identified a data source to for difficult and mountainous terrain to individual counties would yield consistently determine the populations the RUCA codes, FORHP will examine inconsistent results. of incarcerated people within the UA the feasibility of using this information Comment: Commenters suggested that boundaries. Without a standard, to designate rural census tracts in all providers with specific certifications national data source, FORHP cannot MSAs. or special payment designations (e.g., calculate the number of incarcerated Comment: Many commenters Rural Health Clinics, Critical Access people for every UA and determine suggested specific Metropolitan Hospitals, etc.) from the Centers for whether removal of this population counties by name that they believed Medicare & Medicaid Services (CMS) from a UA core would reduce the total should be designated as rural. should be designated as eligible for rural population below 50,000. In addition, Response to Comment: Consistent health grant programs and that FORHP prison populations can fluctuate year to with other federal geographic standards, should coordinate the definition of rural year and there are administrative FORHP seeks only to use appropriate with CMS. challenges in validating data from local objective data to assess a geographic Response to Comment: Many of the sources. unit to determine whether a place meets providers identified as ‘‘rural’’ by CMS Comment: Several commenters those standards. FORHP cannot define are classified using different standards suggested that FORHP remove college individual counties as rural without that are specific to each special students from UA population totals. having clear, data-driven criteria that designation. In addition, some Response to Comment: As with the can be equitably applied. designated providers are no longer population of incarcerated people Comment: Many commenters located in rural areas due to population mentioned above, FORHP does not have suggested that FORHP consider growth over time. They have maintained a national data source to identify the expanding eligibility to urban health their status due to reclassification or student population of an UA. Students centers that primarily serve rural grandfathering provisions specific to are also able to access health care populations. those certification and payment resources in the community. Without a Response to Comment: FORHP programs. In contrast, the purpose of standard, national data source, FORHP implemented this suggestion after the FORHP grants is to provide services to cannot calculate the number of college Coronavirus Aid, Relief, and Economic the rural population, as determined by students for every UA and determine Security Act (the CARES ACT, Pub. L. a consistent, quantitative standard. whether removal of this population 116–136) reauthorized the Rural Health FORHP notes that hospitals or clinics from a UA core would reduce the total Care Services Outreach, Rural Health that have the CMS rural designation can population below 50,000. In addition, Network Development, and Small still apply for FORHP rural health grant there are administrative challenges in Health Care Provider Quality funding as long as they propose to serve validating data from local sources. Improvement grant programs created by an eligible rural population. This Comment: Several commenters Section 330A of the Public Health change was part of the recent re- suggested that if FORHP does adopt the Service Act (42 U.S.C. 254c). The authorization of the Section 330A proposed modification and increases the CARES Act changed the statutory programs described above. FORHP number of people eligible to be served authority for Rural Health Care Services believes this change will address some by rural health grants, FORHP should Outreach and Rural Health Network of the concerns raised by commenters. increase the funding available for grants. Development grants and expanded Comment: Several commenters Response to Comment: The level of eligibility to allow urban entities to suggested grandfathering providers, as resources available for any federal apply as the lead applicant for these legacy rural sites of care which would program is determined by Congress.
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Comment: Several Tribal character using a data-driven sanitizers.1 The agency acknowledged organizations wrote comments objecting methodology that relies on existing ‘‘that some consumers and health care to the modification. They suggested that geographic identifiers and utilizes personnel are currently experiencing all Tribal lands be defined as rural and standard, national level data sources. difficulties accessing alcohol-based that funds be set aside solely for awards hand sanitizers,’’ and that some were to Tribal health providers. Thomas J. Engels, relying on home-made hand sanitizers Response to Comment: The statutory Administrator. as a result.2 FDA issued the guidance in authority for rural health grant programs [FR Doc. 2021–00443 Filed 1–11–21; 8:45 am] response to requests from ‘‘certain directs services at rural areas and BILLING CODE 4165–15–P entities that are not currently regulated populations. FORHP understands the by FDA as drug manufacturers’’ that unique challenges faced by Tribal nevertheless rose up to meet this public entities. Rural health grants can be and DEPARTMENT OF HEALTH AND health need.3 FDA stated it ‘‘does not have been awarded to Tribal HUMAN SERVICES intend to take action against firms that’’ organizations located in rural areas. produce hand sanitizer products during With the changes in the authorization [Docket No. FDA–2020–N–2246] the COVID–19 Public Health for 330A programs, urban Tribal Emergency, provided the firm’s providers can also apply for rural health Notice That Persons That Entered the activities are consistent with the grants to serve rural populations. Over-the-Counter Drug Market To guidance.4 FORHP cannot change rural health Supply Hand Sanitizer During the The guidance, which FDA amended funding to direct it to urban COVID–19 Public Health Emergency after the Coronavirus Aid, Relief, and populations, even if they are Are Not Subject to the Over-the- Economic Security Act (‘‘CARES Act’’), underserved, or specify funding set- Counter Drug Monograph Facility Fee Public Law 116–136, 134 Stat. 281 asides for Tribal organizations. (March 27, 2020) became law, contains Comment: Different commenters AGENCY: Food and Drug Administration no mention of user or facility fees. suggested that FORHP use a (FDA), Department of Health and FDA’s website on Hand Sanitizers and combination of population density, Human Services (HHS). COVID–19, contains a sub-bullet under travel time or distance, geographic ACTION: Notice. the link to the guidance announcing that isolation, and access to resources to ‘‘the facility fee applies to all OTC hand designate rural areas, or that FORHP use SUMMARY: The Department of Health and sanitizer manufacturers registered with Frontier and Remote Area (FAR) Codes Human Services is issuing this Notice to FDA, including facilities that to determine rurality. clarify that persons that entered into the manufacture or process hand sanitizer Response to Comment: Commenters over-the-counter drug industry for the products under this temporary policy,’’ did not suggest data sources that would first time in order to supply hand but that language was added about the combine population density, travel time sanitizers during the COVID–19 Public same time as the aforementioned or distance, geographic isolation, and Health Emergency are not persons withdrawn Notice was published in the access to resources to provide a subject to the facility fee the Secretary Federal Register.5 Entities that began consistent, nationally standard is authorized to collect under section producing hand sanitizers in reliance on definition of rural areas. FAR Codes 744M of the Food, Drug, and Cosmetic the guidance were understandably utilize population density and travel Act. surprised when FDA contacted them to time to designate different levels of collect an establishment fee in excess of DATES: ‘‘frontier’’ or remoteness. However, January 12, 2021. $14,000.6 much of the rural U.S. that is currently FOR FURTHER INFORMATION CONTACT: FDA’s purported authority for these eligible for rural health grants is not David Haas, Office of Financial facility fees comes from the CARES Act. designated as frontier and remote and Management, Food and Drug In section 3862 of the CARES Act, would lose eligibility if only FAR codes Administration, 4041 Powder Mill Rd., Congress provided the Secretary with were used. Rm. 61075, Beltsville, MD 20705–4304, the authority to assess user and facility FORHP thanks the public for their 240–402 4585. fees from ‘‘each person that owns a comments. After consideration of the facility identified as an OTC drug SUPPLEMENTARY INFORMATION: On public comments we received, FORHP monograph facility on December 31 of December 29, 2020, FDA published a is implementing the modification as the fiscal year or at any time during the Notice in the Federal Register entitled proposed to expand its list of rural preceding 12-month period.’’ FD&C Act Fee Rates Under the Over-the-Counter areas. FORHP will add MSA counties 744M(a)(1)(A), 21 U.S.C. 379j– that contain no UA population to the Monograph User Fee Program for Fiscal Year 2021. 85 FR 85646. The areas eligible for rural health grant 1 FDA, Temporary Policy for Preparation of programs. Using the March 2020 update Department since withdrew that Notice Certain Alcohol-Based Hand Sanitizer Products of MSA delineations released by OMB, because it was not approved by the During the Public Health Emergency (COVID–19) Guidance for Industry (Mar. 2020; updated Aug. 7, 295 counties will meet this criteria as Secretary. For the reasons provided below, the Department is clarifying that 2020). outlying MSA counties with no UA 2 persons that entered the over-the- Id. at 3. population. The expanded eligibility 3 Id. will go into effect for new rural health counter drug market to supply hand 4 Id. grants awarded in fiscal year 2022. sanitizer products in response to the 5 An archived version of the website shows the FORHP will ensure information about COVID–19 Public Health Emergency are language at issue was not on the website as late as December 29, 2020. See: https://web.archive.org/ the expanded eligibility is available to not subject to the facility fee the Secretary is authorized to collect under web/20201229105739/https://www.fda.gov/drugs/ the public and update the Rural Health coronavirus-covid-19-drugs/hand-sanitizers-covid- Grants Eligibility Analyzer at https:// section 744M of the Food, Drug, and 19. data.hrsa.gov/tools/rural-health for Cosmetic Act (FD&C Act). 6 This surprise, coupled with the guidance’s In March 2020, FDA issued a silence on facility fees, raises reliance interests fiscal year 2022 funding opportunities. concerns under the Supreme Court’s decision in These changes reflect FORHP’s desire to temporary policy to enable increased Department of Homeland Security v. Regents of the accurately identify areas that are rural in production of alcohol-based hand University of California, 140 S. Ct. 1891 (2020).
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72(a)(1)(A). An ‘‘OTC drug monograph continue to manufacture (as opposed to Dated: January 6, 2021. facility’’ is defined, in relevant part, as hold, distribute, or sell existing David W. Freeman, ‘‘a foreign or domestic business or other inventories) hand sanitizer products as Program Analyst, Office of Federal Advisory entity that is under one management, of December 31 of the year immediately Committee Policy. either direct or indirect; and at one following the year during which the [FR Doc. 2021–00344 Filed 1–11–21; 8:45 am] geographic location or address engaged COVID–19 Public Health Emergency is BILLING CODE 4140–01–P in manufacturing or processing the terminated. In those cases, the finished dosage form of an OTC Department may identify such persons monograph drug.’’ FD&C Act as OTC drug manufacturing facilities. DEPARTMENT OF HEALTH AND 744L(10)(A)(i)(I)–(II), 21 U.S.C. 379j– HUMAN SERVICES 71(10)(A)(i)(I)–(II). Dated: January 5, 2021. The Department has concluded that Alex M. Azar II, National Institutes of Health persons that entered the over-the- Secretary, Department of Health and Human counter drug market in order to produce Center for Scientific Review; Notice of Services. Closed Meetings hand sanitizers in reliance on the [FR Doc. 2021–00237 Filed 1–8–21; 1:30 pm] guidance cited above are not ‘‘identified BILLING CODE 4164–01–P Pursuant to section 10(d) of the as . . . OTC drug monograph Federal Advisory Committee Act, as facilit[ies]’’ and are thus not subject to amended, notice is hereby given of the the facility fees authorized under DEPARTMENT OF HEALTH AND following meetings. section 744M of the FD&CT Act, 21 HUMAN SERVICES The meetings will be closed to the U.S.C. 379j–72. The Department reached public in accordance with the this conclusion for two reasons. First, as National Institutes of Health provisions set forth in sections the guidance itself acknowledges, the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., parties at issue are not in the drug National Heart, Lung, and Blood as amended. The grant applications and manufacturing business. Many of them Institute; Notice of Closed Meeting the discussions could disclose produce alcoholic beverages. These confidential trade secrets or commercial entities do not hold themselves out to Pursuant to section 10(d) of the property such as patentable material, the public as drug makers nor does the Federal Advisory Committee Act, as and personal information concerning public generally encounter them as amended, notice is hereby given of the individuals associated with the grant such. Under the extraordinary following meeting. applications, the disclosure of which circumstances presented by the COVID– The meeting will be closed to the would constitute a clearly unwarranted 19 pandemic, the Department declines invasion of personal privacy. to identify these entities as OTC drug public in accordance with the manufacturing facilities. provisions set forth in sections Name of Committee: Cell Biology Second, imposing facility fees on 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Integrated Review Group; Development—1 Study Section. these entities is inconsistent with as amended. The grant applications and Date: February 8–9, 2021. Congress’ stated intent elsewhere in the the discussions could disclose Time: 10:00 a.m. to 6:00 p.m. CARES Act. Section 2308 of the Act confidential trade secrets or commercial Agenda: To review and evaluate grant provides a temporary exemption from property such as patentable material, applications. excise taxes for distilled spirits ‘‘use[d] and personal information concerning Place: National Institutes of Health, in or contained in hand sanitizer Rockledge II, 6701 Rockledge Drive, individuals associated with the grant Bethesda, MD 20892 (Virtual Meeting). produced and distributed in a manner applications, the disclosure of which consistent with any guidance issued by Contact Person: Zubaida Saifudeen, would constitute a clearly unwarranted Scientific Review Officer, Center for the Food and Drug Administration that invasion of personal privacy. Scientific Review, National Institutes of is related to the outbreak of virus SARS– Health, 6701 Rockledge Drive, Bethesda, MD CoV–2 or coronavirus disease 2019 Name of Committee: Heart, Lung, and 20817, [email protected]. Blood Initial Review Group; Clinical Trials (COVID–19).’’ It is unlikely Congress Name of Committee: Brain Disorders and intended to save these entities from Review Committee. Clinical Neuroscience Integrated Review excise taxes only to impose tens of Date: February 25–26, 2021. Group; Brain Injury and Neurovascular thousands of dollars in facility fees from Time: 9:00 a.m. to 6:00 p.m. Pathologies Study Section. an unfamiliar regulator. The Department Agenda: To review and evaluate grant Date: February 8–9, 2021. declines to discern such a design under applications. Time: 10:00 a.m. to 7:00 p.m. these circumstances. Place: National Institutes of Health, 6705 Agenda: To review and evaluate grant In conclusion, the Department Rockledge Drive, Bethesda, MD 20817 applications. (Virtual Meeting). Place: National Institutes of Health, 6701 clarifies that persons that were not Rockledge Drive, Bethesda, MD 20892 Contact Person: Keary A. Cope, Ph.D., registered with FDA as drug (Virtual Meeting). manufacturers prior to the COVID–19 Scientific Review Officer, Office of Scientific Contact Person: Alexander Yakovlev, Public Health Emergency, which then Review/DERA, National Heart, Lung, and Ph.D., Scientific Review Officer, Center for later registered with FDA for the Blood Institute, National Institutes of Health, Scientific Review, National Institutes of purpose of producing hand sanitizers, 6705 Rockledge Drive, Room 209–A, Health, 6701 Rockledge Drive, Room 5206, are not ‘‘identified’’ as ‘‘OTC drug Bethesda, MD 20892–7924, (301) 827–7912, MSC 7846, Bethesda, MD 20892, 301–435– manufacturing facilit[ies]’’ under [email protected]. 1254, [email protected]. section 744M of the FD&C Act, 21 (Catalogue of Federal Domestic Assistance Name of Committee: Cell Biology U.S.C. 379j–72, and are thus not subject Program Nos. 93.233, National Center for Integrated Review Group; Nuclear and to the facility fee contained therein. The Sleep Disorders Research; 93.837, Heart and Cytoplasmic Structure/Function and Dynamics Study Section. Vascular Diseases Research; 93.838, Lung Department’s conclusion does not apply Date: February 8–9, 2021. to such persons which (1) manufacture, Diseases Research; 93.839, Blood Diseases Time: 11:00 a.m. to 5:30 p.m. distribute, and sell over-the-counter and Resources Research, National Institutes Agenda: To review and evaluate grant drugs in addition to hand sanitizer or (2) of Health, HHS) applications.
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Place: National Institutes of Health, Review Group; Macromolecular Structure Name of Committee: National Heart, Lung, Rockledge II, 6701 Rockledge Drive, and Function C Study Section. and Blood Institute Special Emphasis Panel; Bethesda, MD 20892 (Virtual Meeting). Date: February 10–11, 2021. Small Grant Program for for NHLBI K-Award Contact Person: Jessica Smith, Ph.D., Time: 9:00 a.m. to 2:00 p.m. Recipient. Scientific Review Officer, Center for Agenda: To review and evaluate grant Date: February 12, 2021. Scientific Review, National Institutes of applications. Time: 1:00 p.m. to 3:30 p.m. Health, 6701 Rockledge Drive Bethesda, MD Place: National Institutes of Health, Agenda: To review and evaluate grant 20892, [email protected]. Rockledge II, 6701 Rockledge Drive, applications. Name of Committee: Center for Scientific Bethesda, MD 20892 (Virtual Meeting). Place: National Institutes of Health, 6705 Review Special Emphasis Panel; Molecular Contact Person: William A. Greenberg, Rockledge Drive, Bethesda, MD 20817 Genetics B. Ph.D., Scientific Review Officer, Center for (Virtual Meeting). Date: February 8, 2021. Scientific Review, National Institutes of Contact Person: Shelley S Sehnert, Ph.D., Time: 1:00 p.m. to 3:00 p.m. Health, 6701 Rockledge Drive, Room 4168, Scientific Review Officer, Office of Scientific Agenda: To review and evaluate grant MSC 7806, Bethesda, MD 20892, (301) 435– Review/DERA, National Heart, Lung, and applications. 1726, [email protected]. Blood Institute, National Institutes of Health, Place: National Institutes of Health, (Catalogue of Federal Domestic Assistance 6705 Rockledge Drive, Suite 208–T, Rockledge II, 6701 Rockledge Drive, Program Nos. 93.306, Comparative Medicine; Bethesda, MD 20892–7924, (301) 827–7984, Bethesda, MD 20892 (Virtual Meeting). 93.333, Clinical Research, 93.306, 93.333, [email protected]. Contact Person: Elena Smirnova, Ph.D., 93.337, 93.393–93.396, 93.837–93.844, Name of Committee: National Heart, Lung, Scientific Review Officer, Center for 93.846–93.878, 93.892, 93.893, National and Blood Institute Special Emphasis Panel; Scientific Review, National Institutes of Institutes of Health, HHS) Atherosclerosis Risk in Communities (ARIC) Health, 6701 Rockledge Drive, Room 5187, Study Coordinating Center. Dated: January 6, 2021. MSC 7840, Bethesda, MD 20892, 301–357– Date: February 19, 2021. 9112, [email protected]. David W. Freeman, Time: 9:00 a.m. to 11:00 a.m. Name of Committee: Cardiovascular and Program Analyst, Office of Federal Advisory Agenda: To review and evaluate contract Respiratory Sciences Integrated Review Committee Policy. proposals. Group; Cardiovascular Differentiation and [FR Doc. 2021–00345 Filed 1–11–21; 8:45 am] Place: National Institutes of Health, 6705 Development Study Section. Rockledge Drive, Bethesda, MD 20817 BILLING CODE 4140–01–P Date: February 9, 2021. (Virtual Meeting). Time: 10:00 a.m. to 7:00 p.m. Contact Person: Carol (Chang-Sook) Kim, Agenda: To review and evaluate grant Ph.D., Scientific Review Officer, Office of applications. DEPARTMENT OF HEALTH AND Scientific Review/DERA National, Heart, Place: National Institutes of Health, HUMAN SERVICES Lung, and Blood Institute, National Institutes Rockledge II, 6701 Rockledge Drive, of Health, 6705 Rockledge Drive, Room 206– Bethesda, MD 20892 (Virtual Meeting). National Institutes of Health B, Bethesda, MD 20892–7924, (301) 827– Contact Person: Sara Ahlgren, Ph.D., 7940 [email protected]. National Heart, Lung, and Blood Scientific Review Officer, Center for Name of Committee: National Heart, Lung, Scientific Review, National Institutes of Institute; Notice of Closed Meetings and Blood Institute Special Emphasis Panel; Health, 6701 Rockledge Drive, RM 4136, Atherosclerosis in Risk in Community (ARIC) Bethesda, MD 20817–7814, 301–435–0904, Pursuant to section 10(d) of the Study Field Centers. [email protected]. Federal Advisory Committee Act, as Date: February 19, 2021. Name of Committee: Brain Disorders and amended, notice is hereby given of the Time: 11:00 a.m. to 5:00 p.m. Clinical Neuroscience Integrated Review following meetings. Agenda: To review and evaluate contract Group; Pathophysiology of Eye Disease—1 The meetings will be closed to the proposals. Study Section. Place: National Institutes of Health, 6705 Date: February 10–11, 2021. public in accordance with the Rockledge Drive, Bethesda, MD 20817 Time: 8:30 a.m. to 7:00 p.m. provisions set forth in sections (Virtual Meeting). Agenda: To review and evaluate grant 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Contact Person: Carol (Chang-Sook) Kim, applications. as amended. The grant applications Ph.D., Scientific Review Officer, Office of Place: National Institutes of Health, and/or contract proposals and the Scientific Review/DERA, National Heart, Rockledge II, 6701 Rockledge Drive, discussions could disclose confidential Lung, and Blood Institute, National Institutes Bethesda, MD 20892 (Virtual Meeting). trade secrets or commercial property of Health, 6705 Rockledge Drive, Room 206– Contact Person: Afia Sultana, Ph.D., such as patentable material, and B, Bethesda, MD 20892–7924, (301) 827– Scientific Review Officer, Center for personal information concerning 7940, [email protected]. Scientific Review, National Institutes of Name of Committee: National Heart, Lung, Health, 6701 Rockledge Drive, Room 4189, individuals associated with the grant applications and/or contract proposals, and Blood Institute Special Emphasis Panel; Bethesda, MD 20892, (301) 827–7083, Neutrophils in Inflammation. [email protected]. the disclosure of which would Date: February 25, 2021. Name of Committee: Genes, Genomes, and constitute a clearly unwarranted Time: 1:00 p.m. to 4:00 p.m. Genetics Integrated Review Group; Genetic invasion of personal privacy. Agenda: To review and evaluate grant Variation and Evolution Study Section. Name of Committee: National Heart, Lung, applications. Date: February 10–11, 2021. and Blood Institute Special Emphasis Panel; Place: National Institutes of Health, 6705 Time: 9:00 a.m. to 6:00 p.m. NHLBI Program Project Applications. Rockledge Drive, Bethesda, MD 20817 Agenda: To review and evaluate grant Date: February 4, 2021 (Virtual Meeting). applications. Time: 11:30 a.m. to 3:30 p.m. Contact Person: Michael P Reilly, Ph.D., Place: National Institutes of Health, Agenda: To review and evaluate grant Scientific Review Officer, Office of Scientific Rockledge II, 6701 Rockledge Drive, applications. Review/DERA, National Heart, Lung, and Bethesda, MD 20892 (Virtual Meeting). Place: National Institutes of Health, 6705 Blood Institute, National Institutes of Health, Contact Person: Guoqin Yu, Ph.D., Rockledge Drive, Bethesda, MD 20817 6705 Rockledge Drive, Room 208–Z, Scientific Review Officer, Center for (Virtual Meeting). Bethesda, MD 20892–7924, (301) 827–7975, Scientific Review, National Institutes of Contact Person: Rajiv Kumar, Ph.D., [email protected]. Health, 6701 Rockledge Drive, Bethesda, MD Branch Chief, Blood and Vascular Branch, (Catalogue of Federal Domestic Assistance 20892, (301) 435–1276, [email protected]. National Heart, Lung, and Blood Institute, Program Nos. 93.233, National Center for Name of Committee: Biological Chemistry 6705 Rockledge Drive, Bethesda, MD 20892– Sleep Disorders Research; 93.837, Heart and and Macromolecular Biophysics Integrated 7924, 301–827–4612 [email protected]. Vascular Diseases Research; 93.838, Lung
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Diseases Research; 93.839, Blood Diseases Applied Toxicological Research and Testing, DEPARTMENT OF HEALTH AND and Resources Research, National Institutes National Institutes of Health, HHS) HUMAN SERVICES of Health, HHS) Dated: January 6, 2021. Dated: January 6, 2021. David W. Freeman, National Institutes of Health David W. Freeman, Program Analyst, Office of Federal Advisory National Heart, Lung, and Blood Program Analyst, Office of Federal Advisory Committee Policy. Institute; Notice of Closed Meeting Committee Policy. [FR Doc. 2021–00388 Filed 1–11–21; 8:45 am] [FR Doc. 2021–00343 Filed 1–11–21; 8:45 am] BILLING CODE 4140–01–P Pursuant to section 10(d) of the BILLING CODE 4140–01–P Federal Advisory Committee Act, as amended, notice is hereby given of the DEPARTMENT OF HEALTH AND following meeting. DEPARTMENT OF HEALTH AND HUMAN SERVICES The meeting will be closed to the HUMAN SERVICES public in accordance with the National Institutes of Health provisions set forth in sections National Institutes of Health 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Eunice Kennedy Shriver National as amended. The grant applications and National Institute of Environmental Institute of Child Health & Human the discussions could disclose Health Sciences; Notice of Closed Development; Notice of Closed confidential trade secrets or commercial Meeting Meeting property such as patentable material, Pursuant to section 10(d) of the and personal information concerning Federal Advisory Committee Act, as Pursuant to section 10(d) of the individuals associated with the grant amended, notice is hereby given of the Federal Advisory Committee Act, as applications, the disclosure of which following meeting. amended, notice is hereby given of the would constitute a clearly unwarranted The meeting will be closed to the following meeting. invasion of personal privacy. public in accordance with the The meeting will be closed to the Name of Committee: Heart, Lung, and provisions set forth in sections public in accordance with the Blood Initial Review Group; Single-Site and 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., provisions set forth in sections Pilot Clinical Trials Review Committee. as amended. The grant applications and 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Date: February 24–25, 2021. the discussions could disclose as amended. The grant applications and Time: 9:00 a.m. to 3:00 p.m. confidential trade secrets or commercial the discussions could disclose Agenda: To review and evaluate grant property such as patentable material, applications. confidential trade secrets or commercial Place: National Institutes of Health, 6705 and personal information concerning property such as patentable material, Rockledge Drive, Bethesda, MD 20817 individuals associated with the grant and personal information concerning (Virtual Meeting). applications, the disclosure of which individuals associated with the grant Contact Person: Carol (Chang-Sook) Kim, would constitute a clearly unwarranted applications, the disclosure of which Ph.D., Scientific Review Officer, Office of invasion of personal privacy. would constitute a clearly unwarranted Scientific Review/DERA, National Heart, invasion of personal privacy. Lung, and Blood Institute, National Institutes Name of Committee: National Institute of of Health, 6705 Rockledge Drive, Room 206– Environmental Health Sciences Special Name of Committee: National Institute of B, Bethesda, MD 20892, (301) 827–7940, Emphasis Panel; Emerging Research Child Health and Human Development Initial [email protected]. Opportunities in Environmental Health Review Group; Developmental Biology (Catalogue of Federal Domestic Assistance Sciences-Population-Based Studies. Subcommittee. Date: January 19, 2021. Program Nos. 93.233, National Center for Date: February 26, 2021. Sleep Disorders Research; 93.837, Heart and Time: 1:00 p.m. to 4:00 p.m. Time: 11:00 a.m. to 7:00 p.m. Vascular Diseases Research; 93.838, Lung Agenda: To review and evaluate grant Agenda: To review and evaluate grant Diseases Research; 93.839, Blood Diseases applications. applications. and Resources Research, National Institutes Place: National Institute of Environmental Place: National Institutes of Health, of Health, HHS) Health Sciences, Keystone Building, 530 Rockledge II, 6701 Rockledge Drive, Dated: January 6, 2021. Davis Drive, Durham, NC 27709 (Virtual Bethesda, MD 20892 (Virtual Meeting). Meeting). Contact Person: Cathy J. Wedeen, Ph.D., David W Freeman, Contact Person: Laura A. Thomas, Ph.D., Scientific Review Officer, Division of Program Analyst, Office of Federal Advisory Scientific Review Officer, Scientific Review Scientific Review, OD, Eunice Kennedy Committee Policy. Branch, Division of Extramural Research and Training, National Institute of Environmental Shriver National Institute of Child Health [FR Doc. 2021–00346 Filed 1–11–21; 8:45 am] Health Science, Research Triangle Park, NC and Human Development, NIH, DHHS, 6100 BILLING CODE 4140–01–P 27709, 984–287–3328, laura.thomas@ Executive Blvd., Room 5B01–G, Bethesda, nih.gov. MD 20892, 301–435–6878, wedeenc@ mail.nih.gov. This notice is being published less than 15 DEPARTMENT OF HEALTH AND days prior to the meeting due to the timing (Catalogue of Federal Domestic Assistance HUMAN SERVICES limitations imposed by the review and Program Nos. 93.864, Population Research; funding cycle. 93.865, Research for Mothers and Children; National Institutes of Health 93.929, Center for Medical Rehabilitation (Catalogue of Federal Domestic Assistance Program Nos. 93.115, Biometry and Risk Research; 93.209, Contraception and Center for Scientific Review; Notice of Estimation—Health Risks from Infertility Loan Repayment Program, National Closed Meetings Institutes of Health, HHS) Environmental Exposures; 93.142, NIEHS Pursuant to section 10(d) of the Hazardous Waste Worker Health and Safety Dated: January 6, 2021. Federal Advisory Committee Act, as Training; 93.143, NIEHS Superfund Ronald J. Livingston, Jr., Hazardous Substances—Basic Research and amended, notice is hereby given of the Program Analyst, Office of Federal Advisory Education; 93.894, Resources and Manpower following meetings. Committee Policy. Development in the Environmental Health The meetings will be closed to the Sciences; 93.113, Biological Response to [FR Doc. 2021–00386 Filed 1–11–21; 8:45 am] public in accordance with the Environmental Health Hazards; 93.114, BILLING CODE 4140–01–P provisions set forth in sections
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552b(c)(4) and 552b(c)(6), Title 5 U.S.C., 20892, 301–408–9098, chittari.shivakumar@ approval for the following collection of as amended. The grant applications and nih.gov. information: 1625–0119, Coast Guard the discussions could disclose Name of Committee: Center for Scientific Exchange System Scholarship confidential trade secrets or commercial Review Special Emphasis Panel; Basic Application; without change. Our ICR property such as patentable material, Mechanisms of Diabetes and Metabolism. describes the information we seek to and personal information concerning Date: February 10, 2021. collect from the public. Review and Time: 9:30 a.m. to 10:30 a.m. individuals associated with the grant Agenda: To review and evaluate grant comments by OIRA ensure we only applications, the disclosure of which applications. impose paperwork burdens would constitute a clearly unwarranted Place: National Institutes of Health, commensurate with our performance of invasion of personal privacy. Rockledge II, 6701 Rockledge Drive, duties. Name of Committee: Center for Scientific Bethesda, MD 20892 (Virtual Meeting). DATES: You may submit comments to Review Special Emphasis Panel; Contact Person: Elaine Sierra-Rivera, MS, the Coast Guard and OIRA on or before Musculoskeletal Tissue Engineering. BS, Ph.D., IRG Chief, EMNR IRG, Center for February 11, 2021. Scientific Review, National Institutes of Date: February 9, 2021. ADDRESSES: Comments to the Coast Time: 11:00 a.m. to 2:00 p.m. Health, 6701 Rockledge Drive, Room 6182, Agenda: To review and evaluate grant MSC 7892, Bethesda, MD 20892, 301–435– Guard should be submitted using the applications. 2514, [email protected]. Federal eRulemaking Portal at https:// Place: National Institutes of Health, Name of Committee: Brain Disorders and www.regulations.gov. Search for docket Rockledge II, 6701 Rockledge Drive, Clinical Neuroscience Integrated Review number [USCG–2020–0664. Written Bethesda, MD 20892 (Virtual Meeting). Group; Developmental Brain Disorders Study comments and recommendations to Contact Person: Chee Lim, Ph.D., Scientific Section. OIRA for the proposed information Review Officer, Center for Scientific Review, Date: February 10–12, 2021. collection should be sent within 30 days National Institutes of Health, 6701 Rockledge Time: 11:00 a.m. to 5:00 p.m. of publication of this notice to https:// Drive, Room 4128, Bethesda, MD 20892, 301– Agenda: To review and evaluate grant www.reginfo.gov/public/do/PRAMain. 435–1850 [email protected]. applications. Place: National Institutes of Health, 6701 Find this particular information Name of Committee: Integrative, collection by selecting ‘‘Currently under Functional and Cognitive Neuroscience Rockledge Drive, Bethesda, MD 20892 Integrated Review Group; Neuroscience of (Virtual Meeting). 30-day Review—Open for Public Basic Visual Processes Study Section. Contact Person: Pat Manos, Ph.D., Comments’’ or by using the search Date: February 10, 2021. Scientific Review Officer, Center for function. Time: 9:00 a.m. to 6:00 p.m. Scientific Review, National Institutes of A copy of the ICR is available through Agenda: To review and evaluate grant Health, 6701 Rockledge Drive, Room 5200, the docket on the internet at https:// applications. MSC 7846, Bethesda, MD 20892, 301–408– www.regulations.gov. Additionally, Place: National Institutes of Health, 9866, [email protected]. copies are available from: Rockledge II, 6701 Rockledge Drive, (Catalogue of Federal Domestic Assistance COMMANDANT (CG–6P), ATTN: Bethesda, MD 20892, (Virtual Meeting). Program Nos. 93.306, Comparative Medicine; PAPERWORK REDUCTION ACT Contact Person: Kirk Thompson, Ph.D., 93.333, Clinical Research, 93.306, 93.333, MANAGER, U.S. COAST GUARD, 2703 Scientific Review Officer, Center for 93.337, 93.393–93.396, 93.837–93.844, Scientific Review, National Institutes of 93.846–93.878, 93.892, 93.893, National MARTIN LUTHER KING JR. AVE SE, Health, 6701 Rockledge Drive, Room 5184, Institutes of Health, HHS) STOP 7710, WASHINGTON, DC 20593– 7710. MSC 7844, Bethesda, MD 20892, 301–435– Dated: January 6, 2021. 1242, [email protected]. FOR FURTHER INFORMATION CONTACT: A.L. Ronald J. Livingston, Jr., Name of Committee: Musculoskeletal, Oral Craig, Office of Privacy Management, and Skin Sciences Integrated Review Group; Program Analyst, Office of Federal Advisory telephone 202–475–3528, or fax 202– Committee Policy. Skeletal Biology Structure and Regeneration 372–8405, for questions on these Study Section. [FR Doc. 2021–00387 Filed 1–11–21; 8:45 am] documents. Date: February 10–11, 2021. BILLING CODE 4140–01–P Time: 9:00 a.m. to 6:00 p.m. SUPPLEMENTARY INFORMATION: Public Agenda: To review and evaluate grant Participation and Request for Comments This notice relies on the authority of applications. DEPARTMENT OF HOMELAND Place: National Institutes of Health, the Paperwork Reduction Act of 1995; SECURITY Rockledge II, 6701 Rockledge Drive, 44 U.S.C. chapter 35, as amended. An Bethesda, MD 20892 (Virtual Meeting). Coast Guard ICR is an application to OIRA seeking Contact Person: Yanming Bi, Ph.D., the approval, extension, or renewal of a Scientific Review Officer, Center for [Docket No. USCG–2020–0664] Coast Guard collection of information Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 4214, (Collection). The ICR contains Collection of Information Under information describing the Collection’s MSC 7814, Bethesda, MD 20892, 301–451– Review by Office of Management and 0996, [email protected]. purpose, the Collection’s likely burden Budget; OMB Control Number 1625– on the affected public, an explanation of Name of Committee: Healthcare Delivery 0119 and Methodologies Integrated Review Group; the necessity of the Collection, and Clinical Data Management and Analysis AGENCY: Coast Guard, DHS. other important information describing Study Section. ACTION: Thirty-day notice requesting the Collection. There is one ICR for each Date: February 10–11, 2021. comments. Collection. Time: 9:00 a.m. to 6:00 p.m. The Coast Guard invites comments on Agenda: To review and evaluate grant SUMMARY: In compliance with the whether this ICR should be granted applications. Paperwork Reduction Act of 1995, the based on the Collection being necessary Place: National Institutes of Health, U.S. Coast Guard is forwarding an for the proper performance of Rockledge II, 6701 Rockledge Drive, Bethesda, MD 20892 (Virtual Meeting). Information Collection Request (ICR), Departmental functions. In particular, Contact Person: Chittari V Shivakumar, abstracted below, to the Office of the Coast Guard would appreciate Ph.D., Scientific Review Officer, National Management and Budget (OMB), Office comments addressing: (1) The practical Institutes of Health, Center for Scientific of Information and Regulatory Affairs utility of the Collection; (2) the accuracy Review, 6701 Rockledge Drive, Bethesda, MD (OIRA), requesting an extension of its of the estimated burden of the
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Collection; (3) ways to enhance the Previous Request for Comments Basic and Advanced IGF Code quality, utility, and clarity of This request provides a 30-day Operations.’’ This policy provides information subject to the Collection; comment period required by OIRA. The guidance for the issuance of Merchant and (4) ways to minimize the burden of Coast Guard published the 60-day Mariner Credential endorsements in the Collection on respondents, notice (85 FR 66574, October 20, 2020) accordance with the International including the use of automated required by 44 U.S.C. 3506(c)(2). That Convention on Standards of Training, collection techniques or other forms of notice elicited no comments. Certification and Watchkeeping for information technology. Consistent with Accordingly, no changes have been Seafarers, 1978, as amended, and with the requirements of Executive Order made to the Collection. the Seafarers’ Training, Certification and 13771, Reducing Regulation and Watchkeeping Code, for Basic and Controlling Regulatory Costs, and Information Collection Request Advanced Operations on vessels subject Executive Order 13777, Enforcing the Title: Coast Guard Exchange System to the International Code of Safety for Regulatory Reform Agenda, the Coast Scholarship Application. Ships Using Gases or Low Flashpoint Guard is also requesting comments on OMB Control Number: 1625–0119. Fuels. the extent to which this request for Summary: This information collected DATES: CG–MMC Policy Letter 01–21 information could be modified to reduce on this form allows the Coast Guard was issued January 4, 2021. the burden on respondents. These Exchange System Scholarship Program ADDRESSES: Policy Letter 01–21 is comments will help OIRA determine Committee to evaluate and rank available in docket number USCG– whether to approve the ICR referred to scholarship applications in order to 2020–0181 on http:// in this Notice. award the annual scholarships. www.regulations.gov, and also on the We encourage you to respond to this Need: Community Services Command National Maritime Center website at _ request by submitting comments and Staff Instruction, CSCINST 1780 (series), https://www.dco.uscg.mil/nmc/policy related materials. Comments to Coast provides policy and procedure for the regulations. award of annual scholarships from the Guard or OIRA must contain the OMB FOR FURTHER INFORMATION CONTACT: For Control Number of the ICR. They must Coast Guard Exchange System to information about this policy, contact also contain the docket number of this dependents of Coast Guard members James Cavo, U.S. Coast Guard Mariner request, [USCG–2020–0664], and must and employees. The information Credentialing Program Policy Division be received by February 11, 2021. collected by this form allows for the (CG–MMC–2); telephone (202) 372– awarding of scholarships based upon 1205, email James.D.Cavo@uscg,mil. Submitting Comments the criteria and procedures outlined in SUPPLEMENTARY INFORMATION: the Instruction under the auspices of 5 We encourage you to submit U.S.C. 301. Background comments through the Federal Forms: CG–5687. eRulemaking Portal at https:// The International Maritime Respondents: Coast Guard Organization (IMO) adopted the www.regulations.gov. If your material dependents. International Code of Safety for Ships cannot be submitted using https:// Frequency: Annually. Using Gases or Other Low Flashpoint www.regulations.gov, contact the person Hour Burden Estimate: The estimated Fuels (IGF Code). The IGF Code in the FOR FURTHER INFORMATION burden remains 120 hours per year. addresses safety and environmental CONTACT section of this document for Authority: The Paperwork Reduction Act requirements for vessels using gases or alternate instructions. Documents of 1995; 44 U.S.C. chapter 35, as amended. other low flashpoint fuels as well as the mentioned in this notice, and all public level of training required for personnel comments, are in our online docket at Dated: January 7, 2021. serving on these vessels. Additionally, https://www.regulations.gov and can be Kathleen Claffie, in order to define the training viewed by following that website’s Chief, Office of Privacy Management, U.S. Coast Guard. requirements supporting the IGF Code, instructions. Additionally, if you go to IMO developed amendments to the [FR Doc. 2021–00429 Filed 1–11–21; 8:45 am] the online docket and sign up for email International Convention on Standards alerts, you will be notified when BILLING CODE 9110–04–P of Training, Certification and comments are posted. Watchkeeping for Seafarers, 1978, as We accept anonymous comments. All DEPARTMENT OF HOMELAND amended (STCW Convention) and to the comments to the Coast Guard will be SECURITY Seafarers’ Training, Certification and posted without change to https:// Watchkeeping Code, as amended www.regulations.gov and will include Coast Guard (STCW Code)—the instruments that any personal information you have provide the international standards for provided. For more about privacy and [Docket No. USCG–2020–0181] mariner training. These amendments submissions to the Coast Guard in Guidance for Voluntarily Obtaining provide minimum standards of response to this document, see DHS’s Merchant Mariner Credential competence, sea service, and training eRulemaking System of Records notice Endorsements for Basic and Advanced for certification at the basic and (85 FR 14226, March 11, 2020). For Operations on Vessels Subject to the advanced levels in IGF Code more about privacy and submissions to International Code of Safety for Ships Operations. OIRA in response to this document, see The IGF Code and the associated Using Gases or Low Flashpoint Fuels the https://www.reginfo.gov, comment- amendments to the STCW Convention submission web page. OIRA posts its AGENCY: Coast Guard, DHS. and to the STCW Code entered into decisions on ICRs online at https:// ACTION: Notice of availability. force on January 1, 2017. These www.reginfo.gov/public/do/PRAMain provisions set minimum standards of after the comment period for each ICR. SUMMARY: The Coast Guard announces competence, sea service, and training An OMB Notice of Action on each ICR the availability of CG–MMC Policy for certification at the basic and will become available via a hyperlink in Letter 01–21, titled ‘‘Guidelines for advanced levels in IGF Code the OMB Control Number: 1625–0119. Obtaining STCW Endorsements for Operations. These minimum standards
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apply to personnel on vessels subject to issuing these endorsements in response TABLE 1—SUMMARY OF AFFECTED the IGF Code who have designated to industry requests and to facilitate POPULATION, COSTS, AND BENEFITS safety duties associated with or maritime commerce. These FOR ISSUING STCW ENDORSE- immediate responsibility for the care, endorsements are not currently MENTS FOR IGF CODE OPER- use, or emergency response to the fuels mandated by Coast Guard regulation. ATIONS—Continued on board a vessel using gases or low However, because the United States is flashpoint fuels. signatory to the STCW Convention, Annual On February 19, 2015, the Coast vessel owners and operators should be average of Guard issued CG–OES Policy Letter 01– aware that their vessels are subject to Affected population 508 mariners 15,1 ‘‘Guidelines for Liquefied Natural foreign port state control actions, (annual average) and 4 STCW Gas Fuel Transfer Operations and including detention, if mariners are not training providers Training of Personnel on Vessels Using compliant with the STCW Convention Natural Gas as Fuel,’’ to provide and the STCW Code. Total Costs to Industry voluntary guidance on fuel transfer CG–MMC Policy Letter 01–21 was Annualized (7% discount operations and the training of personnel issued January 4, 2021. The National rate) ...... 1,554,344 working on U.S. and foreign vessels that Maritime Center will begin accepting Total 10-year (7% discount use natural gas as fuel and conduct applications for IGF Code Operations rate) ...... 10,917,059 liquefied natural gas (LNG) fuel transfer endorsements when this notice is Total Costs to the Federal operations in waters subject to U.S. published. Government Annualized jurisdiction.2 The difference between CG–MMC (7% discount rate) ...... 21,577 On April 23, 2019, the Coast Guard Policy Letter 02–19 and CG–MMC Total 10-year (7% discount rate) ...... 151,549 issued CG–MMC Policy Letter 02–19,3 Policy Letter 01–21 is that the Coast ‘‘Guidelines for Training of Personnel Guard will now issue MMC on Vessels Using Natural Gas and Other endorsements for Basic and Advanced The affected population may choose Low Flash Point Fuels.’’ This policy IGF Code Operations to mariners who to submit CG–719B Application for republished the training guidance have voluntarily met the requirements Merchant Mariner Credential for an provided in CG–OES Policy Letter 01– for the endorsements. The Coast Guard MMC endorsement in Basic or 15 without any change to the content, expects that industry has already Advanced IGF Code Operations to the but aligned the policy name with the incurred costs from attending training U.S. Coast Guard. Applications are organizational structure of the Merchant for Basic and Advanced IGF Code submitted to a Coast Guard Regional Mariner Credentialing program, which Operations. However, we do not have Examination Center in accordance with 56 was reorganized in 2016. data on how many mariners have 46 CFR 10.209. There is no fee CG–OES Policy Letter 01–15 and CG– completed training in IGF Code associated with adding an STCW MMC Policy Letter 02–19 were interim Operations, or how many would endorsement to an MMC. We estimate measures to better ensure that U.S. ultimately complete training due to the that 508 mariners would voluntarily mariners were sufficiently trained to issuance of CG–MMC Policy Letter 01– submit MMC applications to the U.S. 7 work aboard vessels using natural gas 21. Therefore, we present here the total Coast Guard on an annual basis. The and other low flash point fuels. The costs that may have occurred or would Coast Guard further estimates that this Coast Guard did not issue endorsements occur if our estimated population could lead to an increase of mariners’ to mariners who completed training in completes training for either Basic or annual hourly burden for submitting accordance with either policy. Advanced IGF Code Operations. documentation by approximately 42 hours (508 mariners × 0.083 hours). Discussion of Policy Letter CG–MMC The Coast Guard estimates this policy Policy Letter 01–21 will generate a total cost to industry and CG–MMC Policy Letter 01–21 is not a the Federal Government of $11,068,608 substitute for applicable legal The Coast Guard will now begin ($10,917,059 for costs to industry and requirements, nor is it itself a rule. The issuing STCW endorsements in Basic $151,549 for costs to the Federal Coast Guard does not currently require and Advanced IGF Code Operations to Government) in 2019 dollars discounted any mariner to obtain the endorsements mariners who voluntarily meet the at 7 percent over the next 10 years. discussed in CG–MMC Policy Letter 01– STCW requirements for certification at Table 1 presents the affected 21. In other words, it is possible to the basic and advanced levels in IGF population, costs, and benefits comply with U.S. domestic legal Code Operations. CG–MMC Policy associated with the implementation of obligations without undertaking the Letter 01–21 4 provides information on the CG–MMC Policy Letter 01–21. Table specific trainings, or obtaining the how to qualify for and request the 1 below demonstrates these costs. endorsements. The Coast Guard is 5 Due to the COVID–19 pandemic applications are TABLE 1—SUMMARY OF AFFECTED only being accepted via email. Under normal 1 This policy letter is available at https:// conditions applications may be submited in person www.dco.uscg.mil/Portals/9/DCO%20Documents/ POPULATION, COSTS, AND BENEFITS at a Regional Examination Center or via email at the 5p/5ps/MMC/CG-MMC-2%20Policies/ FOR ISSUING STCW ENDORSE- mariner’s convenience. CG%20OES%20Policy%20Letter%2001- MENTS FOR IGF CODE OPERATIONS 6 https://www.dco.uscg.mil/nmc/merchant_ 15%20signature%20with%20Enclosures.pdf? mariner_credential/ provides detailed instructions ver=2018-06-07-131254-300. on how to submit an MMC application to the 2 See Federal Register Notice, ‘‘Policy Letters: Annual National Maritime Center. average of Guidance for the Use of Liquefied Natural Gas as 7 According to the Liquefied Gas Carrier National a Marine Fuel’’, which announced the availability Affected population 508 mariners (annual average) and 4 STCW Center, an annual average of approximately 508 of CG–OES Policy Letter 01–15 (80 FR 10131). mariners would need STCW endorsements for Basic 3 https://www.dco.uscg.mil/Portals/9/DCO%20 training providers or Advanced IGF Code Operations over the 10-year Documents/5p/5ps/MMC/CG-MMC-2%20Policies/ period from 2020–2029. See Coast Guard ‘‘IGF Code CG-MMC%2002-19%20IGF%20 Policy Letter Cost Analysis,’’ which is available in Total Costs Annualized (7% Vessels.pdf?ver=2019-04-23-131748-703. the docket where indicated under the ADDRESSES 4 CG–MMC Policy Letter 01–21 is available in the discount rate) ...... $1,575,921 portion of this notice. This can be found in the docket where indicated under the ADDRESSES Total 10-year (7% discount docket USCG–2020–0181 under ‘‘IGF Code Policy portion of this notice. rate) ...... 11,068,608 Letter Cost Analysis.’’
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specific endorsements, described in CG– 30-day Review—Open for Public Control Number of the ICR. They must MMC Policy Letter 01–21. Comments’’ or by using the search also contain the docket number of this Before creating any such requirement, function. request, [USCG–2020–0663], and must the Coast Guard would undertake a A copy of the ICR is available through be received by February 11, 2021. separate rulemaking. the docket on the internet at https:// Submitting Comments We issue this notice of availability in www.regulations.gov. Additionally, accordance with 5 U.S.C. 552(a) and copies are available from: We encourage you to submit under the authority of 46 U.S.C. 7101. COMMANDANT (CG–6P), Attn: comments through the Federal If you have questions about the policy Paperwork Reduction Act Manager, U.S. eRulemaking Portal at https:// letter, or believe that changes are Coast Guard, 2703 Martin Luther King www.regulations.gov. If your material necessary, please contact the person in Jr. Ave. SE, Stop 7710, Washington, DC cannot be submitted using https:// the FOR FURTHER INFORMATION CONTACT 20593–7710. www.regulations.gov, contact the person section of this notice. FOR FURTHER INFORMATION CONTACT: A.L. in the FOR FURTHER INFORMATION CONTACT section of this document for Dated: January 7, 2021. Craig, Office of Privacy Management, telephone 202–475–3528, or fax 202– alternate instructions. Documents Jeffrey G. Lantz, mentioned in this notice, and all public Director of Commercial Regulations and 372–8405, for questions on these documents. comments, are in our online docket at Standards. https://www.regulations.gov and can be [FR Doc. 2021–00372 Filed 1–11–21; 8:45 am] SUPPLEMENTARY INFORMATION: viewed by following that website’s BILLING CODE 9110–04–P Public Participation and Request for instructions. Additionally, if you go to Comments the online docket and sign up for email alerts, you will be notified when DEPARTMENT OF HOMELAND This notice relies on the authority of comments are posted. SECURITY the Paperwork Reduction Act of 1995; We accept anonymous comments. All 44 U.S.C. chapter 35, as amended. An Coast Guard comments to the Coast Guard will be ICR is an application to OIRA seeking posted without change to https:// [Docket No. USCG–2020–0663] the approval, extension, or renewal of a www.regulations.gov and will include Coast Guard collection of information any personal information you have Collection of Information Under (Collection). The ICR contains provided. For more about privacy and Review by Office of Management and information describing the Collection’s submissions to the Coast Guard in Budget; OMB Control Number 1625– purpose, the Collection’s likely burden response to this document, see DHS’s 0109 on the affected public, an explanation of eRulemaking System of Records notice the necessity of the Collection, and AGENCY: Coast Guard, DHS. (85 FR 14226, March 11, 2020). For other important information describing more about privacy and submissions to ACTION: Thirty-day notice requesting the Collection. There is one ICR for each comments. OIRA in response to this document, see Collection. the https://www.reginfo.gov, comment- The Coast Guard invites comments on submission web page. OIRA posts its SUMMARY: In compliance with the whether this ICR should be granted decisions on ICRs online at https:// Paperwork Reduction Act of 1995 the based on the Collection being necessary www.reginfo.gov/public/do/PRAMain U.S. Coast Guard is forwarding an for the proper performance of after the comment period for each ICR. Information Collection Request (ICR), Departmental functions. In particular, An OMB Notice of Action on each ICR abstracted below, to the Office of the Coast Guard would appreciate will become available via a hyperlink in Management and Budget (OMB), Office comments addressing: (1) The practical the OMB Control Number: 1625–0109. of Information and Regulatory Affairs utility of the Collection; (2) the accuracy (OIRA), requesting an extension of its of the estimated burden of the Previous Request for Comments approval for the following collection of Collection; (3) ways to enhance the information: 1625–0109, Drawbridge This request provides a 30-day quality, utility, and clarity of comment period required by OIRA. The Operation Regulations; without change. information subject to the Collection; Our ICR describes the information we Coast Guard published the 60-day and (4) ways to minimize the burden of notice (85 FR 66572, October 20, 2020) seek to collect from the public. Review the Collection on respondents, and comments by OIRA ensure we only required by 44 U.S.C. 3506(c)(2). That including the use of automated notice elicited no comments. impose paperwork burdens collection techniques or other forms of commensurate with our performance of Accordingly, no changes have been information technology. Consistent with made to the Collection. duties. the requirements of Executive Order DATES: You may submit comments to 13771, Reducing Regulation and Information Collection Request the Coast Guard and OIRA on or before Controlling Regulatory Costs, and Title: Drawbridge Operation February 11, 2021. Executive Order 13777, Enforcing the Regulations. ADDRESSES: Comments to the Coast Regulatory Reform Agenda, the Coast OMB Control Number: 1625–0109. Guard should be submitted using the Guard is also requesting comments on Summary: The Bridge Program Federal eRulemaking Portal at https:// the extent to which this request for receives approximately 412 requests www.regulations.gov. Search for docket information could be modified to reduce from bridge owners per year to change number [USCG–2020–0663. Written the burden on respondents. These the operating schedule of various comments and recommendations to comments will help OIRA determine drawbridges across the navigable waters OIRA for the proposed information whether to approve the ICR referred to of the United States. The information collection should be sent within 30 days in this Notice. needed for the change to the operating of publication of this notice to https:// We encourage you to respond to this schedule can only be obtained from the www.reginfo.gov/public/do/PRAMain. request by submitting comments and bridge owner and is generally provided Find this particular information related materials. Comments to Coast to the Coast Guard in either written or collection by selecting ‘‘Currently under Guard or OIRA must contain the OMB electronic format.
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Need: 33 U.S.C. 499 authorizes the Applications should be submitted: via have high concentrations of maritime Coast Guard to change the operating the following method: personnel and related marine industry schedules of drawbridges that cross over • By Email: [email protected]. businesses. navigable waters of the United States. Subject Line: N–MERPAC (preferred) All members serve at their own Forms: None. FOR FURTHER INFORMATION CONTACT: expense and receive no salary or other Respondents: The public and private Megan Johns Henry, Alternate compensation from the Federal owners of bridges over navigable waters Designated Federal Officer of the Government. Members may be of the United States. Merchant Marine Personnel Advisory reimbursed, however only for travel and Frequency: On occasion. Committee; Telephone 202–372–1255; per diem in accordance with the Federal Hour Burden Estimate: The estimated or Email at [email protected]. Travel Regulations. burden is 1,672 hours a year. SUPPLEMENTARY INFORMATION: On May Under the provisions in 46 U.S.C. Authority: The Paperwork Reduction 15, 2020, the Coast Guard published a 15109(f)(6), if you are appointed as a Act of 1995; 44 U.S.C. chapter 35, as request in the Federal Register (85 FR member of the Committee, your amended. 29467) for applications for membership membership term will expire on Dated: January 7, 2021. in the National Merchant Marine December 31 of the third full year after Personnel Advisory Committee. On July Kathleen Claffie, the effective date of your appointment. 31, 2020, the Coast Guard published an The Secretary may require an individual Chief, Office of Privacy Management, U.S. additional request in the Federal Coast Guard. to have passed an appropriate security Register (85 FR 46141) for applications background examination before [FR Doc. 2021–00408 Filed 1–11–21; 8:45 am] for membership in the National appointment to the Committee, 46 BILLING CODE 9110–04–P Merchant Marine Personnel Advisory U.S.C. 15109(f)(4). Committee from those holding Merchant In this solicitation for a Committee Mariner Credentials with rating DEPARTMENT OF HOMELAND member, we will consider applications endorsements. The Coast Guard is re- for the following position: SECURITY soliciting applications from persons • United States’ citizens holding Coast Guard interested in membership on the National Merchant Marine Personnel active licenses or certificates issued Advisory Committee to represent the under 46 U.S.C. chapter 71 or merchant [Docket No. USCG–2020–0041] viewpoint of those credentialed with a mariner documents issued under 46 rating endorsement as a qualified U.S.C. chapter 73, including two National Merchant Marine Personnel credentialed with ratings: one that must Advisory Committee; Vacancy member of the engine department. Applicants who hold a Merchant be endorsed as a qualified member of the engine department. AGENCY: Coast Guard, Department of Mariner Credential with an officer Homeland Security. endorsement are not eligible for this The Department of Homeland position. Applicants who responded to Security does not discriminate in ACTION: Request for applications; re- selection of Committee members based solicitation for a member credentialed the previous notices do not need to on race, color, religion, sex, national with ratings as a qualified member of reapply. The National Merchant Marine origin, political affiliation, sexual the engine department. Personnel Advisory Committee is a orientation, gender identity, marital SUMMARY: The Coast Guard is re- Federal advisory committee. It will status, disabilities and genetic soliciting applications from persons operate under the provisions of the information, age, membership in an interested in membership on the Federal Advisory Committee Act, 5 employee organization, or any other National Merchant Marine Personnel U.S.C. Appendix, and the non-merit factor. The Department of Advisory Committee (Committee) to administrative provisions in Section 601 Homeland Security strives to achieve a represent the viewpoint of those of the Frank LoBiondo Coast Guard widely diverse candidate pool for all of credentialed with ratings as a qualified Authorization Act of 2018 (specifically, its recruitment selections. member of the engine department. This 46 U.S.C. 15109). If you are interested in applying to recently established Committee will The Committee was established on become a member of the Committee, advise the Secretary of the Department December 4, 2019, by the Frank send your cover letter and resume to of Homeland Security on matters LoBiondo Coast Guard Authorization Megan Johns Henry, Alternate relating to personnel in the United Act of 2018, which added section Designated Federal Officer of the States merchant marine, including the 15103, National Merchant Marine National Merchant Marine Personnel training, qualifications, certification, Personnel Advisory Committee, to Title Advisory Committee via one of the documentation, and fitness of mariners. 46 of the U.S. Code. The Committee will transmittal methods in the ADDRESSES Please read the notice for description of advise the Secretary of Homeland section by the deadline in the DATES Security on matters relating to the Committee position we are seeking section of this notice. When you send personnel in the United States merchant to fill. your application to us via email, we will marine, including the training, DATES: Your completed application send you an email confirming receipt of qualifications, certification, your application. should reach the Coast Guard on or documentation, and fitness of mariners. before March 15, 2021. The Committee is required to meet at Dated: January 7, 2021. ADDRESSES: Applicants should send a least once a year in accordance with 46 Jeffrey G. Lantz, cover letter expressing interest in an U.S.C. 15109(a). We expect the Director of Commercial Regulations and appointment to the Committee and a Committee to meet at least twice a year, Standards. resume detailing their experience. We but it may meet more frequently. The [FR Doc. 2021–00383 Filed 1–11–21; 8:45 am] will not accept a biography. meetings are generally held in cities that BILLING CODE 9110–04–P
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DEPARTMENT OF HOMELAND Public Participation and Request for the online docket and sign up for email SECURITY Comments alerts, you will be notified when This notice relies on the authority of comments are posted. Coast Guard We accept anonymous comments. All the Paperwork Reduction Act of 1995; comments to the Coast Guard will be 44 U.S.C. chapter 35, as amended. An posted without change to https:// [Docket No. USCG–2020–0666] ICR is an application to OIRA seeking www.regulations.gov and will include the approval, extension, or renewal of a Collection of Information Under any personal information you have Coast Guard collection of information Review by Office of Management and provided. For more about privacy and (Collection). The ICR contains Budget; OMB Control Number 1625– submissions to the Coast Guard in information describing the Collection’s 0040 response to this document, see DHS’s purpose, the Collection’s likely burden eRulemaking System of Records notice on the affected public, an explanation of AGENCY: Coast Guard, DHS. (85 FR 14226, March 11, 2020). For the necessity of the Collection, and more about privacy and submissions to ACTION: Thirty-day notice requesting other important information describing comments. OIRA in response to this document, see the Collection. There is one ICR for each the https://www.reginfo.gov, comment- Collection. The Coast Guard invites submission web page. OIRA posts its SUMMARY: In compliance with the comments on whether this ICR should Paperwork Reduction Act of 1995 the decisions on ICRs online at https:// be granted based on the Collection being www.reginfo.gov/public/do/PRAMain U.S. Coast Guard is forwarding an necessary for the proper performance of Information Collection Request (ICR), after the comment period for each ICR. Departmental functions. In particular, An OMB Notice of Action on each ICR abstracted below, to the Office of the Coast Guard would appreciate Management and Budget (OMB), Office will become available via a hyperlink in comments addressing: (1) The practical the OMB Control Number: 1625–0040. of Information and Regulatory Affairs utility of the Collection; (2) the accuracy (OIRA), requesting an extension of its of the estimated burden of the Previous Request for Comments approval for the following collection of Collection; (3) ways to enhance the This request provides a 30-day information: 1625–0040, Applications quality, utility, and clarity of comment period required by OIRA. The for Merchant Mariner Credentials and information subject to the Collection; Coast Guard published the 60-day Medical Certificates; without change. and (4) ways to minimize the burden of notice (85 FR 66573, October 20, 2020) Our ICR describes the information we the Collection on respondents, required by 44 U.S.C. 3506(c)(2). That seek to collect from the public. Review including the use of automated notice elicited no comments. and comments by OIRA ensure we only collection techniques or other forms of Accordingly, no changes have been impose paperwork burdens information technology. Consistent with made to the Collection. commensurate with our performance of the requirements of Executive Order duties. 13771, Reducing Regulation and Information Collection Request DATES: You may submit comments to Controlling Regulatory Costs, and Title: Applications for Merchant the Coast Guard and OIRA on or before Executive Order 13777, Enforcing the Mariner Credentials and Medical February 11, 2021. Regulatory Reform Agenda, the Coast Certificates. Guard is also requesting comments on OMB Control Number: 1625–0040. ADDRESSES: Comments to the Coast the extent to which this request for Summary: This information is Guard should be submitted using the information could be modified to reduce necessary to determine competency, Federal eRulemaking Portal at https:// the burden on respondents. These character and physical qualifications for www.regulations.gov. Search for docket comments will help OIRA determine the issuance of a Merchant Mariner number [USCG–2020–0666]. Written whether to approve the ICR referred to Credential (MMC) or Medical comments and recommendations to in this Notice. Certificate. OIRA for the proposed information We encourage you to respond to this Need: Title 46 Code of Federal collection should be sent within 30 days request by submitting comments and Regulation (CFR) parts 10–13 and 16 of publication of this notice to https:// related materials. Comments to Coast detail the requirements for the issuance www.reginfo.gov/public/do/PRAMain. Guard or OIRA must contain the OMB of an MMC or Medical Certificate. Find this particular information Forms: Control Number of the ICR. They must • CG–719B, Application for Merchant collection by selecting ‘‘Currently under also contain the docket number of this 30-day Review—Open for Public Mariner Credential. request, [USCG–2020–0666], and must • CG–719C, Disclosure Statement for Comments’’ or by using the search be received by February 11, 2021. function. Narcotics, DWI/DUI, and/or Other Submitting Comments Convictions. A copy of the ICR is available through • CG–719K, Application for Medical the docket on the internet at https:// We encourage you to submit Certificate. www.regulations.gov. Additionally, comments through the Federal • CG–719K/E, Application for copies are available from: Commandant eRulemaking Portal at https:// Medical Certificate, Short Form. (CG–6P), Attn: Paperwork Reduction www.regulations.gov. If your material • CG–719P, DOT/USCG Periodic Act Manager, U.S. Coast Guard, 2703 cannot be submitted using https:// Drug Testing Form. Martin Luther King Jr. Ave. SE, Stop www.regulations.gov, contact the person • CG–719S, Small Vessel Sea Service 7710, Washington, DC 20593–7710. in the FOR FURTHER INFORMATION Form. CONTACT FOR FURTHER INFORMATION CONTACT: A.L. section of this document for Respondents: Applicants for MMC, Craig, Office of Privacy Management, alternate instructions. Documents whether original, renewal, duplicate, telephone 202–475–3528, or fax 202– mentioned in this notice, and all public raise of grade, or a new endorsement on 372–8405, for questions on these comments, are in our online docket at a previously issued MMC. Applicants documents. https://www.regulations.gov and can be for Medical Certificates to include viewed by following that website’s National and STCW credentialed SUPPLEMENTARY INFORMATION: instructions. Additionally, if you go to mariners, and first-class pilots.
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Frequency: On occasion. buildings and the contents of those appropriate flood insurance premium Hour Burden Estimate: The estimated buildings. rates for new buildings built after the burden has increased from 47,444 hours DATES: Comments are to be submitted FIRM and FIS report become effective. to 62,004 hours a year; due to an on or before April 12, 2021. The communities affected by the increase in the estimated annual ADDRESSES: The Preliminary FIRM, and flood hazard determinations are number of responses.. where applicable, the FIS report for provided in the tables below. Any Authority: The Paperwork Reduction Act each community are available for request for reconsideration of the of 1995; 44 U.S.C. chapter 35, as amended. inspection at both the online location revised flood hazard information shown Dated: January 7, 2021. https://www.fema.gov/ on the Preliminary FIRM and FIS report Kathleen Claffie, preliminaryfloodhazarddata and the that satisfies the data requirements Chief, Office of Privacy Management, U.S. respective Community Map Repository outlined in 44 CFR 67.6(b) is considered Coast Guard. address listed in the tables below. an appeal. Comments unrelated to the [FR Doc. 2021–00428 Filed 1–11–21; 8:45 am] Additionally, the current effective FIRM flood hazard determinations also will be BILLING CODE 9110–04–P and FIS report for each community are considered before the FIRM and FIS accessible online through the FEMA report become effective. Map Service Center at https:// Use of a Scientific Resolution Panel DEPARTMENT OF HOMELAND msc.fema.gov for comparison. (SRP) is available to communities in SECURITY You may submit comments, identified support of the appeal resolution by Docket No. FEMA–B–2061, to Rick process. SRPs are independent panels of Federal Emergency Management Sacbibit, Chief, Engineering Services experts in hydrology, hydraulics, and Agency Branch, Federal Insurance and other pertinent sciences established to [Docket ID FEMA–2021–0002; Internal Mitigation Administration, FEMA, 400 review conflicting scientific and Agency Docket No. FEMA–B–2061] C Street SW, Washington, DC 20472, technical data and provide (202) 646–7659, or (email) recommendations for resolution. Use of Proposed Flood Hazard [email protected]. the SRP only may be exercised after Determinations FOR FURTHER INFORMATION CONTACT: Rick FEMA and local communities have been Sacbibit, Chief, Engineering Services AGENCY: Federal Emergency engaged in a collaborative consultation Branch, Federal Insurance and Management Agency, DHS. process for at least 60 days without a Mitigation Administration, FEMA, 400 ACTION: Notice. mutually acceptable resolution of an C Street SW, Washington, DC 20472, appeal. Additional information SUMMARY: Comments are requested on (202) 646–7659, or (email) regarding the SRP process can be found proposed flood hazard determinations, [email protected]; or visit online at https://www.floodsrp.org/pdfs/ which may include additions or the FEMA Mapping and Insurance srp_overview.pdf. eXchange (FMIX) online at https:// modifications of any Base Flood The watersheds and/or communities www.floodmaps.fema.gov/fhm/fmx_ Elevation (BFE), base flood depth, affected are listed in the tables below. main.html. Special Flood Hazard Area (SFHA) The Preliminary FIRM, and where boundary or zone designation, or SUPPLEMENTARY INFORMATION: FEMA applicable, FIS report for each regulatory floodway on the Flood proposes to make flood hazard community are available for inspection Insurance Rate Maps (FIRMs), and determinations for each community at both the online location https:// where applicable, in the supporting listed below, in accordance with section www.fema.gov/ Flood Insurance Study (FIS) reports for 110 of the Flood Disaster Protection Act preliminaryfloodhazarddata and the the communities listed in the table of 1973, 42 U.S.C. 4104, and 44 CFR respective Community Map Repository below. The purpose of this notice is to 67.4(a). address listed in the tables. For seek general information and comment These proposed flood hazard communities with multiple ongoing regarding the preliminary FIRM, and determinations, together with the Preliminary studies, the studies can be where applicable, the FIS report that the floodplain management criteria required identified by the unique project number Federal Emergency Management Agency by 44 CFR 60.3, are the minimum that and Preliminary FIRM date listed in the (FEMA) has provided to the affected are required. They should not be tables. Additionally, the current communities. The FIRM and FIS report construed to mean that the community effective FIRM and FIS report for each are the basis of the floodplain must change any existing ordinances community are accessible online management measures that the that are more stringent in their through the FEMA Map Service Center community is required either to adopt floodplain management requirements. at https://msc.fema.gov for comparison. or to show evidence of having in effect The community may at any time enact in order to qualify or remain qualified stricter requirements of its own or (Catalog of Federal Domestic Assistance No. for participation in the National Flood pursuant to policies established by other 97.022, ‘‘Flood Insurance.’’) Insurance Program (NFIP). In addition, Federal, State, or regional entities. Michael M. Grimm, the FIRM and FIS report, once effective, These flood hazard determinations are Assistant Administrator for Risk will be used by insurance agents and used to meet the floodplain Management, Department of Homeland others to calculate appropriate flood management requirements of the NFIP Security, Federal Emergency Management insurance premium rates for new and are used to calculate the Agency.
Community Community map repository address
Anderson County, Kansas and Incorporated Areas Project: 19–07–0035S Preliminary Date: April 28, 2020
City of Colony ...... City Hall, 339 Cherry Street, Colony, KS 66015. City of Garnett ...... City Hall, 131 West 5th Avenue, Garnett, KS 66032.
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Community Community map repository address
City of Greeley ...... City Hall, 112 West Brown Avenue, Greeley, KS 66033. City of Kincaid ...... City Hall, 500 5th Avenue, Kincaid, KS 66039. City of Lone Elm ...... Lone Elm City Hall, 303 2nd Street, Kincaid, KS 66039. City of Westphalia ...... Anderson County Courthouse, 100 East 4th Avenue, Garnett, KS 66032. Unincorporated Areas of Anderson County ...... Anderson County Courthouse, 100 East 4th Avenue, Garnett, KS 66032.
Chase County, Kansas and Incorporated Areas Project: 19–07–0041S Preliminary Date: April 24, 2020
City of Cedar Point ...... City Hall, 127 Cedar Street, Cedar Point, KS 66843. City of Cottonwood Falls ...... City Hall, 220 Broadway, Cottonwood Falls, KS 66845. City of Elmdale ...... Chase County Courthouse, 300 Pearl Street, Cottonwood Falls, KS 66845. City of Matfield Green ...... Chase County Courthouse, 300 Pearl Street, Cottonwood Falls, KS 66845. City of Strong City ...... City Hall, 204 West Topeka Avenue, Strong City, KS 66869. Unincorporated Areas of Chase County ...... Chase County Courthouse, 300 Pearl Street, Cottonwood Falls, KS 66845.
Coffey County, Kansas and Incorporated Areas Project: 19–07–0037S Preliminary Date: April 10, 2020
City of Burlington ...... City Hall, 1013 North 4th Street, Burlington, KS 66839. City of Gridley ...... City Hall, 503 Main Street, Gridley, KS 66852. City of Lebo ...... City Hall, 9 East 4th Street, Lebo, KS 66856. City of LeRoy ...... City Hall, 713 South Main Street, LeRoy, KS 66857. City of Waverly ...... City Hall, 210 Pearson Avenue, Waverly, KS 66871. Unincorporated Areas of Coffey County ...... Coffey County Courthouse, 110 South 6th Street, Burlington, KS 66839.
Douglas County, Kansas and Incorporated Areas Project: 19–07–0033S Preliminary Date: May 28, 2020
City of Baldwin City ...... City Hall, 803 8th Street, Baldwin City, KS 66006. Unincorporated Areas of Douglas County ...... Douglas County Courthouse, 1100 Massachusetts Street, Lawrence, KS 66044.
[FR Doc. 2021–00398 Filed 1–11–21; 8:45 am] below. The purpose of this notice is to listed in the tables below. Additionally, BILLING CODE 9110–12–P seek general information and comment the current effective FIRM and FIS regarding the preliminary FIRM, and report for each community are where applicable, the FIS report that the accessible online through the FEMA DEPARTMENT OF HOMELAND Federal Emergency Management Agency Map Service Center at https:// SECURITY (FEMA) has provided to the affected msc.fema.gov for comparison. communities. The FIRM and FIS report You may submit comments, identified Federal Emergency Management are the basis of the floodplain by Docket No. FEMA–B–2075, to Rick Agency management measures that the Sacbibit, Chief, Engineering Services [Docket ID FEMA–2021–0002; Internal community is required either to adopt Branch, Federal Insurance and Agency Docket No. FEMA–B–2075] or to show evidence of having in effect Mitigation Administration, FEMA, 400 in order to qualify or remain qualified C Street SW, Washington, DC 20472, Proposed Flood Hazard for participation in the National Flood (202) 646–7659, or (email) Determinations Insurance Program (NFIP). In addition, [email protected]. the FIRM and FIS report, once effective, AGENCY: Federal Emergency FOR FURTHER INFORMATION CONTACT: Rick will be used by insurance agents and Management Agency, DHS. Sacbibit, Chief, Engineering Services others to calculate appropriate flood ACTION: Notice. Branch, Federal Insurance and insurance premium rates for new Mitigation Administration, FEMA, 400 SUMMARY: Comments are requested on buildings and the contents of those C Street SW, Washington, DC 20472, proposed flood hazard determinations, buildings. (202) 646–7659, or (email) which may include additions or [email protected]; or visit modifications of any Base Flood DATES: Comments are to be submitted the FEMA Mapping and Insurance Elevation (BFE), base flood depth, on or before April 12, 2021. eXchange (FMIX) online at https:// Special Flood Hazard Area (SFHA) ADDRESSES: The Preliminary FIRM, and www.floodmaps.fema.gov/fhm/fmx_ boundary or zone designation, or where applicable, the FIS report for main.html. regulatory floodway on the Flood each community are available for Insurance Rate Maps (FIRMs), and inspection at both the online location SUPPLEMENTARY INFORMATION: FEMA where applicable, in the supporting https://www.fema.gov/preliminaryflood proposes to make flood hazard Flood Insurance Study (FIS) reports for hazarddata and the respective determinations for each community the communities listed in the table Community Map Repository address listed below, in accordance with section
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110 of the Flood Disaster Protection Act revised flood hazard information shown The watersheds and/or communities of 1973, 42 U.S.C. 4104, and 44 CFR on the Preliminary FIRM and FIS report affected are listed in the tables below. 67.4(a). that satisfies the data requirements The Preliminary FIRM, and where These proposed flood hazard outlined in 44 CFR 67.6(b) is considered applicable, FIS report for each determinations, together with the an appeal. Comments unrelated to the community are available for inspection floodplain management criteria required flood hazard determinations also will be at both the online location https:// by 44 CFR 60.3, are the minimum that considered before the FIRM and FIS www.fema.gov/preliminaryflood are required. They should not be report become effective. hazarddata and the respective construed to mean that the community Community Map Repository address must change any existing ordinances Use of a Scientific Resolution Panel (SRP) is available to communities in listed in the tables. For communities that are more stringent in their with multiple ongoing Preliminary floodplain management requirements. support of the appeal resolution process. SRPs are independent panels of studies, the studies can be identified by The community may at any time enact the unique project number and stricter requirements of its own or experts in hydrology, hydraulics, and other pertinent sciences established to Preliminary FIRM date listed in the pursuant to policies established by other tables. Additionally, the current Federal, State, or regional entities. review conflicting scientific and technical data and provide effective FIRM and FIS report for each These flood hazard determinations are community are accessible online used to meet the floodplain recommendations for resolution. Use of the SRP only may be exercised after through the FEMA Map Service Center management requirements of the NFIP at https://msc.fema.gov for comparison. and are used to calculate the FEMA and local communities have been engaged in a collaborative consultation (Catalog of Federal Domestic Assistance No. appropriate flood insurance premium 97.022, ‘‘Flood Insurance.’’) rates for new buildings built after the process for at least 60 days without a FIRM and FIS report become effective. mutually acceptable resolution of an Michael M. Grimm, The communities affected by the appeal. Additional information Assistant Administrator for Risk flood hazard determinations are regarding the SRP process can be found Management, Department of Homeland provided in the tables below. Any online at https://www.floodsrp.org/pdfs/ Security,Federal Emergency Management request for reconsideration of the srp_overview.pdf. Agency.
Community Community map repository address
Imperial County, California and Incorporated Areas Project: 18–09–0018S Preliminary Date: August 31, 2020
Unincorporated Areas of Imperial County ...... Imperial County Planning and Development Services, 801 Main Street, El Centro, CA 92243.
Riverside County, California and Incorporated Areas Project: 18–09–0018S Preliminary Date: August 31, 2020
Unincorporated Areas of Riverside County ...... Riverside County Flood Control and Water Conservation District, 1995 Market Street, Riverside, CA 92501.
San Diego County, California and Incorporated Areas Project: 18–09–0018S Preliminary Date: August 31, 2020
Unincorporated Areas of San Diego County ...... Department of Public Works Flood Control, 5510 Overland Avenue, Suite 410 MS 0326, San Diego, CA 92123.
Arenac County, Michigan (All Jurisdictions) Project: 14–05–2549S Preliminary Date: November 14, 2019
City of Au Gres ...... City Hall, 124 West Huron Road, Au Gres, MI 48703. Township of Arenac ...... Arenac Township Hall, 2596 Arenac State Road, Standish, MI 48658. Township of Au Gres ...... Township Hall, 1865 South Swenson Road, Au Gres, MI 48703. Township of Sims ...... Sims Township Office, 4489 East Huron Road, Au Gres, MI 48703. Township of Standish ...... Township Hall, 4997 Arenac State Road, Standish, MI 48658. Township of Whitney ...... Whitney Township Hall, 1515 North Huron Road, Tawas City, MI 48763.
Iosco County, Michigan (All Jurisdictions) Project: 14–05–2537S Preliminary Date: April 30, 2020
. City of East Tawas ...... East Tawas Community Center, 760 Newman Street, East Tawas, MI 48730. City of Tawas City ...... City Hall, 550 West Lake Street, Tawas City, MI 48764. Township of Alabaster ...... Alabaster Township Hall, 1716 South U.S. 23, Tawas City, MI 48763. Township of Au Sable ...... Township Hall, 4420 North U.S. 23, Au Sable, MI 48750. Township of Baldwin ...... Baldwin Township Hall, 1119 Monument Road, Tawas City, MI 48763. Township of Oscoda ...... Iosco County Public Safety Building, 1808 North U.S. 23, East Tawas, MI 48730.
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Community Community map repository address
Rice County, Minnesota and Incorporated Areas Project: 12–05–2135S Preliminary Date: November 15, 2019
City of Faribault ...... City Hall, Council Chambers, 208 First Avenue Northwest, Faribault, MN 55021. City of Nerstrand ...... City Hall, 221 Main Street, Nerstrand, MN 55053. Township of Bridgewater ...... Bridgewater Township Hall, 500 Railway Street South, Dundas, MN 55019. Unincorporated Areas of Rice County ...... Rice County Government Services Building, 320 Northwest Third Street, Faribault, MN 55021.
Logan County, Ohio and Incorporated Areas Project: 11–05–1562S Preliminary Date: May 29, 2020
Unincorporated Areas of Logan County...... Logan County Office Building, 100 South Madriver Street, Belle- fontaine, OH 43311. Village of Lakeview ...... Lakeview Municipal Building, 126 North Main Street, Lakeview, OH 43331. Village of Russells Point ...... Logan County Office Building, 100 South Madriver Street, Belle- fontaine, OH 43311.
[FR Doc. 2021–00399 Filed 1–11–21; 8:45 am] C Street SW, Washington, DC 20472, technical data and provide BILLING CODE 9110–12–P (202) 646–7659, or (email) recommendations for resolution. Use of [email protected]. the SRP may only be exercised after FOR FURTHER INFORMATION CONTACT: Rick FEMA and local communities have been DEPARTMENT OF HOMELAND Sacbibit, Chief, Engineering Services engaged in a collaborative consultation SECURITY Branch, Federal Insurance and process for at least 60 days without a Mitigation Administration, FEMA, 400 mutually acceptable resolution of an Federal Emergency Management C Street SW, Washington, DC 20472, appeal. Additional information Agency (202) 646–7659, or (email) regarding the SRP process can be found [Docket ID FEMA–2021–0002; Internal [email protected]; or visit online at https://floodsrp.org/pdfs/srp_ Agency Docket No. FEMA–B–2069] the FEMA Mapping and Insurance fact_sheet.pdf. eXchange (FMIX) online at https:// The communities affected by the Proposed Flood Hazard www.floodmaps.fema.gov/fhm/fmx_ flood hazard determinations are Determinations main.html. provided in the table below. Any AGENCY: Federal Emergency SUPPLEMENTARY INFORMATION: FEMA request for reconsideration of the Management Agency; DHS. proposes to make flood hazard revised flood hazard determinations ACTION: Notice; correction. determinations for each community shown on the Preliminary FIRM and FIS listed in the table below, in accordance report that satisfies the data SUMMARY: On December 1, 2020, FEMA with Section 110 of the Flood Disaster requirements outlined in 44 CFR 67.6(b) published in the Federal Register a Protection Act of 1973, 42 U.S.C. 4104, is considered an appeal. Comments proposed flood hazard determination and 44 CFR 67.4(a). unrelated to the flood hazard notice that contained an erroneous These proposed flood hazard determinations will also be considered table. This notice provides corrections determinations, together with the before the FIRM and FIS report are to that table. The table provided here floodplain management criteria required made final. represents the proposed flood hazard by 44 CFR 60.3, are the minimum that Correction determinations and communities are required. They should not be affected for Boulder County, Colorado construed to mean that the community In the proposed flood hazard and Incorporated Areas. must change any existing ordinances determination notice published at 85 FR DATES: Comments are to be submitted that are more stringent in their 77232 in the December 1, 2020, issue of on or before April 12, 2021. floodplain management requirements. the Federal Register, FEMA published a ADDRESSES: The Preliminary Flood The community may at any time enact table titled ‘‘Boulder County, Colorado, Insurance Rate Map (FIRM), and where stricter requirements of its own, or and Incorporated Areas’’. This table applicable, the Flood Insurance Study pursuant to policies established by other contained inaccurate information as to (FIS) report for each community are Federal, State, or regional entities. the community map repository for available for inspection at both the These flood hazard determinations are Town of Superior featured in the table. online location and the respective used to meet the floodplain In this document, FEMA is publishing Community Map Repository address management requirements of the NFIP a table containing the accurate listed in the table below. Additionally, and are also used to calculate the information. The information provided the current effective FIRM and FIS appropriate flood insurance premium below should be used in lieu of that report for each community are rates for new buildings built after the previously published. accessible online through the FEMA FIRM and FIS report become effective. Map Service Center at https:// Use of a Scientific Resolution Panel (Catalog of Federal Domestic Assistance No. msc.fema.gov for comparison. (SRP) is available to communities in 97.022, ‘‘Flood Insurance.’’) You may submit comments, identified support of the appeal resolution Michael M. Grimm, by Docket No. FEMA–B–2069, to Rick process. SRPs are independent panels of Assistant Administrator for Risk Sacbibit, Chief, Engineering Services experts in hydrology, hydraulics, and Management, Department of Homeland Branch, Federal Insurance and other pertinent sciences established to Security, Federal Emergency Management Mitigation Administration, FEMA, 400 review conflicting scientific and Agency.
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Community Community map repository address
Boulder County, Colorado and Incorporated Areas Project: 19–08–0003S Preliminary Date: September 30, 2019
City of Boulder ...... Park Central, 1739 Broadway, Boulder, CO 80302. City of Longmont ...... Development Services Center, 385 Kimbark Street, Longmont, CO 80501. Town of Erie ...... Town Hall, 645 Holbrook Street, Erie, CO 80516. Town of Jamestown ...... Town Hall, 118 Main Street, Jamestown, CO 80455. Town of Lyons ...... Town Hall, 432 5th Avenue, Lyons, CO 80540. Town of Nederland ...... Town Hall, 45 West 1st Street, Nederland, CO 80466. Town of Superior ...... Public Works and Utilities Department, 405 Center Drive, Suite E, Su- perior, CO 80027. Town of Ward ...... Town Hall, 1 Columbia Street, Ward, CO 80481. Unincorporated Areas of Boulder County ...... Boulder County Community Planning and Permitting Department, 2045 13th Street, Boulder, CO 80302.
[FR Doc. 2021–00395 Filed 1–11–21; 8:45 am] revise the FIRM panels and FIS report of the community as listed in the table BILLING CODE 9110–12–P in effect prior to this determination for below. the listed communities. The modifications are made pursuant From the date of the second to section 201 of the Flood Disaster DEPARTMENT OF HOMELAND publication of notification of these Protection Act of 1973, 42 U.S.C. 4105, SECURITY changes in a newspaper of local and are in accordance with the National circulation, any person has 90 days in Flood Insurance Act of 1968, 42 U.S.C. Federal Emergency Management which to request through the 4001 et seq., and with 44 CFR part 65. Agency community that the Deputy Associate The FIRM and FIS report are the basis Administrator for Insurance and [Docket ID FEMA–2021–0002; Internal of the floodplain management measures Mitigation reconsider the changes. The Agency Docket No. FEMA–B–2080] that the community is required either to flood hazard determination information adopt or to show evidence of having in Changes in Flood Hazard may be changed during the 90-day effect in order to qualify or remain Determinations period. qualified for participation in the AGENCY: Federal Emergency ADDRESSES: The affected communities National Flood Insurance Program Management Agency, DHS. are listed in the table below. Revised (NFIP). ACTION: Notice. flood hazard information for each These flood hazard determinations, community is available for inspection at SUMMARY: This notice lists communities together with the floodplain both the online location and the management criteria required by 44 CFR where the addition or modification of respective community map repository Base Flood Elevations (BFEs), base flood 60.3, are the minimum that are required. address listed in the table below. They should not be construed to mean depths, Special Flood Hazard Area Additionally, the current effective FIRM (SFHA) boundaries or zone that the community must change any and FIS report for each community are existing ordinances that are more designations, or the regulatory floodway accessible online through the FEMA (hereinafter referred to as flood hazard stringent in their floodplain Map Service Center at https:// management requirements. The determinations), as shown on the Flood msc.fema.gov for comparison. Insurance Rate Maps (FIRMs), and Submit comments and/or appeals to community may at any time enact where applicable, in the supporting the Chief Executive Officer of the stricter requirements of its own or Flood Insurance Study (FIS) reports, community as listed in the table below. pursuant to policies established by other Federal, State, or regional entities. The prepared by the Federal Emergency FOR FURTHER INFORMATION CONTACT: Rick flood hazard determinations are in Management Agency (FEMA) for each Sacbibit, Chief, Engineering Services accordance with 44 CFR 65.4. community, is appropriate because of Branch, Federal Insurance and new scientific or technical data. The Mitigation Administration, FEMA, 400 The affected communities are listed in FIRM, and where applicable, portions of C Street SW, Washington, DC 20472, the following table. Flood hazard the FIS report, have been revised to (202) 646–7659, or (email) determination information for each reflect these flood hazard [email protected]; or visit community is available for inspection at determinations through issuance of a the FEMA Mapping and Insurance both the online location and the Letter of Map Revision (LOMR), in eXchange (FMIX) online at https:// respective community map repository accordance with Federal Regulations. www.floodmaps.fema.gov/fhm/fmx_ address listed in the table below. The LOMR will be used by insurance main.html. Additionally, the current effective FIRM agents and others to calculate and FIS report for each community are SUPPLEMENTARY INFORMATION: The accessible online through the FEMA appropriate flood insurance premium specific flood hazard determinations are rates for new buildings and the contents Map Service Center at https:// not described for each community in msc.fema.gov for comparison. of those buildings. For rating purposes, this notice. However, the online the currently effective community location and local community map (Catalog of Federal Domestic Assistance No. number is shown in the table below and repository address where the flood 97.022, ‘‘Flood Insurance.’’) must be used for all new policies and hazard determination information is Michael M. Grimm, renewals. available for inspection is provided. Assistant Administrator for Risk DATES: These flood hazard Any request for reconsideration of Management, Department of Homeland determinations will be finalized on the flood hazard determinations must be Security, Federal Emergency Management dates listed in the table below and submitted to the Chief Executive Officer Agency.
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Location and Chief executive Community map Online location of Date of Community State and county case No. officer of community repository letter of map revision modification No.
Arizona: Pima ...... City of Tucson, The Honorable Regina Planning and Develop- https://msc.fema.gov/portal/ Mar. 15, 2021 .... 040076 (20–09– Romero, Mayor, City of ment Services, Public advanceSearch. 2061P). Tucson, 255 West Ala- Works Building, 201 meda Street, Tucson, North Stone Avenue, AZ 85701. Tucson, AZ 85701. Pima ...... Town of Marana, The Honorable Ed Honea, Engineering Department, https://msc.fema.gov/portal/ Apr. 5, 2021 ...... 040118 (20–09– Mayor, Town of Marana Municipal Com- advanceSearch. 0784P). Marana, 11555 West plex, 11555 West Civic Civic Center Drive, Center Drive, Marana, Marana, AZ 85653. AZ 85653. California: Nevada ...... Town of Truckee, The Honorable David Eric W. Rood Administra- https://msc.fema.gov/portal/ Mar. 22, 2021 .... 060762 (20–09– Polivy, Mayor, Town of tive Center, 950 Maidu advanceSearch. 0383P). Truckee, 10183 Truck- Avenue, Nevada City, ee Airport Road, Truck- CA 95959. ee, CA 96161. Orange ...... City of Orange, The Honorable Mark A. City Hall, 300 East Chap- https://msc.fema.gov/portal/ Mar. 12, 2021 .... 060228 (21–09– Murphy, Mayor, City of man Avenue, Orange, advanceSearch. 0083X). Orange, 300 East CA 92866. Chapman Avenue, Or- ange, CA 92866. Orange ...... City of Villa Park, The Honorable Robert City Hall, 17855 Santiago https://msc.fema.gov/portal/ Mar. 12, 2021 .... 060236 (21–09– Pitts, Mayor, City of Boulevard, Villa Park, advanceSearch. 0083X). Villa Park, 17855 CA 92861. Santiago Boulevard, Villa Park, CA 92861. Orange ...... Unincorporated The Honorable Michelle Orange County Flood https://msc.fema.gov/portal/ Mar. 12, 2021 .... 060212 Areas of Or- Steel, Chair, Board of Control Division, H.G. advanceSearch. ange County, Supervisors, Orange Osborne Building, 300 (21–09– County, 333 West North Flower Street 7th 0083X). Santa Ana Boulevard, Floor, Santa Ana, CA Santa Ana, CA 92701. 92703. Riverside ...... City of Eastvale, The Honorable Brandon City Hall, Public Works https://msc.fema.gov/portal/ Apr. 5, 2021 ...... 060155 (18–09– Plott, Mayor, City of Department, 12363 Li- advanceSearch. 2446P). Eastvale, 12363 Limo- monite Avenue Suite nite Avenue Suite 910, 910, Eastvale, CA Eastvale, CA 91752. 91752. Riverside ...... City of Jurupa The Honorable Anthony City Hall, 8930 Limonite https://msc.fema.gov/portal/ Apr. 5, 2021 ...... 060286 Valley, (18– Kelly, Jr., Mayor, City of Avenue, Jurupa, CA advanceSearch. 09–2446P). Jurupa Valley, 8930 Li- 92509. monite Avenue, Jurupa Valley, CA 92509. Riverside ...... City of Norco The Honorable Berwin City Hall, 2870 Clark Ave- https://msc.fema.gov/portal/ Apr. 5, 2021 ...... 060256 (18–09– Hanna, Mayor, City of nue, Norco, CA 92860. advanceSearch. 2446P). Norco, 2870 Clark Ave- nue, Norco, CA 92860. Riverside ...... Unincorporated The Honorable V. Manuel Riverside County, Flood https://msc.fema.gov/portal/ Apr. 5, 2021 ...... 060245 Areas of River- Perez, Chairman, Board Control and Water Con- advanceSearch. side County, of Supervisors, River- servation District, 1995 (18–09– side County, 4080 Market Street, River- 2446P). Lemon Street, 5th side, CA 92501. Floor, Riverside, CA 92501. Colorado: Weld ...... Town of Milliken, The Honorable Elizabeth Town Hall, 1101 Broad https://msc.fema.gov/portal/ Feb.1, 2021 ...... 080187 (19–08– Austin, Mayor, Town of Street, Milliken, CO advanceSearch. 1058P). Milliken, 1101 Broad 80543. Street, Milliken, CO 80543. Weld ...... Unincorporated Mr. Mike Freeman, Com- Weld County Commis- https://msc.fema.gov/portal/ Feb. 1, 2021 ...... 080266 Areas of Weld missioners Chair, Weld sioner’s Office, 915 advanceSearch. County, (19– County, 1150 O Street, 10th Street, Greeley, 08–1058P). Greeley, CO 80632. CO 80632. Hawaii: Hawaii Hawaii County, The Honorable Harry Kim, Hawaii County Depart- https://msc.fema.gov/portal/ Mar. 19, 2021 .... 155166 (20–09– Mayor, County of Ha- ment of Public Works, advanceSearch. 1839P). waii, 25 Aupuni Street, Engineering Division, Hilo, HI 76720. 101 Pauahi Street, Suite 7, Hilo, HI 96720. Illinois: Cook ...... City of Prospect The Honorable Nicholas City Hall, 8 North Elm- https://msc.fema.gov/portal/ Mar. 4, 2021 ...... 170919 Heights, (19– J. Helmer, Mayor, City hurst Road, Prospect advanceSearch. 05–1451P). of Prospect Heights, 8 Heights, IL 60070. North Elmhurst Road, Prospect Heights, IL 60070. Cook ...... Unincorporated The Honorable Toni Cook County Building and https://msc.fema.gov/portal/ Mar. 4, 2021 ...... 170054 Areas of Cook Preckwinkle, County Zoning Department, 69 advanceSearch. County, (19– Board President, Cook West Washington, Suite 05–1451P). County, 118 North 2830, Chicago, IL Clark Street, Room 60602. 537, Chicago, IL 60602.
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Location and Chief executive Community map Online location of Date of Community State and county case No. officer of community repository letter of map revision modification No.
Cook ...... Village of Wheel- The Honorable Patrick Village Hall, Community https://msc.fema.gov/portal/ Mar. 4, 2021 ...... 170173 ing, (19–05– Horcher, Village Presi- Development Engineer- advanceSearch. 1451P). dent, Village of Wheel- ing Division, 2 Commu- ing, 2 Community Bou- nity Boulevard, Wheel- levard, Wheeling, IL ing, IL 60090. 60090. DuPage ...... Village of The Honorable Ronald J. Village Hall, 31 West https://msc.fema.gov/portal/ Mar. 19, 2021 .... 170220 Westmont, Gunter, Mayor, Village Quincy Street, advanceSearch. (20–05– of Westmont, 31 West Westmont, IL 60559. 3289P). Quincy Street, Westmont, IL 60559. Kane ...... Unincorporated The Honorable Chris- Kane County Government https://msc.fema.gov/portal/ Feb. 19, 2021 .... 170896 Areas of Kane topher Lauzen, Chair- Center, Building A, advanceSearch. County, (20– man, Kane County Water Resources De- 05–2475P). Board, Kane County partment, 719 South Government Center, Batavia Avenue, Gene- Building A, 719 South va, IL 60134. Batavia Avenue, Gene- va, IL 60134. Kane ...... Village of The Honorable John Village Hall, 1200 L.W. https://msc.fema.gov/portal/ Feb. 19, 2021 .... 170322 Carpentersville Skillman, Village Presi- Besinger Drive, advanceSearch. (20–05– dent, Village of Carpentersville, IL 2475P). Carpentersville, 1200 60110. L.W. Besinger Drive, Carpentersville, IL 60110. Kane ...... Village of The Honorable John Village Hall, 1200 L.W. https://msc.fema.gov/portal/ Feb. 25, 2021 .... 170322 Carpentersville Skillman, Village Presi- Besinger Drive, advanceSearch. (20–05– dent, Village of Carpentersville, IL 2659P). Carpentersville, 1200 60110. L.W. Besinger Drive, Carpentersville, IL 60110. Will ...... Unincorporated Ms. Denise E. Winfrey, Land Use Department, 58 https://msc.fema.gov/portal/ Apr. 9, 2021 ...... 170695 Areas of Will County Executive, Will East Clinton Street, advanceSearch. County, (20– County, Will County Of- Suite 100, Joliet, IL 05–3060P). fice Building, 302 North 60432. Chicago Street, Joliet, IL 60432. Will ...... Village of Monee, The Honorable James F. Village Hall, 5130 West https://msc.fema.gov/portal/ Feb. 18, 2021 .... 171029 (20–05– Popp, Mayor, Village of Court Street, Monee, IL advanceSearch. 3030P). Monee, 5130 West 60449. Court Street, Monee, IL 60449. Will ...... Village of The Honorable John D. Village Hall, 1050 West https://msc.fema.gov/portal/ Apr. 9, 2021 ...... 170711 Romeoville, Noak, Mayor, Village of Romeo Road, advanceSearch. (20–05– Romeoville, 1050 West Romeoville, IL 60446. 3060P). Romeo Road, Romeoville, IL 60446. Minnesota: Norman ...... City of Halstad The Honorable Lori Administrative Building, https://msc.fema.gov/portal/ Mar. 10, 2021 .... 270324 (20–05– Delong, Mayor, City of 405 2nd Avenue West, advanceSearch. 2194P). Halstad, 405 2nd Ave- Halstad, MN 56548. nue West, Halstad, MN 56548. Norman ...... City of Hendrum, The Honorable Curt Administrative Building, https://msc.fema.gov/portal/ Mar. 10, 2021 .... 270325 (20–05– Johannsen, Mayor, City 308 Main Street East, advanceSearch. 2263P). of Hendrum, P.O. Box Hendrum, MN 56550. 100, Hendrum, MN 56550. Norman ...... Unincorporated Ms. Lee Ann Hall, Chair, Norman County Court https://msc.fema.gov/portal/ Mar. 10, 2021 .... 270322 Areas of Nor- Norman County Board House, 16 3rd Avenue advanceSearch. man County, of Commissioners, 315 East, Ada, MN 56510. (20–05– West Main Street, Ada, 2194P). MN 56510. Norman ...... Unincorporated Ms. Lee Ann Hall, Chair, Norman County Court https://msc.fema.gov/portal/ Mar. 10, 2021 .... 270322 Areas of Nor- Norman County Board House, 16 3rd Avenue advanceSearch. man County, of Commissioners, 315 East, Ada, MN 56510. (20–05– West Main Street, Ada, 2263P). MN 56510. North Dakota: Traill ...... Township of Elm Mr. Todd Harrington, Su- County Courthouse, 114 https://msc.fema.gov/portal/ Mar. 10, 2021 .... 380636 River, (20–05– pervisor, Township of West Caledonia, Hills- advanceSearch. 2263P). Elm River, 948 173rd boro, ND 58045. Avenue, Grandin, ND 58038. Traill ...... Township of Mr. Steven Reinpold, County Courthouse, 114 https://msc.fema.gov/portal/ Mar. 10, 2021 .... 380621 Herberg, (20– Chairman, Township of West Caledonia, Hills- advanceSearch. 05–2194P). Herberg, 221 169th Av- boro, ND 58045. enue, Hillsboro, ND 58045. Ohio:
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Location and Chief executive Community map Online location of Date of Community State and county case No. officer of community repository letter of map revision modification No.
Lucas ...... City of Toledo, The Honorable Wade Department of Inspection, https://msc.fema.gov/portal/ Mar. 31, 2021 .... 395373 (20–05– Kapszukiewicz, Mayor, One Government Cen- advanceSearch. 2610P). City of Toledo, One ter, Suite 1600, Toledo, Government Center OH 43604. Suite 2200, Toledo, OH 43604. Fairfield ...... Unincorporated Mr. Dave L. Levacy, Com- Fairfield County Regional https://msc.fema.gov/portal/ Mar. 4, 2021 ...... 390158 Areas of Fair- missioner, Fairfield Planning Commission, advanceSearch. field County, County, 210 East Main 210 East Main Street, (20–05– Street, Room 301, Lan- Room 104, Lancaster, 3622P). caster, OH 43130. OH 43130. Franklin ...... City of Dublin, The Honorable Chris Engineering Building, https://msc.fema.gov/portal/ Feb. 24, 2021 .... 390673 (20–05– Amorose Groomes, 5800 Shier-Rings Road, advanceSearch. 2455P). Mayor, City of Dublin, Dublin, OH 43017. City Hall, 5200 Emerald Parkway, Dublin, OH 43017. Franklin ...... City of Grove The Honorable Richard L. City Hall, 4035 Broadway, https://msc.fema.gov/portal/ Feb. 19, 2021 .... 390173 City, (20–05– ‘‘Ike’’ Stage, Mayor, Grove City, OH 43123. advanceSearch. 3170P). City of Grove City, 4035 Broadway, Grove City, OH 43123. Richland ...... Unincorporated Mr. Anthony Vero, County Richland County Director https://msc.fema.gov/portal/ Mar. 23, 2021 .... 390476 Areas of Rich- Executive, Richland of Building Regulations, advanceSearch. land County, County, 50 Park Ave- 1495 West Longview (20–05– nue East, Mansfield, Avenue, Suite 202A, 1712P). OH 44902. Mansfield, OH 44906. Richland ...... Village of The Honorable Teri L. Zoning Inspector, 142 https://msc.fema.gov/portal/ Mar. 23, 2021 .... 390604 Bellville, (20– Brenkus, Mayor, Village Park Place, Bellville, advanceSearch. 05–1712P). of Bellville, 142 Park OH 44813. Place, Bellville, OH 44813. Texas: Tarrant ...... City of Fort The Honorable Betsy Department of Transpor- https://msc.fema.gov/portal/ Mar. 19, 2021 .... 480596 Worth, (20– Price, Mayor, City of tation and Public advanceSearch. 06–0541P). Fort Worth, 200 Texas Works, 200 Texas Street, Fort Worth, TX Street, Fort Worth, TX 76102. 76102. Wisconsin: Manitowoc ...... City of The Honorable Justin M. City Hall, 900 Quay https://msc.fema.gov/portal/ Mar. 11, 2021 .... 550240 Manitowoc, Nickels, Mayor, City of Street, Manitowoc, WI advanceSearch. (20–05– Manitowoc, 900 Quay 54220. 4694P). Street, Manitowoc, WI 54220. Manitowoc ...... Unincorporated The Honorable Jim Brey, Manitowoc County Court- https://msc.fema.gov/portal/ Mar. 11, 2021 .... 550236 Areas of Chair, Board of Super- house, 1010 South 8th advanceSearch. Manitowoc, visors, Manitowoc Street, Manitowoc, WI (20–05– County Courthouse, 54220. 4694P). 1010 South 8th Street, Manitowoc, WI 54220.
[FR Doc. 2021–00397 Filed 1–11–21; 8:45 am] referred to as flood hazard FOR FURTHER INFORMATION CONTACT: Rick BILLING CODE 9110–12–P determinations) as shown on the Sacbibit, Chief, Engineering Services indicated Letter of Map Revision Branch, Federal Insurance and (LOMR) for each of the communities Mitigation Administration, FEMA, 400 DEPARTMENT OF HOMELAND listed in the table below are finalized. C Street SW, Washington, DC 20472, SECURITY Each LOMR revises the Flood Insurance (202) 646–7659, or (email) Rate Maps (FIRMs), and in some cases Federal Emergency Management [email protected]; or visit the Flood Insurance Study (FIS) reports, Agency the FEMA Mapping and Insurance currently in effect for the listed eXchange (FMIX) online at https:// [Docket ID FEMA–2021–0002] communities. The flood hazard www.floodmaps.fema.gov/fhm/fmx_ determinations modified by each LOMR main.html. Changes in Flood Hazard will be used to calculate flood insurance Determinations premium rates for new buildings and SUPPLEMENTARY INFORMATION: The AGENCY: Federal Emergency their contents. Federal Emergency Management Agency (FEMA) makes the final flood hazard Management Agency, DHS. DATES: Each LOMR was finalized as in determinations as shown in the LOMRs ACTION: Notice. the table below. for each community listed in the table SUMMARY: New or modified Base (1- ADDRESSES: Each LOMR is available for below. Notice of these modified flood percent annual chance) Flood inspection at both the respective hazard determinations has been Elevations (BFEs), base flood depths, Community Map Repository address published in newspapers of local Special Flood Hazard Area (SFHA) listed in the table below and online circulation and 90 days have elapsed boundaries or zone designations, and/or through the FEMA Map Service Center since that publication. The Deputy regulatory floodways (hereinafter at https://msc.fema.gov. Associate Administrator for Insurance
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and Mitigation has resolved any appeals National Flood Insurance Program appropriate flood insurance premium resulting from this notification. (NFIP). rates for new buildings, and for the The modified flood hazard This new or modified flood hazard contents in those buildings. The determinations are made pursuant to information, together with the changes in flood hazard determinations section 206 of the Flood Disaster floodplain management criteria required are in accordance with 44 CFR 65.4. Protection Act of 1973, 42 U.S.C. 4105, by 44 CFR 60.3, are the minimum that Interested lessees and owners of real and are in accordance with the National are required. They should not be property are encouraged to review the Flood Insurance Act of 1968, 42 U.S.C. construed to mean that the community final flood hazard information available 4001 et seq., and with 44 CFR part 65. must change any existing ordinances at the address cited below for each For rating purposes, the currently that are more stringent in their community or online through the FEMA effective community number is shown floodplain management requirements. Map Service Center at https:// and must be used for all new policies and renewals. The community may at any time enact msc.fema.gov. The new or modified flood hazard stricter requirements of its own or (Catalog of Federal Domestic Assistance No. information is the basis for the pursuant to policies established by other 97.022, ‘‘Flood Insurance.’’) Federal, State, or regional entities. floodplain management measures that Michael M. Grimm, the community is required either to This new or modified flood hazard Assistant Administrator for Risk adopt or to show evidence of being determinations are used to meet the Management, Department of Homeland already in effect in order to remain floodplain management requirements of Security, Federal Emergency Management qualified for participation in the the NFIP and are used to calculate the Agency.
Location and case Chief executive Community State and county No. officer of community Community map repository Date of modification No.
Arizona: Yavapai Unincorporated Mr. Craig L. Brown, Chairman, Yavapai County Development Services Nov. 30, 2020 ...... 040093 (FEMA Docket areas of Yavapai Yavapai County Flood Con- Department, 1120 Commerce Drive, No.: B–2052). County (20–09– trol, District Board of Direc- Prescott, AZ 86305. 0368P). tors, 1015 Fair Street, Pres- cott, AZ 86305. Arkansas: Wash- City of Fayetteville The Honorable Lioneld Jordan, City Hall, 113 West Mountain Street, Fay- Dec. 7, 2020 ...... 050216 ington (FEMA (19–06–3968P). Mayor, City of Fayetteville, etteville, AR 72701. Docket No.: B– 113 West Mountain Street, 2054). Fayetteville, AR 72701. Colorado: Adams (FEMA City of Westminster The Honorable Herb Atchison, City Hall, 4880 West 92nd Avenue, West- Nov. 27, 2020 ...... 080008 Docket No.: (19–08–0665P). Mayor, City of Westminster, minster, CO 80031. B–2052). 4880 West 92nd Avenue, Westminster, CO 80031. Adams (FEMA Unincorporated The Honorable Emma Pinter, Adams County Development Services Nov. 27, 2020 ...... 080001 Docket No.: areas of Adams Chair, Adams County Board Department, Engineering Division, 4430 B–2052). County (19–08– of Commissioners, 4430 South Adams County Parkway, 1st 0665P). South Adams County Park- Floor, Suite W2000, Brighton, CO way, 5th Floor, Suite 80601. C5000A, Brighton, CO 80601. Jefferson City of Westminster The Honorable Herb Atchison, City Hall, 4800 West 92nd Avenue, West- Dec. 4, 2020 ...... 080008 (FEMA Dock- (20–08–0053P). Mayor, City of Westminster, minster, CO 80031. et No.: B– 4800 West 92nd Avenue, 2059). Westminster, CO 80031. Florida: Broward (FEMA City of Coral Springs Mr. Frank Babinec, Manager, City Hall, 9500 West Sample Road, Coral Nov. 30, 2020 ...... 120033 Docket No.: (20–04–1557P). City of Coral Springs, 9500 Springs, FL 33065. B–2054). West Sample Road, Coral Springs, FL 33065. Monroe (FEMA Unincorporated The Honorable Heather Car- Monroe County Building Department, Nov. 30, 2020 ...... 125129 Docket No.: areas of Monroe ruthers, Mayor, Monroe 2798 Overseas Highway, Suite 300, B–2054). County (20–04– County Board of Commis- Marathon, FL 33050. 1572P). sioners, 500 Whitehead Street, Suite 102, Key West, FL 33040. Monroe (FEMA Unincorporated The Honorable Heather Car- Monroe County Building Department, Nov. 30, 2020 ...... 125129 Docket No.: areas of Monroe ruthers, Mayor, Monroe 2798 Overseas Highway, Suite 300, B–2054). County (20–04– County Board of Commis- Marathon, FL 33050. 3363P). sioners, 500 Whitehead Street, Suite 102, Key West, FL 33040. Monroe (FEMA Unincorporated The Honorable Heather Car- Monroe County Building Department, Dec. 7, 2020 ...... 125129 Docket No.: areas of Monroe ruthers, Mayor, Monroe 2798 Overseas Highway, Suite 300, B–2054). County (20–04– County Board of Commis- Marathon, FL 33050. 3364P). sioners, 500 Whitehead Street, Suite 102, Key West, FL 33040. Pasco (FEMA Unincorporated The Honorable Mike Moore, Pasco County Administration Building, Nov. 27, 2020 ...... 120230 Docket No.: areas of Pasco Chairman, Pasco County 8731 Citizens Drive, New Port Richey, B–2052). County (20–04– Board of Commissioners, FL 34654. 0554P). 8731 Citizens Drive, New Port Richey, FL 34654.
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Location and case Chief executive Community State and county No. officer of community Community map repository Date of modification No.
Sarasota (FEMA Unincorporated The Honorable Michael A. Sarasota County Planning and Develop- Dec. 3, 2020 ...... 125144 Docket No.: areas of Sarasota Moran, Chairman, Sarasota ment Services Department, 1001 Sara- B–2054). County (20–04– County Board of Commis- sota Center Boulevard, Sarasota, 3149P). sioners, 1660 Ringling Bou- FL34240. levard, Sarasota, F4034236. Massachusetts: Nan- Town of Nantucket The Honorable Dawn E. Hill Planning and Land Use Services Depart- Nov. 27, 2020 ...... 250230 tucket (FEMA (20–01–0466P). Holdgate, Chair, Town of ment, 2 Fairgrounds Road, Nantucket, Docket No.: B– Nantucket Board of Select- MA 02554. 2052). men, 16 Broad Street, Nan- tucket, MA 02554. Mississippi: Panola Unincorporated The Honorable Cole Flint, Panola County Land Development Com- Dec. 3, 2020 ...... 280125 (FEMA Docket areas of Panola President, Panola County mission, 245 Eureka Street, Batesville, No.: B–2054). County (20–04– Board of Supervisors, 151 MS 38606. 1139P). Public Square, Batesville, MS 38606. North Carolina: Co- Town of Sandyfield The Honorable Garry Keaton, Town Hall, 1795 Woodyard Road, Dec. 7, 2020 ...... 370644 lumbus (FEMA (20–04–3325P). Mayor, Town of Sandyfield, Riegelwood, NC 28546. Docket No.: B– 1795 Woodyard Road, 2054). Riegelwood, NC 28546. Oklahoma: Tulsa City of Tulsa (20– The Honorable G.T. Bynum, Engineering Services Department, 2317 Nov. 30, 2020 ...... 405381 (FEMA Docket 06–0535P). Mayor, City of Tulsa, 175 South Jackson Avenue, Suite S–310, No.: B–2052). East 2nd Street, Tulsa, OK Tulsa, OK 74107. 74103. Texas: Dallas (FEMA City of Dallas (20– The Honorable Eric Johnson, Water Utilities Department, 312 East Jef- Dec. 7, 2020 ...... 480171 Docket No.: 06–1597P). Mayor, City of Dallas, 1500 ferson Boulevard, Room 307, Dallas, B–2054). Marilla Street, Suite 5EN, TX 75203. Dallas, TX 75201. Hood (FEMA Unincorporated The Honorable Ron, Massingill, Hood County Development and Compli- Dec. 3, 2020 ...... 480356 Docket No.: areas of Hood Hood County Judge, 100 ance Department, 1402 West Pearl B–2054). County (20–06– East Pearl Street, Granbury, Street, Suite 2, Granbury, TX 76048. 2645P). TX 76048. Utah: Cache (FEMA City of Hyrum (20– The Honorable Stephanie Mil- City Hall, 60 West Main Street, Hyrum, Dec. 2, 2020 ...... 490017 Docket No.: B– 08–0206P). ler, Mayor, City of Hyrum, 60 UT 84319. 2054). West Main Street, Hyrum, UT 84319. Virginia: Loudoun (FEMA Town of Purcellville The Honorable Kwasi Fraser, Planning and Zoning Department, 221 Dec. 7, 2020 ...... 510231 Docket No.: (20–03–0501P). Mayor, Town of Purcellville, South Nursery Avenue, Purcellville, VA B–2059). 221 South Nursery Avenue, 20132. Purcellville, VA 20132. Loudoun (FEMA Unincorporated Mr. Tim Hemstreet, Loudon Loudoun County Office of Mapping and Dec. 7, 2020 ...... 510090 Docket No.: areas of Loudoun County Administrator, P.O. Geographic Information, 1 Harrison B–2059). County (20–03– Box 7000, Leesburg, VA Street, Southeast, Leesburg, VA 20175. 0501P). 20177. Prince William Unincorporated Mr. Christopher E. Martino, Prince William County Department of Dec. 3, 2020 ...... 510119 (FEMA Dock- areas of Prince Prince William County Exec- Public Works, 5 County Complex Court, et No.: B– William County utive, 1 County Complex Prince William, VA 22192. 2052). (20–03–0070P). Court, Prince William, VA 22192. Wyoming: Teton Unincorporated The Honorable Natalia Macker, Teton County Public Works Department, Dec. 3, 2020 ...... 560094 (FEMA Docket areas of Teton Chair, Teton County Board of 320 South King Street, Jackson, WY No.: B–2054). County (19–08– Commissioners, P.O. Box 83001. 1023P). 3594, Jackson, WY 83001. Texas: Gillespie (FEMA City of Fredericks- The Honorable Gary City Hall, 126 West Main Street, Fred- Nov. 19, 2020 ...... 480252 Docket No.: burg (19–06– Neffendorf, Mayor, City of ericksburg, TX 78624. B–2054). 2756P). Fredericksburg, 126 West Main Street, Fredericksburg, TX 78624. Johnson (FEMA City of Burleson (19– The Honorable Ken Shetter, City Hall, 141 West Renfro Street, Nov. 23, 2020 ...... 485459 Docket No.: 06–3252P). Mayor, City of Burleson, 141 Burleson, TX 76028. B–2052). West Renfro Street, Burleson, TX 76028. Montgomery City of Conroe (19– The Honorable Toby Powell, City Hall, 300 West Davis Street, Conroe, Nov. 12, 2020 ...... 480484 (FEMA Dock- 06–2853P). Mayor, City of Conroe, P.O. TX 77301. et No.: B– Box 3066, Conroe, TX 2052). 77305. Tarrant (FEMA City of Colleyville The Honorable Richard New- City Hall, 100 Main Street, Colleyville, TX Nov. 12, 2020 ...... 480590 Docket No.: (20–06–1166P). ton, Mayor, City of 76034. B–2049). Colleyville, 100 Main Street, Colleyville, TX 76034. Tarrant (FEMA City of Mansfield Mr. Clayton Chandler, Man- Geographic Information Systems (GIS) Nov. 9, 2020 ...... 480606 Docket No.: (20–06–0705P). ager, City of Mansfield, 1200 Department, 1200 East Broad Street, B–2052). East Broad Street, Mansfield, Mansfield, TX 76063. TX 76063. Utah: Grand (FEMA Unincorporated The Honorable Mary McGann, Grand County Courthouse, 125 East Cen- Nov. 13, 2020 ...... 490232 Docket No.: B– areas of Grand Chair, Grand County Council, ter Street, Moab, UT 84532. 2052). County (20–08– 125 East Center Street, 0298P). Moab, UT 84532.
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Location and case Chief executive Community State and county No. officer of community Community map repository Date of modification No.
Virginia: Independent City of Fairfax (20– Mr. Robert A. Stalzer, Man- Public Works Department, 10455 Arm- Nov. 16, 2020 ...... 515524 City (FEMA Dock- 03–0228P). ager, City of Fairfax, 10455 strong Street, Fairfax, VA 22030. et No.: B–2052). Armstrong Street, Room 316, Fairfax, VA 22030.
[FR Doc. 2021–00396 Filed 1–11–21; 8:45 am] SUPPLEMENTARY INFORMATION: We, the circumstances. Under our RPI process, a BILLING CODE 9110–12–P U.S. Fish and Wildlife Service (Service), recovery plan will include the three announce the availability of a draft statutorily required elements for recovery plan for Jones cycladenia recovery plans—objective and (Cycladenia humilis var. Jonesii), a plant measurable criteria, site-specific DEPARTMENT OF THE INTERIOR listed as threatened under the management actions, and estimates of Fish and Wildlife Service Endangered Species Act of 1973, as time and cost—along with a concise amended (Act; 16 U.S.C. 1531 et seq.). introduction and our strategy for how [FWS–R6–ES–2020–N101; We are requesting review and comment we plan to achieve species recovery. FXES11130600000] from the public on this draft recovery The RPI recovery plan is supported by plan. a separate species biological report, Endangered and Threatened Wildlife which provides the scientific Background and Plants; Draft Recovery Plan for background information and threat Jones Cycladenia Restoring an endangered or assessment for Jones cycladenia, which threatened animal or plant to the point are key to the development of the AGENCY: Fish and Wildlife Service, where it is again a secure, self- recovery plan. The species biological Interior. sustaining member of its ecosystem is a report is an interim approach taken as ACTION: Notice of document availability primary goal of the Service’s we transition to using a species status for review and comment. endangered species program. Recovery assessment (SSA) framework as the means improving the status of a listed standard format to analyze species as we SUMMARY: We, the U.S. Fish and species to the point at which listing is make decisions under the Act, and Wildlife Service, announce the no longer necessary according to the includes similar analyses of the species’ availability of a draft recovery plan for criteria specified under section 4(a)(1) of viability in terms of its resiliency, Jones cycladenia (Cycladenia humilis the Act. The Act requires recovery plans redundancy, and representation. A var. Jonesii), a plant listed as threatened for listed species unless such a plan third, separate working document, under the Endangered Species Act. We would not promote the conservation of called the recovery implementation are requesting review and comment a particular species. To help guide strategy (RIS), steps down the more from the public on this draft plan. The recovery efforts, we prepare recovery general descriptions of actions in the draft recovery plan includes objective, plans to promote the conservation of the recovery plan to detail the specifics measurable criteria, and site-specific species. needed to implement the recovery plan, management actions as may be The purpose of a recovery plan is to which improves the flexibility of the necessary to remove it from the Federal provide a recommended framework for recovery plan. The RIS will be List of Endangered and Threatened the recovery of a species so that adaptable, with new information on Plants. protection of the Act is no longer actions incorporated, as needed, necessary. Pursuant to section 4(f) of the DATES: We must receive any comments without requiring a concurrent revision Act, a recovery plan must, to the on the draft recovery plan on or before to the recovery plan, unless changes to maximum extent possible, include: (1) March 15, 2021. the three statutory elements are A description of site-specific required. ADDRESSES: Document availability: management actions as may be On May 5, 1986, we listed Jones Copies of the draft recovery plan are necessary to achieve the plan’s goal for cycladenia as a threatened plant (51 FR available at http://www.fws.gov/ the conservation and survival of the 16526). We did not designate critical endangered/species/recovery- species; (2) objective, measurable habitat. Detailed information regarding plans.html. Alternatively, you may criteria which, when met, would the plant’s biology and life history can request a copy by U.S. mail from the support a determination under section be found in the species biological report Utah Ecological Services Field Office, 4(a)(1) of the Act that the species should for Jones cycladenia (Service 2020, 2369 Orton Circle, Suite 50, West Valley be removed from the List of Endangered entire). The species biological report is City, Utah 84119, telephone: 801–975– and Threatened Species; and (3) an in-depth but not exhaustive review of 3330. Persons who use a estimates of time and costs required to the taxon’s biology and threats, an telecommunications device for the deaf carry out those measures needed to evaluation of its biological status, and may call the Federal Relay Service at achieve the plan’s goal and to achieve an assessment of the resources and 800–877–8339. intermediate steps toward that goal. conditions needed to maintain long- Submitting comments: If you wish to We used our new recovery planning term viability. The species biological comment on the draft recovery plan, and implementation (RPI) process to report provides the scientific you may submit your comments in develop the draft recovery plan for Jones _ background and threats assessment for writing by email to yvette converse@ cycladenia. The RPI process helps our draft recovery plan. fws.gov, or by U.S. mail to the Field reduce the time needed to develop and Supervisor at the address above. implement recovery plans, increases the Peer Review FOR FURTHER INFORMATION CONTACT: relevancy of the recovery plan over In accordance with our policy, Yvette Converse, Field Supervisor, at longer timeframes, and adds flexibility ‘‘Notice of Interagency Cooperative the above U.S. mail address or so that the recovery plan can be more Policy for Peer Review in Endangered telephone: 801–975–3330. easily adjusted to new information and Species Act Activities,’’ which was
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published on July 1, 1994 (59 FR what is needed to recover Jones to occur at 60 sites, which we have 34270), and our August 22, 2016, cycladenia? How could they be grouped into 20 populations in Emery, Memorandum ‘‘Peer Review Process,’’ improved for clarity? Grand, Garfield, San Juan, and Kane we will seek the expert opinion of at • Are the draft recovery criteria both Counties of Utah and Mohave County, least three appropriate and independent objective and measurable given the Arizona. We further group these specialists regarding scientific data and information available for Jones populations into four recovery units interpretations contained in the species cycladenia now and into the future? (San Rafael Swell, Greater Circle Cliffs, biological report and the draft recovery Please provide suggestions. Moab, and Pipe Spring). plan. We will send copies of both • Understanding that specific, The primary threats to Jones documents to the peer reviewers detailed, and area-specific recovery cycladenia at the time of listing were immediately following publication of actions will be developed in the RIS, do oil, natural gas, and mineral this notice in the Federal Register. We the draft recovery actions presented in development. These remain the primary will ensure that the opinions of peer the draft recovery plan generally cover threats to the taxon. A large percentage reviewers are objective and unbiased by the types of actions necessary to meet of the total population occurs on lands following the guidelines set forth in the the recovery criteria? If not, what open to future energy and mineral Director’s Memo, which updates and general actions are missing? Are any of development. Without additional clarifies Service policy on peer review the draft recovery actions unnecessary protections, we anticipate an increase in (U.S. Fish and Wildlife Service 2016). for achieving recovery? Have we the magnitude of this threat affecting the The purpose of such review is to ensure prioritized the actions appropriately? taxon’s future resiliency, redundancy that our decisions are based on Public Availability of Comments and representation. Small populations, scientifically sound data, assumptions, lack of pollinators, and sexual and analysis. Accordingly, our final We will summarize and respond to reproduction limitations may exacerbate species biological report and recovery the issues raised by the public in an the threat. plan may differ from the draft appendix to the approved final recovery Conservation partners conducted documents. plan. Before including your address, additional surveys after Jones phone number, email address, or other cycladenia was listed. This resulted in Request for Public Comments personal identifying information in your the discovery of 16 additional This notice opens the public review comment, you should be aware that populations. Consequently, Jones and comment period for our draft your entire comment—including your cycladenia is now known from more recovery plan for Jones cycladenia. personal identifying information—may sites and has a larger range than we Section 4(f) of the Act requires that we be made publicly available at any time. estimated at the time of listing. The total notify the public and provide an You may request at the top of your population was estimated to be 7,500 opportunity for public review and comment that we withhold this stems when the taxon was listed; the comment during the development of information from public review; most recent estimate is 79,196 stems recovery plans. We will consider all however, we cannot guarantee that we (Service 2020, pp. 14–18). information we receive during a public will be able to do so. The recovery units have not yet met comment period when preparing the Species Information the proposed delisting criteria in this recovery plan for approval, and draft recovery plan. Therefore, we particularly look for comments that Jones cycladenia is a long-lived anticipate that recovery will take a provide scientific rationale or factual herbaceous perennial plant in the minimum of 10 years––recovery criteria background. The Service and other dogbane family. It is one of three include a requirement for stable to Federal agencies and partners will take varieties within the Sacramento waxy increasing populations in each of the these comments into consideration in dogbane (Cycladenia humilis Benth.) four recovery units over a 10-year the course of implementing an approved species. The other two varieties occur in period. We have estimated recovery final recovery plan. California (Cycladenia humilis var. costs for a 15-year period for added All comments we receive by the date humilis and var. venusta) (Burge et al. flexibility during implementation of the specified (see DATES) will be considered 2016, p. 28). Jones cycladenia is recovery plan, when finalized. prior to approval of the recovery plan. endemic to the Colorado Plateau in Utah Written comments and materials and Arizona. It occurs between 4,000 to Recovery Strategy regarding the recovery plan should be 6,660 feet (ft) (1,220 to 2,030 meters (m)) Below, we summarize components sent via the means in the ADDRESSES in elevation and typically grows on from our draft recovery plan. Please section. steep slopes in soils that are easily reference the draft recovery plan for full We are specifically seeking comments degraded, highly erodible, and difficult details (see ADDRESSES above). and suggestions on the following to rehabilitate after disturbances. It is The draft recovery plan describes the questions: found in sparsely vegetated plant recovery goal as the conservation and • Understanding that the time and communities of mixed desert scrub with survival of Jones cycladenia. For cost presented in the draft recovery plan less than five percent vegetative cover recovery, the taxon needs at least four will be fine-tuned when localized (JGMS 2012, pp. 21–24; JGMS 2014, (redundant) and persistent (resilient) recovery implementation strategies are Appendix; Sipes et al. 1994, p. 16; recovery units across the taxon’s range, developed, are the estimated time and Spence and Palmquist 2007, p. 5). Jones where recruitment over time equals or cost to recovery realistic? Is the estimate cycladenia reproduces by seeds exceeds loss of individuals and reflective of the time and cost of actions (sexually) and by clonal growth ecological and genetic diversity are that may have already been (asexually). maintained (representation). These implemented by Federal, State, county, We do not know the historical conditions provide sufficient or other agencies? Please provide distribution of Jones cycladenia. At the representation and redundancy across suggestions or methods for determining time of listing in 1986, it was known the taxon’s range. a more accurate estimation. from four populations in Emery, Grand, Recovery criteria in the draft plan • Do the draft recovery criteria and Garfield counties, Utah (51 FR include: (1) Maintaining stable or provide clear direction to partners on 16526, May 5, 1986). It is now known increasing population growth rates and
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evidence of viable seed production over ACTION: Notice of initiation of reviews; additional information about 5-year a consecutive 10-year period for each of request for information. status reviews, go to http:// the 4 recovery units; (2) maintaining a www.fws.gov/endangered/what-we-do/ SUMMARY: We, the U.S. Fish and range-wide total population of at least recovery-overview.html, scroll down to Wildlife Service, are initiating 5-year 3,500 individuals (approximately 77,700 ‘‘Learn More about 5-Year Status status reviews of 7 species under the stems (ramets) for at least 5 consecutive Reviews,’’ and click on our factsheet. years; (3) each of the four recovery units Endangered Species Act of 1973, as have regulatory mechanisms or amended. A 5-year status review is What information do we consider in conservation plans in place that address based on the best scientific and our review? habitat loss and degradation from commercial data available at the time of energy and mineral development, thus the review; therefore, we are requesting A 5-year status review considers all helping meet population trend and submission of any new information on new information available at the time of abundance targets identified in the first these species that has become available the review. In conducting these reviews, two criteria; and (4) each of the four since the last review of the species. we consider the best scientific and recovery units are represented in an off- DATES: To ensure consideration in our commercial data that have become site seed or tissue collection to preserve reviews, we are requesting submission available since the listing determination the genetic diversity of Jones cycladenia of new information no later than March or most recent status review, such as: and provide added protection from 15, 2021. However, we will continue to (A) Species biology, including but not potential stochastic events. Collections accept new information about any listed limited to population trends, species at any time. should represent at least 75 percent of distribution, abundance, demographics, the genetic diversity, as measured by the FOR FURTHER INFORMATION CONTACT: For and genetics; number of unique alleles, represented in general information, contact Craig each recovery unit. To help meet these Hansen, Regional Recovery Coordinator, (B) Habitat conditions, including but criteria, the draft recovery plan by phone at 303–236–4748 or by email not limited to amount, distribution, and identifies recovery actions for each at [email protected]. Individuals suitability; criteria. who are hearing impaired or speech (C) Conservation measures that have impaired may call the Federal Relay Authority been implemented that benefit the Service at 800–877–8339 for TTY species; The authority for this action is section assistance. For information on a (D) Threat status and trends in 4(f) of the Endangered Species Act, 16 particular species, contact the U.S.C. 1533(f). appropriate person or office listed in the relation to the five listing factors (as table in the SUPPLEMENTARY INFORMATION defined in section 4(a)(1) of the Act); Noreen Walsh, section. and Regional Director, Lakewood, Colorado. SUPPLEMENTARY INFORMATION: (E) Other new information, data, or [FR Doc. 2021–00375 Filed 1–11–21; 8:45 am] corrections, including but not limited to BILLING CODE 4333–15–P Why do we conduct 5-year status taxonomic or nomenclatural changes, reviews? identification of erroneous information Under the Act (16 U.S.C. 1531 et seq.), DEPARTMENT OF THE INTERIOR contained in the List, and improved we maintain Lists of Endangered and analytical methods. Threatened Wildlife and Plants (which Fish and Wildlife Service Any new information will be we collectively refer to as the List) in considered during the 5-year status [FWS–R6–ES–2020–N113; the Code of Federal Regulations (CFR) at FXES11130600000–201–FF06E00000] 50 CFR 17.11 (for animals) and 17.12 review and will also be useful in (for plants). Section 4(c)(2)(A) of the Act evaluating the ongoing recovery Endangered and Threatened Wildlife programs for the species. and Plants; Initiation of 5-Year Status requires us to review each listed Reviews of 7 Species in the Mountain- species’ status at least once every 5 Which species are under review? Prairie Region years. Our regulations at 50 CFR 424.21 require that we publish a notice in the This notice announces our active AGENCY: Fish and Wildlife Service, Federal Register announcing those review of the seven species listed in the Interior. species under active review. For table below.
Final listing rule Historical (Federal Register Contact person, phone, Contact person’s U.S. mail Common name Scientific name Listing status range citation and email address publication date)
Barneby reed-mustard Schoenocrambe Endangered ... Utah ...... 57 FR 1398; 1/14/ Yvette Converse, Project Ecological Services, Utah barnebyi. 1992. Leader, 801–975–3330; Field Office, 2369 W yvette_converse@ Orton Circle, #50, West fws.gov. Valley City, UT 84119. Barneby ridge-cress .... Lepidium Endangered ... Utah ...... 55 FR 39860; 9/28/ Yvette Converse (informa- barnebyanum. 1990. tion above). Dwarf bear-poppy ...... Arctomecon humilis ... Endangered ... Utah ...... 44 FR 64250; 11/6/ Yvette Converse (informa- 1979. tion above). Welsh’s milkweed ...... Asclepias welshii ...... Threatened .... Utah, Arizona 52 FR 41435; 10/28/ Yvette Converse (informa- 1987. tion above). Colorado hookless cac- Sclerocactus glaucus Threatened .... Colorado ...... 44 FR 58868; 10/11/ Ann Timberman, Colorado Ecological Services, West- tus. 1979. Field Office, 970–628– ern Colorado Field Of- 7181; ann_timberman@ fice, 445 W Gunnison fws.gov. Ave., #240, Grand Junc- tion, CO 81501–5711. DeBeque phacelia ...... Phacelia submutica ... Threatened .... Colorado ...... 76 FR 45054; 7/27/ Ann Timberman (informa- 2011. tion above).
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Final listing rule Historical (Federal Register Contact person, phone, Contact person’s U.S. mail Common name Scientific name Listing status range citation and email address publication date)
Kendall warm springs Rhinichthys osculus Endangered ... Wyoming ...... 35 FR 16047; 10/13/ Tyler Abbott, Project Lead- Ecological Services, Wyo- dace. thermalis. 1970. er, 307–757–3707; ming Field Office, 334 [email protected]. Parsley Boulevard Cheyenne, WY 82007.
Request for New Information that include citations to, and analyses of your comments to the Service To ensure that a 5-year status review of, the applicable laws and regulations. Information Collection Clearance Officer, U.S. Fish and Wildlife Service, is complete and based on the best Completed and Active Reviews available scientific and commercial MS: PRB/PERMA (JAO/3W), 5275 A list of all completed and currently information, we request new Leesburg Pike, Falls Church, VA 22041– active 5-year status reviews addressing _ information from all sources. See What 3803 (mail); or by email to Info Coll@ species for which the Mountain-Prairie Information Do We Consider in Our fws.gov. Please reference OMB Control Region of the U.S. Fish and Wildlife Review? for specific criteria. If you Number 1018–0127 in the subject line of Service has lead responsibility is submit information, please support it your comments. available at http://www.fws.gov/ with documentation such as maps, FOR FURTHER INFORMATION CONTACT: endangered/. bibliographic references, methods used Madonna L. Baucum, Service to gather and analyze the data, and/or Authority Information Collection Clearance _ copies of any pertinent publications, This document is published under the Officer, by email at Info [email protected], reports, or letters by knowledgeable authority of the Endangered Species Act or by telephone at (703) 358–2503. sources. of 1973, as amended (16 U.S.C. 1531 et Individuals who are hearing or speech seq.). impaired may call the Federal Relay How do I ask questions or provide Service at 1–800–877–8339 for TTY information? Noreen Walsh, assistance. If you wish to provide information for Regional Director, Mountain-Prairie Region. SUPPLEMENTARY INFORMATION: In any species listed above, please submit [FR Doc. 2021–00416 Filed 1–11–21; 8:45 am] accordance with the Paperwork your comments and materials to the BILLING CODE 4333–15–P Reduction Act of 1995 (PRA, 44 U.S.C. appropriate contact in the table above. 3501 et seq.) and 5 CFR 1320.8(d)(1), we Put your comment to the attention of provide the general public and other FWS–R6–ES–2020–N113. You may also DEPARTMENT OF THE INTERIOR Federal agencies with an opportunity to direct questions to those contacts. comment on new, proposed, revised, Individuals who are hearing impaired or Fish and Wildlife Service and continuing collections of speech impaired may call the Federal [FWS–R5–FAC–2020–N159; FF05F24400– information. This helps us assess the Relay Service at 800–877–8339 for TTY 201–FXFR13350500000; OMB Control impact of our information collection assistance. Number 1018–0127] requirements and minimize the public’s Public Availability of Submissions Agency Information Collection reporting burden. It also helps the Before including your address, phone Activities; Submission to the Office of public understand our information number, email address, or other Management and Budget for Review collection requirements and provide the personal identifying information in your and Approval; Horseshoe Crab and requested data in the desired format. comment, you should be aware that Cooperative Fish Tagging Programs On August 3, 2020, we published in your entire comment—including your the Federal Register (85 FR 46694) a AGENCY: personal identifying information—may Fish and Wildlife Service, notice of our intent to request that OMB be made publicly available at any time. Interior. approve this information collection. In While you can ask us in your comment ACTION: Notice of information collection; that notice, we solicited comments for to withhold your personal identifying request for comment. 60 days, ending on October 2, 2020. We information from public review, we received one comment in response to SUMMARY: In accordance with the that notice, but it did not address the cannot guarantee that we will be able to Paperwork Reduction Act of 1995, we, do so. information collection requirements. No the U.S. Fish and Wildlife Service, are response to that comment is required. Contents of Submissions proposing to renew an information As part of our continuing effort to collection. Please make your comments as reduce paperwork and respondent specific as possible. Please confine your DATES: Interested persons are invited to burdens, we invite the public and other comments to issues for which we seek submit comments on or before February Federal agencies to comment on new, comments in this notice, and explain 11, 2021. proposed, revised, and continuing the basis for your comments. Include ADDRESSES: Written comments and collections of information. This helps us sufficient information with your recommendations for the proposed assess the impact of our information comments to allow us to authenticate information collection should be sent collection requirements and minimize any scientific or commercial data you within 30 days of publication of this the public’s reporting burden. It also include. notice to www.reginfo.gov/public/do/ helps the public understand our The comments and recommendations PRAMain. Find this particular information collection requirements and that will be most useful and likely to be information collection by selecting provide the requested data in the relevant to agency decisions are: (1) ‘‘Currently under Review—Open for desired format. Those supported by quantitative Public Comments’’ or by using the We are especially interested in public information or studies; and (2) Those search function. Please provide a copy comment addressing the following:
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(1) Whether or not the collection of threatened under the Endangered public reporting a tag will be asked a information is necessary for the proper Species Act (79 FR 73706; December 11, series of questions pertaining to the fish performance of the functions of the 2014). that they are referencing. The Service agency, including whether or not the In 1998, the Atlantic States Marine uses the following four forms to collect information will have practical utility; Fisheries Commission (ASMFC), a information used by fisheries managers (2) The accuracy of our estimate of the management organization with throughout the Atlantic Coast (Interior burden for this collection of representatives from each State on the regions 1 and 2), depending on species: information, including the validity of Atlantic coast, developed a horseshoe • Form 3–2493, ‘‘American Shad the methodology and assumptions used; crab management plan. The ASMFC Recapture Report’’; (3) Ways to enhance the quality, plan and its subsequent addenda • Form 3–2494, ‘‘Snakehead utility, and clarity of the information to established mandatory State-by-State Recapture Report’’; • be collected; and harvest quotas, and created the 1,500- Form 3–2495, ‘‘Striped Bass (4) How might the agency minimize Recapture Report’’; and square-mile Carl N. Shuster, Jr., • the burden of the collection of Horseshoe Crab Sanctuary off the mouth Form 3–2496, ‘‘Sturgeon Recapture information on those who are to of Delaware Bay. Report.’’ respond, including through the use of Restrictive measures have been taken American shad are tagged by the New appropriate automated, electronic, in recent years, but populations are York Department of Environmental mechanical, or other technological increasing slowly. Because horseshoe Conservation (NYDEC), which retains collection techniques or other forms of crabs do not breed until they are 9 years all fish tagging information. The public reports tags to MDFWCO, who provides information technology, e.g., permitting or older, it may take some time before information on tag returns to NYDEC. electronic submission of response. the population measurably increases. Tag return data are used to monitor Comments that you submit in Federal and State agencies, universities, migration and abundance of shad along response to this notice are a matter of and biomedical companies participate the Atlantic coast. public record. We will include or in a Horseshoe Crab Cooperative summarize each comment in our request Northern snakehead is an invasive Tagging Program. The Service’s species found in many watersheds to OMB to approve this ICR. Before MDFWCO maintains the information including your address, phone number, throughout the mid-Atlantic region. It collected under this program and uses it email address, or other personal has been firmly established in the to evaluate migratory patterns, survival, identifying information in your Potomac River since at least 2004. and abundance of horseshoe crabs. Federal and State biologists within the comment, you should be aware that Agencies that tag and release the crabs your entire comment—including your Potomac River watershed have been complete FWS Form 3–2311 (Horseshoe personal identifying information—may tasked with managing the impacts of Crab Tagging) and provide the Service be made publicly available at any time. northern snakehead. Tagging of with: northern snakehead is used to learn While you can ask us in your comment • Organization name; to withhold your personal identifying • Contact person name; more about the species so that control information from public review, we • Tag number; efforts can be better informed. Tagging cannot guarantee that we will be able to • Sex of crab; is also used to estimate population sizes do so. • Prosomal width; and to monitor trends in abundance. Abstract: The Maryland Fish and • Capture site, latitude, longitude, Recreational and commercial fishers Wildlife Conservation Office waterbody, State, and date. reporting tags provide information on (MDFWCO) will collect information on Members of the public who recover catch rates and migration patterns as crabs and fishes captured by the public. tagged crabs provide the following well. Tag information provided by the public information using FWS Form 3–2310 Striped bass are cooperatively will be used to estimate recreational and (Horseshoe Crab Recapture Report): managed by Federal and State agencies commercial harvest rates, estimate • Tag number; through the Atlantic States Marine natural mortality rates, and evaluate • Whether or not tag was removed; Fisheries Commission (ASMFC). The migratory patterns, length and age • Condition of crab; ASMFC uses fish tag return data to frequencies, and effectiveness of current • Date captured/found; conduct stock assessments for striped regulations. • Crab fate; bass. The database and collection are Horseshoe crabs play a vital role • Finder type; housed within MDFWCO, while the commercially, biomedically, and • Capture method; tagging is conducted by State agencies ecologically along the Atlantic coast. • Capture location; participating in striped bass Horseshoe crabs are commercially • Reporter information; and management. Without this data harvested and used as bait in eel and • Comments. collection, striped bass management conch fisheries. Biomedical companies At the request of the public would likely suffer from a lack of along the coast also collect and bleed participant reporting the tagged crab, we quality data. As required by Congress horseshoe crabs at their facilities. send data pertaining to the tagging under the Atlantic Striped Bass Limulus amebocyte lysate, derived from program and tag and release information Conservation Act (16 U.S.C. 5151– horseshoe crab blood, is used by on the horseshoe crab tag that was 5158), striped bass tagging data is used pharmaceutical companies to test found. to manage the coast-wide stock. sterility of products. Finally, migratory Fish will be tagged with an external Sturgeon are tagged by Federal, State, shorebirds also depend on the eggs of tag containing a toll-free number for and university biologists and horseshoe crabs to refuel on their MDFWCO. Tagged species of fish nongovernmental organizations along migrations from South America to the include striped bass (Morone saxatilis), the U.S. east coast and into Canada, and Arctic. One bird in particular, the rufa Atlantic (Acipenser oxyrinchus) and throughout the United States and red knot (Calidris canutus rufa), feeds shortnose sturgeon (Acipenser Canada. Local populations of Atlantic primarily on horseshoe crab eggs during brevirostrum), northern snakehead sturgeon have been listed as either its stopover. Effective January 12, 2015, (Channa argus), and American shad threatened or endangered since 2012, the rufa red knot was listed as (Alosa sapidissima). Members of the and shortnose populations have been
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listed since 1973. The information DEPARTMENT OF THE INTERIOR FOR FURTHER INFORMATION CONTACT: Ben collected provides data on tag retention Conard, by phone at 406–758–6882, by and sturgeon movement along the east Fish and Wildlife Service email at [email protected], or via the coast. The data are also used to address [Docket No. FWS–R6–ES–2019–0010; Federal Relay Service at 800–877–8339. some of the management and research FF06E00000 212 FXES11140600000] SUPPLEMENTARY INFORMATION: We, the needs identified by amendment 1 to the U.S. Fish and Wildlife Service (Service), ASMFC’s Atlantic Sturgeon Fishery Incidental Take Permit Application; have received an application from BNSF Management Plan. Habitat Conservation Plan and Railway (BNSF) for a 7-year incidental Data collected across these tagging Categorical Exclusion for the take permit (ITP) under the Endangered programs are similar in nature, Threatened Grizzly Bear; Flathead, Species Act of 1973, as amended (ESA; including: Glacier, Lincoln, and Toole Counties, 16 U.S.C. 1531 et seq.). The application • Tag number; Montana addresses the potential for take of the • Date of capture; federally threatened grizzly bear (Ursus • Waterbody of capture; AGENCY: Fish and Wildlife Service, arctos horribilis) that is likely to occur • Capture method; Interior. incidental to ongoing operations and • Fish length, weight, and fate ACTION: Notice of availability of maintenance of approximately 206 (whether released or killed); and documents; request for comments. miles of railroad. • Fisher type (i.e., commercial, The documents available for review recreational, etc.). SUMMARY: We, the U.S. Fish and and comment are the applicant’s habitat In addition, if the tag reporter desires Wildlife Service, announce the conservation plan (HCP), which is part more information on their tagged fish or availability of documents related to an of the ITP application, and our draft wants the modest reward that comes application for an incidental take permit environmental action statement and with reporting a tag, we ask their (ITP) under the Endangered Species Act. low-effect screening form. These address so that we can mail them the BNSF Railway (BNSF) has applied for documents helped inform our information. an ITP, which, if granted, would conclusion that the activities proposed Title of Collection: Horseshoe Crab authorize take of the federally by the permit application will have a and Cooperative Fish Tagging Programs. threatened grizzly bear that is likely to low effect on the species and the human OMB Control Number: 1018–0127. occur incidental to railroad operations environment. Accordingly, the HCP Form Number: FWS Forms 3–2310, 3– and maintenance. The documents qualifies for a categorical exclusion 2311, and 3–2493 through 3–2496. available for review and comment are under the National Environmental Type of Review: Extension of a the applicant’s habitat conservation Policy Act of 1969 (NEPA; 42 U.S.C. currently approved collection. plan, which is part of the ITP 4321 et seq.). Respondents/Affected Public: application, and our draft Applicant’s Habitat Conservation Plan Respondents include Federal and State environmental action statement and agencies, universities, and biomedical low-effect screening form, which BNSF has submitted a low-effect HCP companies who conduct tagging, and support a categorical exclusion under in support of an application for an ITP members of the general public who the National Environmental Policy Act. to address take of the species that is provide recapture information. We invite comments from the public likely to occur as the result of BNSF’s Total Estimated Number of Annual and Federal, Tribal, State, and local ongoing operations and management of Respondents: 2,006. governments. approximately 206 miles of railway between Trego, Montana, and Shelby, Total Estimated Number of Annual DATES: We will accept comments Montana. The requested permit duration Responses: 3,628. received or postmarked on or before is for 7 years from permit issuance. The Estimated Completion Time per February 11, 2021. Comments submitted railway is within grizzly bear habitat in Response: Varies from 5 minutes to 95 online at Regulations.gov (see hours, depending on activity. the Northern Continental Divide ADDRESSES) must be received by 11:59 Ecosystem grizzly bear recovery zone. Total Estimated Number of Annual p.m. Eastern Time on the closing date. Burden Hours: 2,239. The biological goals and objectives are ADDRESSES: Respondent’s Obligation: Voluntary. Obtaining Documents: The to reduce attractants and deter grizzly Frequency of Collection: Respondents documents this notice announces, as bears from entering high-risk areas of will provide information on occasion, well as any comments and other railway and to contribute to the upon tagging or upon encounter with a materials that we receive, will be recovery of the grizzly bear population tagged crab or fish. available for public inspection online in by offsetting incidental take by reducing Total Estimated Annual Nonhour Docket No. FWS–R6–ES–2019–0010 at other sources of human-caused Burden Cost: None. http://www.regulations.gov. mortality. The proposed conservation An agency may not conduct or Submitting Comments: You may program includes implementing sponsor and a person is not required to submit comments by one of the measures to reduce attractants, following methods: providing financial support to Montana respond to a collection of information • unless it displays a currently valid OMB Online: http://www.regulations.gov. Fish, Wildlife, and Parks and the control number. Follow the instructions for submitting Blackfeet Indian Nation for reducing The authority for this action is the comments on Docket No. FWS–R6–ES– human/grizzly bear conflicts through 2019–0010. increased personnel, equipment, and Paperwork Reduction Act of 1995 (44 • U.S.C. 3501 et seq.). U.S. mail: Public Comments education. Processing, Attn: Docket No. FWS–R6– Dated: January 6, 2021. ES–2019–0010; U.S. Fish and Wildlife Public Availability of Comments Madonna Baucum, Service Headquarters, MS: PERMA; Written comments we receive become Information Collection Clearance Officer, U.S. 5275 Leesburg Pike; Falls Church, VA part of the administrative record Fish and Wildlife Service. 22041–3803. associated with this action. Before [FR Doc. 2021–00332 Filed 1–11–21; 8:45 am] We request that you send comments including your address, phone number, BILLING CODE 4333–15–P by only the methods described above. email address, or other personal
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identifying information in your imposed on the sale of alcoholic ‘‘Taxation of Alcoholic Beverages, comment, you should be aware that beverages both within and outside the Ordinance No. 01–20, Liquor Excise your entire comment—including your boundaries of the Reservation. The and Licenses, Beer, Wine, and Hard personal identifying information—may Agreement requires the Tribe to adopt Cider’’ be made publicly available at any time. and keep in force an ordinance Sec. 101. Declaration of Policy While you can request in your comment imposing taxes equal to Montana liquor that we withhold your personal excise and license taxes and beer, wine, 1. This Ordinance is enacted pursuant identifying information from public and hard cider taxes sold within the to the inherent governing power of the review, we cannot guarantee that we exterior boundaries of the Rocky Boy’s Chippewa Cree Tribe and under will be able to do so. All submissions Indian Reservation. authority recognized by federal law in from organizations or businesses, and accordance with provisions of the from individuals identifying themselves DATES: This ordinance shall take Constitution and Bylaws of the Tribe. as representatives or officials of effective on February 11, 2021. All persons, business, lands, organizations or businesses, will be FOR FURTHER INFORMATION CONTACT: transactions, and activities either made available for public disclosure in Ms. Jo-Ellen Cree, Tribal Operations Officer, relocated on or occurring within the their entirety. exterior boundaries of the Rocky Boy’s Rocky Mountain Regional Office, Indian Reservation shall be subject to Authority Bureau of Indian Affairs, 2021 Fourth provisions of this Ordinance. We provide this notice under section Avenue North, Billings, Montana 59101, 10(c) of the ESA (16 U.S.C. 1531 et seq.) Telephone: (406) 247–7964 or (406) 2. This Ordinance is enacted for the protection of the health and safety, and and its implementing regulations (50 247–7988, Fax: (406) 247–7566; or Ms. to promote the general welfare of the CFR 17.32) and NEPA (42 U.S.C. 4321 Laurel Iron Cloud, Chief, Division of et seq.) and its implementing people residing within the exterior Tribal Government Services, Office of boundaries of the Rocky Boy’s Indian regulations (40 CFR 1506.6 and 43 CFR Indian Services, Bureau of Indian 46.305). Reservation. All its provisions shall be Affairs, 1849 C Street NW, MS–4513– liberally construed for the Stephen Small, MIB, Washington, DC 20240, accomplishment of that purpose. Assistant Regional Director, Ecological Telephone: (202) 513–7641. 3. The Chippewa Cree Business Services, Mountain-Prairie Region. SUPPLEMENTARY INFORMATION: Pursuant Committee believes that enactment of [FR Doc. 2021–00426 Filed 1–11–21; 8:45 am] to the Act of August 15, 1953, Public this Ordinance governing alcoholic BILLING CODE 4333–15–P Law 83–277, 67 Stat. 5886, 18 U.S.C. beverages through taxation within the 1161, as interpreted by the Supreme exterior boundaries of the Rocky Boy’s Indian Reservation will help provide DEPARTMENT OF THE INTERIOR Court in Rice v. Rehner, 463 U.S. 713 (1983), the Secretary of the Interior revenue for the continued operation of Tribal government. Bureau of Indian Affairs certifies and publishes in the Federal Register notice of adopted liquor control 4. This Ordinance shall impose taxes [212A2100DD/AACC003300/ equal to the Montana liquor excise and A0H901010.999900.253G] ordinances for the purpose of regulating liquor transactions in Indian country. license taxes and beer, wine, and hard Chippewa Cree Indians of the Rocky The Chippewa Cree Tribe adopted cider taxes sold within the exterior Boy’s Reservation; Amendment to Tribal Resolution No. 52–20 on May 7, boundaries of the Rocky Boy’s Indian Reservation, pursuant to its power Liquor Control Ordinance 2020, and adopted Ordinance No. 01– under Article VI, Section 1 (j) of the 20, Governing the Taxation of Alcoholic AGENCY: Bureau of Indian Affairs, Constitution of the Chippewa Cree Beverages Sold on within the Rocky Interior. Tribe. Boy’s Indian Reservation. This ACTION: Notice. 5. The overall purpose of this amendment to the liquor control Ordinance is to aid in the collection of SUMMARY: ordinance is incorporated and codified This notice publishes an taxes and ensure that alcoholic amendment to the Liquor Ordinance of by Ordinance No. 01–20 within Title beverages are not subject to both the the Chippewa Cree Indians of the Rocky XVII, Chapter 7, of the Chippewa Cree State and the tribal tax. The provisions Boy’s Indian Reservation of Montana Tribal Law and Order Code and codified of this Ordinance must be broadly (Chippewa Cree Tribe). The Chippewa within Chapter 6 of the Chippewa Cree construed to accomplish this purpose. Cree Tribe and the State of Montana Law and Order Code Alcoholic Beverage have agreed to enter into a Montana Control Ordinance. Sec. 102. Definitions Alcoholic Beverages Tax Agreement. This notice is published in As used in this Chapter, unless The purposes of the Agreement are to accordance with the delegated authority otherwise noted, the following minimize legal controversy and possible definitions apply: litigation over the taxation of alcoholic by the Secretary of the Interior to the beverages within the exterior Assistant Secretary—Indian Affairs. I 1. ‘‘Alcohol’’ means ethyl alcohol, boundaries of the Rocky Boy’s certify that the Chippewa Cree Business also called ethanol, or the hydrated Reservation to mitigate the effects of Committee duly adopted the oxide of ethyl. dual taxation on the sale of alcoholic amendment to the Chippewa Cree Tribe 2. ‘‘Alcoholic beverage’’ means a beverages by both the Tribe and the Liquor Control Ordinance by Tribal compound produced and sold for State, and to provide an effective means Resolution No. 52–20 on May 7, 2020. human consumption as a drink that by which revenues generated by the The Chippewa Cree Tribe of the contains more than 0.5% of alcohol by state and tribal taxes on the sale of Rocky Boy’s Indian Reservation Liquor volume. alcoholic beverages may be shared and Ordinance, Chapter 6 reads as follows: 3. ‘‘Agreement’’ means the Chippewa distributed. In order to accomplish these Cree—Montana Alcoholic Beverage Tax purposes, the State and the Tribe agree Agreement. that the same level of taxation will be 4. ‘‘Beer’’ means:
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a. A malt beverage containing not 9. ‘‘Hard cider’’ means an alcoholic 0.5% but not more than 24% of alcohol more than 8.75% of alcohol by volume; beverage that is made from the alcoholic by volume. Wine may be ameliorated to or fermentation of the juices of apples or correct natural deficiencies, sweetened, b. An alcoholic beverage containing pears and that contains not less than and fortified in accordance with not more than 8.75% of alcohol by 0.5% of alcohol by volume and not applicable federal regulations and the volume: more than 6.9% of alcohol by volume, customs and practices of the industry. i. that is made by alcoholic including but not limited to flavored, Other alcoholic beverages not defined in fermentation of an infusion of sparkling, or carbonated cider. this subsection but made in the manner decoction, or a combination of both, in 10. ‘‘Import’’ means to transfer beer or of wine and labeled and sold as wine in potable brewing water, or malted cereal table wine from outside the state of accordance with federal regulations are grain; and Montana into the state of Montana. also wine. ii. in which the sugars used for 11. ‘‘Liquor’’ means an alcoholic Sec. 103. Liquor Excise Tax fermentation of the alcoholic beverage beverage except beer and table wine. are at least 75% derived from malted The term includes a caffeinated or 1. The Tribe (with the assistance by cereal grain measured as a percentage of stimulant-enhanced malt beverage. the State pursuant to the Agreement) the total dry weight of the fermentable 12. ‘‘Malt beverage’’ means an shall collect at the time of the sale and ingredients. alcoholic beverage made by the delivery of any liquor as authorized 5. ‘‘Beer importer’’ means a person fermentation of an infusion or under any provision of the laws of the other than a brewer who imports malt decoction, or a combination of both, in Chippewa Cree Tribe an excise tax at beverages. potable brewing water, of malted barley the rate that is the percent of the retail 6. ‘‘Brewer’’ means a person who with or without hops or their parts or selling price determined in accordance produces malt beverages. their products and with or without other with the following schedule based on all 7. ‘‘Caffeinated or stimulant-enhanced malted cereals and with or without the liquor sold and delivered in the state by malt beverage’’ means: additional of unmalted or prepared a company that manufactured, distilled, a. a beverage: cereals, other carbohydrates, or products rectified, bottled, or processed the i. that is fermented in a manner prepared from carbohydrates and with liquor and sold the specified number of similar to beer and from which some or or without other wholesome products proof gallons of liquor nationwide in the all of the fermented alcohol has been suitable for human food consumption. calendar year preceding imposition of removed and replaced with distilled 13. ‘‘Person’’ means any person, firm, the tax pursuant to this section: ethyl alcohol; association, joint-stock company, ii. that contains at least 0.5% of syndicate, or corporation. Nationwide production Tax rate alcohol by volume; 14. ‘‘Posted price’’ means the (%) iii. that is treated by processing, wholesale price of liquor for sale to Less than 20,000 proof gallons .... 3 filtration, or another method of persons who hold liquor licenses. 20,000 to 50,000 proof gallons .... 8 manufacture that is not generally 15. ‘‘Proof gallon’’ means a U.S. gallon 50,001 to 200,000 proof gallons .. 13.8 recognized as a traditional process in of liquor at 60 degrees on the Fahrenheit Over 200,000 proof gallons ...... 16 the production of beer as described in scale that contains 50% of alcohol by 27 CFR 25.5; and volume. 2. The tax imposed pursuant to iv. to which is added caffeine or other 16. ‘‘Sacramental wine’’ means wine subsection (1) is due no later than the stimulants, including but not limited to that contains more than 0.5% but not 10th day of each month. guarana, ginseng, and taurine; or more than 24% of alcohol by volume 3. The tax imposed in this subsection b. a beverage: that is manufactured and sold shall be collected by the Tribe (with the i. that contains at least 0.5% of exclusively for use as sacramental wine assistance by the State pursuant to the alcohol by volume; or for other religious purposes. Agreement). ii. that is treated by processing, 17. ‘‘State’’ means the State of Sec. 104. License Tax on Liquor filtration, or another method of Montana. manufacture that is not generally 18. ‘‘Table wine’’ means wine that The Tribe (with the assistance of the recognized as a traditional process in contains not more than 16% of alcohol State pursuant to the Agreement) may the production of beer as described in by volume and includes cider. collect at the time of sale and delivery 27 CFR 25.55; 19. ‘‘Table wine distributor’’ means a of any liquor of: iii. to which is added a flavor or other person importing into or purchasing in 1. 10% of the retail selling price on ingredient containing alcohol, except for Montana table wine or sacramental wine all liquor sold and delivered within the a hop extract; for sale or resale to retailers licensed in Reservation by a company that iv. to which is added caffeine or other Montana. manufactured, distilled, rectified, stimulants, including but not limited to 20. ‘‘Tribe’’ means the Chippewa Cree bottled, or processed and that sold more guarana, ginseng, and taurine; Tribe of the Rocky Boy’s Indian than 200,000 proof gallons of liquor v. for which the producer is required Reservation. nationwide in the calendar year to file a formula for approval with the 21. ‘‘Wholesaler’’ means any person preceding imposition of the tax United States Alcohol and Tobacco Tax who engages in the wholesale pursuant to this section; and Trade Bureau pursuant to 27 CFR distribution of liquor, beer, or wine 2. 8.6% of the retail selling price on 25.55; and within the Reservation. all liquor sold and delivered within the vi. that is not exempt pursuant to 27 22. ‘‘Wine’’ means an alcoholic Reservation by a company that CFR 25.55(f). beverage made from or containing the manufactured, distilled, rectified, 8. ‘‘Distributer’’ means any person: normal alcoholic fermentation of the bottled, or processed and that sold more a. who imports liquor, beer, or wine juice or sound, ripe fruit or other than 50,000 proof gallons buy not more for sale, use or distribution, or agricultural products without addition than 200,000 proof gallons of liquor b. who engages in the wholesome or abstraction, except as may occur in nationwide in the calendar year distribution of liquor, beer, or wine the usual cellar treatment of clarifying preceding imposition of the tax within the Reservation. and aging, and that contains more than pursuant to this section;
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3. 2% of the retail selling price on all table wine distributor and on hard cider action to collect taxes and penalties liquor sold and delivered within the shipped directly to licensed retailers by pursuant to this Ordinance. Reservation by a company that a winery licensed. Sec. 112. Application of Federal Laws manufactured, distilled, rectified, 3. The tax imposed pursuant to bottled, or processed and that sold not subsection (1) is due on or before the Federal law currently prohibits the more than 50,000 proof gallons of liquor 15th day of each month for sales in the introduction of alcoholic beverages into nationwide in the calendar year previous month. Indian country (18 U.S.C. 1154), and preceding imposition of tax pursuant to 4. The tax imposed in this subsection expressly delegates to the Tribes the this section; shall be collected by the Tribe (with the decision regarding when and to what 4. The license tax must be charged assistance by the State pursuant to the extent liquor transactions shall be and collected on all liquor produced in Agreement). permitted (18 U.S.C § 1661). Persons or brought within the Reservation and involved in acts and transactions not Sec. 107. Uniformed Penalty and taxed by the Tribe. The retail selling authorized by this Chapter shall be Interest Assessments for Violation of price must be computed by adding to subject to federal criminal prosecution, Tax the cost of the liquor the Tribe markup as well as civil legal action in the courts of 40.5% for all liquor other than A person who fails to pay an imposed of the United States. sacramental wine, for which the markup tax by due date, including any extension Sec. 113. Severability must be 20% and fortified wine of time allowed, shall be assessed a late containing more than 16% but not more filing penalty. The penalty is greater of Should any section, clause, sentence, than 24% alcohol by volume, for which $50 or 5% of the tax due for each month or provision of this Ordinance be held markup must be 51%. The license tax during which there is a failure to file invalid for any reason, such hold or must be figured in the same manner as return or report, not to exceed an decree shall not be construed as the Tribe excise tax and is in addition amount up to 25% of the tax due. The affecting the validity of any of the to the Tribe excise tax. late filing penalty is calculated from the remaining portions hereof, it being 5. The licensee tax imposed in this due date or extended due date. The declared that the Chippewa Cree subsection shall be collected by the penalty is computed only on the net Business Committee would have Tribe (with the assistance by the State amount of tax due, if any, as of the adopted the remainder of this pursuant to the Agreement). original due date or extended due date, Ordinance, notwithstanding the after credit has been given for amounts invalidity of any such Section, clause, Sec. 105. Beer Exercise Tax paid through withholding, estimated tax sentence, or provision. 1. A tax is imposed on each barrel of payments, or other credits claimed on Sec. 114. Amendment 31 gallons of beer sold on the the return. The penalty and interest Reservation by a wholesaler. A barrel of imposed in this subsection shall be Amendments to this Ordinance may beer equals 31 gallons. The tax is based collected by the Tribe (with the be made only the Chippewa Cree upon the total number of barrels of beer assistance by the State pursuant to the Business Committee of the Chippewa produced by a brewer in a year. A Agreement). Cree Tribe. brewer who produces less than 10,000 Sec. 108. Powers Reserved to Chippewa Sec. 115. Effective Date barrels of beer a year is taxed on the Cree Business Committee following increments of production: This Ordinance was adopted by the a. up to 5,000 barrels, $1.30; Nothing in this Ordinance is intended Chippewa Cree Business by Resolution b. 5,001 barrels to 10,000 barrels, to restrict the Tribe from prohibiting the No. 52–20 and is effective on the 6th $2.30. sale and consumption of liquor or of all day of June, 2020. c. The tax on beer sold for a brewer alcoholic beverages within the exterior Tara Sweeney, who produces over 10,000 barrels is boundaries of the Rocky Boy’s Indian $4.30. Reservation. Furthermore all powers Assistant Secretary—Indian Affairs. 2. The Tribe shall compute the tax relating to regulation and control over [FR Doc. 2021–00347 Filed 1–11–21; 8:45 am] due on beer sold in containers other alcoholic beverages which are not BILLING CODE 4337–15–P than barrels or in barrels of more or less expressly delegated in this Ordinance capacity than 31 gallons. shall be retained by the Chippewa Cree 3. The tax imposed pursuant to Business Committee. DEPARTMENT OF THE INTERIOR subsection (1) is due at the end of each Bureau of Indian Affairs month from the wholesaler upon beer Sec. 109. Exemptions sold by the wholesaler during the Nothing in this Ordinance restricts [212A2100DD/AAKC001030/ month. the Chippewa Cree Business Committee A0A501010.999900253G] 4. The tax imposed in this subsection from establishing exemptions within shall be collected by the Tribe (with the this Ordinance. Any exemptions shall Indian Gaming; Approval of Tribal- assistance by the State pursuant to the be adopted by Resolution. State Class III Gaming Compact in the Agreement). Sec. 110. Sovereign Immunity Preserved State of Washington Sec. 106. Wine and Hard Cider Tax Nothing in this Ordinance is intended AGENCY: Bureau of Indian Affairs, 1. A tax of 27 cents per liter is or shall be construed as a waiver of Interior. imposed on sacramental wine and table sovereign immunity of the Chippewa ACTION: Notice. wine, except hard cider, imported by a Cree Tribe. table wine distributor and on table wine SUMMARY: This notice publishes the shipped directly to consumers or Sec. 111. Enforcement approval of the Second Amendment to licensed retailers by a winery registered The Tribe may commence and the Tribal-State Compact for Class III or licensed. prosecute to final determination in the Gaming between the Cowlitz Indian 2. A tax of 3.7 cents per liter is Chippewa Cree Tribal Court or any Tribe (Tribe) and the State of imposed on hard cider imported by a court of competent jurisdiction an Washington (State).
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DATES: The compact takes effect on 87104, [email protected], reservations, rights-of-way, and January 12, 2021. (505) 563–3132. easements of record. FOR FURTHER INFORMATION CONTACT: Ms. SUPPLEMENTARY INFORMATION: This Shakopee Mdewakanton Sioux Community Paula L. Hart, Director, Office of Indian notice is published in the exercise of of Minnesota, 1 Parcel, Fifth Principal Gaming, Office of the Deputy Assistant authority delegated by the Secretary of Meridian, Scott County, Minnesota, Legal Secretary—Policy and Economic the Interior to the Assistant Secretary— Descriptions Containing 166.13 Acres, More Development, Washington, DC 20240, Indian Affairs by part 209 of the or Less (202) 219–4066. Departmental Manual. Group E Parcel, 411 T 1025 SUPPLEMENTARY INFORMATION: Under Proclamations were issued according Parcel 1: All that part of the following section 11 of the Indian Gaming to the Act of June 18, 1934 (48 Stat. 984; described PARCEL A, lying westerly of a line Regulatory Act (IGRA), Public Law 100– 25 U.S.C. 5110) for the lands described parallel with and 1086.40 feet easterly from 497, 25 U.S.C. 2701 et seq., the below, known as the Tinta Otunwe the west line of the Northwest Quarter of Secretary of the Interior shall publish in Parcel, consisting of 109.12 acres, more Section 29, Township 115 North, Range 22 the Federal Register notice of approved or less; and the Group E Parcel, West of the 5th Principal Meridian, Scott Tribal-State compacts for the purpose of consisting of 166.13 acres, more or less. County, Minnesota, as measured at a right engaging in Class III gaming activities The lands were proclaimed to be part of angle, and its extensions. the Shakopee Mdewakanton Sioux PARCEL A: All that land lying and being on Indian lands. As required by 25 CFR in the County of Scott and State of Minnesota 293.4, all compacts and amendments are Community of Minnesota Reservation in described as follows, to-wit: subject to review and approval by the Scott County, Minnesota. The North Half of the Northwest Quarter Secretary. The Compact increases the Shakopee Mdewakanton Sioux Community (N 1⁄2 of NW 1⁄4), the Southwest Quarter of number of player terminals the Tribe of Minnesota, 1 Parcel, Fifth Principal the Northwest Quarter (SW 1⁄4 of NW 1⁄4) and may operate, increases the Tribe’s Meridian, Scott County, Minnesota, Legal all that part of the Southeast Quarter of the contribution to combat problem Descriptions Containing 109.12 Acres, More Northwest Quarter, lying North and West of gambling, permits the Tribe’s gaming or Less a line commencing at the Northeast corner of facilities to accept additional forms of said tract and running through the center Tinta Otunwe Parcel, 411 T 1026 thereof in a direct course to the Southwest payment, designates the Cowlitz Tribal corner thereof, of Section Twenty-nine (29), Court as a jurisdictional forum for Parcel 1: All that part of the Northwest Quarter of the Northeast Quarter, Section 21, and all of the above described land being in certain purposes, adopts certain state Township 115 North, Range 22 West of the Township One Hundred Fifteen (115) North, law provisions related to gaming 5th P.M., Scott County, Minnesota, described Range Twenty-two (22) West of the 5th regulation, and adopts rules governing as follows: Beginning at a point on the North Principal Meridian, Scott County, Minnesota, wide area progressives. The Compact is and South Quarter line of said Section 21, according to the Government Survey thereof, approved. distant 900.75 feet south of the North Quarter excepting the East two (2) rods of the above corner; thence south along said Quarter line described land being subject to a road Tara Sweeney, a distance of 240.0 feet; thence west a easement; Assistant Secretary—Indian Affairs. distance of 544.5 feet to the point of and excepting therefrom: The Northwest [FR Doc. 2021–00340 Filed 1–11–21; 8:45 am] beginning according to the United States Quarter of the Southeast Quarter of Section 29, Township 115 North, Range 22 West of BILLING CODE 4337–15–P Government Survey thereof. Parcel 2: The Northwest 1⁄4 of the Northeast the 5th Principal Meridian, Scott County, 1⁄4 of Section 21, Township 115 North, Range Minnesota. Together with that part of the Southwest Quarter of the Northeast Quarter DEPARTMENT OF THE INTERIOR 22 West of the 5th P.M., Scott County, Minnesota, excepting therefrom the following of said Section 29, lying South of the North 363.00 feet of said Southwest Quarter of the Bureau of Indian Affairs described tract of land: All that part of the Northwest 1⁄4 of the Northeast 1⁄4 of Section Northeast Quarter; [212A2100DD/AAKC001030/ 21, Township 115 North, Range 22 West of and excepting therefrom: The East 400.00 A0A51010.999900] the 5th P.M., Scott County, Minnesota feet of the Northeast Quarter of the Northwest described as follows: Beginning at a point on Quarter of Section 29, Township 115 North, Proclaiming Certain Lands as the North and South Quarter line of said Range 22 West of the 5th Principal Meridian, Reservation for the Shakopee section 21 distant 900.75 feet south of the Scott County, Minnesota. Subject to an easement for Highway purposes over the Mdewakanton Sioux Community of North Quarter corner; thence south along said Quarter line a distance of 240.0 feet; North 75.00 feet as designated in Document Minnesota thence east a distance of 544.5 feet; thence No. 148471. Together with that part of the East 400.00 feet of the Southeast Quarter of AGENCY: Bureau of Indian Affairs, north a distance if 240.0 feet; thence west a the Northwest Quarter of said Section 29, Interior. distance of 544.5 feet to a point of beginning, according to the United States Government lying Northwesterly of a line drawn from the ACTION: Notice of reservation Survey thereof. Northeast corner of said Southeast Quarter of proclamations. Parcel 3: The north half of the south half the Northwest Quarter, Southwesterly to the of the Northeast Quarter (N1⁄2 of S1⁄2 of NE1⁄4) Southwest corner of said Southeast Quarter SUMMARY: This notice informs the public of Section 21, Township 115 North, Range 22 of the Northwest Quarter; that the Acting Assistant Secretary— West of the 5th P.M., Scott County, and excepting therefrom: A tract of land in Indian Affairs proclaimed two parcels as Minnesota, according to the United States the Northwest Quarter (NW 1⁄4) of Section 29, additions to the reservation of the Government Survey thereof. Township 115 North, Range 22 West of the Shakopee Mdewakanton Sioux Parcel 4: The south 1⁄2 of the south 1⁄2 of 5th Principal Meridian; Scott County, 1 Minnesota described as follows: Beginning at Community. the Northeast ⁄4 except the west 1448.80 feet of the south 1⁄2 of the south 1⁄2 of the south the Southwest corner of said Northwest 1 DATES: These proclamations were made 1⁄2 of the Northeast 1⁄4, Section 21, Township Quarter (NW ⁄4) and thence East along the on January 6, 2021. 115 North, Range 22 west of the 5th P.M., South line thereof a distance of 160.2 feet to the center line of County Road No. 17; thence FOR FURTHER INFORMATION CONTACT: Ms. Scott County, Minnesota, according to the United States Government Survey thereof. Northwesterly along said center line to its Sharlene M. Round Face, Bureau of intersection with the West line of said Indian Affairs, Division of Real Estate The above described lands contain a Northwest Quarter (NW 1⁄4); thence South Services, 1001 Indian School Road, NW, total of 109.12 acres, more or less, along said West line to the point of Box #44, Albuquerque, New Mexico which are subject to all valid rights, beginning; subject to said road right-of-way.
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Parcel 2: All that part of the following southwest corner of said Southeast Quarter of Indians Leasing Ordinance under the described PARCEL A, lying easterly of a line the Northwest Quarter, according to the Helping Expedite and Advance parallel with and 1086.40 feet easterly from United States Government Survey thereof Responsible Tribal Homeownership Act the west line of the Northwest Quarter of and situate in Scott County, Minnesota. of 2012 (HEARTH Act). With this Section 29, Township 115 North, Range 22 Parcel 4: All that part of the Southeast approval, the Tribe is authorized to West of the 5th Principal Meridian, Scott Quarter of the Northwest Quarter (SE1⁄4 of County, Minnesota, as measured at a right NW1⁄4) of Section 29, Township 115 North, enter into business and residential angle, and its extensions. Range 22 West of the 5th Principal Meridian, leases without further BIA approval. PARCEL A: All that land lying and being Scott County, Minnesota, lying South and DATES: BIA issued the approval on in the County of Scott and State of Minnesota East of a line commencing at the Northeast January 6, 2021. described as follows, to-wit: corner thereof and running through the FOR FURTHER INFORMATION CONTACT: The North Half of the Northwest Quarter center thereof in a direct line to the Ms. (N 1⁄2 of NW 1⁄4), the Southwest Quarter of Southwest corner thereof, Sharlene Round Face, Bureau of Indian the Northwest Quarter (SW 1⁄4 of NW 1⁄4) and Together with a non-exclusive easement Affairs, Division of Real Estate Services, all that part of the Southeast Quarter of the for travel purposes over and across the East 1001 Indian School Road NW, Northwest Quarter, lying North and West of two rods of the Northeast Quarter of the Albuquerque, NM 87104, a line commencing at the Northeast corner of Northwest Quarter (NE1⁄4 of NW1⁄4) and that [email protected], (505) said tract and running through the center part of the SE1⁄4 of NW1⁄4, Section 29, 563–3132. thereof in a direct course to the Southwest Township 115 North, Range 22 West of the SUPPLEMENTARY INFORMATION: corner thereof, of Section Twenty-nine (29), 5th Principal Meridian, Scott County, and all of the above described land being in Minnesota, described as follows: I. Summary of the HEARTH Act Township One Hundred Fifteen (115) North, Commencing at the Northeast corner of the Range Twenty-two (22) West of the 5th SE1⁄4 of NW1⁄4; thence West on the North line The HEARTH Act makes a voluntary, Principal Meridian, Scott County, Minnesota, of said SE1⁄4 of NW1⁄4 2 rods; thence South alternative land leasing process according to the Government Survey thereof, 2 rods; thence in a Northeasterly direction 2 available to Tribes, by amending the excepting the East two (2) rods of the above rods to the point of beginning. Indian Long-Term Leasing Act of 1955, described land being subject to a road Parcel 5: The North 363.00 feet of the 25 U.S.C. 415. The HEARTH Act easement; Southwest Quarter of the Northeast Quarter authorizes Tribes to negotiate and enter and excepting therefrom: The Northwest (SW1⁄4 of NE1⁄4), excepting therefrom the east into business leases of Tribal trust lands Quarter of the Southeast Quarter of Section 300 feet, Section 29, Township 115 North, with a primary term of 25 years, and up 29, Township 115 North, Range 22 West of Range 22 West of the 5th Principal Meridian, the 5th Principal Meridian, Scott County, according to the United States Government to two renewal terms of 25 years each, Minnesota. Together with that part of the Survey thereof and situate in Scott County, without the approval of the Secretary of Southwest Quarter of the Northeast Quarter Minnesota. the Interior (Secretary). The HEARTH of said Section 29, lying South of the North Act also authorizes Tribes to enter into 363.00 feet of said Southwest Quarter of the Abstract Property leases for residential, recreational, Northeast Quarter; The above described lands contain a religious or educational purposes for a and excepting therefrom: The East 400.00 total of 166.13 acres, more or less, primary term of up to 75 years without feet of the Northeast Quarter of the Northwest which are subject to all valid rights, the approval of the Secretary. Quarter of Section 29, Township 115 North, Range 22 West of the 5th Principal Meridian, reservations, rights-of-way, and Participating Tribes develop Tribal Scott County, Minnesota. Subject to an easements of record. The above leasing regulations, including an easement for Highway purposes over the described lands contain a combined environmental review process, and then North 75.00 feet at designated in Document total of 276.25 acres, more or less. This must obtain the Secretary’s approval of No. 148471. Together with that part of the proclamation does not affect title to the those regulations prior to entering into East 400.00 feet of the Southeast Quarter of lands described above, nor does it affect leases. The HEARTH Act requires the the Northwest Quarter of said Section 29, any valid existing easements for public Secretary to approve Tribal regulations lying Northwesterly of a line drawn from the roads, highways, public utilities, if the Tribal regulations are consistent Northeast corner of said Southeast Quarter of railroads and pipelines, or any other with the Department of the Interior’s the Northwest Quarter, Southwesterly to the Southwest corner of said Southeast Quarter valid easements or rights-of-way or (Department) leasing regulations at 25 of the Northwest Quarter; reservations of record. CFR part 162 and provide for an environmental review process that and excepting therefrom: A tract of land in Tara Sweeney, the Northwest Quarter (NW 1⁄4) of Section 29, meets requirements set forth in the Township 115 North, Range 22 West of the Assistant Secretary—Indian Affairs. HEARTH Act. This notice announces Fifth Principal Meridian; Scott County, [FR Doc. 2021–00339 Filed 1–11–21; 8:45 am] that the Secretary, through the Assistant Minnesota described as follows: Beginning at BILLING CODE 4337–15–P Secretary—Indian Affairs, has approved the Southwest corner of said Northwest 1 the Tribal regulations for the Cahuilla Quarter (NW ⁄4) and thence East along the Band of Indians, California. South line thereof a distance of 160.2 feet to DEPARTMENT OF THE INTERIOR the center line of County Road No. 17; thence II. Federal Preemption of State and Northwesterly along said center line to its Bureau of Indian Affairs Local Taxes intersection with the West line of said Northwest Quarter (NW 1⁄4); thence South [212A2100DD/AAKC001030/ The Department’s regulations along said West line to the point of A0A501010.999900] governing the surface leasing of trust beginning; subject to said road right-of-way. and restricted Indian lands specify that, Parcel 3: The East 400 feet of the Northeast HEARTH Act Approval of the Cahuilla subject to applicable Federal law, Quarter of the Northwest Quarter of Section Band of Indians, California Leasing permanent improvements on leased 29, Township 115 North, Range 22 West of Ordinance land, leasehold or possessory interests, the 5th Principal Meridian, Scott County and activities under the lease are not Minnesota AND that part of the East 400 feet AGENCY: Bureau of Indian Affairs, of the Southeast Quarter of the Northwest Interior. subject to State and local taxation and Quarter of said Section 29, lying ACTION: Notice. may be subject to taxation by the Indian northwesterly of a line drawn from the Tribe with jurisdiction. See 25 CFR northeast corner of said Southeast Quarter of SUMMARY: The Bureau of Indian Affairs 162.017. As explained further in the the Northwest Quarter, southwesterly to the (BIA) approved the Cahuilla Band of preamble to the final regulations, the
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Federal government has a strong interest efficiently.’’ H. Rep. 112–427 at 6 may be subject to taxation by the in promoting economic development, (2012). Cahuilla Band of Indians, California. self-determination, and Tribal Assessment of State and local taxes Tara Sweeney, sovereignty. 77 FR 72440, 72447–48 would obstruct these express Federal (December 5, 2012). The principles Assistant Secretary—Indian Affairs. policies supporting Tribal economic supporting the Federal preemption of [FR Doc. 2021–00338 Filed 1–11–21; 8:45 am] development and self-determination, State law in the field of Indian leasing BILLING CODE 4337–15–P and the taxation of lease-related and also threaten substantial Tribal interests and activities applies with interests in effective Tribal government, equal force to leases entered into under economic self-sufficiency, and territorial DEPARTMENT OF THE INTERIOR Tribal leasing regulations approved by autonomy. See Michigan v. Bay Mills Bureau of Land Management the Federal government pursuant to the Indian Community, 572 U.S. 782, 810 HEARTH Act. (2014) (Sotomayor, J., concurring) [BAC 4331–11] Section 5 of the Indian Reorganization (determining that ‘‘[a] key goal of the Act, 25 U.S.C. 5108, preempts State and Federal Government is to render Tribes Notice of Public Meetings of the Idaho local taxation of permanent more self-sufficient, and better Resource Advisory Council improvements on trust land. positioned to fund their own sovereign AGENCY: Bureau of Land Management, Confederated Tribes of the Chehalis functions, rather than relying on Federal Interior. Reservation v. Thurston County, 724 funding’’). The additional costs of State ACTION: Notice of public meetings. F.3d 1153, 1157 (9th Cir. 2013) (citing and local taxation have a chilling effect Mescalero Apache Tribe v. Jones, 411 on potential lessees, as well as on a SUMMARY: In accordance with the U.S. 145 (1973)). Similarly, section 5108 Tribe that, as a result, might refrain from Federal Land Policy and Management preempts State taxation of rent exercising its own sovereign right to Act of 1976 and the Federal Advisory payments by a lessee for leased trust impose a Tribal tax to support its Committee Act of 1972, the U.S. lands, because ‘‘tax on the payment of infrastructure needs. See id. at 810–11 Department of the Interior Bureau of rent is indistinguishable from an Land Management’s (BLM) Idaho impermissible tax on the land.’’ See (finding that State and local taxes Resource Advisory Council (RAC) will Seminole Tribe of Florida v. Stranburg, greatly discourage Tribes from raising meet as indicated below. 799 F.3d 1324, 1331, n.8 (11th Cir. tax revenue from the same sources 2015). In addition, as explained in the because the imposition of double DATES: The BLM Idaho RAC will meet preamble to the revised leasing taxation would impede Tribal economic on Wednesday, April 14, 2021. The regulations at 25 CFR part 162, Federal growth). meeting will be held from 9:00 a.m. to courts have applied a balancing test to Similar to BIA’s surface leasing 5:00 p.m. (Mountain Standard Time). determine whether State and local regulations, Tribal regulations under the The RAC will also meet Wednesday, taxation of non-Indians on the HEARTH Act pervasively cover all August 11, 2021. The meeting will be held from 9:00 a.m. to 5:00 p.m. reservation is preempted. White aspects of leasing. See 25 U.S.C. (Mountain Standard Time). Mountain Apache Tribe v. Bracker, 448 415(h)(3)(B)(i) (requiring Tribal U.S. 136, 143 (1980). The Bracker regulations be consistent with BIA ADDRESSES: The April 21, 2021, meeting balancing test, which is conducted surface leasing regulations). will be held virtually. against a backdrop of ‘‘traditional Furthermore, the Federal government The August 11, 2021, meeting is notions of Indian self- government,’’ scheduled to be held at the BLM Idaho remains involved in the Tribal land requires a particularized examination of State Office, located at 1387 South leasing process by approving the Tribal the relevant State, Federal, and Tribal Vinnell Way, Boise, Idaho 83709, in the interests. We hereby adopt the Bracker leasing regulations in the first instance Sagebrush/Ponderosa conference rooms. analysis from the preamble to the and providing technical assistance, There will be an option to participate surface leasing regulations, 77 FR at upon request by a Tribe, for the virtually as well. Virtual participation 72447–48, as supplemented by the development of an environmental information will be posted online 2 analysis below. review process. The Secretary also weeks in advance of each meeting at The strong Federal and Tribal retains authority to take any necessary https://www.blm.gov/get-involved/ interests against State and local taxation actions to remedy violations of a lease resource-advisory-council/near-you/ of improvements, leaseholds, and or of the Tribal regulations, including idaho. activities on land leased under the terminating the lease or rescinding FOR FURTHER INFORMATION CONTACT: MJ Department’s leasing regulations apply approval of the Tribal regulations and Byrne, 1387 South Vinnell Way, Boise, equally to improvements, leaseholds, reassuming lease approval Idaho 83709; (208) 373–4006; mbyrne@ and activities on land leased pursuant to responsibilities. Moreover, the Secretary blm.gov. Persons who use a Tribal leasing regulations approved continues to review, approve, and under the HEARTH Act. Congress’s telecommunications device for the deaf monitor individual Indian land leases (TDD) may call the Federal Relay overarching intent was to ‘‘allow Tribes and other types of leases not covered to exercise greater control over their Service (FRS) at 1–800–877–8339 to under the Tribal regulations according contact the above individual during own land, support self-determination, to the Part 162 regulations. and eliminate bureaucratic delays that normal business hours. The FRS is stand in the way of homeownership and Accordingly, the Federal and Tribal available 24 hours a day, 7 days a week, economic development in Tribal interests weigh heavily in favor of to leave a message or question with the communities.’’ 158 Cong. Rec. H. 2682 preemption of State and local taxes on above individual. You will receive a (May 15, 2012). The HEARTH Act was lease-related activities and interests, reply during normal business hours. intended to afford Tribes ‘‘flexibility to regardless of whether the lease is SUPPLEMENTARY INFORMATION: The Idaho adapt lease terms to suit [their] business governed by Tribal leasing regulations RAC is chartered, and the 15 members and cultural needs’’ and to ‘‘enable or Part 162. Improvements, activities, are appointed by the Secretary of the [Tribes] to approve leases quickly and and leasehold or possessory interests Interior. Their diverse perspectives are
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represented in commodity, non- ACTION: Notice of information collection; to all operations conducted under a commodity, and local interests. The request for comment. lease, right-of-use and easement, and RAC serves in an advisory capacity to pipeline right-of-way. SUMMARY: BLM and USDA Forest Service officials In accordance with the Section 5(a)(8) of OCSLA requires that Paperwork Reduction Act of 1995, the concerning planning and management regulations prescribed by the Secretary Bureau of Ocean Energy Management of public land and national forest include provisions ‘‘for compliance (BOEM) proposes to renew its resources located, in whole or part, with the national ambient air quality information collection control number within the State of Idaho. standards pursuant to the Clean Air Act 1010–0057 through the Office of Agenda items for the April meeting (42 U.S.C. 7401 et seq.), to the extent Management and Budget (OMB). include management of wildland fire that activities authorized under this and fuels and outdoor recreation; review DATES: Interested persons are invited to subchapter significantly affect the air of and/or recommendations regarding submit comments on or before February quality of any State.’’ This information proposed actions by the BLM’s Boise, 11, 2021. collection renewal concerns information Twin, Falls, Idaho Falls, and/or Coeur ADDRESSES: Written comments and that is submitted to BOEM under 30 d’Alene Districts and USDA Forest recommendations for the proposed CFR part 550, subpart C, ‘‘Pollution Service units; and any other business information collection request (ICR) Prevention and Control,’’ which that may reasonably come before the should be sent to OMB’s Desk Officer implements section 5(a)(8), and related RAC. Agenda items for the August for the Department of the Interior at notices to lessees and operators (NTLs), meeting will be formalized at the www.reginfo.gov/public/do/PRAMain which clarify and provide additional, conclusion of the April meeting. within 30 days of publication of this nonbinding guidance on aspects of the Final agendas will be posted online 2 notice. Find this ICR by selecting regulations. BOEM uses this information weeks in advance of each meeting at ‘‘Department of the Interior’’ in the to inform its decisions on plan approval, https://www.blm.gov/get-involved/ ‘‘Select Agency’’ pulldown menu under to ensure operations are conducted resource-advisory-council/near-you/ ‘‘Currently under Review’’, clicking the according to all applicable regulations idaho. All meetings are open to the box marked ‘‘Only Show ICR For Public and plan conditions of approval, and to public in their entirety. Public comment Comment’’ near the top left-hand side of inform State and regional planning periods will be held in the afternoon on the resulting web page, and scrolling organizations’ modeling efforts. each meeting day. Depending on the down to OMB Control Number 1010– BOEM prepares an emissions number of persons wishing to speak, 0057. Alternatively, the search function inventory every three years to help and the time available, the time for may be used. Please provide a copy of ensure that its regulations comply with individual comments may be limited. your comments to the BOEM section 5(a)(8) of OCSLA and to Comments can be mailed to: BLM Idaho Information Collection Clearance implement the requirements at 30 CFR State Office; Attn: MJ Byrne; 1387 South Officer, Anna Atkinson, by mail service 550.303(k) and 550.304(g). These Vinnell Way; Boise, ID 83709. All addressed to her at Bureau of Ocean emission inventories provide the comments received will be provided to Energy Management, 45600 Woodland essential input that BOEM needs to the Idaho RAC members. Road, Sterling, Virginia, 20166; or by assess the impacts of OCS oil and gas Before including your address, phone email to [email protected]. activity on the States as mandated by number, email address, or other Please reference OMB Control Number the OCSLA. Also, these inventories personal identifying information in your 1010–0057 in the subject line of your provide the States with essential comments, please be aware that your comments. information needed to perform their entire comment—including your FOR FURTHER INFORMATION CONTACT: To implementation plan demonstrations to personal identifying information—may request additional information about the U.S. Environmental Protection be made publicly available at any time. this ICR, contact Anna Atkinson by Agency (USEPA) and the operators with While you can ask us in your comment email or by telephone at 703–787–1025. essential data for their mandatory to withhold your personal identifying You may also view the ICR at http:// reporting of greenhouse gases to the information from public review, we www.reginfo.gov/public/do/PRAMain. USEPA. cannot guarantee we will be able to do SUPPLEMENTARY INFORMATION: In BOEM began planning for the next so. accordance with the Paperwork emissions inventory, scheduled for (Authority: 43 CFR 1784.4–2) Reduction Act of 1995, BOEM provides calendar year 2021, by issuing NTL No. the general public and other Federal 2020–N03, 2021 OCS Emissions John F. Ruhs, agencies with an opportunity to Inventory—Western Gulf of Mexico Idaho State Director. comment on new, proposed, revised, (GOM) and Adjacent to the North Slope [FR Doc. 2021–00437 Filed 1–11–21; 8:45 am] and continuing collections of Borough of the State of Alaska, on BILLING CODE 4331–11–P information. This helps BOEM assess October 1, 2020. The NTL instructed the impact of the information collection lessees and operators on submitting requirements and minimize the public’s information about their facility DEPARTMENT OF THE INTERIOR reporting burden. It also helps the operations, as required by OCSLA and BOEM’s regulations, through BOEM’s Bureau of Ocean Energy Management public understand BOEM’s information collection requirements and provide the new, web-based emissions reporting requested data in the desired format. tool, the OCS Air Quality System (OCS [OMB Control Number 1010–0057; Docket Abstract: Section 5(a) of the Outer AQS). OCS AQS allows operators to ID: BOEM–2017–0016] Continental Shelf Lands Act (OCSLA), submit their facility activity data Agency Information Collection as amended (43 U.S.C. 1334(a)), electronically into the system, Activities; Pollution Prevention and authorizes the Secretary of the Interior instantaneously calculates monthly and Control (Secretary) to prescribe rules and annual emissions, assures and controls regulations to manage the mineral data quality, generates reports, such as AGENCY: Bureau of Ocean Energy resources of the Outer Continental Shelf emission inventory reports, and creates Management, Interior. (OCS). Such rules and regulations apply data graphics including geographic
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information system (GIS) maps for Form Number: None. regarding this ICR, BOEM recalculated operators and BOEM. Type of Review: Extension of a its estimated information collection During previous emission inventories, currently approved collection. burden hours per OCS facility and BOEM used the Gulfwide Offshore Respondents/Affected Public: concluded that an increase of 20 hours Activity Data System (GOADS) software Potential respondents comprise Federal per facility was warranted based, in to collect the necessary emissions data OCS oil and gas or sulfur lessees and part, on industry feedback to account for from lessees and operators. This operators and States. reporting responsibilities for certain software is outdated and resides on a Total Estimated Number of Annual drilling rig and construction vessel platform that BOEM is no longer able to Respondents: 807. emissions. This recalculation resulted in utilize satisfactorily. Unlike GOADS, Respondent’s Obligation: Mandatory an increase of 15,880 burden hours over OCS AQS makes it easy for users to or required to obtain or retain a benefit. OMB’s currently approved 35,200 enter activity data, calculate emissions Frequency: Every three years. burden hours for control number 1010– data in real-time, and leverage built-in Total Estimated Annual Non-hour 0057. The following table details the validation features to quality check Burden Cost: None. individual BOEM information calculations prior to submission. Estimated Reporting and collections under control number 1010– Title of Collection: 30 CFR part 550, Recordkeeping Hour Burden: BOEM 0057 and respective hour burden subpart C, Pollution Prevention and estimates the annual burden for this estimates for this ICR. Any changes to Control. collection to be 51,080 hours. In view of the annual burden hours compared with OMB Control Number: 1010–0057. industry comment to the 60-day notice the already-approved IC are bolded.
BURDEN TABLE
Citation 30 CFR 550 Annual subpart C Reporting and recordkeeping Hour Average number of burden and related requirement burden annual responses hours NTL(s)
Facilities described in new or revised EP or DPP
303; 304(a), (f)...... Submit, modify, or revise Exploration Burden covered under 1010–0151 (30 0 Plans and Development and Produc- CFR Part 550, Subpart B). tion Plans; submit information required under 30 CFR Part 550, Subpart B.
303(k); 304(a), (g); NTL ...... Collect and report (in manner specified) 64 hrs per facility .... 794 facilities ...... 50,816 air quality emissions related data (such as facility, equipment, fuel usage, and other activity information) during each specified calendar year for input into BOEM’s impacts assess- ments, and State and regional plan- ning organizations’ modeling through specified software. (NTL OCS Emis- sions Inventory).
303(l); 304(h) ...... Collect and submit (in manner specified) 8 ...... 1 submission ...... 8 meteorological data (not routinely col- lected); emission data for existing fa- cilities to a State..
Subtotal ...... 795 responses ...... 50,824.
Existing Facilities
304(a), (f) ...... Affected State may submit request, with 16 ...... 5 requests ...... 80 supporting information to BOEM, for basic emission data from existing fa- cilities to update State’s emission in- ventory.
304(e)(2) ...... Submit compliance schedule for applica- 40 ...... 1 schedule ...... 40 tion of best available control tech- nology (BACT).
304(e)(2) ...... Apply for suspension of operations ...... Burden covered under BSEE 1014–0022 0 (30 CFR 250.174).
304(f) ...... Submit information to demonstrate that 16 ...... 1 submission ...... 16 exempt facility is not significantly af- fecting air quality of onshore area of a State. Submit additional information to determine if controls are required..
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BURDEN TABLE—Continued
Citation 30 CFR 550 Annual subpart C Reporting and recordkeeping Hour Average number of burden and related requirement burden annual responses hours NTL(s)
Subtotal ...... 7 responses ...... 136.
General
303–304 ...... Departure and alternative compliance 24 ...... 5 requests ...... 120 (as cited in 550.142) requests from 303 and 304 not specifically covered elsewhere in subpart C regulations.
Subtotal ...... 5 responses ...... 120.
Total Burden ...... 807 responses ...... 51,080
BOEM issued a Federal Register of facility in BOEM’s regulation and the definition of ‘‘facility’’ in 30 CFR notice with a 60-day public comment recently updated plan review process, 550.302 because, when underway, the period soliciting comments on this which includes drilling rig emissions rig or vessel is not attached to the proposed ICR, which was published on when the rig is attached to the seabed seabed. Therefore, according to OOC, August 10, 2020 (85 FR 48261). The and construction vessel emissions when the rig or vessel does not fall under Offshore Operators Committee (OOC) the vessel is engaged in construction. BOEM’s OCSLA authority. submitted the only comments. This Upon further review, BOEM BOEM Response: BOEM requires the organization commented on the burden acknowledges that there will be reporting of data from facilities as estimates and OCS AQS functionality. additional burden hours for reporting defined in its regulations, which Based on OOC’s input, BOEM updated emissions from these drilling rigs and includes drilling rigs attached to the OCS AQS to address the system’s construction vessels. BOEM will seabed and construction vessels engaged technical issues and modified the simplify the reporting of drilling rig data in construction. BOEM will not require burden estimates. in OCS AQS by including a look up the reporting of emissions when these The OOC comments and BOEM’s table for horsepower ratings, so that the sources are otherwise underway within responses are summarized below. For operator needs to input only fuel 25 miles of a facility. additional details, please review the throughput and total hours of drilling. Comment: Regarding potential comment and responses by searching for Moreover, BOEM notes that reporting changes to reporting frequencies, OOC OMB Control Number 1010–0057 on information on construction vessels will stated, ‘‘It is unclear if the 3-year regsinfo.gov. not be an altogether new burden reporting frequency will change with Comment: Regarding the reporting of because, during the plan review process, the implementation of AQS. For non-platform data, OOC stated, some construction vessels are subject to example, will operators be required to submit monthly data on an ongoing ‘‘Historically, collection of non-platform a standard condition of approval that air emission data was the responsibility basis? If that is the case, then the requires submission of fuel throughput of BOEM. By shifting the responsibility estimated burden will increase compliance verification to BSEE. This of collecting and reporting non-platform substantially, at least by a factor of 3 current burden is included in OMB source data to operators, BOEM is because reporting will no longer be Control Number 1010–0151. increasing the burden of reporting. For required every 3 years. If this is the example, the Burden Table included in The current emissions collection and intent of the agency, then a new burden the Notice of Information Collection reporting burden is 44 hours per facility estimate must be completed prior to estimates 44 hours per facility to collect for platform sources. This burden will implementation of the new system.’’ and report emissions data. As described remain the same for the first year for BOEM Response: BOEM intends to in the attached comments, we estimate these sources (with a chance of collect emissions data roughly every that for drilling rigs alone (exclusive of decreasing in three years due to the three years. However, because of the platforms and other support vessels) the learning curve of a new reporting tool). delay in development of OCS AQS, estimated reporting burden is 117 hours Assuming one drilling rig and one BOEM is off-cycle; its last emissions per facility.’’ construction vessel per facility, BOEM inventory was in 2017. BOEM is BOEM Response: BOEM requires believes that an additional 20 hours per planning for the next inventory in 2021 emissions reporting from ‘‘facilities,’’ as facility (10 hours per emission source) followed by another one in 2023 in defined in its regulations implementing should be added to the current 44 order to align with USEPA’s emissions its OCSLA authority. The projected burden hours to reflect the new reporting cycle. emissions from these sources are reporting responsibilities. Therefore, Comment: Regarding complexities of reported in the plans review process BOEM is increasing the burdens to 64 reporting flare information, OOC stated and documented in the air quality hours per facility. that the complexity of how flare spreadsheets (BOEM–0138 and BOEM– Comment: It appeared to OOC that emissions data is constructed in OCS 0139), which fall under OMB Control BOEM is requiring the reporting of data AQS raises concerns. Number 1010–0151. from drilling rigs and construction BOEM’s Response: Operators should BOEM would require the operator to vessels underway within 25 miles of a report one flare source per flare using submit activity or emissions data for all facility. OOC indicated that drilling rigs their flare design specifications from the facilities corresponding to the definition and vessels underway do not meet the manufacturer for the smoke condition
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and total volume flared (including pilot Comment: Regarding file naming Under OMB’s governing regulations, light). BOEM will clarify this in the conventions associated with OCS AQS’s BOEM seeks public comments on this updated OCS AQS user’s manual. This import and export functions, OOC proposed ICR. BOEM is especially guidance is consistent with the 2017 suggested enhancements to OCS AQS to interested in comment addressing the emissions inventory collection and does allow users to define file names during following issues: (1) Is the collection not affect the burden hours. data import and export to reduce burden necessary to the proper functions of Comment: Regarding Oil and Gas and improve system functionality. BOEM; (2) what can BOEM do to ensure Operations Report reconciliation, OOC BOEM’s Response: All supported this information will be processed and stated that those reports should not be browsers (Firefox, Chrome, Edge) used in a timely manner; (3) is the utilized for emissions calculations or provide this option for the user. By estimate of burden accurate; (4) how emissions data quality assurance or default, this option is usually set to the might BOEM enhance the quality, control because the accounting Downloads folder. However, there is an utility, and clarity of the information to standards and requirements applicable option to have the application ask to the reports do not yield technically be collected; and (5) how might BOEM where to save the file, which then minimize the burden of this collection correct emissions estimates. allows the user to rename the file during on the respondents, including BOEM’s Response: Oil and Gas the operation. The browser options are minimizing the burden through the use Operations Reports were mentioned in beyond the control of the OCS AQS of information technology? the OCS AQS training guide, while the software. The updated user’s manual tool was under development, because will provide additional guidance. Comments that you submit in BOEM is uploading these reports into Comment: Regarding the 2021 initial response to this notice are a matter of OCS AQS to reconcile volumes vented inventory using OCS AQS and the public record. BOEM will include or and flared. It was a reminder to transfer of GOADS data, OOC said it is summarize each comment in its request operators to ensure consistency in unclear what GOADS data from the to OMB for approval of this ICR. You reporting, not an indication that report 2017 inventory (the last reporting year should be aware that your entire data was to be used in calculating or using GOADS) will be transferred for comment—including your address, reporting emissions in OCS AQS. the initial OCS AQS inventory in 2021. phone number, email address, or other Comment: Regarding OCS AQS’s Historical activity data does not need to quality assurance and control (QA/QC) personally identifying information— be included, but all historical may be made publicly available at any functionality, OOC indicated that the descriptive, static data should be functionality could be streamlined to time. In order for BOEM to withhold transferred to minimize company improve system effectiveness and your personally identifiable information burden to populate. reduce burden. from disclosure, you must identify any BOEM’s Response: BOEM has BOEM’s Response: As with GOADS, information contained in your comment updated OCS AQS’s QA/QC operators will receive all static data for that, if released, would clearly functionality to support the requested platform sources from the past constitute an unwarranted invasion of performance improvements. inventory (in this case, 2017), including your personal privacy. You must also Specifically, when a user selects the complex and structure identification briefly describe any possible harmful and emission sources data. As option to submit an emissions consequences that disclosure of your commented, activity data such as inventory, a QA/QC check is information would cause, such as throughput and hours of operation are automatically executed against that embarrassment, injury, or other harm. not carried forward as this information inventory. If any QA/QC issues are While you can ask BOEM in your detected, the user is notified and is expected to change year to year. Operators should review the static data comment to withhold your personally provided with a spreadsheet detailing identifiable information from public the specific issues that were identified to ensure its accuracy before entering any activity data. review, BOEM cannot guarantee that it by the check. This spreadsheet can be will be able to do so. downloaded from OCS AQS. The user’s Comment: Regarding clarification on manual is being updated to reflect this reporting storage tank emissions, OOC BOEM protects proprietary change. stated, ‘‘Reporting of data to estimate information in accordance with the Comment: Regarding confidentiality storage tank emissions is appropriate Freedom of Information Act (5 U.S.C. of data and defined user roles, OOC and necessary. However, changes to the 552), the Department of the Interior’s indicated that BOEM should clarify and types of storage data and the implementing regulations (43 CFR part ensure controls are integrated into OCS calculations within AQS would reduce 2), and BOEM’s regulations at 30 CFR AQS so that data remains confidential burden.’’ 550.197. and available only to the organization BOEM’s Response: As with GOADS, An agency may not conduct or reporting the data. BOEM will continue to require the sponsor, and a person is not required to BOEM’s Response: BOEM agrees that reporting of crude oil storage tanks, but respond to, a collection of information only an operator’s designated not other types of storage tanks. This is representatives or agent should be able consistent with the reporting unless it displays a currently valid OMB to access data for an assigned facility requirements in the plan review process control number. during the inventory reporting year. on the air quality spreadsheets. The authority for this action is the Operators and the public will be able to In addition to these comments, OOC Paperwork Reduction Act of 1995 (44 access the results of the final, historical pointed out several technical errors with U.S.C. 3501 et seq.). inventory for all facilities as BOEM has OCS AQS and other issues needing always made this data publicly available further clarification. BOEM appreciates Deanna Meyer-Pietruszka, and plans to continue doing so. The the technical comments and Chief, Office of Policy, Regulation, and publicly available results of the observations, and is working with its Analysis. inventory will not include any contractors to update OCS AQS and the [FR Doc. 2021–00382 Filed 1–11–21; 8:45 am] confidential business information. user’s manual, as necessary. BILLING CODE 4310–MR–P
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INTERNATIONAL TRADE (19 CFR part 201), and part 207, upon the Commission’s procedures with COMMISSION subparts A, D, E, and F (19 CFR part respect to filings. 207). In accordance with sections 201.16(c) [Investigation Nos. 701–TA–522 and 731– Please note the Secretary’s Office will and 207.3 of the rules, each document TA–1258 (Review)] accept only electronic filings at this filed by a party to the reviews must be Passenger Vehicle and Light Truck time. Filings must be made through the served on all other parties to the review Tires From China; Scheduling of Commission’s Electronic Document (as identified by either the public or BPI Expedited Five-Year Reviews Information System (EDIS, https:// service list), and a certificate of service edis.usitc.gov). No in-person paper- must be timely filed. The Secretary will AGENCY: United States International based filings or paper copies of any not accept a document for filing without Trade Commission. electronic filings will be accepted until a certificate of service. ACTION: Notice. further notice. Determination.—The Commission has Staff report.—A staff report determined these reviews are SUMMARY: The Commission hereby gives containing information concerning the extraordinarily complicated and notice of the scheduling of expedited subject matter of the reviews will be therefore has determined to exercise its reviews pursuant to the Tariff Act of placed in the nonpublic record on authority to extend the review period by 1930 (‘‘the Act’’) to determine whether January 8, 2021, and made available to up to 90 days pursuant to 19 U.S.C. revocation of the countervailing and persons on the Administrative 1675(c)(5)(B). antidumping duty orders on passenger Protective Order service list for these vehicle and light truck tires from China Authority: These reviews are being reviews. A public version will be issued conducted under authority of title VII of the would be likely to lead to continuation thereafter, pursuant to section or recurrence of material injury within Tariff Act of 1930; this notice is published 207.62(d)(4) of the Commission’s rules. pursuant to section 207.62 of the a reasonably foreseeable time. Written submissions.—As provided in Commission’s rules. DATES: October 5, 2020. section 207.62(d) of the Commission’s By order of the Commission. FOR FURTHER INFORMATION CONTACT: rules, interested parties that are parties Alejandro Orozco (202–205–3177), to the reviews and that have provided Issued: January 7, 2021. Office of Investigations, U.S. individually adequate responses to the Lisa Barton, International Trade Commission, 500 E notice of institution,2 and any party Secretary to the Commission. Street SW, Washington, DC 20436. other than an interested party to the [FR Doc. 2021–00435 Filed 1–11–21; 8:45 am] Hearing-impaired persons can obtain reviews may file written comments with BILLING CODE 7020–02–P information on this matter by contacting the Secretary on what determination the the Commission’s TDD terminal on 202– Commission should reach in the 205–1810. Persons with mobility reviews. Comments are due on or before DEPARTMENT OF JUSTICE impairments who will need special January 14, 2021 and may not contain assistance in gaining access to the new factual information. Any person Drug Enforcement Administration Commission should contact the Office that is neither a party to the five-year [Docket No. DEA–763] of the Secretary at 202–205–2000. reviews nor an interested party may General information concerning the submit a brief written statement (which Importer of Controlled Substances Commission may also be obtained by shall not contain any new factual Application: Medi-Physics, Inc. dba GE accessing its internet server (https:// information) pertinent to the reviews by Healthcare www.usitc.gov). The public record for January 14, 2021. However, should the AGENCY: these reviews may be viewed on the Department of Commerce (‘‘Commerce’’) Drug Enforcement Commission’s electronic docket (EDIS) extend the time limit for its completion Administration, Justice. at https://edis.usitc.gov. of the final results of its reviews, the ACTION: Notice of application. deadline for comments (which may not SUPPLEMENTARY INFORMATION: SUMMARY: Medi-Physics, Inc. dba GE contain new factual information) on Background.—On October 5, 2020, the Healthcare has applied to be registered Commerce’s final results is three Commission determined that the as an importer of basic class(es) of business days after the issuance of domestic interested party group controlled substance(s). Refer to Commerce’s results. If comments response to its notice of institution (85 Supplemental Information listed below contain business proprietary FR 39581, July 1, 2020) of the subject for further drug information. information (BPI), they must conform five-year reviews was adequate and that DATES: Registered bulk manufacturers of the respondent interested party group with the requirements of sections 201.6, 207.3, and 207.7 of the Commission’s the affected basic class(es), and response was inadequate. The applicants therefore, may file written Commission did not find any other rules. The Commission’s Handbook on Filing Procedures, available on the comments on or objections to the circumstances that would warrant issuance of the proposed registration on conducting full reviews.1 Accordingly, Commission’s website at https:// _ or before February 11, 2021. Such the Commission determined that it www.usitc.gov/documents/handbook on_filing_procedures.pdf, elaborates persons may also file a written request would conduct expedited reviews for a hearing on the application on or pursuant to section 751(c)(3) of the before February 11, 2021. Tariff Act of 1930 (19 U.S.C. 1675(c)(3)). 2 The Commission has found the response to its notice of institution filed by the United Steel, Paper ADDRESSES: Written comments should For further information concerning and Forestry, Rubber, Manufacturing, Energy, the conduct of these reviews and rules be sent to: Drug Enforcement Allied Industrial and Service Workers International Administration, Attention: DEA Federal of general application, consult the Union (‘‘domestic interested party’’), which Commission’s Rules of Practice and represents workers at five domestic producers of Register Representative/DPW, 8701 Procedure, part 201, subparts A and B PVLT tires: Cooper Tire & Rubber Company, the Morrissette Drive, Springfield, Virginia Goodyear Tire & Rubber Company, Michelin North 22152. All requests for a hearing must America Inc., Sumitomo Rubber USA, LLC, and the 1 A record of the Commissioners’ votes is Yokohama Rubber Co., Ltd., to be adequate. be sent to: Drug Enforcement available from the Office of the Secretary and at the Comments from other interested parties will not be Administration, Attn: Administrator, Commission’s website. accepted (see 19 CFR 207.62(d)(2)). 8701 Morrissette Drive, Springfield,
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Virginia 22152. All requests for a DEPARTMENT OF JUSTICE The company plans to manufacture hearing should also be sent to: (1) Drug bulk active pharmaceutical ingredients Enforcement Administration, Attn: Drug Enforcement Administration (API) for distribution to its customers. In Hearing Clerk/OALJ, 8701 Morrissette [Docket No. DEA–756] reference to the drug code 7370 Drive, Springfield, Virginia 22152; and (Tetrahydrocannabinols), the company (2) Drug Enforcement Administration, Bulk Manufacturer of Controlled plans to bulk manufacture as synthetic. Attn: DEA Federal Register Substances Application: Cedarburg No other activity for this drug code is Representative/DPW, 8701 Morrissette Pharmaceuticals authorized for this registration. Drive, Springfield, Virginia 22152. AGENCY: Drug Enforcement William T. McDermott, SUPPLEMENTARY INFORMATION: In Administration, Justice. Assistant Administrator. accordance with 21 CFR 1301.34(a), this ACTION: Notice of application. [FR Doc. 2021–00351 Filed 1–11–21; 8:45 am] is notice that on December 15, 2020, BILLING CODE P SUMMARY: Medi-Physics, Inc. dba GE Healthcare, Cedarburg Pharmaceuticals has applied to be registered as a bulk 3350 North Ridge Avenue, Arlington manufacturer of basic class(es) of Heights, Illinois 60004–1412, applied to DEPARTMENT OF JUSTICE controlled substance(s). Refer to be registered as an importer of the Supplemental Information listed below Drug Enforcement Administration following basic class(es) of controlled for further drug information. substance(s): DATES: Registered bulk manufacturers of [Docket No. DEA–765] the affected basic class(es), and Drug Bulk Manufacturer of Controlled Controlled substance Schedule applicants therefore, may file written code Substances Application: Organix, Inc. comments on or objections to the Cocaine ...... 9041 II issuance of the proposed registration on AGENCY: Drug Enforcement or before March 15, 2021. Such persons Administration, Justice. The company plans to import small may also file a written request for a ACTION: Notice of application. quantities of Ioflupane, in the form of hearing on the application on or before SUMMARY: Organix, Inc. has applied to three separate analogues of Cocaine, to March 15, 2021. ADDRESSES: Written comments should be registered as a bulk manufacturer of validate production and quality control basic class(es) of controlled systems, for a reference standard, and be sent to: Drug Enforcement Administration, Attention: DEA Federal substance(s). Refer to Supplemental for producing material for a future Information listed below for further investigational new drug submission. Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia drug information. Supplies of this particular controlled 22152. DATES: Registered bulk manufacturers of substance are not available in the form the affected basic class(es), and SUPPLEMENTARY INFORMATION: In needed within the current domestic applicants therefore, may file written accordance with 21 CFR 1301.33(a), this supply of the United States. No other comments on or objections to the is notice that on October 16, 2020, activity for this drug code is authorized issuance of the proposed registration on Cedarburg Pharmaceuticals 870 Badger for this registration. or before March 15, 2021. Such persons Circle, Grafton, Wisconsin 53024, may also file a written request for a Approval of permit applications will applied to be registered as a bulk hearing on the application on or before occur only when the registrant’s manufacturer of the following basic March 15, 2021. business activity is consistent with what class(es) of controlled substance(s): is authorized under 21 U.S.C. 952(a)(2). ADDRESSES: Written comments should Authorization will not extend to the be sent to: Drug Enforcement Controlled substance Drug Schedule import of Food and Drug code Administration, Attention: DEA Federal Administration-approved or non- Register Representative/DPW, 8701 approved finished dosage forms for Tetrahydrocannabinols 7370 I Morrissette Drive, Springfield, Virginia 3, 4- 7405 I 22152. commercial sale. Methylenedioxymeth- SUPPLEMENTARY INFORMATION: In William T. McDermott, amphetamine. Dimethyltryptamine ...... 7435 I accordance with 21 CFR 1301.33(a), this Assistant Administrator. Psilocybin ...... 7437 I is notice that on September 22, 2020, [FR Doc. 2021–00353 Filed 1–11–21; 8:45 am] Methylphenidate ...... 1724 II Organix, Inc., 240 Salem Street, BILLING CODE P Nabilone ...... 7379 II Woburn, Massachusetts 01801, applied 4-Anilino-N-phenethyl-4- 8333 II to be registered as an bulk manufacturer piperidine (ANPP). Fentanyl ...... 9801 II of the following basic class(es) of controlled substance(s):
Controlled substance Drug code Schedule
Gamma Hydroxybutyric Acid ...... 2010 I Lysergic acid diethylamide ...... 7315 I Marihuana ...... 7360 I Tetrahydrocannabinols ...... 7370 I 5-Methoxy-N-N-dimethyltryptamine ...... 7431 I Bufotenine ...... 7433 I Dimethyltryptamine ...... 7435 I Psilocybin ...... 7437 I Psilocyn ...... 7438 I Heroin ...... 9200 I
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Controlled substance Drug code Schedule
Morphine ...... 9300 II
The company plans to synthesize the SUPPLEMENTARY INFORMATION: In hearing on the application on or before above listed control substances for accordance with 21 CFR 1301.34(a), this March 15, 2021. distribution to its customers. In is notice that on August 25, 2020, S&B ADDRESSES: Written comments should reference to drug codes 7360 Pharma LLC, dba: Norac Pharma, 405 be sent to: Drug Enforcement (Marihuana) and 7370 South Motor Avenue, Azusa, California Administration, Attention: DEA Federal (Tetrahydrocannabinol), the company 91702, applied to be registered as an Register Representative/DPW, 8701 plans to bulk manufacture these drugs importer of the following basic class(es) Morrissette Drive, Springfield, Virginia as synthetics. No other activity for these of controlled substance(s): 22152. drug codes are authorized for this registration. Drug SUPPLEMENTARY INFORMATION: In Controlled substance code Schedule accordance with 21 CFR 1301.33(a), this William T. McDermott, is notice that on December 9, 2020, Assistant Administrator. 4-Anilino-N-phenethyl-4- 8333 II Siegfried USA, LLC, 33 Industrial Park piperidine (ANPP). Road, Pennsville, New Jersey 08070– [FR Doc. 2021–00356 Filed 1–11–21; 8:45 am] Tapentadol ...... 9780 II BILLING CODE P 3244, applied to be registered as an bulk The company plans to import the manufacturer of the following basic listed controlled substances in bulk for class(es) of controlled substance(s): DEPARTMENT OF JUSTICE the manufacture of controlled Controlled substance Drug Schedule Drug Enforcement Administration substances for distribution to its code customers. No other activity for these [Docket No. DEA–762] drug codes is authorized for this Gamma Hydroxybutyric 2010 I registration. Acid. Importer of Controlled Substances Approval of permit applications will Amphetamine ...... 1100 II Application: S&B Pharma LLC dba occur only when the registrant’s Methylphenidate ...... 1724 II Norac Pharma business activity is consistent with what Amobarbital ...... 2125 II Pentobarbital ...... 2270 II is authorized under 21 U.S.C. 952(a)(2). Secobarbital ...... 2315 II AGENCY: Drug Enforcement Authorization will not extend to the Administration, Justice. Codeine ...... 9050 II import of Food and Drug Oxycodone ...... 9143 II ACTION: Notice of application. Administration-approved or non- Hydromorphone ...... 9150 II approved finished dosage forms for Hydrocodone ...... 9193 II SUMMARY: S&B Pharma LLC, dba: Norac commercial sale. Methadone ...... 9250 II Pharma has applied to be registered as Methadone intermediate 9254 II an importer of basic class(es) of William T. McDermott, Morphine ...... 9300 II controlled substance(s). Refer to Assistant Administrator. Oripavine ...... 9330 II Supplemental Information listed below [FR Doc. 2021–00326 Filed 1–11–21; 8:45 am] Thebaine ...... 9333 II for further drug information. BILLING CODE P Opium tincture ...... 9630 II Oxymorphone ...... 9652 II DATES: Registered bulk manufacturers of Tapentadol ...... 9780 II the affected basic class(es), and DEPARTMENT OF JUSTICE applicants therefore, may file written The company plans to bulk comments on or objections to the Drug Enforcement Administration manufacture the listed controlled issuance of the proposed registration on substances in bulk for sale to its or before February 11, 2021. Such [Docket No. DEA–764] customers. No other activities for these persons may also file a written request Bulk Manufacturer of Controlled drug codes are authorized for this for a hearing on the application on or registration. before February 11, 2021. Substances Application: Siegfried USA, LLC ADDRESSES: Written comments should William T. McDermott, be sent to: Drug Enforcement AGENCY: Drug Enforcement Assistant Administrator. Administration, Attention: DEA Federal Administration, Justice. [FR Doc. 2021–00354 Filed 1–11–21; 8:45 am] Register Representative/DPW, 8701 ACTION: Notice of application. BILLING CODE P Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing must SUMMARY: Siegfried USA, LLC has be sent to: Drug Enforcement applied to be registered as a bulk DEPARTMENT OF JUSTICE Administration, Attn: Administrator, manufacturer of basic class(es) of 8701 Morrissette Drive, Springfield, controlled substance(s). Refer to Drug Enforcement Administration Virginia 22152. All requests for a Supplemental Information listed below [Docket No. DEA–760] hearing should also be sent to: (1) Drug for further drug information. Enforcement Administration, Attn: DATES: Registered bulk manufacturers of Bulk Manufacturer of Controlled Hearing Clerk/OALJ, 8701 Morrissette the affected basic class(es), and Substances Application: Bulk Drive, Springfield, Virginia 22152; and applicants therefore, may file written Manufacturer of Marihuana: Natural (2) Drug Enforcement Administration, comments on or objections to the Fulfillment LLC Attn: DEA Federal Register issuance of the proposed registration on Representative/DPW, 8701 Morrissette or before March 15, 2021. Such persons AGENCY: Drug Enforcement Drive, Springfield, Virginia 22152. may also file a written request for a Administration, Justice.
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ACTION: Notice of application. manufacturer of marihuana, the performance research and engineering application will be evaluated under the or research and education (REN) SUMMARY: The Drug Enforcement criteria of 21 U.S.C. 823(a). DEA will networking and networking to support Administration (DEA) is providing conduct this evaluation in the manner science applications. notice of an application it has received described in the rule published at 85 FR from an entity applying to be registered The MAGIC Team, established in 82333 on December 18, 2020, and 2002, provides for information sharing to manufacture in bulk basic class(es) of reflected in DEA regulations at 21 CFR controlled substances listed in schedule among Federal agencies and non- part 1318. Federal participants with interests and I. DEA intends to evaluate this and other In accordance with 21 CFR pending applications according to its responsibility for middleware, Grid, and 1301.33(a), DEA is providing notice that cloud projects; individuals involved in regulations governing the program of on December 1, 2020, Natural growing marihuana for scientific and middleware, Grid, and cloud research Fulfillment LLC, 5495 North Academy and infrastructure; individuals involved medical research under DEA Boulevard, Colorado Springs, Colorado registration. in implementing or operating Grids and 80918, applied to be registered as a bulk clouds; and users of Grids, clouds and DATES: manufacturer of the following basic Registered bulk manufacturers of middleware. The JET and MAGIC Team class(es) of controlled substances: the affected basic class(es), and meetings are hosted by the NITRD NCO applicants therefor, may file written with WebEx and/or teleconference comments on or objections to the Controlled Drug Schedule participation available for each meeting. issuance of the proposed registration on substance code Public Meetings Website: The JET and or before March 15, 2021. Marihuana ...... 7360 I ADDRESSES: Written comments should MAGIC Team meetings are scheduled be sent to: Drug Enforcement 30 days in advance of the meeting date. Administration, Attention: DEA Federal William T. McDermott, Please reference the NITRD Public Register Representative/DPW 8701 Assistant Administrator. Meetings web page (https:// Morrissette Drive, Springfield, Virginia [FR Doc. 2021–00327 Filed 1–11–21; 8:45 am] www.nitrd.gov/meetings/public/) for 22152. To ensure proper handling of BILLING CODE P each Team’s upcoming meeting dates comments, please reference Docket and times, in addition to the agendas, No—DEA–760 in all correspondence, minutes, and other meeting materials including attachments. NATIONAL SCIENCE FOUNDATION and information. SUPPLEMENTARY INFORMATION: The Public Meetings Mailing Lists: Controlled Substances Act (CSA) Notice of Open to the Public Meetings Members of the public may be added to prohibits the cultivation and of the Networking and Information the mailing lists by sending their full distribution of marihuana except by Technology Research and name and email address to jet-signup@ persons who are registered under the Development (NITRD) Program nitrd.gov for JET and magic-signup@ CSA to do so for lawful purposes. In AGENCY: Networking and Information nitrd.gov for MAGIC, with the subject accordance with the purposes specified Technology Research and Development line: ‘‘Add to JET’’ and/or ‘‘Add to in 21 CFR 1301.33(a), DEA is providing (NITRD) National Coordination Office MAGIC.’’ Meeting notifications and notice that the entity identified below (NCO), National Science Foundation. information are shared via the mailing has applied for registration as a bulk lists. ACTION: Notice of public meetings. manufacturer of schedule I controlled Public Comments: The government substances. In response, registered bulk SUMMARY: The NITRD Program holds seeks individual input; attendees/ manufacturers of the affected basic meetings that are open to the public to participants may provide individual class(es), and applicants therefor, may attend. The Joint Engineering Team advice only. Members of the public are file written comments on or objections (JET) and Middleware And Grid welcome to submit their comments for of the requested registration, as Interagency Coordination (MAGIC) JET to [email protected] and for provided in this notice. This notice does Team provide an opportunity for the MAGIC to [email protected]. not constitute any evaluation or public to engage and participate in Please note that under the provisions of determination of the merits of the information sharing with Federal the Federal Advisory Committee Act application submitted. agencies. The JET and MAGIC Teams (FACA), all public comments and/or The applicant plans to manufacture report to the NITRD Large Scale presentations will be treated as public bulk active pharmaceutical ingredients Networking (LSN) Interagency Working documents and may be made available (APIs) for product development and Group (IWG). to the public via the JET and MAGIC distribution to DEA registered DATES: January 2021–December 2021. web pages. researchers. If the application for registration is granted, the registrant FOR FURTHER INFORMATION CONTACT: Reference Website: NITRD website at: would not be authorized to conduct NITRD NCO at [email protected]. http://www.nitrd.gov/. other activity under this registration Individuals who use a Submitted by the National Science aside from those coincident activities telecommunications device for the deaf Foundation in support of the specifically authorized by DEA (TDD) may call the Federal Information Networking and Information regulations. DEA will evaluate the Relay Service (FIRS) at 1–800–877–8339 Technology Research and Development application for registration as a bulk between 8 a.m. and 8 p.m., Eastern time, (NITRD) National Coordination Office manufacturer for compliance with all Monday through Friday. (NCO) on January 6, 2021. applicable laws, treaties, and SUPPLEMENTARY INFORMATION: The Joint regulations and to ensure adequate Engineering Team (JET), established in Suzanne H. Plimpton, safeguards against diversion are in 1997, provides an opportunity for Reports Clearance Officer, National Science place. information sharing among Federal Foundation. As this applicant has applied to agencies and non-Federal participants [FR Doc. 2021–00365 Filed 1–11–21; 8:45 am] become registered as a bulk who have an interest in high- BILLING CODE 7555–01–P
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NUCLEAR REGULATORY I. Obtaining Information and submissions available to the public or COMMISSION Submitting Comments entering the comment into ADAMS. [Docket No. 50–316; NRC–2021–0019] A. Obtaining Information II. Introduction The NRC is considering issuance of an Indiana Michigan Power Company; Please refer to Docket ID NRC–2021– amendment to Renewed Facility Donald C. Cook Nuclear Plant, Unit No. 0019 when contacting the NRC about Operating License No. DPR–74, issued 2 the availability of information for this action. You may obtain publicly to I&M, for operation of the CNP–2, AGENCY: Nuclear Regulatory available information related to this located in Berrien County, Michigan. Commission. action by any of the following methods: The proposed amendment would ACTION: License amendment request; • Federal Rulemaking Website: Go to revise the CNP–2 TSs to allow a one- opportunity to provide comment, https://www.regulations.gov and search time change to permit the current request a hearing, and petition for leave for Docket ID NRC–2021–0019. integrated leak rate test interval of 15 to intervene. • NRC’s Agencywide Documents years to be extended by approximately Access and Management System 18 months to no later than the plant SUMMARY: The U.S. Nuclear Regulatory (ADAMS): You may obtain publicly startup after the fall 2022 refueling Commission (NRC) is considering available documents online in the outage. issuance of an amendment to Renewed ADAMS Public Documents collection at Before any issuance of the proposed Facility Operating License No. DPR–74, https://www.nrc.gov/reading-rm/ license amendment, the NRC will need issued to Indiana Michigan Power adams.html. To begin the search, select to make the findings required by the Company (I&M), for operation of the ‘‘Begin Web-based ADAMS Search.’’ For Atomic Energy Act of 1954, as amended Donald C. Cook Nuclear Plant, Unit No. problems with ADAMS, please contact (the Act), and NRC’s regulations. The NRC has made a proposed 2 (CNP–2). The proposed amendment the NRC’s Public Document Room (PDR) determination that the license would revise the CNP–2 technical reference staff at 1–800–397–4209, 301– amendment request involves no specifications (TSs) to allow a one-time 415–4737, or by email to pdr.resource@ significant hazards consideration. Under change to permit the current integrated nrc.gov. The application for amendment the NRC’s regulations in § 50.92 of title leak rate test interval of 15 years to be dated December 14, 2020, is available in 10 of the Code of Federal Regulations extended by approximately 18 months ADAMS under Accession No. (10 CFR), this means that operation of to no later than the plant startup after ML20363A011. the facility in accordance with the the fall 2022 refueling outage. • Attention: The PDR, where you may proposed amendment would not (1) DATES: Submit comments by February examine and order copies of public involve a significant increase in the 11, 2021. Requests for a hearing or documents, is currently closed. You probability or consequences of an petitions for leave to intervene must be may submit your request to the PDR via accident previously evaluated; or (2) filed by March 15, 2021. email at [email protected] or call create the possibility of a new or ADDRESSES: You may submit comments 1–800–397–4209 or 301–415–4737, different kind of accident from any by any of the following methods; between 8:00 a.m. and 4:00 p.m. (EST), accident previously evaluated; or (3) however, the NRC encourages electronic Monday through Friday, except Federal involve a significant reduction in a comment submission through the holidays. Federal Rulemaking website: margin of safety. As required by 10 CFR • Federal Rulemaking Website: Go to B. Submitting Comments 50.91(a), the licensee has provided its analysis of the issue of no significant https://www.regulations.gov/ and search The NRC encourages electronic hazards consideration, which is for Docket ID NRC–2021–0019. Address comment submission through the presented below: questions about Docket IDs in Federal Rulemaking website (https:// Regulations.gov to Jennifer Borges; www.regulations.gov). Please include 1. Does the proposed change involve a telephone: 301–287–9127; email: Docket ID NRC–2021–0019 in your significant increase in the probability or [email protected]. For technical comment submission. consequences of an accident previously questions, contact the individual listed evaluated? The NRC cautions you not to include Response: No. in the FOR FURTHER INFORMATION identifying or contact information that The proposed amendment involves CONTACT section of this document. you do not want to be publicly • changes to the [CNP–2] containment leakage Mail comments to: Office of disclosed in your comment submission. rate testing program. The proposed Administration, Mail Stop: TWFN–7– The NRC will post all comment amendment does not involve a physical A60M, U.S. Nuclear Regulatory submissions at https:// change to the plant or a change in the manner Commission, Washington, DC 20555– www.regulations.gov as well as enter the in which the plant is operated or controlled. 0001, ATTN: Program Management, comment submissions into ADAMS. The primary containment function is to Announcements and Editing Staff. The NRC does not routinely edit provide an essentially leak-tight barrier against the uncontrolled release of For additional direction on obtaining comment submissions to remove information and submitting comments, radioactivity to the environment for identifying or contact information. postulated accidents. As such, the see ‘‘Obtaining Information and If you are requesting or aggregating containment itself, and the testing Submitting Comments’’ in the comments from other persons for requirements to periodically demonstrate the SUPPLEMENTARY INFORMATION section of submission to the NRC, then you should integrity of containment, exist to ensure the this document. inform those persons not to include plant’s ability to mitigate the consequences of FOR FURTHER INFORMATION CONTACT: identifying or contact information that an accident and do not involve any accident Scott P. Wall, Office of Nuclear Reactor they do not want to be publicly precursors or initiators. Therefore, the probability of occurrence of an accident Regulation, U.S. Nuclear Regulatory disclosed in their comment submission. Commission, Washington, DC 20555– previously evaluated is not significantly Your request should state that the NRC increased by the proposed amendment. 0001; telephone: 301–415–2855; email: does not routinely edit comment The proposed amendment modifies TS [email protected]. submissions to remove such information 5.5.14, Containment Leakage Rate Testing SUPPLEMENTARY INFORMATION: before making the comment Program, to allow for a one-time extension to
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the containment Type A test interval. The assessment using the current [CNP–2] collections/cfr/. If a petition is filed, the potential consequences of extending the Probabilistic Risk Analysis model concluded Commission or a presiding officer will containment Type A test interval one time by that extending the Type A test interval rule on the petition and, if appropriate, approximately eighteen months have been onetime by approximately eighteen months a notice of a hearing will be issued. evaluated by analyzing the resulting changes results in a small change to the risk profile. As required by 10 CFR 2.309(d) the in risk. The increase in risk in terms of Therefore, the proposed change does not person-rem per year within 50 miles involve a significant reduction in a margin of petition should specifically explain the resulting from design basis accidents was safety. reasons why intervention should be estimated to be acceptably small and permitted with particular reference to determined to be within the guidelines The NRC staff has reviewed the the following general requirements for published in the [NRC] Final Safety licensee’s analysis and, based on this standing: (1) The name, address, and Evaluation for Nuclear Energy Institute (NEI) review, it appears that the three telephone number of the petitioner; (2) Topical Report (TR) 94–01, Revision 3–A. standards of 10 CFR 50.92(c) are the nature of the petitioner’s right to be Additionally, the proposed change maintains satisfied. Therefore, the NRC staff made a party to the proceeding; (3) the defense-in-depth by preserving a reasonable proposes to determine that the license nature and extent of the petitioner’s balance among prevention of core damage, amendment request involves a no prevention of containment failure, and property, financial, or other interest in significant hazards consideration. the proceeding; and (4) the possible consequence mitigation. I&M has determined The NRC is seeking public comments that the increase in conditional containment effect of any decision or order which failure probability due to the proposed on this proposed determination that the may be entered in the proceeding on the change would be very small. Therefore, it is license amendment request involves no petitioner’s interest. concluded that the proposed amendment significant hazards consideration. Any In accordance with 10 CFR 2.309(f), does not involve a significant increase in the comments received within 30 days after the petition must also set forth the probability or consequences of an accident the date of publication of this notice specific contentions that the petitioner previously evaluated. will be considered in making any final seeks to have litigated in the 2. Does the proposed change create the determination. proceeding. Each contention must possibility of a new or different kind of Normally, the Commission will not consist of a specific statement of the accident from any accident previously issue the amendment until the evaluated? issue of law or fact to be raised or Response: No. expiration of 60 days after the date of controverted. In addition, the petitioner The proposed amendment modifies TS publication of this notice. The must provide a brief explanation of the 5.5.14, Containment Leakage Rate Testing Commission may issue the license bases for the contention and a concise Program, to allow for a one-time extension to amendment before expiration of the 60- statement of the alleged facts or expert the containment Type A test interval. day notice period if the Commission opinion that support the contention and Containment, and the testing requirements to concludes the amendment involves no on which the petitioner intends to rely periodically demonstrate the integrity of significant hazards consideration. In in proving the contention at the hearing. containment, exist to ensure the plant’s addition, the Commission may issue the The petitioner must also provide ability to mitigate the consequences of an amendment prior to the expiration of accident and do not involve any accident references to the specific sources and precursors or initiators. The proposed change the 30-day comment period if documents on which the petitioner does not involve a physical change to the circumstances change during the 30-day intends to rely to support its position on plant (i.e., no new or different type of comment period such that failure to act the issue. The petition must include equipment will be installed) or a change to in a timely way would result, for sufficient information to show that a the manner in which the plant is operated or example, in derating or shutdown of the genuine dispute exists with the controlled. Therefore, the proposed change facility. If the Commission takes action applicant or licensee on a material issue does not create the possibility of a new or prior to the expiration of either the of law or fact. Contentions must be different kind of accident from any comment period or the notice period, it limited to matters within the scope of previously evaluated. will publish in the Federal Register a the proceeding. The contention must be 3. Does the proposed change involve a notice of issuance. If the Commission significant reduction in a margin of safety? one that, if proven, would entitle the Response: No. makes a final no significant hazards petitioner to relief. A petitioner who The proposed amendment modifies TS consideration determination, any fails to satisfy the requirements at 10 5.5.14, Containment Leakage Rate Testing hearing will take place after issuance. CFR 2.309(f) with respect to at least one Program, to allow for a one-time extension to The Commission expects that the need contention will not be permitted to the containment Type A test interval. This to take this action will occur very participate as a party. amendment does not alter the manner in infrequently. Those permitted to intervene become which safety limits, limiting safety system parties to the proceeding, subject to any setpoints, or limiting conditions for operation III. Opportunity To Request a Hearing limitations in the order granting leave to are determined. The specific requirements and Petition for Leave To Intervene intervene. Parties have the opportunity and conditions of the containment leakage Within 60 days after the date of rate testing program, as defined in the TS, to participate fully in the conduct of the ensure that the degree of primary publication of this notice, any persons hearing with respect to resolution of containment structural integrity and leak- (petitioner) whose interest may be that party’s admitted contentions, tightness that is considered in the plant’s affected by this action may file a request including the opportunity to present safety analysis is maintained. The overall for a hearing and petition for leave to evidence, consistent with the NRC’s containment leakage rate limit specified by intervene (petition) with respect to the regulations, policies, and procedures. the TS is maintained, and the Type A, Type action. Petitions shall be filed in Petitions must be filed no later than B, and Type C containment leakage tests accordance with the Commission’s 60 days from the date of publication of would be performed at the frequencies ‘‘Agency Rules of Practice and this notice. Petitions and motions for established in accordance with the NRC- Procedure’’ in 10 CFR part 2. Interested leave to file new or amended accepted guidelines of NEI 94–01, Revision 3–A. Containment inspections performed in persons should consult a current copy contentions that are filed after the accordance with other plant programs serve of 10 CFR 2.309. The NRC’s regulations deadline will not be entertained absent to provide a high degree of assurance that are accessible electronically from the a determination by the presiding officer containment would not degrade in a manner NRC Library on the NRC’s website at that the filing demonstrates good cause that is not detectable by a Type A Test. A risk https://www.nrc.gov/reading-rm/doc- by satisfying the three factors in 10 CFR
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2.309(c)(1)(i) through (iii). The petition otherwise participate in the proceeding. has obtained a digital ID certificate and must be filed in accordance with the A limited appearance may be made at a docket has been created, the filing instructions in the ‘‘Electronic any session of the hearing or at any participant can then submit Submissions (E-Filing)’’ section of this prehearing conference, subject to the adjudicatory documents. Submissions document. limits and conditions as may be must be in Portable Document Format If a hearing is requested, and the imposed by the presiding officer. Details (PDF). Additional guidance on PDF Commission has not made a final regarding the opportunity to make a submissions is available on the NRC’s determination on the issue of no limited appearance will be provided by public website at https://www.nrc.gov/ significant hazards consideration, the the presiding officer if such sessions are site-help/electronic-sub-ref-mat.html. A Commission will make a final scheduled. filing is considered complete at the time determination on the issue of no the document is submitted through the IV. Electronic Submissions (E-Filing) significant hazards consideration. The NRC’s E-Filing system. To be timely, an final determination will serve to All documents filed in NRC electronic filing must be submitted to establish when the hearing is held. If the adjudicatory proceedings, including a the E-Filing system no later than 11:59 final determination is that the request for hearing and petition for p.m. Eastern Time on the due date. amendment request involves no leave to intervene (petition), any motion Upon receipt of a transmission, the E- significant hazards consideration, the or other document filed in the Filing system time-stamps the document Commission may issue the amendment proceeding prior to the submission of a and sends the submitter an email notice and make it immediately effective, request for hearing or petition to confirming receipt of the document. The notwithstanding the request for a intervene, and documents filed by E-Filing system also distributes an email hearing. Any hearing would take place interested governmental entities that notice that provides access to the after issuance of the amendment. If the request to participate under 10 CFR document to the NRC’s Office of the final determination is that the 2.315(c), must be filed in accordance General Counsel and any others who amendment request involves a with the NRC’s E-Filing rule (72 FR have advised the Office of the Secretary significant hazards consideration, then 49139; August 28, 2007, as amended at that they wish to participate in the any hearing held would take place 77 FR 46562; August 3, 2012). The E- proceeding, so that the filer need not before the issuance of the amendment Filing process requires participants to serve the document on those unless the Commission finds an submit and serve all adjudicatory participants separately. Therefore, imminent danger to the health or safety documents over the internet, or in some applicants and other participants (or of the public, in which case it will issue cases to mail copies on electronic their counsel or representative) must an appropriate order or rule under 10 storage media. Detailed guidance on apply for and receive a digital ID CFR part 2. making electronic submissions may be certificate before adjudicatory A State, local governmental body, found in the Guidance for Electronic documents are filed so that they can Federally recognized Indian Tribe, or Submissions to the NRC and on the NRC obtain access to the documents via the agency thereof, may submit a petition to website at https://www.nrc.gov/site- E-Filing system. the Commission to participate as a party help/e-submittals.html. Participants A person filing electronically using under 10 CFR 2.309(h)(1). The petition may not submit paper copies of their the NRC’s adjudicatory E-Filing system should state the nature and extent of the filings unless they seek an exemption in may seek assistance by contacting the petitioner’s interest in the proceeding. accordance with the procedures NRC’s Electronic Filing Help Desk The petition should be submitted to the described below. through the ‘‘Contact Us’’ link located Commission no later than 60 days from To comply with the procedural on the NRC’s public website at https:// the date of publication of this notice. requirements of E-Filing, at least 10 www.nrc.gov/site-help/e- The petition must be filed in accordance days prior to the filing deadline, the submittals.html, by email to with the filing instructions in the participant should contact the Office of [email protected], or by a toll- ‘‘Electronic Submissions (E-Filing)’’ the Secretary by email at free call at 1–866–672–7640. The NRC section of this document, and should [email protected], or by telephone Electronic Filing Help Desk is available meet the requirements for petitions set at 301–415–1677, to (1) request a digital between 9 a.m. and 6 p.m., Eastern forth in this section, except that under identification (ID) certificate, which Time, Monday through Friday, 10 CFR 2.309(h)(2) a State, local allows the participant (or its counsel or excluding government holidays. governmental body, or Federally representative) to digitally sign Participants who believe that they recognized Indian Tribe, or agency submissions and access the E-Filing have a good cause for not submitting thereof does not need to address the system for any proceeding in which it documents electronically must file an standing requirements in 10 CFR is participating; and (2) advise the exemption request, in accordance with 2.309(d) if the facility is located within Secretary that the participant will be 10 CFR 2.302(g), with their initial paper its boundaries. Alternatively, a State, submitting a petition or other filing stating why there is good cause for local governmental body, Federally adjudicatory document (even in not filing electronically and requesting recognized Indian Tribe, or agency instances in which the participant, or its authorization to continue to submit thereof may participate as a non-party counsel or representative, already holds documents in paper format. Such filings under 10 CFR 2.315(c). an NRC-issued digital ID certificate). must be submitted by: (1) First class If a petition is submitted, any person Based upon this information, the mail addressed to the Office of the who is not a party to the proceeding and Secretary will establish an electronic Secretary of the Commission, U.S. is not affiliated with or represented by docket for the hearing in this proceeding Nuclear Regulatory Commission, a party may, at the discretion of the if the Secretary has not already Washington, DC 20555–0001, Attention: presiding officer, be permitted to make established an electronic docket. Rulemaking and Adjudications Staff; or a limited appearance pursuant to the Information about applying for a (2) courier, express mail, or expedited provisions of 10 CFR 2.315(a). A person digital ID certificate is available on the delivery service to the Office of the making a limited appearance may make NRC’s public website at https:// Secretary, 11555 Rockville Pike, an oral or written statement of his or her www.nrc.gov/site-help/e-submittals/ Rockville, Maryland 20852, Attention: position on the issues but may not getting-started.html. Once a participant Rulemaking and Adjudications Staff.
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Participants filing adjudicatory NUCLEAR REGULATORY Revision 1 to RG 1.191 and the documents in this manner are COMMISSION regulatory analysis may be found in responsible for serving the document on ADAMS under Accession Nos. [NRC–2020–0183] all other participants. Filing is ML20287A199 and ML20078K925, considered complete by first-class mail Fire Protection Program for Nuclear respectively. as of the time of deposit in the mail, or Power Plants During Decommissioning Regulatory guides are not by courier, express mail, or expedited copyrighted, and NRC approval is not delivery service upon depositing the AGENCY: Nuclear Regulatory required to reproduce them. document with the provider of the Commission. FOR FURTHER INFORMATION CONTACT: service. A presiding officer, having ACTION: Regulatory guide; issuance. Naeem Iqbal, Office of Nuclear Reactor granted an exemption request from Regulation, telephone: 301–415–3346, using E-Filing, may require a participant SUMMARY: The U.S. Nuclear Regulatory email: [email protected], and or party to use E-Filing if the presiding Commission (NRC) is issuing Revision 1 Harriet Karagiannis, Office of Nuclear officer subsequently determines that the to Regulatory Guide (RG) 1.191, ‘‘Fire Regulatory Research, telephone: 301– reason for granting the exemption from Protection Program for Nuclear Power 415–3346, email: Harriet.Karagiannis@ use of E-Filing no longer exists. Plants During Decommissioning.’’ nrc.gov. Both are staff of the U.S. Revision 1 of RG 1.191 addresses new Nuclear Regulatory Commission, Documents submitted in adjudicatory information identified since Revision 0 proceedings will appear in the NRC’s Washington, DC 20555–0001. of this guide was issued. The guidance SUPPLEMENTARY INFORMATION: electronic hearing docket, which is in Revision 0 of the RG does not include available to the public at https:// guidance for plants that have I. Discussion adams.nrc.gov/ehd, unless excluded transitioned to the National Fire The NRC is issuing a revision to an pursuant to an order of the Commission Protection Association (NFPA) Standard existing guide in the NRC’s ‘‘Regulatory or the presiding officer. If you do not 805, ‘‘Performance-Based Standard for Guide’’ series. This series was have an NRC-issued digital ID certificate Fire Protection for Light Water Reactor developed to describe and make as described above, click ‘‘cancel’’ when Electric Generating Plants,’’ 2001 available to the public information the link requests certificates and you Edition. regarding methods that are acceptable to will be automatically directed to the the NRC staff for implementing specific NRC’s electronic hearing dockets where DATES: Revision 1 to RG 1.191 is parts of the agency’s regulations, you will be able to access any publicly available on January 12, 2021. techniques that the NRC staff uses in available documents in a particular ADDRESSES: Please refer to Docket ID evaluating specific issues or postulated hearing docket. Participants are NRC–2020–0183 when contacting the events, and data that the NRC staff requested not to include personal NRC about the availability of needs in its review of applications for privacy information, such as social information regarding this document. permits and licenses. security numbers, home addresses, or You may obtain publicly available Revision 1 of RG 1.191 was issued personal phone numbers in their filings, information related to this document with a temporary identification of Draft unless an NRC regulation or other law using any of the following methods: Regulatory Guide, DG–1370. It requires submission of such • Federal Rulemaking website: Go to addressed new information identified information. For example, in some https://www.regulations.gov and search since Revision 0 of this guide was instances, individuals provide home for Docket ID NRC–2020–0183. Address issued. The guidance in Revision 0 of addresses in order to demonstrate questions about Docket IDs in the RG does not include guidance for proximity to a facility or site. With Regulations.gov to Jennifer Borges; plants that have transitioned to the respect to copyrighted works, except for telephone: 301–287–9127; email: NFPA 805, 2001 Edition. limited excerpts that serve the purpose [email protected]. For technical of the adjudicatory filings and would questions, contact the individuals listed II. Additional Information constitute a Fair Use application, in the FOR FURTHER INFORMATION The NRC published a notice of the participants are requested not to include CONTACT section of this document. • availability of DG–1370 (ADAMS copyrighted materials in their NRC’s Agencywide Documents Accession No. ML20078K920), in the submission. Access and Management System Federal Register on August 11, 2020 (85 For further details with respect to this (ADAMS): You may obtain publicly FR 48573), for a 60-day public comment action, see the application for license available documents online in the period. The public comment period amendment dated December 14, 2020 ADAMS Public Documents collection at closed on October 13, 2020. Public (ADAMS Accession No. ML20363A011). https://www.nrc.gov/reading-rm/ comments on DG–1370 and the staff adams.html. To begin the search, select responses to the public comments are Attorney for licensee: Robert B. ‘‘Begin Web-based ADAMS Search.’’ For Haemer, Senior Nuclear Counsel, available in ADAMS under Accession problems with ADAMS, please contact No. ML20287A198. Indiana Michigan Power Company, One the NRC’s Public Document Room (PDR) Cook Place, Bridgman, MI 49106. reference staff at 1–800–397–4209, 301– III. Congressional Review Act NRC Branch Chief: Nancy L. Salgado. 415–4737, or by email to pdr.resource@ This RG is a rule as defined in the nrc.gov. Dated: January 6, 2021. Congressional Review Act (5 U.S.C. • Attention: The PDR, where you may 801–808). However, the Office of For the Nuclear Regulatory Commission. examine, and order copies of public Management and Budget has not found Scott P. Wall, documents is currently closed. You may it to be a major rule as defined in the Senior Project Manager, Plant Licensing submit your request to the PDR via Congressional Review Act. Branch III, Division of Operating Reactor email at [email protected] or call 1– Licensing, Office of Nuclear Reactor 800–397–4209 or 301–415–4737, IV. Backfitting, Forward Fitting, and Regulation. between 8:00 a.m. and 4:00 p.m. (EST), Issue Finality [FR Doc. 2021–00368 Filed 1–11–21; 8:45 am] Monday through Friday, except Federal Revision 1 of RG 1.191 describes BILLING CODE 7590–01–P holidays. methods acceptable to the NRC staff for
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complying with the NRC’s regulations located in Burke County, Georgia. The I. Introduction for fire protection programs for licensees granting of the exemption allows the The NRC is issuing License that have certified that their plants have changes to Tier 1 information asked for Amendment No. 182 to COL NPF–91 permanently ceased operations and that in the amendment. Because the and is granting an exemption from Tier the fuel has been permanently removed acceptability of the exemption was 1 information in the plant-specific DCD from the reactor vessels. determined in part by the acceptability for VEGP Unit 3. The generic AP1000 The staff does not, at this time, intend of the amendment, the exemption and DCD is incorporated by reference in to impose the positions represented in amendment are being issued appendix D, ‘‘Design Certification Rule the RG in a manner that would concurrently. for the AP1000,’’ to part 52 of title 10 constitute backfitting or affect the issue DATES: of the Code of Federal Regulations (10 finality of a part 52 of title 10 of the The exemption and amendment were issued on August 4, 2020. CFR). The exemption, granted pursuant Code of Federal Regulations approval. to paragraph A.4 of section VIII, ADDRESSES: If, in the future, the staff seeks to impose Please refer to Docket ID ‘‘Processes for Changes and a position in the RG in a manner that NRC–2008–0252 when contacting the Departures,’’ of 10 CFR part 52, constitutes backfitting or does not NRC about the availability of appendix D, allows the licensee to provide issue finality as described in the information regarding this document. depart from the Tier 1 information. With applicable issue finality provision, then You may obtain publicly available the requested amendment, SNC sought the staff would need to address the information related to this document proposed changes to the north-south backfit rule or the criteria for avoiding using any of the following methods: minimum seismic gap requirements • issue finality as described in the Federal Rulemaking website: Go to above grade between the nuclear island applicable issue finality provision. https://www.regulations.gov and search and the annex building west of Column The staff does not, at this time, intend for Docket ID NRC–2008–0252. Address Line I from elevation 141 feet through to impose the positions represented in questions about Docket IDs in 154 feet to accommodate as-built the RG in a manner that would Regulations.gov to Jennifer Borges; localized nonconformances. constitute forward fitting. If, in the telephone: 301–287–9127; email: Part of the justification for granting future, the staff seeks to impose a [email protected]. For technical the exemption was provided by the position in the RG in a manner that questions, contact the individual listed review of the amendment. Because the constitutes forward fitting, then the staff in the FOR FURTHER INFORMATION exemption is necessary in order to issue would need to address the forward CONTACT section of this document. the requested license amendment, the fitting criteria in Management Directive • NRC’s Agencywide Documents NRC granted the exemption and issued 8.4, ‘‘Management of Backfitting, Access and Management System the amendment concurrently, rather Forward Fitting, Issue Finality, and (ADAMS): You may obtain publicly than in sequence. This included issuing Information Requests’’ (ADAMS available documents online in the a combined safety evaluation containing Accession No. ML18093B087). ADAMS Public Documents collection at the NRC staff’s review of both the Dated: January 6, 2021. https://www.nrc.gov/reading-rm/ exemption and license amendment For the Nuclear Regulatory Commission. adams.html. To begin the search, select requests. The exemption met all Meraj Rahimi, ‘‘Begin Web-based ADAMS Search.’’ For applicable regulatory criteria set forth in Chief, Regulatory Guidance and Generic problems with ADAMS, please contact §§ 50.12, 52.7, and 52.63, and in section Issues Branch, Division of Engineering, Office the NRC’s Public Document Room (PDR) VIII.A.4 of appendix D to 10 CFR part of Nuclear Regulatory Research. reference staff at 1–800–397–4209, 301– 52. The license amendment was found [FR Doc. 2021–00334 Filed 1–11–21; 8:45 am] 415–4737, or by email to pdr.resource@ to be acceptable as well. The combined BILLING CODE 7590–01–P nrc.gov. The ADAMS accession number safety evaluation is available in ADAMS for each document referenced (if it is under Accession No. ML20132A078. available in ADAMS) is provided the The exemption document for VEGP NUCLEAR REGULATORY first time that it is mentioned in this Unit 3 can be found in ADAMS under COMMISSION document. The request for the Accession No. ML20132A077. The amendment and exemption was exemption is reproduced (with the [Docket No. 52–025; NRC–2008–0252] designated License Amendment Request exception of abbreviated titles and Southern Nuclear Operating Company, (LAR) 20–001 and submitted by letter additional citations) in Section II of this Inc.; Vogtle Electric Generating Plant, dated February 7, 2020, (ADAMS document. The amendment documents Unit 3; Unit 3 Auxiliary Building Wall 11 Accession No. ML20038A939). for COL NPF–91 are available in Seismic Gap Requirements • Attention: The PDR, where you may ADAMS under Accession No. examine and order copies of public ML20132A052. A summary of the AGENCY: Nuclear Regulatory documents is currently closed. You may amendment documents is provided in Commission. submit your request to the PDR via Section III of this document. ACTION: Exemption and combined email at [email protected] or call 1– II. Exemption license amendment; issuance. 800–397–4209 or 301–415–4737, between 8:00 a.m. and 4:00 p.m. (EST), Reproduced in this notice is the SUMMARY: The U.S. Nuclear Regulatory Monday through Friday, except Federal exemption document issued to VEGP Commission (NRC) is granting an holidays. Unit 3. It makes reference to the exemption to allow a departure from the combined safety evaluation that certification information in Tier 1 of the FOR FURTHER INFORMATION CONTACT: provides the reasoning for the findings plant-specific design control document Cayetano Santos, Office of Nuclear made by the NRC (and listed under Item (DCD) and is issuing License Reactor Regulation, U.S. Nuclear 1) in order to grant the exemption: Amendment No. 182 to Combined Regulatory Commission, Washington, 1. In a letter dated February 7, 2020, License (COL) NPF–91. The COL is for DC 20555–0001; telephone: 301–415– Southern Nuclear Operating Company construction and operation of the Vogtle 7270; email: [email protected]. requested from the Nuclear Regulatory Electric Generating Plant (VEGP) Unit 3, SUPPLEMENTARY INFORMATION: Commission an exemption to allow
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departures from Tier 1 information in A notice of consideration of issuance For the Nuclear Regulatory Commission. the certified DCD incorporated by of amendment to the COL, proposed no Omar R. Lopez-Santiago, reference in 10 CFR part 52, appendix significant hazards consideration Chief, Vogtle Project Office, Office of Nuclear D, ‘‘Design Certification Rule for the determination, and opportunity for a Reactor Regulation. AP1000 Design,’’ as part of license hearing in connection with this action, [FR Doc. 2021–00410 Filed 1–11–21; 8:45 am] amendment request (LAR) 20–001, was published in the Federal Register BILLING CODE 7590–01–P ‘‘Unit 3 Auxiliary Building Wall on March 10, 2020 (85 FR 13944). No Seismic Gap Requirements.’’ comments were received during the 30- For the reasons set forth in Section 3.2 day comment period. NUCLEAR REGULATORY of the NRC staff’s Safety Evaluation, the COMMISSION The Commission has determined that Commission finds that: this amendment satisfies the criteria for [NRC–2020–0221] A. The exemption is authorized by law; categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant Information Collection: NRC Form 483, B. the exemption presents no undue ‘‘Registration Certificate—In Vitro risk to public health and safety; to 10 CFR 51.22(b), no environmental impact statement or environmental Testing with Byproduct Material Under C. the exemption is consistent with General License’’ the common defense and security; assessment need be prepared for this D. special circumstances are present amendment. AGENCY: Nuclear Regulatory in that the application of the rule in this IV. Final No Significant Hazards Commission. circumstance is not necessary to serve Consideration Determination ACTION: Notice of submission to the the underlying purpose of the rule; Office of Management and Budget; E. the special circumstances outweigh A request for hearing was filed on request for comment. any decrease in safety that may result May 11, 2020, by the Blue Ridge from the reduction in standardization Environmental Defense League and its SUMMARY: The U.S. Nuclear Regulatory caused by the exemption; and chapter, Concerned Citizens of Shell Commission (NRC) has recently F. the exemption will not result in a Bluff (collectively ‘‘BREDL’’) (ADAMS submitted a request for renewal of an significant decrease in the level of safety Package Accession No. ML20132D299). existing collection of information to the otherwise provided by the design. Under its regulations, the Commission Office of Management and Budget 2. Accordingly, SNC is granted an may issue and make an amendment (OMB) for review. The information exemption from the certified DCD Tier immediately effective, notwithstanding collection is entitled, NRC Form 483, 1 information, with corresponding the pendency before it of a request for ‘‘Registration Certificate—In Vitro changes to Appendix C of the facility a hearing from any person, in advance Testing with Byproduct Material Under Combined License, as described in the of the holding and completion of any General License.’’ licensee’s request dated February 7, required hearing, where it has made a DATES: Submit comments by February 2020. This exemption is related to, and final determination that no significant 11, 2021. Comments received after this necessary for, the granting of License hazards consideration is involved. date will be considered if it is practical Amendment No. 182, which is being While the hearing request was pending to do so, but the Commission is able to issued concurrently with this before an Atomic Safety and Licensing ensure consideration only for comments exemption. Board (ASLB), the NRC staff issued the received on or before this date. 3. As explained in Section 6.0 of the amendment on August 4, 2020, after ADDRESSES: Written comments and NRC staff’s Safety Evaluation, this making a final determination that no recommendations for the proposed exemption meets the eligibility criteria significant hazards consideration was information collection should be sent for categorical exclusion set forth in 10 involved, as discussed in Section 4.0 of within 30 days of publication of this CFR 51.22(c)(9). Therefore, pursuant to the combined safety evaluation. notice to https://www.reginfo.gov/ 10 CFR 51.22(b), no environmental public/do/PRAMain. Find this impact statement or environmental Subsequently, the ASLB denied particular information collection by assessment needs to be prepared in BREDL’s request for hearing and selecting ‘‘Currently under Review— connection with the issuance of the terminated the proceeding in its order Open for Public Comments’’ or by using exemption. LBP–20–08, dated August 10, 2020 the search function. 4. This exemption is effective as of the (ADAMS Accession No. ML20223A385). FOR FURTHER INFORMATION CONTACT: date of its issuance. On September 4, 2020, BREDL appealed David Cullison, NRC Clearance Officer, the ASLB decision (ADAMS Accession III. License Amendment Request U.S. Nuclear Regulatory Commission, No. ML20248J166). On December 22, Washington, DC 20555–0001; telephone: By letter dated February 7, 2020, SNC 2020, the Commission affirmed the requested that the NRC amend COL 301–415–2084; email: ASLB’s decision (ADAMS Accession [email protected]. NPF–91 for VEGP Unit 3. The proposed No. ML20357A101). amendment is described in Section I of SUPPLEMENTARY INFORMATION: V. Conclusion this Federal Register notice. I. Obtaining Information and The Commission has determined for For the reasons set forth in the Submitting Comments this amendment that the application combined safety evaluation, the staff complies with the standards and A. Obtaining Information granted the exemption and issued the requirements of the Atomic Energy Act Please refer to Docket ID NRC–2020– amendment that SNC requested on of 1954, as amended (the Act), and the 0221 when contacting the NRC about February 7, 2020. The exemption and Commission’s rules and regulations. the availability of information for this amendment were issued on August 4, The Commission has made the findings action. You may obtain publicly 2020, as part of a combined package to required by the Act and the available information related to this SNC (ADAMS Package Accession No. Commission’s rules and regulations in action by any of the following methods: 10 CFR chapter I, which are set forth in ML20132A032). • Federal Rulemaking Website: Go to the license amendment. Dated: January 7, 2021. https://www.regulations.gov and search
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for Docket ID NRC–2020–0221. A copy submission. Your request should state possess certain small quantities of of the collection of information and that comment submissions are not byproduct material for in vitro clinical related instructions may be obtained routinely edited to remove such or laboratory tests not involving the without charge by accessing Docket ID information before making the comment internal or external administration of NRC–2020–0221 on this website. submissions available to the public or the byproduct material or the radiation • NRC’s Agencywide Documents entering the comment into ADAMS. therefrom to human beings or animals. Access and Management System Possession of byproduct material under II. Background (ADAMS): You may obtain publicly 10 CFR 31.11 is not authorized until the available documents online in the Under the provisions of the physician, clinical laboratory, ADAMS Public Documents collection at Paperwork Reduction Act of 1995 (44 veterinarian in the practice of veterinary https://www.nrc.gov/reading-rm/ U.S.C. Chapter 35), the NRC recently medicine, or hospital has filed the NRC adams.html. To begin the search, select submitted a request for renewal of an Form 483 and received from the ‘‘Begin Web-based ADAMS Search.’’ For existing collection of information to Commission a validated copy of the problems with ADAMS, please contact OMB for review entitled, NRC Form NRC Form 483 with a registration the NRC’s Public Document Room (PDR) 483, ‘‘Registration Certificate—In Vitro number. The licensee can use the reference staff at 1–800–397–4209, 301– Testing with Byproduct Material Under validated copy of the NRC Form 483 to 415–4737, or by email to pdr.resource@ General License.’’ The NRC hereby obtain byproduct material from a nrc.gov. A copy of the collection of informs potential respondents that an specifically licensed supplier. The NRC information and related instructions agency may not conduct or sponsor, and incorporates this information into a may be obtained without charge by that a person is not required to respond database which is used to verify that a accessing ADAMS Accession No. to, a collection of information unless it general licensee is authorized to receive ML20205L413. The supporting displays a currently valid OMB control the byproduct material. statement is available in ADAMS under number. Dated: January 6, 2021. Accession No. ML20335A465. The NRC published a Federal • Attention: The PDR, where you may Register notice with a 60-day comment For the Nuclear Regulatory Commission. examine and order copies of public period on this information collection on David C. Cullison, documents is currently closed. You may October 8, 2020 (85 FR 63591). NRC Clearance Officer, Office of the Chief submit your request to the PDR via 1. The title of the information Information Officer. email at [email protected] or call 1– collection: NRC Form 483, ‘‘Registration [FR Doc. 2021–00331 Filed 1–11–21; 8:45 am] 800–397–4209 or 301–415–4737, Certificate—In Vitro Testing with BILLING CODE 7590–01–P between 8:00 a.m. and 4:00 p.m. (EST), Byproduct Material Under General Monday through Friday, except Federal License.’’ holidays. 2. OMB approval number: 3150–0038. SECURITIES AND EXCHANGE • NRC’s Clearance Officer: A copy of 3. Type of submission: Extension. COMMISSION the collection of information and related 4. The form number if applicable: instructions may be obtained without NRC Form 483. [Investment Company Act Release No. 34165; File No. 812–15066] charge by contacting the NRC’s 5. How often the collection is required Clearance Officer, David Cullison, or requested: There is a one-time Symmetry Panoramic Trust and Office of the Chief Information Officer, submittal of information to receive a Symmetry Partners, LLC U.S. Nuclear Regulatory Commission, validated copy of the NRC Form 483 Washington, DC 20555–0001; telephone: with an assigned registration number. In January 6, 2021. 301–415–2084; email: addition, any changes in the AGENCY: Securities and Exchange [email protected]. information reported on the NRC Form Commission (‘‘Commission’’). 483 must be reported in writing to the ACTION: Notice. B. Submitting Comments NRC within 30 days after the effective The NRC encourages electronic date of the change. Notice of an application for an order comment submission through the 6. Who will be required or asked to pursuant to: (a) Section 6(c) of the Federal Rulemaking website (https:// respond: Any physician, veterinarian in Investment Company Act of 1940 www.regulations.gov). Please include the practice of veterinary medicine, (‘‘Act’’) granting an exemption from Docket ID NRC–2020–0221 in your clinical laboratory, or hospital which sections 18(f) and 21(b) of the Act; (b) comment submission. desires a general license to receive, section 12(d)(1)(J) of the Act granting an The NRC cautions you not to include acquire, possess, transfer, or use exemption from section 12(d)(1) of the identifying or contact information that specified units of byproduct material in Act; (c) sections 6(c) and 17(b) of the you do not want to be publicly certain in vitro clinical or laboratory Act granting an exemption from sections disclosed in your comment submission. tests. 17(a)(1), 17(a)(2) and 17(a)(3) of the Act; The NRC will post all comment 7. The estimated number of annual and (d) section 17(d) of the Act and rule submissions at https:// responses: 6 responses. 17d–1 under the Act to permit certain www.regulations.gov as well as enter the 8. The estimated number of annual joint arrangements and transactions. comment submissions into ADAMS. respondents: 6 respondents. Applicants request an order that would The NRC does not routinely edit 9. An estimate of the total number of permit certain registered management comment submissions to remove hours needed annually to comply with investment companies to participate in identifying or contact information. the information collection requirement a joint lending and borrowing facility. If you are requesting or aggregating or request: 1.12 hours. Applicants: Symmetry Panoramic comments from other persons for 10. Abstract: Section 31.11 of title 10 Trust, a Delaware statutory trust submission to the OMB, then you of the Code of Federal Regulations (10 registered under the Act as an open-end should inform those persons not to CFR), established a general license management investment company with include identifying or contact authorizing any physician, clinical multiple series, and Symmetry Partners, information that they do not want to be laboratory, veterinarian in the practice LLC (‘‘Symmetry Partners’’), a publicly disclosed in their comment of veterinary medicine, or hospital to Connecticut limited liability company
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that is registered as an investment the facility for leverage purposes and proposed transactions do not raise the adviser under the Investment Advisers the loans’ duration will be no more than concerns underlying sections 17(a)(1), Act of 1940. 7 days.2 17(a)(3), 17(d) and 21(b) of the Act as Filing Dates: The application was 2. Applicants anticipate that the the Funds would not engage in lending filed on September 4, 2019, and proposed facility would provide a transactions that unfairly benefit amended on May 28, 2020, September 4, borrowing Fund with a source of insiders or are detrimental to the Funds. 2020, and December 18, 2020. liquidity at a rate lower than the bank Applicants state that the facility will Hearing or Notification of Hearing: An borrowing rate at times when the cash offer both reduced borrowing costs and order granting the requested relief will position of the Fund is insufficient to enhanced returns on loaned funds to all be issued unless the Commission orders meet temporary cash requirements. In participating Funds and each Fund a hearing. Interested persons may addition, Funds making short-term cash would have an equal opportunity to request a hearing by emailing the loans directly to other Funds would borrow and lend on equal terms based Commission’s Secretary at Secretarys- earn interest at a rate higher than they on an interest rate formula that is [email protected] and serving Applicants otherwise could obtain from investing objective and verifiable. With respect to with a copy of the request by email. their cash in repurchase agreements or the relief from section 17(a)(2) of the Hearing requests should be received by certain other short term money market Act, Applicants note that any collateral the Commission by 5:30 p.m. on instruments. Thus, Applicants assert pledged to secure an interfund loan February 1, 2021, and should be that the facility would benefit both would be subject to the same conditions accompanied by proof of service on borrowing and lending Funds. imposed by any other lender to a Fund Applicants, in the form of an affidavit, 3. Applicants agree that any order that imposes conditions on the quality or, for lawyers, a certificate of service. granting the requested relief will be of or access to collateral for a borrowing Pursuant to Rule 0–5 under the Act, subject to the terms and conditions (if the lender is another Fund) or the hearing requests should state the nature stated in the application. Among others, same or better conditions (in any other of the writer’s interest, any facts bearing the Adviser, through a designated circumstance).5 upon the desirability of a hearing on the committee, would administer the 5. Applicants also believe that the matter, the reason for the request, and facility as a disinterested fiduciary as limited relief from section 18(f)(1) of the the issues contested. Persons who wish part of its duties under the investment Act that is necessary to implement the to be notified of a hearing may request advisory and administrative services facility (because the lending Funds are notification by emailing the agreements with the Funds and would not banks) is appropriate in light of the Commission’s Secretary at Secretarys- receive no additional fee as conditions and safeguards described in [email protected]. compensation for its services in the application and because the Funds connection with the administration of ADDRESSES: The Commission: would remain subject to the the facility. The facility would be [email protected]. Applicants: requirement of section 18(f)(1) that all subject to oversight and certain Mark C. Amorosi, Esq., mark.amorosi@ borrowings of the Fund, including approvals by the Funds’ Board, klgates.com (with a copy to Philip R. combined interfund loans and bank including, among others, approval of the McDonald, pmcdonald@ borrowings, have at least 300% asset interest rate formula and of the method SymmetryPartners.com). coverage. for allocating loans across Funds, as 6. Section 6(c) of the Act permits the FOR FURTHER INFORMATION CONTACT: well as review of the process in place to Commission to exempt any persons or Laura J. Riegel, Senior Counsel, or Trace evaluate the liquidity implications for transactions from any provision of the W. Rakestraw, Branch Chief, at (202) the Funds. A Fund’s aggregate Act if such exemption is necessary or 551–6825 (Division of Investment outstanding interfund loans will not appropriate in the public interest and Management, Chief Counsel’s Office). exceed 15% of its net assets at the time consistent with the protection of SUPPLEMENTARY INFORMATION: The of the loan, and the Fund’s loans to any investors and the purposes fairly following is a summary of the one Fund will not exceed 5% of the 3 intended by the policy and provisions of application. The complete application lending Fund’s net assets. the Act. Section 12(d)(1)(J) of the Act 4. Applicants assert that the facility may be obtained via the Commission’s provides that the Commission may does not raise the concerns underlying website by searching for the file exempt any person, security, or section 12(d)(1) of the Act given that the number, or an applicant using the transaction, or any class or classes of Funds are part of the same group of Company name box, at http:// persons, securities, or transactions, from investment companies and there will be www.sec.gov/search/search.htm or by any provision of section 12(d)(1) if the no duplicative costs or fees to the calling (202) 551–8090. exemption is consistent with the public Funds.4 Applicants also assert that the Summary of the Application: interest and the protection of investors. Section 17(b) of the Act authorizes the 1. Applicants request an order that Symmetry Partners or any successor thereto, serves Commission to grant an order would permit the Applicants to as investment adviser (each such investment company or series thereof, a ‘‘Fund’’ and permitting a transaction otherwise participate in an interfund lending collectively the ‘‘Funds,’’ and each such investment prohibited by section 17(a) if it finds facility where each Fund could lend adviser, an ‘‘Adviser’’). For purposes of the that (a) the terms of the proposed money directly to and borrow money requested order, ‘‘successor’’ is limited to any entity transaction, including the compensation directly from other Funds to cover that results from a reorganization into another jurisdiction or a change in the type of a business to be paid or received, are fair and unanticipated cash shortfalls, such as organization. reasonable and do not involve unanticipated redemptions or sales 2 Any Fund, however, will be able to call a loan overreaching on the part of any person fails.1 The Funds will not borrow under on one business day’s notice. concerned; (b) the proposed transaction 3 Under certain circumstances, a borrowing Fund 1 Applicants request that the order apply to the will be required to pledge collateral to secure the is consistent with the policies of each Applicants and to any registered open-end loan. management investment company or series thereof 4 Applicants state that the obligation to repay an 5 Applicants state that any pledge of securities to for which Symmetry Partners or any successor interfund loan could be deemed to constitute a secure an interfund loan could constitute a thereto, or an investment adviser controlling, security for the purposes of sections 17(a)(1) and purchase of securities for purposes of section controlled by, or under common control with 12(d)(1) of the Act. 17(a)(2) of the Act.
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registered investment company SECURITIES AND EXCHANGE The text of the proposed rule change involved; and (c) the proposed COMMISSION has been annexed as Exhibit 5 [sic]. transaction is consistent with the [Release No. 34–90862; File No. SR–LCH II. Clearing Agency’s Statement of the general purposes of the Act. Rule 17d– SA–2020–007] Purpose of, and Statutory Basis for, the 1(b) under the Act provides that in Proposed Rule Change passing upon an application filed under Self-Regulatory Organizations; LCH the rule, the Commission will consider SA; Notice of Filing and Immediate In its filing with the Commission, whether the participation of the Effectiveness of Proposed Rule LCH SA included statements concerning registered investment company in a Change Relating to the Amendments the purpose of and basis for the joint enterprise, joint arrangement or of the CDSClear Fee Grid proposed rule change and discussed any comments it received on the proposed profit sharing plan on the basis January 6, 2021. rule change. The text of these statements proposed is consistent with the Pursuant to Section 19(b)(1) of the may be examined at the places specified provisions, policies and purposes of the Securities Exchange Act of 1934 in Item IV below. LCH SA has prepared Act and the extent to which such (‘‘Act’’) 1 and Rule 19b–4 thereunder 2 summaries, set forth in sections A, B, participation is on a basis different from notice is hereby given that on December or less advantageous than that of the 31, 2020, Banque Centrale de and C below, of the most significant other participants. Compensation, which conducts aspects of these statements. For the Commission, by the Division of business under the name LCH SA (‘‘LCH A. Clearing Agency’s Statement of the Investment Management, under delegated SA’’), filed with the Securities and Purpose of, and Statutory Basis for, the authority. Exchange Commission (‘‘Commission’’) Proposed Rule Change the proposed rule change described in J. Matthew DeLesDernier, Items I, II, and III below, which Items 1. Purpose Assistant Secretary. have been prepared by LCH SA. LCH SA The purpose of the proposed fee [FR Doc. 2021–00330 Filed 1–11–21; 8:45 am] filed the proposed rule change pursuant changes is for LCH SA CDSClear to BILLING CODE 8011–01–P to Section 19(b)(3)(A) of the Act,3 and revise the (i) fees under the Unlimited Rule 19b–4(f)(2) 4 thereunder, so that the Tariff for General Members,5 (ii) fees for proposed rule change was effective Corporates and Financials Index and upon filing with the Commission. The Single Name CDS under the Commission is publishing this notice to Introductory Tariff for both General and solicit comments on the proposed rule Select Members, (iii) fees set up for the change from interested persons. Options clearing service for both I. Clearing Agency’s Statement of the General and Select Members and Clients Terms of Substance of the Proposed as well and introduce (iv) new fee Rule Change conditions for Affiliates clearing as The proposed rule change is to review client. and modify the current CDSClear fee LCH SA is currently applying the grid applied by LCH SA. below fee grid for CDSClear members: CURRENT SELF-CLEARING TARIFF FOR CORPORATES AND FINANCIALS INDEX AND SINGLE NAME CDS
Self-clearing/variable fees Membership Annual fixed fee EUR EUR USD USD indices single names indices single names
General Mem- Ö 1,300,000 ...... No Variable Fee Covers all self-clearing Corporate ber—Unlimited and Financials Index and Sin- Tariff. gle Name activity for a Clear- ing Member and its affiliates.
General Mem- Ö200,000 if the total annual Ö3.5 Per million Ö10 Per million $4.5 Per million $13 Per million Cap on total annual self-clearing ber—Introduc- gross notional cleared is under gross notional gross notional gross notional gross notional fees (fixed + variable) of EUR tory Tariff. Ö15 billion. cleared. cleared. cleared. cleared. 1,300,000 after which all fur- ther trades cleared in the cal- endar year are subject to a fee holiday. Ö400,000 if the total annual Ö3.5 Per million Ö10 Per million $4.5 Per million $13 Per million gross notional cleared is over gross notional gross notional gross notional gross notional Ö15 billion. cleared. cleared. cleared. cleared. Select Member .. Ö250,000 if the total annual Ö4 Per million Ö10 Per million $5 Per million $13 Per million gross notional cleared is under gross notional gross notional gross notional gross notional Ö25 billion. cleared. cleared. cleared. cleared. Ö450,000 if the total annual gross notional cleared is over Ö25 billion.
1 15 U.S.C. 78s(b)(1). 3 15 U.S.C. 78s(b)(3)(A). 5 All capitalized terms not defined herein have 2 17 CFR 240.19b–4. 4 17 CFR 240.19b–4(f)(2). the same definition as the CDSClearing Rule Book, Supplement or Procedures, as applicable.
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OPTIONS TARIFF INCLUDING FEE REBATE
General Member
Introductory Tariff ...... Cover only one legal entity (no affiliate coverage). In-year switches are not permitted.
Clearing Fees ...... $15 per million of option notional on US Indices. Ö15 per million of option notional on European Indices. Floor on clearing fees ...... Ö 150k Per calendar year (no pro-rating). Cap on Clearing fees ...... Ö 375k Per calendar year (no pro-rating).
Unlimited Tariff ...... Cover all affiliates of a given Clearing Member Group Cover all clearing fees for Credit Option House activity for both iTraxx and CDX.NA underlying index families. Excludes any potential future EEP usage fees. In-year switches are not permitted.
Fixed fee (annual) ...... Ö 375k Per calendar year (no pro-rating).
Discounted Rates * ...... Ö 150k if notionals cleared strictly above Ö6bn but equal to or below Ö13.5bn Ö 75k if notionals cleared strictly above Ö13.5bn.
Onboarding Fees ...... Ö 30k One-off fee per Legal Entity under the Introductory tariff or per Clearing Member Group under (both Introductory & unlimited) ...... Unlimited tariff waived until 30-Apr-2020.
Select Member
Introductory Tariff ...... Cover only one legal entity (no affiliate coverage) In-year switches are not permitted.
Clearing Fees ...... $ 18 per million of option notional on US Indices. Ö 18 per million of option notional on European Indices. Cap on Clearing fees ...... Ö 400k Per calendar year (no pro-rating).
Unlimited Tariff ...... Cover all affiliates of a given Clearing Member Group. Cover all clearing fees for Credit Option House activity for both iTraxx and CDX.NA underlying index families. Excludes any potential future EEP usage fees. In-year switches are not permitted.
Fixed fee (annual) ...... Ö 400k Per calendar year (no pro-rating).
Discounted Rates * ...... Ö 150k if notionals cleared strictly above Ö6bn but equal to or below Ö13.5bn Ö 75k if notionals cleared strictly above Ö13.5bn.
Onboarding Fees (both Introductory & unlimited) Ö 30k One-off fee per Legal Entity under the Introductory tariff or per Clearing Member Group under Unlimited tariff waived until 30-Apr-2020.
* Cumulative conditions for the Fee rebate: (i) Application to the Unlimited Tariff only; (ii) Application to all Clearing Members registering to the Index Swaptions clearing service (registration letter or application file signature date); and (iii) Index Swaptions notional cleared for the determination of the discount rate to be observed from the regulatory effective date of the rebate.
Client
Clearing Fees ...... $ 20 per million of option notional on US Indices. Ö 20 per million of option notional on European Indices.
As specified in the new fee grid (1) Change the Fees Under the Tariff will be set for General Members attached under Exhibit 5 [sic], LCH SA Unlimited Tariff for General Members to Ö200,000 if the total annual gross is proposing to amend the CDSClear fee CDSClear currently offers an notional cleared is under Ö10bn (vs grid from January 1st, 2021. Unlimited Tariff for General Members Ö15bn today) and to Ö400,000 per year The proposed fee changes are driven that covers all self-clearing Corporate when clearing more than Ö10bn (vs by the evolution of the CDSClear and Financials CDS Index and Single Ö15bn today). business and arrangements. Names activity for a Financial Group of LCH SA is also proposing to remove a Clearing Member for an annual fixed —for the Index and Single Names: The the previous annual cap on total annual fee of Ö1,300,000 (no variable fees). fees (fixed + variable) of Ö1,300,000 fee change reflects a transition to a The proposed change consists in more matured phase of development under the Introductory Tariff for increasing the annual fixed fee amount General Members. of the CDSClear service, and to Ö1,350,000 per year from January 1, —for the Options fee grid: The intent is 2021. The variable fees remain the same as to adjust the fee conditions and rebate the current ones. (2) Change the Fees Under the to the new competitive environment (b) For Select Members as well as encourage the development Introductory Tariff for Both General and Select Members of options clearing by clients, From January 1, 2021, the annual —for Affiliates clearing as client, the (a) For General Members fixed fee under the Introductory Tariff need to take into consideration the As specified in the new LCH SA will be set for Select Members to evolution of the corporate structure of CDSClear fee grid attached below in Ö250,000 if the total annual gross dealers and the use of multiple legal Exhibit 5 [sic], from January 1, 2021, the notional cleared is under Ö20bn (vs entities. annual fixed fee under the Introductory Ö25bn today) and to Ö450,000 per year
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for Select Members when clearing more a Financial Group of a Clearing Member Tariff for General Members, LCH SA has than Ö20bn (vs Ö25bn today). in 2021 for the first two Clearing determined in consultation with its The variable fees remain the same as Members clearing Options for at least clearing members that the slight the current ones. one Client by 31 July 2021. increase in the annual fixed fee amount for General Members covering their (3) Revise the Fees Set Up For the (d) Options Clearing Fees for Clients Index and Single Name CDS self- Options Clearing Service for Both The Options clearing fee grid for clearing activity is reasonable and General and Select Members as Well as Clients is proposed to include the appropriate as the CDSClear business is Clients following changes: now reaching a more mature stage in its (a) Options Unlimited Tariff for General • Clients variable clearing fees for development and the likelihood to and Select Members Options decreased from Ö20/$20 to onboard new General Members under From January 1, 2021, the annual Ö5/$5 per million of option notional the Unlimited Tariff is small or even fixed fee covering all clearing fees for cleared negligible given the structure of the CDS • Credit Index Options House activity for Fee holiday for Clients clearing market and the limited number of all Affiliates of a given Financial Group Options in 2021 market makers in this space. With respect to the Index and Single of a Clearing Member is proposed to (4) Introduction of New Fee Conditions Names CDS Introductory Tariffs for both change from a two tier discount (the for Affiliates Clearing as Client first one if the notional cleared is General and Select Members, both the strictly above Ö6bn and the second one As specified in the new LCH SA annual fixed fee and the variable fees if the notional cleared is strictly above CDSClear options fee grid attached remain the same. The removal of the cap Ö13.5bn) to a single discount if the below in Exhibit 5 [sic], LCH SA as well as the lowering of the notional notional cleared is strictly above Ö15bn. CDSClear is proposing to offer a full thresholds aim at reflecting the fact that The fixed fee would in the new fee grid rebate on client clearing variable fees for market participants are now more then be reduced from Ö375,000 to Affiliates of a Clearing Member that is familiar with the CDSClear service as Ö115,000 (no prorating) for General clearing as client of that Clearing well as their own activity in the Credit Members and from Ö400,000 to Member under the following conditions: Derivatives space: • The Clearing Member is a General Ö115,000 (no prorating) for Select —the removal of the cap which was Member under the Unlimited Tariff, Members compared to Ö150k and Ö75k struck at the level of the fixed fee • The Affiliate is a legal entity part of for the two tiers currently. under the Unlimited Tariff the same Financial Group as the incentivizes Clearing Members to (b) Options Introductory Tariff for Clearing Member, select the most appropriate tariff for • The rebate applies to 1 trade General and Select Members them at the start of the year. The current Options Introductory account per Affiliate and for all clearing —the lowering of the notional Tariff for both General and Select services for which the Clearing Member thresholds would constitute an Members covers only the legal entity is under the Unlimited Tariff (i.e. Index increase of fees for the Members that is registering to the service. & Single Names and/or Options), which have cleared less than the • The rebate cannot apply to any The Options Introductory Tariff for a current threshold but more than the account opened for CCM Indirect General Member is proposed to be based new one. No member is in that Clients, and on the annual floor and conditions situation. • A fixed annual account fee of below: Ö100,000 is charged per Affiliate of a The main change in the fee grid of the • Ö Floor of 115,000 for a single entity Clearing Member onboarded as a Client Options clearing service is the decrease Ö (vs 150,000 today per entity) and benefiting from the full rebate on of the variable fees for General and • Ö Floor of 150,000 for 2 entities of the variable fees. Select Members as well as Clients in same Financial Group of a Clearing order to make clearing of options more Member 2. Statutory Basis attractive for all, and in particular for • Floor of Ö190,000 for 3 or more Section 17A(b)(3)(D) of the Act clients to begin clearing options. entities of the same Financial Group requires that the rules of a clearing Besides, and after discussing with its of a Clearing Member Clearing Members, LCH SA has elected • agency provide for the equitable Removal of the annual cap of allocation of reasonable dues, fees, and to maintain a similar volume-based Ö375,000 on Options clearing fees 6 discount fee structure for its Options • other charges. Reduction of variable fees from Ö15/ LCH SA believes that its clearing fee Unlimited Tariff for both General and $15 to Ö8/$8 per million of option change proposal is consistent with the Select Members in which the cost of notional cleared. requirements of Section 17A of the Act 7 clearing options decreases as more The Options Introductory Tariff for a and the regulations thereunder volumes are cleared. The increase of the Select Member is proposed to be based applicable to it, and in particular notional threshold as well as of the on the conditions below: provides for the equitable allocation of decrease of the discount percentage are • Reduction of variable fees from Ö18/ reasonable fees, dues, and other charges reflective of the growth of the Option $18 to Ö10/$10 per million of option among clearing members and market clearing service over the last year which notional cleared participants by ensuring that clearing now is more broadly used by LCH SA • Removal of the annual cap on Options members and clients pay reasonable fees Clearing Members and which justifies clearing fees of Ö400,000 and dues for the services provided by the increase of total fees paid by the LCH SA, within the meaning of Section Clearing Members having selected this (c) Options Clearing Members (General scheme. Members Under Unlimited or 17A(b)(3)(D) of the Act. With respect to the change of the Consequently, the General Member Introductory) Index and Single Name CDS Unlimited Introductory Tariff has been redesigned LCH SA is proposing an up to to be more appropriate for smaller Ö200,000 fee rebate limited to the total 6 15 U.S.C. 78q–1(b)(3)(D). Options trading members: In particular, amount of Options clearing fees paid by 7 15 U.S.C. 78q–1. the decrease of the annual floor, the
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introduction of 2 new levels of annual CDSClear clearing service for both Index Further, as explained above, LCH SA floor depending on the number of legal & Single Names as well as Options. believes that the fee rates have been set entities of a given Financial Group of a For all the reasons stated above, LCH up at an appropriate level given the Clearing Member joining the service as SA believes that the proposed fee rates costs and expenses to LCH SA in well as the removal of the cap are meant are reasonable and have been set up at offering the relevant clearing services. to ease the introduction of new an appropriate level so that LCH SA can C. Clearing Agency’s Statement on members to the Options clearing provide the CDSClear services. Comments on the Proposed Rule service. B. Clearing Agency’s Statement on Change Received From Members, Changes following the same Burden on Competition Participants or Others principles and rationale have also been made to the Select Members Options fee Section 17A(b)(3)(I) of the Act Written comments relating to the grid to ensure a consistent access requires that the rules of a clearing proposed rule change have not been between the 2 membership tiers. agency not impose any burden on solicited or received but a consultation Lastly, and in order to incentivize the competition not necessary or has been conducted with and verbal development of Options Client clearing, appropriate in furtherance of the feedback sought from CDSClear LCH SA is proposing to provide the first purposes of the Act.8 members. No comment or question has 2 Clearing Members clearing options on LCH SA does not believe that the been received following this behalf of at least one of their clients, and proposed rule change would impose any consultation. LCH SA will notify the before 31 July 2021, with a one-off fee burden on competition that are not Commission of any subsequent written rebate equal to the total amount of necessary or appropriate in furtherance comments received by LCH SA. of the purposes of the Act because LCH Options clearing fees paid in 2021, III. Date of Effectiveness of the capped at Ö200,000, in order to mitigate SA is offering the possibility for CDSClear members and clients to get a Proposed Rule Change and Timing for the cost associated with the systems Commission Action developments required to enable clients more attractive access to the clearing to access the LCH SA Options clearing services. It does not affect the ability of The foregoing proposed rule change service. The rationale to limit the such Clearing Members or other market has become effective upon filing number of Clearing Members eligible to participants generally to engage in pursuant to Section 19(b)(3)(A)9 [sic] of this one-off rebate to the first two cleared transactions or to access clearing the Act and Rule 19b–4(f)(2)10 [sic] clearing an option trade on behalf of services especially to the clearing of thereunder because it establishes a fee clients is twofold: credit index swaptions that remains not or other charge imposed by LCH SA on —Further incentivize competition mandatory. its Clearing Members. At any time Additionally, the proposed volume- between the Clearing Members which within 60 days of the filing of the based discount scheme for the Options have an interest in building client proposed rule change, the Commission Unlimited Tariff will be available to any clearing capabilities for options by summarily may temporarily suspend Financial Group of a Clearing Member offering a rebate substantial enough to such rule change if it appears to the using CDSClear services. Commission that such action is cover some of the build costs that will Similarly, the proposed Index and be incurred by the Clearing Members. necessary or appropriate in the public Single Names Unlimited Tariff will be interest, for the protection of investors, —Mitigate financial risk for LCH SA by available to any Financial Group predefining the maximum amount of or otherwise in furtherance of the including an entity registered as a purposes of the Act. rebate it could have to pay back to its General Member of the CDSClear Clearing Members as well as the service. IV. Solicitation of Comments amount of the rebate they would get, The annual fixed fee increase does not Interested persons are invited to thus maintaining the attractiveness of impact any competition between submit written data, views, and the rebate for them. All clearing General and Select Members as the arguments concerning the foregoing, members will have the same choice of membership tier made by a including whether the proposed rule opportunity to equally benefit from Clearing Member is mainly driven by change is consistent with the Act. the proposed incentive rebate the material differences in the Comments may be submitted by any of according to the specified conditions. obligations of a General Member versus the following methods: Finally, the introduction of a specific those of a Select Member (in terms of fee structure (full variable fee rebate price contribution and auction bidding Electronic Comments plus fixed account charge) for Affiliates notably) which are reflected in the • Use the Commission’s internet of a given Financial Group of a Clearing tariffs available for each tier. comment form (http://www.sec.gov/ Member clearing as Clients of such The rebate offered on client clearing rules/sro.shtml); or Clearing Member and under a set of pre- fees for Affiliates of a General Member • Send an email to rule-comments@ defined conditions aims at offering under the Unlimited Tariff relies on the sec.gov. Please include File Number SR– Financial Groups of Clearing Members fact that should such Affiliate join as a LCH SA–2020–007 on the subject line. under the General Membership Clearing Member his fees would be Paper Comments Unlimited Tariff additional, fairly- covered by the fixed fee of the • priced ways for their Affiliates to gain Unlimited Tariff whereas this wouldn’t Send paper comments in triplicate access to LCH SA CDSClear service. the [sic] case for Select Members. to Secretary, Securities and Exchange LCH SA CDSClear has thus More broadly, none of the proposed Commission, 100 F Street NE, determined that the proposed new fee changes impacts competition between Washington, DC 20549–1090. structure is more appropriate and takes General and Select Members as they All submissions should refer to File into account the expected volume of have been designed consistently across Number SR–LCH SA–2020–007. This transactions. All the clearing fee both tiers or are more extensions of file number should be included on the conditions remain transparent and existing features of the current fee grid. subject line if email is used. To help the equally applicable to any market Commission process and review your participant wishing to access the 8 15 U.S.C. 78q–1(b)(3)(I). comments more efficiently, please use
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only one method. The Commission will of 1934 (‘‘Act’’),1 and Rule 19b–4 Committee Period for which it is post all comments on the Commission’s thereunder,2 a proposed rule change to otherwise due to take part. The text of internet website (http://www.sec.gov/ modify its CDS Procedures and CDS the proposed rule changes in the Initial rules/sro.shtml). Copies of the Default Management Policy related to its Filing is unchanged. submission, all subsequent CDS Default Committee. The proposed As described in the Initial Filing, amendments, all written statements rule change was published for comment amendments to paragraph 5.3 of the with respect to the proposed rule in the Federal Register on January 4, CDS Procedures would add that if a CDS change that are filed with the 2021.3 On December 31, 2020, ICE Clear Committee-Eligible Clearing Member Commission, and all written Europe filed Partial Amendment No. 1 considers that it is unable to take part communications relating to the to the proposed rule change. Pursuant to in the CDS Default Committee for the proposed rule change between the Section 19(b)(1) of the Act 4 and Rule Relevant CDS Default Committee Period Commission and any person, other than 19b–4 thereunder,5 the Commission is for which it is due to take part, it may those that may be withheld from the publishing notice of this Partial request to postpone its participation for public in accordance with the Amendment No. 1 to the proposed rule that period. ICE Clear Europe could, at provisions of 5 U.S.C. 552, will be change as described in Item I below, its discretion, approve such request. In available for website viewing and which has been prepared primarily by this Partial Amendment No. 1, ICE Clear printing in the Commission’s Public ICE Clear Europe. The Commission is Europe is providing the explanation in Reference Room, 100 F Street NE, publishing this notice to solicit the paragraph below to supplement the Washington, DC 20549 on official comment on Partial Amendment No. 1 description of the amendment to business days between the hours of from interested persons. paragraph 5.3 of the CDS Procedures 10:00 a.m. and 3:00 p.m. Copies of the I. Clearing Agency’s Statement of the that was provided in the Initial Filing. filing also will be available for Terms of Partial Amendment No. 1 to In general, paragraph 5.3 is intended inspection and copying at the principal the Proposed Rule Change to give ICE Clear Europe a degree of office of LCH SA and on LCH SA’s flexibility in responding to a request for website at: https://www.lch.com/ ICE Clear Europe submits this partial amendment (‘‘Partial Amendment No. postponement from a Clearing Member, resources/rulebooks/proposed-rule- in light of the difficulty in outlining in changes. All comments received will be 1’’) to its previously submitted proposed rule changes (the ‘‘Initial Filing’’) to advance all potential scenarios where it posted without change. Persons may be appropriate. In ICE Clear submitting comments are cautioned that modify its CDS Procedures (the ‘‘CDS Procedures’’ or the ‘‘Procedures’’) 6 to Europe’s view, based on its experience we do not redact or edit personal update the requirements for a Clearing and discussions with Clearing Members identifying information from comment Member to be approved to be a CDS about service on the committee, an submissions. You should submit only Committee-Eligible Clearing Member for acceptable excuse would most likely information that you wish to make purposes of the CDS Default Committee, relate to temporary resource constraints available publicly. All submissions as well as certain other updates and at the Clearing Member. For example, if should refer to File Number SR–LCH clarifications, and to modify its CDS the committee member were already SA–2020–007 and should be submitted Default Management Policy (the ‘‘CDS serving on the default committee of on or before February 2, 2021. Default Management Policy’’ or another clearing house during the For the Commission, by the Division of ‘‘Policy’’) to make corresponding relevant period or if a committee Trading and Markets, pursuant to delegated updates to the requirements for a member otherwise had limited staffing authority.9 Clearing Member to be eligible to serve resources to commit to the committee J. Matthew DeLesDernier, on the CDS Default Committee, as well during that period, this may be Assistant Secretary. as to provide more detail with respect considered satisfactory. ICE Clear [FR Doc. 2021–00348 Filed 1–11–21; 8:45 am] to review and testing of its default Europe would expect to discuss the BILLING CODE 8011–01–P procedures, remove appendices and particular situation with the Clearing make certain other updates and Member in question and would respond clarifications to be consistent with other to any request for postponement to let SECURITIES AND EXCHANGE ICE Clear Europe policies. Partial the Clearing Member know whether its COMMISSION Amendment No. 1 is intended to amend rationale was satisfactory. ICE Clear Item 3(a) of the Initial Filing to add an Europe believes this type of flexible [Release No. 34–90861; File No. SR–ICEEU– approach is ultimately more favorable to 2020–018] explanation as to the circumstances pursuant to which ICE Clear Europe both the Clearing House and Clearing Self-Regulatory Organizations; ICE may permit a CDS Committee-Eligible Members than having a more rigid rule. Clear Europe Limited; Notice of Filing Clearing Member to postpone The purpose of the rule change as set of Partial Amendment No. 1 To participation in the CDS Default out in Item 3(a) of the Initial Filing is Proposed Rule Change Relating to Committee for a Relevant CDS Default otherwise unchanged. Amendments to the ICE Clear Europe II. Date of Effectiveness of the Proposed 1 CDS Procedures and CDS Default 15 U.S.C. 78s(b)(1). Rule Change and Timing for Management Policy 2 17 CFR 240.19b–4. 3 Self-Regulatory Organizations; ICE Clear Europe Commission Action January 6, 2021. Limited; Notice of Filing of Proposed Rule Change Within 45 days of the date of Relating to Amendments to the ICE Clear Europe On December 14, 2020, ICE Clear CDS Procedures and CDS Default Management publication of this notice in the Federal Europe Limited (‘‘ICE Clear Europe’’ or Policy, Securities Exchange Act Release No. 90806 Register or within such longer period the ‘‘Clearing House’’) filed with the (December 28, 2020), 86 FR 169 (January 4, 2021) up to 90 days (i) as the Commission may Securities and Exchange Commission (SR–ICEEU–2020–018). designate if it finds such longer period 4 (‘‘Commission’’), pursuant to Section 15 U.S.C. 78s(b)(1) to be appropriate and publishes its 5 17 CFR 240.19b–4. 19(b)(1) of the Securities Exchange Act 6 Capitalized terms used but not defined herein reasons for so finding or (ii) as to which have the meanings specified in the ICE Clear the self-regulatory organization 9 17 CFR 200.30–3(a)(12). Europe Clearing Rules and the CDS Procedures. consents, the Commission will:
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(A) By order approve or disapprove to File Number SR–ICEEU–2020–018 concerning the purpose of and basis for the proposed rule change or and should be submitted on or before the proposed rule change and discussed (B) institute proceedings to determine February 2, 2021. any comments it received on the whether the proposed rule change For the Commission, by the Division of proposed rule change. The text of these should be disapproved. Trading and Markets, pursuant to delegated statements may be examined at the III. Solicitation of Comments authority.7 places specified in Item IV below. The J. Matthew DeLesDernier, Exchange has prepared summaries, set Interested persons are invited to forth in sections A, B, and C below, of submit written data, views, and Assistant Secretary. [FR Doc. 2021–00350 Filed 1–11–21; 8:45 am] the most significant aspects of such arguments concerning the foregoing, statements. including whether the proposed rule BILLING CODE 8011–01–P change is consistent with the Act. A. Self-Regulatory Organization’s Comments may be submitted by any of Statement of the Purpose of, and the following methods: SECURITIES AND EXCHANGE Statutory Basis for, the Proposed Rule COMMISSION Change Electronic Comments [Release No. 34–90863; File No. SR– 1. Purpose • Use the Commission’s internet CboeBZX–2021–004] comment form (http://www.sec.gov/ The Exchange proposes to amend the rules/sro.shtml) or Self-Regulatory Organizations; Cboe fee schedule applicable to its equities • Send an email to rule-comments@ BZX Exchange, Inc.; Notice of Filing trading platform (‘‘BZX Equities’’) to sec.gov. Please include File Number SR– and Immediate Effectiveness of update the Standard Rates and ICEEU–2020–018 on the subject line. Proposed Rule Change To Amend Its Enhanced Rates provided under the Fee Schedule Relating to LMM Paper Comments Lead Market Maker (‘‘LMM’’) Liquidity Financial Incentives Provision Rates, effective January 4, • Send paper comments in triplicate 2021. The Exchange believes the to Secretary, Securities and Exchange January 6, 2021. proposed changes will better incentivize Commission, 100 F Street NE, LMMs to meet the Standard and Pursuant to Section 19(b)(1) of the Washington, DC 20549–1090. Enhanced Minimum Performance Securities Exchange Act of 1934 (the All submissions should refer to File Standards where their average aggregate ‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Number SR–ICEEU–2020–018. This file daily auction volume is 1,000,000 notice is hereby given that on January 4, number should be included on the shares or less. 2021, Cboe BZX Exchange, Inc. (the subject line if email is used. To help the The Exchange first notes that its ‘‘Exchange’’ or ‘‘BZX’’) filed with the Commission process and review your listing business operates in a highly- Securities and Exchange Commission comments more efficiently, please use competitive market in which market (‘‘Commission’’) the proposed rule only one method. The Commission will participants, which includes issuers of change as described in Items I, II, and post all comments on the Commission’s securities, LMMs, and other liquidity III below, which Items have been internet website (http://www.sec.gov/ providers, can readily transfer their prepared by the Exchange. The rules/sro.shtml). Copies of the listings, opt not to participate, or direct Commission is publishing this notice to submission, all subsequent order flow to competing venues if they solicit comments on the proposed rule amendments, all written statements deem fee levels, liquidity provision change from interested persons. with respect to the proposed rule incentive programs, or any other factor change that are filed with the I. Self-Regulatory Organization’s at a particular venue to be insufficient Commission, and all written Statement of the Terms of the Substance or excessive. The proposed rule changes communications relating to the of the Proposed Rule Change reflect a competitive pricing structure proposed rule change between the Cboe BZX Exchange, Inc. (the designed to incentivize market Commission and any person, other than ‘‘Exchange’’ or ‘‘BZX’’) is filing with the participants to participate as LMMs in those that may be withheld from the Securities and Exchange Commission the Exchange’s LMM Program, which public in accordance with the (‘‘Commission’’) a proposed rule change the Exchange believes will enhance provisions of 5 U.S.C. 552, will be to amend the fee schedule. The text of market quality in all securities listed on available for website viewing and the proposed rule change is provided in the Exchange and encourage issuers to printing in the Commission’s Public Exhibit 5. list new products and transfer existing Reference Room, 100 F Street NE, The text of the proposed rule change products to the Exchange. Washington, DC 20549, on official is also available on the Exchange’s The Exchange currently offers daily business days between the hours of website (http://markets.cboe.com/us/ incentives for LMMs in Exchange 10:00 a.m. and 3:00 p.m. Copies of such equities/regulation/rule_filings/bzx/), at Traded Products (‘‘ETPs’’) listed on the filings will also be available for the Exchange’s Office of the Secretary, Exchange for which the LMM meets inspection and copying at the principal and at the Commission’s Public certain Minimum Performance office of ICE Clear Europe and on ICE Reference Room. Standards.3 Such daily incentives are Clear Europe’s website https:// www.theice.com/clear-europe/ II. Self-Regulatory Organization’s 3 As defined in Rule 11.8(e)(1)(E), the term regulation. Statement of the Purpose of, and ‘‘Minimum Performance Standards’’ means a set of All comments received will be posted Statutory Basis for, the Proposed Rule standards applicable to an LMM that may be Change determined from time to time by the Exchange. without change. Persons submitting Such standards will vary between LMM Securities comments are cautioned that we do not In its filing with the Commission, the depending on the price, liquidity, and volatility of redact or edit personal identifying Exchange included statements the LMM Security in which the LMM is registered. information from comment submissions. The performance measurements will include: (A) Percent of time at the NBBO; (B) percent of You should submit only information 7 17 CFR 200.30–3(a)(12). executions better than the NBBO; (C) average that you wish to make available 1 15 U.S.C. 78s(b)(1). displayed size; and (D) average quoted spread. For publicly. All submissions should refer 2 17 CFR 240.19b–4. additional detail, see Original LMM Filing.
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determined based on the number of volume across such securities. Generally the auction volume across those ETPs, Cboe-listed ETPs for which the LMM speaking, the more LMM Securities 4 for the greater the total daily payment to the meets such Minimum Performance which the LMM meets the Minimum LMM. Such daily incentive Standard Standards and the average auction Performance Standards and the higher Rates are structured as follows:
Average aggregate daily auction volume in LMM Securities 10,001– 100,001– 500,001– 1,000,001– 3,000,001 0–10,000 100,000 500,000 1,000,000 3,000,000 or greater
Daily Incentive for each Qualified Security 1–5 ...... $10 $25 $40 $50 $150 $200 Daily Incentive for each Qualified Security 6–25 ...... 10 25 25 30 100 150 Daily Incentive for each Qualified Security 26–50 ...... 10 10 20 25 75 100 Daily Incentive for each Qualified Security 51–100 ...... 10 10 15 20 50 75 Daily Incentive for each Qualified Security Greater Than 100 ...... 10 10 15 15 25 50
By way of example, if an LMM has 30 closing auction), and 10 of which each Qualified ETPs, $100 each for Qualified LMM Securities, each of which is a have an average daily auction volume of ETPs 6–25, and $75 each for Qualified Qualified ETP,5 10 of which each have 200,000 shares (combined between the ETPs 26–30. This would result in a an average daily auction volume of opening and closing auction), then the daily payment of ($150 * 5) + ($100 * 5,000 shares (combined between the LMM would fall into the fifth column 20) + ($75 * 5) = $3,125 to the LMM. opening and closing auction), 10 of (10 * 5,000 + 10 * 50,000 + 10 * 200,000 LMMs that meet a more stringent set which each have an average daily = 2,550,000 average aggregate daily of standards also receive enhanced daily auction volume of 50,000 shares auction volume). As such, the LMM incentives (i.e., the Enhanced Rates), as (combined between the opening and would receive $150 each for five follows:
Average aggregate daily auction volume in LMM Securities 10,001– 100,001– 500,001– 1,000,001– 3,000,001 0–10,000 100,000 500,000 1,000,000 3,000,000 or greater
Daily Incentive for each Enhanced Security 1–5 ...... $2.50 $6.25 $10 $12.50 $37.50 $50 Daily Incentive for each Enhanced Security 6–25 ...... 2.50 6.25 6.25 7.50 25 37.50 Daily Incentive for each Enhanced Security 26–50 ...... 2.50 2.50 5 6.25 18.75 25 Daily Incentive for each Enhanced Security 51–100 ...... 2.50 2.50 3.75 5 12.50 18.75 Daily Incentive for each Enhanced Security Greater Than 100...... 2.50 2.50 3.75 3.75 6.25 12.50
Using the same example as above, Second, the Exchange proposes to the fifth column (10 * 5,000 + 10 * where the LMM has 30 LMM Securities, reduce the Standard Rates payments for 50,000 + 10 * 200,000 = 2,550,000 10 of which are Enhanced ETPs, which average aggregate daily auction volume average aggregate daily auction volume). have 2,550,000 shares of average of 1,000,001 shares or more for each row As such, under the proposed Standard aggregate daily auction volume in LMM of Qualified Security ranges. Rates the LMM would receive $100 each Securities, the issuer would fall into the Specifically, the Exchange proposes to for Qualified ETPs 1–5, $70 each for fifth column. As such, the LMM would reduce the payments in the fifth column Qualified ETPs 6–25, and $50 each for receive an additional $37.50 for each of as follows: $100 Daily Incentive for each Qualified ETPs 26–30. This would its first five Enhanced ETPs and an Qualified Security 1–5, $70 Daily result in a daily payment of ($100 * 5) additional $25 each for Enhanced ETPs Incentive for each Qualified Security + ($70 * 20) + ($50 * 5) = $2,150 to the 6–10. This would result in an additional 6–25, $50 Daily Incentive for each LMM. daily payment of ($37.50 * 5) + ($25 * Qualified Security 26–50, $25 Daily 5) = $312.50 to the LMM. Incentive for each Qualified Security Third, the Exchange proposes to 51–100, and $20 Daily Incentive for decrease the Enhanced Rates payments Proposed Changes each Qualified Security greater than for securities with average aggregate daily auction volume over 1,000,000 The Exchange proposes to amend the 100. shares and increase the Enhanced Rates Standard Rates and Enhanced Rates For instance, using the same example payments for securities with average discussed above. First, the Exchange as above, where the LMM has 30 LMM proposes to eliminate the sixth column Securities, 10 of which each have an aggregate daily auction volume of of both the Standard Rates and average daily auction volume of 5,000 1,000,000 shares or lower. Specifically, Enhanced Rates so that average shares, 10 of which each have an the Exchange proposes the following aggregate daily auction volume of average daily auction volume of 50,000 Enhanced Rates: 1,000,001 shares or more is considered shares, and 10 of which each have an the highest average aggregate daily average daily auction volume of 200,000 auction volume column. shares, then the LMM would fall into
4 As defined in Rule 11.8(e)(1)(D), the term ‘‘LMM 5 As provided in footnote 14 of the Fee Schedule, Security’’ means an ETP that has an LMM. a ‘‘Qualified ETP’’ is an ETP for which an LMM is a Qualified LMM.
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Average aggregate daily auction volume in LMM Securities 10,001– 100,001– 500,001– 1,000,001 0–10,000 100,000 500,000 1,000,000 or greater
Daily Incentive for each Enhanced Security 1–5 ...... $3 $7.50 $12 $15 $30 Daily Incentive for each Enhanced Security 6–25 ...... 3 7.50 7.50 9 21 Daily Incentive for each Enhanced Security 26–50 ...... 3 3 6 7.50 15 Daily Incentive for each Enhanced Security 51–100 ...... 3 3 4.50 6 7.50 Daily Incentive for each Enhanced Security Greater Than 100 ...... 3 3 4.50 4.50 6
The proposed changes are designed to Section 6(b) of the Act.6 Specifically, is extremely competitive and there are encourage LMMs with average aggregate the Exchange believes the proposed rule several other national securities daily auction volume of 1,000,000 change is consistent with the Section exchanges that offer ETP listings. shares or less to meet the Standard and 6(b)(5) 7 requirements that the rules of Transfers between listing venues occur Enhanced Minimum Performance an exchange be designed to prevent frequently for numerous reasons, Standards. The proposed changes would fraudulent and manipulative acts and including market quality. This proposal decrease payments in LMM securities practices, to promote just and equitable is intended to help the Exchange with average aggregate daily auction principles of trade, to foster cooperation compete as an ETP listing venue. volume of 1,000,001 shares or greater. and coordination with persons engaged Specifically, the Exchange believes that Using the same example above, where in regulating, clearing, settling, the proposal is reasonable because it the LMM has 30 LMM Securities, 10 of processing information with respect to, believes that the proposed amendments which are Enhanced ETPs, which have and facilitating transactions in will encourage LMMs with lower 2,550,000 shares of average aggregate securities, to remove impediments to aggregate auction volumes to meet the daily auction volume in LMM and perfect the mechanism of a free and Enhanced Minimum Performance Securities, the issuer would fall into the open market and a national market Standards. The Exchange believes that fifth column. As such, the LMM would system, and, in general, to protect incentivizing such LMMs to meet the receive an additional $30 for each of its investors and the public interest. Enhanced Minimum Performance first five Enhanced ETPs and an Additionally, the Exchange believes the Standards will increase market quality additional $21 each for Enhanced ETPs proposed rule change is consistent with in lower volume BZX-listed ETPs. To 6–10. This would result in an additional the Section 6(b)(5) 8 as it is designed to the extent that market quality in any daily payment of ($30 * 5) + ($21 * 5) provide for the equitable allocation of BZX-listed ETP is negatively impacted, = $255 to the LMM as opposed to the reasonable dues, fees and other charges competitive forces would generally $312.50 it would receive under the among its Members and other persons dictate that the primary listing venue current Enhanced Rates. using its facilities. The Exchange also enhance their own liquidity provision However, the proposed Enhanced notes that its listing business operates in programs or that the security would Rates are also designed to increase a highly-competitive market in which transfer to a different primary listing payments in LMM Securities with market participants, which includes venue. 1,000,000 or less average aggregate daily issuers of securities, LMMs, and other The Exchange believes that the auction volume. For example, if an liquidity providers, can readily transfer proposal represents an equitable LMM has 30 LMM Securities, each of their listings, opt not to participate, or allocation of payments and is not which is a Qualified ETP, 10 of which direct order flow to competing venues if unfairly discriminatory because, while each have an average daily auction they deem fee levels, liquidity provision the proposed payments apply only to volume of 500 shares, 10 of which each incentive programs, or any other factor LMMs, such LMMs must meet rigorous have an average daily auction volume of at a particular venue to be insufficient Minimum Performance Standards in 10,000 shares, and 10 of which each or excessive. The proposed rule changes order to receive the payments. Where an have an average daily auction volume of reflect a competitive pricing structure LMM does not meet the Minimum 20,000 shares, then the LMM would fall designed to incentivize market Performance Standards for the Standard into the third column (10 * 500 + 10 * participants to participate as LMMs in and Enhanced Rates, they will not 10,000 + 10 * 20,000 = 305,000 average the Exchange’s LMM Program, which receive the applicable payment. Further, aggregate daily auction volume). As the Exchange believes will enhance registration as an LMM is available such, the LMM would receive $12 each market quality in all securities listed on equally to all Members and allocation of for Qualified ETPs 1–5, $7.50 each for the Exchange and encourage issuers to listed ETPs between LMMs is governed Qualified ETPs 6–25, and $6 each for list new products and transfer existing by Exchange Rule 11.8(e)(2). If an LMM Qualified ETPs 26–30. This would products to the Exchange. does not meet the Minimum result in a daily payment of ($12 * 5) + The Exchange believes that the Performance Standards for three out of ($7.50 * 20) + ($6 * 5) = $240 to the proposed changes to the Standard Rates the past four months, the LMM is LMM. Under the current Enhanced and Enhanced Rates of the LMM subject to forfeiture of LMM status for Rates, the LMM would receive a daily Liquidity Provision Rates are consistent that LMM Security, at the Exchange’s payment of ($10 * 5) + (6.25 * 20) + (5 with the Act and represent a reasonable, discretion. * 5) = $200. equitable, and not unfairly Further, the proposed daily payment amounts would continue to be based 2. Statutory Basis discriminatory means to incentivize liquidity provision in ETPs listed on the specifically on the Exchange’s revenue The Exchange believes the proposed Exchange. The marketplace for listings model. For ETPs with greater auction rule change is consistent with the Act volume, the Exchange generally makes and the rules and regulations 6 15 U.S.C. 78f(b). more money and, thus, is able to offer thereunder applicable to the Exchange 7 15 U.S.C. 78f(b)(5). LMMs with LMM Securities that have and, in particular, the requirements of 8 Id. higher average aggregate daily auction
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volume higher payments. Specifically, an LMM does not meet the Minimum internet website (http://www.sec.gov/ the payment per Qualified ETP (and Performance Standards for three out of rules/sro.shtml). Copies of the thus the total payment to an LMM) the past four months, the LMM is submission, all subsequent generally goes up as the CADV moves subject to forfeiture of LMM status for amendments, all written statements from left to right because as the average that LMM Security, at the Exchange’s with respect to the proposed rule aggregate daily auction volume in LMM discretion. change that are filed with the Securities increases, the Exchange will Commission, and all written C. Self-Regulatory Organization’s generate additional revenue and can communications relating to the Statement on Comments on the thus support increased payments to proposed rule change between the Proposed Rule Change Received From LMMs. Similarly, the payments per Commission and any person, other than Members, Participants, or Others Qualified ETP generally go down as the those that may be withheld from the number of Qualified ETPs goes up in The Exchange neither solicited nor public in accordance with the order to ensure that the daily incentive received comments on the proposed provisions of 5 U.S.C. 552, will be payments do not exceed the Exchange’s rule change. available for website viewing and revenue for that LMM’s LMM Securities III. Date of Effectiveness of the printing in the Commission’s Public while still providing incentives for Proposed Rule Change and Timing for Reference Room, 100 F Street NE, LMMs to take on additional ETPs. While Commission Action Washington, DC 20549, on official the proposed changes would reduce business days between the hours of payments to LMMs with higher average The foregoing rule change has become 10:00 a.m. and 3:00 p.m. Copies of the aggregate daily auction volume, such effective pursuant to Section 19(b)(3)(A) filing also will be available for 9 payments would still be higher than the of the Act and paragraph (f) of Rule inspection and copying at the principal 10 proposed increased payments for LMMs 19b–4 thereunder. At any time within office of the Exchange. All comments with lower average aggregate daily 60 days of the filing of the proposed rule received will be posted without change. auction volume. As such, the Exchange change, the Commission summarily may Persons submitting comments are believes that the proposal is an temporarily suspend such rule change if cautioned that we do not redact or edit equitable allocation of payments and is it appears to the Commission that such personal identifying information from not unfairly discriminatory. action is necessary or appropriate in the comment submissions. You should public interest, for the protection of B. Self-Regulatory Organization’s submit only information that you wish investors, or otherwise in furtherance of Statement on Burden on Competition to make available publicly. All the purposes of the Act. If the submissions should refer to File The Exchange does not believe that Commission takes such action, the Number SR–CboeBZX–2021–004 and the proposed rule changes will impose Commission will institute proceedings should be submitted on or before any burden on competition not to determine whether the proposed rule February 2, 2021. necessary or appropriate in furtherance change should be approved or of the purposes of the Act. The disapproved. For the Commission, by the Division of Exchange does not believe the proposed Trading and Markets, pursuant to delegated 11 change burdens competition, but rather, IV. Solicitation of Comments authority. enhances competition as it is intended Interested persons are invited to J. Matthew DeLesDernier, to increase the competitiveness of BZX submit written data, views, and Assistant Secretary. both among Members by incentivizing arguments concerning the foregoing, [FR Doc. 2021–00349 Filed 1–11–21; 8:45 am] Members to become LMMs in BZX- including whether the proposed rule BILLING CODE 8011–01–P listed ETPs and as a listing venue by change is consistent with the Act. enhancing market quality in BZX-listed Comments may be submitted by any of ETPs. The marketplace for listings is the following methods: SELECTIVE SERVICE SYSTEM extremely competitive and there are Electronic Comments several other national securities Forms Submitted to the Office of • exchanges that offer ETP listings. Use the Commission’s internet Management and Budget for Extension Transfers between listing venues occur comment form (http://www.sec.gov/ of Clearance frequently for numerous reasons, rules/sro.shtml); or including market quality. This proposal • Send an email to rule-comments@ AGENCY: Selective Service System. is intended to help the Exchange sec.gov. Please include File Number SR– ACTION: Notice. compete as an ETP listing venue. CboeBZX–2021–004 on the subject line. Accordingly, the Exchange does not The following forms have been Paper Comments believe that the proposed change will submitted to the Office of Management impair the ability of issuers, LMMs, or • Send paper comments in triplicate and Budget (OMB) for extension of competing ETP listing venues to to Secretary, Securities and Exchange clearance in compliance with the maintain their competitive standing. Commission, 100 F Street NE, Paperwork Reduction Act (44 U.S.C. The Exchange also notes that the Washington, DC 20549–1090. Chapter 35): proposed change is intended to enhance All submissions should refer to File SSS FORMS 2, 3A, 3B and 3C market quality in BZX-listed ETPs, to Number SR–CboeBZX–2021–004. This the benefit of all investors in BZX-listed file number should be included on the Title: Selective Service System ETPs. The Exchange does not believe subject line if email is used. To help the Change of Information, Correction/ the proposed amendment would burden Commission process and review your Change Form, and Registration Status intra-market competition as it would be comments more efficiently, please use Forms. available to all Members uniformly. only one method. The Commission will Purpose: To insure the accuracy and Registration as an LMM is available post all comments on the Commission’s completeness of the Selective Service equally to all Members and allocation of System registration data. listed ETPs between LMMs is governed 9 15 U.S.C. 78s(b)(3)(A). by Exchange Rule 11.8(e)(2). Further, if 10 17 CFR 240.19b–4(f). 11 17 CFR 200.30–3(a)(12).
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Respondents: Registrants are required • Curtis Rich, Agency Clearance Board’s website under docket no. to report changes or corrections in data Officer, [email protected]; 202–205– WB21–03. submitted on the SSS Form 1. 7030 The waybill sample contains Frequency: When changes in a FOR FURTHER INFORMATION CONTACT: confidential railroad and shipper data; registrant’s name or address occur. Shay Meinzer, Lead Program Evaluator, therefore, if any parties object to these Burden: A burden of two minutes or [email protected]; 202–539–1429. requests, they should file their less on the individual respondent. objections with the Director of the SUPPLEMENTARY INFORMATION: Copies: Change: Registrant may now update Board’s Office of Economics within 14 You may obtain a copy of the their email address and phone number. calendar days of the date of this notice. information collection and supporting Copies of the above identified forms The rules for release of waybill data are documents from the Agency Clearance can be obtained upon written request to codified at 49 CFR 1244.9. Officer or Lead Program Evaluator. the Selective Service System, The SBA Microloan Program surveys Contact: Alexander Dusenberry, (202) Operations Directorate, 1515 Wilson and interviews will be completed by 245–0319. Boulevard, Arlington, Virginia 22209– borrowers and intermediary lenders that Aretha Laws-Byrum, 2425. participated in the program. Data Written comments and Clearance Clerk. collected on lending and technical [FR Doc. 2021–00433 Filed 1–11–21; 8:45 am] recommendations for the proposed assistance activities, business growth, BILLING CODE 4915–01–P extension of clearance of the form revenue, job creation, and survival will should be sent within 30 days of the be used to develop recommendations to publication of this notice to the improve the program. These data also Selective Service System, Operations provide an understanding of the specific OFFICE OF THE UNITED STATES Directorate, 1515 Wilson Boulevard, ways in which SBA’s micro-financing TRADE REPRESENTATIVE Arlington, Virginia 22209–2425. activities contribute to the growth and A copy of the comments should be sustainability of small businesses. Notice of Determination Pursuant to sent to the Office of Information and Title: SBA Microloan Program Section 301: Italy’s Digital Services Regulatory Affairs, Attention: Desk Outcome Evaluation. Tax Officer, Selective Service System, Office OMB Control Number: 3245–TBD of Management and Budget, New (New). AGENCY: Office of the United States Executive Office Building, Room 3235, Description of Respondents: Trade Representative (USTR). Washington, DC 20503. Microloan program borrowers and ACTION: Notice. Wadi Yakhour, intermediary lenders. Estimated Annual Responses: 1,006. SUMMARY: The U.S. Trade Chief of Staff. Estimated Annual Hour Burden: Representative has determined that [FR Doc. 2021–00448 Filed 1–11–21; 8:45 am] 2,286. Italy’s Digital Services Tax (DST) is BILLING CODE 8015–01–P The public is invited to submit unreasonable or discriminatory and comments regarding any aspect of this burdens or restricts U.S. commerce and information collection, including the thus is actionable under Section 301. SMALL BUSINESS ADMINISTRATION following: (1) The necessity and utility FOR FURTHER INFORMATION CONTACT: For of the proposed information collection questions concerning the investigation, Reporting and Recordkeeping for the proper performance of the please contact Thomas Au or Patrick Requirements Under OMB Review agency’s functions; (2) the accuracy of Childress, Assistant General Counsels at the estimated burden; (3) ways to (202) 395–0380 and (202) 395–9531, AGENCY: Small Business Administration. enhance the quality, utility, and clarity respectively, Robert Tanner, Director, ACTION: 30-Day notice. of the information to be collected; and Services and Investment at (202) 395– (4) the use of automated collection 6125, or Michael Rogers, Director, SUMMARY: The Small Business techniques or other forms of information Europe and the Middle East at (202) Administration (SBA) is seeking technology to minimize the information 395–2684. approval from the Office of Management collection burden of those who are SUPPLEMENTARY INFORMATION: and Budget (OMB) for the information required to respond to the request for collection described below. In information. I. Italy’s DST accordance with the Paperwork Reduction Act and OMB procedures, Curtis Rich, Based on information obtained during SBA is publishing this notice to allow Management Analyst. the investigation, USTR has prepared a comprehensive report on Italy’s DST all interested member of the public an [FR Doc. 2021–00320 Filed 1–11–21; 8:45 am] (Italy DST Report). The Italy DST additional 30 days to provide comments BILLING CODE 8026–03–P on the proposed collection of Report, which is posted on the USTR information. website at https://ustr.gov/issue-areas/ enforcement/section-301-investigations/ DATES: Submit comments on or before SURFACE TRANSPORTATION BOARD section-301-digital-services-taxes, February 11, 2021. Release of Waybill Data includes a full description of Italy’s ADDRESSES: Submit comments by the DST. To summarize, Italy adopted the deadline stated in the DATES section The Surface Transportation Board has operative form of its DST on December above to: received a request from the Association 27, 2019. The DST applies to companies • www.reginfo.gov/public/do/ of American Railroads (WB21–03—1/6/ that, during the previous calendar year, PRAMain. You can find this information 21) for permission to use data from the generated Ö750 million or more in collection by selecting ‘‘Currently under Board’s 2019 Masked Carload Waybill worldwide revenues and Ö5.5 million or Review—Open for Public Comments’’ Sample along with continued access to more in revenues deriving from the and searching by title, ‘‘SBA Microloan previously received datasets. A copy of provision of digital services in Italy. The Program Outcome Evaluation’’; and this request may be obtained from the tax applies as of January 1, 2020.
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II. Proceedings in the Investigation international taxation, including due to percent tax on revenue generated from On June 2, 2020, the U.S. Trade application to revenue rather than a broad range of digital services offered Representative initiated an investigation income and extraterritoriality. in India, including digital platform of Italy’s DST pursuant to section 3. Italy’s DST burdens or restricts U.S. services, digital content sales, digital 302(b)(1)(A) of the Trade Act of 1974, as commerce. sales of a company’s own goods, data- amended (Trade Act). 85 FR 34709 (June IV. Further Proceedings related services, software-as-a-service, 5, 2020) (notice of initiation). The notice and several other categories of digital Sections 301(b) and 304(a)(1)(B) of the services. India’s DST only applies to of initiation solicited written comments Trade Act provide that if the U.S. Trade on, inter alia, the following aspects of ‘‘non-resident’’ companies. The tax Representative determines that an act, applies as of April 1, 2020. Italy’s DST: Discrimination against U.S. policy, or practice of a foreign country companies; retroactivity; and possibly is unreasonable or discriminatory and II. Proceedings in the Investigation unreasonable tax policy. With respect to burdens or restricts United States On June 2, 2020, the U.S. Trade tax policy, USTR solicited comments commerce, the U.S. Trade Representative initiated an investigation on, inter alia, whether the DST diverges Representative shall determine what of India’s DST pursuant to section from principles reflected in the U.S. and action, if any, to take under Section 302(b)(1)(A) of the Trade Act of 1974, as international tax systems, including 301(b). These matters will be addressed amended (Trade Act). 85 FR 34709 (June extraterritoriality; taxing revenue not in subsequent proceedings under 5, 2020) (notice of initiation). The notice income; and a purpose of penalizing Section 301. of initiation solicited written comments particular technology companies for on, inter alia, the following aspects of their commercial success. Joseph Barloon, Interested persons filed over 380 India’s DST: Discrimination against U.S. General Counsel, Office of the United States companies and unreasonableness as tax written submissions in response to the Trade Representative. notice of initiation. The public policy. With respect to unreasonable tax [FR Doc. 2021–00363 Filed 1–11–21; 8:45 am] policy, USTR solicited comments on, submissions are available on BILLING CODE 3290–F0–P www.regulations.gov in docket number inter alia, whether the DST diverges USTR–2020–0022. from principles reflected in the U.S. and Under Section 303 of the Trade Act, OFFICE OF THE UNITED STATES international tax systems, including the U.S. Trade Representative requested TRADE REPRESENTATIVE extraterritorial application and taxing consultations with the Government of revenue rather than income. Italy regarding the issues involved in Notice of Determination Pursuant to Interested persons filed over 380 the investigation. Consultations were Section 301: India’s Digital Services written submissions in response to the held on November 10, 2020. Tax notice of initiation. The public As noted, based on information submissions are available on obtained during the investigation, USTR AGENCY: Office of the United States www.regulations.gov in docket number has prepared and published the Italy Trade Representative (USTR). USTR–2020–0022. DST Report, which includes a ACTION: Notice. Under Section 303 of the Trade Act, comprehensive discussion on whether the U.S. Trade Representative requested SUMMARY: The U.S. Trade consultations with the Government of the acts, policies, and practices under Representative has determined that investigation are actionable under India regarding the issues involved in India’s Digital Services Tax (DST) is the investigation. Consultations were Section 301(b) of the Trade Act. The unreasonable or discriminatory and Italy DST Report supports findings that held on November 5, 2020. burdens or restricts U.S. commerce and As noted, based on information Italy’s DST is unreasonable or thus is actionable under Section 301. discriminatory and burdens or restricts obtained during the investigation, USTR FOR FURTHER INFORMATION CONTACT: U.S. commerce. For has prepared and published the India questions concerning the investigation, DST Report, which includes a III. Determination on the Act, Policy, or please contact Thomas Au or Patrick comprehensive discussion on whether Practice Under Investigation Childress, Assistant General Counsels at the acts, policies, and practices under Based on the information obtained (202) 395–0380 and (202) 395–9531, investigation are actionable under during the investigation, and taking respectively, Robert Tanner, Director, Section 301(b) of the Trade Act. The account of public comments and the Services and Investment at (202) 395– India DST Report supports findings that advice of the Section 301 Committee 6125, or Brendan Lynch, Deputy India’s DST is unreasonable or and advisory committees, the U.S. Trade Assistant U.S. Trade Representative, discriminatory and burdens or restricts Representative has made the following South and Central Asian Affairs, 202– U.S. commerce. determination under sections 301(b) and 395–2851. III. Determination on the Act, Policy, or 304(a) of the Trade Act (19 U.S.C. SUPPLEMENTARY INFORMATION: Practice Under Investigation 2411(b) and 2414(a)): The act, policy, or I. India’s DST practice covered in the investigation, Based on the information obtained namely Italy’s DST, is unreasonable or Based on information obtained during during the investigation, and taking discriminatory and burdens or restricts the investigation, USTR has prepared a account of public comments and the U.S. commerce, and thus is actionable comprehensive report on India’s DST advice of the Section 301 Committee under section 301(b) of the Trade Act. (India DST Report). The India DST and advisory committees, the U.S. Trade In particular: Report, which is posted on the USTR Representative has made the following 1. Italy’s DST, by its structure and website at https://ustr.gov/issue-areas/ determination under sections 301(b) and operation, discriminates against U.S. enforcement/section-301-investigations/ 304(a) of the Trade Act (19 U.S.C. digital companies, including due to the section-301-digital-services-taxes, 2411(b) and 2414(a)): The act, policy, or selection of covered services and the includes a full description of India’s practice covered in the investigation, revenue thresholds. DST. To summarize, India adopted the namely India’s DST, is unreasonable or 2. Italy’s DST is unreasonable because operative form of its DST on March 27, discriminatory and burdens or restricts it is inconsistent with principles of 2020. India’s DST imposes a two U.S. commerce, and is thus actionable
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under section 301(b) of the Trade Act. respectively, Robert Tanner, Director, comments. Transcripts from the August In particular: Services and Investment at (202) 395– 2019 and January 2020 hearings are 1. India’s DST, by its structure and 6125, or Michael Rogers, Director for available on the USTR website at operation, discriminates against U.S. Europe at (202) 395–2684. For specific https://ustr.gov/issue-areas/ digital companies, including due to the questions on customs classification or enforcement/section-301-investigations/ selection of covered services and its implementation of additional duties on section-301-frances-digital-services-tax. applicability only to non-resident products, contact [email protected]. The written public submissions are companies. SUPPLEMENTARY INFORMATION: available on www.regulations.gov under 2. India’s DST is unreasonable docket number USTR–2019–0009. because it is inconsistent with I. Background In a notice published on July 16, principles of international taxation, On July 10, 2019, the U.S. Trade 2020, the U.S. Trade Representative including due to its application to Representative initiated the determined to impose ad valorem duties revenue rather than income, investigation of France’s digital services of 25 percent on specified products of extraterritorial application, and failure tax (DST) pursuant to section France. See 85 FR 43292 (July 16, 2020 to provide tax certainty. 302(b)(1)(A) of the Trade Act of 1974, as notice). The U.S. Trade Representative 3. India’s DST burdens or restricts amended (Trade Act). See 84 FR 34042 also determined to suspend the U.S. commerce. (July 16, 2019) (July 16, 2019 notice). additional duties for up to 180 days The July 16, 2019 notice invited public (that is, until January 6, 2021) to allow IV. Further Proceedings comment on France’s DST, including additional time for bilateral and Sections 301(b) and 304(a)(1)(B) of the whether the tax would discriminate multilateral discussions that could lead Trade Act provides that if the U.S. against U.S. companies, the retroactive to a satisfactory resolution of this Trade Representative determines that an application of the new tax, and whether matter. act, policy, or practice of a foreign France’s DST diverged from norms II. Determination To Modify Action country is unreasonable or reflected in the U.S. and international discriminatory and burdens or restricts tax system. Witnesses provided Section 307(a)(1) of the Trade Act United States commerce, the U.S. Trade testimony at an August 19, 2019 public authorizes the U.S. Trade Representative shall determine what hearing and interested persons filed Representative to modify or terminate action, if any, to take under Section written submissions. any action, subject to the specific 301(b). These matters will be addressed Following a request by the U.S. Trade direction, if any, of the President with in subsequent proceedings under Representative, consultations were held respect to such action, that is being Section 301. with the Government of France on taken under Section 301, if, inter alia, November 14, 2019. the action being taken is no longer Joseph Barloon, On December 2, 2019, USTR appropriate. Pursuant to sections General Counsel, Office of the United States published a comprehensive report on 301(b)–(c) and 307(a) of the Trade Act Trade Representative. France’s DST which is available at (19 U.S.C. 2417(a)), the U.S. Trade [FR Doc. 2021–00362 Filed 1–11–21; 8:45 am] https://ustr.gov/issue-areas/ Representative has determined that the BILLING CODE 3290–F0–P enforcement/section-301-investigations/ imposition of duties on the current section-301-frances-digital-services-tax. effective date of January 6, 2021 no On December 6, 2019, based on the longer is appropriate. OFFICE OF THE UNITED STATES information obtained during the Subsequent to the initiation of this TRADE REPRESENTATIVE investigation and the advice of the investigation, the U.S. Trade [Docket Number USTR–2019–0009] Section 301 Committee, and as reflected Representative initiated Section 301 in the December 2, 2019 report on the investigations of DSTs adopted or under Notice of Modification of Section 301 findings in the investigation, the U.S. consideration by Austria, Brazil, the Action: Investigation of France’s Trade Representative published a Czech Republic, the European Union, Digital Services Tax determination that France’s DST is India, Indonesia, Italy, Spain, Turkey, unreasonable or discriminatory and and the United Kingdom. See 85 FR AGENCY: Office of the United States burdens or restricts U.S. commerce, and 34709 (June 5, 2020). These Trade Representative (USTR). therefore is actionable under sections investigations involve similar DST ACTION: Notice. 301(b) and 304(a) of the Trade Act (19 measures, either in effect or under SUMMARY: The U.S. Trade U.S.C. 2411(b) and 2414(a)). See 84 FR consideration, in ten additional Representative has determined to 66956 (December 6, 2019) (December 6, jurisdictions. Given that these DST modify the action being taken in this 2019 notice). investigations are ongoing and have not The December 6, 2019 notice investigation by suspending, until yet reached any determinations on proposed that appropriate action would further notice, the additional duties on what, if any, trade action should be include additional ad valorem duties of products of France scheduled to take taken, the U.S. Trade Representative has up to 100 percent on products of France effect on January 6, 2021. determined that it is appropriate to to be drawn from a list of 63 tariff suspend the action in the France DST DATES: The additional duties on subheadings of the Harmonized Tariff investigation indefinitely. products of France are suspended Schedule of the United States (HTSUS) In making this determination, the U.S. indefinitely, as of the previously included in the annex to that notice. Trade Representative considered the scheduled effective date of 12:01 a.m. The December 6, 2019 notice requested public comments submitted in the eastern standard time on January 6, comments on the proposed action, as investigation, as well as advice of 2021. well as on other potential actions, advisory committees. FOR FURTHER INFORMATION CONTACT: For including the imposition of fees or To give effect to the U.S. Trade questions concerning the investigation, restrictions on services of France. Representative’s determination, the please contact Thomas Au or Patrick Witnesses provided testimony at a additional duties set out in Annex A of Childress, Assistant General Counsels at January 7–8, 2020 public hearing and the July 16, 2020 notice are suspended (202) 395–0380 and (202) 385–9531, interested persons filed written indefinitely, as of the scheduled
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effective date of 12:01 a.m. eastern II. Proceedings in the Investigation principles of international taxation, standard time on January 6, 2021. The On June 2, 2020, the U.S. Trade including due to its application to U.S. Trade Representative will continue Representative initiated an investigation revenue rather than income, to monitor the developments in the of Turkey’s DST pursuant to section extraterritorial application, and failure France DST investigation and the 302(b)(1)(A) of the Trade Act of 1974, as to provide tax certainty. 3. Turkey’s DST burdens or restricts additional DST investigations in amended (Trade Act). 85 FR 34709 (June U.S. commerce. considering the trade action in this 5, 2020) (notice of initiation). The notice investigation. If a further modification of initiation solicited written comments IV. Further Proceedings to the action is appropriate, the U.S. on, inter alia, the following aspects of Trade Representative will consider the Sections 301(b) and 304(a)(1)(B) of the Turkey’s DST: discrimination against Trade Act provides that if the U.S. comments and testimony previously U.S. companies and unreasonableness provided. Trade Representative determines that an as tax policy. With respect to act, policy, or practice of a foreign Joseph Barloon, unreasonable tax policy, USTR solicited country is unreasonable or General Counsel, Office of the United States comments on, inter alia, whether the discriminatory and burdens or restricts Trade Representative. DST diverges from principles reflected United States commerce, the U.S. Trade [FR Doc. 2021–00425 Filed 1–11–21; 8:45 am] in the U.S. and international tax Representative shall determine what BILLING CODE 3290–F1–P systems, including extraterritorial action, if any, to take under Section application and taxing revenue rather 301(b). These matters will be addressed than income. in subsequent proceedings under OFFICE OF THE UNITED STATES Interested persons filed over 380 Section 301. TRADE REPRESENTATIVE written submissions in response to the notice of initiation. The public Joseph Barloon, Notice of Determination Pursuant to submissions are available on General Counsel, Office of the United States Section 301: Turkey’s Digital Services www.regulations.gov in docket number Trade Representative. Tax USTR–2020–0022. [FR Doc. 2021–00364 Filed 1–11–21; 8:45 am] Under Section 303 of the Trade Act, BILLING CODE 3290–F0–P AGENCY: Office of the United States the U.S. Trade Representative requested Trade Representative (USTR). consultations with the Government of ACTION: Notice. Turkey regarding the issues involved in DEPARTMENT OF TRANSPORTATION the investigation. Consultations were SUMMARY: The U.S. Trade held on September 29, 2020. Federal Highway Administration Representative has determined that As noted, based on information Turkey’s Digital Services Tax (DST) is Notice of Final Federal Agency Actions obtained during the investigation, USTR on Proposed Highway in California unreasonable or discriminatory and has prepared and published the Turkey burdens or restricts U.S. commerce and DST Report, which includes a AGENCY: Federal Highway thus is actionable under Section 301. comprehensive discussion on whether Administration (FHWA), Department of FOR FURTHER INFORMATION CONTACT: For the acts, policies, and practices under Transportation (DOT). questions concerning the investigation, investigation are actionable under ACTION: Notice of limitation on claims please contact Thomas Au or Patrick Section 301(b) of the Trade Act. The for judicial review of actions by the Childress, Assistant General Counsels at Turkey DST Report supports findings California Department of Transportation (202) 395–0380 and (202) 395–9531, that Turkey’s DST is unreasonable or (Caltrans). respectively, Robert Tanner, Director, discriminatory and burdens or restricts Services and Investment at (202) 395– U.S. commerce. SUMMARY: The FHWA, on behalf of 6125, or Michael Rogers, Director, Caltrans, is issuing this notice to Europe and the Middle East at (202) III. Determination on the Act, Policy, or announce actions taken by Caltrans that 395–2684. Practice Under Investigation are final. The actions relate to a SUPPLEMENTARY INFORMATION: Based on the information obtained proposed highway project, the Santa during the investigation, and taking Maria River Bridge Replacement Project I. Turkey’s DST account of public comments and the on State Route 1 at postmile 0.0, in San Based on information obtained during advice of the Section 301 Committee Luis Obispo County, and north of the the investigation, USTR has prepared a and advisory committees, the U.S. Trade City of Guadalupe, in Santa Barbara comprehensive report on Turkey’s DST Representative has made the following County, State of California. Those (Turkey DST Report). The Turkey determination under sections 301(b) and actions grant licenses, permits, and Report, which is posted on the USTR 304(a) of the Trade Act (19 U.S.C. approvals for the project. website at https://ustr.gov/issue-areas/ 2411(b) and 2414(a)): The act, policy, or DATES: By this notice, the FHWA, on enforcement/section-301-investigations/ practice covered in the investigation, behalf of Caltrans, is advising the public section-301-digital-services-taxes, namely Turkey’s DST, is unreasonable of final agency actions subject to 23 includes a full description of Turkey’s or discriminatory and burdens or U.S.C. 139(l)(1). A claim seeking DST. To summarize, Turkey adopted the restricts U.S. commerce, and thus is judicial review of the Federal agency operative form of its DST on December actionable under section 301(b) of the actions on the highway project will be 7, 2019. The DST applies to companies Trade Act. In particular: barred unless the claim is filed on or that, during the previous calendar year, 1. Turkey’s DST, by its structure and before June 11, 2021. If the Federal law generated Ö750 million or more in operation, discriminates against U.S. that authorizes judicial review of a worldwide revenues and TRY 20 digital companies, including due to the claim provides a time period of less million or more in revenues deriving selection of covered services and the than 150 days for filing such claim, then from the provision of digital services in revenue thresholds. that shorter time period still applies. Turkey. The tax applies as of March 1, 2. Turkey’s DST is unreasonable FOR FURTHER INFORMATION CONTACT: For 2020. because it is inconsistent with Caltrans: Matt Fowler, Branch Chief,
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Central Region Environmental, Caltrans 6. Migratory Bird Treaty Act [16 U.S.C. • Mail: Docket Management Facility, District 5, 50 Higuera Street, San Luis 760c–760g] M–30, U.S. Department of Obispo, CA 93401, 805–542–4603, 7. Invasive Species Executive Order Transportation, West Building, Ground [email protected], Monday– 11988 Floor, Room W12–140, 1200 New Jersey Friday, 9:00 a.m.–5:00 p.m. PDT. For 8. Farmland Protection Policy Act, 7 Avenue SE, Washington, DC 20590. FHWA: David Tedrick at (916) 498– U.S. Code 4201–4209 • Hand Delivery or Courier: U.S. 5024 or email [email protected]. (Catalog of Federal Domestic Assistance Department of Transportation, West SUPPLEMENTARY INFORMATION: Effective Program Number 20.205, Highway Planning Building, Ground Floor, Room W12– July 1, 2007, the FHWA assigned, and and Construction. The regulations 140, 1200 New Jersey Avenue SE, Caltrans assumed, environmental implementing Executive Order 12372 Washington, DC, between 9 a.m. and 5 responsibilities for this project pursuant regarding intergovernmental consultation on p.m. Eastern time, Monday through to 23 U.S.C. 327. Notice is hereby given Federal programs and activities apply to this Friday, except Federal holidays. To be that the Caltrans, have taken final program.) sure someone is there to help you, agency actions subject to 23 U.S.C. Authority: 23 U.S.C. 139(l)(1). please call (202) 366–9322 before 139(l)(1) by issuing licenses, permits, coming. Issued on: January 7, 2021. • and approvals for the following highway Rodney Whitfield, Fax: 202–493–2251. project in the State of California: Regardless of how you submit your Santa Maria River Bridge Director, Financial Services, Federal Highway comments, you must include the docket Administration, California Division. Replacement Project on State Route 1 at number identified in the heading of this postmile 0.0, in the San Luis Obispo [FR Doc. 2021–00431 Filed 1–11–21; 8:45 am] document. County, and north of the City of BILLING CODE 4910–RY–P Note that all comments received, Guadalupe, Santa Barbara County. including any personal information Caltrans proposes to replace the existing provided, will be posted without change DEPARTMENT OF TRANSPORTATION Santa Maria River Bridge with a new to http://www.regulations.gov. Please bridge structure. The replacement of the National Highway Traffic Safety see the ‘‘Privacy Act’’ heading below. existing bridge is necessary to remove Administration You may call the Docket Management all traces of alkali-silica reactions Facility at 202–366–9322. For access to present in the concrete components of [Docket No. NHTSA–2020–0087] the docket to read background the existing bridge. The presence of documents or comments received, go to Cybersecurity Best Practices for the alkali-silica reaction progressively http://www.regulations.gov or the street Safety of Modern Vehicles compromises the structural integrity of address listed above. To be sure concrete components. The project will AGENCY: National Highway Traffic someone is there to help you, please call involve construction of a new bridge Safety Administration (NHTSA), (202) 366–9322 before coming. We will structure, roadway repaving, guardrail Department of Transportation (DOT). continue to file relevant information in improvements, new pedestrian and ACTION: Request for comments. the Docket as it becomes available. bicycle path, vegetation removal and Privacy Act: In accordance with 5 habitat restoration within existing SUMMARY: NHTSA invites public U.S.C. 553(c), DOT solicits comments Caltrans right-of-way. Temporary comment on the Agency’s updated draft from the public to inform its decision- construction easements and permanent cybersecurity best practices document making process. DOT posts these new State right-of-way are required for titled Cybersecurity Best Practices for comments, without edit, including any completion of the project. Federal EFIS the Safety of Modern Vehicles. In 2016, personal information the commenter ID 05–160000074. NHTSA issued its first edition, provides, to http://www.regulations.gov, The actions by the Federal agencies, Cybersecurity Best Practices for Modern as described in the system of records and the laws under which such actions Vehicles, which described NHTSA’s notice (DOT/ALL–14 FDMS), which can were taken, are described in the Final nonbinding guidance to the automotive be reviewed at https:// Environmental Assessment (FEA) with industry for improving vehicle www.transportation.gov/privacy. Finding of No Significant Impact cybersecurity. With this document, Anyone can search the electronic form (FONSI) for the project, approved on NHTSA is docketing and soliciting of all comments received into any of our December 9, 2020 and in other public feedback on a draft update based dockets by the name of the individual documents in Caltrans’ project records. on the knowledge gained through prior submitting the comment (or signing the The FEA, FONSI and other project comments, continued research, motor comment, if submitted on behalf of an records are available by contacting vehicle cybersecurity issues discovered association, business, labor union, etc.). Caltrans at the addresses provided by researchers, and related industry FOR FURTHER INFORMATION CONTACT: above. This notice applies to all Federal For activities over the past four years. To technical issues, please contact Mr. agency decisions as of the issuance date emphasize NHTSA’s safety mission, of this notice and all laws under which Robert Kreeb of NHTSA’s Office of recommendations in the document Vehicle Safety Research at 202–366– such actions were taken, including but focus on cybersecurity best practices not limited to: 0587 or [email protected]. For legal that have safety implications for motor issues, contact Ms. Sara R. Bennett of 1. National Environmental Policy Act vehicles and motor vehicle equipment. NHTSA’s Office of Chief Counsel at (NEPA) [42 U.S.C. 4321–4335] 2. The National Historic Preservation DATES: Written comments are due no 202–366–2992 or [email protected]. Act (NHPA) of 1966 [16 U.S.C. 470(f) later than March 15, 2021. SUPPLEMENTARY INFORMATION: The et seq.] ADDRESSES: Comments must refer to the evolution of automotive technology has 3. Native American Grave protection docket number above and be submitted included an increasingly expanded use and Repatriation Act (NAGPRA) [25 by one of the following methods: of electronic systems, software, and U.S.C. 30001–3013] • Federal eRulemaking Portal: Go to wireless connectivity. While this 4. Clean Water Act [33 U.S.C. 1344] http://www.regulations.gov. Follow the development began in the late 1970s, 5. Federal Endangered Species Act online instructions for submitting the pace of technological evolution has (FESA) [16 U.S.C. 1531–1543] comments. increased significantly over the past
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decade. Automotive technology has Practices’’) was the culmination of years Cybersecurity Best Practices for the developed to such an extent that today’s of extensive engagement with public Safety of Modern Vehicles remains vehicles are some of the most complex and private stakeholders and NHTSA voluntary. computerized products available to research on vehicle cybersecurity and • NHTSA’s cyber best practices consumers. Enhanced wireless methods of enhancing vehicle should be aligned with industry connectivity and continued innovations cybersecurity industry-wide. As initiatives. Commenters noted that in electronic control systems introduce explained in the accompanying Federal industry initiatives were under substantial benefits to highway Register document, NHTSA’s 2016 Best development at the time of the 2016 transportation safety, mobility, and Practices was released with the goal of Best Practices publication. NHTSA efficiency. However, with the supporting industry-led efforts to believes that the specific best practices proliferation of computer-based control improve the industry’s cybersecurity outlined in today’s 2020 revision reflect systems, software, connectivity, and posture and provide the Agency’s views a strong linkage to key industry onboard digital data communication on how the automotive industry could cybersecurity-related initiatives and networks, modern vehicles need to develop and apply sound risk-based efforts by organizations such as SAE consider additional failure modes, cybersecurity management processes International (SAE), the International vulnerabilities, and threats that could during the vehicle’s entire lifecycle. Organization for Standardization (ISO), jeopardize benefits if the new safety The 2016 Best Practices leveraged NIST, and the Automotive Information risks are not appropriately addressed. existing automotive domain research as Sharing and Analysis Center (Auto- Connectivity and safety technologies well as non-automotive and IT-focused ISAC)—and are, in general, consistent that can intervene to assist drivers with standards such as the National Institute with guidelines, standards, and best control of their vehicles (e.g., automatic of Standards and Technology (NIST) practices developed by these emergency braking) could also increase organizations. Cybersecurity Framework and the • cybersecurity risks, and without Center for internet Security’s Critical Focus on Safety. Several proactive measures taken across the Security Controls framework. NHTSA commenters noted that NHTSA’s best vehicle lifecycle, risks could result in considered these sources to be practices should focus squarely on negative safety outcomes. As such, reasonably applicable and appropriate safety aspects of cybersecurity. NHTSA motor vehicle cybersecurity remains a to augment the limited industry-specific agrees. The best practices presented in top priority for NHTSA. NHTSA is guidance that was available at the time. this revision are tailored to focus on engaged in research and industry At publication, NHTSA noted that the cybersecurity issues that impact the outreach efforts to support enhanced 2016 Best Practices were intended to be safety of motor vehicles throughout the reliability and resiliency of vehicle updated with new information, lifecycle of design, operation, electronics, software, and related research, and other cybersecurity best maintenance and disposal. This emphasis is reflected throughout the vehicle control systems, not only to practices related to the automotive document, including with a title change: mitigate safety risks associated with industry. NHTSA invited comments Cybersecurity Best Practices for the failure or potential cyber compromise of from stakeholders and interested parties such systems, but also to ensure that Safety of Modern Vehicles. in response to the document. • Consideration of cybersecurity as affected parties take appropriate actions Below is a high-level summary of part of software development process. and such concerns do not pose public comments received and how NHTSA Multiple commenters recommended acceptance barriers for proven safety integrated those comments into the 2020 greater and more formal consideration technologies. draft Cybersecurity Best Practices for the NHTSA’s work in this area seeks to of cybersecurity as part of the software Safety of Modern Vehicles. development lifecycle process. support the automotive industry’s NHTSA’s revised best practice outlined continued improvements to motor Summary of Public Comments Received today reflects a need to include vehicle cybersecurity reliability and in Response to NHTSA’s 2016 Best cybersecurity considerations along the resiliency. The Agency also expends Practices entire software supply chain and resources in understanding and NHTSA received comments from throughout the lifecycle management promoting contemporary methods in government agencies, regulated entities, processes of developing, implementing software development, testing practices, trade associations, advocacy groups and 2 and updating software-enabled systems. and requirements management as they organizations, and individuals. Key • Additional cybersecurity pertain to robust management of topic areas, and how such comments are terminology, definitions. Commenters underlying safety hazards and risks reflected in NHTSA’s revised 2020 noted that the document would benefit across the vehicle life-cycle. These Cybersecurity Best Practices for the from providing expanded definitions for activities include close collaboration Safety of Modern Vehicles are listed certain terms to add precision and with industry to promote a strong risk below. • clarity to the recommended best management culture and associated Guidance vs. Rules. Many practices. NHTSA has provided several organizational and systems engineering commenters noted that cybersecurity is additional definitions for key terms processes. a constantly evolving discipline and used throughout the document. Background that best practices may need frequent The comments received, combined updating, and most commenters with continued research, outreach to In October 2016, NHTSA issued its suggested that NHTSA’s cyber best first best practices document focusing stakeholders, learnings from motor practices should remain non-binding vehicle cybersecurity issues discovered on the cybersecurity of motor vehicles and voluntary. NHTSA agrees with and motor vehicle by researchers, and related industry these commenters, and adoption of any activities over the past four years have equipment.1 Cybersecurity Best Practices of the provisions listed in the 2020 served as the foundation for the 2020 for Modern Vehicles (‘‘2016 Best update. A description of other important 2 Comments on the 2016 Cybersecurity Best 1 Cybersecurity Best Practices for Modern Practices for Modern Vehicles can be found at information that guided the changes Vehicles, announced via the Federal Register, 81 https://beta.regulations.gov/document/NHTSA- included in the 2020 Cybersecurity Best FR 75190 (Oct. 28, 2016). 2016-0104-0001/comment. Practices for the Safety of Modern
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Vehicles is included in the following • [G.6] Manufacturers should • [G.9] Clear cybersecurity section. consider the risks associated with sensor expectations should be specified and vulnerabilities and potential sensor 2020 Update of Cybersecurity Best communicated to the suppliers that signal manipulation efforts such as GPS support the intended protections. Practices 6 7 spoofing, road sign modification, Lidar/ Vehicles are produced in a complex NHTSA is docketing a draft update to 8 Radar jamming and spoofing, camera supply chain, and cybersecurity roles the agency’s 2016 Best Practices,3 titled blinding,9 or excitation of machine and expectations need to be clarified Cybersecurity Best Practices for the learning false positives.10 and coordinated among involved parties Safety of Modern Vehicles (2020 Best This best practice recommends that to support the cybersecurity goals of the Practices) for public comments. This industry consider ‘‘sensor manufacturers. ISO/SAE 21434 Clause update builds upon agency research and vulnerabilities’’ as part of their risk 15 discusses customer-supplier industry progress since 2016, including assessment (examples: GPS spoofing, emerging voluntary industry standards, road sign modification, Lidar/Radar relationships and provides various such as the ISO/SAE Draft International jamming and spoofing, camera blinding, recommendations for how to manage Standard (DIS) 21434, ‘‘Road Vehicles— or excitation of machine learning false cybersecurity risks among these entities. 4 Cybersecurity Engineering.’’ In positives). NHTSA added it to reflect Such recommendations extend, among addition, the draft update references a the new research that shows that other aspects, to the interactions, series of industry best practice guides technology behavior could be dependencies, and responsibilities developed by the Auto-ISAC through its between customers and suppliers for 5 influenced via sensor spoofing, which members. differs from traditional software cybersecurity activities. The 2020 Best Practices also reflect manipulation-based cyber issues. • findings from NHTSA’s continued [G.10] Manufacturers should • [G.7] Any unreasonable risk to research in motor vehicle cybersecurity, maintain a database of operational safety-critical systems should be 11 12 including over-the-air updates, software components used in each removed or mitigated to acceptable encryption methods, and building our automotive ECU, each assembled levels through design, and any capability in cybersecurity penetration vehicle, and a history log of version functionality that presents an testing and diagnostics, and the new updates applied over the vehicle’s unavoidable and unnecessary risk learnings obtained through researcher lifetime; and [G.11] Manufacturers should be eliminated where possible. and stakeholder engagement. Finally, should track sufficient details related to the updates included in the 2020 Best This best practice recommends software components,13 such that when a Practices incorporate insights gained ‘‘removal of risk’’ to be considered as newly identified vulnerability is from public comments received in part of the development process. identified related to an open source or response to the 2016 guidance and from NHTSA included this best practice to off-the-shelf software,14 manufacturers information obtained during the annual align with the National Traffic and can quickly identify what ECUs and SAE/NHTSA Vehicle Cybersecurity Motor Vehicle Safety Act’s prohibition specific vehicles would be affected by it. Workshops. of manufacturers selling motor vehicles and motor vehicle equipment that may Through engagement in organized As with the 2016 Best Practices, exercises, such as CyberStorm,15 the NHTSA’s updated draft, Cybersecurity contain unreasonable risks to safety. This is a common practice element of Agency recognized that the ability to Best Practices for the Safety of Modern identify whether an issue with one Vehicles, is intended to serve as a sound risk-based approaches. The 2016 Best Practices recommended assessing component would affect a single or resource for the industry as a whole and multiple makes and models is critically covers safety-related cybersecurity and appropriately mitigating risks to important to determine the potential issues for all motor vehicles and motor acceptable levels. While the 2016 scope of risk. Further, being able to vehicle equipment. As such, it is documents implicitly included G.7 in recognize which software version is applicable to all individuals and cases where risks could not be mitigated installed on individual vehicles or items organizations involved in the design, with known tools and for a given of equipment and differentiate between manufacture, and assembly of a motor architecture appropriately, this versions is critical to respond to vehicle and its electronic systems and document makes the best practice software. These entities include, but are explicit. incidents quickly. The Food and Drug not limited to, small and large volume Administration and National motor vehicle and motor vehicle 6 DefCon 23—Lin Huang and Qing Yang—Low Telecommunications and Information equipment designers, suppliers, cost GPS Simulator: GPS Spoofing by SDR (2015). Administration developed detailed Video of the talk available at: https:// guidance around the same concept, and manufacturers, and modifiers. What media.defcon.org/DEF%20CON%2023/ follows is a listing of each new best DEF%20CON%2023%20video/. practice, and an explanation of why 7 McAfee Labs, Model Hacking ADAS to Pave 11 This is also referred to as a software bill of NHTSA believes the inclusion is Safer Roads for Autonomous Vehicles (2020), materials (SBOM), which is a list of components in available at: https://www.mcafee.com/blogs/other- a piece of software, including assembled open necessary in this update. blogs/mcafee-labs/model-hacking-adas-to-pave- source and commercial software components. safer-roads-for-autonomous-vehicles/. 12 Multistakeholder Process on Promoting 3 The 2016 guidance is titled Cybersecurity Best 8 Mark Harris, IEEE Spectrum Sept 4, 2015, Software Component Transparency, 83 FR 110 Practices for Modern Vehicles and is available at: Researcher Hacks Self-driving Car Sensors. (June 4, 2018). https://www.federalregister.gov/documents/2016/ 9 Petit, J. et al., ‘‘Remote Attacks on Automated 13 These details could include: The licenses that 10/28/2016-26045/request-for-comment-on- Vehicles Sensors: Experiments on Camera and govern those components, the versions of the cybersecurity-best-practices-for-modern-vehicles. LiDAR’’ (2015), available at: https:// components used in the codebase, and their patch The 2020 update has a modified title that www.blackhat.com/docs/eu-15/materials/eu-15- status. emphasizes the document’s focus on, and NHTSA’s Petit-Self-Driving-And-Connected-Cars-Fooling- 14 A good example would be the vulnerability commitment to, cybersecurity as an aspect of safety Sensors-And-Tracking-Drivers-wp1.pdf. associated with the Transport Layer Security(TLS) in motor vehicles and motor vehicle equipment. 10 Tencent Keen Security Lab, Experimental implementations in OpenSSL 1.0.1 before 1.0.1g in 4 ISO/SAE 21434:2020 Road Vehicles— Security Research of Tesla Autopilot 2019, available the Heartbleed vulnerability: https://cve.mitre.org/ Cybersecurity Engineering, available at: https:// at: https://keenlab.tencent.com/en/whitepapers/ cgi-bin/cvename.cgi?name=cve-2014-0160. www.iso.org/standard/70918.html. Experimental_Security_Research_of_Tesla_ 15 https://www.cisa.gov/cyber-storm-securing- 5 See https://automotiveisac.com/best-practices/. Autopilot.pdf. cyber-space.
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NHTSA believes such guidance to be of During a validated incident, the appropriate authentication and access value to the automotive industry. ability to address the issue for the control.25 • [G.12] Manufacturers should impacted population could vary for This best practice responds to evaluate all commercial off-the-shelf vehicles in different stages of research demonstrating the ability to and open-source software components distribution. A plan that considers these leverage diagnostic tools to reverse used in vehicle ECUs against known stages can facilitate a more effective engineer and implement vulnerabilities vulnerabilities.16 17 organizational response. This addition in vehicle systems. • This best practice highlights the also reflects Clause 7 of the ISO/SAE [T.12] Such logs that can be importance of making informed 21434 standard. aggregated across vehicles should be decisions about using open source and • [G.40] Any connection to a third- periodically reviewed to assess potential off-the-shelf software with respect to party device should be authenticated trends of cyber-attacks. documented vulnerabilities. This is a and provided with appropriate limited Information aggregated across common practice in other domains. access. multiple vehicles in a manufacturer’s NIST established a national database to During the life-cycle of a vehicle, fleet can highlight trends and help a facilitate such action.18 consumer devices (e.g., mobile phones, manufacturer recognize a cybersecurity attack more quickly, and potentially • [G.22] Best practices for secure insurance dongles) or repair/ prior to a successful breach, than software development should be maintenance tools may be connected to focusing on only a single vehicle or followed, for example as outlined in the vehicle systems. These systems compartmentalized information. This NIST 8151 19 and ISO/SAE 21434.20 could enable wireless connectivity to approach is common in the enterprise This best practice provides further the vehicle interface and may not information technology domain,26 and detailed resources for companies to feature adequate cyber controls on them. applies to the automotive realm. T.12 consider for implementation, as For example, research on an insurance purposefully limits the recommendation appropriate. Comments received on the dongle inserted into the OBDII port during operation found that it did not to logs that can be aggregated. 2016 Cybersecurity Best Practices • [T.13] Manufacturers should treat employ techniques, such as digital requested that NHTSA incorporate all networks and systems external to a signing, that would prevent a cyber current industry guidance and vehicle’s wireless interfaces as untrusted standards.21 Pointing to such resources attacker from reprogramming 22 and use appropriate techniques to is helpful for all companies, but firmware. A similar issue is described mitigate potential threats. particularly for companies with less by Argus Cybersecurity on a connected This is a common approach taken by 23 mature cybersecurity programs. car service. Accordingly, this best the stakeholder community and • [G.23] Manufacturers should practice recommends that vehicle NHTSA. Various forms of ‘‘man-in-the- actively participate in automotive systems should treat such devices as middle’’ cyber attacks seen with industry-specific best practices and untrusted and control their access to wireless interfaces suggest that standards development activities safety critical systems. information outside the wireless • through Auto-ISAC and other [T.7] The use of global symmetric interfaces of vehicles should not be recognized standards development keys and ad-hoc cryptographic trusted until appropriately organizations. techniques for diagnostic access should authenticated for intended uses. NHTSA 24 Industry standards, such as ISO/SAE be minimized. added this best practice to reflect 21434, are more broadly adopted when This best practice discourages the use learnings from demonstrated man-in- entities actively participate in their of global symmetric keys or unproven the-middle attacks. establishment and ensure their unique cryptographic techniques, which can • [T.22] Maintain the integrity of OTA needs are considered and addressed. result in a false sense of security for updates, update servers, the NHTSA’s encouragement of industry manufacturers and the consumer. This transmission mechanism and the involvement in standards development addition is also responsive to a updating process in general.27 28 organizations is long standing. comment from a diagnostic tool OTA updates are updates to vehicle or • [G.30] Commensurate to assessed manufacturer to the 2016 Best Practices. equipment software that are pushed risks, organizations should have a plan Further, research shows the remotely to the vehicle. The OTA for addressing newly identified ineffectiveness of symmetric keys (see update process should not introduce vulnerabilities on consumer-owned footnote in T.7). cybersecurity vulnerabilities in the vehicles in the field, inventories of • [T.8] Vehicle and diagnostic tool process, through either the update itself vehicles built but not yet distributed to manufacturers should control tools’ or through the updating process. dealers, vehicles delivered to access to vehicle systems that can NHTSA added this best practice to dealerships but not yet sold to perform diagnostic operations and reflect learnings discussed in the consumers, as well as future products reprogramming by providing for and vehicles. 25 ISO/SAE 21434 requirement [RQ–05–15] states 22 See https://jalopnik.com/progressive- that ‘‘Tools that can impact the cybersecurity of an insurances-driver-tracking-tool-is-ridicul- item, system or component shall be managed.’’ 16 MITRE Common Vulnerabilities and Exposures 1680720690. 26 See Chapter 4: Network based intrusion (CVE) may be found at: https://cve.mitre.org/. 23 See Argus Cyber Security, ‘‘A remote attack on detection and protection systems in NIST 800–94, 17 NIST’s National Vulnerability Database may be an aftermarket telematics service’’ (Nov. 7, 2014), available at https://nvlpubs.nist.gov/nistpubs/ found at: https://nvd.nist.gov/. available at: https://argus-sec.com/remote-attack- Legacy/SP/nistspecialpublication800-94.pdf. 18 See https://nvd.nist.gov/. aftermarket-telematics-service/#:∼:text=Zubie%20 27 Bar R., Hacking into Automotive Clouds, talk at 19 Black P., Badger M., Guttman B., Fong E., is%20a%20leading%20connected,II%20 DefCon 27 Car Hacking Village, Las Vegas 2019. NISTIR 8151 Dramatically Reducing Software port%20of%20your%20car. Video of the talk: https://media.defcon.org/ Vulnerabilities: Report to the White House Office of 24 Hogan G., Flashing ECU Firmware Updates DEF%20CON%2027/ Science and Technology Policy. from a Web Browser, Talk at DefCon 27: Car DEF%20CON%2027%20villages/. 20 ISO/SAE 21434 clause 10 discusses software Hacking Village, Las Vegas. Video of the talk may 28 Rodgers M., Hahaffey K., How to Hack a Tesla development practices. be found at: https://media.defcon.org/ Model S, talk at DefCon 23, Las Vegas 2015. Video 21 See public comments in response to the 2016 DEF%20CON%2027/DEF%20CON%2027%20 of the talk: https://media.defcon.org/ Best Practices, such as NHTSA–2016–0104–0969, villages/. Mr. Hogan describes reverse engineering DEF%20CON%2023/ and NHTSA–2016–0104–0998. enciphered firmware updates. DEF%20CON%2023%20video/.
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Agency’s Cybersecurity of Firmware might bear if these companies decide to this request for comment. NHTSA is Updates research report.29 integrate the recommendations in the unaware of the extent to which various • [T.23] Take into account, when 2020 Best Practices into their business entities have already implemented designing security measures, the risks practices. The following is a summary of NHTSA’s recommendations, and associated with compromised servers, the considerations that NHTSA determining the incremental costs insider threats, men-in-the-middle evaluated for purposes of this section. associated with full implementation of attacks, and protocol vulnerabilities. First, although, as guidance, the 2020 the recommendations is effectively This best practice provides more Best Practices is voluntary, NHTSA impossible without detailed insight into granular recommendations with respect expects that many entities will to the organizational processes of every to risk considerations in T.22. As with conform their practices to the company. T.22, NHTSA added this to reflect recommendations endorsed by NHTSA. Fifth, many of NHTSA’s learnings discussed in the Agency’s NHTSA believes that the Cybersecurity recommendations lean very heavily on Cybersecurity of Firmware Updates Best Practices for the Safety of Modern industry standards, such as Draft research report.30 Vehicles serve as means of facilitating International Standard SAE/ISO 21434. Public Comment common understanding across industry Three of the 16 ‘‘new’’ best practices regarding best practices for simply reference the SAE/ISO 21434 NHTSA is seeking public comments cybersecurity. industry standard. Since many aspects on the 2020 Best Practices and Second, the diversity among the of NHTSA’s recommendations are additional ways to improve its entities to which the 2020 Best Practices mapped to an industry standard, costs usefulness to stakeholders. The updated apply is vast. The recommendations would also be limited for those draft document is structured around five found in Cybersecurity Best Practices companies who are adopting SAE/ISO key areas: (1) General Cybersecurity Best for the Safety of Modern Vehicles are 21434 already. Thus, it would be Practices, (2) Education, (3) necessarily general and flexible enough impossible to parse whether a company Aftermarket/User Owned Devices, (4) to be applied to any industry entity, implemented SAE/ISO 21434 or Serviceability, and (5) Technical regardless of size or staffing. The whether it had decided to adopt Vehicle Cybersecurity Best Practices, recommendations contained within the NHTSA’s voluntary recommendations. and NHTSA seeks comments on all best practices are intended to be While the 2020 Best Practices have areas. applicable to all individuals and some recommendations 31 that cannot NHTSA will further update and refine organizations involved in the design, be mapped to an industry standards this draft document over time, based on manufacture, and assembly of a motor document at this time, most of those public comments received, the vehicle and its electronic systems and recommendations involve common experience of NHTSA, manufacturers, software. These entities include, but are vehicle engineering and sound business suppliers, consumers, and others, as not limited to, small and large volume management practices, such as risk well as from further research findings motor vehicle and motor vehicle assessment and supply-chain and technological innovations. The equipment designers, suppliers, management. For these updated draft document is available in manufacturers, and modifiers. NHTSA recommendations, NHTSA’s inclusion PDF format under Docket No. NHTSA– recognizes that there is much in the 2020 Cyber Best Practices serve 2020–0087. organizational diversity among the as a reminder. Economic Analysis for Cybersecurity intended audience, resulting in a variety Regarding benefits, entities that do Best Practices for the Safety of Modern of approaches, organizational sizes, and not implement appropriate staffing needs. NHTSA also expects that Vehicles cybersecurity measures, like those these entities have varying levels of guided by these recommendations, or NHTSA is seeking comment on its organizational maturity related to other sound controls, face a higher risk Cybersecurity Best Practices for the cybersecurity, and varying levels of of cyberattack or increased exposure in Safety of Modern Vehicles (2020 Best potential cybersecurity risks. These the event of a cyberattack, potentially Practices), which is non-binding (i.e., expectations, combined with NHTSA’s leading to safety concerns for the public. voluntary) guidance provided to serve lack of detailed knowledge of the Implementation of the best practices as a resource for industry on safety- organizational maturity and can, therefore, facilitate ‘‘cost related cybersecurity issues for motor implementation of any prevention’’ in the sense that failure to vehicles and motor vehicle equipment. recommendations contained within the adopt appropriate cybersecurity As guidance, the document touches on guidance, make it difficult for NHTSA practices could result in other direct or a wide array of issues related to safety- to develop a reasonable quantification of indirect costs to companies (i.e., related cybersecurity practices, and the per-organization cost of personal injury, vehicle damage, provides recommendations to industry implementing the recommendations. warranty, recall, or voluntary repair/ on the following topics: (1) General Third, any costs associated with updates). A quantitative analysis would Cybersecurity Best Practices, (2) applying the 2020 Best Practices would require present value estimation of Education, (3) Aftermarket/User Owned be limited to the incremental cost of future benefits, or a comparison of two Devices, (4) Serviceability, and (5) applying the new recommendations similar sample groups, one of which is Technical Vehicle Cybersecurity Best included in the document (as opposed implementing the recommendations and Practices. to those in the 2016 Best Practices). The the other is not. This comparison would NHTSA has made a good faith effort updated Cybersecurity Best Practices for illustrate the differences in groups in a to assess the potential costs that the Safety of Modern Vehicles way that would allow the benefits companies in the automotive industry document highlights a total of 65 attributable to implementation of the enumerated best practices, 16 of which 29 https://www.nhtsa.gov/sites/nhtsa.dot.gov/ could be considered ‘‘new’’ relative to 31 For example, G.6 in Section 4.2.3 recommends _ _ _ files/documents/cybersecurity of firmware the first version published in 2016. consideration of sensor vulnerabilities as part of updates_oct2020.pdf risk assessment; and G.9 and G.10 in Section 4.2.6 30 https://www.nhtsa.gov/sites/nhtsa.dot.gov/ Fourth, costs could be limited by recommend tracking software components on files/documents/cybersecurity_of_firmware_ organizations who have implemented vehicles in a manner similar to hardware updates_oct2020.pdf some of the recommendations prior to components.
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best practices to be calculated. However, complete submission, including the ACTION: List of applications for neither is possible at this time. information you claim to be confidential modification of special permits. The best practices outlined in this business information, to the Office of document help organizations measure the Chief Counsel, NHTSA, at the SUMMARY: In accordance with the their residual risks better, particularly address given above under FOR FURTHER procedures governing the application the safety risks associated with potential INFORMATION CONTACT. In addition, you for, and the processing of, special cybersecurity issues in motor vehicles may submit a copy (two copies if permits from the Department of and motor vehicle equipment that they submitting by mail or hand delivery), Transportation’s Hazardous Material design and manufacture. Further, it from which you have deleted the Regulations, notice is hereby given that provides a toolset of techniques they claimed confidential business the Office of Hazardous Materials Safety can utilize commensurate to their information, to the docket by one of the has received the application described measured risks, and take appropriate methods given above under ADDRESSES. actions to reduce or eliminate them, and When you send a comment containing herein. Each mode of transportation for in doing so lower the future liabilities information claimed to be confidential which a particular special permit is these risks represent in terms of safety business information, you should requested is indicated by a number in risks to public and business costs include a cover letter setting forth the the ‘‘Nature of Application’’ portion of associated with addressing them. information specified in NHTSA’s the table below as follows: 1—Motor In addition, quantitatively positive confidential business information vehicle, 2—Rail freight, 3—Cargo vessel, externalities have been shown to stem regulation (49 CFR part 512). 4—Cargo aircraft only, 5—Passenger- from vehicle safety and security carrying aircraft. measures (Ayres & Levitt, 1998). The Will the Agency consider late high marginal cost of cybersecurity comments? DATES: Comments must be received on failures (crashes) extend to third parties. NHTSA will consider all comments or before January 27, 2021. Widely accepted adoption of sound received before the close of business on ADDRESSES: Record Center, Pipeline and cybersecurity practices limits these the comment closing date indicated Hazardous Materials Safety potential costs and lessens incentives above under DATES. To the extent Administration, U.S. Department of for attempts at market disruption (i.e., possible, the Agency will also consider Transportation, Washington, DC 20590. signal manipulation, GPS spoofing, or comments received after that date. reverse engineering). Given that we intend for the guidance Comments should refer to the document to be a living document and application number and be submitted in How do I prepare and submit triplicate. If confirmation of receipt of comments? to be developed in an iterative fashion, subsequent opportunities to comment comments is desired, include a self- Your comments must be written and will also be provided necessarily. addressed stamped postcard showing in English. To ensure that your the special permit number. comments are filed correctly in the How can I read the comments docket, please include the docket submitted by other people? FOR FURTHER INFORMATION CONTACT: number of this document in your You may read the comments received Donald Burger, Chief, Office of comments. Your comments must not be at the address given above under Hazardous Materials Approvals and more than 15 pages long (49 CFR Comments. The hours of the docket are Permits Division, Pipeline and 553.21). NHTSA established this limit to indicated above in the same location. Hazardous Materials Safety encourage you to write your primary You may also see the comments on the Administration, U.S. Department of comments in a concise fashion. internet, identified by the docket Transportation, East Building, PHH–30, However, you may attach necessary number at the heading of this document, 1200 New Jersey Avenue Southeast, additional documents to your at http://www.regulations.gov. Washington, DC 20590–0001, (202) 366– comments. There is no limit on the 4535. length of the attachments. Please submit Issued in Washington, DC, under authority delegated in 49 CFR 1.95 and 501.8. one copy (two copies if submitting by SUPPLEMENTARY INFORMATION: Copies of mail or hand delivery) of your Cem Hatipoglu, the applications are available for comments, including the attachments, Associate Administrator for Vehicle Safety inspection in the Records Center, East to the docket following the instructions Research. Building, PHH–30, 1200 New Jersey given above under ADDRESSES. Please [FR Doc. 2021–00390 Filed 1–11–21; 8:45 am] Avenue Southeast, Washington, DC or at note, if you submit comments BILLING CODE 4910–59–P http://regulations.gov. electronically as a PDF (Adobe) file, This notice of receipt of applications NHTSA asks that the documents for special permit is published in submitted be scanned using an Optical DEPARTMENT OF TRANSPORTATION accordance with part 107 of the Federal Character Recognition (OCR) process, Pipeline and Hazardous Materials hazardous materials transportation law thus allowing the Agency to search and Safety Administration copy certain portions of your (49 U.S.C. 5117(b); 49 CFR 1.53(b)). submissions. Hazardous Materials: Notice of Issued in Washington, DC, on January 5, 2021. How do I submit confidential business Applications for Modifications to information? Special Permit Donald P. Burger, Chief, General Approvals and Permits If you wish to submit any information AGENCY: Pipeline and Hazardous Branch. under a claim of confidentiality, you Materials Safety Administration should submit three copies of your (PHMSA), DOT.
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Application Regulation(s) No. Applicant affected Nature of the special permits thereof
Special Permits Data
3121–M ...... Department of Defense (Mili- 172.101(i) ...... To modify the special permit to correct certain references and tary Surface Deployment & practices to more accurately align with current regulations Distribution Command). and practices. (mode 1) 7765–M ...... Cobham Mission Systems Or- 173.302a(a)(1) ...... To modify the special permit to remove part numbers which chard Park Inc. are now covered under a different permit and to update maximum service pressure of authorized cylinders. (modes 1, 2, 3, 4) 10631–M ...... Department of Defense (Mili- 173.243, 173.244 ...... To modify the special permit to correct certain references and tary Surface Deployment & practices to more accurately align with current regulations Distribution Command). and practices. (mode 1) 10922–M ...... FIBA Technologies, Inc ...... 173.302(a), 180.205, To modify the special permit to authorize a 10-year retest for 180.207(d)(1), 172.302(c). ISO cylinders and tubes transporting certain hazardous ma- terials. (modes 1, 2, 3, 4, 5) 12116–M ...... Proserv UK Ltd ...... 173.201, 173.301(f), 173.302a, To modify the special permit to authorize a new design and 173.304a. corrosion resistant cylinder. (modes 1, 2, 3, 4) 14782–M ...... Southern States, LLC ...... 173.304a ...... To modify the special permit to act as an approval and to comply with the International Maritime Dangerous Goods Code. (modes 1, 2, 3, 4, 5) 15483–M ...... National Aeronautics and 173.302a ...... To modify the special permit to authorize a different 2.2 gas Space Administration. to be incorporated into the permit. (modes 1, 2, 3, 4, 5) 16074–M ...... Welker, Inc ...... 173.201, 173.202, 173.203 ..... To modify the special permit to clarify the volume capacity of the approved pressure vessels. (modes 1, 2, 3, 4) 20706–M ...... Southern States, LLC ...... 172.301(c), 173.304(a) ...... To modify the special permit to authorize the transportation in commerce of compressed sulfur hexafluoride gas in non- DOT specification packaging in accordance with IMDG Regulations. (modes 1, 2, 3, 4) 21018–M ...... Packaging and Crating Tech- 172.200, 172.300, 172.400, To modify the special permit to authorize four new package nologies, LLC. 172.600, 172.700(a), sizes. (modes 1, 2, 3) 173.185(b), 173.185(c), 173.185(f). 21063–M ...... Cobham Mission Systems Or- 173.302(a)(1) ...... To modify the special permit to decrease the test pressure. chard Park Inc. (modes 1, 2, 3, 4)
[FR Doc. 2021–00401 Filed 1–11–21; 8:45 am] meeting must be received no later than with Section 333(d) of the FAA BILLING CODE 4909–60–P February 17, 2021. Reauthorization Act of 2018 (Pub. L. ADDRESSES: The meeting will be held 115–254). virtually. Details to access the virtual II. Agenda DEPARTMENT OF TRANSPORTATION meeting will be posted on the Committee website located at: https:// At the meeting, the agenda will cover Pipeline and Hazardous Materials www.phmsa.dot.gov/hazmat/ the following topics as specifically Safety Administration rulemakings/lithium-battery-safety- outlined in section 333(d) of Public Law advisory-committee. The E-Gov website 115–254: [PHMSA–2019–0098] is located at https:// (a) Facilitate communication amongst www.regulations.gov. Mailed written Lithium Battery Air Safety Advisory manufactures of lithium batteries and comments intended for the committee Committee; Notice of Public Meeting products containing lithium batteries, should be sent to Docket Management air carriers, and the Federal government. AGENCY: Pipeline and Hazardous Facility; U.S. Department of (b) Discuss the effectiveness, and the Materials Safety Administration Transportation (DOT), 1200 New Jersey economic and social impacts of lithium (PHMSA), U.S. Department of Avenue SE, West Building, Room W12– battery transportation regulations. 140, Washington, DC 20590–0001. Transportation (DOT). (c) Provide the Secretary with ACTION: Notice of public meeting. FOR FURTHER INFORMATION CONTACT: information regarding new technologies Lindsey Constantino or Steven Webb, and transportation safety practices. SUMMARY: This notice announces a PHMSA, U.S. Department of (d) Provide a forum to discuss meeting of the Lithium Battery Air Transportation. Telephone: (202) 360– Departmental activities related to Safety Advisory Committee. 7044. Email: lithiumbatteryFACA@ lithium battery transportation safety. DATES: The meeting will be held virtual- dot.gov. Any committee related request only on March 3–4, 2021, from 10:00 should be sent to the person listed in (e) Advise and recommend activities a.m. to 5:00 p.m. Eastern Standard this section. to improve the global enforcement of air transportation of lithium batteries, and Time. Requests to attend the meeting SUPPLEMENTARY INFORMATION: must be received by February 17, 2021. the effectiveness of those regulations. Persons requesting to speak during the I. Background (f) Provide a forum for feedback on meeting must submit a written copy of The Lithium Battery Air Safety potential U.S. positions to be taken at their remarks to DOT by February 17, Advisory Committee was created under international forums. 2021. Requests to submit written the Federal Advisory Committee Act (g) Guide activities to increase materials to be reviewed during the (FACA, Pub. L. 92–463), in accordance awareness of relevant requirements.
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(h) Review methods to decrease the 2. Mail DEPARTMENT OF TRANSPORTATION risk posed by undeclared hazardous Instructions: Identify the docket Pipeline and Hazardous Materials materials. number [PHMSA–2019–0098] at the Safety Administration A final agenda will be posted on the beginning of your comments. Note that Lithium Battery Air Safety Advisory all comments received will be posted Committee website at least one week in Hazardous Materials: Notice of Actions without change to the E-Gov website, advance of the meeting. on Special Permits including any personal information III. Public Participation provided. Anyone can search the AGENCY: Pipeline and Hazardous Materials Safety Administration The meeting will be open to the electronic form of all comments (PHMSA), DOT. public. DOT is committed to providing received into any of our dockets by the equal access to this meeting for all name of the individual submitting the ACTION: Notice of actions on special participants. If you need alternative comment (or signing the comment, if permit applications. formats or services because of a submitted on behalf of an association, SUMMARY: In accordance with the disability, such as sign language, business, labor union, etc.). Therefore, procedures governing the application interpretation, or other ancillary aids, consider reviewing DOT’s complete for, and the processing of, special please contact the person listed in the Privacy Act Statement in the Federal permits from the Department of FOR FURTHER INFORMATION CONTACT Register published on April 11, 2000, Transportation’s Hazardous Material section no later than February 17, 2021. (65 FR 19477), or view the Privacy Regulations, notice is hereby given that There will be five (5) minutes allotted Notice on the E-Gov website before the Office of Hazardous Materials Safety for oral comments from members of the submitting comments. has received the application described public joining the meeting. To herein. accommodate as many speakers as Docket: For docket access or to read possible, the time for each commenter background documents or comments, go DATES: Comments must be received on may be limited. Individuals wishing to to the E-Gov website at any time or visit or before February 11, 2021. reserve speaking time during the the DOT dockets facility listed in the ADDRESSES: Record Center, Pipeline and meeting must submit a request at the ADDRESSES category, between 9:00 a.m. Hazardous Materials Safety time of registration, as well as the name, and 5:00 p.m., Monday through Friday, Administration, U.S. Department of address, and organizational affiliation of except Federal holidays. Transportation, Washington, DC 20590. the proposed speaker. If the number of If you wish to receive confirmation of Comments should refer to the registrants requesting to make receipt of your written comments, application number and be submitted in statements is greater than can be please include a self-addressed, triplicate. If confirmation of receipt of reasonably accommodated during the stamped postcard with the following comments is desired, include a self- meeting, PHMSA may conduct a lottery statement: ‘‘Comments on [PHMSA– addressed stamped postcard showing to determine the speakers. Speakers are 2019–0098]’’ The docket clerk will date the special permit number. requested to submit a written copy of stamp the postcard prior to returning it FOR FURTHER INFORMATION CONTACT: their prepared remarks for inclusion in to you via the U.S. mail. Donald Burger, Chief, Office of the meeting records and for circulation Hazardous Materials Approvals and to Lithium Battery Air Safety Advisory Privacy Act Statement Permits Division, Pipeline and Committee members. All prepared Hazardous Materials Safety remarks submitted on time will be DOT may solicit comments from the public regarding certain general notices. Administration, U.S. Department of accepted and considered as part of the Transportation, East Building, PHH–30, DOT posts these comments, without record. Any member of the public may 1200 New Jersey Avenue Southeast, edit, including any personal information present a written statement to the Washington, DC 20590–0001, (202) 366– committee at any time. the commenter provides, to the E-Gov 4535. Copies of the meeting minutes, and website, as described in the system of SUPPLEMENTARY INFORMATION: committee presentations will be records notice (DOT/ALL–14 FDMS). Copies of available on the Lithium Battery Air the applications are available for Signed in Washington, DC, on January 7, inspection in the Records Center, East Safety Advisory Committee website. 2021. Presentations will also be posted on the Building, PHH–30, 1200 New Jersey E-Gov website in docket number William S. Schoonover, Avenue Southeast, Washington DC or at PHMSA [PHMSA–2019–0098], within Associate Administrator for Hazardous http://regulations.gov. 30 days following the meeting. Materials Safety. This notice of receipt of applications Written comments: Persons who wish [FR Doc. 2021–00440 Filed 1–11–21; 8:45 am] for special permit is published in to submit written comments on the BILLING CODE 4910–60–P accordance with part 107 of the Federal meetings may submit them to docket hazardous materials transportation law [PHMSA–2019–0098] in the following (49 U.S.C. 5117(b); 49 CFR 1.53(b)). ways: Issued in Washington, DC, on January 05, 1. E-Gov website: This site allows the 2021. public to enter comments on any Donald P. Burger, Federal Register notice issued by any Chief, General Approvals and Permits agency. Branch.
Application Applicant Regulation(s) affected Nature of the special permits thereof
7573–M ...... Department of Defense (Mili- 172.1, 175.1 ...... To modify the special permit to update references to the new tary Surface Deployment & AFMAN manual. Distribution Command).
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Application Applicant Regulation(s) affected Nature of the special permits thereof
9232–M ...... Department of Defense (Mili- ...... To modify the special permit to update references to the new tary Surface Deployment & AFMAN manual. Distribution Command). 9998–M ...... Accumulators, Inc ...... 173.302(a) ...... To modify the special permit to add three additional bladder designs. 12102–M ...... Haz Mat Services, Incor- 173.56(i) ...... To modify the special permit to authorize additional Class 3 porated. and Division 4.1 explosives. 16146–M ...... Department of Defense (Mili- 171.22(e), 172.101(j) ...... To modify the permit to reference update references to the 24 tary Surface Deployment & series of the Air Force regulations. Distribution Command). 21056–N ...... Cummins Inc ...... 173.185(a)(1) ...... To authorize the transportation in commerce of prototype lith- ium batteries by cargo-only aircraft. 21057–N ...... Spaceflight, Inc ...... 173.185(a)(1) ...... To authorize authorizes the transportation in commerce of low production lithium ion batteries contained in equipment (spacecraft). 21087–N ...... Istanbul Genlesme Ve Hidrofor 173.306(g)(1) ...... To authorize the manufacture, mark, sale and use of non- Tanklari Makine Sanayi Ve DOT specification water pump system tanks charged with a Ticaret Anonim Sirketi. compressed gas that vary from the required size specified in 173.306(g). 21106–N ...... General Motors LLC ...... 173.185(b)(3)(ii) ...... To authorize the transportation in commerce of lithium ion cells in Large Packaging by highway and rail. 21110–N ...... Norfolk Southern Railway 174.24, 174.26 ...... To authorize the use of electronic means to maintain and Company. communicate on-board train consist information in lieu of paper documentation when hazardous materials are trans- ported by rail. 21128–N ...... Department of Defense (Mili- 180.207(c) ...... To authorize a one-time 5-year extension to the 10-year re- tary Surface Deployment & qualification date identified on FIBA ISO trailers with Distribution Command). UN11120 cylinders. 21138–M ...... LG Energy Solution ...... 173.185(f)(3) ...... To modify the special permit to remove the requirement of a photocopy of the SOC of the contents be on the outside of the package. 21146–N ...... APM Terminals Pacific LLC .... 172.704(c)(2) ...... To authorize hazmat employers, who employ maritime trans- portation workers and are unable to provide recurrent train- ing consistent with the HMR due to restrictions resulting from the COVID–19 public health emergency, to delay the recurrent training for the applicable hazmat employees. 21151–N ...... Toyota Gazoo Racing Europe 172.101(j) ...... To authorize the transportation in commerce of prototype lith- Gmbh. ium batteries in support of the Toyota Racing Team at the World Endurance Championship. 21158–N ...... Ups Supply Chain Solutions, 173.217(d) ...... To authorize the transportation in commerce of dry ice by air Inc. in accordance with 173.217(d) when the dry ice has pre- viously been used to refrigerate diagnostic or treatment specimens. 21166–N ...... Federal Cartridge Company .... 173.56(b) ...... To authorize the transportation in commerce of six primer caps that were previously approved with lead styphnate as the primer explosive to be transported with a proprietary explosive formulation that replaces the lead styphnate.
SPECIAL PERMITS DATA—Denied
21086–N ...... Carmi Flavor and Fragrance 173.120(a) ...... To authorize the transportation in commerce of flammable liq- Company, Inc. uids below their flashpoint without being regulated as haz- ardous materials. 21150–N ...... Zeco, Inc...... 172.203(a), 172.302(c), To authorize the transportation in commerce of Division 5.2 173.225(h). materials in non-authorized bulk packagings.
SPECIAL PERMITS DATA—Withdrawn
21089–N ...... Procyon-alpha Squared, Inc. .. 172.200, 172.300, 172.600, To authorize the manufacture, mark, sale, and use of pack- 172.400. aging for use with end-of-life/waste lithium ion cells, bat- teries and lithium ion cells and batteries contained in equip- ment shipped for recycling or disposal.
[FR Doc. 2021–00402 Filed 1–11–21; 8:45 am] BILLING CODE P
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DEPARTMENT OF TRANSPORTATION which a particular special permit is Permits Division, Pipeline and requested is indicated by a number in Hazardous Materials Safety Pipeline and Hazardous Materials the ‘‘Nature of Application’’ portion of Administration, U.S. Department of Safety Administration the table below as follows: 1—Motor Transportation, East Building, PHH–30, vehicle, 2—Rail freight, 3—Cargo vessel, 1200 New Jersey Avenue Southeast, Hazardous Materials: Notice of 4—Cargo aircraft only, 5—Passenger- Washington, DC 20590–0001, (202) 366– Applications for New Special Permits carrying aircraft. 4535. AGENCY: Pipeline and Hazardous DATES: Comments must be received on SUPPLEMENTARY INFORMATION: Copies of Materials Safety Administration or before February 11, 2021. the applications are available for (PHMSA), DOT. ADDRESSES: Record Center, Pipeline and inspection in the Records Center, East Building, PHH–30, 1200 New Jersey ACTION: List of applications for special Hazardous Materials Safety Avenue Southeast, Washington DC. permits. Administration, U.S. Department of Transportation, Washington, DC 20590. This notice of receipt of applications SUMMARY: In accordance with the Comments should refer to the for special permit is published in procedures governing the application application number and be submitted in accordance with part 107 of the Federal for, and the processing of, special triplicate. If confirmation of receipt of hazardous materials transportation law permits from the Department of comments is desired, include a self- (49 U.S.C. 5117(b); 49 CFR 1.53(b)). Transportation’s Hazardous Material addressed stamped postcard showing Issued in Washington, DC, on January 5, Regulations, notice is hereby given that the special permit number. 2021. the Office of Hazardous Materials Safety FOR FURTHER INFORMATION CONTACT: Donald P. Burger, has received the application described Donald Burger, Chief, Office of Chief, General Approvals and Permits herein. Each mode of transportation for Hazardous Materials Approvals and Branch.
Application No. Applicant Regulation(s) affected Nature of the special permits thereof
SPECIAL PERMITS DATA
21152–N ...... Halendt Solutions, LLC ...... 180.205 ...... To authorize transportation in commerce certain gasses in cylinders produced in accordance with specification 3A, 3AX. 3AA, 3AAX, 3T and UN–ISO cylinders made in ac- cordance with ISO 11120, having been requalified by acoustic emission (AE) and ultrasonic examination (UE). (modes 1, 2, 3, 4, 5) 21153–N ...... BVI Medical, Inc ...... 171.24(d)(2), 173.302(f) ...... To authorize the transportation in commerce of oxidizing gases contained in small pressure vessels via cargo-only aircraft. (mode 4) 21154–N ...... Erickson Incorporated ...... 172.101(j), 172.200, To authorize the transportation in commerce of certain mate- 172.301(c), 172.302(c), rials attached to or suspended from an aircraft in support of 173.315(j)(1), 175.30. construction operations when no other suitable means are available or impracticable or when an aircraft is the only safe means of transportation without being subject to cer- tain hazard communication requirements, quantity limita- tions, packing or loading and storage requirements. (mode 4) 21155–N ...... Aithre, Inc...... 172.301(c), 173.302a(a)(1), To authorize the manufacture, mark, sale, and use non-DOT 180.205. specification fully wrapped carbon-fiber reinforced alu- minum lined cylinders for the transportation in commerce of UN1072 compressed oxygen. (modes 1, 2, 3). 21157–N ...... Innophos, Inc...... To authorize the transportation in commerce of polyphosphoric acid in non-authorized specification pack- aging. (mode 1) 21159–N ...... Aithre, Inc ...... 172.301(c), 173.302a(a)(1), To authorize the transportation in commerce of non-DOT 180.205. specification cylinders containing oxygen. (modes 1, 2, 3) 21160–N ...... Alliant Techsystems Oper- 173.185(a)(1) ...... To authorize the transportation in commerce of lithium bat- ations LLC. teries, that are not of a type proven to have passed the re- quirements of 38.3 in the UN Manual of Tests and Criteria, when contained in a subassembly. (modes 1, 4) 21161–N ...... Structure Probe, Inc ...... 172.101(j) ...... To authorize the transportation in commerce of asbestos via passenger and cargo-only aircraft. (mode 4) 21162–N ...... Hexagon Masterworks, Inc ..... 173.301(a)(1) ...... To authorize the transportation in commerce of partially filled composite cylinders with Hydrogen gas with a maximum charged pressure less than 5% of the COPV designed service/operating pressure. (modes 1, 2, 3, 4) 21163–N ...... United Initiators, Inc ...... 178.345–10(b)(1) ...... To authorize the transportation in commerce of organic per- oxides in cargo tank motor vehicles that utilize alternative pressure relief devices, specifically 4—12’’ diameter rupture disks in lieu of the prescribed reclosing PRD. (mode 1)
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Application No. Applicant Regulation(s) affected Nature of the special permits thereof
21165–N ...... North Carolina Department of 172.400 ...... To authorize one-time transportation by highway of certain bi- Agriculture & Consumer ological and infectious substances, dilute pesticide solu- Services. tions and small quantities of laboratory reference standard materials from two adjacent facilities to newly constructed facility. (mode 1) 21167–N ...... KULR Technology Corporation 173.185(a)(1) ...... To authorize the manufacture, mark, sale, and use of alter- native packaging for shipments of prototype and low pro- duction lithium batteries. (modes 1, 2, 3, 4) 21168–N ...... Nexair, LLC ...... 172.203(a), 180.205(c), To authorize the transportation in commerce of certain Divi- 180.209(a), 180.209(b)(1), sion 2.1 and 2.2 hazardous materials in DOT Specification 180.209(b)(1)(iv). 3AL cylinders, cylinders manufactured under DOT–SP 12440, and ISO 7866 cylinders that are requalified every ten years rather than every five years using 100% ultra- sonic examination. (modes 1, 2, 3, 4, 5) 21169–N ...... Americase, LLC ...... 172.200, 172.700(a) ...... To authorize the manufacture, mark, sale, and use of thermal packaging for the purpose of shipping lithium batteries for recycling. Shipments are provided limited relief from the shipping papers and training required in 49 CFR Subparts C and H of Part 172 of the HMR. (modes 1, 2, 3)
[FR Doc. 2021–00400 Filed 1–11–21; 8:45 am] SW, Suite 3E–218, Washington, DC Supporting Statement and Other BILLING CODE 4909–60–P 20219. Documents’’ and then click on the link • Hand Delivery/Courier: 400 7th to any comment listed at the bottom of Street SW, Suite 3E–218, Washington, the screen. DC 20219. • DEPARTMENT OF THE TREASURY • For assistance in navigating Fax: (571) 465–4326. www.reginfo.gov, please contact the Instructions: You must include Comptroller of the Currency Regulatory Information Service Center ‘‘OCC’’ as the agency name and ‘‘1557– at (202) 482–7340. Agency Information Collection 0205’’ in your comment. In general, the Activities: Information Collection OCC will publish comments on FOR FURTHER INFORMATION CONTACT: Renewal; Comment Request; www.reginfo.gov without change, Shaquita Merritt, OCC Clearance Investment Securities including any business or personal Officer, (202) 649–5490, Chief Counsel’s information provided, such as name and Office, Office of the Comptroller of the AGENCY: Office of the Comptroller of the address information, email addresses, or Currency, 400 7th Street SW, Currency (OCC), Treasury. phone numbers. Comments received, Washington, DC 20219. including attachments and other ACTION: Notice and request for comment. SUPPLEMENTARY INFORMATION: supporting materials, are part of the Under the SUMMARY: The OCC, as part of its public record and subject to public PRA (44 U.S.C. 3501–3520), Federal continuing effort to reduce paperwork disclosure. Do not include any agencies must obtain approval from the and respondent burden, invites the information in your comment or OMB for each collection of information general public and other Federal supporting materials that you consider that they conduct or sponsor. agencies to take this opportunity to confidential or inappropriate for public ‘‘Collection of information’’ is defined comment on a continuing information disclosure. in 44 U.S.C. 3502(3) and 5 CFR collection as required by the Paperwork You may review comments and other 1320.3(c) to include agency requests or Reduction Act of 1995 (PRA). In related materials that pertain to this requirements that members of the public accordance with the requirements of the information collection beginning on the submit reports, keep records, or provide PRA, the OCC may not conduct or date of publication of the second notice information to a third party. Section sponsor, and respondents are not for this collection 1 by the following 3506(c)(2)(A) of title 44 requires Federal required to respond to, an information method: agencies to provide a 60-day notice in collection unless it displays a currently • Viewing Comments Electronically: the Federal Register concerning each valid Office of Management and Budget Go to www.reginfo.gov. Click on the proposed collection of information, (OMB) control number. The OCC is ‘‘Information Collection Review’’ tab. including each renewal of an existing soliciting comment concerning the Underneath the ‘‘Currently under collection of information, before renewal of its information collection Review’’ section heading, from the drop- submitting the collection to OMB for titled, ‘‘Investment Securities.’’ down menu select ‘‘Department of approval. To comply with this requirement, the OCC is publishing DATES: Treasury’’ and then click ‘‘submit’’. This You should submit written notice of the renewal of the collection comments by March 15, 2021. information collection can be located by searching by OMB control number of information set forth in this ADDRESSES: Commenters are encouraged ‘‘1557–0205’’ or ‘‘Investment document. to submit comments by email, if Securities.’’ Upon finding the Title: Investment Securities. possible. You may submit comments by appropriate information collection, click OMB Control No.: 1557–0205. any of the following methods: on the related ‘‘ICR Reference Number.’’ • Description: Under 12 CFR 1.3(h)(2), a Email: [email protected]. On the next screen, select ‘‘View • Mail: Chief Counsel’s Office, national bank may request an OCC Attention: Comment Processing, Office 1 Following the close of this notice’s 60-day determination that it may invest in an of the Comptroller of the Currency, comment period, the OCC will publish a second entity that is exempt from registration Attention: 1557–0205, 400 7th Street notice with a 30-day comment period. under section 3(c)(1) of the Investment
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Company Act of 1940 2 if the portfolio DEPARTMENT OF THE TREASURY from the Roofers Local No. 88 Pension of the entity consists exclusively of Fund, please contact Treasury at (202) assets that a national bank may Multiemployer Pension Plan 622–1534 (not a toll-free number). purchase and sell for its own account. Application To Reduce Benefits SUPPLEMENTARY INFORMATION: MPRA The OCC uses the information AGENCY: Department of the Treasury. amended the Internal Revenue Code to contained in the request as a basis for permit a multiemployer plan that is ACTION: Notice of availability; request ensuring that the bank’s investment is for comments. projected to have insufficient funds to consistent with its investment authority reduce pension benefits payable to under applicable law and does not pose SUMMARY: The Board of Trustees of the participants and beneficiaries if certain unacceptable risk. Under 12 CFR 1.7(b), Roofers Local No. 88 Pension Fund, a conditions are satisfied. In order to a national bank may request OCC multiemployer pension plan, has reduce benefits, the plan sponsor is approval to extend the five-year holding submitted an application to reduce required to submit an application to the period for securities held in satisfaction benefits under the plan in accordance Secretary of the Treasury, which must of debts previously contracted for up to with the Multiemployer Pension Reform be approved or denied in consultation an additional five years. In its request, Act of 2014 (MPRA). The purpose of with the Pension Benefit Guaranty the bank must provide a clearly this notice is to announce that the Corporation (PBGC) and the Department convincing demonstration of why the application submitted by the Board of of Labor. additional holding period is needed. Trustees of the Roofers Local No. 88 On December 15, 2020, the Roofers The OCC uses the information in the Pension Fund has been published on Local No. 88 Pension Fund’s Board of request to ensure, on a case-by-case the website of the Department of the Trustees submitted an application for basis, that the bank’s purpose in Treasury (Treasury), and to request approval to reduce benefits under the retaining the securities is not public comments on the application plan. As required by MPRA, that speculative and that the bank’s reasons from interested parties, including application has been published on for requesting the extension are participants and beneficiaries, employee Treasury’s website at https:// adequate. The OCC also uses the organizations, and contributing home.treasury.gov/services/the- information to evaluate the risks to the employers of the Roofers Local No. 88 multiemployer-pension-reform-act-of- bank in extending the holding period, Pension Fund. 2014/applications-for-benefit- including potential effects on the bank’s DATES: Comments must be received by suspension. Treasury is publishing this safety and soundness. February 26, 2021. notice in the Federal Register, in Type of Review: Extension of a ADDRESSES: You may submit comments consultation with PBGC and the currently approved collection. electronically through the Federal Department of Labor, to solicit public Affected Public: Businesses or other eRulemaking Portal at http:// comments on all aspects of the Roofers for-profit. www.regulations.gov, in accordance Local No. 88 Pension Fund’s Estimated Number of Respondents: with the instructions on that site. application. 25. Commenters are strongly encouraged to Comments are requested from Estimated Total Annual Burden: 460 submit public comments electronically. interested parties, including hours. Treasury expects to have limited participants and beneficiaries, employee organizations, and contributing Frequency of Response: On occasion. personnel available to process public employers of the Roofers Local No. 88 Comments submitted in response to this comments that are submitted on paper Pension Fund. Consideration will be notice will be summarized and included through mail. Until further notice, any given to any comments that are timely in the request for OMB approval. All comments submitted on paper will be received by Treasury. comments will become a matter of considered to the extent practicable. public record. Comments are invited on: Comments may be mailed to the David Kautter, Department of the Treasury, MPRA (a) Whether the collection of Assistant Secretary for Tax Policy. information is necessary for the proper Office, 1500 Pennsylvania Avenue NW, Room 1224, Washington, DC 20220, [FR Doc. 2021–00392 Filed 1–11–21; 8:45 am] performance of the functions of the BILLING CODE 4810–25–P OCC, including whether the information Attn: Danielle Norris. Comments sent has practical utility; (b) The accuracy of via facsimile, telephone, or email will the OCC’s estimate of the burden of the not be accepted. Additional Instructions. All DEPARTMENT OF VETERANS collection of information; (c) Ways to comments received, including AFFAIRS enhance the quality, utility, and clarity attachments and other supporting of the information to be collected; (d) [OMB Control No. 2900–0089] materials, will be made available to the Ways to minimize the burden of the public. Do not include any personally Agency Information Collection Activity collection on respondents, including identifiable information (such as your Under OMB Review: Statement of through the use of automated collection Social Security number, name, address, Dependency of Parent(s) techniques or other forms of information or other contact information) or any technology; and (e) Estimates of capital AGENCY: other information in your comment or Veterans Benefits or start-up costs and costs of operation, supporting materials that you do not Administration, Department of Veterans maintenance, and purchase of services want publicly disclosed. Treasury will Affairs. to provide information. make comments available for public ACTION: Notice. Bao Nguyen, inspection and copying on SUMMARY: In compliance with the Principal Deputy Chief Counsel, Office of the www.regulations.gov or upon request. Paperwork Reduction Act (PRA) of Comptroller of the Currency. Comments posted on the internet can be 1995, this notice announces that the [FR Doc. 2021–00434 Filed 1–11–21; 8:45 am] retrieved by most internet search Veterans Benefits Administration, BILLING CODE 4810–33–P engines. Department of Veterans Affairs, will FOR FURTHER INFORMATION CONTACT: For submit the collection of information 2 15 U.S.C. 80a–3(c)(1). information regarding the application abstracted below to the Office of
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Management and Budget (OMB) for compensation. Without this The purpose of the closed session is review and comment. The PRA information, determination of to provide recommendations on the submission describes the nature of the entitlement would not be possible. An scientific quality, budget, safety and information collection and its expected agency may not conduct or sponsor, and mission relevance of investigator- cost and burden and it includes the a person is not required to respond to initiated research applications actual data collection instrument. a collection of information unless it submitted for VA merit review DATES: Written comments and displays a currently valid OMB control evaluation. Applications submitted for recommendations for the proposed number. The Federal Register Notice review include various medical information collection should be sent with a 60-day comment period soliciting specialties within the general areas of within 30 days of publication of this comments on this collection of biomedical, behavioral and clinical notice to www.reginfo.gov/public/do/ information was published at 85 FR 213 science research. The JBL/CS SMRB PRAMain. Find this particular on November 3, 2020, page 69696. meeting will be closed to the public for information collection by selecting Affected Public: Individuals or the review, discussion, and evaluation ‘‘Currently under 30-day Review—Open Households. of initial and renewal research Estimated Annual Burden: 4,000 for Public Comments’’ or by using the applications, which involve reference to search function. Refer to ‘‘OMB Control hours. staff and consultant critiques of research No. 2900–0089’’. Estimated Average Burden per applications. Discussions will deal with FOR FURTHER INFORMATION CONTACT: Respondent: 30 minutes. scientific merit of each application and Danny S. Green, Enterprise Records Frequency of Response: One time. qualifications of personnel conducting Service (005R1B), Department of Estimated Number of Respondents: the studies, the disclosure of which Veterans Affairs, 810 Vermont Avenue 8,000. would constitute a clearly unwarranted NW, Washington, DC 20420, (202) 421– By direction of the Secretary. 1354 or email [email protected] . invasion of personal privacy. Danny S. Green, Additionally, premature disclosure of Please refer to ‘‘OMB Control No. 2900– VA PRA Clearance Officer, Office of Quality, 0089’’ in any correspondence. research information could significantly Performance and Risk, Department of obstruct implementation of proposed SUPPLEMENTARY INFORMATION: Veterans Affairs. agency action regarding the research Authority: 44 U.S.C. 3501–21. [FR Doc. 2021–00373 Filed 1–11–21; 8:45 am] Title: Application for DIC, Death applications. As provided by subsection BILLING CODE 8320–01–P Pension, and/or Accrued Benefits; 10(d) of Public Law 92–463, as amended Application for Dependency and by Public Law 94–409, closing the Indemnity Compensation by a Surviving DEPARTMENT OF VETERANS subcommittee meetings is in accordance Spouse or Child; Application for AFFAIRS with Title 5 U.S.C. 552b(c) (6) and Dependency and Indemnity (9)(B). Compensation, VA Form 21P–509. Joint Biomedical Laboratory Research Members of the public who wish to OMB Control Number: 2900–0089. and Development and Clinical Science attend the open JBL/CS SMRB meeting Type of Review: Extension of a Research and Development Services should join via WebEx at: Meeting currently approved collection. Scientific Merit Review Board, number (access code) 199 877 4715, Abstract: The Department of Veterans Amended Notice of Meeting Affairs (VA), through its Veterans meeting password: 5WDkEZaG?48. Benefits Administration (VBA), The Department of Veterans Affairs https://veteransaffairs.webex.com/ administers an integrated program of (VA) gives notice under Federal webappng/sites/veteransaffairs/ benefits and services, established by Advisory Committee Act, 5 U.S.C. meeting/download/28f6da1fcb6a4eb9b law, for veterans, service personnel, and App.2, that a meeting of the Joint 65f249b841ff391?siteurl=veterans their dependents and/or beneficiaries. Biomedical Laboratory Research and affairs&MTID=md9552f12d41ecc3645 Title 38 U.S.C. 5101(a) provides that a Development and Clinical Science d2e9a6258fdd61. Those who would like specific claim in the form provided by Research and Development Services to obtain a copy of the minutes from the the Secretary must be filed in order for Scientific Merit Review Board (JBL/CS closed subcommittee meetings and benefits to be paid to any individual SMRB) will be held Wednesday, January rosters of the subcommittee members under the laws administered by the 6, 2021, via WebEx. The meeting will should contact Pauline Cilladi-Rehrer, Secretary. VA Form 21P–509 is the begin at 3:00 p.m. and end at 5:00 p.m. MSBA, Designated Federal Officer, prescribed form to gather income and Eastern daylight time. The meeting will (14RD), Department of Veterans Affairs, dependency information from claimants have an open session from 3:00 p.m. 810 Vermont Avenue NW, Washington, who are seeking payment of benefits as, until 3:30 p.m. and a closed session DC 20420, at 202–443–5607 or at or for, a dependent parent. This from 3:30 p.m. until 5:00 p.m. [email protected]. information is necessary to determine The purpose of the open session is to Dated: January 6, 2021. dependency of the parent and make meet with the JBL/CS Service Directors determinations which affect the to discuss the overall policies and LaTonya L. Small, payment of monetary benefits. VA Form process for scientific review, as well as Federal Advisory Committee Management 21P–509 is used by a Veteran seeking to disseminate information among the Officer. establish their parent(s) as dependent(s), Board members regarding the VA [FR Doc. 2021–00335 Filed 1–11–21; 8:45 am] and by a surviving parent seeking death research priorities. BILLING CODE P
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Part II
Department of Housing and Urban Development
24 CFR Parts 3280, 3282 and 3285 Manufactured Home Construction and Safety Standards; Final Rule
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DEPARTMENT OF HOUSING AND the Federal Manufactured Home reviewing possible revisions to the URBAN DEVELOPMENT Construction and Safety Standards (the Construction and Safety Standards. As Construction and Safety Standards) the MHCC proceeded, proposed 24 CFR Parts 3280, 3282, and 3285 codified in 24 CFR part 3280. The Act revisions to the Construction and Safety [Docket No. FR–6149–F–02] was amended in 2000 by the Standards were divided into sets. The Manufactured Housing Improvement first set of revisions proposed by the RIN 2502–AJ49 Act of 2000 (Pub. L. 106–569, approved MHCC was published as a final rule in December 27, 2000) which established the Federal Register on November 30, Manufactured Home Construction and the Manufactured Housing Consensus 2005 (70 FR 72024). The second set of Safety Standards Committee (MHCC), a consensus revisions proposed by the MHCC was AGENCY: Office of the Assistant committee responsible for providing published as a final rule published in Secretary for Housing—Federal Housing HUD recommendations to adopt, revise the Federal Register on December 9, Commissioner, HUD. and interpret the Construction and 2013 (78 FR 73965). This final rule is ACTION: Final rule. Safety Standards. HUD’s Construction based in part on the third set of MHCC and Safety Standards apply to the proposals to revise the Construction and SUMMARY: This final rule amends the design, construction, and installation of Safety Standards published as a Federal Manufactured Home new homes. Changes to the collective proposed rule in the Federal Register on Construction and Safety Standards (the standards are not retroactively enforced January 31, 2020 (85 FR 5589). The Construction and Safety Standards) by by HUD as applicable to previously proposed rule included a MHCC adopting recommendations made to designed, built, and installed homes. proposal to revise the Construction and HUD by the Manufactured Housing As amended, the purposes of the Act Safety Standards to reduce the Consensus Committee (MHCC), as (enumerated at 42 U.S.C. 5401) are: ‘‘(1) regulatory burden by eliminating the modified by HUD. The National To protect the quality, durability, safety, need for manufacturers to obtain special Manufactured Housing Construction and affordability of manufactured approvals from HUD for certain and Safety Standards Act of 1974 (the homes; (2) to facilitate the availability of construction features and options. HUD Act) requires HUD to publish in the affordable manufactured homes and to reviewed the MHCC’s proposals and proposed revised Construction and increase homeownership for all made editorial revisions prior to Safety Standards submitted by the Americans; (3) to provide for the publishing the January 31, 2020, MHCC. The MHCC prepared and establishment of practical, uniform, and, proposed rule. HUD also added submitted to HUD its third group of to the extent possible, performance- proposals that complement the MHCC’s recommendations to improve various based Federal construction standards for recommendations. aspects of the Construction and Safety manufactured homes; (4) to encourage As explained in the January 31, 2020, Standards. HUD reviewed those innovative and cost-effective proposed rule, HUD decided not to recommendations and adopted some of construction techniques for include certain MHCC them after making editorial revisions manufactured homes; (5) to protect recommendations due to pending and some additions. This final rule residents of manufactured homes with regulations for improving energy further revises the Construction and respect to personal injuries and the efficiency in manufactured homes being Safety Standards based on HUD’s amount of insurance costs and property prepared by the U.S. Department of review and incorporation of certain damages in manufactured housing Energy (DOE) under the Energy public comments. consistent with the other purposes of Independence and Security Act (Pub. L. this section; (6) to establish a balanced 110–140, approved December 19, 2007) DATES: Effective Date: March 15, 2021. consensus process for the development, (EISA). DOE published a Notice of The incorporation by reference of revision, and interpretation of Proposed Rulemaking on June 17, 2016 certain publications listed in the rule is Construction and Safety standards for (81 FR 39756) and, more recently, a approved by the Director of the Federal manufactured homes and related Notice of Data Availability, Request for Register as of March 15, 2021. The regulations for the enforcement of such Information on August 3, 2018 (83 FR incorporation by reference of certain standards; (7) to ensure uniform and 38073) regarding energy conservation other publications listed in the rule was effective enforcement of Construction standards for manufactured housing. approved by the Director of the Federal and Safety standards for manufactured Given this DOE rulemaking, HUD Register as of August 11, 1987. homes; and (8) to ensure that the public decided to postpone action on MHCC- FOR FURTHER INFORMATION CONTACT: interest in, and need for, affordable proposed revisions to §§ 3280.502 and Teresa B. Payne, Administrator, Office manufactured housing is duly 3280.506(b), except for the mating wall of Manufactured Housing Programs, considered in all determinations of attached manufactured homes at Office of Housing, U.S. Department of relating to the Federal standards and § 3280.506(b)—an option that is needed Housing and Urban Development, 451 their enforcement.’’ to avoid a more burdensome alternative 7th Street SW, Washington DC 20410; In addition, the amended Act approval process (24 CFR 3282.14— telephone 202–402–5365 (this is not a generally requires HUD to establish Alternative construction of toll-free number). Persons with hearing Construction and Safety Standards that manufactured homes). HUD also or speech impairments may access this are reasonable and practical, meet high decided not to move forward with a new number via TTY by calling the Federal standards of protection, are proposal to add requirements for Information Relay Service at 800–877– performance-based, and are objectively draftstopping to the Construction and 8389 (this is a toll-free number). stated. Congress specifically established Safety Standards. HUD will not include SUPPLEMENTARY INFORMATION: the MHCC to develop proposed or move forward with these revisions to the Construction and Safety recommendations in this final rule. I. Background Standards. The Act provides specific The National Manufactured Housing procedures (42 U.S.C. 5403) for the II. Changes Made at the Final Rule Construction and Safety Standards Act MHCC process. Stage of 1974 (42 U.S.C. 5401–5426) (the Act) The MHCC held its first meeting in In consideration of the public authorizes HUD to establish and amend August 2002 and began work on comments and HUD’s experience
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implementing the program, HUD has attached accessory building or structure revised the fire separation requirements made certain editorial revisions to is built and added on at the home site. in paragraph (c), including that the HUD’s proposals made in the January garage must be separated from the home § 3280.108 Interior Passage 31, 2020, proposed rule. In general, the with appropriate gypsum wallboard or revisions adopt changes to the codified HUD revised paragraph (c) in this equivalent. HUD also added paragraph regulations that reinforce the Act’s section in accordance with the public (h) as suggested by public comment to purposes, namely providing benefits to comments by creating an exception to include that a site-built, self-supported consumers, homeowners, and the the requirement for doors to closets, garage is considered an add-on subject broader community; promoting and pantries, and doors to toilet to § 3282.8(j)(1) and state and local improving consumer and home safety; compartments in single-section homes. authorities. reducing regulatory barriers and Single-section manufactured homes § 3280.213 Factory Constructed or expanding consumer options; and have a smaller living space when Site-Built Attached Carports allowing use of some for the latest compared with a multi-section building technologies and materials manufactured home or a typical site- Similar to the previous section, public while creating more consistency with built home and, thus, closet and pantry commenters also suggested that the State-adopted residential building doors should not be subject to the same distinction between attached and self- codes. HUD declined to adopt some clear opening requirements as a multi- supported structures be emphasized in standards or commenters’ suggested section manufactured home or a typical this section. HUD made several changes changes in some instances based on site-built home. to this section based on public comment, including adding a provision considerations of the statutorily § 3280.114 Stairways prescribed MHCC process, the lack of in paragraph (b) that the manufacturer authority under the Act for HUD to HUD adjusted the rise and run may provide the maximum live and regulate design and construction of dimensions based on public comment. dead loads, and the applied loading certain types of housing, and consumer The changes recommended by public locations that the home is designed to safety. commenters on the proposed rule will resist from the carport, and other design give manufacturers more flexibility The final rule will revise certain limitations or restrictions. when trying to balance the smaller form- sections of the Construction and Safety factor of most homes with consumer § 3280.504 Condensation Control and Standards, as well as the incorporated demand for multiple stories. The edits Installation of Vapor Retarders reference standards where indicated. clarify that the standards do not apply The revisions described below are based Based on public comment, HUD to exterior stairways that are built at the on HUD’s review and consideration of clarified the distinction between mating home site or stairways to basement areas the public comments on the proposed walls and fire separation walls in that are not designed and built as part rule, HUD’s experience with the paragraph (b), stating that the fire of the manufactured home. program, the existent Construction and separation wall between each attached manufactured home must be considered Standards, and the issues raised in the § 3280.209 Smoke Alarm to be an exterior wall pursuant to proposed rule. The final rule also makes Requirements subpart K. minor technical edits to the While HUD did not revise this section Construction and Standards. in the proposed rule, a public § 3280.609 Water Distribution Systems § 3280.5 Data Plate commenter recommended that In order to better protect residents, combination smoke and carbon HUD added relief pipe turndown HUD revised § 3280.5 by revising monoxide alarms be added as requirements to this section based on paragraph (d), pursuant to public acceptable devices to parallel the public comment, stating that exterior comments, to streamline data entry. International Residential Code (IRC). relief drains shall be directed down and Paragraph (d) now reads, ‘‘(d) This Furthermore, the changes to this section shall terminate between 6″ and 24″ manufactured home IS designed to are intended to work in conjunction above finished grade. This is high accommodate the additional loads with the changes to § 3280.211. enough to prevent backflow, but low imposed by the attachment of an § 3280.211 Carbon Monoxide Detectors enough to reduce the risk of injury or attached accessory building or structure accident. in accordance with the manufacturer ‘‘Alarms’’ and ‘‘detectors’’ are installation instructions. The additional different items that serve different § 3280.705 Gas Piping Systems loads are in accordance with the design purposes. HUD changed references from HUD eliminated ‘‘hard pipe’’ in load(s) identified on this Data Plate; or ‘‘detector’’ to ‘‘alarm’’ in response to paragraph (I)(8)(iii), to account for a flex This manufactured home IS NOT public comment. HUD also revised this gas connector rather than a quick- designed to accommodate the additional section to include specific locations disconnect. loads imposed by the attachment of an where such items must be installed attached accessory building or structure rather than just referencing the more § 3280.710 Venting, Ventilation, and in accordance with the manufacturer general standards, such as the National Combustion Air installation instructions.’’ The Fire Protection Association Standard HUD clarified that the placement appropriate designation may be made 720. restrictions apply to exhausts of fuel while still setting forth information that burning appliances and used the § 3280.212 Factory Constructed or may be used by state and local defined term ‘‘habitable rooms’’ in this Site-Built Attached Garages authorities that have enforcement section. This provides consistency authority for site-built structures that Public commenters suggested that the across the regulation. are not integral to the manufactured distinction between attached and self- home produced and shipped by the supported structures be emphasized in § 3280.904 Specific Requirements for manufactured home manufacturer. HUD this section. HUD clarified that Designing the Transportations System seeks to preclude a home from being paragraph (a) applies only to garages In addition to some language and taken out of compliance when an which are not self-supported and grammatical changes, HUD added a
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requirement to check weights with the General Support provided a link to an example of home in a level position ready for The majority of commenters effective models whereby government transport in paragraph (b)(4)(ii), an expressed general support for the agencies rely on ISO/IEC 17020 explicit reference to the Department of proposed changes as part of HUD’s accreditation programs (https:// Transportation’s regulations at 49 CFR effort to update the Construction and www1.nyc.gov/site/buildings/industry/ 1 393.52(d) in paragraph (b)(9)(ii) Safety Standards. These commenters recognized-accrediting-bodies.page). regarding stopping distance, and textual stated that the proposed changes would HUD Response: HUD disagreed with changes to paragraph (b)(9)(iii) benefit homeowners and the broader the commenters. HUD’s regulations at regarding electrical brake wiring. community, promote or improve 24 CFR 3280.2 require products to be listed, certified, or labeled by a § 3280.1002 Definitions consumer and home safety, allow use of the latest building technologies and nationally recognized testing laboratory, In this section, HUD edited the materials, create more consistency with inspection agency, or other organization definition of ‘‘Fire separation wall’’ to State-adopted residential building codes concerned with product evaluation that emphasize the separation between for site-built housing, expand consumer maintains periodic inspection of production of labeled equipment or attached manufactured homes. amenity options (including attached garages, carports, decks and accessory materials, and by whose labeling § 3280.1003 Attached Manufactured buildings), help to include two-story indicates compliance with nationally Home Unit Separation and multifamily guidelines, and recognized standards or tests to eliminate regulations that impede broad determine suitable usage in a specified HUD clarified this section based on access to affordable housing. Several manner. HUD also believed that this public comment, particularly in commenters also urged HUD to move recommendation should be submitted paragraph (a)(1) related to fire forward with publishing the next set of for MHCC review and consideration, resistance. These edits will help HUD proposed updates to address that it is not appropriate for HUD to address minimum fire separation outstanding items. integrate these changes at this final rule requirements for common walls of HUD Response: HUD agreed with the stage, and the commenter should make attached manufactured housing commenters that the proposed changes the proposal through the MHCC process solutions in the Standards. would provide benefits to consumers, through the following website: http:// 2 III. The Public Comments homeowners, and the broader mhcc.homeinnovation.com/. community, and help promote the other Comment: HUD should adopt The public comment period for the purposes and policies of the National universal design standards. January 31, 2020, proposed rule closed Manufactured Housing Construction A commenter who identified as a on March 31, 2020. HUD received forty- and Safety Standards Act of 1974. person with a disability recommended one (41) public comments in response to Comment: Testing requirements that HUD adopt universal design the proposed rule, from various should be included but be accredited to standards in manufactured home manufactured home associations, non- ISO/IEC 17025 or 17020 by accredited construction and encourage profit organizations, and other testing laboratories that are signatories communities and housing agencies to interested parties. This section presents to the International Laboratory do likewise. the significant issues, questions, and Accreditation Cooperation Mutual HUD Response: HUD appreciated the suggestions submitted by public Recognition Arrangement (ILAC MRA). commenter’s perspective that HUD commenters, and HUD’s responses to One commenter stated that several adopt universal design standards. While these issues, questions, and suggestions. parts of the proposed rule reference HUD is fully supportive of the need for Most commenters supported updates testing, such as American Society for affordable and accessible housing, it Testing and Materials, Standard Test to the Construction and Safety noted that universal design can be Methods for Fire Tests of Building Standards, and encouraged HUD to accomplished within the minimum Construction and Materials (ASTM E continue working on updates to, and Construction and Safety standards 119), and recommended that these provided specific recommendations for, requirements already codified. Further, laboratory tests be conducted by ISO/ certain sections of the Construction and many home manufacturers currently IEC 17025 accredited testing offer homes designed and constructed to Standards. For example, several laboratories so as to be assured that the meet universal design standards without commenters supported adding two- testing results are generated by an entity conflicting with HUD’s current family or two- and three-family that has been found to be technically minimum standards. dwelling units to the new Subpart K, competent by an independent, Attached Manufactured Homes and accreditation body. Two commenters General Opposition Special Construction. Some commenters supported testing requirements, but Some commenters stated that the also suggested deleting or removing recommended that these laboratory tests several of the provisions proposed certain changes proposed by HUD. For be accredited to ISO/IEC 17025 or 17020 would increase manufactured home example, some commenters opposed or by accredited testing laboratories that installers’ liability and responsibility if requested clarification of HUD’s are signatories to the International the proposed rule is advanced without proposed changes to stair rise and run Laboratory Accreditation Cooperation significant change. The commenters requirements, and suggested changes to Mutual Recognition Arrangement (ILAC stated home installers were not create consistency among the Standards’ MRA), to assure that the testing results included in deliberations, and, as such, landing requirements and clarify are generated by an entity that has been whether certain requirements apply to found to be technically competent by an 1 NYC Buildings, Recognized Accrediting Bodies, stairs inside, or inside and outside, the independent accreditation body. One NYC.gov, https://www1.nyc.gov/site/buildings/ home. commenter added that this would allow industry/recognized-accrediting-bodies.page (last The following sections summarize the HUD to focus resources on program visited April 20, 2020). 2 Manufactured Housing Consensus Committee, comments received on the proposed oversight and/or research for technical MHCC Proposed Change Form, http:// rule and HUD’s responses: advancements. The commenter mhcc.homeinnovation.com/.
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HUD should not move forward with this Construction letter had been issued, de-facto manufactured housing rule. HUD required specific documentation to ‘‘standards.’’ HUD Response: HUD disagreed with be provided with each affected HUD Response: HUD is currently the commenter that manufactured home manufactured home, including implementing Executive Order 13891, installers were not included in installation instructions. The same or Promoting the Rule of Law Through deliberations. The MHCC membership similar documentation would continue Improved Agency Guidance has included and continues to include to be required pursuant to the Documents,5 and this comment is not representation from at least one requirement for manufacturers to applicable to any aspect addressed in individual with manufactured home provide installation instructions in this rulemaking. installer interest. The MHCC process is accordance with 24 CFR 3280.306(b) Comment: HUD should not provide administered in an open format in and 24 CFR 3285.2. Further, the home competitive advantage to any housing which any member of the public, manufacturer instructions must provide type. including manufactured home minimum installation specifications so Another commenter expressed installers, may participate and address that the home is not taken out of concern regarding any policy that may the Committee, as well as propose compliance with the Construction and give one housing type an unwarranted changes for MHCC review. All such Standards and meets the Model competitive advantage and risks the meetings are published in the Federal Manufactured Home Installation occupants’ health and safety. The Register at least 30 days in advance of Standards. These instructions are commenter stated HUD should refrain meetings. reviewed and approved by HUD- from making any changes that would Comment: Manufacturer approved Design Approval Primary result in furthering the divide between Documentation. Inspection Agencies (DAPIA) and the code requirements for manufactured One commenter stated that the manufacturers are required to provide homes and those that apply to homes proposed rule’s requirements for the the instructions with each manufactured that are stick-built or built using manufacturer to provide documentation home. engineered building systems. The poses problems, because HUD does not commenter urged HUD to maintain this require inspection agencies to check any HUD also disagreed with the balance and continue to facilitate of the documents the manufacturer commenter that requiring the consumer choice by ensuring that provides in the home. The commenter manufacturer to provide the regulatory reform efforts do not favor stated this situation resulted from instructions, without requiring an manufactured homes over other HUD’s Interpretative Bulletin H–1–77,3 inspection to verify the instructions are residences, leading to consumer which the commenter asserted shipped with the home, complicates confusion and unfair marketplace complicates several proposed changes, matters or otherwise poses risks to competition. namely those at §§ 3280.212, 3280.213, consumer health and safety. The HUD Response: HUD’s authority to 3280.612, and 3280.709. The commenter manufacturers’ installation instructions develop and implement standards is stated that if the proposed rule becomes and documentation are required to be applicable only to homes meeting the final, HUD should rescind Interpretive reviewed and approved by its DAPIA to statutory definition of a manufactured Bulletin H–1–77 to account for the help ensure conformance. Further, it is home. However, this rulemaking brings installation program loophole and the the manufacturers’ responsibility to the Standards in closer alignment to failure to provide assurance that the ensure that each home is provided with standards imposed for other types of proper documentation would be installation instructions and associated housing. shipped with the home. Another documentation as approved by its Comment: HUD has no authority to commenter stated a concern with DAPIA. DAPIA-approved quality establish standards for structures potential liability for installation work assurance manuals typically require attached to a manufactured home. related to accessory buildings and other manufacturer verification for the A commenter stated that HUD defined on-site installation, such as certain shipment of the installation ‘‘manufactured housing’’ narrowly in appliances the proposed rule states can instructions. It is the IPIA’s § 3280.2 to mean a structure built on a be shipped ‘‘loose’’ to the homesite. responsibility to ensure the permanent chassis and designed to be According to the commenter, to ensure effectiveness of the quality assurance used as a dwelling. The commenter that the end buyer or resident of the manuals. HUD may review and stated that while HUD has authority to home has a home that has been safely reconsider this matter further should establish requirements applicable to manufactured, transported, and evidence showing appropriate components within the chassis, it does installed, it is vital that all installation installation instructions are not being not have the authority to establish documentation is shipped with and shipped with manufactured homes. The standards for items outside or apart remains with the home. commenter(s) should submit proposed from the chassis. Rather, authority to HUD Response: HUD is aware that regulatory text through the MHCC regulate these structures rests with state standards for some construction features process at http:// and local authorities and their building that are addressed in this rulemaking mhcc.homeinnovation.com/ so that the code requirements and inspection affect the installation process and matter is reviewed by the MHCC.4 protocols. ‘‘Add-on or accessory therefore impact the responsibilities of Comment: HUD should not use sub- buildings or structures’’ are not built on home installers. All construction regulatory guidance to establish a permanent chassis. Section 3285.903 features included in this final rule were Construction and Safety standards. provides conditions where add-on or previously available through the A commenter stated that HUD should attached accessory buildings or Alternative Construction process and in repudiate the use of sub-regulatory structures may be installed, but again all instances where an Alternative ‘‘guidance’’ or ‘‘field guidance’’ fails to designate inspection memoranda and documents to establish responsibilities. The definition for 3 U.S. Department of Housing and Urban ‘‘Attached accessory building or Development, PIA Responsibility for Documents Required to be Provided with the Mobile Home, 4 Manufactured Housing Consensus Committee, structure’’ proposed for addition to HUD.gov, https://www.hud.gov/sites/dfiles/ MHCC Proposed Change Form, http:// OCHCO/documents/EIB-H-1-77.pdf. mhcc.homeinnovation.com/. 5 84 FR 55235 (Oct. 15, 2019).
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§§ 3280.2 and 3285.5 further adds to the defined as a ‘‘building’’ for housing a the home has been designed to confusion indicating that it includes motor vehicle. The commenter stated accommodate (see § 3280.5). such items when they are designed for that these are totally separate structures HUD disagreed with the comment attachment and structural support from which affect the home differently and suggesting that the definition of the manufactured home. can create safety hazards. The accessory building or structure is too HUD Response: HUD’s standards commenter suggested that the proposal broad. The Construction and Safety developed and implemented through should be rewritten, and garages should standards address the design and this rulemaking are not intended to be addressed separately. construction of the manufactured home apply to the design and construction of A commenter stated that the term and do not address the design, site-built structures, including add-ons ‘‘basic manufactured home’’ is not construction, placement, or other (in other words, the site-built garage, or defined and pre-supposing that there is standards for the design and the site-built carport). However, the such a thing as a ‘‘non-basic construction of the accessory standards and regulations established manufactured home.’’ If this is the case, structure(s). Further, state and local through this rulemaking do apply to the HUD should clearly indicate what they authorities may verify that a home has design and construction of the mean by these terms and how the been designed for an attached accessory manufactured home, when the home is construction and safety standards would structure by verifying such information designed to have an attached accessory apply. The commenter contended that available on the Data Plate. HUD agreed structure, such as the garage, carport, or regardless of HUD’s differentiation in with the commenter that the term ‘‘basic similar add-on. The requirements this case, the manufactured housing manufactured home’’ is not defined; established are to ensure that the Construction and Safety standards therefore, ‘‘basic’’ has been removed. should be applied consistently and any manufactured home will continue to § 3280.5 Data Plate comply with the Construction and manufactured home, whether deemed Safety Standards and that the residents’ ‘‘basic’’ or ‘‘non-basic’’ be clearly One commenter opposed the health and safety will be protected marketed as a manufactured home to proposed rule’s changes to the Data through means such as adequate avoid customer confusion and an Plate language and another commenter structural load design and minimum fire expectation of the product being supported the proposed changes. Some commenters agreed, however, that separation and other requirements when received. certain modifications to the Data Plate applicable. The design, construction, HUD Response: HUD disagreed with definition should be made: The Data and inspection of the attached accessory commenters stating that HUD should Plate indicates whether the home is structure (site-built garage, site-built establish requirements for stairs external designed to accommodate an add on, carport, or other site-built add-on) to the manufactured home, which are accessory building, and the like, and the remains subject to any applicable state needed for entry in most manufactured Data Plate and other documentation and or local requirements. homes. HUD’s established standards only govern the design and construction should document the weight, size, and Subpart A, General of the manufactured home, including all other limits the manufactured home can support. Failure to require additional § 3280.2 Definitions provisions addressed by this rulemaking. Requirements for external information will lead to confusion and One commenter opposed the stairs that are necessary to provide entry result in many homes being stressed definition change to ‘‘attached accessory to the homes remain subject to design beyond their designs limits and building or structure,’’ while another and construction requirements of state therefore lead to structural failure. commenter supported the proposed and local jurisdictions as they are not Another commenter stated that the changes. Some commenters stated that intended to increase the living or manufacturer should be required to proposed definition of ‘‘Attached storage area of the manufactured home identify the maximum loads applied to accessory building or structure’’ fails to and are dependent upon the siting and the floor system, wall system, roof include stairs, which are needed for installation of each individual home system and support system. entry in almost every manufactured which may vary by model, lot size, Another commenter suggested HUD home. topography, and other aspects. delete the first paragraph of the One commenter further stated that the HUD agreed with the commenter applicable statement in § 3280.5(d). This proposed rule would require that the stating that the proposed rule would and another commenter recommended ‘‘basic manufactured home’’ be designed require that the manufactured home be HUD revise the second paragraph to for the attachment of these structures. designed for the attachment of these include a checkbox for ‘‘is’’ or ‘‘is not’’ This does not address the need for the site-built structures. However, HUD similar to current language for manufacturers to modify their disagreed that the manufacturer would § 3280.5(g) to reduce language and installation instructions to reflect the not be required to provide installation clutter on home Data Plates. One added weight and wind load that added instructions that reflect the added commenter explained that this structures would impose on the home’s weight and wind load that an added alternative would still capture the intent foundation. structure would impose on the home’s of HUD’s proposal, while preserving Another commenter stated that the foundation. HUD’s standards, set forth space on the Data Plate for future definition appears to open the flood at § 3285.903, require accessory statements or other required disclosures. gates for other additions to a structures to be structurally The commenters proposed significant manufactured home which can affect independent unless the attached changes to HUD’s proposed regulatory egress requirements as well as alter the accessory building or structure is text. electric, heating, plumbing and other otherwise included in the installation HUD Response: HUD considered all systems. The commenter provided instructions or designed by a registered comments received on the requirements examples; awnings, porches, and professional engineer or registered for the Data Plate and made minor ramadas typically are identified as a architect. Further, the changes to the changes to reflect and accommodate covered area projecting in front of an Data Plate specifically identify when the some of the comments. Through the entrance, while cabanas are defined as home is designed for an attached language on the Date Plate, HUD is a cabin, hut, or shelter, and garages are accessory structure, and if so, the loads trying to provide information to the
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consumers, retailers, installers, and homes could affect the manufactured clear opening requirement of 27-inches local authorities about the design and housing occupants’ health and safety. only apply to passage doors in a construction of the home that may help The commenter urged HUD to keep the manufactured home. prevent a home from being taken out of AC process in place for design features Some commenters suggested adding compliance when an attached accessory that could affect the manufactured exclusions for closet, pantry, coat closet, building or structure is built and added home’s structural integrity and safety, linen closet, and toilet compartment on at the home site. Further, the Data including attached homes (i.e., zero lot doors and other spaces where the intent Plate provides information that may be line), multi-story homes, and attached is to ‘‘reach in’’ and access an item. The used by state and local authorities that carports and garages. The commenter commenters explained that closet and have enforcement authority for site-built continued that blurring the line between pantry doors, unlike a bedroom door, structures that are not integral to the what is manufactured housing and what are not considered passage doors. manufactured home produced and is site-built housing could mislead Further, single-section manufactured shipped by the manufactured home homebuyers, and that manufactured homes have a smaller living space when manufacturer. housing that emulates site-built compared with a multi-section elements should be held to the same Subpart B, Planning Considerations manufactured home or a typical site- inspection and building standards as built home. Given that living space is at One commenter stated that HUD site-built homes. The commenter urged a premium in single-section homes, proposed to adopt a superseded MHCC HUD to require attached units to meet closet and pantry doors should not be recommendation concerning all state and local building codes, subject to the same clear opening ventilation. HUD has proposed to including higher energy standards, requirements. authorize manufacturers’ compliance required for conventionally built HUD Response: HUD agreed with the with the 2010 edition of American housing. comments and revised the standard Society of Heating, Refrigeration, and HUD Response: HUD’s minimum accordingly. Air-Conditioning Engineers requirements established for attached (‘‘ASHRAE’’) Standard 62.2, homes (i.e., zero lot line) and multi- § 3280.111 Toilet compartments ‘‘Ventilation and Acceptable Indoor Air story homes do not change the Two commenters suggested revising Quality in Low-Rise Residential definition of a manufactured home or language in paragraph (b) to clarify the Buildings,’’ as an alternative to the impact the requirement that every regulatory intent that the section refers prescriptive ventilation requirements in transportable section of a manufactured to bathroom passage doors in single- § 3280.103(b) and (c). The proposed rule home bear a manufacturer’s certification section and multi-section homes. For ignores that more than four years ago, label. Through this rulemaking, HUD is example, the term ‘‘single-section’’ the MHCC updated its recommended codifying requirements previously set should modify ‘‘home,’’ not acceptance of ASHRAE Standard 62.2 to forth through Alternative Construction ‘‘bathroom.’’ refer to the 2013 version. Adopting the requirements; thereby, accounting for HUD Response: HUD agreed with the more recent version of the ASHRAE consumer safety. All regulatory aspects comments and revised the standard standard in this rulemaking would of the program, including design review accordingly. avoid the need for an additional change and inspections, remain in place for all to the regulations later to update the manufactured homes built under this § 3280.114 Stairways reference. federal program. HUD believes the Comments: Riser Height, Tread Depth, HUD Response: HUD understands minimum standards established and and Consistency. that the MHCC continues to provide enforced for these construction options Several commenters opposed HUD’s recommendations that may be more provide benefits to all segments of the proposed changes to stair rise and run recent than those published in proposed industry while protecting consumers’ requirements. Some commenters noted rules, including updates to the health and safety. Further updates to the that, as written, the proposal would referenced ASHRAE Standard 62.2. referenced ASHRAE Standard 62.2 may conflict with existing state and local Generally, HUD finalizes be addressed in future rulemaking. requirements and require manufactured recommendations in the order received § 3280.108 Interior Passage home communities to replace existing to avoid selective choice, minimize inventory of prefabricated landings and confusion, and so that full and complete Several commenters agreed that stairs. Another commenter stated that impact analyses can be conducted clarification was needed regarding to the stair rise and run in HUD’s proposed specific to the various groups of which doors the 27-inch requirement rule would not allow stairs to be run applies. One commenter stated that recommendations provide by the parallel with the width of many homes, closet doors (including walk-in closets) MHCC. which would eliminate many floor plan and pantry doors are less than 27- options and adversely penalize § 3280.103 Light and Ventilation inches, typically 24-inches or less. manufactured home builders. Another commenter stated that it has One commenter supported the One commenter stated that, several floor plans with closet and removal of the maximum 90 cubic feet § 3280.114(a)(2)(i), 7″ risers and 10″ pantry openings less than 27-inches and per minute fan requirement, which will treads would cause stairway openings to uses 24-inches for water heater and allow the commenter to increase the be larger to the point where some floor furnace compartments and 16-inches for size of homes built to accommodate plans would no longer accommodate a linen and coat closets. The commenters larger families, which commenter stated stairway. Some commenters suggested stated that they would need to make will allow more families to live in safe, HUD use 8″ or 8.25″ for the maximum significant changes to floor plan designs affordable homes with the modern rise and 9″ for the minimum tread, to accommodate HUD’s proposal, and amenities they desire. which are figures that thirteen states Another commenter expressed one commenter explained this would accept.6 One commenter also suggested concern that using the Standards and add costs to the home, drive up eliminating the alternative construction affordable housing costs, and financially 6 The states referenced by the commenter were: (AC) process for manufactured housing burden the commenter. One commenter IL, IN, KY, ME, MD, MA, MT, NJ, ND, OH, OR, PA, that utilizes design elements of site-built suggested clarifying that the minimum Continued
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HUD change ‘‘%’’ to ‘‘3⁄8 inch’’ in Another commenter suggested home builders that does not exist for § 3280.114(a)(2)(i), and change ‘‘%’’ to striking paragraph (b)(2) in its entirety site-built home builders. One ‘‘3⁄4 inch’’ in § 3280.114(a)(2)(ii). This because it partially conflicts with commenter stated that IRC Table commenter also suggested changing paragraph (b)(1), or, if HUD disagreed R301.1.5 does not require the 200 pound ‘‘Y2’’ to ‘‘1⁄2 inch’’ in paragraph (a)(5). with striking (b)(2), revising (b)(2) as concentrated load to be applied with According to another commenter, the follows to streamline and clarify any other loads and, therefore, the word maximum riser height and minimum requirements: ‘‘A landing or floor must ‘‘not’’ should be added after ‘‘this load’’ tread depth should be changed to 81⁄4 be located on each side of an exterior in the last sentence of paragraph inches and 9 inches in § 3280.114 doorway and the width of each landing (d)(2)(ii). Another commenter agreed (a)(2)(i). HUD’s proposed requirements must not be less than the door it serves. and added that this makes (d)(2)(ii) would almost eliminate stairway The maximum threshold height above consistent with the last sentence in designs that run parallel with the width the floor or landing must be 11⁄2 paragraph (c)(5). of a traditional manufactured home. inches.’’ Given that paragraph (b)(1) Comment: Lighting. This commenter’s rationale for the addresses interior stairways, doors, and For § 3280.114(e)(1), one commenter recommended change included giving landings (with exception for certain stated that HUD should delete the manufacturers more flexibility when basement applications), the commenter requirement for artificial light to be not trying to balance the smaller form-factor assumed that paragraph (b)(2) must be less than one-foot-candle at the center of of most homes with consumer demand intended for exterior applications, treads and landing and require only a for multiple stories. which is the basis for the suggested light above stairways and landings HUD Response: Regarding riser height edits. because the commenter was not aware and tread depth, HUD reviewed several Two commenters suggested HUD of a test method. Another commenter state building codes referenced in delete paragraph (e)(2) entirely, since suggested a prescriptive method to public comments and has made changes exterior stairs are not constructed simplify compliance with interior stair to riser height and tread depth within the building facility and more lighting. Lumens required for a 3 feet consistent with those requirements appropriately fit under the HUD Code’s wide x 9 feet vertical stair would be 3 ∼ found in many state building codes and Model Manufactured Home Installation feet x 11.67 feet x 1 foot-candle = 35 in accordance with the comments Standards. A commenter explained that Lumens. One 60-watt incandescent bulb received. exterior stairs would be subject to state or 10-Watt A19 LED provides about 840 Comments: Interior and Exterior and local building code and health- lumens which is more than adequate. Stairs. safety requirements. If HUD’s exterior Another commenter recommended Several commenters stated that HUD illumination requirements conflict with HUD add a prescriptive lighting should clarify whether the requirements state or local requirements, it would standard as an alternative compliance apply to stairs inside, or inside and only cause confusion within the option. The proposed illumination outside, the home or commented on industry and may put consumers at risk. requirement of ‘‘not less than one (1) whether the requirements should apply Comment: Guard Rails. foot-candle measured at the center of to these different sets of stairs. One Some commenters also suggested, for treads and landings’’ creates a new test commenter stated that requirements for § 3280.114(d)(1), that the proposed load requirement, but it is unclear who is stairways and related design features requirements only apply to guards more responsible for performing the test and ″ should focus only on stairways placed than 42 above the floor grade below, to assessing compliance. Without an inside the manufactured home, and the prevent driving up housing costs explanation of the test parameters and section title should be changed to without providing significant increased how the test would be administered, the ‘‘Stairways Inside the Manufactured safety protection. When a manufactured commenter was concerned this Home.’’ Another commenter stated that home includes a porch or similar provision would be inconsistently the proposed changes to paragraph (a)(2) feature, once installed, it is usually enforced. As an alternative, the addresses interior stairways and exterior between 30 and 42 inches above the commenter recommended that HUD stairways; the commenter suggested lower floor, and there is no evidence of introduce a minimum standard for revising the proposal to address interior increased injury from a fall as a result illumination. steps only. According to the commenter, of a guard failure that is 42 or fewer HUD Response: Generally, HUD states and local municipalities establish inches from grade. The commenters agreed with most comments and made stair geometry to which first responders provided regulatory text edits, and changes to the standards for stairways are already accustomed, and to require stated that a 30-inch guard rail including revisions to riser height and smaller riser heights and larger treads structural requirement would increase tread depth (§ 3280.114(a)(2), may create a hazard. the cost of each single-section home clarification of interior and exterior Another commenter supported the with a modest porch by $500, or more consideration (§§ 3280.114(a) and addition of language to define for larger homes, which undermines 3280.114(b)), provisions for landings requirements for stairways, landings, HUD’s efforts to preserve manufactured (§ 3280.114(b)), and handrails handrails, guards, and stairway housing affordability. (§ 3280.114(c)). illumination, however, the commenter The commenters further stated HUD HUD also modified the standard in suggested the language should detail if should remove the language regarding multiple places so that the text reflects it covers interior stairways, exterior the horizontal rail restriction in HUD’s regulatory authority for design stairways, or both. paragraph (d)(2), which HUD has not and construction of the home and its backed with a significant health-safety lack of authority to regulate stairways WI and WY. The commenter also referenced a concern as justification and which that are designed by others and built at change to the Indiana Code; see Indiana Department would restrict designs and add the home’s site necessary for access and of Homeland Security, Proposal for Code Change unnecessary cost. This restriction is not egress from the entry and exit points of 43, IN.gov (May 9, 2018) (proposals 49 and 50), found in the International Residential the homes. HUD also disagreed with https://www.in.gov/dhs/files/IRCC%27s%20 Final%20Approved%20Amendments%20 Code (IRC), which only prohibits the some commenters, as the requirements to%202018%20IRC%20(Part%201)%20- passage of a four-inch sphere and would in § 3280.112 only apply to stairways %20Accepted%20by%20FPBSC%202-5-19.pdf. result in a restriction for manufactured integral to the manufactured home, such
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as those necessary for multi-story or combination smoke and carbon requirements should align more closely multi-level manufactured home floors or monoxide alarms as acceptable devices with similar requirements in other for stairs that are not inside the home just as they are in IRC sections R314.1.1 building codes, such as the IRC’s. but may be necessary for multi-level and R314.5. Specifically, the commenter’s manufacturer designed and constructed HUD Response: HUD agreed with the suggestions include: Specifying the porches designed and built in the home commenter and made the corresponding required locations where carbon building factory as an integral feature of change. monoxide alarms must be installed (for the manufactured home. Further, § 3280.211 Carbon Monoxide Detectors example, alarms should be required requirements for external or exterior outside each separate sleeping area or in stairs that provide entry and exit and are Some commenters supported the immediate vicinity of any built at the home site are subject to state incorporating carbon monoxide bedrooms); requiring interconnectivity and or local authority and any such requirements into the Standards to between alarms, because when more reference otherwise has been removed. protect consumer health and safety. One than one alarm is installed in a home, HUD modified the standards related commenter noted that the MHCC made the actuation of one alarm should to landings removing duplicative this recommendation in 2009 and HUD activate all alarms; specifying how each language, clarifying interior versus should have adopted it some time ago. alarm must be powered, because the exterior provisions, and threshold One commenter suggested HUD home’s electrical system should be the height. should revise § 3280.211 to include primary power source, with batteries as HUD also modified the standard specific location requirements like a secondary, reserve power source; and regarding handrails to be consistent smoke alarms, instead of referencing the clarifying that the Standards would with requirements for handrails National Fire Protection Association allow combination carbon monoxide (removal of ladder effect restriction) (NFPA) Standard 720. and smoke alarms to keep pace with Some commenters stated that the identified in other building codes for consumer demand. Another commenter proposed rule’s coverage of CO alarm other residential structures. However, (0023) also supported this change. requirements would be insufficient According to the commenter, HUD HUD disagreed with comments that under the new § 3280.211 in protecting would have changed the load should clarify that combination alarms occupants of manufactured housing are acceptable to ensure the industry requirements for guard systems to apply because of its limited coverage. All only to guards above 42 inches above continues to keep pace with consumer manufactured housing should have CO demand. The commenter also suggested floor grade. alarms and not just those with fuel-fired The changes effected by this rule are amending § 3280.209 to ensure the appliances, designed for installing generally consistent with other sections cross-reference each other. attached garages, or designed for residential codes enforced nationwide. Comment: Alarms versus Detectors. installation over basements. While the However, the load requirement of 20 Some commenters stated that the new § 3280.211 would be consistent pounds per square foot is significantly word ‘‘detector’’ should not be used and with occupancy-related installation less than the load required by many suggested using ‘‘alarms’’ to be requirements of IRC Section R315, these states for similar guard systems. consistent with other codes and striking requirements provide no direct After consideration of the public the word ‘‘detector’’ wherever it occurs, protection for occupants of comments, HUD has not changed the because alarms and detectors are manufactured homes except where stairway and landing illumination distinct concepts. Alarms are self- coincident housing-related factors of requirements from the proposed rule as contained, single, or multi-station installed fuel-fired appliances, designs sensing devices that detect a given event commented by multiple commenters. for installing attached garages, or and sound an audible or visual alarm. The requirements, as published, are designs for installation over basements Detectors are sensing devices that must consistent with state and local standards were relevant. Furthermore, the be connected to a separate alarm system, and compliance remains, as with all proposed § 3280.211 requirements rather than self-contained systems. One other standards, the responsibility of the would not protect occupants where commenter stated that standards do not home manufacturer. In section I. of the other sources such as use of portable include requirements for transmitting preamble to this rule, HUD clarified that heating appliances or from misuse of detection devices to an alarm control all standards in this rule are not charcoal grills indoors (both reflected in unit as would be necessary with retroactive and apply only to newly CO incident data) following completion detector devices. The commenter constructed homes that enter the first of manufactured housing installation recommended removing the standard phase or stage of production on and and commissioning. Occupants of ‘‘all- versions in specific code sections which after the effective date of the rule. electric’’ homes may be particularly are incorporated by reference in Further changes, such as those proposed vulnerable during periods of electrical § 3280.4, which will allow for by some commenters, should be outage. The comment provided simplified future updates and is a proposed for review by the MHCC so instances of harm caused by carbon common practice for incorporating that consensus review of those proposed monoxide. building code standards into regulations changes is made as envisioned by the One commenter commended HUD for and laws. The commenter Act. It is not appropriate for HUD to recognizing the importance of requiring recommended removing the reference to integrate these changes at the final rule carbon monoxide detectors consistent ANSI/UL 2034, which may not be stage. with the IRC’s requirements. Through readily available and incorporate Subpart C, Fire Safety incorporation into the Construction and location requirements within this Safety Standards, HUD relieves local section. § 3280.209 Smoke Alarm officials from conducting additional HUD Response: HUD agreed with Requirements inspections and potential re-work post many comments and has modified the One commenter recommended HUD installation to comply with local Construction and Safety Standards to revise § 3280.209, a section not requirements. address combination alarms, integration addressed in the proposed rule. The Another commenter stated that HUD’s of specific location requirements, and commenter stated that HUD should add proposed carbon monoxide removal of references to ‘‘detector.’’
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HUD also notes that updating specific exterior finish for storage and shipping. According to one commenter, the editions of referenced standards may Another commenter agreed and stated guidance provided in §§ 3280.212, require notice and comment and as that paragraph (c) needs to be clarified 3280.213, 3282.8(j), and 3285.903(c) such, will remain for the time-being. so that fire separation between the (Attached Garages, Carports and Add- HUD also disagreed with some garage and the home may be completed Ons) appears contradictory and commenters that proposed to require on-site. Site-installed dormers at the confusing. Sections 3280.212 and carbon monoxide alarms in all homes, garage in addition to floor-to-foundation 3280.213 provide guidance on how regardless of whether the home as fuel- fire separation will be required to be manufactured housing should be burning appliances, an attached garage, completed on-site and it would be prepared for the addition of garages and or designed for installation over a advantageous to run all separation at carports which is clearly within the basement. HUD’s standards are that time to ensure proper alignment scope of the Federal standards. These consistent with state and local standards with the garage. Paragraph (c)(1) should sections, along with § 3282.8, discuss for residential construction. Should the also be clarified to allow gypsum load paths, providing conflicting commenter wish to pursue requirements required to meet separation to be either information on where loads should be for carbon monoxide alarms in all factory or site installed and allowance transferred. If the intent is to offer homes, the commenter is encouraged to for products equivalent to 1⁄2″ gypsum options, then the sections should be submit the proposed change to the should be added. presented with an ‘‘or’’ statement to MHCC for review and deliberation by One commenter stated that in indicate they are options, as is included the Committee. It is not appropriate for § 3280.212(g) the reference to § 3285.201 in the Data Plate requirements of HUD to integrate these changes at the should be changed to § 3285.301. The § 3280.5. The commenter said who bears final rule stage. commenter proposed that a new responsibility for approval and paragraph (h) be added because a site- inspection of these attached accessory Subpart C, Fire Safety, Attached built, self-supported garage is Garages buildings and structures should also be considered an add-on per § 3282.8(j)(1) clarified. According to the commenter, § 3280.212 Factory Constructed or and does not affect the ability of the these structures should comply with the Site-Built Attached Garages manufactured home to comply with the local building code and be inspected to One commenter noted that HUD’s Construction and Standards. that code by the local jurisdiction, given Another commenter stated the current policy, to not require the IPIA to their designation as ‘‘attached buildings Standards should be consistent with inspect documents shipped with the or structures’’ and not the extension of other building codes, such as the IRC. manufactured home (under Interpretive the manufactured home. Instead of requiring that the fire Bulletin H–1–77), conflicts with HUD Response: HUD agreed with separation be continuous from beneath proposed paragraph (g)—there is no most comments and has accepted all the floor, through the attic space, to the assurance that the manufacturer would suggested textual changes to the underside of the roof sheathing/decking, be including these additional standards that were submitted by the the Standards should only state that the instructions. public. HUD modified the final A commenter stated that the proposed garage must be separated from the home Construction and Safety Standards rule leaves it unclear as to when a with appropriate gypsum wallboard or accordingly. garage is to be added to the home. equivalent. Manufacturers can HUD disagreed with the commenter Another commenter stated that HUD determine whether the fire separation that installation instructions are not should clarify that paragraph (a) applies should be continuous from the floor, required by this final rule, as it is only to garages which are not self- through the attic space, to the roof specifically addressed through supported. One commenter supported sheathing or decking or if it is more § 3280.212(g). Further, upon placing a HUD’s actions to remove the issue of appropriate to envelop the structure’s label certification on each transportable attached garages and carports from the garage side. Other building codes leave section of a manufactured home, the costly AC process. The commenter this to the builder’s discretion and so manufacturer self certifies its stated that the proposed standards and should the Standards. compliance with the Construction and The commenter continued that HUD’s regulations would effectively obviate Safety Standards. Should the proposed rule for factory or site previous sub-regulatory HUD commenter seek additional changes to construction of attached garages should ‘‘guidance’’ memoranda which emphasize the distinction between either manufacturer or IPIA mandated the approval of attached attached and self-supported structures. requirements, the commenter is garage and ‘‘add-on’’-ready HUD should also revisit the fire encouraged to submit comments manufactured homes via the AC process separation requirements for attached through the MHCC process for set forth at § 3282.14.7 garages. The commenter’s suggested consensus review and deliberation. It is Several commenters stated that HUD not appropriate for HUD to integrate should revise the proposed fire edits included clarifying that attached garages are not self-supported. Further, these changes at the final rule stage. separation requirements. A commenter HUD also notes that the added stated HUD should require that gypsum when a garage would be attached to and supported by the home, manufacturers information required on the Data Plate be added on site to meet the fire more clearly identifies whether the separation requirement. Installing should only be required to comply with the Standards’ load provisions. They home has been designed for an attached gypsum on the exterior of a home in the garage. factory would not be a durable enough should not be expected to build homes that also meet the specific requirements Subpart C, Fire Safety, Attached 7 See, e.g., June 12, 2014 HUD Guidance of the various state and local Carports Memorandum (‘‘Construction of On-Site jurisdictions, and confirming that a site- installation of Add-Ons Such as an Attached built, self-supported garage is § 3280.213 Factory Constructed or Garage’’); and November 10, 2014 HUD Guidance considered an add-on and clarifying that Site-Built Attached Carports Memorandum (‘‘Additional DAPIA Guidance for Review and Processing of Manufacturers add-ons do not affect a manufactured One commenter stated that the Alternative Construction Requests for Attached home’s ability to comply with the proposed rule should be modified to Garages’’). Standards. include attached patio covers and porch
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roofs which can easily exceed the size in the factory. This would limit the under ‘‘On-Site Completion of a carport. The commenter also stated design options available to any third Requirements.’’ The commenter stated that current HUD policy under party responsible for installing an that installers were not included in Interpretive Bulletin H–1–77 conflicts attached carport at the jobsite; and deliberations on the proposed changes, with paragraph (f)—there is no removing the ‘‘cone of influence’’ and that since the On-Site Completion assurance that the manufacturer would provision, because this requirement is rule is relatively new, and given that be including these additional dependent on the type of anchor, and HUD has failed to monitor or measure instructions. should be determined by the installer. compliance, this provision should be Another commenter requested HUD The manufacturer should not be deleted until the success of the ‘‘On Site delete the following: Paragraph (b) about expected to know this information Completion’’ process can be evaluated. maximum roof slope for the carport, on without knowing exactly where a Another commenter stated that HUD the basis that carports cannot exceed the manufactured home would be sited and should delete the words ‘‘connections height of the home; paragraph (c) on how it would be installed; and between sections,’’ after ‘‘hinged roof beam designs, on the basis that beam confirming that a site-built, self- sections,’’ and before ‘‘sheathing,’’ in designs would be part of the approved supported carport is considered an add- paragraph (h)(5) because connections design by the Design Approval Primary on and clarifying that add-ons do not between sections is covered as part of Inspection Agency (DAPIA); and affect a manufactured home’s ability to standard installation. paragraph (d) on shear wall and uplift comply with the Construction and Another commenter stated that strapping design, on the basis that the Safety Standards. paragraph (h)(5)(iii) requires inspection carport design would not be known. Another commenter also supported at an installation site in stages but does One commenter stated that paragraph deleting paragraph (c)(1), because this not clarify who would provide (f)’s reference to § 3285.201 should be paragraph was covered in paragraphs (a) inspections. The commenter also changed to § 3285.301. and (c), and additional details on the suggested that HUD clearly define Another commenter said § 3280.213 acceptable engineering load path are not ‘‘inspection of the work at the for factory or site-built attached carports required. The commenter also suggested installation site in stages,’’ and stated should emphasize the distinction deleting paragraph (d) because the load that this new requirement would add between attached and self-supported path requirements should apply to all costs to the home, drive up the cost of structures and that striking unnecessary wind zones as specified in paragraphs affordable housing, and would or superfluous rules would also (a) and (c). The commenter also stated financially burden the commenter. streamline the requirements. The that the accepted engineer anchor test Two commenters stated that HUD commenter’s suggested edits include: protocol does not test for cone of strike §§ 3280.305(h)(5) (iii), (iv), and Deleting the maximum roof slope influence and it is not defined within (v), because these proposals generally requirement from the list of design the Construction and Safety Standards. apply to onsite installation and appear characteristics for carports, because Therefore, it should be removed from to overstep Subpart D’s bounds. The given that the height of the carport § 3280.213(f)(1). commenters believed these cannot exceed the height of the home, HUD Response: HUD did not add requirements, if necessary, would be the carport’s roof slope is never a requirements for patio covers and porch more appropriate under Part 3282, relevant factor in home design; adding roofs, as such specific code change text Subpart M, ‘‘On-site Completion of a provision that, as an alternative to and supporting information be Construction of Manufactured Homes.’’ specifying the unique design HUD Response: HUD disagreed with submitted to the MHCC for consensus characteristics of the carport and the the commenter that revisions to this review and deliberation. It is not home, manufacturers may provide the standard expand areas of construction appropriate for HUD to integrate these maximum loads that the home is that can be completed on site. The changes at the final rule stage. Further, designed to resist from the carport; changes to this standard were already HUD disagreed with comments that removing the provisions specifying implemented with the On-Site where splices in the host beam can be installation instructions are not required Completion of Construction Rule and located, because narrowly defining this by the standard, as it is clearly these changes are conforming. Further, provision with such detailed, addressed in §§ 3280.213(b) and (e). HUD conducted limited monitoring of prescriptive requirements could have Upon placing a label certification on procedures and approvals related to On unanticipated consequences, especially each transportable section of a Site Completion of Construction and has if there are continued advancements in manufactured home, the manufacturer not concluded any adverse or significant anchoring technology. According to the self-certifies its compliance with the findings. commenter, specific design Construction and Safety Standards. HUD modified this section to address characteristics should remain subject to HUD notes the added information other comments received including review and approval by the required on the Data Plate more clearly removing any references to installation manufacturer’s DAPIA. identifies whether the home has been activities. HUD also modified the The commenter’s recommendations designed for an attached carport. HUD inspection requirements but has continued with: Removing the shear agreed with all comments providing retained the intent that inspections wall requirements for homes designed specific textual changes and HUD occur prior to covering up additional for Wind Zone II and III installations in modified the standards accordingly. aspects or otherwise allowing for favor of manufacturers specifying Subpart D, Body and Frame inspection panels so that inspection can anchor requirements for uplift forces in Requirements take place. This aspect is important to Wind Zones II and III as part of the assure that the work completed on site home’s DAPIA-approved design, § 3280.305 Structural Design conforms to the design standards, so because if the manufacturer and its Requirements that the home is completed in DAPIA specify these requirements at the One commenter stated that proposed accordance with the Construction and design stage, the size of any attached § 3280.305(h)(5) expands areas of Safety Standards, and the home is not carport would be limited by the load construction that could be deferred to taken out of compliance through the capacity of the anchor system installed the job site and imposed on the installer work done at the home site. Further,
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these standards are established to work add to additional condensation between twenty-four inches above the finished in concert with the regulations for On the floors if the vapor retarder is not grade and face down at termination; Site Completion of Construction and installed on the ceiling on the lower high enough to prevent backflow, but will help to ensure that appropriate floor. low enough to reduce the risk of injury designs are provided to address the HUD Response: HUD disagreed with or accident. work that is expected to happen in the the commenters regarding the need for HUD Response: HUD reviewed and factory, the work that is expected to §§ 3280.504(b) and (c) to be deleted or generally agreed with the comments. happen at the home site, and the factory amended, and that the affected walls are HUD modified the standard to and or inspections at the site necessary interior walls. These commenters may incorporate the public comment where for conformance. not understand that the subject those changes have not significantly standards apply to the (fire) walls altered the intent as proposed. § 3280.307 Resistance to Elements and separating attached manufactured Use homes; rather than, mating walls § 3280.609 Water Distribution Systems A commenter stated that the between two sections of the same One commenter stated that the expansion of field installation of manufactured home. Multi-story requirement that installers extend water exterior coverings means the manufactured homes have been heater relief valve piping to beyond the requirement for the manufacturer to designed and built for more than two skirting of the home would very likely provide all needed materials (siding, decades prior to the rulemaking and create an imminent safety hazard fasteners, channels, etc.) should be under Alternative Construction because it carries superheated, added to this list. Another commenter processes. These homes have been pressurized water, so it should be agreed and suggested adding ‘‘and the designed and built, and significantly, deleted. Another commenter stated that required materials’’ after ‘‘Complete HUD has not received information if the relief valve is directed to outside installation instructions.’’ A commenter indicating these homes, without a the crawl space, there would be a suggested adding attached garages to the ceiling vapor retarder on the first floor, possibility of personal injury to those list of exemptions in paragraph (e), are not performing. nearby. The commenter explained that water heater manufacturers do not allow given the amount of onsite work § 3820.506 Heat Loss/Heat Gain required to complete the installation of additional piping to be installed directly an attached garage, and as long as the Two commenters suggested revising on the pressure relief valve. They manufacturer is complying with HUD’s paragraph (c) by replacing ‘‘the mating require ‘‘air gaps’’ when directing into list of conditions. wall of each’’ with ‘‘the fire separation additional piping. The commenter HUD Response: HUD reviewed and wall between each.’’ Mating walls concluded that HUD should reject these generally agreed with the comments. between two or more sections of a changes. HUD modified the standard accordingly. multi-section home are not the same as Another commenter stated that HUD firewalls separating two or more should add discharge pipe turndown Subpart F, Thermal Protection attached, single-family manufactured requirements taken from the Uniform § 3820.504 Condensation Control and homes. Mating walls are aligned at Plumbing Code which adds a higher Installation of Vapor Retarders installation to create a cohesive single- level of scald protection. This revision family residence—they are not exterior will increase consumer safety. One commenter stated that the walls. However, fire separation walls, Two commenters proposed changes to proposed requirements under which separate attached single-family HUD’s regulatory text. §§ 3820.504(b) and .506(c) are not homes, should be classified as exterior HUD Response: HUD reviewed and needed, and HUD should delete them. walls because they act as a health-safety generally agreed with the comments and The commenter stated its mating walls barrier between distinct residential addressed the protections to residents are located in a conditioned area, dwellings. The commenters believed by accepting comments regarding relief gaskets are installed in the factory to these edits clarify the distinction pipe turndowns. HUD also modified the prevent air infiltration, and the between mating walls and fire standard to incorporate the public commenter has not witnessed a mating separation walls. comment where those changes have not wall with damage from condensation. HUD Response: HUD reviewed and significantly altered the intent as Another commenter stated that generally agreed with the comments. proposed. mating walls are interior walls and HUD modified the standard to should not be treated as exterior walls incorporate the public comment where § 3280.612 Tests and Inspection which require a vapor barrier. those changes have not significantly One commenter opposed the changes Furthermore, many homes have single altered the intent as proposed. to this section because they would mating walls, and this section does not reduce the required pressure needed to define on which side the vapor barrier Subpart G, Plumbing Systems perform water supply testing and, as a should be applied. A commenter suggested clarifying the result, a revision of the manufacturers’ Another commenter stated that HUD definition of ‘‘indirect waste receptor,’’ installation instructions would be should delete these proposals until a new term being introduced to the needed along with oversight by the IPIA certain issues are evaluated. There will Standards. Second, in § 3280.608, strike agencies to assure that the proper be a concern if the connection between ‘‘Hangars’’ and replace it with instructions are provided with the floors is not effectively sealed from ‘‘Hangers’’ as in the original. Third, by home. Another commenter allowing cold outside air to enter incorporating additional safety recommended that, in the last sentence, between the ceiling of the first floor and considerations from the Uniform ‘‘potable water source’’ should replace floor system of the upper floor. If cold Plumbing Code, the commenter saw an ‘‘potable source of supply.’’ air is entering this area, a vapor retarder opportunity to protect the general HUD Response: HUD generally agreed should be applied to the ceiling on the public from the risk of burn or scald. with the comments regarding wording first floor. Another concern would be if The commenter believed a home’s relief changes to the standard. HUD modified the bottom board is still required to be drain, should it terminate outside the the standard to incorporate the public placed under the upper floors, this may home, must terminate between six and comment where those changes have not
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significantly altered the intent as HUD Response: HUD agreed that the explained that wiring ceiling-mounted proposed. HUD disagreed with MHCC voted to eliminate the and wall-mounted light fixtures to one opposition to the proposed change as requirement for the home manufacturer switch has been standard practice for the changes have been vetted by the to provide two sets of appliance decades. A commenter stated they were MHCC and are consistent with many manufacturers’ instructions with each unaware of any health-safety risk state requirements for testing potable home. This recommended change is associated with having multiple water supply systems. While this anticipated to be addressed in a future bathroom lights controlled by the same change may require revisions to rulemaking. HUD also reviewed the switch, HUD has not provided any manufacturers’ installation instructions, comments concerning the site installed information to suggest otherwise, and the system of design approvals will direct vent appliances and has made consumers’ preference and other ensure the instructions conform to the changes to clarify that testing of the building codes or standards support the revised requirements by the rule’s home’s fuel supply and electrical commenter’s position. effective date. systems are the responsibility of the HUD Response: HUD disagreed with home manufacturer. HUD also reviewed the comments. The intent of the Subpart H, Heating, Cooling and Fuel the comment regarding separation of requirement for separate switches Burning Systems intake and exhaust vents and made allows an occupant to use one or both § 3280.705 Gas Piping Systems changes to address the comment by lights at their discretion. This allows One commenter suggested HUD clarifying that the placement restrictions potential energy consumption savings eliminate ‘‘hard pipe’’ in paragraph apply to exhausts of fuel burning by allowing the occupant to energize (i)(8)(iii), as the industry uses a flex gas appliances and using the defined term, one light rather than both if both are not connector and not a quick-disconnect. ‘‘habitable rooms.’’ necessary. HUD Response: HUD reviewed and § 3280.710 Venting, Ventilation, and Subpart J, Transportation Systems generally agreed with the commenter Combustion Air and modified the standard to § 3280.902 Definitions One commenter stated that the new incorporate the commenter’s proposed One commenter stated that the requirement at paragraph (d) is not change. proposed change to the ‘‘Drawbar and needed and that, to follow the proposed coupling mechanism’’ definition, by § 3280.709 Installation of Appliances requirement, the commenter would removing ‘‘A frame’’ and adding in its have vent pipes above allowable A commenter stated that place ‘‘rigid substructure,’’ is not transport height. The commenter §§ 3280.709(a) and 3280.711 require that justified and should be discarded. requested that HUD delete the manufacturers currently ship two sets of Another commenter suggested deleting requirement because it would be forced installation instructions for each the parenthetical from the ‘‘Drawbar and to have vent pipes site installed, revise appliance with every home; the MHCC coupling mechanism’’ definition for vent runs, or eliminate some floor plans voted to strike this requirement from clarity. The commenter stated the completely, which would drive up the section § 3280.709(a) by letter ballot in parenthetical is unnecessary, and cost of affordable housing and cause 2015 (Log #92). ‘‘usually an A frame rigid structure’’ financial burden. Another commenter Some commenters noted the only creates confusion where the stated that HUD should clarify that importance of inspection but stated that defined term ‘‘Frame’’ also uses the § 3280.710 applies to fuel-burning it is unclear who is to perform on-site phrase ‘‘rigid structure’’ in its combustion appliances, to be consistent inspections and testing related to definition. with the IRC. Two commenters paragraph (a)(1)(ii). One commenter HUD Response: HUD disagreed with proposed changes to HUD’s regulatory stated that HUD should clarify that the these comments. The added term is text. installation is to comply with the local consistent with the same use in other HUD Response: HUD disagreed with building code requirements and be definitions and is intended to reflect the the comment that the changes to subject to inspection by state or local structure to which the coupling separate intake and exhaust vents are code officials. This commenter noted mechanism is mounted. that the language in § 3280.709(a)(1) not needed. The proposed standard was would allow for the installation of direct recommended by the MHCC and HUD § 3280.903 General Requirements for vent space heating appliances on-site refers the commenter to U.S. Designing the Structure To Withstand following approved instructions and the Government Accountability Office Transportation Shock and Vibration installation and inspection procedures (GAO) audit report GAO–13–52, Testing One commenter suggested that HUD provided. and Performance Evaluation Could reject the proposed changes to A commenter was concerned with Better Ensure Safe Indoor Air Quality. paragraph (a). The commenter stated changes to the vent system termination HUD also reviewed the comment that to remove ‘‘during its intended life’’ provisions in paragraph (d) because the regarding separation of intake and is unacceptable. To alter the language to commenter was unaware of any health- exhaust vents and has made changes to ‘‘function after set-up’’ now establishes safety risks that would necessitate address the comment by clarifying that a ‘‘time frame’’ on how long chassis expanding the permissible range from 3 the placement restrictions apply to have to last and many manufactured to 10 feet. The commenter stated the IRC exhausts of fuel burning appliances and homes will no longer be ‘‘transportable’’ has a similar requirement, but it only using the defined term, ‘‘habitable which is required under 3280.2. The applies to the vent system of a fuel- rooms.’’ commenter did not suggest where HUD burning appliance. Consequently, the Subpart I, Electrical Systems should reinclude the phrase ‘‘during its commenter recommended adding the intended life’’ if HUD kept its proposed clarifying phrase ‘‘of fuel-burning § 3280.807 Fixtures and Appliances changes to § 3280.903. appliances.’’ In addition, the commenter Some commenters stated that the new For paragraph (b)(1), commenters replacing the phrase ‘‘habitable areas’’ requirement at paragraph (g) has no stated that HUD should provide more with ‘‘habitable rooms’’ because this safety benefit to the consumer and HUD guidance on the road test requirements term is defined in the Standards. should delete it. The commenters and clarify what constitutes an effective
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road test. One commenter suggested that For paragraph (b)(9)(ii), several to check actual voltage unless the truck HUD clearly define the minimum miles commenters stated HUD should is hooked up to the brakes. The to travel, the type of roadways to travel, maintain the current 40-foot stopping commenter asked if the intent is to and what a failure is. Other commenters distance. One commenter stated HUD perform this test on every home that supported the requirement for road tests should utilize Interpretive Bulletin J–1– ships and requested that HUD delete the to be witnessed by experts who are in 76. Requiring new brake tests would requirement as it would drive up the the best position to provide such pose financial burdens. Another cost of affordable housing and pose services—an independent registered commenter stated it could not find a financial burden on the commenter. professional engineer or architect, or by federal Department of Transportation Another commenter suggested a recognized testing organization. One (DOT) requirement that would reduce replacing the first two sentences of commenter recommended that the the braking distance to 35 feet from 40 paragraph (b)(9)(iii) with the following: testing laboratory be accredited to ISO/ feet. The proposal would eliminate ‘‘Brake wiring must be provided for IEC 17025 or 17020. Two commenters acceptable brake tests qualified under each brake. The brake wire must not be stated that in paragraph (b)(1), the the current standards, adding undue less than the value specified in the manufacturer’s Production Inspection burden and cost, without justification, brake manufacturer’s instructions.’’ Primary Inspection Agency should be to homes with years of satisfactory Manufacturers should not be added to the list of independent third braking experience which would need responsible for evaluating each parties who can witness and certify the to be re-tested. Another commenter transportation company’s tractors and road test, and included regulatory text believed keeping the stopping distance equipment or for assessing each changes. These commenters stated that at 40 feet is consistent with DOT company’s quality assurance program. paragraphs A and B appear to be a regulations. They should only be responsible for carryover from Interpretive Bulletin J– For the same paragraph (b)(9)(ii), a ensuring that the provided brake wiring 1–76 and should be updated to the commenter stated the parenthetical meets or exceeds the minimum required applicable (1) and (2) paragraph should be deleted. The transportation of specifications as provided by the brake numbering format to clarify that the manufactured homes more manufacturer. equation requires the sum of the Dead appropriately falls under Category B(3), HUD Response: HUD accepted the Load and Floor Load calculations. ‘‘All other property-carrying vehicles comment regarding changing ‘‘insuring’’ HUD Response: HUD disagreed with and combinations of property-carrying to ‘‘to ensure’’ within § 3280.904(b)(3). the comment that the changed language vehicles,’’ of the DOT Vehicle Brake 8 HUD also accepted the comment to add alters the intended life of the chassis. Performance Table. Given that the ‘‘static’’ within §§ 3280.904(b)(4) and The terminology refers to the structural, weight of a home can easily exceed 3280.904(b)(6). HUD also accepted the 25,000 pounds—with some 16-foot- plumbing, mechanical and electrical comment to check weights with the wide, full-length models approaching systems and requires that those systems home in a level position (see revised 40,000 pounds—home transportation is remain operational/functional after § 3280.904(b)(4)(ii)). transportation. more closely related to the movement of HUD disagreed with the comment to HUD reviewed the comments and heavy equipment, such as excavators revise the stopping distance from 35 to proposed changes that would add and dump trucks. While the process of 40 feet. HUD revised the reference for several specific requirements within the transporting a home is considered the braking performance stopping road test requirements. These driveaway-towaway operations under distance, aligning HUD’s standards with suggestions should be put forth for DOT regulations, the DOT also DOT (at 49 CFR 393.52(d)) and clarified MHCC review and consideration, as it is recognizes that these homes require the classification of manufactured home not appropriate for HUD to integrate special consideration.9 these changes at the final rule stage. Two commenters suggested in to best align with DOT’s previously Upon review of public comment, paragraph (b)(6)(i), the word designated classification. HUD added that Primary Inspection ‘‘nationally’’ should be deleted. There HUD disagreed with the comment to Agencies may also witness and certify are several reputable programs and remove ‘‘nationally’’ from the qualifier road tests. HUD also reviewed testing agencies that do not yet have on testing agencies that may accept comments that include specific changes national accreditation, but they have recycled axle programs to the formula included in regional, state, or local approval. These (§ 3280.904(b)(6)(i)). This terminology § 3280.903(b)(3) and edited the formula programs or agencies should not be has been in use for decades and its use accordingly. excluded, especially when state is consistent with historical use. HUD standards are often more stringent. also disagreed with the comment that § 3280.904 Specific Requirements for suggests adding a specific accreditation Designing the Transportations System Another commenter recommended that, for paragraph (b)(6)(i), that the for testing agencies. HUD has found the A commenter suggested that ‘‘to nationally recognized testing agency be work of nationally recognized testing insure’’ should be replaced with accredited to ISO/IEC 17025 or 17020. agencies, having various qualifications, ‘‘ensuring’’ to correct a minor Some commenters suggested in does not impede health and safety grammatical error. Some commenters paragraph (b)(8)(ii), the phrase ‘‘or protection. suggested that in paragraph (b)(4)(i) the equivalent’’ should follow ‘‘tread wear HUD also reviewed comments word ‘‘static’’ should be added to ‘‘gross indicator’’ to ensure consistency with requesting the addition of equivalent dead weight,’’ such that the text should how the phrase is applied to other tread wear indicators but has not read ‘‘gross static dead weight,’’ to similar provisions throughout the received specific means of determining maintain consistency with the ‘‘static Standards. equivalence and has therefore decided tongue weight’’ variable. For paragraph (b)(9)(iii), a commenter not to include such language in the final For paragraph (b)(4)(ii), one stated that HUD’s proposed requirement rule. These suggestions should be put commenter suggested HUD add a is not practical because there is no way forth for MHCC review and requirement to check weights with the consideration, as it is not appropriate home in a level position ready for 8 See 49 CFR 393.52(d). for HUD to integrate these changes at transport. 9 See, e.g., 49 CFR 393.75(h). the final rule stage.
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HUD reviewed public comment and indication in the proposed rule of when HUD has reviewed the public specific comments that included textual or even if multi-unit/multi-family comment regarding integration of changes to § 3280.904(b)(9)(iii) manufactured homes will be addressed requirements that are generally regarding electrical brake wiring. HUD by promulgating new standards that are consistent with provisions of the accepted these changes. clearly and uncontrovertibly within the International Residential Code (IRC). HUD has acted on proposed standards Subpart K, Attached Manufactured scope of present federal law. The received from the public and as Homes and Special Construction commenter concluded that HUD should include MHCC recommended standards reviewed, modified and recommended Several commenters supported adding for multi-unit/multi-family by the MHCC. While some language two-family, or two- and three-family, manufactured homes in any final rule may be consistent between the IRC, state dwelling units to Subpart K. These under the present docket. and local codes, and the requirements commenters supported duplexes and Another commenter stated that much published in this rule, there are triplexes as more practical and of the proposed language in the new differences that remain and justify affordable solutions in urban and Subpart K duplicates nearly verbatim establishment of unique provisions suburban applications because of, for the language contained in IRC sections rather than incorporating the IRC or any example, zoning restrictions. One R302.2 and R302.4 without observing given state or local code in their commenter suggested less restrictive fire and protecting the rights of the ICC as entirety. HUD believes the standards separation requirements and amending its copyright holder. The commenter will allow use of some of the latest §§ 3280.1002 and .1004 and adding a stated that if HUD wishes to publish any building technologies and materials, new § 3280.1003(a). Another part of the IRC in its rules or future creating more consistency with multiple commenter also suggested less rulemaking proceeding, HUD must seek State-adopted residential building codes restrictive fire separation requirements to comply with OMB Circular A–119 for site-built housing (some of which and offered several recommended and Incorporation by Reference may incorporate or amend standards changes to regulatory text. These procedures. including, but not limited to, the proposed changes to regulatory text HUD Response: HUD reviewed International Residential Code), and included separating § 3280.1003 into comments that include specific text expand consumer choice. two paragraphs—paragraph (a) for ‘‘two changes and has integrated those Comments: Preemption and attached manufactured homes’’ and comments to the maximum extent Opportunity Zones. paragraph (b) for ‘‘three or more A commenter asserted that in the deemed necessary to effect the attached manufactured homes.’’ Some preamble HUD overtly intends to appropriate changes where those commenters supported reevaluating preempt the authority of state and local Subpart K for a single structure with changes have not significantly altered jurisdictions through Subpart K. The two dwellings but did not propose the intent as proposed. commenter cited reasons as to why such alternative regulatory text. One HUD decided not to eliminate requirements are within the domain of commenter stated that duplexes have structural independence for attached state and local authorities. Adjacent and simpler requirements than ‘‘town homes, as each home shall be designed attached manufactured homes may be homes,’’ and the demand for duplexes to be structurally independent and each manufactured by different companies will far outpace any other type of home must perform on its own. HUD and installed at different times resulting attached manufactured home. accepted changes to wording regarding in potential interactions that have not Another commenter, while expressing fire separation walls but has not been addressed within either general support for HUD’s proposed accepted the use of exceptions. The manufactured home, but which could be changes, questioned HUD’s focus on exceptions should be submitted as within the proposed rule’s adopting standards for multi-story proposed changes to the MHCC, and any requirements. The proposed rule manufactured homes and attached exceptions shall be handled through the provides no requirements that attached manufactured homes, while MHCC Alternative Construction process. It is manufactured homes be manufactured recommended standards for multi- not appropriate for HUD to integrate by the same manufacturer or installed at family manufactured homes are not these changes at the final rule stage. the same time. included in the proposed rule and have Further, this standards change was A commenter stated that HUD should yet to be proposed for adoption. The not intended to address multi-dwelling have provided more detail and commenter noted the absence of an unit manufactured homes (multiple justification for the following statement explanation in the proposed rule for single-family residences in one made in the Proposed Rule, which was HUD’s prioritization of the included manufactured home structure). The used as a blanket justification for the standards for multi-story and ‘‘zero-lot- MHCC recommendations for multi-unit new subpart K: ‘‘Subpart K would line’’ attached manufactured homes, as manufactured homes are contained in enable manufacturers to design and contrasted with broader and potentially the fourth set of its recommendations construct homes similar to townhomes, much more economically-significant for changes to the Standards. The which may be useful to address and beneficial proposed standards for attached manufactured homes are each affordable housing needs in multi-unit/multi-family manufactured designed as individual single-family Opportunity Zones and urban or other homes. The commenter stated that residential structures by the home areas.’’ instead of promoting affordable manufacturers and each such attached According to the commenter, HUD manufactured housing for all Americans home is to comply with the makes no attempt to quantify the benefit as required by law, HUD appears to be requirements set forth in 24 CFR 3280 against potential costs even though the abusing its regulatory authority to and as such meet all such requirements qualifier ‘‘may’’ is used to describe the support Fannie Mae and Freddie Mac in to be labeled as manufactured homes to policy change’s potential benefit. For order to benefit a narrow industry be installed in accordance with instance, HUD did not consider how segment, while smaller manufacturers accompanying installation instructions many fewer code inspectors might there are kept waiting endlessly for proposed that also meet HUD’s Model be in the country if this policy change multi-unit/multi-family standard. The Manufactured Home Installation were to allow the manufactured housing commenter stated that HUD gave no Standards. industry to become a dominant force in
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the housing sector. Further, HUD also allow for the industry to provide safe, apply to manufactured housing and failed to provide any evidence that a decent, sanitary, and affordable housing, contain many of the same or similar consumer market even exists for as the need develops. requirements as other similar structures townhome-style developments made out HUD also noted that the aspects of or similar design features and of manufactured homes. Additionally, installation would still be subject to considerations. HUD also failed to describe any interest state and local authority, as is the same that would validate the above statement for all other manufactured home § 3280.1003 Attached Manufactured for the type of developments that are installations, provided manufacturer Home Unit Separation considered by this new provision on the installation instructions and state and Two commenters provided a part of the Opportunity Zone funds, or local requirements at a minimum significant number of suggested changes their managers, or even those local comply with HUD’s Model to HUD’s proposed regulatory text. The officials representing the Opportunity Manufactured Home Installation commenters suggested several editorial Zone areas. Standards. However, HUD’s and substantive changes to the unit The commenter was also concerned Construction and Safety Standards as separation requirements and have about the number of state and local promulgated through this Final Rule suggested exceptions to the authorities that the proposed rule would would preempt state and local requirements under certain conditions. preempt, if finalized in its current form. requirements for the same aspects of Some commentors have also suggested The commenter stated there are at least construction, the same as for all other substantive changes to requirements for four major preemptions that should be manufactured homes. fire separation wall penetrations. considered more fully through a § 3280.1002 Definitions HUD Response: HUD reviewed Federalism Consultation, consistent comments that include specific text with Executive Order 13132. The Two commenters suggested changes to HUD’s proposed regulatory text. changes and has integrated those commenter believed that the authority comments to the maximum extent granted to manufactured housing Another commenter stated that HUD should reject the proposed changes to deemed necessary to effect the producers under this provision should appropriate changes that remain in line have triggered a proper consultation § 3280.1002. Manufactured homes are designed to be transportable during the with the MHCC’s recommendations. process, irrespective of the additional The changes made by HUD within this preemptions provided by the proposed intended life of the home and allowing multi-family manufactured homes to be standard remove reference to ‘‘two rule for building code-related attached manufactured homes’’ and authorities affecting stairways, landings, constructed and installed affects more generically requires unit handrails, guards and stairway homeownership and the adjacent home. separation between any attached illumination, siting of and installation Another commenter opposed the manufactured homes. HUD has also standards for carbon monoxide alarms, proposed rule due to its unwarranted modified the requirement that 1 hour and indoor ventilation requirements. intrusion into the modular housing fire-resistive rating be based on testing The commenter suggested that prior to construction sector. Subpart K would in accordance with ASTM E 119–05, finalizing the rule, HUD should pause to allow ‘‘(t)wo or more adjacent without including language stating complete a Federalism Consultation and manufactured homes that are ‘‘with exposure from both sides on each more robust cost-benefit analysis, structurally independent from attached manufactured home unit.’’ especially as it relates to disaster foundation to roof and with open space preparedness and recovery. on at least two sides. . .’’ (definition of HUD has not integrated substantive HUD Response: HUD reviewed the Attached manufactured home at changes to include new exceptions and public comment regarding the § 3280.1002). In addition to federal HUD has not accepted substantive justification for this new Subpart. In preemption and safety risks associated changes to fire separation penetrations. response, HUD found that the standards with manufactured housing, the HUD will consider exceptions through promulgated in this Final Rule are commenter asserted that HUD has not the Alternative Construction process, within the scope and authority provided considered additional factors that make should a manufacturer be unable to by the Manufactured Home modular homebuilding preferable to meet the requirements of the standards Construction and Safety Standards Act manufactured housing, including: and be able to demonstrate an of 1974, as amended by the Durability, resiliency, long-term value equivalent level of safety. Further Manufactured Housing Improvement and resale market, access to changes, such as those proposed by Act of 2000. Further, HUD believes that conventional financing without the some commenters, should be proposed the future design, construction and limits FHA places on manufactured for review by the MHCC so that installation of attached manufactured home loans, and fewer zoning consensus review of those proposed homes may create affordable housing restrictions. changes is made as envisioned by the opportunities and may allow HUD Response: HUD reviewed Act. It is not appropriate for HUD to manufactured homes to be placed in comments that include specific text integrate these changes at the final rule more urban areas where land and space changes and has integrated those stage. restrictions have historically limited the comments to the maximum extent § 3280.1004 Exterior Walls use of manufactured housing and deemed necessary to effect the because the design and construction of appropriate changes. HUD has changed Two commenters proposed that in such homes historically required the definition for ‘‘fire separation wall’’ paragraph (b), ‘‘or separation wall’’ specific HUD approvals creating a more by removing the language that the walls should be added after ‘‘fire separation burdensome and costly oversight be structurally independent as that wall’’ and before ‘‘on each process. These areas may include requirement is already included in the manufactured home.’’ locations within Opportunity Zones. definition of ‘‘attached manufactured HUD Response: HUD reviewed HUD is aware of a nationwide trend that home.’’ Further, HUD reviewed the comments that include specific text recognizes increased focus on efficient comments suggesting intrusion into the changes and has decided not to land use in many areas. HUD’s modular housing sector and disagreed incorporate the change to ensure all Construction and Safety Standards with the comments. These standards exterior walls contain insulation.
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Comments: Changes to the shipped with and remains with the repeatedly said it is committed to both Manufactured Home Procedural and home. housing innovation and streamlining Enforcement Regulations (24 CFR Part HUD Response: HUD reviewed the the administrative and regulatory 3282). comment and addressed similar processes that hurt manufactured A commenter stated that high winds comments in this final rule. Concerns housing, and this rulemaking galvanizes caused by tornadoes and hurricanes regarding verification of current HUD’s commitment to the manufactured have caused significant damage to installation documentation housing industry. Because HUD is the manufactured housing units, as requirements should be put forth for standard-setting body for the nation’s compared to site-built houses, as MHCC review and consideration, as it is manufactured home construction and evidenced by the Federal Emergency not appropriate for HUD to integrate safety standards, updates must follow a Management Agency (FEMA) in changes on these requirements at the distinct administrative path and must be multiple post-disaster assessment final rule stage. prioritized separately from unrelated reports. The commenter explained that policy matters. Such an approach was § 3285.5 Definitions structural add-ons to manufactured recommended by the Government homes present a clear safety risk to life One commenter suggested that the Accountability Office in 2014 and in and property, and the broad authority ‘‘attached accessory building or 2019 by HUD’s own Office of Policy given to manufactured housing structure’’ definition in § 3285.5 be Development and Research.10 manufacturers regarding attachments, updated to ensure it matches how the These commenters also urged HUD to including car ports, garages, awnings, term is defined elsewhere in the move forward with the subsequent sets decks and porches, at the newly Standards. Specifically, the word ‘‘the’’ of Standards updates that have been proposed 24 CFR part 3282, as well as should be inserted between ‘‘which’’ passed by the MHCC but are still through the proposed subpart K, should and ‘‘attachment,’’ to promote pending HUD action. Such sets of be reconsidered and reevaluated. HUD consistency in the Standards for the updates include several critical industry should reevaluate the proposed new term ‘‘attached accessory building recommendations such as roll-in revisions in consultation with FEMA or structure.’’ showers and tankless water heaters and the U.S. Global Change Research HUD Response: HUD reviewed within the Standards. The commenters Program. comments that included specific text also urged HUD to move forward with Another commenter recommended changes and integrated those comments subsequent proposals to update the that HUD keep in mind that, on January to the maximum extent deemed Federal Construction and Safety 14, 2020, several important amendments necessary to effect the appropriate Standards that have been considered to Subpart M were advanced by the changes. and recommended by the Consensus MHCC’s Regulatory Enforcement Committee—yet have not been acted Continued Updates to the Standards Subcommittee. While the commenter upon by the Department. One and MHCC Recommendations Not did not suggest that HUD delay updates commenter stated it is unacceptable that Addressed in the Proposed Rule to Subpart M, HUD should be aware that HUD continues to neglect its obligations substantial changes will likely be General Comments to ensure timely updates to the approved by the MHCC at its next Standards. HUD’s delays have real- Several commenters supported world consequences for families moving meeting. The commenter also looked regular updates to the Standards and forward to the prompt implementation into manufactured homes and for the HUD’s backing of manufactured environment and public health. It is of the MHCC’s recommended revisions housing. Commenters also to Subpart M, which the commenter critical that HUD address each of the recommended that HUD develop and revisions already recommended by the believed will streamline the implement a streamlined process for administrative process. MHCC and act on future MHCC Standards updates going forward, so recommendations within the timeframe HUD Response: HUD reviewed these revisions are introduced on a more general comments. HUD is regulating allowed by Congress, ‘‘not later than 12 consistent timeline. months after the date on which a design of the manufactured home, not Many commenters supported the design and construction of site-built standard is submitted to the Secretary recommendations and technical changes by the MHCC.’’ attachments. These aspects remain made by the national association Comments: The Department of Energy under the purview of the local representing the industry at the federal and Energy Efficiency. authorities having jurisdiction. level, the Manufactured Housing One commenter stated that one of the Changes to the Model Manufactured Institute (MHI), that further enhance the proposed rule’s notable failures is Home Installation Standards (24 CFR proposed rule. The commenters HUD’s decision ‘‘not to include in this Part 3285) believed MHI’s recommendations proposed rule certain MHCC should be incorporated into HUD’s final recommendations due to pending General Comments updates and represent critical progress regulations for improving energy A commenter stated the proposed rule in clearing out the backlog of items that efficiency in manufactured homes being would have a significant impact on the have been approved by the MHCC. prepared by the U.S. Department of role of manufactured home installers, These changes were recommended by Energy’’ (DOE). DOE in November 2019 including potential liability for the MHCC but have not yet been agreed to a settlement to take final installation work related to accessory incorporated into the Standards, and the action on energy efficiency no later than buildings and other on-site installation, commenters encouraged HUD to quickly February 2022. This offers HUD a such as certain appliances the proposal finalize the proposed rule with MHI’s reasonable opportunity to implement states can be shipped ‘‘loose’’ to the recommended changes. homesite. To ensure that the end buyer A commenter believed updates are 10 U.S. Gov’t Accountability Office, GAO–14–410, or resident of the home has a home that delayed because the Office of Manufactured Housing: Efforts Needed to Enhance Program Effectiveness and Ensure Funding Stability has been safely manufactured, Manufactured Housing Programs is a (July 2, 2014). See also HUD’s ‘‘Report to Congress transported, and installed, it is vital that ‘‘low priority’’ within HUD’s on the On-Site Completion of Construction for all installation documentation is organizational hierarchy. HUD has Manufactured Homes’’ (June 18, 2019).
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the MHCC’s recommendations in the incorporation by reference in standard is used to measure and current rulemaking and HUD’s delay accordance with 5 U.S.C. 552(a) and 1 describe the response of materials, further risks the health and financial CFR part 51. Copies of these standards products, or assemblies to heat and well-being of new manufactured home may be obtained from the organization flame under controlled conditions, but residents. that developed the standard. As does not by itself incorporate all factors Another commenter continued that described in § 3280.4, these standards required for fire hazard or fire risk HUD states that ‘‘[g]iven this DOE are also available for inspection at assessment of the materials, products, or rulemaking,’’ it ‘‘has decided to HUD’s Office of Manufactured Housing assemblies under actual fire conditions. postpone action’’ on certain MHCC Programs and the National Archives and This standard is available online for recommendations affecting §§ 3280.502 Records Administration. review via read-only, electronic access and 3280.506(b). The proposed rule This final rule incorporates by at http://www.ASTM.org/READING cites no legal authority for this reference the following six consensus LIBRARY. postponement, nor is HUD’s proposed standards for Manufactured Housing: 4. NFPA 70–2005. National Electrical action one of the three outcomes 1. ANSI/ASHRAE 62.2–2010, Code, Article 550.17. The provisions of permitted by the statutory text: 11 The Ventilation and Acceptable Indoor Air this article cover the electrical adoption, modification, or rejection of Quality in Low-Rise Residential conductors and equipment installed the proposed revisions recommended by Buildings. This standard defines the within or on mobile and manufactured the MHCC. Moreover, the proposed rule roles of and minimum requirements for homes, the conductors that connect does not fulfill HUD’s obligation to mechanical and natural ventilation mobile and manufactured homes to a publish for public comment the systems and the building envelope supply of electricity, and the proposed revised standards intended to provide acceptable indoor installation of electrical wiring, recommended by the MHCC. Because air quality in low-rise residential luminaires (fixtures), equipment, and HUD has failed to identify the specific buildings. It is ASHRAE’s Indoor Air appurtenances related to electrical changes to the Standards that it is Quality standard for residential installations within a mobile home park postponing, HUD denies the public an buildings. It applies to spaces intended up to the mobile home service-entrance opportunity to meaningfully comment for human occupancy within single- conductors or, if none, the mobile home on this aspect of the proposed rule. family houses and multi-family service equipment. More specifically, Even if DOE’s standards for energy structures of three stories or fewer above Article 550.17 provides that the wiring efficiency would ultimately supersede grade, including manufactured and of each mobile home be subjected to a the MHCC’s approved modular houses. This standard is 1-minute, 900-volt, dielectric strength recommendations, HUD has ample time available online for review via read- test (with all switches closed) between to implement the MHCC’s only, electronic access at http:// live parts (including neutral) and the recommended energy efficiency ibr.ansi.org/Standards/. mobile home ground. Alternatively, the improvements before compliance with 2. ANSI/UL 2034–2016. Standard for standard allows a test to be performed any conflicting DOE standards would be Single and Multiple Station Carbon at 1080 volts for 1 second. This test required. Monoxide Alarms. These requirements shall be performed after branch circuits Another commenter recognized the cover electrically operated single and are complete and after luminaires valuable role energy efficiency multiple station carbon monoxide (CO) (fixtures) or appliances are installed. requirements play in reducing the alarms intended for protection in This standard is available online for energy burden of households ordinary indoor locations of dwelling review via read-only, electronic access (particularly low-and moderate-income units, including recreational vehicles, at http://ibr.ansi.org/Standards. households) and supporting mobile homes, and recreational boats 5. NFPA 720. Standard for the affordability across the life cycle of with enclosed accommodation spaces Installation of Carbon Monoxide (CO) homeownership and rental. DOE’s delay and cockpit areas. The carbon monoxide Detection and Warning Equipment. This does not absolve HUD of its obligation alarms covered by these requirements document does not attempt to cover all to provide manufactured homeowners are intended to respond to the presence equipment, methods, and requirements with energy efficient homes. The of carbon monoxide from sources such that might be necessary or advantageous commenter recommended HUD as, but not limited to, exhaust from for the protection of lives from carbon incorporate provisions of the internal-combustion engines, abnormal monoxide exposure. The effects of International Energy Conservation Code operation of fuel-fired appliances, and exposure to carbon monoxide vary appropriate for manufactured homes fireplaces. Carbon monoxide alarms are significantly among different people. into the federal standards. HUD should intended to alarm at carbon monoxide Infants, pregnant women, and people also work diligently with DOE to assure levels below those that cause a loss of with physical conditions that limit their the implementation of the requirements ability to react to the dangers of carbon bodies’ ability to use oxygen can be in 42 U.S.C. 17071. monoxide exposure. Carbon monoxide affected by low concentrations of carbon HUD Response: HUD reviewed the alarms covered by this standard are not monoxide. These conditions include, comments and intends to move forward intended to alarm when exposed to but are not limited to, emphysema, with more recent MHCC long-term, low-level carbon monoxide asthma, and heart disease, all of which recommendations. HUD will continue to exposures or slightly higher short-term are usually indicated by a shortness of collaborate and cooperate with other transient carbon monoxide exposures, breath upon mild exercise. People in federal agencies, including DOE, as possibly caused by air pollution or need of warning about low levels of needed and necessary. properly installed and maintained fuel- carbon monoxide should explore the fired appliances and fireplaces. This use of specially calibrated units or other IV. Incorporation by Reference standard is available online for review alternatives. This standard is primarily The reference standards proposed for via read-only, electronic access at http:// concerned with life safety, not with incorporation are approved by the ibr.ansi.org/Standard. protection of property. It covers the Director of the Federal Register for 3. ASTM E 119–05. Standard Test selection, design, application, Methods for Fire Tests of Building installation, location, performance, 11 See 42 U.S.C. 5403(a)(5). Construction and Materials. This inspection, testing, and maintenance of
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carbon monoxide detection and warning requirements that cover electrically The sections of the Construction and equipment in buildings and structures. operated single and multiple station Safety Standards that would be This standard is available online for smoke alarms intended for open area amended by each reference modification review via read-only, electronic access protection in indoor locations. This and the impact of each reference is at http://ibr.ansi.org/Standards. standard is available online for review shown in the chart below. 6. UL 217. Single and Multiple Station via read-only, electronic access at http:// Smoke Alarms. This document provides ibr.ansi.org/Standard.
Standard Edition Title Section Comment
ANSI/UL 2034 ...... Third ... Single and Multiple Station Car- § 3280.211(a) Only required for homes that incorporate a gas bon Monoxide Alarms. burning appliance and then preempts state and local requirements already established in 38 states. ANSI/ASHRAE 62.2...... 2010 ... Ventilation and Acceptable In- § 3280.103(d) Provides an option to ventilation requirements es- door Air Quality in Low-Rise tablished at § 3280.103(b) and (c). Residential Buildings. NFPA No.70 Article 550.17 .. 2005 ... National Electrical Code ...... § 3280.810(b) Provides for a referenced standard to conduct po- larity checks as an option to visual polarity checks. NFPA 720 ...... 2015 ... Standard for the Installation Car- § 3280.211(b) Only required for homes that incorporate a gas bon Monoxide Detection burning appliance or an attached garage and Equipment. then preempts state and local requirements al- ready established in 38 states. ASTM E 119...... 2005 ... Standard Test Method for Fire § 3280.1003(a) Allows for a manufacturer to design and construct Tests of Building Construction attached housing that is otherwise only per- and Materials. mitted through an AC review and approval. UL 217...... Fifth .... Single and Multiple Station § 3280.211(a) Provides for a referenced standard for manufac- Smoke Alarms. turers to use combination carbon monoxide and smoke alarms. This standard addresses smoke alarm operation of the combination alarms.
In addition to reviewing these determination must be made whether a can be found below in the Summary of standards on-line, copies of the regulatory action is significant and, Benefits and Costs, and in the rule’s standards may be obtained from the therefore, subject to review by the Office Regulatory Impact Analysis. organization that developed the of Management and Budget (OMB) in standard as follows: accordance with the requirements of the Summary of Benefits and Costs of Rule ANSI—American National Standards order. Executive Order 13563 As discussed, this final rule would Institute, 11 West 42nd Street, New (Improving Regulations and Regulatory amend the Federal Manufactured Home York, NY 10036, 212–642–4900, fax Review) directs executive agencies to Construction and Safety Standards by 212–398–0023, www.ansi.org. analyze regulations that are ‘‘outmoded, adopting recommendations made to ASHRAE—American Society of ineffective, insufficient, or excessively HUD by the MHCC. In this regard, this Heating, Refrigeration, and Air burdensome, and to modify, streamline, final rule revises various standards that Conditioning Engineers, 1791 Tullie expand, or repeal them in accordance reflect current construction practices Circle NE, Atlanta, GA 30329, 404–636– with what has been learned.’’ Executive used by the manufacturing housing 8400, fax 404–321–5478. Order 13563 also directs that, where industry and the home construction ASTM—ASTM, Int’l, 100 Barr Harbor relevant, feasible, and consistent with industry in general. For example, when Drive, West Conshohocken, regulatory objectives, and to the extent a manufacturer chooses to install a Pennsylvania 19428, 610–832–9500, fax permitted by law, agencies are to carbon monoxide alarm, the 610–832–9555, www.astm.org. identify and consider regulatory manufacturer will use an alarm that has NFPA—National Fire Protection approaches that reduce burdens and been listed in accordance with Association, Batterymarch Park, Quincy, maintain flexibility and freedom of requirements of ANSI/UL 2034 and the Massachusetts 02269, 617–770–3000, choice for the public. manufacturer will install the alarm in fax 617–770–0700, www.nfpa.org. This rule was determined to be a accordance with the product’s UL—Underwriters Laboratories, 333 ‘‘significant regulatory action’’ as installation instructions that meet the Pfingsten Road, Northbrook, Illinois defined in section 3(f) of the Executive requirements of NFPA 720. Similarly, 60062, 847–272–8800, fax 847–509– order (although not an economically standards proposed that are applicable 6257, www.ul.com. significant regulatory action, as to interior door widths as well as those This final rule also references ASTM provided under section 3(f)(1) of the provisions for multi-story and attached D781–1968 (Reapproved 1973), which Executive order). manufactured homes are based on has already been approved for Executive Order 13771 current construction practices that have incorporation by reference. No changes largely been established due to pre- are being proposed to this IBR. Executive Order 13771, entitled existing requirements of state and local V. Findings and Certifications ‘‘Reducing Regulation and Controlling jurisdictions for other housing products Regulatory Costs,’’ was issued on (i.e., site-built or modular). Other Regulatory Review—Executive Orders January 30, 2017. This rule is expected standards recommended by the MHCC 12866 and 13563 to be an Executive Order 13771 and proposed by HUD, such as those Under Executive Order 12866 regulatory action. Details on the that would define requirements for (Regulatory Planning and Review), a estimated cost savings of this final rule stairways, landings, handrails, guards
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and stairway illumination, would free technology in the construction of built under an AC that requires a site manufacturers from having to follow manufactured homes, HUD believes that inspection be conducted in order to various state and local requirements that codification of certain design features verify conformance with specific terms vary from jurisdiction to jurisdiction that already were reviewed can provide and conditions of the AC approval; and and bring uniformity to manufactured cost savings for manufacturers and 6. Maintaining and providing copies home construction nation-wide. The consumers, and reduce regulatory of AC-specific production reports, rule would also incorporate five new confusion when directly addressed inspection reports, and other reference standards that are already within the code. In fact, HUD’s final administrative burdens required to standards used in the design, listing, rule is based primarily on the MHCC’s maintain the AC approval. and evaluation of the respective recommendations and integrates some This rule would also require that materials or components. aspects of specific AC letters that have carbon monoxide detectors be installed In addition, HUD has concluded that been issued in the past. Specifically, in homes with fuel burning appliances this rule provides manufacturers more regulatory costs that are currently borne or designed by the home manufacturer flexibility in the ability to pursue design by the manufactured home for an attached garage. These provisions options and, more importantly, cost manufacturer associated with preparing are intended to be consistent with other savings as the result of eliminating the an AC request and maintaining the AC single-family dwelling construction need to obtain HUD approval through approvals include: requirements and are intended to the Alternative Construction (AC) 1. Manufacturers’ engineers’ provide early warning alerts to process (see § 3282.14). More preparation of designs, calculations, or occupants of the presence of carbon specifically, manufacturers need to tests for aspects that do not conform monoxide within the living space of the engage the AC process to design and with outdated building standards for manufactured home. Specifically, this construct manufactured homes that past innovations that have become more rule would require that carbon incorporate innovations that have not commonplace but have not yet been monoxide alarms be installed in yet been codified in HUD’s Construction incorporated into the Construction and accordance with the Standard for the and Safety Standards. For example, Safety Standards; addressing the design and construction 2. DAPIA review and approval of the Installation of Carbon Monoxide of multi-story homes, attached homes, designs, calculations, and or tests to be Detection Equipment, NFPA 720–2015, or homes that are designed to submitted on behalf of the and be listed and conform to the accommodate an attached garage or manufacturers requesting HUD’s requirements of Single and Multiple carport that is not factory constructed approval; Station Carbon Monoxide Alarms, but added to the home during the home 3. Preparation of a submission ANSI/UL 2034–2016 edition. installation process, may create package for the AC request, including In sum, the one-time annual costs of regulatory confusion between state, all designs, calculations, and tests to be this proposed rule range from $2.19 local, and Federal authorities and may sent to HUD for approval; million to $4.122 million. Total valued sometimes require HUD approval 4. Lost opportunity costs and actual benefits range from $8.515 million to through the AC process prior to the manufacturer and DAPIA staff time to $12.517 million. Unvalued benefits manufacturer being able to incorporate respond to HUD throughout the review include reduced home damage and these design features. After review of an and approval process, which, depending injuries from piping water heater relief AC request, HUD establishes specific on the specific AC request, may take as valves to outside of the home and from terms and conditions for use of the few as 30 days or as long as 6 months; the avoided delay during the AC review. design through an AC letter. While the 5. Time and travel associated with The total estimated annual costs and AC process serves a useful purpose, third-party inspections at each affected benefits are described in the chart including encouraging the use of new home’s site for manufactured homes below.
3 percent 7 percent Estimate: low Estimate: high Estimate: low Estimate: high
Total Annual Costs (See Figure 3): Carbon Monoxide Detector Requirement ...... $258,000 $1,032,000 $258,000 $1,032,000 Water heater relief valves ...... 1,352,400 1,932,000 1,352,400 1,932,000 Wet-vented drains ...... 483,000 772,800 483,000 772,800 Separate Bathroom Light Switches ...... 96,600 425,040 96,600 425,040
Total ...... 2,190,000 4,161,840 2,190,000 4,161,840 Present Value of Benefits Carbon Monoxide Detector Requirement (See Figure 4): Value of Injuries Prevented ...... 166,818 166,818 142,688 142,688 Value of Deaths Prevented ...... 8,908,186 8,908,186 7,619,651 7,619,651 Wet-vented drains (See Figure 7) ...... 483,000 772,800 483,000 772,800 Separate Bathroom Light Switches (See Figure 5) ...... 326,796 2,614,366 214,929 1,719,434 Deregulatory (See Figure 6): Whole-House Ventilation...... 3,540 3,540 3,540 3,540 2-Story Homes ...... 12,640 12,640 12,640 12,640 Attached Garages...... 38,836 38,836 38,836 38,836
Total ...... 9,939,816 12,517,187 8,515,285 10,309,589
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A fuller discussion of the costs and Paperwork Reduction Act Reduction Act, an agency may not benefits of this rule is available in the conduct or sponsor, and a person is not rule’s Regulatory Impact Analysis, The information collection required to respond to, a collection of which is part of this docket. requirements contained in this proposed information unless the collection rule have been approved by the OMB Finally, any changes made to the rule displays a valid control number. under the Paperwork Reduction Act of The burden of information collection subsequent to its submission to OMB 1995 (44 U.S.C. 3501–3520) and addressed in this final rule is estimated are identified in the docket file, which assigned OMB control number 2502– as follows for those aspects that would is available for public inspection in the 0253. HUD expects to make changes to continue to require AC requests and Regulations Division, Room 10276, the existing recordkeeping items does not include burdens for past AC Office of General Counsel, U.S. consistent with changes in this final requests related to carport-ready homes, Department of Housing and Urban rule and believes that the changes will garage-ready homes, homes that exceed Development, 451 7th Street SW, result in a decrease of burden. In 2,571 square feet (whole house Washington, DC 20410–0500. accordance with the Paperwork ventilation), and two-story homes:
Number of Frequency of Responses Burden hours Annual burden Hourly cost Information collection respondents response per annum per response hours per response Annual cost
Manufacturers Records: § 3282.14 Alter- native Construc- tion Submissions 135 0.75 101 2.5 253 $33.57 $8,493.21 IPIA Records: § 3282.14 Alter- native Construc- tion Submission Concurrence Records and Re- porting ...... 12 14 168 2.0 336 33.57 11,279.52 DAPIA Records: § 3282.203/361/364 Design Review Records and Re- porting ...... 6 28 168 1.0 168 33.57 5,639.76
Total ...... 153 ...... 569 ...... 757 ...... 25,412.49
Unfunded Mandates Reform Act Regulatory Flexibility Act to be small businesses based on the Title II of the Unfunded Mandates The Regulatory Flexibility Act (RFA) threshold of 1,250 employees or less. Reform Act of 1995 (2 U.S.C. 1531– (5 U.S.C. 601 et seq.) generally requires The final rule applies to all the 1538) establishes requirements for an agency to conduct a regulatory manufacturers and thus would affect a Federal agencies to assess the effects of flexibility analysis of any rule subject to substantial number of small entities. their regulatory actions on state, local, notice and comment rulemaking Small entities have the ability and and tribal governments, and the private requirements, unless the agency certifies capability to offer the same type of sector. This rule will not impose any that the rule will not have a significant housing products with the same or Federal mandates on any state, local, or economic impact on a substantial similar options, features, and appliances tribal government or the private sector number of small entities. It is HUD’s as larger manufacturers. However, within the meaning of the Unfunded position that this proposed rule would smaller manufacturers have more Mandates Reform Act of 1995. not have a significant economic impact difficulty spreading regulatory costs on a substantial number of small over the higher production of homes Environmental Review entities. This proposed rule would like that of a large, higher producing A Finding of No Significant Impact regulate establishments primarily manufacturer. Small manufacturers with respect to the environment has engaged in making manufactured homes would need to bear the costs, reducing been made in accordance with HUD (NAICS 32991). The U.S. Small profit margins accordingly or passing- regulations at 24 CFR part 50, which Business Administration’s size through the costs over lower production implement section 102(2)(C) of the standards define an establishment amounts. This may disproportionally National Environmental Policy Act of primarily engaged in making increase the cost of housing products for 1969 (42 U.S.C. 4332(2)(C)). The manufactured homes as small if it does small manufacturers considering the Finding of No Significant Impact is not exceed 1,250 employees. Of the 222 same or similar options, features, and available for public inspection between firms included under this NAICS appliances. This rule, however, would the hours of 8 a.m. and 5 p.m. weekdays definition, approximately 35 produce provide small manufacturers greater in the Regulations Division, Office of manufactured homes subject to HUD’s flexibility to pursue design options and, General Counsel, Room 10276, Manufactured Housing Construction more importantly, obtain cost savings Department of Housing and Urban and Safety Standards. Other entities resulting from the elimination of the Development, 451 Seventh Street SW, covered by this NAICS code build non- need to obtain HUD approval through Washington, DC 20410–0500. The HUD Code prefabricated buildings. Of the AC process (see § 3282.14). More Finding of No Significant Impact will the 35 manufacturers subject to HUD’s specifically, small manufacturers are also be available for review in the Manufactured Housing Construction more likely to engage engineering docket for this rule on Regulations.gov. and Safety Standards, 31 are considered consultants and other non-staff
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resources in order to provide data and Accordingly, for the reasons described U.S.C. 552(a) and 1 CFR part 51 as information needed for the AC process. in the preamble, HUD amends 24 CFR though set forth in full. The Consequently, small manufacturers parts 3280, 3282, and 3285 to read as incorporation by reference of these would benefit most from this rule’s follows: standards has been approved by the provisions that eliminate the AC process Director of the Federal Register. If a later for design and construction of PART 3280—MANUFACTURED HOME edition is to be enforced, the manufactured homes that incorporate CONSTRUCTION AND SAFETY Department will publish a notification innovations that have not yet been STANDARDS of change in the Federal Register. These incorporated standards are available for codified in HUD’s Construction and ■ Safety Standards. Additionally, the 1. The authority citation for part 3280 purchase from the organization that elimination of these current regulatory continues to read as follows: developed the standard at the costs may provide small manufacturers Authority: 15 U.S.C. 2697, 42 U.S.C. corresponding addresses noted below. the opportunity to pursue design and 3535(d), 5403, and 5424. Incorporated standards are available for construction innovations that absent the ■ 2. In § 3280.2, add in alphabetical inspection at the Office of Manufactured rule would have been too costly to order a definition for ‘‘Attached Housing Program, Manufactured pursue. accessory building or structure’’ to read Housing and Construction Standards For the reasons stated, a substantial as follows: Division, U.S. Department of Housing number of small manufacturers with and Urban Development, 451 Seventh fewer than 1,250 employees will be § 3280.2 Definitions. Street SW, Room B–133, Washington, affected by this rule. Nevertheless, HUD * * * * * DC 20410, email [email protected]. Copies anticipates that the rule will not have a Attached accessory building or of incorporated standards that are not significant economic impact on them. structure means any awning, cabana, available from their producer Accordingly, the undersigned certifies deck, ramada, storage cabinet, carport, organizations may be obtained from the that this rule would not have a windbreak, garage or porch for which Office of Manufactured Housing significant economic impact on a the attachment of such is designed by Programs. These standards are also substantial number of small entities. the home manufacturer to be available for inspection at the National structurally supported by the Archives and Records Administration Executive Order 13132, Federalism manufactured home. (NARA). For information on the Executive Order 13132 (entitled * * * * * availability of this material at NARA, ‘‘Federalism’’) prohibits, to the extent ■ 3. Revise § 3280.3 to read as follows: email [email protected] or go to practicable and permitted by law, an www.archives.gov/federal-register/cfr/ agency from promulgating a regulation § 3280.3 Manufactured home procedural ibr-locations.html. that has federalism implications and and enforcement regulations, and * * * * * either imposes substantial direct consumer manual requirements. (m) * * * compliance costs on state and local (a) A manufacturer must comply with (2) ANSI/ASHRAE 62.2–2010, governments and is not required by the requirements of this part, part 3282 Ventilation and Acceptable Indoor Air statute, or preempts state law, unless the of this chapter, and 42 U.S.C. 5416. Quality in Low-Rise Residential relevant requirements of section 6 of the (b) Consumer manuals must be in Buildings, copyright 2010 IBR approved Executive order are met. This rule does accordance with § 3282.207 of this for § 3280.103(d). not have federalism implications and chapter. * * * * * does not impose substantial direct ■ 4. Amend § 3280.4 as follows: (p) * * * compliance costs on state and local ■ a. Revise paragraph (a); (27) ASTM E 119–05, Standard Test governments or preempt state law ■ b. Add paragraph (m)(2); Methods for Fire Tests of Building within the meaning of the Executive ■ c. In the introductory text to Construction and Materials, approved order. paragraph (p), remove the words September 15, 2005, IBR approved for ‘‘American Society for Testing and § 3280.1003(a). Catalog of Federal Domestic Assistance Materials’’ and add, in their place, * * * * * The Catalog of Federal Domestic ‘‘ASTM, International’’; (aa) * * * Assistance number for Manufactured ■ d. Redesignate paragraphs (p)(27) (4) * * * Housing Construction and Safety through (34) as paragraphs (p)(28) (xvi) Article 550.17, IBR approved for Standards is 14.171. through (35), respectively, and add new § 3280.810(b). paragraph (p)(27); * * * * * List of Subjects ■ e. Redesignate paragraphs (aa)(4)(xvi) (9) NFPA 720, Standard for 24 CFR Part 3280 through (xix) as paragraphs (aa)(4)(xvii) Installation of Carbon Monoxide (CO) through (xx), respectively, and add new Detection and Warning Equipment, Fire prevention, Housing standards, paragraph (aa)(4)(xvi); and 2015 Edition, Copyright 2014, IBR Incorporation by reference. ■ f. Add paragraph (aa)(9); approved for § 3280.211(b). ■ g. In paragraph (hh)(9), remove 24 CFR Part 3282 * * * * * ‘‘§ 3280.208(a)’’ and add, in its place, Administrative practice and (hh) * * * ‘‘§§ 3280.208(a) and 3280.211(a)’’; and (23) ANSI/UL 2034–2016, Standard procedure, Consumer protection, ■ h. Add paragraph (hh)(23). for Single and Multiple Station Carbon Intergovernmental relations, The revision and additions read as Monoxide Alarms, Third Edition, dated Investigations, Manufactured homes, follows: Reporting and recordkeeping February 28, 2008 (including revisions requirements, Warranties. § 3280.4 Incorporation by reference. through May 11, 2016), IBR approved (a) The specifications, standards, and for § 3280.211(a). 24 CFR Part 3285 codes of the following organizations are * * * * * Housing standards, Manufactured incorporated by reference in 24 CFR ■ 5. In § 3280.5, redesignate paragraphs homes. part 3280 (this Standard) pursuant to 5 (d) through (i) as paragraphs (e) through
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(j), respectively, and add new paragraph this section, ventilation systems not designed and built as part of a (d) to read as follows: complying with ANSI/ASHRAE transportable section of a manufactured Standard 62.2 (incorporated by home. § 3280.5 Data plate. reference, see § 3280.4) may be used. (2) Width. Stairways must not be less * * * * * ■ 8. In § 3280.108, add paragraph (c) to than 36 inches in clear width at all (d) The applicable statement: read as follows: points above permitted handrail height This manufactured home IS designed and below the required headroom to accommodate the additional loads § 3280.108 Interior passage. height. Handrails must not project more imposed by the attachment of an * * * * * than 41⁄2 inches on either side of the attached accessory building or structure (c) All interior swinging doors must stairway and the minimum clear width in accordance with the manufacturer have a minimum clear opening of 27 of the stairway at and below the installation instructions. The additional inches except doors to toilet handrail height, including treads and loads are in accordance with the design compartments in single-section homes landings, must not be less than 311⁄2 load(s) identified on this Data Plate; or (see § 3280.111(b)), and doors to closets inches where a handrail is installed on This manufactured home IS NOT and pantries. one side and 27 inches where handrails designed to accommodate the additional ■ 9. Revise § 3280.111 to read as are provided on both sides. loads imposed by the attachment of an follows: (3) Stair treads and risers—(i) Riser attached accessory building or structure height and tread depth. The maximum § 3280.111 Toilet compartments. in accordance with the manufacturer riser height must not exceed 81⁄4 inches installation instructions. (a) Each toilet compartment must be and the minimum tread depth must not * * * * * a minimum of 30 inches wide, except, be less than 9 inches. The riser height ■ 6. In § 3280.11, revise paragraph (d) to when the toilet is located adjacent to the must be measured vertically between read as follows: short dimension of the tub, the distance leading edges of the adjacent treads. The from the tub, to the center line of the tread depth must be measured § 3280.11 Certification label. toilet must not be less than 12 inches. horizontally between the vertical planes * * * * * At least 21 inches of clear space must of the foremost projection of adjacent (d) The label must be located at the be provided in front of each toilet. treads and at a right angle to the tread’s taillight end of each transportable (b) All bathroom passage doors in leading edge. The walking surface of section of the manufactured home single-section homes must have a treads and landings of a stairway must approximately 1 foot up from the floor minimum clear opening width of 23 be sloped no steeper than one unit and 1 foot in from the road side, or as inches, and bathroom passage doors in vertical in 48 units horizontal (a 2- near that location on a permanent part multi-section homes must have a percent slope). The greatest riser height of the exterior of the manufactured minimum clear opening width of 27 within any flight of stairs must not home section as practicable. The road inches. exceed the smallest by more than 3⁄8 side is the right side of the ■ 10. In § 3280.113, redesignate inch. The greatest tread depth within manufactured home when one views the paragraphs (b), (c), and (d) as paragraphs any flight of stairs must not exceed the manufactured home from the tow bar (c), (d), and (e), respectively, and add smallest by more than 3⁄8 inch. end of the manufactured home. If paragraph (b) to read as follows: (ii) Profile. The radius of curvature at locating the label on the taillight end of the leading edge of the tread must not § 3280.113 Glass and glazed openings. a transportable section will prevent the be greater than 9⁄16 inch. A nosing not label from being visible after the * * * * * less than 3⁄4 inch but not more than 11⁄4 manufactured home section is installed (b) Required glazed openings shall be inches shall be provided on stairways at the installation site, the label must be permitted to face into a roofed porch with solid risers. The greatest nosing installed on a permanent part of the where the porch abuts a street, yard, or projection must not exceed the smallest exterior of the manufactured home court and the longer side of the porch nosing projection by more than 3⁄4 inch section, in a visible location as specified is at least 65 percent open and between two stories, including the in the approved design. unobstructed and the ceiling height is nosing at the level of floors and ■ 7. In § 3280.103, revise paragraph (b) not less than 7 feet. landings. Beveling of nosing must not introductory text and add paragraph (d) * * * * * exceed 1⁄2 inch. Risers must be vertical to read as follows: ■ 11. Add § 3280.114 to read as follows: or sloped from the underside of the leading edge of the tread above at an § 3280.103 Light and ventilation. § 3280.114 Stairways. angle not more than 30 degrees from the * * * * * (a) Stairways—(1) General. These vertical. Open risers are permitted, (b) Whole-house ventilation. Each minimum standards apply to stairways provided that the opening between manufactured home must be provided that are designed and constructed as treads does not permit the passage of a with whole-house ventilation having a part of the factory-completed 4-inch diameter sphere. A nosing is not minimum capacity of 0.035 ft3/min/ft2 transportable section(s) of a required where the tread depth is a of interior floor space or its hourly manufactured home, such as interior minimum of 11 inches. The opening average equivalent. This ventilation stairways for multi-level or multi-story between adjacent treads is not limited capacity must be in addition to any homes or external stairways for multi- on stairs with a total rise of 30 inches openable window area. In no case shall level construction features that are or less. the installed ventilation capacity of the designed and constructed in the factory (4) Headroom. The minimum system be less than 50 cfm. The on a transportable section and integral headroom in all parts of the stairway following criteria must be adhered to: to the access and egress needs within must not be less than 6 feet 8 inches, * * * * * the transportable section(s) of a home. measured vertically from the sloped (d) Optional ventilation provisions. As These standards do not apply to exterior plane adjoining the tread nosing or from an option to complying with the stairways that are built at the home site the floor surface of the landing or provisions of paragraphs (b) and (c) of or stairways to basement areas that are platform.
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(5) Winders (winding stairways). as the upper rails of guards required by (2) Required guards on open sides of Winders are permitted, provided that paragraph (d) of this section. stairways, raised floor areas, balconies, the width of the tread at a point not (3) Continuity. Required handrails and porches must have intermediate more than 12 inches from the side must be continuous from a point rails or ornamental closures that do not where the treads are narrower is not less directly above the leading edge of the allow passage of a sphere 4 inches in than 10 inches and the minimum width lowest stair tread to a point directly diameter. of any tread is not less than 6 inches. above the leading edge of the landing or (i) The triangular openings formed by Within any flight of stairs, the greatest floor surface at the top of the stairway. the riser, tread and bottom rail of a winder tread depth at the 12-inch walk If the handrail is extended at the top of guard at the open side of the stairway line must not exceed the smallest by the stairway flight, the extension must must be of such a size that a sphere of more than 3⁄8 inch. The continuous parallel the floor or landing surface and 6 inches cannot pass through. handrail required by paragraph (c)(3) of must be at the same height as the (ii) Guard systems must be designed this section must be located on the side handrail above the leading edges of the to resist a load of 20 lb./ft applied in any where the tread is narrower. treads. If the handrail is extended at the direction at the top and to transfer this (6) Spiral stairways. Spiral stairways base of the stair, it must continue to load through the supports to the are permitted provided the minimum slope parallel to the stair flight for a structure. All guard systems must be width is a minimum 26 inches with distance of one tread depth, measured able to resist a single concentrated load each tread having 71⁄2 inch minimum horizontally, before being terminated or of 200 lb., applied in any direction at tread width at 12 inches from the returned or extended horizontally. The any point along the top and have narrow edge. All treads must be ends of handrails must return into a attachment devices and supporting identical, and the rise must be no more wall or terminate in a safety terminal or structures to transfer this loading to than 91⁄2 inches. Minimum headroom of newel post. appropriate structural elements of the 6 feet, 6 inches must be provided. (4) Graspability. Required handrails building. This load is not required to be must, if circular in cross section, have assumed to act concurrently with the (7) Circular stairways. Circular 1 stairways must have a tread depth at a a minimum 1 ⁄4-inch and a maximum 2- loads specified in this section. point not more than 12 inches from the inch diameter dimension. Handrails (e) Stairway illumination. All interior with a noncircular cross section must side where the treads are narrower of and exterior stairways must be provided have a perimeter dimension of at least not less than 11 inches and the with a means to illuminate the 4 inches and not more than 61⁄4 inches minimum depth of any tread must not stairways, including the landings and (with a maximum cross-section be less than 6 inches. Tread depth at treads. dimension of not more than 21⁄4 inches). any walking line, measured a consistent (1) Interior stairways must be The handgrip portion of the handrail distance from a side of the stairway, provided with an artificial light source must have a smooth surface. Edges must must be uniform as specified in located in the immediate vicinity of have a minimum 1⁄8-inch radius. paragraph (a)(2)(i) of this section. each landing of the stairway. For Handrails must be continuously interior stairs, the artificial light sources (b) Landings. Every landing must have graspable along their entire length a minimum dimension of 36 inches must be capable of illuminating treads except that brackets or balusters are not and landings to levels not less than one measured in the direction of travel. considered obstructions to graspability Landings must be located as follows: (1) foot-candle measured at the center of if they do not project horizontally treads and landings. The control and (1) There must be a floor or landing beyond the sides of the handrail within at the top and bottom of each stairway, activation of the required interior 11⁄2 inches of the bottom of the handrail. except at the top of an interior flight of stairway lighting must be accessible at (5) Required resistance of handrails. the top and bottom of each stairway basement stairs, provided a door does Handrails must be designed to resist a not swing over the stairs. without traversing any steps. load of 20 lb./ft applied in any direction (2) Exterior stairways designed by the (2) A landing or floor must be located at the top and to transfer this load home manufacturer and constructed in on each side of an interior doorway and through the supports to the structure. the factory must be provided with an exterior doorway, to the extent the All handrails must be able to resist a artificial light source located in the external stairway is designed by the single concentrated load of 200 lbs., immediate vicinity of the top landing of home manufacturer and constructed in applied in any direction at any point the stairway. An artificial light source is the factory, and the width of each along the top, and have attachment not required at the top and bottom landing must not be less than the door devices and supporting structures to landing, provided an artificial light it serves. The maximum threshold transfer this loading to appropriate source is located directly over each height above the floor or landing must structural elements of the building. This stairway section. The illumination of be 11⁄2-inches. load is not required to be assumed to act exterior stairways must be controlled (c) Handrails—(1) General. A concurrently with the loads specified in from inside the home. minimum of one handrail meeting the this section. ■ requirements of this section must be (d) Guards. (1) Porches, balconies, or 12. Amend § 3280.209 by ■ a. Revising paragraph (a); installed on all stairways consisting of raised floor surfaces located more than ■ b. Redesignating paragraphs (b) four or more risers. Handrails must be 30 inches above the floor or grade below through (f) as paragraphs (c) through (g); securely attached to structural framing must have guards not less than 36 1 and members. A minimum space of 1 ⁄2 inches in height. Open sides of stairs ■ c. Adding a new paragraph (b). inches must be provided between the with a total rise of more than 30 inches The addition and revision read as adjoining wall surface and the handrail. above the floor or grade below must follows: (2) Handrail height. Handrails must have guards not less than 34 inches in be installed between 34 inches and 38 height measured vertically from the § 3280.209 Smoke Alarm Requirements. inches measured vertically from the nosing of the treads. Balconies and (a) Labeling. Each smoke alarm leading edge of the stairway treads porches on the second floor or higher required under paragraph (b) of this except that handrails installed up to 42 must have guards a minimum of 42 section must conform with the inches high must be permitted if serving inches in height. requirements of UL 217 (incorporated
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by reference, see § 3280.4), or ANSI/UL installed to also comply with separation is a floor ceiling assembly, 268 (incorporated by reference, see § 3280.209. the structure supporting the separation § 3280.4), and must bear a label to (f) Basement applications. For each must also be protected by not less than evidence conformance. Combination home designed to be placed over a 1⁄2-inch gypsum board or equivalent. smoke and carbon monoxide alarms basement, the manufacturer must The design approval and the shall be listed and must bear a label to provide a carbon monoxide alarm for manufacturer’s installation instructions evidence conformance with UL 217 and the basement and must install the must also include provision for ANSI/UL 2034. electrical junction box for the equivalent vertical or horizontal (b) Combination alarms. Combination installation of this carbon monoxide separation between the garage and the smoke and carbon monoxide alarms alarm for its interconnection with other manufactured home as appropriate. shall be permitted to be used in lieu of alarms required by this section. (2) [Reserved] smoke alarms. If installed, such alarms (g) Testing. Each required carbon (d) Openings from a garage directly must meet location requirements for monoxide alarm installed at the factory into a room designated for sleeping both smoke alarms and carbon must be operationally tested, after purposes are not permitted. monoxide alarms. conducting the dielectric test specified (e) Other openings between the garage * * * * * in § 3280.810(a), in accordance with the and the manufactured home must: ■ 13. Add § 3280.211 to read as follows: alarm manufacturer’s instructions. A (1) Be equipped with solid wood carbon monoxide alarm that does not doors not less than 13⁄8 inch in § 3280.211 Carbon monoxide alarm function as designed during the test and thickness, or solid or honeycomb steel requirements. is not satisfactorily repaired so that it doors not less than 13⁄8 inch in (a) Labeling. Carbon monoxide alarms functions properly in the next retest thickness, or 20-minute fire-rated doors, shall be listed and must bear a label to must be replaced. Any replacement and all doors shall be of the self-closing evidence conformance with ANSI/UL carbon monoxide alarm must be type; and 2034 (incorporated by reference, see successfully tested in accordance with (2) Be in addition to the two exterior § 3280.4). Combination carbon this section. doors required by § 3280.105. monoxide and smoke alarms shall be ■ 14. Add § 3280.212 to read as follows: listed and must bear a label to evidence (f) Ducts penetrating the walls or conformance with ANSI/UL 2034 and § 3280.212 Factory constructed or site- ceilings separating the manufactured UL 217 (incorporated by reference, see built attached garages. home from the garage must be § 3280.4). (a) When a manufactured home is constructed of a minimum No. 26 gauge (b) Required carbon monoxide alarm designed for factory construction with steel or other approved material and locations. Carbon monoxide alarms an attached garage or is designed for must have no openings into the garage. must be installed in each home construction of an attached site-built (g) Installation instructions shall be containing either a fuel burning garage that is not self-supported, the provided by the home manufacturer appliance or designed by the home manufacturer must design the that, in addition to addressing the fire manufacturer to include an attached manufactured home to accommodate all separation as required in this section, garage. Carbon monoxide alarms must appropriate live and dead loads from shall identify acceptable attachment be installed outside of each separate the attached garage structure that will be locations, indicate design limitations for sleeping area in the immediate vicinity transferred through the manufactured the attachment of the garage including of the bedrooms and in accordance with home structure to the home’s support acceptable live and dead loads for the alarm manufacturer’s installation and anchoring systems. which the home has been designed to instructions. Where a fuel-burning (b) The design must specify the accommodate, and provide support and appliance is located within a bedroom following home and garage anchorage designs as necessary to or its attached bathroom, a carbon characteristics including maximum transfer all imposed loads to the ground monoxide alarm must be installed width, maximum sidewall height, in accordance with §§ 3285.301 and within the bedroom and in accordance maximum roof slope, live and dead 3285.401 of this chapter. with the manufacturer’s installation loads, and other design limitations or (h) A site-built, self-supported garage instructions. Carbon monoxide alarms restrictions using loads provided by this is considered an add-on, per must be installed in conformance with Code. 3282.8(j)(1), that does not affect the NFPA 720 (incorporated by reference, (c) When a manufactured home is ability of the manufactured home to see § 3280.4). factory constructed with an attached comply with the Construction and (c) Interconnectivity. Where more garage or is constructed for the Safety Standards. The design and than one carbon monoxide alarm is attachment of a site-built garage, construction of the garage is subject to required to be installed, the alarm provisions must be made to provide fire state and or local authorities having devices shall be interconnected in such separation between the garage and the jurisdiction. a manner that the actuation of one alarm manufactured home. ■ 15. Add § 3280.213 to read as follows: will activate all the alarms installed. (1) The garage must be separated from (d) Connection to power source. Each the manufactured home and its attic by § 3280.213 Factory constructed or site- 1 built attached carports. carbon monoxide alarm must be not less than ⁄2-inch gypsum board or powered from the electrical system of equivalent applied to the garage side of (a) When a manufactured home is the home as the primary power source the manufactured home, separation designed for factory construction with and a battery as a secondary power shall be from the underside of the floor an attached carport or is designed for source. to the underside of the roof deck and construction of an attached site-built (e) Combination alarms. Combination may be provided on-site as part of an On carport, the manufacturer must design carbon monoxide and smoke alarms Site Completion of Construction the manufactured home to shall be permitted to be used in lieu of approval. Garages beneath habitable accommodate all appropriate live and carbon monoxide alarms. When rooms must be separated from all dead loads from the attached carport combination carbon monoxide and habitable rooms by 5⁄8-inch, Type X structure that will be transferred smoke alarms are used, they shall be gypsum board or equivalent. Where the through the manufactured home
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structure to the home’s support and comply with the standards. The design must be tight fitted against all anchoring systems. and construction of the carport is penetrations. (b) The design, including the home’s subject to state and or local authorities (h) * * * installation instructions, must specify having jurisdiction. (5) Portions of roof assemblies, the following home and carport ■ 16. In § 3280.305, revise paragraphs including, but not limited to, dormers, characteristics including maximum (a), (e)(1), (g)(6), and (h)(5) to read as gables, crickets, hinged roof sections, width, maximum sidewall height, live follows: sheathing, roof coverings, and dead loads, and other design underlayments, flashings, and eaves and limitations or restrictions. § 3280.305 Structural design requirements. overhangs are permitted to be assembled (1) Alternatively, the manufacturer (a) General. Each manufactured home and installed on site in accordance with may provide, by design and home must be designed and constructed as a 24 CFR part 3282, subpart M, provided installation instructions, the maximum completely integrated structure capable that the requirements in paragraphs live and dead loads, and the applied of sustaining the design load (h)(5)(i) through (v) of this section are loading locations, that the home is requirements of this part and must be met. designed to resist from the carport, and capable of transmitting these loads to (i) Approved installation instructions other design limitations or restrictions. stabilizing devices without exceeding must be provided that include (2) [Reserved]. the allowable stresses or deflections. requirements for the following items: (c) Homes may be designed with a Roof framing must be securely fastened (A) Materials, installation, and factory-installed host beam (i.e., ledger to wall framing, walls to floor structure, board) or specific roof truss rail for the structural connections complying with and floor structure to chassis to secure this section; attachment of the carport to the exterior and maintain continuity between the (B) Installation and fastening of wall of the home. The host beam (i.e., floor and chassis, so as to resist wind sheathing and roof coverings; ledger board) must be designed to overturning, uplift, and sliding as transmit the appropriate live and dead imposed by design loads in this part. In (C) Installation of appliance vent loads at the interface between the multistory construction, each story must systems in accordance with § 3280.710; carport and the manufactured home. In be securely fastened to the story above (D) Installation of plumbing vents as cases where the carport is designed to and/or below to provide continuity and required by § 3280.611; and be supported by the roof truss overhang, resist design loads in this part. (E) Installation of attic ventilation in the roof trusses must be designed to Uncompressed finished flooring greater accordance with § 3280.504(c). support the additional live and dead than 1⁄8 inch in thickness must not (ii) The installation instructions loads from the carport. extend beneath load-bearing walls that specified in paragraph (h)(5)(i) of this (1) Any portion of the host beam (i.e., are fastened to the floor structure. section must include drawings, details, ledger board) and all fasteners exposed * * * * * and instructions as necessary to assure to the weather shall be protected in (e) * * * that the on-site work complies with the accordance with § 3280.307. (1) Roof framing must be securely approved design. (2) [Reserved]. fastened to wall framing, walls to floor (iii) The installation instructions (d) To ensure that the attachment of specified in paragraph (h)(5)(i) of this the carport does not interfere with roof structure, and floor structure to chassis, to secure and maintain continuity section must provide for inspection of or attic ventilation, the manufacturer the work at the installation site. As must provide specific instructions to between the floor and chassis in order to resist wind overturning, uplift, and necessary to ensure conformance, ensure continued compliance with the inspection panels may be required, or manufactured home roof or attic sliding, and to provide continuous load paths for these forces to the foundation inspections may need to occur in stages ventilation requirements in accordance that assure inspections are performed with § 3280.504(d). or anchorage system. The number and type of fasteners used must be capable before any work is concealed. Such (e) Installation instructions shall be inspection procedures shall be provided by the home manufacturer that of transferring all forces between elements being joined. In multistory addressed in the approved installation identify acceptable attachment instructions. locations, indicate design limitations for construction, each story must be (iv) Temporary weather protection the attachment of the carport including securely fastened to the story above must be provided per § 3280.307(e). acceptable live and dead loads for and/or below to provide continuity and which the home has been designed to resist design loads in this section. * * * * * accommodate, and provide support and * * * * * ■ 17. Amend § 3280.307 by adding anchorage designs as necessary to (g) * * * paragraph (e) to read as follows: transfer all imposed loads to the ground (6) Bottom board material (with or without patches) must meet or exceed § 3280.307 Resistance to elements and in accordance with §§ 3285.301 and use. 3285.401 of this chapter. the level of 48 inch-pounds of puncture (1) The manufacturer must ensure that resistance as tested by the Beach * * * * * any anchoring system designs Puncture Test in accordance with (e) Multi-section and attached incorporating anchorage to resist Standard Test Methods for Puncture and manufactured homes (see subpart K of combined shear wall and carport uplift Stiffness of Paperboard, and Corrugated this part) are not required to comply loads are evaluated for adequacy to and Solid Fiberboard, ASTM D781– with the factory installation of weather- resist the combined loads, taking into 1968 (Reapproved 1973) (incorporated resistant exterior finishes for those areas consideration the limitations of the by reference, see § 3280.4). The material left open for field connection of the ground anchor test and certification. must be suitable for patches and the sections provided the following (2) [Reserved]. patch life must be equivalent to the conditions are satisfied: (f) A site-built, self-supported carport material life. Patch installation (1) Temporary weather protection for is considered an add-on, as provided by instruction must be included in the exposed, unprotected construction is § 3282.8(j)(1), that does not affect the manufactured home manufacturer’s provided in accordance with methods to ability of the manufactured home to instructions. The bottom board material be included in the approved design.
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(2) Methods for on-site completion family attached manufactured home (iv) Relief valve piping designed to be and finishing of these elements are shall be considered an exterior wall (see located underneath the manufactured included in the approved design. subpart K of this part). home is not required to be installed at (3) Complete installation instructions * * * * * the factory provided the manufacturer and the required materials for finishing designs the system for site assembly and ■ 20. In § 3280.602, add alphabetically these elements are provided. also provides all materials and the definition for ‘‘Indirect waste ■ components including piping, fittings, 18. In § 3280.504, add paragraph (a)(3) receptor’’ to read as follows: and revise paragraph (b) introductory cement, supports, and instructions for text to read as follows: § 3280.602 Definitions. proper site installation. * * * * * * * * * * § 3280.504 Condensation control and installation of vapor retarders. Indirect waste receptor means a ■ 23. In § 3280.610, add headings to receptor that receives a discharge waste (a) * * * paragraphs (c)(1) and (4) and revise pipe that is not directly connected to a (3) In multi-story manufactured paragraph (c)(5) to read as follows: receptor but maintains a suitable air gap homes, the ceiling vapor retarder is between the end of the pipe and the top § 3280.610 Drainage systems. permitted to be omitted when the story of the drain. * * * * * directly above is part of the same manufactured home. * * * * * (c) * * * (1) General. *** (b) Exterior walls. Exterior walls must ■ 21. In § 3280.608, revise paragraph (b) * * * * * be provided with a system or method to to read as follows: (4) Size Requirement. *** manage moisture and vapor (5) Preassembly of drain lines. accumulation with one of the elements § 3280.608 Hangers and supports. Section(s) of the drain system, designed in paragraphs (b)(1) through (4) of this * * * * * to be located underneath the section. For purposes of the requirement (b) Piping supports. Piping must be manufactured home or between stories in this paragraph (b), the fire separation secured at sufficiently close intervals to of the manufactured home, are not wall between each attached keep the pipe in alignment and carry the required to be factory installed when the manufactured home must be considered weight of the pipe and contents. Unless manufacturer designs the system for site to be an exterior wall. See subpart K of otherwise stated in the standards assembly and also provides all materials this part incorporated by reference for specific and components, including piping, * * * * * materials at § 3280.604(a), or unless fittings, cement, supports, and specified by the pipe manufacturer, ■ 19. Amend § 3280.506 as follows: instructions necessary for proper site horizontal plastic drainage piping must ■ a. Redesignate paragraphs (a), (b), and installation. be supported at intervals not to exceed (c) as paragraphs (b), (c), and (d), * * * * * 4 feet and horizontal plastic water respectively; ■ piping must be supported at intervals 24. Amend § 3280.611 as follows: ■ b. Designate the introductory text as not to exceed 3 feet. Vertical drainage ■ a. Remove the comma at the end of paragraph (a); and water piping must be supported at paragraph (c)(1)(i) and add a semicolon ■ c. In newly designated paragraph (a): in its place; and ■ each story height. i. Remove ‘‘of this subpart;’’ ■ b. Revise paragraph (c)(1)(ii). ■ ii. Remove ‘‘figure 506’’ and add * * * * * The revisions to read as follows: ‘‘figure 1 to this paragraph (a)’’ in its ■ 22. In § 3280.609, revise paragraph place; and (c)(1)(iii) and add paragraph (c)(1)(iv) to § 3280.611 Vents and venting. ■ iii. Add a heading for the figure. read as follows: * * * * * ■ d. In newly redesignated paragraph (c) * * * (b): § 3280.609 Water distribution systems. ■ * * * * * (1) * * * i. Remove the heading; 1 ■ ii. Add a comma between (c) * * * (ii) A 1 ⁄2-inch diameter (min.) ‘‘ventilation’’ and ‘‘and;’’ (1) * * * continuous vent or equivalent, ■ iii. Remove ‘‘below’’ and add ‘‘in the (iii) Relief valves must be provided indirectly connected to the toilet drain table to this paragraph (b)’’ in its place; with full-sized drains, with cross piping within the distance allowed in and sectional areas equivalent to that of the paragraph (c)(5) of this section for 3 ■ iv. Add a heading for the table; and relief valve outlet. The outlet of a inch trap arms through a 2-inch wet ■ e. Revise newly redesignated pressure relief valve, temperature relief vented drain that carries the waste of paragraph (c). valve, or combination thereof, must not not more than one fixture. Sections of The revisions and additions to read as be directly connected to the drainage the wet vented drain that are 3 inches follows: system. The discharge from the relief in diameter are permitted to carry the valve must be piped full size separately waste of an unlimited number of § 3280.506 Heat loss/heat gain. to the exterior of the manufactured fixtures; or (a) * * * home, not underneath the home, or to * * * * * Figure 1 to Paragraph (a) an indirect waste receptor located inside ■ 25. In § 3280.612, amend paragraph (b) * * * the manufactured home. Exterior relief (a) to read as follows: Table 1 to Paragraph (b) drains shall be directed down and shall * * * * * terminate between 6″ and 24″ above § 3280.612 Tests and inspection. (c) To assure uniform heat finished grade. Drain lines must be of a (a) Water system. All water piping in transmission in manufactured homes, material listed for hot water distribution the water distribution system must be cavities in exterior walls, floors, and and must drain fully by gravity, must subjected to a pressure test. The test ceilings must be provided with thermal not be trapped, and must not have their must be made by subjecting the system insulation. For insulation purposes, the outlets threaded, and the end of the to air or water at 80 psi + or ¥ 5 psi fire separation wall between each single drain must be visible for inspection. for 15 minutes without loss of pressure.
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The water used for the test must be § 3280.705 Gas piping systems. exterior skin at or near each gas supply obtained from a potable water source. * * * * * connection or the end of the pipe, a tag * * * * * (c) * * * of 3 inches by 13⁄4 inches minimum size, (1) All points of crossover beneath the made of etched, metal-stamped or ■ 26. Amend § 3280.705 by: transportable sections must be readily embossed brass, stainless steel, ■ a. Revising paragraph (c)(1); accessible from the exterior of the home. anodized or alcalde aluminum not less ■ b. In paragraph (j), removing ‘‘shall’’ In multi-story manufactured homes, the than 0.020 inch thick, or other approved and add in its place ‘‘must’’ wherever it interconnections between stories must material [e.g., 0.005 inch plastic appears; be accessible through a panel on the laminates], with the information shown exterior or interior of the manufactured ■ in Figure 1 to this paragraph (k). The c. Revising paragraphs (k), (l)(7), and home. (l)(8)(i); and connector capacity indicated on this tag * * * * * must be equal to or greater than the total ■ d. Adding paragraph (l)(8)(iii). (k) Identification of gas supply Btu/hr rating of all intended gas The revisions and addition to read as connections. Each manufactured home follows: must have permanently affixed to the appliances.
(l) * * * Pressure must be measured with a ■ 27. In § 3280.708, revise paragraph (7) Hangers and supports. All mercury manometer or slope gauge (a)(1) introductory text to read as horizontal gas piping must be calibrated so as to be read in increments follows: adequately supported by galvanized or of not greater than one-tenth pound, or equivalently protected metal straps or an equivalent device. The source of § 3280.708 Exhaust duct system and hangers at intervals of not more than 4 normal operating pressure must be provisions for the future installation of a clothes dryer. feet, except where adequate support and isolated before the pressure tests are protection is provided by structural made. Before a test is begun, the (a) * * * (1) All gas and electric members. Vertical gas piping in multi- temperature of the ambient air and of clothes dryers must be exhausted to the story dwelling units must be supported the piping must be approximately the outside by a moisture/lint exhaust duct at intervals of not more than 6 feet. same, and constant air temperature must and termination fitting. When the Solid iron-pipe connection(s) must be be maintained throughout the test. manufacturer supplies the clothes dryer, rigidly anchored to a structural member the exhaust duct and termination within 6 inches of the supply * * * * * fittings must be completely installed by connection(s). (iii) Where gas piping between (8) * * * (i) Before appliances are transportable sections must be made on the manufacturer. If the exhaust duct connected, piping systems must stand a site, the installation instructions must system is subject to damage during pressure of three ± 0.2 psi gauge for a contain provisions for onsite testing for transportation, or a field connection period of not less than ten minutes leakage consistent with the provisions between transportable sections is without showing any drop in pressure. in paragraph (l)(8)(i) of this section. required, complete factory installation
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of the exhaust duct system is not § 3280.802 Definitions. home must remain weather protected required when the following apply: * * * * * during the transportation sequence to * * * * * (a) * * * prevent internal damage. (4) Attached accessory building or (b) Testing or analysis requirements. ■ 28. In § 3280.709, revise paragraph (a) structure means any awning, cabana, Suitability of the transportation system to read as follows: deck, ramada, storage cabinet, carport, and home structure to withstand the § 3280.709 Installation of appliances. windbreak, garage, or porch for which effects of transportation must be the attachment of such is designed by permitted to be determined by testing, (a) The installation of each appliance the home manufacturer to be or engineering analysis, or a must conform to the terms of its listing structurally supported by the combination of the two as required by and the manufacturer’s instructions. manufactured home. paragraphs (b)(1) and (2) of this section. The manufactured home manufacturer (1) Road tests. Tests must be * * * * * must leave the appliance manufacturer’s witnessed by an independent registered (b) [Reserved] instructions attached to the appliance. professional engineer or architect, Every appliance must be secured in ■ 31. In § 3280.807, add paragraph (g) to manufacturer’s IPIA or DAPIA, or by a place to avoid displacement. For the read as follows: recognized testing organization. Such purpose of servicing and replacement, § 3280.807 Fixtures and appliances. testing procedures must be part of the each appliance must be both accessible manufacturer’s approved design. and removable. * * * * * (2) Engineering analysis. Engineering (1) A direct vent space heating (g) In bathrooms, ceiling-mounted analysis methods based on the appliance is permitted to be shipped lighting fixtures and wall-mounted principles of mechanics and/or loose for on-site installation in a lighting fixtures must not be controlled structural engineering may be used to basement provided the following: by the same switch. substantiate the adequacy of the (i) The heating appliance is listed for ■ 32. In § 3280.810, revise paragraph (b) transportation system to withstand in- the installation. to read as follows: transit loading conditions. As (ii) Approved installation instructions transportation loadings are typically are provided that include requirements § 3280.810 Electrical testing. critical in the longitudinal direction, for completion of all gas and electrical * * * * * analysis should, in particular, provide connections and provide for the (b) Additional testing. Each emphasis on design of longitudinal manufacturer’s inspection and/or testing manufactured home must be subjected structural components of the of all connections. to the following tests: manufactured home (e.g., main chassis (iii) Approved instructions are (1) An electrical continuity test to girder beams, sidewalls, and rim joists, provided to assure connection of the assure that metallic parts are effectively etc.). Notwithstanding, all structural vent and combustion air systems in bonded; elements necessary to the structural accordance with § 3280.710(b), and to (2) An operational test of all devices integrity of the manufactured home provide for the manufacturer’s and utilization equipment, except water during in-transit loading are also to be inspection of the systems for heaters, electric ranges, electric evaluated (e.g., transverse chassis compliance. furnaces, dishwashers, clothes washers/ members and floor framing members, (iv) Approved installation and the dryers, and portable appliances, to etc.). manufacturer’s inspection procedures demonstrate they are connected and in (i)(A) The summation of the design are provided for the connection of the working order; and loads in paragraphs (b)(2)(i)(A)(1) site-installed heating appliance to the (3) Electrical polarity checks to through (3) of this section may be used factory-installed circulation air system determine that connections have been to determine the adequacy of the chassis and return air systems. made in accordance with applicable in conjunction with the manufactured (2) The procedures must include provisions of these standards and home structure to resist in-transit revisions to assure compliance of the Article 550.17 of NFPA 70–2005 loading: installed systems with § 3280.715. (incorporated by reference, see (1) Dead load, the vertical load due to § 3280.4). Visual verification is an the weight of all structural and non- * * * * * acceptable electrical polarity check. structural components of the ■ 29. In § 3280.710, revise paragraph (d) manufactured home at the time of § 3280.902 [Amended] to read as follows: shipment. ■ 33. In § 3280.902(b), remove ‘‘an A (2) Floor load, a minimum of 3 § 3280.710 Venting, ventilation, and frame’’ and add in its place ‘‘a rigid pounds per square foot. combustion air. substructure.’’ (3) Dynamic loading factor, * * * * * ■ 34. Revise § 3280.903 to read as (0.25)[(b2iA) + (b2iB)]. (d) Venting systems of fuel-burning follows: (B) However, the in-transit design appliances must terminate at least three loading need not exceed twice the dead feet above any motor-driven air intake § 3280.903 General requirements for load of the manufactured home. discharging into habitable rooms when designing the structure to withstand (ii) To determine the adequacy of located within ten feet of the air intake. transportation shock and vibration. individual longitudinal structural * * * * * (a) General. The manufactured home components to resist the in-transit and its transportation system (as defined design loading, a load distribution based ■ 30. Amend § 3280.802 by: in § 3280.902(f)) must withstand the on the relative flexural rigidity and ■ a. Redesignating paragraphs (a)(4) effects of highway movement such that shear stiffness of each component may through (41) as paragraphs (a)(5) the home is capable of being transported be utilized. For the purpose of loading through (42); safely and installed as a habitable distribution, the sidewall may be ■ b. Adding a new paragraph (a)(4); and structure. Structural, plumbing, considered to be acting as a ‘‘deep ■ c. Adding and reserving paragraph (b). mechanical, and electrical systems must beam’’ in conjunction with other load The additions read as follows: be designed to function after set-up. The carrying elements in determining the
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relative stiffness of the integrated against excessive deformation of (8) Tires, wheels, and rims. Tires, structure. Further, by proper pre- structural or finish members. wheels, and rims must be selected, cambering of the chassis assembly, (4) Running gear assembly—(i) Design sized, and fitted to axles so that static additional loading may be distributed to criteria. The design load used to size dead load supported by the running gear the chassis, and the remaining loading running gear components must be the does not exceed the load capacity of the may be distributed to each of the load gross static dead weight minus the static tires. Tires must not be loaded beyond carrying members by the relative tongue weight supported by the the load rating marked on the sidewall stiffness principle. drawbar. Running gear must be of the tire or, in the absence of such a (iii) The analysis is also to include designed to accept shock and vibration, marking, the load rating specified in any consideration for: both from the highway and the towing of the publications of any of the (A) Location of openings in the vehicle and effectively dampen these organizations listed in Federal Motor sidewall during transport and, when forces so as to protect the manufactured Vehicle Safety Standard (FMVSS) No. appropriate, home structure from damage and 119 in 49 CFR 571.119, S5.1(b). Wheels provisions for reinforcement of the fatigue. Its components must be and rims must be sized in accordance structure and/or chassis at the opening. designed to facilitate routine with the tire manufacturer’s (B) Sidewall component member maintenance, inspection, and recommendations as suitable for use sizing and joint-splice analysis (i.e., top replacement. with the tires selected. and bottom plates, etc.), and (ii) Location. Location of the running (i) Inflation pressure. The load and connections between load carrying gear assembly must be determined by cold inflation pressure imposed on the elements. documented engineering analysis, rim or wheel must not exceed the rim ■ 35. In § 3280.904, revise paragraphs taking into account the gross weight and wheel manufacturer’s instructions (a), (b)(1) through (6) and (8) through (including all contents), total length of even if the tire has been approved for a (10) to read as follows: the manufactured home, the necessary higher load or inflation. Tire cold coupling hitch weight, span distance, inflation pressure limitations and the § 3280.904 Specific requirements for and turning radius. Weights shall be inflation pressure measurement designing the transportations system. checked with the home in a level correction for heat must be as specified (a) General. The transportation system position ready for transport. The in 49 CFR 393.75(h). must be designed and constructed as an coupling weight must be not less than (ii) Used tires. Whenever the tread integrated unit which is safe and 12 percent nor more than 25 percent of depth is at least 1⁄16 inch as determined suitable for its specified use. In the gross weight. by a tread wear indicator, used tires are operation, the transportation system (5) Spring assemblies. Spring permitted to be sized in accordance must effectively respond to the control assemblies (springs, hangers, shackles, with 49 CFR 571.119. The of the towing vehicle tracking and bushings, and mounting bolts) must be determination as to whether a used tire braking, while traveling at applicable capable of supporting the running gear is acceptable must also include a visual highway speeds and in normal highway design loads, without exceeding inspection for thermal and structural traffic conditions. maximum allowable stresses for design defects (e.g., dry rotting, excessive tire (b) Specific requirements—(1) spring assembly life as recommended by sidewall splitting, etc.). Used tires with Drawbar. The drawbar must be the spring assembly manufacturer. The such structural defects must not be constructed of sufficient strength, capacity of the spring system must installed on manufactured homes. rigidity, and durability to safely ensure that under maximum operating (9) Brake assemblies—(i) Braking withstand those dynamic forces load conditions, sufficient clearance is axles. The number, type, size, and experienced during highway maintained between the tire and design of brake assemblies required to transportation. It must be securely manufactured home’s frame or structure assist the towing vehicle in providing fastened to the manufactured home to permit unimpeded wheel movement effective control and stopping of the substructure. and for changing tires. manufactured home must be determined (2) Coupling mechanism. The (6) Axles. Axles, and their connecting and documented by engineering coupling mechanism (which is usually hardware, must be capable of analysis. Those alternatives listed in of the socket type) must be securely supporting the static running gear § 3280.903(c) may be accepted in place fastened to the drawbar in such a design loads, without exceeding of such an analysis. Unless manner as to assure safe and effective maximum allowable design axle loads substantiated in the design to the transfer of the maximum loads, as recommended by the axle satisfaction of the approval agency by including dynamic loads, between the manufacturer. The number and load either engineering analysis in manufactured home structure and the capacity necessary to provide a safe tow accordance with § 3280.903(a)(1) or tests hitch-assembly of the towing vehicle. must not be less than those required to in accordance with paragraph (b)(9)(ii) The coupling must be equipped with a support the design load. of this section, there must be a manually operated mechanism so (i) Recycled axles. Before reuse, all minimum of two axles equipped with adapted as to prevent disengagement of axles, including all component parts, brake assemblies on each manufactured the unit while in operation. The must be reconditioned as required home transportable section. coupling must be so designed that it can pursuant to a program accepted by a (ii) Stopping distance. Brakes on the be disconnected regardless of the angle nationally recognized testing agency. towing vehicle and the manufactured of the manufactured home to the towing The recycling program must be home (a drive-away/tow-away) must be vehicle. approved, and the axles must be labeled capable of ensuring that the maximum (3) Chassis. The chassis, in by a nationally recognized testing stopping distance from an initial speed conjunction with the manufactured agency. Recycled axles and their of 20 miles per hour does not exceed 35 home structure, must be constructed to components must utilize compatible feet in accordance with 49 CFR effectively sustain the design loads. The components and be of the same size and 393.52(d) for 2 or fewer vehicles in integrated structure must be capable of rating as the original equipment. drive away or tow away operation. ensuring the integrity of the complete (ii) [Reserved]. (iii) Electrical brake wiring. Brake manufactured home and ensuring * * * * * wiring must be provided for each brake.
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The brake wire must not be less than the (2) Fire-resistance-rated floor/ceiling inches above the lower roof. The fire value specified in the brake and wall assemblies shall extend to and separation wall construction from the manufacturer’s instructions. Aluminum be tight against the exterior wall, and lower roof to the underside of the higher wire, when used, must be provided with wall assemblies shall extend from the roof deck must not have less than a 1- suitable termination that is protected foundation to the underside of the roof hour fire-resistive rating. The wall must against corrosion. sheathing. be rated for exposure from both sides. (10) Lamps and associated wiring. (b) Fire separation penetrations. (1) (2) Parapets must have the same fire Stop lamps, turn signal/lamps, and Fire rated fire separation walls must not resistance rating as that required for the associated wiring must meet the contain through penetrations or supporting wall or walls. On any side appropriate sections of FMVSS No. 108 openings. adjacent to a roof surface, the parapet in 49 CFR 571.108, which specify the (2) Membrane penetrations for must have noncombustible faces for the performance and location of these lamps electrical boxes are permitted on the uppermost 18 inches, to include counter and their wiring. The manufacturer may living side of the wall under the flashing and coping materials. Where meet these requirements by utilizing a following conditions: the roof slopes toward a parapet at temporary light/wiring harness, which (i) Steel electrical boxes not exceeding slopes greater than 2⁄12 (16.7 percent has components that meet the FMVSS 16 square inches may be installed slope), the parapet must extend to the No. 108. The temporary harness is provided that the total area of such same height as any portion of the roof permitted to be provided by the boxes does not exceed 100 square within a distance of three feet, but in no manufactured home transportation inches in any 100 square feet wall area. case will the height be less than 30 carrier. Steel electrical boxes in adjacent fire inches. ■ 36. Add subpart K to read as follows: separation walls must be separated by a horizontal distance of not less than 24 § 3280.1004 Exterior walls. Subpart K—Attached Manufactured inches. (a) The requirements of § 3280.504 for Homes and Special Construction (ii) Listed 2-hour fire-resistant condensation control and vapor retarder Considerations nonmetallic electrical boxes are installation are required to be provided installed in accordance with the listings. on each fire separation wall of each Sec. (iii) No other membrane penetrations attached manufactured home. 3280.1001 Scope. are allowed. (b) The requirements of § 3280.506 for 3280.1002 Definitions. (c) Continuity of walls. The fire heat loss/gain insulation apply to the 3280.1003 Attached manufactured home separation walls for single-family fire separation wall on each attached unit separation. attached dwelling units must be manufactured home. 3280.1004 Exterior walls. continuous from the foundation to the 3280.1005 Electrical service. § 3280.1005 Electrical service. 3280.1006 Water service. underside of the roof sheathing, deck, or slab and must extend the full length of (a) Each attached manufactured home § 3280.1001 Scope. the fire separation walls. must be supplied by only one service. This subpart covers the requirements (d) Parapets. (1) Parapets constructed (b) Service conductors supplying one for attached manufactured homes and in accordance with paragraph (d)(2) of manufactured home must not pass other related construction associated this section must be provided for through the interior of another with manufactured homes not attached manufactured homes as an manufactured home. addressed elsewhere within this part. extension of fire separation walls in accordance with the following: § 3280.1006 Water service. § 3280.1002 Definitions. (i) Where roof surfaces adjacent to the (a) Each manufactured home must The following definitions are fire separation walls are at the same have an individual water supply that applicable to this subpart only: elevation, the parapet must extend not will service only that unit. Attached manufactured home. Two or less than 30 inches above the roof (b) Each manufactured home must more adjacent manufactured homes that surfaces. have a hot water supply system that will are structurally independent from (ii) Where roof surfaces adjacent to service only that unit. foundation to roof and with open space the wall or walls are at different PART 3282—MANUFACTURED HOME on at least two sides, but which have the elevations and the higher roof is not PROCEDURAL AND ENFORCEMENT appearance of a physical connection more than 30 inches above the lower REGULATIONS (i.e., zero lot line). roof surface, the parapet must not extend less than 30 inches above the Fire separation wall. An adjoining ■ 37. The authority citation for part lower roof surface. wall of a manufactured home that 3282 is revised to read as follows: separates attached manufactured homes (A) Parapets must be provided unless with a fire separation distance of less roofs are of a Class C roof covering and Authority: 15 U.S.C. 2697, 28 U.S.C. 2461 than three feet. the roof decking or sheathing is of note, 42 U.S.C. 3535(d), 5403, and 5424. noncombustible materials or approved ■ 38. In § 3282.7, redesignate § 3280.1003 Attached manufactured home fire-retardant-treated wood for a paragraphs (d) through (nn) as (e) unit separation. distance of four feet on each side of the through (oo) and add new paragraph (d) (a) Separation requirements. (1) common fire separation walls; or one to read as follows: Attached manufactured homes shall be layer of 5⁄8 inch Type X gypsum board separated from each other by a fire or equivalent is installed directly § 3282.7 Definitions. separation wall of not less than 1-hour beneath the roof decking or sheathing * * * * * fire-resistive rating with exposure from for a distance of four feet on each side (d) Attached accessory building or both sides on each attached of the fire separation walls. structure means any awning, cabana, manufactured home unit when rated (B) A parapet must not be required deck, ramada, storage cabinet, carport, based on tests in accordance with where roof surfaces adjacent to the windbreak, garage, or porch for which ASTM E119–05 (incorporated by common walls are at different elevations the attachment of such is designed by reference, see § 3280.4). and the higher roof is more than 30 the home manufacturer to be
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structurally supported by the (iii) Installation instructions shall be (2) Any work required by the home manufactured home. provided by the home manufacturer design that cannot be completed in the * * * * * which identifies acceptable attachment factory, or when the manufacturer locations, indicates design limitations ■ 39. In § 3282.8, revise paragraph (j) to authorizes the retailer to provide an for the attached accessory building or read as follows: add-on to the home during installation, structure including acceptable live and when that work would take the home § 3282.8 Applicability. dead loads for which the home has been out of conformance with the * * * * * designed to accommodate and provide construction and safety standards and (j) Add-on. An add-on including an support and anchorage designs as then bring it back into conformance; attached accessory building or structure necessary to transfer all imposed loads * * * * * added by the retailer or some party to the ground in accordance with part other than the manufacturer (except 3285 of this chapter. PART 3285—MODEL MANUFACTURED where the manufacturer acts as a * * * * * HOME INSTALLATION STANDARDS retailer) as part of a simultaneous ■ 40. In § 3282.14, revise paragraph (a) ■ transaction involving the sale of a new introductory text to read as follows: 43. The authority citation for part manufactured home, is not governed by 3285 continues to read as follows: § 3282.14 Alternative construction of Authority: 42 U.S.C. 3535(d), 5403, 5404, the standards and is not subject to the manufactured homes. regulations in this part except as and 5424. (a) Policy. In order to promote the identified in this section and part 3280 purposes of the Act, the Department ■ 44. In § 3285.5, add alphabetically the of this chapter. The addition of any add- will permit the sale or lease of one or definition for ‘‘Attached accessory on or attached accessory building or more manufactured homes not in building or structure’’ to read as follows: structure must not affect the ability of compliance with the standards under § 3285.5 Definitions. the manufactured home to comply with circumstances wherein no affirmative the standards. If the addition of an add- action is needed to protect the public * * * * * on or attached accessory building or interest. An add-on, including an Attached accessory building or structure causes the manufactured home attached accessory building or structure structure means any awning, cabana, to fail to conform to the standards, then which does not affect the performance deck, ramada, storage cabinet, carport, sale, lease, and offer for sale or lease of and ability of the manufactured home to windbreak, garage, or porch for which the home are prohibited until the comply with the standards in the attachment of such is designed by manufactured home is brought into accordance with § 3282.8(j), is not the home manufacturer to be conformance with the standards. governed by this section. The structurally supported by the (1) With the exception of attached Department encourages innovation and manufactured home. accessory buildings or structures, add- the use of new technology in * * * * * ons must be structurally independent manufactured homes. Accordingly, ■ and any attachment between the home 45. In § 3285.903, revise paragraph (c) HUD will permit manufacturers to to read as follows: and the add-on must be for utilize new designs or techniques not in weatherproofing or cosmetic purposes compliance with the standards in cases: § 3285.903 Permits, alterations, and on- only. site structures. * * * * * (2) If an attached accessory building ■ * * * * * or structure is not structurally 41. In § 3282.601, add paragraph (c) to read as follows: (c) Installation of an add-on or independent all the following must be attached accessory building or structure. met for attachment to the manufactured § 3282.601 Purpose and applicability. Each attached accessory building or home: * * * * * structure or add-on is designed to (i) Manufactured home must be (c) Exception. An add-on or attached support all of its own live and dead designed and constructed to accessory building or structure which loads, unless the attached accessory accommodate all imposed loads, does not affect the performance and building or structure is otherwise including any loads imposed on the ability of the manufactured home to included in the installation instructions home by the attached accessory building comply with the standards in or designed by a registered professional or structure, in accordance with part accordance with § 3282.8(j) is not engineer or registered architect in 3280 of this chapter. governed by this section. accordance with this part. (ii) Data plate must indicate that home ■ 42. In § 3282.602, revise paragraph Dana T. Wade, has been designed to accommodate the (a)(2) to read as follows: additional loads imposed by the Assistant Secretary for Housing Federal attachment of the attached accessory § 3282.602 Construction qualifying for on- Housing Commissioner. buildings or structures and must site completion. [FR Doc. 2020–28227 Filed 1–11–21; 8:45 am] identify the design loads. (a) * * * BILLING CODE 4210–67–P
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Reader Aids Federal Register Vol. 86, No. 7 Tuesday, January 12, 2021
CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JANUARY
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. 39...... 458 Presidential Documents 2 CFR 97...... 25, 27 Executive orders and proclamations 741–6000 5900...... 1253 383...... 1745 The United States Government Manual 741–6000 3 CFR 406...... 1745 Other Services Proclamations: 15 CFR Electronic and on-line services (voice) 741–6020 10129...... 215 6...... 1764 Privacy Act Compilation 741–6050 10130...... 413 710...... 936 10131...... 417 712...... 936 ELECTRONIC RESEARCH Executive Orders: 742...... 944, 2252 13969...... 219 744...... 1766 World Wide Web 13970...... 421 745...... 936 13971...... 1249 774...... 461, 944 Full text of the daily Federal Register, CFR and other publications Administrative Orders: is located at: www.govinfo.gov. Presidential Permits: 17 CFR Federal Register information and research tools, including Public Permit of December 23...... 223, 229 Inspection List and electronic text are located at: 31, 2020 ...... 435 38...... 2048 www.federalregister.gov. 39...... 949 6 CFR 140...... 949 E-mail Proposed Rules: 210...... 748, 2080 FEDREGTOC (Daily Federal Register Table of Contents Electronic 27...... 495 229...... 2080 230...... 2080 Mailing List) is an open e-mail service that provides subscribers 7 CFR with a digital form of the Federal Register Table of Contents. The 239...... 2080 digital form of the Federal Register Table of Contents includes 760...... 439 240...... 2080 HTML and PDF links to the full text of each document. 271...... 358 249...... 2080 273...... 358 270...... 748 To join or leave, go to https://public.govdelivery.com/accounts/ 8 CFR Proposed Rules: USGPOOFR/subscriber/new, enter your email address, then 240...... 2311 follow the instructions to join, leave, or manage your 214...... 1676 subscription. 1235...... 1737 19 CFR PENS (Public Law Electronic Notification Service) is an e-mail 12...... 2255 10 CFR service that notifies subscribers of recently enacted laws. 430...... 1253 20 CFR To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 431...... 4 501...... 1768 and select Join or leave the list (or change settings); then follow 590...... 2243 641...... 1772 the instructions. 1061...... 451 655...... 1, 1772 FEDREGTOC and PENS are mailing lists only. We cannot Proposed Rules: 658...... 1772 respond to specific inquiries. 50...... 1022 667...... 1772 Reference questions. Send questions and comments about the 683...... 1772 11 CFR Federal Register system to: [email protected] 726...... 1772 111...... 1737 802...... 1795 The Federal Register staff cannot interpret specific documents or Proposed Rules: regulations. 12 CFR 501...... 1831 3...... 708 641...... 1834 FEDERAL REGISTER PAGES AND DATE, JANUARY 5...... 1254 655...... 29, 1834 217...... 708 658...... 1834 1–222...... 4 252...... 708 667...... 1834 223–412...... 5 308...... 2246 683...... 1834 413–932...... 6 313...... 1740 726...... 1834 933–1248...... 7 324...... 708 802...... 1857 1249–1736...... 8 620...... 223 1737–2242...... 11 747...... 933 21 CFR 2243–2526...... 12 Proposed Rules: 101...... 462 53...... 2299 Proposed Rules: 204...... 1303 1301...... 1030 225...... 2299 1309...... 1030 304...... 2299 1321...... 1030 701...... 1826 1241...... 1306 22 CFR 1242...... 1326 212...... 250 14 CFR 24 CFR 13...... 1745 3280...... 2496
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3282...... 2496 29...... 1834 751 ...... 866, 880, 894, 911, 922 213...... 1745 3285...... 2496 37...... 1834 Ch. IX...... 1281 214...... 1745 38...... 1834 1030...... 2136 215...... 1745 25 CFR 96...... 1834 1519...... 1279 216...... 1745 Proposed Rules: 417...... 1834 Proposed Rules: 217...... 1745 15...... 1037 458...... 1834 52...... 1347, 2318 218...... 1745 500...... 1834 63 ...... 1362, 1390, 1868 219...... 1745 26 CFR 503...... 29 281...... 1081 220...... 1745 1 ...... 254, 464, 810, 1256 525...... 1834 282...... 1081 221...... 1745 530...... 1834 700...... 1890 222...... 1745 29 CFR 580...... 1834 223...... 1745 41 CFR 7...... 1772 1978...... 1834 224...... 1745 8...... 1772 1979...... 1834 60–30...... 1772 225...... 1745 18...... 1, 1800 1980...... 1834 Proposed Rules: 227...... 1745 1981...... 1834 22...... 1772 60–30...... 1834 228...... 1745 1982...... 1834 24...... 1772 229...... 1745 1983...... 1834 43 CFR 26...... 1772 230...... 1745 1984...... 1834 29...... 1772 Proposed Rules: 231...... 1745 1985...... 1834 37...... 1772 30...... 1037 232...... 1745 1986...... 1834 38...... 1772 233...... 1745 96...... 1772 1987...... 1834 44 CFR 1988...... 1834 234...... 1745 417...... 1772 333...... 1288 235...... 1745 458...... 1772 32 CFR 236...... 1745 500...... 1772 45 CFR Proposed Rules: 237...... 1745 503...... 1 75...... 2257 238...... 1745 525...... 1772 158...... 1063 239...... 1745 530...... 1772 310...... 498 46 CFR 240...... 1745 580...... 1772 33 CFR 221...... 1745 241...... 1745 780...... 1168 307...... 1745 117...... 1806 242...... 1745 788...... 1168 340...... 1745 165...... 2256 243...... 1745 795...... 1168 356...... 1745 1978...... 1772 220...... 1278 244...... 1745 1979...... 1772 223...... 1808 47 CFR 272...... 1745 236...... 1808 386...... 1745 1980...... 1772 0...... 44 1981...... 1772 239...... 1809 571...... 1292 401...... 1745 15...... 2278 578...... 1745 1982...... 1772 51...... 1636 Proposed Rules: 831...... 1809 1983...... 1772 54...... 994 165...... 32 Proposed Rules: 1984...... 1772 64...... 44 219...... 1418 1985...... 1772 73...... 2296 1986...... 1772 37 CFR 391...... 2344 Proposed Rules: 210...... 2176 571...... 47 1987...... 1772 2...... 2337 1988...... 1772 Proposed Rules: 74...... 1909 4001...... 1256 401...... 35 95...... 2337 50 CFR 4204...... 1256 404...... 35 4206...... 1256 10...... 1134 4207...... 1256 39 CFR 48 CFR 17...... 192 4211...... 1256 Proposed Rules: Ch. VII...... 493 648...... 1810 4219...... 1256 111...... 1080 665...... 2297 Proposed Rules: 49 CFR 679 ...... 1300, 1301, 1302 7...... 1834 40 CFR 107...... 1745 Proposed Rules: 8...... 1834 30...... 469 171...... 1745 217...... 1588 18...... 29, 1862 52...... 971 190...... 1745 223 ...... 1433, 1452, 2372 22...... 1834 87...... 2136 191...... 2210 226...... 1433, 1452 24...... 1834 282...... 977 192...... 2210 300...... 279 26...... 1834 745...... 983 209...... 1745 402...... 2373
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Building’’. (Jan. 5, 2021; 134 Road in Surprise, Arizona, as H.R. 7502/P.L. 116–319 Stat. 4902) the ‘‘Marc Lee Memorial Post LIST OF PUBLIC LAWS To designate the facility of the H.R. 5023/P.L. 116–297 Office Building’’. (Jan. 5, 2021; United States Postal Service 134 Stat. 4921) This is a continuing list of To name the Department of located at 101 South 16th H.R. 6100/P.L. 116–309 public bills from the current Veterans Affairs community- Street in Clarinda, Iowa, as session of Congress which based outpatient clinic in Strengthening the Opposition the ‘‘Jessie Field Shambaugh have become Federal laws. Youngstown, Ohio, as the to Female Genital Mutilation Post Office Building’’. (Jan. 5, This list is also available ‘‘Carl Nunziato VA Clinic’’. Act of 2020 (Jan. 5, 2021; 2021; 134 Stat. 5070) 134 Stat. 4922) online at https:// (Jan. 5, 2021; 134 Stat. 4903) H.R. 7810/P.L. 116–320 www.archives.gov/federal- H.R. 5123/P.L. 116–298 H.R. 6161/P.L. 116–310 To designate the facility of the register/laws. To designate the facility of the To designate the facility of the United States Postal Service United States Postal Service United States Postal Service located at 3519 East Walnut The text of laws is not located at 1585 Yanceyville located at 476 East Main Street in Pearland, Texas, as published in the Federal Street, Greensboro, North Street in Galesburg, Illinois, as the ‘‘Tom Reid Post Office Register but may be ordered Carolina, as the ‘‘J. Howard the ‘‘Senior Airman Daniel Building’’. (Jan. 5, 2021; 134 in ‘‘slip law’’ (individual Coble Post Office Building’’. pamphlet) form from the Miller Post Office Building’’. Stat. 5071) (Jan. 5, 2021; 134 Stat. 4905) (Jan. 5, 2021; 134 Stat. 4926) Superintendent of Documents, H.R. 7898/P.L. 116–321 U.S. Government Publishing H.R. 5273/P.L. 116–299 H.R. 6237/P.L. 116–311 Office, Washington, DC 20402 Securing America’s Ports Act Proper and Reimbursed Care To amend the Health (phone, 202–512–1808). The (Jan. 5, 2021; 134 Stat. 4906) for Native Veterans Act (Jan. Information Technology for 5, 2021; 134 Stat. 4927) Economic and Clinical Health text will also be made H.R. 5451/P.L. 116–300 available at https:// H.R. 6418/P.L. 116–312 Act to require the Secretary of To designate the facility of the www.govinfo.gov. Some laws To designate the facility of the Health and Human Services to United States Postal Service may not yet be available. United States Postal Service consider certain recognized located at 599 East Genesse located at 509 Fairhope security practices of covered Street in Fayetteville, New H.R. 1240/P.L. 116–289 Avenue in Fairhope, Alabama, entities and business York, as the ‘‘George H. Young Fishermen’s as the ‘‘William ‘Jack’ Jackson associates when making Bacel Post Office Building’’. Development Act (Jan. 5, Edwards III Post Office certain determinations, and for (Jan. 5, 2021; 134 Stat. 4909) 2021; 134 Stat. 4886) Building’’. (Jan. 5, 2021; 134 other purposes. (Jan. 5, 2021; 134 Stat. 5072) H.R. 1503/P.L. 116–290 H.R. 5458/P.L. 116–301 Stat. 4928) Orange Book Transparency Rocky Mountain National Park H.R. 6535/P.L. 116–313 H.R. 8611/P.L. 116–322 Boundary Modification Act Act of 2020 (Jan. 5, 2021; To deem an urban Indian To designate the facility of the (Jan. 5, 2021; 134 Stat. 4910) 134 Stat. 4889) organization and employees United States Postal Service H.R. 1966/P.L. 116–291 H.R. 5459/P.L. 116–302 thereof to be a part of the located at 4755 Southeast Henrietta Lacks Enhancing Rocky Mountain National Park Public Health Service for the Dixie Highway in Port Salerno, Cancer Research Act of 2019 Ownership Correction Act purposes of certain claims for Florida, as the ‘‘Joseph (Jan. 5, 2021; 134 Stat. 4894) (Jan. 5, 2021; 134 Stat. 4912) personal injury, and for other Bullock Post Office Building’’. H.R. 5597/P.L. 116–303 purposes. (Jan. 5, 2021; 134 (Jan. 5, 2021; 134 Stat. 5074) H.R. 2468/P.L. 116–292 Stat. 4929) To designate the facility of the H.R. 8810/P.L. 116–323 School-Based Allergies and H.R. 7088/P.L. 116–314 Asthma Management Program United States Postal Service National Landslide located at 305 Northwest 5th To designate the facility of the Act (Jan. 5, 2021; 134 Stat. United States Postal Service Preparedness Act (Jan. 5, 4896) Street in Oklahoma City, 2021; 134 Stat. 5075) Oklahoma, as the ‘‘Clara located at 111 James Street H.R. 3976/P.L. 116–293 Luper Post Office Building’’. in Reidsville, Georgia, as the H.R. 8906/P.L. 116–324 ‘‘Senator Jack Hill Post Office To designate the facility of the (Jan. 5, 2021; 134 Stat. 4914) Lifespan Respite Care Building’’. (Jan. 5, 2021; 134 United States Postal Service H.R. 5663/P.L. 116–304 Reauthorization Act of 2020 located at 12711 East Stat. 4931) Safeguarding Therapeutics Act (Jan. 5, 2021; 134 Stat. 5085) Jefferson Avenue in Detroit, H.R. 7105/P.L. 116–315 (Jan. 5, 2021; 134 Stat. 4915) Last List January 11, 2021 Michigan, as the ‘‘Aretha Johnny Isakson and David P. H.R. 5852/P.L. 116–305 Franklin Post Office Building’’. Roe, M.D. Veterans Health (Jan. 5, 2021; 134 Stat. 4898) Weir Farm National Historical Care and Benefits H.R. 4031/P.L. 116–294 Park Redesignation Act (Jan. Improvement Act of 2020 Public Laws Electronic 5, 2021; 134 Stat. 4917) Great Lakes Restoration (Jan. 5, 2021; 134 Stat. 4932) Notification Service Initiative Act of 2019 (Jan. 5, H.R. 5972/P.L. 116–306 H.R. 7259/P.L. 116–316 (PENS) 2021; 134 Stat. 4899) Mary Ann Shadd Cary Post Patents for Humanity Program H.R. 4983/P.L. 116–295 Office Dedication Act (Jan. 5, Improvement Act (Jan. 5, 2021; 134 Stat. 4919) To designate the Department 2021; 134 Stat. 5065) PENS is a free email of Veterans Affairs community- H.R. 5983/P.L. 116–307 H.R. 7347/P.L. 116–317 notification service of newly based outpatient clinic in To designate the facility of the To designate the medical enacted public laws. To Gilbert, Arizona, as the ‘‘Staff United States Postal Service center of the Department of subscribe, go to https:// Sergeant Alexander W. located at 4150 Chicago Veterans Affairs in Ann Arbor, listserv.gsa.gov/cgi-bin/ Conrad Veterans Affairs Avenue in Riverside, Michigan, as the ‘‘Lieutenant wa.exe?SUBED1=PUBLAWS- Health Care Clinic’’. (Jan. 5, California, as the ‘‘Woodie Colonel Charles S. Kettles L&A=1 2021; 134 Stat. 4900) Rucker-Hughes Post Office Department of Veterans Affairs Note: This service is strictly Building’’. (Jan. 5, 2021; 134 H.R. 4988/P.L. 116–296 Medical Center’’. (Jan. 5, for email notification of new Stat. 4920) To designate the facility of the 2021; 134 Stat. 5066) laws. The text of laws is not United States Postal Service H.R. 6016/P.L. 116–308 H.R. 7460/P.L. 116–318 available through this service. located at 14 Walnut Street in To designate the facility of the Peace Corps Commemorative PENS cannot respond to Bordentown, New Jersey, as United States Postal Service Work Extension Act (Jan. 5, specific inquiries sent to this the ‘‘Clara Barton Post Office located at 14955 West Bell 2021; 134 Stat. 5069) address.
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